William Graver Tank Works v. O'Donnell , 91 Ill. App. 524 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

Three questions are presented by this record, viz.: First, did deceased exercise ordinary care for his own safety; second, did he assume the risk; and third, was appellant negligent.

We are of the opinion that the question of deceased’s care was one of fact for the consideration of the jury, and we can not say that the verdict in this regard can be said to be manifestly against the evidence. When deceased was told to go upon the scaffold by his foreman, Lee, it is testified by the witness Wedge wood that Alyea said to Lee, “ There is only one plank there; ” to which Lee replied, “ Go up there.” He used a little stronger language than that. “ Damn it, get up there—get up there.” The witness Platt, who was at the top of the tank, forty-eight feet above Lee when he ordered Alyea to go upon the scaffold, says that he did not hear any conversation between Lee and deceased. Streed, who was on the scaffold from which Alyea fell and held the pipe with a rope attached to it, was not interrogated upon the point, nor was Holub, who assisted Lee. Ho other witness testified upon the subject.

Even though the scaffold was not a safe place to work, and this fact was apparent to Alyea, he was ordered to go upon it by Lee, his foreman, and the question was one for the jury as to whether the danger was so imminent to Alyea that no man of ordinary prudence, having the knowledge of the situation which he had, would have incurred it. Offut v. World’s Col. Ex., 175 Ill. 472-9, and cases cited; Pittsburgh B. Co. v. Walker, 170 Ill. 550.

Whether or not Alyea assumed the risk was also a question for the jury. It is contended by appellant that the taking down of the iron pipe was in the line of Alyea’s employment. Alyea was employed as a carpenter. That was his trade, and while he assisted in putting up this particular pipe, it does not appear that he had ever done that kind of work before, or that he had ever been engaged in taking down such a pipe for appellant, and the jury might well have found, from the evidence, that it was outside his employment. If, however, the taking down of the pipe was in the line of Alyea’s employment, it does not follow that he assumed the risk.

It was said in Union, etc., Co. v. Blindauer, 175 Ill. 325, a case of injury from defective machiner}'-, that the servant before he assumes the risk must not only know the defects but the dangers incident thereto.

In Alton, etc., Co. v. Hudson, 176 Ill. 270, the court in speaking on the subject of assumed hazard, say:

“ He assumes the risk, more or less hazardous, of the service in which he is engaged, but he has a right to presume that all proper attention should be given to his safety and that he shall not be carelessly and needlessly exposed to risks not necessarily resulting from his occupation and preventable by ordinary care and precaution on the part of his employer.”

We think that the evidence fairly tends to show that deceased was needlessly exposed to danger by being directed to go upon the scaffold in question, and that this danger was not one necessarily resulting from his occupation, and was not an ordinary risk of his employment. The verdict in this regard can not be said to be clearly against the evidence.

The case of Howe v. Medaris, 183 Ill. 288, relied upon by appellant "in this connection, does not, in our opinion, control the case at bar. The court say in speaking of the evidence:

“ It not only fails to establish or tend to establish his (appellee’s) want of knowledge, but clearly shows he had notice of the danger and of the defective condition of the machine.”

Whether or not.the appellant was guilty of negligence which resulted in the death of Alyea was also a question for the jury. It may be conceded, for the purpose of this case, that appellant was not negligent in the manner in which it constructed the pipe in question, and still it was a matter for the jury to determine whether or not the appellant was negligent in the manner in which it, through its foreman, proceeded to take down the pipe. Whether it was negligence on Lee’s part to order the deceased to go upon the scaffold eighteen feet above the ground and hold the pipe with a pair of tongs while two men, and as the jury were justified from the evidence in finding, while three men, with another pair of tongs, used their united efforts in unscrewing the lower joint, was a question on which the jury were justified in finding as it did. Moreover, we think it may be well said that the jury, from their own knowledge and experience in such matters, under the evidence might have found that the foreman was negligent in attempting to remove the lower joint of the pipe first instead of the upper one. It was-for the jury to say whether the method adopted was negligent or not.

It is claimed by the appellant that the special finding of the. jury is inconsistent with the general verdict, but we are of the opinion that the contention is not sound.

The answer “ yes ” or “ no ” to the interrogatory would not have been decisive of the case one way or the other, and for that reason the question should not have been submitted by the court. It did not relate to an ultimate fact. R. R. Co. v. Eggmann, 159 Ill. 550; R. R. Co. v. Winters, 175 Ill. 306.

If the answer had been “ yes,” that would not necessarily relieve appellant from liability upon the theory that the men at the bottom of the pipe were Alyea’s fellow-servants. The fact that Lee aided temporarily in unscrewing the pipe did not relieve appellant from the responsibility of his directing deceased to work in an unsafe place. Pittsburgh etc., Co. v. Walker, 170 Ill. 550.

As we have seen, the jury’s verdict as to the care of Alyea and as to the assumption of the risk, and that Lee was negligent in directing Alyea to go upon the scaffold under the circumstances shown, can not be said to be clearly against the weight of the evidence. It is not important, in our opinion, whether Alyea was twisted off the scaffold or not. We think from, a consideration of the whole evidence, that Alvea was caused to fall either because the place where he was put to work was not reasonably safe, or that he was twisted or pulled off by the action of the men holding the tongs at the bottom of the pipe. It is enough that he was caused to . fall by appellant’s negligence as charged.

Other matters are presented by counsel both for appellant and appellee, as bearing upon these three questions, but we deem it unnecessary to refer specially to them, as what is said sufficiently disposes of the merits of the appeal. Being of opinion that the case was properly submitted to the jury, and that there is no error in the record, the judgment is affirmed.