Winkle Terra Cotta Co. v. Homersky

77 Ill. App. 42 | Ill. App. Ct. | 1898

Mr. Justice Freeman,

after making the foregoing statement, delivered the opinion of the court.

The negligence charged in the declaration, for which it is sought to hold appellants responsible, consists in the alleged failure of the McEwens to supply, and of the terra cotta company to use, anchors which, it is claimed, were intended to and would have held the cornice in place and prevented the accident.

In the view we are compelled to take of the case it Avill not be necessary to discuss at length the question whether the appellants or either of them Avere guilty of such negligence in these respects as would entitle appellee to the judgment in her favor. It is, we think, sufficiently clear, and it seems to be conceded by appellants’ counsel, that there was danger that the cornice would not remain in place when completed unless the anchors were put in as the contract provided. There was, therefore, great risk in proceeding with the work, adding piece after piece to the weight of the cornice, and taking the chances of its fall. It is said that only about twenty-five feet of it actually fell, and more than seventy-five feet of it remained in place, notwithstanding all of it alike was destitute of anchors. Nevertheless, the fact that any of it fell, as it evidently did, may be conceded to indicate the impropriety of proceeding with the work as was done, without the protection which the anchors Avere intended to afford.

The testimony tends strongly to show that the immediate cause of the accident was that the deceased, perhaps in consequence of bending doAvn after mortar, made a misstep or slipped; that to sa\Te himself, he caught at the cornice, Avhich gave way under his hand, and fell over upon him, knocking him from the scaffold, and breaking the latter with its weight. This is in accordance Avith the testimony of those Avhose position at the time enabled them to have the best opportunity of knoAving the facts, and who seem most worthy of credence as to that matter. There is also evidence given by the foreman Avho was called as a witness by appellee, that deceased was told not to use his hammer so much on the cornice just before the accident, and replied, “ Oh, it can’t be knocked down that Avay.”

It is contended in behalf of appellants’ counsel that whatever negligence there Avas, if any, on the part of appellants, or either of them, in not furnishing or using the anchors, the actual and proximate cause of the accident was the use of his hammer by the deceased and the slip or. misstep which caused him to seize the cornice, thus pulling it down upon him.

However that may be, the controlling question here is, whether the deceased voluntarily assumed the danger and entered upon the work of his own accord.

There are certain facts which seem to be undisputed, and are included in the statement made by appellee’s counsel in their brief. It is conceded that the Winkle Terra Cotta Company was a sub-contractor engaged in setting the cornice at the time of the accident, and that deceased was' in its employ. He had been working for said company putting up the terra cotta work on this building for about two weeks. The morning in question, the workmen employed by the terra cotta company were on hand at eight o’clock ready to put up the cornice. They remained idle, waiting for the anchors until about ten o’clock. At that time Eeed, the general superintendent of the building, representing, not the terra cotta company, but the original contractors, John and Paul McEwen, came around and found the men employed by the terra cotta company doing nothing. He was told by the foreman of the latter, in the presence of the deceased and his fellow-employes, that as he, the foreman, had “ no anchors up there,” he would not “ start in.” Eeed insisted that the terra cotta company’s men should go to work, and said that he would be responsible for the job; that if they did not go on he would get some one else. Finally the foreman said to his men, including the deceased, that they had heard what Eeed said, and if they wanted to go to work they could do so. The men were anxious to go on because, as the foreman testifies, “ the superintendent was raising hell with them.” At length the men concluded among themselves that “ the cornice would stand without anchors.” One of the men .testifies that he said, “On my part I will go to work if Mr. Eeed is responsible for the work.” Accordingly they all went to work putting up the cornice without the anchors, and continued at it from ten o’clock in the forenoon until the accident, which occurred about 3:30 p. m.

From this state of facts it is apparent that the men were doubtful of the propriety of going on without the anchors, but concluded that if Eeed, representing the contractors for the building, was willing to take the responsibility of its falling and spoiling the job, they, as employes of the terra cotta company, would take the risk of putting up the cornice. They were not ordered by the foreman of the terra cotta company, to whom alone they were responsible, to go on with the work. They were given their free choice about the matter, and settled it among themselves. They took the responsibility of doing the work in a manner not contemplated by their employer and without said employer’s knowledge or consent. For there is no evidence that the foreman, Freygang, had any authority except to do the work in accordance with the plans and specifications which provided for the use of anchors. His refusal to do the work without anchors in the first place, and his leaving the matter to the men to determine, tend to show that he did not regard himself as having such authority.

If their going on with the work without anchors under these circumstances was negligence the negligence was clearly and wholly their own. It is not a question as to whether by th'e'contract' of employment they assumed any other risks and perils than those which are obvious to a person of ordinary understanding, with opportunity for observation.

It is not necessary to consider whether the deceased and his fellow-workmen assumed a risk not apparent to ordinary observation at the time. They knew they were doing the Avork in a way not contemplated by their employer, and not embraced in their contract of employment. See Felch v. Allen, 98 Mass. 572. Whatever, therefore, the hazards may have been, they were assumed by the workmen of their own free will, and their employer can not be held responsible to them for the consequences. See Camp Point Mfg. Co. v. Ballou, 71 Ill. 419; Abend v. T. H. & I. R. R. Co., 111 Ill. 209; Penn. Co. v. Lynch, 90 Ill. 333.

Doubtless the conduct- of Eeed, the general superintendent for the McEwens, may have been reprehensible when he insisted that the work go on without waiting for the anchors. His conduct may have been inexcusably reckless. But he had no control over the men employed by the terra cotta company, and the relations of that company to his principals were regulated by an independent written contract. Probably he ought not to have urged that the work go on without anchors. He may, if he agreed to assume the responsibility in case the cornice should fall, have undertaken to make his principals liable to the terra cotta company for the damage it sustained. But his principals are not liable to the men for the consequences of the voluntary act of the latter, nor for the negligence, if any, of the independent contractor. Jefferson v. The Jameson and Morse Co., 165 Ill. 138.

There is no evidence here that the deceased and his fellow employes were ignorant of the risk they assumed, or that they were lacking in ordinary intelligence. The consequences of the accident are deplorable, especially to this appellee and her children, thus deprived of a husband and father. But unless the employer is to be held an insurer of his employes against their own acts, no recovery can ever be had in this case. For this reason it is our duty to put an end to litigation, which can never benefit the appellee. The judgment of the Circuit Court will therefore be reversed without remanding. ■