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matter of law, that appellee assumed the risk of injury or was guilty of contributory negligence by failing to stop work the instant he found the lever was working improperly on the forenoon of the injury. The questions of assumption of risk and contributory negligence were in this case both questions of fact to be submitted to the jury under proper instructions. Considering all the instructions together, we find no error in that regard.
In our opinion the omission of the word "not" from the fourth count of the declaration was not fatal to a recovery on that count after verdict. A reading of the whole count leaves no room for doubt as to its real meaning, and when the same is considered in connection with the evidence and the instructions of the court there can be no question but that the jury understood that in order for plaintiff to recover under that count the jury must find, from the evidence, that plaintiff did not know, up to the time of the injury, that the repairs had not been made on the engine. The whole record shows the count was so treated by all the parties to the suit until after the jury returned their verdict, as both parties in their instructions treated the count as so alleging and submitted instructions to the jury declaring the rules of law applicable to the evidence admissible under such a count. Where both parties to a suit submit instructions declaring the rules of law applicable to the facts proven and request the jury to return their verdict in accordance with those rules of law as applied to the facts proven, neither party can be heard to complain that such facts were not within the scope of the allegations of the pleadings under which those facts were permitted to be proven. (Illinois Steel Co. v. Novak, 184 Ill. 501; Illinois Central Railroad Co. v. Latimer, 128 id. 163; Chicago and Alton Railroad Co. v. Harrington, 192 id. 9; Donk Bros. Coal Co. v. Stroetter, 229 id. 134.) We think the Appellate Court was right in holding that the omission of the word "not" from this count was cured by verdict and that the plaintiff could recover, on the facts proven, under the fourth count of his declaration.
It is further insisted that the court should have directed a verdict as to the defendant the Belt Railway Company, for the reason that the evidence shows the plaintiff was in the employ of the Chicago and Western Indiana Railroad Company and not of the Belt Railway Company, and that the relation of master and servant was not shown between the plaintiff and the latter company. With this contention we do not agree. The evidence is that the employees and the tools and appliances of the one company were used and employed indiscriminately in the business of the other; that especially the superintendent of the round-house, the night foreman and the day foreman, from whom the plaintiff received his orders, were in the employ of both companies; that the Chicago and Western Indiana Railroad Company was known by the name of Belt Railway Company in the city of Chicago and by the name of Chicago and Western Indiana Railroad Company outside of the city of Chicago; that the engine on which the plaintiff was working, although owned by the Chicago and Western Indiana Railroad Company, was marked with the name of the Belt Railway Company, and that the tracks upon which plaintiff was at work, although owned by the Western Indiana Railroad Company, were under lease to the Belt Railway Company and were jointly used by both companies. The law is well settled that a general servant of one master may be lent or hired to another for some special purpose and in that way become the servant of the latter in the particular transaction. (Consolidated Fireworks Co. v. Koehl, 190 Ill. 145; Harding v. St. Louis Stock Yards, 242 id. 444.) Neither do we think that the Belt Railway Company is in a position to raise this question at this time. Both parties joined in the plea of general issue, which was the only plea filed to the declaration charging that plaintiff was in the employ of both of these defendants. The filing of only the plea of
general issue was an implied admission by the defendants that the plaintiff was operating the engine as their servant and employee, (Chicago and Eastern Illinois Railroad Co. v. Schmitz, 211 Ill. 446; McNulta v. Lockridge, 137 id. 270;) and there was ample evidence in the record from which the jury were justified in finding that such was the fact, notwithstanding the two railroads were incorporated as separate legal entities. Besides the foregoing evidence plaintiff and a number of other witnesses who did the work for both companies testified that they were in the employ of both companies. Under the evidence in this record we think that there was no error in rendering judgment against both defendants.
It is also insisted that defendants were prejudiced by the manner in which some of the medical experts were permitted to be examined by counsel for plaintiff, in that they were asked, and permitted to answer, whether or not they saw any connection between the injury to the leg on August 12, 1907, the condition that followed and the present condition, and gave it as their opinion that the violence of the alleged accident resulted in the present condition. There was no dispute but that the plaintiff was injured in the manner claimed, and the questions asked therefore only called for a scientific or expert opinion as to whether or not the present condition was the result of the injury complained of. This method of examination is permissible. City of Chicago v. Didier, 227 Ill. 571.
It is further insisted that the court erred in refusing to allow the defendants' physicians to examine the plaintiff's leg in the presence of the jury, the argument being, that since the plaintiff exhibited the injured member to the jury the defendants' physicians had a right to make a physical examination of the leg then, the same as they would have to examine any other exhibit in the case.
It does not appear from the record that any examination of plaintiff's leg was made in the presence of the jury other than the mere exhibiting of the same to the jury. We do not think the mere showing of the injured member to the jury gave the defendants the right to invade the privacy of plaintiff's person and make him submit to an extended scientific examination of the same in the presence of the jury. When the defendants requested the right to have the plaintiff examined by their experts the plaintiff offered to submit to an examination by the same physician of defendants who had previously examined and treated him for his injury. It appeared from the evidence that the first physician he consulted after the injury was the defendants' physician, Dr. Webster, and that he was treated by him and one of his assistants for some time after the injury, and that his injury was diagnosed by Dr. Webster as a transverse fracture of the knee-cap, and the injured member was treated by Dr. Webster and his assistants for such injury. We think that the offer made was fair, and that the court did not err in refusing to require the plaintiff to submit to a further examination by other physicians to be selected by the defendants.
It is also insisted that the defendants were prejudiced by the fourth and thirteenth instructions given at the instance of the plaintiff and by the refusal to give the twelfth instruction tendered on behalf of defendants. The criticism made of the plaintiff's fourth instruction is, that it told the jury that if they found, from the evidence, that the plaintiff had proven his case as alleged in this declaration, and did not assume the risk, whatever risk there was, if any was shown by the evidence, they could find their verdict for the plaintiff. The objection urged is, that neither the instruction nor the declaration defines assumed risk as applied to the facts in this case or alleges that the danger to which the plaintiff was exposed in using the defective appliances was not so imminent that a person of ordinary prudence, in the exercise of ordinary care for his own safety, would not have refused to incur the same by using the engine in the condition it was then in. These features of the case were fully covered by other instructions in the series, and there was no evidence in the record upon which to base a finding that the danger was so imminent that a man of ordinary prudence would not have incurred the same. The declaration alleged that the plaintiff was in the exercise of due care and caution for his own safety, and, under this instruction, before the jury could find their verdict for the plaintiff they must find that he did not assume the risk and that he was in the exercise of due care and caution for his own safety. These allegations were sufficient to negative any assumption that the jury could find a verdict for the plaintiff if they believed that he was in any way guilty of contributory negligence which approximately contributed to the injury. Instructions have been repeatedly approved telling the jury the plaintiff was entitled to recover if he had proved the negligence charged in the declaration or some count thereof. Scott v. Parlin & Orendorff Co. 245 Ill. 460.
The objections urged by the defendants to the thirteenth instruction given on behalf of the plaintiff are, (1) that it told the jury that if they found, from the evidence, that the defendants expressly or impliedly promised to repair the engine on the evening of August 10, etc., and thereafter assured the plaintiff that the engine had been repaired, the plaintiff had a reasonable time after discovering that it had not been repaired, if such was the fact, within which to return the engine, and (2) that what was a reasonable time should be determined by the jury from a consideration of all the facts and circumstances in evidence, under the instructions of the court. The first objection urged was cured by the special finding of the jury,'in which they found the defendants promised to repair the engine on the evening of August 10. As the jury so found, it makes no material difference whether the promise was express or implied, if such promise was made. The other objection urged to the