D. Sinclair Co. v. Waddill

• Decision Date: 19 June 1902
• Citation: 65 N.E. 437,200 Ill. 17
• Parties: D. SINCLAIR CO. v. WADDILL.
• Court: Illinois Supreme Court

200 Ill. 17

65 N.E. 437

D. SINCLAIR CO.

v.WADDILL. ^*

Supreme Court of Illinois.

June 19, 1902.

Appeal from appellate court, Third district.

Action by Andrew E. Waddill against the D. Sinclair Company. From a judgment of the appellate court (99 Ill. App. 334) affirming a judgment of the circuit court in favor of plaintiff, defendant appeals. Affirmed.

J. F. Canty and J. A. Bloomingston, for appellant.

James W. & Edward C. Craig, for appellee.

BOGGS, J.

The appellate court for the Third district affirmed the judgment entered in the circuit court of Coles county in the sum of $1,000 in favor of the appellee and against the appellant company, and the record is before us by a further appeal. The action was case, to recover for personal injuries received by the appellee while in the employ of the appellant in the capacity of a carpenter.

It is first complained that the court erred in overruling the motion entered by the appellant company at the close of all the evidence to peremptorily direct the jury to return a verdict of not guilty. We do not think the court erred in respect of this ruling. The appellant company was engaged in constructing cement bridges and culverts near Mattoon, under a contract with the Illinois Central Railroad Company. The appellee, a farmer, who at times also did carpenter work upon barns, cribs, etc., lived near there. He was employed by the appellant company to build a shed or building in which to store a quantity of cement, which the appellant company intended to use in the construction of bridges and culverts. The appellant company had shipped to the point on the track of the railroad where it was intended to put in a cement culvert some 75 to 100 bags of cement to be used in the work, and also some lumber and parts of a building that had been constructed and used at another point for the storage of cement. The Illinois Central Railroad had recently raised an embankment of earth to serve as a grade for a second track which it designed to lay just east of the original track of the road. The lumber and the cement before mentioned were unloaded from the cars upon this new embankment of earth. E. L. Searight was the manager or foreman in charge of the work for the appellant. The weather was threatening, and it was feared it would rain, and damage or destroy the cement, and Mr. Searight directed the appelpellee to build a shed or house in which to store it. The appellee had never before constructed such a building, and the evidence tended to show that he acted on the occasion in question, in the matter of constructing the building, wholly under the direction of Mr. Searight, who selected the site and directed the plan, and, in the main, the manner of the construction of the building. The building was about 9 feet east and west and 14 or 15 feet north and south. The western side was, under the direction of the foreman, made to rest on the new embankment or grade of the railroad, and the building projected eastward beyond the embankment 4 or 5 feet. There was evidence tending to show that Mr. Searight directed the appellee as to the size of the planks or timbers to be used in constructing the foundation of the eastern side of the building,-that which projected beyond the embankment,-and also the pieces of lumber to be used to support that side of the building. A portion of the lumber which had been used by the appellant company in another cement building was among that directed to be used in the construction of the shed or building in question. When Mr. Searight returned from dinner the framework of the shed or building was up, the floor laid, and the building partly inclosed at the sides. He deemed it important, in view of the probability of rain, that the cement should be under shelter as soon as possible, and directed the appellee to proceed and put on the roof of tar paper. The roof was a shed roof, and sloped from the west to the east. While the appellee was on top of the structure, engaged in nailing or tacking down the roof of tar paper, Searight set a force of men at work to move the cement under the shelter of the roof, though the sides of the building were unfinished. The cement was in bags containing about 100 pounds each. While so engaged, and before they had brought all of the bags of cement from the embankment into the building, the house or shed fell to the east, and the appellee fell with it and was injured thereby. The shed was made under the direction of the foreman of the appellant company, and according to his plan and instructions. He knew the purpose for which it was intended to be used, and had experience and superior knowledge to that possessed by the appellee as to the strength required in a structure to be used for that purpose. The material to be used in its construction was selected and furnished by ...