Bunida v. Armour & Co. ( 1909 )

Mr. Justice Baker

delivered the opinion of the court.

It is the duty of the employer to use reasonable care to furnish his employe a reasonably safe place to perform the work he is directed by the employer, either expressly or impliedly, to perform. The work of the employer is to be under his own control, and it is for him, or his representative, to give such orders and directions as he may deem proper in respect to the work to be performed by his employe and the place in which such work shall be done. If an employer, either expressly or impliedly, directs an employe to perform work in a particular place, the law raises the duty on the part of the employer to use reasonable care to have and keep such place in a reasonably safe coudition for the performance of such work, and a breach of such duty constitutes and is negligence. But it is not sufficient to constitute negligence on the part of the employer, that an employe, of his own volition, engages in work he has not been directed by his employer, either expressly or impliedly, to perform, in a place where he has not been directed, either expressly or impliedly, to go, although such place be unsafe and dangerous. The duty of the employer to the employe to have and keep a place reasonably safe does not exist unless the employer or his representative knows, or has reason to believe, that the employe is serving his employer in such place.

The defendant is a corporation, and could act and give directions only through its proper officer or agent. There is no claim that any one assumed, on behalf of defendant, to direct where the plaintiff should work, or what work he should perform, except his foreman, Kaufman. The room in which plaintiff was injured was lighted only by artificial lights. Near the middle of the room, from east to west, was a main alley running north and south. On the east side of this alley were nine aisles, called sections, each five feet wide and about sixty feet long, and on the west side, eight sections of the same width, but somewhat shorter. On each side of each section were two tiers of vats, in which hams were placed and covered with pickle, for the purpose of curing. This process occupied about sixty days, during which time the hams were overhauled several times by an overhauling gang, who were furnished lamps or lanterns. Plaintiff had nothing to do with the overhauling of hams. On the upper floors of the same building pork was cured in tierces, which were headed up. It was necessary to roll these tierces several times during the process of curing. When there was not sufficient room on the upper floors for the storage of tierces of pork, it was the practice to fill some of the sections on the fourth floor with such tierces. When the hams in any section in which tierces were stored were to be overhauled, it was necessary to roll the tierces of pork out of said section so that the overhauling gang might go through the section with the table and truck, with a barrel on it, which they used in their work. It was the duty of Kaufman, plaintiff’s foreman, on notice by the foreman of the overhauling gang that he desired to overhaul a section in which were tierces, to roll such tierces out of that section. The overhauling gang were overhauling section four, from which all the tierces had been removed, and their foreman notified Kanfman to clear out another section which he intended to overhaul when the overhauling of section four was completed. It was under these circumstances, and for the purpose above stated, that foreman Kaufman took the gang to which plaintiff belonged to the fourth floor and set them to work rolling the tierces from the section he had been so notified to clear ont. The only work that Kanfman had in hand on that floor was the clearing out of the section he had been so notified to clear out.

The only testimony as to any express directions of Kaufman to plaintiff, or the gang to which he belonged, was the testimony of plaintiff and of Kaufman. Plaintiff testified that when nearly all the tierces had been rolled out of the section in which his gang were working, Kaufman came back to the section, sent four of the gang upstairs, told plaintiff and another man to remain, “and told us to stay down here and finish the work,” and further testified as follows:

“Q. And the finishing of the work meant the rolling of certain barrels to some other place that had not been moved by the gang? That is right, is it? A. Yes, finishing the work.

Q. How many barrels did yon roll? A. Twelve or fourteen barrels. ’ ’

Kaufman testified that he came back to the section about the time stated by plaintiff. He denied that he then gave any order that a part of the men should go to another floor and plaintiff and another man remain. His testimony as to the direction he then gave is as follows: “I told them to go up to the next floor when they got through with that section. They had only a few tierces to roll when I was there.” Plaintiff’s testimony does not tend to prove an express direction by Kaufman to him, or any member of the gang to which he belonged, to go into any other section or perform any work on the fourth floor, except to finish the work in which they were then engaged, which was the clearing ont of the section in which they were then working ; and there is no evidence in the record tending to show an express direction to go to any other section or perform any other work on that floor.

There is no evidence tending to show that the rolling gang to which plaintiff belonged, or any member or members of it, had ever before, after clearing out a section on the fourth floor, gone into any other section on that floor for the purpose of removing tierces therefrom, or for any other purpose; no evidence that such rolling gang had ever performed any work on that floor except to clear out a section when directed so to do by their foreman. It is true the plaintiff testified that he had to go and “look over the sections,” and that he rolled tierces out of other sections than the one his gang was engaged in clearing out. But his statement that he had to “look over the sections,” was the statement of a conclusion, not of a fact, and he testified to no order, no previous practice, no fact, no circumstance, tending to show that it was his duty to look over any other section or remove tierces from any other section than the one he and the other members of his gang were clearing out. There is in the record no evidence from which the jury might properly find that the defendant impliedly directed the plaintiff, or any member of the gang to which he belonged, to go into said section four, or to go into any section on the fourth floor other than the sections from which they were rolling tierces and the section into which they rolled such tierces.

The evidence, in our opinion, fails to show that plaintiff went into the section of defendant’s building, in which he was injured, under or pursuant to any direction of defendant, or of any representative of defendant, either express or implied, or in the performance of any work he had been directed by defendant, either expressly or impliedly, to perform, or that defendant, or any representative of defendant, knew or had reason to believe that plaintiff had gone, or would go, into said section with the intention of serving the defendant. In the absence of any such direction or knowledge, the law did not raise on the part of the defendant the duty to the plaintiff alleged to have been neglected.

In our opinion it does not appear from the evidence that the defendant is guilty of the negligence alleged in the declaration in this case, and the judgment of the Circuit Court will therefore be reversed, with a finding of facts, and the cause will not be remanded.

Reversed with finding of facts.