Fitzgerald v. Honkomp

Waterman, P. J. The contention of appellant is that the accident was not the result of one of the ordinary incidents of the business; that the foreman was guilty of personal negligence in failing to extract the slag before ordering the heated mass thrown into the water, or in ordering it thrown in at all, with slag adhering as a portion thereof; that the testimony offered by appellant and rejected by the court, should have been admitted. An employe assumes all the ordinary risks of the service which he undertakes, and this includes the risk of occasional negligence or unskillfulness on the part of his fellow-servants engaged in the same line of duty or incidental thereto, provided the employer has not been guilty of negligence in employing or retaining such fellow-servants. I. C. R. R. Co. v. Cox, 21 Ill. 20; Wharton on Negligence, Sec. 224. Nothing of an unusual nature ivas being done in the shop . of appellees when the accident to appellant occurred. Appellant was working as he was accustomed to work, and the regular business of the shop ivas being pursued. There is no evidence tending to show that the adhering of slag to the copper bricks and the dumping of such bricks into water was unusual; the explosion that followed, like the slight explosion that preceded, it is shown was a natural result of the contact of hot slag and water. We think that under the rule expressed in C. & A. R. R. Co. v. May, 108 Ill. 288, a master is liable for an accident which happens in consequenee of “ an improper ancl inconsiderate order,” such as “ no one exercising ordinary care would have given,” when such order is given by a foreman or superintendent having authority not only to give orders as to work but to discharge the person to whom it is given; but if an accident happens from some negligence of the foreman, “ which negligence related to the foreman’s duties as a co-laborer with the person injured, and which might just as readily have happened with one of them having no such authority,” the master is not liable. If the accident happened from Tapp’s negligence in failing to extract the slag before the brick was dumped into the water, then it happened from the negligence of a fellow-servant and there can be no recovery from the master. Did it happen from any improper or inconsiderate order given by the foreman % The only orders given by the foreman to appellant were to “ go and tend the tank and keep the copper under water.” This was merely an order to do what was daily done in the shop, and with the doing of which it is not claimed the appellant was unfamiliar. The order that appellant was obeying when the accident happened, was this order, which, in effect, was no more than to do a portion of the every-day work of the shop. The work was not one of unusual hazard in the shop. All the business of the shop was probably more hazardous than many employments, but the work at which appellant was set this day, was no more so than were other things done in the place. The foreman ordered Peterson to hurry up and dump the copper into the tank. This was but an order to do what was usually done; the copper was ordinarily dumped into the tank as soon as it readily could be after it was placed upon the bench, in order that it might be kept bright. These operations were attended with danger, but the danger was usual, and there is nothing to show that it was one of which appellant was ignorant. He merely testifies that he “ knew nothing about getting copper from slag.” Hor was there any latent danger hidden from an ordinary workman. Appellant desired to show that the contact of heated slag with water will produce an explosion, while the contact of heated copper and water will not; the court1 refused at one time to allow such evidence to be given, but a witness afterward testified that if slag was not thrown in carefully, if it was too hot, the slag would explode away from the copper. 'Evidently that was what happened in this case; the negligence, if any, was that of Peterson, in dumping the molds, or of some workman in suffering bricks with slag adhering thereto, to be taken to the bench; such acts were the acts of fellow-servants. Even if Tapp was the person by whose negligence bricks with slag upon them were hurried from the furnace to the bench, such negligence was that of a fellow-servant. Against them no action has been brought; for the negligence of fellow-servants the master is not liable. We understand that it is insisted by appellant that he was doing what he had been ordered; that Peterson was doing what he had just been ordered; and that in consequence of the order to Peterson, he, Peterson, did hurry up and dump the molds; that such order and its obeyal by Peterson exposed him, appellant, to an unusual danger, and that he, appellant, was also in a position where, if he did not obey the order given to him, he was liable to be discharged, and if he did obey he was exposed to unusual peril. We do not think that there was anything unusual done; there is no evidence tending to show that the molds were dumped any more quickly than usual, or indeed than was necessary for the production of the best grade of copper; or that it was unusual for the bricks to have slag adhering thereto. Nor was there any evidence tending to show that Peterson dumped the molds any sooner than he would have done had not the foreman told him to hurry up. So far as appears, nothing but the usual work of the shop was going on 'and each man doing what was ordinary every-day work. The judgment of the Superior Court is therefore affirmed. Judgment affirmed.