Chicago Hair & Bristle Co. v. Mueller

• Decision Date: 16 June 1903
• Citation: 203 Ill. 558,68 N.E. 51
• Court: Illinois Supreme Court
• Parties: CHICAGO HAIR & BRISTLE CO. v. MUELLER.

203 Ill. 558

68 N.E. 51

CHICAGO HAIR & BRISTLE CO.

v.MUELLER. ^*

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Action by S. Mueller against the Chicago Hair & Bristle Company. From a judgment of the Appellate Court (106 Ill. App. 21) affirming a judgment for plaintiff, defendant appeals. Affirmed.

F. J. Canty and J. C. M. Clow, for appellant.

Francis J. Woolley, for appellee.

BOGGS, J.

The action below was in case by the appellee against the appellant company to recover damages for a personal injury inflicted, as it was alleged, by the actionable negligence of the servants of the appellant company. Judgment in the sum of $6,500, awarded the appellee, was affirmed by the Appellate Court for the First District on appeal, and a further appeal in the same behalf has brought the case to this court.

The court refused to grant a motion, entered by the appellant company at the close of all the evidence, peremptorily directing the jury to return a verdict in its favor, and this action of the court is assigned as for error. The appellant company was engaged in the business of buying, baling, and selling hair and bristles. The hair was assorted according to quality, and pressed into bales, each of which was about 5 feet long, 3 1/2 feet wide, 2 1/2 feet thick, and of an average weight of about 500 pounds. The appellant company maintained a shed 140 feet long and 40 feet wide, covering a single large storeroom, in which the bales of hair were stored. In its length the shed extended from north to south, and it was provided with a large double door, 12 feet wide, at either side, making a passageway east and west through the building of the width of 12 feet. The bales of hair were piled in rows, six bales in height, reaching from either side of the passageway to the north and south ends of the building, leaving a passageway 12 feet in width through the shed from east to west. In forming these rows of bales it was the custom to begin either at the north or south wall, and to place the first bale in the bottom of the pile a distance of 21 inches, being half the width of the bale, from the wall. The bale in the next layer of bales in the row would be laid so as to overlap the last bale in the bottom layer about 3 1/2 or 4 inches, and the bale at the end of each successive layer of bales was so placed as to extend the same distance beyond the other toward the wall, until the last bale at the top of the pile would rest against the wall. A row of posts supporting the roof of the shed extended along the center of the storage room from north to south. Eight rows of bales could be piled on the floor of the building from east to west, four rows being on the east side of the posts and four on the west. These rows were numbered from 1 to 8, beginning at the east side of the shed or warehouse. On the day when the appellee was injured, the south end of the wareroom was full of bales of hair. The appellant company desired to remove from storage and ship a car of bales of a certain quality. The bales containing the hair of the quality needed were at the south end of rows 5 and 6, in the south end of the warehouse, and in order to reach them rows 3 and 4 were removed, making an opening to the passageway between the large doors at the center of the sides of the building. A switch track ran along the south end of the warehouse. There was a platform along the switch track at the southeast corner of the warehouse, from which a runway extended to the large door in the center of the east side thereof. Appellant's assistant foreman, Hermes, climbed to the top of rows 5 and 6, and proceeded to throw down upon the floor the bales that were to be shipped, and other employés of the appellant company would move them to the main passageway, where they were weighed and marked, and from thence other employés of the company trucked them along the runway and loaded them on the car. The appellee was in the employ of the appellant company to work in what is called the ‘hair field’-a place outside the shed or warehouse where the hair was received, assorted, and baled. On the day he received his injury he was transferred by the appellant company from the hair field, and ordered to wheel or truck the bales of hair that were to be shipped from the east door of the shed along the runway to the platform by the side of the switch. He worked there, trucking the bales, until about 3 o'clock in the afternoon of that day, when Mr. Sprafske, another of appellant's employés, who was engaged in moving the bales of hair which appellant's assistant foreman, Hermes, had thrown down from rows 5 and 6, at the south end of the warehouse, to the scales, fell sick, and appellee was ordered to take his place and do the work in which Mr. Sprafske had been employed. Appellee was engaged in this work until about 5 o'clock in the evening, when Hermes supposed a sufficient number of bales had been thrown down to fill the car. Hermes came down from the piles and went out to the car. Appellee and one Heinlein brought four or five bales to the scales, leaving two bales which had been thrown down by Hermes lying between the south wall of the warehouse and the south ends of rows 5 and 6 of the bales. Hermes, who was at the car, directed the appellee and Heinlein to go into the warehouse and bring those two bales. Weingart, chief foreman of the appellant company, reiterated the order. The appellee and Heinlein re-entered the warehouse, and went to the south end, brought out one of the bales, marked it, put it outside the warehouse, and went back for the other bale. The appellee took hold of the bale lying on the floor and placed it on its edge, when several bales from the end of row 6, which had been left there six bales high and overhanging the bottom bales a distance of some 21 inches, fell upon him and inflicted the injuries for which judgment for damages was awarded.

Counsel for appellant company do not contend that Hermes was not guilty of negligence in leaving row 6 with the topmost bale thereof overhanging the lower bales of the row, and also overhanging the two bales which he had removed from the rows and thrown down upon the floor; but their insistence is, that the court should have declared, as matter of law, that the appellant company was not liable to answer in damages to the appellee for three reasons, vix.: First, because, as they insist, Hermes, though usually, in the absence of Weingart, head foreman of the appellant company, a ‘sub-boss' and on many occasions exercising that authority, was on that day, Weingart being present, but a fellow servant of the appellee; second, that the negligence of Hermes was not the proximate cause of the injury, and hence not actionable, however negligent it might have been; and, third, the court should have directed a peremptory...