The questions whether the appellant was guilty of negligence which produced the injury, and whether the appellee was guilty of contributory negligence, and whether or not the damages assessed were excessive, are all questions of fact. These, and all the other questions of fact in the case, are settled by the judgments of the lower courts.
In disposing- of the other questions involved, the Appellate Court, in its decision, expressed the following views:
“We are of opinion that the action of appellee cannot be said to constitute negligence per se. * * *
“The evidence as to demanding more torches from the assistant superintendent was not objected to, and evidence of the fact, that there was no light and no torch not in use when appellee went out with Flynn, was competent, not to establish negligence of appellant in failing to furnish one, for such negligence was not pleaded, but as bearing upon the reasonable care of appellee.
“The court did not err in excluding the photograph offered in evidence, for it did not appear that it .was a correct representation of the dump-pile, as it was at or prior to the time of the injury. If it were desired to present a photograph of the boilers only, one should have been prepared, which was not likely to mislead, by showing also the dump-pile as it was a year after the time in question.
“The following instruction was presented to the court by counsel for appellant:
“ ‘The court instructs you that, if you believe from the evidence, that the plaintiff knew of the removal of the dirt and debris from the dump-pile, or by the exercise of ordinary care could have known of the removal of dirt and debris from the dump-pile, and if the jury also believe from the evidence that the plaintiff failed to exercise ordinary care in going out to the place where he was injured in the night time, then your verdict must be for the defendant.’
“The court modified this instruction by inserting the words, ‘at or near the place where plaintiff fell’ after the words ‘dump-pile.’ This modification is complained of as error. The instruction taken altogether stated a correct proposition as tendered, and it was equally correct as modified. We are of opinion that the modification did not impose upon it any limitations which were prejudicial to appellant. Without its last hypothesis the instruction would iu either case, as tendered or as modified, be bad. It would not follow, because appellee knew of some removals from the pile which always left it with a gradually sloping bank, that, therefore, he was to be charged with notice of a new departure, by which the slope was changed into a sheer descent of nine feet. The words ‘at or near the place where plaintiff fell’ would, in their natural and reasonable application, cover any evidence which was introduced showing any knowledge of appellee of prior removals.
“The following instruction also was tendered by counsel for appellant:
“ ‘The court instructs you, that there are no allegations in the declaration that the defendant was guilty of negligence in failing to furnish the plaintiff lights at the time and place where he was injured, and, therefore, you will disregard all testimouy pertaining to the question of lights, and, unless you find the defendant is guilty of negligence as charged in the declaration, your verdict must be for the defendant. ’
“The court modified this instruction so that it read as follows:
“ ‘The court instructs you there are no allegations in the declaration that the defendant was guilty of negligence in failing to furnish the plaintiff lights at the time and place he was injured; and therefore, you should not find the defendant guilty of negligence in regard to the furnishing of light or base your verdict upon any claimed want of light or torches, and unless you find the defendant is guilty of negligence as charged in the declaration, your verdict must be for the defendant. ’
“This modification is assigned as error. We are of opinion that the instruction as tendered was bad, and that the modification by the court made it a proper instruction. The evidence referred to was competent to be considered upon the question of the care exercised by appellee. It was not competent as showing negligence of appellant, for such negligence was not alleged, and to that extent the instruction as modified properly excluded it.
“It is complained that the court erred in permitting counsel for appellee to question certain jurors upon their voir dire as to their interest in the Union Casualty Company. It appears that an attorney, representing that company, was present with the attorneys for appellant at the trial. The question was proper at least for the purpose of enabling counsel to exercise their right of peremptory challenge, if for no other purpose. (O’Hare v. Chicago, Madison and Northern Railroad Co. 139 Ill. 151; American Bridge Works v. Pereira, 79 Ill. App. 90, and cases therein cited.) * * * The judgment is affirmed.”
We concur in the views above expressed by the Appellate Court, and in the conclusion reached by them.
Accordingly, the judgment of the Appellate Court is affirmed.
judgment affirmed.