94 Ill. App. 400 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Tor plaintiff in error, it is claimed that the court erred in ¡giving the instructions quoted in the statement above, and ;in refusing to permit a certain question on cross-examinaition to be answered.
It is said that the seventh instruction is erroneous in that it singles out particular portions of the evidence and says ¡that that evidence alone does not warrant a recovery, while excluding other evidence bearing upon the same subject. We do not think this instruction is erroneous, for this reason:: ¡because it appears from all the counts of the declaration,-as well as from the evidence in the record, that the frayed and raveled condition of the rope was the very basis .of plaintiff in error’s action, without the showing of which there ¡could have been no action sustained under the pleadings and the evidence offered. There was no evidence of a failure to warn the plaintiff, nor of a failure to instruct him.
There was, however, evidence of the plaintiff himself, that he was ordered by defendant’s foreman to use the rope in question in his work, and that said foreman stood a little way from plaintiff and “ was hollering ” to plaintiff to go on with his work, and that the rope was, at the time, in an untwisted, loose and raveled condition for at least six or seven inches. The plaintiff is corroborated as to the conditions of the rope. This evidence is strongly controverted by that of the defendant, both as to the order to plaintiff and as to the condition of the rope.
In view of the conflict in the evidence as to whether the plaintiff was ordered to use the rope in the condition which the evidence tends to show it was, we think said seventh, instruction was erroneous in omitting therefrom all reference to such alleged order and plaintiff’s right to a recovery by reason thereof, under the circumstances shown.
The evidence tends to show that plaintiff knew of the condition of the rope, which he had used prior to the time of the injury, and while there is no serious conflict in that regard in the evidence, we think it was a question of fact for the jury to determine, whether the danger from the use of the rope was so imminent and apparent that no man of ordinary prudence, having knowledge of it, would have incurred it. This being so, and there being evidence, though controverted, that plaintiff used the rope under a special and imperative order of defendant’s foreman, this instruction was calculated to mislead the jury into the belief that plaintiff had no right of recovery if he knew of the condition of the rope, or that, before the injury, he had a reasonable opportunity to observe it and the danger which would be incurred by its use, irrespective of any order given bv the defendant’s foreman to the plaintiff to use it. As said in the case of Offutt v. World’s Columbian Exposition, 175 Ill. 472-80, “ the plaintiff was.not required by law to disobey his master, or by obeying assume the hazard of obedience, unless the danger was so imminent that an ordinarily prudent man would not incur it.” This was said with reference to a servant who himself pointed out to the master’s foreman the danger of a certain course of conduct and was, notwithstanding, ordered by the foreman to pui’sue that course of conduct, by reason of which he was injured.
The eighth instruction was properly given, and the law with reference thereto, viz., that the plaintiff can not recover if the evidence shows that he was guilty .of any negligence which contributed in any degree to his injury, is stated in the case of Chicago City Ry. Co. v. Canevin, 72 Ill. App. 81, and cases therein cited.
Numerous objections are made by. plaintiff in error to instruction 9, which was given by the court of its own motion, but after careful consideration we are of opinion that the instruction does not present any ground for reversal. The first clause of the instruction, however, in which it says in substance that an employe who is injured “ through a pure and simple accident,” can not recover for such injury from his 11 master any more than he can from any one else, for where there is no blame there is no liability,” should perhaps have been a little more explicit as to the negligence of' the defendant. , The injury might have occurred by an accident pure and simple, and still the defendant might be held liable if it was negligent and the negligence caused the injury. There may be some doubt as to whether the use of the words, “ Where there is no blame there is no liability,” made the instruction sufficiently explicit on the point of defendant’s negligence, but we do not regard this part of the instruction calculated to mislead the jury. We think there is no ground for objection to the remainder of the instruction.
On cross-examination of the witness Key, the court refused to allow himAo answer a question as to whether he told certain persons, at a time named, that he signed a statement for the company as to how the accident happened, and it is said that this refusal "was error. We can not assent to the contention, for the reason, first, that in substance the same question had been previously answered, and moreover the witness had previously testified as to how the accident happened, and no claim was made that any statement he had signed in any way conflicted with his testimony.
Defendant in error claims that even if errors were committed as claimed, they were not cause for reversal, because the evidence, it is said, shows clearly and conclusively that in any event there could be no recovery, and that whatever the condition of the rope the plaintiff assumed all risk-incident thereto. We deem it unnecessary to go into any detail of the evidence bearing on these claims, as it seems sufficient to say, which is a fact, that we have carefully considered the evidence and are of opinion that so far as concerns the matter of assumption of risk, it presents a question of fact for the jury, and we are unable to say that the jury might not have reached a different verdict under proper instructions. When erroneous instructions are given, the verdict of the jury should not be allowed to stand unless it is plain from the record that the verdict must have been what it was in spite of the error. Hodges v. Percival, 132 Ill. 57; Howe v. Medaris, 183 Ill. 296.
Other matters presented by the briefs of counsel need not be considered, as they may not occur on another trial.
For the error in the seventh instruction the judgment will be reversed and the cause remanded.