Mr. Justice Smith
delivered the opinion of the court.
The original declaration consisted of three counts. On the first trial of the case appellee withdrew the first and third counts. The declaration consists now of the second count, which is as follows:
“And also, for that, whereas, the said Franklin S. Hanson, deceased, in his lifetime, on or about the 10th day of August, A. D. 1898, was possessed of, using and operating a certain manufactory in the city of. Chicago, in the county of Cook, and which said factory contained large quantities of machinery and steam boilers, and the said Franklin S. Hanson had then and there engaged the services of the plaintiff to work in and about said machinery and steam boilers, and whilst the plaintiff was then and there .rightfully and with due care and diligence upon his part, working around and about said boilers and machinery, the said Franklin S. Hanson then and there' carelessly, negligently, wrongfully and improperly permitted and allowed a certain open catch-basin to be and remain filled with hot water near to said boilers in a dark corner of said premises and permitted the same to be and remain without any reasonably safe cover or protection around and about said catch-basin and to be and remain wholly dangerous and unsafe in such manner as to render the passage of the plaintiff about said boilers to be - extremely dangerous, and by means of the premises whilst he was passing by said boiler with due care and diligence upon his part and in the pursuit of his business he unavoidably tripped, slipped and fell into the said catch-basin so then and there filled with said hot water and was thereby grievously and seriously injured and the skin of .the plaintiff was thereby taken from, divers large portions of his body and he became and was internally injured and the muscles and ligaments of his body greatly injured, and he became and was pérmanently injured and disabled, and paid out and became liable to pay divers large sums of money' for medical and surgical attendance, and was hindered and prevented from attending to his affairs and business and lost divers great gains and profits he otherwise could and would have made.
To the damage of the plaintiff of $15,000, and, therefore, he brings his suit.”
This case was before- this court on appeal from a former trial and judgment upon this, count, and the judgment was reversed for error in an instruction. Harte v. Fraser, 104 Ill. App. 201. Whether the evidence now before us is the same as that introduced on the former trial or different, the record does not disclose.
The evidence shows that appellee had complete charge of the boilers and engine and did the firing during the night; that he relieved the day engineer about six o’clock p. m., and the day engineer took charge again about 6:30 in the morning. Appellee was a man of mature years and had been at work in the place several weeks. The catch-basin had never had a cover to it or any guard around it. The place was dark even in the daytime. . For that reason a torch was provided for the use of the engineer when going about the boilers. With the lighted torch the catch-basin could easily be seen. When the day engineer left the night before the accident the torch was near the engine, about two rods from the back of the boiler, showing that it had been used by appellee during the night.
Aside from the testimony of appellee as to his eondition after the death of Hanson and the testimony of the. physicians there is no other evidence in the record.
From the above stated facts the court and the jury could infer' the employment of appellee by Hanson and the duties of appellee under the employment, and the actual knowledge of appellee of all the physical conditions of the boiler room, and among them the uncovered and unprotected catch-basin containing hot water. It may also be inferred that while appellee was in the upper part of the building by the order of the superintendent, Kelley, assisting in repairing a breakdown in the machinery there about two o’clock in the morning, too much water was pumped into the boilers, and that in obedience to the order, of Kelley, work in the factory was shut down, and appellee was directed to put the boilers and engine in good condition for the engineer in the morning. The inference that appellee commenced to draw the surplus water from one of the boilers is justified from the fact that Wagner, the day engineer, found the • stopcocks in the pipe leading from the east boiler into the catch-basin open. But we find no basis in the evidence for the jury to draw any inference as to the manner of the happening of the accident, or whether appellee was exercising due care or any care, at and just prior to the time of his injury. Any inferences on these subjects are impossible under the evidence for want of facts as a basis. Any conclusions upon these subjects are necessarily the results of speculation, nothing more.
It appears in the testimony that on account of the excessive quantity of water in the boilers, water ran over from the boilers into the cylinder of the engine, and that this had to be withdrawn in some manner in order to leave the engine in good condition for the day engineer. How this was done does not appear in the record. But the inference cannot be drawn legitimately that appellee slipped into the catch-basin as averred in the declaration. That is a matter of reasonable conjecture, but it is not a conclusion based on any evidence contained in the record.
In our opinion the evidence in this case does not meet or fulfill the rule of law in respect to the burden of proof that is imposed upon a servant in a suit against his master for injuries resulting from defective machinery, appliances, etc., as stated in section 414 of Wood on the Law of Master and Servant: “The servant in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1st. That the appliance was defective. 2nd. That the master had notice thereof, or knowledge, or ought to have had. 3rd. That the servant did not know of the defect, and had not equal means- of knowing with the master.” Groldie et al. v. Werner, 151 Ill. 551-556; C. & E. I. R. R. Co. v. Heerey, 203 id. 492-499. As said in the latter case: “The third proposition, of course, relates only to patent defects, and does not embrace the duty of inspection to discover latent dangers and defects.” Tested by this rule it seems to us to be quite clear that the proof in this case does not make out a case, entitling appellee to recover; and that the trial court should have given the instruction requested by appellants at the close of the plaintiff’s case ordering the jury to find the defendants not guilty.
Upon the former appeal of this ease (104 Ill. App. 205), this court said: “The defense interposed upon the trial to evidence tending to sustain such second count was that the open condition of the catch-basin and its being filled with hot water were things concerning which plaintiff was fully informed and the risk therefrom assumed by him; the defendants introduced much evidence tending to sustain such defense. In view of such evidence the defendants asked the court to instruct the jury as follows -
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Mr. Justice Smith
delivered the opinion of the court.
The original declaration consisted of three counts. On the first trial of the case appellee withdrew the first and third counts. The declaration consists now of the second count, which is as follows:
“And also, for that, whereas, the said Franklin S. Hanson, deceased, in his lifetime, on or about the 10th day of August, A. D. 1898, was possessed of, using and operating a certain manufactory in the city of. Chicago, in the county of Cook, and which said factory contained large quantities of machinery and steam boilers, and the said Franklin S. Hanson had then and there engaged the services of the plaintiff to work in and about said machinery and steam boilers, and whilst the plaintiff was then and there .rightfully and with due care and diligence upon his part, working around and about said boilers and machinery, the said Franklin S. Hanson then and there' carelessly, negligently, wrongfully and improperly permitted and allowed a certain open catch-basin to be and remain filled with hot water near to said boilers in a dark corner of said premises and permitted the same to be and remain without any reasonably safe cover or protection around and about said catch-basin and to be and remain wholly dangerous and unsafe in such manner as to render the passage of the plaintiff about said boilers to be - extremely dangerous, and by means of the premises whilst he was passing by said boiler with due care and diligence upon his part and in the pursuit of his business he unavoidably tripped, slipped and fell into the said catch-basin so then and there filled with said hot water and was thereby grievously and seriously injured and the skin of .the plaintiff was thereby taken from, divers large portions of his body and he became and was internally injured and the muscles and ligaments of his body greatly injured, and he became and was pérmanently injured and disabled, and paid out and became liable to pay divers large sums of money' for medical and surgical attendance, and was hindered and prevented from attending to his affairs and business and lost divers great gains and profits he otherwise could and would have made.
To the damage of the plaintiff of $15,000, and, therefore, he brings his suit.”
This case was before- this court on appeal from a former trial and judgment upon this, count, and the judgment was reversed for error in an instruction. Harte v. Fraser, 104 Ill. App. 201. Whether the evidence now before us is the same as that introduced on the former trial or different, the record does not disclose.
The evidence shows that appellee had complete charge of the boilers and engine and did the firing during the night; that he relieved the day engineer about six o’clock p. m., and the day engineer took charge again about 6:30 in the morning. Appellee was a man of mature years and had been at work in the place several weeks. The catch-basin had never had a cover to it or any guard around it. The place was dark even in the daytime. . For that reason a torch was provided for the use of the engineer when going about the boilers. With the lighted torch the catch-basin could easily be seen. When the day engineer left the night before the accident the torch was near the engine, about two rods from the back of the boiler, showing that it had been used by appellee during the night.
Aside from the testimony of appellee as to his eondition after the death of Hanson and the testimony of the. physicians there is no other evidence in the record.
From the above stated facts the court and the jury could infer' the employment of appellee by Hanson and the duties of appellee under the employment, and the actual knowledge of appellee of all the physical conditions of the boiler room, and among them the uncovered and unprotected catch-basin containing hot water. It may also be inferred that while appellee was in the upper part of the building by the order of the superintendent, Kelley, assisting in repairing a breakdown in the machinery there about two o’clock in the morning, too much water was pumped into the boilers, and that in obedience to the order, of Kelley, work in the factory was shut down, and appellee was directed to put the boilers and engine in good condition for the engineer in the morning. The inference that appellee commenced to draw the surplus water from one of the boilers is justified from the fact that Wagner, the day engineer, found the • stopcocks in the pipe leading from the east boiler into the catch-basin open. But we find no basis in the evidence for the jury to draw any inference as to the manner of the happening of the accident, or whether appellee was exercising due care or any care, at and just prior to the time of his injury. Any inferences on these subjects are impossible under the evidence for want of facts as a basis. Any conclusions upon these subjects are necessarily the results of speculation, nothing more.
It appears in the testimony that on account of the excessive quantity of water in the boilers, water ran over from the boilers into the cylinder of the engine, and that this had to be withdrawn in some manner in order to leave the engine in good condition for the day engineer. How this was done does not appear in the record. But the inference cannot be drawn legitimately that appellee slipped into the catch-basin as averred in the declaration. That is a matter of reasonable conjecture, but it is not a conclusion based on any evidence contained in the record.
In our opinion the evidence in this case does not meet or fulfill the rule of law in respect to the burden of proof that is imposed upon a servant in a suit against his master for injuries resulting from defective machinery, appliances, etc., as stated in section 414 of Wood on the Law of Master and Servant: “The servant in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1st. That the appliance was defective. 2nd. That the master had notice thereof, or knowledge, or ought to have had. 3rd. That the servant did not know of the defect, and had not equal means- of knowing with the master.” Groldie et al. v. Werner, 151 Ill. 551-556; C. & E. I. R. R. Co. v. Heerey, 203 id. 492-499. As said in the latter case: “The third proposition, of course, relates only to patent defects, and does not embrace the duty of inspection to discover latent dangers and defects.” Tested by this rule it seems to us to be quite clear that the proof in this case does not make out a case, entitling appellee to recover; and that the trial court should have given the instruction requested by appellants at the close of the plaintiff’s case ordering the jury to find the defendants not guilty.
Upon the former appeal of this ease (104 Ill. App. 205), this court said: “The defense interposed upon the trial to evidence tending to sustain such second count was that the open condition of the catch-basin and its being filled with hot water were things concerning which plaintiff was fully informed and the risk therefrom assumed by him; the defendants introduced much evidence tending to sustain such defense. In view of such evidence the defendants asked the court to instruct the jury as follows -
‘If you find from the evidence that the plaintiff, Fraser, knew and understood the conditions herein complained of, and knew the risk or danger, if any, on account of such conditions, and that with such knowledge the plaintiff voluntarily continued in his employment, he assumed the risk and cannot recover, and you should find the defendants not guilty.’ * * * The instruction as asked was proper and should have been given.”
This we understand to be the law. It is the law of this case. From the facts shown in evidence it appears that appellee had been night engineer in charge of the boilers and engine in question three or four weeks, and had- been engineer there before that. There was no complaint by him or assurance by Hanson that everything was all right and an order to go on with his work, or promise by Hanson to remedy any defect in the appliances. It is a reasonable inference (and indeed the only inference legitimately to be drawn upon the subject), from the evidence that appellee knew of the catch-basin, where it was located, and that it contained hot water. Under these circumstances he assumed the .opeii and apparent risk or danger on account of the conditions in the engine room. Harte v. Fraser, supra; Montgomery Coal Co. v. Barringer, 218 Ill. 327; Ill. Steel Co. v. Mann, 170 Ill. 200; Lake Erie & W. Ry. Co. v. Wilson, 189 id. 89; Webster Mfg. Co. v. Nisbett, 205 id. 273; Cunning System v. Lapointe, 212 id. 274.
We are of the opinion that the court misdirected the jury as to the law of the case.by giving the following instruction at the request of appellee :
“If the jury believe from the preponderance of the evidence that the plaintiff while in the exercise of ordinary care was injured by or in consequence of the negligence of the defendant, as charged in the second count- of his amended declaration, then you can find the defendant guilty.”
In the first place there was no evidence, as we have seen, of the exercise of ordinary care on the part of the plaintiff. Hence, that part of the instruction had nothing to support it in the evidence. Secondly, it excluded in the most definite manner the defense of assumed risk. The only averment of negligence in the count referred to in the instruction is that Hanson “negligently permitted and allowed a certain open catch-basin to be and remain filled with hot water near to said boilers in a dark corner of said premises, and permitted the same to be and remain without any reasonably safe cover or protection around and about said catch-basin,” etc. The declaration does not allege the absence of knowledge on the part of the plaintiff of the condition complained of and his voluntarily remaining at the work with such knowledge and without complaint on his part or assurance of safety or promise of repair by Hanson.
The most recent case on this point decided by our Supreme Court is Montgomery Coal Co. v. Barringer, supra. Speaking of an instruction in substance the same as the one now under consideration the court said, at page 336:
“This instruction wholly ignores the question of assumed risks, which was vital to the appellant’s defense, and was, in effect, a direction to find in favor of appellee, as all the facts found in this instruction, upon which the directed verdict was predicated, were substantially conceded to be true by appellant. The giving of the instruction constituted reversible error. (Lake Erie & Western Railroad Co. v. Wilson, supra.) ”
For the reasons given the judgment is reversed with a finding of fact.
Reversed with finding of fact.