Chicago Union Traction Co. v. Theorell

Mr. Presiding Justice Baker delivered the opinion of the court. The plaintiff was in the service of the defendant and the-law imposed upon the defendant the duty to use reasonable care to furnish the plaintiff a reasonably safe place to work. The defendant may be regarded as having furnished to the carpenters employed to erect the coal bins, the elevated railroad structure as a scaffold to be used in such work. Considering the top of this structure as the floor of the scaffold so furnished, the evidence shows that it was twelve . feet wide, that its floor was made of flat ties placed six inches apart through which it was not possible for a man to fall. It was a safe place to put material required for the bins and for men to work unon in framing and fitting the lumber and other materials used in the construction of the bins. The contention is, that it was unsafe and dangerous because there was a space eighteen inches broad between the outer edges of the guard rails and the adjacent sides of the sills of the coal bins. The duty of the defendant was not to furnish a scaffold or platform that was reasonably safe for all uses and purposes, but to furnish a scaffold or platform that was reasonably safe for the uses and purposes for which a scaffold was required and for the use which was intended to be and was made of it by the plaintiff and other employees employed by the defendant in the work of erecting the coal bins in question. In determining whether a scaffold platform or other structure is reasonably safe for the uses and purposes for which it is furnished and intended, we must consider the structure itself, the uses and purposes for which such structure is required and intended, the length of time its use will be required, by whom it is to be used or occupied and the kind and amount of work to be done thereon. That a veranda of a hotel, apartment house, or private dwelling, any considerable distance above the ground, which is not enclosed by a railing or balustrade on the sides away from the building and has a space eighteen inches broad between the floor of the veranda and the building, would not be a reasonably safe veranda is certain. Such a veranda is a permanent structure, intended for permanent use; intended to be used and occupied in the evening as well as in the daytime, and by children as well as by adults. If a man intends to use the flat roof of his house for a summer garden he must, enclose it with a balustrade to make it reasonably safe for that purpose; but if a new roof is required and he employs men to put it on, he would not .be required to enclose his roof with a railing in order to make it a reasonably safe place for the men to work in putting on the new roof. A scaffold or platform was required in this case on the side of a coal bin next to the railroad solely for the plaintiff and the carpenter who worked with him, to stand on while setting up the framework of a bin on that side, and for the other carpenters to stand on while nailing to the framework the planks which formed that side of the bin. A bin was sixteen feet long and six feet high. Plaintiff and one other carpenter in about thirty days, according to the testimony for the plaintiff, or in about forty days, according to the testimony for the defendant, framed and put in place the framework of more than sixty bins, which would amount to one-half or at most two-thirds of a day for each bin and only one-half of this work was done on the side of the bin next to the railroad. Two carpenters would require but an hour or two, to nail on planks to cover a space of sixteen feet by six, so that all of the work to be done on the side of a coal bin next to the railroad, for which alone a scaffold was required, could be done by two carpenters in less than one day. Plaintiff and the other men employed by the defendant to work on the coal bins were experienced carpenters and men of full age. Considering the top of the railroad structure as the floor of a scaffold, the scaffold furnished was, as has been said, twelve feet broad with a floor through which a man could not possibly fall and at its outer edge, the edge next to the coal bin, was a plank ten inches wide. The space between the plank and the sill of the coal bin was at most eighteen inches, half a pace broad, and the one but two inches higher than the other. A carpenter in setting up the framework of a bin could without inconvenience or danger stand with one foot on the guard rail and the other on the sill of a coal bin. A carpenter in nailing planks to the side of the bin could, without inconvenience or danger, stand upon the guard rail, eighteen inches away from the sill. Indeed, if the scaffold had extended to the sill a carpenter in nailing planks to .the side of the bin would, for his own convenience, stand at least eighteen inches away from the sill. The top of the railroad structure afforded a safe, sufficient and convenient floor or scaffold for the carpenters to stand upon while doing all the work required to be done in putting up the side of the scaffold next to the structure. The plaintiff was not injured by the giving away of the scaffold, nor even by falling from it while directly engaged in work upon the coal bin. He fell by going to the outer edge of the guard rail to answer an inquiry of his foreman. Such an accident might have happened upon any scaffold which was not enclosed by a railing. It is a matter of common knowledge that the scaffolds on which bricklayers, painters and carpenters work are not enclosed by railings, nor is a railing necessary to make a bricklayer’s scaffold reasonably safe for a bricklayer, a painter’s scaffold or staging reasonably safe for a painter, or a carpenter’s scaffold reasonably safe for a carpenter. These considerations and others that might be stated lead us to the conclusion, that considering the top of the railroad structure as a scaffold, furnished by the defendant to the plaintiff, such structure must be regarded as reasonably safe, and the defendant cannot be held guilty of negligence in furnishing the same, or in failing to furnish to plaintiff another or different scaffold. To the contention that the defendant negligently permitted the guard rail to remain covered with grease and oil and that by reason thereof the plaintiff slipped and fell, it must be answered, that there is no such charge of negligence in the declaration, nor is there any evidence in the record tending to show that the greasy condition of the guard rail, if it was greasy, caused or in any manner contributed to the fall of the plaintiff. There is another view to be taken in the case, which is also conclusive against the plaintiff’s right of recovery. The fact that there was an open space between the guard rail and the sill of the coal bin was patent and obvious. The same space existed between the guard rail and the sill of each of the sixty and more coal bins upon which plaintiff had worked. “ If a defect is so plain and obvious to the senses that in the exercise of ordinary care the employee would discover it, and he continues in the employment without co:nplaint and without any assurance by the master 'that the defect will be repaired or the danger removed, he assumes the risk arising from it.” C. & E. I. R. R. Co. v. Heery, 203 Ill. 492-497, and cases there cited. Under the facts of this case and the rules of law relating to the assumption of risk, if the existence of the open space complained of could be regarded as a defect which made the scaffold or platform unsafe or dangerous, the plaintiff must be held to have assumed the risk arising from such defect. The judgment of the Superior Court will be reversed with findings of fact. Reversed.