Dignan v. Anderson

Mr. Justice Freeman delivered the opinion of the court. It is claimed the court should have directed a verdict for defendant, on the ground that “a clearer case of assumption of risk could not be found.” In this contention we do not concur. While it is true the work at which the plaintiff was employed was simple and apparently free from ordinary hazard, that he was not required in his work to go near the mixer by which he was injured, that there is evidence to show he had been warned to keep away from it and understood its danger, it can scarcely be contended that he had any reason to anticipate the particular danger which seems to have been the proximate cause of the accident, viz.: that the foreman or any one else would put a hoop over his head in such fashion as to catch in the cogs of the mixer and draw him into the machine. One cannot well assume a risk that he knows nothing about and has had no reason to anticipate. I. C. R. R. Co. v. Heath, 228 Ill. 312-315. It is said “the only possible answer that can be made to this proposition of assumption of risk is contained in the Employment Act,” referring to section 20J, chapter 48, R. S. This section provides that “No child under the age of sixteen years shall be employed in” (enumerating a long list of occupations) “or any other employment that may be considered dangerous to their lives or limbs or where their health may be injured or morals depraved.” Upon this statute the second count of the declaration is based. At the instance of defendant’s counsel however the court gave the following instruction: “The court further instructs you that before the plaintiff can recover in this case he is obliged to show by a preponderance,, or greater weight of all the evidence, first, that the act of the witness Anderson in throwing the wire hoop over the plaintiff was the proximate cause of the accident; and, second, that the witness Anderson in throwing the hoop over plaintiff was acting within the scope of his duties to the defendant, as the foreman of the defendant; and, third, that before the accident the plaintiff was not guilty of any negligence which proximately contributed to cause the accident; and if the plaintiff has failed to prove all or any one of these facts by a preponderance, or greater weight of the evidence, your verdict must be not guilty.’’ This instruction ignores the second count and directs a verdict of not guilty unless the jury find three things: first, that the act of the foreman in throwing the hoop was the proximate cause of the accident; second, that in so doing the foreman was acting within the scope of his duties as foreman; and, third, that plaintiff was not guilty of negligence contributing to the accident. By this instruction the statute referred to in the second count was eliminated from the jury’s consideration. At defendant’s instance the question of liability was rested wholly upon three questions of fact, which the jury by their verdict found against him. As to the first and third of these findings, it is apparent they are justified by the evidence. As to the other question, whether the foreman in using the hoop for the purpose, as he says, of drawing the plaintiff away from proximity to the dangerous machine, was acting within the scope of his employment, the finding is not without evidence directly tending to support it. The foreman states he was instructed to tell the boys to keep away from the machine. While he was not instructed so far as appears to use force to keep them away from'it nor to use any such means as he employed, it was we think a fair question for the jury whether he was or was not acting within the spirit of his instructions in attempting to draw the boy back from apparent proximity to danger. His judgment in the use of means was deplorable no doubt, but his purpose in the use of such means was not at variance with the duty he was charged with, viz.: keeping the plaintiff away from proximity to the machine. In Chicago City Ry. Co. v. McMahon, 103 Ill. 485-489, is a discussion of the liability of the master for the acts of an employe empowered generally to perform a duty without special directions. It is there said: “That part of the business of the company was placed in his charge with the general authority to . use his judgment in its performance. His acts therefore were the acts of the company within the scope of his employment. His legal authority of course but extended to lawful acts. * * * It is. a general rule, without exception, that when a servant exercises his power or performs his duty in so careless or negligent a manner that wrong ensues to another, the master is liable in damages. The rule has its origin in the foundation of the common law, if it was not borrowed from the civil law. In this state the rule has a more comprehensive definition and a broader application. It has been repeatedly held that when acting in the scope of bis duty, acts of the servant not merely careless or negligent, but willful and malicious acts are embraced.” In the case at bar the act causing the injury was not willful nor malicious. It may have been done in a spirit of kindly humor, but the result was the same as if it had been willful and malicious. The question of liability rests not so much upon the character of the act as upon whether the foreman was acting within the scope of his authority. See C. R. I. & P. R. R. v. Moran, 117 Ill. App. 42-48, where the subject is considered at some length. In T. W. & W. R. R. Co. v. Harmon, 47 Ill. 298-308, where a railroad company was held liable for injuries caused by the negligence of an engineer in letting off steam, it is said the company “should not be permitted to say, it is true he was an agent, was authorized by us to have the possession of our engines, was engaged in carrying on our business and while so engaged, he willfully perverted the instruments which we placed in his hands to something more than we designed or authorized, and therefore we should not be liable for the injury thus inflicted.” The court gave a further instruction as follows: “The court instructs you, as a matter of law, that if you find from the evidence that the act of the witness Anderson in throwing the wire hoop over the plaintiff was not one of the moving causes of the accident, your verdict must be not guilty.” By this, the jury were further authorizéd to find the defendant not guilty without reference to the second count and the statute regulating the employment of minors under sixteen years of age in any employment considered dangerous to life, limb, health or morals. If this was error it is error committed at defendant’s instance, of which he cannot complain. The defendant nevertheless submitted and the court gave an interrogatory to the jury, requiring them to answer whether the defendant was guilty of a violation of the statute in employing the plaintiff on the floor of the bakery where he was injured, and the jury answered “yes.” In view however of the finding upon the questions submitted under the instructions above discussed, we deem it unnecessary in this case to consider the effect and applicability of that statute. While there may be errors in procedure as pointed out by counsel, they were not we think harmful nor such as would justify a reversal of the judgment. It will therefore be affirmed. Affirmed.