John S. Metcalf Co. v. Nystedt

• Decision Date: 16 June 1903
• Citation: 203 Ill. 333,67 N.E. 764
• Parties: JOHN S. METCALF CO. v. NYSTEDT.
• Court: Illinois Supreme Court

203 Ill. 333

67 N.E. 764

JOHN S. METCALF CO.

v.NYSTEDT.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Action by John Nystedt against the John S. Metcalf Company. From a judgment of the appellate court (see 102 Ill. App. 71) affirming a judgment for plaintiff, defendant appeals. Affirmed.Walker & Payne, for appellant.

Deneen & Hamill, for appellee.

HAND, C. J.

This is an action on the case, brought by appellee against appellant in the superior court of Cook county to recover damages for a personal injury sustained by him while in its employ. The declaration upon which the case was tried contained nine counts, each of which alleged, in substance, that the appellant was engaged in erecting a grain elevator in the city of Chicago; that the appellee was in its employ; that he was ordered by the foreman of appellant to work upon a platform supported in one of the bins of said elevator, 60 feet above the ground; that it was the duty of the appellant to furnish him a reasonably safe place upon which to stand while at work; that it neglected so to do, and knowingly furnished him an unsafe and insecure place upon which to stand while at work; that while he was standing thereon, in obedience to the order of said foreman, with all due care for his own safety, a lug upon which the platform rested broke, and the platform fell, and he was precipitated to the bottom of the bin and injured. The general issue was filed, and a trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the appellee for the sum of $5,000, which has been affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.

It is first assigned as error that the court erred in overruling a motion for a continuance made by the appellant shortly before the case was called for trial, on the ground of the absence of one Royea, its foreman, who was alleged to be a material witness in its behalf. The affidavit filed in support of the motion failed to state that Royea was the only witness by whom the appellant could prove the facts sought to be proved by him. Hodges v. Nash, 141 Ill. 391, 31 N. E. 151. It also failed to state that the facts sought to be proved by the absent witness were true, and did not show that his attendance in court or his deposition could be obtained at a subsequent term of the court (Wilhelm v. People, 72 Ill. 468;Dacey v. People, 116 Ill. 555, 6 N. E. 165); and the case had been pending in court for more than a year, and no reason was shown why the deposition of the witness had not before that time been taken. The court did not err in overruling the motion for a continuance.

It is next assigned as error that the court declined to peremptorily instruct the jury to find for the appellant. The appellant introduced no evidence, but relied upon the inability of the appellee to make a case. The facts, as disclosed by the evidence, were that on February 5, 1900, the appellant was engaged in constructing a grain elevator in the city of Chicago. The elevator was 40 feet wide and 120 feet long, and the appellee, who was a carpenter by trade, in company with about 50 other carpenters, was at work thereon under the direction of a foreman. After the elevator reached the height of about 30 feet, its interior consisted of bins, which ranged in size from 6x13 to 13x13 feet. The walls and partitions which inclosed the building, and cut up the interior into bins, were made of planks laid flatwise and then nailed together. In constructing the walls and partitions, the workmen stood in the bins upon platforms consisting of two parts, which were slightly smaller than the interior of the bins, so that they could be readily taken apart and moved up and down, and were supported by lugs made of strips of planks laid into or fastened to the inside of the walls and partitions by the workmen. As the construction of the walls and partitions advanced, the carpenters laid in or fastened to the walls and partitions new lugs, and the platforms were raised up and supported on these new lugs, and the building of the walls and partitions progressed from this new level. These lugs were selected by the workmen from the materials used in constructing the walls and partitions, and when the platforms were moved up they were sawed off or removed. One or two carpenters worked in the small, and two or three in the large, bins. The tops of the walls and partitions were dept on a level, and the building was bound together by large timbers. A tramway ran lengthwise through the center of the building, upon which the building materials were conveyed to the place where used. The appellee had been engaged at various times in elevator construction, but had not worked on the walls or partitions of this elevator until the day upon which he was injured. At about 3 o'clock in the afternoon of the day of the accident a timber 1 foot square and 40 feet long was brought to the top of the building. It was necessary to swing it one-fourth of a circle to get in into place. This had to be done by hand. The foreman called appellee and other workmen from the bins where they were at work, to assist in moving the timber. In order that they might handle the timber, they stood upon the platform in the bins near where it rested upon the top of the walls and partitions. The weather was cold and the timber was covered with ice. When appellee was ordered to assist in handling the timber, he sought to put on his gloves, but was peremptorily ordered by the foreman to take hold of the timber with his bare hands. Thereupon the appellee and seven other men got into one of the small bins and lifted upon the timber. The platform upon which they stood, by reason of the breaking of one of the lugs which supported it, gave way, and the appellee and four other workmen fell to the bottom of the bin, a distance of 45 feet. The bin in which the plaintiff was standing when the platform fell was not the one in which he had been working, and the lug which gave way was placed in position by a carpenter by the name of Kowald, who had been working in that bin.

If there is evidence in the record fairly tending to support the judgment, this court is powerless to review the facts, as the finding of the Appellate Court in regard to the facts, when there is evidence tending to support the judgment, is final, and cannot be reviewed by this court. Birdsell Mfg. Co. v. Oglevee, 187 Ill. 149, 58 N. E. 231. The appellant was bound to use reasonable care to furnish the appellee a reasonably safe place in which to work, and if it failed so to do, and the appellee was injured without any fault or neglect on his part, the appellant's liability was established. Pioneer Fireproof Construction Co. v. Howell, 189 Ill. 123, 59 N. E. 535.

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