Tijan v. Illinois Steel Co.

Mr. Justice Thompson delivered the opinion of the court. It is insisted that the court erred in not directing a verdict for the appellant and that the verdict cannot be sustained on the evidence. The evidence shows that the electrical appliances in the cage were operated in the night time by Leslie Fewtrell, a boy of the age of seventeen years, and William Erick of the age of sixteen years. Each of these boys operated and attended to the appliances for thirty minutes at a time, each spelling the other every thirty minutes; when one was operating the appliances the other was resting. The machinery had been shut down for want of material shortly after one o’clock a. m. while Fewtrell was in charge of the appliances. When the machinery was closed down Fewtrell moved the controller to the neutral position and opened the switch by moving the wooden handle so that it stood out from the wall. Erick took charge of the cage and the appliances in it at 1:30 o ’clock a. m. with both the electrical appliances in a safe position, and Fewtrell then had thirty minutes during which he was off duty, resting, but remained in the cage. There were in the cage at the time besides the boys two men, Etheridge, an oiler, and Moriarty, who was sitting on the bench reading a newspaper. Moriarty moved over on the bench so as to let Fewtrell sit on the bench near the stove. It was too warm for Fewtrell there, and he moved the lever on the controller the entire distance to the west, and sat upon the east side of the controller. There was proof also that two other men, Lincoln and Morgan, at times before the accident had rested or loitered in the cage. None of these four men, Etheridge, Moriarty, Lincoln or Morgan had any duty to perform in the cage and Moriarty left the cage before the accident. Fewtrell had a stick in his hand and seeing the movable part of the switch hanging apart from the forks, either accidentally or intentionally, touched the handle with the stick closing the switch, when the car shot forward catching appellee between it and the furnace and injuring appellee. Fewtrell and Erick were employes of appellant and had charge of the dangerous machinery in the cage every alternate half hour from six o ’clock to six o ’clock, and do not appear to have had any other place than the cage to stay during the half hours they were resting. Erick, the boy in charge of the machinery when the accident happened, testified that he saw Fewtrell move the controller from its neutral position and permitted it to remain, so that the car would move rapidly towards the west, if the switch should be closed, knowing that the sailor gang were at work on the furnace. Fewtrell drew pay for the entire time and must be held to be an employe of appellant during the time he was resting. Heldmaier v. Cobbs, 195 Ill. 172. Erick’s act, in permitting Fewtrell to move the controller and letting it remain so that the closing of the switch would move the car, was the act of appellant. The appellant had committed to Fewtrell and Erick, its employes, the care of this dangerous machinery. The law imposes upon appellant the duty of safeguarding its employes and the duty of exercising ordinary care and diligence thereabout; the acts of Fewtrell and Erick, who were not co-employes with appellee, were the acts of appellant, and appellant is responsible for their acts in using the machinery or guarding it, while in charge of it, and the jury were justified in finding the acts of Fewtrell and Erick to be negligence on the part of appellant. The presence of loiterers in the cage, where the control of dangerous machinery was located, was proved to have occurred at times for several months. The safety of many employes was dependent upon the care of the operators of the machinery controlled from the cage. We are of the opinion appellant was negligent in not preventing its employes from spending their spare time in the cage and distracting the attention of its employes in charge of such dangerous machinery as the proof shows was controlled in the cage. We conclude, that negligence was proved as alleged in several of the counts, and that the verdict and judgment are sustained by the evidence. Appellant also contends that the court erred in admitting improper evidence offered on behalf of appellee. The appellee was permitted to exhibit to the jury the upper part of his body. The introduction of substantive evidence of that character is in the discretion of the court and is not ground for reversal. Swift & Co. v. Rutkowski, 182 Ill. 18; Pronskevitch v. C. & A. Ry. Co., 232 Ill. 136; C. & A. Ry. Co. v. Walker, 217 Ill. 605. The court permitted counsel for appellee in their reexamination of Fewtrell and Erick to question them as to statements made by them to their employer on the day the injury occurred. Erick was still in the employ of appellant and by some of his answers showed a disposition to favor appellant. The re-examination was proper, not to impeach either of them, but to draw from them facts which had not been fully disclosed, and the questions were for the purpose of refreshing their memories and awakening their conscience. Chicago City Ry. Co. v. Gregory, 221 Ill. 591. There was evidence admitted concerning the area covered by the plant of appellant and the number of its' employes; this was admitted under the count alleging negligence in not making and promulgating rules and was proper on that issue. The only objection made to this evidence was that it was immaterial. It was material as tending to show, that in such a plant, there should be rules requiring employes not to interfere with other employes in the discharge of their duties. Where evidence is admissible for some purposes, and is inadmissible for others, an objection is properly overruled. The proper practice is to request that it be restricted to the particular purpose for which it is competent. 9 Encyc. of Evi. 130. A physician testified that “this man’s anatomy had been driven out of place by impact of the car that struck him or whatever the object was that struck him.” This answer was made in reply to a question to which there was no objection; neither was there any motion to exclude the answer. . While the answer was not proper appellant has not saved any question concerning it. However, there is no dispute as to what caused the injury nor the extent of it, hence the answer is not reversible error. There was also some evidence concerning the possession of a revolver by Fewtrell in the cage at another time. It was afterwards excluded. This evidence was improperly admitted, but it was harmless error. It is contended the damages are excessive. Appellee was a man twenty-five years of age, strong, healthy and earning from $2 to $2.40 per day; his head was crushed, his jaws broken in three places so they had to be wired together, his teeth were loosened so that he cannot eat meat or hard food, Ms spine is twisted, three ribs were broken on one side and four on the other, one lung is solidified, one shoulder is made five inches lower than the other and he suffered constant pain. He cannot do any work and is a physical wreck because of the injury. We cannot say the judgment is excessive. Finding no reversible error, the judgment is affirmed. Affirmed.