John Spry Lumber Co. v. Duggan

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: John Spry Lumber Co. v. Duggan, 182 Ill. 218, 54 N.E. 1002 (Ill. 1899)
• Decision Date: 19 October 1899
• Parties: JOHN SPRY LUMBER CO. v. DUGGAN.

182 Ill. 218

54 N.E. 1002

JOHN SPRY LUMBER CO.

v.DUGGAN.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, First district.

Action by Michael Duggan against the John Spry Lumber Company. There was a judgment for plaintiff, which was affirmed by the appellate court (80 Ill. App. 394), and defendant appeals. Affirmed.

Appellant was engaged in the lumber business, and was unloading a boat load of lumber upon a dock which it owned and controlled. Two sets or gangs of men were employed in unloading the cargo, one set passing the lumber out from the vessel, and the other set receiving the lumber and piling it upon the dock. There is no dispute but that the set of men engaged upon the dock in receiving and piling the lumber were the yard men in the regular employ of appellant. There is some dispute as to whether the set of men engaged in the work on the boat of passing the lumber out to the yard men on the dock were in the employ of appellant or one Hunt. There was evidence tending to show that Hunt was an independent contractor, who had taken, by contract with appellant, the job of furnishing men to do the unloading on the boat at a fixed sum. Appellant had upon its dock a water-closet, which was for the use of the men engaged in the work there. Appellee was one of the set of men on the boat passing the lumber out to appellant's yard men. He undertook to go from the boat to the water-closet, and in so doing followed the route from the boat to the water-closet, which, from the evidence, would appear to have been the most direct of any safe route. While on his way, in passing one of the piles of lumber placed by the yard men, the pile of lumber fell upon him and injured him. In this suit to recover damages for such injury he was awarded a verdict for $1,000, upon which judgment was entered. That judgment has been affirmed by the appellate court.Americus B. Melville and F. J. Canty, for appellant.

John S. Hummer and D. G. Ramsay (John Reid McFee, of counsel), for appellee.

PER CURIAM.

In deciding the case the appellate court delivered the following opinion:

‘The only question presented is as to the sufficiency of the evidence to sustain the verdict. No complaint is made of any ruling in matters of procedure. The instructions to the jury are not questioned, nor is it claimed that the verdict is excessive. It cannot be contended that from the evidence appellee can be held to have been guilty of any negligence on his part. It is clear, from the evidence, that the course which he pursued in attempting to reach the closet was the only direct route which could be pursued by him and be safe. To have taken a different course, as suggested by some of the witnesses, would have brought him in the way of the men who were handling the lumber, and would have exposed him to apparent danger. Had he taken such course, and been injured by the moving lumber, he would doubtless have been held to have been so far negligent in courting an apparent danger as to preclude any right to recover therefor. There being no question as to the care exercised by appellee for his own safety, we have to consider if negligence of appellant has been established as to the proximate cause of the injury.

‘There is no conflict in the evidence as to the cause of the injury, and it may be said to be undisputed that it resulted from carelessness on the part of the yardmen in forming the pile of lumber in question. The only defense interposed by appellant is, in effect, that it is not answerable to appellee for such carelessness, and that the same cannot be imputed to it as negligence in relation to appellee. In support of the contention in this behalf, counsel for appellant argue-First, that appellee was an employé of appellant, and was injured by the negligence of a fellow servant; second, that appellee was an employé of appellant, and was injured through a risk which was an assumed hazard; and, third, that if appellee was an employé of Hunt, and not of appellant, then he was, in relation to appellant, a mere licensee, and there existed no duty on the part of appellant towards him by disregard of which a charge of negligence and a right of action could here arise. The application of the doctrine of negligence of a fellow servant, here contended for, must depend upon a showing, in the first place, that appellant was the common master or employer of appellee and the yard men through whose carelessness he was injured. But the evidence warranted the jury in finding that appellee was not an employé of appellant at all, but the employé of Hunt, an independent contractor, and the jury so found, both by general and special verdict. Upon that finding there can be no application of a fellow servant's negligence. Appellee testified that he was in the employ of Hunt. Four of the men who were engaged with appellee in the work on the boat, and whose employment was identical with that of appellee, testified that they were in the employ of Hunt. Hunt, who was called as a witness for appellant, testified: ‘My business is vessel unloading. * * * I had charge of unloading the boat. I had the job to look after and unload the boat. I took the job in the spring to unload the boat, and get men for her every time she came, and unloaded her. * * * The boat paid...