| Ill. | Feb 17, 1904
delivered the opinion of the court:
Under the evidence in this case the court was warranted in submitting to the jury the question of defendant’s negligence. Whether plaintiff can be said, as a matter of law, to have assumed the risk resulting from the proximity of the end of the switch-stand handle to the tracks is more difficult to determine. Appellee contends that this is solely a question of fact and cannot be reviewed by this court. This is not always true. Where there is a contrariety of evidence on the question it-is a question of fact and the judgment of the Appellate Court is final, but where there is no dispute in the evidence,— where it is all harmonious and consistent,—the question whether the plaintiff assumed the risk becomes one of law, and if, under such circumstances, it clearly appears that he did assume the risk, there being no evidence to the contrary, and the question, as here, is properly presented to this court, a judgment in his favor will be reversed by this court notwithstanding the .adjudication of the Appellate Court. In this case, however, we are of opinion that the record is not in that condition. It is certain that Howell knew where the switch-stand was located and the manner in which the handle was operated, but we think that it cannot be held, as a matter of law, that he knew, or by the exercise of ordinary prudence should have known, of the danger resulting therefrom. He cannot, therefore, be said by this court to have assumed the risk. (Consolidated Coal Co. v. Haenni, 146 Ill. 614" date_filed="1893-10-27" court="Ill." case_name="Consolidated Coal Co. v. Haenni">146 Ill. 614; Union Show Case Co. v. Blindauer, 175 id. 325; Chicago and Eastern Illinois Railroad Co. v. Knapp, 176 id. 127; North-Chicago Street Railroad Co. v. Dudgeon, 184 id. 477; Swift v. O'Neill, 187 id. 337.) It appears that he had thrown the switch there .at least once, but it does not appear that he ever stood on that side of the track while an engine or car passed, so that he would have had an opportunity to observe how dangerously close that switch handle, when turned towards the track, would be to a passing freight car. It is easy to see that he could go to the switch-stand, throw the handle over toward the track and pass on about the performance of his duties without at anjr time being in a position where he would observe or have his attention called to the proximity of the handle to a passing" freight car. He, himself, testified that he did not know, prior to the accident, how close these two objects would be to each other.
It is also urged that the plaintiff was guilty of negligence in attempting to uncouple the cars while they were in motion, for the reason that the snow rendered the footing uncertain and slippery, making it unsafe to uncouple the car while it was in motion. His negligence ip. this respect, if any, did not contribute to the injury.
Under these circumstances we cannot say that the evidence, with the reasonable inferences to be drawn therefrom, does not warrant the verdict. The instruction to find for the defendant was properly refused.
The car which ran over Howell was numbered 5900. Two witnesses testified that appellant’s box-cars were purchased in different series and that the cars of one series were all the same size; that this car was one of a series; and then testified to the measurements of cars of that series and to the distance they would project over. the rail. The objection is, that the evidence should have been confined to the car appellee was beside when .he came against the handle. The objection is not good. One question was whether the defendant was negligent, and in determining that question the jury had a right to take into consideration the proximity of the handle, when turned towards the track, to passing freight cars of the entire series. Moreover, the abstract does not show any objection whatever to the testimony of McCarthy, who testified in greatest detail in reference to these measurements.
The court properly struck out the evidence of the witness Webster, offered on behalf of appellant, in reference to the distance that intervened between the end of the switch handle, when turned toward the track, and passing freight cars, for the reason that-it did not appear to be based upon any measurements whatever, but the testimony was merely upon a hypothetical question propounded by counsel for the appellant, presuming the leng'th of the connecting rod, used in conjunction with the switch-stand, and the width of the car. It was not a proper subject to be submitted upon a hypothesis.
Appellant showed by another- witness that switch-stands like the one in question had been in general use on railroads for the last twenty years. Appellee was properly permitted to show, on cross-examination, that they were now being re-placed by others of a later pattern. This was germane to the examination in chief.
Objection is made to the first instruction given on the part of the plaintiff. As that instruction has been approved by this court in the recent case of City of LaSalle v. Kostka, 190 Ill. 130" date_filed="1901-04-18" court="Ill." case_name="City of LaSalle v. Kostka">190 Ill. 130, in which the same criticism was made as is now urged, we do not deem it necessary to enter upon any discussion of the point presented.
Complaint is also made of the refusal of the court to give two instructions asked by the defendant. These instructions would have advised the jury that the plaintiff assumed all the risks of his employment, and if injured while in the performance of his duties could not recover. Each amounted to an instruction to find for the defendant; each ignored the question of defendant’s negligence, and was properly refused. The doctrine of assumed risk was accurately stated to the jury in the third and fourth instructions given on the part of the defendant.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.