Moore v. Springfield & Northeastern Traction Co.

Mr. Presiding Justice Thompson delivered the opinion of the court. The appellant testified that “Part of my duties were to keep the machine and car clean and the machines running best I could;” that L. A. White the superintendent, took him to Elkhart on July 18, for the purpose of putting him to work but did not examine him or ask him any questions as to his knowledge of electrical apparatus and gave him no instructions concerning the use of the dangerous apparatus; that at a subsequent visit on July 29, the superintendent told him to go the next morning into the high tension room, pull the blades there, and clean up the room; that he knew there were outside disconnecting switches but did not know whether they would break the current if pulled out, that he thought they were for lightning protection. The then superintendent of appellant not now in its employ, testified that he fully examined the appellee as to his electrical knowledge, explained the use and purpose of both sets of switches, saw him operate the apparatus and told appellee not to go into the high tension room until after he had opened the outside switches. Two of the counts aver that appellee was in the exercise of due care while at work in the substation. With this conflict in the evidence the court, at the request of appellee gave an instruction “that if from the evidence and under the instructions of the court you shall find the plaintiff has proved his case as laid in his second amended declaration or any one of the first, second or third counts thereof by a preponderance of the evidence you should find the defendant guilty” and assess his damages, etc. This instruction, read with the declaration, limits the care of the appellee to what he did while in the high tension room and authorizes a verdict notwithstanding the fact, if the facts were as testified to by White, that appellee was guilty of negligence in going into the• high tension room without first opening- the outside switches. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 246; Gould v. Aurora E. & C. R. Co. 141 Ill. App. 348. This instruction should not have been given for the reason that while directing a verdict it ignored the defenses of assumed risk and contributory negligence in going into the high tension room without opening the outside switches, and unduly limited the time during which appellee was required to prove he was in the exercise of due care. It is also insisted that there was error in the admission of evidence. An electrical engineer testified in behalf of appellee, over the objection of appellant, that it would have beeii practical to have had the high tension wires enter at the top of the substation and the inside switches so constructed that the blades would not be charged with electricity when the switches were open and that a device could be constructed so as to protect the switch when open, but that he did not know of any device that would be practical to prevent employes from touching the switch; that “the practical and safest way would be to connect the high tension wires to the top of the switch and leave the blade when open harmless.” There is no averment in any count that brings this action under the Act of June 4, 1909. Under the averments of the declaration so far as the construction of the apparatus was concerned, the question to be submitted to the jury is whether the appellant used reasonable and ordinary diligence to provide reasonably safe appliances for the safety of its employes in the construction of the devices and were the premises of appellant reasonably safe. It was error to overrule the objection to the testimony that a device could be constructed to protect the switch and that some different construction of the devices and some other method of construction would be safer for the employes. Chicago & E. I. R. Co. v. Driscoll, 176 Ill. 330; Chicago, R. I. & P. R. Co. v. Lonergan, 118 Ill. 41; Eckhart & Swan Milling Co. v. Schaefer, 101 Ill. App. 500; People’s Gaslight & Coke Co. v. Porter, 102 Ill. App. 461; Madison Coal Co. v. Caveglia, 122 Ill. App. 419; Kehler v. Schwenk, 13 L. R. A. 374, 144 Pa. St. 348. It is also insisted that the judgment is excessive and "that counsel for appellee made inflammatory and prejudicial statements both in the opening statement and his closing argument to the jury. In the opening statement he stated there was a strike among the employes at the time appellant was employed, an objection to this statement was sustained. Counsel then continued, appellant had discharged seven or eight men, an objection to this was sustained. The rulings of the court had no effect on counsel for he continued his improper statements by again stating if it had not been for the discharge of these men this boy would not have been put to work, to which an objection was again sustained. The rulings of the court appear to have had no effect on counsel. The ruling of the court could not do away with the effect of such improper and inflammatory statements. In the cross-examination of "White and by volunteer statements of appellee, the facts that there had been a strike and trouble between appellant and its employes were improperly brought to the attention of the jury. There were also improper and prejudicial remarks made in the final argument. While we express no opinion concerning the amount of the judgment, yet no party should be permitted to try to profit by such unfair and unprofessional means. The statements of counsel with the repetition of the subject matter to which the court had sustained an objection show a deliberate intention to override thé law and defy the rulings of the court. They call for a more pointed rebuke and with the other errors require a reversal of the case. Wabash R. Co. v. Billings, 212 Ill. 41; Chicago City R. Co. v. Gregory, 221 Ill. 599. The judgment is reversed and the cause remanded. Reversed, and remanded.