Kolb v. Sandwich Enterprise Co.

Lacey, J. It is insisted by the appellant that the appellee was negligent in placing the trap-door so near the exit of the elevator, and in a very dangerous position, and also in having the trap-door open at the time, it not being very light in the. room, without warning the deceased of the fact of its being open; that it was a clear case for the determination of the jury, and the evidence tended, at least, to support the charge of negligence. The appellant’s counsel contends that if the evidence tends to prove the negligence, then the court' below had no legal right to take the case from the jury, citing Penn. R. R. Co. v. Conlan, 101 Ill. 93, and Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416, in support of the rule. We think the rule, as claimed, is too broad, or, at least, to the extent the counsel appears to claim for it. The words, “tends to prove,” may be understood to mean in the least degree, or to mean, tends to prove the issue to the extent that a jury, after allowing everything in plaintiff’s favor that the law allows, may legally find a verdict in favor of the plaintiff. We think the latter rule has been established by the Supreme Court. However, if there is a conflict of the evidence as to a material point in the evidence, then such point must be regarded as established, where the court interferes to take the case from the jury. But if, after all points are established that the evidence warrants the jury in finding, and there are not then in the case sufficient facts established which would authorize a jury to find a verdict in appellant’s favor, then the court has the right to take the case from the jury. We cite, as clearly establishing this rule, Simmons v. C. & T. R. R. Co., 110 Ill. 340, 346; Abend v. T., H. & I. R. R. Co., 111 Ill. 202; The City of East St. Louis v. O’Flynn, 119 Ill. 200; Bartelott v. Int. Bank, 119 Ill. 259; The People ex rel. v. Board of Supervisors of Madison Co., 125 Ill. 334. This, then, being the law, the next point to consider is, does the evidence, allowing all facts which the evidence tends fairly to show to be established, entitle the appellant to recover? Or would a verdict of a jury so finding be sustained? We think not. It appears that the deceased had been in the employment of the appellee for about seven years and knew all about the situation of the elevator and the trap-door. He had for some time been engaged in the very work at which he was engaged at the time he lost his life, and also knew or must be held to know that the trap-door was in constant daily use, that is, when occasion required, in pulling lumber and stuff up from the third to the fourth story, and that the trapdoor was at any time liable to be open for that purpose. He remained in the employ of the company knowing all these facts. The evidence shows that it was light enough to work, but not as light as day, when the accident happened. But with the kno Hedge on the part of deceased that the trap-door was liable to be open at any time during working hours, it would seem that the darker it was in the room the more caution would be required of deceased in keeping a look-out for the trap-door, when he was working about it. It is the law in this State, that “ where the defects in the machinery and appliances are as well known to the servant as the master, the servant must be regarded as voluntarily incurring the risk from its use.” Penn. Co. v. Lynch, 90 Ill. 333; St. L. & S. E. Ry. Co. v. Britz, 72 Ill. 356; I., B. & W. R. W. Co. v. Flanigan, 77 Ill. 365; Cummings v. Collins et al., 70 Mo. 520; Penn. R. M. Co. v. Hankey, 93 Ill. 580; Clark v. C., B. & Q. R. R. Co., 92 Ill. 43; Simmons v. C. & T. R. R. Co., 110 Ill. 347; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417. It is also laid down as a rule of law that “ trap-doors, hoist-ways and similar openings in floors, are a usual and necessary part of the machinery of business in most warehouses and manufactories; and the mere fact of their existence and use is no evidence of negligence. Shearman & Redfield on Negligence, Sec. 508 (3d Ed). The deceased having entered into the employment of the appellee, and having become familiar with the appliances and machinery in the building and the manner of their use, and not making a protest, and continuing in its service without exacting any promise to change, took all the risk incident thereto, and the appellee owed him no duty to change. Hence where there is no duty there can be no negligence. C., R. I. & P. R. R. Co. v. Eininger, 114 Ill. 79; Cooley on Torts, 659. There can be no question in this case of respondeat superior, as the work all proceeded in the manufactory on the morning of the accident and at the time of it, in the usual and customary course. No special orders were given to go into a known dangerous place. The carrying of the material up to the fourth floor was the work he was partly engaged in all the time. The fact that the trap-door was open was no more than usual in the course of business. If the appellant’s intestate had looked behind him and used any care at all, he could have seen the trap-door was open, for there was a man lying beside it. The appellant sought to prove by a witness or witnesses that, in the opinion of the witness, a trap-door like the one in question, situated as this one, was dangerous to a man employed like deceased; but the court excluded the proposed evidence and we think, rightly. For first, it could make no difference to deceased, as he continued to work with it in that way, and as we have shown, took all risk of such danger; and secondly, it was not competent to prove a fact of this kind by the opinion of a witness. Of this matter the jury could judge as well as the witness, and it was its province so to do. Nor was it competent to show that others had been hurt at the trap-door previously. This, for the same reason,- and besides, as a rule of law, was not permissible. It was res inter alios acta, and hence not proper. Similar offers to prove similar matters were excluded, which we think -rightfully. It is unnecessary to notice them in particular. There appears to be no error in the record of the court below, and the judgment is therefore .affirmed. Judgment affirmed.