American Brake Shoe & Foundry Co. v. Jankus

Me. Justice Smith delivered the opinion of the court. It is urged by appellant as a ground of reversal that the trial court erred in permitting Leon Waikewicz to act as an interpreter in the trial of the case. It appeared from the testimony of Waikewicz touching his competency to act as an interpreter that the plaintiff was living in Waikewicz’ house; that he had talked with the plaintiff about this law suit and that he had loaned plaintiff $11, which was unpaid, and that he had acted' as interpreter between the plaintiff and his attorney all through the preparation of the case for trial. It further appears from the record that Waikewicz was a poor interpreter, having very little knowledge of the English language. It does not appear, however, that he acted unfairly in any particular or that appellant suffered in any way from any bias in favor of appellee in his interpretation of the testimony of the witnesses. Attorneys for appellant do not point out to the court any instance of unfair conduct on his part during the trial, and we must conclude that appellant suffered no particular injury from erroneous or inaccurate interpretations of the testimony. We think it must be shown that some injustice has been done by the selection of an interpreter before we would be justified in interfering with the discretion of the trial judge in the selection of an interpreter. We find in this record no abuse of discretion in the selection made. On the trial the plaintiff was allowed to exhibit his injuries to the jury. Having removed for that purpose his coat, vest and shirt and a part of his undershirt, the plaintiff left the witness stand and while he was standing before the jury he was asked by his attorney to lift up his arm and show it. The plaintiff replied: “I cannot lift it up any -more; the arm is sore.” Thereupon one of the jurors arose from his seat and stepping forward took hold of plaintiff’s arm and moved it slowly up and down, and bent it at the elbow, and felt of it between the elbow and shoulder. To all of this the defendant objected and excepted and now assigns it for error. The point is made that to permit one- of the jurors to take hold of, move, and bend the arm of the plaintiff in order to ascertain for himself whether or not the arm was stiff or otherwise permanently injured is quite a different matter from permitting all of the jurors to view the injuries together. Counsel for appellant cite in support of their contention Stampofski v. Steffens, 79 Ill., 303; Doud v. Guthrie, 13 Ill. App., 653, and Consolidated Ice M. Co. v. Trenton Hygeian Ice Co., 57 Fed. Rep., 898. All these cases, however, pass upon personal examinations or inspections made by jurors out of court during recesses of the court, and not in the presence of the court, or an officer of the court. There are many obvious reasons for not allowing jurors to supplement the knowledge of the subject-matter of investigation obtained in court from the evidence produced, by pursuing personal and private investigation out of the presence of the court, during the trial. It is impossible for the court or counsel to know just how far the juror has gone with his inquiry, or by what means he has pursued it, or to make a record of it, without turning aside from the regular trial of the cause and investigating the acts of the juror and the results thereof. This would not only be irregular, but it would necessarily result in permitting the inquiry by jurors to go beyond the control of the court and beyond the established rules of evidence, and into irrelevant and immaterial matters. As said in Clark v. Brooklyn Heights R. R. Co., 177 N. Y. Appeals, 359: “The object of all evidence is to inform the trial tribunal of the material facts which are relevant as bearing upon the issue, in order that the truth may be elicited and that a just determination of the controversy may be reached. It is not objectionable, in these cases, that the evidence may go beyond the oral narrative and may be addressed to the senses; provided that it be kept within reasonable limits by the exercise of a fair judicial discretion. It should be only of a nature to assist the jurors to an understanding of a situation, or of an act, or to comprehend objective symptoms resulting from an injury. Examples of this class of evidence are frequent; in the viewing of the place of an occurrence, in the production of some article relevant to the issue, or in the exhibition of the person and of the marks, or obvious evidences of injuries sustained. Personal injuries may be simulated and deception may be practiced in such exhibitions, but that can no more be prevented than can perjury in testimony.” In the above case the plaintiff was seeking to recover damages for personal injuries sustained in a collision, and the court permitted him to leave the witness stand, at the request of his counsel, to exhibit himself to the jury in the act of writing his name, and of taking a drink of water. The record represents him as taking a glass of water with both hands and as spilling the water, through the trembling of his hands, and as using his handkerchief in the same manner. This exhibition was to illustrate or to emphasize his testimony that he could use his hands with difficulty. The court thought that this spectacular illustration of his symptoms was calculated to prejudice the minds of the jurors. The proceedings in that case, however, were very different from the matters here complained of. We do not think it was reversible error to allow the juror to take hold of the plaintiff’s arm and move it as indicated. We think the evidence tends to show that the injury to the plaintiff complained of was caused by the defects described in the declaration. The fáct that the corner was broken off some months prior to the accident and that the rattler had been used during that time without accident, does not necessarily disprove the theory of the plaintiff’s case. There is ample evidence in the record to support the verdict of the jury. Appellant contends that the court erred in giving the fifth instruction asked by the plaintiff. That instruction is as follows: “The court instructs the jury that if the evidence shows, and you believe from the evidence, that the plaintiff, while in the discharge of his duty, was confronted with sudden danger, the obligation resting upon him to exercise due care for his own safety, does not require him to act with the same deliberation and foresight which might be required of him under ordinary circumstances.” It is urged that there was no evidence upon which the instruction can be based. It appears in the evidence that one corner of the cover was broken and that a bolt used to fasten on the cover was so worn or defective as to cause the plaintiff and his fellow-servants to be apprehensive as to the safety of the rattler. Plaintiff after calling the attention of his foreman to the condition of these parts was directed to start up the machine. When he saw the dust and castings escaping from the rattler he was confronted suddenly with danger. Under such circumstances to have run away would have been a wiser course for him to take, and yet to an ordinarily loyal employe the proper and natural act would seem to be to stop the rattler and thereby save the property of'his employer and promote the safety of his fellow-servants. Indeed it was the duty of appellee to try to save the property and to seek to prevent the injury that might result if the rattler was allowed to run in its then condition. Pullman Palace Car Co. v. Laack, 41 Ill. App., 37. He was confronted suddenly with danger and a duty arose in view of that danger. The law under such circumstances does not require the servant to act with the same deliberation and foresight which might be required of him under ordinary .circumstances, where he would have time for deliberation. We think the instruction was proper under the evidence. The eighth instruction asked by plaintiff and given by the court is as follows: “Ho. 8. The court instructs you on the law in this case, that where an act is performed by a servant, in obedience to a command from one having authority to give it, and the performance of the act is attended with a degree of danger, yet, in such case it is not requisite that such servant shall balance the degree of danger, if any, and decide with absolute certainty whether he must do the act or refrain from doing it; and his knowledge of attendant danger will not defeat his right of recovery if in obeying the command he acted with the degree of prudence that an ordinarily prudent man would have done under the circumstances, provided these facts are warranted by the evidence.” It is urged that the plaintiff was instructed to start the machine in motion, not to stop it, and that the instruction had no basis in. the evidence. The evidence, however, shows that it was a part of plaintiff’s duty to stop the rattler whenever proper or necessary. We do not perceive that the giving of this instruction prejudiced appellant in any way. Appellant contends as a ground of reversal that appellee assumed the risks, if there were any, arising from the defects in the machine alleged in the declaration. The rule that when a servant seeks to recover from his master for an injury received from defective appliance, he must show not only that the appliance was defective and that the master had knowledge thereof, or ought to have had, but that he, the servant, did not know of the defect, and had not equal means of knowing with the master, is appealed to in support of this contention. But “it is well settled that even- though the plaintiff knew of the defect, if the master ordered him to proceed with the dangerous work he did not assume the risk of so doing, unless the danger was so manifest that a person of ordinary prudence and caution would not have incurred it. Even if the servant has some knowledge of attendant danger his right of recovery will not be defeated if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances.” Gundlach v. Schott, 192 Ill., 512; Wells v. Bourdages, 193 Ill., 328. The evidence shows that appellee went for and brought the foreman from another part of appellant’s factory to the rattle box, and pointed out to the foreman the condition of the cover and the bolt for holding it in place, and after inspecting it the foreman ordered him to go ahead and perform his work. Under such circumstances the plaintiff had a right to assume that the foreman with his superior knowledge of the facts would not expose him to unnecessary perils. Such an order gave the plaintiff the right to rest upon the assurance that there was no danger, for that was implied by the order. We find no reversible error in the record. The judgment of the court below is affirmed. Affirmed.