Chicago & A.R. Co. v. Maroney

• Decision Date: 22 December 1897
• Citation: 170 Ill. 520,48 N.E. 953
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. MARONEY.

170 Ill. 520

48 N.E. 953

CHICAGO & A. R. CO.

v.MARONEY.

Supreme Court of Illinois.

Dec. 22, 1897.

Appeal from appellate court, First district.

Action by Patrick Maroney against the Chicago & Alton Railroad Company. Judgment for plaintiff was affirmed by the appellate court (67 Ill. App. 618), and defendant again appeals. Affirmed.

James H. Teller, for appellant.

Willard Gentleman, for appellee.

This is an appeal from a judgment of the appellate court for the First district affirming a judgment in the sum of $2,500 entered in the superior court of Cook county in an action on the case brought by the appellee against the appellant company. The declaration charged that the appellee was engaged by the appellant company to work at his occupation as a brick mason, in the construction of a roundhouse in the city of Chicago, and that the scaffold prepared by the appellant company for the use of the appellee and other masons gave way, and precipitated them to the ground, a distance of 20 feet or more, whereby appellee received serious personal injuries. The first count of the declaration charged that the servants of the appellant company, not fellow servants of the appellee, so negligently and improperly built and constructed the scaffold that it was insufficient to support the weight of the workmen. The second count prefers the same charge of negligence, and specifically charged that the scaffold was built of poor, unsubstantial, and defective boards and timbers, and was not properly supported by braces or stays. The third count charged that the appellant company negligently caused the scaffold to be overloaded with workmen. The plea was ‘Not guilty,’ and a trial before the court and a jury resulted in a verdict and judgment in favor of appellee in the sum of $2,500.

BOGGS, J. (after stating the facts).

The errors assigned in this court are that the trial court erred (1) in denying the motion of the appellant company, entered at the close of all the testimony, to peremptorily direct a verdict in its favor; and (2) the court erred in its rulings in giving instructions for the appellee, and in refusing certain instructions asked by the appellant company. Counsel for appellant insists that the appellee, in order to recover, was required to establish three propositions, i. e.: (a) That the scaffold was defective; (b) the appellant company had notice thereof, or was chargeable with notice; and (c) the appellee did not know of the alleged defect, and had not equal means with the master of knowing. It is urged that there was no evidence tending to establish either the second or third propositions, and hence it is argued that the court erred in refusing to direct a verdict in favor of the appellant company. It will be observed that the position taken by counsel for appellant ignores the charge of the third count of the declaration. We find that that charge was not referred to in any instruction asked by either of the parties, and it is therefore apparent that the only issues which the evidence, in the opinion of the parties, justified them in presenting to the jury, were those arising under the first and second counts of the declaration. We may therefore assume that the appellant is warranted in ignoring in this court the charge of negligence preferred in the third count. We may then confine our attention, upon this branch of the case, to the pertinancy of the three propositions advanced by counsel for appellant. The evidence abundantly tended to establish the first of these,-that the scaffold was defective. Two witnesses, at least, testified that certain foot locks and braces intended to be used in the construction of the scaffold, and necessary to properly strengthen it, were not used, but were thrown upon the floor of the scaffold. The section of scaffolding which fell was put up on Saturday afternoon, and the evidence tended to show it was not used on that day. It gave way within a few minutes after the appellee and other workmen went upon it on the following Monday morning. We do not assent that it was requisite to a recovery that it should have been proven that appellant had notice, or was charged with notice, that the scaffold was unsafe or defective, as urged in the second proposition, or that appellee did not know, or had not equal opportunity with appellant of knowing, that the scaffold was unsafe or insufficient, as urged in the third proposition. It was the duty of appellant, as employer, to provide a suitable and safe place and appliances for appellee to work. Foundry Co. v. Van Dam, 149 Ill. 337, 36 N. E. 1024; Railroad Co. v. Godfrey, 155 Ill. 78, 39 N. E. 590;Hess v. Rosenthal, 160 Ill. 621, 43 N. E. 743; Cooley, Torts, 561. In this instance the scaffold was such place or appliance, which the appellant company was required to provide. It undertook to construct it, and the defect was in its construction. The fault was not latent in character, but, as the evidence tended to show, was the result of the negligent failure of employés of the appellant company to place in position certain foot locks or braces, necessary to support and strengthen the scaffold, which foot locks and braces had been supplied to be...