Citation Numbers: 102 Ill. App. 141
Judges: Adams
Filed Date: 5/22/1902
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court.
The contentions of appellant’s counsel are, substantially, that the evidence does, not support the declaration; that the scaifold is not shown to have been defective; that it was lengthened by the deceased, without authority, thereby weakening it; that the deceased knew of the defect and appellant did not and was not bound to repair it, and that the deceased was guilty and appellant not guilty of negligence.
In both counts of the declaration it is averred that appellant was possessed of and owned the scaffold, and appellant’s contention is, that the evidence shows that appellant did not own it, and therefore the declaration is not supported by the evidence. The theory of counsel is that to entitle appellee to recover, he was bound to prove not only that appellant was in possession of the scaffold, but that he in fact owned it. This theory is erroneous. If the scaffold was in appellant’s possession, as the evidence proves it was, and he furnished it to appellee’s intestate to work on, which the evidence shows he did, it is immaterial whether he had, or not, legal title to it. McBeath v. Rawle, 93 Ill. App. 212.
A plaintiff is not necessarily bound to prove all the averments of his declaration. If he proves substantially enough of the averred facts to warrant a recovery, it is sufficient. The evidence on which the objection is based is substantially as follows: The appellant testified that the scaffold was'not his; that he did not know where it came from; that he had in his basement only two scaffolds that he knew of, one a twenty-four and the other a twenty-two feet scaffold, and that prior to the accident the twenty-two feet scaffold had disappeared (the inference being that in some way it had been exchanged for the twenty-four feet scaffold in question), and that he did not see the scaffold in question till after the accident. This last testimony is evidently a mistake on appellant’s part, because he testified on cross-examination, that June 9th he saw the scaffold taken out of his basement. That the scaffold had been in his possession and was in the basement of the house in which he lived prior to the accident, and had been used by his employes on two different jobs of painting, one of them more than two weeks prior to the accident, is shown by the evidence. It also conclusively appears from the evidence that the scaffold was furnished by appellant. Nelson, who, with the deceased, ivorked on the scaffold June 9th, testified that appellant told him and the deceased to get scaffolding out of the basement. Appellant testified that he told the men to get their materials and go to work; to get the scaffolding for the job; that he did not say where the scaffolding was; that the men, Eelson and Schanne, knew; that Eelson had worked for him twelve years and Schanne from early in the spring of that year. This was equivalent to telling the men to go to the basement and take any scaffold there, and they, on receiving such directions, had the right to assume, and apparently did assume, that the scaffolds in the basement were reasonably safe. The law that the master is bound to exercise reasonable care to furnish his servants with reasonably safe appliances, is too well established and too familiar to require citation of authorities. What is reasonable care in the particular case depends on the circumstances of the case, and it would seem that very great care should be required in the furnishing of scaffolds for men to work on, suspended at a great height from the ground.
In the case of carriers of passengers on passenger trains extraordinary care is required; and it would seem that like care should be required in furnishing scaffolds to be used as was the one in question. It was the duty of appellant, before directing the men to take a scaffold from his basement, to know what scaffolds were there, and to exercise reasonable care to ascertain that they were reasonably safe for the intended use. This duty he could have readily and conveniently performed, as the scaffolds were in the basement of the house in which he resided.
Appellant, after testifying that he had caused an inspection of scaffolds in his basement February 24, 1897, nearly one year and four months before the accident, and none after that up to the time of the accident, testified:
“ I do not know how long I had this staging in question in my possession. I am sure it was not in my possession when I had this inspection. If we had seen that iron land, we would have thought it needed repairing I
Heide, witness for appellant, testified that ten weeks before the accident he saw the scaffold in appellant’s basement. Can it be doubted that if he had carefully inspected the scaffold he would have seen the iron band? But it is contended that the deceased xyas guilty of negligence which precludes a recovery, in lengthening the scaffold, in not testing it, and in not heeding the warning of Heide. Also that he had equal opportunity with appellant to know its condition. The stringers of the ladder or scaffold broke. The plank by means of which the scaffold was lengthened did not break, nor does it appear from the evidence that it was not securely bound to the twenty-four feet scaffold. It certainly can not be said, as matter of law, that the deceased was guilty of negligence in lengthening the scaffold. This was a question for the jury. Bichard Heide helped Kelson and Schanne to take the scaffold from the basement June 9th, and testified that he told the men that he would not trust that stage very much; that this was all he said, and that no one said anything back; that when he said this he was at one end of the scaffold, Schanne at the other end and Kelson in the middle. Kelson testified that he did not remember having ever heard Heide make such remark as the latter testified to. It was clearly a question for the jury whether the remark was made, or whether, if made, the deceased, who was further from Heide than Kelson, heard it. The deceased had the right to assume that appellant had done his duty; that he had exercised reasonable care to see that the scaffolds in his basement were reasonably safe and in proper condition. C. & A. R. R. Co. v. Maroney, 170 Ill. 520.
It was not incumbent on the deceased, when ordered to take a scaffold from the basement and to go ahead with the work, to test or particularly inspect the scaffold, he not having actual knowledge of any defect in it. (Ib. 524.) There is evidence to the effect that the top of the scaffold was covered with paint, and that the defect in it could not be discovered except by careful inspection. That the scaffold was defective is proved by the evidence, and that its condition could have been discovered by reasonably careful inspection, is a conclusion warranted by the evidence.
We find no error warranting a reversal in the giving or refusal of instructions. Instructions, the refusal of which is complained of, are substantially included in instructions given.
The judgment will be affirmed.