Curistine Koski, A Minor, STEVEN Kosxr, A Minor, anp Dzs- oraw Koski, A Minor, By Crarence L. Kosxt, Toerr FaTHer AND Next FRIEND, AND CLARENCE L. Kosx1, ADMINISTRATOR OF Tue EsraTe or Catuertne May Koski, Deceasep, Claimants, ys. STATE OF Ittrnors, Respondent.
Headnotes
- -6 “As a result of the accident, claimant lost the distal joint of his little finger, and his middle finger was swollen. At the time of the accident claimant was 34 years of age. Prior to his imprisonment he had been a mason and cement finisher. He earned approximately $3.17 an hour. At the time of his hearing he was employed as a laborer, because he testified that he was unable to do cement work. He eamed $2.88 an hour as a laborer. In the opinion of this Commissioner, this claim for damages should be denied. It appears that both claimant and respondent were guilty of negligence. Claimant was guilty of negligence in not seeing that the guard in question was in proper working order. It would also appear that, before an inmate is allowed to operate a machine, it should be inspected to see that it is adjusted properly. However, claimant was guilty of negligence in continuing to operate said machine when he discovered that the guard in question was not properly engaged. It is obvious that, when the board first struck the guard and pushed it aside, the machine should have been stopped until the guard was properly in place. It would also appear that claimant should have inspected the machine before attempting to operate it to determine if it was properly adjusted.
- “It is rather curious that claimant did not discover that the far table was in a lowered position rather than in a raised position when he operated the gauges to determine the depth of his cut on the board in question. It would appear that claimant was guilty of contributory negligence, and that his claim should be denied.”
- An award is, therefore, denied.
- Opinton on REHEARING
On June 23, 1961, claimant filed a petition for a rehearing of this case, and, as grounds for same, suggests the following:
1. The common standards of safety by which the duty of the employer to the employee and the master to the servant is measured in private business or industry are applicable to the State.
2. Where the State is guilty of wilful and wanton misconduct, the defense of contributory negligence is not available to it. 3. The claimant was not guilty of contributory negligence.
As to point one, there is no dispute as to the rule of law that the State is held to the same standards in principle that apply under the Health and Safety Act (1959 Ill. Rev. Stats., Pars. 137.1 to 137.21).
In Moore vs. State of Illinois, 21 C.C.R. 282, this Court held that a convict was not an employee of the State, and, hence, is thereby prevented from maintaining [*161] an action under the Health and Safety Act. Yet this Court would not create an anomaly by ruling that a food grinder, without a hopper, used by a private citizen is dangerous, while a similar grinder used by the State was not dangerous.
Claimant further argues that the defense of contributory negligence is not available, and cites the Moore Case, supra, as authority. As indicated in the opinion on page 290, respondent urged that claimant assumed the risk, and was guilty of contributory negligence. The Court held that neither defense was available in this case, but further stated ‘‘We do not, however, hold that such doctrines can never be asserted against a convict, but merely conclude that they do not apply in this case.’’ As to point two, there is no evidence of wilful and wanton misconduct by the State.
As to point three, claimant has the burden of proof of establishing that he was free from contributory negligence. Not only has he failed in this regard, but the evidence discloses that he was, in fact, guilty of contributory negligence.
The petition for rehearing is, therefore, denied.