Pullman Co. v. Przybla

Mr. Justice Freeman delivered the opinion of the court. It is claimed in behalf of appellant that moving car wheels was a part of the regular employment of the gang to which appellee belonged; that were it otherwise appellee assumed all open and obvious risk of the duty he was engaged in when injured; that the dangers were open and patent and the employer was not required to instruct him in reference thereto; that the command by the foreman to “hurry up” does not constitute negligence nor excuse the employee from caution; that appellee made no objection to the work and that if there had been a lack of sufficient men, such lack would not constitute actionable negligence; that the jury were improperly instructed and that appellee’s attorneys made improper remarks in presence of the jury. It is urged in appellant’s behalf that appellee assumed all open and obvious risks of the employment, including that of being injured as he was. Whether this risk was open and obvious was a question of fact for the jury. Ill. Term R. R. Co. v. Thompson, 210 Ill., 226-237. Had this question been submitted to the jury the verdict as rendered might have been construed as settling it in appellee’s favor. In the view taken by a majority of the court this question of assumed risk was erroneously eliminated from the case by the following instruction given at the request of appellee’s attorneys: “If the jury find from the evidence that the plaintiff has made out his case by a preponderance of the evidence as alleged in his declaration, then the jury should find the defendant guilty.” The instruction is peremptory in form, and following the authority of Ill. Terra Cotta Co. v. Hanley, 214 Ill., 243-246, constituted reversible error for reasons stated in that case, where it was said that the “effect of said instruction was to eliminate the question of assumed risk from the case, as it is not averred in either count of the declaration, expressly or by implication.” The writer does not entirely concur in this view in the present case, but it necessitates the reversal of the judgment. Our attention is called also to the seventh instruction given at appellee’s instance. We regard this instruction as open to objection for reasons stated in Chicago U. T. Co. v. Strand, 114 Ill. App., 479-483. The judgment of the Superior Court will he reversed and the cause remanded. Reversed and remanded.