delivered the opinion of the Court.
The appellant sued to recover for personal injuries alleged to have resulted from negligence of appellee, his employer.
The negligence charged is the furnishing to appellant of an unsafe appliance, viz., a defective clamp, used in the construction of a swinging scaffold upon which appellant ■ worked. Through the giving way of this clamp the scaffold was dropped and appellant was injured.
It is alleged and evidence was given tending to’prove that appellant complained of the condition of the clamp in question, and was promised bji the foreman of appellee a day or two before the injury, that the defect would be remedied.
Upon these allegations and upon evidence tending to establish them, the trial court held that no sufficient cause of action was shown, and at the conclusion of the evidence for appellant, directed a verdict of not guilty.
The question presented here is the sufficiency of appellant’s case for submission to a jury.
No question is raised as to the duties or the particular office of the “ foreman ” in this case, or as to the liability in general of the municipality for negligence of such an official in dealing with a subordinate employed in work of the kind shown here.
It would seem from the record and from the arguments of counsel for the parties, that the ruling of the trial court was based solely upon the theory that the danger arising from the defective condition of this clamp came under the. application of the doctrine of assumed hazard. The doctrine of assumed hazard is part of the contractual relation between master and servant, in that the servant at the time of his employment impliedly agrees with the master that he will take upon himself all those risks which are ordinarily incident to the nature of his service, in consideration of the wages which are supposedly commensurate with the dangers of the employment.
The negligent conduct of the servant in remaining exposed to a known danger, arising from a particular defect, not part of the risks usually incident to the service, is frequently called an assumption of hazard. It does not come within the general doctrine of assumed hazard; and it does logically come under the doctrine of contributory negligence. But in either event, whichever term be applied to the behavior of the servant, whether -it be called an assuming of the hazard or contributory negligence, a fact is presented by this record which might be found by the jury to negative either the assuming of the risk by the servant or contributory negligence upon his part in remaining exposed to it, viz., the promise to repair. Whether under given facts, reliance upon a promise to repair and continued exposure to the known danger, is or is not negligence, is a question for the jury. Missouri Fur. Co. v. Abend, 107 Ill. 44, and cases therein cited.
And if the doctrine of assumed hazard could be invoked, it would still remain a question of fact for the jury, whether .the promise, under the given facts, negatived any assumption of the risk.
No matter in the record is brought to our attention by counsel which would afford a sufficient reason in law for withdrawing the case from the jury.
The judgment is reversed and the cause remanded.