Illinois Steel Co. v. Schymanowski

Mb. Justice Gary delivered the opinion of the Court. The appellee sued the appellant to recover damages for a personal injury sustained by him by reason of ore falling upon him from a pile at which he was at work for the appellant. The evidence tended to prove that the appellee was at work on a dark and stormy night, with insufficient light, by the side of an ore pile, which, at the place where he worked, was about ten feet in height vertically, and slanted back to a much greater height; that he went to “ the boss ” for more light, who swore at him with an epithet uncomplimentary to the mother of the appellee, and ordered him to “ go to work;” that “ the boss ” then went in advance of the appellee to the ore pile, and struck into the pile a good many blows with a pick, and with more oath and epithet, said “you pick here;” that the ore pile had a frozen crust upon it and was steep, so that it was unsupported. That the ore did fall and injure the appellee was undisputed. On such a state of facts, a verdict for the injured laborer is to be expected; and objections to the verdict, based upon alleged insufficiency of the evidence, are overruled. Some complaint is made as to the conduct of the court during the examination of witnesses, but even if such complaints were well founded, the abstract shows no exception to what is complained, of, nor did the grounds assigned in the motion for a new trial touch the matter. Such silence is a waiver. Hintz v. Graupner, 138 Ill. 158; Hoffman v. World’s Col. Ex., No. 5241 this court. The sufficiency of the declaration is not in question. Ho motion in arrest was made, nor is there any assignment of error that the declaration is not sufficient. Ho specific variance was pointed out and made the ground of objection below. If, therefore, the evidence be such that upon any pleadings a verdict for the appellee would be sustained, he is entitled to keep his judgment, unless there are errors upon the instructions. McCormick Har. Mach. Co. v. Buranot, 37 Ill. App. 165; 136 Ill. 170. The exercise of reasonable care that the place at which the appellee worked should be safe, was a duty of the appellant; and if one in authority “ gives an order within the scope of his authority, if not manifestly unreasonable, those under his. charge are bound to obey, at the peril of losing their situation, and such commands are, in contemplation of law, the commands of the company, and hence it is held responsible for the consequences.” C. & A. R. R. v. May, 108 Ill. 288; Stearns v. Reidy, 33 Ill. App. 246; Mann v. Oriental Print Works, 11 R. I. 152; Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573. It is a fair inference that the condition of the pile was known to “ the boss,” and among the duties of the appellant was, that “ the boss,” whom it put in charge, should be capable to appreciate obvious dangers. Being a corporation, it could only act through agents. Consol. Coal Co. v. Haenni, 146 Ill. 614; Monmouth, etc., Co. v. Erling, 148 Ill. 521. The first count of the declaration is as follows: “For that, whereas, heretofore, to wit, on January 18, A. D. 1892, to wit, at the county aforesaid, the defendant was possessed of a large pile of ore, and was in the night time causing quantities of said ore to be taken- from said pile of ore and conveyed elsewhere in certain wheeled vehicles, and it was the duty of said defendant to have the sides of said pile of ore of such a shape and so supported that said ore would not fall down and injure the persons engaged in its removal, as aforesaid, and to have the place at said pile of ore, from which ore was being taken as aforesaid, well and sufficiently lighted, so that the persons engaged in removing said ore from said pile might. safely perform their work, and see and avoid any danger which might threaten them in the prosecution of said work, yet the defendant did not do its duty in this regard, but carelessly, negligently, xoillfully wnd wantonly had and kept the side of said pile of ore, from which ore was being removed as aforesaid, so steep, unsupported and overhanging that the under part of the same would not support the upper part of the same, and had said place from which said ore was being removed as aforesaid, poorly and insufficiently lighted, so that the persons engaged in removing said ore from said pile of ore could not safely perform their work, nor see nor avoid any danger which might threaten them in the prosecution of their work; and the plaintiff was in the employ of said defendant, and Avas then and there by said defendant in the night time set to work to assist in moving said ore at said place in said pile of ore, from Avkich ore was being removed as aforesaid, and was by said defendant ordered to work at said place and assist in moAdng said ore, and the plaintiff then and there protested to said defendant against Avorking with so little light, but said defendant insisted that the plaintiff should work at said place as it then was, and promised the plaintiff to furnish more light there within a short time thereafter, and the plaintiff then and there, Avithout fault or negligence on his part, relying on said promise of said defendant, the night being dark and stormy, and the plaintiff being ignorant of the dangers of the place, obeyed the order of said defendant and went to work at said place, assisting in moving ore from said pile, Avhen, in consequence of the careless, negligent, willful am,d wa/nton misconduct of the defendant aforesaid, a large quantity of ore fell from the upper part of said pile of ore to and upon the plaintiff there, and, Avithout fault or negligence on his part, greatly bruised, wounded, mangled and permanently crippled the plaintiff, and injured him as more fully set out in the last count hereof.” Of the words of that count here in italics, there was no evidence; and the other counts are much like the first with the italicized words left out. The instructions asked by the appellant upon the refusal of which error is assigned in the brief, all ignore the alleged order by “ the boss ” to the appellee to work at the pile. The italicized words can be stricken out without impairing the first count, and therefore the failure to prove them is not important. Burnap v. Wight, 14 Ill. 301; Sundmacker v. Block, 39 Ill. App. 553. The judgment is affirmed.