Simpson v. Weir & Craig Manufacturing Co.

116 Ill. App. 286, 1904 Ill. App. LEXIS 66

• Court: Appellate Court of Illinois
• Decided: October 4, 1904
• Docket: Gen. No. 11,325
• Status: Published

Opinion

Mr. Justice Freeman

delivered the opinion of the court.

It is urged first that the plaintiff’s evidence tended to prove negligence on the part of appellee, and that the court erred, therefore, in withdrawing it from the jury and directing a verdict against appellant. The contention is that appellee failed to perform its duty in not providing guards on the east side of the elevator platform or floor to the same extent at least as on the west side, -where there was an iron plate from five to eight inches high. The floor of the elevator, however, was large and roomy, six feet on each side, containing thirty-six square feet of space. In ordinary use so far as appears this would give ample room to keep away from its edges. It was not necessarily dangerous because the sides were unprotected. Its safety or danger obviously depended upon how it was used. If the floor was so filled up with freight as to leave no standing room except at the edges, its use would require more care than when the freight covered only a small space on the floor.

However that may be, appellant assumed by his contract of employment all the ordinary hazards arising from the performance of his duties, including the use of the elevator as it was constructed. With its dangers he was perfectly familiar. They were open and obvious. He was at liberty to quit the service if he did not wish to assume the risks. He cannot recover for injuries he voluntarily encounters. Where the defects or dangers in machinery and appliances are as well known to the servant as to the master he must be regarded as voluntarily incurring the risk resulting from their use. Penn. R. R. Co. v. Lynch, 90 Ill. 333; Stafford v. C., B. & Q. Ry., 114 Ill. 244. If, however, the employee complains to the master and receives a promise that repairs or improvements to obviate dangers will be made, he may continue in the employment .a reasonable time to permit the promise to be performed and may recover for any injury resulting, unless the danger of the service is obviously so great and imminent that it cannot be prudently undertaken. Missouri Furnace Co. v. Abend, 107 Ill. 44-50. It is claimed by appellant’s counsel that such a promise was made in this ease.

The plaintiff testified that about a month before the accident he said to the foreman, “ somebody will get caught there yet,” and that the foreman said he had spoken about it, but “it takes lots of red tape to do a thing around this corner or around this place, rather.” It is argued that this conversation tended to prove a promise to repair, or change by putting a guard or guards on the side or sides of the elevator platform; and that it became under this evidence a question of fact for the jury whether appellant assumed the risk in continuing to use the elevator. It is apparent, however, that nothing in the conversation quoted can be construed as tending to prove a promise that the employer would do anything. The more reasonable meaning of the foreman’s language is that nothing was likely to be done. There was obviously nothing in that conversation which raised a question of fact for the jury.

It is clear that the injury in this case resulted from a want of care on the part of the deceased. The accident' was one which might occur even on a passenger elevator in almost any business or office building, where there is ordinarily an opening or doorway without any gate on the elevator cage, if a passenger or employee should be careless enough to project his foot beyond the edge of ■ the elevator floor. In the case at bar the accident was the result of conditions of appellant’s own creation. He helped to put the truck on the elevator floor. He seems to have taken charge of the truck while his companion started the elevator. It moved slowly. When the truck handle fell forward, no reason appears why the bar might not havq at once been stopped had appellant given the word. There Avas sufficient standing room upon the car outside of the truck. The facts in the case are similar to those in Beidler v. Branshaw, 200 Ill. 425, where it was held (p. 431) that the negligence of the injured person was such as to prevent recovery, and that the trial court should have so instructed the jury, as Avas done in the case at bar.

The evidence is not such as to entitle appellant -to recover. If a Arerdict had been returned in his favor it would have had to be set aside. Binding no error in the ruling complained of, the judgment of the Circuit Court must be affirmed.

Affirmed.