Opinion on Rehearing
Tolson, O. J.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 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, hut 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.