Great Atlantic & Pacific Tea Co. v. Indus. Comm'n

• Citation: 347 Ill. 596,180 N.E. 460
• Decision Date: 08 April 1932
• Docket Number: No. 20948.,20948.
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. INDUSTRIAL COMMISSION et al.
• Court: Supreme Court of Illinois

347 Ill. 596

180 N.E. 460

GREAT ATLANTIC & PACIFIC TEA CO.

v.INDUSTRIAL COMMISSION et al.

No. 20948.

Supreme Court of Illinois.

Feb. 19, 1932.

Rehearing Denied April 8, 1932.

Error to Circuit Court, Cook County; H. Sterling Pomeroy, Judge.

Proceeding for compensation under the Workmen's Compensation Act by Victor J. Sovinski, employee, opposed by the Great Atlantic & Pacific Tea Company, employer. An award of compensation by the Industrial Commission was confirmed by the circuit court, and the employer brings error.

Judgment reversed, and award set aside.Ashcraft & Ashcraft, of Chicago (Russell F. Locke, of Chicago, of counsel), for plaintiff in error.

J. S. Cook, of Chicago, for defendant in error.

DE YOUNG, J.

Victor J. Sovinski filed an application with the Industrial Commission in which he charged that he suffered an accidental injury while employed by the Great Atlantic & Pacific Tea Company, and by which he sought the adjustment of Compensation for the injury. Compensation was awarded by the arbitrator, the award was sustained by the commission, and the latter's decision was confirmed by the circuit court of Cook county. Upon the petition of the company this writ of error was granted.

The Great Atlantic & Pacific Tea Company, the plaintiff in error, occupies several floors of a building at Fifty-Seventh and Grove streets in the city of Chicago. On the second floor is a bakery sixty feet wide by one hundred fifty feet long, which contains two tray ovens and a traveler oven along the east wall. There are windows in the north, south, and west walls of the room, and these windows may be opened and closed by persons standing on the floor. Several small windows are placed in the east wall above the traveler oven and below the ceiling. To open one of these windows, a person is obliged to climb to the top of the oven on pipes attached to its side or on a coupling pinion which moves slowly in the process of drying the oven.

Sovinski, the defendant in error, was employed by the plaintiff in error as a baker. His duty was to place trays of dough in, and after baking to remove them from, the ovens. By the operation of the ovens, steam escaped into the room, and relief from the oppressive air was obtained by opening the windows which could be reached from the floor and by setting five exhaust fans in motion. Despite these facilities for ventilation, the defendant in error, on May 30, 1930, climbed to the top of the oven and tried to open one of the windows in the east wall by pushing it. The window had been painted early in the year, and the paint bound it. His right hand slipped and went through the glass, cutting his arm and wrist. The foreman had told the employees several times that they should not open the windows above the traveler oven. More recently the assistant superintendent had given the defendant in error a like injunction. The latter testified that, notwithstanding these instructions, employees occasionally opened some of the windows, and their disregard of the rules evoked the criticisms of the foreman and the assistant superintendent. The defendant in error had not heard that any such infraction resulted in the dismissal of the offending employee. The window at which he suffered the injury was never opened.

From the testimony of the superintendent, it appears that he had instructed the assistant superintendent and the foreman that no employee should open or close windows without instructions from the latter; that too much ventilation was injurious to the baking product; that it was not safe to climb upon the oven; and that for these reasons the windows above them were kept closed. The general foreman testified that he had charge of the ventilation of the bakery; that he opened and closed the windows in the north, south, and west walls; that he had never directed the defendant in error or any other employee to open the windows above the oven; that they had not been opened; that they were kept closed because opening them had an injurious effect on the fermentation of the bread; and that about twenty minutes before the defendant in...