Myers v. American Steel Barge Co.

Mr. Justice Waterman delivered the opinion of the Court. In this case each count of the declaration charged specifically that the accident was caused by the breaking of a cable. Ho evidence that a cable broke was given; on the contrary, the evidence was that a buckle or hook broke, and therefrom the plaintiff was injured. Upon the motion that the jury be instructed to find a verdict for the defendant, this variance was pointed out, yet the plaintiff preferred to stand by his declaration, instead of amending the same, as he might have done. Because of such variance the jury were properly instructed to find for the defendant. Wabash Ry. Co. v. Friedman, 146 Ill. 583-589. The writer of this is of the opinion that while it is the duty of an employer to exercise reasonable care to see that the tools and appliances provided for the use of his workmen are reasonably safe, and employes have a right to presume that this duty has been discharged, the mere fact that an employe, while engaged in the work he has been set to do, is injured by the giving way of machinery, appliances or tools provided by his employer, does not of itself prove that the injury was the result of negligence upon the part of the master. In other words, a presumption of negligence does not arise from such proof, nor does it, as is contended, establish a aprima facie case of negligence. If the breaking of the machinery or tools was because of a defect therein, to charge the master with negligence it must be shown that he either knew, or ought to have known, of the weakness which caused the accident. C., C. & I. C. Ry. Co. v. Troesch, 68 Ill. 545; Chicago & Alton Ry. Co. v. Platt, 89 Ill. 141; East St. L„ P. P. Co. v. Hightower, 92 Ill. 139; Duffy v. Upton, 113 Mass. 544; Sack v. Dolese, 35 Ill. App. 636; Same v. Same, 137 Ill. 136; Joliet Steel Co. v. Shields, 146 Ill. 607. The plaintiff called as a witness the agent of the defendant, who testified that having examined a buckle, the breaking of which he was told caused the injury, the material thereof seemed perfect Appellant urges that whatever broke was not a thing with which he had anything to do, and that therefore the breaking of it from, as he says, its weakness, creates a presumption of negligence. The buckle and hook were necessary adjuncts to the work which appellant was employed to do; he was indeed not bound to examine either, but if injured, as a result of the insufficiency of either, he is bound in an action against his employer to show that his master either knew, or ought to have known, of the fault; in other words, that the master was negligent, which is not presumed. The judgment of the Superior Court is affirmed.