WALTER H. BROWNE, Admr.

V.

SIEGEL, COOPER & CO.

Opinion filed June 19, 1901.

1. MASTER AND SERVANT—servant assumes risk of obvious dangers. A servant assumes not only the ordinary risks of his employment but also all dangers which are obvious, and if he enters into the service, knowing or having the means of knowing its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of injury.

2. SAME when master is not liable for servant's death. The owner of a building is not liable for the death of a servant caused by his falling down an open elevator shaft, where, although plaintiff's evidence is sufficient to sustain a finding that defendant was negligent in failing to safeguard the elevator entrance as required by ordinance, yet the same evidence shows not only that deceased assumed the risk, but was guilty of contributory negligence.

3. SAME question whether servant assumed risk may become one of law. Ordinarily, whether a servant has assumed the danger which he encounters or has been guilty of contributory negligence are questions of fact, but they become questions of law when all reasonable minds could draw but one conclusion from the evidence.

4. ELEVATORS-master's liability respecting elevator shaft and mine shaft is not the same. A material difference exists between the liability of a master for failure to observe a city ordinance respecting elevator shafts and the statutory liability created by the act "providing for the health and safety of persons employed in coal mines," since the act itself creates a liability for willful violation thereof or willful failure to observe its provisions.

Browne v. Siegel, Cooper & Co. 90 Ill. App. 49, affirmed.

APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. ELBRIDGE HANECY, Judge, presiding.

BENSON LANDON, and B. C. BACHRACH, (WILLIAM S. FORREST, of counsel,) for appellant:

Under the evidence in this case the following questions were for the jury, and it was error not to submit each and all of said questions to the jury:

First-Negligence of defendant in failing to comply with the ordinance by guarding the elevator shaft on the second floor with a door that could be opened only from the inside, as required by the ordinance of the city of Chicago. Siddall v.. Jansen, 168 Ill. 43; Dallemand v. Saalfeldt, 175 id. 310; McRickards v. Flint, 21 N. E. Rep. 153; Carterville Coal Co. v. Abbott, 181 Ill. 495; Jupiter Mining Co. v. Mercer, 84 Ill. App. 101.

Second-Proximate cause in this case was a question of fact for the jury. Dallemand v. Saalfeldt, 175 Ill. 310; Pullman Car Co. v. Laack, 143 id. 244; Flint v. Railway Co. 59 id. 349; Railway Co. v. Dudgeon, 184 id. 477; Swift & Co. v. Rutkowski, 182 id. 18.

Third-Contributory negligence. Fisher v. Cook, 23 Ill. App. 621; McRickards v. Flint, 21 N. E. Rep. 153; Siddall v. Jansen, 168 Ill. 47; Dallemand v. Saalfeldt, 175 id. 310; Carterville Coal Co. v. Abbott, 181 id. 495; Jupiter Mining Co. v. Mercer, 84 Ill. App. 101.

Fourth-Assumed risk. Illinois Steel Co. v. Bauman, 178 Ill. 355; Shearman & Redfield on Negligence, secs. 216, 217; Railway Co. v. Bailey, 43 Ill. App. 292; Railway Co. v. Hines, 132 Ill. 168; Consolidated Coal Co. v. Wombacher, 134 id. 57; Whalen v. Railway Co. 16 Ill. App. 320; Dallemand v. Saalfeldt, 175 Ill. 310.

In Siddall v. Jansen, 168 Ill. 43, which was a case growing out of an accident through the door of an elevator shaft being not fastened as the ordinance required, this court said: “The evidence produced by the plaintiff below tends to show there was not on the part of the defendant a compliance with the ordinance. A peremptory instruction having been given to the jury to find for the defendants, there was consequently no evidence produced by them. As there was evidence tending to show there was no compliance with the provisions of this ordinance and that plaintiff was rightfully at the place of the injury, it was a question which should have been submitted to the jury."

A willful disregard by the employer of a duty imposed is a willful exposure to liability to injury of the employee, and is an act of negligence of so gross a character and so utterly in disregard of law that the question of contribu. tory negligence, merely, has no place in the case. Carterville Coal Co. v. Abbott, 181 Ill. 495; Jupiter Mining Co. v. Mercer, 84 Ill. App. 101.

W. N. WILLIAMS, and O. W. DYNES, for appellee:

Where, at the conclusion of plaintiff's evidence, the trial court finds the same insufficient to sustain any verdict other than one of not guilty, he may direct the jury to return a verdict for the defendant. Simmons v. Railway Co. 110 Ill. 340; Patton v. Railway Co. 82 Fed. Rep. 979; Randall v. Railway Co. 109 U. S. 322; Duggan v. Railway Co. 42 Ill. App. 536; Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U. S. 319; Powditch v. Boston, 101 id. 16; Griggs v. Huston, 104 id. 553.

In the case of an employee performing services on the freight elevator of an employer the rule of common carrier liability does not exist. Bell v. Bell v. Exposition Co. 76 Ill. App. 591; Webb on Passenger and Freight Elevators, 78, and cases cited; McDonough v. Lanther, 57 N. W. Rep. 152; Sievers v. Railway Co. 14 Gray, 466; Ryan v. Railway Co. 23 Pa. St. 284; Railway Co. v. Salmon, 11 Kan. 83; Gillshannon v. Railway Co. 10 Cush. 228.

The master is not required by law to exercise any greater degree of care for the safety of an employee than that employee is required to exercise for his own safety. Pennsylvania Co. v. Lynch, 90 Ill. 333; Abend v. Furnace Co. 107 id. 44; Railway Co. v. Flannegan, 77 id. 365; Simmons v. Railway Co. 110 id. 340; Abend v. Railway Co. 111 id. 202.

An employee assumes the risk of performing work under the conditions which he knows to exist, and which by the exercise of ordinary care upon his part he should understand and appreciate the dangers of. Railway Co. v. Driscoll, 176 Ill. 330; Pennsylvania Coal Co. v. Lynch, 90

id. 333; Wharton on Negligence, sec. 214; Clark v. Railway Co. 92 Ill. 43; Railway Co. v. Britz, 72 id. 261; Hughs v. Railway Co. 27 Minn. 137; Camp Point Manf. Co. v. Ballou, 71 Ill. 418; Simmons v. Railway Co. 110 id. 340; Ladd v. Railway Co. 119 Mass. 412; Morey v. Coal Co. 155 Iowa, 671.

Failure of a servant to exercise ordinary care for his own safety is in law considered to be contributory negligence, and bars recovery for injuries which it causes or contributes to cause. Railway Co. v. Hessions, 150 Ill. 546; Railroad Co. v. Kelley, 75 Ill. App. 493; Railway Co. v. Fennimore, 78 id. 479; Railway Co. v. Batson, 81 id. 142.

Mr. JUSTICE CARTER delivered the opinion of the court:

At the conclusion of the evidence for the plaintiff the circuit court of Cook county, on motion of the defendant, instructed the jury to find the defendant not guilty. The Appellate Court affirmed the judgment rendered on the verdict, and the plaintiff took this his further appeal to this court.

The only question in the case is, did the court err in giving the peremptory instruction.

At the time he was killed Altemar Lavigne was a youth of nineteen years, and was, and had been for the preceding four months, employed by appellee as a porter in its department store in the city of Chicago, and worked with a gang of eleven porters, including himself, whose work and duties were to clean up five floors of the store building in the night time. In doing their work these porters, including Lavigne, used truck:s containing sawdust to scatter over the floors, and brushes and brooms for sweeping, scrubbing and cleaning. In order to go from floor to floor, and to carry with them these utensils and material, it was necessary for them to use a freight elevator provided by appellee, and their custom was to take the elevator in the basement and go first to the fifth floor, and when that floor was cleaned to descend in the elevator to the next floor below, and so on until all the

five floors were swept and cleaned. It was the duty of one Bos, who was one of the porters and who worked with them, to run the elevator and to open and close the wire gate at the opening to the elevator door, to permit his co-laborers, as well as himself, to enter and leave the elevator at each floor. The elevator used was the north one of three which ran in elevator shafts on the east side of the building. These shafts were, at the second floor, enclosed in an elevator room, and the entrance to the north elevator was in this room and at the north end or side of the elevator. The accident happened on the second floor, after that floor had been cleaned and while Lavigne and his fellow-laborers were getting ready to take the elevator to descend to the first floor. There was no light in the elevator shaft or in the elevator room, but some gas jets were burning outside, five or six feet from the elevator room, which cast a dim light at the entrance to the elevator, which enabled the men to see through the door, when opened, whether the elevator was there or not, if they were standing within three or four feet of such entrance, but not if further away. The foreman carried a lantern and furnished one to each porter who would carry it. On the night of the accident, when the second floor had been cleaned, Bos, in performance of the separate duty assigned to him by his employer, went to the wire gate at the opening and found that the elevator was not there. The other parties were coming behind him to descend on the elevator to the next floor. Bos testified that Lavigne, having in his hands his broom and brushes, was standing several feet behind him in the elevator room; that he, Bos, raised the wire gate, which opened by sliding upward, and leaned into the elevator shaft to see where the elevator was, in order to bring it up or down, as might be necessary, and that at that moment he saw a dark body fall into the shaft by his side, and heard the rattling of what proved to be Lavigne's brushes and broom. It appears that as Bos leaned into