{
  "id": 3342370,
  "name": "Ed Cash, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant",
  "name_abbreviation": "Cash v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.",
  "decision_date": "1927-02-28",
  "docket_number": "Gen. No. 8,018",
  "first_page": "1",
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      "cite": "244 Ill. App. 1"
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    "name": "Illinois Appellate Court"
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      "case_paths": [
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    {
      "cite": "170 U. S. 665",
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  "last_updated": "2023-07-14T19:23:28.054403+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Ed Cash, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Niehaus\ndelivered the opinion of the court.\nIn this case an appeal is prosecuted from a judgment for $4,000, rendered in the circuit court of Montgomery county against the appellant, The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, in favor of the appellee, Ed. Cash, who was injured while in the employ of the appellant, and working under the provisions of the Federal Employers\u2019 Liability Act, Cahill\u2019s St. ch. 114, 321 \u00b6 et seq. The appellee bases his right to recover damages upon the alleged failure of appellant to furnish proper tools for doing the work in which he was engaged. It is charged in the declaration that the appellant negligently furnished the appellee and those employed with him with chisels, for doing the work, which were old, battered and improper for the work to be done; that the appellee on the day of his injury requested the appellant\u2019s foreman to furnish new and proper chisels for such work; that upon being assured by the foreman that new and proper chisels would be promptly furnished, and relying upon such'promise, the appellee continued in the employment; that while working under the promise aforesaid, and when the chisel was being struck by a maul in the hands of a servant of the appellant, a piece of iron or steel was dislodged from the chisel and struck the appellee in the left eye; and that as a result thereof sight of appellee\u2019s eye was entirely destroyed. In another count of the declaration it is alleged that the other servants of the appellant so negligently and improperly handled the chisel with which they were engaged in cutting a rail, without knowledge on the appellee\u2019s part of the negligent and improper manner in which this work was being done, and while the appellee was assisting in the performance of the work, that a piece of metal flew off as the result of such negligence and struck the appellee in the left eye.\nConcerning the character and condition of the chisel in question, the appellee testified that \u201cthe head of the chisel was pitted until there was spall hanging from the head of the chisel by being hammered so much with the steel maul. * * * The chisel before used would be about an inch and a quarter across the head, and after it was used and hammered, of course the top of the chisel would spread and widen out.\u201d He also testified that all the chisels which were furnished for the work were in practically the same condition, and that \u201cthey were all beaten upon the head and there was spall hanging all over them where they had spread by being beaten by the steel maul. They were, anyhow, two inches across the top. They were all mushroomed around and pitted upon the head, with spalls hanging all over them. By spall, I mean bits of the chisel that had been beaten so long they were ready to fall off.\u201d Appellee also testified that on the morning when he and the other employees were going to work and the tools were loaded on the work car, he called the foreman\u2019s attention to the condition of the tools, by saying \u201cit is an awful bunch of tools to go out to work with.\u2019\u2019 But the foreman said: \u201cGo ahead with them; we are going to get new ones.\u201d The appellee is corroborated by other employees of the appellant concerning the condition of the chisels, and the promise of the foreman to replace them by new ones. One of the employees, Adam Zenich, testified that he was working with the appellee at the time of the injury and heard what the appellee said about the tools not being much good, and that the foreman promised to get some new tools. Ben Latimore, another employee, who was working with Cash at the time of the injury, testified concerning this matter as follows: \u201cThere was somebody spoke something about the tools being pretty well worn. Seegar (the foreman)' said-we will have to use them, that is the best we got at present. He said \u2018we got new ones ordered.\u2019 \u201d At the time of the appellee\u2019s injury, appellant\u2019s employees were engaged in the work of cutting a railroad rail somewhere near the center of the rail, with one of the chisels referred to and a maul. The process of cutting the rail was worked by two other employees; and according to the testimony it appears that at the time of the injury Cash had a lining bar across the rail they were cutting so that the workmen could break the rail where they got it marked to cut. A workman by the name of Hart was holding the chisel. Vic, an old gentleman, had hold of the maul. Vic was striking the chisel with the maul and Cash fell over against the other rail. The appellee testified that \u201cthe man holding the maul was hammering the chisel. A piece of steel flew from the chisel and hit me in the left eye, at the time the lick was struck.\u201d It is contended by the appellant that, under the facts disclosed by the record, the appellee by continuing in the appellant\u2019s employment after he had knowledge of the defective condition of the tools assumed the risk of the injury which he suffered, and therefore has no right to recover. The general rule on the subject of the knowledge of defects in tools is correctly stated in 39 C. J. p. 759: \u201cMere knowledge of defects in machinery, tools, appliances, and instrumentalities for work is not sufficient to charge the servant with assumption of risk, but it is further necessary that he should know of and appreciate the dangers incident to the work under the .existing conditions.\u201d However, \u201cby the enactment of the Federal Employers\u2019 Liability act Congress has occupied the field covering the employers\u2019 liability for injuries to employees in interstate transportation by rail and has thereby superseded all law of this State on that subject.\u201d Brundege v. Chicago, B. & Q. R. Co., 324 Ill. 74; Staley v. Ellinois Cent. R. Co., 268 Ill. 356.\nThe rule, where recovery is sought under the Federal Employers\u2019 Liability Act, and the risk is obvious to the employee, is definitely stated in the. case of Seabord Air Line Ry. v. Horton, 239 U. S. 595: \u201cThe master is exempted from liability in the case of obvious risks for the reason that the servant, by continuing in the employment with knowledge of the danger, evinces a willingness to incur the risk, and upon the principle \u2018volenti non fit injuria.\u2019 But when the servant shows that he relied upon a promise made to him to remedy the defect, he negatives the inference of willingness to incur the risk.\u201d And in the case of New York, N. H. & H. R. Co. v. Vizvari, 210 Fed. 118, which was a case under the Federal Statute, where an employee received an injury to his eye from a piece of steel which flew from the head of a chisel, as in this case, the court defines the duty of the master in reference to furnishing safe and proper tools to work with as follows: \u201cA master is in default as respects his servant unless the appliances furnished are such as would commend themselves to a reasonably prudent man. His duty is to furnish such instrumentalities as are reasonably safe and suitable. * * * \u2018Its duty in that respect to its employes is discharged when, but only when, its agents whose business it is to supply such instrumentalities exercise due care as well in their purchase originally, as in keeping and maintaining them in such condition as to he reasonably and .adequately safe for use by employes.\u2019 \u201d And concerning the assumption of risk, the court says: \u201cAnd so in .reference to assumption of risk, where an employe has knowledge of a defect or danger and calls, as in this case, the attention of the employer or his representative to it, * * * the question should go to the jury to say whether the danger was so manifest that a person of ordinary prudence and caution would have incurred it and also whether the risk was imminent.\u201d .To the same effect are Seaboard Air Line R. Co. v. Lorick, 243 U. S. 572; Texas & P. Ry. Co. v. Archibald, 170 U. S. 665; Burke v. Union Coal & Coke Co., 157 Fed. 178; Union Pac. R. Co. v. Marone, 246 Fed. 916; New York Cent. R. Co. v. White, 243 U. S. 188; Lehigh Valley R. Co. v. Skoczyla, 278 Fed. 378; Washington Terminal Co. v. Sampson, 289 Fed. 577.\nError is assigned because it is contended that the court in the presence and hearing of the jury in ruling the appellant\u2019s motion to direct a verdict made the following statement: \u201cThe main question for decision is, does the rule of assumed risk apply in this case? I think if the promise was made to furnish a new tool, it takes it out from under the rule of assumed risk; and I think the fact has been established that the promise was made \u2014 I should not have said established, I should have said, I think there is some evidence tending to establish that fact \u2014 and it is a proper question for the jury.\u201d We deem it sufficient to say with reference to this contention of the appellant that while the record shows that the jury were in the body of the court room, it does not appear that the remarks of the court were within their hearing, but even if the jury heard the statement of the court, it is not apparent that the rights of the appellant were prejudiced thereby. We find no reversible error in the instructions given to the jury for the appellee. They were substantially correct statements of the law as defined in the authorities cited; nor do we find any error in the refusal of the instructions which the appellant requested in addition to those given by the court.\nThe record does not disclose any reversible error, and judgment is therefore affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Justice Niehaus"
      }
    ],
    "attorneys": [
      "Geo. B. Gillespie, for appellant; Hill & Bullington, Hugh J. Dobbs and Louis F. Gillespie, of counsel.",
      "J. E. Major and Joe Major, for appellee."
    ],
    "corrections": "",
    "head_matter": "Ed Cash, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.\nGen. No. 8,018.\nHeard in this court at the October term, 1926.\nOpinion filed February 28, 1927.\nRehearing denied April 12, 1927.\nGeo. B. Gillespie, for appellant; Hill & Bullington, Hugh J. Dobbs and Louis F. Gillespie, of counsel.\nJ. E. Major and Joe Major, for appellee."
  },
  "file_name": "0001-01",
  "first_page_order": 35,
  "last_page_order": 41
}
