Mr. Chief Justice Bailey
delivered the opinion of the Court:
The first proposition submitted by counsel for the defendant is, that the declaration does not state a cause of action, and that its motion in arrest of judgment should have been sustained on that ground. The contention is, that the defendant, being a corporation, could act only by its agents and servants, and that as the maxim respondeat superior has no application to injuries resulting from the negligent acts of the fellow servants of the plaintiff, the declaration must show affirmatively, by express averments, that the injury complained of was caused by the negligent acts of agents or servants of the defendant who were not fellow servants of the plaintiff. This, in our opinion, was not necessary. The allegations of the declaration, so far as this point is concerned, are in the form which has been universally recognized by the rules of common law pleading as sufficient to charge a corporation with negligence. They are that the defendant, that is, the corporation itself, negligently did the acts complained of, allegations which exclude, ex vi termini, the theory that they were performed by parties for whose conduct the defendant was not responsible.
Counsel refer in support of their contention to the recent case of Joliet Steel Co. v. Shields, 184 Ill. 209. Upon examination of that ease it will be found that the negligent acts complained of were there affirmatively alleged to have been done by the defendant’s servants, without showing that they were done by the class of servants whose acts would charge the.principal with responsibility. It was.held that such allegations were not sufficient to show a right to recover against the principal. The distinction between that case and this is clear. It should also be noticed that in that case, the ordi-. nary presumptions which obtain after verdict, and by operation of which a defective statement of a good cause of action is said to be cured, were excluded by an instruction given by the court to the jury. In this case no such instruction was given, so that even if the declaration is one which might have been held to be defective on demurrer, the defect is one which is cured by verdict.
Counsel on both sides have filed in this court the same printed briefs and arguments prepared and used by them in the Appellate Court, and in which much space is devoted to the discussion of questions which are not open for consideration here. Among other things, it is urged on behalf of the defendant that the evidence does not accord with the declaration, and that it does not sustain the verdict and judgment. These propositions present mere questions of fact, or at most mixed questions of law and fact, as to which the judgment of the Appellate Court is conclusive.
The point made that the evidence varies from the declaration, as we understand it, does not assume that there was no evidence tending to prove the allegations of the declaration as made, but that the negligence proved by the preponderance of the evidence differs in its character and circumstances from that alleged. The proposition stated in this form manifestly presents a mere question of fact which this court can not review. To present the question of variance as one of law, the evidence should have been objected to at the time it was offered on that ground, or when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way, the question should have been so raised that the trial judge could have passed upon it, and to properly raise the question in any of these modes, the variance should have been distinctly pointed out, so as to enable the trial judge to pass upon it understandingly and to enable the plaintiff, if such course should become necessary, to obviate the objection by an amendment to the declaration. In none of these ways was the objection raised. It is true that one of the grounds assigned by the defendant in its motion for a new trial was in these words: “There is a variance between the declaration and the proof,” but even there the variance was not pointed out. This was not sufficient. It was not incumbent upon the trial judge, upon such challenge, to grope through the record in an endeavor to discover a variance, but it was the duty of the defendant’s counsel, if one existed, to point it out and call attention to it specifically, and having failed so to do, he must be deemed to have waived the objection.
The defendant called Morgenweck, its foreman, and Haddlesey, its time-keeper and paymaster, as witnesses, and sought to prove by them experiments with piles of barrels similar to the one from which the barrels fell upon the plaintiff, and from which a barrel located relatively the same as the empty barrel in question, was entirely taken out without causing the pile to fall. These witnesses were also asked whether an empty barrel located as was the one in question, could be taken out of the pile without causing it to fall or give way, or whether knocking out the head of the barrel thus situated and removing its contents would affect the stability of the pile. This evidence was excluded by the court, and an exception to such ruling was preserved by the defendant.
We are clearly of the opinion that experiments of that character, and their results, and inferences drawn from them by witnesses, were mere collateral matters which could have no legitimate bearing upon the issues before the jury. Besides the impossibility of showing that the conditions under which these experiments were made were in all respects identical with those existing at the time the plaintiff was injured, and the multitude of collateral issues which an attempt to prove identity of conditions would raise, the fact that one experiment had been conducted to a successful issue would have little if any tendency to show that in another case precisely like it, an accident might not happen. A thousand men may pass an impending wall with safety, or at least without injury, but the next man who attempts to pass it may be crushed by its fall. The question is not whether a pile of barrels might not stand with an empty barrel situated as was the one in this case, but whether leaving such barrel in the condition shown rendered the support of the barrels above it less secure, and that to such a degree as to constitute negligence, and whether the plaintiff’s injury occurred as the result of such negligence.
So far as these witnesses were sought to be examined as experts, it does not appear that they had any special knowledge or skill on the subject, unless it was that gained by means of the experiments which counsel attempted but was not permitted to prove. Nothing therefore is proved which tends to show that they were any better qualified to express an opinion on the subject than were any of the jurors before whom the cause was being tried. And even admitting that the subject was one for expert testimony—a proposition which may well be doubted—their answers to questions put to them calling for their opinions, would obviously have been merely a means of getting before the jury by indirection, the results of the experiments, if not the experiments themselves.
Numerous errors are assigned upon the rulings of the court in the instructions to the jury, only a portion of which, however, seem to us to be of sufficient importance to require extended discussion.
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Mr. Chief Justice Bailey
delivered the opinion of the Court:
The first proposition submitted by counsel for the defendant is, that the declaration does not state a cause of action, and that its motion in arrest of judgment should have been sustained on that ground. The contention is, that the defendant, being a corporation, could act only by its agents and servants, and that as the maxim respondeat superior has no application to injuries resulting from the negligent acts of the fellow servants of the plaintiff, the declaration must show affirmatively, by express averments, that the injury complained of was caused by the negligent acts of agents or servants of the defendant who were not fellow servants of the plaintiff. This, in our opinion, was not necessary. The allegations of the declaration, so far as this point is concerned, are in the form which has been universally recognized by the rules of common law pleading as sufficient to charge a corporation with negligence. They are that the defendant, that is, the corporation itself, negligently did the acts complained of, allegations which exclude, ex vi termini, the theory that they were performed by parties for whose conduct the defendant was not responsible.
Counsel refer in support of their contention to the recent case of Joliet Steel Co. v. Shields, 184 Ill. 209. Upon examination of that ease it will be found that the negligent acts complained of were there affirmatively alleged to have been done by the defendant’s servants, without showing that they were done by the class of servants whose acts would charge the.principal with responsibility. It was.held that such allegations were not sufficient to show a right to recover against the principal. The distinction between that case and this is clear. It should also be noticed that in that case, the ordi-. nary presumptions which obtain after verdict, and by operation of which a defective statement of a good cause of action is said to be cured, were excluded by an instruction given by the court to the jury. In this case no such instruction was given, so that even if the declaration is one which might have been held to be defective on demurrer, the defect is one which is cured by verdict.
Counsel on both sides have filed in this court the same printed briefs and arguments prepared and used by them in the Appellate Court, and in which much space is devoted to the discussion of questions which are not open for consideration here. Among other things, it is urged on behalf of the defendant that the evidence does not accord with the declaration, and that it does not sustain the verdict and judgment. These propositions present mere questions of fact, or at most mixed questions of law and fact, as to which the judgment of the Appellate Court is conclusive.
The point made that the evidence varies from the declaration, as we understand it, does not assume that there was no evidence tending to prove the allegations of the declaration as made, but that the negligence proved by the preponderance of the evidence differs in its character and circumstances from that alleged. The proposition stated in this form manifestly presents a mere question of fact which this court can not review. To present the question of variance as one of law, the evidence should have been objected to at the time it was offered on that ground, or when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way, the question should have been so raised that the trial judge could have passed upon it, and to properly raise the question in any of these modes, the variance should have been distinctly pointed out, so as to enable the trial judge to pass upon it understandingly and to enable the plaintiff, if such course should become necessary, to obviate the objection by an amendment to the declaration. In none of these ways was the objection raised. It is true that one of the grounds assigned by the defendant in its motion for a new trial was in these words: “There is a variance between the declaration and the proof,” but even there the variance was not pointed out. This was not sufficient. It was not incumbent upon the trial judge, upon such challenge, to grope through the record in an endeavor to discover a variance, but it was the duty of the defendant’s counsel, if one existed, to point it out and call attention to it specifically, and having failed so to do, he must be deemed to have waived the objection.
The defendant called Morgenweck, its foreman, and Haddlesey, its time-keeper and paymaster, as witnesses, and sought to prove by them experiments with piles of barrels similar to the one from which the barrels fell upon the plaintiff, and from which a barrel located relatively the same as the empty barrel in question, was entirely taken out without causing the pile to fall. These witnesses were also asked whether an empty barrel located as was the one in question, could be taken out of the pile without causing it to fall or give way, or whether knocking out the head of the barrel thus situated and removing its contents would affect the stability of the pile. This evidence was excluded by the court, and an exception to such ruling was preserved by the defendant.
We are clearly of the opinion that experiments of that character, and their results, and inferences drawn from them by witnesses, were mere collateral matters which could have no legitimate bearing upon the issues before the jury. Besides the impossibility of showing that the conditions under which these experiments were made were in all respects identical with those existing at the time the plaintiff was injured, and the multitude of collateral issues which an attempt to prove identity of conditions would raise, the fact that one experiment had been conducted to a successful issue would have little if any tendency to show that in another case precisely like it, an accident might not happen. A thousand men may pass an impending wall with safety, or at least without injury, but the next man who attempts to pass it may be crushed by its fall. The question is not whether a pile of barrels might not stand with an empty barrel situated as was the one in this case, but whether leaving such barrel in the condition shown rendered the support of the barrels above it less secure, and that to such a degree as to constitute negligence, and whether the plaintiff’s injury occurred as the result of such negligence.
So far as these witnesses were sought to be examined as experts, it does not appear that they had any special knowledge or skill on the subject, unless it was that gained by means of the experiments which counsel attempted but was not permitted to prove. Nothing therefore is proved which tends to show that they were any better qualified to express an opinion on the subject than were any of the jurors before whom the cause was being tried. And even admitting that the subject was one for expert testimony—a proposition which may well be doubted—their answers to questions put to them calling for their opinions, would obviously have been merely a means of getting before the jury by indirection, the results of the experiments, if not the experiments themselves.
Numerous errors are assigned upon the rulings of the court in the instructions to the jury, only a portion of which, however, seem to us to be of sufficient importance to require extended discussion. The first instruction given at the instance of the plaintiff held, that if Morgenweek was in the defendant’s employ, and authorized to take charge and control of a gang of men of whom the plaintiff was one in rolling and piling barrels of meat, and to govern and direct their movements in the branch of the defendant’s business in which they were engaged, then, while acting in pursuance of and within the scope of such authority, he was the direct representative of the defendant, and his acts and directions, within the scope of his authority, were the acts and directions of the defendant; but if he was not so authorized, his acts and directions were not those of the defendant, and his negligence, if any, was not the negligence of the defendant.
This instruction does not attempt to lay down the law as to fellow servants, as counsel assume, but merely to state the rule governing the responsibility of a master for the acts and directions of a vice principal. It holds that one who has charge and control of other servants, and has authority to govern and direct their movements in the branch of the principal’s business in which they are engaged, is, while acting in pursuance of and within the scope of such authority, a vice principal, so as to make his acts and directions the acts and directions of the principal; but that if he has no such authority, his acts,, directions and negligences are not those of the principal. It must be admitted that the last part of the instruction is scarcely accurate as a general proposition, since many servants who have no control over other servants may so represent their principal as to render the latter responsible for their acts and negligences. Such would be the case with all servants not standing in the relation of fellow servants to the plaintiff, but in this respect the instruction is manifestly more favorable to the defendant than the law warrants, and is therefore no ground for just complaint on its part. In other respects the instruction seems to us to state the law correctly. It may be that some of the acts of Morgenweek, as shown by the evidence, were not within the scope of his authority over the other servants of the defendant, or that as to such acts he even assumed the position of a fellow servant with the complainant, but there is nothing in the instruction from which the jury could have been led to suppose that as to those acts, he was to be regarded as a vice principal, but rather the contrary.
Complaint is made of the plaintiff’s fourth instruction, which was as follows:
“It was the duty of the defendant in this case to have used ordinary care and prudence in furnishing to the plaintiff, at the time of the accident, a reasonably safe place in which to work, and to have used all reasonable precautions to maintain' and keep such place in a reasonably safe condition.”
It is not claimed that this instruction does not state a correct proposition of law, but only that it is applicable to no issue in the ease. In this we think the counsel are mistaken. The declaration avers that the plaintiff, at the time he was injured, was working for the defendant near the row of barrels in question, and that it was the defendant’s duty to keep and maintain such row of barrels in such condition that they would not spread, tilt or fall upon the plaintiff while working near the same, yet the defendant, in disregard of this duty, carelessly and negligently kept and maintained the row of barrels defectively piled, and when so piled, drove in the head of one of the barrels and removed the contents thereof, so that the barrel was greatly weakened and rendered unable to support the weight of the barrels piled above it, by means whereof the barrels spread, tilted and fell upon the plaintiff and injured him. The duty which is here alleged is the common law duty incumbent upon every employer, and which he can not delegate to others in such manner as to relieve himself from the consequences of its non-performance, to furnish to his employe a reasonably safe place in which to work, and to use proper diligence to keep such place in a reasonably safe condition, and the negligence charged is merely a breach of that duty. The failure of the defendant to keep the place assigned to the plaintiff for the performance of his work in a safe condition is of the very gist of the action, and we think therefore that the instruction above quoted was directly applicable to the main issue submitted by the pleadings.
The third instruction asked by the defendant was modified by the court by adding thereto the words in italics, and was given to the jury thus modified. That instruction was as follows:
“The jury are instructed that, where an employment is attended with danger, a servant engaging in it, assumes the hazard of ordinary perils which are incident to it, and if he receives an injury from an accident which is an ordinary peril of the service undertaken by him, he can not recover damages for the injury; but this applies only to perils or risks ordinarily incident to the service, and not to those which are extraordinary and which did not exist at the time the servant engaged in the master’s business, and which the servant did not subsequently assume.”
Several other instructions asked by the defendant were modified in substantially the same way. We think there Was no error in the modification. The instruction, as asked, though announcing a proposition of law which is abstractly correct, yet, when applied to the facts of this case, was likely to mislead the jury. The material question in the case was not, whether the plaintiff had assumed the risk of other perils incident to the service in which he was engaged, but whether he had assumed the risk of the particular peril which caused his injury, viz., that arising from leaving an empty barrel of the .character of the one in question, with the head knocked out, near the bottom of the pile, and thus weakening the pile and causing the barrels above it to fall. Other pierils incident to the service were wholly immaterial. The instruction as asked then had no application to the case before the jury, except upon the assumption that the particular peril in question was one of the ordinary perils incident to the service, and standing alone, it would have been likely to convey that assumption to the jury. To render it applicable to the case, so as not to be misleading, it should have submitted to the jury the question whether that peril was, in point of fact, one of the ordinary perils of the service, and then laid down the rule applicable in case that question should be decided in the. affirmative, or it should have been modified, as was done, so as to lay down the rule which should govern in case of its negative decision.
As to the remaining criticisms upon the rulings of the court in the instructions to the jury, all we need say is, that we have examined them all with care, and fail to find that in any of them any substantial error is pointed out. So far as we can see, no useful purpose would be subserved by prolonging this opinion in discussing them.
It is urged that the court erred in rendering judgment for $5000, after finding that the damages awarded by the jury were excessive, and requiring the plaintiff to remit $2500 from the amount awarded, under penalty of setting the verdict aside and granting a new trial. The practice of requiring the plaintiff to remit a portion of his damages and rendering judgment for the residue, where there is no ground for a new trial except that the damages awarded by the jury are excessive, is so well established in this State that it can not now be successfully called in question.
We find no material error in the record, and the judgment of the Appellate Court will accordingly be affirmed.
Judgment affirmed.