Malloy v. Kelly-Atkinson Construction Co.

Mr. Justice Willis delivered the opinion of the court. In October, 1906, the Kelly-Atkinson Construction Company, appellant, was erecting a steel railroad bridge in the city of Chicago, near which were two railroad tracks running east and west, elevated from six to eight feet. The completion of the bridge necessitated the erection of a wooden tower, the timbers for which, were brought on cars and thrown off on the outside of the south track, and when needed were lifted by a line which ran through a pulley fixed to the tower of the bridge about 60 feet above the center of the south track. The line was fastened about the middle of the timber and operated by an engine called a “nigger head,” which stood on a level with the railroad tracks. The timbers had to be moved from the ground to the tower without obstructing certain trains. On October 26,1906, while appellee and three of appellant’s other employes, including Brown the foreman, were removing a timber twelve by twelve and thirty feet long, from the ground to the tower, an approaching train necessitated their placing it between two tracks temporarily. The space between the tracks was seven or eight feet wide, in which was a depression of two or three feet, across which a timber three by ten, or four by eight, had been laid, the ends resting upon the earth at the edge of the tracks. In moving the timber over between the tracks it was raised two or three feet. Two men took hold of one end, swung it around between the tracks and rested their end on the deck of the bridge. Appellee took hold of the other end, swung it over between the tracks,, by pushing against it with his hands and breast, when Brown, the foreman signalled “all off” to the man at the “nigger head,” and the machinery was released, and the timber dropped on the cross piece, which broke, and appellee fell into the depression with the end he was breasting in such a way that the weight of his body caused a fracture of his left arm and the dislocation of his wrist. On March 26, 1907, he brought this suit in the Circuit Court of Will county to recover damages for such injuries. The original declaration consisted of one count which averred that when appellee was injured he was engaged in moving a timber for appellant which had been raised by machinery under the direction of appellant’s foreman and vice principal, and while he ■’was pushing on the timber close to or over a certain excavation the foreman negligently ordered the machinery to be instantly released without warning to appellee, thereby causing the timber to drop, and that by reason of such negligence appellee was injured. The declaration did not allege that the foreman was not a fellow-servant of appellee, and omitted all reference to the cross piece which broke and caused the timber to fall into the depression. There was a plea of not guilty, and a verdict for appellee for $5000. A motion for a new trial was made. Thereafter, by leave of court, over appellant’s objection, appellee filed an additional count which averred that the plank, three by ten, placed over the depression to hold the timbers was of insufficient strength to hold said timber, and that said foreman well knew or should have known it was dangerous and unsafe to drop said timber upon said plank in the position appellee was standing, and that the timber, together with appellee, fell into said excavation, breaking through said plank, and that because of said negligence in ordering said machinery released and said beam to be dropped, appellee was injured. On the argument of the motion for a new trial the court required appellee to remit $2000 from the verdict, which was done. The motion for a new trial was denied, judgment was entered on the verdict for $3000 and the company appealed. It is urged that there can be no recovery because Brown, in giving the “all off” signal was not performing the act of a vice principal, but that of a fellow-servant. All the witnesses testified that he was appellee’s foreman, and no objection was made to such testimony. The proof shows that he gave orders to appellee and to the man in charge of the “nigger head,” relative to handling the timber, and also that he frequently worked with the men in handling the timbers. The question whether Brown at the time of the accident was a vice principal or a fellow-servant was one of fact for the jury. Goldie v. Werner, 151 Ill. 551; C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330. Although he was acting in a dual character, the question whether the particular act of signalling the man in charge of the nigger head “all off” was the act of a fellow-servant of appellee, was also a question of fact for the jury. Mobile & Ohio Co. v. Massey, 152 Ill. 144, C. & E. I. R. R. Co. v. Driscoll, supra. If the timber was dropped by reason of the authority which Brown exercised as vice principal, the fact that he worked with appellee and the other men more or less did not exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. Chicago & Alton R. R. Co. v. May, 108 Ill. 288; Pittsburg Bridge Co. v. Walker, 170 Ill. 550; Offutt v. World’s Columbian Exposition, 175 Ill. 472; Metropolitan West Side Elevated Railroad Co. v. Skola, 183 Ill. 454; Norton v. Nadebok, 190 Ill. 595; Graver Tank Works v. O’Donnell, 191 Ill. 236. It is argued that appellee assumed the risk. The evidence shows that an “all off” order had never before been given at that place under such circumstances. One of the first principles of the assumption of risk is knowledge of the danger. Appellee could have no knowledge that he would be subjected to danger through a negligent order of the foreman. Whether he assumed the risk or not was also a question of fact for the jury. The original count averred negligence in giving the order “all off” which meant to let the timber fall instantaneously. The additional count was based on the proposition that the plank across the depression was of insufficient strength if the timber dropped thereon suddenly, and for that reason it was negligence to cause the timber to be suddenly dropped. We are of the opinion that the judgment on the question of appellant’s liability can be sustained under the original declaration. If the additional count was necessary to constitute a cause of action its averments were not at variance with the evidence introduced on the trial, and it was proper to permit it to be filed. It is argued that the damages are excessive even after the remittitur of $2000 ordered by the trial court. The evidence is undisputed that appellee’s arm was broken and wrist dislocated. He suffered pain and incurred some expense in being treated and lost two months time and had lost the use of three fingers of his right hand. He was a structural iron workman, earning $4.85 per day, previous to the accident. His ability to do portions of his former work must necessarily be somewhat impaired. A doctor, after an exam-' ination of appellee at the time of the trial, testified that the condition of the hand might or might not be relieved by an operation, and that for any work requiring the skilful use of both hands, the injured hand was practically worthless. It is true that the evidence does show that appellee had, at times since the injury, earned nearly as much money as he did before, but it was not at his regular employment. The judgment is affirmed. Affirmed.