James S. Kirk & Co. v. Jajko

• Decision Date: 22 December 1906
• Citation: 79 N.E. 577,224 Ill. 338
• Court: Illinois Supreme Court
• Parties: JAMES S. KIRK & CO. v. JAJKO.

224 Ill. 338

79 N.E. 577

JAMES S. KIRK & CO.

v.JAJKO.

Supreme Court of Illinois.

Dec. 22, 1906.

Appeal from Branch Appellate Court, First District Court; M. Kavanagh, Judge.

Action by Joseph Jajko against James S. Kirk & Co. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Scott, C. J., and Cartwright and Carter JJ., dissenting.

E. J. Canty and George C. Preston (J. C. M. Clow, of counsel), for appellant.

E. W. Jaros and Douthart & Brendecke, for appellee.

HAND, J.

This was an action on the case commenced by the appellee, against the appellant, in the superior court of Cook county, to recover damages for a personal injury alleged to have been sustained by the appellee through the negligence of the appellant while in its employ. The declaration contained three counts. The general issue was filed, and, upon a trial, the jury returned a verdict in favor of the plaintiff for $3,000, upon which the court, after overruling a motion for a new trial, rendered judgment, which judgment has been affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.

The grounds of reversal urged in this court are the refusal of the court to take the case from the jury at the close of all the evidence, the giving to the jury of an improper instruction on behalf of the plaintiff, and the refusal to give an instruction to the jury offered on behalf of defendant. At the close of the evidence for the plaintiff, and again at the close of all the evidence, defendant offered an instruction directing the jury to find it not guilty, and the refusal of the court to give such instruction is assigned as error.

The defendant was engaged in the manufacture of soap, and the injury complained of was received by plaintiff while he and three other employés of defendant were engaged in unloading casks of tallow from a box car, which was to be used in defendant's soap factory. John Barry was foreman of the unloading crew. The car was filled with casks, and each cask weighed from 1,500 to 1,600 pounds, and was about 4 1/2 feet high and about 4 feet in diameter, and said casks stood in the car in such way that no space was left between them. The car door had been opened and skids placed on which to slide or roll the casks out when plaintiff was called by Barry to assist in unloading the car. Plaintiff, Barry, and two other men proceeded to take out the first cask that stood near the car door. The method employed in unloading the first cask was to raise one side of the cask from the floor by means of a crowbar, an iron roller 4 1/2 feet long and 1 1/2 to 2 inches in diameter was then placed under the cask, the cask was then so tilted that the weight was balanced upon the iron roller, and it as then moved forward to the door and placed upon the skids, when it was allowed to slide down to the ground. All four of the men participated in unloading the first cask. Thereafter Barry remained outside the car on the ground, while plaintiff and his two associates proceeded to unload another cask. The evidence tends to show that, after the three men went into the car for the purpose of unloading the second cask, the foreman directed the plaintiff and his associates to raise up the cask and put a block under the center of it, which appears to have been there for that purpose, with the direction to poise the cask on this block until the men could get out of danger and then allow it to tip over on its side. The block used for this purpose was a piece of wood about a foot long, five or six inches wide, and about 4 1/2 inches thick. After the cask had been placed on the block the foreman ordered Frank Barcella, an associate of appellee, to get up on the top of another cask and push with his feet against the one that was being moved while the plaintiff and Albert Groharski had hold of the cask pulling at it, in an effort to throw it down so that it could be rolled to the door and out of the car. The method of throwing the cask down was to push or pull it until one side of the chine of the cask would rest upon the floor while the opposite chine would be held six or eight inches above the floor by means of the block of wood, then by pushing or pulling the cask it would finally be brought to a position such that a slight force would hold it or throw it down. At the time of the accident plaintiff was standing very close to another cask and had only a small place in which to work. The cask that hurt him appears to have started over and to have come with such force that plaintiff and Groharski were unable to stop it, and it fell, striking plaintiff on the front of his body, inflicting serious injuries.

The declaration charged, in different counts, that the defendant ordered the plaintiff to perform the work in which he was engaged at the time he was injured in a negligent and dangerous manner, and without furnishing sufficient help to enable him to perform the work in the manner in which it was directed to be done in safety. It appears that the first cask was moved by placing it upon an iron roller, which was of sufficient length to reach across the barrel, and that the second cask, by the express direction of the foreman, was moved by placing under the center of the cask the block, which was of such size and shape that the cask, unless firmly held, would be likely to swerve and fall sideways, and that the first cask was removed by four men in...