Ross v. Shanley

• Decision Date: 17 April 1900
• Parties: ROSS et al. v. SHANLEY.
• Court: Illinois Supreme Court

185 Ill. 390

56 N.E. 1105

ROSS et al.

v.SHANLEY.

Supreme Court of Illinois.

April 17, 1900.

Appeal from appellate court, First district.

Action by Francis Shanley against William J. Ross and others for damages for a personal injury. Plaintiff recovered a judgment in the circuit court against appellants for $2,000, which judgment was affirmed by the appellate court (86 Ill. App. 144), and appellants now present the record to this court. Affirmed.

The action was case. The declaration charged that appellants were engaged in constructing a tunnel for the city of Chicago under the lake, and that appellee was employed as a bricklayer therein; that appellants were negligent in failing to furnish him a safe place to work, and set him to work in a place in the tunnel where the clay was not sufficiently propped, and where no careful or prudent method was adopted to prevent the clay from falling upon him while so at work; that the place was dangerous, and known to be so to appellants, but not to appellee, and that by the exercise of ordinary care he could not have known the fact; and that while so at work a lump of clay fell upon him and caused the injury complained of. In another count the negligence charged was that appellants failed to warn him of the hidden and unseen dangers and hazards in and about said work. The suit, as originally brought, made as defendants the city of Chicago and William J. Ross, John McRae, and John Ross, partners under the style of Ross, McRae & Ross. On the trial the appellee dismissed as to the city and McRae, and amended the declaration so as to charge the appellants, Ross & Ross, partners, etc., in the same terms as had been charged originally against Ross, McRae & Ross. The appellants filed to this declaration a plea of not guilty, and a plea of the statute of limitations,-two years. The appellee demurred to the latter plea, and the court sustained the demurrer, to which action of the court appellants excepted, and the cause then proceeded to verdict and judgment. At the close of the plaintiff's case, and at the close of all the evidence, the appellants asked the court to instruct the jury to find them not guilty; but the court refused each of these requests, and appellants excepted to each of the rulings.

Wall & Ross, for appellants.

John F. Waters, for appellee.

PER CURIAM.

In deciding this case, the appellate court delivered the following opinion: ‘Appellants' counsel, in his brief, makes twenty-one different points on account of which he claims that the judgment should be reversed. We think they may all be summarized under four different headings, viz.: First, that the negligence charged was not proven; second, that the hazard was assumed by appellee; third, that there was a variance between the proof and the allegations of the amended declaration; and, fourth, that the court erred in sustaining the demurrer to the plea of the statute of limitations to the amended declaration.

‘As we have seen, there is a conflict in the evidence as to the usual manner of shoring the tunnel in which appellee was placed to work, in order to make it safe, and there was also a conflict as to the manner of the shoring, both as to the placing of the crutches, and the nearness to which the planks used in shoring came to the face of the tunnel; and we are not prepared to hold, after a careful and critical reading of the evidence, that the jury were not justified in finding that the shoring did not extend sufficiently near to the face of the tunnel, and that the crutch nearest the face of the tunnel was not sufficiently near to the end of the planks, to make a reasonably safe place in which appellee could do his work. Appellee was ordered by appellants' foreman to work where he did at the time of the accident. Appellants' foreman, in ordering appellee to work where he did, was charged with the duty of seeing that the place was reasonably safe. He represented appellants, and for them was bound to take reasonable precautions for the safety of appellants' employés. Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876;Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162;Hess v. Rosenthal, 160 Ill. 621, 43 N. E. 743; Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021;Cribben v. Callaghan, 156 Ill. 549, 41 N. E. 178;Lumber Co. v. Ligas, 172 Ill. 315, 50 N. E. 225;Offutt v. Exposition, 175 Ill. 472, 51 N. E. 651.

‘But it is said that appellee assumed the risk of any dangers of his work, and, being an experienced man in tunnel work, was chargeable with...