Pullman Palace Car Co. v. Connell

Mr. Justice Sears delivered the opinion oe the Court. It is contended by appellant that the verdict is not supported by the evidence, because, first, the evidence discloses, it is claimed, that the injury resulted from an assumed hazard; and, second, it shows, it is claimed, that appellee was guilty of contributory negligence. As to the contention that the injury to appellee resulted from an assumed risk, the brief of counsel for appellant is deserving of commendation for the exceedingly frank and candid manner in which it presents the evidence for the consideration of -the court. A judicial statement of the substance of the evidence could not be more fair and impartial. We quote from the brief: “It had been the custom during the entire ten years that Connell had worked there, for the oiler to open these trap-doors as often as twice a day during working hours in order to oil the shafting below. When he did so the door would be thrown over flat on its back, toward the east. The oiler would then either stoop and oil from above, or he would get down into the tunnel, which was four or five feet deep, when his head would project above the hole. For such oiling the door would remain open perhaps a minute. There was evidence on behalf of defendant tending to show that sometimes the oiler went out of sight in the opened hole in order to oil bearings situated between holes, and that.in such case a hole would remain open and unguarded some four or five minutes, but there was a contest made upon this evidence, so that probably it should not be considered in connection with a request for a peremptory instruction.” From this evidence, thus fairly stated, it seems to us that the conclusion is inevitable that the verdict is sustained so far as the question of assumed hazard is concerned. Upon the conflicting evidence the jury might find that it was not usual and customary in the business of appellant to leave these hatchways open and unoccupied, i. e., unguarded. All that is undisputed is that the hatchways were frequently opened and left uncovered while occupied by a workman, engaged in oiling the machinery—when, as one of the witnesses testified, it would be difficult to fall into without pushing the workman away. As a result of this custom of the business, no risk could be said to have been assumed as to dangers arising from carelessly leaving the hatchway uncovered and unoccupied. It is urged that it is a well-established rule that trapdoors, hoistways, and similar openings in floors, being a usual and necessary part of the equipment for business in most factories, the mere fact of their existence and use is no evidence of negligence, citing Kolb v. Sandwich Ent. Co., 36 Ill. App. 419. It is true that no negligence of appellant as a basis of recovery here can be predicated upon the mere existence or location of these trap-doors, nor upon the use of them in the manner in which they were customarily used in the course of business. For as to such existence, location and customary use, the doctrine of assumed hazard applies. But the jury were warranted in finding, and, in effect, did find, that there was here a use which was not customary and usual in the course of the business, i. e., the careless leaving of one of them open and unoccupied. The United States R. S. Co. v. Wilder, 116 Ill. 100; Wharton on Neg., Sec. 206. We come, then, to the question of contributory negligence on the part of appellee. It is urged that the evidence discloses that this uncovered hatchway was perfectly open to view and could and would have been seen by appellee had he been looking at his feet or his pathway. As to whether a failure to look where one is stepping constitutes $>er se contributory negligence, the authorities may seem to differ. In many cases where the evidence disclosed simply that the plaintiff failed to look where he stepped, and thereby stepped into a place of danger and was injured, it has been held that such failure was negligence, and did preclude a recovery. Clark v. Murton, 63 Ill. App. 49; Village of Kewanee v. Depew, 80 Ill. 119; East St. L., I. & C. S. Co. v. Crow, 155 Ill. 74; Casey v. City of Malden, 40 N. E. Rep. 849 (Mass.); Harty v. Cromwell S. S. Co., 74 Fed. Rep. 748. It is to be observed, however, that in these cases there were no facts relieving the plaintiff from his duty to look where he stepped, and thereby use some diligence to discover what lay before him. In other cases it has been held that a failure to so look at one’s pathway does not necessarily preclude recovery, but must be submitted to the jury to determine whether such failure does constitute, in the given case, a lack of ordinary care. City of Chicago v. McLean, 133 Ill. 148; City of Chicago v. Moore, 139 Ill. 201; City of Chicago v. Babcock, 143 Ill. 358, and other cases. In most of the cases so holding it will be found upon examination that there were facts which tended to relieve the plaintiff from the charge of negligence by reason of failure to keep an oversight of the pathway upon which he walked. And it is seen, from an examination of all the cases, that it is after all the test of the possibility of reasonable minds differing upon the question of what conclusion should be drawn from the facts, which must govern. If there be no fact in evidence to relieve the plaintiff from being charged with negligence in failing to look out for his own safety, by seeing where he walked, it could hardly be said that reasonable minds could differ as to his negligence. But when such facts do appear as would warrant different conclusions in reasonable minds in this behalf, it is for the jury to determine. There is no absolute rule that such failure to look willy><?r se bar a recovery. The facts here, which might operate to relieve appellee from such charge, are to be found in the evidence showing that he was hurried by the order of the timekeeper; that the smoke and glare of the furnaces would tend to obscure his sight, and that the piles of iron, anvils, etc., obliged him to pay some attention to' them as obstructions in his way. Whether these facts were sufficiently established and operated to excuse appellee’s failure to see the open hatchway was, we think, a question for the jury. Appellant complains of the refusal of the trial court to give the second, third and fourth instructions proffered by it. The second and third tell the jury that certainfacts would not establish negligence, and the giving of either instruction would be, in effect, to peremptorily direct the jury to find for the appellant. The third incorrectly directs that if it had been customary to open the trap doors in question several times a day, the risk was an assumed one, and no recovery could be had- by plaintiff. It ignored any distinction between the opening of it for purposes and in a manner which involved no. hazard, as was customary, and the unusual and careless opening of it as here alleged. There was no error in refusing these instructions. The eighth and ninth instructions, given by the trial court of its own motion, are complained of, but mainly upon ground of objection which goes to the sufficiency of the plaintiff’s case. This we have already considered and disposed of. The seventh and eighth instructions, taken together, inform the jury, in substance, that plaintiff assumed the ordinary hazards attending the customary opening of the trap doors—whether plaintiff knew of such custom or not. We think appellant has no cause of complaint as to these instructions. It is urged that the declaration is faulty and insufficient, in that it does not allege that by reason of defendant’s negligence in leaving the hatchway uncovered the plaintiff fell therein. It does allege that defendant negligently left it uncovered, and that plaintiff fell into it. In Keegan v. Kinnare, 123 Ill. 280, the rule here governing is thus stated: “ When there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.” 1 Chitty’s Pleading, (7th Am. Ed.), 711, 712, *712; Helmuth v. Bell, 150 Ill. 263. It is assigned as error that the trial court sustained an objection to the following question: “ How about whether it was generally known they (the hatchways) were open at different times during the day ? ” Irrespective of the form and propriety of the question, no harm could have resulted to appellant from its exclusion, for by the seventh instruction the court told the jury, at appellant’s request, that the plaintiff assumed hazards incident to customary practice as to opening the hatchways, whether plaintiff knew of the custom or not. It is also complained that the court excluded answer to this question put to one Kennedy: “ When you noticed him coming, what did he seem to be looking at?” There was no error in this ruling. The witness had already testified, “ I did not notice what he was looking at.” The same witness was permitted, over objection of appellant, to testify that the hatchway had been open for an hour and a half before the accident. We think that this evidence was properly admitted.- The testimony of the physicians, Gray and McLean, as to the probable effect of the injuries upon plaintiff’s ability to work as a blacksmith, if improper, could only have affected the award of damages, and in no way the issue as to liability. There is no complaint that the verdict is excessive. After careful examination of the whole record, we are satisfied that the judgment should be affirmed.