Ross v. Shanley

Mr. Justice Windes delivered the opinion of the court. Appellants’ counsel, in his brief, makes twenty-one different points on account of which he claims that the judgment should be reversed. We think they may be all summarized under four different headings, viz: First, that the negligence charged was not proven; second, that the hazard was assumed by appellee; third, that there was a variance between the proof and the allegations of the amended declaration; and fourth, that the court erred in sustaining the demurrer to the plea of the statute of limitations to the amended declaration. As we have seen, there is a conflict in the evidence as to the usual manner of shoring the tunnel in which appellee was placed to work, in order to make it safe, and there was also a conflict as to the manner of the shoring, both as to the placing of the crutches and the nearness to which the planks used in shoring came to the face of the tunnel; and we are not prepared to hold, after a careful and critical reading of the evidence, that the jury were not justified in finding that the shoring did not extend sufficiently near to the face of the tunnel, and that the crutch nearest the face of the tunnel was not sufficiently near to the end of the planks to make a reasonably safe place in which appellee could do Ms work. Appellee was ordered by appellants’ foreman to work where he did at the time of the accident. Appellants’ foreman, in ordering appellee to work where he did, was charged with the duty of seeing that the place was reasonably safe. He represented appellants, and for them was bound to take reasonable precautions for the safety of appellants’ employes. Ill. Steel Co. v. Schymanowski, 162 Ill. 459; Consolidated Coal Co. v. Haenni, 146 Ill. 625; Hess v. Rosenthal, 160 Ill. 628; C. & E. I. R. R. Co. v. Hines, 132 Ill. 169; Cribben v. Callaghan, 156 Ill. 551; Hines L. Co. v. Ligas, 172 Ill. 315; Offutt v. World’s Col. Exp., 175 Ill. 472. But it is said that appellee assumed the risk of any dangers of his work, and being an experienced man in tunnel work, was chargeable with knowledge of any defects in the shoring which existed; that he knew, or could have known by the exercise of ordinary care on his part, any such defects as well as appellants’ foreman. This contention is not, in our opinion, tenable. Appellants’ foreman was charged with a specific duty, to wit, that of exercising reasonable care to see that the place where he sent appellee to work was reasonably safe, and appellee had a right to rely upon the performance of such duty by appellants’ foreman before he gave the order for him to work where he did. Appellee was not required to make a critical and careful examination of Ms surroundings at the place where he was sent to work by the foreman. We think it was properly left to the jury to determine whether appellants’ foreman exercised such reasonable and ordinary care to see that the place where he ordered appellee to work was reasonably safe before he sent him there to work, and also whether appellee knew or should have known the danger to which he was exposed. We can not say the verdict is manifestly against the evidence. Schymanowski case, supra; C. & E. I. R. R. Co. v. Hines, 132 Ill. 169; Nat’l Syrup Co. v. Carlson, 155 Ill. 215; Dollemand v. Saalfeldt, 175 Ill. 310; C. & E. I. R. R. Co. v. Knapp, 176 Ill. 127; McGregor v. Reid, 178 Ill. 464. We think the foregoing considerations sufficiently dispose of the first and second points. The third contention, that there is a variance between the allegations of the amended declaration and the proof, is not sustained by the record. It is true that the evidence on behalf of appellee shows that he was employed, worked for, and was paid by the firm of Ross, McRae & Ross, and this conformed to the allegation of the original declaration. The evidence offered on behalf of the defendants showed quite conclusively that appellee was employed, paid by and worked for the appellants, Ross & Ross. When this proof was made, and while the case was being argued, appellee filed his amended declaration, the allegations of which conformed to the proof so made by the appellants. By thus amending, appellee avoided all question of variance, for the reason that the appellants’ evidence supported the amended declaration in this regard. As to the fourth contention, that there was error in the ruling of the court in sustaining a demurrer to appellants’ plea of the statute of limitations to the amended declaration, we are of opinion it can not be maintained. The amended declaration states the same cause of action as the original declaration, in all respects. The only difference between the two declarations is the omission of the names of the defendants McRae and the city of Chicago from the amended declaration, which names were included in the original declaration and are charged in it as joint tort feasors with the defendants Ross & Ross. It is elementary and needs the citation, of no authorities to establish the proposition that in an action for a tort the plaintiff may sue any one or more of the joint tort feasors, and may have a judgment against any one or any number of the persons so sued, who are shown to be guilty of the tort alleged. It seems clear, therefore, and beyond all controversy, that the amended declaration in this case did not state a new cause of action different from the original, and that the ruling sustaining the demurrer to the plea of the statute of limitations was correct. The judgment of the Circuit Court is affirmed.