City of Chicago v. Cronin , 91 Ill. App. 466 ( 1900 )

Mr. Presiding Justice Adams

delivered the opinion of the court.

It is contended by appellant’s counsel that Veruskey was a fellow-servant of appellee and that the court should have so held as matter of law, and should have instructed the jury to find the defendant not guilty. In this view we can not concur. Appellant’s foreman and temporary vice-principal, exercising the power vested in him as such, ordered appellee into the trench, superintended the laying of the pipe on the loose bank of earth on the north side of the trench, and ordered Halpin to let the pipe go. Also, in his character as foreman, he ordered a departure from the usual manner of lowering the pipe, namely, using ropes. His order was to let go, let it fall of its weight. Veruskey contradicted appellee’s witnesses on material points, but we think the jury were justified in disbelieving him, as they apparently did. Had it not been for these things, done by Veruskey’s express authority, the probability is that the accident would not have happened.

In Pittsburg Bridge Co. v. Walker, 170 Ill. 550, the appellee and others were engaged in removing heavy pieces of iron frame-work intended to be used in constructing a bridge across the Chicago river, from the bank of the river to the place where the frame-work would be needed, and in the process of removal it was necessary for the safety of the employes that a tag line should be attached to the frame-work to steady and control it. One Farnsworth, who was superintending and directing the work for the bridge company, refused and neglected to attach the tag line, but undertook to control the frame work with his hands, which he was unable to do, in consequence of which the frame-work swung around and struck and injured the appellee. It was contended that Farnsworth, in assisting to move the frame-work, was a fellow-servant of appellee, but the court held against this contention, saying :

“ The evidence tended to show Farnsworth, in his position as vice-principal, ordered the use of the tag line dispensed with, and adopted as a substitute the plan of attempting to control the swaying frame-work by seizing it with his hands and holding it in proper position by his unaided strength, and that the primary cause of the injury received by the appellee was the exercise by Farnsworth of authority conferred upon him by the master to order, direct and control the operation of moving the frame-work from its position on the bank to the place where it was needed to be placed in the bridge, without using the tag line.”

In the same case the court quotes with approval the following from the opinion in C. & A. R. R. Co. v. May, 108 Ill. 288.

“ The mere fact that the servant exercising such authority sometimes, or generally, labors with the others as a common hand, will not of itself exonerate the master from liability for the former's negligence in the exercise of his authority over the others. * * * When the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such case he is not the fellow-servant of those under his charge with respect to the exercis'e of such power, for no one but himself, in the case supposed, is clothed with authority to command the others.”

Appellant, by its vice-principal, ordered appellee into the trench, and appellant, whose duty it was to maintain the trench in a reasonable safe condition while appellee was in it, ordered, by its vice-principal, thp pipe to be let fall into the trench. Under these circumstances, appellant can not escape liability, even though it should be held that Veruskey, in assisting to lower the pipe, was acting as a fellow-servant. Met. El. R. R. Co. v. Skola, 183 Ill. 454.

The question whether appellee and Veruskey were fellow-servants, was submitted to the jury, under instructions much more favorable to appellant than, in our opinion, it was entitled to; and the jury found, very properly, as "we think, that they were not fellow-servants. It is urged that the judgment is for an excessive amount, and that for this reason it should be reversed. In view of the evidence in regard to appellee’s injuries set forth in the preceding statement, we can not so hold. The judgment will be affirmed.