Gall v. Beckstein

• Decision Date: 21 April 1898
• Citation: 173 Ill. 187,50 N.E. 711
• Parties: GALL v. BECKSTEIN.
• Court: Illinois Supreme Court

173 Ill. 187

50 N.E. 711

GALL

v.BECKSTEIN.¹

Supreme Court of Illinois.

April 21, 1898.

Error to appellate court, First district.

Action by John Gall against Augustus C. Beckstein. Judgment for plaintiff, and defendant appealed to the appellate court, which reversed the judgment (69 Ill. App. 616), and plaintiff brings error to the supreme court. Affirmed.

William A. Doyle and James D. Andrews, for plaintiff in error.

Walker & Eddy, for defendant in error.

This was an action brought by John Gall against Augustus C. Beckstein to recover for an injury received while in the service of the defendant in unloading a truck load of salt. For several years before the accident, the defendant, Beckstein, had been engaged in the business of preparing sausage casings in Chicago. John Gall, the plaintiff, had been working for the defendant for about two years. John Freichl was employed as foreman in the factory. On the day of the accident, November 18, 1890, a truck load of salt, in barrels, was driven to the door of the factory, and plaintiff, Gall, was directed to unload the same. Gall commenced unloading the salt, and, after two or three barrels had been taken off the wagon, Freichl, finding that the work was not progressing as fast as he desired, went to the wagon to assist Gall in unloading the barrels. The barrels were open at the top. Gall took a position at the rear of the wagon on one side, while Freichl was standing opposite him at the other side; and, as the teamster rolled a barrel to the rear end of the wagon, the two took hold of it, and lifted it to the ground. After unloading three barrels in this manner, the fourth one in some manner slipped out of their hands, and fell on plaintiff's leg, producing the injury complained of. On a trial before a jury, the plaintiff recovered; but, on appeal to the appellate court the judgment was reversed, on the ground that the court erred in refusing to instruct the jury to find for the defendant. To reverse that judgment, plaintiff, Gall, sued out this writ of error.

CRAIG, J. (after stating the facts).

It is claimed in the argument that the appellate court had no right, under the authority of Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068, to consider the instruction of the defendant directing the jury to find for the defendant. We do not concur in that view. The defendant introduced no evidence, but, at the close of plaintiff's evidence, moved the court to find for the defendant. This motion the court denied, and defendant excepted. The defendant, in addition to the motion, asked the following instruction: (1) ‘The court instructs you that the evidence is insufficient to support the plaintiff's case as charged in the declaration. Therefore your verdict must be for the defendant.’ This instruction the court refused to give, to which refusal of the court defendant, by his counsel, then and there duly excepted. From the foregoing it is apparent that the ruling of the trial court in refusing to direct the jury to find for the defendant was properly before the appellate court. Moreover, the sufficiency of the evidence to support the action was a proper subject for the consideration of the appellate court; and, if that court found the evidence was not sufficient to authorize the judgment, it was the duty of the court to reverse on that ground, even if the circuit court had not been requested to instruct to find for the defendant.

It is, however, contended that there was sufficient evidence upon which a recovery might be had, and the appellate court erred in holding that the circuit court erred in refusing to instruct the jury to find for the defendant. It will not be necessary to refer to the evidence in detail. We will, however, refer to enough of the facts to show the situation of the parties, and their relative rights and duties. Beckstein, the defendant, owned the factory, and was the master. The plaintiff and Freichl were both employés in the service of the defendant, Freichl acting in the capacity of foreman. The two employés undertook to unload a truck load of salt, which was in barrels. The method adopted was, as appears from the evidence, the ordinary and usual method; and, if handled with care, there was no danger likely to result from the manner the barrels were lifted from the truck. After three barrels had been unloaded, in taking off the fourth it in some manner slipped out of the hands of the two parties, and fell on plaintiff; whether from the fault of the one or the other of the parties does not appear. Plaintiff made no complaint about doing the work with Freichl, nor did he find any fault in regard to the manner in which the work...