#### Thomas Nosal, Appellee, v. International Harvester Company, Appellant.

Gen. No. 18,827.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

Reversed with findings, of fact.

Opinion filed June 24, 1914.

Statement of the Case.

Action by Thomas Nosal against the International Harvester Company to recover for personal injuries received by plaintiff by reason of the breaking of a defective ladder which he was using while in the employment of defendant. The declaration charged that defendant furnished to plaintiff to use in his work a defective ladder; that defendant negligently failed to *412make a reasonable inspection of the ladder and that defendant failed to nse ordinary care to discover defects therein and failed to warn plaintiff of such defects of which it had, but of which plaintiff did not have, notice. From a judgment in favor of plaintiff for one thousand two hundred and fifty dollars, defendant appeals.

Abstract of the Decision.

1. Master and sbbvant, § 380 * —when servant assumes rislc of defeats in ladder. Where a ladder, which is a simple and ordinary tool, the nature of which is easily understood, is used by a servant who is familiar with it, the servant in using the same is conclusively presumed to assume the risk of all defects therein, whether patent or latent and whether the master knows of such defects or could have known of them by the exercise of reasonable care or not.

2. Appeal and ebbob, § 1699*—when party not hound hy theory of case adopted hy his instructions. A defendant, by procuring an instruction to be given according to a certain theory of the defense, does not commit himself to the proposition of law contained therein as the law of the case where another theory had been persisted in, and insisted on, until the court by denying a peremptory instruction compelled defendant to either adopt the theory of the court or abandon all further defense of the case.

3. Appeal and ebbob, § 1699*—when right to review ruling of court on motion for peremptory instruction not waived. After an adverse ruling on a motion for a peremptory instruction, to which exception is duly preserved, a defendant may proceed with his defense on the theory of the law adopted by the court without waiving his right to have the rulings of the court thereon reviewed on appeal.

David A. Orebaugh, for apellant; Edgar A. Bancroft, of counsel.

Royal W. Irvin and Frank W. Koraleski, for appellee.

*

See Illinois Notes Digest, Vola XI to XV, and Cumulative Quarterly, saw-topic and section number.

Mr. Justice Graves

delivered the opinion of the court.