Gathman v. City of Chicago

• Decision Date: 26 October 1908
• Citation: 86 N.E. 152,236 Ill. 9
• Court: Illinois Supreme Court
• Parties: GATHMAN v. CITY OF CHICAGO.

236 Ill. 9

86 N.E. 152

GATHMAN

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Paul McWilliams, Judge.

Action by Ludwig A. D. Gathman against the city of Chicago. From a judgment of the Appellate Court (139 Ill. App. 253), affirming a judgment for plaintiff, defendant appeals. Affirmed.Edward J. Brundage, Corp. Counsel, and John R. Caverly, City Atty. (Edward C. Fitch and Charles B. Stafford, of counsel), for appellant.

Charles J. Trainor, for appellee.

This was an action on the case commenced by Ludwig A. D. Gathman against the city of Chicago and James O'Connor, in the circuit court of Cook county, to recover damages for a personal injury alleged to have been sustained by him while in the employ of the city of Chicago, through the negligence of the defendants. The plaintiff dismissed the case as to O'Connor, and thereafter there was a trial upon a declaration containing one count (to which the general issue was filed), which, in substance, charged that on January 10, 1901, the defendant the city of Chicago owned, controlled, and operated a certain bridge, known as the ‘Van Buren Street Bridge,’ in said city, and employed the defendant James O'Connor as a bridge tender thereon, and to have charge of the machinery and attachments of said bridge for the operation thereof, and to raise and lower the same; that on said day the plaintiff was also employed by the said defendant the city of Chicago as a machinist, and was by said defendant ordered to make certain measurements, and to perform certain work on the said Van Buren Street Bridge, and beneath and about the same; that while he was in the performance of said work, and at work beneath the bridge, the said defendants carelessly and negligently set the machinery of said bridge in motion, and that, while the plaintiff was exercising reasonable care for his own safety, because of the negligence of the defendants, he was caught between two heavy pieces of iron, and was greatly and permanently injured. At the first trial the jury returned a verdict, under the direction of the court, against the plaintiff, upon which the court rendered judgment in favor of the city, which judgment was reversed by the Appellate Court. 127 Ill. App. 150. Upon the second trial the plaintiff recovered a verdict for the sum of $5,000, upon which judgment was rendered against the city, which judgment has been affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.

The Appellate Court in its last opinion made the following statement of facts, which we find, from an examination of the record, to be substantially correct: ‘Appellee, at the time of his injury, had been in the employ of the city for a number of years in the bridge department, a subordinate department of the department of public works of the city. A Mr. Willman had immediate charge of the bridge department, under Patrick White, the superintendent of bridges, and had authority to give directions to appellee. January 10, 1901, Mr. Willman directed the appellee to go to the Van Buren Street Bridge, and take a measurement of the stroke of the arm of the heel lock when the bridge was stationary, and then the bridge tender would raise the bridge for him to take another measurement, so as to get the full stroke of the arm. The evidence tends to prove that, in order to ascertain the full stroke of the arm, it was necessary to take one measurement when the bridge was stationary and another when it was raised. Van Buren street lies east and west, and the bridge in question is across the Chicago river on the line of Van Buren street, and connects the part of the street east of the river with the part west of it, so that when it is closed it is a part of the street. The bridge is a rolling lift bridge, and is operated by machinery moved by electrical power. The machinery which operates the east part of the bridge is under the street on the east side, and that operating the west part under the street on the west side. The parts of the bridge each side of the center are operated separately by separate machinery, and each part requires a man to operate it, so that the operation of the bridge requires at least two men. There is a shanty at the southeast corner, and another at the northwest corner, of the bridge, in which are situated the appliances to turn on and regulate the power which moves the bridge machinery. When either part of the bridge is raised, the end next the approach to the bridge goes up. To take measurements as directed, it was necessary for the appellee to go beneath the part of the bridge which lay east of the center when the bridge was closed or stationary. James O'Connor was the bridge tender at the time of the accident, having been regularly appointed as such by the mayor of the city, with the concurrence of the city council. The actual work of operating the bridge was done by James O'Brien, who operated the part of it east of the center, and by James McDonald, who operated that part of it west of the center. These men were not employed or paid by the city, but were hired and paid by James O'Connor, the bridge tender. Patrick White, superintendent of bridges, testified that he ‘had authority, if he saw a man operating a bridge improperly, to discharge him, or make him leave that work: that it made no difference who he was, if he was doing something wrong, he could discharge him immediately.’ Appellee testified that after he was directed by Willman, as above stated, he went to the bridge, and into the bridgehouse on the east side, and told O'Brien that he was sent there to take a measurement; that he would take one measurement first, and then would signal him (O'Brien) that he had taken that measurement, and for him to lift the bridge, and then he would take the other, and when through would signal him to lower the bridge, and O'Brien said, ‘it was all right.’ The appellee further testified that after the conversation above mentioned, and four or five minutes before he went beneath the bridge, he went to the west side of the bridge, and talked with McDonald, and then went back to the east side and repeated to O'Brien what he had said to him before. McDonald, who operated the west side of the bridge, testified that plaintiff came to him about 10 o'clock, and said he wanted to take some measurements, and would want the bridge raised, and witness told him to notify the operator on the other side, and plaintiff said he would do so, and give that operator the signal when he was ready, and the arrangement was that plaintiff and his helper, James Burke, were to notify the operator on the east side of the bridge when they were ready to have that side raised, and that four or five minutes after plaintiff went underneath the bridge, witness was signaled from the east side to raise the bridge; that it was necessary for witness to raise his part of the bridge five feet to unlock the bridge, so as to allow the east half to be raised. It appears from the evidence that James J. Kennedy, a common laborer, who had been employed occasionally by McDonald and O'Brien to assist...