Ryan v. Illinois Telephone Construction Co. , 159 Ill. App. 437 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

Appellee bases his right to recover upon the propositions that appellant had not used reasonable care to furnish him with a reasonably safe place in which to perform his labor at the time of the accident; and that it was negligence for appellant to order him to ride up the steep incline, as human ballast, for improperly loaded cars, with knowledge of the fact that preceding cars might run back down the incline; also, that the order being negligent, the danger in obeying it was not so imminent but that a man of ordinary prudence would have incurred it, under all the circumstances.

Appellant contends that the judgment should be reversed, because of the prejudicial statements of counsel at the trial, and evidence .erroneously admitted as to the insurance companies defending the case; also, because the evidence does not sustain the verdict under the pleadings, and because the alleged injury was caused by the negligence of a fellow servant, and in any event, that appellee assumed the risk.

As to the first of these, we think it was highly improper for the attorney of appellee to make the complained of references to insurance companies, and the insinuations as to their relation to the defense of the case. However, in view of all the circumstances, and following the authority of McCarthy v. Spring Valley Coal Co., 232 Ill. 473, we do not regard the action complained of as constituting reversible error.

For a week appellee had been riding these cars in the same manner, and for the same purpose, which he himself says was to keep them from overbalancing backward. He was upon the front end of the car for the purpose of having his weight counterbalance the load, so that the car would not tip backward. He rode up several times during the period he worked that night, and, though he testified that he did this by the direction of the foreman it is pretty evident from the testimony that Eyan was engaged in doing that which was incidental to his work, and which had been done by him repeatedly on that night, and previously.

Appellee appears to have been entirely familiar with the situation and the surroundings. If the car which, by running back upon Eyan, injured him, was improperly attached by the dogi on the endless chain to the front axle, instead of the rear axle, we think the evidence clearly shows that this was due to the carelessness of a workman by the name of Withers, and that Withers was, at the time, a fellow servant with Eyan. Appellee was injured, not because the place in which he was working was not a reasonaby safe place in which to work, but because he knowingly placed himself in a dangerous position by riding up on the front end of the cars, and because a fellow employé caused the car preceding him to be improperly attached to the upward bound chain.

While it seems a hardship that appellee should have received so serious an injury, we do not see how, under the law of this State, he can recover, -under the circumstances shown in this case. This case and others like it emphasize the necessity of some adequate workman’s compensation act, which shall abolish the fellow servant rule, and also that of assumption of risk as now applied, and provide that the financial burden thus created shall be imposed upon the business in which the injuries are suffered, in such manner as they may be insured against.

We think the evidence requires us to reverse the judgment of the court below, and enter judgment here upon a finding of facts.

Reversed with a finding of facts.