United States Sugar Refinery v. Welcher

Mjb. Pbesiding Justice Smith delivered.' the opinion of the court. Under the evidence in this case it was a question of fact whether appellee assumed the risk of whatever danger there was in the work which he was doing at the time of the injury. It was also a question of fact for the jury as to whether appellee was guilty or not of concurrent or contributory negligence. Appellant requested the court to give the following instruction: “2. The law is that if the employe, knowing the hazards of his employment as the business of his employer is conducted, is injured while engaged therein, he cannot maintain an action against the employer for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adaptation of which would have prevented the injury, and in this case if you believe from all the evidence the plaintiff’s employment while operating the machine described in the declaration, as defendant’s business was conducted, was dangerous, and that plaintiff knew of the hazard, and (continued his work) without any promise by the defendant to remove or lessen the hazard, then you should find the defendant not guilty.” The court refused to give said instruction as requested, but modified the same by inserting after the words: “defendant to remove or lessen the hazard,” the words: “or to remove the plaintiff therefrom to a safer employment, provided plaintiff would remain at work for a short time at such machine, or if he continued to work at such machine after the time for the fulfillment of such promise had expired (if you find from the evidence there was such a promise),” and then marked the instruction “Given” and gave the instruction so modified to the jury. Appellant also requested the court to give the following instruction: “3. The employe assumes the risk of usual, ordinary and known dangers, and such dangers as are so obvious that knowledge of their existence is fairly to be presumed; and if you believe from all the evidence plaintiff was injured by a danger he knew of, or dangers that were so obvious that from all the facts and circumstances proven, you can fairly say he knew of and understood, and that he continued his work without any promise being made him by the defendant to lessen or remove the danger, then you should find the defendant not guilty.” The court refused to give this instruction as requested, but modified it by inserting after the words: “defendant to lessen or remove the danger,” the words: “or to remove the plaintiff therefrom to a safer employment, provided he would' remain at work for a short time at such place of alleged danger, or if he continues such work after the time for the fulfillment of such promise had expired (if you find from the evidence there was such a promise),” and then marked said instruction “Given” and gave the instruction so modified to the jury. Appellant also requested the court to give to the jury the following instruction: “4. Under thelaw an employe has a right to assume that an employer has discharged his duty in using reasonable care to furnish him with a reasonably safe place to work; but the employe cannot assume such fact against his own knowledge that the place that he is working in and the manner of doing the work is not reasonably safe; and in this case if you believe from all the evidence that the defendant was negligent in this regard, vet if you further believe from all the evidence that plaintiff at and before the time of the accident knew of the defendant’s failure in this regard, then the plaintiff had no right to assume that defendant had performed its duty in regard to furnishing plaintiff a reasonably safe place to work. And if you further believe from all the evidence that plaintiff was injured because of the failure of defendant to exercise reasonable care in furnishing plaintiff a reasonably safe place to work, and that plaintiff knew of defendant’s failure in this regard, and continued his employment without any promise being made by defendant to lessen or remoVe the danger, and that plaintiff was injured because of such negligence, then plaintiff cannot recover and you should find the defendant not guilty.” But the court modified the instruction as tendered by inserting after the words, “defendant to lessen or remove the danger,” the words : “or to remove the plaintiff therefrom to a safer employment, provided plaintiff would remain at work for a short time at the place alleged to be unsafe, or if he continued to work therein after the time for the fulfillment of such a promise had expired (if you find from the evidence there was such a promise),” and then marked the instruction as so modified “ Given ” and gave the instruction to the jury as modified. We are not aware of any authority for the proposition involved in the modifications made by the court to the instructions. A promise to repair by-the master when a defect is called to his attention by a servant is one thing. But a promise by the master to the servant to remove him to a safer employment, provided he would remain at work for a short time at the place of alleged danger, is quite another thing. Counsel for appellee has cite’d many authorities upon the effect of a promise by the master to repair, but he has cited to us no case upon the promise of the master to remove the- servant to a safer employment, unless it be I. C. R. R. Co. v. Weiland, 67 Ill. App. 382. What was there said in regard to the promise of the yardmaster and its effect upon the question of the assumption of risk by the plaintiff, appellee, was not necessary to a decision of the case; for the Supreme Court in disposing of the case did not deem it necessary to hold that the promise to remove the plaintiff to a safer employment, as a matter of law, relieved the plaintiff from any assumption of the special risk of the dangers of which he was complaining. I. C. R. R. Co. v. Weiland, 179 Ill. 609. The modifications of the second, third and fourth instructions were, we think, erroneous and misleading, and for that reason the judgment must be reversed. Reversed and remanded.