Western Stone Co. v. Earnshaw

Mb. Justice Seabs delivered the opinion of the court. We are of the opinion that the learned trial court properly sustained the demurrer of appellee to the plea of the statute of limitations which was interposed to the additional count of the declaration. The gist of the negligence set'up as a ground of action was the same in the additional count as in the original declaration. The addition in the former of an allegation of complaint by appellee and promise to repair by appellant, did not present a new cause of action. The additional count was merely a re-statement of the cause of action set up by the original declaration. Therefore the statute of limitations did not present a defense and the demurrer to it was properly sustained. Pardridge v. Gilbridge, 98 Ill. App. 134. The important and controlling question presented upon this appeal is as to a right of recovery upon the facts disclosed by the evidence. The appellant contends that the evidence shows no actionable negligence. We are of opinion that this contention is sound. The facts as established are that upon an extremely hot day the appellee was overcome by the heat. Doubtless the jury might infer from the evidence that this heated condition of the air in the engine shed was due partly to the heat generated by the boiler furnace and partly to the heat of the outside atmosphere. The jury were also warranted in finding from the evidence that the superintendent of appellant had promised appellee a day or two before the injury that additional ventilation should be provided in the engine shed within a day or so. But all these facts and inferences therefrom fall short of establishing a valid ground of action. There is still an essential element lacking, viz., a defective condition in the engine shed which was permitted through negligence of appellant, and which operated as a proximate cause of the injury. There is no evidence whatever which would warrant a conclusion that the engine shed was not ordinarily safe for use by the engineer. Neither appellee nor appellant are shown to have even considered a danger as arising from the condition of the house. It is true that appellee asked for more openings to provide further ventilation, but that this was merely for comfort and convenience is as inferable as that it was to obviate an existing peril. There was no suggestion of a complaint or a notice of danger in the request made by appellee for additional openings — nothing from which the employer might learn that his employe was exposed to peril by reason of a lack of sufficient openings. It was merely a request — neither a complaint nor a notice. There were two doors' and four windows in the shed, furnishing a considerable amount of opening for a building twelve by eighteen feet in dimensions. The additional openings suggested by appellee in his request to his brother, were for the west and south sides of the building, so that appellee “ could get some of the west breeze and so what breeze blew through from the south would blow on him and would not blow on the boiler and blow more hot air over to him.” The wind, upon the day when the injury occurred, was in the northeast. Juries are not confined to the facts directly established by the evidence, but may also make inferences, fairly deducible from facts directly established, a basis of their verdict. But there must be some foundation of fact from which such inference can be fairly drawrn. Here there is absolutely no ground for inferring that either appellee’s or appellant’s representatives regarded the shed as being in any degree dangerous as a place to work. Hor is there any evidence which, in our opinion, warranted a jury in concluding that the shed was in fact dangerous. Hence there can be no conclusion that appellant was lacking in ordinary care in this regard. That there could be any danger to any one employed in the engine shed from lack of ventilation, as the shed was constructed, could not, we think, be anticipated. For a result so unusual and extraordinary as not reasonably to be anticipated, the appellant can not be held liable. Fent v. T. P. & W. Ry. Co., 59 Ill. 349; Craven v. Braun, 73 Ill. App. 189; Braun v. Craven, 175 Ill. 401. In the Fent case, supra, the court said, speaking of liability for negligence: “Every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the results of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration.” The promise to add openings for more ventilation does not aid appellee’s case, for the promise was not shown to have been made to obviate a danger or in view of any danger known to either appellant or appellee. The time within which the additional openings were to be made, as promised bv appellee’s brother, had scarcely elapsed, and it is apparent from the evidence that had they been made they would upon this day have afforded none of the additional westerly or southerly breezes, to obtain the benefit of which they were intended, for upon that day the wind was from another quarter. Appellee, while attending to his duties, was stationed in the northeast part of the building. He testified : ,, “ This platform I stood on was about three or four feet from the east end of the building and a little bit to the north side. It was nearer the north side than the south side. The north side of the building was already furnished with two windows, each two feet nine inches by two feet ten inches; and the east side of the building was provided with a door two feet four inches by six feet four inches, and a window three feet by five feet eight inches.” There is no suggestion in the evidence and no ground for inference that these four openings in a building twelve by eighteen feet in dimensions, were inadequate to give appellee the benefit of all the breeze which came from the northeast, and upon that day there was no other breeze. Ho additional openings were requested by appellee upon the north or east. Appellee suffered what is commonly called a “heat stroke,” or prostration from heat, which, so far as the evidence discloses, was caused by uncommonly hot weather, and was in no manner caused by any lack of ordinary care upon the part of his employer. The mere relationship of employer can not of itself be made a ground for imposing the burden of appellee’s misfortune upon appellant. The judgment is reversed.