Nix v. Brunswick-Balke-Collender Co.

Appellate Court of Illinois

Nix v. Brunswick-Balke-Collender Co.

191 Ill. App. 503, 1915 Ill. App. LEXIS 1022

CourtAppellate Court of Illinois

DecidedFebruary 24, 1915

DocketGen. No. 19,592

StatusPublished

This text of 191 Ill. App. 503 (Nix v. Brunswick-Balke-Collender Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nix v. Brunswick-Balke-Collender Co., 191 Ill. App. 503, 1915 Ill. App. LEXIS 1022 (Ill. Ct. App. 1915).

Pincite

Opinion

Mr. Justice Smith

delivered the opinion of the court.

5. Master and servant, § 782*—necessity of basing instruction as to assumed risk on the evidence. In an action for personal injuries sustained by reason of being struck in the eye by a plug and bit flying out of a spindle at which plaintiff was employed, an instruction ignoring an order to do the work and the assurance of defendant’s properly delegated skilled workman that it was in proper condition, and assuming that there was evidence tending to show that the plaintiff appreciated and understood the danger of the plug’s flying out in the operation of the machine, and that such danger was open and obvious to the plaintiff, held erroneous. 6. Master and servant, § 782*—instructions as to assumed risk. In an action against a master for injuries to an eye struck with a plug flying from a spindle at which plaintiff worked, an instruction to the jury that if they found from the evidence that a lathe and plug had been in use by the plaintiff from the time he was first employed by the defendant, and that whatever danger was involved in the use of the same was obvious and patent to the observation of any person of ordinary intelligence, age and experience of plaintiff, and that the condition of the lathe and plug remained the same during the entire time of the service of the plaintiff in and about the same, and if the jury further found from the evidence that the plaintiff was a person of ordinary intelligence for one of his age and-capable of understanding and appreciating the conditions and dangers involved in the use of the lathe and plug, then they were instructed that the plaintiff assumed the risk involved in the use of the same and could not recover, held erroneous, since plaintiff, under the evidence, only worked at the lathe, not to exceed fifteen hours in all, on four different occasions in the course of one year’s employment, and since it did not take into consideration the order to do the work and the assurance of defendant’s properly delegated agent that the machine had been put in good working condition. 7. Master and servant, § 782*—where instructions improper as to assumed risk. 'In an action for personal injuries, an instruction to the jury that if they’ believed from the evidence that the plaintiff, by giving ordinary care and attention to things about him and to the mechanism arid operation of the machine, should have known and understood that there was a possibility that a bit in question might become loose in the socket of the spindle and fly out of that socket while the spindle was in motion, then the plaintiff assumed the risk and the jury should find the defendant not guilty, held objectionable and misleading for want of evidence on which to base it, and in that it stated the plaintiff assumed the risk on the mere possibility that the bit and plug in question might fly out of the socket, no account being given to the effect of the specific order to do the work and the assurance of a skilled and properly authorized employee that the plug and bit were in proper condition after being set. 8. Master and servant, § 698*—evidence insufficient to show assumption of rislc. In an action for injuries received from the flying off of a plug in the operation of a machine, where there was no evidence that the employee knew or should have known that the plug might fly out and injure him, although he had seen it drop out on the floor when it was replaced by one properly authorized with the assurance of one qualified to know that it was all right and would not come out again, held there was no basis in the evidence for the jury to find that the danger of the plug’s flying out was so obvious and patent that a seventeen-year-old boy could know and appreciate the danger to which he was exposed or to justify the giving of instructions on the question of assumed risk. 9. Master and servant, § 777*—when instruction misleading as not hosed on evidence. Where there was no evidence furnishing a basis for a “simple accident” theory embodied in a peremptory instruction, held that such instruction, was misleading in its effect upon the jury.

Free access — add to your briefcase to read the full text and ask questions with AI

Mr. Justice Smith

delivered the opinion of the court.

5. Master and servant, § 782*—necessity of basing instruction as to assumed risk on the evidence. In an action for personal injuries sustained by reason of being struck in the eye by a plug and bit flying out of a spindle at which plaintiff was employed, an instruction ignoring an order to do the work and the assurance of defendant’s properly delegated skilled workman that it was in proper condition, and assuming that there was evidence tending to show that the plaintiff appreciated and understood the danger of the plug’s flying out in the operation of the machine, and that such danger was open and obvious to the plaintiff, held erroneous. 6. Master and servant, § 782*—instructions as to assumed risk. In an action against a master for injuries to an eye struck with a plug flying from a spindle at which plaintiff worked, an instruction to the jury that if they found from the evidence that a lathe and plug had been in use by the plaintiff from the time he was first employed by the defendant, and that whatever danger was involved in the use of the same was obvious and patent to the observation of any person of ordinary intelligence, age and experience of plaintiff, and that the condition of the lathe and plug remained the same during the entire time of the service of the plaintiff in and about the same, and if the jury further found from the evidence that the plaintiff was a person of ordinary intelligence for one of his age and-capable of understanding and appreciating the conditions and dangers involved in the use of the lathe and plug, then they were instructed that the plaintiff assumed the risk involved in the use of the same and could not recover, held erroneous, since plaintiff, under the evidence, only worked at the lathe, not to exceed fifteen hours in all, on four different occasions in the course of one year’s employment, and since it did not take into consideration the order to do the work and the assurance of defendant’s properly delegated agent that the machine had been put in good working condition. 7. Master and servant, § 782*—where instructions improper as to assumed risk. 'In an action for personal injuries, an instruction to the jury that if they’ believed from the evidence that the plaintiff, by giving ordinary care and attention to things about him and to the mechanism arid operation of the machine, should have known and understood that there was a possibility that a bit in question might become loose in the socket of the spindle and fly out of that socket while the spindle was in motion, then the plaintiff assumed the risk and the jury should find the defendant not guilty, held objectionable and misleading for want of evidence on which to base it, and in that it stated the plaintiff assumed the risk on the mere possibility that the bit and plug in question might fly out of the socket, no account being given to the effect of the specific order to do the work and the assurance of a skilled and properly authorized employee that the plug and bit were in proper condition after being set. 8. Master and servant, § 698*—evidence insufficient to show assumption of rislc. In an action for injuries received from the flying off of a plug in the operation of a machine, where there was no evidence that the employee knew or should have known that the plug might fly out and injure him, although he had seen it drop out on the floor when it was replaced by one properly authorized with the assurance of one qualified to know that it was all right and would not come out again, held there was no basis in the evidence for the jury to find that the danger of the plug’s flying out was so obvious and patent that a seventeen-year-old boy could know and appreciate the danger to which he was exposed or to justify the giving of instructions on the question of assumed risk. 9. Master and servant, § 777*—when instruction misleading as not hosed on evidence. Where there was no evidence furnishing a basis for a “simple accident” theory embodied in a peremptory instruction, held that such instruction, was misleading in its effect upon the jury.

Cite This Page — Counsel Stack

Bluebook (online)

191 Ill. App. 503, 1915 Ill. App. LEXIS 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nix-v-brunswick-balke-collender-co-illappct-1915.