dissenting:
At the close of the evidence for the plaintiff, and again at the close of all the evidence, the defendant presented to the court an instruction that the evidence was insufficient to sustain the allegations of the declaration and that the verdict should be for the defendant, with a request to give it to the jury. The request was refused and the refusal is assigned as error. The question raised by that assignment is not one of fact, and has not been settled by the judgment of the Appellate Court, as we have held in numerous cases. The motion to instruct the jury to find for the defendant raised a question of law, re viewable in this court, whether there was evidence before the jury which, with all the inferences to be fairly drawn from it, would support a verdict for the plaintiff. (Offutt v. World’s Columbian Exposition, 175 Ill. 472, and cases cited.) The essential facts to be proved by plaintiff were the exercise of ordinary care on his own part, the failure to use a like degree of care by the defendant, and an injury, of which such failure was the proximate cause. In acting on the request for the instruction the court was called upon to consider whether there was evidence which, with all the inferences that might justifiably be drawn from it, fairly tended to prove that the plaintiff was in the exercise of reasonable care for his own safety and that defendant was guilty of negligence as charged in the declaration. The declaration contained one count, in which plaintiff alleged that defendant was operating a factory and plaintiff was in its employ as night furnace-man; that in the" ordinary course of his duty he had frequent occasion to pass over a bed of cinders; that it was the duty of defendant not to excavate or remove any material part of the cinders without giving him due warning of the same, in order that he might not fall, while walking in the dark on said bed of cinders, into any excavation; that the defendant carelessly excavated and took away a large portion of said bed of cinders in the daytime without giving him any warning or notice, and that while he, with all due care and diligence, was walking on said bed of cinders in the night time, in the ordinary course of his duty, he fell from said bed of cinders into the excavation and broke his leg. There was no allegation of negligence in removing the cinders, but the duty alleged was to not make the removal without notice, and the breach of duty charged was in making such removal without warning to plaintiff.
For the purpose of deciding whether there was evidence which fairly tended to sustain the alleged cause of action, a more complete statement of the evidence than the foregoing, adopted from the Appellate Court, seems to be necessary.
There was very little, if any, disagreement at the trial as to the facts of the case. The evidence which it is claimed fairly tended to prove the duty alleg'ed, and a breach thereof, and the care of the plaintiff, is as follows: On November 12, 1895, plaintiff was night foreman for the defendant at its works in Chicago, where it was engag'ed in the business of making pig iron. He had worked for the defendant five years, and began when the furnace was being constructed. His work was in the day time until August, 1895. In 1894 he was put in charge of all the outside labor in the daytime, and continued in charge until he was made night foreman, in August, 1895. After that time he had charge of the men working at night, and in the absence of the superintendent, assistant superintendent or manager he had absolute authority at the works. The night gang consisted of about forty-six men, of whom he had full control. Everybody was bound to obey his orders and he had full power to dis-, charge any of the men. He commenced going on duty in August at a little before six in the evening and had charge until six in the morning. There was a boiler house standing east and west, with fourteen boilers fronting toward the north. In front of the boilers there was a paved passageway about eight feet wide, with a row of iron posts at the outer edge. Outside of these there was a passageway about twenty feet wide and another row of posts. Beyond these there was a dump-pile, composed of cinders and other refuse of the works. This refuse was wheeled out. as it was made, and dumped and leveled off so as to make an embankment about nine feet high, from the natural surface of the ground to a level with the floor of the boiler house. Men wheeled the cinders and refuse from what was called the “down-comer” to the edge of the embankment, and dumped the wheelbarrows at the edge so that the cinders ran down the declivity as steep as they would stand,—perhaps at an angle of sixty degrees. Slabs were used in the doors of cars to keep the coke from falling out, and were called “coke sticks.” There was a pile of these coke sticks put outside of the outer row of posts on the dump, to be used as fuel in the furnaces when gas was short. According to plaintiff’s witness Joseph Boyer the embankment was fifty to seventy-five feet long. He testified that teams were hauling the dirt away quite often; that defendant kept a boy there to keep tally, and the superintendent told the witness to keep an eye on how many loads were hauled away. Plaintiff testified that he had never known but one load of this stuff to be hauled away, but there is no dispute that it was the custom to dispose of the refuse, as defendant had opportunity, to contractors and others for filling. Plaintiff had been there for years while this was done, and could see what the custom was as to disposing of the stuff and hauling it away. During the year 1895, before the accident, defendant had sold a large quantity of the cinders to a contracting company, that was hauling it away. On the day before the accident there was a considerable quantity hauled, leaving the embankment perpendicular, and the pile of slabs or coke sticks was taken away so as not to interfere with further removal of cinders. The edge of the bank was nearer to the boilers than it had been. On the evening of the accident plaintiff came to work, and he had an extra man there by the name of James Flynn. He told Flynn there would be nothing for him to do and to come up and wheel the stuff from the down-comer. Plaintiff went to the office and Flynn came to the door and said he wanted a light; that he could not see anything, and was afraid to go out there without a torch. Plaintiff asked him if he couldn’t do without a light, and he said he could not, and plaintiff proposed to go and see. He told Flynn to come along and he would show him where to dump the stuff. They went out, plaintiff leading the way. It was so dark they conld not see anything, and the plaintiff stooped over and held his hands out, feeling for the coke sticks. He went thirty-five or forty feet from the boilers before he came to the edge of the bank. He was going entirely by the sense of feeling and could not see that the coke sticks were gone, and when he came to the edge of the embankment he fell over and broke his leg. He had gone out occasionally before that time at night to show the men where to dump cinders, and the last time was two nights before the accident. He testified that there were about twenty torches in use there, and he had authority to take one of the torches if he chose, by stopping the work of a man while he used it; that he was accustomed to take a torch when he went out to take the numbers on the iron cars near the furnace, but that he always went out without a torch on the dump-pile and could feel around, and that he could take a torch wherever he found it.
•The failure to furnish light was not charged as a breach of duty towards the plaintiff, and there were torches which he had a right to use. Nor was it charged as negligence that the cinders had been removed as the defendant was in the habit of doing, and as it naturally would whenever it had an opportunity of selling them. One question is whether, in the exercise of ordinary care, the defendant was bound to give notice to the plaintiff that a lot of cinders had been removed that day. The plaintiff does not come within that class of cases where a person must be informed of a condition because of his youth or inexperience. He was a man of maturity and experience, whom the defendant had placed in charge of its business, and it was not bound to point out dangers which were likely to be appreciated and understood by a person of his capacity. On this motion it must be assumed that the plaintiff had not, in fact, noticed the changing condition of the dump-pile. That fact, however, cannot avail him for two reasons: In the first place, the defendant had a right to act on the presumption that he knew of the customs and conditions that had been under his observation for years. The question whether defendant was guilty of negligence in not notifying the plaintiff of the changing condition of the dump-pile is to be judged upon the assumption that plaintiff knew what was open to his observation. In the second place, plaintiff is chargeable, in law, with knowledge of conditions which he had full opportunity to know. The law does not furnish one standard for employer and another for employee. It would be unavailing to the defendant to say that it did not know of the changing condition of the dump-pile when by the exercise of reasonable. care it would have known of it,'—and the same thing is to be said of the plaintiff. Actual ignorance of a condition open to observation would neither be allowed as a ground of defense to the defendant nor a ground of recovery to the plaintiff. To create a liability the defendant must have had reasonable ground to believe that the injury would result as a consequence of a failure to give notice. If, in the light of attending circumstances, such an injury might result as a natural and probable consequence to one using ordinary care, it would be negligence to not give warning. In determining whether plaintiff’s fall might have been foreseen and expected by the defendant it had a right to assume that he would act with reasonable care and caution in performing his duties. The standard on each side is not the behavior of the careless and reckless, nor of those who take counsel of their fears to guard against dangers which are barely possible, but of the reasonably prudent in view of the ordinary course of human affairs. The coke sticks were put there to be used as fuel, and were not intended as a warning or for a guide or protection. The defendant could not anticipate that their removal would operate to take away a warning of danger, and especially at a time when it was so dark they could not be seen at all. We do hot see how it can be said that defendant should assume it as probable that thq plaintiff would go out there where he could not see anything and could not have seen the pile of coke sticks if they had been there, to feel for the pile of coke sticks and show a laborer where to work. According to the testimony, if plaintiff had made his exploration in safety Flynn could not have seen the coke sticks or the edge of the bank after they had been found. If there had been no excavation, plaintiff would surely have gone down a declivity of sixty degrees. Whether he would have been injured as he was is a matter of mere speculation, although it was undoubtedly more dangerous on account of the bank being perpendicular.
Again, it was necessary that there should be evidence fairly tending to show that the plaintiff was in the exercise of reasonable care for his own safety. He testified that he had power to take a torch, and he claims that he has acquired a right to sue the defendant and recover damages for the injuries sustained because he did not take one. Defendant had invested him with absolute control of the premises, and whether the torches were many or few, he had an absolute right to secure his own safety by using one. He was vice-principal and foreman, and instead of exercising his powers and right he went out in utter darkness, where he could only feel his way and where Flynn was afraid to go. If Flynn had been injured defendant would undoubtedly have been held liable on the ground of negligence of plaintiff, as its foreman, in taking him out there. As it happened, plaintiff was the one who was hurt as a result of the same act of negligence on his part.
We think the instruction should have been given.