| Ill. App. Ct. | Jun 23, 1902
delivered the opinion of the court.
Counsel for appellants contend, but not very strenuously, that the use of the links and pins, as a means of coupling broken patent couplers, was one of the ordinary risks of appellee’s employment, which he assumed, and that there is no ground for the contention that he did not appreciate the danger of that kind of coupling.- We think these contentions are fully answered by the evidence. When appellee sought employment by appellants, if he assumed anything, it was ignorance of railroad work; he, however, then assumed nothing; but frankly told the trainmaster, to whom he was referred by Superintendent Walton, that he had never worked around a railroad, and the trainmaster, on learning this, turned him over to another railroad man for instruction, telling the latter to show him everything he could. When, finally, he was regularly put to work, which he testified was October 5th, what did he impliedly assume to. know % Certainly not more than he had been taught by his appointed instructor. Appellants, by their agent, were his instructors; their agent must have known just what he was taught to do, and, legally, they must be presumed to have known what their agent knew. It appears that he learned how to couple the cars with patent automatic drawbar couplers in good order; but he testified positively, and without contradiction, that he had had no experience in coupling cars with pins and links prior to the accident, and had not been taught how so to do. It does not appear from the evidence that he even had any experience in coupling any cars furnished with the old style couplers, with pins and links. Under these circumstances it can not be held that he assumed the risk of coupling, by the use of links and pins, broken patent couplers. The evidence, too, is, that such coupling was not a usual or ordinary occurrence or risk, and this, doubtless, was the reason why his instructor omitted to show him how to make such a coupling.
In Alton Paving Co. v. Hudson, 176 Ill. 273-4, the court say:
“ One of the duties which a master owes to his servant is to make such provision for his safety as will reasonably protect him against the dangers incident to his employment. We said in Consolidated Coal Co. v. Haenni, 146 Ill. 614" date_filed="1893-10-27" court="Ill." case_name="Consolidated Coal Co. v. Haenni">146 Ill. 614, (on page 626): ‘ As to the master’s duty to give notice, the law is, that if there are latent defects or hazards incident to an occupation, of which the master knows or ought to know, and which the servant, from ignorance or inexperience, is not capable of understanding and appreciating, it is the master’s duty to warn or inform the servant of them ’—citing authorities. While it is true that an employe assumes such risks of his employment as are usually incident thereto, and of the extraordinary hazards of which he has notice, or which, in the usual exercise of his faculties, he ought to have noticed, he does not take the risk of danger known to the master which can be avoided by him in the exercise of reasonable care. ‘ He assumes the risk, .more or less hazardous, of the service in which he is engaged, but he has a right to presume that all proper attention shall be given to his safety, and that he shall not be carelessly and needlessly exposed to risks not necessarily resulting from his occupation, and preventable by ordinary care and precaution on the part of his employer.’ (Buzzell v. Laconia Mfg. Co., 48 Me. 113" date_filed="1861-07-01" court="Me." case_name="Buzzell v. Laconia Manufacturing Co.">48 Me. 113.) According to the plaintiff’s declaration he was inexperienced in the matter of his employment, and especially he had no information as to the danger of the clay falling upon him. Mor was he in any way connected with the removal of the clay, so as to prevent its falling. It could not, we think, in any view of the record, be said that he was bound, in the exercise of his faculties, to know the peril which caused his injury.”
We think the language quoted applicable to the facts of this case. The risk, of coupling broken patent couplers with links and pins was known to appellants, and not to appellee. They undertook to instruct him how to perform the services which might be required of him, one of which, although extraordinary, was the coupling with links and pins of broken patent couplers, and this they failed to do. The custom of inspection of cars was known to appellee. He testified that there were inspectors in the Leavitt street yard, and that the custom of the inspector was to put a flag on a train in from thirty minutes to an hour after it came into the yard, and to inspect it, testing the wheels, brakes, chains, drawbars and couplers. In the present case the car iii question was inspected improperly, if at all, at the Fifth-ninth street yard, and not at all at the Leavitt street yard; and the evidence shows that the defect in the coupler was easy to be seen, and that it could have been remedied in about five minutes. The custom of inspection being known to appellee, and he finding the car on the track, unflagged and apparently ready to be coupled onto a train, and being directed by the conductor of the switching train to make the coupling, he had the right to assume that it might be safely done. But appellants’ counsel urges that before appellee undertook to make the coupling, he saw the broken condition of the Buckeye drawbar. This is true, but it was after he had signaled the engineer to back up, and after he had been ordered by the conductor of the train, whom it was his duty to obey, to make the coupling; and he had the right to assume that the coupling might be safely made. Unless the danger was so apparent and imminent that a reasonably prudent man would have refused to make the coupling, appellee can not be charged with negligence in obeying the conductor’s order, nor the liability of appellants held to be excluded. Offutt v. Columbian Exposition, 175 Ill. 472" date_filed="1898-10-24" court="Ill." case_name="Offutt v. World's Columbian Exposition">175 Ill. 472, 479.
That such was not the case is shown by the testimony of appellants’ witnesses. It is not enough that appellee saw the defect. To avail appellants, it must appear that he appreciated the danger which might result from it. C. & E. I. R. R. Co. v. Knapp, 176 Ill. 127" date_filed="1898-10-24" court="Ill." case_name="Chicago & Eastern Illinois Railroad v. Knapp">176 Ill. 127.
We think the jury fully warranted by the evidence in finding that he did not appreciate the danger. That appellants were negligent in not inspecting the car and remedying the defective coupler, is made so plain by the evidence as to render argument unnecessary. That, in view of appellee’s inexperience in and ignorance of railroad work, which were well known to appellants, it was their duty to instruct him how to make the coupling, or, at least, to warn him of the risk, is sustained by the following authorities: Dalleman v. Saalfeldt, 175 Ill. 310" date_filed="1898-10-24" court="Ill." case_name="Dallemand v. Saalfeldt">175 Ill. 310; Alton Paving Brick Co. v. Hudson, 176 Ib. 270; Reynolds v. Maine R. R. Co., 64 Vt. 66" date_filed="1891-10-15" court="Vt." case_name="Reynolds v. Boston & Maine Railroad">64 Vt. 66; Mo. Pac. Ry. Co. v. Callbreath, 66 Tex. 506; Mo. Pac. Ry. Co. v. White, 76 Ib. 102; I. C. R. R. Co. v. Price, 72 Miss. 862" date_filed="1895-03-15" court="Miss." case_name="Illinois Central Railroad v. Price">72 Miss. 862; Bailey’s Personal Injuries, etc., Sec. 2664, et sequens.
We find no material error in the court’s rulings on evidence. Humerous objections are made in regard to instructions given, modified and refused, but we think it unnecessary to refer to more than two of them. The following instructions were asked by appellants’ counsel:
“ 12. The jury are instructed that the frequency or infrequency with which the drawbars might be broken is not a test whether the use of the broken drawbar was incident to the duties of a switchman.
13. The jury are instructed, as a matter of law, that the defendants did not guarantee the safety of the plaintiff.”
These instructions were asked nearly at the close of the address of plaintiff’s attorney to the jury, and the court refused to give them, because of the following rule of the court:
“ All instructions must be presented to the court at the conclusion of the taking of the evidence.”
Appellants’ counsel contends that the rule has no application in the present case, for the reason that the instructions were asked because the plaintiff’s attorney urged, in his argument to the jury, that breakage was unusual, and that the defendants were substantially guarantors against injuries of the kind in question. In support of the contention that to apply the rule to a case in which an occasion for an instruction arises during argument to the jury would be unreasonable, counsel cites Standard Fire Ins. Co. v. Wren, 11 Ill. App. 242" date_filed="1882-07-25" court="Ill. App. Ct." case_name="Standard Fire Insurance v. Wren">11 Ill. App. 242, and Kepperly v. Ramsden, 83 Ill. 354" date_filed="1876-09-15" court="Ill." case_name="Kepperly v. Ramsden">83 Ill. 354, 359. We concur in the view of the court expressed in Kipperly v. Bamsden, that to apply the rule when an instruction is rendered necessary by the remarks of opposing counsel in addressing the jury, would be unreasonable. But we find nothing in the argument of the plaintiff’s attorney which, in our opinion, rendered necessary the giving of the instructions in question. On the contrary, plaintiff’s attorney, in his address to the jury, used the following language:
“ I will admit right here, that it is' ordinary, that sometimes things will get broken in the railroad business. It can not be helped. Bobody is to blame.”
Defendants’ attorney, in his address to the jury, said:
“ I tell you, gentlemen, according to my understanding, there is no law that makes the master, or employer, a guarantor of the safety of any of its employes; that the safety of the employes depends largely upon themselves,” etc.
In the closing argument of plaintiff’s attorney, he said :
“ Bow I come next to the question of the proposition of law which Mr. Willard suggests. He says there is no provision under the law that makes an employer a guarantor. That is true. Anybody who guarantees a thing is absolutely liable. If an employer was a guarantor, that would mean that every time a man got hurt, whether his own fault, or his employer’s fault, no matter whose fault, his employer would have to pay for it. We don’t claim that is the law.”
In view of the foregoing, we think there was no error in refusing appellants’ instructions 12 and 13. We are inclined to the view that the giving instruction 12 would have been improper at any stage of the trial.
It is claimed that the amount awarded' as damages is excessive. Appellants had a fair trial. The jury is the body to which the assessment of damages in such cases as the present is committed by law. We can not say that we are better qualified than was the jury to fix the amount of the damages. The judge who heard the evidence, overruled appellants’ motions for a new trial, thereby agreeing with the jury, and the amount awarded is not such that we can infer from it that the jury was influenced by prejudice, partiality or undue sympathy. Under these circumstances we do not feel that we would be warranted in holding that the amount awarded is excessive. Finally, counsel objects that the judgment is erroneous as to the Pennsylvania Company; that the evidence is that appellee was in the employ of the P., C., C. & St. L. Ry. Co. It sufficiently appears from the evidence that the Leavitt street and Fifty-ninth street yards were under one and the same management, and that employes of the companies were sent to one or the other as appeared to be convenient. In addition to the evidence referred to in the statement preceding this opinion, Depuis, who was general yardmaster for the P., C., C. & St. L. Ry. Co., says that Coneys, the trainmaster to whom, appellee was referred by Mr.Walton, the superintendent of the Chicago Terminal Division of the Pennsylvania Company, was acting for the Pennsylvania Company and the Pan Handle, and was witness’ superior, and that the Pan Handle and Ft. Wayne were known as lines of the Pennsylvania Company. Murray, foreman of inspectors on the Pan Handle side of the Chicago Terminal Division of the Pennsylvania Company, testified that he was working for both companies; and Austin, appellee’s conductor, testified that he was working for both companies. Appellee, also, worked for both companies. The objection can not be sustained.
The judgment will be affirmed.