193 Ill. App. 261 | Ill. App. Ct. | 1915
delivered the opinion of the court.
This case was considered by this court in Muenter v. Moline Plow Co., 182 Ill. App. 578, and we refer to that opinion for a statement of the case. We reversed a former judgment and the cause was reinstated in the court below and tried b}1- a jury and there was a verdict for plaintiff, a motion hy defendant for a new trial denied, plaintiff had a judgment for the verdict and interest thereon and defendant appeals.
From the recitals in the record kept by the clerk it appears that the appellant in the court below moved to strike from the files the remanding order from this court and to strike the cause from the docket, and objected to the reinstatement of the case and moves that all proceedings be stayed until appellee paid the costs of the Circuit Court and of this court, and appellant filed certain affidavits in support of said motion; and the clerk also undertook to preserve another motion and the points filed in support thereof and certain affidavits. These were embodied in the record. Appellee moved to strike these matters from the record, specifying the pages thereof. Arguments for and against this motion were filed and we took it with the case. Counsel for each party assumed that a bill of exceptions as to those matters was presented to the trial judge and that some memorandum and his signature is attached thereto, appellee insisting that the meaning of the memorandum is that the judge refused to sign the bill of exceptions, and appellant insisting that this is a bill of exceptions signed by the judge.
We have diligently searched this record and find no such memorandum or signature by the judge. So far as we can ascertain, counsel are discussing something that is not in this record. Certainly at the pages which appellee has moved to strike from the record no such memorandum .or signature appears. The papers copied into the record by the clerk, and which we are asked to strike from the record, do not have the form of a bill of exceptions. The clerk has no power to certify in a common-law record what written reasons were assigned for a motion nor what proof was heard upon the motion. This has been many times decided by courts of review in this State, recent cases being People v. Ellsworth, 261 Ill. 275, and People ex rel. Edgar v. Board of Review Cook Co., 263 Ill. 326. The papers copied into the record by the clerk upon pages 16 to 23 inclusive and on pages 35 to 39 inclusive are therefore stricken from the record.
The trial began on January 12/1914, and the hearing of proofs began on January 14th, On January 20th appellant entered a motion to require appellee to give security for costs, and to stay the suit until such security was furnished and until the costs of the Appellate Court were paid, and it filed certain points in writing and offered in evidence certain affidavits and the motion filed at the former term to strike the remanding order of this court from the files, etc., and the affidavits and papers then filed in support thereof; and thereby said motion and affidavit of said former term were incorporated in this bill of exceptions. They were proper for whatever bearing they had on said motion of January 20, 1914, but their presence at that point in the bill of exceptions does not furnish any ground for reviewing the action of the court at the previous term. The ground of the motion to stop the progress of the cause until appellee gave security for costs and paid the costs of this court at the former term was that a few days before the present trial began appellee conveyed his real estate to his son, that appellant’s representative did not learn thereof until three days before the motion was made, and that the day before the motion was made said representative learned from said son that he paid no money consideration for said deed, but said son refused to state what the consideration was, and referred him to appellee therefor, and appellee refused to make any statement of the matter; and said representative alleged that he was informed that appellee had no other property from which the costs could be collected, and that he believed that the deed was made for the purpose of preventing any collection of the costs of this case from appellee. The affiant also stated that the property so conveyed was the homestead of appellee, and was subject to a mortgage for $1,000, and that he believed it was worth $3,000. Appellant also offered, upon said motion, the execution against appellee for costs, amounting to $319.66, which issued from this court since the former hearing here, and showed that it reached the sheriff of Bock Island county on October 30, 1913. If appellant believed that there was any value in said property above the homestead and the mortgage, why did it not levy said execution upon said real estate and take proceedings eto have the homestead set off and the property sold under said execution? This deed was filed for record three days before the trial of this case began. The affiant says he is an agent of appellant, and did not know of the filing of this deed until January 17th, a week after the trial began. But there is nothing to show that the attorneys for appellant or the officers of appellant did not know of this deed at the time it was recorded, and if they did, then they should have made this application before this trial began. Appellant does not show that it could not have made this application before the trial began. Again, said affiant only surmises or guesses that the purpose was to prevent appellant from collecting its costs. If the court had deemed an application of this kind, in the middle of a long trial, sufficient, it would have been bound to enter into an inquiry as to what the purpose was in making the deed, and it might very well be that it was made to enable appellee to provide a way for raising funds to procure the services of attorneys for this third trial of the case, or to procure the attendance of his witness Pearson from South Dakota, and for other expenses of the trial. As appellant could have subjected said property to sale under its execution and did not, and as it has no judgment for the costs of the Circuit Court, but on the contrary the judgment for said costs' is against it, and as the granting of such a motion ten days after the trial began is not supported by any authority to which our attention is called, and would be a rule very demoralizing to the trial of causes, we approve the action of the trial court in exercising its discretion in refusing to suspend the trial at that "stage of the case.
Appellant asked certain questions of various members of the panel during the selection of- the jury, to which the court sustained objections, and it is argued that the questions were proper and that the court erred in not permitting them to be answered. None of those jurymen were accepted, or sat in the trial of the case. Appellant exhausted its peremptory challenges, but the abstract does not show that it thereafter desired to challenge any other juror and was refused or that an unfair juror was put upon it, and the abstract therefore does not show that if the questions were proper, appellant was harmed by the refusal to permit them to be answered. The rule laid down in Spies v. People, 122 Ill. 1, on pp. 257, 258, and in Graff v. People, 208 Ill. 312, and followed in various Appellate Court cases, is that unless it appears that an objectionable juror was put upon the defeated party after he had exhausted his peremptory challenges, rulings of the court in regard to jurors who were not accepted will not be considered. In Grand Lodge I. O. M. A. v. Wieting, 168 Ill. 408, this rule was applied to alleged errors of the trial court in refusing to permit appellant to put certain questions to certain veniremen, and as an unobjectionable jury was obtained, the Supreme Court declined to consider whether the trial court did or did not rule correctly. Appellant has embodied in the record the entire examination of jurors, covering about 135 pages, but it is not our duty to examine more of that record than has been abstracted to see if we cannot discover some error. Inman v. Miller, 234 Ill. 356; Phillips v. Benfield, 249 Ill. 139; Stout v. Taylor, 168 Ill. App. 410; Biggs v. Peoria & P. U. Ry. Co., 182 Ill. App. 613. The abstract does not show reversible error in that respect..
Many errors are assigned, but, as they are summarized in appellant’s brief, those not already considered are confined to rulings on the evidence and the instructions. The record is full of objections to questions put to the witnesses. Upon a careful examination we find that in very many cases where the court sustained an objection to a question put by appellant in the cross-examination where the ruling seems wrong or doubtful, it appears that before the cross-examination was finished the evidence sought was obtained and thereby a possible error was cured. There are instances where an objection was sustained to a question put by appellant to appellee whether he did not make a certain answer on a former trial, but before the cross-examination was finished the witness stated that he did make that answer at the former trial. Appellee was asked on cross-examination if he had looked over his former testimony and an objection was sustained to that question, but before the cross-examination was finished appellee answered that he had not read his former testimony but that he had talked it over with his attorney. The truth seems to be that appellant’s counsel was persistent, and when he had put what he conceived to be a proper cross-examination and an objection thereto was sustained, he did not rest upon the' supposed error of that ruling but went after the matter again and again and generally obtained a complete answer to his inquiry before the cross-examination was finished. Appellant read to the witness Pearson in the cross-examination, in one interrogatory, a large number of questions and answers, and then asked him if such questions were put to him and if he made such answers at the former trial. One such interrogatory also embraced the question whether, at the first trial, he had been asked certain questions and made certain answers. Objections were sustained to these questions. Appellant’s counsel stated to the trial judge that if the objection was that he was combining several questions and answers in one question, he would put them separately. The court indicated that he thought that form was objectionable, but that he was ruling on other grounds. The questions should have been separated, because very many of the supposed answers were entirely in harmony with what the witness had already testified to both in direct and cross-examination, and such answers contained no matter of impeachment or contradiction. Unquestionably if any witness has given an answer in a material matter at a former trial not in harmony with his testimony on "the present trial, the cross-examiner has a right to ask the witness if he did so state on the former trial. In fact there was substantially .nothing of importance in the matter supposed to have been testified to by him in the former trial but what had already been stated by him on his cross-examination at this trial. Pearson was a machinist who assisted a representative of appellant in repairing the overhead mechanical appliances of this drop hammer in August preceding this injury. The object of these omnibus cross-questions was to show that at the former trial he had testified that "when that repair was completed in August the parts were put back in their proper places, and were in order, and were tested by him and found to be in order. He had previously testified on the cross-examination at great length that these appliances were in proper order when the machine was reassembled after the repairs in August, and that they tested it then, and that it worked perfectly. Therefore these supposed omnibus questions contained substantially nothing to contradict the evidence of the witness. But more than all that, the thing sought to be established by Pearson’s direct examination was that the stopper bar was bent when the repairs were finished, and that the dog engaged the stopper bar only about three-quarters of an inch. Bruce, one of the representatives of appellant, and under whose direction said repairs were made in August, testified for appellant that the stopper bar was bent and crooked, and was left by him in that condition purposely, and that* he regarded that as the proper condition for it to be in; and either he or another witness for appellant testified that the dog only engaged the stopper bar about three-quarters of an inch, and that it ought not to engage it any more than that. Therefore the fact that the stopper bar was left bent and crooked and engaging the dog only three-quarters of an inch was proved by appellant, and therefore if there was anything in Pearson’s former examination tending to the same effect which would have contradicted anything he testified to on this trial, still appellant was not harmed by not obtaining it, because it claimed the truth was as Bruce testified, and the question then became, not whether the stopper bar was in fact crooked and bent and engaging the dog only three-quarters of an inch as appellee’s testimony tended to show, but whether that was a proper and safe condition as appellant claimed or was dangerous and calculated to permit the machine to repeat as appellee claimed. Appellee on cross-examination was asked similar questions, though they were not combined to the same extent in one interrogatory. 'The observations above made concerning Pearson’s cross-examination apply in part to that of appellee, and in addition, before the cross-examination was completed, appellee had answered most of the questions. When the whole record is considered, we do not find any reversible error in those rulings. Appellee was asked on direct examination where he was born, and answered “In Sweden.” It is earnestly insisted both in the original and in the reply brief that this was reversible error. Appellant1 proved by some of its foremen that they gave orders and directions to appellee in the Swedish language. The fact was that he had been in this country but a little over three years when he was injured and that his superiors thought it necessary to address him in that language to make him understand, and it is evident that at this trial it was difficult to make him understand some of the questions in English. The names of the jurors are not contained in the abstract nor does the abstract show that any man of Swedish nationality sat upon the, trial. We find no error in this respect.
In cross-examination of appellee, who was the first witness at the trial, appellant sought to put in evidence various models, diagrams and plans of the machine upon which appellee was working when he was injured, including parts thereof which were not in his sight when he was at work and with which he was obviously unfamiliar, and then to cross-examine appellee upon these models and diagrams. Appellant also proposed to have appellee withdrawn from the stand, and to call a witness for appellant and prove by him the correctness of these models, diagrams and plans, before proceeding with the cross-examination of appellee. Our attention is not called to any case where it has been announced as a proper rule of practice for a defendant to begin introducing his testimony before the completion of the examination of the first witness for the plaintiff, and undoubtedly such a rule of practice would be extremely confusing. Appellant had no such right. Appellee was not an expert and it was not proper for appellant to introduce its evidence at the very commencement of appellee’s case, and we approve the ruling. In due time appellant in its proper order was permitted to introduce these models and diagrams and had all it was entitled to in that respect. If appellee had been testifying as an expert as to the construction of this machine and as to the respect in which it was faulty, probably appellant might properly have cross-examined him with the aid of a model not yet in evidence".
In making its case appellant offered in evidence the testimony of appellee and other witnesses at the former trial from the bill of exceptions. It did not produce the stenographer who took the evidence and prepared the bill of exceptions to swear to its truthfulness, but showed that it was inconvenient for it to produce said stenographer. The bill of exceptions was not signed by the judge who tried the case, for he was then dead, and it was signed by another judge of that circuit. The bill of exceptions was not competent for this purpose, as held in Kankakee & S. R. Co. v. Horan, 131 Ill. 288, and Illinois Cent. R. Co. v. Ashline, 171 Ill. 313, and cases there cited. One obvious reason is because the witness had no part in making up the bill of exceptions and no opportunity to decide whether it was correct or incorrect before it was signed. The parties to the suit may have considered his evidence unimportant and may have paid no attention to its correctness, or they may have been willing to have some parts omitted or abbreviated. The rule, of course, is entirely different if any witness has testified to the correctness of- the report of the evidence of the witness as therein set out.
Complaint is made of the admission of testimony of what certain men said to appellee in the shop. These men were either assistant superintendent, machinist, or one of the foremen of the shop, and all of them appellee’s superiors and all of them representatives of appellant, and what they said to appellee was said by appellant and was therefore competent evidence. It is urged that it was error to permit appellee to prove the condition of the machine after he was hurt. When appellee was hurt he was immediately removed to a hospital. He had a few irons in his furnace, heated and ready to be put through the machine. Bruce, assistant superintendent, came immediately and ran the machine about fifteen minutes to work off the irons in the furnace. He testified the machine did not repeat during that time. The proof is positive and uncontradicted that the machine then remained idle for three days. Under these circumstances we think it not erroneous to prove the condition of the machine at the close of said three days.
The machine in question was known as a drop-hammer machine. There was an anvil in front of the operator and a hammer weighing perhaps eight hundred pounds which stood raised about two feet above the anvil. In the face of the hammer and in the face of the anvil, dies were inserted, according to the work to be done. These dies weighed about one hundred and fifty pounds. The operator inserted the dies and cleaned them when necessary. Some distance above the head of the operator was a frame work. Attached to the hammer was a rope which went to a mechanism some fifteen feet above the floor. Among the mechanisms at that distance from the floor was a stopper arm, which was connected with the shafts which operated the machinery in various parts of the plant. There were also two devices called stopper bars set horizontally. There was also a dog which engaged the front stopper bar, and while this mechanism was in that position the hammer was held suspended. Another mechanism connected with a pedal near the floor enabled the operator to remove ‘the dog and release the stopper bar and the hammer then fell. When the foot of the operator was not upon the pedal the hammer remained suspended above the anvil, if the mechanism was in proper condition. The operator of this particular machine faced west. There was a north and south aisle in the shop, directly back of his machine. To the right of the operator and á little further east was the furnace wherein his irons were heated by the helper. Immediately north of the furnace was an east and west aisle. The operator handled the heated irons with a pair of tongs and used both hands in doing so, the right being nearest to the irons. It was his duty to place the heated iron on the anvil, cause the hammer to drop twice upon it, and permit the hammer to be immediately raised, and he then with his tongs put the iron into a cart provided for that purpose. There were two places where the cart could stand. If the cart was north of the anvil and immediately west of his furnace, he drew the iron towards him and then to the right into the cart. If the cart stood in the aisle immediately west of the anvil, he pushed the iron from him and dropped it into the cart. Appellee was hurt on October 11, 1906. This mechanism, fifteen feet above the floor, had been out of repair in the previous August and portions thereof had been taken down by machinists and repaired in some other part of the shop and returned some days later, and appellee again set to work upon the machine. Appellee contends that these appliances were not then properly repaired but were reassembled when they were in an improper condition and unsafe, and that this was negligence, and also that the machine had repeated a few days before he was hurt. Appellant contends that it was not negligent in this respect; that if the machine afterwards became out of repair, it was the duty of appellee to know that fact and to report it, and that he did not do so; that appellee was negligent in not ascertaining if the appliances were out of repair; and negligent in pushing the iron over the anvil into the cart, when it was an absolutely safe way for him to have his cart north of the anvil and pull the iron out from under the hammer and deposit it in the cart to his right; that appellee had been expressly ordered not to push the irons through and have his cart behind the anvil, and that he disobeyed these orders and was thereby hurt; and that he assumed the risk of working with the machine as it was and also the risk arising from his disobedience of orders. There was proof that when the appliances high above the floor were reassembled after the repairs in August, the stopper bar was bent when it should have been straight; that the dog was worn and the ends of the stopper bar were rounded instead of square, thus making it'easier for the dog to slip off; and also that the dog engaged the stopper bar only three-quarters of an inch when it should have engaged it from an inch and one-quarter to an inch and one-half, and that these conditions would tend to permit the hammer to fall when the pedal was not pressed. There was proof that when an operator started to again work with the machine three days after appellee was hurt, the hammer repeated again and again, and it was found that the stopper bar was still more bent and the ends thereof still more worn, so that the dog would not hold up the hammer. All these matters were contradicted by evidence introduced by appellant. There was evidence that it was the general duty of each operator upon the various drop hammers in that shop to be responsible for his own machine, and to ascertain and report whenever it was out of repair. We are satisfied from all the evidence that though that was true as to the hammer and anvil and conditions where the operator stood, it was not true as to the mechanism fifteen feet above the floor and here involved. Underneath this mechanism and the platform there were timbers, and beneath these was a metal pan to catch oil which might drip from those bearings and the dust. It was the duty of appellee to go up to this place twice a day and pour some oil through three or four oil holes in the bearings. He had no other duty to perform above that drip pan. From where he stood when operating the machine he could not see this mechanism at all if he tried to look. He was not a machinist in the ordinary sense. He was really an unskilled workman. It does not appear that he had any knowledge of the exact condition of the appliances involving the stopper arm, the stopper bars, the dog and a certain spiral spring and certain rubber bands, or their connection with the shaft. His only duty above the drip pan was to go there twice a day and put oil in the oil holes. We are of opinion that he had no duty of inspection of those appliances, had no means of knowing whether they were or were not in order, except by the fact of the hammer repeating, while appellant owed him the duty of inspection of these appliances and owed him the duty to exercise reasonable care to furnish him a reasonably safe place in which to work, and therefore that there is no evidence in the case from which the jury could be permitted to find that he assumed the risk that these appliances were in good repair. The assistant superintendent or head machinist and various foremen in that shop testified that they forbid appellee to place his cart back of his anvil and to push the irons through the anvil into the cart and to put his hand under the hammer, but directed him to put the cart at the right of the anvil and to pull out the irons towards himself and deposit them in the cart to his right. Appellee when hurt had the cart back of the anvil and was pushing the irons through the anvil with his tongs. Neither he nor any other witness could tell exactly how his hand came to be under the hammer when it repeated. Appellee denied these orders and directions, except as to two instances. He testified that on one occasion one of the forémen told him to move his cart from the rear of his anvil to the side because the foreman wanted to use that aisle at that time for a certain purpose connected with certain beams, and that he accordingly did so move his cart until the foreman was through using the aisle, and then he put it back behind the anvil again. Appellee testified that it was sometimes necessary for him to clean the die on the face of the anvil and that for this purpose he wns supplied with certain appliances, including a brush and a hose, and that on a certain occasion the hose was out of order and he was obliged to use the brush alone to clean the die, and that brought his hand under the hammer, and that a foreman, who came along, asked him why he did it that way and appellee told him the hose was out of order, and the foreman then told him, that when he had occasion to put his hand upon the die in that way he should first put a certain wooden block upon the anvil, which would protect his hand if the hammer fell. While some of the witnesses for appellant testified that it was improper to push the irons through the anvil, other witnesses for appellant plainly showed that it was not unsafe to do so, especially with the shorter irons, and that it was common practice in that shop. Appellee testified that when he was taken from the position of helper and made an operator of a drop-hammer machine, ten months or a year before he was injured, he expressed to the foreman doubt of his ability to. do the work and that his foreman told him to do as the other operators did. The drop-hammer operator under whom appellee worked as a helper before he was put upon this drop hammer testified for appellant that while appellee worked as his helper, the witness was in the habit of pushing’ “Dutch Uncle” shanks through the machine and dropping them into a cart back of it instead of pulling them towards himself, whenever it was more convenient to do it that way, and that that was a safe and proper method. It is plain from an examination of all the testimony offered by appellant that while some of its foremen declared that method of removing the iron from the die to be improper, yet that was a very common practice in that shop with its seven or eight or nine drop hammers, when working upon “Dutch Uncle” shanks and other short irons, prior to the injury to appellee, and that the foreman saw the business so conducted, and never claimed to have tried to stop the practice or to give any other or different orders, except the contrary orders which they claimed they occasionally gave to appellee. Witnesses for appellant testified that the iron could be pushed through the- anvil without putting the hand of the operator upon the place where the hammer would fall. When appellee was hurt he was working upon “Dutch Uncle” shanks, short small irons which some witnesses for appellant said it was proper to shove through the machine. Appellee testified that he did this work in this way because he could work more rapidly to shove the iron from him and to let it fall into the cart than to pull it towards him and then push it to the right, and that he was paid so much for each one hundred irons that he put through his machine. A witness for appellant gave testimony indicating his suspicion that appellee’s foot may have touchéd the pedal and thus released the hammer at this time, but appellee positively testified that he did not touch the pedal, and the fact that the" machine constantly* repeated when operation was resumed upon it after three days tends to indicate that it did repeat without the operation of the pedal when appellee was hurt. There therefore was evidence tending to show that the overhead appliances were left in improper condition when reassembled in August, and that they were in an improper condition when appellee was hurt, and that appellee was injured because thereof, and that appellant had not properly performed its duty of inspection, and that appellee was in the exercise of due care, and these were questions of fact for a jury. There have been three trials. The result of the first we do not know. The second and third verdicts were for the plaintiff.- We conclude that a verdict either way upon these questions of fact should not now be disturbed by this court. Plaintiff lost three-fourths of the palm of his right hand and all the fingers thereof except the index finger. The judgment for $5,763.61 is not excessive.
Appellant criticises several of the instructions given at the request of appellee, but we conclude such criticisms are not well founded. Appellant requested forty-six instructions. The questions of law involved in the case were few and simple, and we regard a request for so many instructions as an abuse and as casting upon the trial judge an unnecessary burden. •This multiplicity of instructions was created by stating the legal propositions supposed to be applicable to the case in many different ways and stating two or more legal propositions in many different combinations, calculated to puzzle the trial judge. The court gave twenty-eight instructions requested by appellant and refused eighteen. No. 1, refused, assumes that appellant had given appellee positive and express instructions as to the manner of doing his work, whereas the evidence made that a disputed question. The other provisions of said instruction are embodied in instructions given for appellant. No. 2, refused, is practically embodied in the given instructions. No. 3, refused, is to the effect that if appellee was doing his work in an unnecessary way and was injured in direct consequence of so doing it, and if defendant did not know that he was so doing the work and could not have so known by the exercise of reasonable care, then appellee could not recover. There was no proof upon which to base this instruction. Not only had the assistant superintendent or head machinist and several foremen seen appellee doing this work in the way he was doing it when he was hurt, and so testified, but one of them testified that he knew that appellee sometimes did the work in that way and saw him so doing it on the Saturday before the Wednesday on which he was hurt. Knowledge by the foreman was knowledge by appellant, and as such knowledge was clearly established and not denied, this instruction was properly refused. No. 4, refused, put upon appellee an assumption of risk much greater than the evidence would justify. Instructions Nos. 18, 25 and 26, given at appellant’s request, stated the law on that subject sufficiently, as shown by what we have heretofore said of the evidence bearing upon the assumption of risk. No. 5, refused, ignored appellant’s duty of inspection after the overhead appliances were repaired in August. Instruction No. 22, given, was sufficient on that subject. Two of the propositions embraced in No. 6, refused, were embodied in given instructions No. 4 and 14. The remaining proposition was that the jury-should find for defendant if they were unable to decide from the evidence the nature of the defect in the machine. The declaration is improperly abstracted, but an examination of the record shows that one count thereof contained the general charge that defendant negligently permitted the machine to become and remain out of repair and in a dangerous condition and thereby plaintiff was injured. Under that charge it was not necessary for the jury to determine the exact nature of the defect in order to find for plaintiff, and that part of the instruction was calculated to mislead the jury. No. 7, refused, was covered by given instructions Nos. 4, 5, 14 and others. No. 8, refused, was covered by given instructions Nos. 6, 16, 17, 18, 19, 20, 21, 23, 24 and others. We are of opinion that the evidence does not show such a duty in appellee to inspect the overhead appliances controlling the action of the hammer as appellant has assumed in refused instructions Nos. 9, 10 and 11, and that given instructions Nos. 18, 25 and 26 and others stated all that appellant was entitled to on that subject. There is no evidence that appellee had any such knowledge of the defects of said overhead appliances as to justify refused instruction No. 12. Nos. 13, 14 and 17, refused, were to the general effect that if appellee disobeyed an order of his superior and was injured in consequence thereof, he could not recover. There was proof of several such orders at different times by different foremen and these orders were not always identical. The instructions do not designate which order was meant. 'They covered those given long before the injury as well as the more recent. There were a number of drop-hammer machines operating in that shop, either seven, eight or nine. Witnesses introduced by appellant gave evidence tefiding to show a custom or habit or practice in that shop that operators of these machines pushed the irons through the machine just as appellee was doing when he was hurt, and especially that they did so when working on short pieces of irons, as these “Dutch Uncle” shanks were. With an assistant superintendent or head machinist and several foremen in this shop all the time, the evidence warranted the jury in finding that these violations of this order were habitual when working on short irons, and were well known to appellant through its foremen and superior officers and were permitted to continue. Perhaps this practice was not stopped by appellant because under the proof each man could accomplish more work by pushing the short irons through the machine. Only half as. many movements were required by the operator to push the iron through as to draw it back and cast it to the right. We held in Coburn v. Moline, E. M. & W. Ry. Co., 149 Ill. App. 132; Kenny v. Marquette Cement Mfg. Co., 149 Ill. App. 173; and Bertelsen v. Rock Island Plow Co., 164 Ill. App. 459, that abrogation of a rule may be shown by proof of its habitual violation with the knowledge of the master who established it, and that such knowledge will be presumed if the violation continues so long that the master might reasonably know it. The Kenny case, supra, was afterwards affirmed in 243 111. 396, where other eases are cited. This principle would apply to the supposed orders given appellee here, especially in view of the fact that the proof shows that he was directed to do this work as the operators of other drop-hammer machines did theirs. This instruction ignored points which must be considered in determining whether a failure to obey the order referred to in said instructions necessarily defeated appellee in this suit. No. 15, refused, ignored the effect of the proof that if the overhead appliances were in proper condition and the appellee’s foot was not upon the pedal, it was safe to put one’s hand upon the plate. It also ignored the rule laid down in United States Wind Engine & Pump Co. v. Butcher, 223 Ill. 638, and Clark v. Chicago, R. I. & P. Ry. Co., 231 Ill. 548. No. 16 was properly refused because there was no proof that the failure of appellant to repair was due to the negligence of any one who could be found by the jury to be a fellow-servant of appellee. No. 18, refused, was covered by several given instructions, requiring due care of plaintiff as a prerequisite to his recovery, and especially by given instructions Nos. 21, 24 and 26. Our reference here to “given instructions” are to those given at the request of appellant.
We find no reversible error in the other matters of which complaint is made. The judgment is therefore affirmed.
Affirmed.
