Hansell-Elcock Foundry Co. v. Clark

Mr. Justice Windes

delivered the opinion of the court.

One contention of appellant’s counsel is that the court committed reversible error in permitting the plaintiff to file an amended declaration after the verdict, and in this connection they say that “ the only declaration submitted to the jury was that of March 18, 1903.” This was an amended declaration filed after the trial commenced. That the trial was on this declaration cannot be successfully controverted. It took the place of ali other previous declarations. Mo objection was made to its filing, nor to proceeding with the trial after it was filed without a plea on the part of appellant. We need, then, only to consider whether or not appellant was prejudiced by the filing of the amended declaration after verdict.

We have not, because of its length, set out the amended declaration filed March 18, 1903; also for the further reason that it is not claimed by appellant’s counsel that there is any material difference between that declaration and the one quoted in the statement, which the'court permitted to be filed after verdict, except that the latter declaration charges that the column in question was negligently and improperly erected and “placed,” and 'that the plaintiff “will in the future continue to suffer and to lose health,” whereas, in the declaration filed March 18, 1903, it is only charged, in the first count, that the defendant had negligently and improperly erected and permitted the column to remain in an unsafe and improper condition, and in the second count that the defendant by its servants, not fellow-servants of the plaintiff, erected said column and left it in an unsafe and unfastened condition, etc., and in the third count that said column which was erected by the defendant was negligently and improperly maintained in an insecure and improper condition; also that neither of the counts, although they allege the plaintiff’s injuries substantially as in the amended declaration filed after verdict, allege that the plaintiff will in future continue to suffer and to lose health.

Under section 23 of chapter 110, Eevised Statutes of this state, known as the Practice Act, there can be no question but that the court had power to allow the amendment. We think it apparent from the references made to the difference between the two declarations, that appellant was in no way prejudiced by the amendment. Under the allegation in the declaration filed March 18, that the defendant negligent!}7 and improperly erected and.permitted the column to remain in an unsafe and improper condition, we think all the evidence admitted was proper. There can be, as we think, no very material difference between the allegation that the column was negligently erected and the allegation that it was negligently erected and placed. If the column was erected, it was at the same time placed. The same considerations apply as to the allegation with regard to future suffering and loss of health. In addition to the fact that the declaration of March 18 alleges the plaintiff’s injuries in substance as they are stated in the amended, declaration filed after verdict, it is alleged that as a result of plaintiff’s injuries, his “shoulder and arm have been rendered and still are for all time unfit for use; ” also that as a result of his injuries plaintiff “has been rendered unable and unfit to perform any work.” These allegations, in our opinion, are sufficient to render competent all the evidence which was admitted with regard to plaintiff’s injuries, and we think it apparent from a reading of the evidence in the record that it is a fair inference therefrom that the plaintiff will continue to suffer in the future as a result of his injuries. In Springer v. Schultz, 105 Ill. App. 544-55, it was said (citing numerous cases): “It is enough that the declaration showed the injury received without describing it in all its seriousness, and the recovery could be to the whole extent of the injury.” It was an excess of caution on the part of counsel to have asked to amend the declaration after verdict, and we think the court might well have denied it.

In this connection it is argued that the court erred in the giving of instructions 1 and 2 for the plaintiff, because the first instruction refers the jury to the‘declaration filed February 17, 1902, the amendment thereto filed January 23,1903, and the amended declaration filed March 18,1903, and the second instruction permits the jury to allow damages for future suffering and loss of health. We think these instructions present no sufficient ground for reversal. It is true the jury should not have been referred to any other declaration than that filed March 18, but the reference in the instruction is to the charges of negligence set up in the different declarations. No material difference is pointed out by counsel between the charges of negligence in the different declarations referred to, and we are unable to- discover any which, in our opinion, could have worked any prejudice to appellant. As to the matter of future suffering and loss of health, we think what has been said sufficiently disposes of the alleged error in instruction 2.

It is claimed that the court erred in limiting the time for argument on behalf of appellant to fifty-two minutes. Counsel do not cite any authority in support of this contention, and concede the general rule that the trial court has power to limit the time within which counsel shall address the jury, but insist that in this instance that discretion was abused by the learned trial judge. We cannot yield assent to the contention. We held in the case of Cobb Choc. Co. v. Knudson, 107 Ill. App. 668, in which the facts were as complicated as in this case, that it was not reversible error to limit the argument to thirty minutes upon each side; that such a limitation was not an abuse of the discretion of the presiding judge. This case has since been affirmed by the Supreme Court. 207 Ill. 452. It is true, we said in that case that the time seemed short, and “no specific injury arising out of this limitation is pointed out,” while in this case it is said that the time was insufficient to argue the questions of fellow-servants and damages, and to explain to the jury an unfortunate circumstance which occurred in the trial relating to an imperfect model with reference to which the witnesses testified. We have given due consideration to all these matters, and think that the time limited was not such an abuse of the court’s discretion as would require a reversal of the case. We do not regard the question of fellow-servants of special importance in the case, since we think that the evidence, independent of that question, justifies the verdict on the matter of appellant’s liability. The question of damages, while important, presents no serious complication and required no extended argument. There is nothing in the record to show the importance of an argument regarding the model aside from the fact that the evidence shows that it was prepared by the appellant’s servant, and it was incorrect. During the progress of the trial the record fails to show that there was any question made as to a lack of good faith on appellant’s part in the preparation of this model. ISTo claim was made to the court nor in the formal motion made by appellant for additional time after an adjournment of the trial from one day to ten o’clock a. m. of the next day, that there was any desire to make an argument regarding the model.

It is further said that the court erred in submitting of its own motion to the jury the six special interrogatories quoted in the statement, and reference is made, since the case was taken, to the recent case of P., C., C. & St. L. Ry. Co. v. Smith, 207 Ill. 486-90, which holds that special interrogatories given to the jury by the court should first be submitted to counsel. Under the ruling of the Supreme Court in that case the court’s action here, assuming that the interrogatories were not first submitted to counsel, is erroneous, but we think it is not sufficient to justify a reversal. The Supreme Court say in the Smith case that “ there might be cases where the submission of questions by the court without notice would not be ground for reversal, where it could be seen there was no injurious effect.” We think that this is such a case. In accordance with the / statute appellant’s counsel submitted six special interrogatories calling for answers by the jury as to many material— though, as we think, the trial court so held, and that ruling is not questioned—evidentiary facts involving the most important questions in the case. The interrogatories quoted in the statement call for answers to. questions involving all, or at least, the principal ultimate facts in issue on the trial, and we are at a loss to perceive how appellant could have been prejudiced by the court’s action. In the Smith casé the trial court submitted a special interrogatory with respect only to the care of appellee, who had sued for personal injuries, and it was said that if such an interrogatory is submitted a party may desire to submit other interrogatories concerning other material facts, whereas in this case the interrogatories cover, as we think, all the material ultimate facts in the case. Moreover, it must be assumed, in the absence of any showing in the record to the contrary, that the court first submitted the special interrogatories to counsel before giving them to the juiy.

Appellant’s counsel, with great earnestness, argue that the court committed error in the giving of appellee’s fourth instruction, and in the modification, and giving as modified, of appellant’s ninth instruction, both of which are quoted in the statement. It is claimed that they give to the jury conflicting views of the law as to appellant’s duty toward appellee, and that the fourth instruction does not lay down the correct rule as to appellant’s duty to appellee to furnish a reasonably safe place and reasonably safe surroundings in which to work, and to use reasonable care to maintain the same, under the circumstances of this case. Also that the court erred in the refusal and in the modification and giving as modified of appellant’s seventh, ninth, tenth, fourteenth, seventeenth, twenty-second and twenty-sixth instructions, for the reason that these instructions as asked state a correct rule as to assumed risk, but that the court modified each of them by stating that ordinary risks incident to the employment were assumed only “ after the defendant had taken reasonable care to prevent or remove them.” The fourth instruction, we think, states the correct rule as to appellant’s duty to appellee as to furnishing him a reasonably safe place and reasonably safe surroundings in which to work, and in maintaining the same in a reasonably safe condition, and we see no necessary conflict between it and the ninth instruction. It is true, the ninth instruction limits the duty of appellant to have and keep the building in a safe condition by the qualification that he is not bound to do so “ at every moment of his (the servant’s) work, so far as its safety depends upon a due performance of the work by him and his fellow-servants, if any.” The fourth instruction merely states the general rule, which we think is applicable to the leading facts of this case, and the ninth is but a limitation upon the general rule, which has some basis in the evidence for its application, viz: evidence tending to show that the column was caused to fall by reason of the acts of certain of appellee’s fellow-servants. In this connection counsel lay especial stress upon the case of Richardson v. Anglo-Am. P. Co., 72 Ill. App. 77-80, in which it was said in substance that the hazard involved in working upon a building in process of construction and undergoing changes of condition constantly, was an ordinary hazard incident to the employment and assumed by the employee. Also the case of Merchant v. Mickelson, 101 Ill. App. 401-4, in which this court held that the doctrine that the master must furnish his servants a safe place in which to work, is not applicable when the servant is employed to take down a building, which work was necessarily dangerous. We think both these cases clearly distinguishable from the one at bar; the Eichardson case, because the conditions there were temporary and undergoing constant changes in the performance of the work, and in the Merchant case the work was necessarily dangerous, whereas the conditions here, as the evidence shows, were not temporary in their nature, nor was the work necessarily dangerous. It is a serious question also, if the doctrine of these cases is not overruled, by the Supreme Court in the case of Herath, infra. It seems unnecessary to review cases from other jurisdictions, since the decisions of the Supreme Court seem to us applicable.

The principle applied in the case of Ross v. Shanley, 185 Ill. 390-93, which was an in jury to an employee of appellant engaged in the building of a tunnel, caused by the falling of defective shoring in the tunnel, is applicable here. Tire court say: “ Appellant’s foreman was chargeable with the specific duty, to wit, that of exercising reasonable care to see that the place where he sent appellee to work was reasonably safe, and appellee had the right tó rely upon the performance of such duty by appellant’s foreman before he gave the order for him to work where he did. Appellee was not required to make a critical and careful examination of his surroundings at the place where he was sent to work by the foreman. We think- it was properly left to the jury to determine whether appellant’s foreman exercised such reasonable and ordinary care to see that the place where he ordered appellee to work was reasonably safe before he sent him there to work, and also whether appellee knew or should have known the danger to which he was exposed.”

In the recent case of Pressed Steel Car Co. v. Herath, 207 Ill. 576, the Supreme Court affirmed a judgment in favor of an employee’s administrator against the car company, his employer, for injuries caused by the falling of a roof of a building in process of construction, and which had been damaged by fire so that it was found necessary to tear away parts of the roof in order that the building might be re-roofed, which caused the death of the employee, who was at the time engaged in the work of removing portions of the burned roof. One of the contentions in the case was that the rule that it is the “ duty of the master to furnish the servant a reasonably safe place in which to work, could not apply because the work of demolishing the roof was inherently dangerous and made dangerous the place where the servants must work, and the employee must of necessity assume the ordinary dangers incident to the undertaking in which he voluntarily engaged.” It appears in that case that the employee and his foreman both had knowledge of the danger of the work which was being done, and the foreman gave an order to the employee to go beneath a section of the roof, which order he obeyed, and went into a place which he knew to be dangerous and was killed, and notwithstanding these facts the contention of the employer "was overruled, it was held liable, and tire court said of the employee, under these circumstances, that the law required of him only that he “ act with that degree of prudence that would have controlled an ordinarily prudent, careful and discreet man.” It is true, the decision is placed upon the fact that the foreman gave the employee an order to do work in a place which the latter knew to be dangerous, but at the same time the court indirectly overruled the employer’s contention that the general rule as to the master’s duty to furnish the servant a reasonably safe place in which to work, did not apply. In principle we think each of these two cases is the same, on the question presented by these instructions, as the case at bar. In this case the evidence shows in substance that the appellee, while he wras an experienced iron worker, had previously served as a foreman in the same kind of work at which he was engaged1 when injured, knew nothing whatever as to the manner in which the column was erected and placed, had worked in the building where he was hurt but a few hours before the accident, and could not see, because of sand and dirt around the base of the column, how it ivas fastened. The column was in no way braced or anchored to the foundation, as the evidence strongly tends to show was necessary in order to make a proper and reasonably safe construction, so as to prevent its falling over. In this regard, however, there is a conflict in the evidence, that on behalf of appellant tending quite strongly to show that the manner in Avhich the column was fastened to its foundation was a proper one and a reasonably safe construction. Whether or not the appellant Avas negligent in that regard, or whether the appellee assumed the risk or was guilty of contributory negligence, were all questions for the jury upon the evidence, and we think, from a careful reading of it, their verdict on all these questions, as Avell as their answers to the special interrogatories, Avhich appear in the statement, are not clearly and manifestly xvrong.

As to the question of assumed risk presented by the modifications of the several instructions referred to, we think there is no reversible error. The learned trial judge seems to have been guided, in his rulings upon the instructions, by the cases of C. & A. R. R. Co. v. House, 172 Ill. 601-5, and Malott v. Hood, 201 Ill. 202-7, in the former of which cases it was said : “An employee does not assume all the risks incident to his employment, but only such as are usual, ordinary, and remain so incident after the master has taken reasonable care to prevent or remove them, or if extraordinary, such as are so obvious and expose him to danger so imminent that an ordinarily prudent and careful man would anticipate injury as so probable that in view of it he Avould not enter upon or remain in the employment.” The principle here announced is reaffirmed in the Malott ease. Appellant’s counsel claim that the holding in the House and Malott case's is in conflict Avith T. H. & I. Ry. Co. v. Williams, 172 Ill. 379, and other cases referred to. If, as claimed by counsel, there is such conflict, it is the duty of this court to, and it will be guided by the later expression of the Supreme Court in the Malott case, as well as in the cases of City of La Salle v. Kostka, 190 Ill. 130-5, and Western Stone Co. v. Muscial, 196 Ill. 385, in which the principle of assumed risk is announced substantially as stated in the instructions referred to.

It is also claimed that the court erred in the giving of appellee’s third instruction, and the refusal of appellant’s instructions 1 to 8, both inclusive. We deem it unnecessary to refer to these instructions in detail; suffice it to say we have considered them all and think there is no reversible error in any of the court’s rulings thereon. While we have considered the rulings of the court on appellee’s first, second and fourth instructions, we need not have done so, because no 'error is assigned upon them or the appellee’s third instruction, which properly presents for consideration the court’s rulings thereon. The only error assigned which questions the court’s rulings upon instructions is that the court erred in denying appellant’s motion for a new trial. The only point in the motion for a new trial with regard to appellee’s instructions, refers to instructions “1 (A), 2 (D), 3 (B) and 4 (C).” Ho such instructions appear in either the abstract or the record.

It is claimed also, that there is no satisfactory evidence as to how the column and beam attached to it came to fall; whether by reason of its improper and negligent construction and erection, or by its being struck by a derrick which was operated by appellee’s fellow-servants, or by the wind; also that it was clear from the evidence that both Clark and the appellant were upon an equal footing as to the care which each should have exercised, and that it clearly appears that Clark was injured through the negligence of his fellow-servants. To discuss all these questions would unduly extend this opinion, airead}' long. We have considered them all, and are of opinion that they were properly decided in favor of appellee by the jury, and that we should not disturb the verdict.

Reporters5 Note. In the foregoing opinion, it is stated that it is a serious question as to whether or not the doctrines of Richardson v. Anglo-Amer. P. Co., 72 Ill. App. 77-80, and Merchant v. Mickelson, 101 Ill. App. 401-4, are not overruled by the decision in Pressed Steel Car Co. v. Herath, 207 Ill. 576.

It is also said, and this is the final contention of appellant, that the damages are excessive. Appellee suffered very serious injuries from the accident, prior to which he was a strong and healthy man, a bridge and structural iron worker by trade, who earned $4 or $5 and sometimes $9 per day. When injured he was about thirty-five years of age, and was capable of performing the duties of a foreman at his trade. As a result of his injuries he suffered much pain, is practically deprived of the use of his left arm, cannot work at his trade, and has no other way, as he says, to make a living. In view of these facts and other circumstances shown by the record, we do not feel justified in disturbing the verdict because of its amount.

There being, in our opinion, no reversible error in the record, the judgment of the Superior Court is affirmed.

Affirmed.