delivered the opinion of the court:
Of the assignments of error made on this record and argued by appellant there is only one proper for this court to consider. The question of the negligence of appellant, and some other questions argued by counsel for appellant, are those of fact, which have been settled by the judgment of the Appellate Court.
Error is assigned by the appellant on the refusal of the trial court to give to the jury, on the trial of this cause, the following instruction:
“The court instructs the jury that an employee who continues in the service of his employer after notice of a defect increasing the danger of the service, assumes the risk as increased by the defect, unless the master promised to remedy the defect; and in the event that the master does so promise, the servant may, while relying upon such promise, remain in the service of the master only for such a time thereafter as would be reasonably sufficient to enable the master to remedy the defect, and that if the master does not, within a reasonable time after such promise, remedy the defect, then and in such event, if the servant continues still in the employ of the master, he assumes the risk as increased by the defect; and the court therefore instructs the jury, that if they believe, from the evidence in this case, that the standing upon which the plaintiff worked while in the employ of the defendant was defective, that the defendant promised to remedy the same but failed to do so within a reasonable time after such promise, and that the plaintiff continued thereafter to work for the defendant knowing that the defendant had failed to remedy the defect within a reasonable time after such promise, then and in such event the court instructs the jury that the plaintiff assumed the additional risk of the defect in the condition of the floor, and if the jury so finds they will return their verdict for the defendant.”
This instruction was refused by the trial court, and it is practical^ admitted that no other instruction involving the same principle was given to the jury, for the reason, as counsel for appellee insists, it does not contain a correct expression of the law of this State. It is urged as an objection to this instruction that it would inform the jury that the servant may, while relying upon the promises of the master to repair a defect, remain in the service of the master only for such time thereafter as would be reasonable and sufficient to enable the master to remedy the defect, and that if the master does not, within a reasonable time after such promise, remedy the defect, then and in such event, if the servant still continues in the employ of the master, he assumes the risk as increased by the defect of which he himself had knowledge.- The trial court not only refused this instruction, but, by another instruction requested by the plaintiff, told the jury that if the defendant promised to repair the defect, and he was led to believe and expect that the floor would soon be repaired, and that he continued to remain in the employment of the defendant up to the time he was injured, irrespective of whether or not such time was a reasonable one in which the defect might have been remedied, the plaintiff was entitled to recover.
It is a recognized rule that it is the duty of the master to furnish to the servant reasonably safe machinery and appliances with which to perform his work, but when the servant discovers that the service has become more dangerous than he anticipated when he entered the employment of the master, or when he discovers defects in the machinery or appliances which make it unsafe for him to longer continue in the employ of the master, or from any other cause he concludes there is danger in continuing further in the service, it is his duty to notify the master of such danger or of such defects in the machinery or appliances connected with his work, and, upon the master being notified, the servant has the right to continue in the employ of the master for a reasonable time awaiting the remedy of such defect. He has the right to rely for a reasonable time upon the promise of the master that such defect in the machinery, appliances or other surroundings connected with his work will be repaired and the machinery made safe, and the right to expect that such promise so made by the master will be fulfilled. If such expectation on the part of the servant, however, is not fulfilled and the defect remedied by the master within a reasonable time, and the servant has full knowledge of the dangerous condition of his machinery, appliance's or surroundings, and that he is subjected at all times to prospective injury, it is his duty to quit the service of the master, and not 'subject himself to further danger.
■In the case of District of Columbia v. McElligot, 117 H. S. 621, the cause arose out of personal injuries received by a laborer while at work upon a bank of gravel. The evidence tended to show he discovered the bank was in an unsafe condition and asked the supervisor for a man to watch it, whereupon he received assurance such would be done. No such assistance, however was given, but the laborer continued to work for a half day thereafter, knowing the danger, when the bank fell and severely injured him. It was held by the court in that case it was the duty of the laborer, having knowledge of the dangerous condition of the bank, to exercise diligence and care in protecting himself, without regard to any assurance which he might have received from his employer.
The rule in the above case is stronger than the rule in this State. As a general rule, courts will consider that the master who employs a servant has a better and more comprehensive knowledge of the machinery and materials to be used than the employee. The servant has the right to presume that the materials and appliances which are furnished to him in the performance of his duty are sufficient therefor. This rule, however, is not applicable to all cases, and where the servant has equal knowledge with the master and a full knowledge of all existing defects, and more especially in the performance of ordinary labor in which no intricate machinery is involved, the rule is not applicable. In Marsh v. Chickering, 101 N. Y. 400, this exception is recognized, and it is said that the facts that a laborer using ordinary tools and appliances notified the master of a defect of which the servant himself had full knowledge, and asked it to be remedied, and the master promised so to do, do not render the master responsible. The rule in this State is more liberal, how-. ever, and permits the servant to remain in the employ of the master for a reasonable time awaiting the remedy of such defects.
In Corcoran v. Milwaukee Gas Light Co. 51 Wis. 191, the plaintiff had been employed by the defendant in making general repairs about its building, and had occasionally been required to use a ladder. Upon his statement that the ladder was not safe, the foreman had promised to have a safe ladder provided. Relying upon such promise the plaintiff continued in the employ of the defendant, but the foreman failed to provide such safe ladder. The plaintiff was ordered by the foreman to ascend the ladder and make certain repairs, and, the ladder being unsafe and the floor on which it rested being slippery, the plaintiff was injured by the falling of the ladder while ascending it. The court in that case held no liability, saying it has been held by it that in a proper case the servant may rely upon such assurance to remedy defects for a reasonable time, but if he remains in such service after the expiration of such reasonable time he is thereby deemed to waive his objection and assume the risk. To the same effect, also, is Gowan v. Harley, 56 Fed. Rep. 974. In that case the court says: “The rule that the master is responsible for damages resulting to the servant from defects in machinery and appliances of which the servant has notified him and which he has promised to repair, governs cases in which machinery or tools that are used in the work are discovered to be dangerously defective while in use, and to cases in which tools and machinery are necessary for the safe performance of the work. It has no application to a case where the service rendered is simply manual labor, without tools and machinery, and where no such tools or appliances are necessary to the performance of the work with a reasonable degree of safety.”
In Stephenson v. Duncan, 73 Wis. 404, it was held that the servant has the right to abandon the service because it is dangerous, but that he may refrain for a reasonable time from so doing in consequence of assurances by the master that the danger shall be remedied, and he will not be held to thereby assume the risk. But if he continues in the service for a longer time than is reasonable to allow for the performance of the master’s promise, he will be deemed to have waived his objection and assumed the risk.
In the case of Missouri Furnace Co. v. Abend, 107 Ill. 44, this court said (p. 51): “It is now uniformly stated by text writers, that where the master, on being notified -by the servant of defects that render the service he is engaged to perform more hazardous, expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of a promise in that regard without being guilty of negligence, and if any injury results therefrom he may recover, unless when the danger is so imminent that no prudent person would undertake to perform the service. * * * The doctrine on this subject rests on sound principle, and it will be found to be supported by English and American decisions. The reason upon which the rule is said to rest is, that the promise of the master to repair defects relieves the servant from the charge of negligence by continuing in the service after the discovery of the extra perils to which he would be exposed.”
In Counsel v. Hall, 145 Mass. 468, the plaintiff was employed by the defendant to take charge of an engine and boiler, and plaintiff complained to defendant that the glass water-gauge of the boiler was defective and dangerous, and defendant promised to get a new one. About two weeks after, the gauge exploded, injuring the plaintiff. The court said: “If machinery upon which a servant is employed has become dangerous, and the servant has complained of it and has been promised that it shall be repaired, but is injured before the defect is remedied and while he is reasonably expecting the promise to be performed, the promise is a circumstance to be considered by the jury. * * * If the time for the performance has gone by before the accident, and, as must have been, after the servant knows that the repairs have not been made, there is very strong argument that the servant is no longer relying upon the promise and has decided to take the risk.”
In Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, the plaintiff was engaged in taking clay from the bank. He had objected to go underneath on account of the dangerous condition of the bank, and said that if it should go down he would be injured. One Keily was foreman in charge, representing the defendant, and he insisted there Was no danger and ordered the plaintiff to go underneath and perform his work. Under those circumstances the court, in its opinion, held the plaintiff was not on the same footing with the master, and that his primary duty was obedience, and while he believed it dangerous to go under the bank, and protested, yet where the master sought to allay his fears and induce obedience to his commands by declaring there was no danger, the servant, in such case, having such fears and relying upon such assurances, was entitled to recover. That case, however, presents various differences from the case at bar.
While it is true some cases hold the rule to be, that the servant, after having informed the master of any defects in machinery, tools, appliances or surroundings of his work, and the master having promised to repair and make safe such defects, has the right to rely upon such promise and continue in the employ of the master expecting such promise to be fulfilled, yet the rule in this State, and also in most other States, holds that such expectation on the part of the servant may continue only for a time reasonable for such repairs to be made or defects remedied, and if not so made within a reasonable time, the servant, ha-ving full knowledge of such defects, will be considered to have waived the same and subject himself to all the dangers incident thereto. (Swift v. Madden, 165 Ill. 41.) In the case at bar, the plaintiff says he had frequently gone to the foreman and told him that the standing where he was working was dangerous, and that the foreman would make an “offish” reply of some kind and say he would fix it. Plaintiff says he spoke to the foreman quite a number of times during the year prior to this accident, the last time being two or three weeks before the injury occurred. He also says, in substance, that he did not place much reliance upon the foreman’s word, but supposed, however, the floor would be fixed.
It is apparent from this record the floor was in a dangerous condition. It is apparent, also, the plaintiff was fully aware of this dangerous condition, and had been so for at least a year. It was his duty, being fully aware of the danger, to have notified the foreman or his employer, which he did. It was his right, also, under the law, having given such notice, to have continued in the work in which he'was engaged for a reasonable time only, awaiting the fulfillment of this promise to remedy such dangerous condition. The jury should have been instructed that the law was as stated in the instruction which was refused. The instructiou should have been given, and it was error to refuse it. For this error the judgment is reversed and the cause remanded to the circuit court.
Reversed and remanded.