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gence, and includes keeping the edge of a pile of ore in such condition that the pile will not fall upon those working at its base.

8. SAME-when servant's knowledge of conditions is not an assumption of risk. Knowledge by an employee set to work by the side of a pile of ore that the light is insufficient, and his continuance at the work, do not constitute an assumption of the risk of the unsafe condition of the pile.

9. SAME -some knowledge of attendant danger will not defeat recovery by servant. The right of a servant to recover for injuries will not be defeated by some knowledge of attendant danger, if, in obeying the order of the master to perform the work, he acts with the degree of diligence which an ordinarily prudent man would exercise under the circumstances.

10. SAME-servant may assume that master will not expose him to unnecessary peril. A servant ordered by the master to perform a particular work has the right to assume that he will not be exposed to unnecessary perils, and to rest upon the implied assurance that there is no danger.

11. APPEALS AND ERRORS-effect of refusal to direct a verdict on a count not proved. A judgment will not be reversed for refusal to direct a verdict upon one count of a declaration where the remaining counts are sufficient to sustain it.

12. PLEADING—when allegation in declaration will be treated as surplusage. The allegation, in a declaration for injuries to an employee, of a promise to furnish additional light may be regarded as surplusage, where the same count also charges negligence in failing to keep the sides of a pile of ore of such shape and so supported that the ore would not fall down and injure employees, and injuries to the employee result from that cause.

13. INSTRUCTIONS—when improper refusal of instruction is cured. Refusal of an instruction to find for defendant upon the first count of a declaration because there was no evidence of a promise alleged is not cause for reversal, where an instruction given calls the attention of the jury to the absence of all testimony upon the subject of such a promise.

14. SAME-instruction assuming unproved facts properly refused. An instruction assuming that an employee suing his employer for personal injuries from the fall of ore from a pile at the base of which he was working was aware of the dangerous condition of the pile, and that there was a promise to remove the danger, is properly refused, where there is no evidence of such knowledge on his part or of such promise, especially where it ignores the fact that he was ordered to work where he did.

Illinois Steel Co. v. Schymanowski, 59 Ill. App. 32, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE F. BLANKE, Judge, presiding.

This is an action brought by appellee against the appellant company to recover damages for a personal injury. The trial below resulted in verdict and judgment for the plaintiff, which judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance.

The declaration consists of three counts. The first count alleges that on January 18, 1892, the defendant was possessed of a large pile of ore, and was in the night time causing quantities of ore to be taken from said pile aforesaid and conveyed elsewhere, and it was the duty of said defendant to have the sides of said pile of ore of such a shape and so supported that said ore would not fall down and injure the persons engaged in its removal, as aforesaid, yet the defendant did not do its duty in this regard, but carelessly and negligently had and kept the side of said pile of ore from which ore was being removed, as aforesaid, so steep, unsupported and overhanging that the under part of the same would not support the upper part of the same, and the plaintiff was in the employ of said defendant, and was then and there by said defendant in the night-time set to work to assist in moving ore at said place in said pile of ore from which ore was being , moved, as aforesaid, and was by said defendant ordered to work at said place and assist in moving said ore, and the plaintiff then and there, without fault or negligence on his part, being ignorant of the dangers of the place, obeyed the order of said defendant and went to work at said place assisting in moving ore from said pile, when, in consequence of the careless and negligent misconduct of the defendant aforesaid, a large quantity of ore fell from the upper part of said pile of ore to and upon the

plaintiff there, and without fault or negligence on his part greatly bruised, wounded, mangled him, etc.

The second count is the same as the first, except that, in addition to the duty alleged in the latter count, it sets up the further duty of the defendant to have the place at said pile of ore from which ore was being taken, as aforesaid, well and sufficiently lighted, so that the persons engaged in removing said ore from said pile might safely perform their work and see and avoid any danger which might threaten them in the prosecution of said work; and alleges that defendant had said place from which said ore was being moved, as aforesaid, poorly and insufficiently lighted, so that the persons engaged in removing said ore from said pile of ore could not safely perform their work, nor see nor avoid any danger which might threaten them in the prosecution of their work.

The third count is the same as the second, except that it uses the words, "carelessly, negligently, willfully and wantonly," instead of the words, "carelessly and negligently," and except that, in addition to alleging, that plaintiff "was by said defendant ordered to work at said place and assist in moving said ore," it makes a further allegation in the following words: "And the plaintiff then and there protested to said defendant against working with so little light, but said defendant insisted that the plaintiff should work at said place as it then was, and promised the plaintiff to furnish more light there within a short time thereafter, and the plaintiff then and there, without fault or negligence on his part, relying on said promise of said defendant, the night being dark and stormy and the plaintiff being ignorant of the dangers of the place, obeyed the order of said defendant and went to work at said place, assisting in moving," etc.

The defendant, at the conclusion of the evidence, asked the court to give the following instruction:

"The court instructs the jury that the first count of plaintiff's declaration alleges that defendant furnished

insufficient light for plaintiff to work by; that plaintiff asked for additional light and that defendant promised to furnish the same; that plaintiff, relying on that promise, returned to work; that defendant did not perform its said promise, and that by reason thereof plaintiff was injured. The court instructs the jury that no evidence has been offered to prove that defendant made any such promise as alleged, and that they will, therefore, find for the defendant upon this count."

The court refused to give the instruction as thus asked, but modified it by inserting the words, "that question," after the word, "find," in the last clause of the last sentence, so that said last clause read as follows: "And that they will therefore find that question for the defendant upon this count."

WILLIAMS, HOLT & WHEELER, and E. PARMALEE PRENTICE, for appellant:

The court erred in refusing to instruct the jury to find for defendant on the first count. That count charged malice, and malice not being proven, plaintiff could not recover on that count. Railroad Co. v. Dickson, 88 Ill. 431; Railroad Co. v. Burkage, 99 Ind. 46; Railroad Co. v. Winn, 93 Ala. 306; Coulton's case, 86 id. 129; Railroad Co. v. Jacobs, 92 id. 187.

That count also alleged insufficiency of light; that defendant promised to furnish additional light; that plaintiff, relying on this promise, returned to work and was injured. No promise was proved. The allegations referring to this promise were material, and cannot be considered as surplusage. Railroad Co. v. Morkenstein, 24 Ill. App. 128; Railroad Co. v. Watson, 114 Ind. 20; Railroad Co. v. Drew, 59 Tex. 10.

If these allegations be considered as stricken out from the first count, the rest of the count remaining as originally drawn, the result would be that the count would

state no cause of action against the defendant. Railroad Co. v. Watson, 114 Ind. 20; Railroad Co. v. Drew, 59 Tex. 10; Cooley on Torts, 559; Stevenson v. Duncan, 73 Wis. 404.

The servant is under as great obligation to provide for his own safety from such dangers as are known to him or as are discernible by ordinary care on his part, as the master is to provide it for him. He must not go blindly to his work. Wormell v. Railway Co. 79 Mass. 405; Bailey on Master's Liability, 159-161.

Personal negligence is the gist of an action of this sort, and it must therefore appear, to render the master liable, that he knew, or from the nature of the case ought to have known, of the unfitness of the means of labor furnished to the servant, and that the servant did not know, or could not reasonably be held to have known, of the defect. Beach on Cont. Negligence, sec. 346; Griffiths v. Docks Co. 13 Q. B. Div. 259; Railway Co. v. Bailey, 110 Ind. 75; Wright v. Railroad Co. 35 N. Y. 562; Booth v. Railroad Co. 67 id. 593; Murphy v. Railroad Co. 88 id. 146; Laning v. Railroad Co. 49 id. 521; Ryan v. Fowler, 24 id. 410; Fuller v. Jewett, 80 id. 46; Vosburgh v. Railroad Co. 94 id. 374; Cone v. Railroad Co. 81 id. 206; Flike v. Railroad Co. 53 id. 549; Corcoran v. Holbrook, 59 id. 519; Hickey v. Taaffe, 32 Hun, 7; Hawley v. Railroad Co. 82 N. Y. 370; Daley v. Shaff, 28 Hun, 314; Ellis v. Railroad Co. 95 N. Y. 546; Holden v. Railroad Co. 129 Mass. 268; Ford v. Railroad Co. 110 id. 240; Snow v. Railroad Co. 8 Allen, 441; Hackett v. Manufacturing Co. 101 Mass. 101; Arkarson v. Dennison, 117 id. 407; Walsh v. Valve Co. 110 id. 23; Wheeler v. Mason Manf. Co. 135 id. 294; McGee v. Cordage Co. 139 id. 145; Baker v. Railroad Co. 95 Pa. St. 211; Patterson v. Railroad Co. 76 id. 389; Johnson v. Bruner, 61 id. 58; O'Donnell v. Railroad Co. 59 id. 389; Oil Co. v. Gilson, 63 id. 146; Riley v. Steamship Co. 29 La. Ann. 791; Muldowney v. Railroad Co. 39 Iowa, 615; Greenleaf v. Railroad Co. 29 id. 14; Tuttle v. Railroad Co. 48 id. 236; Brann v. Railroad Co. 53 id. 595; Baldwin v. Railroad Co. 50 id. 680; Way v. Railroad Co. 40 id. 341; Hallower v. Henley, 6 Cal. 209;

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