Two of appellant’s contentions may well be considered together. The first is that there was no sufficient evidence of any protest or objection by the plaintiff against continuing to work with the defective locomotive to carry the question to the jury, and therefore a verdict should have been directed in defendant’s favor. The other contention is that the instruction given to the jury on this subject was erroneous. The conditions under which an employee may knowingly continue to work with a defective and dangerous appliance, in reliance upon a promise to repair, have been many times stated, and ought not to be in serious doubt. Judge Cooley (Torts, p. 559) states the rule:
“ If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative} and*188 the master is not in the exercise of ordinary care unless аnd until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks.”
In Stephenson v. Duncan,
“ Where the servant, having the right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances by the master that the danger .shall be removed, such assurances remove all ground for holding that the servant, by continuing in the employment, engages to assume the risk.”
In Erdman v. Illinois S. Co.
“At the threshold of this question there is the essential element of protest or оbjection to proceed with the work on account of the danger.”
Other cases on the subject: Sweet v. Ohio C. Co.
From these cases it is apparent that the assumed willingness of an employee to continue work with the appliances supplied him, at his own risk, must be negatived, and it must be made apparent that the master or those representing him understand he is not so willing. Further, such unwillingness, brought to the knowledge of the master, may and must be overcome temporarily by a promise to remove the danger within a reasonable time. Appellant’s counsel seems to contend in his brief, though not so obviously in oral argument, that there must be a direct threat to quit work unless the repairs be made. This is not еssential. Indeed, there may be cases where not even a spoken word from the employee is necessary, if it is apparent that the •master or those representing him understand that a state of unwillingness and objection exists, and that such unwillingness is overcome by the promise of repair. The very man
In this case the plaintiff first entered in a book a notification of the defect and need of repair, which book was an ordinary medium of communication between himself and his immediate superior. This act alone might, as counsel for appellant argues, be ambiguous. It might convey no-intimation of plaintiff’s unwillingness to expose himself to the peril of the defect, but merely an intention to perform a duty of notifying the master, in order that it might, for its own purposes, make repair. The further conversation between the plaintiff and the yard master, and also between the plаintiff and the yard master and the roundhouse foreman, is much more significant. It was addressed to the latter, to whom plaintiff had no right to give orders or directions. . The roundhouse foreman remarked that the step in. question was not very bad, to which Yerkes responded, evidently with considerable emphasis: “"Well, it is bad enough,.
The instruction to which exception was taken was in the following words: “In other words, the general rule is that the servant assumes all ordinary risks of his employment, and if any defect in the tools, implements, or appliances is called to the attention of the employer, and the employer agrees to repair such defect, the employee may rely upon it, and continue his employment on the strength of the promise to repair, provided it is done within a reasonable time.”
2. Appellant further contends that a verdict for the defendant should have been directed, and, one for plaintiff having been rendered, it should have been set aside, for the reason that the peril from the bent and slanting footboard was so obvious and imminent as to make serious injury so probable that plaintiff could not, consistently with reasonable care, expose himself to that peril, even temporarily and for a reasonable time, until the promise of repair was performed; resting mainly upon Erdman v. Illinois S. Co.
“ Here Welk was working under the immediate supervision of plaintiff. It is by no means conclusive that the circumstances were such that plaintiff may not reasonably have supposed that he could so supervise Welk’s conduct as to temporarily avoid any serious danger of his presence as a co-employee.”
The same distinction was pointed out in Curran v. A. H. Stange Co.
3. Plaintiff assigns as error the definition of the due care which plaintiff was bound to exercise to avert the charge of contributory negligence, viz.:
“ The plaintiff cannot recover in this case unless you find that he was in no manner guilty of any want of ordinary care, or such care as persons of ordinary care ordinarily use, which contributed to his said injuries.”
That this was an incorrect and misleading definition of “ ordinary care ” has been declared so often by this court as to make further discussion unnecessary. The rule has been repeatedly laid down that due care is to be tested by the surrounding circumstances, and that no definition is complete or correct which does not embody that element. Ordinary care is the care ordinarily exercised by the great mass of mankind, or its type, the ordinarily prudent person, under the same or similar circumstances, and the omission of the last qualification, “ under the same or similar circumstances,” or “ under like circumstances,” is error. Boelter v. Ross L. Co.
Since, by reason of the two errors already pointed out, this cause must be reversed and remanded for a new trial, it is perhaps not necessary to discuss fully some of the othеr assignments of error. It may be well, however, to notice the instructions with reference to damages for future suffering and impairment of ability. The court instructed that, in case the jury found the injuries to be of a permanent character, they should assess “ such damages for physical and mental suffering as he will be compelled to undergo in the future, and for future loss of time, but can only assess such damages as you find from the evidence the plaintiff has actually sustained and will actually sustain if his injuries are permanent.” That there was evidence to justify the jury in finding permanent injury and future suffering we have no doubt. The loss of a limb of course impairs one’s efficiency, comfоrt, and enjoyment of life, and in this case there was evidence of a stubborn resistance to complete healing of the wound resulting from amputation. The elements in the instruction which are criticised are the two expressions, “ as he will be compelled to undergo,” and “ will actually sustain.” We cannot discover in these anything injurious to the defendant, for they seem to rеquire a higher degree of certainty of such injury than is justified by the law. The rule has been many times stated that a plaintiff is entitled to recover damages for such suffering and such impairment of abilities as he is reasonably certain to endure as
Error is alsо assigned upon the overruling of objections to certain questions to witnesses. The court, over defendant’s objection, asked the question of the plaintiff: “ How did it happen that you remained there and used that engine after — worked on that engine — after you noticed the condition it was in? A. I stayed there and worked because they had promised to fix it.” The plaintiff was then asked by his counsel, “Would you have worked on that engine after you discovered the condition it was in thére, if they had not promised to repair it? ” to which, after objection, he answered, “I would not.” These questions were objected to because they called for the conclusion of the witness. The first of them is unobjectionable. It is but testimony of the plaintiff to his mental processes. It differs not at all from the question usually propounded in actions of deceit, whether or not the defrauded party believed and relied on the fraudulent statement, and whether he was induced to act thereby; and while such evidеnce is, at best, of but little weight, as said in the Erdman Case,
The last assignment of error, predicated upon alleged ex
The two errors in charging the jury above indicated render reversal unavoidable.
By the Court.— Judgment reversed, and cause remanded for a new trial.