after making the foregoing statement, delivered the opinion of the court.
It is claimed, first, that there was a variance between the declaration and the proof, and that on account thereof the court should have taken from the consideration of the jury the second count of January 28, 1896, and the second and fourth additional counts of July 15, 1897. At the close of the plaintiff’s evidence appellant’s counsel moved the court “ to eliminate these counts from the consideration of the jury, and to exclude all evidence in the case as to these counts, upon the ground of variance,” which was overruled. This motion was, in substance, renewed at the close of all the evidence, but at no time did counsel point out specifically, as he should have done, wherein the variance consisted. He is now precluded from claiming there was error in this regard. Swift & Co. v. Madden, 165 Ill. 41; Westville Coal Co. v. Schwartz, 177 Ill. 272; McCormick, etc., Co. v. Sendzikowski, 72 Ill. App. 402-9, and cases there cited.
Under his claim of variance appellant’s counsel argued to the trial court, and does here, that these counts were faulty in that they failed to state a cause of action, and therefore, under section 51 of the Practice Act, which provides that “ If one or more of the counts in a declaration be faulty, the defendant may-apply to the'court to instruct the jury to disregard such faulty count or counts,” hi's motion should have been allowed, and that the instructions regarding these, counts, asked after the arguments, should have been given. This contention is not tenable.. R. R. Co. v. Blumenthal, 160 Ill. 49; R. R. Co. v. Warner, 108 Ill. 548; Ill. Steel Co. v. Schymanowski, 162 Ill. 447-57; C. & A. R. Co. v. Anderson, 166 Ill. 575. In this last case the court say:
“ The first, second, third and fourth instructions in substance directed the jury to disregard the first, second, third and fourth counts of the declaration. Section 51 of the Practice Act provides, that if one or more of the counts of a declaration are -faulty, the defendant may apply to the court to instruct the jury to disregard such faulty counts. We are not prepared to hold that” the counts are so insufficient as not to support the judgment, and if they are not sufficient the defects could not be reached by the instruction. - Rut if the counts were so defective that they would not support the judgment, the error in refusing the instructions, if error it was, was harmless, as the declaration contained five counts,and it is not claimed that the fifth count is insufficient. If there is one good count to which the evidence was applicable and which is sufficient to -sustain the judgment, the error of the court, if any, in refusing to instruct the jury to disregard the other counts, becomes harmless.”
Counsel does not question the sufficiency of the first and third counts, filed July 15,- 1897. -Ho motion in arrest of judgment was made.
It is also contended that appellee was familiar with his work; that the danger to which he was exposed was open and apparent, and he therefore assumed the risk. Also that it is not alleged nor proven that appellee was induced by any promise of the foreman, Young, to continue his work, and that for all these reasons there could be no recovery; and the court should have instructed the jury to find the issues for appellant.
The first and third counts filed July 15, 1S97,'allege, in substance, that appellee relied on appellant’s promise to furnish additional help, and there is evidence to support the allegation-.
The evidence shows that appellee was familiar with his work, but as to whether the danger to which he was exposed was apparent to him, there was a conflict in the evidence, and from a careful consideration of it, we are unable to say that it does not support the verdict.
Appellant also argues that the verdict is against the weight of the evidence; that the alleged insufficiency of help was not the proximate cause of appellee’s injury; that appellee and the man Beckman, who hoisted the beef that struck appellee, were fellow-servants.
It is immaterial, if such were the fact, that appellee and Beckman were fellow-servants. The gist of the negligence complained of is the failure to furnish sufficient help. Appellant can not escape its liability in this respect by a claim that the accident was also caused by the negligence of a fellow-servant. It is not sufficient to relieve the master that his negligence and that of a fellow-servant were concurrent causes of an injury.
The evidence in this case tends to show, and justified the jury in finding, that the negligence of appellant in not furnishing sufficient help to appellee to do his work, was the proximate cause of the injury, and that is sufficient to fix its liability, even if the negligence of a fellow-servant did contribute to the injury. Pullman Palace Car Co. v. Laack, 143 Ill. 259; Chicago & A. R. R. Co. v. House, 172 Ill. 601; Leonard v. Kinnare, 72 Ill. App. 145-51; since affirmed by the Supreme Court, 175 Ill. 532.
As to whether there was sufficient help, and whether appellant’s foreman promised to furnish appellee additional help to aid him in his work, the evidence was conflicting and voluminous. We have examined it with care in the light of counsel’s arguments, and can not say the verdict is manifestly against the weight of the evidence.
Appellant further claims that the court erred in allowing plaintiff’s injured arm to be exhibited to the jury, and that the argument of appellee’s counsel appealed to the prejudices and passion of the jury. The exhibition of the injured arm to the jury was a matter within the discretion of the court and we are of opinion there is shown by this record no abuse of its discretion. R. R. Co. v. Clausen, 173 Ill. 100.
The argument of appellee’s counsel, in which he stated that “ if Swift & Company had been generous enough and humane enough to employ enough boys of the tender age of fourteen and fifteen years, that this boy might not have Been hurt,” was improper, and the court should have so ruled, but we think there is not reversible error in this respect, it is apparent from the amount of the verdict, $2,200, when we consider the nature of the injury and the'fact that another jury gave $5,000, this jury were not unduly influenced from sympathy, passion or prejudice, either by the argument of counsel or the exhibition of the injured arm. The judgment is affirmed.