Bertulis v. Illinois Steel Co. ( 1913 )

The following opinion was filed November 19, 1912:

SiebecKee, J.

The first contention of the appellant raises the question whether, under the facts and circumstances of the case, the duty to inspect the tongs rested on the defendant or whether it had been committed as an operative detail of the work to the men engaged in operating the crane and to those unloading the billets from the car and piling them in the yard. The foregoing statement of the facts describes, as shown by the evidence in the case, the procedure and the way in wbicb tbis. work was performed. Tbe evidence discloses that, under the regulations for conducting this work, it was the billet yard superintendent’s duty to see to it that safe and proper tongs were supplied for lifting the billets from the cars to the places where they were to be piled in the yard. It also appears that the foremen of the gangs of men doing this work were charged, under the superintendent’s direction, with the duty of inspecting the tongs every morning and evening before starting the different shifts of men to work and of giving orders to the men as to what tongs they should use. The evidence is clear that the defendant, through its billet yard superintendent and the foreman in charge of the work of unloading and piling the billets in the yard, was charged with the duty of inspecting the tongs as to their sharpness and fitness for the work regularly every morning and evening, and that such inspection was not treated as an operative detail of the work which every one engaged thereabout was to perform. Furthermore, it is established by the evidence that the service of inspection was not, under the circumstances, of so ordinary a nature that*any one could perform it. The evidence on die litigated issuers to what constituted a sharp and sufficient tongs clearly shows that it required special knowledge and experience to determine when the gripping edges of the tongs were in proper condition to prevent the billets from falling out of the tongs while they were held suspended. A mechanical device for lifting three such billets of 1,065 pounds each, placed side by side, by means of the friction of the grip on the mouth of these tongs and the flat surfaces of the billets, is not so simple and ordinary a mechanical device, and the operation is not so simple and ordinary, that any one of ordinary intelligence can be held to understand them and be able to judge of the fitness of the tongs to safely conduct the work. The operation was somewhat unusual in its character, and knowledge of the fitness and safety of the tongs required special knowledge and information, not possessed by the ordinary laborer working on the ground piling billets. This condition was fully recognized by tbe defendant, and bence it made it tbe duty of tbe superintendent and tbe foremen to select tbe tongs to be used, and it required tbem to inspect tbem at least twice daily, as to tbeir sharpness and condition of repair, to ascertain tbeir fitness and safety for tbe operation. These facts and circumstances present a case wherein it was tbe master’s duty to inspect tbe tongs as to tbeir condition. Tbe evidence abundantly shows that tbe defendant regarded this as its duty and that it imposed it on tbe superintendent and foremen in charge of tbe work 'and required of tbem that they see to it that tbe tongs used were in a reasonably safe and proper condition for tbe purpose of carrying tbe billets in tbe operation of unloading tbem from cars and piling tbem in tbe yard. Tbe jury has found that tbe tongs used to carry tbe billets at tbe time in question were not reasonably safe for tbe purpose, on account of tbeir dullness and because of a break in one of tbe lips, that such defects were tbe proximate cause of the plaintiff’s injury, and that tbe defendant ought, in tbe exercise of reasonable care, to have discovered these unfit conditions of tbe tongs in time1 to have prevented ¿be injury. Tbe facts of tbe case differentiate it from those of which Grams v. C. Reiss C. Co. 125 Wis. 1, 102 N. W. 586, is an example, wherein tbe defect in tbe appliance complained of pertains to an incidental repair of appliances to be made by tbe injured servant or one of bis fellow-servants, and tbe case comes within tbe well established rule that tbe inspection of appliances is tbe employer’s duty, and if be does not exercise ordinary care in this regard be is liable for tbe damage caused thereby.

It is contended that tbe evidence shows that tbe plaintiff and bis fellow-servants were in a position to readily observe tbe condition of tbe tongs as to sharpness and fitness for tbe operation, and that they were supplied with another pair of tongs to be substituted by tbem in the' usual course of the operation of the business. This claim is not, as to the facts, in accord with the evidence. The findings of the jury that the plaintiff cannot be held, in the exercise of ordinary care, to have known of the defective condition of the tongs, ■ and that no want of ordinary care on plaintiff’s part contributed to the injury, also negative this contention. These findings are well supported by the evidence and free the plaintiff from fault. The claim that he and those working with him changed the tongs as part of their duty, whenever those in use became unsafe, is not what the evidence shows, for it appears that he and the other employees working on the ground were required to make such a substitution of tongs only when the foremen or the superintendent ordered this to be done in the course of their duty of inspection. This state of facts harmonizes with the findings of the jury on this question. These considerations negative all. of the propositions advanced by the appellant against the correctness of the rulings of the court in denying its motion for judgment in its favor.

We find no errors in the charge of the court to the jury; it correctly states the law applicable to the case and sufficiently informed the jury of the law governing the rights of the parties to enable them to resolve the litigated issues submitted to them.

The claim that the damages awarded by the judgment are so excessive as to call for a reversal thereof cannot be sustained. The jury fixed the sum at $7,500. The trial court found upon consideration that this exceeded the amount shown by the evidence and awarded judgment for $6,000. We do not consider this to be so excessive as to warrant interference therewith on appeal, and the judgment must stand.

By the Court. — The judgment appealed from is affirmed.

A motion for a rehearing was denied, with $25 costs, on January 28, 1913.