Supple v. Agnew

• Decision Date: 24 October 1901
• Citation: 61 N.E. 392,191 Ill. 439
• Parties: SUPPLE v. AGNEW et al.
• Court: Illinois Supreme Court

191 Ill. 439

61 N.E. 392

SUPPLE

v.AGNEW et al.

Supreme Court of Illinois.

Oct. 24, 1901.

Error to appellate court, First district.

Action by Frank Supple against John P. Agnew and John McGillen for personal injuries received by plaintiff while in defendants' employ. From a judgment of the appellate court (80 Ill. App. 437) reversing a judgment of the trial court in favor of plaintiff, plaintiff brings error. Reversed.Morris St. P. Thomas and Darrow Thompson, for plaintiff in error.

O. W. Dynes, for defendants in error.

This is an action on the case, brought by the plaintiff in error against defendants in error, John P. Agnew and John McGillen, and one Francis Agnew, since deceased, who composed the firm of Agnew & Co., to recover for personal injuries claimed by plaintiff in error to have been sustained by him by reason of their negligence while he was in their employ. Verdict and judgment were in favor of the plaintiff in error for $1,500. This judgment has been reversed by the appellate court, and to reverse the judgment of the appellate court the present writ of error is sued out.

The judgment rendered by the appellate court was as follows: ‘On this day came again the said parties, and the court, having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, are of the opinion that in the record and proceedings aforesaid, and in the rendition of the judgment aforesaid, there is manifest error. Therefore it is considered by the court that, for that error and others in the record and proceedings aforesaid, the judgment of the superior court of Cook county in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed. And it is further considered by the court that the said appellants recover of and from the said appellee their costs by them in this behalf expended, to be taxed, and that they have execution therefor.’

The count of the declaration upon which the case was tried alleged: That the defendants on, to wit, January 6, 1893, were contractors engaged in digging a certain trench or canal in said county, and in said work employed a large number of men as carpenters, laborers, and otherwise; said carpenters being under the immediate direction and control of an agent or servant of defendants known as a ‘boss carpenter,’ and said laborers being divided into gangs, each gang being under the control and direction of an agent or servant of defendants, known as a ‘gang foreman,’ and said boss carpenter, carpenters, gang foreman, and laborers being under the general control and management of an agent or servant of defendants known as a ‘walking boss,’ who was employed by defendants to manage, control, and superintend the work of digging said canal, and to direct, manage, and control all the servants of defendants engaged about said work. That plaintiff had theretofore been employed by defendants as one of said gang foremen to oversee a gang of laborers in digging dirt from said canal, and to see that said gang performed its work in a proper manner, and for no other purpose whatever; and on the day and in the county aforesaid, while plaintiff was so engaged as such gang foreman, the said walking boss, under whose control plaintiff had been placed by defendants, ordered plaintiff, contrary to the terms of his employment, as said walking boss well knew, to temporarily assist said boss carpenter about the construction of a certain bridge being then and there built by defendants across a certain stream, known as the ‘Des Plaines River’; said walking boss well knowing that plaintiff was not a carpenter and was not versed or experienced in carpenter work or in construction of bridges; and said walking boss ordered plaintiff to do whatever work said boss carpenter should direct; and plaintiff, in obedience to said instructions, went to work with said boss carpenter, and was by him directed to assist said carpenter in moving certain heavy timbers of great length along certain planks, which extended across certain abutments on either side of said river, upon which abutments said bridge was being built; and, for the purpose of more easily moving said timbers, defendants had provided a certain implement known as a ‘dolly,’ consisting of a small wooden platform, upon the lower side of which was a roller resting upon the ground; and plaintiff, in obedience to the order of said carpenter, helped to place said timber upon said dolly, and was assisting said carpenter in moving said timber, with the aid of said dolly, across said planks. That it was then and there the duty of defendants to exercise reasonable care and diligence to furnish a sufficient number of persons to perform the work of moving said timber with reasonable safety, so that plaintiff should not be unnecessarily exposed to danger in the performance of said work, but defendants did not exercise reasonable care and diligence in that regard, but negligently and without due diligence failed to furnish more than one person to assist said boss carpenter and plaintiff in the work of moving said timber; and said carpenter and plaintiff and one additional person were not a sufficient number of persons to move said timber properly and with safety to plaintiff, which fact defendants well knew, or by the exercise of ordinary care and diligence ought to have known, but of which fact plaintiff had no notice or knowledge. That he had never had any experience in moving heavy timbers at that time, which fact defendant and said boss carpenter well knew; and by reason of the failure of defendants to furnish a sufficient number of persons to perform the work of moving said timber, and while plaintiff was engaged as aforesaid in assisting to move said timber, and while he was in the exercise of all due care and caution on his part, said timber slipped and fell from said dolly and struck plaintiff with great violence, and threw him with great force against one of said abutments, and thence upon the ground, and into said river, and upon the ice therein, thereby striking and injuring his back and left hip, wrenching and spraining his spine, causing him a severe nervous and physical shock, and great pain and anguish, by reason whereof, etc.

The count was amended before the trial so as to give a more particular description of the runway, and alleged: That said planks were, to wit, 10 feet above the surface of said river, and extended from abutment to abutment the entire width of said river; the said abutments being, to wit, 20 feet apart; said planks constituting a continuous runway of, to wit, 4 feet in width for said dolly. That, in order to move said timbers by means of said dolly properly and with reasonable safety along said runway, it was necessary for defendants to furnish for such purpose a number of men, to wit, five men, to hold said timbers in place upon said dolly, and to prevent said timbers from rolling, falling, or shifting while said dolly with said timber was being moved along said runway, but that they failed so to do, etc. A gang of men was engaged in excavating and constructing a section of the drainage canal in Cook county. One Burke, who employed the plaintiff on behalf of the defendants in error, was the general foreman of the defendants, and had known the plaintiff for eight or ten years. Plaintiff went to work November 22, 1892, and continued in the employ of the defendants until January 6, 1890, when the accident in question occurred. He was employed as boss of a wheelbarrow gang, engaged in taking out the dirt as it was excavated from the ditch, putting it on wheelbarrows, and wheeling it up on the embankment. That the business of the defendants was divided into departments, and that one Charles Burns, called a ‘walking boss,’ or general foreman, was plaintiff's immediate boss. On the morning of the accident plaintiff went to work with his wheelbarrow gang, and started his men to work. Burns came to him and told him to turn his men over to another foreman. Burns said that Morse, the carpenter foreman, had no men that morning, and he wanted plaintiff to go with Morse and help him on the bridge; Morse being the carpenter foreman employed by Agnew & Co. When Burns instructed plaintiff to go and help Morse on the bridge, plaintiff told Burns that he was not a carpenter and knew nothing about bridge building, and Burns told him to go along and to what Morse should tell him to do. Plaintiff then joined the carpenter foreman, and, under his direction, began to assist him in moving some heavy timbers across a temporary bridge or runway spanning the Des Plaines river. The runway was 140 feet long, 4 feet wide, and about 10 feet above the river, which was frozen over. The plan appears to have been to move some heavy logs, 20 to 26 feet in length, and from 12 to 16 inches in diameter at the butt, and about 10 to 12 inches at the small end, along this runway, for the...