| Ill. App. Ct. | Nov 30, 1896
delivered the opinion of the Court.
Upon the trial of this cause, the plaintiff introduced in evidence, against the objections of the defendant, the following ordinance of the city of Chicago:
“ In every factory, workshop or other place or structure where machinery is employed, the belting, shafting, gearing, elevators and every other thing, where so located as to endanger the lives and limbs of those employed therein while in the discharge of their duties, shall be, as far as practicable, so covered or guarded as to insure against any injury to such employes.”
Among other objections to the introduction of this ordinance, it is contended by appellant that “ ordinances of this character do not enter into and form a part of the contractual relations that exist between the owners of and the employes working in packing houses, imposing a duty which, if neglected, may serve as a basis for a personal action for negligence; but that they merely subject the employer or owner to such penalties as may be provided for his disobedience.”
In the case of The Illinois Central R. R. Company v. Gilbert, 157 Ill. 354" date_filed="1895-06-15" court="Ill." case_name="Illinois Central Railroad v. Gilbert">157 Ill. 354, speaking of a city ordinance requiring the ringing of the bell of an engine running within the limits of the city, it being insisted that the ordinance had no application to the relation of employer and employe on the right-of-way of the company, the Supreme Court said:
“ The city, having the right to adopt an ordinance, whoever would be benefited by a compliance therewith on the part of the company, would be entitled to the protection that obedience to the law would furnish, whether an employe or not.”
In 1 Shearman & Redfield on Negligence, Sec. 13, the law is thus laid down : “ The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur.”
To the same effect are the cases of Devlin v. Gallager, 6 Daly (N. Y.), 494; Bott v. Pratt, 33 Minn. 323" date_filed="1885-04-18" court="Minn." case_name="Bott v. Pratt">33 Minn. 323; Owings v. Jones, 9 Md. 117.
Each person has a right to presume that all will comply with the law. An ordinance is a law within the territory over which it is in force. We say each person has a right so to presume. If a person knows that another is violating the law, he can not base an action of negligence upon such presumption. In the present case it would seem that the appellee must have known that there was no such cover or guard over the wings of the fans by which he was injured, and that therefore the ordinance ought not to have been admitted in evidence. W. S. L. & P. Ry. Co. v. Thompson, 15 Ill. App. 117; C., B. & Q. Ry. Co. v. Johnson, 103 Ill. 512" date_filed="1882-06-21" court="Ill." case_name="Chicago, Burlington & Quincy Railroad v. Johnson">103 Ill. 512; McRichard v. Flint, 114 N.Y. 222" date_filed="1889-04-23" court="NY" case_name="McRickard v. . Flint">114 N. Y. 222, 229.
Under the assignment of errors, the admission of improper evidence can not be considered by this court.
Whatever experience appellee had had in oiling machinery, it appears that he was injured the first time he attempted to oil the fans in question. It is true he had helped to set the fans up, and that he was probably familiar with the places in which they ran, but it is not clear that from his association with machinery, or the running of fans, he had come to realize how great a suction a powerful fan exercises close to its rapidly revolving wings. We can well understand how a person might, for a great length of time, work about fans, and feel, some feet from them, the air current generated thereby, and yet not understand that close to the blades the suction they created was strong enough to push a man to one side, or move his arm against his will. The majority of persons are doubtless ignorant of the great force which a powerful fan, within a few inches of its blades, exerts upon bodies of the size and weight of a man’s arm.
The master is bound to inform his servant of all dangers incident to the service, of which he, the master, is cognizant, or of which, in the exercise of ordinary care on his part, he would be informed; he is bound to warn the servant of all latent or extraneous dangers of which he himself has knowledge, or of which, in the exercise of ordinary care, he would be informed; and if he fail in this respect, he is liable to the servant for all the consequences resulting to him from the lack of such w7arning. -
This rule applies to dangers of which the master himself is aware, or ought to know, and which are unknown to the servant, and would not be readily ascertained except by a person possessed of peculiar knowledge, which the master has no reason to suppose the servant possesses. Dangers which are the result of common knowledge, which can readily be seen by common observation, the servant assumes the risk of; but when the danger to be avoided requires a knowledge of scientific facts, an ordinary servant is not presumed to have knowledge of them, and it is the duty of the master, knowing of them, to inform the servant in respect thereto. Wood on Master and Servant, pp. 714, 721, 723; Smith v. Peninsula Car Works, 60 Mich. 501" date_filed="1886-04-15" court="Mich." case_name="Smith v. Peninsular Car Works">60 Mich. 501-505; Atkins v. Merrick Thread Co., 142 Mass. 431" date_filed="1886-10-13" court="Mass." case_name="Atkins v. Merrick Thread Co.">142 Mass. 431-433; Ill. Cent. Ry. Co. v. Welch, 52 Ill. 183" date_filed="1869-09-15" court="Ill." case_name="Illinois Central Railroad v. Welch">52 Ill. 183-186; Britton v. G. W. Cotton Co., L. R., 7th Exch., 130.
Applying this principle to the present case, we think the jury was warranted in concluding that the danger from the great suction exerted by this fan a few inches from its blades, was, or by the exercise of reasonable care might have been, known by appellant, and was not known by appellee, and that therefore the servant should have been warned of the danger he incurred and the risk he ran in placing his arm in a place where, from the action of this fan, he received the injury complained of.
We see, therefore, no sufficient reason for reversing the finding of the jury and the court below upon the facts.
At the close of the plaintiff’s evidence, the defendant asked the court to instruct the jury to return a verdict of not guilty, which motion was denied, being renewed at the conclusion of the evidence. Neither of these motions was reduced to writing, each being made orally.
The errors assigned, as stated by appellant, are as follows:
“ 1. That the court refused to direct a verdict of not guilty at the close of plaintiff’s evidence.
2. Befused so to do at the close of all of the evidence.
3 and 4. Befused to grant a new trial because the judge refused to instruct the jury to return a verdict of guilty, as aforesaid.
5. The trial court refused to arrest the judgment.”
The Supreme Court in Wenona Coal Co. v. Holmquist, 152 Ill. 581" date_filed="1894-10-29" court="Ill." case_name="Wenona Coal Co. v. Holmquist">152 Ill. 581-588, says:
“ It is said that the trial court erred in overruling defendant’s motion to exclude the evidence from the jury and to instruct the jury to find for the defendant. The motion was made after the defendant had introduced its evidence and rested. Section 52 of the Practice Act, passed in 1812, provides that ‘ hereafter no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing.’ (2 Starr & Cur. Stat., page 1814.) Section 53 provides that 1 Avhere instructions are asked which the judge can not give, he shall, on the margin thereof, Avrite the word “Refused.”’ (Idem, page 1815.) We find in the record no Avritten instruction which directs the jury to find for the defendant, and which is marked ‘ Refused.’ (L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596" date_filed="1892-01-18" court="Ill." case_name="Lake Shore & Michigan Southern Railway Co. v. Bodemer">139 Ill. 596; Pullman Palace Car Co. v. Laack, 143 Id. 242; J., A. & N. Ry. Co. v. Velie, 140 Id. 59.) The expressions used ip the decisions to the effect that the court was 1 asked to instruct the jury,’ or c requested to instruct the jury,’ were intended to refer to requests made by submitting to the court an instruction in writing to be given to the jury. (Ill. Cent. Ry. Co. v. Nowicki, 148 Ill. 29" date_filed="1893-10-26" court="Ill." case_name="Illinois Central Railroad v. Nowicki">148 Ill. 29.)”
We regard this as an announcement by the Supreme Court that it is only for a refusal to give written instructions, prepared and asked by a party, that error can be assigned; that it is not sufficient to merely orally request the court to instruct the jury to find for the defendant.
This court so held in Ames & Frost Co. v. Stachurski, 46 Ill. App. 310" date_filed="1892-10-28" court="Ill. App. Ct." case_name="Ames & Frost Co. v. Stachurski">46 Ill. App. 310.
The judgment of the Circuit Court is therefore affirmed.