# Swift & Co. v. Rutkowski

> Appellate Court of Illinois · November 19, 1896 · 67 Ill. App. 209

URL: https://www.frixlaw.com/law-library/cases/6997561

## Case

- **Full name:** Swift & Company v. Vincentz Rutkowski, etc.
- **Court:** Appellate Court of Illinois
- **Decided:** November 19, 1896
- **Citations:** 67 Ill. App. 209; 1896 Ill. App. LEXIS 53
- **Precedential status:** Published
- **Opinion:** Dissent by Shepard
- **Judges:** Shepard, Waterman
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6997561

## Opinion text

Mr. Justice Shepard dissents.
Me. Justice Gaby.
I am not prepared to assent to, or dissent from, what Judge Waterman writes as to proximate cause. I do not feel quite certain whether it may be properly held, that if by reason of having too much work upon his hands, the appellee was in a place where he would not have been if he had had sufficient help, and thereby came in the way of the swinging beef, that in such case, the want of help may be said to be the cause of his injury. If the railway locomotive set a station house on fire, and the station house set a tavern on fire, it is the locomotive that burns the tavern. Chi. & Alt. R R. v. Pennell, 110 Ill. 435 .
If a master knowingly employs an incompetent servant, who, by reason of such incompetency injures another, the cause of the injury is the employment of the incompetent servant. United States Rolling Stock Co. v. Wilder, 116 Ill. 100 .
And the old Squibb case—which I won’t stop to look up and cite—is a famous one on proximate cause.
But the second instruction was wrong for another reason. Consistently with the theory of that .instruction, the appellee may have been as fully conscious, not only that he ought to have help, but of all the possible consequences of the want of it, as could a man of forty years of age have been. The instruction ignores the principle that a servant takes upon himself known risks.
I concurred in reversing the judgment without having had my attention called to the twelfth instruction requested by the appellant, which was as follows:
“ Ro. 12. The court instructs the jury that, although Rutkowski was injured while at work for the defendant in the manner alleged in the declaration, that of itself is not sufficient to charge Swift & Co. with liability for his injury. Before Swift & Co. can be charged with liability in that regard, two things must be established by the evidence : First. That Swift & Co. were guilty of negligence as charged in the declaration; and,
Second. That Ttutkowski was, at and just before the time of the injury, exercising due care for his own safety.” That instruction, very slightly modified, was given to the jury. If it had been refused, the principle the court acts upon would have been just as applicable, that principle being that a party can not complain in this court that the court below went upon a theory which that party had “ encouraged ” the court to entertain. McMahon v. Sankey, 35 Ill. App. 341 ; Hafner v. Herron, 60 Ill. App. 592 .
That the instruction given for the appellee was affirmative, and that asked by the appellant was negative, that the latter was totally disconnected from the former, and was one of a series, in others of which series the doctrine that an employe takes the risks of known dangers of his employment, was clearly stated—do not affect the ground of the principle, which is, that by the act of the appellant the court was put off its guard as to the particular feature in the similar instructions. “ Reasonable,” as the qualifying adjective of “ care ” in the instruction given for the appellee, is synonymous with “ ordinary.” 16 Am. & Eng. Ency., 398, note; 19 lb. 1078.
It is not now open to the appellant to say that the second instruction for the appellee was error. It is probably the fact, at least the jury were warranted by the evidence in finding it to be the fact, that had the work at which the appellee was employed been more expeditiously done, as it would have been, had more hands worked at it, the appellee would not have been in the way of the swinging beef. Within the doctrine of many cases the lack of hands was the cause of the injury to the appellee.
I therefore concur with Judge Shepard in holding that the judgment is to be affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6997561. Public record. Not legal advice.