Mr. Justice Windes
delivered the opinion of the court.
It is claimed that the judgment should be reversed, because there is a material variance between the declaration and the proof, and that even if the declaration corresponded with the proof made, no liability of appellant is shown.
In so far as it is claimed there was a variance between the proof and declaration, the contention can not now be urged. It fails to appear that the alleged variance was, in any way, called to the attention of the trial court, and according to numerous decisions in this and thé Supreme Court, it is too late to raise the question for the first time in a court of review. Swift v. Rutkowski, 182 Ill. 18, and cases cited.
As to the other point, viz., that the proof does not show a liability, even if the declaration was sufficient, we think it is untenable. In this connection it is said that the evidence shows conclusively that Moriarity, who was the bridge tender in charge of and operating the bridge at the time of the injury, was guilty of no negligence personally, but that if there was any negligence shown, it was that of one O’Brien, who was upon the bridge and employed and paid by Moriarity, to whom alone O’Brien was responsible, and that Moriarity alone had the authority to direct and' discharge him.
It appears from the evidence, in substance, that O’Brien was not in the employ of the appellant, nor paid by it, but was employed and paid by Moriarity alone, and it does not appear that the latter was in any way authorized or permitted to employ O’Brien to assist him about his work as bridge tender, though he did so, unless such authority is shown by the following questions and answers in Moriarity’s evidence, viz.:
Q. “The City of Chicago employed you to attend to that bridge?” A. “Yes, sir.”
Q. “ And you could attend to it all the time, or employ somebody else, as you saw fit?” A. “As I saw fit; yes, sir.”
This, we think, scarcely justifies the contention that O’Brien was employed by appellant. This being true, we think it somewhat doubtful whether there is any liability of appellant for negligence of O’Brien.
Appellant, having no right of control or authority over O’Brien, and there being no satisfactory showing that he was employed by Moriarity, with the assent, express or implied, of appellant, it is questionable, under the authorities, whether appellant is liable for his negligent acts. Bevan’s Law of Neg., p. 300; Jewel v. Grand Trunk Ry., 55 N. H. 84-92; Marble v. Worcester, 4 Gray, 395; Conkey Co. v. Bueherer, 84 Ill. App. 633; Johnson Chair Co. v. Agresto, 73 Ill. App. 384, and cases cited; 1 Dillon on Mun. Corp’ns, Sec. 974, et seq.; Patterson’s Ry. Accident Law, 103 et seq.; Wharton on Neg., Sec. 174, et seq.; Milligan v. Wedge, 12 Ad. & El. 366; 1 Shear. & Red. on Neg., Sec. 157, et seq., and notes; Andrews v. Boedecker, 126 Ill. 605.
But it is unnecessary to sustain this judgment that it should rest on the negligence of O’Brien.
It appears from the evidence, in substance, that appellee and some other boys were either playing upon the Erie street bridge, or were temporarily upon it near the center, on their way to a point west of the bridge. The bridge extended east and west across the Chicago river, rested upon a center pier, and was operated by means of a hand lever at its center. One Moriarity was the bridge tender in the employ of the city at the time, had charge of the bridge and its operation, and employed one O’Brien as his assistant, the latter being paid by and acting under the orders and directions of Moriarity. While plaintiff and the other boys were on the bridge, about nine or ten o’clock on October 24, 1893, some men in the employ of the city came to repair the bridge, and' it was necessary, while they did their work, to have the bridge sufficiently turned so that teams could not pass over it, but at the same time to allow pedestrians to cross. For some reason, not fully explained in the record, unless it was that Moriarity thought it was a dangerous place for the boys, just at the time when Moriarity was going to move the bridge so as to put it in position for repairs, he told O’Brien to look after the boys, evidently to get them off the bridge, and about the same time rung the bell and proceeded to turn the bridge slowly. O’Brien, acting on Moriarity’s direction, took a barrel stave in his hand, began hallooing and gesticulating at the boys, including plaintiff, and chased them in an easterly direction to get them off the bridge. Plaintiff, who stood on the south foot-wav of the bridge near the center at the time Moriarity gave the direction to O’Brien, started and ran toward the east end of the bridge, which was some forty feet away, and as he ran was in full view of Moriarity, who was at the time turning the bridge. By the time that plaintiff got near to the end of the bridge on the foot-way, the bridge had turned so that the foot-way was to the south of the south sidewalk of the street approach to the bridge, and plaintiff turned across and ran into the wagon-way of the bridge, and as he attempted to jump from the moving bridge onto the street approach, his foot and leg went into the. space between the end of the bridge and the street approach and he fell thence into the river below, a distance of some twenty-five feet, and was injured. It.seems quite clear from the evidence, the details of which it is unnecessary here to set out, that Moriarity was responsible for O’Brien’s chasing plaintiff and the other boys from the bridge; that as he moved the bridge he saw the plaintiff running toward the end of the bridge to escape from O’Brien, and notwithstanding, continued in his movement of the bridge, though there was no apparent pressing necessity, nor any necessity, for him to continue to move the bridge at this particular moment of time. It appears, not only from his own evidence, but that of an experienced bridge tender then in the employ of the city and called as a witness by it, that it was the duty of the bridge tender, on moving the bridge, to see that people got on and off it in safety. We think, in view of these facts, as well as other circumstances shown, the jury was clearly justified in finding that Moriarity was negligent and that his negligence, notwithstanding the acts of O’Brien, was an efficient cause for the injury to plaintiff. The charges of negligence in the declaration of wrongfully operating the bridge and wrongfully causing the bridge to turn, under the circumstances shown, are ample to sustain the verdict and judgment. It is sufficient that the negligence of O’Brien, though he was not in the employ of the city, and it was not liable for h'is acts, and the negligence of Moriarity, both co-operated to produce plaintiff’s injury, if the latter’s negligence was an efficient and the proximate cause thereof. Pullman P. Car Co. v. Laack, 143 Ill. 242-61; McGregor v. Reid, 178 Ill. 465-70; N. C. St. R. R. Co. v. Dudgeon. 83 Ill. App. 528, and cases cited; affirmed 184 Ill. 477-88; Boyle v. R. R. Co., 88 Ill. App. 255-9.
Under the evidence in this record, whether Moriarity’s negligence was the proximate cause of the injury, was a question for the jury, and their verdict is sustained by the evidence. American Ex. Co. v. Rislev, 179 Ill. 295-9; Landgraf v. Kuh, 188 Ill. 485-500; O’Fallon Coal Co. v. Loquet, 89 Ill. App. 14.
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Mr. Justice Windes
delivered the opinion of the court.
It is claimed that the judgment should be reversed, because there is a material variance between the declaration and the proof, and that even if the declaration corresponded with the proof made, no liability of appellant is shown.
In so far as it is claimed there was a variance between the proof and declaration, the contention can not now be urged. It fails to appear that the alleged variance was, in any way, called to the attention of the trial court, and according to numerous decisions in this and thé Supreme Court, it is too late to raise the question for the first time in a court of review. Swift v. Rutkowski, 182 Ill. 18, and cases cited.
As to the other point, viz., that the proof does not show a liability, even if the declaration was sufficient, we think it is untenable. In this connection it is said that the evidence shows conclusively that Moriarity, who was the bridge tender in charge of and operating the bridge at the time of the injury, was guilty of no negligence personally, but that if there was any negligence shown, it was that of one O’Brien, who was upon the bridge and employed and paid by Moriarity, to whom alone O’Brien was responsible, and that Moriarity alone had the authority to direct and' discharge him.
It appears from the evidence, in substance, that O’Brien was not in the employ of the appellant, nor paid by it, but was employed and paid by Moriarity alone, and it does not appear that the latter was in any way authorized or permitted to employ O’Brien to assist him about his work as bridge tender, though he did so, unless such authority is shown by the following questions and answers in Moriarity’s evidence, viz.:
Q. “The City of Chicago employed you to attend to that bridge?” A. “Yes, sir.”
Q. “ And you could attend to it all the time, or employ somebody else, as you saw fit?” A. “As I saw fit; yes, sir.”
This, we think, scarcely justifies the contention that O’Brien was employed by appellant. This being true, we think it somewhat doubtful whether there is any liability of appellant for negligence of O’Brien.
Appellant, having no right of control or authority over O’Brien, and there being no satisfactory showing that he was employed by Moriarity, with the assent, express or implied, of appellant, it is questionable, under the authorities, whether appellant is liable for his negligent acts. Bevan’s Law of Neg., p. 300; Jewel v. Grand Trunk Ry., 55 N. H. 84-92; Marble v. Worcester, 4 Gray, 395; Conkey Co. v. Bueherer, 84 Ill. App. 633; Johnson Chair Co. v. Agresto, 73 Ill. App. 384, and cases cited; 1 Dillon on Mun. Corp’ns, Sec. 974, et seq.; Patterson’s Ry. Accident Law, 103 et seq.; Wharton on Neg., Sec. 174, et seq.; Milligan v. Wedge, 12 Ad. & El. 366; 1 Shear. & Red. on Neg., Sec. 157, et seq., and notes; Andrews v. Boedecker, 126 Ill. 605.
But it is unnecessary to sustain this judgment that it should rest on the negligence of O’Brien.
It appears from the evidence, in substance, that appellee and some other boys were either playing upon the Erie street bridge, or were temporarily upon it near the center, on their way to a point west of the bridge. The bridge extended east and west across the Chicago river, rested upon a center pier, and was operated by means of a hand lever at its center. One Moriarity was the bridge tender in the employ of the city at the time, had charge of the bridge and its operation, and employed one O’Brien as his assistant, the latter being paid by and acting under the orders and directions of Moriarity. While plaintiff and the other boys were on the bridge, about nine or ten o’clock on October 24, 1893, some men in the employ of the city came to repair the bridge, and' it was necessary, while they did their work, to have the bridge sufficiently turned so that teams could not pass over it, but at the same time to allow pedestrians to cross. For some reason, not fully explained in the record, unless it was that Moriarity thought it was a dangerous place for the boys, just at the time when Moriarity was going to move the bridge so as to put it in position for repairs, he told O’Brien to look after the boys, evidently to get them off the bridge, and about the same time rung the bell and proceeded to turn the bridge slowly. O’Brien, acting on Moriarity’s direction, took a barrel stave in his hand, began hallooing and gesticulating at the boys, including plaintiff, and chased them in an easterly direction to get them off the bridge. Plaintiff, who stood on the south foot-wav of the bridge near the center at the time Moriarity gave the direction to O’Brien, started and ran toward the east end of the bridge, which was some forty feet away, and as he ran was in full view of Moriarity, who was at the time turning the bridge. By the time that plaintiff got near to the end of the bridge on the foot-way, the bridge had turned so that the foot-way was to the south of the south sidewalk of the street approach to the bridge, and plaintiff turned across and ran into the wagon-way of the bridge, and as he attempted to jump from the moving bridge onto the street approach, his foot and leg went into the. space between the end of the bridge and the street approach and he fell thence into the river below, a distance of some twenty-five feet, and was injured. It.seems quite clear from the evidence, the details of which it is unnecessary here to set out, that Moriarity was responsible for O’Brien’s chasing plaintiff and the other boys from the bridge; that as he moved the bridge he saw the plaintiff running toward the end of the bridge to escape from O’Brien, and notwithstanding, continued in his movement of the bridge, though there was no apparent pressing necessity, nor any necessity, for him to continue to move the bridge at this particular moment of time. It appears, not only from his own evidence, but that of an experienced bridge tender then in the employ of the city and called as a witness by it, that it was the duty of the bridge tender, on moving the bridge, to see that people got on and off it in safety. We think, in view of these facts, as well as other circumstances shown, the jury was clearly justified in finding that Moriarity was negligent and that his negligence, notwithstanding the acts of O’Brien, was an efficient cause for the injury to plaintiff. The charges of negligence in the declaration of wrongfully operating the bridge and wrongfully causing the bridge to turn, under the circumstances shown, are ample to sustain the verdict and judgment. It is sufficient that the negligence of O’Brien, though he was not in the employ of the city, and it was not liable for h'is acts, and the negligence of Moriarity, both co-operated to produce plaintiff’s injury, if the latter’s negligence was an efficient and the proximate cause thereof. Pullman P. Car Co. v. Laack, 143 Ill. 242-61; McGregor v. Reid, 178 Ill. 465-70; N. C. St. R. R. Co. v. Dudgeon. 83 Ill. App. 528, and cases cited; affirmed 184 Ill. 477-88; Boyle v. R. R. Co., 88 Ill. App. 255-9.
Under the evidence in this record, whether Moriarity’s negligence was the proximate cause of the injury, was a question for the jury, and their verdict is sustained by the evidence. American Ex. Co. v. Rislev, 179 Ill. 295-9; Landgraf v. Kuh, 188 Ill. 485-500; O’Fallon Coal Co. v. Loquet, 89 Ill. App. 14.
Instruction 12 of appellant, which was refused, is an exact duplicate of appellant’s instruction 6, given, except the words near its end, “ through the willful misconduct of another.” These words made the instruction erroneous, because they may be said to allow the jury to find the city not guilty, though the negligence was that of its own employe.
Instruction 21 states an abstract proposition of law, and it was therefore not error to refuse it. Also, we think it liable to mislead the jury, in view of the somewhat complicated circumstances of this accident, and it may not have been clear to the jury to whose acts and conduct the instruction was intended to apply.
The 22d instruction also states an abstract proposition of law,and besides,is not correct in the use of the word “duty,” and the omission of the word “not” before the word “within.” ’ Negligence is not within the scope of a servant’s duty.
It is also said that plaintiff was guilty of contributory negligence, and is therefore not entitled to a recovery. We think this was a question for the jury, and their verdict is justified. Plaintiff was only six years and five months old, had never been upon this bridge before, was rightfully there, and was being chased by a man with a barrel stave in his hand, hallooing at him, and was evidently frightened and bent upon getting beyond the man’s reach. Considering these circumstances, that he was placed in this, to him, perilous position without his fault and by the direction of Moriarity, we can not say that the jury were wrong in holding that he was free from contributory negligence. R. R. Co. v. Anderson, 184 Ill. 294-304; D. T. & W. Co. v. Dandelin, 143 Ill. 409-14; C. & G. T. Ry. Co. v. Kinnare, 76 Ill. App. 394; I. C. R. R. Co. v. Lindgren, 80 Ill. App. 609.
The only remaining claim of appellant is that the damages are grossly excessive. It appears from the evidence that plaintiff suffered a compound comminuted fracture of the bones of the leg just below the knee; both bones were shattered — slivered; that the skin and muscles on the front of the leg were torn; that he was confined to the hospital for more than three months, where he suffered great pain; that the bones of the leg had to be wired together and the wires were not removed for more than a year after the injury; that after he left the hospital he had to wear a plaster cast for seven months, and could not stand on his foot for two, years; did not sleep well, suffered great pain, was unable to go to school for nearly three years after the injury, and could not at the time of the trial, some six years after the accident, go to school more than half the time, because of pain and a running sore on his leg; that he had a scalp wound, through to the bone; that in winter it was necessary to keep his leg in warm water for two hours a night.
Three surgeons testify as to the injuries. One of them, Dr. St. John, a surgeon of long experience, says that there is a loss of muscles of the leg and of healthy skin and bone; that the tibia has lost some of its front surface; that the skin on the leg is very thin, not healthy, is fastened to the bone, and is immovable at the place of the injury; that the leg will be painful whenever motion of the foot or bending of the knee is sufficient to stretch the skin; that the skin, not being healthy, is apt to burst down, and that the injuries are permanent. Dr. Flood, who treated the boy, says that the two bones of the leg are massed together as one, and do not perform the natural function. Considering this testimony and other evidence not here set out, none of which is in any way contradicted, we are of opinion that the damages are entirely justified.
The judgment of the Circuit Court is affirmed.