Weise v. Conrad Seipp Brewing Co.

178 Ill. App. 44, 1913 Ill. App. LEXIS 975

Opinion

Mr. Justice Fitch

delivered the opinion of the court.

In Goldie v. Werner, 151 Ill. 551, 556, it is said: “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, etc., is thus stated in section 414 of Wood on tbe 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; 2d, that the master had notice thereof, or knowledge, or ought to have had; 3d, that the servant did not know of the defect, and had not equal means of knowing with the master.’ ”

The rule thus announced has been followed in many-subsequent cases, among which are the following: Chicago & A. R. Co. v. Scanlan, 170 Ill. 106; Edward Hines Lumber Co. v. Ligas, 172 Ill. 315, 320; Howe v. Medaris, 183 Ill. 288, 293; Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89, 98; Armour v. Brazeau, 191 Ill. 117; John S. Metcalf Co. v. Nystedt, 203 Ill. 333, 337; Momence Stone Co. v. Turrell, 205 Ill. 515, 522; Sargent Co. v. Baublis, 215 Ill. 428, 433; Montgomery Coal Co. v. Barringer, 218 Ill. 327; McCormick Harvesting Machine Co. v. Zakzewski, 220 Ill. 522, 526; Christiansen v. Graver Tank Works, 223 Ill. 142; Elgin J. & E. R. Co. v. Myers, 226 Ill. 358, 363; Galloway v. Chicago, R. I. & P. R. Co., 234 Ill. 474; Pinkley v. Chicago & E. I. R. Co., 246 Ill. 370, 377.

In Lake Erie & W. R. Co. v. Wilson, supra, it is said that “The duty and liability are the same with regard to the place of work and the appliance with which the work is done.” To the same effect are Hess v. Rosenthal, 160 Ill. 621; John S. Metcalf Co. v. Nystedt, supra, and Montgomery Coal Co. v. Barringer, supra. In the last case, it is said that the rules announced in the cases of Goldie v. Werner, supra, and Metcalf Co. v. Nystedt, supra, “have been repeatedly approved and reaffirmed by this court * * * and are the settled law of this state.” In the same case, the court recognizes a modification or exception to the third subdivision of the rule in the following language (p. 331): “The servant must not only have knowledge of the defect in the appliance or place, but must appreciate the danger to him when using the appliance or working in the place, in order to relieve the master from liability when the servant has been furnished a defective appliance or is directed to perform service in an unsafe place and. is injured;” but as to this exception the court said, (p. 332) : “This qualification to the third rule above referred to is a wholesome one in many instances, and should be enforced when the danger from the use of the appliance or the performance of work in an unsafe place is not obvious to the servant from a knowledge of the defect in the appliance or place,'but where the defect in the appliance or place is known and the danger is obvious to a man of ordinary intelligence such exception to said rule ought not to be applied. All persons of mature years and ordinary experience, and endowed with their natural faculties, must be held to understand the ordinary laws of nature, such as that water will run down hill, a falling body will strike the ground, etc., and it must be presumed, when such persons have knowledge of obvious defects in appliances or places with or in which they are engaged in performing ordinary labor and with which they are entirely familiar, they will also comprehend the natural and probable results which will follow from a use of such appliance or from working in such place.” (Italics ours.) The same exception is recognized in the case of Galloway v. Chicago, R. I. & P. E. Co., supra, where the court adds the qualification to its statement of the rule, in substance as follows: that if it appears that the servant had knowledge of the physical condition and defect which created the danger, then he is required to prove “that he did not know, and was not chargeable with knowledge of, the danger resulting from the existence of the defect.”

Applying these well established principles to the facts of this case, there is little doubt that the first two essentials to a recovery were proved, viz: that an unsafe and even dangerous condition existed, and that appellant knew that fact. The serious question is whether the preponderance of the evidence - shows either that appellee did not know, and did not have equal means of knowing, of the defective condition at the place of the accident, or if he did have knowledge of the physical condition complained of, that he did not know, and was not chargeable with knowledge of the danger resulting from the existence of that condition, It was shown that appellee knew the general location of the conveyor, the manner of its construction and the way it was used and operated; that for three weeks in September and October, and six days immediately prior to the accident, he had participated daily in the work of transferring malt from the bins to and through the conveyor; that every day except three or four during that time — twenty-four days in all — one of the men with whom he was working shoveled malt into the conveyor in appellee’s presence, and on those three or four days, appellee himself did that work; that while the work was going on, the uncovered section of the conveyor could be seen revolving and carrying away the malt, and that the conveyor made a noise as it revolved which could be plainly heard by anyone working near it. He knew that it was customary to remove about nine feet of the iron plates opposite the bin that was being emptied. He admitted that he saw the conveyer uncovered and revolving about five feet beyond the place where he stood just before the accident. In doing his work and seeing the other men do their work, he could not fail to see that each movement of the scraper brought up to and over the uncovered section of the conveyor a pile of wet and matted malt and to see that these piles of malt were carried away when they either sank into the conveyor by their own weight or were “shoved in” by the man with the fork. It appears that fifteen or twenty of such piles were thus brought up to and carried away by the conveyor during the twenty minutes immediately prior to the accident. Under these circumstances, any man of ordinary intelligence would certainly know that if he stood upon such a pile of malt at, or very near to, the opening above the conveyor and shoveled part of the pile at his feet into the conveyor the remainder would be likely to sink at- any moment under his weight. He would also know that the floor adjoining the conveyor would be more or less slippery after several of such piles of malt had passed over it. These were dangers that were perfectly obvious. They were apparent from mere casual observation, and therefore were risks which were assumed by appellee by continuing in his employment without objection after he had knowledge thereof or such means of knowledge as the evidence shows he had. In Browne v. Siegel, Cooper & Co., 191 Ill. 226, 233, it is said: “The master’s duty requires him to furnish the servant a place ordinarily safe in which to work, and that the machinery, means and appliances which he provides for the service shall be ordinarily safe and free from danger to the servant in their use, and the servant has the right to assume that he has performed this duty. But even if the master fails in such duty, and there are, to the knowledge of the servant, defects in such machinery, means and appliances which render their use hazardous, he is held to have assumed the hazard, for he cannot go on with knowledge of the danger, without complaint, until he is injured and then hold the master liable. The servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent.” See also McCormick Harvesting Machine Co. v. Zakzewski, 220 Ill. 522, 530.

It is urged, however, that appellee was negligently ordered to work at the place where he was injured, and that for this reason he did not assume the risk of injury while obeying the order. The alleged negligent order consisted in the foreman’s telling appel-lee, while he was on his way to the place, to “go down there and shove the malt right into the conveyor.” Appellee made no objection to this. He said that he understood the meaning of the order, that he “ought to know” what work was to be done. He was not told to do the work in any particular manner or to do anything other than the customary work.' The order amounted to nothing more than a mere direction to go to work, as usual. Such an order is not the kind of an order which will operate to relieve the servant- of an assumption of risk. .To have that effect, the alleged negligent order must be an order which amounts to an assurance of safety upon which the servant may rely. In Elgin, J. & E. R. Co. v. Myers, supra, it is said: “Where the servant knows of a defect or what the danger is, he cannot he said to rely upon the assurance that the danger does not exist. It is only where the servant has been misled by the assurance of the master, or some one standing in the master’s place, that he can excuse himself from the assumption of the risk on the ground that he has been assured by the master that there is no danger in the use of the appliance or piece of machinery which he knows, as a matter of fact, is defective and the use thereof attended with danger.” The same doctrine was repeated in Republic Iron & Steel Co. v. Lee, 227 Ill. 246, 259. There is nothing about the alleged order given to appellee which could have misled him in any way, or which could have been regarded by him as an assurance of safety upon which he could rely, contrary to his own knowledge of the danger. Nor is there any evidence that he was in any manner coerced into doing work he would otherwise not have done, or would have done in any different manner.

After a careful consideration of all the facts and circumstances shown by the record in this case, we are unable to escape the conclusion that appellee had full knowledge of the physical conditions surrounding the place where he was working and of the danger incident thereto, and that he was not misled by any negligent order of appellant’s foreman. It follows, as a matter of law, under the authorities above cited, that he assumed the risk of injury and cannot recover.

The judgment of the Superior Court will therefore be reversed with a finding of facts.

Reversed with findmg of facts.

Finding of facts to be incorporated in the judgment. The court finds from the evidence that at the time of his injury, appellee had full knowledge of the facts regarding the place in which he was working and was chargeable with knowledge of the defects and danger complained of in the declaration, and assumed the risk of injury therefrom.