Fatz v. Continental Manufacturing Co. , 141 Ill. App. 273 ( 1908 )

Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the proof utterly fails to sustain the charge of negligence in the declaration; that plaintiff had been a regular and constant operator of planers for nearly seven years before the accident, and under the law must be held to have had full knowledge of the condition of the planer, whatever it was, and that the rule of assumed risk is a complete bar to recovery by appellee. It is urged, therefore, that it was erroneous to instruct the jury that a servant assumes only those risks incident to the work, omitting the class of risks which the servant assumes by continuing the work with full knowledge of the danger; and that by a further instruction the court eliminated entirely the defense of assumed risk.

The instruction last referred to is as follows:

“While the burden is on the plaintiff to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, that would be sufficient to warrant the jury in finding in his favor. If you find from the evidence that the plaintiff has proved his case as laid in the first count of his declaration by a preponderance of the evidence, then you should find the issues for the plaintiff.”

This instruction was erroneous, inasmuch as it wholly ignores the question of assumed risk.” Montgomery Coal Co. v. Barringer, 218 Ill. 327. The instruction directs the jury that they “should find the issues for the plaintiff” if they find from the evidence that the plaintiff has proved by a preponderance of evidence his case as laid in the first count of his declaration, the only count upon which the cause was submitted. We said, through Mr. Justice Baker, in The Lake Street Elevated Railroad Company v. Fitzgerald, 136 Ill. App. 281: “In a case where the assumption of risk is involved, it is error to instruct the jury that if the plaintiff has made out his case as alleged in his declaration or any count thereof he is entitled to a verdict, for the reason that such instruction ignores the assumption of risk.” In the opinion filed in that cause the question here involved is fully considered and the authorities cited. The instruction above quoted was clearly erroneous and requires that the judgment of the Circuit Court shall be reversed and the cause remanded. It will be so ordered.

Reversed and remanded.