Pinkley v. Chicago & E.I.R. Co.

• Decision Date: 28 October 1910
• Citation: 246 Ill. 370,92 N.E. 896
• Court: Illinois Supreme Court
• Parties: PINKLEY v. CHICAGO & E. I. R. CO.

246 Ill. 370

92 N.E. 896

PINKLEY

v.CHICAGO & E. I. R. CO.

Supreme Court of Illinois.

Oct. 28, 1910.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Fayette County; Samuel L. Dwight, Judge.

Action by Samuel A. Pinkley against the Chicago & Eastern Illinois Railroad Company. From a judgment of the Appellate Court (151 Ill. App. 356), affirming a judgment for plaintiff, defendant, obtaining a certificate of importance, appeals. Reversed and remanded.

Brown & Burnside, for appellant.

B. W. Henry and Albert & Matheny, for appellee.

COOKE, J.

Samuel A. Pinkley, the appellee, brought an action of case in the circuit court of Fayette county against the Chicago & Eastern Illinois Railroad Company, the appellant, to recover damages for personal injuries sustained by him while in the employ of appellant. A declaration consisting of two counts was filed, alleging that on August 6, 1907, while appellee was in the employ of appellant as a servant in its supply yards at St. Elmo, Ill., appellant received at its supply yards a car load of green yellow pine piling, freshly treated with creosote; that appellant, well knowing the dangers likely to result from handling piling so treated with creosote, through its foreman negligently and carelessly ordered appellee and his colaborers to unload the piling from the car with their hands and with cant hooks; and plaintiff, having no knowledge of the danger attendant upon such work, and in the exercise of ordinary care, worked with said piling with his hands and cant hooks during the whole of said day in and about unloading the same from the car under the orders and directions of said foreman and by reason thereof became poisoned and diseased and permanently injured. Appellant filed the general issue, and a trial was had before a jury, which resulted in a verdict finding appellant guilty and fixing appellee's damages at $600. After overruling appellant's motion for a new trial, the court rendered judgment upon the verdict. Appellant prosecuted an appeal to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed. Appellant was granted a certificate of importance by the Appellate Court, and has brought the case here for review.

At the close of appellee's evidence in chief, and again at the close of all the evidence in the case, appellant offered, and the court refused, an instruction directing a verdict for appellant. The action of the court in refusing to give the peremptory instruction offered at the close of all the evidence is the principal ground urged by appellant for reversal of the judgments of the Appellate and circuit courts. Appellant contends that the instruction should have been given, first, because the evidence failed to disclose any negligence on the part of appellant; and, second, because the appellee assumed the risk attendant upon unloading the timbers from the car. In considering this assignment of error, the only question open for our consideration is whether there is in this record any evidence which, with the inferences reasonably to be drawn therefrom, tends to establish these two elements of the case in appellee's favor.

Resolving all controverted facts in favor of appellee, the record discloses that, at and prior to the time appellee sustained the injuries hereinafter mentioned, the appellant maintained at St. Elmo, in this state, supply yards for the storage and distribution of various kinds of material required in constructing and repairing its tracks and bridges. A number of men were employed at these yards, whose work consisted almost wholly in loading and unloading the material received there. These men worked under the supervision of a foreman. A portion of the material received at and distributed from the yards consisted of timbers covered or treated with a coal-tar preparation containing creosote. On June 3, 1907, appellee commenced working for appellant in the supply yards. He was 52 years of age, and had spent several years in working for railroad companies, but had had no experience in handling material treated with creosote. During the month of July, 1907, appellant received at the supply yards at least two car loads of timbers treated with the coal-tar preparation, which appellee assisted in unloading. He also assisted in loading at least one car load of timbers so treated. On these occasions he observed that the fumes from the preparation with which the timbers were covered caused a burning sensation, and sometimes caused the skin on the face and arms to blister and peel off; the effect being similar to that of sunburn. Appellee and several of his fellow workmen had been affected in this manner to some extent prior to August 6th while handling material treated with the coal-tar preparation. It was also a common remark among the men employed at the yards that the ‘Black Jack,’ as they called it, was ‘hot stuff,’ and appellee had heard them speak of it as being ‘hot stuff.’

On the morning of August 6, 1907, the foreman directed appellee and several other employés to unload piling from a coal car which had been received at the yards. The timbers had been recently treated with the preparation, which was soft and viscid, and in that respect differed from the timbers theretofore handled by appellee, upon which the preparation had hardened. It was a very hot day, and the preparation was dripping from the timbers and from the corners of the car, the testimony showing that such condition was not unusual when timbers treated with the preparation were exposed to the rays of the sun in hot weather. The foreman furnished a can of vaseline, and advised the men to use the vaseline on their faces, stating that the timbers were green and had been freshly treated, and that he thought the vaseline would prevent the preparation hurting them. The workmen, including appellee, used the vaseline as directed and proceeded to unload the car under the direction of the foreman. They did not handle the timbers with their hands, but each was furnished with a cant hook to use in moving or lifting the timbers. Handspikes were also furnished and used in the work, and after the car had been partially unloaded, and it became necessary to roll the timbers up skids to get them out of the car, a rope was fastened around the timber and a portion of the men pulled on the rope while others remained in the car and assisted with the cant hooks and handspikes. This method of unloading the car on August 6th had been the usual method of unloading large timbers from cars at these yards before and ever since appellee had commenced working there.

Most of the men engaged in the work experienced the burning sensation which they had previously experienced in handling timbers treated with the coal-tar preparation, and some of them had their faces, hands, and arms blistered to such an extent that the skin peeled off; but all except appellee continued working at the supply yards, and thereafter handled timbers treated with creosote, when called upon to do so, without suffering any injury except the temporary pain and inconvenience from the burning and peeling off of the skin on their faces, hands, and arms. Appellee, however, was unable to sleep during the night of August 6th on account of the pain in his face, hands, and arms, and the next morning his face and arms were red and swollen. He returned to the yards and asked the foreman what kind of work he would be required to perform that morning. Upon being informed that there were timbers treated with creosote to be handled, he refused to go to work, stating that he was already injured enough from handling such timbers. He was thereupon discharged, and another employé was called to take his place. This employé worked a portion of the day and then quit, stating upon the witness stand in this case that the quit because it was too hot for him. He also sustained some burns that day from which he fully recovered within five or six days without consulting a physician. Appellee, after quitting his employment, returned home and applied camphor ice salve to his face and arms. The next day numerous white pustules appeared on his face and arms and in his nostrils, and he consulted a physician, under whose treatment he continued for a period of from three to four months. He then discontinued treatment with the physician, and has since used various proprietary remedies in attempting to be cured, but without success. The burning sensation has been present almost constantly ever since August 6th, and pustules and sores around his mouth and in his nostrils, which at times almost disappear and then break out anew, have caused him great pain and annoyance. The burns on his arms had at the time of the trial healed, leaving scars, and his face was then better than it had been since receiving the injuries.

Dr. Whiteford, the physician who treated appellee, was called as a witness in his behalf, and testified that when appellee first consulted him he was suffering from dermatitis venenata, which the witness described as an irritation of the skin caused by some irritant, in which a redness and swelling and a sense of burning are usually present, and that the trouble has developed into eczema. He further testified that dermatitis venenata could be caused by various substances, and that it would be impossible to tell from an examination of a person the cause of this disease, but that he questioned appellee, and upon learning from him that he had been working...