Roloff v. Luer Bros. Packing & Ice Co.

Mr. Justice Duncan delivered the opinion of the court. Appellant insists on this appeal that this case is wholly without merits, that the deceased knew all about the location of the Ball ice machine and its dangers and assumed the risk by continuing in his employment without complaint. The proof utterly fails to support either the third or the fourth counts of the declaration. The evidence does not tend to show, so far as we can find, that the plank were too heavy for one man to handle. While it does show that there were several obstacles that made the placing of the plank in the stairway somewhat difficult, still it does show that while he had voluntary help to place the first plank, he himself placed the second one with apparent ease and without complaint and did not call for help with it or the third one. There was no evidence introduced as to the weight of these plank, or as to the character of the wood, or as to difficulty in any way in handling them. The defendant asked thé only question bearing on this subject, to-wit: “What difficulty if any, is there in putting a board of this size in this space and putting it on to those stairs?” This question was asked of a witness who had done this work and the plaintiff’s objection to this question being sustained by the court, it was not answered. The Ball ice machine is a large machine some twenty feet or more long, is a permanent structure in that building, not built with any view to passages around it for passing it with lumber, but with a view to manufacturing ice. For its purpose and uses it has plenty of space all around it for safe passage and there is no ground for complaint in that regard as charged in the fourth count. It could be plainly and easily seen by Roloff from the scaffold where he was whitewashing in the old engine room, and from any place in the space between the machines- where the plank was picked up by him, according to the undisputed- evidence of all the witnesses testifying on that subject. All the witnesses, some four or five, except one, testify that the new engine room and the Ball ice machine were well lighted by a large skylight above and south of it, and by one north of it, and by a hole in the north wall of this room, and by a window in the old engine room to the west. Some say that it is light enough there to read the fine print of a newspaper and another expresses it that a nickel could be dropped and sighted and picked up anywhere about the machine. The architect read his rule and took the measurements there by this natural light. The floor is perfectly level and smooth all about there. The evidence discloses that the deceased had worked all about the plant there at whitewashing for a month or more, and passed this machine that killed him many times a day in going back and forth, dressing and undressing and mixing his whitewash for use. The only trouble about the evidence in this particular is that it does not disclose how close by it he passed, nor at what parts of it he passed. One witness testifies that on the day Roloff was killed it was a dark, cloudy day; and that on such days and on that day it was dark and gloomy around this machine, and the parts of it could not be readily seen. If this is true one could not readily see the wide iron base that tripped the deceased into the pit when he was killed; and how well the deceased was acquainted with the machine before that would be a considerable factor in determining the questions of contributory negligence, assumed risk, etc. The most that can be said in behalf of the plaintiff is that there was sufficient evidence to go to the jury with the first two counts of the declaration. If the evidence showed clearly that he had been frequently close by this crank-shaft and base of the machine so that he must have been familiar with their construction, we would be compelled to say that the manifest weight of the evidence showed that he assumed the risk, for to see this structure and machinery is equivalent to knowledge of its dangers to one of ordinary intelligence. But as the case will have to be tried again we will not further discuss the merits of the case. The court erred in its rulings on the evidence. John Schuppe, a witness for the plaintiff, testified in detail about the movements of the deceased and how he got hurt. He was asked on cross examination, “And there was no difficulty in seeing the engine there, was there.” The court sustained an objection to this question. The witness’ evidence in chief bore largely on the movements of the deceased and necessarily on the question of his due care for his own safety. The character of the machinery and the structures there with their surroundings, and the amount of light and the ability of one to see these structures, all shed light on the question of due care, and the court erred in sustaining this objection. The court admitted over the objections of the defendant the coroner’s verdict, to wit; “That he (Roloff) came to his death on 7th day of May, 1908, at Luer Bros. Packing & Ice Company’s plant, by falling backward in a crank-shaft pit of the Ball ice machine in said company’s plant. Said crank-shaft and pit was unprotected.” The coroner is given no power or authority by statute to make a finding on the question of the negligence of either the deceased or of his employer, with a view to fixing or defeating personal liability against the employer for his death. Such a verdict imputing negligence to the defendant is not admissible in evidence against such defendant in an action for damages for such death. Cox v. Chic. & N. W. R. R. Co., 92 Ill. App. 15; Chic. M. & St. P. R. R. Co. v. Staff, 46 Ill. App. 499; Callaway v. Spurgeon, 63 Ill. App. 571. The effect of the last sentence of said verdict was to impute negligence to the defendant in failing to protect the crank-shaft and pit, and that part of the verdict should not have been read to the jury. The instruction to disregard it did not in our judgment remove the effect of this finding by the coroner’s jury. This evidence was directed to the vital points of the case and was of such a character as to be a controlling factor in the making of the verdict of the jury. For the errors indicated the judgment of the lower court is reversed and the cause will be remanded for further proceedings. Reversed and remanded,.