Knox v. American Rolling Mill Corp.

Mr. Justice Carter delivered the opinion of the court: At the close of plaintiff’s testimony, and also when all the evidence had been introduced, appellant offered an instruction asking to have a verdict directed for defendant. These instructions were refused and exceptions duly taken. It is insisted that there was no evidence in the' record justifying the verdict; that appellee not only assumed the risk of the accident, but was guilty of contributory negligence. As there is evidence in the record fairly tending to support,the verdict of the jury, which has been approved by the trial court and the judgment of the Appellate Court, we cannot inquire into those questions, except in so far as to find whether the law was properly applied on the trial. Counsel for the appellant have not in their argument clearly distinguishéd between contributory negligence and assumption of risk. These subjects are different and distinct in law, although they may both arise under the facts of a particular case. (Chicago and Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492.) In that case we said (p. 502) : “Every person suing for a personal injury must show that he was in the exercise of ordinary care and caution for his own safety, so that the question of contributory negligence may be involved in every case; but an employee may have assumed a risk by virtue of his employment or by continuing in such employment with knowledge of the defect and danger, and if he is injured thereby, although in the exercise of the highest degree of care and caution and without any negligence, yet he cannot recover.” The evidence is uncontradicted that during the time of appellee’s employment by appellant the pit in question had always been covered with-planks up to within a day or two of the accident; that the employees were accustomed to go back and forth across these planks in passing through the mill, though there was another way that could be taken if desired; that when the pit was so covered there was no danger in crossing. The appellee swore positively that the planks had never been taken up before while he was at work for appellant, and that he had no knowledge or notice of their being taken up at this time, before he fell into the pit. There is no evidence tending to show, in the slightest manner, that he had notice of the planks being up before the time of the accident. If the defects axe open and obvious, that fact is generally sufficient to charge an employee with knowledge, and knowledge may also be inferred from his familiarity with the working place or machinery with which he is required to work. (3 Elliott on Railroads,— 2d ed.—sec. 1312.) An employee assumes all the hazards which are obvious and apparent and which are known to him, although such conditions were produced by the master’s negligence, if he continues in such employment without the master’s promise to remedy such defects; (Kath v. East St. Louis Railway Co. 232 Ill. 126; Elgin, Joliet and Eastern Railway Co. v. Myers, 226 id. 358;) but as there is no evidence in the record tending to show that appellee had knowledge or means of knowing of this defect, there is no basis in the evidence for the contention that he acquiesced in the defective condition caused by the removal of these planks and assumed the risk, (Davis Coal Co. v. Polland, 158 Ind. 607,) or that he continued in the service of appellant without objection after he had knowledge. The question of assumed risk not being in the case, there is no ground for appellant’s contention that the giving of appellee’s first instruction was reversible error, in that it omitted to refer in any way to this question. The objection to the above instruction, and also to instruction 4 given for appellee, that they fixed the time when he should be using and exercising reasonable care for his own safety as “at the time of the injury,” and therefore did not cover all the time of the transaction leading up to the injury, is without force. We do not think the jury would have any difficulty, under any of these instructions, in understanding the time meant. What was said by this court in Peterson v. Chicago Traction Co. 231 Ill. 324, with reference to an instruction which was, if anything, more open to this objection than the one here in question, disposes of appellant’s contention on this point. It is further insisted that the appellee cannot recover because he was guilty of contributory negligence in not taking a torch before attempting to pass through the engine room. If the planks had not been removed from across the pit it certainly could not be contended that appellee would have been injured. It is true that some of the witnesses say the workmen used torches about their work, but appellee testifies that during all the time he acted as foreman there he never took a torch in going about the building. Whether or not he was guilty of contributory negligence under these circumstances was a question for the jury. All the evidence that was offered by either party on this question was submitted to the jury under proper instructions, and as there was evidence tending to support appellee’s contention, the judgment of the Appellate Court approving that of the circuit court and the finding of the jury is binding on us. Appellant makes the further contention that the court erred in permitting appellee to be examined as to his former occupation as a puddler and the wages that were generally paid for such employment. The proper inquiry in matters of this kind is the comparative capacity of the plaintiff to earn money at the time of and after the injury. (Chicago and Joliet Electric Railway Co. v. Spence, 213 Ill. 220.) All evidence tending to show the character of plaintiff’s ordinary pursuits, and the extent to which the injury has or will prevent him from following such pursuits, is admissible. (4 Sutherland on Damages,—3d ed.—sec. 1248; Graham v; Mattoon City Railway Co. 234 Ill. 483.) Appellee, at the time he testified, in 1907, was fifty-three years old. The accident occurred five years before. The evidence shows that at the time of the accident he was in good physical condition and able to work at his former occupation of puddler. He, however, testified that he had not worked at puddling for two years, but that at the time of the accident “the job was still open for me to go back to.” He further testified that his arm was in such condition that it would be impossible for him, at the time he testified, to perform the work of a puddler. The wages that he received as a puddler were more than he was receiving as night foreman at the time he was injured and more than he was receiving at the time he testified. The facts in this case plainly distinguish it from Chicago and Joliet Electric Railway Co. v. Spence, supra, and other cases relied on by appellant on this point. The evidence offered was proper to be considered, together with all the other evidence as to plaintiff’s earning capacity, in fixing the amount of damages. (West Chicago Street Railroad Co. v. Dougherty, 209 Ill. 241.) Furthermore, this testimony only related to the amount of damages, and had no bearing on the question whether defendant was liable as charged in the declaration. It is the duty of the master to use reasonable care to furnish a reasonably safe and proper place for the servant to work. (Illinois Steel Co. v. Ziemkowski, 220 Ill. 324; Donk Bros. Coal Co. v. Thil, 228 id. 233.) Appellee’s duties required him to go to all parts of the building in question. The planks were removed in the absence of appellee. He had a right to assume that he would be informed by his master of any unusual dangers or. increased hazards that had been created at the plant during his absence. It was the duty of appellant, in the exercise of ordinary care, to warn him of any changes which would increase the danger of his employment, so that he might guard against the new hazard. There is no evidence in the record that tends to show that any such warning was given. The evidence tends to uphold the verdict of the jury. Iroquois Furnace Co. v. McCrea, 191 Ill. 340; Deering v. Barzak, 227 id. 71. We find no reversible error in the record. The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.