Paige v. Illinois Steel Co.

Mr. Justice Vickers

delivered the opinion of the court:

The errors assigned by appellant are, permitting improper remarks of counsel; refusing instructions; modifying certain instructions; overruling motion to direct verdict at the close of evidence, and admitting improper evidence.

First—In stating the' case to the jury, counsel for appellee, among other things, said: “And the company had sufficient notice of the necessity of providing better lights for the performance of that work.” This remark was objected to and the objection overruled, to which appellant excepted. It is urged that the court erred in this ruling. The purpose of an opening statement is to advise a jury of the facts relied on by the plaintiff as constituting his right of action, together with the principles of law applicable thereto. Here the plaintiff has alleged in one count of the declaration that the appellant was negligent, in that it failed to .furnish sufficient light in the work room to enable its servants to properly and safely perform the work required of them. The issue on this point was whether or not the appellant had sufficient light, and it was proper for counsel to state that the company had sufficient notice of the necessity of providing better light for the performance of the work. This is but a statement of what is alleged to be a fact. It is not argument. There was no error in this ruling of the trial court.

It is urged also that there was error in certain statements made by counsel for appellee in the closing argument. In his closing remarks he stated: “If I want the trial judge to give instructions, I prepare instructions stating the law and hand him a bunch of them, and the court passes on them and refuses some and gives others. The defense does the same. I am not going to ask for any instructions. This is not a case that needs any instructions.” These statements were not proper. It was improper for counsel to make such remarks to the jury. It was of no consequence to the jury whether appellee requested instructions, and it was improper for counsel to tell the jury that he was 'not going to ask for instructions or that the case was not one that needed instructions. But appellant did not object to these remarks. The court was not called upon to rule upon them and there is no exception preserved thereto in the bill of exceptions.

Second—It is contended that the trial .court erred in the admission of testimony of the witness Joseph Bowers. It is argued that this witness was not certain and positive; that his testimony was entirely in the present tense,—that is, related to conditions existing at the time he was giving evidence rather than to conditions existing at the time the deceased received his injuries. There is no merit in this contention. An examination of the testimony of this witness fails to disclose any erroneous ruling of the court. The question of the weight to be given the testimony was for the jury, and the trial court properly, permitted his testimony to go to the jury.

Third—Appellant contends that the court improperly modified its eighth and ninth instructions. We have carefully examined these instructions as offered and as modified and given. The objection is the same to the modification of each of these instructions. It is argued that the modification is such as confines the jury to the actual knowledge of the deceased of conditions existing before the ladle tipped, instead of extending the language so as to embrace his obligation to know,—that is, what by the exercise of ordinary care he would have known. The eighth instruction contains the language, “or of which he, in the exercise of ordinary care for his own safety, had equal means of knowledge with the defendant.” The ninth deals with the question of the position in which the deceased was located immediately before the injury, and we think the instruction is not open to the criticism made by counsel.

Fourth—The only remaining question proper for our consideration is that arising upon the refusal of the trial court to direct a verdict in favor of appellant at the close of the evidence in the case. The judgment having been reviewed and affirmed by the Appellate Court, consideration of this question here is limited to the question whether there is evidence in the record which fairly tends to support the verdict. It is argued that the deceased was not, at the time and immediately before the injury, in the exercise of reasonable care for his own safety, in that he was not at the proper place, and that when the ladle fell he ran down the stairway instead of going out at an opening on a level with the platform on which he was standing. We have carefully read the testimony of the witnesses as abstracted, and also from the record, bearing upon this question. We find an abundance of evidence justifying the conclusion that the deceased was in no respect guilty of negligence in standing on the platform at the place he was when the ladle fell. It is probably true if he had followed Reed out through the opening on the level with the platform he would have escaped injury, but we do not agree with counsel that he in not doing so was guilty of contributory negligence as a matter of law. The deceased, when the ladle suddenly fell, was without warning confronted with a perilous situation. He was then

in such position as to be threatened with immediate injury and death. It was an unexpected emergency that would necessarily excite alarm. Persons so surrounded are not required to exercise all the presence of mind and the care and caution which would be reasonably expected to attend the acts of a person under ordinary circumstances. The mere fact that in the rapid action of mind and body impelled by the horror of the situation, the deceased, in his attempt to escape, took the course he did instead of the other avenue that was open to him, will not, as a matter of law, render him guilty of contributory negligence. This question, as well as all other questions of fact, was properly submitted to the jury, and the affirmance of the judgment by the Appellate Court is conclusive of such questions. There are no other errors assigned which require discussion.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.