Independent Tug Line v. Jacobson ( 1899 )

Mr. Justice Freeman

delivered the opinion of the court.

The third count of the declaration charges that the appellant negligently and carelessly required the appellee to use a fender for the protection of a vessel then being pushed by appellant’s tug between a dock and another vessel standing thirty or forty feet away therefrom, but attached to it by ropes; that the work thus assigned to appellee ivas contrary to his employment, of a dangerous and hazardous character at the time as the captain knew, and appellee did not know. It is on this count appellee relies for recovery.

In support, apparently, of the theory that the order to appellee to place the fender over the stern of the tug was contrary to his employment and hazardous in its nature at the time, the appellee testified:

“ Before the accident I handled the fender at the stern or aft. There is a big difference between putting one over the stern and one over the bow. It is the fireman’s duty to take care of the stern of a boat, the lines on the stern, and he handles fenders on the stern when he is told, and if it is necessary.”

He testifies, however, that he did handle the line forward “ quite a few times.” The question was further put to him as follows: “Now, Norway, did you handle fenders over on that tug boat just as often as you were told to % ” To which appellee answered, “ As often as I was told I did,” and he says he thinks that had been the course of business ever since he had been on the boat. He also testifies that he handled fenders not only on the stern of the tug, but “ most anywhere, where the occasion required.”

It is evident that there is no essential difference in the character of the act itself, whether appellee was in the habit of using the fender on the stern or on the bow or “ most anywhere ” as he says. And in view of this evidence given by appellee himself, the claim that the order to throw the fender over the stem was contrary to his employment, or was in and of itself dangerous or hazardous, can not be maintained.

It is claimed in behalf of appellee that he had not the same knowledge of the situation and the danger involved as had the captain of the tug who directed him to put the fender over the bow. Appellee had seen the situation and the lines stretching from the Kallyuga to the dock beneath which the Trowbridge was being placed, before he went below to fire, just previous to the accident. His own testimony is to the effect that he was on the deck half a minute before he was ordered to throw the fender, and he says it must have been a minute that he stood there holding the rope attached to the fender before the accident occurred.

But independently of his own knowledge of the situation, if the appellee is to recover, it must appear affirmatively that there was some negligence on the part of the captain, causing the injury complained of.

We are not referred to any evidence which tends to show th’at at the time the captain gave the order to appellee to place the fender over the stem of the tug, either he or any one else on board the tug had any'occasion to suppose that obedience by the appellee involved any personal risk whatever. The whole testimony tends to show that the catching of the line in the broken rail of the Trowbridge, its momentary tightening and its quick release with the force which caused the injury, neither was nor could be foreseen by any one on the tug. It does not even appear that any one on the tug knew that the rail on the Trowbridge was irregular or broken, or that there was or could be any danger therefrom. It has been repeatedly held that in order to charge one with negligence under such conditions, he must have notice of the danger “ at least long enough before the injury inflicted to have enabled him to form an intelligent opinion as to how the injury might be avoided, and apply the means.” U. S. Express Co. v. McCluskey, 77 Ill. App. 56-58.

An employer is not an insurer of the safety of his employes. If the injury was occasioned by a pure accident the employer is not liable. Ill. Steel Co. v. Trafas, 69 Ill. App. 87-90.

Appellant’s counsel moved at the close of the case, to exclude the evidence from the consideration of the jury, and handed up an instruction in writing which the court was requested to give, directing the jury to find the defendant not guilty. The court refused to so instruct the jury and denied the motion.

We are of opinion that the refusal to so instruct was error. The evidence fails to sustain the charges of negligence in the declaration, and upon the undisputed facts, the appellee has no cause of action.

The judgment of the Circuit Court must be reversed without remanding. Reversed without remanding.