Opinion
per Curiam.The sole question in this case is this: Under the evidence, was the trial court justified in the refusal to take the case from the jury ?
Appellee contends, it appears from the evidence that in the doing of their work the switchmen were at times compelled to climb from the rear footboard over the tender while the engine ivas in motion, either to communicate with the engineer or to get a flag or a lantern from out the tool-box, and that the absence of a ladder, or steps, or of additional grab-irons, made this duty dangerous, and therefore this tender was not constructed in a reasonably safe way to enable the switchmen to perform their neces: sary work with reasonable safety. Chicago & G. W. Ry. Co. v. Armstrong, 62 Ill. App. 228. Machinery, cars and engines ought not to be so constructed that "the slightest indiscretion on the part of the operatives will result in injury. Toledo, W. & W. Ry. Co. v. Fredericks, 71 Ill. 296. “ It was the duty of the defendant to furnish a locomotive suitable for the work which it required plaintiff to do.” Lawless v. Conn. River R. R. Co., 136 Mass. 1. The jury, by their verdict, have found that this engine, in its then condition, and in view of the work the switchmen were required to perform while on duty with it, was not in a reasonably safe condition at the time of the accident. We think there is enough evidence in the record tending to show negligence of appellant in the use of this engine and tender, as thus equipped, to send the case to the jury upon that point.
It is not disputed that the deceased had never worked with this engine until the day he was killed. It appears that Stowman, his fellow-switchman, followed the engine and made all the cuts, while the deceased kept the cars coupled together, lined up the switches and protected the rear of the train. In other words, Stowman’s duties kept him with and around the engine, while those of the deceased kept him with and around the cars. There is no evidence that the deceased during that day bad ridden upon this footboard until a few minutes preceding his death, or that he knew the tender was not equipped with a ladder or some equivalent appliance, until after he had stepped upon the footboard, given the signal to back up, had been informed by Stowman where the flag was kept, and had turned around to go upon the tender. Upon the spur of the moment, although he must have seen the absence of suitable and sufficient appliances to enable him to reach the top of the tender without danger of injury or death, he may not have had such a complete knowledge and appreciation of the nature and extent of the danger he incurred in attempting to put the flag in the tool-box as to charge him with assuming the risk as a matter of law. In the absence of evidence that he had such knowledge, it will not be presumed, as no one is presumed knowingly to incur physical pain and death when he can avoid it at his discretion. Chicago & E. I. R. R.Co. v. Knapp, 176 Ill. 127. Negligence is not necessarily to be imputed to the deceased merely because he knew of the defect; but it is a question of fact to be determined from all the evidence in the case. Swift & Co. v. O’Neill, 187 Ill. 337; City of LaSalle v. Kostka, 190 Ill. 130. In our opinion, the question of negligence of the deceased, and whether he assumed the risk, were properly submitted to the jury.
The instructions given the jury state the theory of appellant fully, and are as favorable to it as the law and the facts of the case warranted.
Finding no reversible error, the judgment of the Superior Court is affirmed.