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count, after eliminating therefrom the allegation of a promise, as still being a part of the declaration, and that the promise and reliance thereon were so much a part of the first count as to make a recovery upon what was left of it impossible. In other words, it is insisted that the allegation as to the promise cannot be regarded as surplusage. We are unable to agree with this contention. The plaintiff may aver in his declaration as many grounds of recovery as he sees proper, but it is not necessary to prove all that is alleged. It is sufficient to prove enough of the negligence charged to make out a case. (New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 Ill. 40). Where a servant sued his master for a personal injury while engaged in service, and alleged two grounds of actionable negligence, namely, negligence in failing to remedy a defect in the floor of the shop where the plaintiff was employed, and negligence in failing to perform a promise to place guards over certain knives used in the shaping of materials, we said: "The fact, that plaintiff failed to prove that defendant promised * to remedy the defect of the machine in regard to guards over the knives, did not preclude a recovery on the ground of other negligence relied upon and sustained by the evidence." (Weber Wagon Co. v. Kehl, 139 Ill. 644). So, in the case at bar, the first count charges negligence upon the ground that the defendant did not have and keep the sides of the pile of ore of such shape and so supported, that the ore would not fall down and injure the persons at work near the pile, and also upon the ground that defendant did not perform its promise to furnish more light to work by; but the fact, that plaintiff failed to prove the promise to furnish more light, does not preclude a recovery upon the other ground of negligence in failing to keep the sides of the pile of ore in a safe condition.

•* * *



It is said, however, that, even if the allegation of the promise be regarded as surplusage, the balance of the

first count, after eliminating that allegation, contains an averment, that the plaintiff protested to defendant against working with so little light, and that this averment shows that plaintiff had knowledge of the danger, and yet with such knowledge continued to work. This view ignores the further averment contained in the count to the effect, that plaintiff was ordered to work at said place and assist in moving the ore. The same averment as to the order of the plaintiff is contained in all the counts. Undoubtedly the general rule is, that an employee who continues in the service of his employer after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect. But this rule is subject to qualification. In the first place, there is a distinction between knowledge of defects and knowledge of the risks resulting from such defects. The servant is not chargeable with contributory negligence if he knows that defects exist, but does not know, or cannot know by the exercise of ordinary prudence, that risks exist. (Cook v. St. P., M. & M. Ry. Co. 34 Minn. 45; Consolidated Coal Co. v. Haenni, 146 Ill. 614). Appellee's knowledge of the fact, that the light was not sufficient for work on a dark and stormy night, did not indicate, that he knew of the unsafe condition of the pile of ore and of the risk in working near it. In the next place, a master is liable to a servant when he orders the latter to perform a dangerous work, unless the danger is so imminent that no man of ordinary prudence would incur it. Even if the servant has some knowledge of attendant danger, his right of recovery will not be defeated, if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. When the master orders the servant to perform his work, the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils; the servant has a right to rest upon the assurance that there is no danger,

which is implied by such an order. The master and servant are not altogether upon a footing of equality. The primary duty of the latter is obedience, and he cannot be charged with negligence in obeying an order of the master, unless he acts recklessly in so obeying. Whether he acted thus recklessly in obeying his master's order, or whether he acted as a reasonably prudent person should act, are questions of fact to be determined by the jury. (Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; National Syrup Co. v. Carlson, 155 id. 210; Keegan v. Kavanaugh, 62 Mo. 230; Aldridge, Admr. v. Midland Blast Furnace Co. 78 id. 565; Ferren v. Old Colony Railroad Co. 143 Mass. 197; City of Lebanon v. McCoy, 40 N. E. Rep. 700; B. & O. C. R. Co. v. Leathers, 40 id. 1094; Lee v. Woolsey, 109 Pa. St. 124; Mulcaines v. City of Janesville, 67 Wis. 24; Kranz v. Railroad Co. 123 N. Y. 1). These questions of fact are settled in this case by the judgment of the Appellate Court affirming that of the trial court.

It is furthermore asserted, that, by the use of the words "willfully and wantonly," the first count charges malice, and that there is no proof of malice. It was for the jury to say, under all the circumstances, whether the conduct of the foreman in striking the pile of ore with his pick, and profanely ordering appellee to work at the place where the striking took place, was or was not wanton and reckless. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596). But whether there was any proof of wantonness and recklessness or not, the second and third counts contained no allegation on that subject, and, as has already been stated, they are sufficient to sustain the verdict without the first count.

Third—It is assigned as error that the trial court erred in refusing to give the sixth instruction asked by appellant. This instruction announces in general terms, that where a servant engaged in ordinary labor not requiring special skill, is injured by reason of a danger of which he was aware, the master is not liable, although the ser

vant may have notified him of the danger, and the master may have promised to remove it; and, in reference to the present case, it tells the jury, that, if they find from the evidence, that the labor in which appellee was engaged was ordinary labor not requiring special skill, and that plaintiff was as well acquainted with any danger which existed at that time as the defendant, then their verdict must be for the defendant.


It may be, that, where an ordinary laborer uses a tool, such as a ladder, in the performance of his work, knowing that such tool is defective, he cannot recover against his employer, although he may have told the latter of the defect and the employer may have promised to remedy it. (Marsh v. Chickering, 101 N. Y. 397; Corcoran v. Mil. Gas Light Co. 81 Wis. 191). The danger in such case is obvious, and the continued use of the tool after knowledge of the defect, and after the lapse of more than a reasonable time since the promise to remedy it was made, indicates recklessness. But the sixth instruction was properly refused, because it has no application to this The defect, which caused the injury, was the unsafe condition of the pile of ore at the base of which appellee was working, and not the condition.of the tools with which he was working. The instruction assumes, that appellee was aware of the dangerous condition of the pile, when there was no evidence upon which such assumption could be based. It also assumes, that there was a promise to remove the danger, when it is insisted by the appellant itself that there is no proof of such promise. It was appellant's duty to see, that the pile of ore was safe, and appellee had the right to rely upon the belief that appellant had made it safe. Hence, the obligation of appellee to be acquainted with the danger was not the same as that of appellant. The latter was liable if it might have known of the danger by the exercise of due care. The instruction ignores the fact, that appellee was ordered by the foreman to work where he did.

1162 462 163 100 162 462 66a 664

162 462 166 644

162 462 171 292

The observations here made apply in great part to the
seventh instruction asked by the defendant, in the refusal
of which there was no error. The fifth instruction given
for the defendant stated the law, upon the main propo-
sitions embraced in the refused instructions, as favor-
ably for the defendant, as the circumstances of the case

The judgment of the Appellate Court is affirmed.
Judgment affirmed.




Filed at Ottawa May 12, 1896-Rehearing denied October 13, 1896.

1. MECHANICS' LIENS-year in which materials were furnished supplied from date of claim. A statement of claim filed with the circuit clerk for a mechanic's lien, dated September 1, 1892, shows the year of the delivery of the materials furnished by the date of such statement, although no year is attached to the dates of furnishing items, the months April, May, June and July only being specified.

2. SAME-sufficiency of description of property in claim for lien. A statement for a mechanic's lien sufficiently describes the property where, taken as a whole, enough is shown to inform parties interested upon what property a lien is claimed.

3. SAME-single lien cannot be taken on distinct and separate properties. A single lien cannot be had for materials furnished for six separate houses upon land held by the contracting owner under deeds for six lots separately, although such deeds have not been recorded and the record title shows the land as a single tract, especially where the order for such materials indicates that they are to be used in building separate houses.

4. SAME single lien on separate properties as affected by time of recording deeds. If the recording of the deeds to the contracting owner is of controlling importance upon the question whether a single lien can be had for materials furnished for several houses, the recording, before the filing of the claim for lien and before any considerable amount of the materials is delivered, of a deed describing the property as separate will prevent a single lien.

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