Condon v. Schoenfield , 114 Ill. App. 468 ( 1904 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is urged that appellee’s injury was caused by the negligent act of his fellow workman who selected and put up the particular bracket, the breaking of which caused the fall; that Peters, the foreman, gave no orders for the use of that particular board as a bracket; that on the contrary, appellee and his fellow workman were told to pick out the best pieces; that they were both experienced carpenters and knew the probable consequences of using a defective board with a knot in it; and that the two were fellow-servants engaged in the same line of employment in cooperation each with the other and took the risk of each other’s negligence. It appears, however, that after the bracket in question was put up, the foreman, Peters, examined the scaffold, and then gave the men orders to “go right ahead on it now and go to work on it.” In so doing he assumed the responsibility of its being adequately safe for them to work on. The scaffold was about two hundred feet in length, and the two men were working from the ends toward the center. They were far enough apart most of the time so that neither could see just what kind of lumber the other was using. When,/therefore, the foreman, after examining the structure, ordered appellee to go on the scaffold and carry on the work, he assumed for the master, and as his representative, the risk of any defects, and responsibility that the master’s duty of providing a safe and suitable place for appellee to work, had been properly performed. The latter had a right to rest upon the assurance implied by such order. It appears not only that the foreman examined the structure before ordering appellee to work on it, but also that it was built under the foreman’s immediate supervision, of material which he had directed to be used. Under these circumstances the jury were warranted in finding a verdict against appellant. Arkerson v. Dennison, 117 Mass. 407-412; City of La Salle v. Kostka, 190 Ill. 130-141; Gundlach v. Schott, 192 Ill. 509-512.

It is contended that there was no evidence that appellant owned or controlled the race track or that appellee was in his employ. There was evidence, however, tending to that conclusion, but it is argued that it was given in answer to a leading question to which an objection offered should have been sustained. The question was leading in form, but in permitting it to be answered the trial court exercised a reasonable discretion within its province. Certainly there was no abuse of discretion and the answer shows no indication that the form of the question was in any way harmful to appellant. Ho evidence was offered in behalf of appellant, and it is fair to presume that if appellant was not the responsible owner he would have endeavored to disprove what evidence there was to that effect. The principle is sound that where a party makes no denial of evidence which makes against him on a material question of fact, when proof to the contrary, if it exists, is easily within his control, such failure strengthens the presumption against him, though raised by evidence in itself weak. Pittsburg, Ft. Wayne & C. R. Co. v. Callaghan, 50 Ill. App. 676-681, and cases there cited.

It is claimed that the trial court erred in refusing certain instructions embodying the doctrine that the master is not liable to an employee for injuries sustained through the negligence or default of a fellow-servant. For reasons which we have above indicated the instructions were not in point and were properly refused.

We find no sufficient reason to interfere with the verdict and judgment and it will therefore"be affirmed.

Affirmed.

Mr. Justice Stein took no part.