Gibis v. Clinic Publishing Co. , 1913 Ill. App. LEXIS 414 ( 1913 )

Mr. Presiding Justice Baker

delivered the opinion of the court.

We think that in giving the order to plaintiff to go under press three Kuehn was performing the master’s duty and not merely the duty of a fellow-servant. He gave the order which it was the duty of plaintiff to obey and he could only give orders as the representative of the master. He did not join plaintiff as a fellow-servant in searching ■ for the oil can but he gave the specific order under which plaintiff acted. He was in the position of one exercising authority.

It was the duty of the master to do no negligent act that would tend to make it dangerous for the plaintiff to obey his order. In this case Kuehn was doing what a master usually and. properly does when present in person for he was commanding and directing the execution of what he commanded. By his own act in failing to direct Jack not to start the press under which he had ordered plaintiff to go, or to warn him that plaintiff was under the press, Kuehn made it unsafe to do what he had ordered should be done. In Chicago & A. R. Co. v. May, 108 Ill. 288, it was said, page 299: “When the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred on a servant by the master over his co-laborers, the master will be liable. In such case he is not the fellow-servant of those under his charge, with respect to the exercise of such power, for no one but himself, in the case supposed, is clothed with authority to command the others. ’ ’’

We think that from the evidence the jury might properly find that the acts and conduct of Kuehn in failing to direct Jack not to start press three or to notify bim. that plaintiff had gone under that press, constituted and was negligence and that such negligence was the negligence of the master.

Plaintiff acting under a specific order had the right to assume that his superior who gave the order would not, by his own negligence, make the act he was ordered to perform unsafe and therefore did not assume the risk, nor was he guilty of contributory negligence.

We think the declaration after verdict must be held sufficient.

We find no errors in the rulings of the court on questions of evidence or instructions, and the judgment is affirmed.

'Affirmed.