Beckstein v. Gall ( 1897 )

Mr. Justice Gary

delivered the opinion of the Court.

When this case was here with the names of the parties reversed—66 Ill. App. 478—we said that whether there was any other ground for refusing the appellee a judgment on the verdict in his favor, was a question not before us. How it is.

On the evidence it appears that the appellee and a foreman under whom the appellee worked for the appellant, were unloading barrels of salt from a wagon, to which work the foreman had called the appellee. The barrels were open at one end, and the mode of unloading was that each man took hold of the barrel, and lifted it from the wagon to the ground. Probably by the haste of the foreman the appellee failed to get a firm hold on his side of the barrel, and it fell, breaking the leg of the appellee.

We did say on the other appeal—looking only to the language of the declaration and the special findings—that “ it is not the law that if a master wrongfully puts his servant in danger, to co-operate with another servant, that the carelessness of the latter, co-operating with the danger, discharges the master from responsibility,” and we believe still what we then said; but on the evidence there is no ground to say that the appellee ivas put in danger, as words are used in common speech. Danger there is always—everywhere.

But the work to which the foreman called the appellee was work which jointly they could easily do, but in which, as the event seems to prove, more care by each for the safety of both was necessary than the foreman exercised.

For want of care by the foreman, the appellant is not responsible to the appellee—a fellow-servant.

The appellant asked an instruction that the verdict must be for the defendant; it was refused, and the appellant excepted.

He was entitled to that instruction, and for the error in refusing it the judgment is reversed without remanding.