Heaney v. Wells Bros. , 159 Ill. App. 386 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

Counsel have discussed several alleged errors in the trial below, but in the view we take of the matter, it will not be necessary to pass upon but one.

It is undoubtedly the duty of the master to use reasonable diligence to supply and keep for the use of his servants reasonably safe appliances and tools. They must be such as are ordinarily sufficient for the purpose for which they are used, and such as, with reasonable care, can be used without more danger than is ordinarily incident to the business. It is also true, that a master is required to use reasonable care in furnishing his employes with a reasonably safe place in which, and reasonably safe surroundings and appliances about which to work.

The evidence establishes the fact that the lagging used was such as was ordinarily used for that purpose, and the setting of" the lagging was simply one stage of the work which was performed by the gangs or shifts of men. Taking up the work where the previous shift had left it, the workmen were engaged in practically a continuous service. Appellee had seen and used lagging for such purposes on many similar jobs, and, though he had not seen this particular lagging, it had been set there by the shift next preceding his own, and he found it there when he came. If one end of the lagging contained the knot referred to, and such knot thereby rendered it unsafe to pound upon that end of the lagging (there being no evidence that the lagging was- otherwise in any manner unfit for the use made of it), it is clear that if the previous shift of workmen had put in that piece of lagging the other end up, the injury would have been averted. In other words appellee was not injured because he was set to work in an unsafe place. His injury resulted from the pounding upon the knotty end of a piece of lagging, and if the knot constituted such a defect as that reasonable care would have required the lagging to have been used the other end up, the negligence was that of the employe in the previous shift who thus improperly placed the piece of lagging with the knotty end upward. This being so, we are compelled to find that appellant was not guilty of negligence by which the accident was caused, and, if there was negligence, it was the negligence of a fellow servant of appellee, and, therefore, that appellant was not liable. Illinois Steel Co. v. Coffey, 205 Ill. 206.

With the general policy of the doctrine of nonliability of a master for the negligence of a fellow servant we have nothing to do^.but it is the law of this State, which we are not at liberty to disregard.

The judgment is therefore reversed, and judgment entered here in favor of appellant.

Reversed and judgment for appellant upon finding of facts.