Barnett & Record Co. v. Schlapka

Mr. Justice Scott delivered the opinion of the court: The evidence in this case, the substance of which is recited in the foregoing statement of facts, tends to prove that the master did not exercise ordinary care to provide a reasonably safe place for the servant to work in; that the master had knowledge of the danger; that the servant did not know of the danger and had not equal means of knowing with the master. The peremptory instruction was therefore properly refused. Lake Erie and Western Railroad Co. v. Wilson, 189 Ill. 89; Momence Stone Co. v. Turrell, 205 id. 515; Western Stone Co. v. Muscial, 196 id. 382. The danger was latent in its character, and arose, in great measure, from the formation of the soil through which the tunnel was excavated. Appellant had notice of this danger from the fact that, a few days before, a similar accident had occurred in another tunnel, through the same sort of soil, a short distance from this one. Appellee inquired, before going into the excavation, whether there was danger of the character which actually existed, and the reply of appellant’s superintendent was, substantially, an assurance that there was none. He then went into the ditch and worked in one of the trenches along the side a short time, when, as he says, there were more men there than were needed, and he went outside to shovel away the earth that was thrown out on the side of the tunnel. Shortly after this' it was discovered by the superintendent- that the bank on one side was breaking away and apt to fall in immediately. ■ The men then remaining in the trench on that side were ordered out of the trench, but not out of the tunnel, on this account. Appellee swears that he heard no such order, and it is earnestly insisted that when he went back after this, helping a carpenter to carry a board in, he assumed the risk of injury from the accident which thereafter occurred. The answer to this is, that the evidence on his part tends to show that be had not been advised of the impending danger. It does not appear that he had, or ought to have had, knowledge of any change in conditions which existed at the time he had been assured by the master’s representative that there was no danger of the kind which in fact actually existed. He went into' the tunnel carrying one end of the board in consequence of a request made by Brown, the carpenter. The evidence justifies the conclusion that the superintendent was present, heard this request and saw appellee complying therewith. When they got into the tunnel with the board, plaintiff walked in the trench on the side where the bank caved in. As he and the carpenter carried the board along the tunnel, appellant’s foreman crawled.under it to get out of their way. Neither the superintendent nor the foreman said anything to him at that time in regard to the existence of the danger, and he swears that the board was to be used in making the box in the trench, while those who testify for- appellant swear that it was to be used in shoring the bank where the break was anticipated. Appellant cites Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, and other similar cases, in support of the doctrine that the general rule that it is the duty of the master to use ordinary care to provide a reasonably safe place in which the servant may do his work is not applicable where the character of the work is such that the relative safety of persons there employed necessarily varies from time to time as the work progresses and the work being done at times renders the place dangerous. It will be found, on examination, that these cases apply only where the work being done necessarily renders the place dangerous, as in mining coal, blasting stone, wrecking buildings, and other matters of a like nature. In this case the banks of the tunnel could have been given greater slope at a slight increase of the expense, and this would have entirely obviated the danger, or the sides could have been shored throughout the entire length as they were throughout a portion of their length. This last expedient was said by witnesses for defendant below to be impracticable,—a statement which the jury may possibly have discredited, as defendant also sought to show that it attempted to shore the side of the tunnel where this break occurred as soon as it was discovered that the earth had begun to give way. Objection is made because the first instruction given on the part of appellee advised the jury that if plaintiff had some knowledge of the attendant danger, still that if, in obedience to the command of the foreman, who had knowledge of the danger of obeying the command, the plaintiff placed himself in a position of danger, such knowledge as the plaintiff had would not defeat his right of recovery, if, in obeying the command, he acted with a degree of care and prudence and diligence that an ordinarily prudent man would have used under the circumstances. We think this instruction in accordance with the view expressed in Western Stone Co. v. Muscial, supra, where it is said (p. 386): “Even had appellee had some knowledge of the defect in the bank, yet the order of the master to proceedwith the dangerous work would relieve him of the assumption of the risk, unless the danger was so manifest that a person of ordinary prudence would not have incurred it.” It is said, however, that if the instruction states a correct proposition of law, it was improperly given in this case, because it would lead the jury to conclude that they might find that appellee was in the tunnel at the time of the accident in consequence of the order given him by the foreman to go there in the morning, while appellant’s position is that he was there, when he received the injury, as a mere volunteer or at the request of the carpenter, who seems to have been a fellow-servant. In view of the fact that the evidence tends to show that the superintendent was present and heard the carpenter request appellee to return to the ditch and saw appellee complying with the request, and that the foreman crawled under the board as it was being carried into the trench to g'et out of the way, and neither said anything to advise appellee of the changed conditions or of the order that had been given to keep out of the trench in which plaintiff walked with the board, we think the conclusion not unwarranted that the conduct of the superintendent and the foreman at that time amounted to an affirmance or repetition of the order given by the foreman earlier in the day. The objection to the instruction is not well taken. The fourth instruction given on behalf of the plaintiff was in reference to the measure of'damages, and authorized the jury to take into consideration the effect, if any, of the injury in the future upon the plaintiff’s ability “to work in his ordinary and former line of labor.” This is said to exclude from the jury the consideration of what plaintiff might be able to earn in other lines of employment. The instruction had no such effect. It merely authorized the jury to consider the plaintiff’s decreased ability, if any, to engage in his former occupation. It left them free to consider his earning capacity in other lines of employment. An instruction identical with this one in this respect was approved in Illinois Central Railroad Co. v. Read, 37 Ill. 484, and has been ever since treated by this court as a correct statement of the law. The court modified the defendant’s fourth and eighth instructions, so that, as given, they advised the jury that if the defendant’s “conduct and orders (having due regard to the safety of plaintiff) were such as a reasonably prudent person having a like duty to perform as the defendant would have done or given under similar circumstances, then the defendant was not negligent.” The modification consisted in the insertion by the court of the words in parentheses, and the argument is, that the instructions, as given, called special attention to the duty which the defendant owed to the plaintiff, which is said to have been no greater than its duty to its other servants, and the trend of the argument seems to be that if the instruction had advised the jury that the defendant must have due regard to the safety of its servants it would have been unobjectionable. We think in that form it would have been the subject of much more serious objection. The only duty in that respect for the consideration of the jury in this case was the duty owing to the plaintiff. The jury were being advised that the defendant was free from liability for an injury resulting from such conduct and orders as might be expected of a reasonably prudent person, and in that connection it was not improper to call their attention to the obligation resting upon the defendant in regard to considering the safety of the plaintiff. That is one of the things which a reasonably prudent person would consider under similar circumstances. By the ninth instruction defendant asked to have the jury instructed that if plaintiff “had equal means and capacity” with the foreman of knowing the condition of the side of the tunnel and the danger therefrom, and that the foreman, before the plaintiff commenced work, expressed an opinion that the side of the tunnel was safe, the plaintiff would have no right to rely upon such opinion. The court’s modification consisted in the insertion of the words “and capacity.” The instruction, both as requested and as modified, is misleading. It should not have been given in either form, because the jury were apt to conclude therefrom that the servant should have made an examination to determine whether the place was safe. He was not required by the law to make an investigation for the "purpose of learning the nature of the soil, and the danger, if any, resulting therefrom. He could not close his eyes tp open and obvious dangers, but he had a right to presume that the master had performed its duty by using ordinary care to provide him a place reasonably safe in which to work, and it was not his duty to make an examination for the purpose of discovering whether there were latent or hidden dang'ers. (Ross v. Shanley, 185 Ill. 390; Western Stone Co. v. Muscial, supra.) What the rights of the respective parties would be if the danger was one that was apparent upon ordinary observation, or where the danger was actually discovered by the servant, this instruction does not attempt to advise the jury. The error in giving this instruction was one that favored appellant. It cannot complain. By defendant’s eleventh instruction it is sought to have the jury informed that the plaintiff could not recover if the injury was the result of an accident without the fault of either plaintiff or defendant. The court modified the instruction by inserting a definition of the word “accident,” which was not improper. The judgment of the Appellate Court will be affirmed. Judgment affirmed.