47 Ill. App. 640 | Ill. App. Ct. | 1893
Whether this ordinance enters into and forms a part of the contractual relations that exist between the owners of and the employes working in packing houses, imposing a duty which, if neglected, may serve as the basis of a personal action for negligence, or merely subjects the employer or owner to such penalties as may be provided for its disobedience, is a question which need not now be discussed.
The ordinance does not prescribe any particular safeguard; the language is “proper safeguards.” This must mean proper safeguards with reference to the work to be done. A safeguard might easily be made which would render it impossible for any one to be injured at such vat. Such safeguard might, however, absolutely prevent the performance of work designed to be done. The ordinance must be held to mean a practicable safeguard, such as, while affording reasonable security, does not unreasonably interfere with the work which must be performed. Mo one will contend that the ordinance requires that work about such vats should be made as safe as is skimming milk.
Appellant contends that by placing the railing around these vats it had complied with the ordinance. Only an expert in the business could tell whether this railing was a proper safeguard or all the safeguard that could reasonably be'made use of.
As tb this matter there was no evidence; yet the jury were, by the instruction of the court, left free to say that this railing was not such “ proper safeguard ” as the prdinance of the city required—a matter concerning which the jury can not be presumed to have had any knowledge at all.
It is not claimed that if there were no proper safeguards, the plaintiff ivas ignorant of the fact. He insists that “ proper safeguards,” such as the ordinance requires, were not provided ; that he knew this all the while, yet kept at work without making complaint of the insecure and “ unlawful ” condition of the works. Manifestly, he can not now recover damages for any injury caused by a neglect to comply with the ordinance. The case of Wabash, St. Louis & Pacific Ry. Co. v. Thompson, 15 Ill. App. 117, is in this regard quite similar to the present.
It is so well settled as to require no citation of authorities, that an employe can not recover for an injury suffered in the course of the business about which he is employed, on account of defective appliances used therein, when such injury was received after he had a knowledge of the defect and continued his work. Upon becoming aware of the defective condition of such appliances, he should desist from his employment; but if he does not do so, and chooses to continue, he is deemed to have assumed the risk of such defect, at least when he has not been induced by his employer to believe a change would be made, and has not plainly objected.
The court, by its instruction, utterly disregarded this well known principle.
Taking the plaintiff’s testimony, it appears he had complete knowledge as to the location, construction and mode of operating these vats.
We do not understand that this is disputed. What is contended is, that the plaintiff knew that when the .vats were uncovered, it was customary to indicate them by torches and lanterns; that relying upon such custom, he walked into the uncovered vat; that by the absence of torches and lights, a new danger was created, of which he had no knowledge.
The plaintiff’s own witness, O’Donnell, testified that at the time of the accident, O’Donnell was skimming the vat; that he had a torch which gave sufficient light for him to work by; that it was the light that had always been used; that his lantern was behind him, and that after the accident he found it in the vault and can not tell whether it was burning at the time the plaintiff fell in or not; that he hud a torch and a lantern when he.went to work on vat number five.
If it be conceded that there was neither torch nor lantern burning when the plaintiff stepped into the room, the situation then becomes one in which appellee, knowing the dangers of the place, walked into a room dimly lighted by only one dirty window, the steam in the place being such as to obscure Ms vision, and then went along in a place where he could not see, and had every reason for knowing that each step was fraught with danger. "We do not think that this was doing as an ordinarily prudent man would have done under the same circumstances—in other words, was not an exercise of ordinary care.
The judgment of the Superior Court is reversed and the cause remanded.
Reversed and remcmded.