delivered the opinion of the court:
Appellant contends the trial court erred in denying its motion to direct a verdict in its favor. It concedes that the evidence was conflicting on the question as to whether the rope was defective and as to whether appellee was guilty of contributory negligence, and that the judgment of the Appellate Court is final upon those questions, but contends that appellee, at the time he was injured, was not acting under a command or order of a foreman of appellant who had charge of the work of loading the car and authority to direct, order and control the plaintiff and others under his charge, as alleged in the first and second counts; also, that the facts relied on by appellee to support the third count of the declaration, that the rope was defective and unsafe, were known to him before the accident occurred, and he must therefore be held, as a matter of law, to have assumed the risk of injury thereby.
On the question whether Lyansapp, by whom appellee claims he was ordered to do the work in the manner he was doing it at the time of the injury, was in control of the car and was acting as the representative of appellant in directing the work, the evidence was conflicting. Appellant’s testimony tended to show that a man by the name of Scurlock was foreman. Appellee’s evidence abundantly tends to show that the work was directed and all orders given the men by Lyansapp and that Scurlock worked with the crew but gave no orders. Whether Lyansapp was foreman was a question of fact, which was properly submitted by the trial court to the jury and is not now subject to review by us.
The proof shows the rope which was attached to the engine broke once the same day and before appellee was injured. One of the workmen spoke to Lyansapp about it and suggested using another and newer rope they had. Ly-aiisapp replied he thought it was strong enough and that he did not have time to malee the change; that he was anxious to get the work done and get out of the way of a passenger train which was soon due to pass. He told the men that if they did not hurry they would not get the work done in time to get out of the way of this passenger train, and ordered them to go ahead. The rope was a manila rope one inch in diameter. The only proof of its defective condition was that it appeared to be old and to have been used considerably and the fact that it had broken once that morning. Appellee had not worked with it before, and there 'is no evidence that he had ever seen it until it was put in use that morning. He had only begun work with that crew the day before he was injured. There is no substantial ground for appellant’s contention that the trial court should have directed a verdict in its favor because under the evidence, as a matter of law, it must be held that ap-pellee assumed the risk of injury from the defective rope. Swift & Co. v. O’Neill, 187 Ill. 337; Springfield, Boiler Co. v. Parks, 222 id. 355; Chicago, Rock Island and Pacific Railway Co. v. Rathneau, 225 id. 278; Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 id. 573; Illinois Steel Co. v. Schymanowski, 162 id. 447; Offutt v. World’s Columbian Exposition, 175 id. 472.
No substantial error was committed by the trial court and no prejudice resulted to appellant from its rulings in giving, refusing and modifying instructions.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.