Harris v. Shebek

Mr. Justice Phillips

delivered the opinion of the Court:

The questions of fact as to whether the plaintiff was using due care and caution at the time of injury, and whether the defendant was guilty of negligence, are settled by the adjudications of the Circuit and Appellate Courts. The question presented as to whether the negligence proved differs from that alleged in the declaration is also a question of fact, where there is any evidence tending to support the declaration. Libby, McNeill & Libby v. Scherman, 146 Ill. 540. In the latter case it was held: <cTo present the question of variance as one of law, the evidence should have been objected to at the time it was offered, on that ground, or when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way the question should have been so raised that the trial judge could have passed upon it; and to properly raise the question in any of these modes, the variance should have been distinctly pointed out, so as to enable the trial judge to pass upon it understandingly, and to enable the plaintiff, if such course should become necessary, to obviate the objection by an amendment to the declaration.”

This record does not show, that evidence was objected to because of variance between the proof offered and the aliegations of the declaration, nor was there a motion to exclude because of variance. It does appear, that when plaintiff rested his case the defendant moved the court to instruct the jury to find a verdict for the defendant, but no ground for the motion was further stated, and that motion was denied, and the defendant introduced his evidence to contradict that of the plaintiff, and the motion was not renewed. The defendant thereby waived his right to assign as error the overruling his motion to instruct the jury to find for the defendant, made when plaintiff rested his case. No question of variance arises on this record, that can be availed of in this court. Joliet, Aurora & Northern Ry. Co. v. Velie, 140 Ill. 59; Ames & Frost Co. v. Strachurski, 145 Ill. 192; Libby, McNeill & Libby v. Scherman, supra. Neither is there error in the instruction given for plaintiff. It is a matter of common knowledge, that heavy machinery with revolving cylinders and wheels connected by belting or cogs to the main power, propelled by steam, is, when in motion, hazardous. A recognition of a matter of common knowledge is not contrary to any rule of law, and the instruction charging the jury, that if the defendant knew of the dangerous character of the cog-wheels and failed to inform the plaintiff and that plaintiff, was ignorant and inexperienced, etc., was nota charge as to a controverted fact, but a recognition of a matter of common knowledge. Nor was that instruction too broad in charging the jury, that it was the duty of an employer to instruct and warn an employé of tender years and who is ignorant and inexperienced of all dangers incident to his employment; whether a danger was incident to the employment, was a question of fact for the jury. The duty of the employer to the employe was correctly stated as a rule of law. The next clause of the instruction “and that if such employe while using ordinary care is hurt by a danger known to the employer and unknown to the employe, the employer is liable,” etc., is not misleading, authorizing the jury to find a verdict for any danger not incident to the employment. The connection in which that clause is used precludes such construction. There was evidence in the record that authorized the giving of that instruction. Error is assigned for the refusal of certain instructions asked by the defendant, but appellant in his brief makes no mention of the refusal of instructions, and suggests no reason why they were pertinent or stated a correct rule of law, and it may well be considered that appellant has abandoned that' assignment of error. We find no error in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.