Illinois Steel Co. v. Schymanowski

Decision Date12 May 1896
Citation44 N.E. 876,162 Ill. 447
PartiesILLINOIS STEEL CO. v. SCHYMANOWSKI.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Action by Andreas Schymanowski against the Illinois Steel Company to recover for personal injuries. A judgment for plaintiff was affirmed by the appellate court (59 Ill. App. 32), and defendant appeals. Affirmed.Williams, Holt & Wheeler and E. P. Prentice, for appellant.

Brandt & Hoffmann, for appellee.

This is an action brought by appellee against the appellant company to recover damages for a personal injury. The trial below resulted in verdict and judgment for the plaintiff, which judgment has been affirmed by the appellate court, and the present appeal is prosecuted from such judgment of affirmance. The declaration consists of three counts. The third count alleges that: On January 18, A. D. 1892, the defendant was possessed of a large pile of ore, and was, in the nighttime, causing quantities of ore to be taken from said pile aforesaid, and conveyed elsewhere, and it was the duty of said defendant to have the sides of said pile of ore of such a shape, and so supported, that said ore would not fall down and injure the persons engaged in its removal as aforesaid; yet the defendant did not do its duty in this regard, but carelessly and negligently had and kept the sides of said pile of ore from which ore was being removed as aforesaid, so steep, unsupported, and overhanging that the under part of the same would not support the upper part of the same; and the plaintiff was in the employ of said defendant, and was then and there by said defendant, in the nighttime, set to work to assist in moving ore at said place in said pile of ore from which ore was being moved as aforesaid, and was by said defendant ordered to work at said place, and assist in moving said ore; and the plaintiff then and there, without fault or negligence on his part, being ignorant of the dangers of the place, obeyed the order of said defendant, and went to work at said place, assisting in moving ore from said pile, when, in consequence of the careless and negligent misconduct of the defendant aforesaid, a large quantity of ore fell from the upper part of said pile of ore to and upon the plaintiff there, and, without fault or negligence on his part, greatly bruised, wounded, and mangled him, etc. The second count is the same as the third, except that, in addition to the duty alleged in the latter count, it sets up the further duty of the defendant to have the place at said pile of ore, from which ore was being taken as aforesaid, well and sufficiently lighted, so that the persons engaged in removing said ore from said pile might safely perform their work, and see and avoid any danger which might threaten them in the prosecution of said work; and alleges that defendant had said place from which said ore was being moved as aforesaid poorly and insufficiently lighted, so that the persons engaged in removing said ore from said pile of ore could not safely perform their work, nor see nor avoid any danger which might threaten them in the prosecution of their work. The first count is the same as the second, except that it uses the words ‘carelessly, negligently, willfully, and wantonly,’ instead of the words ‘carelessly and negligently,’ and except that, in addition to alleging that plaintiff ‘was by said defendant ordered to work at said place, and assist in moving said ore,’ it makes a further allegation in the following words: ‘And the plaintiff then and there protested to said defendant against working with so little light, but said defendant insisted that the plaintiff should work at said place as it then was, and promised the plaintiff to furnish more light there within a short time thereafter; and the plaintiff then and there, without fault or negligence on his part, relying on said promise of said defendant, the night being dark and stormy, and the plaintiff being ignorant of the dangers of the place, obeyed the order of said defendant, and went to work at said place, assisting in moving,’ etc. The defendant, at the conclusion of the evidence, asked the court to give the following instruction: ‘The court instructs the jury that the first count of plaintiff's declaration alleges that defendant furnished insufficient light for plaintiff to work by; that plaintiff asked for additional light, and that defendant promised to furnish the same; that plaintiff, relying on that promise, returned to work; that defendant did not perform its said promise, and that by reason thereof plaintiff was injured. The court instructs the jury that no evidence has been offered to prove that defendant made any such promise as alleged, and that they will therefore find for the defendant upon this count.’ The court refused to give the instruction as thus asked, but modified it by inserting the words ‘that question’ after the word ‘find,’ in the last clause of the last sentence, so that the said last clause reads as follows: ‘And that they will therefore find that question for the defendant upon this count.’

MAGRUDER, J. (after stating the facts).

1. It is assigned as error that the court refused to instruct the jury to find for the defendant as it was requested in writing to do. We have often said that where there is evidence tending to establish a cause of action it is not error to refuse a peremptory instruction to find for the defendant. Syrup Co. v. Carlson, 155 Ill. 210, 40 N. E. 492. After a careful examination, we are unable to say that the evidence as given at the trial, with all the inferences which the jury could justifiably draw therefrom, was so insufficient to support a verdict for the plaintiff that the court would have been authorized in directing a verdict for the defendant. Foundry Co. v. Van Dam, 149 Ill. 337, 36 N. E. 1024. Appellant was engaged in the reduction of iron ore and the manufacture of iron and steel, at South Chicago, when the accident occurred which caused the injury to appellee. In the works of appellant at this time was a large pile of iron ore, several hundred feet long and about 75 feet high at the highest point. The ore on this pile was shot down with dynamite in the daytime by a gang of men. The ore, thus loosened and detached from the pile, and lying on the floor at its bottom, was put into ‘buggies,’ or wheeled vehicles, and taken to the furnaces. Appellee was a servant in the employment of the appellant company, and, on the night of January 18, 1892, he was engaged in loading the ore into the ‘buggies.’ Upon the night in question it was snowing hard. About 10 o'clock on that night, while appellee was thus at work at a mass of ore which lay upon the floor, a large piece of ore, about eight feet long and three feet thick, fell from the perpendicular part of the pile of ore, and crushed appellee's foot so as to permanently cripple him. The pile of ore, at the place where appellee was working, was perpendicular for a distance of from three to ten feet, and commenced to slope back at that distance from the floor. The ore was packed into such a solid mass that it required the use of explosives to loosen it. After it was shot down by dynamite, much of it was in large lumps, which had to be broken up by picks, before they could be handled. Appellee was not a member of the gang whose special business it was to loosen the ore by dynamite in the daytime. He had nothing to do with that part of the work. His business was to put the ore thus loosened from the pile and precipitated to the floor into the ‘buggies,’ and, when they were too large, to break them with a pick. The men worked wherever the ore shot down in the daytime lay upon the floor; and appellee, who had been engaged in this kind of work for about 18 days before the accident, was generally at work at a distance of from 7 to 10 feet from the edge of the pile of ore.

The evidence tends to establish the following circumstances: This night work was usually done by the light of torches. On the night in question, which was dark and stormy, appellee seemed to regard the light as insufficient, and went to look for the boss, and, finding him about 100 steps away, asked him for more light, or for ‘another light.’ The boss or foreman replied, ‘You God damned son of a bitch, you go to work!’ He then walked ahead of appellee to the place where the latter had been at work, and took up the pick, and put it into the ore, striking the pile a number of times where it was straight or perpendicular, and, according to one of the witnesses, loosening it. He then threw down the pick, and swore at appellee, and ordered him to work there. Appellee obeyed the order, and in a very short time after the foreman left the piece of ore already referred to, weighing several tons, fell from the perpendicular side of the pile, and injured appellee as stated. There was some evidence tending to show that the bottom of the pile of ore was loose, and, if this was so, it would be apt to follow that the lower part of the pile would not support the upper part.

Unquestionably it was the duty of the appellant company, when, through its foreman or superintendent or boss, it ordered appellee to work near or alongside of the pile of ore, to see to it that the pile was safe. Appellee had nothing to do with the construction of the pile, or with the loosening of its material by means of explosives. He knew nothing about its condition. A foreman in charge of workmen, and clothed with the power of superintendence, is bound to take proper precautions for the safety of the men at work under him. Where he puts men at work alongside of such a pile of ore as has been herein described, which must be shattered by dynamite in order to loosen its component parts, it is his duty to observe carefully the condition of its material as to looseness or compactness, and all other features of its structure, so that he may be enabled to determine what should be done to prevent...

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