Wells v. O'Hare

• Decision Date: 20 April 1904
• Citation: 209 Ill. 627,70 N.E. 1056
• Parties: WELLS v. O'HARE.
• Court: Illinois Supreme Court

209 Ill. 627

70 N.E. 1056

WELLS

v.O'HARE. ^*

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, First District.

Action by Thomas J. O'Hare, as administrator of the estate of Michael Corbett, deceased, against A. E. Wells. From a judgment of the Appellate Court affirming a judgment for plaintiff (110 Ill. App. 7), defendant appeals. Reversed.

O. W. Dynes, for appellant.

Alexander Sullivan (Francis J. Woolley, of counsel), for appellee.

BOGGS, J.

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment in the sum of $2,500 entered in the circuit court of Cook county against the appellant and in favor of the appellee, as administrator of the estate of Michael Corbett, deceased. The declaration was in case, and claimed damages for the wrongful death of plaintiff's intestate by the alleged negligent act of defendant, and averred ‘that the defendant, regardless of his duty in the premises, carelessly and negligently threw or caused to fall from a great height, to wit, forty feet above where the plaintiff was then and there lawfully prosecuting his labor, in the exercise of all due care and caution for his own safety, some hard substance, to wit, a brick, down to and upon said deceased, whereby and by means whereof the death of the said Michael Corbett was then and there caused.’

At the time of the accident the deceased was a common laborer in the employ of appellant, Wells, who was a general contractor in the city of Chicago, and had the contract for the mason work on a nine-story brick building located in said city. For the purpose of carrying the brick and mortar to the different stories or floors as the building went up, a temporary devise such as is used by builders, called a ‘hoist,’ was put in, which consisted of two rough elevator platforms traveling up and down in vertical shafts, one platform counter-balancing the other, so that when one was at the bottom of the shaft the other was at the top. The cable attached to either platform passed over sheaves at the top, and was operated by steam power, and was so arranged that it could be adjusted to the various floors; that is, when it was needed to hoist material to the second floor the platforms ascended to that floor and no farther, and as the work progressed to the third floor the cables were again lengthened so that they would extend to the fourth floor, and so on with each succeeding floor. On the day prior to the accident the mason work on the eighth floor had been completed, and it became necessary to adjust the hoist to the ninth floor. In order to do so, one of the platforms was drawn up to that floor, and a plank placed under it to support it, and after the cable had been adjusted the plank was left under the platform until the next morning. An employé of the defendant, named Sullivan, was engaged in operating the hoist at the top, and on the night before the accident the foreman ordered him to put the plank under the platform to keep it in position while the cables were being adjusted. In doing so he placed one or more bricks under the south end of the plank in order to level it up. These bricks rested on a tile floor about level with the edge of the shaft, some two feet from its south edge or side. At the time of the accident the foreman of appellant ordered Corbett, the deceased, to assist at the bottom of the shaft in pulling the cable, the object being to raise the platform above so the plank could be removed. Corbett, in obedience to the order, with one or two other employés, stepped into the shaft, took hold of the cable, and pulled down on it, while Sullivan above took hold of the end of the plank and pulled it out. At the same time a brick fell from some point above, striking the deceased on the head, inflicting a fatal wound. Plaintiff's theory of the case, on the evidence, is that the brick which fell from above causing the injury was caused to fall through the negligent act of the employé, Sullivan, in this: that he negligently omitted to take the brick from under the plank before attempting to draw the plank from across the elevator shaft, and that Sullivan, in removing the plank, drew or ‘scraped’ the brick which was under it into the shaft, from whence it fell to the bottom and struck and killed Corbett. There was no direct proof that the brick was caused to fall by Sullivan.

It was insisted by counsel for the appellant that, even conceding that the plaintiff's intestate lost his life through the negligent act of Sullivan, still the appellant was not liable because the relation existing between the deceased and Sullivan at that time was that of fellow servants, and that the deceased assumed the risk and danger of receiving an injury through the negligence of those with whom he should be engaged at work as a fellow servant. The declaration did not allege that Sullivan caused the brick to fall, and there is no averment therein that Sullivan was incompetent or that the appellant was guilty of any negligence in employing him, nor did anything appear in the proof tending to show that Sullivan was incompetent. A declaration to recover for negligence must allege the negligence or omission relied upon to give the right to recover. If the alleged negligence on which recovery of damages is sought is that an employer negligently employed an incompetent fellow servant, the declaration should so aver. 13 Ency. of Pl. & Pr. 899. On this branch of the case the issue, then, was whether the relation of fellow servant existed between the deceased and Sullivan. The evidence was such that the Appellate Court was moved to declare in its opinion that whether these workmen were fellow servants was ‘a matter of very grave doubt,’ and this view is, in our opinion, the most favorable to the cause of the appellee that could be drawn from the testimony. In a case so close on the facts it is indispensable to the maintenance of the verdict and judgment that the instructions given to the jury relative to the legal principles involved in the determination of the issue should be free from any inaccurate direction which may have influenced the jury improperly against the appellant.

At the request of the appellant the court gave to the jury the following instruction: ‘The court instructs the jury that, as a matter of law, the negligence of a fellow servant is one of the risks of the employment assumed by a servant, and if you believe, from the evidence, that the injury to the deceased in this case was caused solely by the negligent act of a fellow servant, then it is your duty to find the defendant, A. E. Wells, not guilty.’

Under the pleadings and proof in the case this instruction correctly stated the rule of law as to the risks assumed by the deceased. In Chicago, Burlington & Quincy Railroad Co. v. Avery, 109 Ill. 314, we said (page 322): ‘The negligence of fellow servants is one of the ordinary perils of the service which one takes the hazard of in entering into any employment.’ In Toledo, Wabash & Western Railway Co. v. Durkin, 76 Ill. 395, we said page 397): An employé ‘undertakes to run all the ordinary risks incident to the employment, including his own negligence or unskillfulness; and this includes the risk of occasional negligence or unskillfulness of his fellow servants engaged in the same line of duty, or incident thereto, provided such fellow servants are competent and skillful to discharge the duty assigned them.’ That such risk is assumed by an employé is declared in 12 Am. & Eng. Ency. of Law (2d Ed.) 902, on the authority of many judicial decisions cited in note 4.

But we think the appellant has just ground to complain the jury were not permitted to guide their deliberations by this instruction or to apply the principle there announced to the evidence produced in the cause. At the request of the appellee the court gave to the jury a further instruction relative to the assumption by the deceased of the usual and ordinary risks of his employment, which cast upon the appellant, as the common master, a greater burden of diligence than the law required of him, and imposed upon him an obligation to take precautions beyond any duty legally devolving upon him. The instruction referred to read as follows: ‘The jury are instructed that the terms ‘ordinary risks or hazards of deceased's employment,’ as used in these instructions, mean such risks as are usual and ordinary in such employment after the employer has taken reasonable care to discover and prevent such risks.'

The theory upon which the appellee sought a verdict was that Sullivan, when attempting to remove the plank on which the elevator had rested on the eighth floor, negligently omitted to take from beneath it the brick which he had on the evening before placed under the plank, and that in removing the plank...