Chicago, Burlington & Quincy Railroad v. Merckes

C. B. Smith, J. This was an action on the case brought by appellee against appellant to recover for injuries received by him while in its employ. Appellee recovered a verdict for $5,000, and the court, after overruling a motion for a new trial, gave appellee a judgment on the verdict. Appellant brings the case here on appeal, and assigns for error, 1st, that the verdict is against the law and the evidence, 2d, that the court erred in admitting evidence, and 3d, that the court erred in giving instructions for appellee, and in refusing instructions for appellant. The material facts out of which this suit arises, are briefly as follows: Appellant has large machine shops, and a roundhouse adjacent to each other, and connected by folding doors, in the city of Aurora. The shops and roundhouse in question were and are used for the purpose of building and repairing locomotive engines. The roundhouse was constructed after the usual manner, with a turn-table in the center, with a large number of tracks leading from the center to the outer.side of the building, like the spokes to a wheel. There was an inside circular wall in the roundhouse, parallel to the outside one, leaving a space of about forty feet. between the two walls. So much of the tracks as lay between these two walls had the space between them excavated for a depth of about twenty inches for the convenience of the men .working under the engines. There was thus left a pit between each of the tracks between the two walls. These pits were so constructed that the stone wall on which the iron rails rested projected toward the center of the pit about four inches beyond the inside of each rail for the purpose of forming a rest and support upon which to lay boards used in bridging the pits. For the purpose of bridging the pits, the company provided pine boards about afoot wide and about three inches thick, and long enough to fit in cross-wise between the rails. The heavy material used in building and repairing engines was hauled across these tracks to whatever point it was needed by the men upon carts provided and used for that purpose, and over the bridges so made by these loose boards, cut and made for that purpose. The boards were loose and movable to any point where or whenever it became necessary to bridge the pits between the tracks. This method of using and bridging the tracks and transporting material over them had been in constant use for a great many years, and appellee was perfectly familiar with it. At the time of his injury appellee was working with a gang of men whose particular business it was and had been to haul heavy material from the machine shop into the roundhouse with the cart or buggy over these' tracks and temporary bridges, to whatever point the material was needed. On the day appellee was hurt, he, in company with his foreman and five or six other of his co-servants, was directed to haul a heavy iron frame weighing about four thousand pounds, and about twenty feet long, from the machine shop into the roundhouse, to a point where a locomotive was being built. The frame was loaded on the cart by means of a “ crane.” The frame was longer than the cart. Appellee and one of his companions and co-servants took the front end of the cart to guide it in the right direction; the foreman and the remainder of the men took their places at the rear end of the cart to push. After passing through the doors into the roundhouse the cart was turned to the left, and it became necessary to cross three of the tracks and bridges to get to the fourth track, where the frame was needed. In crossing the third track the right wheel of the cart ran off the boards forming the bridge, and dropped down into the pit, causing the heavy iron frame to fall off the cart, and in falling it caught appellee’s foot, so injuring it that amputation became necessary. The complaint in the declaration is that appellant did not furnish good hardwood boards and have them bolted together so as to make a safe bridge, and that it allowed the boards used to become-old and rotten, and too short, and worn out, etc., so that the work could not be safely done. The plea was the general issue. There was no proof that the boards were rotten, or too short, nor that they were not strong enough to bear up the cart with its load. The board on which the cart was running did not break. It is certain from the proof that the wheel of the cart was allowed by the men in charge of it, either to run off the boards entirely on the south side, or to run into a crack between the boards, and drop down. The plaintiff himself swears that the bridge on which they were crossing was wide enough. All the witnesses agree that the individual boards were a foot wide and about three inches thick and about four feet long, and that the ends rested on a rock foundation between the iron rails. There is no claim that the company had not furnished all the boards needed. It was a part of the duty of appellee and his co-servants to look after and make these bridges where and when they were needed. The proof shows that during his last employment he had been engaged in this same service of moving heavy material over these tracks and bridges made with loose boards, for about ten months, and that under a former employment he had worked for appellant about two years in the same employment, using the same appliances in the same manner. Appellee swears that he knew when he entered the. employment on both occasions how the work was done, and how the bridges were made, and that he was perfectly familiar with it during his whole employment. There is no proof that appellant was ever requested to furnish any better or different bridging for the pits, or that any complaint was made by appellee or his co-servants in that respect. We think it very clear upon plaintiff’s own testimony and the testimony of all his witnesses, that there are at least two grounds which bar his right of recovery. First. It seems to us clear that appellee’s injury was the result either of his own or of his co-servant’s or their joint carelessness. We can not seriously doubt but that, if plaintiff himself, who was leading and guiding the course of the cart, had watched its course, or the wheels on the boards, he could have so guided it as to prevent its wlieels from running off the boards, or running between them. But from his own testimony he was paying no attention to them, but was looking forward, and pulling the cart. Those of his fellow-servants who were behind and .pushing the cart were equally negligent. It seems clear that any of them could have seen where the wheels were running, if they had paid the slightest attention. It would have required no extraordinary care or skill to have kept the wheels of this cart substantially in tliemiddle of a twelve inch plank, in going a distance of only four feet, and it was an act of gross carelessness for the men in charge of that cart in broad day-light with its heavy load, to allow it to run off its planks, and drop into the pit below. The law is too well settled in this State to require argument or authority to show that there can be no recovery had by one whose own gross negligence or that of his co-servants in the same line of employment, has caused the injury, or materially contributed to it. Second. If the company was negligent in not providing safe bridging for the excavations between the tracks, as alleged in the declaration, or if the work was necessarily and ordinarily hazardous, as carried on in the shops of appellant, and appellee continued in the service with full knowledge of the alleged negligence of the company, or of the hazardous character of his daily work, without any promise of the company to remedy them, then he can not recover for an injury caused by such negligence of the company, or from the hazardous character of the work. In case of the alleged negligence of the defendant, long persisted in by the defendant, appellee is presumed to have acquiesced in it, and taken his chances. In case of the ordinary and usual hazards of the employment, appellee is presumed to have contracted with reference to them. These principles have been held to be the law by a long line of decisions in this State, and can not be regarded as open questions. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; Rail Road Co. v. Britz, 72 Ill. 257; Simmons v. Railway Co., 110 Ill. 34; Pennsylvania Co. v. Lynch, 90 Ill. 333. The evidence in this case brings appellee clearly within the rule announced. If there was carelessness or negligence on the part of defendant or hazard in the nature of his employment, he knew all about both, and had known it for nearly three years. No promise was ever made by the company to change the methods of doing the work, or to do anything to make the work less hazardous, or to make any other kind of bridging for the pits. Appellant insists that the court erred in giving several instructions for appellee, and in refusing some offered by appellant. We think this complaint is well grounded. The third instruction given for plaintiff declares that “a person in charge of and directing a gang of men, with power to give them orders and exact obedience, is not in law a fellow-servant, * * * with the men under his charge.” Whether this instruction announces a correct rule of law in the abstract is not necessary to determine, but we think it had no proper place in the case because there was no evidence to which it could properly apply. There is no evidence to show that the foreman gave any directions or orders about how this load should be moved, except to say where it was pushed over one of the rails, “ Give it to her, boys.” This instruction was well calculated to mislead the jury and ought not to have been given. The fourth instruction was erroneous, because it informed the jury that it was the duty of the company to furnish reasonably safe machinery, etc. This would make the company a guarantor of the reasonable fitness and safety of its machinery in all cases. This is a higher degree of care than law requires. The company was bound only to use a high degree of care in providing safe machinery and appliances for its employes and servants. In Camp Point Mfg. Co. v. Ballou, 71 Ill. 417, it is held that the law only imposes upon the employer the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery. Shearman and Redfield on Negligence, Secs. 87, 92; North Chicago Rolling Mills v. Monka, 4 Ill. App. 664. We should not reverse for this error if there were no other, because the court announced the same rule of law to the jury in defendant’s seventh instruction at defendant’s request, and defendant can not complain of an error committed also by itself. The fourth instruction was also erroneous because it entirely ignored the fact that plaintiff knew all about the alleged negligence of the defendant and of the hazard of his work, and continued in this employment with full knowledge of both without objection, and without promise on the part of the company to remove the hazard or correct the negligence. The instruction told the jury that if they believed the defendant had been negligent in respect to the matters alleged in the declaration, then the plaintiff could recover, notwithstanding the uncontradicted facts showed that plaintiff could not recover under the cases above cited. This was error. We think the court erred in refusing to give the jury the first, second, fourth, fifth, sixth and seventh instructions asked by the defendant. They announce a correct rule of law and are in harmony with the cases we have before cited, and were applicable to the facts in the case, and it was error to refuse them. For the errors above pointed out the judgment is reversed. Judgment reversed. As a-result of the finding of this court of the facts differently from that found in the court below, we find the following facts to be incorporated in the judgment of this court: 1st. The appellant was not guilty of either of the several acts of negligence charged in either count of the declaration, in manner and form therein charged, and we further find that there is no evidence in the record tending to show that the appellant was guilty of the negligence charged in either count of the declaration, in manner and form as therein charged. We further find that the injury to defendant complained of in the declaration was caused and received by him on account of his own negligence, and that of his fellow-servants in the same line of employment with him.