Yarber v. Chicago & A. Ry. Co.

• Decision Date: 26 October 1908
• Citation: 85 N.E. 928,235 Ill. 589
• Court: Illinois Supreme Court
• Parties: YARBER v. CHICAGO & A. RY. CO.

235 Ill. 589

85 N.E. 928

YARBER

v.CHICAGO & A. RY. CO.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Colastin D. Myers, Judge.

Action by Samuel Yarber against the Chicago & Alton Railway Company. From a judgment of the Appellate Court for the Third District (137 Ill. App. 486), affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.Bracken, Young & Pierce (F. S. Winston, of counsel), for appellant.

Livingston & Bach, for appellee.

DUNN, J.

This was an action on the case, brought by appellee against appellant to recover damages for personal injuries. Judgment against appellant has been affirmed by the Appellate Court, and a further appeal is prosecuted to this court.

The gist of the various counts of the declaration is that appellant failed to furnish appellee a safe place in which to work, and that the foreman, who was a vice principal, ordered him into a dangerous place. Appellee was engaged as one of a gang consisting of seven men, including Napoleon Fielder, the foreman, in removing two box cars a distance of about 40 feet north from their position near the freight depot, in Bloomington. The length of the cars was east and west, and one stood north of the other. They rested upon posts, the trucks having been removed, and were used by appellant's telegraph department for storing wire and other material. Cribbing was built of crossties nearly to the bottom of the cars, which were then raised by jacks, and railroad iron was placed upon the cribbing for a runway. Upon this runway rollers were placed, and the cars were then lowered until they rested upon heavy planking placed upon the rollers. The cars were then pulled to the places intended for them by blocks and tackle. The north car was moved and placed in its new position. The second car was then moved to its new position, parallel with and near to the other car. The car was an old one, and there was evidence tending to show that some of its joints were loose and decayed. The weight of the load in the car was variously estimated from 10,000 to 20,000 pounds. There were a number of wooden cross-arms for telegraph poles, estimated to weigh 3,000 pounds, on the roof of this car. A number of these had been taken by Fielder's direction from the roof of the first car, when it was moved, and piled on the roof of the second car. There was evidence that a suggestion was made to Fielder, before commencing to move the car, that these cross-arms should be removed, but that he said they were all right; that he was an old house mover and the car was safe. The second car having been placed in position, it was raised on four jacks, one at each corner, about 36 inches from the grund, and the runway and cribbing were removed. Appellee and his companion immediately blocked up the east end of the car, where they were working, but Fielder ordered the blocking removed. Two beer kegs were then placed under the corners of the car at the west end, with a timber running across on top from one to the other. Two kegs were also set under the corners of the car at the east end; the one at the northeast corner, near the first car, being shorter than the other. In trying to put a timber under the car from one keg to the other Fielder knocked this shorter keg over, and then told appellee to go around and set the keg up and put a block on it. In order to do this it was necessary to go under the car or between the cars. The appellee went between the cars, and while engaged in setting up the keg and putting the block on it, the car on the jacks fell, and he was caught between the two cars and injured.

The evidence was conflicting, but there was evidence tending to prove the facts just stated. Whether the foreman stated that the car was safe, whether it was loose-jointed and top-heavy, whether it was reasonably safe to raise it on the jacks without blocking more closely, whether appellee was ordered to set up the beer keg and put the block on it, whether it was negligence to give such order, and whether, if it was given, appellee, under the circumstances, assumed the risk in obeying it, were all questions of fact. The case was, therefore, properly submitted to the jury, and its verdict and the judgment of the Appellate Court conclude all such questions. While the requirement that the master shall furnish his servant a safe place in which to work must be considered in connection with the fact that the work was necessarily attended with some danger, yet it is the duty of the master to use reasonable care to see that the servant is not unnecessarily exposed to danger in doing his work. If the master negligently gives an order, in obeying which the servant is exposed to danger which he would not otherwise have encountered, the master may be held liable for an injury suffered by the servant.

It is assigned for error that the appellee was permitted to introduce in evidence the opinions of witnesses as to whether the method of raising the car was reasonably safe. Opinion evidence is admissible only upon subjects not within the knowledge of men of ordinary experience, and upon the ground that the facts are of such a nature that they can not be presented in such a manner that jurors of ordinary intelligence and experience in the affirs of life can appreciate them in their relations and comprehend them sufficiently to form accurate opinions and draw correct inferences from them on which to base intelligent judgments. The opinions of witnesses should not be received as evidence, where all the facts on which such opinions are founded can be ascertained and made intelligible to the jury. Linn v. Sigsbee, 67 Ill. 75;City of Chicago v. McGivin, 78 Ill. 347;Pennsylvania Co. v. Conlan, 101 Ill. 93;Hopkins v. Indianapolis & St. Louis Railroad Co., 78 Ill. 32. The subject-matter of inquiry here is not of such a character that only persons of skill and experience in it are capable of forming a correct judgment about it. There was no complicated machinery; no question of science or skill. If the expert witness did not know all the facts, his opinion would be only a guess. If he did know them, they could be detailed to the jurors, and they would be as competent to form an opinion as the witness. This evidence should not have been allowed to go to the jury.

The following instruction was given to the jury at the instance of the plaintiff: ‘You are instructed that if you believe, from the evidence, that Napoleon Fielder was not a fellow servant of the plaintiff and that he was the representative of the defendant company, with full authority to command and control the men and the work in question, and that said Fielder represented to the plaintiff that the car in question was safe, and that this representation was made within his authority as representative of the defendant, and that said plaintiff relied upon such representations, and that the plaintiff, in so doing, was in the exercise of reasonable care and caution for his own safety, and if you further believe, from the evidence, that the car in question was not reasonably safe or was not reasonably secure, and that the injury resulted to the plaintiff because the car was not resonably safe, or because the car was not reasonably secure, then plaintiff cannot be charged, in this case, with contributory negligence.’ It is insisted that this instruction is erroneous, because there was no evidence on which to base it, because it was not limited as to the time when the representation was made, and because it permitted the appellee to recover without proof that Fielder knew that the car was not reasonably safe and secure. The testimony of the appellee, Million, and Powell tends to prove that Fielder stated that the car was safe when they began to move it; but his statement did not refer to its condition at the time appellee was hurt. This instruction ought not to have been given.

The fifth instruction is as follows: ‘You are instructed that if you believe, from the evidence, that Napoleon Fielder was not a fellow servant of plaintiff, but was a foreman, with full power and authority to control the movement of the men employed at the work in question, and that he had full authority to direct and control the manner of doing said work, and that said Napoleon Fielder did, within his authority, order the plaintiff to work in a dangerous place or perform the work in a dangerous manner, that then and in that event the plaintiff did not assume the hazard or risk of obedience, unless the danger was so imminent that a man of ordinary prudence would not have incurred the risk or hazard.’ It is urged against this instruction, as against the third, also, which has just been considered, that it authorized a recovery without proof of Fielder's knowledge of the danger, and the case of Swierez v. Illinois Steel Co., 231 Ill. 456, 83 N. E. 168, is cited in support of this claim. This arises from a misapprehension. The instruction in that case purported to state the elements necessary to a recovery and dealt with the defendant's negligence in giving the order, a necessary ingredient of which negligence, it was said, was knowledge of the danger. The instruction here does not purport to state the elements necessary to a recovery. It does not deal with the defendant's negligence, but refers only to assumed risk. It was intended to advise the jury only on that point, and it stated the law correctly. A servant does not assume the risk of obedience to an order which exposes him to unusual or unnecessary danger, unless the danger is so imminent that a man of ordinary prudence would not have incurredit. Illinois Central Railroad Co. v. Sporleder, 199 Ill. 184, 65 N. E. 218.

It is objected to the fourth instruction given on behalf of appellee that it does not state that the care required of the plaintiff should have been exercised at the time of and immediately prior...