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the servant's assumption of a known risk is essentially that of an implied agreement to accept the responsibility for any bodily hurt which may result from his exposure to that risk. The theory upon which contributory negligence is held to preclude him from recovery is that he is guilty of imprudence in the premises, and that this imprudence is entirely, or partially, the cause of the injury." (3 Labatt on Master and Servant,—2d ed.-sec. 1219. To the same effect, 8 Thompson on Negligence, [White's Supp.) sec. 4611.) Labatt, in the section just quoted from, states that the two defenses, although distinct, come very close together in a very large class of cases in which there is an allegation that the danger was so great and imminent that a reasonably prudent person would not incur it.
Where a servant continues to work after learning he is exposed to extraordinary danger arising from a defective condition of some instrumentality used by his master, there may be presented both the question whether he has elected to include the additional risk among those which he is deemed to have accepted by virtue of his contractual relations, and the question whether, under the circumstances, he has used prudence in remaining in the position where he will have to incur the new hazard. If he receives an injury owing to the existence of the peril which has thus become known to him, it is open to the master to rely either upon the defense of assumption of risk or upon the defense of contributory negligence. (See the discussion of this question in note to Illinois Steel Co. v. Mann, 40 L. R. A. 781.) This court has held that the question of assumed risk does not arise where a servant performs dangerous work in obedience to the master's command, the question in such case being one of contributory negligence, depending upon whether the danger was so great that a person of ordinary prudence would not have incurred it. (Springfield Boiler Co. v. Parks, 222 Ill. 355, and cited cases.) The United States Supreme Court has held, in discussing this question, that the assumption of risk, in the broad sense, shades into negligence as commonly understood; that "negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result although it was not certain, intended or foreseen. He is held to assume the risk upon the same ground.” (Schlemmer v. Buffalo, etc. Railway Co. 205 U. S. 1.)' The authorities are not in harmony in all jurisdictions as to the general treatment of these subjects, but in this State, and by the weight of authority in other jurisdictions, the doctrines of assumed risk and contributory negligence are separate and distinct, one resting on contract, express or implied, and the other on some fault or omission of duty by plaintiff.
The risk from a defect is not assumed by the servant where he calls the attention of the master to it and is assured it will be repaired, and he may remain in the service for a reasonable time under that assurance.
In such case the question is one of contributory negligence on the part
of the servant, depending upon whether the danger was so · great that an ordinarily prudent person would not have en
countered it. (Chicago and Eastern Illinois Railroad Co. v. Heerey, supra.) Under this rule appellee here was not liable for any assumption of risk from the time he went to work with the engine Monday morning until he found that the lever was not working well, about nine o'clock that forenoon. He had a right to rely on the promise and continue in the service for a reasonable length of time although he had full knowledge of the defect. (3 Elliott on Railroads,—2d ed.—sec. 1295.) It would be a question for the jury what was a reasonable time, and the jury here found that appellants had a reasonable time after making the promise in which to make the repairs. On the facts here, however, appellee need not rely, alone, on the question of promise to repair. He was told in the morning, when he went to work, that the engine had been repaired. He had a right, therefore, to rely on that assurance until he found that the engine had not been repaired.
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Counsel on both sides discuss the question as to whether appellee could rely on the promise of repair, or assurance that it had been repaired, after he discovered that the lever was working improperly. Admitting, for the purposes of this case, that counsel for appellants are right in contending that he could then no longer rely upon the promise to repair or on the assurance that the repairs had been made, and that in continuing his service and the use of the engine he must be held to have done so under the same circunistances as if no assurance of repair had been given him or no promise had ever been made, was it the duty of appellee to quit his employment as soon as he ascertained the defective working of the lever? His evidence shows that he did not know what the defect was until he examined the engine after the injury. While it is true, in a sense, that the defect was known to him, it is obvious from his evidence he could not comprehend fully the risk that he was undertaking by remaining at work with his engine. At the most, under the authorities the question as to whether he · assumed the risk, under the circumstances shown by the evidence, was one of fact for the jury. It could not be said, as a matter of law, that the evidence showed that he understood the danger to which he was thereby exposed. In order to hold that it is a question of law that he assumed the risk it must have been shown that he possessed a "sufficiently exact appreciation of the nature and extent of the danger in question to enable him to estimate the possibilities of his environment in so far as they affected his bodily safety.” (3 Labatt on Master and Servant,2d ed.-sec. 1190.) Furthermore, this same author, in section 1196 of the same volume, states that the servant does not necessarily become chargeable with assumption of risk because he does not leave the employment immediately after
he ascertains the existence of a dangerous defect; that it cannot be reasonably disputed "that the master himself would often be benefited, rather than prejudiced, by the servant's knowledge that he would not lose his right of action by continuing to work for a short period in cases where sudden abandonment of his duties would inflict appreciable damage upon the business," citing, among other cases, in support of that doctrine, O'Rorke v. Union Pacific Railway Co. 22 Fed. Rep. 189. In that case the late Mr. Justice Brewer, in discussing the question whether an employee of a railroad company should stop work at once on discovering a defect, said, on page 191: “I do not think that the urgency can be forced upon an employee so quickly as that for deciding,—that he cannot be called upon, at the instant, to stop work if he sees there is danger. Suppose an engineer running a train between the point of departure and the point of terminus finds that his engine is out of order; can he stop right there and say he will stop until the injury is mended? It would not be safe to do this. He must carry the defective engine to its point of destination. No other rule would be safe. And so, generally, a man cannot be called upon at the moment to say, “There is a defect or there is a danger, and I will stop.' He has a right to wait a reasonable time,—to consider the circumstances of the case and to give notice to his employers that he is in danger," etc. In Fordyce v. Edwards, 60 Ark. 438, it was held that if an engineer, without fault on his part, first discovered the condition of the pilot on the engine after he commenced his trip and the defect was not such as to render the engine immediately dangerous, he would not be required to abandon his engine nor lose his right to recover by continuing on his journey until he reached a station where the defect could be cured or a new engine obtained, provided the defect was such that it was reasonable to believe that the engine might still be safely operated by the exercise of great care and the risk was not greater than a person of ordinary prudence would have taken under the same circumstances. In discussing the doctrine of contributory negligence of an employee, Labatt, in his third volume of Master and Servant, (2d ed. sec. 1216,) says: “The case of a railway servant stands upon a special footing, as he is deemed to owe a duty to the public as well as to his employers, and the effect of the decisions, as a whole, is, that he is justified in taking much greater risks than employees in other occupations without necessarily forfeiting his right of action. Under ordinary circumstances such a servant seems to be, at all events, entitled to remain at work until he obtains an opportunity of notifying the proper agent of the master as to the existence of the danger. It is only in very extreme circumstances that he will not be warranted in remaining on a train until it reaches the next station. But the exigencies of railway traffic will not excuse the servant for running the risk of almost certain injury.” In addition to the authorities al- . ready cited, see, as supporting this conclusion of the author, Kane v. Northern Railway Co. 128 U. S. 91; Irvine v. Flint and Pere Marquette Railroad Co. 89 Mich. 416; Pierson v. New York, New Haven and Hudson River Railroad Co. 65 N. Y. Supp. 1039; Louisville and Nashville Railroad Co. v. Kelly, II C. C. A. 260; Flynn v. K. C., St. J. & C. B. Rcilroad Co. (Mo.) 10 West. Rep. 418; Northern Pacific Railway Co. v. Mares, 123 U. S. 710.
The questions of assumed risk and contributory negligence are questions of fact, ordinarily. They only become questions of law where, from the facts admitted or conclusively proven, there is no reasonable chance that reasonable minds would reach different conclusions. (Clark v. Chicago, Rock Island and Pacific Railway Co. 231 Ill. 548.) The circumstances under which persons are placed must necessarily be considered to determine the question as to either assumption of risk or contributory negligence. Under the circumstances of this case it cannot be held, as a