{
  "id": 2677659,
  "name": "David F. McCabe, Appellee, v. Swift & Company, Appellant",
  "name_abbreviation": "McCabe v. Swift & Co.",
  "decision_date": "1908-09-12",
  "docket_number": "",
  "first_page": "404",
  "last_page": "413",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "David F. McCabe, Appellee, v. Swift & Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Creighton\ndelivered the opinion of the court.\nThis was an action in case,' in the Circuit Court of St. Clair county, bv appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant as a machinist\u2019s helper. Verdict and judgment in favor of appellee for $3,000.\nThe declaration consists of two counts, but for the purpose of this opinion it will be sufficient to state the substance of one of them.\nAppellant was operating a large meat packing plant, and appellee was employed in its machinery department as a helper. It was the duty of appellee to assist the machinist in charge of that department, and to do whatever work and perform whatever duty was assigned to him by that machinist. It is stated that on the day of appellee\u2019s injury, the machinist commanded him to disconnect a piston rod from the piston that was attached thereto; that he was a young man and inexperienced about mechanical work; that appellant carelessly and negligently directed him to take the piston rod to a blacksmith shop and heat it so that it could be disconnected; that the piston was hollow and had in it water or vapor, which if heated to a high degree would cause an explosion; that appellant knew this fact or should have known it \u201cby the exercise of reasonable care\u201d and that he did not know it and that it was not discoverable by him by the use of ordinary care on his part; that appellant gave him no warning of the danger of an explosion, nor any instructions or directions with respect to such danger; that he obeyed the directions given him and took the piston and rod to the blacksmith shop, placed it in the fire and proceeded to apply heat to it, as he was directed to do, and while he was in the exercise of ordinary care for Lis own safety, the piston exploded with great force, throwing broken iron, fire and coal upon his hands, body, face and arms, severely burning and injuring both his eyes, and bruising his body and limbs; that he suffered great pain, incurred large expenses in and about endeavoring to be cured, lost much time from his business, and that one of his fingers had to be amputated and the sight of both of his eyes was permanently impaired.\nCounsel for appellant contends that appellee\u2019s ease is wholly unsupported by the evidence and that the trial court erred in refusing to direct a verdict in favor of appellant. In our judgment appellee\u2019s case is not unsupported by evidence and we think it is not without merit.\nCounsel complains of many errors in the rulings of the trial court with respect to the admission and rejection of evidence and with respect to the giving and refusing of instructions. Some of these complaints, we think, are well founded, and inasmuch as the judgment of the Circuit Court will be reversed for \u201cerrors of law\u201d and will be remanded and may be tried again, we will not discuss the evidence in detail, nor at all, further than is necessary in the discussion of the questions of law raised by counsel.\nAs to many of the rulings of the trial court with respect to the admission and rejection of evidence, counsel is not in position to avail of his objections; they being merely general objections. The rule with respect to the sufficiency of objections is, that the general objections are not sufficient where the nature of the question is such that it will not clearly appear \u201cat first blush\u201d to be improper. In Ohio and Mississippi Railway Co. v. Walker, 113 Ind. 196 (200), the court, in an opinion by Mr. Justice Elliott, states the rule and the reasons for it as follows: \u201cObjections to evidence to be of any avail must be reasonably specific. The particular objection must be fairly stated. It is not enough to state that the evidence is incompetent, or that it is immaterial and irrelevant. This much is implied in the bare fact of objecting. If it be unnecessary to state the particular objection, quite as well say, \u2018we object\u2019 and be done with it, since a mere general objection amounts to nothing more, for it is simply tantamount to a.n expression of the fact that counsel do object. It is no answer to the proposition asserted by the authorities to say that the evidence itself may reveal the objection, for this may be said of all incompetent and irrelevant evidence, when carefully scrutinized, and, if this be true, then there would be no reason for requiring a specific objection in any case. But there is reason for requiring the particular objections to be stated with reasonable certainty, for in the hurry of a trial, it cannot be expected that particular objections will occur to the judge, although if stated he would readily perceive their force, counsel, who are presumed to have studied the case, ought to be able to state the particular objections, and if none are stated, it is fair to assume that none exist, since an objection that cannot be particularly stated is not worth the making.\u201d The rule is a proper rule. It is not burdensome to the competent lawyer, is but reasonable fairness to his adversary, and is just to the court.\nThe piston in question was made of cast iron, circular in shape, about fourteen inches in diameter and was hollow. A rod ran through the center of the pis\u25a0ton. This rod was about six or eight feet long and had become so worn that it was necessary to take it out and put in a new one, and it was tight and hard to get -out. The method finally resorted to was that stated in the declaration and the result was an explosion as there stated.\nAppellee produced a number of expert witnesses who were permitted by the court to testify. This class of evidence properly based and properly limited would be proper with respect to the questions, whether the explosion resulted from the presence of water and vapor in the hollow of the piston; whether appellant would, by the exercise of reasonable skill and care, have known that the piston probably contained water or vapor, and whether the method adopted for removing the rod was a reasonably safe method. .\nWe will consider in detail the few exceptions based on specific objections only, and inasmuch as the case may be tried again, will add some general discussion as to the many exceptions based on general objections. The witness Cook, in one of his answers, stated , that the iron often becomes very porous, so that you . can run a pin into it a quarter or half an inch. Appellant moved to exclude this answer, because it was not shown that the piston in question was in that condition. Under the particular facts of this case,, this motion should have been granted. The entire testimony of the witnesses Bruner and Kirkpatrick is challenged \u2022on the ground that these witnesses were not experts. This challenge is not well sustained. .We think the evidence shows that each of them was sufficiently qualified to make their testimony admissible. The testimony of the witness Mallet is challenged on the same ground, and we are of opinion that he was not sufficiently qualified and should not have been allowed to testify as an expert. The witness Kirkpatrick was asked, \u201cWhat is the usual and customary method of removing a piston head from a rod?\u201d This was objected to on the ground that \u201cit did not tend to prove any issue in the. case,\u201d and counsel called the attention of the court to issues in the case. We think the objection should have been sustained. The primary question was whether the particular method adopted in this particular case was a reasonably safe method under the circumstances. It is true that when evidence has been introduced tending to prove that the method adopted is not a reasonably safe method, it may be followed up by an inquiry as to whether there is any reasonably safe method generally known and in general use. This, it will be observed, is quite different from the question objected to. As the question objected to presented the case to the jury, it required appellant to adopt the usual and cnstomary method, without reference to the question of whether the method it did adopt was reasonably safe or not; and without reference to the fact of whether the usual and customary method was safe or unsafe. All that the law required of appellant with respect to .the method adopted in doing the work was that it exercise reasonable skill and care to adopt a reasonably safe method. The witness Kirkpatrick was also asked: \u201cMow, in view of your experience with hollow pistons, where there is a piston of the kind I have already described to you, where that was placed in a blacksmith\u2019s fire, and within from three to five minutes after it was placed in there, there was an explosion and a piece on the flat side of the piston was blown out the size of an ordinary machinist\u2019s hand, what would you say was the cause of the explosion?\u201d This question was objected to on the ground \u201cthat it was not a matter subject to expert testimony.\u201d This objection was properly overruled. Very little of the expert testimony objected to generally was properly based and in proper form. Some of the witnesses tell how they would do the work, others tell how it is done in other shops, and still others undertake to state the usual and customary method; in some cases the hypotheses are within the evidence, in other instances the answers are not responsive and contain vicious matter, one witness having been asked an improper question and in leading form, answered: \u201cThat is what any common sense man would do.\u201d The scope of proper inquiry of this class of expert witness, in chief, is usually very narrow ; and the safety of a case depends often upon counsel keeping within the limit.\nThe physician who treated appellee for the injuries sustained by reason of the explosion complained of, testified, among other things, to the extent to which appellee had lost the power of vision, and said that in making the examination and tests he relied in part upon what appellee told him with respect to his ability to see certain objects at certain distances from his eyes. And in giving his testimony, this witness refreshed his recollection by reference to a memorandum which he held in his hand. Counsel objected to his being allowed to consult the memorandum, on the ground that it was not made on the day of the treatment, and on the further ground that the witness could not remember exactly when it was made. We think the court properly overruled this objection. The witness testified that he made' the memorandum himself, that he made it from his own memory, that at the time he made it he had the facts in his mind, and that the memorandum correctly states the facts as they were at the time. With reference to the time when he made it, he said: \u201cI see so many cases, I cannot remember exactly when I made this memorandum.\u201d \u201cI don\u2019t think I made that the same day I saw him. I think I made it sometime afterwards, I don\u2019t know exactly how long.\u201d This meets the requirements of the rule as we understand it. Counsel also moved to exclude this witness\u2019s testimony with respect to appellee\u2019s power of vision, on the ground that \u201chis evidence is based on answers and information imparted to him by appellee himself.\u201d Counsel cites C. & E. I. R. R. Co. v. Donworth, 203 Ill. 192, and Chicago Union Traction Co. v. Giese, 229 Ill. 260. In neither of the cases cited did the physician who testified ever treat the patient, or examine him for the purpose of treating him. In one case the physician who made the examination was employed to make it \u201cfor the purpose of giving testimony on the trial,\u201d and in the other case the physicians were employed to make the examination \u201cfor the purpose of reporting to the patient\u2019s attorneys, to enable them to determine upon taking the case,\u201d and for the purpose of qualifying themselves to \u201ctestify as witnesses.\u201d The evidence does not bring the case at bar under the rule applied in the cases cited. In this case the physician had treated appellee for the injuries caused by the explosion from the day of his injuries, and had not finally discharged him. The examination was made on the 26th of June, 1907, and not for the purpose of preparing a case or being a witness. The case was not commenced until August 15, 1907. And further, the witness was able to state from mere inspection substantially all that he did state that was of material value to appellee.\nThe court gave at the instance of appellee three long instructions, covering full three pages of the abstract, each more or less defective. In the first it is said that it was the duty of appellant to warn appellee of danger which he \u201cwould not be likely to discover by the use of ordinary care.\u201d This duty would be better expressed in the words ordinarily employed for that purpose, viz.: which he \u201ccould not have discovered by the exercise of ordinary care.\u201d The words \u201cnot be likely\u201d to discover, appear to us to minimize the duty. And the instruction states the duty of appellant to warn appellee of danger \u201cknown or which should have been known to the defendant.\u201d This duty is not fairly stated, it also would have been better stated in the ordinary form: \u201cknown or which by the exercise of reasonable skill and care would have been known to the defendant.\u201d The expression was \u201cnot likely to discover\u201d also appears in the second instruction. And in the second instruction the duty of appellant is stated in the words, was Imown to the machinist or \u201cshould have been known to him.\u201d This would be more correctly stated as above suggested, by the use of the words: \u201cor by the exercise of reasonable skill and care would have been known to him.\u201d The third authorizes the jury to award damages for loss of capacity to earn money in the future. We do not find sufficient warrant in the evidence for that clause in the instructions.\nCounsel complains of the action of the trial court in refusing three instructions asked on behalf of appellant. These instructions appear in the abstract as Nos. 16, 17 and 20. No. 16 was properly refused, the full substance of it is embraced in appellant\u2019s given instruction No. 19. The 17th and 20th are substantially correct when applied to the particular issues and evidence in this case, and are material. They. should both have been given and are as follows:\n17.. \u201cIn cases of this nature the mere fact of the accid\u00e9nt of itself alone is not any evidence of negligence on the part of the defendant, but before the plaintiff can recover, he must prove that the defendant was guilty of negligence, as charged in the declaration, and that this negligence was the cause of this explosion and injury to the plaintiff.\u201d\n20. \u201cThe court instructs you that it is alleged in each count of the plaintiff\u2019s declaration that when the piston in question was placed in the fire, said piston had in it a quantity of water and vapor; and the declaration further avers that the fact of the existence of the water and the vapor in the piston was well known to the servant of defendant, or by the exercise of ordinary care should have been Imown to him; and it further alleges that this fact of the water and vapor being in the piston was unknown to the plaintiff, and by the exercise of ordinary care was not discoverable by Mm.\n\u201cThe court further instructs you that these allegations are material ones, and if you find from the evidence that the defendant or its servant did not know, or by the exercise of reasonable care could not have known that water or vapor was in the piston, then you are instructed that the plaintiff could not recover in this case.\u201d\nFor the errors above noted the judgment of the CircMt Court is reversed and the cause remanded.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Creighton"
      }
    ],
    "attorneys": [
      "C. E. Pope, for appellant.",
      "D. E. Keefe, for appellee."
    ],
    "corrections": "",
    "head_matter": "David F. McCabe, Appellee, v. Swift & Company, Appellant.\n1. Evidence\u2014when general objections insufficient. General objections are not sufficient where the nature of the question is such that it will not clearly appear \u201cat first blush\u201d to be improper.\n2. Evidence\u2014as to when expert evidence competent. Expert evidence as to the cause of an explosion is competent.\n3. Evidence\u2014when memorandum may be used to refresh recollection. A witness may properly be permitted to refresh his recollection from a memorandum which he has testified was made by himself from his own memory and was made at the time when he had the facts in mind and was correct at the time he made it.\n4. Evidence\u2014upon what physician may base his opinion. A physician who has treated a plaintiff suing for personal injuries may predicate his opinion as well upon subjective as objective symptoms and may state what such opinion is and his reasons therefor.\n5. Master and servant\u2014duty of former as to methods of doing work. The master is not required to adopt the usual method of doing particular work; all that he is required to do is to exercise reasonable care to adopt a method reasonably safe.\n6. Instructions\u2014particular phrases condemned. The phrase \u201cwould not he likely to discover by the use of ordinary care,\u201d is improper, the proper language is \u201ccould not have discovered by the exercise of reasonable care;\u201d likewise, the phrase \u201cknown or which should have been known to the defendant,\u201d is inapt, the appropriate expression is \u201cknown or which by the exercise of reasonable skill and care would have been known.\u201d\n7. Instructions\u2014approved form as to what does not tend to show negUgence. An instruction upon this subject as follows approved:\n\u201cIn cases of this nature the mere fact of the accident of itself alone is not any evidence of negligence on the part of the defendant, but before the plaintiff can recover, he must prove that the defendant was guilty of negligence, as charged in the declaration, and that this negligence was the cause of this \u00e9xplosion and injury to the plaintiff.\u201d\nAction in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.\nHeard in this court at the February term, 1908.\nReversed and remanded.\nOpinion filed September 12, 1908.\nC. E. Pope, for appellant.\nD. E. Keefe, for appellee."
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