{ "id": 5291393, "name": "Garden City Wire Spring Co. v. August Boecher", "name_abbreviation": "Garden City Wire Spring Co. v. Boecher", "decision_date": "1900-12-04", "docket_number": "", "first_page": "96", "last_page": "105", "citations": [ { "type": "official", "cite": "94 Ill. App. 96" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "183 Ill. 290", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "170 Ill. 111", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "151 Ill. 551", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5470417 ], "opinion_index": 0, "case_paths": [ "/ill/151/0551-01" ] }, { "cite": "137 Ill. 139", "category": "reporters:state", "reporter": "Ill.", "weight": 3, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "65 Md. 438", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1808716 ], "opinion_index": 0, "case_paths": [ "/md/65/0438-01" ] }, { "cite": "70 Iowa, 561", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8650754 ], "opinion_index": 0, "case_paths": [ "/iowa/70/0561-01" ] }, { "cite": "72 Ill. 287", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "146 Ill. 603", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3066252 ], "opinion_index": 0, "case_paths": [ "/ill/146/0603-01" ] }, { "cite": "167 Ill. 156", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3091509 ], "opinion_index": 0, "case_paths": [ "/ill/167/0156-01" ] }, { "cite": "148 Ill. 573", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3060000 ], "opinion_index": 0, "case_paths": [ "/ill/148/0573-01" ] }, { "cite": "162 Ill. 447", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5512319 ], "opinion_index": 0, "case_paths": [ "/ill/162/0447-01" ] }, { "cite": "175 Ill. 472", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3161519 ], "opinion_index": 0, "case_paths": [ "/ill/175/0472-01" ] }, { "cite": "173 Ill. 187", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5538424 ], "opinion_index": 0, "case_paths": [ "/ill/173/0187-01" ] }, { "cite": "53 Fed. Rep. 519", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3810141 ], "opinion_index": 0, "case_paths": [ "/f/53/0519-01" ] }, { "cite": "139 Mass. 580", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 759894 ], "opinion_index": 0, "case_paths": [ "/mass/139/0580-01" ] }, { "cite": "71 Wis. 114", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8703317 ], "opinion_index": 0, "case_paths": [ "/wis/71/0114-01" ] } ], "analysis": { "cardinality": 765, "char_count": 19732, "ocr_confidence": 0.555, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.3182523382637366 }, "sha256": "80974636bcd509c5500cfa2db54fc809003a7db4f5db28c6aac2f32f56486093", "simhash": "1:3f4e24701a412476", "word_count": 3506 }, "last_updated": "2023-07-14T20:05:08.743041+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Garden City Wire Spring Co. v. August Boecher." ], "opinions": [ { "text": "JN\u00a3e. Justice Hoeton\ndelivered the opinion of the court.\nThis is an appeal from a judgment for \u00a76,708.33, entered in the Circuit Court of Cook County in favor of appellee and against appellant in an action for personal injury.\nThe original declaration consisted of three counts. Afterward and by leave of court three additional counts were filed. Briefly stated, the charges of negligence in the declaration are (as stated in his brief by counsel for appellee):\n1st. Ordering appellee to do work. which was outside the line of his employment.\n2d. Failing to provide a sufficient number of men to safely do the work in the performance of which appellee was injured.\n3d. Providing an unsafe and insecure scaffold used in the performance of said work.\nAppellee was in the employ of appellant in the capacity of a blacksmith. Upon the occasion in question he was directed by the foreman in the employ of appellant to assist in raising an iron shaft weighing 400 pounds from the floor into \u201c hangers\u201d projecting down from the ceiling. A scaffold or platform about eighteen feet long and three and a half or four feet high was put in place for the men to stand upon in raising the shaft and putting it in the hangers. Several men were called to assist in thus putting the shaft in place. All the employes except the foreman and the appellee were dismissed by the foreman after the shaft was safely in the hangers. The shaft was then resting in three hangers, one near the middle and one near to each end. The foreman told appellee to go to one end of the shaft and lift it up two inches so that he, the foreman, could adjust the box or bearing in one of the other hangers. (The middle hanger, as we understand from the testimony.) That would require that appellee, standing upon the scaffold with his shoulder under the shaft, should thus lift about 200 pounds. The hangers were fastened to the ceiling and at the lower end of each was what may be called a hook. Above the hook was a horizontal part of the hanger, the space between the hook and such horizontal part of the hanger being more than the diameter of the shaft. To remove the shaft so that it would not receive the support of the hanger, it must be lifted up and out at1 the open side. The shaft must have been so lifted out by appellee or it could not have fallen.\nThe platform or scaffold was constructed by putting wooden \u201c horses \u201d on the floor and placing on them planks upon which the men stood. It is claimed that this scaffold was so negligently constructed that it was unsteady and shook under the feet of appellee when he had lifted the end of the shaft, thus causing him to lift or throw it out at the open side of the hanger and away from its bearings, and that that was the proximate cause of the injury to appellee.\nFirst. Was there any negligence in \u201c ordering appellee to do work which was outside the line of his employment? \u201d\nThe place where appellee was working as a blacksmith, was on the same floor and forty or fifty feet from the place where he 'was injured. Appellee testified that he knew that what the foreman requested him to do was not blacksmith work; that he made no objection to doing it and that he had been doing other work which was not blacksmith work. Also that \u201c when the foreman said, come on, blacksmith, and took me to where the scaffold stood, I didn\u2019t tell him I didn\u2019t want to go. I went right along.\u201d Appellee was an experienced blacksmith about fifty-six years of age.\nWhen an employe of mature years and ordinary intelligence is directed to do a temporary work outside of the line of his employment, and proceeds to do such work without \"an)r objection whatever, negligence of the employer can not be predicated upon that state of facts alone. Cole v. C. & N. W. Ry. Co.; 71 Wis. 114; Leary v. B. & A. R. R. Co., 139 Mass. 580; 2 Thomp. on Neg., p. 976, Sec. 9; Hogan v. N. P. R. R. Co., 53 Fed. Rep. 519.\nWe understand the same principles to be recognized and approved by our Supreme Court in Gall v. Beckstein, 173 Ill. 187, where it is said (p. 190):\n\u201c The plaintiff\u2019s ordinary work in the factory was making sausage casings, but when called upon to unload the salt he voluntarily, without anjr objection whatever, undertook the performance of that labor, and such labor may therefore be regarded within the scope of his employment.\u201d\nCounsel for appellee cites as in conflict with this case the following cases: Offut v. Columbian Exposition, 175 Ill. 472; Ill. Steel Co. v. Schymanowski, 162 Ill. 447, and Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573. It will be noticed that in point of time two of these cases are prior and one subsequent to the Gall case. One, and we apprehend a sufficient distinction between these cases and the Gall case is, that in the latter, the party injured made no objection, but went voluntarily to the performance of the service, while in each of the three cases cited the employe informed his superior of the supposed danger and went to the performance of the service by reason of peremptory orders so to do.\nIn the case at bar, when the foreman said to appellee, \u201c Come on, blacksmith,\u201d and took him to where the scaffold stood, and appellee, as he says, made no objection whatever, but \u201c went right along,\u201d and if there was any danger, there was none which was not just as apparent to the appellee as it was to the foreman, the labor in which appellee\" was called to assist will be regarded as being \u201c within the scope of his employment.\u201d There is nothing to support the charge that appellee was ordered \u201c to do work which was outside the line of his employment.\u201d There was no negligence in this, whether considered by itself or in connection with the other facts and circumstances shown in this record for which appellant can be held to respond in damages.\nSecond. Was there negligence on the part of appellant in failing to provide a sufficient number of men 'to safely do the work in the performance of which appellee was injured \\\nThe appellee was a man of experience. He was present and assisted in putting the shaft in place. He knew that the other man who were assisting had been dismissed and were not then present. The absence of other men to assist in lifting the shaft is not alone sufficient ground for a recovery. This is clearly stated in Swift & Co. v. Rutkowski, 167 Ill. 156, where the court says (p. 159):\n.\u201c We are not aware of any well considered case, where it has been held that the servant who is in the 'exercise of\" reasonable care and caution, may recover from the master upon the ground alone that the master has failed to furnish a sufficient supply of help.\u201d\nBut there is no testimony to support the charge that there was not sufficient help. Appellee does not testify that he was not able to readily lift the end of the shaft as directed by the foreman. He says he did lift it, but that it fell because the scaffold shook under his feet. He does not state that he was injured because there was not sufficient help, but says it was because the scaffold shook. The foreman testified that any man of good strength could lift fl.11 that appellee had to lift and much more with the advantage he had. Also that he had the hanger to hold onto and the foreman thought he was holding onto it. There is no testimony in conflict with this of the foreman. Hor is there any testimony showing that appellee was injured because of insufficient help. He said, in effect, that this was not the cause of his injury when he testified that when he raised the shaft the scaffold was shaking and threw him out on the side and clear off from the hanger.\nAs we have seen, there was no negligence, under the circumstances in this case, arising from the fact that appellee was assisting in performing work not ordinarily in the line of his employment. We shall presently see that there was no negligence on the part of appellant in connection with the scaffold. As said by the Supreme Court in the above quotation, appellee can not recover upon the ground alone that appellant failed to furnish a sufficient supply of help. There is no ground upon which appellee can recover outside of the question of want of sufficient help. There. is then no other sustained charge, with which to couple this charge, even if it were true, so as to justify a recovery.\nThird. Was appellant negligent in providing an unsafe and insecure scaffold used in the performance of said work ?\nIt is not contended that there was any patent defect in the construction of the scaffold or in the material used in its construction. The foreman testified as follows, viz.:\n\u201c I examined that scaffolding very closely before anybody got onto it, and I considered it perfectly safe and sound and didn\u2019t find out that it shook in any way, and it held up the shaft and six men all right, and 1 didn\u2019t consider it unsafe.\u201d\nThere is fio testimony to the contrary. The construction of the scaffold is given in detail by the carpenter who built it. There is nothing to indicate that it was not strong and\u00bb well constructed. It was used in the same room for the same purpose both before and after the injury to appellee. In Joliet Steel Company v. Shields, 146 Ill. 603, the Supreme Court said (p. 607):\n\u201c As between master and servant it may be conceded that no presumption of negligence arises on the part of the master from the mere fact that the servant has been injured while in his employ.\u201d Illinois Central Railroad Company v. Houck, 72 Ill. 287; Kuhn v. Railway Company, 70 Iowa, 561; Baltimore Elevator v. Neal, 65 Md. 438; Sack v. Dolese, 137 Ill. 139; East St. Louis Packing Company v. Hightower, 92 Id. 139.\nWhen the shaft was put in place a few minutes before appellee was injured, there were six men upon the scaffold, who, with the shaft, weighed 1,300 pounds. The foreman testified that he \u201c didn\u2019t find out that it shook in any way.\u201d At the time the appellee was injured there were only two men upon the scaffold, who, with 200 pounds, part of the shaft, weighed about 500 pounds.\nThere is, then, the undisputed testimony that the scaffold had previously been safely used for the same purpose\u2014that it was closely examined by the foreman before the six men got onto it and found to be, in his opinion, \u201c perfectly safe and sound,\u201d\u2014and that \u201c it held up the shaft and six men all right.\u201d To us, the testimony seems to be overwhelming that the scaffold was well and properly constructed, of good material.\nBut even if the scaffold was defective, it does not necessarily follow that there was negligence on the part of appellant. It was the duty of appellant to use reasonable care and diligence in providing a reasonably safe and secure scaffold. But when it is sought to hold appellant liable by reason of an alleged defect or insufficiency in the scaffold, knowledge of some defect or insufficiency must be brought home to the appellant, or proof made that the ignorance of appellant was the result of negligence or want of care (Sack v. Dolese, 137 Ill. 139). There is no proof to establish either of these propositions.\nIt is also the settled rule of law in this State, as laid down in Wood on the Law of Master and Servant, Sec.' 414:\n\u201c The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: first, that the appliance was defective; second, that the master had notice thereof, or knowledge, or ought to have had; third, that the servant did not know of the defect, and had not equal means of knowing, with the master.\u201d Goldie v. Werner, 151 Ill. 551; C. & A. R. R. Co. v. Scanlan, 170 Ill. 111; Howe v. Medaris, 183 Ill. 290.\nIf it were conceded that the scaffold was defective, the appellee has wholly failed to establish the second and third of such prerequisites necessary to a recovery.\nIn other words, there is no testimony to show that appellant (or any one representing it) had notice or knowledge of any defect in any of the appliances used, or ought to have had; or that appellee did not know the facts as to such appliances and that he had not equal means of knowing with the appellant and those representing it.\nIt is, however, argued, that if the direction to do the work outside the line of his employment and the alleged neglect to furnish sufficient help be combined and considered together, or in connection with the condition of the scaffold, they, together, constitute negligence which wras the proximate cause of the injury. As we have seen, neither of these several claims, when considered separately, can be held to sustain the charge of negligence. It would be an anomaly to hold that two or more negatives produce an affirmative; that two or more minus signs produce a plus.\nThere is but little serious conflict in the testimony in this case upon any material question of fact. The appellee testifies, in substance, that the proximate cause of his injury was that the platform or scaffold shook and threw him off his balance.\nThe testimony does not show any negligence in the construction or use of the scaffold. When the foreman said \u201c Come on, blacksmith,\u201d it was not an imperative order or command in the sense in which an \u201c order,\u201d is regarded and considered in the cases cited. And wThen it is remembered that the appellee, as he testifies, \u201c went right along \u201d without any objection whatever, it can not be properly said that this state of facts, which in themselves show no negligence, thus became a material and necessary factor upon which negligence is predicated, and without which it can not be sustained.\nAnd again, even if it were conceded that there was negligence in directing the appellee to assist in work outside the line of his employment, and also in not furnishing sufficient help, they were not, together, the proximate cause of the injury. That cause, as appellee himself testified, was that, as he says, the scaffold shook under his feet. But there was no negligence in constructing or using the scaffold. To sustain the contention of appellee in this respect we must hold that the facts constituting negligence which was not the proximate cause of the injury, when coupled with facts which show no negligence, together constitute negligence which is the proximate cause. Here we should have the double anomaly that by adding two nothings together we have something, and that by adding that something to another nothing we should have another something entirely different.\nWhen that to which appellee himself swears, was the proximate cause of his injury, and there is no testimony to establish any other proximate cause, and that proximate cause did not result from negligence on the part of appellant, there can be no recovery.\nCounsel for appellant contend that each count of the declaration in this case includes averments as to the unsafe condition of the scaffold, and that no recovery under it can be sustained -unless it be found that there was actionable negligence in not providing a proper and safe scaffold. An examination of the declaration shows that such contention has much ground for support. But we prefer to rest our opinion upon the other reasons above assigned.\nIt is contended by counsel for appellant that appellee, by his own negligence, contributed to the injury. In his brief he savs: \u201c The cause of the accident was the bungling manner in which the plaintiff performed his work.\u201d Appellee testified that the foreman said, \u201c \u2018 When I tell you to raise, raise up that end.\u2019 He just told me to raise it up.\u201d\nAs we have seen, if appellant had just raised the shaft up it could not have fallen and he would not have been injured. But whether he was guilty of any negligence which contributed to the injury is a question of fact for the jury, and we are not inclined to here interfere with the verdict upon that ground.\nIt is argued by counsel for appellant that its demurrer to the additional counts filed by appellee should have been sustained. The ground upon which that contention is based, is that a new cause of action is charged therein, and that such additional counts were not filed within two years after the cause of action arose. Such contention is not well founded. The additional counts do not set up a new cause of action, but contain only a re-statement of the same cause of action set up-in the original declaration.\nCounsel for appellant insist that the appellee and foreman were fellow-servants in the performance of the particular work in which they were engaged at the time appellee was injured. This contention is not well founded. There is no error in this record upon that question.\nIt is also urged on behalf of appellant that the judgment should be reversed because of improper remarks to the jury by the counsel for appellee. Some of the remarks complained of are improper and their use can not be fully justified. But as this case must be remanded for a new trial upon other grouhds, we shall rest in the conviction that those remarks will not be repeated, or similar ones indulged in.\nIt appears that three of the jurors in this case were not summoned for service in the trial court but were brought from the Superior Court. It is alleged by counsel for appellant in their brief that that was error. It is also argued in such brief that the jury arrived at their verdict in pursuance of a preliminary agreement that the sum total of the amounts named by each juror should be divided by the number of jurors and that the quotient should be returned as the amount of the verdict.\nHeither one of these points is mentioned in the motion for a new trial or in the assignment of errors. We can not, therefore, consider them.\nFor the reasons above indicated the judgment of the Circuit Court will be reversed and the cause' remanded,\nShepard, Justice : I dissent.", "type": "majority", "author": "JN\u00a3e. Justice Hoeton" } ], "attorneys": [ "John B. Beady and F. J. Gantt, attorneys for appellant.", "Jambs O. HcShane, attorney for appellee." ], "corrections": "", "head_matter": "First District\n\u2014October Term, 1899, and March Term, 1900.\nGarden City Wire Spring Co. v. August Boecher.\n1. Master and Servant\u2014 Where Presumptions of Negligence Do Not Arise.\u2014As between master and servant no presumption of negligence arises on the part of the master from the mere fact that the servant is injured while in the employ of the master.\n2. Same\u2014Where the Servant is Directed to do Temporary Work Outside of His Employment.\u2014When a servant, of mature years and ordinary intelligence, is directed to do a temporary work outside of the line of his employment and proceeds to do such work without objection, the negligence of the master can not be predicated upon that state of facts alone.\n3. Same\u2014Recovery for Defective Appliances.\u2014A servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions : Birst, that the appliance was defective; second, that the master had notice thereof, or knowledge, or ought to have had; third, that the servant did not 'know of the defect and had not equal means of knowing the same with the master.\n4. Appellate Court Practice\u2014Points Not Assigned for Error.\u2014 The objection that the jury arrived at their verdict in pursuance of a preliminary agreement that the sum total of the amounts named by each juror should be divided by the number of jurors and that the quotient should be returned as the amount of their verdict, when not mentioned as a ground for a motion for a new trial in the court below or assigned for error, can not be considered by the Appellate Court.\nTrespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1899. Mr. Justice Shepard dissenting.\nReversed and remanded.\nOpinion filed December 4, 1900.\nRehearing denied, April 5, 1901.\nJohn B. Beady and F. J. Gantt, attorneys for appellant.\nJambs O. HcShane, attorney for appellee." }, "file_name": "0096-01", "first_page_order": 120, "last_page_order": 129 }