Taylor v. Felsing

Mr. Justice Boggs delivered the opinion of the Court. A careful examination of the evidence has convinced us the jury were warranted in finding the allegation of the declaration proven. The objection the count does not charge appellants with negligence is without force. The law required the master to exercise reasonable diligence, to provide safe machinery for the use of a servant and to exercise like degree of diligence to keep it safe. The allegation of the declaration is, appellants removed the “ clutch pulley ” and thereby rendered the machinery unsafe and did not replace it within a reasonable time, though they repeatedly promised to do so. It is sufficient to allege facts which ■ disclose an omission of legal duty, and is not essential the omission be expressly denounced as negligence. 2 Thompson on Neg., 1246; Zjednocjedie v. Sodeckie, 41 Ill. App. 339. It is urged it appeared from the evidence, appellee was aware of the danger which attended the execution of the work of cleaning the spout in the mode he adopted while the cog wheels were in motion; that he voluntarily undertook to perform the work and must be held to have assumed the danger, and that he did not act with ordinary prudence in going above the wheels while they were in motion, and for these reasons was precluded from recovering. The only way to open the spouts was to go above the 'cog wheels as the appellee did. The operation was attended with danger only when the cog wheels were in motion. But the master had removed the appliance devised and used for the purpose of stopping the'wheels when such work was to be performed, and as the jury found, and as we read and accept the proof, had repeatedly promised appellee to replace it. Appellee continued to perform the work in the usual manner under a reasonable expectation these promises would be complied with, and he enabled to control the motion of the wheels. The rule in such cases is, a servant may continue in the employment a reasonable time to permit the performance of the promise without being guilty of negligence, the risk being assumed by the master, who is responsible for any injury that may occur by reason of his failure to comply with his promise and his legal duty, unless the danger of continuing in the service and performing the task is so imminent no one not utterly reckless of his safety would attempt to perform it. Anderson Pressed Brick Co. v. Sobkowiak, 149 Ill. 573; Missouri Furnace Co. v. Abend, 107 Ill. 44. The evidence brings the case at bar within this rule and the jury were expressly and correctly instructed with regard to it. They did not regard the probability of receiving injury, by continuing to do the work, so imminent or great as to justify the conclusion only a reckless person would attempt to perform it. It is urged other means were provided whereby appellee could have stopped the cog wheels. First, by means of an appliance called the 16 friction clutch; ” second, by using the belt tightener; third, by removing the belt with stick. It however clearly appeared this clutch was not intqnded for the purpose and that its use would have stopped the movement of all the machinery used for scouring and cleaning the wheat for the space of near an hour. It was frequently necessary to clean the spouts, in order that the grain could pass—often two or three times in one day. The use of the “ friction clutch ” for the purpose in question, would have thus interfered with the delivery to the burrs of the requisite quantity of wheat, thus delaying the operation of the mill, and the jury were warranted in concluding, this would not have been permitted by appellants. It was clear it was not appellants’ intention or desire the “ friction clutch ” should be so used, and that it was not practicable to use it for that purpose. The evidence tended to show appellee would have been discharged had he insisted upon applying this “ clutch ” each time when it became necessary to go above the cog wheels to keep the spouts in order. It appeared the “ belt tightener” could not be operated by one man, and that no one was furnished to assist, nor was any one at hand in the basement to whom appellee could apply for such assistance, and further, it appeared if the belt was thrown from its place by the belt tightener or by a stick the aid of two or more men was required to replace it. ■ Altogether it was manifest it was impracticable to stop the cogwheels by means of the “belt tightener,” or by throwing off the belt with a stick, and also that the master did not expect or intend such .course should be pursued. Moreover we can not say but the jury were warranted by the proof in concluding he would not have permitted such course to have been adopted. The “ clutch pulley ” was especially contrived for that purpose, and the appellants no doubt intended to replace it in fulfillment of the promise but neglected to do so. • The appellee relying upon the promise continued to discharge his duty and was injured thereby. The risk thereby incurred was not assumed by him as incident to his employment, but devolved upon the master because of his promise and the duty imposed upon him by law in the premises. Authorities relied upon by appellant do not in our view assert a contrary doctrine, but only the well recognized general principle that obvious dangers which a servant voluntarily enters upon are impliedly assumed by the servant. Instruction Mo. 4, given for appellee, may be in a measure open to the criticism it assumes the machinery was defective. That the “clutch pulley” was necessary to render the machinery reasonably safe was fully proven and not contested. That it was removed and the machinery thereby to that extent not reasonably safe, was well established and not questioned. It is not error to assume as true a fact proven, and not denied, but admitted. The argument the machinery in question was not defective, and therefore the instruction was erroneous, is hypercritical. Practically, the machinery, lacking a clutch pulley, was defective. The court gave nineteen instructions at request of appellant and refused eighteen others asked in the same behalf. Those given advised the jury fully as to the law of the case, indeed were more favorable to the appellants than the facts of the case warranted. The complaint as to the refused instructions is, the sixth, twelfth, and twenty-seventh ought have been given. We think not. The rule a master assumes the risks occasioned by the use of insufficient and defective machinery which he is under promise to make safe is ignored in each of them.- The appellant requested the court to require the jury to return seven special findings. We think all of them might well have been refused, as they only called for findings as to evidentiary facts. Three, however, were submitted and answered. It is complained that the findings returned by the jury are inconsistent. Appellants regard the answers returned to the second and fifth questions consistent, and favorable to them. The second finding is, it was dangerous for a person to climb up and down as the plaintiff did while the cog wheels were in motion, and the fifth that the plaintiff knew at and before the time of his injury the cog wheels were uncovered. These facts the appellee admitted, in fact his case proceeded upon the theory they were true. The question upon which the case turned was not whether the performance of the work while the cog wheels were in motion was free from danger, but whether the danger was so apparent and probable as to render the undertaking reckless. The appellants had assumed the ordinary hazards of the undertaking unless the risks were such as only one indifferent as to his personal safety would voluntarily encounter. The jury did not regard the undertaking as free from danger, and so specially found, but they did not feel warranted in saying no one but a reckless person would endeavor to perform it. They thought a reasonably prudent man, relying upon a promise that all possible danger would be soon removed, would not refuse to perform the work for a short interval in the meantime. The special findings were not, therefore, inconsistent with the general verdict. We think the judgment right upon the merits, and the record free from error of reversible character. The judgment is affirmed.