Cook County IL Archives Court.....Pioneer, Cooperage Company 1900
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Source: Reports Of Cases At Law And In Chancery, 1900
Written: 1900

The Pioneer Cooperage Company

v.

Anton Romanowicz.

Opinion filed June 21, 1900.


1. Evidence—what sufficient to connect former condition of machine with 
condition at the time of injury. Testimony that the witness had worked with 
the machine which caused plaintiff's injury, for about half a year prior to 
the accident; that he saw the machine working; the day of the accident, and 
that it was working' in the same way it was on the last day he had worked with 
it, is sufficient to connect the former condition of the machine with its 
condition at the time of the injury.

2. Same—effect of absence of positive evidence that machine was defective. 
Evidence that the machine which caused the plaintiff's injury had been in a 
defective condition up to a day or so before the accident warrants the jury in 
finding that such condition existed at the time of the injury, in the absence 
of any proof of repairs or of any fact or circumstance from which it might be 
presumed that the defect had been remedied.

3. Release—when effect of release of damages is for the jury. The effect of a 
release of damages is a question of fact for the jury, under proper 
instructions, where it is shown that neither the plaintiff nor his friend who 
witnessed the signatures could read the release, and that the defendant's 
foreman represented the release to be a paper authorizing the defendant to 
furnish medical attendance to the plaintiff.

4. Same—when release, of damages may be regarded as inoperative. A release of 
damages may be regarded as not fairly obtained, and hence as inoperative, 
where the party executing the release is unable to read it and it is not read 
to him, but is represented to him, by the party claiming the benefit, as being 
for another purpose.
Pioneer Cooperage Co. v. Romanowicz, 85 Ill. App. 407, affirmed.

Appeal from the Branch Appellate Court for the First District;—heard in that 
court on appeal from the Circuit Court of Cook county; the Hon. Richard S. 
Tuthill, Judge, presiding.

O. W. Dynes, for appellant.

George W. Shinn, for appellee.

Mr. Justice Phillips delivered the opinion of the court:

Appellee recovered a judgment for $3000 against appellant for injuries to his 
left hand, received while employed in the barrel works of the appellant, this 
appeal being prosecuted from an affirmance of that judgment by the Appellate 
Court.

Plaintiff's declaration consisted of two counts, charging that a barrel press 
on which he had been at work only a day and a half before the injury, was out 
of repair, so that it would not respond to a foot lever by which it was 
directed. The evidence tended to prove that when other employees of the 
appellant had worked on the machine at different times before the accident, 
extending over a period of eight years before up to two days before the 
accident, it was out of repair; that after it was attempted to stop the 
descending press it would still continue to move up and down; that the foreman 
of the company had been notified by these other witnesses at different times 
during this period, and that repairs had been made upon it, but that the 
machine worked the same after the attempted repairs as before. It appears that 
at the time plaintiff was injured he was attempting to remove a barrel from 
the machine, and in endeavoring to do so put his hand on the top of the 
barrel, when if his hand had been on the side of the barrel the descending 
press would not have caught it. It appears further that the machine, at the 
time of the injury, was capable of turning out from five to six hundred 
barrels a day, and that plaintiff had turned out that many the day before he 
was hurt. Seventeen days after the accident occurred the plaintiff signed a 
paper in the presence of the foreman of the company and one Frank Domanske, 
who was a friend of the plaintiff, reciting that the injury was received 
through his own carelessness and through no fault of the defendant, and "in 
consideration that the company pay my doctor's bill I relinquish all further 
claim upon said company."

Appellant contends that the court erred in admitting, over its objection, 
evidence of the defective condition of the machine for a number of years prior 
to the accident. This was admitted by the court on a promise by plaintiff to 
connect it with its condition at the time of the accident, and, presumably, to 
show notice to the defendant of its condition. As before stated, the evideuce 
showed that on former occasions of notice to the appellant of the machine 
being out of repair it caused the same to be repaired, but that the effect of 
these repairs was not to correct this failure of the machine to stop moving in 
response to the lever or treadle. One Jakubowski testified to the effect that 
he had worked on the machine about half a year prior to the accident, and that 
during the time he worked on the machine its condition was the same as on the 
day the plaintiff was hurt. He was thereupon asked by the court: "How do you 
know better than I do, who never saw it, what was the condition of the machine 
when Romanowicz worked on it?" He answered:

"There were other machines there and the other machines worked all right. At 
the time of the accident I was about ten feet away from Romanowicz, working on 
another machine of the same construction, but smaller. I saw the machine 
working when Romanowicz was there. The working of the machine the day I saw 
Romanowicz working on it was the same as the last day I worked on it." This 
evidence was sufficient to connect the former condition of the machine with 
its condition at the time of the injury, and there was no error committed by 
the trial court in refusing to strike out the evidence of other witnesses on 
that ground. One other witness, Smismiskon, testified that the machine was 
defective, for the reason above described, three or four days to a week before 
the accident. At that time he was working at the machine. It is true that 
Jakubowski, on cross-examination, stated that he did not see the machine fall 
at any time that the plaintiff was working on it, and counsel for appellant 
then asked him: "Then all you are testifying about in this case is about what 
the machine did when you worked upon it six months before; is not that so?" 
His answer was, "Yes." Thereupon counsel for appellant moved the court to 
exclude this testimony. This the court denied also on a promise to connect.

While there is no positive evidence, therefore, as to whether the machine was 
defective on the day the injury was sustained, and while the plaintiff does 
not know how or why he was injured, nor where he had his hand when the 
accident occurred, nor whether his foot was on the pedal or not, still we 
cannot agree with the appellant's contention that there was no evidence on 
which the jury could find a verdict that the machine was out of repair at the 
time of the accident. The proof was ample as to its defective condition up to 
a day or so before the accident, and with no proof offered by the defendant 
that it had repaired the machine, or of any fact or circumstance by which it 
might be presumed that the defect had been remedied in some way, the jury were 
warranted in their finding. The allegation in the declaration was that the 
plaintiff had no notice of the defect, and this is proved by the evidence, the 
evidence being that he was called away from another portion of the factory by 
the foreman and set to work upon tbe machine in question a day and a half 
before the accident, with not a word of instruction, or notice as to any 
defect in the mechanism or working of the machine, and was left to find out 
for himself how it should be operated.

Defendant offered no evidence whatever except the alleged release, and the 
trial court was fully warranted in refusing the instruction to find for the 
defendant. The proof as to the manner of executing the alleged release was to 
the effect that neither the plaintiff nor his friend who was with him and who 
witnessed the signatures could read English; that the foreman represented to 
them that it was only an agreement or authority for the defendant to furnish a 
physician, of the attendance of whom the plaintiff was in urgent need. The 
effect of this release, under the circumstances under which it was executed, 
was a question of fact to be determined by the jury under proper instructions. 
Pawnee Coal Co. v. Royce, 184 Ill. 402, and authorities there cited.

Complaint is made of the refusal of certain instructions requested to be given 
on behalf of appellant with reference to the release, bnt it is sufficient to 
say that a careful reading of them will show they all omitted some vital 
element under the rule laid down in the Royce case, supra, and authorities 
there referred to, and were properly refused.

An instruction was requested to be given by which the jury were told that any 
deception practiced by Domanske, as the agent of the plaintiff, in misleading 
him or failing to properly explain the contents of the release, is the 
negligence of the plaintiff himself and affords no ground for impeaching its 
validity. The proof was that Domanske could not read the receipt; that it was 
read to both of them by the agent of the defendant, and they both testify that 
it was an instrument to procure the attendance of a physician and for that 
reason was executed by the plaintiff. The instruction had no evidence to 
support it, and there was no error in its refusal.

Appellant complains of the giving of the two following instructions for the 
plaintiff:

"The jury are instructed that if you believe, from the evidence, that the 
release in this case was procured from the plaintiff by the defendant, or by 
any one for it, and that at the time the plaintiff signed the said paper he 
believed from what was told him before signing it that it was for the purpose 
of securing the services of a physician, and that the parties who induced him 
to sign said paper led the plaintiff to believe that he was only signing a 
paper for the purpose of securing the services of a physician, and that the 
plaintiff did so believe, you are instructed that a release so procured would 
not be binding upon the plaintiff and should not be considered by you in 
arriving at your verdict."

"You are instructed that it is for the jury to determine, from all the 
evidence and circumstances in the case, whether the plaintiff understood the 
contents of the release at the time he signed it, and whether he intended to 
release and understood that he was releasing his claim and right of action 
against the defendant in consideration of the defendant furnishing him with a 
doctor; and unless you so find you are instructed that it would not release 
the defendant from liability, if you further find, from the evidence, that the 
defendant is liable, and such release should be disregarded by you in arriving 
at your verdict."

These two instructions, taken together, are supported by the evidence, and 
while they might have been given in better form are within the rule announced 
in National Syrup Co. v. Carlson, 47 Ill. App. 178, which case is reported in 
this court in 155 Ill. 210. In that case the Appellate Court said that a 
release may be regarded as not fairly obtained, and hence as inoperative, 
where it is taken from one unable to read the language and is not read over to 
him, and he is made to believe that it is a paper for some other purpose.

Complaint is made that the court permitted a witness to state, over objection, 
that the plaintiff "did not understand the work or the machine—that is why he 
was hurt." There was no allegation in the declaration as to the plaintiff 
being unfamiliar with the work, or that he was improperly instructed, but it 
is clear the court permitted the answer to stand as going more to the lack of 
knowledge on his part of the defective condition of the machine than of how 
his work should have been performed.

We find no sufficient ground for a reversal of the judgment, and the judgment 
of the Appellate Court for the First District is affirmed. 

Judgment affirmed.

Additional Comments:
Reports of Cases at Law and in Chancery Argued and Determined in the Supreme 
Court of Illinois, Volume 186, Containing Cases in which Opinions were filed 
in June and October, 1900, and Cases in which Rehearings were denied at the 
October term, 1900. Isaac Newton Phillips, Reporter. Springfield: 1900.

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