
    Goss & Phillips Manufacturing Company v. William Suelau, by his Next Friend, etc.
    
      Master and Servant—Negligence of Master—Personal Injury—Vice Principal—Contributory Negligence—Evidence.
    
    In an action brought to recover from an employer for injury alleged to have been suffered by an employe through its negligence, this court holds in the absence of evidence going to show that the person injured was commanded to take the position in which he was, when hurt, that the verdict in his behalf can not stand.
    [Opinion filed December 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Arjba ¡N. Waterman, Judge, presiding.
    Messrs. Boyesen & Lawrence, for appellant.
    Messrs. Goldzier & Bodgers and John McGaeeey, for appellee.
   Gary, P. J.

It is not wonderful that jurors should permit tlieir pity for misfortune to overcome tlieir obligation to follow the evidence,when a court finds itself so reluctant to take from this unlucky boy the benefit of a verdict he has obtained.

There is an impulsive and not unnatural feeling that for injuries inflicted by powerful and dangerous machinery upon humble employes, even through their own want of forethought and caution, the proprietors, though without fault, should make some contribution. But if this is a duty it is of that class of moral duties, of imperfect obligation, of which the law can not take notice, and the performance of which can not be enforced.

The appellee was at work sawing wedges at a circular saw. His place, and a safe one, was at the front of the table in which the saw ran. The waste from the saw accumulated in a box on the side of the table, to the left hand of the operator. By a change in the apparatus a skilled workman could saw wedges faster when himself standing in the box. The boy being in fact in the box, stumbled upon the waste pieces there, and fell in such a manner that his leg came into contact with the saw under the table, and he has lost all beneficial use of his leg for life. His own testimony is that the foreman of the appellant told him to stand in the box while at work. The only corroboration of his testimony is that of another boy, that he saw the appellee in the box at work, and that the foreman was about the room at his own work, or going out and in. There is no reasonable foundation in the evidence for any supposition that the apparatus had been arranged for the operatorio work from the box. The jury have specially found that the appellee was on some occasion warned by another workman that in the box was not a safe or proper place to stand; that the appellee had worked at the same saw before; that on a former occasion the foreman had told him to stand in front, and not in the box.

The foreman denied that he told the appellee to go into, or ever saw him at work in the box; another witness for the appellants testified that the appellee told him, that nobody told him to go into the box, and on a former trial the appellee testified that “ when they emptied my barrel, I went into the box and slipped and fell right under the saw.” That as the wedges were sawed they were put into the barrel, appears from other testimony.

The only ground for a recovery is that the foreman ordered the appellee into the box, and this is so thoroughly disproved that the verdict can not stand.

A new trial should have been awarded, and the judgment is reversed and the case remanded.

Reversed and remanded.  