delivered the opinion of the court:
In the oral argument two grounds were urged for the reversal of the judgment of the Appellate Court: First, that the circuit court erred in giving appellee’s instruction No. 2; and second, that the circuit court erred in modifying appellant’s instruction No. 12, and in giving such instruction, as modified, to the jury.
The objection made to the second instruction is, that it omits the element of a preponderance of the evidence. Upon an examination of the instruction it will be found that it simply informs the jury that the piaintiff has the right to set out his cause of action in a variety of ways in the different counts of his declaration, and that he may recover if he has sustained by proof any one or more of the counts. The instruction does not attempt to lay down a rule in regard to the amount of proof required, but it is silent on that question, and upon this ground it might be sustained. But the first instruction given for the plaintiff fully covered that question, as follows: “The court instructs the jury that if the plaintiff has established, by a preponderance of the evidence, the facts as set forth in either count of the declaration he is entitled to a verdict in his favor.” The court having clearly informed the jury in this instruction that a preponderance of the evidence was essential to a recovery, it, was not necessary to repeat the law on that subject in subsequent instructions. Cunningham v. Stein, 109 Ill. 375.
The twelfth instruction asked on behalf of appellant, and which was modified, is as follows, the modification being printed in italics:
“If the evidence in this case shows that the plaintiff was, at the time of his injury, acting in the capacity of a superintendent of the elevator of the defendant, and that he voluntarily undertook to manage and control the car-puller described in the declaration with the knowledge of its condition, or could have had such knowledge by the exercise of ordinary care, then he took the risk, whatever it might be, of the use of the same, and was bound to use all reasonable care and caution for his own safety in its use, and if he was injured because of any lack of reasonable caution upon his own part, he cannot recover in this case.”
The testimony discloses the fact that appellee was employed in the mill and elevator as clerk and book-keeper. It was not his duty to run or assist in running the car-puller. For some time before the accident, owing to a press of business, it had become necessary to work in the elevator at night. Turner, the superintendent, and some other employees, had worked during the night before the accident. On the morning of the ac.cident Turner directed appellee to take charge of the elevator that day so that he could go home and rest. It does not appear that appellee was entrusted with authority to employ or discharge men in the elevator, nor does it appear that he was clothed with power to make contracts in reference to the business of the appellant. He was merely left in charge of the work in and about the elevator, by the superintendent, during the day. Under such circumstances it cannot be said that appellee was, on the day of the accident, a general superintendent of appellant’s elevator and mill, or a vice-principal, but, on the other hand, was a book-keeper, as he had been before, with temporary authority to look after the work in the mill and elevator while the superintendent was absent during the day.There being, therefore, an insufficiency of evidence to prove that appellee was superintendent of appellant on the day of the accident there was not sufficient evidence upon which the instruction could be predicated, and it should have been refused by the court. The instruction, in' the form in which the court was asked to give it, in plain terms directed the jury that if appellee was acting in the capacity of a superintendent of the elevator and voluntarily undertook to manage and control the car-puller then he took the risk. The mere fact that appellee was taken from his desk by the superintendent of the elevator and directed to take charge of handling grain in the elevator for a day did not transform him into a superintendent, nor clothe him with the power of a superintendent, nor did such fact constitute appellee a vice-principal of appellant. It was not proven that Turner had authority to appoint a superintendent for appellant, and in the absence of such power his appointment was a nullity. As the instruction was erroneous and should have been refused, the modification, although wrong, constitutes no ground for reversing the judgment.
In appellant’s brief the ruling of the court on other instructions has been criticised, but after a careful examination of the questions raised we find no substantial error of the court, but, on the other hand, the law involved in the case was fairly given to the jury.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.