Mr. Justice Holdom delivered
the opinion of the court.
It is patent from the foregoing statement that there was much conflict in the evidence on the crucial questions of fact tending to fix the legal liability of appellant for the death of Richard D. McElligott. Not only was the question of ownership or operation of the restaurant by appellant involved, and whether or not the deceased was an employe of appellant, but whether or not it was a fact that deceased not being such employe was nevertheless employed in and about the machinery upon the premises of appellant owned by another corporation, so as to make appellant liable for injuries sustained for its failure to keep such machinery in a safe condition of repair and not imperil the life or limb of the deceased—a duty cast upon it by law if deceased and appellant bore such relationship to each other. Also the questions of fact as to whether any negligence could be attributed to the deceased as the primary or impelling cause of the accident, and whether deceased gave notice of the existing defects, which appellant promised him it would remedy.
It is peculiarly the province of the jury to harmonize such conflicting testimony and to say by its verdict where the truth is. It is the duty of the court, under proper instructions as to the legal principles to be applied to the evidence, to leave to the jury the solution of the conflicts in the evidence. It is for them to reconcile the conflicts. When this has been done under evidence properly admissible, and the instructions of the court do not violate legal principles applicable to the case made by the evidence under the pleadings, and this court cannot say that the verdict is manifestly contrary to the apparent weight of the evidence, we will not, on what might appear to our minds as doubtful questions of fact, disturb the findings of the jury. The weight of the evidence and the credit to be g;iven to the several witnesses are questions for the jury to decide. Illinois Central R. R. v. Smith, 111 Ill. App. 177; Chicago & Alton R. R. v. Fisher, 141 Ill. 614.
The question of the ownership of the restaurant, while warmly contested, is in reality not fraught with much difficulty. In the face of the avowed objects and purposes stated to the state officer on application to incorporate appellant, the signs around the restaurant, the liquor licenses, the tax schedules, the heading of the bills of fare, the men engaged in the active direction and management of the place, all form a strong chain of evidence stamping appellant as proprietor, which the evidence of leases, contracts and bills made by the dominant forces in the enterprise are futile to overcome-when weighed by the jury and common sense principles applied to their solution. The sign, North American Bestaurant, can only be viewed as a convenient adaptation of appellant’s name in abbreviated form, to designate the restaurant and distinguish it from others in its locality operated by appellant; nor . can it be regarded in the light of the proof as eonveying any intimation of ownership. Again, appellant virtually admits it is the right company sued by the wrong name. This fact, if it be one, should have been set up by plea in abatement. If it had so been, it is quite clear that it would have availed nothing to a replication that appellant was known as well by one name as the other. However, if the point was otherwise well taken, it is waived by joining issue and proceeding to trial upon the merits. Springfield R. R. v. Hoeffner, 175 Ill. 634.
Whether deceased was an employe of appellant or not, it owed him the duty, while he was in charge of their machinery, to keep such machinery in a reasonable condition of repair, so that it could be operated without danger of injury to him. Con. I. M. Co. v. Keifer, 134 Ill. 481.
The proof is satisfactory as to deceased being in the exercise of due care for his own safety at the time he received his mortal injuries. He seems to have been alert and alive to Ms perilous condition, for lie at once' reached for the valve on the engine to shut off the steam and stop the further “racing” of the engine and avert the consequences threatened by its continued “racing.” He hallooed to a girl to start the dish-washmg machine, the startmg of which would have the effect of modifying the rapid motion of the engine. Had this been done, the accident, for the time being, might have been averted, but the girl became frightened with the rest of her companions, and fled from the danger zone. In so doing they obeyed instinctively that law of nature which impels to self-preservation, and they escaped Mjury. While there were other means of stopping the engine at hand, without encountering the dangers confronted at the valve he reached for, yet that’ was the valve invariably used for that purpose, and with the sudden condition forced upon him, and the evident necessity for immediate action, he had no time for accurate calculation or thought, but force of habit undoubtedly impelled him in this moment of peril to reach for the valve he had always used. In so dorng he was not guilty of any negligence contributing to his death. The knowledge which deceased possessed of the unsafe condition of the engine, and his continuing to work at it after having such knowledge, is not negligence per se M view of- the fact, not seriously disputed, that he had given notice of such defects to appellant, who had promised to remedy them, subsequently promising to install a new engine.
Appellant was guilty of negligence causing the death of appellee’s intestate in permitting the engine in its known dangerous condition to be operated. The evidence demonstrates beyond cavil that its condition was one menacing the safety of those engaged in and about it. A similar accident had happened in January preceding the accident in April. Though fortunately this was not attended with injuries to any employe, it was the strongest kmd of warning to appellant to remedy the defects. The warning was not heeded. An attempt to repair within two weeks of the accident'was shown to be abortive in remedying the defects. Complaints of the deceased about the impending dangers were met with promises to correct the weakness in the engine, and finally to install a new one. These promises, credited by deceased, lured him to his death. These facts clearly establish negligence in appellant and make it liable to respond in damages in this action.
We have examined with much care all that has been urged as claimed errors committed by the court in its instructions to the jury. An examination of these instructions discloses that the jury were fully and fairly instructed as to the law environing the facts, and necessary to aid the jury in solving correctly the conflicting evidence. Complaint is made of an instruction given at the instance of - the trial judge, without the request of either of the parties. A careful scrutiny of it fails to disclose any legal vice. It was in a measure favorable to the defense. There may be a few technical inaccuracies in some of the instructions, but there are no just or substantial grounds in any of them for reversing the judgment.
A painstaking examination of the evidence fails to disclose any harmful rulings of the court either in the admission or exclusion of evidence.
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Mr. Justice Holdom delivered
the opinion of the court.
It is patent from the foregoing statement that there was much conflict in the evidence on the crucial questions of fact tending to fix the legal liability of appellant for the death of Richard D. McElligott. Not only was the question of ownership or operation of the restaurant by appellant involved, and whether or not the deceased was an employe of appellant, but whether or not it was a fact that deceased not being such employe was nevertheless employed in and about the machinery upon the premises of appellant owned by another corporation, so as to make appellant liable for injuries sustained for its failure to keep such machinery in a safe condition of repair and not imperil the life or limb of the deceased—a duty cast upon it by law if deceased and appellant bore such relationship to each other. Also the questions of fact as to whether any negligence could be attributed to the deceased as the primary or impelling cause of the accident, and whether deceased gave notice of the existing defects, which appellant promised him it would remedy.
It is peculiarly the province of the jury to harmonize such conflicting testimony and to say by its verdict where the truth is. It is the duty of the court, under proper instructions as to the legal principles to be applied to the evidence, to leave to the jury the solution of the conflicts in the evidence. It is for them to reconcile the conflicts. When this has been done under evidence properly admissible, and the instructions of the court do not violate legal principles applicable to the case made by the evidence under the pleadings, and this court cannot say that the verdict is manifestly contrary to the apparent weight of the evidence, we will not, on what might appear to our minds as doubtful questions of fact, disturb the findings of the jury. The weight of the evidence and the credit to be g;iven to the several witnesses are questions for the jury to decide. Illinois Central R. R. v. Smith, 111 Ill. App. 177; Chicago & Alton R. R. v. Fisher, 141 Ill. 614.
The question of the ownership of the restaurant, while warmly contested, is in reality not fraught with much difficulty. In the face of the avowed objects and purposes stated to the state officer on application to incorporate appellant, the signs around the restaurant, the liquor licenses, the tax schedules, the heading of the bills of fare, the men engaged in the active direction and management of the place, all form a strong chain of evidence stamping appellant as proprietor, which the evidence of leases, contracts and bills made by the dominant forces in the enterprise are futile to overcome-when weighed by the jury and common sense principles applied to their solution. The sign, North American Bestaurant, can only be viewed as a convenient adaptation of appellant’s name in abbreviated form, to designate the restaurant and distinguish it from others in its locality operated by appellant; nor . can it be regarded in the light of the proof as eonveying any intimation of ownership. Again, appellant virtually admits it is the right company sued by the wrong name. This fact, if it be one, should have been set up by plea in abatement. If it had so been, it is quite clear that it would have availed nothing to a replication that appellant was known as well by one name as the other. However, if the point was otherwise well taken, it is waived by joining issue and proceeding to trial upon the merits. Springfield R. R. v. Hoeffner, 175 Ill. 634.
Whether deceased was an employe of appellant or not, it owed him the duty, while he was in charge of their machinery, to keep such machinery in a reasonable condition of repair, so that it could be operated without danger of injury to him. Con. I. M. Co. v. Keifer, 134 Ill. 481.
The proof is satisfactory as to deceased being in the exercise of due care for his own safety at the time he received his mortal injuries. He seems to have been alert and alive to Ms perilous condition, for lie at once' reached for the valve on the engine to shut off the steam and stop the further “racing” of the engine and avert the consequences threatened by its continued “racing.” He hallooed to a girl to start the dish-washmg machine, the startmg of which would have the effect of modifying the rapid motion of the engine. Had this been done, the accident, for the time being, might have been averted, but the girl became frightened with the rest of her companions, and fled from the danger zone. In so doing they obeyed instinctively that law of nature which impels to self-preservation, and they escaped Mjury. While there were other means of stopping the engine at hand, without encountering the dangers confronted at the valve he reached for, yet that’ was the valve invariably used for that purpose, and with the sudden condition forced upon him, and the evident necessity for immediate action, he had no time for accurate calculation or thought, but force of habit undoubtedly impelled him in this moment of peril to reach for the valve he had always used. In so dorng he was not guilty of any negligence contributing to his death. The knowledge which deceased possessed of the unsafe condition of the engine, and his continuing to work at it after having such knowledge, is not negligence per se M view of- the fact, not seriously disputed, that he had given notice of such defects to appellant, who had promised to remedy them, subsequently promising to install a new engine.
Appellant was guilty of negligence causing the death of appellee’s intestate in permitting the engine in its known dangerous condition to be operated. The evidence demonstrates beyond cavil that its condition was one menacing the safety of those engaged in and about it. A similar accident had happened in January preceding the accident in April. Though fortunately this was not attended with injuries to any employe, it was the strongest kmd of warning to appellant to remedy the defects. The warning was not heeded. An attempt to repair within two weeks of the accident'was shown to be abortive in remedying the defects. Complaints of the deceased about the impending dangers were met with promises to correct the weakness in the engine, and finally to install a new one. These promises, credited by deceased, lured him to his death. These facts clearly establish negligence in appellant and make it liable to respond in damages in this action.
We have examined with much care all that has been urged as claimed errors committed by the court in its instructions to the jury. An examination of these instructions discloses that the jury were fully and fairly instructed as to the law environing the facts, and necessary to aid the jury in solving correctly the conflicting evidence. Complaint is made of an instruction given at the instance of - the trial judge, without the request of either of the parties. A careful scrutiny of it fails to disclose any legal vice. It was in a measure favorable to the defense. There may be a few technical inaccuracies in some of the instructions, but there are no just or substantial grounds in any of them for reversing the judgment.
A painstaking examination of the evidence fails to disclose any harmful rulings of the court either in the admission or exclusion of evidence.
We find nothing in the remarks of counsel for appellee to the jury objected1 to, which in any manner infringes or violates the ethics of the occasion, or which were unwarranted or constituted an unfair statement in any particular of the inferences- justly deducible from the evidence. The rule promulgated in I. C. R. R. v. Beebe, 174 Ill. 13, is that “in arguing cases to the jury attorneys must be allowed to make reasonable comments upon the evidence. The interests of public justice require that counsel should not be subjected to any unreasonable restriction in this regard.” Counsel’s argument did not proceed outside of the latitude thus allowed.
It is said that it was error in the trial court to refuse to allow counsel for appellant in his examination of the jury three peremptory challenges. At the timé of empanelling the jury there were two defendants and three peremptory challenges were allowed the defense. This precise question has been settled in Schmidt v. C. & N. W. Ry., 83 Ill. 405 and Gordon v. City of Chicago, 201 Ill. 623. The statute on this subject was construed by the court where it said, in Schmid't v. C. & N. W. Ry., supra, that “this provision has been in force since 1827, if not longer, and as we understand, during all that time it has been the general practice, and so understood by the entire profession, that each side to the case, without reference to the number of persons in each, in all civil cases, has but three peremptory challenges, and this is true whether there be one or a number of persons plaintiff or defendant.” This is still the law.
There is nothing in the claim that the damages are excessive. It was for the jury to assess the amount. They did so within the limitations of the statute.
Deceased left a widow and four young children. He was their support. He was an industrious ‘workman, who had but entered the last decade of middle life. There is nothing in the record to show that he was not in good health, and had a reasonable expectancy of life. The whole matter of the amount of damages to be awarded was for the jury. For citation of authority on this point we refer to Chicago City Ry. Co. v. Strong, administrator, post, p. 511. These decisions control and inhibit our interfering with the award of damages made by the jury.
We are of opinion that the trial was fair, and that appellant’s rights were amply protected, and that none of the errors on this record are well assigned, and the judgment of the Superior Court is affirmed.
Affirmed.