Appellant brings this appeal from a judgment of the Superior Court for 85,000, recovered by appellee for causing the death of George Innes, the husband of appellee.
It appears from the record that the deceased was employed by the superintendent of appellant to run the elevator, that he was an experienced elevator man, had run elevators for many years and was careful and competent. Within a short time after he commenced to run the elevator on the first trip he made, either the beams overhead and which bore the weight of the elevator, or the wheel over which the cable ran, broke, and the elevator was precipitated to the bottom of the shaft and Innes was killed. There is nothing to show that the falling of the elevator was due to any carelessness on the part of deceased, and from his experience and character for prudence the jury might infer the exercise by him of proper care in managing the elevator. It is in proof that there was no air-brake on the elevator and that if a proper air-brake had been upon it, the fall of the elevator would have been prevented. It further appears that a steam-brake, which was on the elevator, was removed, and it does not appear that the attention of Innes was called to the fact that there was no air or steam-brake upon it when he was placed in charge of it. So far as external appearance went, the elevator appeared to be in good condition. The superintendent told Innes when he went upon the elevator that he must look out and run at his own.risk, and Innes told him not to be afraid, that he had run an elevator for twenty years. Appellant presses this with a view of showing that Innes took the risk of all danger, but we think it plain that the conversation had reference to his care and his competency and that it can not be understood as an agreement on his part that he took the risk of defects in the construction or machinery of the elevator which were unknown to him, or that it can be construed to relieve the appellee from the duty of using reasonable care to provide upon the elevator such appliances for safety as were known and in general use. The jury is the proper tribunal to draw from the evidence the inference of care and of negligence in such cases, and when there is evidence before them which authorizessuch inferences the court can not interfere.
Ho point is made against the instructions of the court, but counsel contends that the declaration is insufficient, and that this motion in arrest of judgment ought’to have been sustained; we think the declaration' sufficient after verdict. The objection to it should have been taken by demurrer before trial. C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; L. S. & M. S. R’y Co. v. O’Connor, 115 Ill. 254.
On the whole record, we think the judgment of the Superior Court must be affirmed.
Judgment affirmed.