Wells v. O'Hare , 1903 Ill. App. LEXIS 574 ( 1903 )

Mr. Justice Stein

delivered the opinion of the court.

First. There is no direct evidence as to who or what caused the brick to fall, and appellant contends that there is no evidence of any kind tending to show the negligence charged. At the time of the accident no persons were in the building other than Kassar, the engineer, and appellant’s employes. One of the latter, Sullivan, was engaged on the ninth floor in removing the plank from under the elevator. The others and Kassar were on the first floor. There was no one on any intermediate floor. Nothing is shown to have been going on that could have jarred a brick loose anywhere. The lower cage was resting on the ground and hence failed to counter-balance the other one. The engineer could not raise the upper cage off the plank by the mere action of the engine. .The cable was slack on the engine drum, and he therefore asked the foreman for help, which the latter supplied by ordering the deceased and others to pull on the cable for the purpose-of talcing up the slack of the rope, and thus providing a counter-balance. The engine then slowly raised the upper cage in the air, and having done so, stood still. The men below were holding the slack of the cable taut on the engine drum, and they were still. Nothing was in motion except above, where Sullivan was pulling at the north end of the plank, the south end of which was resting on the bricks. Just then a brick fell and struck deceased. Sullivan had not previously removed the bricks from under the plank. The jury no doubt concluded that in pulling out the plank he raked with it one of the bricks on the smooth tile floor into the elevator shaft which was only two or three feet off; and we are not prepared to say that they were wrong in such conclusion, and in finding that Sullivan’s acts were negligent.

In Slack v. Harris, 200 Ill. 96, the Supreme Court ruled that “ positive testimony by an engineer that he did not touch certain nuts upon elevator machinery did not over-come circumstantial evidence that he did.” In the case at bar there is no direct evidence opposed to the. circumstantial.

Second. The terms of the fellow-servant rule imply and pre-suppose the existence of such circumstances that the servants can exercise an influence upon each other promotive of proper caution. Pagels v. Meyer, 193 Ill. 172, 178, 379; Columbian Exposition v. Lehigh, 196 Ill. 612, 620; C. & A. R. R. Co. v. Swan, 176 Ill. 424; Duffy v. Kivilin, 195 Ill. 630; R. R. Co. v. Powers, 74 Ill. 341, 346; R. R. Co. v. Moranda, 93 Ill. 302, 323; Ry. Co. v. O’Connor, 77 Ill. 391, 396; Rolling Mill Co. v. Johnson, 114 Ill. 57, 64; Wenona Coal Co. v. Holmquist, 152 Ill. 581. In the O’Connor case supra, the court say:

“ Neither could control the other, or know of his want of skill or prudence so as to report the same to the proper authority for removal, and thus protect himself from injury.”

In Pagels v. Meyer, supra, it is said:

“ The basis of the classification of servants of the same master into those who are fellow-servants and those who are not, as established in this state, is such personal relation and association between them as affords opportunity and power to influence each other to proper caution by counsel, advice and example, or the want of such personal relation and association.”

In Mill Co. v. Johnson, supra, the court, treating of the same subject, say:

“ And of course where there is no right or opportunity of supervision, or where there is no independent will, and no right or opportunity to take measures to avoid the negligent acts of another, without disobedience to the orders of his immediate superiors, the doctrine can have no application.”

The Holmquist case, supra, affirms a judgment rendered in a suit at the trial of which an instruction was given which used the identical language last quoted.

In view of the law and the undisputed facts of this case, it is, to say the least, a matter of grave doubt whether the deceased and Sullivan were fellow-servants under either branch of the rule. Sullivan was in charge of the elevator at the top. lie gave the signals for raising and lowering it. He came into no contact with Corbett, the deceased; Corbett had no occasion to pay any attention to Sullivan. He had nothing to do with any person above, giving signals, or calling out, or with the bells that were rung from above. At the time of the accident Córbett was holding the slack of the cable on the first floor, a thing he had never done before in this building, and Sullivan was pulling the plank on the ninth. There is no proof that he bad any idea of what was being done above, or any knowledge that Sullivan or any person was up there pulling a plank, or doing anything else. He ivas obeying a command of his foreman to pull at the cable. He could not see the top of the shaft, or know what was going on there. The order of the foreman required instantaneous and exact obedience. The reasons why he should pull did not concern him. Without disobeying the order, he had no opportunity to take measures for his safety. He had no independent will, but acted solely at command. Hnder such circumstances it can not be said the finding of the jury that the relation of fellow-servants did not exist is against the evidence, or is not supported by it.

Third. The giving of the following instruction at the instance of appellee is complained of :

“ The jury are instructed that the term ‘ ordinary risks or hazards of deceased’s employment,’ as used in these instructions, means such risks as are usual and ordinary in such employment after the employer has taken reasonable care to "discover and prevent such risks.”

' The Supreme Court has so laid down the law during the last few years in a large number of cases, a few of which are: C. & A. R. R. Co. v. House, 172 Ill. 601, 605; A. P. B. Co. v. Hudson, 176 Ill. 273, 274; LaSalle v. Kostka, 190 Ill. 130; C. & G. T. Ry. Co. v. Spurney, 197 Ill. 471, 478; Slack v. Harris, 200 Ill. 96, 108. And such is the rule elsewhere: Buzzell v. Laconia Mfg. Co., 48 Me. 113, 117; Hough v. Ry. Co., 100 U. S. 213, 217.

The instruction speaks of “ the terms ‘ordinary risk and hazard’ as used in these instructions.” Ho other instruction mentioned or referred to “ ordinary risk or hazard,” and there was nothing to which the jury could apply the instruction complained of. It was superfluous, but harmless.

Fourth. In his closing argument to the jury, and while the trial judge was temporarily absent, counsel for appellee argued that appellant had not furnished his employe with a safe place to work in, to which appellant’s counsel objected on the ground of there being no such proof in the case. Counsel for appellee then asked : “ Shall I suspend and xvait until the court returns ? ” to which appellant’s counsel answered : “ I do not ask that, but xvant an exception to the improper line of your argument.” He did not, however, take an exception upon the return of the court, nor mention or bring up the matter in any way. His failure in that regard operated as' a xvaiver of the alleged improper conduct. Hor do we think the impropriety, if such it xvas, to be of a serious nature. As a matter of fact under the proof the place where deceased was killed xvas not a safe one, even though there xvas no such allegation of duty in the pleadings. The objection of counsel, however, did not proceed on that ground, but on the ground that there was no such proof. Marder, Luse & Co. v. Leary, 137 Ill. 319; R. R. Co. v. Southwick, 165 Ill. 494; R. R. Co. v. Annis, 165 Ill. 476; R. R. Co. v. Gillow, 166 Ill. 444; R. R. Co. v. Shreve, 171 Ill. 438.

Fifth. A juror tendered by appellant xvas challenged by appellee for cause. The challenge xvas sustained, and the juror excused. It does not appear nor is any complaint made that an objectionable juror was forced upon appellant in place of the one excused, or that he did not ha\Te a proper and impartial jury. Without examining whether the challenge xvas xvell taken, the error, if any, in sustaining it, did, no harm.

“ Ho party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause, until he has been accepted and sworn. It is enough that it appears that his cause has been tried by an impartial jury. It is no ground of exception that against his objection a juror xvas rejected by the court upon insufficient grounds, unless, through rejecting qualified persons, the necessity of accepting others not qualified has been created.” 1 Thompson on Trials, Sec. 120.

The improper overruling of a challenge of a juror for cause will not justify a reversal although the juror is peremptorily challenged, unless the party objecting to him is compelled to exhaust his peremptory challenges on others. Robinson v. Randall, 82 Ill. 521. The rule is the same even in a criminal case. Wilson v. People, 94 Ill. 299.

There being no material error in the record, the judgment is affirmed.