191 Ill. 439 | Ill. | 1901
delivered the opinion of the court:
In this case the Appellate Court by its judgment has reversed the judgment of the trial court, but did not remand the cause for another trial, and did not recite any finding of facts in its judgment. It is to be presumed, that the Appellate Court found the facts the same as the trial court found them; otherwise it would have recited its findings in its judgment, as required by the statute. It is also to be presumed, that the Appellate Court did not reverse the judgment of the trial court for any erroneous rulings on questions of law arising- on the trial, such as the giving or refusal of instructions, or the admission or exclusion of evidence, because, if it had reversed the judgment for any such erroneous rulings, it would have remanded the cause for another trial, so that such errors could be avoided. Inasmuch as the Appellate Court has found the facts the same as the trial court found them, and has not reversed its judgment for any erroneous ruling on the trial, it must be presumed that the Appellate Court held the facts, as found both by it and the trial court, to be insufficient to sustain the cause of action. That the presumptions thus indicated arise upon such a record, as is here presented, is decided by this court in the recent case of Busenbark v. Saul, 184 Ill. 343, where a large number of decisions upon this subject is referred to. It results, as a necessary consequence of the doctrine thus announced in Busenbarlc v. Saul, supra, that we can do nothing more upon this record than to look into the evidence, and determine whether it fairly tends to establish the cause of action alleged. If the evidence fairly tends to establish the cause of action alleged, the judgment of the Appellate Court must be ■reversed; otherwise it must be affirmed.
We are of the opinion, that the count of the declaration, set forth in the statement preceding this opinion, stated a cause of action; and we are furthermore of the opinion, that the evidence tends to establish the cause of action, so stated.
The evidence tends to show, that the plaintiff in error was employed to superintend a gang of diggers and wheel-barrow men, and for no other purpose. He was called from the work, for which he had been employed, and placed temporarily at work in another department of the master’s business under the control and direction of a foreman, whose work was in a distinct department from that of the plaintiff, and with whom the plaintiff had never been associated. Burns, the “walking-boss," was expressly informed by the plaintiff in error, before he went to work with the dolly, that he had no knowledge of such work. The evidence tends to show, that the defendants in error failed to supply a sufficient number of men to assist the carpenter foreman and plaintiff in error in moving the timber, and that the plaintiff in error, because of his lack of experience in such matters, had no knowledge or notice that more men were required to do the work in safety. The evidence tends to show, that plaintiff in error was injured by reason of the negligence of the defendants in error in not furnishing an adequate number of experienced men. The declaration alleges that the defendants in error, the masters of the plaintiff in error, were negligent in failing to furnish a sufficient number of men to do the work with safety to the plaintiff in error under the conditions, as they existed.
There is evidence tending- to show, that work of the character, which the plaintiff in error was required to do, was dangerous, and that, in order to move the logs in question across the runway in question, it was necessary to have an adequate • force of men acquainted with that particular work. Several witnesses testify, that the log when placed upon the dolly, should have been blocked, tied or in some way fastened thereto to prevent its shifting, and that, where the log was not blocked or fastened, a larger number of men was necessary to move it with safety than would otherwise have been needed. Several witnesses swear that there should have been five or six men to handle the log if it was blocked; and there is testimony tending to show that a greater force was necessary where the log was not blocked.
It was not necessary, that there should be a distinct allegation in the declaration of a failure to block or fasten the timber. That fact was only one circumstance, which rendered it necessary to employ more men on the work, and the declaration alleged the negligence of defendants in error in failing to furnish a sufficient number of men to do the work with safety to plaintiff in error.
It is as much the duty of the master under such circumstances as are here shown by the record in this case to furnish an adequate number of competent co-laborers as it is to furnish sufficient and suitable implements and machinery. “The master owes a duty to his servant to exercise reasonable care in supplying for the performance of the work an adequate number of fit and competent servants, and for failure of duty in this respect he is responsible in damages to a servant injured in consequence thereof.” (Bailey on Master’s Liability, p. 68; Swift & Co. v. Rutkowski, 182 Ill. 18).
Shearman & Redfield, in their work on Negligence (5th ed. sec. 193) say: “Another duty, which the master owes to his servant, is that of employing a sufficient number to do the work so far as may be necessary to enable them to do it in safety; but, as in other cases, he is only bound to use ordinary care for that purpose. It is not always consistent with such care, however, to provide a force just sufficient for the regular every-day course of business. Preparation must be made for those extraordinary emergencies which, although they do not frequently occur, are still known in common experience to be likely to occur occasionally.” (Flike v. Boston and Albany Railroad Co. 53 N. Y. 549; Booth v. Boston and Albany Railroad Co. 73 id. 38; Northern Pacific Railroad Co. v. Herbert, 116 U. S. 642). In the latter case, the Supreme Court of the United States, speaking by Mr. Justice Field, said: “The servant does not undertake to incur the risks arising from the want of sufficient and skillful co-laborers, or from defective machinery or other instruments with which he is to work. His contract implies that, in regard to these matters, his employer will make adequate provision that no danger shall ensue to him.” (Mad River and L. E. R. Co. v. Barker, 8 Ohio St. 541; Moss v. Pacific Railroad Co. 49 Mo. 167).
Whether,, in • the present case, the master did furnish a sufficient number of meu to assist in the work, in which plaintiff in error was engaged, was a question of fact for the jury. The jury found that fact in favor of plaintiff in error; and the Appellate Court must have also found the fact in the same way, inasmuch as it did not insert a contrary finding in its judgment.
The plaintiff in error was taken away from his regular employment of superintending a gang of diggers and wheel-barrow men, and was put to work in another and separate department of the master’s business, that is to say, the carpenter-work department, under the supervision and control of a foreman of the latter department. It is well said: “The servant’s implied assumption of risks, which accompanies and is a part of the contract of hiring, is confined to" the particular work and class of work for which he is employed; and if the master orders him to work temporarily in another department of the general business where the work is of such a different nature and character that it cannot be said to be within the scope of the employment, and where he is associated with a different class of employees, he will not, by obeying such orders, necessarily thereby assume the risks incident to the work.” (14 Am. & Eng. Ency. of Law,—1st ed.—p. 856; Buswell on the Law of Personal Injuries, sec. 212; Lalor v. Chicago, Burlington and Quincy Railroad Co. 52 Ill. 401; Banks v. City of Effingham, 63 Ill. App. 221; Consolidated Coal Co. v. Haenni, 146 Ill. 614; Pittsburg, Cincinnati and St. Louis Railway Co. v. Adams, 105 Ind. 152; Mann v. Oriental Print Works, 11 R. I. 152; Cole v. Chicago and Northwestern Railroad Co. 71 Wis. 114; Bailey on Master’s Liability, p. 220).
If the injury to the plaintiff in error occurred by reason of the failure of defendants in error to furnish a sufficient number of men to do the work, which he was required to assist in doing-, it would seem to be immaterial whether the carpenter foreman, with whom the plaintiff in error worked, and the plaintiff in error were fellow-servants or not; but whether they were fellow-servants or not was a question for the jury. (Louisville, Evansville and St. Louis Consolidated Railroad Co. v. Hawthorn, 147 Ill. 226; Chicago and Alton Railroad Co.v. O’Brien, 155 id. 630; Consolidated Coal Co. v. Scheiber, 167 id. 539; Illinois Steel Co. v. Bauman, 178 id. 351). It must be presumed, here, that the question of fact as to fellow-servants was determined by the jury and the trial court in favor of the plaintiff in error; otherwise, the judgment in the court below would have been for the defendants.
It thus appears in this case, first, that the Appellate Court has found the facts the same as the trial court; second, that the Appellate Court found no errors of law committed by the trial court either in the giving or refusal of instructions, or in the admission or exclusion of evidence; third, that the Appellate Court must have reversed the judgment without remanding the cause, because it was of the opinion that the evidence does not fairly tend to establish the cause of action, alleged in the declaration. We are of the opinion that the Appellate Court erred in thus interpreting the evidence, and that there is proof in the case, tending to establish the cause of action alleged in the declaration.
The writer of this opinion entertains the view that the judgment of the Appellate Court ought to be reversed and the cause remanded to that court with directions to affirm the judgment of the superior court; but, in conformity with the opinion of the majority of the court, the judgment of the Appellate Court is reversed, and the cause is remanded to that court, being the Branch Appellate Court for the First District, with directions to enter such judgment, reversing and remanding, or affirming the judgment of the superior court of Cook county, as, in their judgment, may be proper, or reciting in their judgment the facts found by them, if any such final determination of the cause is made by them as is provided for in section 87 of the. Practice act. Leave is given to withdraw the record of the superior’ court filed in this court for the purpose of filing it in the Appellate Court.
Reversed and remanded.