Mr. Justice Adams
delivered the opinion of the court.
The evidence is that the Illinois Central Railroad Company owns the. elevator and tracks in question, but that the other defendant, the Central Elevator Company, was in the exclusive possession, control and operation of the elevator at the time of the accident, and that the railroad company did not enter the elevator building with its cars except on invitation of the elevator company, expressed by signal made in the manner shown in the statement preceding this opinion. 'Therefore, whenever the usual signal to the railroad company, to take loaded cars into the building and empty cars out of it, was given, it had the right to presume that the tracks in the building were clear, and that its cars would be moved into and out of the building with safety to persons in the building. In short, the railroad company had to depend wholly on the elevator company to clear the way for its cars when it was signaled to propel them into the elevator building.
It is averred in the declaration and urged by plaintiff’s counsel in argument, that the cars were driven into and through the elevator at a high and dangerous rate of speed. This is attributed by counsel to two causes; a decline in the grade of the west track from the switch leading from the main or lead track into the west track on which the accident occurred, and the force by which the cars were propelled through the switch and on to the west track. It appears from the evidence that some years before the accident larger cars than those formerly used came into use, and that to make room for their passage through the doors of the elevator, the floor was depressed two or three feet where the tracks ran through the building, leaving the lower floor, where not so depressed, as formerly, and that on account of these depressions the grade of the tracks between the south end of the building and the switch was changed so as to decline somewhat from the switch toward the elevator. The switch was at South Water street, 300 feet south of the south end of the building, so that the depression of the tracks in the elevator being only two or three feet, the decline was certainly not steep. George Lawther, called by the plaintiff, was one of the switching crew, in the employ of the railroad company, at the time of the accident, and he testified that from South Water street to the elevator there was just the slightest depression in the tracks, and that, at the south end of the elevator, the tracks were about level.
Frederick Boberts, superintendent of the elevator company, called by plaintiff, testified: “I do not know the difference in the grade from the entrance to our west track at South Water street, the- switch track. I would think from the effort which it takes to move a car in, which we frequently have to do by hand, that the variation from the dead level is almost nothing. It is almost impossible for us, with pinch-bars, to push a car in there, so I take it from that, that it is almost, if not quite a dead level. I never measured it.”
The evidence shows, without contradiction, that the switchmen never went into the elevator building to couple on to the empty cars, and there being only six or eight inches of space at the sides and on top, between the cars and the door frame, as the ears pass through, the switchmen could not pass in without lying down on top of the cars, and that, in order to make a coupling with the empties, which had previously been coupled together by the elevator company’s employes, it was necessary to use considerable force to make the coupling, which was automatic. Raleigh, an employe of the elevator company, called by plaintiff, testified: “In the making of the couplings inside the elevator, it is necessary that those cars come together enough so that the automatic couplers will work. In order to have the couplings themselves catch and hold, it is necesasry that the cars come together with some force. A switch-man could not walk alongside of the cars, and on these tracks, inside of the elevator. There was no space.” In another part of his testimony this witness says: “The only way in which the switchmen could make these couplings then, would be to send one cut of ears down hard enough against the others, so the automatic couplers would work by impact.”
Lawther, called by plaintiff, testified: “In sending cars into a track, which you intend shortly afterwards to pull, you have got to hit them hard enough so the jaws come together. Lots of couplings we have had to jam three or four times before we make them.” This witness, who had worked for the railroad company, doing work at that elevator, for eighteen years, testified: “There was no difference in the movement on that day from the way in which it was customarily and ordinarily made, nor any difference in the speed in which they were moving.”
Counsel for appellant says in his argument that when the empty cars struck the coal car, which stood next the bumper, at the north end of the west track, they rebounded ten feet. This doubtless is urged as evidence that the cars were moved at too great speed. We find no evidence in the record, however, that there was such a rebound. The witness Ealeigh testified that he heard.the four empties bump against the coal car at the north end. He says nothing of a rebound. We have read in the record the evidence of Louis Donbrowski, called by plaintiff, and find nothing in it of a rebound. The following questions were asked him and answers given in his examination in chief by appellant’s counsel:
‘ ‘ Q. Did the empty cars strike the coal car ?
A. Yes, sir.
Q. And when they struck the coal car, what happened to the empty cars?
A. The engine pulled them out.
Q. Did the coming together of the coal car and the empty cars, did the coming together of the cars in there make any noise?
A. No, the engine took them right out.”
It is evident that when the empties came in contact with the coal car there was no noise so unusual as to attract the attention of the witness, although, as his evidence shows, he was only a short distance from the coal car. There is no evidence that there was anything broken or damaged when the extreme north, empty car came in contact with the coal car. We are of opinion that there was no evidence fairly tending to prove a case in favor of the appellant against the Illinois Central Railroad Company. The rule, as stated in Offutt v. Columbian Exposition Co., 175 Ill. 472, 474, is that “when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury", but may direct a verdict for the defendant.”
In Woodman v. Ill. Tr. & Sav. Bank, 211 Ill. 578, the court says: “Of course, if convinced that a verdict will have to be set aside because the evidence, with all its reasonable inferences and intendments, does not fairly tend to support it, the court ought to instruct the jury not to return it, or to find the other way.” We think the evidence as to the Illinois Central Railroad Co. is of the character thus described, and that the court properly instructed the jury to find that company not guilty.
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Mr. Justice Adams
delivered the opinion of the court.
The evidence is that the Illinois Central Railroad Company owns the. elevator and tracks in question, but that the other defendant, the Central Elevator Company, was in the exclusive possession, control and operation of the elevator at the time of the accident, and that the railroad company did not enter the elevator building with its cars except on invitation of the elevator company, expressed by signal made in the manner shown in the statement preceding this opinion. 'Therefore, whenever the usual signal to the railroad company, to take loaded cars into the building and empty cars out of it, was given, it had the right to presume that the tracks in the building were clear, and that its cars would be moved into and out of the building with safety to persons in the building. In short, the railroad company had to depend wholly on the elevator company to clear the way for its cars when it was signaled to propel them into the elevator building.
It is averred in the declaration and urged by plaintiff’s counsel in argument, that the cars were driven into and through the elevator at a high and dangerous rate of speed. This is attributed by counsel to two causes; a decline in the grade of the west track from the switch leading from the main or lead track into the west track on which the accident occurred, and the force by which the cars were propelled through the switch and on to the west track. It appears from the evidence that some years before the accident larger cars than those formerly used came into use, and that to make room for their passage through the doors of the elevator, the floor was depressed two or three feet where the tracks ran through the building, leaving the lower floor, where not so depressed, as formerly, and that on account of these depressions the grade of the tracks between the south end of the building and the switch was changed so as to decline somewhat from the switch toward the elevator. The switch was at South Water street, 300 feet south of the south end of the building, so that the depression of the tracks in the elevator being only two or three feet, the decline was certainly not steep. George Lawther, called by the plaintiff, was one of the switching crew, in the employ of the railroad company, at the time of the accident, and he testified that from South Water street to the elevator there was just the slightest depression in the tracks, and that, at the south end of the elevator, the tracks were about level.
Frederick Boberts, superintendent of the elevator company, called by plaintiff, testified: “I do not know the difference in the grade from the entrance to our west track at South Water street, the- switch track. I would think from the effort which it takes to move a car in, which we frequently have to do by hand, that the variation from the dead level is almost nothing. It is almost impossible for us, with pinch-bars, to push a car in there, so I take it from that, that it is almost, if not quite a dead level. I never measured it.”
The evidence shows, without contradiction, that the switchmen never went into the elevator building to couple on to the empty cars, and there being only six or eight inches of space at the sides and on top, between the cars and the door frame, as the ears pass through, the switchmen could not pass in without lying down on top of the cars, and that, in order to make a coupling with the empties, which had previously been coupled together by the elevator company’s employes, it was necessary to use considerable force to make the coupling, which was automatic. Raleigh, an employe of the elevator company, called by plaintiff, testified: “In the making of the couplings inside the elevator, it is necessary that those cars come together enough so that the automatic couplers will work. In order to have the couplings themselves catch and hold, it is necesasry that the cars come together with some force. A switch-man could not walk alongside of the cars, and on these tracks, inside of the elevator. There was no space.” In another part of his testimony this witness says: “The only way in which the switchmen could make these couplings then, would be to send one cut of ears down hard enough against the others, so the automatic couplers would work by impact.”
Lawther, called by plaintiff, testified: “In sending cars into a track, which you intend shortly afterwards to pull, you have got to hit them hard enough so the jaws come together. Lots of couplings we have had to jam three or four times before we make them.” This witness, who had worked for the railroad company, doing work at that elevator, for eighteen years, testified: “There was no difference in the movement on that day from the way in which it was customarily and ordinarily made, nor any difference in the speed in which they were moving.”
Counsel for appellant says in his argument that when the empty cars struck the coal car, which stood next the bumper, at the north end of the west track, they rebounded ten feet. This doubtless is urged as evidence that the cars were moved at too great speed. We find no evidence in the record, however, that there was such a rebound. The witness Ealeigh testified that he heard.the four empties bump against the coal car at the north end. He says nothing of a rebound. We have read in the record the evidence of Louis Donbrowski, called by plaintiff, and find nothing in it of a rebound. The following questions were asked him and answers given in his examination in chief by appellant’s counsel:
‘ ‘ Q. Did the empty cars strike the coal car ?
A. Yes, sir.
Q. And when they struck the coal car, what happened to the empty cars?
A. The engine pulled them out.
Q. Did the coming together of the coal car and the empty cars, did the coming together of the cars in there make any noise?
A. No, the engine took them right out.”
It is evident that when the empties came in contact with the coal car there was no noise so unusual as to attract the attention of the witness, although, as his evidence shows, he was only a short distance from the coal car. There is no evidence that there was anything broken or damaged when the extreme north, empty car came in contact with the coal car. We are of opinion that there was no evidence fairly tending to prove a case in favor of the appellant against the Illinois Central Railroad Company. The rule, as stated in Offutt v. Columbian Exposition Co., 175 Ill. 472, 474, is that “when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury", but may direct a verdict for the defendant.”
In Woodman v. Ill. Tr. & Sav. Bank, 211 Ill. 578, the court says: “Of course, if convinced that a verdict will have to be set aside because the evidence, with all its reasonable inferences and intendments, does not fairly tend to support it, the court ought to instruct the jury not to return it, or to find the other way.” We think the evidence as to the Illinois Central Railroad Co. is of the character thus described, and that the court properly instructed the jury to find that company not guilty.
Counsel for appellant asserts that the verdict finding the Central Elevator Company not guilty is contrary to the weight of the evidence, and contends that the company was negligent in directing plaintiff’s intestate to open shipping bin 8, after signaling to the switching crew, by means of the semaphores on top of the building; and in failing to notify the deceased of the movement of the cars; and in permitting the cars to be kicked down the west track at the rate of speed shown by the evidence, and without engine or brakeman.
Frederick C. Eoberts, superintendent of the elevator company, but who gave no orders on the day of the accident, testified that Maloney, the deceased, had nothing to do with the loading or unloading of the cars; that his work was to draw the grain from the various bins to the hoppers at the bottom of the legs, and send it to the weighman to be weighed and shipped to the vessels or ears, and to keep the legs mechanically in order, and that there was nobody over him in his work. He also testified that Bougher was the receiving weighman, in charge of the grain in store, who kept tab on it, saw what -condition it was in and distributed it among the different bins, selecting the bins in which it should be placed, and that his place to work was in the cupola above the bins, from which place he could not -see what was being done on the main floor,' below him.
Bougher, called by the plaintiff, testified that he was on the receiving floor of the cupola, probably a hundred feet from the ground, and he wanted a bin opened up, cleaned out, changed from one kind of grain to another, and swept out and in the afternoon, 'between two and three o’clock, he went to shipping bin 8, on the west side of the elevator, the fifth bin from the corner, which he wanted cleaned out, and went to the bell and rang, and Maloney came to the bell, and he asked him to go over to the west side and open up shipping bin 8,' so that he, witness, could have it cleaned out, and he said he would, and he went over and opened the bin, and in about thirty minutes afterward witness heard that Maloney was hurt. The place at which the witness rang the bell which he mentions was at the speaking tubes, which ran up from the platform between the middle and east tracks, and about the center of the building, to the cupola. This communication or request from Bougher to Maloney is what is referred to as an order. The witness Roberts testified that it was Mr. Rougher’s province to tell Maloney when he wanted these bins cleaned or opened, and to tell him to open the mouth of shipping bin 8; that it was Maloney’s province to give a like suggestion to Rougher; that it was Rougher’s duty to receive the grain in the scales, weigh it and distribute it in the bins, and Maloney’s to withdraw it from the bins with the elevator legs and send it back to the scales for delivery, or to be changed to another bin, on account of its condition; that it was their duty and they had to co-operate with each other as to what each should do. Maloney would suggest to the weighman and the weighman to Maloney.
The evidence is that Maloney crossed the west track in going from the platform between the middle and east tracks, where he received Rougher’s communication, without injury. Louis Donbrowski, plaintiff’s witness, testified: “I was on the north end of the elevator, had been on the north end shoveling cars. I saw Michael Maloney fixing one bin; that is all; more than that I didn’t see. I don’t know the number of the bin. When he was fixing the bin I was outside. I was going into the house, inside the house, when he was fixing the bin. I was at the coal car. When I was at the coal car, Maloney was in the house. When I was at the coal car Maloney Was about five or six .feet into the elevator. This was about ten minutes, about- ten minutes before Maloney was hurt, when he was fixing the bin.”
Donbrowski was the last witness who saw Maloney before the accident. The bins were opened and closed by means of slides at the bottoms, to which ropes were attached, in pulling one of which the bin would open, and by pulling the other it would close, so that a bin could be opened instantaneously."
The plaintiff’s intestate was amply notified that the cars might come into the elevator at any time prior to the accident. Raleigh, plaintiff’s witness, testified: “Whenever the cars are coupled together, ready to he hitched onto by the engine, it is known then, and it is the custom to give the signal and notify the'engine to come in and do the switching. Whenever the cars are coupled together, all of the elevator men know, from experience, that the next movement is the giving of the signal and notify the engine to do the switching ; and, so far as I know, that has been the custom all the time I was there.” This witness had been in the employ of the elevator company from April, 1896, till the time he testified.
The coupling the cars in the elevator together, preparatory to signaling the switching crew to come and take them out, was so obvious that no one on the main floor of the building could fail to notice it, for the reason that the cars, prior to being coupled together,, were placed ten feet apart, each car being opposite a hoisting apparatus, and when they were unloaded they were brought together and coupled. The evidence shows this to have been the uniform custom. The deceased, however, did not require this notice. The evidence shows that, before he received the communication from Bougher, heretofore mentioned, he knew the switching crew were coming to take out the cars. Baleigh testified: “On the day in question there were four empty cars on the middle track and four empty cars on the west track. I had coupled the cars on both tracks together. After that I gave the signal as I have described. After that, at the time the cars were brought in, at the time the engine pushed the cars into the middle track, Michael Maloney was at the south end of the elevator; me and him were speaking at the south end of the elevator at the time this switching was being done, that is, when it started. Mike Maloney stood there with me at the place where I gave the signal. He stood there and conversed with me while this switching was going on, about ten minutes, I should judge.” Witness further testified: “Michael Maloney and I were standing together when the engine appeared across the street to pull the switch, and he remained standing there until they moved into the middle track and hitched onto the empties.” Also: “Bight loads came down that central track pulling four empties out; then Maloney was standing there by my side, before the switch.” The witness says that was the last he saw of the deceased till after the accident. The next we know of the deceased he was at the platform east of the west track, where he received the communication from Bougher, and the next after that is where Donbrowski saw him at a bin on the west side of the track. The evidence shows that the deceased opened the bin as directed by Bougher. It is difficult to understand Donbrowski’s evidence in some respects. He is a foreigner and testified through an interpreter. We think it clear, however, from his evidence that the accident occurred about ten minutes after the deceased had opened the bin. No one witnessed the accident. Donbrowski testified that Maloney was following him when it occurred. Maloney was about fifty-five years of age at the time of the accident, and had been in the employ of the elevator company more than thirty years, and therefore must have been thoroughly familiar with the manner in which the business was done, including the manner in which cars were put into and taken out of the elevator, and, so far as appears from the evidence, he never complained of the manner of carrying on the business, and neither he nor any other employe of the company suggested any change. The evidence is uncontradicted that the business-was done at the time of the accident as it had been done for many years previous. Under these circumstances the deceased assumed whatever risk there was in the manner in which the business was carried on. L. E. & W. R. R. Co. v. Wilson, 189 Ill. 89, 97; Brown v. Siegel, Cooper & Co., 191 ib. 226, 233; C. B. & Q. R. R. Co. v. Camper, 199 ib. 569, 577.
In 3 Elliott on Bailroads, sec. 1289, the author says: “The employe assumes the risks £ordinarily incidental to his employer’s business, and to the employer’s known manner of carrying it on.’ ” This is familiar doptrine.
The plaintiff’s counsel, in support of his contention that the court erred in its instructions to the jury, discusses only the eighth instruction given at the request of the elevator company, which is as follows:
“The court instructs the jury that this case, as now submitted to you, is a case between the plaintiff, as the administratrix of Michael Maloney, deceased, and the defendant, the Central Elevator Company; and the court instructs the- jury that the defendant, the Central Elevator Company, was not responsible in any way for the management and operation of the engine and cars while they were being operated by the switching crew of the Illinois Central Railroad Company; and if you believe from the evidence in this case that the injury to Michael Maloney was caused by the speed at which the cars were put into and upon the west track in the elevator—then you are instructed that the defendant, the Central Elevator Company, is not liable to the plaintiff therefor.
“You are also instructed that the Central Elevator Company is not liable in any way for the conduct of the switching crew in question, and if you find from 'the evidence that the injury to the said Maloney was caused solely by the negligence of the switching crew— if you find there was negligence on their part—then you are instructed that the plaintiff can not recover in this suit, and your verdict should be for the defendant, the Central Elevator Company, in such event. ’ ’
We are of opinion that this instruction should not have been given. ' In the same series of instructions the court had decided, as matter of law on the evidence, that the railroad company was not guilty of negligence, by directing the jury to find that company not guilty, and, after so instructing the jury, it was, to say the least, inconsistent to submit to the jury the question, whether the accident was caused by the negligence of the railroad company. However, conceding the instruction to be erroneous, we do not think the error ground for reversal, holding, as we do, as matter of law on the evidence, that the deceased assumed the risk, arid also that the jury could not have reasonably rendered any other verdict than they did on the evidence. The evidence was such that had the verdict been for the plaintiff, it must have been set aside.
The judgment as to each of the appellees will be affirmed.
Affirmed.