East St. Louis Ice & Cold Storage Co. v. Crow

Mr. Justice Scofield

delivered the opinion of the Court.

Appellant, through its foreman, John Sheehan, ordered appellee and others to unload a barge, lying on the east side of the Mississippi river, in the city of East St. Louis.

The barge, except as to the hatchways and a narrow passageway at the edge of the deck, was covered with rock. Hear this passageway, on the north third of the barge, was a hole, from a foot to a foot and a half square, which was also exposed. Appellee, with his back toward the hole, had lifted a rock preparatory to throwing it overboard, when he stepped into the hole and fell with the rock upon his bowels.

He sustained serious injuries, some of which are probably permanent. He recovered a judgment for §2,000.

Appellant contends that it is not responsible for the injuries to appellee, for the reason that the barge was owned by the Grafton Quarry Company, and ivas being used by that company for the purpose of delivering rock to appellant. But appellee was the servant of appellant, and not of the Grafton Quarry Company, and received his injuries while acting for appellant and under its orders in unloading the barge. In such a case, it is not a defense to show that the barge was not appellant’s property. Sack v. Dolese et al., 137 Ill. 129; O. & M. Ry. Co. v. Wangelin, 43 Ill. App. 324.

It is urged that appellee’s opportunity to learn the condition of the barge was, at least, equal to appellant’s, from which it is said to follow that the latter should not be charged with a greater degree of negligence than the former, and consequently should not be held answerable in damages for the accident. We do not agree with appellant in this view of the evidence. We think the jury were justified in finding from the evidence that appellant was guilty of negligence causing the injury, and that appellee was, at the time, in the exercise of ordinary care.

Appellant’s superintendent was on the barge on the day before the accident, assisting in the measurement of the rock. If he had been as careful for the well being of the employes of the company, as he was to prevent an overcharge for rock, he would have examined the deck and would have discovered this hole. He said he saw no openings in the deck but the hatchways. This being true, he could not have made an examination to ascertain the condition of the deck.

Appellee did not see the hole when he went upon the barge on the following day. In obedience to the order of appellant’s foreman, he began throwing rock overboard. He had no time for the examination of the barge. He had a right to assume that it was in a reasonably safe condition. Hence, we conclude that the jury were justified in finding appellant guilty, and appellee not guilty, of negligence.

Only one instruction was given for appellee and this is criticised. The first clause of the instruction is as follows : “ A corporation is bound to exercise reasonable care to furnish a safe place in which it requires its servants to work.” It is said that the use of the word corporation is sufficient to render the instruction “ eminently invidious and unfair.” True it is that a corporation is not required to use a greater degree of care for the safety of its employes than would be exacted of an individual under the same circumstances. But we can not believe that the verdict would have been for a less amount, or in favor of appellant, if the obnoxious word had not been used.

In other words, we think that the statement that a corporation is bound to exercise reasonable care, while not to be commended, was not productive of injury to appellant’s case under the circumstances.

It is also said that this instruction required the company to furnish an absolutely safe place for its servants to work in. This is a misconception of the meaning of the language of the instruction. To say that appellant should “ exercise reasonable care to furnish a safe place,” is equivalent to saying that appellant is required to furnish a “ reasonably safe place.” These two forms of expression are used indifferently and interchangeably, in many well considered cases in the Illinois Reports, the first occurring in one part of an opinion, and the second in another part of the same opinion. See C., R. I. & P. R. R. Co. v. Lonergan, 118 Ill. 41, and C. & A. R. R. Co. v. Kerr, 148 Ill. 605; 35 N. E. Rep. 1117.

The following quotation from the opinion . in the Lonergan case sufficiently illustrates what has been said : “ It is also a well settled proposition in this and in the courts of other States, that a railroad company is not bound to furnish absolutely safe machinery for its employes. The law imposes upon the company the obligation to use reasonable and ordinary eare and diligence in providing suitable and safe machinery, tracks and switches, engines, etc., for the use of those engaged in its service. The machinery and other devices furnished the employe in operating the road, are not required to be the best, or the most improved kind, or to be absolutely safe. It is sufficient if the same are reasonably safe.” In our opinion, the expressions italicized in the above quotation, mean practically the same thing, and either of them may be properly used in an instruction in a case like the one at bar.

We find no error in the refusal or modification of appellant’s instructions. The damages are not excessive. The judgment is affirmed.