{
  "id": 2619720,
  "name": "Anton Fatz, Appellee, v. Continental Manufacturing Company, Appellant",
  "name_abbreviation": "Fatz v. Continental Manufacturing Co.",
  "decision_date": "1908-05-19",
  "docket_number": "Gen. No. 13,998",
  "first_page": "273",
  "last_page": "275",
  "citations": [
    {
      "type": "official",
      "cite": "141 Ill. App. 273"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "136 Ill. App. 281",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        2462741
      ],
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    {
      "cite": "218 Ill. 327",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        3354602
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      "opinion_index": 0,
      "case_paths": [
        "/ill/218/0327-01"
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  "last_updated": "2023-07-14T15:54:49.661155+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Anton Fatz, Appellee, v. Continental Manufacturing Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Freeman\ndelivered the opinion of the court.\nIt is contended in behalf of appellant that the proof utterly fails to sustain the charge of negligence in the declaration; that plaintiff had been a regular and constant operator of planers for nearly seven years before the accident, and under the law must be held to have had full knowledge of the condition of the planer, whatever it was, and that the rule of assumed risk is a complete bar to recovery by appellee. It is urged, therefore, that it was erroneous to instruct the jury that a servant assumes only those risks incident to the work, omitting the class of risks which the servant assumes by continuing the work with full knowledge of the danger; and that by a further instruction the court eliminated entirely the defense of assumed risk.\nThe instruction last referred to is as follows:\n\u201cWhile the burden is on the plaintiff to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff\u2019s case preponderates in his favor, although but slightly, that would be sufficient to warrant the jury in finding in his favor. If you find from the evidence that the plaintiff has proved his case as laid in the first count of his declaration by a preponderance of the evidence, then you should find the issues for the plaintiff.\u201d\nThis instruction was erroneous, inasmuch as it wholly ignores the question of assumed risk.\u201d Montgomery Coal Co. v. Barringer, 218 Ill. 327. The instruction directs the jury that they \u201cshould find the issues for the plaintiff\u201d if they find from the evidence that the plaintiff has proved by a preponderance of evidence his case as laid in the first count of his declaration, the only count upon which the cause was submitted. We said, through Mr. Justice Baker, in The Lake Street Elevated Railroad Company v. Fitzgerald, 136 Ill. App. 281: \u201cIn a case where the assumption of risk is involved, it is error to instruct the jury that if the plaintiff has made out his case as alleged in his declaration or any count thereof he is entitled to a verdict, for the reason that such instruction ignores the assumption of risk.\u201d In the opinion filed in that cause the question here involved is fully considered and the authorities cited. The instruction above quoted was clearly erroneous and requires that the judgment of the Circuit Court shall be reversed and the cause remanded. It will be so ordered.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Freeman"
      }
    ],
    "attorneys": [
      "F. J. Canty and J. C. M. Clow, for appellant.",
      "J. W. Sutton, for appellee."
    ],
    "corrections": "",
    "head_matter": "Anton Fatz, Appellee, v. Continental Manufacturing Company, Appellant.\nGen. No. 13,998.\nInstructions\u2014when erroneous in ignoring defense of assumed risTc. An instruction as follows, with respect to the preponderance of the evidence, is erroneous in ignoring the defense of assumed risk.\n\u201cWhile the burden is on the plaintiff to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff\u2019s case preponderates in his favor, although but slightly, that would be sufficient to warrant the jury in finding in his favor. If you find from the evidence that the plaintiff has proved his case as laid in the first count of his declaration by a preponderance of the evidence, then you should find the issues for the plaintiff.\u201d\nAction in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1907.\nReversed and remanded.\nOpinion filed May 19, 1908.\nStatement by the Court. This is an action for personal injuries in which appellee recovered a judgment for $500.\nAt the time of the injury appellee was operating a planer in appellant\u2019s furniture factory, dressing, it is said, one-inch boards down to a thickness of seven-eights of an inch. A board was in process of being planed and had passed nearly through the planer, within five inches of the end, it is said, when the board was \u201ckicked back,\u201d striking appellee, who was standing about sixteen feet in front of the machine, inflicting the injuries complained of. Appellee states that when he first started to work on the machine he noticed that it was not quite right; that the plates or \u201cchip breakers\u201d which pressed down on and held the boards as they were being planed were three-sixteenths of an inch longer on one side than the other, so that the roller would catch the board more on one side than the other. He states that he mentioned this to the foreman, who said he \u201cwould have it fixed.\u201d About two days before the accident the foreman sent a man to fix the rollers, but it is claimed that the screws or bolts with which the rollers were adjusted were too short and that this prevented the roller from gripping the board tightly enough. The foreman is said to have been told of this and he said a man from the machine shop would come and fix it. It is claimed that very often, sometimes as often as every other day, \u201cboards would get stuck in the machine, \u2019 \u2019 and that then a man \u201cwould come and fix the machine and it would run all right again.\u201d\nThe declaration charges that appellant allowed the planer to become and remain in an unsafe condition and out of repair so that it became \u201cworn out and defective so that the feed rollers by means of which boards were carried under and through the knives of said planer\u201d became ineffective, etc.\nF. J. Canty and J. C. M. Clow, for appellant.\nJ. W. Sutton, for appellee."
  },
  "file_name": "0273-01",
  "first_page_order": 307,
  "last_page_order": 309
}