delivered the opinion of the court.
There is but a single question in this case, and that is, did the trial court err in directing the jury to find a verdict for appellee at the close of plaintiff’s evidence.
We understand the rule to be that “it is not within the province of the judge on such a motion to weigh the evidence and ascertain where the preponderance is. This function is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed, i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence;” or, to state it in other words, whether there is any evidence on the part of the plaintiff fairly tending to support each and every material allegation of the declaration. Woodman v. Ill. Tr. & Savings Bank, 211 Ill. 578; Chicago City Ry. Co. v. Martensen, 198 Ill. 511.
To recover in this action appellant, in addition to proving the accident and consequent injury, must show negligence in that regard on the part of appellee, and the exercise of reasonable care upon the part of the deceased for his personal safety.
There is no evidence in this case tending to show any defect in the steam shovel or in the ropes or pulleys by which it was worked. If the machine “ reversed ” at the time the deceased was injured, of which there is no direct evidence, that fact was due to its construction and was not a defect. Its working efficiency depended upon its reversing whenever the rope was slackened. The deceased was aware of this action and had known it for at least seven months prior to his injury. Proof of its unexpected reversal would tend to indicate carelessness upon the part of the deceased rather than a defect in the machine.
Further, if this machine was defective in any particular, it must have been known to the deceased and to his fellow-workman. They, and they alone, had used it constantly for many weeks next prior to the accident. Neither of them had made complaint. There is no evidence tending to prove that the master or his foreman knew of or should have known of its defective condition, if it was defective. The rule in this regard is stated in Goldie v. Werner, 151 Ill. 556, as follows: “ The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1st, That the appliance was defective; 2nd, That the master had notice thereof, or knowledge, or ought to have had; 3rd, That the servant did not know of the defect, and had not equal means of knowing with the master.’’’ From this plain rule there has been no departure.
It is alleged that the car was defective because of the downward slope of the floor from the line of the inner door outward, and because of the absence, of an iron strap across' the floor at the doorway. When the car was in place to be unloaded and the outer door was pushed back, the deceased, his fellow-workman and the foreman stood there looking at the doorway. The slant of the floor outward was in plain view to each of the three men. There is nothing in the evidence to show that this supposed defect was more visible to one of them than to the others, nor that the deceased, standing there and looking at the inner door, did not see what was plainly before his eyes. In addition, this slope was a part of the original construction of the car, and did not come from disrepair. If the place where the deceased said the iron strap should have been was then visible, the deceased' had like opportunity to note its absence as had the foreman. If that place was further in the car and thus hidden by the inner door arid the oats, the foreman did not know that it was wanting, and hence his not warning the deceased that it was lacking was not negligence which will render appellee liable in this action. _ Again, common knowledge tells us that an iron strap.lying upon and fastened to the floor of the car was not intended to be used as a brace by the men who were engaged in unloading the car; and if such a use were possible, appellee was not bound, under penalty of being held in damages for neglect, to ascertain and warn deceased of its absence, since such a use could not be reasonably anticipated.
Believing that there is no negligence shown on the part of appellee, we affirm the judgment of the Circuit Court.
Affirmed.