Mallen v. Waldowski

• Court: Illinois Supreme Court
• Writing for the Court: BOGGS
• Citation: Mallen v. Waldowski, 203 Ill. 87, 67 N.E. 409 (Ill. 1903)
• Decision Date: 18 February 1903
• Parties: MALLEN et al. v. WALDOWSKI.

203 Ill. 87

67 N.E. 409

MALLEN et al.

v.WALDOWSKI. ^*

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from Appellate Court, First District.

Action by Adolph Waldowski against Herman Z. Mallen and others. From a judgment in favor of plaintiff, affirmed by the appellate court (101 Ill. App. 367), defendants appeal. Reversed.

Magruder and Carter, JJ., dissenting.

C. W. Dynes, for appellants.

Theodore G. Case and Munson T. Case, for appellee.

BOGGS, J.

In an action on the case heard in the superior court of Cook county appellee recovered a judgment against the appellants in the sum of $2,500 for damages resulting to appellee from a personal injury, occasioned as the declaration alleged, by reason of the negligence of the appellants.

The appellants were engaged in the business of manufacturing furniture in the city of Chicago. The appellee, on the 21st day of December, 1892, was in their employ in the capacity of a wood-working machinist. The work about which appellee was engaged was reducing pieces of timber of the thickness of one and three-quarters inches and of the length of nineteen inches into strips of the same length and of the thickness of five-eights of an inch, and having a corner or notch sawed out of each strip. The proper and safer mode of doing the work was to first saw the corner or notch, once for all, out of the piece of timber from which the strips were to be sawed, and then saw the large piece into strips. The appellee did not, however, pursue this method of doing the work, but first sawed the larger piece of timber into the thin strips, and then attempted to hold together in his hands all the strips into which the larger piece had been reduced, at one time, against the saw, and saw the corner or notch out of all the strips at one time in that way. While so endeavoring to hold several of these strips together against the saw, the hand of appellee was ‘jerked or kicked’ against the teeth of the revolving saw, causing the injury for which the action was brought. There was evidence tending to show the appellee had been informed that the corner or notch should be sawed out of the larger and more solid piece before sawing it into strips, and warned that it was not safe to saw the corner or notch out of the thin strips.

One of the defenses sought to be sustained to the action was that the appellee was injured through a lack of ordinary care on his part for his own safety, and that such negligence caused the injury to his hand. The appellants asked, but the court refused to give, the following instruction to the jury: ‘The court instructs the jury that if you find, from the evidence, that the plaintiff was guilty of negligence in attempting to saw the corner out while holding several of the smaller pieces together with his hands, instead of sawing the corner out of the solid piece of wood before it was ripped into smaller pieces, and if you further believe, from the evidence, that such negligence was the cause of his injury, then your verdict should be not guilty.’

The argument in support of the ruling of the court in refusing to give this instruction is that the instruction ‘characterizes a particular act, viz., that of attempting to saw the corner out of the smaller pieces, instead of sawing the corner out of the solid piece of wood before it was ripped into smaller pieces, as negligence per se’; and, further, that the instruction proceeded on the theory that plaintiff could not recover if he was guilty of some careless or negligent act which, though it may have contributed, in some degree, to his injury, was not the proximate cause thereof.

As we read the instruction, there is no assumption that the plaintiff was guilty of any act of negligence. The language of the instruction, ‘if you [the jury]...