Etc v. Clark

• Citation: 15 Bradw. 470,15 Ill.App. 470
• Parties: ERNST FANTER BY ETC.,v.EMERY CLARK ET AL.
• Decision Date: 31 October 1884
• Court: United States Appellate Court of Illinois

15 Ill.App. 470

15 Bradw. 470

ERNST FANTER BY ETC.,

v.EMERY CLARK ET AL.

Appellate Court of Illinois, First District.

October Term, 1884.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed November 11, 1884.

This suit was brought in the Circuit Court of Cook county by the plaintiff in error against the defendants in error, to recover damages for the loss of one of his hands while working at a planing mill in the defendants' furniture manufactory. The declaration avers in substance that the plaintiff, who was fourteen years old, was employed by the defendants to work in their manufactory, in which was a planing mill driven by steam; that by the terms of his employment, it was the duty of the plaintiff to perform such work as might properly be required of a boy of his age, and that it was the duty of the defendants to require of the plaintiff only such work as might reasonably and properly be required of him, with proper regard for his personal safety, etc.; that in disregard and violation of their duty, the defendants carelessly, negligently and improperly, and without due regard for the plaintiff's safety, directed and required the plaintiff to remove a splinter which obstructed the use of the planing machine, which was running at full speed; that the work of removing said splinter involved great danger and liability to accident to any one attempting to remove the same, and especially to one of no greater age and experience than the plaintiff; that while the plaintiff, being ignorant of the danger, in obedience to the direction and requirement of the defendants, and in the discharge of what he supposed was his duty, was in the act of removing said splinter, and was acting with all due care, etc., his right hand was suddenly jerked and drawn into contact with revolving knives, which were a part of said machine, and was cut off, etc.

The case was tried by a jury upon pleas of not guilty. At the conclusion of the plaintiff's evidence, the court, on motion of the defendants, directed the jury to render a verdict of not guilty, which they did. Judgment was rendered upon the verdict, and the plaintiff brought the case here by writ of error. The facts sufficiently appear in the opinion of the court.

Mr. JOHN MCGAFFEY and Messrs. RUBENS & AMES, for plaintiff in error; that the theory of respondeat superior applies, cited R. R. Co. v. Fort, 17 Wallace, 553; Mann v. Oriental Paint Works, 11 R. I. 152; N. & D. R. R. Co. v. Jones, 9 Heiskell, 27; L. & N. R. R. Co. v. Bowler, 9 Heiskell, 866; Grizzle v. Frost, 3 F. & F. 622; C. & N. W. Ry. Co. v. Bayfield, 37 Mich. 205; L. M. R. R. Co. v. Stevens, 20 Ohio, 415; C. & R. R. Co. v. Keary, 3 Ohio St. 201; Berea Stone Co. v. Kraft, 31 Ohio St. 287; C. & N. W. Ry. Co. v. Jackson, 55 Ill. 492; Lalor v. C. B. & Q. R. R. Co., 52 Ill. 401; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 307; C. & A. R. R. Co. v. May, 108 Ill. 288.Messrs. FLOWER, REMY & GREGORY, for defendants in error; cited C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302; Cooley on Torts, 562, 563; Wood's Master and Servant, § 438, p. 863; Malone v. Hathaway, 64 N. Y. 5-9; Flike v. B. & A. Ry. Co., 53 N. Y. 549; Corcoran v. Holbrook, 59 N. Y. 517; 2 Thompson on Negligence, 1028, 1030; Gartland v. T. W. & W. Ry. Co., 67 Ill. 498.WILSON, P. J.

It is unnecessary to review the evidence in detail, it being sufficient to say that it tended to prove all the material allegations of the plaintiff's declaration, and hence if our view of the law applicable to the facts which the evidence tended to prove be correct, the court below erred in directing the jury to find for the defendants.

It appears that the plaintiff was employed by the defendants to work on a planing machine in the defendants' furniture manufactory, and at the time of his being employed he was instructed to do whatever the person who fed the machine directed him to do. The machine was driven by steam power, and consisted of rapidly revolving knives, which dressed the lumber as it passed under them between rollers. The feeder who controlled the machine stood in front and passed the lumber through, while the plaintiff stood in the rear to receive it as it came through after having passed under the knives. On the day of the occurrence a sliver or chip became lodged between the irons of the machine near the revolving knives in such a way as to obstruct the operation of the machine. The feeder, without stopping the machine, directed the plaintiff to take the sliver out, which in obedience to the order he attempted to do, but did not succeed, and he informed the feeder that he could not get it out, whereupon the feeder came around to where the plaintiff was and ordered him peremptorily to pull the sliver out, in attempting to do which the plaintiff's hand was caught by the knives and cut off. The machine could have been easily stopped by merely casting off the belt by which it was driven onto a loose wheel or pulley. It further appeared that like obstructions to that which the plaintiff was required to remove were of frequent occurrence, and that the feeders of other similar machines in the same establishment were in the habit of stopping the machines by throwing off the belt whenever it became necessary to...