185 Ill. 571 | Ill. | 1900
delivered the opinion of the court:
The declaration contained five counts, but all of the counts except the fifth were practically abandoned and a recovery was had under that count. In the fifth count it was in substance averred that defendant was engaged in removing a certain large boiler in Chicago; that the removal was made under the superintendence of the foreman of the Merchants’ Transfer Company and the engineer of the appellant; that Thomas Moren was then and there in the employ of the appellant, the Chicago Edison Company, working as a laborer, and under the directions and orders of said foreman above mentioned and said engineer; that in order to remove said boiler a chain was placed around said boiler, and said boiler was lifted or hoisted a distance of six inches from the brick foundation upon which said boiler had previously rested, and the said Moren and other laboring' men were instructed by the said foreman and the said engineer to proceed to work beneath the said boiler, which was of great weight, to-wit, the weight of eighteen tons, and to remove the brick foundation upon which said boiler had previously rested, which instructions the said Moren and his other fellow-laborers proceeded to carry out; that it was well known to the said foreman and the said engineer at the time they instructed the said Moren to work beneath the said boiler that it was dangerous for any person to work beneath the said boiler swinging upon chains, as aforesaid, but such danger was unknown to said Moren, who was an ordinary laboring man and unfamiliar with machinery. and mechanics; that it was then and there the duty of the defendant to have prevented the said Moren, or any other laborer or person, from going beneath or working beneath the said boiler, yet the said defendant, acting through its said servants and employees, willfully, knowingly, carelessly and negligently failed to prevent the said Moren from going* beneath said boiler and working beneath said boiler, but, on the contrary, ordered the said Moren to go beneath the said boiler and work beneath the said boiler, which he, the said Moren, then and there did, and whilst the said Moren was thus working beneath said boiler the chain by which said boiler was suspended broke, and the said boiler fell upon the said Moren and crushed and killed him, without any fault on his part, and while he was using g*ood care and diligence for his own safety, etc.
At the close of the evidence the appellant requested the court to instruct the jury to find for the defendant, but the court refused the instruction, and the ruling of the court is relied upon as error. We have often held that where there is evidence fairly tending to establish a cause of action it is not error to refuse a peremptory instruction to find for the defendant. Adhering to that rule, we cannot say the court erred here. In Illinois Steel Co. v. Schymanowski, 162 Ill. 447, it was held that a servant ordered by the master to perform a particular work has the right to assume that he will not be exposed to unnecessary perils and to rest upon the implied assurance that there is no danger. In Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, it was held that where an act was performed by a servant in obedience to a command from one having authority, and the performance of the act is attended with a degree of danger, it is not required that such servant shall balance the degree of danger and decide with absolute certainty whether he must do the act or refrain from it; and his knowledge of the attendant danger will not defeat his right of recovery, if, in obeying the command of the master, he acted with that degree of prudence that an ordinarily prudent man would have used under the circumstances.' Here, Moren was in the service of appellant as a common laborer, working under one Tully, who was boss or foreman. He had nothing to do with the hoisting of the boiler, and he was not chargeable with inquiry whether the manner adopted in hoisting it was safe or unsafe. The foreman of appellant, Tully, ordered Moren and the other laborers who were working with him to go under the boiler after it had been hoisted, and remove the foundation brick, when he knew it was dangerous to work under a boiler suspended, as this one was, by chains, as he had been told that it was not safe for men to work under the boiler unless it was blocked. There was, in our judgment, ample evidence from which the jury might properly have found that appellant was guilty of negligence, and the instruction to take the case from the jury was properly refused by the court.
It is, however, said, if there is any liability it is upon the Merchants’ Transfer Company. That company had a contract with appellant to move the boiler, but it had nothing* to do with the removal of the brick from under the boiler. That part of the work belonged to appellant, and it was the removal of the brick from under the boiler, under the order of appellant’s'foreman, which caused the death of Moren.
The appellant, so far as appears, has had a fair trial. The record is free from substantial error, and the judgo ment of the Appellate Court will be affirmed.
Judgment affirmed.
