Legnard v. Lage , 57 Ill. App. 223 ( 1895 )

He. Justice Gary

delivered the opinion oe the Court.

The appellant employed the appellee as one of several men - who worked together in excavating, with a steam shovel, clay from the side of a bank about twenty feet high, for brick making. It would add nothing to an understanding of the case to describe at length the part each man took in the work. The condition of the bank beside which they worked was visible to all of them, and if any of them saw what appeared to be dangerous overhanging of the bank, one particular man of the set would go up and push it down.

The appellee offered some evidence that it was customary in such work to keep one man at the top of the bank to “ cave it down.” Whatever that evidence may prove, the appellee knew no such custom was observed at the bank where he was at work.

There is no single circumstance—nothing—by which this case can be distinguished in favor of the appellee, from the many which are governed by the third principle stated in Stafford v. C., B. & Q. R. R., 114 Ill. 244, as follows:

“ If a person, knowing the hazard of his employment as the business is conducted, voluntarily continues therein, without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury he may sustain therein, unless, indeed, it may be caused by the willful act of the master.” The age of the appellee does not appear, but it is fairly inferable that he was neither a boy nor an old man. He had worked at the like work for a considerable time. He had seen pieces of clay fall from the bank. In fact, the case shows that he had just the same means of knowing the danger in working alongside that bank that his fellows had, and better means than had the appellant.

A large piece of clay fell from the bank, striking the appellee, and as a result his leg was so crushed that amputation followed. For that injury he has recovered in this case. It seems hard that he must suffer without remedy— bearing his loss alone—but the law is against him. The judgment is reversed and the cause remanded.