Doherty v. Western United Gas & Electric Co.

Mr. Justice Gridlet

delivered the opinion of the court.

Many points are urged by counsel for defendant as reasons for the reversal of the judgment. We shall consider two.

It is contended that the trial court erred in holding, in effect, that plaintiff could recover on each of said four counts based upon the alleged violation by defendant of section 12 of said “Factory Act.” After careful consideration, we are of the opinion that the court erred in so holding and in refusing to instruct the jury, on defendant’s motion, to find the defendant not guilty on each of said counts. We think that the pit or manhole was not a “workshop” within the meaning of said act. The evidence shows that defendant’s manufactured product, i. e., illuminating gas, left its gas plant, which was about two miles from said pit or manhole, as a finished product. Nothing further remained to be done in “making, altering, preparing, cleaning, repairing, ornamenting, finishing or adapting for sale” said product. It appears that in the manhole there were two valves on a gas main, a governor controlling the pressure of the gas, and indicators to register that pressure, and that plaintiff’s duties were to visit the manhole twice a day, turn a valve, change certain charts and ink certain pens. Neither plaintiff nor any one else performed any labor in the manhole upon the product itself. The manhole was a part of defendant’s system of distributing its product to its customers. And we think the word “workshop,” as used in said act, means the place where the work of making, altering, etc., is done upon the product. In 40 Cyc. 2862, the term “Workshop” is defined as “a shop where any manufacture or handiwork is carried on, whether for the purpose of repair or manufacture. In 7 Words & Phrases, 6494, it is stated that a shop “is understood to be a building in which an artisan carries on his business, or laborers, workmen, or mechanics, by the use of tools or machinery, manufacture, alter or repair articles of trade.” In Spacey v. Dowlais Gas and Coke Co., 75 L. J. K. B. (N. S.) 5, it was held that a gas main used to supply gas to the consumers was not a part of the company’s factory. Furthermore, even if the manhole in question could be construed to be a “workshop” within the meaning of said act, the proof does not disclose that defendant violated the provision of section 12 of the Act, as alleged in said counts. The first clause of that section provides that “all factories, * * * mills or workshops, shall be kept free from any gas or effluvia arising from any sewer, drain, privy or other nuisance on the premises.” There was no evidence that any gas arose from any “sewer, drain, privy or other nuisance on the premises.” The second clause of the section provides that “all poisonous or noxious fumes or gases arising from any process, * * * which is created in the course of a manufacturing process, within such factory, mill or workshop, shall be removed, as far as practicable, by either ventilating or exhaust devices.” While there was evidence tending to show that it was practicable to remove gas from said manhole by ventilating or exhaust devices, and that there were no such devices there installed, there was no evidence tending to show that there were any fumes or gases arising in the manhole on the morning mentioned, “from any process, * * * which is created, in the course of a manufacturing process, within such factory, mill or workshop. ’ ’

It is further contended by counsel for the defendant that the trial court erred in allowing one of plaintiff’s expert witnesses, Dr. Leipold, in answer to a hypothetical question, objected to by defendant, to testify practically to the effect that in his opinion plaintiff’s unconsciousness at said railroad station was caused by poisoning from illuminating gas. To plaintiff’s declaration the defendant pleaded the general issue. At the trial there was no admission of an injury to plaintiff, and defendant denied that plaintiff had inhaled illuminating gas at the manhole. We think that the court erred in allowing the witness to, in effect, give his opinion as to an ultimate fact which was to be determined by the jury from all the evidence. Schlauder v. Chicago & S. Traction Co., 253 Ill. 154, 160; Keefe v. Armour & Co., 258 Ill. 28, 33.

For the reasons indicated the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.