Chicago Edison Co. v. Davis

Mr. Justice Freeman delivered the opinion of the court. It is contended that the undisputed facts show there was no negligence on the part of appellant, as a matter of law, and that there can be no liability. The ground upon which appellee’s attorneys insist the judgment must be sustained, is the alleged failure of the master to furnish appellee a safe place in which to work. The particular failure in this respect is claimed to have been the removal, without notice to appellee, of the “breeching” which had constituted a barrier on the east side of the platform where appellee fell off. While there is a statement in the declaration that “ it was so dark there that he (appellee) was unable to see the aforesaid danger to himself,” it is not charged that this was owing to any negligence of appellant. The general rule that it is the duty of the master to use ordinary care to provide a reasonably safe place in which the servant may do his work, is not applicable at all times where the servant has been expressly engaged to do work, the nature of which is destructive of the building or structure upon which he is employed. Clark v. Liston, 54 Ill. App. 578; Richardson v. Anglo-American Provision Co., 72 Ill. App. 77; Mueller v. Schwecht, 62 Ill. App. 622; see also Armour v. Hahn, 111 U. S. 313. The “breeching” which had guarded the side of the platform, in the case before us, had been removed in the progress of the demolition of the boilers. But this was the work for which appellee had been employed, and which he states he had been doing. He assumed, in accepting the service, whatever increased hazard might be caused by reason of insecure conditions growing out of the tearing down. The purpose of the work was such as necessarily to remove protecting guards and barriers. Whatever increased da.nger was thereby caused became the natural, ordinary and obvious risk incident to the business. “ Some risks are so obvious that notice of them will be presumed.” Wharton on Negligence, 206. Where the servant knows of the danger, or by the exercise of ordinary care would have known it, he assumes the ordinary perils of such occupation. McCormick Machine Co. v. Burandt, 136 Ill. 170 (177); Simmons v. Chicago & T. R. R. Co., 110 Ill. 340 (347); Westville Coal Co. v. Milka, 75 Ill. App. 638. In the case at bar appellee had notice of the risk. He knew that the work of taking down the boilers and appurtenances had been in progress more or less continuously for several days at least. He had assisted in it, had taken off some valves and removed certain flues. He knew that the material he was loading upon the wagon just before he was hurt had come from these boilers, for he says so. He knew, or by ordinary care should have known, when sent up on top to throw down material to be hauled away, that it had been taken from the place where he was working. He knew that such place was not in its ordinary condition, and that he could not rely upon its being a safe place in which to move about without care. This hazard he assumed. The master can not be required to provide a place, safe at all times, for workmen who are expressly employed to make it unsafe by tearing down the structure upon which they are at work. The conceded facts do not support the charge of negligence in the declaration. It is urged that it was the duty of the master to warn appellee of the removal of the “ breeching ” when he was ordered up there to work. But he was warned by the nature of his employment. As said in McCann v. Kennedy, 167 Mass. 23, “ it would be impracticable to require employers to warn their men of every transitory risk, when the only thing the men do not know is the precise time when the danger will exist.” Appellee was not injured by obeying the direction of his foreman to go up and throw down the boiler plates. He could have done that with perfect safety, as did his associates, without falling off the platform. He was directed to do only what was in the line of his employment. It is sought to excuse appellee’s apparent lack of ordinary care in walking off the edge of the platform backward by evidence tending to show that the place where he was at work was dark. But his fellow employe, who had hold of the other end of the same boiler plate four or five feet away, testifies that he saw when appellee was about to step off, and “ hollered ” to him. This testimony is not disputed. It was not then so dark but that appellee could have avoided falling off had he looked to see where he was going. But he walked off backward without looking. The general rule is that in order to recover for injuries from negligence, it must be alleged and proved that the injured party was at the time observing due or ordinary care for his personal safety. Calumet Iron & Steel Co. v. Martin, 115 Ill. 358 (368) and cases cited. Appellant at the conclusion of the plaintiff’s case and again at the close of all the evidence, requested the court to direct the jury to find appellant not guilty. See Boyle v. I. C. R. R. Co., 88 Ill. App. 255 (257). Such an instruction should have been given. It is obvious that appellee is not entitled to recover. The judgment of the Circuit Court must be reversed.