Variety Manufacturing Co. v. Landaker , 1906 Ill. App. LEXIS 777 ( 1906 )


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  • Mr. Justice Smith

    delivered the opinion of the court.

    It is urged on behalf of appellant as a ground of reversal that the evidence fails to show that appellant had anything whatever to do with the accident that happened to Landaker, and therefore appellant’s motion to take the case from the jury should have been granted.

    We have examined with care the evidence in the case bearing upon the question whether the servants of appellant moved the planks so that one end did not quite reach the side of the elevator shaft and so had no support and then left the planks in that position, and we find the evidence quite sufficient to sustain appellee’s case. The testimony of Tuttle, Er-hart and Griesman tends to show the removal of the planks by appellant’s servants from a safe position to a position in which one' end of the planks had no support. Appellant’s servants knew that in this position the planks were dangerous unless they were weighted and braced. They accordingly placed weights on the ends that were supported and braced them from the ceiling. Having finished their work they, removed the weights and braces and negligently and carelessly left the planks in a dangerous position and without restoring them to the position in which they were placed and left by deceased. The jury might reasonably draw the inference of negligence on the part of appellant’s servants from the testimony of these' witnesses. They could not reasonably draw any other inference. .

    The rule of law is elementary that a master is liable for the careless or negligent acts of his servant while such servant is engaged upon the master’s work, and within the scope of his authority. Dinsmoor v. Wolber, 85 Ill. App. 152; Andrews v. Boedecker, 126 Ill. 605; Christin v. Irwin, 125 Ill. 619.

    A contractor whose servants are engaged upon work about which servants of another are also engaged, owes the servants of such other contractor the duty of ordinary care in prosecuting its work. John Spry L. Co. v. Duggan, 182 Ill. 218. This legal duty is not questioned by counsel for appellant, but it is claimed that the facts do not bring appellee’s case within the rule. We cannot concur with counsel in this claim. We think the evidence shows facts which gave rise to a duty on the part of appellant, and that appellant’s servants were negligent, and that the negligence produced the injury complained of. It was a question for the jury under the evidence, and therefore the court did not err in refusing to take the case from the jury

    Appellant contends further that the deceased was guilty of contributory negligence.

    It is an undisputed fact in the case that when deceased left the planks they were supported at both ends, and were in a safe condition. Deceased is not shown to have had any knowledge that any change had been made in the position of the planks. Erhart and Griesman had seen the planks moved away from the edge of the shaft and weighted and braced, but they made no mention of the fact to Landaker prior to the accident. It does not appear from the evidence that Landaker knew the planks had been used by appellant’s servants that morning while .he was in the top of the shaft. Upon his return to the second floor he found the planks apparently in the same condition as when he left them that morning. He could reasonably assume that the planks were still safe for the purpose for which he had placed them there. The light in the shaft was dim. .His previous use of the planks in the same apparent position would tend to allay in his mind any suspicion of danger. We cannot say therefore that the deceased was guilty of contributory negligence under the evidence. It was a question of fact for the jury, and we cannot say that their verdict was wrong on this question, or contrary to the weight of the evidence.

    Error is assigned upon the admission of the verdict of the coroner’s jury returned at the inquest on the body of deceased.

    The coroner’s verdict finds that Charles Landaker “came to his death on the 7th day of May, A. D. 1903, at the West Side Hospital, from the ¡effect of injuries received, caused by falling down an elevator shaft in the new building belonging to the Illinois Moulding Company at 23d street .and Western avenue, while in the performance of his duties and in the employ of the Eaton & Prince Elevator Company, November 1st, 1902.”

    There was nothing in the .finding which had any bearing upon any contested issue in the case. The verdict of the jury in this case could not have been influenced against appellant, or to appellant’s injury by the verdict of the coroner’s jury. It was not error, therefore, to admit it. However, it seems to be the law of this state that the coroner’s verdict is competent evidence of any fact properly included in the verdict and within the scope of the inquiry. U. S. Life Ins. Co. v. Vocke, 129 Ill. 557.

    Counsel for appellant complains in argument of the admission of the testimony of Griesman in rebuttal.

    The motion for new trial was in writing. Only two grounds were urged therein based on rulings of the court on matters of evidence, namely: “The court erred in admitting in evidence the coroner’s verdict;” and “The court erred in admitting in evidence alleged contracts offered by plaintiff.” These grounds do not cover the ruling which counsel here presents as error. The ruling admitting the testimony complained of in rebuttal cannot now be urged as error. The right to urge it as error was waived. I. C. R. R. Co. v. Johnson, 191 Ill. 594.

    Complaint is made that the trial judge made comments on the evidence of the witness Tuttle, in the presence of the jury, which were prejudicial to appellant. We find no exceptions, howe\rer, in the abstract, to the remarks of the court. In the absence of exceptions taken at the time, an assignment of error thereon will not be considered. Deane et al. v. D. & R. G. R. R. Co., 77 Ill. App. 242.

    Error is assigned upon the second instruction given at the request of appellee. This instruction, while not beyond criticism, states substantially the law as laid down in C. C. Ry. Co. v. Saxby, 213 Ill. 274. The giving of the instruction was not error.

    Finding no error in the record the judgment of the Superior Court is affirmed.

    Affirmed.

Document Info

Docket Number: Gen. No. 12,768

Citation Numbers: 129 Ill. App. 630, 1906 Ill. App. LEXIS 777

Judges: Smith

Filed Date: 11/23/1906

Precedential Status: Precedential

Modified Date: 10/19/2024