Kumorowski v. Armour & Co.

Mr. Justice Goodwin delivered the opinion of the court. Abstract of the Decision. 1. Masteb and seevant, § 687*-—when evidence sufficient to sustain finding that master negligent in failing to guard elevator platform. In an action for personal injuries where the first count in a declaration charged negligence in the failure to construct walls or other protection around an elevator in the canning department of defendant’s -packing house, and there was proof that such elevator was open at both ends and used by foreigners, acting as common laborers in elevating trucks, which, when placed on the platform of such elevator left very narrow margin thereon, and it appeared that the truck of plaintiff at the time of the accident was loaded with piles of boxes so high that the trucker could not see over the top, and the boxes, which projected slightly over the platform, struck a joist supporting an upper floor, fell off, and knocked plaintiff off the elevator, evidence held sufficient to sustain a.finding that the failure to inclose the platform of the elevator constituted negligence. 2. Masteb and seevant, § 156*-—what constitutes negligence in failing to guard platform of elevator. What is usually done is not the standard for determining the question of negligence or ordinary care with reference to the failure of an employer to protect the platform of an elevator used by its servants with an inclosure. 3. Appeal and ebbob, § 1520*—when refusal to give peremptory instructions in reference to some of counts in declaration, not reversible error. If there is evidence sufficient to sustain the action laid in any one of three counts in a declaration, the refusal to give peremptory instructions with reference to the other two, even if erroneous, is not reversible error. 4. Masteb and seevant, § 562*—when proof of single count sufficient. In an action for personal injuries sustained by a trucker while engaged in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, it is immaterial that the court failed to give a formal instruction to find the defendant not guilty on a certain count, on the ground that there was no evidence to show that the elevator operator was negligent as alleged in such count, where there is evidence to sustain other counts in the declaration. 5. Appeal and ebbob, § 1628*—when error in refusing to direct verdict as to particular count cured. In an action by a servant for personal injuries sustained while in performance of his duties in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes catching against a beam in the shaft, as the car ascended, falling off and knocking the plaintiff to the bottom of the shaft, it is immaterial that the court failed to give a peremptory instruction to find defendant not guilty on a particular count, alleging that the injury was due to the negligence of the operator of the elevator because they were fellow-servants, where the court specifically instructed the jury that the plaintiff and elevator operator were fellow-servants, and that no recovery could be had on account of the negligence, if any, of the latter. -6. Master and servant, § 773*—when question whether elevator unsafe place to work, for jury. In an action by a servant for personal injuries sustained, while in performance of his duties in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes catching against a beam in- the shaft, falling off, and knocking plaintiff to the bottom of the shaft, held that there was ample evidence to justify the court in submitting the issue raised by the first additional count of plaintiff’s declaration to the jury, such count having reference to facts which rendered unsafe the place where plaintiff worked and defendant’s knowledge thereof, and the question whether such facts together with all the other facts in evidence rendered the place unsafe, and defendant’s knowledge thereof, were properly submitted to the jury. 7. Master and servant, § 312*—when servant assumes risks of employment. The servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent, and if he voluntarily enters into or continues in the service, knowing, or having the means of knowing, its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury. 8. Master and servant, § 739*—when question of assumption of risk for jury. The question whether the servant has assumed the danger which he encounters ordinarily is one of fact, but the question will become one of law when but one conclusion can be drawn from the evidence by all reasonable minds. 9. Master and servant, § 751*—when 'question of contributory negligence of servant for jury. While the question whether a servant has been guilty of contributory negligence is ordinarily one of fact, it will become one of law when but one conclusion can be drawn from the evidence by all reasonable minds. 10. Master and servant, § 698*—-when evidence insufficient to establish assumption of risk attendant on use of defective elevator. In an action for damages for personal injuries sustained by a trucker while engaged in taking a truck of empty boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, held that the manifest weight of the evidence does not show that the hazard causing his accident was or should have been known to the plaintiff in view of circumstances that he was a common laborer at the bottom of the industrial scale, and that His regular work was that of trucking full boxes which were only piled two or two and one-half feet high upon his" truck, while there was evidence that plaintiff at the time of the accident trucked a load so high that he could not see over the top of it, and there was a conflict in the evidence as to whether plaintiff had ever trucked a load of empty boxes previously. 11. Master and servant, § 699*—when evidence insufficient to establish contributory negligence of servant using elevator. In an action for damages for personal injuries sustained by a trucker while engaged in taking a truck of empty boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, evidence held insufficient to establish that plaintiff did not exercise all the care which his circumstances at and before the accident allowed. 12. Appear and error, § 1410*—when verdict not disturbed as against weight of evidence. Where questions of fact are passed upon by a jury properly and fully instructed as to the law, and a motion for a new trial is considered and refused by the trial court, the verdict will not be disturbed as against the weight of evidence on appeal, unless it is clearly so on some essential issue involved.