Gravadahl v. Chicago Refining Co.

Mr. Presiding Jdstice Sears delivered the opinion of the court. There is presented upon this appeal but one question of controlling importance, viz.: whether the evidence, with all legitimate and natural inferences to be drawn therefrom, so far tends to support appellant’s alleged cause of action as to warrant the submission of such evidence to a jury. If, without weighing conflicting evidence or passing upon the credibility of -witnesses, it could be said that the evidence is so far insufficient to support a verdict for the appellant that such a verdict, if returned, would have to be set aside as unsupported by evidence, then the action of the trial court in directing a verdict for appellee was right. Rack v. Chicago City Ry. Co., 173 Ill. 289. But if the evidence is such that reasonable men of fair intelligence might from it draw different conclusions as to whether the fact here necessary to create liability of appellee has been established, then the evidence should have been submitted to the jury. Wabash Ry. v. Brown, 152 Ill. 484; C. & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Sidall v. Jansen, 168 Ill. 43; Offut v. The W. C. E., 175 Ill. 472. There is no such evidence of any contributory negligence on the part of appellant as would warrant the trial court in directing a verdict for appellee. The only question was as to the sufficiency of showing that there was negligence of appellee which was a proximate cause of the injury, and we are of opinion, after a careful review of the evidence, that this question should have been submitted to the jury. If the contention of counsel for appellee as to the facts presented could be maintained, viz., that it does not appear from the evidence that appellee moved the car in question, and that it is established by the evidence that the condition of danger which caused the injury was the result of the acts of appellant and fellow-servants of appellant in moving the flooring of the scaffold about, then a very different question would be presented. In that event the only question of negligence on the part of appellee would be as to whether it could be found to be negligence to erect a scaffold of the kind in such proximity to the railroad tracks. But we are not prepared to hold that no different conclusions of fact than those contended for by counsel for appellee could be reasonably drawn from the evidence. Appellant testified that from the time when he went upon the scaffold the planks were not moved. If from this evidence and the evidence as to the car striking the scaffold the jury might reasonably have found that the scaffold was in a dangerous condition when appellant was directed to go upon it to work, then it was error to exclude from the jury the consideration of such evidence. Hess v. Rosenthal, 160 Ill. 621; C. & A. R. R. Co. v. Maroney, 170 Ill. 520; Offut v. The W. C. E., supra. And if the evidence would support such a finding of fact, then the fellow-servant doctrine, invoked by counsel for appellee, would have no application. C., B. & Q. R. R. Co. v. Avery, 109 Ill. 314; Hess v. Rosenthal, supra,. Mor do we regard as tenable the contention that the evidence wholly fails to show that appellant was directed to go upon the scaffold by a vice-principal of appellee. Harwig testified as follows: “ Q. When Cluth was absent from the work, who had charge or direction of the men ? A. I did. “ Q. Do you know whether or not you directed Gravdahl that afternoon as to what he should do¿ A. Tes, sir; I told him to go on that scaffold -and drill some holes there for some heavy bolts to hang the shaft.” This witness also testified that he worked in common with the other workmen, including appellant, and that he took all orders from Cluth, the foreman, and merely conveyed them to the others. But we can perceive no material difference in the effect of Harwig’s command to "appellant, whether he got his direction in the matter from Cluth, or gave it while acting as a foreman in the absence of Cluth. In one of the counts of the declaration it is alleged, in substance, though inartificially, that appellees directed the movement of the car which ran into a part of the scaffold and caused its fall. There was some evidence tending to show that apjiellee did move the car. Whether it was negligent to move a car upon a track so near to this scaffold, upon which appellant and others were at work, without first learning of the condition of the movable flooring of the scaffold, was a question of fact for the jury. We can not weigh the somewhat conflicting evidence, consisting of statements made by the witnesses before the trial and the testimony given by them at the trial, and upon a question of credibility, determine that a verdict could not have been properly given for the appellant. Neither could the trial court, upon a demurrer to the evidence, or motion in the nature of a demurrer, base its action upon such consideration. Rack v. Chicago City Ry. Co., supra. Whether by reason of such question of credibility and weight of evidence, the appellant may eventually be able to recover, is not to be determined now. We can only determine now that there was sufficient in the evidence to warrant its submission to a jury, not upon the theory that the evidence amounts to a scintilla only, in support of the appellant’s right to recover, but upon the proposition that reasonable minds might reasonably differ in conclusions of fact as to such right. We are of opinion that the ruling of the trial court, excluding proffered testimony as to a better and safer method of constructing the scaffold, was correct. The matter in issue was whether the scaffold in question was reasonably safe; not whether some other scaffold would be safer. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C., B. & Q. R. R. Co. v. Smith, 18 Ill. App. 119; Richards v. Rough, 53 Mich. 212; Sweeney v. Berlin & Jones Co., 101 N. Y. 520; Kehler v. Schwenk, 144 Pa. St. 348. In the case last cited the Pennsylvania court said : “ Except to make another man’s Avill for him, after his death, there is nothing Avhich a jury is more apt to think it can do better than the owner, especially under the stress of a claim for damages by one who has been injured, than to say hoAV another man’s business ought to have been managed, and nothing in Avhich juries should be held more strictly and unflinchingly Avithin their proper province.” We think that the court Avas right in refusing to hear evidence upon a collateral issue, viz., as to whether there was or was not a better and a safer method of constructing scaffolds—an issue the determination of Avhich would not determine the liability of appellee. Eor the error in peremptorily directing a verdict, the judgment is reversed and the cause is remanded.