| Ill. App. Ct. | Dec 21, 1893
delivered the opinion oe the Court.
Upon the trial of the cause to reverse the judgment in which this writ of error is prosecuted, there was evidence tending to show that the plaintiff below, a common laborer, upon the morning he was injured, was for the first time put to work at a dangerous machine, with the direction to do as his fellow-workman, Rhode, did; that Rhode had been previously directed by appellant’s foreman to use a stick to push or poke brick bats into the grasp of the crusher; that on this occasion he did so, and the plaintiff. below, seeing him, did likewise, and as a consequence was injured.
It is quite true that this was, obviously, a dangerous machine, and that plaintiff below, John Rembarz, must be held to have known that if his fingers became caught between its powerful teeth, he would be seriously injured; but there is no presumption that this common laborer had knowledge or information sufficient to enable him to understand the danger of attempting to push, with a stick eight inches long, brick bats or other material into the clasp of the swiftly revolving rollers that carried these teeth. Moreover, it is asserted by him and his companion, Rhode, that he was told to do the very thing by the doing of which his injury was occasioned.
He did not willfully thrust his fingers within the grasp of these rollers, nor did he for any purpose of his own bring his hand into proximity with their teeth; what he did, was done in an honest endeavor to serve his employer, and when working in the manner he was directed by his foreman.
The accident happened as an experienced man might well have anticipated; the stick with which Rembarz was pushing the bats into the clasp of the rollers was caught by them; his hand naturally followed the stick and was caught also; there is no presumption that an entirely inexperienced person would have foreseen such danger.
An employe assumes the hazards of the ordinary perils of the work in which, he is engaged, provided he knew of such dangers, or by the exercise of ordinary care might have known. If the danger is one of which the employe has had no opportunity to learn, then it is not the risk which he assumes. Wharton on Negligence, Sec. 206; McCormick Machine Co. v. Burandt, 136 Ill. 170" date_filed="1891-01-22" court="Ill." case_name="McCormick Harvesting Machine Co. v. Burandt">136 Ill. 170; Walsh v. Peet Valve Co., 110 Mass. 23" date_filed="1872-03-15" court="Mass." case_name="Walsh v. Peet Valve Co.">110 Mass. 23.
In the present case, a common laborer was injured by this machine within fifteen minutes after he began work upon it. There had been no reasonable time within which he could have ascertained the dangers attending what he was given to do, and no explanation was given to him of such danger.
If he and his companion, Rhode, are to be believed, he went to work with the simple instruction to do as Rhode did; seeing Rhode use a stick to push the bats, he followed such example.
The jury, in connection with the general verdict, made, among others, the following special findings :
Fifth. Was it an apparently dangerous act for one seeing the cylinders or grinders in their operation, to use a stick with his hand near the wheel or cylinders while they were in operation ? No.
Sixth. Was the plaintiff exercising reasonable care for his own safety at the time he was injured? Tes.
Seventh. Could the plaintiff, by reasonable attention, or the exercise of ordinary prudence, have known that it was dangerous to use a stick in the machine in the manner testified to by himself ? Tes.
The sixth and seventh of these are said to be inconsistent with the general verdict.
In finding that it was not apparently dangerons to use a stick near the wheels of the machine, and that the plaintiff could, by reasonable attention, or the exercise of common prudence, have known that it was dangerous to use a stick as he did, and that the plaintiff was exercising reasonable care for his own safety at the time he was injured, and a general verdict against the defendant, the jury may have concluded that the plaintiff was acting, when injured, in accordance with the directions of his foreman, and that if, by reasonable care, he might have known that it was dangerous, still he was bound, at the peril of dismissal, to obey orders, and while he might have ascertained that his use of the stick was dangerous, yet that he did not have, in the fifteen minutes allowed to. him, time in which to become aware of the danger.
Host employments about powerful machinery are dangerous, and may easily be seen' to be so; but the danger, the extent and nature of it, may only be learned from extended experience.
The jury did not find that the plaintiff below could, by reasonable care, have known the danger of using a stick as he did, but merely that he could, by such care, have learned that it was dangerous.
The verdict was and the judgment is for a large sum, but not so large as to shock our sense of remedial justice.
The judgment is the act of the judge of the court before whom the cause was tried, and there is more than the usual evidence of a careful consideration of the sum for which judgment should be rendered, as the court below did not enter judgment for the entire amount of the verdict.
We do not mean to be understood as saying that if sitting as the trial court, we should have entered judgment for so large a sum, but we do not feel warranted in interfering with the conclusions of the trial court, and its judgment is affirmed.