Swift & Co. v. O'Neill , 88 Ill. App. 162 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

The principal question presented upon this appeal is as to whether the complaint by appellee of the dangerous conditions arising from lack of light and the promise by the foreman and the assistant superintendent to better the conditions, are sufficient to take this case out of the application of the general rule as to assumed risks.

We are of opinion that the evidence is ample to establish the fact that the conditions arising from the darkness of the alley were dangerous conditions, and that the jury were warranted in finding that there was negligence in this regard on the part of appellant. Whether the injury was caused solely by the negligence of appellant in the failure to properly light the place where its employe was directed to work, or such negligence was only a concurring cause together with negligence of others, who were fellow-servants, was not a question of controlling importance. In either case if the negligence of appellant operated as a concurring and efficient cause, the liability of appellant would not be relieved by other causes also concurring. N. C. St. Ry. Co. v. Dudgeon, 83 Ill. App. 528, and cases therein cited.

And a jury might well have found from this evidence that the action of the fellow-servants of appellee was not, under the circumstances, negligent.

The right to a recovery would depend, then, upon the question of whether the risk was within the assumed hazards of the employment.

The evidence is sufficient to establish a, promise to remove the defect and its consequent danger, and that the promise was made by a vice-principal of appellant. There is no controversy as to the making of the promise. The foreman himself testified to it, as well as appellee. H or is there any question but that the promise was made by those who could thereby bind appellant in relation to this employe. Engle•man was foreman. To him the complaint was made. He in turn communicated it to an assistant superintendent, who was superintendent of the smoking department, and the latter promised the removal of the danger, and directed appellee, the employe who complained, to go on with his work. This promise and direction were conveyed by the foreman to appellee. It is idle to argue that the foreman and the assistant superintendent had no authority to make such repairs. It is enough that they had authority, by reason of their relationship to appellee as vice-principal of appellant, to promise to make them. By that promise appellee was warranted in remaining in the employment fora reasonable time, to await the fulfillment of the promise, and without accepting the risk in question as an assumed risk, or becoming thereby guilty of such contributory negligence as would bar a recovery. M. F. Co. v. Abend, 107 Ill. 44; Weber Wagon Co. v. Kehl, 139 Ill. 644; Ridges v. City, 72 Ill. App. 142.

It could hardly be said that a reasonably prudent man might not, relying upon such promise, continue exposed to the hazard in question. The verdict is sufficiently supported by the evidence in this regard.

But it is contended by counsel for appellant that there is a distinction between a promise to repair a defect which existed when the employment was entered into, and a promise to repair a defect which has arisen during the employment. It is strenuously argued that the exception to the general rule as to assumed risks, which applies to a promise to repair a subsequently arising risk, has no application to a risk which existed when the employment was entered into, because the employer had the right to conduct his business as he chose, even to adopting methods and appliances which were not the best and safest, and the employe was free to reject the employment if he was unwilling to assume the risks and perils arising from such methods and appliances. In support of this contention several Massachusetts cases are cited. These decisions are in effect a construction of a Massachusetts statute entitled “Employer’s Liability Act.” Whatever analogy may be found in the interpretation of this statute to the principles of the common law, it is enough to say that we are unable to find in any Illinois decision a recognition of any such distinction between promises to repair. Ho Illinois case holds, so far as we are aware, that if an employe undertook an employment in which there was a hazard to which he objected and which the master promised to remove, the former might not remain a reasonable time in the employment without assuming the dangers of such hazard or making himself necessarily guilty of such contributory negligence as would bar a recovery for injury received through such danger. It would seem in reason that there could be no such distinction. The promise to repair operates in either case merely to negative the presumption, otherwise obtaining, that the employe in consideration of his hire assumed the peril of the hazard in question, or that he was guilty of such contributory negligence in remaining exposed to it as would of necessity bar a recovery. Ridges v. City, supra;

And it would seem to do this in the one case as well as in the other. But as a matter of fact in this case the appellee was at the beginning of his emploj^ment engaged in the old building, and it was during his employment that he was transferred to thé new building and for the ' first time exposed to the hazards.

We are of opinion that the promise to remove the danger was sufficient in this case to prevent the application of the general rule as to assumed risks.

There is another element in this case which bears as well upon the question of negligence of appellant as upon the question of any contributory negligence on the part of appellee, and upon each supports the recovery. Appellee, when he climbed upon the truck in the dark alley to attach the globe to the wire, Avas acting under the direct and controlling order of his foreman, who stood by and directed his movements. Offutt v. Col. Ex. Co., 175 Ill. 472.

Appellee was permitted to testify that “he supposed those lights would come in and still kept working.” Counsel for appellant complains of the admission of this evidence. Perhaps it Avas not necessary that appellee should thus show by direct testimony that he had relied upon the promises in remaining exposed to the danger, for the evidence discloses that the promises "were made ‘‘almost every day,” and up to the time of the injury, so that in the absence of direct proof the jury would have been warranted in inferring that the promise Avas the reason for remaining at Avork. But the admission of the evidence could in no way have prejudiced appellant. It only showed directly and, we think, properly, that which is otherwise apparent and uncontradicted.

There was no error in permitting appellee to exhibit the injured leg to the jury (Springer v. City, 135 Ill. 552; City v. Dougherty, 153 Ill. 163), nor in declining to compel him to remove the salve from the wound. In each instance the action of the trial' court was largely a matter of sound discretion, upon consideration of all surrounding circumstances, and we are unable to say that the discretion was abused.

The proof of occupation as a bricklayer and inability to labor at that work, was admissible under the general allegations of the declaration. C. & E. R. R. Co. v. Meech, 163 Ill. 305.

We regard the hypothetical question complained of as proper so far as the objections raised are concerned. The testimony of appellee that his health had been “ the best ” before the injury was enough to warrant the hypothesis that the leg was sound.

Complaint is made as to the amount of the verdict. The evidence as to the probability of a recovery is not positive. It is, however, quite sufficient to warrant the jury in concluding that the injury prevented the appellee from continuous labor at his usual occupation, consistently with any hope of a recovery. In other words, it appears that appellee might work,,and did work, but that a continuance of such labor would involve a permanency of the ailment. If he can recover at all, it would seem that it will be necessary to forego such labor and as well to submit to an operation, which can scarcely be regarded as less than serious, and is at best uncertain in its results. There is no ground upon which we can hold that the amount recovered is excessive. C. & E. I. R. R. Co. v. Cleminger, 77 Ill. App. 186.

The judgment is affirmed.