Tijan v. Illinois Steel Co. , 250 Ill. 554 ( 1911 )

Mr. Justice Farmer

delivered the opinion of the court:

Two grounds are urged for reversal of the judgment: First, that the proof fails to establish any liability on the part of plaintiff in error and the circuit court should have directed a verdict in its favor; and second, the circuit court erred in the admission of evidence.

The car which caused the injury was moved east and west by a controller in the shanty, which had the appearance of a metallic box. The power was electricity and was applied and disconnected by means of a switch in the shanty. When the lever was in the center of the controller the car would not move, even with the electric current applied. When it was desired to move the car west the lever in the controller was moved west, and when it was desired to move the car east the lever was moved east. When the switch was thrown out the car could not be moved by the controller. The switch was located on the east side of the shanty, about four and one-half feet from the floor, and was within reach of anyone who might be in the shanty. It extended six or eight inches out from the wall and there was no protection of any kind around it. When the controller was off the neutral position, opening or closing the switch would stop or start the car. The shanty was a small room about seven feet square, and in it there were a stove, and a bench about six feet in length, on which the operator could rest during the period he was relieved. The evidence shows that this shanty was frequented by other employees for the purpose of lounging. The electrical appliances were operated, on the night the injury occurred, by Leslie Fewtrell and William Erik, boys of the ages of seventeen and sixteen years, respectively. They went on duty at six o’clock P. M. and worked until six o’clock A. M. They worked alternately, thirty minutes at a time. Shortly after one o’clock, while Fewtrell was in charge of the appliances, the machinery was closed down, and he moved the controller to the neutral position and opened the switch by pulling the handle out from the wall a few inches. At i :3o o’clock, while the mill was still shut down, Erik took charge of the shanty and appliances therein and Fewtrell remained in the shanty during his rest period. Two other employees of plaintiff in error were also in the shanty at the time and' occupied the bench used for resting upon. One of them moved so as to give Fewtrell room to sit near the stove, but it becoming too warm for him there he got up, moved the lever of the controller to the west as far as it would go, and sat on the controller. He had a stick in his hand at the time, and seeing the switch out of the forks, touched the handle with the stick and closed the switch. The controller having previously been moved to the west, the car shot forward on the track and struck defendant in error, very seriously injuring him.

We are of opinion that under the evidence the plaintiff -in error was responsible for the negligent act of Fewtrell. This is stoutly denied on the ground that said negligent act was performed by Fewtrell during the thirty minutes of his rest period and while it was the duty of Erik to operate the appliances in the shanty. It is true, the lever of the controller was moved and the switch thrown in by Fewtrell during his period of rest, but it was during the hours of his employment. He was employed to work from six o’clock P. M. to six o’clock A. M., was paid for that time and during that time he was the employee of plaintiff in error. (Heldmaier v. Cobbs, 195 Ill. 172; Bailey on Personal Injuries, secs. 3208-3214.) The mere fact that every thirty minutes Fewtrell was granted a period of rest did not terminate his employment nor relieve the company from liability for acts performed by him, if the company would be liable for the acts if they were performed during the thirty minutes he was working. The act itself was within the scope of Fewtrell’s duties. In fact, it was one of the duties which he was employed to perform, except that it was performed at‘the wrong time. Whether the switch was closed accidentally or intentionally, it was done by the servant of the plaintiff in error and was within the scope of his duties, and being performed during the period of his employment the master is.liable.

One count in the declaration charged plaintiff in error with negligence in failing to make, promulgate and enforce rules warning and prohibiting its servants and persons on its premises from moving, starting or interfering with electrical appliances when the machinery was not in motion, and another count charged negligence in failing to make, post and enforce rules preventing the assembling of servants in places where they were not employed. It does not appear that there were any such rules or warnings promulgated or posted, and for the purpose of showing the necessity for them, defendant in error was permitted, over the objection of plaintiff in error, to prove the extent of the plant of plaintiff in error and the number of men employed by it. Plaintiff in error’s plant is composed of several different departments or mills. The injury to defendant in error occurred in one of its billet mills, and we do not think it was material to prove more than the situation in that mill, the character of the machinery and the number of men employed therein. We do not think it was competent to prove the number and character of other mills than the one in which the injury occurred or the entire number of men employed in the whole plant. The objection made to the proof when it was offered was that it was immaterial. While we think the evidence was not strictly competent, we are of opinion it was not so prejudicial as to require a reversal of the judgment.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.