Lawton v. Oglesby Coal Co.

154 Ill. App. 368, 1910 Ill. App. LEXIS 672

• Court: Appellate Court of Illinois
• Decided: March 11, 1910
• Docket: Gen. No. 5122
• Status: Published

Opinion

Mr. Justice Willis

delivered the opinion of the court.

It is urged by appellant that appellee was injured by a risk he assumed under his contract of service. As appears from the evidence, Haage, a practical building mover, was, at the time of appellee’s injury, in full charge of the work of moving the building. As such he was the vice-principal representing the master at that time and place. He gave the order to appellee to lift the wheel, and there was no danger in this work unless the engineer started the engine, which the evidence shows he would not do without a signal from Haage. There is proof that while appellee still had hold of the wheel, Haage, by waving his hand, gave the signal to start the engine, without warning appellee of his intention so to do. There was also some proof that Haage did give warning, but there is no proof that appellee saw the signal or heard the warning, and his testimony was that his position was such that he could not see the signal, and that he did not hear any warning, and Haage testified on cross-examination that the house was moving before he gave the warning. “Where a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow-servant; and all commands given by him within the scope of his authority are in law the commands of the master.” City of LaSalle v. Kostka, 190 Ill. 141; Chicago & Alton R. R. Co. v. May, 108 Ill. 288; Wenona Coal Co. v. Holmquist, 152 Ill. 581; Mobile & Ohio R. R. Co. v. Godfrey, 155 Ill. 78; Fraser & Chalmers v. Schroeder, 163 Ill. 459; Illinois Steel Co. v. Schymanowski, 162 Ill. 447; Graver Tank Works v. O’Donnell, 191 Ill. 236. It is true that the servant not only assumes the ordinary risks incident to his employment, but also the dangers which are obvious and apparent. It is also true that, when a servant enters the employment of the master, the ordinary risks of such employments, which he assumes, include the negligence of fellow-servants associated with him. But he does not assume the risk of the negligence of employes of the same master who are not associated with him or who are not fellow-servants with him. Illinois Third Vein Coal Co. v. Cioni, 215 Ill. 583; Illinois Steel Co. v. Coffey, 205 Ill. 206; Chicago & Eastern Illinois Railroad Co. v. White, 209 Ill. 124. Whether appellee, in taking hold of the wheel in obedience to an order from Haage, the man in charge of the work, assumed the risk of injury which might result from the act of Haage, without warning appellee of what he was about to do, in causing the engine to be started, while he knew or ought to have known that appellee still had hold of the wheel, was a question of fact for the jury, and their finding thereon, in our opinion, is supported by the evidence.

It is claimed by appellant that it was contributory negligence for appellee to take hold of the cable in front of the wheel; that he could, with safety, have taken hold of the rim of the wheel where the cable was already upon it, or of the spokes. Whether appellee, in taking hold of the wheel as he did, was guilty of negligence which contributed to his injury, or whether he acted as a reasonably prudent person would do for his own safety under like circumstances; was also a question of fact for the jury; and they, in determining that question, had a right to consider that the engine was standing still; that appellee knew that Haage, who was in charge of the situation, and who had ordered him to take hold of the wheel and knew that he had hold of it, was standing by, and that it was only at his signal that the engineer would start the engine.

The questions of contributory negligence and assumed risk are ordinarily questions of fact to be determined by the jury. Those questions are never presented to the court as questions of law when the evidence is conflicting, as it is here, or when, conceding the testimony on the part of the plaintiff to be true, with the inferences that may legitimately be drawn therefrom, reasonable men might differ upon the questions whether the injury was caused in consequence of the negligence of the plaintiff or the plaintiff had assumed the risk which was the proximate cause of his injury. It clearly was for the jury, in view of the facts, to say whether the appellee so far contributed to his injury by his own negligence as to defeat his right to recover, and whether he assumed the risk of being injured when he entered upon the employment. We think the court did not err in declining to take the case from the jury.

It is urged that counsel for appellee, in his closing argument to the jury, made remarks not warranted by the evidence and prejudicial to the interest of appellant. An examination shows that much of the language complained of was used id reply to what was said by counsel for appellant. The court sustained objections thereto, and we do not consider that the remarks were of such a character as to have influenced the jury to the prejudice of appellant.

It is urged that the damages are excessive. Appellee was thirty-eight years of age and earned, before he was injured, from $730 to $780 per year, or from $2.35 to $2.50 per day. It is apparent that with his hand in the condition disclosed by the evidence, his earning capacity is very much impaired. The amount of the judgment at the highest legal rate of interest would produce an income of but $315 per year.

In the absence of evidence that the jury were influenced by prejudice or passion, we do not feel disposed to lessen the amount of the judgment by ordering a remittitur.

Finding no reversible error, the judgment is affirmed.

Affirmed.