McBeath v. Rawle

• Decision Date: 24 October 1901
• Citation: 192 Ill. 626,61 N.E. 847
• Parties: McBEATH et al. v. RAWLE.
• Court: Illinois Supreme Court

192 Ill. 626

61 N.E. 847

McBEATH et al.

v.RAWLE.¹

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, First district.

Action by Margaret Rawle, as administratrix of the estate of Thomas Rawle, deceased, against George McBeath and others. From a judgment of the appellate court (93 Ill. App. 212) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

Walker & Payne, for appellants.

William Garnett, Jr., and Ira C. Wood, for appellee.

WILKIN, C. J.

This is an action by appellee, as administratrix of the estate of Thomas Rawle, deceased, in the superior court of Cook county, to recover damages for wrongfully causing the death of her intestate. Appellants were stone-setting contractors, and had a contract for setting the cut stone on the Historical Building in the city of Chicago. Thomas Rawle, the deceased, was in their employ, working upon this building by the day, as an expert stone setter. The first count of the declaration avers that on the 16th day of May, 1893, the defendants were prosecuting the work on this building, and provided the said Thomas Rawle with a certain scaffold upon which to stand while at work; that said scaffold ‘was improperly and carelessly constructed,’ and that the defendants failed to test it to see that it was safe; and while the deceased, with due care and diligence, was using said scaffold, pursuing his work, it broke, throwing him to the ground, causing his death. The second count is substantially the same, except that it avers ‘that it then and there became and was the duty of the defendants, as employers of the said Thomas Rawle, to provide and maintain proper, suitable, secure, strong, and safe scaffolding to be used by him in the prosecution of his work, yet they provided him with an improper, unsuitable, insecure, weak, and unsafe scaffolding.’ On a plea of not guilty issue was joined, and the cause submitted to a jury, resulting in a verdict of $5,000 for plaintiff. From a judgment of affirmance in the appellate court, defendants prosecute this appeal.

The theory of plaintiff's case is that it was the duty of appellants to furnish the deceased, as their servant, a safe place in which to work, and that his death was caused by their failure so to do. Several defenses were relied upon at the trial and urged before the appellate court, predicated upon the evidence; but, all controverted questions of fact being now settled adversely to those defenses, the only grounds of reversal urged in this court are that the trial court erred in refusing to direct the jury to return a verdict of not guilty, and in refusing to give certain instructions asked on behalf of defendants. The first of these grounds is based upon the proposition that the plaintiff failed to prove, or introduce testimony tending to prove, that it was the duty of defendants to furnish the deceased a scaffold upon which to do the work which he was employed to perform. The uncontradicted evidence offered by plaintiff shows, and respective counsel so agreed upon the trial, that in the construction of a stone-veneer building, such as this was, a recognized custom prevailed in Chicago that it is the duty of the persons in charge of the brickwork to build the scaffold to be used by both the brick masons and the stone setters. The brick masons erect the scaffold, and as the building progresses the stone setters place the stone in position, and are followed by the brick masons, who back up the work with brick. It also appeared from the evidence that such custom was followed in the construction of the building in question, the scaffolds for each floor, as the building rose, being built by the brick masons. While the deceased was setting stone on a scaffold some 40 feet above the ground, the scaffold gave way, and he fell, receiving injuries from which he died. The contention of counsel for the appellants is that by the uncontradicted evidence-in fact, the admission of the plaintiff of the existence of the custom as above stated-there was no duty devolving upon the defendants to furnish the scaffold upon which deceased worked, but that that duty rested upon the brick masons; and that if, by reason of the negligent construction of the same, deceased lost his life, the remedy of the plaintiff below was against them, and not against defendants. With this contention we cannot agree. We have examined the testimony contained in the record with care, and are unable to discover anything in the agreement of counsel at the trial, or in the evidence, tending to prove that the deceased's contract of employment...