Sack v. Dolese

• Decision Date: 30 March 1891
• Citation: 137 Ill. 129,27 N.E. 62
• Parties: SACK v. DOLESE et al.
• Court: Illinois Supreme Court

137 Ill. 129

27 N.E. 62

SACK

v.DOLESE et al.¹

Supreme Court of Illinois.

March 30, 1891.

Appeal from appellate court, first district.

Action on the case by Christian Sack against John Dolese and Jason H. Shepard. Defendants obtained judgment, which was affirmed by the appellate court. Plaintiff appeals.

Edmund Furthmann, for appellant.

Campbell & Custer, for appellees.

MORAN, J.

Appellant was at work for appellees in a quarry near to which was a machine for crushing the stone. The crushed stone was run from the crusher through a spout into cars, and as each car was filled it was run out on the track and an empty one brought up under the spout. The motion given to the full car would send it slowly along the track, and it was the duty of the man who was engaged in running out the full and bringing in the empty cars to run after such moving full car, and climb onto it and set the brake, so as to stop the car. In attempting to stop a car in that manner on August 6, 1888, appellant was injured. He was employed to work in the quarry with a pick and shovel, but had on one or two instances worked at the crusher handling the cars. On the day of the accident he was directed by the foreman to attend to the cars, the man who usually attended to that work being absent. In attempting to stop a loaded car which he had just run out, the brake gave way in some manner, and he was thrown to the ground, and the wheels of the car ran over and crushed the fingers of one hand and one of his feet, causing a serious and permanent injury. He gave on direct examination an account of the manner in which the accident happened, as follows: ‘When I moved the car so far, I loosened the rope and ran around and was jumping on the car. Then I put on the brakes. I was pulling on the brake in order to stop the car, because the cars are stopped there. * * * The car was still in the act of running slowly. I was holding with all my strength the brake to stop the car. Then I got a sort of a push from the brake. It swung me about, and I fell down and the car ran over me. That is all. The brake threw me down around. I was taking hold of it with all my might, and with all my strength,-that is why it threw me. Something loosened on the chain below. The wheel I had in my hand turned. The chain gave way, that is, on the handle below on the brake.’ On cross-examination he said: ‘I pulled the brake very hard on the car on which I was standing when hurt. I could not see what happened to the brake; I only felt that something had happened. There was something loosened on the chain below, so that the wheel I had in my hand turned. I could not think anything else was the matter, because the handle remained as it was, and something must have happened to the chain.’ There was no evidence what, if any, defect was in the brake or brake-chain, but it was shown that the car on which the accident occurred did not belong to appellees, but was a ‘belt-line’ car, and that said car was not inspected by appellees' inspector. At the close of the plaintiff's evidence the court instructed the jury to find the defendants not guilty.

There is no basis for the contention that plaintiff was injured by reason of lack of skill in performing the work which he was ordered to do. Assuming that he was in fact unfamiliar with the work, there is no evidence tending to show that he did not do it as well as the most skillful could have done. There is no pretense that he did not do the right thing at the right time and in the proper manner. His injury was clearly due to the breaking, from no fault of his, of the appliance which he was handling; therefore the only count of his declaration which the evidence would fit is the one charging a failure on the part of appellees to furnish, in and about the work which appellant was directed to do, proper cars equipped with suitable appliances, and brakes for stopping and operating the same, and keep them in proper repair, and that by reason of the carelessness and negligence of appellees in that regard plaintiff was injured. Was it error for the court to refuse to submit the evidence to the jury under this count? There was no evidence introduced or offered by plaintiff to show that the brake of this car was improperly constructed, or in what the defect in it consisted. The plaintiff's right to recover depended upon the proof of injurious negligence by the defendant. We agree with counsel for the appellant that the rule is well settled that the employer is bound to use diligence in providing and maintaining safe machinery and instrumentalities to be handled by the employes, and that in the operation of cars a most efficient and perhaps a necessary method of discharging that duty is to maintain a careful system of inspection, to see that the necessary appliances in use thereon are in good order, and sufficient to answer the purposes for which they are intended. We also agree that the same rule of reasonable care with reference to proper machinery and inspection applies, in the case of cars belonging to other persons which the servant is required to operate in the course of the master's business, as governs when the cars are owned and provided by the master himself. Therefore for the purposes of this case we assume that appellees are responsible for defects in the apparatus on the belt-line car on which the accident happened, to the same extent and upon the same principles as they would be if the injury was occasioned by a car belonging to appellees, and which was in use by them to remove the crushed stone. But there is in this case no proof which would make appellees liable if the accident had occurred on one of their own cars. Plaintiff neglected to prove a necessary element in his case-he has not shown that the accident was the result of negligence on the part of appellees. He alleged such negligence in his declaration, and the burden was on him to prove it. Proving that the brake-chain parted, or that something gave out so that the brake-wheel suddenly turned with him and threw him from the car, does not show that appellees were guilty of negligence. Why did the brake-chain part? Was it too light, not of the usual and proper size, or not properly attached? Did it break because of a defect in one of the links, or was it worn out from use? If there was a defect in it, could it have been discovered by proper inspection? To these questions the evidence introduced by plaintiff furnished no answer. It is suggested, however, that plaintiff proved that there was no inspection of this car, and that the failure to inspect was negligence which entitles plaintiff to recover; that the failure to inspect throws on appellees the burden of showing that the brake apparatus was properly constructed, and that there was no defect in it that an inspection would have disclosed. This imposes the burden on the wrong party, and compels the defendant to prove that the injury did not result from his negligence. The proposition goes on an unwarrantable assumption, to-wit, what an inspection would have discovered the defective condition of the brake. That is an affirmative proposition, to be shown by the evidence, and the burden of proving it rests on him who asserts it. If plaintiff had shown that the fault in the brake was in fact known to appellees' foreman or car inspector, but unknown to himself, he would have made out his case, and so, too, he would have made his case had he shown that the defect was of such a nature that it would have been known to them if they had exercised due care. No defect is latent which an inspection will disclose, hence appellees would be charged...