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Stewart v. Gannaway

JANUARY 2, 1964.

LABERTA STEWART, ADMINISTRATOR OF THE ESTATE OF WILLIAM J. STEWART, DECEASED, PLAINTIFF-APPELLANT,

v.

FRANCIS GANNAWAY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Coles County; the Hon. HARRY I. HANNAH, Judge, presiding. Affirmed.

CARROLL, PRESIDING JUSTICE.

Rehearing denied January 23, 1964.

This is an action wherein plaintiff seeks to recover damages for the alleged wrongful death of her intestate, William J. Stewart, who died of injuries sustained when his clothing became entangled in a grain elevator which he was operating on defendant's farm. Following dismissal of her third amended complaint, the plaintiff having elected to stand on her pleadings, the court entered judgment for defendant in bar of plaintiff's action. Plaintiff has appealed.

The sole question presented is whether the trial court was correct in determining that the facts alleged in the third amended complaint were insufficient to state a cause of action.

Prior to any consideration of the original complaint plaintiff moved for and was granted leave to file an amended complaint. Substantially the allegations of the amended complaint are that on November 13, 1961, and for a long time prior thereto, deceased was an employee of the defendant; that on said date deceased was operating a corn hiker on a farm operated by defendant; that he was working by himself hauling corn from the field and hiking it into a grain silo; that he was thus engaged from the early morning of said date until about 1:30 p.m.; that at about 1:30 p.m., while thus engaged, his clothes became entangled in the tumbling rod and knuckle bolts under the corn hiker; that as a result he was drawn into the hiker causing injuries from which he died; that plaintiff's cause of action is based upon and arises out of Sections 3 and 4, chap 70 Illinois Revised Statutes 1961; that said section 3 provides as follows:

"That all persons in this state who are or may hereafter own or run any threshing machine, corn sheller, or any other machine which is connected to a horse power by means of tumbling rods or line of shafting, shall cause each and every length or section of such tumbling rod (except the one next the horse power), together with the knuckles or joints and jacks thereof, to be safely boxed or secured while running."

and said section 4 reads as follows:

"Any person owning or running any machine, as mentioned in section 1 of this act, without complying with the requirements of the aforesaid section, shall be held liable to the person damaged for any damage which may be sustained by such person by reason of such neglect, . . ."

That the corn hiker which decedent was operating was owned by defendant, or in the alternative, was run by him; that it was connected to horse power by means of tumbling rods which with their knuckles, joints, and jacks were not boxed or secured while the hiker was running; that in failing to box or secure the tumbling rods, knuckles, joints, and jacks, defendant was guilty of violating the aforementioned statute of the State of Illinois, which violation proximately caused the injury and death of plaintiff's intestate.

Defendant filed a motion to dismiss the amended complaint, alleging as grounds that sections 3 and 4, chap 70 Ill Rev Statutes 1961 are not applicable to the facts alleged in the amended complaint for the reason that under such statutory provisions the decedent who was running the machine causing the injury would be equally responsible with the defendant for defects; that application of the statute would involve contributory negligence on the part of the decedent or the absence of negligence on the part of the defendant; that there are no facts alleged taking the occurrence out of the exception contained in the statute; and that the statute makes the estate of the decedent either separately or jointly liable for damages resulting from failure to comply with its provisions. Defendant's motion was allowed and plaintiff given leave to file an amended complaint.

Plaintiff then filed a second amended complaint which differs from the first only in that it alleged due care on the part of plaintiff and her intestate. Defendant moved to dismiss the second amended complaint, realleging the grounds specified in the motion to dismiss the first amended complaint, and alleging the additional grounds that on its face the second amended complaint shows contributory negligence and shows that decedent assumed the risk as a matter of law. Defendant's motion to dismiss the second amended complaint was allowed and thereupon plaintiff moved for and was granted leave to file a third amended complaint. The third amended complaint is substantially the same as the second, differing only in minor respects.

At the outset it may be observed that on this appeal we are concerned only with the sufficiency of the third amended complaint. Upon dismissal of the first and second amended complaints, plaintiff elected to plead over. These amended complaints were complete in themselves and did not refer to or adopt the prior pleading. In such case the amendment supersedes the prior pleading which is in effect abandoned or withdrawn. ILP Pleading — Sec 113, Precision Extrusions, Inc. v. Stewart, 36 Ill. App.2d 30, 183 N.E.2d 547; Robbins v. Millikin Nat. Bank of Decatur, 334 Ill. App. 190, 78 N.E.2d 819; Richardson v. Eichhorn, 18 Ill. App.2d 273, 151 N.E.2d 819.

Plaintiff's argument, as the same is summarized in her brief, is that this is not a negligence action, but one for injuries resulting from the violation of a statutory duty; that such violation creates liability; and that contributory negligence and assumption of risk are not to be considered.

The statute in question was enacted in 1869 at a time when the power necessary to operate such farm machinery as a threshing machine was operated by the pull of horses on sweeps which turned a screw or wheel to which was attached a tumbling rod running from the power to the machine. The horse power and tumbling rods referred to by the legislature in this particular statute have long since been supplanted by the tractor and other modern sources of mechanized power. However, the presence of this act in the statute indicates that at the time of its passage the lawmakers felt that the public should be protected against persons operating certain machines by horse power without boxing or securing the tumbling rods; that such purpose was intended is indicated by the fact that the law applies both to the person running the machine and the owner. The act is entitled "An Act to require owners of threshing and other machines to guard against accidents." It requires all persons who "own or run" any such machine to take certain precautionary steps with respect to the tumbling rods and the knuckles, joints and jacks thereof. From its title and wording it appears to be obvious that the purpose of the Act was to protect third persons from the danger created by the operation of particular types of unprotected farm machinery. The penalty for failure to comply with its requirements falls upon the person "owning or running" the machinery. Here the plaintiff proceeds upon the theory that the Act was designed to protect the person "running" the machine against the person "owning" the machine. No such conclusion is warranted. The complaint alleges decedent was running the farm machine in question. At the time of the occurrence the duty of complying with the safety requirements of the Act rested upon the decedent as well as the defendant because the former was the person running the machine. Where one bases the right to recover for negligent injury on the ...


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