#### The Monmouth Mining & Manufacturing Company v. Peter Erling.

Master and Servant—Negligence of Master—Injury to Servant—Failure of Employer to Properly Inspect Machinery—Concurring Negligence of Fellow-servant—Improper Remark of Counsel to Jury—Exceeding Time Limit in Address to Jury—Necessity of Exception.

1. In an action brought by plaintiff to recover damages for an injury received while engaged in shoveling clay out of a puddling pan, the accident being caused by the unexpected starting of the machinery in the pan, this court holds, in view of the evidence, that the srme justified a finding by the jury that the defendant was guilty of negligence in failing to properly inspect the machinery, and that such negligence wa& the proximate cause of the injury.

2. The fact that the negligence of a fellow-servant of plaintiff may have concurred with that of defendant does not preclude plaintiff’s recovery in the case presented.

3. An improper remark of counsel to the jury, held, not to have constituted reversible error.

4. The fact that the plaintiff’s counsel exceeded his time limit in his address to the jury can not be taken advantage of where no exception was preserved.

5. Objections to a clerical error in one count, and to instructions given under that count are immaterial, no recovery having been had under that count.

[Opinion filed December 12, 1892.]

*412Appeal from the Circuit Court of "Warren County; the Hon. John J. Glenn, Judge, presiding.

Messrs. Kirkpatrick & Alexander, for appellant.

Mr. J. A. McKenzie, for appellee.

Mr. Justice Cartwright.

This is an action by appellee against appellant on account of personal injuries caused by a defect in machinery furnished by appellant for use in its factory where appellee was" employed. The injury occurred while appellee was shoveling clay out of a pan about eight feet wide and fifteen inches deep, used for the purpose of mixing and tempering the clay. The mixing and tempering was chiefly done by heavy iron wheels moving rapidly inside the pan by means of steam power. These wheels were connected with a shaft and so arranged that in revolving in the pan they worked from the center to the circumference and back again. The machinery in the pan was controlled by means of a lever about ten feet long. To the end of the lever at the pan was attached a clutch, and when this clutch was raised by pulling down the outer end of the lever it was thereby disconnected from the machinery which propelled the wheels, and the wheels would stop. Whenever the outer end of the lever was not held down the clutch would fall down into place of its own weight, throwing the machinery into gear, and the wheels would start. Hear the outer end of the lever an iron eye-bolt was run through from below, and to the eye of the bolt was attached an iron rod about two feet long, with a hook on its lower end. This rod was used to operate the lever, and when pulled down, the hook at the lower end of the rod was fastened over a hook in a post by the side of the lever, holding the lever down and preventing the machinery from starting. The outer end of the lever when pulled down to stop the machinery was about five feet and nine inches above the floor where the men worked, and when up it was about seven feet and six inches above such *413floor. There were five of these pans in the same room and operated by the same gang of men. One of the gang, Costello, operated the levers, stopped and started the machinery, looked after the proper tempering of the clay and was a sort of foreman. The rest of the gang shoveled clay into the pans, and when it was properly mixed and tempered, shoveled it out again. The work of the men ivas done while the machinery was stopped, and if the machinery should start while the men were in the pans the most serious results to them were reasonably to be apprehended. While appellee and another workman, Abrahamson, were in one of the mixing pans in the line of their duty, shoveling out clay, the eye-bolt came out of the lever which controlled the wheels in that pan, allowing the lever to fly up and throw the machinery into gear, whereby the wheels Avere started and appellee Avas seriously injured. For his injuries so receiATed he obtained a judgment for $3,000, upon which the court, after overruling a motion for a new trial, entered judgment.

The ground of liability claimed is the alleged negligence of appellant in not properly caring for the appliance by Avhich the machinery Avas prevented from running. It is urged by appellant that the evidence did not establish the charge of negligence on its part. It is manifest that the safety of the men in the pans depended entirely upon such security as aauis afforded by the lever, Avith the rod and hook Avhich held it doAvn. So exercise of poAA-er was required, hut only a release of the leA'er from restraint, to cause the AArheels to start. Any failure to perform the function required of the lever would almost hertainly result disastrously to the workmen. This fact demanded of appellant such reasonable care on its part as Avas proportioned to the known danger that Avould arise from any defect or want of repair. The evidence showed that there was a thread on the end of the eye-bolt above the lever, and that the only method adopted for securing it was by nuts screAved doAvn from abo\Te on top of the lever. Originally there Avere two such nuts, one above the other, but the upper nut had been *414gone from its place for at least two weeks and probably much longer. The remaining nut had worked loose after the upper one was gone, and had been screwed down by Costello. The jar of the machinery tended to work the nut loose, and it was probably due to this cause that it worked off from the bolt and allowed it to come out of the lever. Appellant had a machinist, Carey, whose duty it was to look after the machinery and do the repairing. He was a witness for appellant, and testified that it was his duty to go around and see if anything was out of order, and if so to repair it. To the same effect was the testimony of Aspey, the superintendent. The lever had been in a defective and dangerous condition with respect to the fastening of the eye-bolt for such a length of time that in view of the great importance of having it secure, an inspection should have been made during that time by the machinist charged with that duty. It is clear that no inspection was made, or if made that it was not done with reasonable care. The condition of the nuts would necessarily be noticed by an inspector making a reasonably careful examination to seo if the appliance was out of repair. The evidence justified a finding that appellant was guilty of negligence, which caused the injury.

It is also claimed that appellee was not in the exercise of ordinary care. The bolt above the lever was at such a height as not to be noticeable by the shovelers engaged in their ordinary work about the pans without special attention being directed to it; and we think that appellee was not guilty of any want of ordinary care in failing to observe the condition of the nut oii the lever, or the absence of the look nut. -But it is said that he had actual notice of the condition of the fastenings, and this claim is based mainly upon alleged statements by him after the accident, as to its cause. He denied any such knowledge and gave a reasonable explanation of any statements admitted by him to have been made as to the cause of his injury, showing that they were made froto, information received after the accident. The jury were justified in concluding that he did not have actual notice.

*415It is further urged that the injury was due to the negligence of Costello, who, it is said, was a fellow-servant of appellee. The most that can be claimed in that respect is that Costello had some knowledge of increased danger on account of the condition of the lever, and did not communicate such knowledge to appellant. The loosening of the bolt did not arise from any act of Costello, nor was it his duty to inspect or repair it. The negligence of appellant in omitting to perform its duty of inspection and repair was the proximate cause of the injury. Appellant is responsible for its own negligence to appellee, who was without fault, and if it be conceded that some degree of negligence on the part of Costello concurred with appellant’s negligence to produce the injury, appellee would not be barred from a recovery against appellant for its negligence. Cooley on Torts, 560.

In the second count of the declaration the words plaintiff and defendant were transposed in some portions of the count, evidently by a clerical error, which so far as appears, was not discovered before the trial. Appellant pleaded to it and did not call attention to the mistake in any way, but asked the court to instruct the jury to disregard that count, and this the court refused to do. That count charged negligent management of the machinery, and if appellant could take advantage of a purely clerical error of that kind in that Avay, without notice of the point made, no harm was done it by the refusal to instruct as asked, for the reason that no recovery was sought for negligent management, and no eA’idence was directed to that point. Kb claim AAras made under that count, but the whole strife Avas on the charges of bad condition and want of repair alleged in the first count. The same question is involved in instructions giAren for appellee, which it is claimed would authorize a recovery under that count. It is clear that there Avas no recoArery on the charge in that count, and appellant suffered no injury by giAnng them. The jury, Avere fully and fairly instructed as to the laAV applicable to the issues presented to and tried before them. The criticisms upon instructions given for appellee are *416mainly verbal and do not require extended comment. All that was good law and applicable to the case in the very numerous instructions asked by appellant was given to the jury.

It is next objected that counsel for appellee during the closing argument made improper remarks to the jury concerning appellant as a wealthy corporation and appellee as a poor man. The fact of such an argument being addressed to a jury to procure a verdict or increased damages in any case, materially affects the weight to be given to the finding of the jury, and where the question is presented by the record, we should not hesitate to reverse a judgment, unless satisfied that the action of the jury was right upon the facts.

We think that no injustice was done by the jury in this case, and under the rule in Halloway v. Johnson, 129 Ill. 367, no question is presented by the record concerning the remarks. As in that case, so in this, when the remark was made appellant’s counsel at once called the attention of the court and objected to what had been said, and the court said “ Counsel must keep within the record.” There was no ruling by the court upon the propriety of the remark. The court should pass on the question, and under the authority above referred to, counsel should procure a ruling that may be reviewed. Before the argument was commenced the court limited the time for argument to one hour and thirty minutes on each side. The record also shows that counsel for appellee spoke five minutes longer than the time allotted to trim. Counsel for appellant claim that the court overstepped the bounds of authority and propriety in the limitation, and wronged appellant in allowing counsel for appellee to use five minutes more than they did. The record, however, shows neither objection nor exception to the action of the court in these respects. It is essential that an exception should be taken in order to raise the question suggested.

Finding no error in the record the judgment will be affirmed.

Judgment affirmed.