Chicago, R. I. & P. Ry. Co. v. Kinnare

Mr. Justice Sears

delivered the opinion of the court.

The-only questions presented upon this appeal are as to the sufficiency of the evidence to sustain the verdict, and the modification of the ninth and twelfth instructions tendered by counsel for appellant.

We are of opinion that the evidence as to negligence of appellant operating as proximate cause of the injury was such as would warrant the general verdict for appellee. It may be conceded that the evidence of negligence in changing the employment of Burns from the occupation of night watchman to that of special police officer is insufficient to sustain the verdict, but it nevertheless is true that the evidence is such that negligence of appellant in permitting the pile of sand and gravel to remain alongside the track where Burns was sent to arrest men upon moving trains, might be reasonably found by the jury to have been the proximate cause of the death. N. C. St. R. R. Co. v. Dudgeon, 83 Ill. App. 528; N. C. St. R. R. Co. v. Dudgeon, 184 Ill. 477.

The negligence in the case cited consisted in placing piles of stones alongside of the track upon which the employe was required by his service to change from one to another of the employer’s trains. The negligence in the case here consists in placing piles of sand and gravel alongside of the track upon which the employe was required by his service to mount upon a moving car. We perceive no difference in principle. Ror can it be held, as matter of law, that the attempt to get upon the car was of itself contributory negligence upon the part of Burns. That was a question for the jury. The fact that his companions made the same attempt, under like circumstances, indicates that the undertaking was not so apparently perilous as to make it one which no reasonable man would enter upon.

The 9th and 12th instructions as modified and given are as follows:

9th. “ The court instructs the jury that even although you may believe from the evidence that the plaintiff’s intestate, Anthony Burns, was not employed to do the work he was engaged in at the time of his injury, yet if the jury further believe from the evidence that he was engaged in said work without objection, and that the risks and dangers thereof, if it had any, were open and plain to his sight and understanding, then he occupies in this case the .same position he would have occupied if he had been originally employed to do this work; and if he was injured while so employed by reason of such open and plain risk, his injury was the result of risks which were assumed by him, and plaintiff is not entitled to recover in this action, and your verdict should be in favor of the defendant.”

12th. <e The court instructs you that if a servant of full age and ordinary intelligence, upon being required by his employer to perform other duties more dangerous and complicated than those embraced in his original hiring, undertakes the same knowing and understanding their dangerous character, he assumes the risk of the new duties, which are equally open and apparent to him as to his employer.”

The only modification in either instruction consisted in the insertion by the court of the words “ and understanding ” in each. This modification is complained of as error. We are of opinion that the modification did not impose any limitation upon the instruction which made it erroneous.

ISTor. can it be said, as a matter of law, that the hazard which led to the injury was a risk assumed by the employe. Although the evidence is that upon several other occasions Burns had done like work, and without protest, and if it could not be said that the mere fact of changing his employment from night watchman to special police officer was of itself negligence, yet it might well be found from the evidence that his service as an officer was not such as to bring him ordinarily into the place where this injury occurred, and thus to make the hazard arising from the pile of sand and gravel left near the tracks an ordinary risk of his employment. This, too, was a question of fact properly submitted to the jury.

We are of opinion that upon all the evidence the recovery must be sustained. The judgment is affirmed.