Reed v. Hearst's Chicago American , 1911 Ill. App. LEXIS 586 ( 1911 )

Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellant has favored the court with a very elaborate and clear argument, in which many grounds for reversal are urged, based upon the contributory negligence of the plaintiff ; the assumption of risk by the plaintiff; that the verdict was against the weight of the evidence; that appellant’s rights were prejudiced by the trial court’s repeated complaints in the presence of the jury as to the consumption of time in the trial of the cause while producing its evidence, and by suggestions in the presence and hearing of the jury that the location of the lights at the place where appellee was injured was a proper subject-matter of agreement between counsel; and in permitting counsel for the plaintiff to offer in the presence of the jury to have the jury go upon the premises and view the same with reference to the situation and lights. Alleged improper remarks by counsel for appellee during the trial, and in the argument of the case, are also relied upon as grounds for reversal.

We have studied with care the evidence in the case and the arguments of counsel, and without taking up the evidence in detail or entering into a particular discussion of the same, we are of the opinion that a cause of action on the part of appellee was shown, in that without instruction and without warning, appellee, a minor, was ordered to work on the south half of the press, where he was subject to special dangers which were not obvious to him, and that appellant was negligent in failing to inform appellee of the special dangers which the revolving cylinder and rollers created when appellee was removing paper from the roller. There is no controversy in the evidence as to the fact that he was taken from a comparatively safe position on the north side of the press and transferred to doing the same kind of work on the south side of the press, but under conditions which made the work far more dangerous than he had been accustomed to. He testifies that he did not know and was not informed that the large cylinder and the roller were revolving from him instead of toward him, and that the action of the machine would tend to draw his hand in between the bottom of the large cylinder and the top of the roller underneath, unless great care and dexterity were used by him in removing the paper which he was ordered to remove from the roller. The questions of negligence of appellant, and contributory negligence of appellee, were for the jury to decide under the conditions and circumstances shown. Am. Ex. Co. v. Risley, 179 Ill. 295.

In our opinion the plaintiff, appellee, cannot be held'to have assumed the additional risks of the work upon the south half of the machine, when, as he testifies, he did not know the direction in which the cylinder and roller were revolving until he was injured. According to the evidence, there was imperfect light thrown upon the machine from the south side, and appellee states in his evidence that he was unable to see and did not know the direction in which the cylinder and the roller were revolving. We do not think that we would be justified in finding the facts on this issue in the case different from the finding of the jury. We see nothing unreasonable in the plaintiff’s testimony and in his theory of the case, that by the exercise of ordinary care and without any information or caution on the part of appellant’s foreman he might not notice and did not know of the danger attendant upon his work on the south side of the press. He had been there but a few moments prior to his injury. Cobb Chocolate Co. v. Kundson, 207 Ill. 452; Ide v. Fratcher, 194 id. 552.

It is urged that appellant’s rights were unduly prejudiced by the repeated complaints of the court in the presence of the jury in regard to the consumption of time in the trial of the case by appellant in producing its testimony. Upon an examination of the record as set forth in the abstract, we do not find anything improper or unusual in the remarks of the court upon this subject, and clearly they do not constitute reversible error.

While we think that the suggestions of the court and cotinsel for appellee in regard to the location of the lights at the place where appellee was injured, and that that was a proper matter for agreement between counsel, might more properly have been made out of the hearing of the jury, and perhaps not in the presence of the jury, still we cannot say that there was reversible error in the suggestions made by court or counsel upon that subject.

At the conclusion of appellee’s evidence in chief, appellant in writing moved the court to direct a verdict of not guilty, and tendered to the court an instruction in writing to that effect. Thereupon, after considerable argument between the court and counsel, the court suggested that he was called upon to decide a legal proposition which required the study of authorities and instructions on various points of law, and in order to avoid taking the time to decide the questions involved in the instruction at that stage of the trial, suggested that he would overrule the motion for the instruction and mark the instruction “Refused” without argument, provided the plaintiff would enter into a stipulation with the court that in case the court should submit the case to the jury and a verdict should result in favor of the plaintiff, if the court should on the motion for a new trial become convinced that an error had been committed in not taking the case from the jury, the court might make up a record at that time showing that the court did, at the conclusion of the plaintiff’s evidence, instruct the jury to find the defendant not guilty, and that the jury did so' find, and upon such agreement on the part of plaintiff’s counsel the court would defer the full consideration of, and a ruling on the motion to take the case from the jury and order the trial to proceed. Counsel for appellant objected to this manner of proceeding, and now urges that the appellant was injured by the fact that the court did not pass upon the motion for peremptory instruction upon a full consideration of the case, but overruled the motion for the instruction in form, reserving the real question for further argument. The court then called plaintiff to the bar of the court, over the objection of counsel for appellant, and entered into a stipulation with plaintiff as the court had suggested, and the court then agreed with plaintiff and his counsel that he would not then pass upon the motion, hut reserve it for some future stage of the case, and treat the motion at that time as having been decided at the proper time and before defendant’s evidence was presented to the jury. ¡Notwithstanding the stipulation thus insisted upon and entered into between the court and appellee and his counsel that the trial might proceed in that manner and upon those conditions, counsel for appellant insisted upon arguing h'is motion for a peremptory instruction, and while the court listened to him, counsel for appellant now insists that it was not with a mind open to conviction, and that appellant lost the benefit of a proper hearing and decision of the motion at the time it was made.

To state the matter mildly, the course pursued by the court was unusual, extraordinary, and without any legal right. Appellant was entitled to a full hearing upon the motion presented, for the purpose of having the question considered by the court at that time. Appellant’s rights were preserved for review, we think, by the formal action of the court in overruling its motion, and we are unable to see that upon the facts of this case any material rights of appellant were lost by the extraordinary and legally impossible scheme or plan of the court to avoid deciding the motion at the time it was made, in the ordinary way of trials at law. But the record shows that the court did hear argument of appellant’s counsel at length and ruled on the motion, and thereby appellant’s rights were preserved, and gave the motion all the consideration to which it was entitled.

It is insisted on behalf of appellant that the court erred in refusing to give to the jury instructions 26, 27, 28, 30, 36 and 37. We find in appellant’s brief, however, no specification of reasons or specific grounds for claiming that the instructions should have been given in view of the evidence and the other instructions in the case. And we do not regard it as the duty of the court to take up the general objection raised by counsel for appellant to the action of the court in the refusal of instructions, in the absence of specific objections and arguments made in the briefs.

It is alleged that counsel for appellee made improper and prejudicial remarks during the course of the trial in the presence and hearing of the jury, and also improper and lire judicial arguments in his address to the jury. And it is urged in support of this contention that a number of photographs were brought to the attention of the jury during the examination of appellee’s witnesses and put in evidence, showing the character of the machine upon which appellee was injured. And notwithstanding the fact that the photographs made the questions being tried in respect to the location of the rollers and the operation of the machine clear, as it is urged, counsel for appellee stated in the hearing and presence of the jury that he was willing to have the jury go to the Franklin street plant and look over the machine in question, and that this statement necessarily placed appellant’s counsel in a position before the jury where they had either to accede to the offer on the part of counsel for appellee or decline it. It is urged also and the record shows that the court was favorably disposed to this offer and practically indicated that it would be a good idea for the jury to see the machine. It was claimed that the jury were likely to draw the conclusion that appellant had something to conceal and was not honest in its efforts to present the facts to the jury, since its counsel was compelled for good reasons in open court and in the hearing of the jury to decline to agree to have the jury view the premises and the machine. We do not regard the statements and offers of counsel as reversible error.

It is further suggested in argument by the appellant that counsel for appellee used unwarranted and prejudicial language, in which he reflected upon appellant and its counsel in the presentation of the case, and quotes in his argument the language objected to. We have read the language quoted as used by counsel in argument. We think it was of an improper character and was subject to the criticism made upon it by counsel for appellant. But the court sustained counsel’s objection to the language used, and, we think that the sustaining of the objection by the court, under the circumstances of this case, removed any wrong impression which was conveyed to the jury by the language of counsel. We cannot consider it as reversible error. Swift & Co. v. Rutkowski, 182 Ill. 18.

Finding no reversible error in the case, and no reason for disturbing the finding of the jury, the judgment must be affirmed.

Affirmed.