Hartrich v. Hawes

• Decision Date: 24 April 1903
• Citation: 67 N.E. 13,202 Ill. 334
• Parties: HARTRICH et al. v. HAWES.
• Court: Illinois Supreme Court

202 Ill. 334

67 N.E. 13

HARTRICH et al.

v.HAWES.

Supreme Court of Illinois.

April 24, 1903.

Appeal from Appellate Court, Fourth District.

Action for personal injuries by George Hawes against Eugene Hartrich and others. From a judgment of the Appellate Court (103 Ill. App. 433) affirming a judgment for plaintiff, defendants appeal. Affirmed.

Davison & Isley and Shamhart & Williams, for appellants.

Fithian, Kasserman & Fithian and James W. Gibson, for appellee.

The following statement of facts in this case is made by the Appellate Court in their opinion deciding the case:

‘Appellants operated a large sawmill, employing 15 to 20 hands. Appellee had been in their employ for two or three years as a common laborer or ‘roustabout,’ as he terms it, doing whatever he was ordered to do. At the time of his injury appellants were not at the mill. There is a conflict in the evidence as to whether, in the absence of appellants, there was any foreman, or employé authorized to give orders. If there was any such, it appears to have been one Sam Frauli. Appellee testifies: ‘Mr. Frauli was the foreman when they [the defendants]wasn't here; he was the head sawyer.’ Frank Bagwell testifies: ‘Guess Frauli was running the planer that day; neither of the defendants was there; guess Frauli was acting as foreman.’ Charles Sanger testifies: ‘Starks had authority to direct the hands. Frauli did for some time, if there was nobody else there, and somebody had to; I suppose that he had authority.’ It appears that Starks was not there on the day of the accident. Appellants denied that Frauli had authority to act as foreman, but the evidence indicates that he had charge of affairs when the accident occurred.

‘Some of the machinery of the mill was below its floor. A part of it was shafting and a belt 36 feet long, on pulleys operating an elevator to clear away the sawdust as it accumulated. This belt was old, pieced, spliced, raveled, and unsafe, and had been so for a considerable space of time. There is ample evidence, from the circumstances detailed, from which to infer that appellants knew, or ought to have known, of its condition. Appellee also knew that it was pieced and spliced, but testifies that he did not know before the time of his injury that it was so much raveled. It frequently slipped off the pulleys. When this occurred, some one would give notice by crying ‘Elevator,’ when it would be replaced, sometimes by one, and sometimes by another, employé. Appellee had replaced it at different times. Upon the day in question the cry of ‘Elevator’ was given, and appellee went down to see what was the matter. He found the belt broken, and came back and reported to Frauli, who, with appellee, went down to mend it. As we understand from the evidence, the belt was off the pulleys and resting on the shaft, and when appellee brought two ends together and was holding them, while Frauli was commencing to splice the ends, a raveling of the belt caught on the shaft, and the belt was started in motion, drawing both of appellee's hands around the shaft, and so crushing them and his forearms that both arms had to be amputated a few inches below the elbow. The trial resulted in a verdict and judgment against appellants for $1,250.'

An appeal from the judgment so rendered was taken to the Appellate Court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, C. J. (after stating the facts).

At the close of all the evidence, the appellants requested the court to instruct the jury to find for defendants, and submitted a written instruction to that effect. This instruction was refused, and its refusal is assigned for error. Where there is evidence fairly tending to prove the plaintiff's cause of action, the jury should not be instructed to find for the defendant. Chicago and Alton Railroad Co. v. Murphy, 198 Ill. 462, 64 N. E. 1011;Chicago and Alton Railroad Co. v. Corson, 198 Ill. 98, 64 N. E. 739;O'Fallon Coal Co. v. Laquet, 198 Ill. 125, 64 N. E. 767;Street's Stable Car Line v. Bonander, 196 Ill. 15, 63 N. E. 688;Consolidated Coal Co. v. Lundak, 196 Ill. 594, 63 N. E. 1079. The evidence in the case at bar fairly tends to prove that the appliance in use at the time of the injury was defective, that the appellants had notice of its defective condition, and that the appellee, while he may have had knowledge of the existence of the defect, did not know of its dangerous character. The ground upon which appellants claim that there was no evidence to sustain the verdict is that, according to his own testimony, the appellee knew of the defective condition of the appliance. In making this contention, however, the appellants ignore the evidence tending to show that appellee was ignorant of the dangerous character of the defect which existed. Upon this subject the Appellate Court say: ‘In the case at bar, the question as to whether appellee, knowing that the belt was defective, knew the danger therefrom when it was not running, and in process of repair, was a question directly and peculiarly for the jury to answer. The defects in the belt made it liable to break. Appellee may have known this. But the breaking of the belt wat the indirect. not the direct, cause of his injury. When appellee was holding the belt for Frauli to splice, it was not running. The jury may have believed that a common laborer or ‘roustabout’ did not appreciate the danger of a motionless, dismounted, broken belt, resting upon a shaft, being caught on the shaft by a raveling of the belt, and made dangerous in this way. If the danger was apparent, it is fair to presume that Frauli, the head sawyer, and to some extent at least in charge during the absence of appellants, and who was with appellee, would have stopped the engine while they were repairing the belt, as he did stop it immediately after appellee was caught. It was for the jury, under all these conditions, to say whether appellee knew the risk incurred, and whether the danger was so apparent that no man of ordinary prudence would have incurred it.' Graver Tank Works v. O'Donnell, 191 Ill. 236, 60 N. E. 831. It follows that, there being evidence tending to establish the cause of action, it was not error to refuse the peremptory instruction asked by the appellants.

Appellants complain that the court erred in modifying certain instructions asked by the appellants, and giving them as so modified, instead of giving the instructions as they were originally framed by the appellants. The instructions as originally drawn were based upon the theory that appellee was not entitled to recovery if he had knowledge of the defect in the instrument or appliance which caused the injury, without reference to the question whether or not he had knowledge of the apparently dangerous character of the defect. The rule is that, where the servant is injured while obeying the orders of his master to perform work in a dangerous manner, the master is liable, unless the danger is so imminent that a man of ordinary prudence would not incur it. Offutt v. World's Columbian Exposition, 175 Ill. 472, 51 N. E. 651. The modification made in the instructions was to the effect, in substance, that where a person suing for personal injuries knows the condition of the appliance by which he is injured, and which he has used prior to the time of his injury, it is a question of fact for the jury to determine whether the danger from the use of the appliance was so imminent and apparent that no man of ordinary prudence, having knowledge of it, would incur it. Graver Tank Works v. O'Donnell, supra. There was no error in the modification thus made of the instructions so asked by the appellants.

In Consolidated Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162, we said (page 625, 146 Ill., page 164, 35 N. E.): ‘It is when the servant works with defective machinery, knowing it to be defective or dangerous, that he assumes the risks incident to its use. Not only the defects, but the dangers, must be known to him.’

In Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876, we said (page 459, 162 Ill., page 879, 44 N. E.): ‘Undoubtedly the general rule is that an employé, who continues in the service of his employer after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect. But this rule is subject to qualification. In the first place, there is a distinction between knowledge of defects and knowledge of the risks resulting from such defects. The servant is not chargeable with contributory negligence if he knows that defects exist, but does not know, or cannot know by the exercise of ordinary prudence, that risks exist. Cook v. St. P., P., M. & M. Ry. Co., 34 Minn. 45 ;Consolidated Coal Co. v. Haenni, 146 Ill. 614 .’

In Union Show Case Co. v. Blindauer, 175 Ill. 325, 51 N. E. 709, we again held that, when the servant works with defective machinery, knowing it to be defective or dangerous, he does not assume the risks incident to its use, unless not only the defects, but also the dangers, are known to him.

In Chicago and Eastern Illinois Railroad Co. v. Knapp, 176 Ill. 127, 52 N. E. 927, we again said (page 129, 176 Ill., page 927, 52 N. E): ‘To charge an employé with negligence in using a machine or appliance known by him to be defective, it must also be shown that he knew the defect rendered its use dangerous.’

In Swift & Co. v. O'Neill, 187 Ill. 337, 58 N. E. 416, in discussing the question whether a servant is barred of a right of recovery for injuries incurred by working in an unsafe place or using appliances known by him to be defective, on the ground of assumed risk, we said (page 344, 187 Ill., page 418, 58 N. E.): ‘Hence, although he may know of the defects, yet unless, under all the facts and circumstances of the case, it can be said he knew of the extent...