236 Ill. 570 | Ill. | 1908
delivered the opinion of the court:
The first point made by plaintiff in error in its brief of points and authorities is, “the verdict was against the evidence,” which, of course, we cannot consider. The second is, “Robinson, the engineer, was a fellow-servant of defendant in error;” and the third is, “defendant in error assumed the risk of the boiler rolling.” The fourth and remaining point is, that the court erred in passing on instructions tendered upon the submission of the case to the jury. The assignment of errors is perhaps broad enough to question the action of the court in refusing to direct a verdict for plaintiff in error, but no such point is made by the brief. The argument pertaining to the first, second and third points would have been entirely appropriate in the Appellate Court, where the facts could be determined, but has little or no application here, where we can only consider the law.
In view of the condition of the plaintiff in error’s brief we regard it as unnecessary to enter upon a detailed discussion of the evidence. We have read the testimony of the witnesses as abstracted, and find that there was evidence which tended to show that a negligent order of Timm’s superior was.the proximate cause of the accident. In giving that order the superior did not act as a fellow-servant of Timm. There is no evidence which tends to' show that the risk attendant upon the negligent order was assumed by the injured employee.
Instruction i given at the request of Timm is objected to. The criticism offered has been several times held by this court to be without merit. It is unnecessary to again consider it or to state it here.
It is said that Timm’s instruction 3 is objectionable, for the reason that it assumes that plaintiff in error conferred authority on one of its employees to remove the boiler from the wagon, when, in fact, there was no evidence whatever in the case tending to show that such authority was conferred on anyone. An examination of the instruction shows that it contains no such assumption. It states the law in reference to the responsibility of the master for commands given by a vice-principal within the scope of the authority conferred on him by the master. It might have been refused for the reason that it is abstract, but it recites the law correctly and we think it was not misleading.
The court gave four instructions on the part, of Timm. The plaintiff in error asked thirty-six, of which 'the court gave sixteen and refused twenty. The issues in the case were few and simple. The direct evidence offered on the part of Timm was the testimony of himself and another witness, which covers six pages in the abstract. The same two witnesses were the only ones who testified in rebuttal, and their testimony then given, as abstracted, covers about half a page. Plaintiff in error’s testimony, as abstracted, covers about twelve pages. The only controverted question of fact was as to whether or not the alleged negligent order was given by Timm’s superior. Propositions of law which plaintiff in error was entitled to have given to the jury could have been, and should have been, fully and clearly stated in half a dozen instructions. -Among other instructions refused were six stating the doctrine of assumed risk in various ways. No instruction on that subject was given, and it is urged that the refusal of each of the six was error. There was nothing in the proof upon which to base these instructions. The evidence offered on behalf of Timm as to the cause of the accident tended only to show that the injury resulted from the negligent order. There was no proof which could possibly be regarded as indicating an assumption of the risk resulting from obedience to that order. There was therefore no question of assumed risk in the case, and these instructions were for that reason properly refused. Postal Telegraph Co. v. Likes, 225 Ill. 249.
Complaint is also made of the refusal of instruction numbered 44 asked by plaintiff in error, which was in the following words: “The court instructs you that an employer is not an insurer of the safety of an employee.” While the proposition is unquestionably accurate, we are unable to see that its refusal could have worked injury.. The same thing is true of instructions numbered 30 and 31 asked by plaintiff in error. While no harm would have resulted from giving them, their refusal does not, upon this record, appear to have been erroneous.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
