Heusner Baking Co. v. Trakal

Mb. Presiding Justice Ball

delivered the opinion of the court.

Appellee is admittedly a man of intelligence. He had followed his trade as a baker for thirty-eight years. The machine was wholly within his control. When he desired to start it he moved the shifter, which was just at his right, to throw the belt on the machine pulley; if he wished to stop it, he moved the shifter in the opposite direction to throw the belt off. As he stood at work, right before him was a small horizontal table upon which the dough fell as it oozed out from between the cylinders. Over the further side of this table and about eighteen inches above it stood-the two cylinders. The higher one, protected above by an iron guard, was the nearer to him. Back of these cylinders, coming down to the space between them, was a slide board, inclined at an angle of about forfcy-ñve degrees. It was three feet long, and two feet wide. Its surface was smooth. Anything placed thereon would slide toward the cylinders. Just before he was hurt appellee had started the machine. He then saw a spot of dirt or of dirty water about the middle of the slide board, and, without stopping the machine, he reached over the cylinders and attempted to remove it with a small scraper which lay on or by the machine. There was then no dough, or anything other than this spot upon the surface of the slide. That surface was motionless. The cylinders were then in motion. The only point of danger in their motion was where they came near together, which point was eighteen inches distant from the dirty spot appellee was about to remove. How or why appellee’s hand traversed the distance from that spot down to the point of danger, is not shown. Even appellee does not seem to know. There was nothing to catch his hand upon the slide board. There was no suction or draft to draw his hand into danger. The top guard prevented his arm from coming into contact with the cylinders. The machine was neither defective nor out of order.

The declaration charges that appellee did not know that this machine was dangerous, and that appellant did not warn him in that regard. The evidence shows that he knew that if his hand was caught between the cylinders it would be hurt. That point was the only point of danger, and was obvious to him. He knew how to start and to stop the machine. Appellant was not charged with the duty of warning him against a danger which was open and apparent, and which he knew. The only object of such an instruction is to point out to the servant the source of danger, so that he may avoid it. When the servant knows the danger as well as does the master, the reason which calls for the warning is wanting, and hence the duty to warn does not arise. It follows it was not negligence upon the part of appellant to fail to warn appellee of the dangers incident to the use of this machine. ' This principle is elementary. It is so plain that it does not require the citation of authorities in extenso. Doolittle & Pfaff, 92 Ill. App. 301, and cases cited; Groth v. Thomann, 110 Wis. 488, and cases cited.

If we look at this case from the point of assumed risk the result is the same. The master is not liable to the servant for injuries which result from dangers which are ordinarily incident to the employment, and which are known and understood by the servant. Jones v. Roberts, 57 Ill. App. 50; Howe v. Medaris, 183 Ill. 288; Herdman-Harrison M. Co. v. Spehr, 145 Ill. 329.

In order to take the case out of this general rule, it was incumbent upon appellee to show that he was ignorant of the peril and of the means of avoiding it. Hot only has he not done this, but it affirmatively appears that he did know both the danger and what ivas necessary to be done or to be avoided to escape it.

A careful study of the record in this case brings us to the conclusion that the trial court erred in refusing to instruct the jury at the close of all the evidence to return a verdict of not guilty. This conclusion renders it unnecessary for us to discuss other points raised by counsel.

The judgment of the Superior Court will be reversed without a remanding order. '