Swift v. O'Neill

• Decision Date: 19 October 1900
• Citation: 58 N.E. 416,187 Ill. 337
• Parties: SWIFT et al. v. O'NEILL.
• Court: Illinois Supreme Court

187 Ill. 337

58 N.E. 416

SWIFT et al.

v.O'NEILL.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Action by Peter O'Neill against Swift & Co. From a judgment of the appellate court (88 Ill. App. 162) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Americus B. Melville and F. J. Canty, for appellant.

Francis T. Murphy and Thaddeus S. Allee, for appellee.

WILKIN, J.

Appellant prosecutes this appeal to reverse a judhment of the appellate court affirming a judgment of the superior court of Cook county against it, in favor of Peter O'Neill, appellee, for an injury to his person; the damages being assessed at $5,000. The declaration avers that plaintiff was in the employ of the defendant, Swift & Co., in an apartment of their packing plant used for smoking meats, and that he was injured by reason of the failure of the defendant to furnish suitable and proper lights in said apartment. It appears from the evidence that the building in which the accident occurred was known as the ‘New Smoke House,’ in which the plaintiff had been employed from about May 15, 1897, to June 11th following, when he was hurt. He had previously worked in another part of the plant. The new building was six stories high, and was divided into small rooms, in which the meat was placed on trucks, and there cured or smoked. Between these rooms, extending along the width of the building some 125 feet, were narrow hallways, into which the doors of the rooms opened. Along the ceiling of the hallways were stretched electric wires, with a socket for a globe opposite each door, but there were no globes attached. When the plaintiff and other workmen who were employed in taking the meat out of the rooms came to a door which they wished to open, a globe was attached to the wire, and the light turned on. When the work was completed in that room, the globe was removed, and again attached opposite the new place of employment. There were windows at one end of the halls, which furnished but a partial light. Soon after the plaintiff began working in that building he complained to his foreman that the light was insufficient, and that it was unsafe to work there on that account. It does not appear that the foreman made any direct promise to him in regard to furnishing additional lights, but it does appear that he told him he would refer the matter to the superintendent, and the evidence tends to show that the foreman afterwards informed plaintiff that the superintendent promised to remedy the defect; and one of the theories of plaintiff's case is that upon the faith of that promise he continued to work until injured. At the time of the accident he was ordered by the foreman of his gang to attach the globe to the electric wire, which he attempted to do by standing upon a truck and reaching up to the wire. While in this position, others employed with him, in moving another truck along the hallway, ran against the one on which he was standing, knocking him off and injuring one of his legs between the foot and the knee, by scraping the skin and flesh from it; the testimony of physicians being to the effect that the injury was a very severe and painful one, and probably permanent in its character. At the close of the evidence, defendant requested the court to instruct the jury to return a verdict of not guilty, which was denied.

Upon the trial of the case it was contended on behalf of defendant that the evidence failed to show such due care on the part of the plaintiff as would entitle him to recover, even though it was shown that the defendant was guilty of the negligence alleged; also, that the latter fact was not established, and that the injury resulted from the negligence of co-employés, and therefore no recovery could he had. All these questions have been settled by the verdict of the jury, and the judgment of affirmance in the appellate court, unless it could be said that there was no evidence tending to support plaintiff's contention on these propositions, and this we do not think can be maintained.

The principal contention of appellant in this court, going to the merits of the case, is that the plaintiff, under his own evidence, assumed the risk which resulted in his injury, and upon that ground the court erred in refusing to withdraw the case from the jury. It is well understood that, as between employer and employé, the latter assumes all the usual known dangers incident to the employment, and that he also takes upon himself the hazard of the use of defective tools and machinery, if, after the employment, he knows of the defect, but voluntarily continues in the employment without objection; also, if a servant acquires knowledge of defects, after his employment, which increase the risk or danger, and gives notice to the master of that fact, and the latter promises to remedy the defects...