Illinois Central R. R. v. Brown , 107 Ill. App. 512 ( 1903 )

Mr. Justice Adams

delivered the opinion of the court.

The theory of the declaration is that appellee was ordered to do work more hazardous than that he was employed to do, of the dangers of which he was ignorant, and in regard to which he was not instructed. Therefore, to entitle him to recover, this theory must be supported by a preponderance of the evidence. Appellee testified that he helped to lay the steel rails on the tracks, and had to see that they were put down straight, and to drive spikes with a hammer, and to do anything his foreman told him; that he was hired to do anything his foreman told him to do.

Handlier, appellee’s witness, testified that the section men sometimes helped the bridge gang on wooden bridges; that he had to do whatever the boss told him; that that was what section men were hired for. Cotter, section foreman, testified that, in his experience as track foreman for more than eight years, he had employed section men to lay tracks and do all general labor, and that the duties of the gang to which appellee belonged were laying down tracks and doing all the laboring, any work to be done on the tracks. This witness was questioned, and answered as fol-1 ows:

“ Q. During the time that plaintiff had been in your employ, had you had occasion to place in guard rails? A. Tes, sir.

Q. Had you at any time had occasion to do any chipping of rails to make them fit ? A. Tes, sir. I frequently did that when I had occasion to do it, and maybe twice a week or so. The track chisel was used on this occasion in chipping these rails, and also an ordinary spike hammer used by section men. This was the only time I had seen the plaintiff assist, however, while in my employ, and the only time I had seen him present when other section men were assisting.”

Cotter also testified that his men, the section men, were assisting the bridge men, but it was not their duty so to do. The testimony that this was not the duty of the section men is entirely inconsistent with the previous testimony of the witness.

Leary, bridge foreman, was examined, and answered as follows:

“ Q. In your experience on the Illinois Central, to what extent, if at all, have you found it customary for section men to do this character of work that these men were doing at the time ? A. In our class of work we have to very often, because we don’t generally have help enough. I was doing the chiseling.”

Leary further testified that the duty of the bridge men was to do the drilling and bolting; that the section men did not assist in the drilling; and that the work which was being done when appellee was injured was cutting or chipping the rail. The evidence shows, and it is matter of common knowledge, that section men are employed to do necessary work on the railway tracks, and the tracks over the bridge in question were part of the railway tracks on which appellee was employed to work. There is no evidence as to who employed appellee, nor as to what was said to him when he was employed. The evidence is merely that, for nearly four years before the accident, he had been in appellant’s employ as a section man. The work he was doing when injured, namely, wielding a hammer, was ordinary labor, such as he had been accustomed to in driving spikes on the tracks, and required no special skill. Appellee’s counsel rely on the fact, which the evidence tends to prove, that he had not, prior to the accident, done any of the particular work which he was then doing; but, if the work was not outside the line of his employment, this is immaterial. Our conclusion, from careful consideration of the evidence, is, that the finding that the work in which appellee was engaged when injured was outside the line of work which, as a section man, he was employed to do, is contrary to the weight of the evidence. This is sufficient to dispose of the case. But, even on the hypothesis that the work in which appellee was engaged was outside the line of his employment, we do not think he is entitled to recover.

Appellee is a man of mature years, and, it must be presumed, of ordinary intelligence. He must have known that when a steel rail is chipped by the use of a chisel and hammer, the chips will fly from the rail. He assisted in chipping the flange of the rail fifteen feet in length, and had ample opportunity while so doing to observe that particles were removed from the rail by the chisel. The danger, if any, was quite as obvious to him as it could be to any one. In such case, no instruction to him was necessary. He did not object to doing the work.

In Consolidated Coal Co. v. Haenni, 146 Ill. 614, 625, the court quote with approval the following from Thompson on Negligence:

“ Where a person of mature years undertakes any labor outside the duties he has engaged to perform, the risks incident to which were equally open to the observation of himself and the master, the servant takes upon himself all such risks.” 2 Thompson on Negligence, p 976, Sec. 7.

We understand this proposition to be thoroughly established. See also, Martin v. Highland Park Mfg. Co., 83 Am. State Rep. 671; Cole v. C. & N. W. Ry. Co., 71 Wis. 114; 2 Bailey’s Pers. Inj., etc., p. 1176, Sec. 3462a, and p. 1180, Sec. 3474a.

The judgment will be=reversed.