102 Ill. App. 347 | Ill. App. Ct. | 1902
delivered the opinion of the court.
The appellant states its case in this court in its brief, as follows:
“ The defendant in this case alleges that the evidence introduced before the jury failed to prove any negligence on the part of the defendant; that the evidence proved conclusively that the plaintiff assumed the risk of injury from the gas, and was guilty of contributory negligence; that the court erred in refusing to give proper instructions requested by the defendant; in modifying instructions requested by defendant and in giving such modified instructions; in giving improper instructions requested by the plaintiff; in refusing to permit proper evidence offered by the defendant; in improperly limiting the defendant’s right to cross-examine the plaintiff's witnesses and in allowing improper evidence on the part of the plaintiff.”
The first three of these propositions are, as is apparent, questions of fact. The evidence shows, without dispute, that appellee was taken from his work in a safe place about another furnace on the surface of the ground and ordered by the foreman to go to the top of furnace No. 8, where the fumes of gas were very bad that morning. Nothing was said to him as to whether or not the fumes were bad up there that day, although the foreman knew of the condition.
He had previously been on top of the furnace and had ascertained that the usual number of men were insufficient to spell one another in contending with the escaping gas, and five minutes after having ordered appellee to go to the top of the furnace he followed, and found appellee up there with his head out of one of the windows getting some fresh air. Appellee was then ordered by the foreman to take the place of a workman who had been overcome b)'- the gas, and was then left by the foreman to take care of himself.
After working a time, appellee was overcome by the gas, and made his way to the shanty and sat down. Here he presumably soon became wholly unconscious and fell upon the hot stove, with his head resting in the open stove door, in which place he was later found, shockingly burned.
The duty which the law imposes upon a master requires that he shall exercise reasonable care to provide the servant with a reasonably safe place in which to perform the labors of his employment, and to guard and protect him, while therein at work, from dangers which might be obviated by a reasonable regard for his safety.
The doctrine of assumed risk by the servant, which is appealed to by appellant, was not created for the purpose of relieving the- master from his duty in such respects. The fact that some employments are attended with dangers which the servant contracts wTith reference to, does not excuse the master from his primary duty to exercise reasonable care to protect the servant, and the servant has the right to expect and to rely upon the presumption that the duty of the master will be faithfully performed; and if the servant receives an injury which he would not have received had the master exercised reasonable care for his safety, the master is liable to respond in damages for the injury.
Thus, in the case at bar, the gas which affected appellee did not always escape from the furnace in great or dangerous quantities. And although appellee may have had a general knowledge that it was at times liable to escape in dangerous quantities, it does not appear that he had any knowledge, information or appreciation of the fact that it existed in overpowering quantities on the morning he was ordered to go up to the top to work. Sometimes it was not hazardous to do the work.he was directed to perform. The existence of the gas in dangerous quantities varied much, according to the state of the atmosphere. “ Sometimes it would be twice a week and then again it would not be may be for a month.”
The record shows it was an extremely dangerous place on the morning in question in which to order men to work, and that the foreman knew it, and that appellee did not know it and it was not made known to him, or appreciated by him.
“There is a distinction between knowledge of defects and knowledge of the risks resulting from such defects. The servant is not chargeable with contributory negligence if he knows that defects exist, but does not know or can not know, by the exercise of ordinary prudence, that risks exist.” Illinois Steel Co. v. Schymanowsky, 162 Ill. 469.
It may be assumed that appellee knew something of the dangers of the place where he was ordered to work. But that knowledge did not absolve the appellant from its duty to him. The extraordinary condition that existed with reference to the presence of so much gas was not known to him and was not explained to him, as it ought to have been.
Where extraordinary risks are or may be encountered, if known to the master or should be known by him, the servant should be warned of these, their character and extent,' so far as possible. Smith v. Peninsular Car Works, 60 Mich. 505.
“Appellee was not required to make a critical and careful examination of his surroundings .at the place where he was sent to work by the foreman. We think it was properly left to the jury to determine whether appellant’s foreman exercised such reasonable and ordinary care to see that the place where he ordered appellee to work was reasonably safe before he sent him there to work, and also whether appellee knew, or should have known, the danger to which he was exposed.” Ross v. Shanley, 185 Ill. 390; Illinois Steel Co. v. Schymanowski, 162 Ill. 447.
“Where an act is performed by a servant in obedience to a command from one having authority to give it, and the performance of the act is attendant with a degree of danger, yet in such case it is not requisite that such servant shall balance the degree of danger, and decide with absolute certainty whether he must do the act or refrain from it; and his knowledge of attendant danger will not defeat his right of recovery, if, in obeying the command, he acted with that degree of prudence that an ordinarily prudent man would have done under the circumstances.” Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573.
So, in McGovern v. Central Vermont R. R. Co., 123 N. Y. 280, it is said:
“ It has been held that reasonable care on the part of a servant in the performance of his work pre-supposes the performance by the master of his duty to do all that reasonably lies within his power to protect the servant while so engaged. (Citing cases.) When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and" guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger.
“ When the master orders his servant to perform his work, the latter has the right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils; the servant has the right to rest on the assurance that there is no danger, which is implied by such an order. The master and servant are not altogether upon a footing of equality. The primary duty of the latter is-obedience, and he can not be charged with negligence in obeying an order of the master, unless he acts recklessly in so obeying. Whether he acted thus recklessly in obeying his master’s orders, or whether he acted as a reasonably prudent person should act, are questions of fact to be determined by the jury.” Illinois Steel Co. v. Schymanowski, 162 Ill. 447. See also, Dallemand v. Saalfeldt, 175 Ill. 310; Consolidated Coal Co. v. Haenni, 146 Ill. 614; Offut v. World’s Columbian Exposition, 175 Ill. 472; Chicago & Eastern Ill. R. R. Co. v. Knapp, 176 Ill. 127.
We think we have cited a sufficient number of authorities, and quoted enough from them, to put at rest the contention of appellant that there was no proof of negligence on its part, and that appellee assumed the risk of injury from the gas, and was guilty of contributory negligence. These were all questions of fact that xve are not at liberty to hold existed as matters of law.
Complaint is made by appellant of the giving of the following instructions, viz.:
“ The jury are instructed that the preponderance of the evidence in a case is not alone determined by the number 'of witnesses testifying' to a particular fact, or state of facts. In determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which thejr testify; their conduct and demeanor while testifying; their interest, or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements'™ view of all the other evidence, facts and circumstances proved on the trial; and from all these circumstances determine upon which side is the weight or preponderance of the evidence.”
And it is argued that the instruction contains a direct command made upon the jury to determine upon which side is the preponderance of the evidence, by taking into consideration certain specific things, viz.:
1. The opportunity of the several witnesses for seeing and knowing, etc.
2. The conduct and demeanor of the several witnesses while testifying.
3. Their interest, or lack of interest, in the result of the suit.
4. The probability, or improbability, of their truth in view of the other evidence, etc.
We do not think the instruction is fairly subject to the criticisms urged against it. Meyer v. Mead, 83 Ill. 19; Mitchell v. Hindman, 150 Ill. 538; Chicago & Alton Ry. Co. v. Winters, 65 Ill. App. 435; Eastman v. West Chicago Street R. R. Co., 79 Ill. App. 585.
The modification of certain of appellant’s instructions as complained of, were, we think, proper. The first modification that was made, was only for the purpose of making clearer the instruction to which it was applied, and while perhaps not necessary to that end, it did no harm.
The other modifications brought into the instructions the question of the appreciation by appellee of the dangers of working in the place where he was ordered to work, and were ' properly made, in accordance with what we have already said on that subject.
The remaining questions that are argued, relate to the admission and exclusion of evidence, but raise no novel questions which we think justify a prolongation of our opinion.
The judgment is one that ought to be affirmed, and it is so ordered.
Affirmed.
