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McGlynn v. Brodie, 31 id. 376; Baxter v. Roberts, 44 id. 187; Sullivan v. Bridge Co. 9 Bush, 81; Hayden v. Manufacturing Co. 29 Conn. 549; Quaid v. Cornwall, 13 Cush. 601.
BRANDT & HOFFMANN, for appellee.
Mr. JUSTICE MAGRUDER delivered the opinion of the court:
First-It is assigned as error, that the court refused to instruct the jury to find for the defendant, as it was requested in writing to do. We have often said, that, where there is evidence tending to establish a cause of action, it is not error to refuse a peremptory instruction to find for the defendant. (National Syrup Co. v. Carlson, 155 Ill. 210). After a careful examination, we are unable to say, that the evidence as given at the trial, with all the inferences which the jury could justifiably draw therefrom, was so insufficient to support a verdict for the plaintiff, that the court would have been authorized in directing a verdict for the defendant. (Drop Forge and Foundry Co. v. Van Dam, 149 Ill. 337).
Appellant was engaged in the reduction of iron ore and the manufacture of iron and steel at South Chicago, when the accident occurred which caused the injury to appellee. In the works of appellant at this time was a large pile of iron ore, several hundred feet long and about seventy-five feet high at the highest point. The ore on this pile was shot down with dynamite in the daytime by a gang of men. The ore, thus loosened and detached from the pile and lying on the floor at its bottom, was put into "buggies," or wheeled vehicles, and taken to the furnaces. Appellee was a servant in the employment of the appellant company, and, on the night of January 18, 1892, he was engaged in loading the ore into the "buggies." Upon the night in question, it was snowing hard. About ten o'clock on that night, while appellee was thus at work at a mass of ore which lay upon the floor, a large piece of ore, about eight feet long
and three feet thick, fell from the perpendicular part of the pile of ore, and crushed appellee's foot so as to permanently cripple him. The pile of ore, at the place where appellee was working, was perpendicular for a distance of from three to ten feet, and commenced to slope back at that distance from the floor. The ore was packed into such a solid mass, that it required the use of explosives to loosen it. After it was shot down by dynamite, much of it was in large lumps, which had to be broken up by picks before they could be handled. Appellee was not a member of the gang, whose special business it was to loosen the ore by dynamite in the day-time. He had nothing to do with that part of the work. His business was to put the ore, thus loosened from the pile and precipitated to the floor, into the "buggies," and, when they were too large, to break them with a pick. The men worked wherever the ore, shot down in the day-time, lay upon the floor; and appellee, who had been engaged in this kind of work for about eighteen days before the accident, was generally at work at a distance of from seven to ten feet from the edge of the pile of ore.
The evidence tends to establish the following circumstances: This night work was usually done by the light of torches. On the night in question, which was dark and stormy, appellee seemed to regard the light as insufficient, and went to look for the boss, and, finding him about one hundred steps away, asked him for more light, or for "another light." The boss or foreman replied: "You God damned son of a bitch, you go to work;" he then walked ahead of appellee to the place where the latter had been at work, and took up the pick and put it into the ore, striking the pile a number of times where it was straight or perpendicular, and, according to one of the witnesses, loosening it. He then threw down the pick and swore at appellee, and ordered him to work there. Appellee obeyed the order, and, in a very short time after the foreman left, the piece of ore already
referred to, weighing several tons, fell from the perpendicular side of the pile, and injured appellee as stated. There was some evidence tending to show that the bottom of the pile of ore was loose, and, if this was so, it would be apt to follow, that the lower part of the pile would not support the upper part.
Unquestionably, it was the duty of the appellant company, when, through its foreman, or superintendent, or boss, it ordered appellee to work near or alongside of the pile of ore, to see to it that the pile was safe. Appellee had nothing to do with the construction of the pile, or with the loosening of its material by means of explosives. He knew nothing about its condition. A foreman, in charge of workmen and clothed with the power of superintendence, is bound to take proper precautions for the safety of the men at work under him. Where he puts men at work alongside of such a pile of ore as has been herein described, which must be shattered by dynamite in order to loosen its component parts, it is his duty to observe carefully the condition of its material as to looseness or compactness, and all other features of its structure, so that he may be enabled to determine what should be done to prevent such injuries as those inflicted upon appellee. The jury might well have believed that, if he had exercised proper skill and foresight, the accident would not have happened. Whether or not appellee was in the exercise of ordinary care was a question of fact for the jury. It was no part of his duty to study the conditions affecting the stability of the ore at the sides of the pile, or to do anything except to work as well as he could under the directions of the foreman or boss. (Hennessey v. City of Boston, 161 Mass. 502).
The fact, that the foreman struck the pile a number of times with a pick, may have had the effect of setting in motion the loose portions of the ore and causing the fall of the piece which produced the injury. Whether this was so or not, was, at any rate, a fair matter of
inference for the jury. The master is liable, where the servant is injured by a temporary peril to which he is exposed by the positive negligent act of the employer without any negligence on the part of the servant. (Fairbank v. Haentzsche, 73 Ill. 236). "Where the personal negligence of the master has directly caused the injury, there the master's liability to the servant is the same as it would be to one not a servant." (Wharton on Law of Neg. sec. 205).
Where a corporation authorizes one of its employees to have the control over a particular class of workmen in any branch of its business, such employee is, quoad hoc, the direct representative of the company. The commands, which he gives within the scope of his authority, are the commands of the company itself, and, if such commands are not unreasonable, those under his charge are bound to obey at the peril of losing their situations. Hence the company will be held responsible for the consequences. (Chicago and Alton Railroad Co. v. May, 108 Ill. 288; Fanter v. Clark, 15 Ill. App. 470). Here, if the act of the foreman or boss, in picking at the pile, had the effect of weakening the support of the upper part of it, his conduct must be regarded as the conduct of appellant.
The duty of the master to use reasonable diligence in seeing that the place, where the work of his servant is to be performed, is safe for that purpose, extends not only to such risks as are known to him, but to such as he ought to know in the exercise of due diligence. (Cook v. St. P., M. & M. Ry. Co. 34 Minn. 45; Consolidated Coal Co. v. Haenni, 146 Ill. 614). In the case at bar, appellant was bound to keep the edge of the ore pile in such condition, that it would not fall upon those whom the foreman ordered to work at its base.
The rule, that the master must furnish to his servant a reasonably safe place to work in, and must use proper diligence to keep such place in a reasonably safe condition, was recently applied by this court to a case, where
the plaintiff was injured while working for the defendant near a row of barrels, which were not kept in such condition that they would not fall upon the plaintiff while working near the same. (Libby v. Scherman, 146 Ill. 540).
Second-It is claimed that the court below erred in not giving the instruction asked by appellant requiring the jury to find for the defendant upon the first count. That count alleges that the defendant promised to furnish an additional light, and did not perform its promise. There was no evidence of any such promise, and the jury were so told in the instruction as modified and given. Whether the instruction as thus modified and given was proper or not, it gave to the defendant whatever benefit was to be derived from calling the attention of the jury to the absence of all testimony upon the subject of such a promise. As the defendant thus secured substantially the same advantage from the instruction given as it would have gained from the instruction asked, it is difficult to see how it could have been injured by the refusal of the latter instruction.
But it is claimed by appellant, that, after that part of the count relating to the promise in question was withdrawn from the consideration of the jury by the giving of the modified instruction, what remained of the count did not state a legal cause of action. Even if this were so, the second and third counts each disclose a legal cause of action, and both are sufficient to sustain the judgment. The verdict is an entire one, not limited to the first count. This being so, section 57 of the Practice act is applicable, which provides, that "whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts in the declaration be sufficient to sustain the verdict." (2 Starr & Cur. Stat. p. 1822).
Counsel insist that, by the modified instruction, the jury were permitted to regard the remainder of the first