Dolese & Shepard Co. v. Schultz

Mr. Justice Waterman delivered the opinion of the court. Appellant urges that “the failure to stop the derrick was not the proximate cause of the accident; that the same result would have been brought about if the stone had been stationary;” that the negligence, if any, of the foreman in failing to order the derrick stopped was the negligence of a fellow-servant; “ that appellee assumed the risk of the failure of the foreman to stop the derrick;” and “ that an order to a servant to do work incident to his business is not negligence.” With what might have happened if something had been done that was not, we are not in this action concerned; whether the failure to stop the derrick was a proximate’ cause of the injury is material. While it is true, as appellant says, that “ the force of gravity is immutable and attracts a body toward the center of the earth whether it is stationary or ascending,” it does not follow that an ascending weight will pursue the same path, diverging laterally, if at all, in the same way, whether it move freely or be caught and hindered by an obstacle pressing against its side. In the present case common observation would have indicated that the stone, if continually pulled upward while caught on the side of the car, would s.wing to one side when released. If appellee was Ordered to loosen the stone, and while doing so appellant’s workmen continued to pull the stone up, he was injured in consequence of such order and such pulling. We do not regard the order to loosen the stone, whether given with or without an oath, as negligence. Such order was but to do work incident to the service in which appellee was engaged; the business for which he was hired; the work he undertook to do. An order to do this, although the task be hazardous, is not negligence. Fitzgerald v. Honkomp, 44 Ill. App. 370; Nordstrom v. McArthur Bros., 87 Ill. App. 554. To continue, with the great force of a derrick, to raise this stone, while appellee, close thereto, was pulling it free, the jury have found to be actionable negligence. We can not say that the evidence did not justify such finding. Where a foreman and an employe are laboring together, each doing the same kind of work, as lifting a barrel of salt or a stone, negligence of foreman in such task is negligence of a fellow-servant. Beckstein v. Gall, 69 Ill. App. 616; Gall v. Beckstein, 173 Ill. 187. In the present case the foreman was directing. Under his supervising, the derrick continued to raise the stone while ’ appellee, in obedience to his order, was getting it loose. The foreman was thus acting as a vice-principal and not as a fellow-servant. Was the failure to stop the derrick an incident of appellee’s employment ? A servant assumes the ordinary and usual hazards of the business in which he is engaged. There is no evidence that the continued operation of this derrick while appellee wks loosening the stone, being lifted by it, was a hazard of his employment, and the jury have-found that it was not. We find no error in the giving or refusing of instructions nor in the trial of the cause, requiring a reversal of the judgment of the Superior Court. It is therefore affirmed.