delivered the opinion of the Court:
The contention that the cause of action alleged in the declaration is not proved, is not tenable, because it was not urged before final judgment in the trial court. When it shall appear, upon "the trial, that the evidence does not prove a cause of action as alleged, if it be desired to avail of that objection it must be urged before judgment, in order that the plaintiff may have an opportunity to obviate it, if he can, by amending his declaration. (Wabash, St. Louis and Pacific Ry. Co. v. Coble, 113 Ill. 115.) The objection, however, that no cause of action is proved by the evidence, could not be obviated by any amendment of the declaration, and may therefore be urged whenever the right exists to consider and determine the weight and effect of the evidence. , But since we are precluded from passing upon questions-of fact in cases coming here from the Appellate Court, it follows that the determination of that court as to the weight and effect of the evidence is conclusive, and so all that we may do here, in respect to the evidence legally admissible, is simply to inquire, does it tend to prove a cause of action, without regard to whether there is countervailing evidence, and, if such, the amount or weight of it. Chicago and Northwestern Ry. Co. v. Dunleavy, 129 Ill. 132.
The general rule is, as contended by counsel for appellant, that where an employment is attended with danger, a servant engaging in it assumes the hazards of the ordinary perils which are included in it. But this assumes that the servant either actually knew of the danger, or by the exercise of ordinary care would have known of it; and it does not therefore have application where the servant was ignorant of the danger, and had no reasonable opportunity to know of it. Nor can it, manifestly, have application where the servant enters upon a hazardous employment under the promise of his employer that he shall be thereafter instructed in his duties, for in such case the servant relies for protection upon the instruction to be thereafter given him.
The testimony given by appellee tended to prove that he was seriously injured by appellant’s machinery; that appellee had no previous knowledge of the danger by which he was injured; that he was required by appellant, against his own wishes and without having knowledge of the dangers of the situation, to leave his other work and engage in the work wherein he was injured; that appellant promised appellee, before he engaged in this work, that his duties should be pointed out to him, which promise was not performed.. This, if unquestioned, is sufficient to sustain a recovery; and we have seen it can not be here inquired whether it is the same cause of action alleged in the declaration, or whether it was disproved by other evidence. (United States Rolling Stock Co. v. Wilder, 116 Ill. 111.) It may be conceded that it is not denied but that appellee was familiar with the locality where he was injured; but familiarity with locality by no means necessarily implies knowledge of the danger in superintending machinery at that locality,—and this appellee’s testimony expressly negatives.
It is contended that the court below erred in the following ruling:
Q. “Suppose a railing a foot and a half to two feet high, made of common, thin and cheap gas pipe, all along the elevator there, so that a man could take his shovel and shovel the sand right in between the bars; I would ask you whether the making or putting up of such railing along the elevator could have interfered with the running of that machinery, in your opinion ?”
Objected to by defendant.
The court: “Do you allege in your declaration that these conveyors were not properly protected ?
Mr. Gurley: “It assumes that that would be a complete guard.”
Objection overruled, and exception by defendant.
A. “If the rail was made two feet high we could shovel the sand underneath. This would not interfere with the conveyor. The sand could have been shoveled into the conveyor.
The court: “Was there any railing there—any guard—on either side of this conveyor ?
A. “No; nothing at all.”
The grounds of this contention, as stated by counsel for appellant, are: First, because “if a servant, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for, the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury;” second, because “it had not been shown, and no attempt had been made to-show, that such protection had ever been used in any foundry, much less that it had ever come into general use; nor was it shown that the witness had had sufficient experience, or any experience, in protecting conveyors, so that he could testify as an expert.”
It is enough to say, as respects the first objection, that there is.evidence tending to show that the appellee did not accept the employment knowing the hazards of it, but that he accepted it under the promise that its hazards should be pointed out to him, which was not done. We do not think that the matter is such that only an expert could testify in regard to it.
The fact whether the making of the suggested railing along the elevator would interfere with the running of the machinery, would seem to be patent to the observation of any one familiar with the locality. Nor is it conclusive that appellant is not guilty of negligence because no other foundry had used such railing. The evidence was not conclusive that appellant was guilty of negligence, but we can not say there was error in admitting it, upon the question of negligence, for the consideration of the jury, in connection with the other evidence before them upon that question.
The other questions discussed are not pertinent in this court.
The judgment is affirmed.
Judgment affirmed.