227 Ill. 478 | Ill. | 1907
delivered the opinion of the court:
Without entering into any discussion of the evidence, it is manifest from the foregoing statement that the court did not err in refusing to direct a verdict for appellant.
At the instance of appellee the court gave the jury the following instruction:
“The court instructs1 the jury, as a matter of law, that the risks assumed by the servant of the master are the ordinary and usual risks incident to his employment, and that ‘ordinary’ and ‘usual’ risks of his employment include only such risks as cannot be obviated by the master’s employment of a reasonable measure of precaution; and you are further instructed that risks that are unreasonable or extraordinary, or that arise from the master’s negligence, are not assumed by the servant.”
This instruction lays down the rule that dangers arising from the master’s negligence are not assumed by the servant. It is the well settled law in this State that when a servant engages in any employment he does so in view of the usual and ordinary risks incident to it, and he will be presumed to have contracted with reference to such risks, and for an injury received from such incidental and ordinary risks connected with his employment he cannot recover. (2 Cooley on Torts,—3d ed—p. 1042; 20 Am. & Eng. Ency. of Law,— 2d ed.—109; Chicago and Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492.) This doctrine of assumed risk applies as well to those risks which arise or become known to the servant during the service as to those in contemplation at the time of the original hiring. (2 Cooley on Torts,—3d ed. —1044.) “However gross the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises or appliances, yet where the servant knows the defects and dangers, and still, knowingly and without protest, consents to incur the risk to which he is exposed, thereby he is deemed to assume such risk and to waive any claim for damages against his master in case of injury.” (2 Cooley on Torts,—3d ed.—1046.) In such case the assumption of the risk does not rest wholly upon the contract of hiring, express or implied, but rather upon a waiver which is evidenced by the servant continuing in the employment with a full knowledge of the danger. In O’Maley v. South Boston Gas Light Co. 158 Mass. 135, (32 N. E. Rep. 1119,) the supreme judicial court of Massachusetts uses this language: “The doctrine of the assumption of risks of his employment by an employee has usually been considered from the point of view of a contract, express or implied, but as applied to actions of tort for negligence against an employer it leads up to the broader principle expressed by the maxim, volenti non fit injuria. One who, knowing and appreciating a danger, voluntarily assumes the risk of it, has no just cause of complaint against another who is primarily responsible for the existence of the danger. As between the two, his voluntary assumption of the risk absolves the other from any particular duty to him in that respect and leaves each to take such chances as exist in the situation, without a right to claim anything from the other. In such a case there is no actionable negligence on the part of him who is primarily responsible for the danger.” In Drake v. Auburn City Railway Co. 173 N. Y. 466, (66 N. E. Rep. 121,) which is a case in many respects like the case at bar, it is said: “The rule of assumption of obvious risks does not rest wholly upon the implied agreement of the employee, but is an independent act of waiver, evidenced by his continuing in the employment with a full knowledge of all the facts.”
Where the servant has knowledge of a danger in connection with the place where he is required to labor or in connection with the appliances with which he is to do his work, and with such knowledge he voluntarily elects to continue in the service without complaint and without any promises of the master to remedy the defect, he must be held to assume the risks from such known defects, and waives all claim, by thus continuing in the employment, to damages resulting to him from such defect. In such case it is wholly immaterial that the defect exists as a result of gross negligence on the part of the master. The instruction under consideration, which told the jury that the servant did not assume the risks arising from the master’s negligence is not an accurate statement of the law as applied to the facts in this case. In Drake v. Auburn City Railway Co. supra, a street car conductor was killed while riding on the running-board of his car, in the discharge of his duty, by being struck On the head by a leaning tree which stood in close proximity to the railroad track. The evidence showed in that case that the conductor had passed this tree about one hundred and sixty times as conductor and fifty trips as motorman, and it was held, under the above facts, that it was error to submit the question of assumption of risk to the jury, and that it should be determined, as matter of law, that the deceased assumed the risk. The case at bar differs very materially from the Drake case as to the opportunities the deceased had for observing and becoming familiar with the dangerous situation, and it therefore cannot be determined in this case, as a matter of law, that the deceased assumed the risk in attempting to make this coupling under the circumstances disclosed by the evidence. It was therefore a question of fact to be determined by the jury, and appellant was entitled to have the question determined under proper instructions. Under the instruction being considered the jury might believe that the deceased assumed the risk, but if they further believed that the danger grew out of the negligence of appellant in operating its cars in dangerous proximity to the leaning post, they would have to conclude that such assumption of risk by the deceased was no bar to recovery. The error in giving this instruction is not cured, if, indeed, it could be, by any other instruction in the series.
Appellant also insists that the court erred in giving instructions numbered 3, 4, 5, 7 and 9. We have carefully considered the several objections of appellant to these instructions and have reached the conclusion that none of them are open to the objections urged against them. But for the error in giving instruction No. 2 the judgment must be reversed and the cause remanded.
Reversed and remanded.
