McAleenan & Co. v. Myrick , 1896 Ill. App. LEXIS 460 ( 1896 )

Mr. Justice Lacey

delivered the opinion of the Court.

The above are substantially all the facts in the case as shown by the evidence necessary to be noticed.

The appellant asked the court to instruct the jury to find the defendant not guilty.

The ca,se is presented to this court to decide from the facts whether the appellee had a cause of action, and we have considered it solely in that view.

As a general rule of law, the servant will be regarded as “ voluntarily incurring the risks resulting from the use of defective machinery, if its defects are as well known to him as the master. But this rule will not be applied where the master, by urging on the servant, or coercing him into danger, or in some other way, directly contributes to the injury.” Drop Forge and Foundry Co. v. Van Darn, 149 Ill. 341; East St. Louis Ice and C. Co. v. Crow, 155 Ill. 75.

The evidence shows that appellee was as well informed in regard to the dangers of the pit in question as his employer. He knew all about it; knew that it was uncovered and without railing; that any one working about it was liable to fall into it, unless he exercised care, and he knew also if it was dark the danger would be greater, and the care required correspondingly greater. Working after night was part of his duties, and he knew that there was no electric light, and that they were working by candle light. He made no objection to the working in that way, nor was he in the least coerced or deceived. He was asked to hold the light around by a fellow-workman, and in doing so he failed to exercise proper care, and fell into the pit.

The declaration avers that he was working in the line of his duty. He worked there in the shop every week, and did whatever he was told to do. He had done this kind of work before repeatedly. He procured the candles himself, and went to work about the pit without any objection or complaint. He was neither hurried, nor coerced, nor deceived, nor surprised.

The appellee was twenty-seven years of age, and had had years of experience in the business, and should be held to have assumed the risk of his employment with the pit uncovered as it was. Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329.

Many other cases might be cited, but the rule is well established, as will be seen bjr reference to the above cases.

Upon the' evidence we are constrained to hold that the court below erred in refusing the instruction requiring the jury to find for the defendant.

For this error the judgment of the court below is reversed, but as the appellee has no cause of action it will not be remanded.

Finding of Facts.

We find that the appellant was not guilty of any of the acts of negligence charged in the declaration, and not guilty as charged in either count thereof; and further, that the facts are as stated by the court in the opinion.