118 Ill. App. 665 | Ill. App. Ct. | 1905
delivered the opinion of the court.
It is contended in behalf of appellant that it was error to direct a verdict for the defendant, because it is said there was evidence tending to prove it guilty of negligence causing the accident, and that upon the evidence the jury might have so found without acting unreasonably in the eye of the law. The question of negligence is one of law for the court, when the evidence is undisputed; and where, with all justifiable inferences that can be drawn from the evidence, it is so insufficient to sustain the charge that reasonable minds would so pronounce it without hesitation or dissent, the court may so hold and direct a verdict accordingly. Boyle v. I. C. R. R. Co., 88 Ill. App. 255-257; Martin v. C. & N. W. Ry. Co., 194 Ill. 138-145; Offutt v. The World’s Columbian Exposition, 175 Ill. 472-475.
It is said that appellee’s negligence consisted first in not making adequate provision to light the premises where the work was to be done. This refers no doubt to the absence of light in the hall approaching the elevator. There appears, however, to have been ample provision for lighting the hall independently of the arc light, had the deceased chosen to use it. In the first place, he was provided with a lighted lantern, which he left behind him, and in the next place there were gas jets within easy reach from the floor, and within a few feet of the elevator. These agencies were all within the control of the deceased, and there can, we think, be no justifiable difference of opinion that the accident resulted from failure to take the precaution to make use of them before stepping into the open door of an elevator shaft in the dark. The deceased knew that there were other employees in the basement at least, that he had left the basement door of the shaft open, and that it was within the range of possibilities that some one might enter there and pull the ropes which would bring the elevator down. There is no evidence that this was donej but the possibility and even probability, should it suit the convenience of a scrub woman or a janitor to use the elevator, was sufficient to make it a very hazardous thing for one to step into the shaft on the third floor in the dark. At all events it was not the duty of appellee so far as appears, to continue the use of an arc light on the third floor in order to guard against the negligent act of the deceased, which no ordinary human foresight could anticipate and provide against. An employer is not required to provide against unforeseen contingencies resulting from the failure of an employee to look out for his own safety. The elevator itself was a freight elevator. It appears to have been entirely safe for the purposes for which it was designed and for the purpose for which it was then being used by the deceased and his helper. Approaching and entering an elevator shaft in the dark has been repeatedly held to constitute contributory negligence, for which the law would not permit recovery. Bentley v. Loverock, 102 Ill. App. 166-171; Jorgenson v. Johnston Chair Co., 169 Ill. 429-431; Swift & Co. v. McInerny, 90 Ill. App. 295-299; Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224; C., M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248-254.
It seems to be claimed that it was the duty of appellee to have had some one there in special charge of the elevator to run it on that occasion, and that it was negligence not to have had the basement door of the shaft closed and locked. It appears from the testimony of the helper that the deceased knew how to operate the elevator, and that he operated it skillfully, and stopped it even with the floors on the prior occasions that evening, when the two had used it to ascend from the basement to the ninth, floor,- and to make trips back and forth to the third floor. It is a far-fetched claim that under the circumstances appellee is chargeable with any negligence in that respect. It owed no such duty. The same is true as to the basement door. It had been left open by the deceased, as was usual, and -there is not the slightest evidence tending to show that this was in any way the cause of the accident.
It cannot be said that the deceased was in the use of ordinary care such as the situation required when he met his death. The conditions which caused the accident were solely of his own creation. He was using the elevator for his own convenience in doing the work and with the master’s consent. He assumed whatever risk there would have been had he not been apparently experienced in elevator management, and whatever risk there actually was, if any, . for none appears which had any bearing on the injury. ,He was not injured in operating it.
The accident is deplorable, but there is no evidence so far as we can discover, that its proximate cause was any negligent act or omission of the master, certainly none that is alleged in the declaration, and in such case there can be no recovery. Gibson v. Leonard, 143 Ill. 182-193. A master is not an insurer of an employee’s safety, and is not required to take better care of him than he takes of himself. Karr Supply Co. v. Kroenig, 167 Ill. 560-563, 4. Tor the reasons indicated we are of opinion that the trial court did not err in directing a verdict for the defendant, and the judgment must therefore be affirmed.
Affirmed.
