delivered the opinion of the court:
Upon the request of the plaintiff the court gave to the jury the following instruction:
2. “The court instructs the jury that it was the duty of the defendant to exercise reasonable care and diligence to employ a sufficient number of servants in and about the work in which the plaintiff was engaged, to render the performance of the work by the plaintiff reasonably safe; and if the jury believe, from the evidence, that the defendant failed to exercise such reasonable care and diligence, and negligently failed to employ a sufficient number of workmen so as to render the performance of the work by the plaintiff reasonably safe, and that by reason of its negligence, if any, in that respect, the plaintiff was injured, and that before and at the time of the injury he was exercising reasonable care and caution for his safety, as charged in the declaration, your verdict should be for the plaintiff.”
This instruction was erroneous and well calculated to mislead the jury. We are not aware of any-well considered case where it has been held that the servant who is in the exercise of reasonable care and caution may recover from the master upon the ground alone that the master has failed to furnish a sufficient supply of help, and yet the jury were so informed by this instruction. The law requires the employer to use reasonable care and diligence in providing suitable and safe machinery and appliances for the use of those engaged in his service, but if the employer fails in this regard, when the employee discovers that the machinery or appliances are unfit for use, or dangerous or insufficient, it is his duty to quit the service of the employer, but if he remains he does so at his own risk. So in this case. If it was the duty of appellant to employ more help in order to render the performance of the labor appellee was employed to perform reasonably safe, and appellant failed in that duty, when that fact was discovered by appellee it was his duty to quit appellant’s service, but if he remained he did so at his own risk. But, entirely ignoring the duty imposed upon appellee in this regard, the jury were in substance directed that he might recover if he was in the exercise of reasonable care and appellant had failed to furnish a sufficient number of workmen.
It is not claimed in the argument that the instruction lays down a correct rule of law for the control of the jury, but it is said if the instruction was bad the error was cured by instruction No. 12, given on behalf of the defendant, which, it is claimed, is almost identical with plaintiff’s instruction. Instruction No. 12 is as follows:
“The court instructs the jury, that although Rutkowski was injured, while at work for the defendant, in the manner alleged in the declaration, that of itself, and by itself alone, is not sufficient to charge Swift & Co. with liability for his injury. Before Swift & Co. can be charged with liability in that regard two things must be established by the evidence: First, that Swift & Co. was guilty of negligence as charged in the declaration; and second, that Rutkowski was, at and just before the time of the injury, exercising ordinary care for his own safety, as herein defined.”
It is no doubt true that a party cannot complain of an instruction where he has procured a like instruction to be given by the court. (Pierce v. Millay, 62 Ill. 133.) There is a similarity between the two instructions, but we do not regard the one so near like the other as to fall within the rule indicated. Upon a close examination it will be found that defendant’s instruction is not identical with nor is it substantially like plaintiff’s. The plaintiff’s instruction directed the jury, if they found certain facts, to find a verdict for the plaintiff, while defendant’s does not direct a finding either way. Plaintiff’s is mandatory, while defendant’s is directory. Moreover, the defendant’s instruction is one of a series, and when considered in connection with the others given for the defendant it is apparent that the defendant is not committed to the doctrine announced in plaintiff’s instruction, that plaintiff did not assume the risks of the employment after notice of its danger. Defendant’s instructions Nos. 15 and 16 are as follows:
15. “The court instructs you, that if there be risk or danger, and that such risk or danger is patent and obvious to the employee, no notice thereof is necessary.
16. “The court instructs you, that an employee is held to take the risk of all such dangers as are known to and understood by such employee.”
From these instructions it seems apparent that the defendant had had no intention of giving sanction or approval to the doctrine announced in plaintiff’s instruction, and we do not think appellant should be concluded from calling in question plaintiff’s erroneous instruction.
Had the evidence of plaintiff established a clear right of recovery we might have hesitated about reversing on account of the erroneous instruction. But such was not the case. Indeed, the Appellate Court, whose peculiar province it is to review the evidence and pass upon questions of fact in all cases, in the first opinion rendered in this case, said: “The evidence in this case was not sufficient to warrant a verdict upon the counts charging negligence in failing to employ a sufficient number of men.” Where the evidence upon which a recovery is asked is slight or doubtful, the instructions to the jury on questions of law should be accurate.
For the error indicated the judgments of the Superior and Appellate Courts will be reversed and the cause will be remanded.
Reversed and remanded.