{
  "id": 2799295,
  "name": "John J. Purtell, Appellee, v. Philadelphia & Reading Coal & Iron Company, Appellant",
  "name_abbreviation": "Purtell v. Philadelphia & Reading Coal & Iron Co.",
  "decision_date": "1912-02-05",
  "docket_number": "Gen. No. 15,965",
  "first_page": "125",
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  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "John J. Purtell, Appellee, v. Philadelphia & Reading Coal & Iron Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nThis appeal is from a judgment of the Circuit Court of Cook county for $20,000 in favor of John J. Purtell, a minor (twelve years old when the suit was brought in 1904) against the Philadelphia & Reading Coal & Iron Company. The judgment was rendered on the verdict of a jury in a personal injury suit. When the trial began on May 12, 1909, one Michael M. Connery was also a defendant. The pleadings in behalf of the plaintiff then consisted of three counts of a declaration. The first of these\u2014which for convenience in this opinion and to avoid any confusion springing from the elimination of some and the amendment of all of the counts in the original declaration\u2014we shall call count A., averred that on October 8, 1903, the defendant, the Philadelphia & Reading Coal & Iron Company, was engaged in the business of dealing in coal and was possessed of a coal yard and of a derrick with a boom and tackles attached, and had in its employ in this yard coal heavers to unload coal; that the defendant, Michael M. Connery, was in the employ of the Company as superintendent and foreman of the yard and dock and in charge of all the appliances therein, including the derrick, boom and tackles, and in charge of the coal heavers; that the derrick, boom and tackle were so arranged that unless they were secured with reasonable care in some one place they were liable, when not in use, to swing and blow about their central points over a wide space and strike any person who might be near; that the plaintiff Purtell was then employed as a water boy in the Company\u2019s yard by the coal heavers in the yard to carry water to them while they were at work in the said yard for the defendants; that the employment of the plaintiff by the coal heavers was with the knowledge, consent, permission and approval of the defendants; that in view of the nature of the employment it was reasonably necessary and for the benefit of the defendant\u2019s business that the plaintiff or some other person should be employed to supply the coal heavers with drinking water; that the plaintiff was eleven years and eleven months old, that is, of tender age, as the defendants and each of them by due care would have known; that by virtue of the premises it was the duty of the defendants to use due care to furnish the plaintiff a reasonably safe place in which to.perform his work; that nevertheless \u201cthe defendants and each of them carelessly and negligently suffered the said derrick, boom and tackles, which were not then and there in use for hoisting, to remain not reasonably securely tied or fastened, but on the contrary fastened insecurely with a weak, insecure, worn out and rotten fastening, which was very liable to become loose at any time, so that the said derrick, boom and tackle were liable to swing about their central points * * * so that the said yard became and was a place not reasonably safe for the minor plaintiff to work in;\u201d that the defendants by due care would have known the condition of the said derrick, boom and tackle in time by due care to have prevented the injury to the plaintiff, but that the plaintiff, by reason of his inexperience and tender years was unaware of and did not appreciate the risk of injury; that by reason of the negligence of the defendants the plaintiff, while he was with all due care and diligence at work at his employment in the yard, was struck by the derrick, boom and tackle, which came loose and swung against him and he was thereby injured.\nThe second of the counts on which the case was tried we shall denominate count B. This count averred the defendant Company was engaged in the business of dealing in coal and was possessed of a certain \u201cmanufacturing establishment, factory and work shop, to-wit, a certain coal yard and dock in which coal was cleaned, sorted, stored and packed by it for sale and not for the personal use of the defendant;\u201d that in the said yard and dock the defendant was operating high trestles with cars running thereon, for the purpose of distributing coal about the yard, and derricks, booms, tackles, hoisting buckets and other appliances for unloading coal from boats and steamers; that Connery was the superintendent and foreman and in charge of the appliances and in charge of the servants of the defendant in the yard and dock; that by reason of the cars, which in the course of defendant\u2019s business were frequently moving about the yard and dock and upon the trestles, and by reason of the high trestles and the derricks, booms, tackles and buckets which were swinging about the said yard very frequently, the employment in and about the said yard or dock of any child of tender years was very dangerous to the life or limb of such child,\u2014all of which the defendants would by due care have known; that nevertheless the defendants \u201ccarelessly and negligently suffered and permitted the minor plaintiff, who was then and there a child under the age of fourteen years, to-wit, of the age of eleven years and eleven months, to work in the said manufacturing establishment, factory and workshop, to-wit, the said yard or dock, at a certain gainful occupation, to-wit, as a water boy, to carry drinking water about the said yard, docks and trestles and among the said moving cars, derricks, booms, tackles and buckets, contrary to the terms of the statute of the State of Illinois in such cases made and provided;\u201d that the defendant Company had, in time to prevent, by due care, the injury to the plaintiff, notice by and through its manager, superintendents and foremen, who were in charge of the work in said yard (of whom Connery was one), both that the minor plaintiff was under the age of fourteen years, and also that he was at work as aforesaid about the said yard, dock, trestles, derricks, booms and buckets; that by means of the negligence of the defendants and each of them, the plaintiff, while with all due care he was in the yard and dock for the purpose aforesaid, was struck by a portion of said moving derricks, tackles and buckets and thereby injured.'\nThe third of the counts above mentioned we will call count C. It was practically identical with count B., except that instead of alleging that the defendant Company was possessed of \u201ca certain manufacturing establishment, factory and workshop, to-wit, a certain coal yard and dock,\u201d it alleged that the Company was possessed of \u201ca certain mercantile institution, to-wit, a certain coal yard and dock.\u201d\nTo this declaration each of the defendants, the Philadelphia & Beading Coal & Iron Company and Michael M. Connery, pleaded the general issue of \u201cnot guilty.\u201d\nAfter the evidence for the plaintiff had been heard the defendant, Philadelphia & Beading Coal & Iron Company, moved the court for a peremptory instruction to find it not guilty. After argument on this by counsel for each party (during the course of which the plaintiff\u2019s counsel stated that there seemed to be no evidence against the defendant Connery, but declined to dismiss as against him, on the ground that it would make the cause immediately removable to the Federal Court), and before the court had announced his decision on the motion for a peremptory instruction, counsel for plaintiff obtained leave to, and did, amend each of the three counts,\u2014A., B. and C.\u2014by dropping from each of the allegations that Michael M. Connery was \u2018\u2018superintendent and foreman,\u201d having in charge the appliances and servants of the defendant Company, the words \u201cand foreman,\u201d and adding to each of said allegations the words \u201cand one Humphrey McCarthy was then and there in the employ of defendant as foreman of the said yard under the said Connery.\u201d\nIn asking for leave to make the amendment counsel for plaintiff stated that it was to meet a point made by the defendant that the plaintiff\u2019s proof varied from the declaration. \u201cI do not think the point is good,\u201d he said, \u201cbut I don\u2019t want to take any chances on it.\u201d\nOn the making of the amendment the counsel for defendants, in behalf of the Philadelphia & Beading Coal & Iron Company, moved for a continuance on the ground that it was taken by surprise and was unable to produce material evidence rendered necessary by the amendment unless time should be given for that purpose, and that the evidence which it was unable to produce, but which it believed it would be able to produce if the cause was continued, was that of five named witnesses and of others who would testify that Plumphrey McCarthy was not a foreman of the Company at the time the accident complained of occurred; that he was an ordinary laborer and was not in charge of any of the men on the hoisting platform or any other part of the yard or dock. These grounds were set forth in an affidavit filed with said motion.\nThe court overruled said motion for a continuance over the objection and exception of the defendant Company, and also overruled a motion to strike out all testimony \u201cgoing to show that Humphrey McCarthy was foreman.\u201d Thereupon the court also overruled the motion of the defendant Company for a peremptory instruction in its favor. Defendants\u2019 evidence was then heard, at the conclusion of which the defendant, Philadelphia & Beading Coal & Iron Company, renewed its motion for a peremptory instruction to the jury to find said Company not guilty, which motion was again overruled.\nThe court instructed the jury to find the defendant, Michael M. Connery, not guilty, which instruction was duly complied with, when the verdict against the other defendant was rendered.\nThe court, at the request of the plaintiff, gave to the jury twelve other instructions, the giving of each of which is assigned for error, but to the first four of which only objections are urged in argument.\nThe first of these instructions states to the jury the allegations of counts hereinbefore referred to as A. and B. and states that the count we have denominated C. differs from B. only in alleging that the defendant Company was possessed of \u201ca mercantile institution, to-wit, a coal yard and dock, \u2019 \u2019 instead of alleging that it was possessed of \u201ca manufacturing establishment, factory or workshop. \u2019 \u2019\nAfter the statement of the allegations of the declaration the instruction proceeds:\n\u201cWhere it is alleged in the declaration that the defendants had notice of any fact, this means either that they actually knew it. or that by reasonable care in view of the circumstances shown by the evidence they would have known it.\n\u201cThe plaintiff is by law required to prove by a preponderance of the evidence the affirmative of the issue presented upon some one of these counts. If from a preponderance of the evidence you believe he has proved the affirmative of the issues presented by the pleadings, your verdict should be in favor of the plaintiff.\u201d\nThe appellant claims in its argument (a) that \u201cthe ' omission of any reference to the doctrines of assumed risk and fellow servants made this instruction erroneous.\u201d\nIt also claims (b) that the instruction was erroneous \u25a0 \u2018 in submitting to the jury a question of law, viz: what a manufacturing establishment and a mercantile institution were,\u201d and (c) that it was erroneous in using the plural word \u201cdefendants\u201d when treating of \u201cnotice,\u201d because at the time this instruction was given there was but one defendant in the case.\nThe second instruction states the provision of the law of this State that no child under the age of fourteen years shall be permitted or suffered to work at any gainful occupation in any mercantile institution or in any manufacturing establishment, factory or workshop, and then tells the jury that if they believe from a preponderance of the evidence that the defendant Company was possessed of \u201ca mercantile institution,\u201d as alleged in count C., or of \u201ca manufacturing establishment, factory or workshop,\u201d as alleged in count B., and \u201cthat the defendant the Philadelphia & Reading Coal & Iron Company, by its foreman in charge thereof, negligently and knowingly permitted and suffered the plaintiff to work therein at a gainful occupation, and that the plaintiff was at the time himself in the exercise of due and reasonable care for his own safety considering his age and experience, as alleged in said counts, and that by reason thereof the plaintiff was injured as alleged in said fifth or sixth counts of plaintiff\u2019s declaration, and that the plaintiff was then and there a child under the age of fourteen years, then the jury should find the defendant, the Philadelphia & Reading Coal & Iron Company, guilty.\u201d\nThe specific objection made by the appellant to this instruction is that it \u201csubmits an issue of law to the jury in requiring it to determine what was a mercantile institution. \u2019 \u2019\nThe third instruction is substantially the same as the second, with the addition of an alternative to the defendant Company\u2019s (by its foreman in charge thereof) \u201cnegligently and knowingly permitting and suffering\u201d the plaintiff to work in its establishment, as follows: \u201cor that plaintiff worked therein at such occupation in such manner and for such time that by the use of reasonable care defendant would have known thereof in time befor\u00e9 the injury by reasonable care to prevent plaintiff from so working there.\u201d\nThis third instruction the appellant objects to not only on the same ground which it urges against the second, but also because, as it asserts, \u201cthere was no evidence tending to show that the defendant Company knew or could have ascertained that plaintiff was working for it.\u201d\nThe fourth instruction tells the jury \u201cthat the words \u2018manufacturing establishment,\u2019 \u2018factory\u2019 or \u2018work shop, \u2019 as used in the instructions shall be construed to mean any place where goods or products are manufactured or repaired, dyed, cleaned or sorted, stored or packed, in whole or in part, for sale or for wages and not for personal use of the maker or his or her family or employer.\u201d\nThe objection made by the appellant to this instruction involves a denial of the accuracy of the definition independently of statute, and the position that a statutory definition of the terms in question contained in an Act of the Legislature of 1897 is no longer in force, \u2014the Act in question having been, as it is alleged, repealed by implication by a revision of the whole subject-matter by the Legislature in 1903.\nBesides the peremptory instruction asked by the defendant Company, it tendered four others, which were refused. This refusal is assigned for error and the assignment is insisted on in argument.\nThe first of these refused instructions is as follows:\n\u201cThe court instructs the jury that before the plaintiff can recover in this case under the amended fifth and sixth counts of the declaration,\u201d (Counts B. & C.) \u201cit must appear from a preponderance of the evidence that the defendant, Michael Connery, knew that the plaintiff was employed by the car pushers to bring them beer or water. \u2019 \u2019\nThe refusal of this instruction was erroneous, appellant claims, because \u201cMichael Connery was the representative of the defendant Company and in charge of the dock, and it can not be that the legislature intended to mulct a defendant in damages unless knowledge of a violation of the statute was brought home to it. \u2019 \u2019\nThe second of the refused instructions was this:\n\u201cThe Court instructs the jury that if you believe from the evidence the plaintiff was employed by car pushers and was on the premises for his own purposes, and if you further believe from the evidence that he was not on the premises for the purpose of doing anything beneficial to or in which the Philadelphia & Beading Coal & Iron Company was interested, then as to the amended third count\u201d (Count A.) \u201cof the declaration you will find the defendant, Philadelphia & Beading Coal & Iron Company, not guilty.\u201d\nThe third was this:\n\u201cThe court instructs the jury that Michael Connery was the only person who had authority to hire, and discharge men at the coal dock in question, and unless the plaintiff proves by a preponderance of the evidence that said Michael Connery knew that the said plaintiff was employed on said premises, then you will find the defendant Philadelphia & Beading Coal & Iron Company as to the amended fifth and sixth counts\u201d (Counts B. & C.) \u201cof the declaration, not guilty.\u201d\nAnd the fourth this:\n\u201cThe court instructs the jury that if you believe from the evidence that Humphrey McCarthy had no authority to hire or discharge men employed by the Philadelphia & Beading Coal & Iron Company, and if you further believe from the evidence that he had no authority to admit or exclude people from the dock of the coal' yard in question, then as to the amended fifth and sixth counts\u201d (Counts B. & C.) \u201cof the declaration, you will find the defendant, Philadelphia & Beading Coal & Iron Company, not guilty.\u201d\nOf these tendered instructions counsel for the defendant company say: \u201cDefendant\u2019s instructions two, three and four all should have been given. They were correct statements of legal principles and based,upon the facts and theory of defendant\u2019s case.\u201d\nThe \u201ctheory of defendant\u2019s case\u201d alluded to is stated in other parts of appellant\u2019s argument to be that plaintiff was a mere licensee upon the premises of the defendant Company, and that no wilful injury was claimed; that consequently appellant could not be liable under count A., and that the Child Labor Act of Illinois, on which counts B. and C. are based, affects the liability of a defendant for an injury to a minor under the prohibited age who is working in or about the defendant\u2019s premises only when the relation of master and servant exists between such defendant and such minor.\nThe jury returned a verdict simultaneously finding the defendant, the Philadelphia & Beading Coal & Iron Company, guilty, and the defendant, Michael M. Connery, not guilty. (Rec. 56.)\nThe defendant Company filed a written motion for a new trial, specifying as grounds for the same that the verdict was against the law and the evidence; that it was not sustained by the evidence; that the damages were excessive; that the court erred in not giving a peremptory instruction in favor of the defendant Company; that it erred in ruling upon evidence, in giving and refusing instructions and in overruling the defendant\u2019s motion for a continuance, heretofore described.\nThe assignments of error in this court repeat these complaints and add allegations that the court erred in overruling the motion for a new trial and the motion in arrest of judgment, and in entering judgment on the verdict.\nThe facts developed by the evidence were these:\nThe defendant corporation at the time of the accident was a coal mining and coal selling corporation. It mined coal in Pennsylvania, brought it in vessels to a dock and coal yard in Chicago and here sold it. In the yard the coal was cleaned, screened, stored, and from the yard it was sold and hauled away. In this yard at the edge of the river about 35 feet above the water was a platform about 22 feet wide and about 200 feet long. From the platform eight or ten runs with tracks upon them extended back on the same level to the coal bins in the storage sheds. On the edge of the platform were three masts, each with a boom, about 30 feet long and a foot in diameter attached, on Miich booms, blocks and falls were rigged, and by means of these derricks the coal was unloaded from vessels lying at the dock, of course by the means of steam power. Buckets were lowered into the holds of the boats, filled, hoisted to the platform, swung in and dumped into small coal ears standing on the platform. These cars were then pushed by men along the platform and along tracks on the runs to the storage bins and dumped. This work had been carried on for at least sixteen years in that way. At the time of the accident involved here there were fourteen or fifteen men hoisting, dumping and pushing cars on this platform. Other men were at work in the vessel which was unloading. The platform was occupied by workmen only when a boat was unloading, which, however, as the yard was a large one (sometimes as many as sixty men being engaged in it in loading cars and wagons), must have been frequently. It had been for at least sixteen years customary for the men on the platform working at the dusty business of hoisting, pushing and dumping anthracite coal to have \u201ca water boy\u201d to bring them water in cans or tin buckets from a hydrant in a barn next to the office in the yard. The water would be drawn into cans at the hydrant, taken by the water boy up a pair of winding stairs, then along a pair of planks to the \u201cruns\u201d and along the \u201cruns\u201d to the platform. The men employed on the platform paid the boy according to an agreement they might make with him and among themselves. This payment was made when the men themselves received their pay for the hours they had worked on the unloading job, and for many years (one witness says eighteen) these \u201cwater boys\u201d were paid by men outside the office door.\nThere is evidence that the plaintiff when engaged in the carrying of water as \u201ca water boy,\u201d as hereinafter described, also carried beer at times to the men on their special order, the men giving him the money to buy it outside the yard.\nIn argument- to the court below, as shown by the bill of exceptions, counsel for the defendant Company said: \u201cBesides bringing wafer he was there for the purpose of bringing beer. That is really why the boy was there. * * * We didn\u2019t want to have beer on the premises, but under the Union rules the men say they are entitled to it and we would have a strike on our hands if we refused to let them have beer. \u2019 \u2019\nThis statement was repeated in the oral argument of the cause in this court. No evidence on the position taken or rules made by the Company on this subject was introduced, however, by either party.\nOctober 6, 1903 the plaintiff, John Purtell, was between eleven and twelve years old and a school boy. As he was going along through or to a street (Lumber street), which runs through the coal yard, a man who was pushing a car on one of the runs called down to him and asked him if he wanted a job \u201cfor a conple of days, until the boat is out.\u201d Either the character of the \u201cwork\u201d was mentioned (which does not appear from the evidence), or the boy knew it from previous observation, for he went home, procured a couple of cans and went back to the yard and platform. Some of the men showed him where to get the water, and he worked that day and part of the next. He brought water in cans, medium sized dinner buckets, and would place them on an unused part of the platform at the south end and, as he testified, \u2018 Some of the men would be at the end of the shed and some men would be hoisting, and they couldn\u2019t all get a drink at once. They would come one at a time and generally from the south end of the platform. I had some cans full of water, and whenever they wanted a drink they would call me and I would hand them the can. Some fellow up there would beckon me and I would go over and see what he wanted. I would go along the platform, not out on the run. \"When I was not actually carrying water I sat down on a bench back enough from the end of the platform so I would not get hurt. I came back out of the way of these fellows,\u2014away in the corner where there was a bench where you could sit down. \u2019 \u2019\nIt appeared from the testimony of one witness (Vogt) that the plaintiff brought \u201cwater principally\u201d to the men. Another witness (King) said that he fetched him (King) beer two or three times a day, and that he saw him bring other men beer, but he did not know how often and could make no estimate of the comparative amount of time plaintiff occupied in bringing the two beverages respectively.\nThe bench on which the plaintiff sat was at the west end and at about the middle of the width of the' platform. While he was sitting there, putting his pails together, a boom upon one of the masts swung around and the block attached to the fall, made of wood and metal and weighing about fifty pounds, struck the plaintiff in the back and knocked him over the platform twenty-five feet or more to the deck of the boat below. The injuries he received will be hereafter described.\nOf the three derricks or masts with booms attached before mentioned only two were in use on this day. The westerly one, the one nearest therefore to where the plaintiff sat when at rest, was the idle one. There was a strong wind blowing. \u201cIt was a very windy day,\u201d one of the witnesses testified. The boom on this idle mast had been tied in the morning by one Humphrey McCarthy, an employe of the defendant Company (whose status as such employe is a matter of dispute), to a post of the shed. It was tied by a marline string attached to the fall, McCarthy says. A marline string is a strand out of the end of a rope such as is generally used to wind around ropes and cables to keep them from fretting. It is described by one witness as \u201ca raveling of the rope\u2014a piece of string about the size of a lead pencil,\u201d and by still another as \u2018 \u2018 old and worn and about the size of a lead pencil.\u201d\nThe boom had been noticed by this witness before that time swinging to and fro four or five feet. The string was evidently not strong enough to hold the boom in the wind. It broke between the fall and the post, and the block swung out about thirty feet and struck the plaintiff -in the back as stated.\nThe injuries which plaintiff received were very severe\u2014perhaps not overstated by the plaintiff\u2019s counsel in the proposition of Ms argument that to Ms arms they were the most severe that could happen short of amputation of both of them. They were a double compound comminuted fracture of both forearms in the neighborhood of the wrist and a fracture at the elbow of the ulna besides. The wounds were infected and the patient suffered great pain for a year, during which he was in the Cook County Hospital and for two or three months thereafter. At the end of that time the wounds healed. There were two operations, the first immediately after the plaintiff\u2019s removal to the hospital. After that the arms were placed in casts which had to be removed because of the infection after some weeks. The wounds were then dressed for six or- seven months, and then a further operation was necessary. After this the wounds were dressed again until they finally healed. The permanent deformity of the arms and'the effect upon the use of the arms and hands is also great. The right wrist is absolutely ankylosed, and is immovable. Both arms \u00e1re shortened and deformed, the hands are smaller than normal, growth having been interfered with. There is some motion in the left wrist, but it is abnormal. In the right arm the ulna does not articulate with any of the bones of the wrist. The grip of both hands is small. The fingers can only be brought down to touch the palm without closing solidly. There is no hope of improvement, and at the time of the trial six years after the accident, the plaintiff kept straps on both wrists to strengthen them and a bandage on his right hand to keep the strap from cutting it.\nThe stress of the defence in this case is placed on the proposition that there was no evidence under any of said counts warranting a verdict, and that in consequence a peremptory instruction for both defendants should have been given.\nTo first discuss this contention as a whole will decrease or altogether dispense with the necessity of detailed comment on the subsidiary questions raised concerning the instructions which were given and the rulings on evidence.\nAs to count A., the proposition rests on the claim that plaintiff was a mere licensee, to whom the defendant Company was under no other duty than to abstain from wilfully injuring him, and the alternative claim that if he were in any sense an employe, and thus more than a licensee, the negligence proven, if any, was so clearly that of a fellow servant that the court should have so held as a matter of law.\nWe cannot agree with either of these conclusions. The facts above detailed show clearly, to onr mind, that for many years there was a custom, which must have been well known to the persons responsible for the conduct of the defendant\u2019s plant for the \u201ccar pushers\u201d and others in their very exacting and dusty work of handling coal, to employ a \u201cwater carrier\u201d who should keep them all supplied with this necessity of their situation and who sometimes also was expected to go for beer at the behest of individuals who might especially entrust him with that errand. It would seem probable that this custom, if it may be so called, of these \u201cwater boys\u201d sometimes carrying beer which, as defendant claims in argument was insisted on.by the workmen\u2019s union as a right, the denial of which would precipitate a strike,\u2014tends to explain why the Company, desiring not to be the active factor in furnishing the beer, but desiring equally to avert a strike, allowed the practice to grow up, which was unequivocally proven, of allowing the men to employ and pay the \u201cwater boys\u201d rather than to engage them itself. However this may be, the knowledge of the defendant Company of the custom, existing for years, and the consequent implied invitation of the Company to the plaintiff to come on its premises, seems to us well established. We think this deduction from reason is fortified also by authority in this State. Atkins v. Lackawanna Transportation Company, 182 Ill. 237; Illinois Central R. R. Co. v. Hopkins, 200 Ill. 122.\nThe citations made by defendant\u2019s counsel from other courts are not of equal authority, and we think, moreover, have been successfully distinguished by the plaintiff in his argument.\nWe do not think, on the other hand, that the point made by the defendant that the \u201cwater boy\u201d in its yards was a \u201cluxury\u201d and not a \u201cnecessity,\u201d and that therefore the cases above cited from the Supreme Court of Illinois are not controlling, is well taken. The theory that each man engaged in dumping and pushing cars on the platform could, without objection from his employer, go over the runs, down and up stairs and back over runs to his work again whenever he needed a drink, or even when he wanted to fill his pail, to be set at some safe distance on the platform from his work and resorted to on occasion, does not appeal to us as reasonable. At all events, it was not the system adopted, and the Company will be held by us to have, with full knowledge or means of knowledge, tolerated and encouraged another method. We hold that the plaintiff was an invited person in the defendant\u2019s yard, doing work there with its consent and knowledge. Under these circumstances we also hold that the use by the plaintiff of the platform and of that part of it occupied by him when he was struck, and the manner of the said use was both \u201cacquiesced in\u201d by the defendant Company, and was \u201cin accordance with the intention and design with which the place was adapted and prepared or allowed to be so used.\u201d Therefore, the defendant Company \u201cassumed an obligation that the premises were in a safe condition, suitable for such use, and for a breach of this obligation was liable in damages to a person injured thereby.\u201d We have quoted this language from the opinion of Chief Justice Bigelow of Massachusetts in the case cited by appellant as a leading one\u2014Sweeny v. Old Colony and Newport Railroad Company, 10 Allen, 368.\nWe think it was negligence to leave, in a high wind, the block and the boom from which it hung so unsecured or insufficiently secured that it was likely to swing out over a considerable arc and do the mischief complained of here. Nor do we think it can be successfully urged that it was the negligence of a fellow servant of the plaintiff. Even assuming\u2014contrary to. the contention of the defendant, so vigorously pressed in other divisions of its argument\u2014that the plaintiff by being employed by the defendant\u2019s employes became in a sense an employe of the defendant, a \u201csub-employe,\u201d as the plaintiff contends, it does not follow that the negligence complained of was the negligence of a fellow servant. The duty which the law imposed on the defendant Company to the plaintiff on inviting him to do his work on its premises, is described by count A. of the declaration to be \u201cto furnish the plaintiff a reasonably safe place in which to perform said work.\u201d This is a primary duty, not to be delegated and to which the fellow servant doctrine does not apply; and the declaration therefore properly, on the plaintiff\u2019s theory of the case, charged the default to be that of defendant and omitted any averment that the negligence complained of was not the negligence of a fellow servant. Himrod Coal Co. v. Clark, 197 Ill. 514; Libby, McNeil & Libby v. Scherman, 146 Ill. 540, 549.\nThe negligence was originally described in count A of the declaration as follows: \u201cthe defendants * * * suffered the said derrick, booms and tackle, which were not then and there in use for hoisting to remain noti reasonably securely tied or fastened,\u201d and this was still the gist of the negligence charged after the allegation had been amended by adding to it the words (describing more particularly the exact condition of the\u2019tackle) \u201cbut on the contrary fastened insecurely with a weak, insecure, worn out and rotten fastening, which was very liable to come loose at any time.\u201d The real negligence was not in fastening it in any manner; it was in leaving it insecurely fastened. This the defendant did, nor does, it appear that such fastening as Humphrey McCarthy did, or such as he ought to have done if he did any, was in the especial line of his duty. If we are to accept the position strenuously contended for by the defendant, he was a mere laborer ; but even if he were a foreman, as he himself swore and the plaintiff contends, and if a foreman was a fellow servant of the \u201cwater boy,\u201d the defendant cannot avoid its liability by any theory which devolved solely upon such foreman \u201cthe use of reasonable care to keep the platform a reasonably safe place to work on.\u201d\nNor do we think that the doctrine of assumed risk has any place in this case. Count A of the declaration alleges that the \u201cplaintiff by reason of his inexperience and tender years was unaware of and did not appreciate the said risk of injury,\u201d and this was one of the allegations recited in the first instruction of the court, as to which the jury were told the plaintiff must prove his case by a preponderance of the evidence.\nThe theory that plaintiff was guilty of \u201ccontributory negligence\u201d or \u201cassumption of risk\u201d is untenable. The jury would not have been justified in so finding. The plaintiff, without reference to his youth even, would have had no duty of inspection, but only of observation. Illinois Steel Co. v. Mann, 100 Ill. App. 367.\nWe hold that the peremptory instruction was properly refused and that it would have been properly refused had count A. stood alone in the declaration, and as we hold further, as can be seen from the resume of facts which we have given and from what we have hereinbefore said, that the jury were justified in finding the issues for the plaintiff on this count, it becomes of less importance to discuss counts B. and C., and the liability of the defendant corporation under their allegations. But as they are involved in the errors assigned as to instructions, we will advert to them. These counts depend on the Child Labor Act of Illinois, and if they are good and sustained by the evidence they removed from the jury, under the doctrine of our Supreme Court in Strafford v. Republic Iron and Steel Company, 238 Ill. 371, expressed in the case at bar by the trial judge in his 2nd and 3rd instructions, any question of the negligence of either plaintiff or defendant, except the negligence of the defendant company\u2019s \u201cpermitting and suffering\u201d the plaintiff, who was under fourteen years of age, to work on its premises. These two instructions, however, leave to the jury the question whether the defendant corporation was possessed of either \u201ca manufacturing establishment, factory or workshop\u201d or \u201ca mercantile establishment\u201d\u2014these being the descriptions of the defendant\u2019s yard where the accident occurred, respectively given in the counts B. and C., to bring it within the provisions of the Child Labor Act.\nThe appellant\u2019s claim that this was injurious error to it is unfounded. It may indeed have been hardly a question for a jury, considering the evidence. There could be no reasonable answer to it but in the affirmative, in both its branches.\nAnd, indeed, by the fourth instruction which he have hereinbefore recited, the trial judge, in view of the fact that there was no contradiction in the evidence that \u201cproducts\u201d (to-wit, coals) \u201cwere cleaned and stored\u201d in the yard, must be held to have informed the jury that they must hold that yard to be \u201ca manufacturing establishment, factory or workshop.\u201d He was justified in doing so.\nThe Act \u201cTo regulate the employment of Children in the State of Illinois, \u2019 \u2019 approved June 9, 1897, by its 8th section expressly declares that the words \u201cmanufacturing establishment, factory or workshop, as used in this Act shall be construed to mean any place where goods or products are manufactured or repaired, dyed cleaned or sorted, stored or packed, in whole or in part, for sale or for wages, and not for the personal use of the maker or his or her family or employer.\u201d\nWe are of opinion that this section of the Act of 1897 is still in force and, moreover, although it applies hy its strict terms only to that Act, it must be considered as furnishing a definition for the same words in the similar revising Act of the same title, approved. May 15, 1903.\nThe evident purposes of the Act of 1903 are better to define the extra-hazardous occupations from which by the Act of 1897 the legal employment of youths b tween fourteen and sixteen were withdrawn, to provide further conditions in the nature of prior school attendance and teaching in case of the employment at all of such persons, to shorten the hours allowed for children\u2019s work, and to provide more efficient machinery for the enforcement of the Act. The Act of 1903 was in nowise intended otherwise to repeal or conflict with the law of 1897, and while expressly repealing a Child Labor Act of 1891, it does not mention the Act of 1897. Nothing is better settled in the construction of statutes than the rule thus stated (with citations) in the American & Eng. Ency. of Law: \u201cStatutes,\u201d vol. 26, p. 611: \u201cWords in a subsequent Act are to be given the recognized meaning they had in a former Act in pari materia in the absence of anything to show a contrary intent. \u2019 \u2019\nBut if there were any doubt on the question whether the defendant\u2019s coal yard were \u201ca manufacturing establishment, factory or workshop,\u201d there would be none that it was \u201ca mercantile institution.\u201d It is certainly an \u201cinstitution.\u201d \u201cMercantile\u201d is defined by the Century Dictionary and by Webster\u2019s alike as \u201cpertaining to trade,\u201d \u201ccommercial.\u201d How a coal yard, to which great quantities of coal mined by its owner, are brought, in which they are stored and from which and in which they are sold, can escape the definition of a mercantile establishment, we cannot see.\nThere is, however, a question raised by the appellant more serious than those above mentioned, as to the application of the Child Labor Act to the case at bar and, consequently, as to the sufficiency of the counts B. and C. and as to the accuracy of the first three instructions. The appellant contends that the Child Labor Act does not so apply in personal injury cases as to bring a case like the one at bar within the doctrine of the Strafford case (supra) and of the instructions of the trial judge in this case, that any injury received by a child within the prohibited age which can be traced to his being unlawfully \u201cemployed, permitted or suffered to work\u201d in the \u201cmercantile institution\u201d or \u201cmanufacturing establishment,\u201d \u201cfactory\u201d or \u201cworkshop\u201d of the defendant, renders the defendant liable without reference to In's negligence or to the care of the plaintiff. It insists that to bring a case within this doctrine there must be an employment by the defendant; that, in other words, the relation of \u201cmaster and servant\u201d must exist between the defendant and the plaintiff. This contention is urged and resisted strongly by the respective parties in this case.\nThe first section of the Act of 1903 provides \u201cthat no child under the age of fourteen years shall be employed, permitted or suffered to work at any gainful occupation * * * in any mercantile establishment,\u201d etc.\nWe think that the better reason would seem to be on the side of the position that in supplementing the word \u201cemployed\u201d with the words \u201cpermitted or suffered\u201d in this first section of the Act, the Legislature intended to place on the proprietors of an establishment like the one involved here, the responsibility of keeping out of any laboring function on his premises a child within the prohibited age. If this be so, the same doctrine in regard to liability for injuries received by one wrongfully \u201cpermitted\u201d or \u201csuffered\u201d to work by a defendant should prevail as is applied to one who is wrongfully \u201cemployed\u201d to work by him. Such a construction of similar Acts has been adopted by English and other courts, and, in the absence of any decision on the question by the Supreme Court of Illinois, is the one which we prefer to give. It tends to the evident purpose of the Act\u2014the protection of children of tender age from dangers to which they ought not to be subjected.\nWe are not deciding in this case that the accidental presence of a child in a proprietor\u2019s establishment, and his incidentally engaging in some work there, will necessarily render the proprietor liable for any injury the child may happen to receive on the premises. This case, even in the aspect we are now discussing (relating to liability under counts B. and C.) does not call for any decision wider in its scope than the statement that the relation of master and servant need not have technically existed between the defendant and the plaintiff herein, to render the defendant liable. The long continued custom, the reasonable necessity by the laborers for frequent draughts of water or other liquid during their particular work, the fact that plaintiff had been carrying on his auxiliary or subsidiary employment for a day or more in places where, in the ordinary course of business, accredited representatives of the defendant would naturally have seen him, are all to be considered, and, by the complained of instructions which relate to these counts, were impliedly and practically brought to the attention of the jury. It was only in case they believed from the evidence that the defendant \u201cnegligently and knowingly permitted and suffered the plaintiff to work,\u201d etc., or in case they believed from the evidence that plaintiff worked on the premises of the defendant \u201cin such manner and for such time that by use of reasonable care defendant would have known thereof in time before the injury by reasonable care to prevent plaintiff from so working there, \u2019 \u2019 that they were to find the defendant guilty on counts B. and C. of the declaration.\nWe do not think that the instructions incorrectly stated the law or are obnoxious to the objections urged against them.\nThe refusal of the instructions tendered by the defendant was, under the views that we have expressed, justified. . They proceeded upon a fallacious theory. They would have been misleading. The question involved needed for its solution the consideration of other factors than those to which the refused instructions called attention. They are the things immediately hereinbefore mentioned as impliedly or practically presented to the jury by the instructions which were given and are attacked. It is not our opinion that the Company could become liable only through the knowledge of Michael Connery, or that counts B. and C. are so framed as to make such knowledge indispensable to liability under them.\nOur conclusions already expressed leave for consideration, except as to the amount of the damages assessed by the verdict, only the alleged errors in the admission of evidence and in the denial of a continuance on the amendment of the declaration at the trial.\nWe do not think they are well assigned. It certainly was material and relevant to the issues involved to show the usual and long continued habit of the men in the yard about a \u201cwater boy.\u201d It threw light, not on the knowledge of the age of the plaintiff, but on the relations between the plaintiff and defendant and of the probable knowledge by the defendant of the capacity in which the plaintiff was acting and its implied permission therefor. The use of the word \u201ccustom\u201d in connection with it did not render it any more objectionable than had the term been \u201cpractice\u201d or \u201cusage. \u2019 \u2019\nOnce the knowledge, permission and approval of the defendant corporation as to the presence of the plaintiff on its premises and his labor thereon in a gainful occupation, were established, the age of the child became a matter which it must ascertain at its peril American Car Co. v. Armentraut, 214 Ill. 509.\nThe denial of the continuance prayed for when the amendment of the three counts was made eliminating the statement that Connery was \u201cforeman\u201d as well as \u201csuperintendent,\u201d and adding the allegation \u201cthat one Humphrey McCarthy was then and there in the employ of defendant as foreman of the said yard under the said Connery,\u201d was a matter of judicial discretion. It would not have been error to allow the motion, and it was not error, in our opinion, to deny it.\nThe amendment does not seem to us one that it was necessary to make. It was apparently done in fear of a variance, after there had been testimony that McCarthy was \u201cforeman.\u201d We do not think there would have been any material variance had the declaration remained unaltered. We think that under the declaration as it stood, the plaintiff was entitled to show either express notice to an agent or to agents of the Company of his presence and occupation, or to show, as one of the given instructions, as previously recited, puts it, \u201cthat plaintiff worked on the Company\u2019s premises at a gainful occupation in such manner and for such time that by the use of reasonable care the defendant would have known thereof in time to prevent the accident.\u201d In this view we do not think it was reversible error to refuse to continue the cause to allow defendant to procure witnesses to contradict the assertion of McCarthy that lie was \u201ca foreman.\u201d\nThe amount of the verdict has given us much thought. Terribly severe as the injuries were in their immediate and temporary effects, they were greatly more important even in their permanent ones. We do not think the size of the verdict can be necessarily or even probably attributed to \u201cpassion or prejudice.\u201d Therefore large as we deem the verdict\u2014 larger than we should have preferred to see it\u2014we will not undertake to say that it is so excessive as to demand reversal and remandment.\nThe judgment is therefore affirmed.\nAffirmed;",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Uhlmann, Hoag & Davidson, for appellant; Parker H. Hoag, of counsel.",
      "Francis J. Woolley, for appellee."
    ],
    "corrections": "",
    "head_matter": "John J. Purtell, Appellee, v. Philadelphia & Reading Coal & Iron Company, Appellant.\nGen. No. 15,965.\n1. Negligence\u2014when invitation to enter premises established. 'Held, that under the particular custom in question in this case and the knowledge thereof by the defendant established by the evidence, there was an implied invitation to the plaintiff to be upon the premises at the time of his injury and that in consequence the defendant owed to such plaintiff the duty to exercise ordinary care.\n2. Negligence\u2014leaving machinery unsecured. Held, under the evidence, that it was negligence to leave, in a high wind, a block and boom, attached to a derrick, so unsecured, that they were likely to swing out over a considerable arc and do injury to a servant while in the performance of his duty.\n3. Master and servant\u2014when declaration need not negative injury by fellow-servants. If a declaration is predicated upon the failure of a master to perform a non-delegable duty, it is not essential that such declaration allege that the injury was not the result of the negligence of a fellow-servant.\n4. Master and servant\u2014when latter not obliged to inspect. It is not required that a servant inspect a place at which he is assigned to work. The duty qf the master is inspection; that of the servant is merely observ\u00e1tion.\n5. Child labob law\u2014what \u201ca manufacturing establishment, factory or workshop\u201d within the meaning of the Act of 1897. Held, that the yard in question in this case, was \"a manufacturing establishment, factory or workshop\u201d within the meaning pf the Child. Labor Law of 1897.\n6. Child labor law\u2014what in force. Held, that the 8th section of the Child Labor Law of 1897 is still in force notwithstanding the Revisory Act of 1903, and that said section still applies as furnishing a definition for what is \"a manufacturing establishment, factory or workshop\u201d within the meaning of such Revisory Act of 1903.\n7. Child labor law\u2014effect of Act of 1903. The evident purposes of the Act of 1903 are better to define the extra-hazardous occupations from which by the Act of 1897 the legal employment of youths between 14 and 16 were withdrawn, to provide further conditions in the nature of prior school attendance and teaching in ease of the employment at all of such persons, to shorten the hours allowed for children\u2019s work, and to provide more efficient machinery for. the enforcement of the act. The Act of 1903 was in nowise intended otherwise to repeal or conflict with the law of 1897, and while expressly repealing a Child Labor Act of 1891, it does not mention the Act of 1897.\n8. Child labor law\u2014what not essential to enforcement in personal injury case. In order to bring a ease within the provisions of the Child Labor Law it is not essential that the relation of master and servant existed between the child injured and the defendant, at the time of the injury. It is sufficient if the child was permitted or suffered to be in a \"manufacturing establishment, factory or workshop\u201d of the defendant.\n9. Child labor law\u2014duty to ascertain age. Once the knowledge, permission and approval of the owner of premises as to the presence of a child on its premises and his labor thereon in a gainful occupation are established, the age of the child becomes a matter which such owner must ascertain at its peril.\n10. Statutory law\u2014rule of construction. \"Words in a subsequent Act are to be given the recognized meaning they had in a former Act in pari materia in the absence of anything to show a contrary intent. \u2019 \u2019\n11. Trial\u2014when denial of continuance will not reverse. The denial of a motion for a continuance predicated upon surprise resulting from the permitting of an amendment will not reverse in the absence of an abuse of discretion being established.\nAction in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.\nHeard in this court at the October term, 1909.\nAffirmed.\nOpinion filed February 5, 1912.\nRehearing denied February 19, 1912.\nUhlmann, Hoag & Davidson, for appellant; Parker H. Hoag, of counsel.\nFrancis J. Woolley, for appellee."
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  "file_name": "0125-01",
  "first_page_order": 145,
  "last_page_order": 172
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