William Grace Co. v. Kane

Mr. Justice Adams

delivered the opinion of the court.

The contentions of appellant’s counsel are that appellant was not guilty of negligence, that appellee assumed the risk of the work, and that the court erred in the admission of evidence for appellee, and in refusal to take the case from the jury.

Appellee was employed by appellant January 13, 1904, after the appellant’s other employes had been working sometime in clearing away the wreckage. He worked all day on the 13th and worked a little more than an hour on the 14th, when the accident happened. He testified that Allen, who was foreman under the head foreman, Martin, told him to get a stone jack and jack out the header from a column; that the east end of the header was riveted to the column, but the west end was not; that it had been disconnected from the column at that end, and was loose and resting on the flange of the column, the column on which it was resting being flat on the ground, and that he, appellee, was using the jack to get it off the flange of the column, on which it had a bearing of about two inches, and that the header was up four or five inches from the ground; that he got the jack and placed it temporarily on top of the header, he being at one end of the header and one Walsh at the other, when he heard a crash and the header fell on his foot. It was between two of the south line of the forty-five foot columns where the accident occurred. Appellee testified that he was standing on the south side of the header and clear of it, that he thinks he was about two feet away from it, but it struck diagonally across the toes of his foot; that it struck the big toe, the one next to it, and half of the next one. It would seem from the evidence that appellee must have been mistaken in testifying that he was clear of the header, and about two feet away .from it, and that it lurched diagonally toward him. The header was only five or six inches above the ground and its east end was riveted fast to the column; therefore, when the west end fell from the flange of the column on which it rested, it would seem that it could not have moved at an angle, or, as plaintiff expresses it, diagonally,, but must have fallen perpendicularly, in which case it would not have fallen on appellee’s toe, had he been standing away from it. Appellee testified that he was a structural iron worker, had learned the trade, and had worked at it three years at the time of the accident, and Martin, the head foreman, testified that Allen, foreman under him, and all the employes, of whom there were ten or twelve, were structural iron workers. Appellee was employed to assist in the removal of the wreckage, and the order of Allen, his foreman, to get a stone jack and jack out the header from the'column was part of the work which he had been employed to do and which, by his contract of employment, he had undertaken to do. He testified: “In learning my trade I learned all the necessary parts of the trade, so as to follow the business of the work as a structural iron worker. I learned all the different departments where workmen in that line are supposed to work. I learned everything that was necessary to do the different kinds of work in the different departments that a journeyman structural iron worker has to work at. * * * I knew what the purpose was of wrecking this building. I knew we were to take the different pieces apart and clear the place away. There may have been ten or twelve of us. We were all structural iron workers.”

It was daylight all the time appellee was working up to the time of the accident. It thus appears from his own evidence that he knew what was to be done, what was being done, and the manner of doing it.

George B. Hayes, witness for appellee, testified that he and one McAuley were working one or two sections of twenty or twenty-two feet each east of where appellee was, and were engaged in separating the floor beams from a header; that the part where he was working was connected with the part where appellee was, and that the first floor beam, which witness and McAuley cut loose, fell east and knocked others over, and that moved all the iron enough to disconnect the header where Kane was. In other words, the iron, which was east of the header where appellee was and connected with it, fell east, and in falling drew east with it the header where appellee was, thus drawing the west end of that header off the flange of the column on which it had a bearing of two inches. Martin’s testimony is substantially the same as to the cause of the accident, so that it was caused immediately by fellow-servants of appellee, who were acting in the line of their duty and, apparently, without negligence.

In Gulf C. & S. F. Ry. Co. v. Jackson, 65 Fed. R. 45, the court say: “It frequently happens that men are employed to tear down buildings, or other structures, or to repair them, after they have become insecure; or it may be that the work undertaken by the employe is of a kind that is calculated to render the premises or place of performance, for the time being, to some extent insecure. In such cases as these the servant undoubtedly assumes the increased hazard growing out of the defective or insecure condition of the place where he is required to exercise his calling,” citing, among other cases, Armour v. Hahn, 111 U. S. 313. Appellee saw and must have known the conditions of the wreck when he undertook the work, or, at least, he had ample opportunity to observe and know such conditions, and risks incident to his employment were assumed by him. P. D. & E. Ry. Co. v. Hardwick, 53 Ill. App. 161; Richardson v. Anglo-American Provision Co., 72 ib. 77; Westville Coal Co. v. Milka, 75 ib. 638; Simmons v. Chicago & T. R. R. Co., 110 Ill. 340-347.

In the last case the court, quoting from 90 Ill. 334, say of a servant: “If he has full knowledge of all the perils of a particular service, he may decline to engage in it, or require that it shall first be made safe; but, if he does thus enter in it, he assumes the risk, and must bear the consequences. And in St. Louis & Southeastern Ry. Co. v. Britz, 72 Ill. 261, there was approval of the rule laid down in Wharton on Negligence, See. 214, that “when an employe, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if he is subsequently injured by such exposure.’ To the same effect are Clark v. Chicago, Burlington & Quincy R. R. Co., 92 Ill. 43, and Camp Point Manfg. Co. v. Ballou, 71 id. 418.”

Martin, the head foreman, testified that he instructed Allen, appellee’s immediate foreman, to guy the floor beams, in taking them down, and to take them clown one at a time, and on being asked, “How many guy ropes should there have been?” he answered over the objection of appellant’s counsel, “There should have been four at least.” A motion to strike out the answer was overruled by the court. Appellee’s counsel rely on Allen’s failure to obey this order, saying that “as a result thereof appellee sustained the injuries complained of.” In Simmons v. Chicago & T. R. R. Co., supra, there was evidence that there was a safer way to do the work than that adopted, in respect to which the court say: “If a servant knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.” 110 Ill. 347.

In view of this language, the evidence of Martin in regard to his directions to Allen was immaterial and irrelevant. The motion to take the case from the jury operated as a demurrer to the evidence, and the trial court, in passing on that motion, could have considered whether the evidence was or was -not competent.

Appellee’s counsel seem to rely somewhat on the doctrine that it is the duty of the master to furnish to the servant a safe place in which to work. That doctrine does not apply to a case like the present. Gulf, etc., Ry. Co. v. Jackson, 65 Fed. R. 48; Armour v. Hahn, 111 U. S. 313-318; 2 Bailey’s Pers. Injuries, sec. 3024; Western Wrecking Co. v. O’Donnell, 101 Ill. App. 492; Richardson v. Anglo-Am. Prov. Co., 72 ib. 77; Chicago Edison Co. v. Davis, 93 ib. 284.

Our conclusion, for the reasons stated, is that the court erred in overruling appellant’s motion to take the case from the jury. Therefore, the judgment will be reversed.

Reversed.