Devine v. Union Elevated Railroad

Mr. Justice McGoorty delivered the opinion of the court. Defendant’s counsel rely upon a reversal of the judgment upon the following assignments of error: That the court erred (a) in the admission of certain evidence on behalf of plaintiff; (b) in its refusal to give to the jury certain instructions requested by defendant; and (c) that the verdict is contrary to the weight of the evidence. Defendant’s counsel, by their first assignment of error urge that the court erred in permitting three of plaintiff’s expert witnesses to testify that the standard custom in wiring equalizing switches in high tension electrical generating plants is to wire them in such manner that when the switch is open and its generator “dead,” the metal part or blade of the switch is “dead” and does not carry any electrical current. When defendant’s equalizing switch No. 1 was open, and its generator “dead,” the metal part would be charged with electrical current if any other generator was running. Plaintiff’s experts did not testify.that the standard practice of wiring equalizing switches was a safer o.r better method than the method used by defendant in wiring equalizing switch No. 1, and did not testify as to whether defendant’s method in wiring said equalizing switch was safe or unsafe. The jury were permitted to determine from the evidence which, if either, method was unsafe. It is obvious that the question of the correct method of wiring said switch was a proper subject of expert testimony. Upon what other basis could the jury have determined the question as to defendant’s negligence? The deceased was experienced in the operation of similar electrical power plants, and if said switch had been wired by defendant in accordance with the general practice and standard custom, the jury would have had the right to have found that Givens had knowledge of the actual condition there and had assumed any hazard incident thereto. If however, as in the instant case, the evidence shows that the uniform custom and practice was to wire equalizing switches so that the metal part or blade would be “dead” when the switch was open and its generator “dead,” then the existence of such uniform custom, of which Givens presumably had knowledge, would tend to show that he did not assume the risk and that he was not guilty of contributory negligence. If such evidence had been excluded, upon what basis could the jury have determined that any other method of wiring equalizing switch No. 1 was open to defendant? “Oh the question whether the employer has exercised reasonable and ordinary care in providing and maintaining safe appliances, and places for work, the" plaintiff may show the general practice of other employers in similar lines of employment in these respects.” Thompson on Negligence, vol. 6, p. 709. The court did not err in admitting such evidence. McCormick Harvesting Machine Co. v. Burandt, 136 Ill. 170; Stephen v. Duffy, 237 Ill. 549-558. It is also urged as error by defendant’s counsel, the admission by the court of expert testimony as to the cost of wiring its equalizing switches, Nos. 1, 2 and 3, according to the general practice. This evidence tended to show that such change in wiring could be made at a very slight expense, and was therefore pertinent to the issue of defendant’s negligence, especially in view of the discovery made by defendant’s chief switchboard operator that the blade of equalizing switch No. 1 would be charged with electricity when its generator was not in operation, which fact was reported to defendant’s superintendent several months prior to Givens’ death, and in further view of the admission by the latter that he had always known of such danger. It is urged that the court erred in refusing three instructions tendered by defendant. Two of defendant’s refused instructions were fully covered by defendant’s given instructions. The third of defendant’s refused instructions required the servant, in order to recover for defects in the appliances of the master’s business, to prove that the master had notice or knowledge thereof. In the instant case the declaration charges and the evidence tends to show negligent construction by the defendant of the switch in question, and therefore proof of notice to the master' (defendant) was not necessary. Linquist v. Hodges, 248 Ill. 491-497. It is further urged that the verdict is against the manifest, weight of the evidence on the ground that Grivens had actual knowledge of the dangerous condition of equalizing switch No. 1; knew that the blade of said switch was charged with electricity, when its generator was “dead” if any other generator was then operating, therefore assumed the hazard thereof, and was guilty of contributory negligence. It is to be considered that the deceased was experienced in his duties; had worked in other plants where equalizing switches had been wired in accordance with the standard custom, so that if a generator was not running, the blade of its switch would be “dead,” and in the absence of actual knowledge, had the right to assume that defendant, in the exercise of ordinary care, had adopted such method in wiring equalizing switch No. 1. There, is a sharp conflict of evidence as to Grivens’ actual knowledge of the dangerous condition of said switch when open. Upon a most careful examination of all of the evidence, we are unable to say that Grivens had either actual or constructive knowledge of such dangerous condition, or that the verdict is against the manifest weight of the evidence. The judgment of the Circuit Court will therefore be affirmed. Judgment affirmed.