158 Ill. 402 | Ill. | 1895
delivered the opinion of the court:
It is not the province of this court to consider any questions of fact involved in this record. The case was tried in the circuit court before a jury, with a verdict for plaintiff, and the Appellate Court, by its judgment of affirmance, has settled all questions of fact, carrying with it also a finding of the negligence of appellants. By these facts we are bound, and a discussion of them is unnecessary. It is only necessary, therefore, to consider whether the jury were properly instructed by the trial court, or whether there was error in the giving or refusing of the special findings asked to be submitted to the jury.
All the instructions may be considered together. These instructions inform the jury that the age and discretion of the party injured are proper subjects for inquiry; that the law does not require one of tender years to exercise the same degree of care and caution as a person of mature years, and that a child is only required to exercise that degree of care which one of that age would naturally and reasonably use in the same situation and under like circumstances. In Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329, (a case similar, in many respects, to this,) this court said (p. 333): “If plaintiff had been an adult, with unimpaired natural faculties, he would, unquestionably, on the case made, be held to have assumed the risk of his employment, with the machinery uncovered as it was, when he entered the service of appellant. It is not claimed that the danger to which he was exposed by reason of the gear being left uncovered was not patent to every one of ordinary intelligence and experience. It is alleged in the declaration that for a year prior to the injury plaintiff had been in the same employment, the machinery remaining in the same condition. * * * That, as between employer and employee, the latter assumes all the usual known dangers incident to the employment, and that he also takes upon himself the hazard of the use of defective tools and machinery if, after his employment, he knows of the defects but voluntarily continues in the employment without objection, are familiar rules of law often recognized by the decisions of this and other courts. That this general rule does not apply to employees who, from youth or want of the natural faculties, are unable to appreciate the danger incident to the employment, or which may result from the continued use of defective machinery or tools, is equally well settled. Such employees are entitled, at the hands of their employers, to instructions as to the danger and how to avoid it,—in other words, they are entitled to be put in possession of that knowledge which to adults comes from experience and mature judgment. 2 Thompson on Negligence, 978; Peering on Negligence, sec. 197; Wood on Master and Servant, sec. 350.” See, also, Jones v. Florence Mining Co. 86 Wis. 268; Springfield Consolidated Railway Co. v. Welsch, 155 Ill. 511.
It is urged that these instructions assume to prove matters which are in controversy; that they do not direct the minds of the jurors to the evidence in the case, and that they fail to introduce any comparison between the negligence of plaintiff and that of defendants. We are not able to see that'these instructions are subject to the objections urged against them. While it is true, perhaps, that these instructions might have been more skillfully. drawn, they correctly state the law in this State, and the jury could not have been deceived or misled by them. The jury, in answering the special findings propounded to them under the direction of the court, found as a question of fact that the plaintiff was not of sufficient age to know the danger of his employment. The instructions on behalf of the defendants fully instructed the jury as to all the phases, and we are unable to percieve from the instructions as a whole, and from the answers returned by the jury to the special findings, that the jury were in any manner misled, or that the interests of the defendants were in any way prejudiced by the instructions given on behalf of the plaintiff. They found negligence on the part of the defendants. We have heretofore held that there are certain duties of the master that are non-assignable. Among said duties are, that he shall exercise reasonable care to see that tools, appliances and machinery are reasonably safe, and must use reasonable care that the place where the servant works is reasonably safe; to inform the servant of special danger of his situation, and of the machinery and appliances with and about which he is employed, where he is not informed. Mobile and Ohio Railway Co. v. Godfrey, 155 Ill. 78.
It is also urged as error that the court, on its own motion, submitted two special findings to the jury. We are unable to see the impropriety, where special findings are requested to be submitted to the jury by either party, of the court adding or submitting such other special findings to the jury as in its judicial discretion .may seem proper. The main object to be attained in all such cases is that substantial justice may be done between the litigating parties, and if the submission of such special findings, proper in form and pertinent to the case, by the court on Ms own motion, may tend to this, there is no error. The two special findings submitted by the court in this case were entirely proper and pertinent, and there was no error in the court submitting them to the jury on its own motion. The court has the same right, of its own motion, to submit to a jury special propositions on which to find, as to give instructions.
The two interrogatories submitted by defendants and refused by the court were as follows:
“Did defendants omit to do anything that ordinarily prudent and careful persons would 'have done under the circumstances ?
“Did the defendants,do anything that ordinarily prudent and careful persons would not have done under the circumstances ?”
The jury, by their answer to special finding 5, have answered that appellants should have placed a guard or cover about the cog wheels, which is equivalent to answering “yes” to the first question. Whether the jury had answered “yes” or “no” to the second question would not have tended to anything decisive in the case. If the answer had been “no,” it still would have remained undetermined as to what had been done by defendants that ordinarily prudent and careful persons would not have done. We find no error in the trial court refusing to submit these two findings.
Perceiving no error in the instructions or in the special findings submitted and refused by the court, we do not find that there is any sufficient reason in this record why this cause should again be submitted to another jury, and the judgment of the Appellate Court is therefore affirmed.
Judgment affirmed,.
