Holton v. Daly
| Citation | 4 Bradw. 25,4 Ill.App. 25 |
| Parties | CHARLES C. HOLTONv.MICHAEL DALY. |
| Decision Date | 31 March 1879 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding. Opinion filed May 2, 1879.
Mr. J. HENRY TRUMAN, for appellant; argued that a master is not liable for the negligence of a fellow servant engaged in a common employment, unless he has been negligent in the selection of the servant in fault, and cited Shearman and Redfield on Negligence, § 86; Honner v. Ill. Cent. R. R. Co. 15 Ill. 550; Ill. Cent. R. R. Co. v. Cox, 21 Ill. 20; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. C. & I. R'y Co. v. Troerch, 68 Ill. 548; St. L. & E. R. R. Co. v. Britz, 72 Ill. 256; Valtez v. O. & M. R. R. Co. 85 Ill. 500; T. W. & W. R. R. Co. v. Durkin, 76 Ill. 395; R. R. Co. v. Rush, 84 Ill. 570; C. & A. R. R. Co. v. Murphy, 53 Ill. 339.
Appellee was guilty of such negligence as will bar a recovery: St. L. & E. R. R. Co. v. Britz, 72 Ill. 256; C. & N. W. R. R. Co. v. Donahue, 75 Ill. 106; Foster v. R. R. Co. 84 Ill. 164; R. R. Co. v. Rush, 84 Ill. 570; Burling v. R. R. Co. 85 Ill. 19; Lovenguth v. City of Bloomington, 71 Ill. 238; Morris v. Gleason, 1 Bradwell, 510; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417.
Injuries caused only remotely by an act of negligence cannot be charged to the person in fault: Shearman and Redfield on Negligence, § 595; Schmidt v. Mitchell, 84 Ill. 195; 3 Parsons on Contracts, 177.
Messrs. SCATES & HYNES, for appellee; that the master is bound to furnish his employees with safe machinery, etc., cited T. P. & W. R. R. Co. v. Conroy, 68 Ill. 560; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; T. W. & W. R. R. Co. v. Fredwick, 71 Ill. 294; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; T. W & W. R. R. Co. v. Ingraham, 77 Ill. 309.
Where an employer places one servant under the direction of another, he is liable for an injury to the former caused by the negligence of the latter: Little Miami R. R. C. v. Stevens, 20 Ohio, 415; C. C. & C. R R. Co. v. Keary, 3 Ohio St. 201.
The question of contributory negligence is for the jury to decide, and their finding will not be disturbed: T. W. & W. R. R. Co. v. Moore, 77 Ill. 217.
This was an action on the case brought by appellee against appellant to recover damages for a personal injury received by appellee while working in the capacity of a machinist in the machine-shops of appellant. In the court below appellee recovered a judgment for $5,000 and costs.
The injury was occasioned by the bursting of a new emery-wheel which had just been set, and which appellee, in the performance of his ordinary duties, was using. One of the principal grounds upon which appellee bases his right to recover, is that the emery-wheel was imperfectly and improperly set, and that its bursting resulted from negligence in that respect. There was evidence introduced on the trial tending to show that the setting was done by three of the ordinary workmen in the shop, superintended and assisted by one Burkhardt, the foreman. It is not claimed that appellant had personally anything to do with setting it, nor does the evidence charge him with knowledge of any want of skill on the part of the foreman and other employees in the shop who did the work, nor with any want of care and diligence in the employment of competent servants. A leading question in the case, then, was whether the foreman and workmen who set the emery-wheel were fellow-servants with appellee, or whether, so far as they were employed in that particular work, they were engaged in a different line of service, so as not to be, in that respect, in a common employment with appellee. On this question appellant asked the court to give to the jury the following instruction:
“The jury are instructed, as a matter of law, that an employee is not entitled to recover damages of his employer for injuries sustained when such injuries result from the lack of skill of a fellow-employee, unless the employer, by the exercise of ordinary diligence, might have discovered such lack of skill.”
This instruction the court refused to give as asked, but gave it to the jury after having modified it so as to read as follows:
“The jury are instructed, as a matter of law, that an employee is not entitled to recover damages of his employer...
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