Libby, McNeil & Libby v. Scherman

Opinion op the Court, Waterman, J. Upon the trial appellee testified that after the brine and pork had been taken out of the barrel, the head of which was knocked in, the foreman said to him, “ How, everything is all right, go ahead to work.” Other witnesses in a measure corroborate this, although their version of what the foreman said is not the same as that of appellee. There was thus evidence warranting the jury in finding that appellant’s foreman, with certainly all the knowledge that appellee had of the danger, told him to go to work. In obedience to this direction he continued to work, and was there injured the next day. The accident to appellee arose, as far as appears, not from one of the ordinary hazards of his employment, but from an extraordinary and unusual thing done by appellant’s foreman and his direction to appellee to continue his work. An employe, as a rule, assumes the ordinary risks incident to the work in which he engages, and so too, he assumes the hazard of dangers which he knows, or by the use of ordinary diligence might have known. Wood on Master and Servant, Secs. 326 and 335. There is no evidence tending to show that the knocking in the head and removing the contents of a barrel above which are piled three tiers of packages, each weighing from 350 to 400 pounds, is an ordinary incident in the work for which appellee was employed; on the contrary, the circumstances tend to show that this was something extraordinary and unusual. Hor is there anything tending to show that the hazard existing when the contents of the barrel had been so removed, was patent, or could easily have been known by a person of the limited experience of appellee. Counsel for appellant, in speaking of this condition, say: “ The fact is that no one regarded it as dangerous, nor was it dangerous.” nevertheless, appellant’s foreman seems to have had some apprehension. of danger, as he said to the witness Drews, “ Look out for that empty barrel.” It may be the case that the foreman, in personally knocking in the head of the barrel and removing the contents thereof, was doing the work of, and acting as, a fellow-servant of appellee, but in determining and directing that the head should be so knocked in and the contents removed, which was the vital matter, he acted as a principal; this having been determined upon, it was immaterial who did the work; the negligence of appellant consisted, not in the doing of this work in a negligent manner, but in its being done at all. It was shown by testimony offered by appellant, that the chimb of the empty barrel was broken, where the head was knocked out, and it is abundantly apparent that the tier gave way and fell from the middle where that barrel was. There was thus abundant evidence from which the jury might find that appellant neglected its duty in respect to this inexperienced employe, who had been working for it only some four weeks. While not conceding this, appellant contends that the evidence does not sustain the declaration, that is, does not establish the existence of any of the negligence charged. We agree with counsel, in their contention that a mere charge or showing that the employes of appellant, of whom appellee was one, “ defectively ” piled certain barrels, and that in consequence of such defective piling the barrels fell and injured appellee, would be insufficient. A servant can not recover from his master merely for the consequences of defective work, done by his fellow employes. The declaration in this case is to be considered not as it would have been on demurrer, but as such instruments are after verdict. A verdict will aid a defective statement of title, but will not help a statement of a defective title or cause of action. 1 Chitty’s Pleadings, 16th Am. Ed., p. 713; Walpole v. Marlow, 2 N. H. 386; Worcester v. Proprietors of CanaBridge, 16 Pick. 549. The reason for the distinction is obvious; a presumption is entertained after verdict, in favor of what appears to be a good cause of action, while no presumption arises in favor of what does not appear to be any cause of action. So too, where there is any defect, imperfection or omission in any pleading, in substance or form, which would have been fatal upon demurrer, yet, if the issue joined be such as necessarily required on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that the judge would have directed the jury to give, or the jury would have given verdict, such defect, imperfection or omission is cured by the verdict. 1 Chitty’s Pleadings, 16 Am. Ed. 705; Smith v. The Eastern R. R., 35 N. H. 363-364; Read v. Chelmsford, 16 Pick. 128; Keegan v. Kinnare, 123 Ill. 280; C. & E. I. R. R. v. Hines, 132 Ill. 161. The declaration in this case in effect charges that appellant negligently removed from a barrel its contents, and thereby rendered it unable to support the weight of the barrels piled above it, whereby the barrels spread, tilted, gave way and fell upon the plaintiff. This is in substantial accord with the evidence. The allegations that the barrels were “ defectively piled ” may be rejected as surplusage, although if such charge be considered as referring to the condition of the pile after the contents of one barrel had been removed, the jury might well have found such pile to have been “ defective.” While the motion for a new trial does include as one of its grounds that there was a variance between the evidence and the declaration, yet it does not appear that the particular variance now insisted upon was pointed out to the court; had this been done, it might have been obviated by amendment. L. S. & M. S. Ry. Co. v. Ward, 135 Ill. 511. There was no error in refusing to admit the so-called expert testimony. Doubtless, barrels might be piled as these were, the contents of one removed, or a barrel itself taken out, without disturbing the remainder of the pile or causing it to give way; doubtless the majority of the people who cross a railroad track-in front of an advancing railroad, train, in plain view, are not injured, and the majority of people who ride about in wagons with cracked hubs and missing wheel spokes, arrive at home in safety; the question is not, was it most probable that the pile would give way when the contents of this barrel had been removed, but was appellant negligent as respects appellee, in what it did concerning such removal, and requiring appellee to keep there at work. The witnesses called by appellant might have testified that in their opinion the removal of the contents of this barrel did not affect the stability of the whole. Yet the fact would have remained, that the pile shortly thereafter gave way at the point where this barrel was. If appellant had offered to show that piles of barrels such as this, the contents of no part having been removed, frequently give way as did this, and that the danger of injury from such giving way and falling in, is one of the ordinary risks of the service in which appellee was engaged, the evidence might have been admissible. Taking the instructions as a whole, in which way they must be regarded, we think that appellant has no just cause for complaint in this regard. As to the action of the court in requiring a remittitur of $3,500 to be made, under penalty of granting a new trial, we do not think that appellant can complain of such action. The practice of refusing to enter judgment upon verdicts unless a portion thereof is remitted, is so common and such action so promotive not only of justice, but of an end of litigation, that it is almost essential to the proper conduct of jury trial that the court should possess such power. The judgment of the Circuit Court is affirmed.