Wells & French Co. v. Kapaczynski

Mr. Justice Wilkin delivered the opinion of the court: Appellant relies upon two propositions for a reversal in this court: First, that, by plaintiff’s own testimony he was told by the foreman that he could take his choice of going ahead and doing the work or going home, and it is said that if he chose to remain and go on with the work he did so at his own risk, and that the only constraint under which he proceeded was moral constraint, which the law does not and cannot recognize, and that there is no legal coercion; and second, that the claim of the plaintiff of assurance of safety cannot be applied to the case, for the reason that the plaintiff was as well aware of the danger of using the machine as was the boss or foreman who, it is claimed, ordered him to proceed with the work; and it is argued that the only question for our consideration is whether the Appellate Court was justified in finding that the verdict should have been for the plaintiff instead of for the defendant. Both propositions insisted upon by counsel must necessarily depend upon the facts of the case, and the Appellate Court having found the facts adversely to the defendant below, the legal questions attempted to be raised cannot be considered. Under the provisions of section 86 of the Practice act and the repeated decisions of this court, the finding of facts by the Appellate Court is conclusive upon this court, and the only question which we can consider is whether the judgment as entered by the Appellate Court was such as should have been rendered under the facts so found by it. Accepting as true the finding that defendant negligently ordered the plaintiff to perform certain work, and that in obeying such order the plaintiff was injured, all as charged in the declaration, and that the plaintiff was not guilty of any negligence which caused or contributed to such injury, there can be no serious question but that the judgment of the Appellate Court was the only one which could, under the law, have been properly entered. As to the binding- effect of the finding of facts by the Appellate Court upon this court, see Supple v. Agnew, 202 Ill. 351, and cases cited. The injury to the plaintiff having resulted, according to the finding of the Appellate Court, from the wrongful and negligent order of the defendant, and the plaintiff himself being without fault,' the doctrine of assumed risk can have no application whatever to the case. Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Dallemand v. Saalfeldt, 175 id. 310; Western Stone Co. v. Muscial, 196 id. 382; Chicago and Eastern Illinois Railroad Co. v. Hecrey, 203 id. 492. The judgment of the Appellate Court is affirmed. Judgment affirmed.