Baier v. Selke

Decision Date24 October 1904
PartiesBAIER et al. v. SELKE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Appellate Court, Second District.

Action by Fred Selke against Henry Baier and another. From a judgment of the Appellate Court (112 Ill. App. 568) affirming a judgment for plaintiff, defendants appeal. Reversed.Robert B. Mitchell, for appellants.

R. R. Tiffany and Eckert & McDonald, for appellee.

CARTWRIGHT, J.

Appellants, Henry Baier and William Ohlendorf, owned and operated a brewery at Freeport, and the appellee, Fred Selke, was employed by them as a brewer. On the fourth floor of the brewhouse there was a round iron tub six feet in diameter and about seven feet high, used for boiling rice. The tub was covered, and there was access by a door in the cover. In the center of the tub there was a vertical steel shaft running down through two floors to the main shaft, to which it was connected under the ceiling of the second floor by a clutch. Attached to the shaft in the tub there were iron arms, which revolved with the shaft to stir the rice while cooking. There were also two fixed crossbars and a steam pipe in the tub. It was the custom to clean the tub after it was used and just before using it again, and, in order to make it safe to go into the tub for that purpose, it was necessary to throw out the clutch at the bottom of the shaft, so that the shaft and arms would not revolve if the machinery should be started. Jacob Weber was the brewmaster, who made and tested the beer, and worked with the other men, and was also the foreman, with power to hire and discharge help. On the morning of June 18, 1902, the brewery was short of help, and the only men present were Weber and Selke and the engineer. Selke, who was working in the cellar, was directed by Weber to go up and clean out the rice tub. The clutch connecting the rice-tub shaft with the main shaft was not disconnected, as it ought to have been to have made the work safe. There were eight clutches in the brewery throwing into connection different parts of the machinery, and they were operated by any of the men employed. If any one found it necessary to use a part of the machinery, he would conuect it by the clutch, and the man who cleaned the tub usually attended to the clutch connecting that shaft with the main shaft. The machinery could not be stopped inside of the tub, the lever for throwing the clutch being downstairs. While Selke was working in the rice tub Weber, in doing his work, threw in a clutch which connected the main shaft with the engine, and, the shaft in the rice tub not being disconnected from the main shaft, it began to revolve. Selke made an outcry, and Weber immediately threw out the clutch, stopping the machinery, but Selke was severely injured. He brought this suit to recover damages for his injuries, and from a judgment in his favor for $1,000 an appeal was prosecuted to the Appellate Court for the Second District, where the judgment was affirmed.

The immediate cause of plaintiff's injuries was the act of Weber in throwing in the clutch connecting the main shaft with the engine while the rice-tub shaft was connected with the main shaft. Weber testified that he threw in that clutch and threw it out as soon as he heard plaintiff's outcry, and there was no dispute about that. There was no evidence, however, that the act of connecting the machinery was within the duties of the foreman or the authority conferred upon him by the defendants. On the contrary, the evidence was undisputed that whenever any of the men wanted to use a part of the machinery he threw in the clutch that would set it in motion, and disconnected it when he got throught. So far as appears, that act was the act of a fellow fellow servant of the plaintiff, for which the defendants would not be liable, and there was no evidence tending to prove the contrary. It did not pertain in any way to the duties of the foreman or to the exercise of authority by him, and the defendants were not in any manner at fault in respect to it.

There was evidence, however, tending to show negligence on the part of Weber for which the defendants would be held responsible. Plaintiff was an experienced brewer, who had been engaged in that business for eight or nine years, but he testified that, although he had cleaned the mash tub and kettles and other things about the brewery, he did not know anything about the rice tub; that he had never been in it, and that he did not know about the connection of the machinery to the rice-tub shaft. His testimony was that he had worked the lever controlling the power for the malthouse, but had never worked the clutch in question; that Weber directed him to clean out the rice tub; that he went to the tub and commenced to clean outside the door, when Weber said: ‘Don't make hocus-pocus outside; go right in; everything is ready;’ that plaintiff looked in, and Weber said: ‘Just go in; that don't bite you; the machinery don't start up there;’ that Weber said everything was all right in the rice tub; and that plaintiff went in and commenced to clean the inside of the tub, when the machinery started. This evidence tended to show a negligent and improper exercise of authority over the plaintiff by Weber, conferred upon him as foreman by the defendants. If Weber ordered the plaintiff into the rice tub with assurances of safety when the shaft was not disconnected, and the machinery was liable to be started with a certainty of injuring the plaintiff, the defendants would be responsible for the consequences, provided the plaintiff was ignorant of the danger and was himself in the exercise of ordinary care. There was a sharp and irreconcilable conflict in the evidence as to whether such an order was given, and whether Weber was guilty of any negligence in directing the plaintiff to clean out the tub. There was testimony that plaintiff said he forgot to throw out the clutch before going into the tub, and Weber contradicted him in respect to the alleged order. Weber's testimony was that he did not say any of the things which were attributed to him by the plaintiff, and he testified that he said nothing except to go up and clean the rice tub; that it was plaintiff's duty to throw out the clutch; and that the accident resulted from his neglect. There was some competent evidence offered in rebuttal affecting the credibility of Weber, and upon the face of the record the jury might have found either way on the question of the negligence...

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14 cases
  • Wilson v. Joe Boom Co., Ltd.
    • United States
    • United States State Supreme Court of Idaho
    • July 30, 1921
    ...... 372, 87 S.W. 12; Richstain v. Washington Mills Co., . 157 Mass. 538, 32 N.E. 908; Walker v. O'Connell, . 59 Kan. 306, 52 P. 894; Baier v. Selke, 211 Ill. 512, 103 Am. St. 208, 71 N.E. 1074; Kamp v. Coxe Bros. & Co.,. 122 Wis. 206, 99 N.W. 366.). . . While. the ......
  • Dales v. Chicago, Burlington & Quincy Railroad Co.
    • United States
    • Court of Appeal of Missouri (US)
    • December 14, 1912
    ...... have happened with another laborer having no authority, and. the master is not liable. Anderson v. Higgins, 122. Ill.App. 454; Baier v. Selke, 211 Ill. 512;. Fogarty v. Transfer Co., 180 Mo. 490; Railway v. Simmons, 11 Ill.App. 147; Railroad v. Goetz, 71. Ill.App. 414. ......
  • Belskis v. Dering Coal Co.
    • United States
    • Supreme Court of Illinois
    • October 11, 1910
    ......Baier v. Selke, 211 Ill. 512, 71 N. E. 1074,103 Am. St. Rep. 208;McMahon v. Chicago City Railway Co., 239 Ill. 334, 88 N. E. 223.        [92 N.E. ......
  • Chicago, R.I.&P. Ry. Co. v. Rathneau
    • United States
    • Supreme Court of Illinois
    • February 21, 1907
    ......Beidler v. King, 209 Ill. 302, 70 N. E. 763,101 Am. St. Rep. 246.        The case of Baier v. Selke, 211 Ill. 512, 71 N. E. 1074,105 Am. St. Rep. 208, is relied on by appellant in support of its objection to this instruction. In that case ......
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