Illinois Central Railroad v. Swift

Mr. Justice Scott delivered the opinion of the court: Appellant duly excepted to the action of the court in overruling its motion made at the close of all the evidence for a peremptory instruction directing the jury to find for the defendant, and now seeks to present to this court the question whether there is in this record any evidence which, with the inferences reasonably to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff. Appellee urges that this question is not now open for consideration upon this record. His position in that regard and the views of the Appellate Court for the First District upon that subject are concisely stated in the following language from the opinion of that court in this cause: “At the request of the. appellant’s counsel the court gave nineteen instructions which, in differing language, submitted as questions of fact to be determined by the jury every contested igsue in the case, including the assumption of risk, contributory negligence of appellee, and the negligence of appellant. This being the state of the record, appellant can not now be heard to say that there was error in submitting the cause to the jury on either of these questions. The instructions referred to conceded, in effect, that there was evidence tending to, establish the plaintiff’s case on these issues, and appellant is precluded from asserting the contrary in this court.” This view of the law is incorrect. The motion for a peremptory instruction presents a pure question of law, and, in the event of an adverse ruling, an exception preserves that question of law for the consideration of an appellate tribunal. After that adverse decision the defendant may argue to the jury that its guilt is not shown by a preponderance of the evidence, which is purely a question of fact, and the submission of that question of fact to the jury by instructions offered by the defendant does not waive the question of law already passed upon by the court where the defeñdant’s rights have been properly preserved. This has been the universal practice in this State for many years and will not now be disturbed. The language used by this court in each of the cases of Consolidated Coal Co. v. Haenni, 146 Ill. 614, and Chicago Terminal Railroad Co.v. Schmelling, 197 id. 619, in so far as inconsistent with the views herein expressed, was not necessary to the disposition of the question then before the court. In support of this motion it is urged that the evidence fails to show that plaintiff was in the exercise of due care. A careful examination of the proof leads us to the conclusion that it lacks in this respect. Considering only the evidence favorable to appellee, it appears that the pile-driver, thirty-six feet in height, stood upon the east end of the scow, which was depressed by the weight, and that depression caused the structure to lean to the east. It did not fall eastward prior to the time appellee first climbed thereon, for the reason that it was guyed by ropes passing through the sheave-blocks near the top of the pile-driver and attached to posts or timber-heads on the scow west of the pile-driver. It appears from the testimony of appellee that his knowledge of pile-drivers was such that had this pile-driver been standing on the ground he would have known that guy lines were necessary to keep it in an upright position, but that he supposed as it stood upon the scow they might not be necessary. No reasonable ground for such supposition is shown. The pile-driver was in fact not otherwise secured except by bolts and plates designed exclusively to keep it from working back and forth or from side to side while in use on the scow. Under these circumstances, without attaching other lines to keep the pile-driver from falling, the appellee detached one of the sheave-blocks and with it the lines on that side of the pile-driver, and says: “I discovered, when I went up to unhook the first block, that the waves and water caused the barge to rock around some; the driver being pretty high up made it wave around,” and then having taken away one-half the lines which kept it in an erect position, he remounted the' leaning pile-driver and attempted to detach the sheave-block carrying the remaining lines, and while so engaged observed what he says was the end of a broken rope passing through the sheave-block, found the pile-driver falling to the east and his injury followed consequent upon the fall. Any person of intelligence, accustomed to working about pile-drivers, would know that this one, already leaning to the east and rocked by the winds and waves, would be liable to topple over uñless supported by lines or braces. The falls consisted of four lines on each side passing, from sheave-blocks at the top of the structure to posts on the scow west of the west end of the bed-sills. These lines were plainly visible. It would seem they could not be overlooked, and the most casual observation would show that they were necessary to the support of the pile-driver. Appellant had the right to assume that appellee, a man of mature years, was possessed of ordinary mental faculties, the usual powers of observation and such knowledge as is acquired by common experience. (Ruchinsky v. Frenchj 168 Mass. 68.) Such a man, exercising his senses, in broad daylight, in the situation in which appellee was, with his familiarity with pile-drivers, would perceive that this particular pile-driver was in danger of falling if the lines were removed. Failure to discover so obvious a danger could result only from negligence. In support of the action of the trial court in refusing to direct a verdict for the defendant, it is urged by appellee, in the language of this court in Illinois Steel Co. v. Schymanowski, 162 Ill. 447, “the master is liable, where the servant is injured by a temporary peril to which he is exposed by the positive negligent act of the employer without any negligence on the part of the servant,” and it is stated that recovery is sought on the principle that the master must not expose the servant to danger. The place in which, and the appliances with which, appellee was directed to perform the "service in question were not dangerous. The danger was created by the manner in which the servant performed the task. Here the superintendent was not present when the work was done; the command was given at a considerable distance, at least one hundred and fifty feet, from the place where the duty was to be performed, and the servant was at liberty, when he reached the scow, to go about the performance of the task in the manner that seemed to him best. Ropes were lying upon the scow which could have been used to secure the pile-driver before either sheave-block was removed. In fact, it appears that appellee’s fellow-workman, to whose attention the danger was not called as sharply as it should have been to that of appellee for the reason that the duty of ascending the pile-driver devolved upon the latter, contemplated attaching a guy line to the pile-driver before an attempt was made to remove the last sheave-block. Where the servant is specifically directed by his superior to do the work in a dangerous manner, and injury results, he may recover, unless, indeed, the danger was so imminent that a reasonably prudent man would not have incurred it. (Illinois Steel Co. v. Schymanowski, supra; Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; West Chicago Street Railroad Co. v. Dwyer, 162 id. 482; Illinois Steel Co. v. Wierzbicky, 206 id. 201.) Where, however, the employee is not directed to do the work in a specific manner, but is given a general order to perform the task and is himself left to use his1 own discretion as to the manner in which the work shall be done, and there exists a safe way and a dangerous way, which are equally open to him, if he selects the unsafe method through heedlessness or because it involves less exertion on his part, and injury to his person results, he cannot recover. Pennsylvania Co. v. Lynch, 90 Ill. 333; Illinois Central Railroad Co. v. Sporleder, 199 id. 184. It is further suggested, however, that the breaking of the rope in the left-hand set of falls was the proximate cause of the injury, and that the doctrine of res ipsa loquitur applies. The meaning of this term is that the thing itself speaks; that is, that the accident itself raises a presumption of negligence on the part of the defendant, which he must rebut by showing that he took reasonable care to prevent the happening of the accident. The doctrine only applies, however, where the machine, appliance or other thing from which the injury results is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those in control use proper care. (1 Addison on Torts, sec. 33; North Chicago Street Railway Co. v. Cotton, 140 Ill. 486; Chicago City Railway Co. v. Barker, 209 id. 321.) The doctrine does not apply here for the reason that the accident did not result from the condition in which the defendant placed and left the pile-driver. The ropes that held it, as it had been left prior to the time the appellee approached it, were sufficient to maintain it in an upright position. Had the ropes broken and the pile-driver fallen while appellee was ascending the first time and before either of the sheave-blocks had been removed, there would have been some ground for invoking the doctrine; but here the person injured had removed one-half the lines which the defendant had attached to the pile-driver for the purpose of sustaining it in an upright position, and after doing that he climbed again up the leaning pile-driver, which, deprived of one-half the support which the defendant had provided, with its tendency to fall to the east, in which direction it was leaning, increased by the weight of appellee, fell and the injury resulted. As between plaintiff and defendant the pile-driver ■ was not under the sole control or management of the defendant. On the contrary, the plaintiff was himself engaged in altering the condition in which it had been placed by the defendant. Under this state of the proof, it is not to be presumed that the rope was old and rotten or otherwise defective and that the defendant had actual or constructive notice of that fact. We are constrained to hold that the accident was the direct consequence of two acts of the appellee, viz., removing the sheave-block and the lines which it carried, and thereafter climbing upon the structure without first attaching another guy line or otherwise giving support to the pile-driver, and that in doing these acts he did not exercise ordinary care for his personal safety. The plea of the Statute pf Limitations seems to have been interposed as to all the additional cóunts of the declaration. It did not present a defense to all of them and we are therefore unable to say that the court erred in sustaining the demurrer to that plea,. The judgment of the Appellate Court and the judgment of the circuit court will be reversed and the cause will be remanded to the circuit court. Reversed and remandedT