Walsh v. City of Chicago

Appellate Court of Illinois

Walsh v. City of Chicago

94 Ill. App. 311, 1900 Ill. App. LEXIS 667

DecidedMarch 25, 1901

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Bluebook

Walsh v. City of Chicago, 94 Ill. App. 311, 1900 Ill. App. LEXIS 667 (Ill. Ct. App. 1901).

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Opinion

Hr. Justice Sears

delivered the opinion of the court.

Ho question is raised upon this appeal as to a liability of defendant in error for negligence of a vice-principal, who is foreman over a gang of common laborers, in the directing of such laborers in their service. It is not argued that such a liability could not arise, but merely that it did not arise because the foreman was at the time acting as a fellow-servant of plaintiff in error, and not as a foreman over him, and upon the further ground that plaintiff in error had assumed the hazard.

Upon this contention it is enough to say that the evidence not only tends to show, but does show, that Cronin was foreman over plaintiff in error; that he ordered plaintiff in error to work in cleaning the mud from the street, and that plaintiff in error, whfen injured, was following such direction of the foreman; that Cronin, while plaintiff in error was thus engaged, opened a catch-basin behind plaintiff in error, and in the course in which he was moving backward in his work, and left the catch-basin unguarded and gave no notice or warning to plaintiff in error. It is very clear that it can neither be maintained that Cronin was a fellow-servant or other than a foreman over plaintiff in error while thus directing the work; nor that plaintiff in error had assumed as an ordinary hazard of his employment this additional peril, thus added to his service without warning to him.

As to liability of an employer for negligence in failing. to warn an employe of new perils imposed upon his service without notice to him, see Iroquois Furnace Co. v. McCrea, 91 Ill. App. 337, and Chi. Gen. Ry. Co. v. McNamara, 94 Ill. App. 188.

So far as any showing is made by the briefs and argument of counsel, we discover no sufficient reason for excluding the evidence from the jury and directing a verdict for defendant in error.

The judgment is therefore reversed and the cause is remanded.

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Hr. Justice Sears

delivered the opinion of the court.

Ho question is raised upon this appeal as to a liability of defendant in error for negligence of a vice-principal, who is foreman over a gang of common laborers, in the directing of such laborers in their service. It is not argued that such a liability could not arise, but merely that it did not arise because the foreman was at the time acting as a fellow-servant of plaintiff in error, and not as a foreman over him, and upon the further ground that plaintiff in error had assumed the hazard.

Upon this contention it is enough to say that the evidence not only tends to show, but does show, that Cronin was foreman over plaintiff in error; that he ordered plaintiff in error to work in cleaning the mud from the street, and that plaintiff in error, whfen injured, was following such direction of the foreman; that Cronin, while plaintiff in error was thus engaged, opened a catch-basin behind plaintiff in error, and in the course in which he was moving backward in his work, and left the catch-basin unguarded and gave no notice or warning to plaintiff in error. It is very clear that it can neither be maintained that Cronin was a fellow-servant or other than a foreman over plaintiff in error while thus directing the work; nor that plaintiff in error had assumed as an ordinary hazard of his employment this additional peril, thus added to his service without warning to him.

As to liability of an employer for negligence in failing. to warn an employe of new perils imposed upon his service without notice to him, see Iroquois Furnace Co. v. McCrea, 91 Ill. App. 337, and Chi. Gen. Ry. Co. v. McNamara, 94 Ill. App. 188.

So far as any showing is made by the briefs and argument of counsel, we discover no sufficient reason for excluding the evidence from the jury and directing a verdict for defendant in error.

The judgment is therefore reversed and the cause is remanded.

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94 Ill. App. 311, 1900 Ill. App. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-city-of-chicago-illappct-1901.

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