American Brake Shoe & Foundry Co. v. Hank

Mr. Presiding Justice Freeman

delivered the opinion of the court.

The original declaration contained two counts.

An additional count appears to have been filed upon the day the verdict was rendered, it is said, without leave of court first obtained. Four days after, an order appears of record, giving leave to file additional counts.

It is urged in behalf of appellant that the additional count filed without leave first obtained should not be regarded as a part of the record, and that final judgment should not have been entered without a plea to such additional count first filed or an issue made thereon. On the face of the record the count in question appears to have been filed before verdict. It recites that leave of court was “first had and obtained.” It appears that leave was obtained to file additional counts, although the order does not appear to have been entered until four days after the count in question had been filed. The order was, however, notice to the defendant, if brought to its attention, that plaintiff intended to file such additional count, and it was open to appellant to move to strike it from the files. Nothing of this kind was done, nor so far as appears was attention of the trial court ever called to the alleged error, either on the motion for a new trial or by motion in arrest of judgment. Nor is the point raised here by any assignment of error. We are inclined, however, to agree with appellee that the additional count is in the main but a restatement of the two original counts, and that at least after verdict these counts must be deemed sufficient.

It is argued that “where a servant is temporarily engaged in more hazardous work than that for which he was employed, he takes upon himself all such risks incident to the work as are equally open to the observation of himself and the master” (Consolidated Coal Co. v. Haenni, 146 Ill. 614-625); and that in this case appellee was equally cognizant with appellant’s foreman, or ought to have been, of the presence of oil in the pit and of the fact that it was liable to be ignited if brought in contact with molten metal. It is true appellee in common with the other workmen was aware that small quantities of oil sometimes got into the pits apparently in the course of its ordinary use as fuel, and that this was liable to be ignited by melted iron. It does not, however, appear that any ' large quantity had ever before gotten in, nor that appellee knew or ought to have known that any such considerable quantity had- leaked in from the broken oil pipe. In the case last above cited it is said: “It is when the servant works with defective machinery, knowing it to be defective or dangerous, that he assumes the risks incident to its use. Not only the defects, but the dangers must be known to him.” The master or foreman placed in charge of and con-, ducting' a manufacturing business will be presumed to know and to be familiar with the dangers latent and patent ordinarily accompanying the business. In the case at bar the foreman knew of the danger which it may be for the moment he overlooked. He admits that he “knew how much oil there was in the pit. I knew there was considerable oil there;” whereas it appears from appellee’s testimony that the latter “didn’t see the oil around there, simply from the fact that I didn’t pay any attention to it. I didn’t know whether any oil escaped into the pit or not.” The accident occurred at about half after four o’clock in November. “It was dark in there at the time and a person had to look pretty good to see whether there is any oil there at that time or not.” Appellee states that he had not seen the oil running from the broken pipe, and that when sent to get a man to fix it, he left right away and saw no more of it. It is to be remembered that there is no dispute as to these facts, no conflict in the evidence. We are unable to .find evidence tending to show contributory negligence on the part of appellee. He obeyed the order of the foreman, unconscious that by so doing he was. incurring the special danger in consequence of which he was injured. “An employe does not assume all the risks incident to his employment, but only such as are usual and ordinary, or, if extraordinary, such as are so obvious and expose Mm to danger so imminent that an ordinarily prudent and careful man would anticipate injury as so probable that' in view of it he would not enter upon or remain in the employment.” Malott v. Hood, 201 Ill. 202-207. He has a right to presume that he will not be carelessly - and negligently exposed to unusual risks, that is, risks not necessarily resulting from his occupation and avoidable in the use of ordinary care and caution by the employer. Alton Paving Brick Co. v. Hudson, 176 Ill. 270—273. When ordered, as appellee was in this case, to do certain work, he was not required to stop and consider whether he would be exposed to special danger in doing it. He had a right to assume that he would not be ordered into such danger. It was not contributory negligence on his part to obey such order, having no knowledge of the danger of so doing. Ill Steel Co. v. McFadden, 196 Ill. 344; Pressed Steel Car Co. v. Herath, 207 Ill. 576-581.

Complaint • is made of certain instructions given and of the refusal of others. We have considered these objections. No useful purpose would be served by quoting the instructions in full. It must suffice to say that we find no serious error in the fifth instruction given at request of appellee. The italicized portion, to which objection is made, is in substance a mere repetition of what goes before. Inasmuch as it is undisputed that appellee was acting’ under the express order of the foreman in holding the ladle over the pit and was ignorant of the danger, no question as to whether he was exercising proper care for his ■ own safety is involved. It was not erroneous, therefore, to refuse appellant’s fifth instruction.

Finding no material error, the judgment must be affirmed. ■

Affirmed.