Leibnow v. Wisconsin Lime & Cement Co.

Mr. Justice Chytraus delivered the opinion of the court. It is the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place in which to work. Hess v. Rosenthal, 160 Ill. 621; Metcalf Co. v. Nystedt, 203 Ill. 333. The same rule obtains with reference to furnishing the servant with the implements and appliances wherewith he is to do his work. We think that when the hinge seat here involved had the canopy attached and was at the same time unfastened it was not a reasonably safe implement or appliance. When the seat was in that condition the very thing that did happen was likely to happen at any moment. The foreman, plaintiff’s superior, testified that for three years he drove this same wagon that plaintiff drove; that while he was driving the wagon the seat tipped over him once because he “caught hold of it” and he then tied it with a string or strap and thereafter drove the wagon with the seat so tied. In other words, he tied the seat to make it safe. This was clearly a recognition that without being fastened the seat was not safe. In the case of plaintiff it was the master’s duty to make the seat safe for the plaintiff; it was a neglect of the master’s duty not to do so. The fact that other employes had, for themselves, -fastened their seats cannot be regarded as having the slightest bearing in exoneration of defendant. Under the circumstances of this case such custom, if it were a custom, did not relieve the master of the duty to furnish this plaintiff with a reasonably safe implement with which to do his work. Another employe of defendant who testified had two experiences in having this same seat tip over while unfastened. Once it was tipped over by a gust of wind and the other time because, as he testified, he made a “mistake” and “grabbed it” and it came forward. As put by this witness, the seat “needed a strap on, whenever it had a canopy top on.” True, the condition of the seat was readily ascertainable upon inspection for the hinges were in plain sight and, undoubtedly, after using the wagon a short period the driver, plaintiff, would have realized the situation and possible dangers; but, upon the evidence, we cannot say that, before he was injured, he understood and realized the danger so as to charge him with having assumed the danger or with contributory negligence. .It was, as stated, the master’s duty to furnish a reasonably safe implement and it was not the servant’s duty to make any inspection to ascertain whether the implement was safe. It is immaterial whether the accident happened according to the plaintiff’s version in testifying or according to the version of the witness Briggs. We are convinced, not only by the dictates of common sense but by the .experience of others detailed in the evidence, that the unfastened seat with a canopy or top was an unsafe contrivance and we can arrive at no conclusion other than that defendant failed in its duty to exercise reasonable care to furnish its servant with a reasonably safe implement with which to do his work, when it furnished him with the wagon and seat in question. The judgment will be affrmed. Affirmed.