241 Ill. 372 | Ill. | 1909
delivered the opinion of the court:
The first contention of the appellant is, that the evidence introduced on behalf of the appellee did not tend to support the cause of action set forth in his amended declaration, and for that reason the court erred in declining to take the case from the jury, upon its motion, at the close of all the evidence. The evidence found in this record is substantially the same as that found in the record when the case was here before, and we think required that the case be submitted to the jury.
It is next contended that the amended declaration stated a new cause of action, and that the court erred in sustaining a demurrer to the pleas of the Statute of Limitations filed thereto by the appellant. Especially is such contention insisted upon as to the pleas of the Statute of Limitations filed to the third count of the declaration. If the original declaration failed to state a cause of action the demurrer should have been overruled to the pleas of the Statute of Limitations. If, however, it stated a cause of action, though defectively, the defects therein could be cured by an amendment, and the court did not err in sustaining a demurrer to said, pleas. In Swift & Co. v. Madden, 165 Ill. 41, it was held that the cause of action in suits for damages arising from negligence is the act done or omitted to be done by the defendant, affecting the plaintiff, which causes a grievance for which the law gives a remedy. And in Swift Co. v. Gaylord, 229 Ill. 330, on page 334, it was said: “In cases of this kind the cause of action is the act or thing done or omitted to be done by one which confers the right upon another to sue,-—in other words, the act or wrong of the defendant towards the plaintiff which causes a grievance for which the law gives a remedy.”
Each of the counts in this declaration rests upon the alleged failure of the appellant to furnish the appellee a safe place in which to work or a safe appliance with which to work, or with negligently ordering him to do the work in which he was engaged, in an unsafe manner. Each count of the original declaration rested upon a failure of the appellant in like particulars, although the facts averred in that declaration were not averred with the same particularity that they were in the declaration upon which the last trial was had. We think, from a comparison of the counts in the original declaration and in the present declaration, that the cause of action set out in the declaration upon which this case was tried was the same cause of action set up in the original declaration.
It is next contended that the appellee assumed the risk of being injured in the manner in which he was injured, and that he cannot, for that reason, recover. The declaration upon which this trial was had averred with particularity that the appellee was acting under the orders of his foreman in going upon the angle-bar, and that he was not advised as to the dangerous condition of the end of the belt which he was assisting in repairing at the time that he was injured, and which defective condition the evidence tends to show was the cause of his injury, taken in connection with the place in which he stood at the time he was injured. The question of assumed risk is usually a question of fact and not a question of law, and we think it cannot be held, in view of the evidence in this case, that the appellee assumed the risk of being injured in the manner in which he was injured, but that the court properly submitted the question of assumed risk to the jury.
It is finally objected that the court improperly admitted in evidence the testimony of the witnesses Pickup and Witte as to the proper manner in which the belt should have been repaired, the end of which appellee was handling at the time he was injured. Those witnesses appeared to have been experienced workmen and familiar with the method of doing the kind of work about which they testified, and the appellant called a number of witnesses, in rebuttal, upon the same question, and the jury appear to have been fully informed upon the subject. In any event, we do not think the cause should be reversed by reason of the admission of the testimony complained of.
We have examined this case with care and have discovered no reversible error in the record. The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
