Nelson v. Richardson

Mr. Justice Adams

delivered the opinion of the court.

Appellants’ counsel contend that the verdict is against the weight of the evidence; that the court erred in admitting evidence for appellees, and in giving instructions. The appellants’ intestate undertook to cross the revolving shaft where there was no-covering or bridge, although there were four bridges over which he might have safely crossed, one of them within twelve to fourteen feet from the place where he undertook to cross, and although he might have passed down the ladder from the vessel near to the foot of which there was a bridge over the shaft. We think it was clearly a question for the jury whether, under the circumstances in evidence, the deceased exercised ordinary care. Appellants’ counsel say, in their argument, that it by no means follows that the deceased was caught in the act of crossing; that he may not .have been crossing at all. It is averred in the declaration that Nelson was “passing along said dock and over said revolving shaft” when he was caught by the shaft, and we think the evidence fully sustains the averments. It was also a question for the jury whether appellees, having provided four bridges over the shaft, which could be safely crossed, were, or not, negligent in not inclosing the entire shaft. We think the evidence warrants the conclusions that the deceased was not exercising ordinary care at the time of the accident, and that appellees were not guilty of negligence.

Instruction 16 for appellees is as follows :

“ The court instructs the jury that if they believe from the evidence that the injury sustained by the plaintiffs’ intestate was purely accidental, then the jury should find the defendants not guilty.”

An accident, in legal contemplation, is that which happens without the fault of anybody. Interpretation of Mercantile Agreements, by John D. Wood, p. 347. But the' word is commonly used to denote what happens unexpectedly and without design, although it may be owing to the fault or neglect of some one; and we think the instruction open to criticism in omitting the element that an accident, in order to exclude liability of the defendants, must have been without their fault or negligence. Chicago v. Sheehan, 113 Ill. 658; Ill. Steel Co. v. McFadden, 196 Ill. 344, 352; Schneider v. Provident Ins. Co., 24 Wis. 28.

In view of the evidence on the record, we are of opinion that had a verdict been rendered finding the defendants guilty of negligence, it could not have been sustained; in other words, that substantial justice has been done, in which case an erroneous instruction is not sufficient ground for reversal. Lebanon C. & M. Ass’n v. Zerwick, 77 Ill. App. 491; I. & I. S. Ry. Co. v. Wilson, Ib. 603, 608, and cases cited.

We find no reversible error in other instructions objected to by appellants’ counsel, nor do we find any error in the court’s rulings on evidence. Appellants’ counsel, in their written motion for a new trial, specify, as one ground for the motion, that the special finding of the jury that N. Y. son’s death was caused by an accident which he could not have avoided by the exercise of ordinary care, is inconsistent with the general verdict of not guilty. We think the court might properly have refused to submit the special interrogatory to the jury. In Ill. Steel Co. v. Mann, 197 Ill. 186, the court say : “ A question for a special finding should be single and direct and relate to an ultimate and controlling fact in the case, and not to evidentiary facts, or facts from which the ultimate fact may be deduced by reason or argument,” citing Wolff Mfg. Co. v. Wilson, 152 Ill. 9. Appellants’ counsel say, in their argument: “ The effect of the special verdict is that intestate was not negligent.” This well illustrates the vice of the interrogatory and consequently of the special finding. The interrogatory does not call for the ultimate fact, namely, whether Nelson exercised ordinary care, but for a conclusion from which counsel seek by argument to deduce the corollary that Nelson exercised ordinary care.

In Pahlman v. Taylor, 75 Ill. 629, 638, the court adopted this rule:

“ If the special finding can, upon any hypothesis, be reconciled with the general verdict, the latter will control, and the court will not render judgment against the party who has the general verdict in his favor.”

It appears from the testimony of Anderson, witness for appellants and foreman for Johnson, Knudson & Co., that the latter firm was employed to do the work on the vessel, and that Anderson, as foreman of the firm, employed Nelson, took him to the vessel, instructed him as to rvhat was to be done and put him to work. It is suggested by appellees’ counsel, but not earnestly argued, that, on this state of facts, the appellees owed no duty to appellants’ intestate, and are not liable. The relation of master and servant, and the duty of the former in respect to the latter, depend on contract, express or implied. Cooley on Torts, 2d Ed., p. 43; 23 Am. & Eng. Ency. of Law, 2d Ed., p. 12, parag. 3.

“ He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will want represents, not merely in the ultimate result of work, but in all of its details.” 1 Shearman & Redfield on Negligence, 4th Ed., Sec. 160.

In the case at bar Johnson, Knudson & Co., by their foreman, selected Nelson, put him to work at the vessel, and had entire control of him and of the work. That firm was an independent contractor. 16 Am. & Eng. Ency., 2d Ed., p. 187. See also, Geist v. Rothschild & Co., 90 Ill. App. 324; West v. St. L., etc., R. R. Co., 63 Ill. 545; and Hale v. Johnson, 80 Ib. 185. We think the question whether the appellees owed such duty to appellants’ intestate as to create liability on their part for the alleged negligence a serious one, but do not find its decision necessary to the decision of this case.

The j udgment will be affirmed.