233 Ill. 301 | Ill. | 1908
delivered the opinion of the court:
There is no proof which tends to support the charge that the dust-catcher or any of the other instrumentalities used by appellant were out of repair, nor is it claimed by appellee that the charge contained in the fourth count, of improper and negligent management of the dust-catcher, is sustained. There is no proof in the record that the method of operating the dust-catcher and handling the dust after it came down was any different on the night of the accident from the usual method employed by appellant in doing this work. Appellee’s case, therefore, must rest on the charges of negligence in the other counts, all of which charge, in some form, a violation of the duty of appellant to exercise reasonable care to furnish appellee’s intestate a reasonably safe place to work.
It will be noted that appellee does not charge that the explosion which injured Janlcovich was caused through negligence, but, apparently assuming that such explosions are liable to occur, the contention is that it was the appellant’s duty to close the openings in the dust-catcher or move the Shanty out of line with the opening, so that when such explosions did occur no injury would result to persons working around the dust-catcher and shanty. Regarding the question of negligence charged as one of fact, we are inclined to agree with the trial and Appellate Courts. In our opinion the evidence establishes the charge that leaving these openings in the dust-catcher was negligence. Under the old method of removing the dust by wheelbarrows from the bottom of the dust-catcher these openings were necessary to enable the men to go in and out in removing the dust, but after the chute was constructed, by means of which the dust was conveyed to .the stock-room, no reason is assigned why the openings in the dust-catcher might not have been closed. It is shown satisfactorily that a number of similar explosions had occurred and that other persons than Jankovich had been injured by such explosions. The last of these explosions before the one in question occurred about six o’clock the evening before Jankovich was burned. The frequency of these explosions and the dangerous consequences liable to follow required the appellant to take all reasonable precaution to minimize the dangers to be apprehended therefrom.
Conceding appellant’s negligence to be established as charged, appellee is not entitled to recover unless the evidence fairly tends to prove that appellee’s intestate was free from contributory negligence and that the injury did not result from an assumed risk. Upon the question of contributory negligence we think the case was properly submitted to the jury. Upon the question of assumed risk the law is well settled that where defects in the appliances or conditions connected with the particular service in which the employee is engaged are equally well known to him and the master, the latter is not liable for injuries resulting to the servant therefrom. If a servant, under such circumstances, continues in the service of the master without complaint and without any promise from the master to remedy the defects, he assumes the risk and cannot recover for an injury resulting therefrom. (Christiansen v. Graver Tank Works, 223 Ill. 142.) During the six or seven years that Jankovich worked around these furnaces it must be assumed that he became entirely familiar with all visible and open surroundings and circumstances connected with the service. The proof is, that Bazik, who worked with Jankovich as a helper, knew of the previous explosions. He and the deceased worked together at the same employment, and Jankovich’s opportunities for becoming familiar with conditions were as good as Bazik’s. All of the witnesses who worked about the dust-catcher were familiar with these explosions. The evidence clearly shows that the explosion that occurred at six o’clock the evening before was known to Jankovich. He and Bazik were in shanty No. i, which is the place where Jankovich was injured the following morning, at the time of the six o’clock explosion. A column of red-hot dust came from the opening in the dust-catcher to the door of the shanty. Jankovich closed the door of the shanty and this saved himself and Bazik from injury on that occasion. After this occurrence Jankovich went to Benson, his foreman, and informed him of the occurrence. Benson told him that “the best thing he could do was to keep out of there.” It thus appears that Jankovich was familiar with the opening in the dust-catcher, with the location of the shanty and the fact that explosions of dust were liable to occur at any time. He also knew, from his experience on the evening before, that if a dust explosion occurred the hot dust would be thrown out of the door of the dust-catcher toward the door of the shanty, thus making the shanty a place of danger; and, in addition to his own knowledge, he had been warned by his foreman that the best thing he could do was to “keep out of the shanty.” With this knowledge of conditions Jankovich must be held to have assumed the risk of going into the shanty. He was not ordered there- by his foreman. His purpose in going there at the time in question is not clearly shown. Under the law as announced by many decisions of this court it must, we think, be held that the injury complained of resulted from an assumed risk.
It follows from the foregoing views that the trial court erred in not directing a verdict for appellant.
The judgments of the Appellate and circuit courts are reversed and the cause remanded to the circuit court.
Reversed and remanded.