Rock v. J. E. Tilt Shoe Co. , 168 Ill. App. 467 ( 1912 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

There are fifteen heads setting ont counsel’s contentions in behalf of the defendant company. The first of these is that the evidence with all it legitimately tends to prove is not sufficient to sustain the verdict in that it does not show that the proximate cause of the injury was negligence of the defendant. Others are that the evidence of appellee to the effect that as he fell down the shaft he was conscious and saw above him a face looking down the shaft is improbable and unbelievable; that it was incumbent upon appellee to prove that the elevator shaft and equipment were defective and that defendant had notice thereof or should have had, and plaintiff had not equal means of such knowledge, and that such defects were the proximate cause of the injury; that appellee assumed the risk arising from any dangers there were in the manner of doing the work, because he knew all the conditions or could have known them by the use of ordinary care; that where a servant is injured by another servant of the master he must prove by a preponderance of evidence that the negligent servant was not his fellow servant and that appellee in backing into the elevator shaft without ascertaining before he stepped that the elevator was not there was guilty of contributory negligence as a matter of law. There' are other points stated, but they refer mainly to well understood propositions of law as to which there is no dispute, and the application of which in the case at bar is at least remote.

The first contention above stated, that the evidence fails to show that negligence of the defendant was the proximate cause of the injury, raises, we think, the controlling question in the case.

It is argued that the evidence does not prove any negligence on defendant’s part, that plaintiff did not prove “that the elevator was moved by anybody who had opened the doors leading to the elevator shaft from the outside.” No evidence was offered in defendant’s behalf. Plaintiff’s evidence tends to show that it was a cnstom with certain of appellant’s officers and employes to open doors to the elevator shaft from the outside by using the blade of a knife and raising the catch at such times as suited their convenience. Why this was done does not definitely appear, but the inference is warranted that it may have been to enable such person to use the elevator when the operator was not present or for some reason was out of the elevator at the time. By opening a door into the shaft on any floor the cable by which the elevator was controlled was brought within reach of one standing at the open door of the shaft on that floor and the elevator could then be raised or lowered by such person at will. There is testimony tending to show that plaintiff was informed that no one could open these doors on the outside.and was told to do his work in the manner in which he was engaged in doing it at the time of the injury. He had no experience in operating the elevator, except that of the three days which had elapsed in whole or part after he was told how to do the work and was set to doing it. It is true the evidence does not show what, if any, particular person set the elevator in motion at the time. There is no testimony and no evidence tending to show that it ever moved automatically. So far as appears it probably was set in motion by the cable used for such purpose. If so, it was probably caused to ascend by human agency. The method plaintiff was instructed to use in loading the racks on the elevator was made extremely dangerous by the fact that the elevator doors could be and were, not infrequently, opened from the ontside as the evidence tends to show. Instead of being warned of the danger that persons thus opening the doors might raise or lower the elevator while he was out of it to load or unload racks, the evidence tends to show plaintiff was not only not warned of the danger but was led by his instructor — inadvertently doubtless', but actually — to suppose it did not exist. Tbe jury were we think warranted from the evidence in finding that the failure to warn and instruct the plaintiff of such danger, obvious as it was or should have been to the employer, and the absence of precautions to prevent such injury, were negligence and proximate causes of the injury.

The burden to show the accident was not the result of such negligence was upon the defendant. We concur in what is said by Mr. Justice Brown in Illinois Steel Co. v. Swiercz, 135 Ill. App. 141-150: “We think that the case comes under the class of cases spoken of and cited in Glue Co. v. Wietzychowski, 125 Ill. App. 277, where without invoking the principle res ipsa loquitur in favor of an employe it can nevertheless be said that the mere fact of the occurrence of the accident indicates negligence on the part of some one.' The accident-was one which in the ordinary course of events without some absence of due care could not happen, and as it did happen the burden was put on the party responsible for such care to show that it was not the result of his negligence.” That a door into the elevator shaft was opened at the time of the accident by some one on a floor above that at which plaintiff had left the elevator a few moments before, there is some evidence tending to show. Plaintiff testifies that he thought he saw some one looking down the shaft while he was falling. Defendant’s counsel endeavors to minimize the force of this statement, declaring it incredible and asserting it to have been impossible that plaintiff could have seen while falling what he says he thought he saw. We-know of no just ground upon which we are at liberty to ignore that testimony. Its value as evidence was a question for the jury. The identity of such person, if plaintiff did in fact see him, as he says he thinks he did, plaintiff could not be expected nor required to prove or ascertain as a condition precedent to admitting the evidence. In all probability it would have been impossible for hfm to do either. We are unable to concur in appellant’s contention that the plaintiff was "required to show what caused the elevator to move. It is sufficient that it did move without fault on the part of the plaintiff so far as appears, and under conditions which justify the conclusion that the injury was the result of defendant’s negligence.1

Nor can we agree with counsel’s contention that plaintiff assumed the risk of such an accident, or was guilty of contributory negligence under the evidence. It is clearly not a case for application of the doctrine of fellow servant. If it was by reason of defendant’s negligence that the doors of the shaft were opened and the elevator moved, it is immaterial who the person was who moved it. There is nothing in the evidence tending to show that it was done by one who was a fellow servant under the rule, but if there had been it would make no difference in a case where, as here, the evidence tends to show that the proximate cause of the injury was negligence on the part of the defendant. If “the injury would not have happened had the master observed due care for the safety of the injured servant, the master is liable. ’ ’ Armour v. Golkowska, 202 Ill. 144-147. Whether plaintiff was guilty of contributory negligence was a question of fact, as to which the jury did not agree with defendant’s contention. It must suffice to say that we find no material error in the instructions.

It is said the judgment of $10,000 is excessive. We are unable to agree with this contention. The verdict of the jury awarded a considerably larger sum, which was reduced by remittitur. The judgment in view of the circumstances, the nature and the extent of the plaintiff’s injuries, is not for an amount so large as to warrant our interference.

Finding no material error in the record the judgment of the Superior Court will be affirmed.

Affirmed.