Fraser & Chalmers v. Collier , 1897 Ill. App. LEXIS 733 ( 1898 )

Mr. Justice Freeman,

after making the aboye statement, delivered the opinion of the Court.

Appellant seeks to reverse this judgment, upon the ground, first, that appellee assumed the risk; and, second, that the judgment is excessive.

The evidence does not warrant a reversal upon the ground that appellee voluntarily incurred a known danger. He was employed as an ordinary laborer about the yards. There is no evidence that he ever had any experience which would enable him to form any opinion as to the weight of the tank to be lifted, the resistance it would encounter by reason of being sunk in the soil and from the pressure of the earth caved in about it, or whether the beam was strong enough to support the weight. The attention of the superintendent was called to the beam in the presence of appellee, not by a suggestion that it was dangerous, but by an offer on the part of the foreman to strengthen it, if he, the superintendent, thought it necessary to do so. The superintendent replied, with some impatience, that it was strong enough, and then ordered the men, including appellee, to put a plank across the tank to stand on, and see what they could do in the way of lifting the tank. The accident followed immediately upon obedience to the order., There was nothing in the suggestion of the foreman to the superintendent that would indicate to the appellee at the time that he was about to incur any unusual hazard. But the incident did suggest to the superintendent that there might be a question as to the strength of the beam being sufficient for the purpose, and it was his business to use all reasonable care to see that the appliance was safe before exposing the employes to danger therefrom. His failure to do this exposed appellee to a risk—extra hazardous in its nature—which appellee did not assume as part of his contract of service. The accident resulted, as is said in Chicago & A. R. R. Co. v. May, 108 Ill. 300, from “ a negligent and unskillful exercise” of the power of the superintendent over the men under his charge, for which appellant is liable. Hale Elevator Co. v. Trade, 41 Ill. App. 253; Consolidated Coal Co. v. Haenni, 146 Ill. 614.

The objection that the judgment is excessive is perhaps more serious, in view of the nature of the evidence bearing upon the extent and character of the appellee’s injuries. The measure of damages in the case can only be compensation for injuries actually sustained. If it be true, as stated by appellee, that his head was badly cut in two places; that his back was so injured that he has been and is unable to do any regular work because of such injuries; that he was “ hurt in the spine ” so that he still suffers from it and is unable to engage in any occupation which requires him to stoop over at all; that he could.not keep a job because he is “ crippled up ” and can not work; that he still has pains in his back and that his head hurts and “ makes him dizzy; ” all by reason of the fall and the cuts upon his head received at the time, then the verdict can not be regarded as excessive; certainly not so much so as to indicate passion or prejudice on the part of the jmy. Appellant produced a considerable number of witnesses who testified that appellee returned to work a few days after the accident, and that he showed no indications of inability to do his usual work, and made no complaint so long as he remained in the employ of the appellant. If we were sitting as a jury we might, perhaps, have reached a different verdict upon this evidence. But the jury and the court below saw and heard the witnesses. If they believed appellee’s evidence in spite of the adverse testimony, the jury were justified in bringing in a verdict accordingly, and we can not say that in this case it is excessive.

The judgment must be affirmed.