Devine v. National Safe Deposit Co.

88 N.E. 804, 240 Ill. 369

Opinion

Mr. Justice Scott

delivered the opinion of the court:

• There was no eye-witness to the accident. Appellant was guilty of negligence as charged. The evidence raises a presumption that Daly did not commit suicide. There was also proof from which the jury might infer that the deceased was in the exercise of due care for his personal safety at the time of the accident, unless, as contended by appellant, that inference is forbidden because Daly knew of the open and unguarded shaft and knew of the danger connected therewith. This conténtion of appellant cannot be sustained. It cannot be said, as a matter of law, that Daly was not in the exercise of due care for his personal safety when he received the injuries, merely because he made use of the platform with full and complete knowledge of the danger. City of Streator v. Chrisman, 182 Ill. 215, and cases there cited; Palmer v. Dearing, 93 N. Y. 7; Dewire v. Bailey, 131 Mass. 169; Hopkinson v. Knapp, 92 Iowa, 328; 7 Am. & Eng. Ency. of Law, 332.

Appellant concedes that the doctrine of assumed risk can have no application here, but insists that the fact that the deceased “knew and appreciated the dang'er and voluntarily continued his work without objection” bars a recovery under the rule “that he who consents cannot afterward complain.” Appellant’s argument is, in this regard, merely an attempt to apply the doctrine of assumed risk and to give to it another name.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.