Kath v. East St. Louis & Suburban Railway Co.

Mr. Chief Justice Hand delivered the opinion of the court: It is first contended by appellant that the court erred in allowing appellee to prove the pole which struck and injured deceased had been moved farther back from the track after the accident. If this testimony had been offered for the purpose of showing an implied admission of appellant that it was in the first place negligently set too near the track it would have been incompetent and its admission erroneous. (Howe v. Medaris, 183 Ill. 288.) No measurements appear to have been taken by any one as to the distance the pole was from the track at the time of the accident, until long after its occurrence. Appellee proved the distance between the pole and the track by witnesses who measured it in June after the accident. This appears to be the earliest date at which any measurement was taken. Appellee was allowed to prove that after the accident and before these measurements were taken the pole was moved farther away from the track. One witness testified for appellee that at the time he took the measurements, six months or more after the accident, the distance between the rail of appellant’s track and the pole was three feet and eleven inches, and another witness that it was three feet and nine inches. Appellant caused measurements to be made in October after the accident, by its employees, who were present at the trial and testified to such measurements. Their measurements corresponded substantially with the measurements made by the witnesses for appellee. The question to be determined was the location of the pole at the time of the accident, and as it had been moved before any measurements were taken it was competent to prove that fact. Just how far it had been moved was not proven. One witness testified, “They put a hole behind the pole and shoved it back another, that “on the east side they made a hole and moved it over.” We think, in view of the fact that the pole was moved before the measurements were taken, the evidence was competent. It is next contended that the distance poles should be set from the track of railroads operated by electricity in the manner appellant’s road was operated is an engineering question. The evidence in this case tended to show that the pole with which the appellee’s intestate’s head came in contact was crooked and was located nearer the track than other poles in the line, and that the crook or bend in the pole extended toward the track. If, therefore, it were conceded that the distance poles should be set from the track of a railroad operated by electricity is an engineering question, it cannot reasonably be contended that setting a crooked pole nearer to the track than others in the line, and with a crook or bend towards the track, is an engineering question. It is quite clear that if a straight pole be set four feet from the track, which appellant’s evidence tends to show was the usual distance, there could be no necessity for setting a crooked one nearer to the track and allowing it to incline or lean in that direction. It is further contended that the appellee’s intestate assumed the risk of being injured in the manner in which he was injured, and that the court misdirected the jury as to the law upon the question of assumed risk. The evidence fairly tended to show that the pole with which Antone Kath came in contact was set nearer the track than the other poles in the line and that it was crooked, so that the pole, some distance above the ground, leaned towards the track, and that opposite said pole the east ends of the ties were rotten, so that there was a sag in the track at that point. The deceased had passed over said track, while operating his car, at the point where he was injured, daily from April to December, 1904, and in the very nature of things must have known the situation of said pole and the condition of said track at that point, and, knowing said conditions, he assumed the risk of being injured therefrom. In Camp Point Manf. Co. v. Ballou, 71 Ill. 417, the doctrine was announced, which has been frequently reiterated by this court, that an employee cannot recover for an injury suffered in the course of the business in which he is engaged, from the defective condition of the machinery or appliances used therein, after he has knowledge of such defective condition, unless he continues his employment under a promise to repair, and it has repeatedly been held that an experienced adult employee is chargeable with knowledge of the ordinary conditions under which the business in which he is employed is conducted and assumes its ordinary risks and hazards, and will be presumed to have notice of and to have assumed all such risks and hazards which to a person of his experience and knowledge are or ought to be patent and obvious, (Chicago and Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492,) and that an employee assumes all hazards which are obvious and apparent and which are known to him, although such conditions are produced as the result of the master’s negligence, if he continues in his employment without a promise to remedy such defects. Browne v. Siegel, Cooper & Co. 191 Ill. 226; Elgin, Joliet and Eastern Railway Co. v. Myers, 226 id. 358. The court gave to the jury the following instruction upon the question of assumed risk:. “The court instructs the jury that the servant only assumes the ordinary risks of the business,—that is, the risks which are so open and obvious that they may be discovered by the servant by the use of ordinary care,—and the servant also assumes such risks as are known to him; but the servant does not assume extraordinary risks which are unknown to him and which could not be discovered by the exercise of ordinary care, and he does not assume risks due to the master’s own negligence.” This instruction was clearly wrong, in that it informed the jury that the deceased did “not assume risks due to the master’s own negligence,” as the authorities uniformly hold that an employee assumes all risks connected with the business in which he is employed of which he has notice, even though they are produced by the negligence of the master, if he continues in the employment; and in the form in which this instruction was given it was not cured by the instructions of the defendant which gave the correct rule to the jury upon the question of assumed risks. It positively lays down a rule directly in conflict with the correct one, and it has frequently been said in such case it is impossible to say which instruction the jury followed. City of Macon v. Holcomb, 205 Ill. 643. The appellee’s intestate lost his life by reason of his head coming in contact'with a trolly pole situated upon the east side of the track, while he was standing upon the front part of the car with his head projected beyond the east side of the car. Two witnesses,, only, saw the accident, and they differ as to the position in which the deceased stood at the time he was injured. The motorman testified the deceased stood upon the lower step upon the east side of the front part of the car; that he took hold of the car with his hands, and, facing the car, swung his body out from the car and looked towards the track in the rear of the moving car, and while in that position his head came in contact with the pole. Mrs. Plaputnik, who was at her house, some one hundred feet west of the car, testified the deceased stood in the car and put his head out of the east front door of the car and looked toward the direction from which the car came, and while in that position his head came in contact with the pole and he fell from the car. Whichever version is correct, it is apparent the deceased’s head would not have come in contact with the pole had he not placed it outside of the car. The car was running at a high rate of speed, slightly down grade, upon a straight track, in broad daylight. The deceased was familiar with the track and its surroundings and knew that the standing pole was near the east side of the track. There was no one on the car, and had the deceased desired to observe the effect of the car upon the flock of chickens he might have looked out of the rear of the car. Instead of doing so he put his head outside of the door of the car and attempted to look up the track over which the car had passed. Whether he did this out of idle curiosity, as his remark to the motorman, “I bet you have got that rooster,” would indicate, or whether he was attempting to see whether the rooster had been injured, to the end that he might report such injury, if any, to the railway company, as is contended by the appellee, will never be known. Suffice it to say, that where there are two ways of performing an act, one of which is safe and the other negligent, and the servant, without coercion, chooses the negligent one, there can be no recovery if in performing the act he is injured. It has often been held that a master is not bound to take more care of a servant than the servant may reasonably be expected to take of himself. (Pennsylvania Co. v. Lynch, 90 Ill. 333; Missouri Furnace Co. v. Abend, 107 id. 44; Karr Supply Co. v. Kroenig, 167 id. 560.) The questions of assumed risk and contributory negligence are ordinarily questions of fact, but where the facts and the inferences to be drawn therefrom are admitted they may become questions of law. There is little, if any, conflict in the evidence in this case, and if the evidence of the appellee be taken to be absolutely true, clearly it shows such a disregard by the appellee’s intestate for his own safety that there exists no basis in the evidence upon which to rest a judgment against the appellant. The judgments of the circuit and Appellate Courts will be reversed and the cause remanded. Reversed and remanded.