Slack v. Harris , 200 Ill. 96 ( 1902 )

Mr. Chief Justice Magruder

delivered the opinion of the court:

First—It is claimed, on the part of the appellant, that the trial court erred in refusing to give to the jury at the close of appellee’s evidence, and again at the close of all the testimony, a written instruction to find appellant not guilty. Whether or not it was erroneous to refuse this instruction depends upon the question, whether the evidence tended to support the cause of action.

There was evidence, tending to show that the appellant was guilty of such negligence as caused the injury to appellee. The engineer, Neff, stood to the appellant in the relation of a vice-principal to a principal, and was clothed by appellant with authority to give orders to the appellee and direct him in his control of the elevator car. The evidence, introduced by the appellee, tended to show that there was some defect in the working of the elevator car, which caused it to stop either too far above or too far below some of the floors, and to produce a jar at the time of so stopping. Appellee’s evidence also tended to show that the engineer went up to the motor room on the roof for the purpose of attempting to remedy the defect, and, in doing so, so loosened some of the nuts or bolts upon the machinery, as to make it impossible for appellee, when operating the elevator car, to control the lever. This loosening of the brake is alleged to have caused the injuries in question. It appears that these nuts were not loose before the engineer went up to the motor room, inasmuch as, prior to that time, the car could be properly operated with the exception of the defect already indicated. In other words, the evidence, introduced by the appellee, tends to show that the engineer, who was the representative and vice-principal of the appellant, was negligent in ordering appellee to run the elevator while the brake was loose.

It is true, that appellee, and Neff, the engineer, contradict each other. Appellee swears that the engineer went up to the motor room with a monkey-wrench, while the engineer denies that he had a wrench. It was for the jury to say which one of these witnesses told the truth. It is also true, that appellee did not see what the engineer did in the motor room, which was above the sixth floor, and that there is no direct testimony to the effect that the engineer loosened the nuts, and, as a consequence thereof, the brake. But expert machinists testified in the case, that the loosening of the nuts, which caused the lever to be uncontrollable, could not have been effected otherwise than by unscrewing the nuts with a wrench; in other words, that the manner, in which the nuts were loosened, showed design, and not accident. It is urged that this loosening may have been caused by the running up and down of the elevator car by appellee. But, if this were so, appellee was ordered thus to move the elevator car by the engineer, to whose orders he was subject. We discover no evidence in the record, that appellee was guilty of any want of ordinary care in his management of the elevator; and the testimony tends to show that whatever he did in the management thereof was under the orders and directions of the engineer. We are, therefore, of the opinion that the trial court committed no error in refusing to take the case from the jury.

Second—Appellant claims, that appellee assumed the risks of the work, and was injured by a condition that was one of the usual risks. It is true, as a general rule, that the servant assumes the natural and ordinary risks of the business, in which he engages. He assumes all the risks ordinarily incident to the employment, and is presumed to have contracted with reference to such risks. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Consolidated Coal Co. v. Haenni, 146 id. 614). But the rule, that the servant assumes the ordinary risks incident to the business, presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. The servant only assumes those risks, which can not be obviated by the adoption of reasonable measures of precaution by the master. He does not assume risks that are unreasonable or extraordinary, nor risks that are extrinsic to the employment, nor those of the master’s own negligence. (City of LaSalle v. Kostka, 190 Ill. 130). While it is true, that a servant assumes risks of known dangers, such as are so obvious that knowledge of their existence may be fairly presumed, yet the law does not imply that he has any notice of dangers arising out of extraordinary circumstances. (Chicago and Alton Railroad Co. v. House, 172 Ill. 601; Illinois Steel Co. v. Bauman, 178 id. 351). It has been said, that “an employe does not assume all the risks incident to his employment, but only such as are usual, ordinary, and remain so incident, after the master has taken reasonable care to prevent or remove them, or if extraordinary, such as are so obvious and expose him to danger so imminent, that an ordinarily prudent and careful man would anticipate injury as so probable that, in view of it, he would not enter upon or remain in the employment.” (Chicago and Alton Railroad Co. v. House, supra; Alton Paving Brick Co. v. Hudson, 176 id. 270; West Chicago Street Railroad Co. v. Dwyer, 162 id. 482).

Here, it cannot be said that the running of the elevator car by the appellee, under the circumstances already narrated, was merely an ordinary risk of the business. The danger to be incurred was not such a danger as was necessarily incident to the ordinary operation of the elevator car, but was an extraordinary risk, arising out of the circumstance of loosening the nuts and other portions of the machinery by the engineer, as a vice-principal, for the purpose of remedying a known defect.

It is said that appellee had notice of the fact, that the elevator car did not stop on a level with the different floors of the building, and that, when it did stop, the stoppage was accompanied by a jar. But, while it may be true that an employe has notice of a defect, it does not necessarily follow that he has any knowledge of the risk, which may result from such defect. The servant is not chargeable with contributory negligence, if he knows that defects exist, but does not know, and cannot know by the exercise of ordinary prudence, that risks exist. (Illinois Steel Co. v. Schymanowski, 162 Ill. 447). In Swift & Co. v. O'Neill, 187 Ill. 337, we said, in regard to the right of a servant to recover for injuries incurred while working in an unsafe place: “Although he may know of the defects, yet unless, under all the facts and circumstances of the case, it can be said he knew of the extent of the danger, he may still maintain his action.” (Union Show Case Co. v. Blindauer, 175 Ill. 325). It does not appear, in the case at bar, that appellee had any knowledge of the danger or risk that would result from the operation of the elevator car, while the engineer was engaged in an attempt to remedy its defective condition.

Again, a master is liable to a servant, when he orders the latter to perform a dangerous work, unless the danger is so imminent that no man of ordinary prudence would incur it. Here, the appellee received orders from the engineer, under whose control and direction he was placed by the appellant, as to how he should operate the elevator upon the occasion in question, and also received orders to so operate it while it was undergoing repair. Even where a servant has some knowledge of attendant danger, his right of recovery will not be defeated, if, in obeying the order, he acts with the degree of prudence, which an ordinarily prudent man would exercise under the circumstances. (Illinois Steel Co. v. Schymanowski, supra; Union Show Case Co. v. Blindauer, supra; Consolidated, Coal Co. v. Haenni, supra; Swift & Co. v. O’Neill, supra).

The question, however, whether the risk incurred by the appellee was one of the usual and ordinary incidents of his employment, was left by the instructions to the jury; 'and, as it is a question of fact, its settlement by the lower courts in favor of the appellee is conclusive upon this court. It is a proper question to be left to the jury, under all the evidence, whether the risk is assumed, or not. (Swift & Co. v. O'Neill, supra; Western Stone Co. v. Muscial, 196 Ill. 382).

Third—It is next contended by the appellant, that the appellee and the engineer were fellow-servants, and, upon this account, the appellant was not responsible for the negligence of the engineer, even if the injury was caused thereby. The alleged ground, upon which they are claimed to be fellow-servants, is that they were working and co-operating together for the purpose of remedying the existing defect in the operation of the elevator car. This contention ignores the fact, that appellee was, by the express, direction of the appellant, acting under the orders of the 'engineer. Where the vice-principal, appointed by the master, abdicates his position as vice-principal, and acts as a co-laborer with the servant, it is held, in'some instances, that he becomes a fellow-servant with the latter, and that, in such case, the master is not responsible for his negligence. But where the negligent act complained of results directly from the exercise by the vice-principal of the authority conferred upon him' by the master over his co-laborer, the master will be liable. (Chicago and Alton Railroad Co. v. May, 108 Ill. 288; Norton Bros. v. Nadebok, 190 id. 595; Union Show Case Co. v. Blindauer, supra; Westville Coal Co. v. Schwartz, 177 Ill. 272; Morton & Co. v. Zwierzykowski, 192 id. 328).

Where certain appliances and their repair are committed to the care of an engineer, the latter, in performing that duty, is the representative of the master and a vice-principal, and not the fellow-servant of those, who are required to use the appliances, furnished to them by the engineer; and, in such case, the engineer, as to his separate duties of making the repairs, is not a fellow-servant of a plaintiff acting under his orders. (Morton & Co. v. Zwierzykowski, supra; Metropolitan Elevated Railroad Co. v. Skola, 183 Ill. 454; Pittsburg Bridge Co. v. Walker, 170 id. 550). Where a vice-principal or superintendent determines to do a work in a dangerous manner, his determination is that of the master, and the master in such case is liable for the negligent acts of the vice-principal. “A servant, ordered by one in authority to do a dangerous act, is not required to balance the degree of danger and decide with absolute certainty, whether he may safely do the act, and, even if he had knowledge of such danger, it would not defeat a recovery for injury, if, in obeying his master’s command, he acted with that degree of prudence, which an ordinarily prudent man would have used under the same circumstances.” (Illinois Steel Co. v. McFadden, 196 Ill. 344, and cases there cited).

But, in addition to what has already been said, the question whether or not appellee and the engineer were fellow-servants, under the facts of the present case, was a question of fact, which was submitted to the jury under the instructions of the court, and has been finally settled by the judgments of the lower courts. (Norton Bros. v. Nadebok, supra; West Chicago Street Railroad Co. v. Dwyer, 162 Ill. 482; Wenona Coal Co. v. Holmquist, 152 id. 581; Whitney & Starrette Co. v. O’Rourke, 172 id. 177). Instruction numbered 28, asked by, and given for, the appellant, was as follows:

“If the jury believe from the evidence that the plaintiff and the engineer, at the time of the injury, were in the employment of defendant, and were fellow-servants as explained in these instructions, and that their ordinary duties as such servants bore such relation to each other that the careless or negligent act of the engineer endangered the safety of the plaintiff, then such danger was incident to the employment of the plaintiff, and he cannot recover in this case, if the injury in question resulted from such negligent acts.”

The jury have found by their verdict that the relation of fellow-servants did not exist between appellee and the engineer. The question, whether the relation of fellow-servants exists, only becomes- a question of law, and not of fact, when there is no dispute -with reference to the facts, and when the evidence and the legitimate conclusions to be drawn therefrom are such, that all reasonable men will agree to the existence of the relation of fellow-servants. (Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 Ill. 330; Norton Bros. v. Nadebok, supra). In the case at bar, the facts are not conceded, but are hotly contested.

Fourth—Appellant furthermore claims, that the court below erred in admitting expert testimony in regard to the effect of the changes and alterations in the machinery, alleged to have been made by the engineer, upon the operation of the elevator car. Such testimony in such cases has been held by this court and by other courts to be admissible. (Union Show Case Co. v. Blindauer, supra; McGregor v. Reid, Murdoch & Co. 178 Ill. 464; Jacksonville, etc. Railway Co. v. Peninsular Land Co. 27 Fla. 85). Nor can it be said that, in such cases as the case at bar, circumstantial evidence is always necessarily overcome by positive evidence. The contention of appellant upon this branch of the case is, that the evidence of the engineer, being positive, overcomes the circumstantial evidence on the side of the appellee, consisting of appellee’s own testimony as to the action of the machine just before the accident, and the testimony -of the experts as to the condition of the adjustment of the brake and automatic stop as they were found immediately after the accident, and to the effect that the machine could not have acted as it did unless these adjustments had been changed. In criminal, as well as in civil cases, a verdict may well be founded on circumstances alone; and it is misleading to declare that circumstantial evidence, tending to prove negligence, is inferior to, or outweighed by, direct evidence. Where circumstantial evidence, tending to show negligence, is introduced by the plaintiff, and the defendant afterwards introduces direct and positive evidence tending to show the contrary, it is a question for the jury to determine which evidence is entitled to the greatest credit. (Carlton v. People, 150 Ill. 181; 1 Greenleaf on Evidence, sec. 13a; 3 Jones on Evidence, sec. 901; Jacksonville, etc. Railway Co. v. Peninsular Land Co. supra; Atchison, Topeka and Santa Fe Railroad Co. v. Bales, 16 Kan. 252; People v. Harris, 136 N. Y. 429).

It is also contended that the court below erred in admitting testimony as to the condition of the machinery immediately after the accident. The court committed no error in this regard. The main expert examined the condition of the elevator, and of the machinery, in about three-quarters of an hour after the accident happened. In St. Louis, Peoria and Northern Railway Co. v. Dorsey, 189 Ill. 251, we said (p. 254): “The condition of the brake apparatus at the exact time of the accident was, of course, the material inquiry, but evideiice as to its condition shortly before or after that time, would fairly tend to prove its condition at the particular moment of the accident. There is nothing in the evidence to the effect that changes did occur or might have occurred in the brake appliance after the accident and the time the witnesses saw it. We think the testimony was competent. The weight to be given it was for the jury to determine.” (See also City of Bloomington v. Osterle, 139 Ill. 122; Fairhank Canning Co. v. Innes, 125 id. 410).

Instructions numbered 35, 36 and 37, asked by the appellant and refused by the court, were properly refused, because they announced views in regard to the expert testimony in the case contrary to those here expressed.

Fifth—It is charged that the trial court erred in giving certain instructions, which were given on behalf of the appellee. Two criticisms are made upon these instructions, as we understand counsel. The first criticism is, that the instructions, which consist of a number of clauses, are so framed that the jury might well have concluded, that they were authorized to find the facts in one of these clauses whether they should so find them from the evidence or not. We are of the opinion that the instructions are not justly subject to the criticism thus made upon them. The instructions use the words, “if the jury find from the evidence,” at the beginning of the series of clauses, and these words evidently refer to and include all the clauses. It is not necessary to tell the jury in each sentence of an instruction that they must believe from the evidence. “If the first part of an instruction contains a clause requiring them to make a finding from the evidence, a jury of intelligent men will not be misled by the omission of such a clause in the remaining portion of the instruction.” (Rock Island and Peoria Railway Co. v. Leisy Brewing Co. 174 Ill. 547, and cases cited on p. 561).

The second criticism is, that the instructions are so worded that the jury could reasonably infer that they were to consider the negligence of the appellant, as charged in the first count of the declaration, as well as in the second and third counts. Counsel for appellee, during the trial of the case, dismissed or withdrew the first count of the declaration in the presence of the jury, and it was well understood that the appellee did not seek to recover under the allegations of the first count of the declaration. Two of the instructions complained of in this respect confined the attention of the jury in express words to the second and third counts of the declaration. Another of the instructions complained of refers to the negligence of appellant “alleged and proved in this case.” As no proof was introduced in support of the allegations of the first count, the jury could not have inferred that the instruction in question referred to the first count. The instructions confined their attention to what was alleged and proved, and, therefore, had no reference to the first count. All references in instructions to the pleadings are to be understood as referring to the pleadings in the condition, in which they are at the time of the trial. Where one count of a declaration has been dismissed, a reference in an instruction to the declaration, or any single count thereof, will be understood to refer only to the counts not dismissed. In North Chicago Street Railway Co. v. Hutchinson, 191 Ill. 104, we said: “At the time the instruction was given, the second and third counts had been eliminated from the declaration by the dismissal, and it can hardly be assumed that the jury would understand the instruction to refer to such dismissed counts.” Where a count is struck out of a declaration by leave of court, it is out of the case for all purposes, and the declaration must afterwards be considered as if that count had never been introduced. (1 Ency. of Pl. & Pr. 621, 626; Prescott v. Tufts, 4 Mass. 145; Brown v. Feeter, 7 Wend. 304; Colvin v. Peck, 62 Conn. 155).

But if there was any error in this respect in the instructions complained of, which were given for appellee, the appellant is estopped from insisting upon the objection, because the same defect existed in one or more of the instructions, asked by the appellant and given for him. Eor instance, instruction numbered 19, given for the appellant, requires the jury to determine “whether defendant was guilty of the negligence charged in the declaration.” In this instruction the declaration is referred to as a whole, without specifically designating the second and third counts thereof. Where a party has induced the trial court to use a certain expression in the instructions, he ought not to be heard to complain of the court’s action. (North Chicago Street Railway Co. v. Hutchinson, supra; Consolidated Coal Co. v. Haenni, 146 Ill. 614).

The refusal of instructions numbered 38 and 39, asked by the appellant, is also charged to be error. These instructions were properly refused, because they single out certain parts of the case in such a way, as to withdraw the attention of the jury from other aspects of the case, on which a recovery might be had. In other words, the instructions, in conditioning the liability of the appellant upon the existence of certain facts, ignore altogether the fact, that the engineer- was the vice-principal and representative of the appellant, and that the negligent orders of the engineer, as such vice-principal, contributed to cause the injury.

After a careful examination of the record, we find no such error as would justify us in reversing the judgment of the Appellate Court. Accordingly, the judgment of the Appellate Court is affirmed. T 7 , „ 7

T 7 , „ 7 Judgment affirmed.