| Ill. | Dec 16, 1903
delivered the opinion of the court:
There ,is evidence in this record, the substance of which appears, in the foregoing statement, from which the jury might reasonably infer that the appellant failed to provide a reasonably safe place for the appellee to work in when it sent him to assist in putting the car back on the track at the time he received the injury, and that appellant knew, or ought to have known, of the danger éxisting there at the time it directed appellee to go there, and the evidence also warrants the inference that the risk was not one which appellee assumed as an incident of his employment. The jury might well conclude that the danger and the injury were occasioned by the fact that the rails were too close together at a place on the incline a few feet above the heel of the incline, and by the fact that four of the ties under the west rail at the same place were not properly supported.
It is argued that appellee, having taken the stone out of the car when it fell over backward on- the first trip, must or ought to have known of the danger. The place where the stone was taken out of the car on that occasion was at the heel of the incline. All the knowledge that appellee could be reasonably held to have acquired from what he saw and what he did at that-time was, that for some reason, which no doubt appeared to be the sharpness of the incline,' a loaded car not drawn by the cable, and to which the cable was not attached, if started up the incline by momentum acquired in coming down the slope leading to the incline, would stop and tip báckward. The evidence does not warrant the conclusion that appellee had, or ought to have had, any knowledge that the rails were too close together, or that the west ends of several of the ties were unsupported at a place a few feet above the heel of the incline. The injury was occasioned by the car tipping over sidewise when it was attached to the cable and after it had been drawn several feet up the slope by that agency, and the front wheels, when they went off the track, were seven or eight feet further up the incline than the point at which appellee had removed the rock. from the track and car on the earlier occasion. The cable was attached to the car before it started up the incline on the second trip, and it was drawn to the point which it reached at that time by the cable. We do not think it can be said that the dangerous condition of the place, which resulted in appellee’s injury, was a condition of which he had, or ought to have had, knowledge. On the other hand, the manager of appellant saw the overturning of the car on the first occasion, and saw that it refused to go up the incline when attached to the cable, on account of its being derailed on the second occasion. Without making any investigation in regard to the condition of the track at the place where the car was" derailed, he sent appellee there to get it back on the track. It was the duty of appellant, in the exercise of ordinary care, when the car was derailed, especially in view of the fact that it had been overturned at or near the same place shortly before that, to ascertain the condition of the track and the surface of the incline at that place before sending appellee there for the purpose of replacing the car, and if, on such investigation, the place was found unsafe, to advise appellee of its condition before he went there to do the work of replacing the car, so that he could assume the 'risk or not, as he saw fit. Here the master, by its manager, superintended the laying of the track. Had the track on the incline been properly inspected after the work was done,—and ordinary care on the part of the master required such an inspection,—the defects would have been discovered; and as the master, through the manager, exercised supervision over the work of laying the track on the incline, its opportunity of learning of the defects were better than those of the servant. When appellant’s manager directed appellee to replace the car, the latter had the right to believe that appellant had performed its duty and provided him a reasonably safe, place in which to do the work it then directed him to do. Had appellee been directed to ascertain what the defect was, the situation would be different. The doctrine of assumed risk does not apply. Presuming, as we-must, that the evidence for plaintiff is true, it warrants the jury in finding, first, that the place was not reasonably safe; second, that the master, in the exercise of ordinary care, would have had knowledge of its defects; third, that the servant did not know of the defects and did not have equal opportunities with the master of knowing of them. The case is therefore within the rule fixing the master’s liability which was laid down by this court in Lake Erie and Western Railroad Co. v. Wilson, 189 Ill. 89" date_filed="1901-02-20" court="Ill." case_name="Lake Erie & Western Railroad v. Wilson">189 Ill. 89.
It is said, however, that the rule requiring a master to provide and maintain a safe place for the carrying on of his work does not apply where the place is being constantly changed by the work there carried on. If appellee had received an injury at the place where he was quarrying stone and where the work of blasting or otherwise loosening the stone and taking it away constantly changed his surroundings, and the injury had resulted from the fact that the place was unsafe, this argument would be proper for our consideration; but he was injured on the incline, alongside the track of appellant. This track was not being constantly changed, but when once put down was left in the same place for two or three days, and was not being changed at the time that the injury occurred. The work of changing it had just been completed, and in the ordinary course it would not be again changed for several days.
The court properly refused to direct a verdict for the defendant.
Appellant asked, and the court refused, the following instruction:
“The court instructs the jury that one of the defenses offered by the defendant in this case is, that the injuries charged by the plaintiff in his declaration to have been received by him were fully released and discharged by him. If you find, from the evidence, that the release in question was his act and deed, then it is unnecessary for you to consider or determine to what extent he was injured, or what amounts of money, if any, he expended, •or what time, if any, he-lost, or what pain or suffering, if any, he endured. Nor is it proper for you to determine whether the amount paid him as a copsideration for the execution of said release was a sufficient amount. If you believe, from the evidence, that the release in question was executed by the plaintiff while he was in the possession of his ordinary mental faculties and with a full understanding of what he was doing, and without any fraud on the part of the defendant or those acting for it in such transaction, then all the above causes of action would be discharged by said release.’’
Appellant had the right to have the jury instructed that if it appeared, from a preponderance of the evidence, that appellee had, for a valuable consideration, compromised and satisfied his claim against appellant growing out of the injury complained of, then he could not recover. We think, however, that the instruction was liable to mislead the jury. By it they would be told that if “the release in question was the act and deed” of appellee it was unnecessary to determine the extent of his injury or the amount of his damages. A jury, unlearned in law, would be very apt to think that if the appellee signed the instrument in question then it would be his act and deed, and without an instruction explaining to the jury the language last above quoted we do not think it was error to refuse it. Further, the last sentence of the instruction assumes that those who obtained the release were acting for the defendant. This was assuming a fact the existence of which was denied. The testimony of appellee indicated that these persons were acting for certain charitably disposed individuals whose sympathies had been aroused by his misfortunes. The release itself, which they took at the time, shows that they were acting for the London Guarantee and Accident Company, which is not otherwise shown to have had any connection with the case. To make this assumption by the instruction was clearly wrong. (Germania Fire Ins. Co. v. Klewer, 129 Ill. 599" date_filed="1889-10-31" court="Ill." case_name="Germania Fire Insurance v. Klewer">129 Ill. 599.) The instruction was properly refused.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.