John S. Metcalf Co. v. Nystedt~

Mr. Justice Ball delivered the opinion of the court. The motion of defendant for a continuance, based upon affidavits setting up the absence of the foreman, Royea, was properly overruled. These affidavits state many facts to which the witness, if present, would testify, some of which are material and others are not; and then they assert that such witness is the only one who can swear “to all the facts herein set out.” Non constat, other witnesses were present by whom all of those facts which were material to the issue could have been shown. Jarvis v. Shacklock, 60 Ill. 378. The special findings presented by appellant were properly refused. The answer to any one of them, in a manner most favorable to the appellant, would not render that finding repugnant to and irreconcilable with a verdict for the appellee. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132. Instructions numbers three and four tendered by appellee and given by the court, are carelessly drawn. In number three, it is stated that it is “ the duty of a master to exercise reasonable care in providing safe appliances and a safe place for the servant to work;” and in number four it is alleged “ that it is the duty of a master to exercise reasonable care in providing safe appliances, apparatus and instrumentalities for the use of the servant.” The rule fully stated is that it is the duty of a master to exercise reasonable care in providing reasonably safe appliances for the use of the servant, and in providing him a reasonably safe place to work. Hess v. Rosenthal, 160 Ill. 621. These two instructions as given do not necessarily require the master to furnish the servant an absolutely safe place to work, nor to furnish him with absolute^ safe appliances. Even the technical reader would say that the word “ reasonable” preceding the word “ care ” qualifies the word “place” or “appliances” which follows in the same phrase. Were the evidence conflicting, we would hesitate to pass by such instructions, but it is plain that under the undisputed facts of this case they did no harm to appellant. East St. Louis v. Crow, 52 Ill. App. 573-576, and cases cited. We find nothing that is reversible error in the giving or in the refusal of any of the other instructions. Were appellee and the carpenter, Kowald, who selected and put in place the lug which broke under the combined weight oE and the lifting power exerted by these six or eight men, fellow-servants ? If they were, then the verdict should have been for appellant. The evidence upon this point was not so conclusive that all reasonable minds must reach the same conclusion on the facts (Duffy v. Kivilin, 195 Ill. 630); and it therefore remained a question of fact to be determined by the jury, under a proper instruction, as to when the relation of fellow-servants exists. The court, by instruction Ho. 13, presented by appellant, stated this relationship clearly and correctly. The jury found that Kowald and appellee were not fellow-servants; and under the facts we can not say that such finding is wrong. This accident did not occur in the bin upon which the appellee was working, but in a bin at least two removes distant and next to the outer wall. The lugs in this last bin were selected and put in place by Kowald, another carpenter. There is no evidence showing any knowledge upon the part of appellee as to the character of the lugs supporting this platform, nor is it asserted that reasonable care for his own safety required him to personally examine the lugs before" he stepped upon the platform to assist in lifting the timber. It seems that where appellee is ordered to work upon a platform, not built or supported by himself, but by another, it is the duty of the appellant, as between himself and appellee, to see that such platform is securely and safely supported for the work then and there required to be done. McBeath v. Rawle, 192 Ill. 626. Was the injury to appellee caused by his obedience to an improper order given by the foreman ? The appellee and the other men then at work on the top of this elevator were suddenly and peremptorily called from their ordinary labor by the foreman and commanded to assist in putting this large timber in place. The time was midwinter, and the timber was icy. In obeying this command the men were given no opportunity for reflection, for when appellee paused to put on his gloves he was met by the harsh order, “ Get hold of that timber, G-d d—n you, and don’t keep, your hands in your pockets.” The men were not given time to think; it was their duty to obey. They sprang to the timber, which lay partly over the outer wall, crowded upon this platform, that being the place from which they could best handle the timber, and attempted to lift the timber, when the platform gave way. The foreman must be held to know that this platform was supported by lugs intended primarily to sustain the weight of but one carpenter while at work; that if it were subjected to a six or eight-fold pressure it might not stand the strain. These things he had time to consider, for he was superintending the bringing up and the putting of this timber in place. Ho such opportunity was given the men. It follows that the jury were justified in finding the order an improper one, and in holding the appellant responsible for the disastrous consequences that followed the attempt to obey it. The judgment of the Superior Court is therefore affirmed.