Norton Bros. v. Nadebok

• Citation: 60 N.E. 843,190 Ill. 595
• Parties: NORTON BROS. v. NADEBOK.
• Decision Date: 19 June 1901
• Court: Supreme Court of Illinois

190 Ill. 595

60 N.E. 843

NORTON BROS.

v.NADEBOK.

Supreme Court of Illinois.

June 19, 1901.

Appeal from appellate court, First district.

Action by Emil Nadebok against Norton Bros., a corporation, for damages for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. S. Thompson and C. L. Jenks, Jr., for appellant.

James M. Sheean and J. W. Kaste, for appellee.

HAND, J.

This is an action on the case brought by the appellee in the superior court of Cook county against the appellant to recover damages for a personal injury sustained by him while in the employ of the appellant. The declaration consists of three counts. The first alleges that the defendant, which was engaged in the business of manufacturing tin cans, directed plaintiff to take cans from a machine known as a ‘body maker,’ which shaped the form of the can, to another machine, for completion; that the body maker was defective, in that cans would sometimes catch or stick therein, making it necessary for plaintiff to insert his hand in the machine and pull out the can so caught, and thus incur the risk of injury, all of which the defendant had knowledge of, and the plaintiff had not; that the defendant gave him no information as to the dangers incident to the use of the machine; that, a can becoming caught, plaintiff was ordered by his superior in charge of the machine, who was not his fellow servant, to take out the ‘catch’; that he attempted to do so, using due care, etc.; and that the machine descended without warning upon his hand, cutting off the little finger and otherwise injuring the hand. The second count alleges that at the time of the injury one Banning was in charge of the operation of the machine, and had the direction and control of the plaintiff, and was not his fellow servant; that, a can becoming caught in the machine, the plaintiff, pursuant to Banning's direction, and while in the line of his duty, inserted his hand into said machine for the purpose of removing the can which was caught, using due care, etc.; that, while plaintiff's hand was in the machine, Banning then and there negligently set the machine in motion, causing it to descend upon plaintiff's hand and injure the same, etc. The third count avers that, in the operation of the machine, cans frequently caught therein, making it necessary for the operator or his assistant to insert his hand into the machine to loosen or remove the can; that, because of there being sharp blades in the machine, near which the hand would have to be inserted, the duties of the persons so engaged were fraught with unusual danger; that it was the duty of the defendant, upon assigning an inexperienced person to such work, to fully instruct him, etc.; that the defendant wrongfully and negligentlyemployed plaintiff, a minor of 17 years, upon said work; that the plaintiff was without experience, and incapable, because of his years, of appreciating the danger of such employment; that the defendant failed to instruct him, etc., whereby plaintiff, in attempting to perform his said duties, and to take out a can which had become stuck, using the care and caution commensurate with his knowledge and appreciation of the danger, etc., had his right hand caught, and the finger cut off, etc. The defendant pleaded the general issue, and upon a trial before a jury there was a verdict and judgment for $1,000 in favor of the appellee, which has been affirmed by the appellate court for the First district. 92 Ill. App. 541.

At the close of the evidence for the plaintiff, and again at the close of all the evidence, the defendant made a motion to take the case from the jury, which motion was overruled by the court, and which action of the court is assigned as error. In this court, as in the appellate court, appellant seeks a reversal without remanding, and also, as in that court, makes but one point in argument, which, as summarized at the conclusion of its argument, is that Banning, in obeying whose orders appellee was injured, was the fellow servant of appellee, and that, in consequence of such relationship, appellant is not liable to appellee for Banning's negligence.

The appellant was engaged in manufacturing tin cans at its factory located in Maywood, Ill. One of its employés, by the name of Banning, was engaged in operating a machine known as a ‘body maker.’ He had charge thereof, starting and stopping it by means of a lever attached to a friction clutch connected with overhead shafting. He fed into the machine oblong pieces of tin, called ‘blanks,’ which were by the machine bent around a ‘horn,’ the sides hooked together, and thus formed into cylinders constituting the body of tin cans; hence the name of the machine, ‘body maker.’ The horn was at the back part of the machine, and Banning, when engaged in feeding in the blanks, stood or sat in front of the machine. The cylinder-shaped product of the body maker fell from the horn into a chute, and from the chute into a bin. The appellee was engaged in carrying these bodies in a basket to another machine, which soldered the side seams. One of the pieces of tin which Banning had fed into the body maker becoming caught in some way at or near the horn, Banning stopped the machine by means of the lever, and directed the appellee, who was at the rear of the machine, putting bodies into a basket, to take out the ‘catch,’ as pieces of tin which chanced to be caught in the machine were called. Thereupon appellee, while the machine was at rest, put his hand into it for the purpose of pulling out the catch; and then Banning, before appellee had withdrawn his hand, pulled the lever and set the machine in motion. Appellee's hand was caught and crushed between the horn and that portion of the machine which came up against it. There was a conflict in the evidence as to whether it was plaintiff's duty to pull out catches, the method of performing such duty, his proper position when at work, whether Banning had any authority over him, and what directions he received when sent to work. Appellee testified that on the morning of the day in which he was hurt he was first engaged in piling tin in another department, the foreman of which was one Magee; that Magee sent him to the body-making department; that there he was told to carry the cans from the body maker, which Banning was operating, to another machine, keep the operator of the other machine going, and to ‘hustle up’; that he had never worked at the body maker until the day he was injured; that several catches occurred, and Banning at each time of such occurrence told him to take the catch out; that on one of these occasions he said to Banning, ‘Why can't you take it out?’ to which Banning answered, ‘Take it out. You have got to do what I tell you.’ A number of witnesses on behalf of appellee testified that they had worked...