#### Chris Schmidtz, Defendant in Error, v. Ernest Tosetti Brewing Company, Plaintiff in Error.

Gen. No. 17,740.

(Not to be reported in full.)

Abstract of the Decision.

1. Master and servant, § 492 * —when driver may not recover for injuries from kicking horse. A servant ordered to drive a kicking horse cannot recover for injuries where the danger was so imminent that a man of ordinary prudence would not have incurred the risk.

2. Master and servant, § 398*—when servant is relieved from assumption of risk. When the master makes a promise to repair or to remove a defect, or gives a command to encounter danger, the doctrine of assumption of risk is thereby removed from consideration and the real question is one of contributory negligence on part of the servant.

3. Master and servant, § 818*—when instruction erroneous. Instruction which permits a servant to recover for injuries sustained while obeying an order of master, regardless of servant’s knowledge of the danger, held erroneous.

Error to the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

Reversed and remanded.

Opinion filed October 15, 1913.

Statement of the Case.

Action by Chris Schmidtz against Ernest Tosetti Brewing Company, a corporation, to recover for injuries sustained from driving a kicking horse belonging to defendant while plaintiff was in the employ of said defendant. From a judgment in favor of plaintiff for three hundred seventy-five dollars, defendant brings error.

F. J. Canty and J. C. M. Clow, for plaintiff in error.

Francis X. Busch and Frank A. Rockhold, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Duncan

-delivered the opinion of the court.