Chalmers v. Schroeder
| Decision Date | 09 November 1896 |
| Citation | 45 N.E. 288,163 Ill. 459 |
| Court | Illinois Supreme Court |
| Parties | FRASER & CHALMERS v. SCHROEDER. |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Action by F. Schroeder against Fraser & Chalmers, a corporation. From a judgment of the appellate court (60 Ill. App. 519) affirming a judgment for plaintiff, defendant appeals. Affirmed.Walker & Eddy, for appellant.
McCracken & Cross, for appellee.
Appellee recovered a judgment in the circuit court of Cook county against appellant for $3,500 and costs of suit for a personal injury, which has been affirmed by the appellate court. The count in the declaration upon which the trial was had bases the right of recovery upon the allegation that defendants, being a corporation, owned and operated a certain crane used for moving heavy masses of iron and machinery, describing it; that at the time of the alleged injury plaintiff, with other servants of the defendant, were engaged in lifting a certain piece of machinery, weighing about 6,000 pounds; and that, while so engaged, one of the servants, in obedience to the order of the boss or foreman of the gang to stop the machinery, through incompetency and inexperience, so changed the gear of the windlass as to cause it to revolve backward with great force, striking and injuring the plaintiff, who was at the time working at one of the cranks by which the same was turned; the gravamen of the action being the inexperience and incompetency of the servant so changing the gear. The plea was not guilty. It appears from the record that about September 1, 1890, one Charles Blae, a laborer in defendant's employ, was ordered by its foreman to take men to assist him and remove from a wagon a casting of about the weight stated in the declaration. He took with him Charles Buchin, William Gors, and plaintiff, also laborers workingfor appellant. The crane used was so constructed that when in operation it could be changed to three different gears,-one called the ‘fast gear,’ used in moving light loads; another the ‘slow gear,’ used in moving heavier objects; and a third, to stop the windlass. It was changed from one of these to another by means of a lever moved by hand. If changed from the slow to the fast gearing while moving a heavy object, the tendency was to throw the cranks backward against the persons using them. At the time of this accident the slow gear was being used, and the casting had been lifted a few inches from the wagon, its entire weight being suspended from the crane. Plaintiff, Gors, and Buchin, were turning the cranks. Blae was on the wagon, superintending the work. He called out, ‘Stop the crane!’ Plaintiff testified that he ordered Buchin to move the lever. Blae denied that he told any particular one of the three men to stop it, but admitted giving the general order, and all agree that Buchin attempted to obey it, but so moved the lever as to throw it into the fast gear, instead of the proper one to stop the windlass, the result being that the crank at which plaintiff was working was suddenly thrown back against him, causing the alleged injury. The theory of plaintiff's case is that the defendant, by its vice principal, Charles Blae, ordered an incompetent, inexperienced co-employé (Charles Buchin) to operate the lever upon the crane, who, by reason of such incompetency, caused the accident. The gist of the charge is, not the retaining of a servant once competent, who subsequently became incompetent, but selecting and ordering one to do a certain act who was incompetent to perform that duty. The right of recovery upon this theory is not controverted by counsel for appellant, but they say: ‘Upon this theory the burden of proof was upon plaintiff in the trial court to establish the following propositions of fact: First, that Buchin, as a matter of fact, was directed by some one in authority, not a fellow servantof appellee, to move the lever; second, that his incompetency and inexperience were either autually known to appellant, or by the exercise of reasonable care could have been known to appellant; third, that appellee did not know, and could not have known by the exercise of ordinary care and observation, of the alleged incomeptency of Buchin; fourth, that the accident was the result of Buchin's incompetency.’ It is admitted that these questions of fact, in so far as their determination depends upon conflicting evidence, must be accepted by us as conclusively settled by the decisions below in favor of the plaintiff. Conceding, therefore, that the burden of proof upon each of the foregoing propositions was upon plaintiff, still, unless we can say the evidence, with all fair...
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