Howe v. Medaris

Mr. Presiding Justice Windes. after making the foregoing statement, delivered the opinion of the court. It is contended, first, that appellee knew the condition of the paper cutter and assumed the risk; second, that the evidence fails to show negligence of appellants; third, that appellee’s injury was the result of his own negligence; fourth, that there was error in the admission and exclusion of evidence, and fifth, that there was error in giving and refusing instructions. First. The evidence is voluminous and conflicting on the questions as to assumed risk, negligence of appellants and appellee. We have examined it carefully and critically, in the light of the able and exhaustive arguments of counsel, and are of opinion that in all three of these respects it presents questions peculiarly for the consideration of the jury. Reasonable and fair-minded men might well reach different conclusions from the evidence on all these questions, and when that is the case it is the duty of the court to submit the cáse to the jury Offutt v. World’s Col. Expn., 175 Ill. 472, and cases there cited; McGregor vs. Reid, Murdoch & Co., 178 Ill. 464. A discussion of the evidence in detail and in the line of counsel’s argument would unnecessarily extend this opinion and serve no useful purpose. We cannot say that the evidence shows that appellee had such a knowledge of the condition of the paper cutter that he knew and appreciated the danger to which he was exposed in its operation, and therefore assumed the risk of injury. It is not sufficient to debar him from recovery that he could see and know the defective condition of the machine, but the danger to him of operating it must have been so open and apparent that no person ordinarily prudent would have encountered it. This was a question for the jury. Dallemand v. Saalfeldt, 175 Ill. 310, and cases cited; Offutt v. World’s Col. Expn., supra, and cases cited; C. & E. I. R. R. Co. v. Knapp, 176 Ill. 127. As to the questions of appellants’ and appellee’s negligence, the verdict is not, in our opinion, manifestly against the weight of the evidence, and while it may and could reasonably be said that a verdict for appellants on both these questions would not be disturbed by this court, we feel it our duty, after full deliberation, not to disturb the verdict for appellee. ¡Second. We are of opinion that there is no reversible error in the admission of the evidence as to the width of the paper and the difficulty of removing it from the machine, because, though no negligence in that regard was alleged, it was part of the res gestae, and no claim of negligence in that respect appears to have been made by appellee. Also no objection was made to the evidence at the time it was offered, and no motion was made to exclude it until the close of all the evidence and after appellants had submitted evidence to contradict it. Appellants can not complain of this evidence after having placed before the jury their evidence in opposition. f We think that the evidence as to a change in the condition of the machine the day after or the day following the accident, should not have been submitted to the jury. Gormully, etc., Co. v. Olsen, 72 Ill. App. 32, and cases cited; Marder, Luse & Co. v. Leary, 137 Ill. 319-23. But we think it is not reversible error. Appellants’ counsel, in his argument, says of this evidence that it “is of the flimsiest character possible, and there is no change in the machine pointed out.” Moreover, two witnesses were called by appellants, who testified there was no change made in the machine after the accident, and that it was in the same condition even to the time of trial as at the time of the accident. We can not say, in view of the fact that no change was pointed out, and that two witnesses testified there was no change made, that it is at all probable the jury were misled or that their verdict was to any degree based on appellee’s evidence in this respect. Objection is also made that the court excluded competent and material evidence offered for appellants. We deem it unnecessary to refer to it in detail. There was no reversible error in the court’s rulings in this respect. Third. There is no reversible error in the court’s rulings on instructions. As to appellants’ instruction complained of, it is said, that the jury were told in estimating appellee’s damages, the} were not instructed to base their verdict in this regard on the evidence. We think this contention is not tenable when the whole instruction is considered. The eleventh instruction of appellants was properly refused, because it omits the element of appellee’s appreciation of the danger to which be was exposed. Dallemand, Offutt and Knapp cases, supra. "What has been said with reference to the evidence of the witness Finn disposes of the alleged error in refusing to give appellants’ thirteenth instruction. There being no reversible error, the judgment is affirmed.