
    No. 981.
    The Indianapolis Union Railway Company v. Ott.
    
      Vekdict.—Negligence, Presumption on General Verdict.—Interrogatories. —In an action for negligence, the presumption is that the jury, by their general verdict, have found every material allegation of the complaint to have been proven; and that presumption conclusively prevails on appeal unless the contrary is clearly shown by the answers to the interrogatories.
    
      Same.—Interrogatories Overriding General Verdict.—The special findings override the general verdict only when both can not stand; and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before judgment can be given against the party for whom the general verdict was returned.
    
      Negligence.—Master and Servant, Promise to Bepair.—Continuing in Service.—Danger Imminent.—Where the master, on being notified by the servant of the defects that render the service he is engaged to perform more hazardous, expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of a promise in that regard, without being guilty of negligence; and, if an injury results therefrom, he may recover, except when the danger is so imminent that no prudent man would undertake to perform the service.
    
      Same.—Continuing in Service of Master.—Danger Imminent.—If the danger from continuing in the master’s service is so imminent that no one but a person utterly reckless of his personal safety would continue in the service under the circumstances, it would be negligence to continue such service as will bar a recovery.
    
      Same.-—Continuing in Master's Service.—Presumption.—The continuance of an employe in the dangerous service of his master, after a promise by the master to repair, during the time reasonably necessary for the employer to repair the defect, does not raise a conclu•sive presumption of negligence on the part of the employe. Where the danger is equally known to both, the presumption ordinarily is that the employer would not request or direct the employe to do what no one except a person utterly reckless of his own personal safety would do.
    
      Same.—Court Determining Question of Negligence.—If all the facts and circumstances are before the court, and they are such that only one conclusion can be drawn from them, the question of contributory negligence may be determined as a matter of law.
    Same.— Use of Defective Lantern by DraJceman, Promise to Furnish a New One.—For facts not showing contributory negligence in a brakeman using a defective lantern, and continuing in the service by reason of a promise to furnish a new lantern, see opinion.
    
      Appeals.—Superior Court of Marion County.—No Appeal.—A failure to pray for an appeal is waived by the appellee appearing at general term and not objecting to the appeal on that ground.
    From the Marion Superior Court.
    
      A. Balcer and E. Daniels, for appellant.
    
      R. N. Lamb and R. Hill, for appellee.
   Davis, J.

This action was instituted by appellee to recover damages for personal injuries alleged to have been sustained by him, without fault on his part, through the negligence of appellant. On trial by jury a general verdict was returned in favor of appellee for two thousand dollars, and also answers to twenty-five interrogatories.

The court, at special term, sustained appellant’s motion for judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict. On appeal to general term, this judgment was reversed. The facts in brief, as shown by the complaint, the general verdict, and the answers to the interrogatories, are as follows: On the fourth day of December, 1888, appellee was employed by appellant as a brakeman in handling freight cars, on appellant’s tracks, in and about Indianapolis. Appellant furnished appellee with a lantern, which was necessary to his work, during night hours, in making couplings of freight cars, giving signals and the performance of other duties. This lantern appellee found was defective and liable to go out, and reported this fact to appellant’s superintendent, and asked for a good and safe lantern. The superintendent informed appellee that th e company had ordered a new supply of lanterns, and directed appellee to continue at his work, and promised that he should have a new and safe lantern just as soon as they arrived, and said he was expecting them every day. Appellee continued to report to appellant’s superintendent each day the fact that the lantern with which he was working was defective and dangerous, and at each resport was promised a new and safe lantern and requested to continue at his work and do the best he could until the new lanterns arrived. Appellee, relying upon the promise of appellant to furnish him a new, suitable and safe lantern, and believing that there was no great, immediate, or imminent danger in using said old and defective lantern, complied with the direction of •appellant. ■

On the night of the fifth day of appellee’s employment the light of the lantern went out while appellee was engaged in coupling cars, and the injury occurred which resulted in the loss of his arm; that on each preceding night while using it in the ordinary and customary way the light in said lantern had gone out, but whether it was then being used in giving signals or the performance of other duties, how long the lantern was so used, or how often it went out on each night does not appear. There is no express finding that the lantern had ever been, before the injury, used in coupling cars after night, but there is a finding that there was no evidence that the light in the lantern had ever gone out before this occasion while appellee was using the same between the cars for the purpose of coupling them, and there is a finding that it was dangerous for a person to attempt to couple cars with a lantern, the light of which was accustomed to go out in the ordinary use of the lantern, and that the danger was great, apparent and continuous, while the lantern was being so used, and there is another finding that an ordinarily cautious and prudent man would not knowingly continue to use for coupling cars by night a lantern, the light of which in the ordinary use of the lantern, for such purpose, had continuously theretofore been accustomed to go out.

The only question presented for our consideration is whether appellant was entitled to judgment upon the answer of the jury to the interrogatories, notwithstanding the general verdict.

The jury by their general verdict have presumably found every material allegation of the complaint to have been proven, and that presumption conclusively prevails in this court unless the contrary is clearly shown by the answer to the interrogatories. Cleveland, etc., R. W. Co. v. Johnson, 7 Ind. App. 441.

The special findings override the general verdict only when both can not stand, and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered. Amidon v. Gaff, 24 Ind. 128.

The rule is well settled that an employer is bound to use ordinary care to provide safe appliances for his employes; that the employe has the right to act upon the assumption that his employer has used, and will use such care, until he acquires knowledge of the defect, or by the exercise of .reasonable care might acquire such knowledge; that the employe who continues in the service after notice of the defective appliance assumes the risk attending the use of such defective appliances, unless the master promises to remedy the defect. Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20.

The promise of the master is the basis of the exception. The promise of appellant to provide appellee with a new lantern within the reasonable time necessary for its performance removed all ground for the argument that he, by continuing in the employment, under the circumstances disclosed, assumed the risk of the dangers incurred by the use of the defective lantern. Indianapolis, etc., R. W. Co. v. Watson, supra; Hough v. Railway Co., 100 U. S. 213; Goldberg v. Schrayer, 37 Ill. App. 316.

The remaining question- for our consideration is whether the answers to the interrogatories disclose such a state of facts as will excuse appellant upon the ground of contributory negligence on the part of appellee.

In Hough v. Railway Co., supra, the court says: “We may add, that it was for the jury to say whether the defect in the cow-catcher or pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the engine without it being removed. If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery, upon the ground of contributory negligence. That the engineer knew of the alleged defect was not, under the circumstances, and as a matter of law, absolutely conclusive of the want of due care on his part. ’ ’

In this connection we quote the following from the opinion in the case of Indianapolis, etc., R. W. Co. v. Watson, supra: “It is a fundamental principle in this branch of jurisprudence, that one who voluntarily incurs a known and immediate danger is guilty of contributory negligence, and we are unable to perceive why a promise should relieve the party injured through his own contributory fault. If the danger is not great and constant, then such promise may well be deemed to relieve him; but where it is great and immediate, and is of such a nature that a prudent man would not voluntarily incur it, a promise does not nullify or excuse the contributory negligence. Even if there be a promise by the employer, the employe must not subject himself to great and evident danger, since this he can not do without participating in the employer’s fault. * * When the line of danger, direct and certain, is reached, there the citizen must stop, and he can not pass it, even upon the faith of another’s promise, if to pass it requires a hazard that no prudent man would incur.”

It is alleged in the complaint that the lantern was defective, and that in the ordinary mode of using it in making couplings of freight cars, giving signals and the performance of other duties, the light was liable to be suddenly extinguished, of which facts appellee informed •appellant; and, also, “that there might be danger to plaintiff in performing the duties required of him.”

It is further alleged that appellee believed ‘ ‘there was no great or immediate danger in using said old lantern.”

It appears, from the answers to the interrogatories, that appellee knew the lantern was defective and dangerous; that the light was accustomed to go out in the ordinary use of the lantern, and that in fact it had gone out on each day appellee had used it, and that the danger vtas great, apparent and continuous while the lantern was being used in the attempt to couple cars by night. It is specifically alleged, as we have seen, that appellee, while using the lantern in reliance on the promise of appellant to supply a new one within a short time, believed there was no great or immediate danger in so using said old lantern, and while there is no express finding that in fact he did know that the danger in continuing to use the lantern was great and imminent, there is the finding that he knew the lantern was defective and that the light was accustomed to go out in the ordinary use of the lantern—in giving signals and in the performance of other 'duties—and that the danger in using the lantern in coupling cars was great, apparent, and continuous. If the danger in using the defective lantern in coupling cars was apparent to appellee, it was known to him. If such danger was continuous, it was constant. If the danger continued without break or cessation, it was immediate and imminent.

It is further found by the jury that an ordinarily prudent and cautious man would not knowingly continue to use for coupling cars by night a lantern the light of which, in the ordinary use of the lantern for such purpose, had continuously theretofore been accustomed to go out.

Counsel for appellee insist that it does not appear that the light was accustomed to go out continuously, or that it had ever previously gone out while appellee was using it in coupling cars. It may be conceded that under the issues the fact may have been proven that appellee had, prior to the injury, used the lantern a number of times on each night in coupling cars, and it is true there is an express finding that there was no evidence on the trial in support of the proposition that the light of the lantern had at any time prior thereto gone out while the lantern was being so used. It is also true there is no finding that the light was accustomed to go out continuously when the lantern was in use in giving signals or in the performance of any other duties by appellee. The answer to this interrogatory, for the reason stated, is not in irreconcilable conflict with the general verdict.

The jury, however, did find the facts, as we have before observed, that the light was accustomed to go out each night in the ordinary use of the lantern by appellee in giving signals and the performance of other duties, except coupling cars.

Now, under the rule enunciated in Indianapolis, etc., R. W. Co. v. Watson, supra, what is the correct solution of the question under ^consideration?

Counsel for appellee contend that the Watson case was reversed solely on the ground that there was no promise made to furnish him a safe lantern. We do not so unstand the decision in that case. One of the questions decided in that case was that there was no evidence tending to prove that Watson was induced to remain in the service of the company by any promise, express or implied, that a safe lantern would be provided.

Judge Elliott, speaking for the court in that case, says:

“It is probably true that the promise of the employer, when relied on by the employe, will rebut a presumption of contributory negligence in cases where the danger is not great and immediate, but this presumption yields whenever it appears that the employe voluntarily incurs a known and immediate danger of • so grave a character that it would deter a reasonably prudent man from incurring it.

“In the case before us, the testimony convincingly shows that the appellee knew the danger he encountered, and it shows, also, that it was so great and immediate that a prudent man would not have assumed the risk it created. It results that even if it were conceded that there was a promise, and a reliance on it, there could be no recovery.”

The judgment of the court below was therefore reversed on two grounds:

1. Because there was no promise shown.

2. If the promise had been established, that Watson was shown to have been guilty of contributory negligence.

In this case the answer to the interrogatories disclosed-that appellee knew the danger he encountered when he was injured was great and continuous, but there is no express finding as a fact by the jury that a prudent man would not have encountered the risk under the circumstances.

The only question, therefore, that we are required to determine is, does it necessarily and inevitably follow, as a matter of law, that an employe who encounters a great, apparent, and continuous danger under such circumstances is guilty of contributory negligence?

The general verdict for the appellee includes a finding that he used ordinary care. In other words, that a prudent man would have encountered the risk under the circumstances. Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39.

Are the special findings so in conflict with the general verdict on the question that there is no possibility of the antagonism being removed by any evidence legitimately admissible under the issues?

Is the fact that appellee knew that the danger in the use of the lantern in coupling cars was great and continuous, under the circumstances, as a matter of law, absolutely conclusive of the want of due care on his part?

In this connection we quote from and refer to the following authorities:

“The question of contributory negligence is ordinarily a question of fact for the jury to determine.

“It is only when the fact or facts recited lead inevitably to but one conclusion (and that the conclusion of negligence), that the court can be called upon to say, in an instruction, that certain facts constituted negligence. ’ ’ Board, etc., v. Sappenfield, 6 Ind. App. 577.

“Where a master, on being notified by the servant of defects that render the service dangerous, expressly promises to repair the defect, or to do what is equivalent thereto, the servant may continue in the employment for such a period of time as it would be reasonable to allow for the performance of the promise. In such case, if injury results, the servant may recover, unless the danger is such that no prudent person would' continue to perform the service. The servant’s knowledge of the defect is not, under such circumstances, conclusive of the want of due care on his part, because the promise of the master to remove the danger justifies him in continuing in the service, and relieves him of the charge of negligence. If the master fails to make his assurance good, he is chargeable with a failure to exercise ordinary care. It is, however, a question of fact for the jury to determine whether the defect is so serious that a prudent person would not continue in the performance of the required work.” Chicago Drop Forge and Foundry Co. v. Van Dam, 36 N. E. Rep. 1024. See, also, Matchett v. Cincinnati, etc., R. W. Co., 132 Ind. 334; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327.

“It has been held that knowledge of danger is not always conclusive evidence of contributory negligence, although the fact of such knowledge may have an important bearing upon that question.” Evansville, etc., R. R. Co. v. Athon, 6 Ind. App. 295; Haynes, Spencer & Co. v. Erk, 6 Ind. App. 332; Citizens’ Street, etc., R. W. Co. v. Spahr, 7 Ind. App. 23.

“The right of appellee to recover could not be affected by his having contributed to the injury-by his act, unless he was in fault in so doing.” Noblesville Gas and Improvement Co. v. Teter, 1 Ind. App. 322; Louisville, etc., R. W. Co. v. Davis, 7 Ind. App. 222.

“It is now uniformly stated by the text writers that where the master, on being notified by the servant of the defects that render the service he is engaged to perform more hazardous, expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of a promise in that regard without being guilty of negligence, and, if an injury results therefrom, he may recover unless when the danger is so imminent that no prudent man would undertake to perform the service. The doctrine on this subject rests on sound principie, and it will be found to be supported by English and American decisions. The reason upon which the rule is said to rest is that the promise of the master to repair defects relieves the servant of the charge of ^negligence by continuing in the service after the discovery of the extra perils to which he would be exposed. This exception to the rule has frequently come before the court, and has often been held sufficient to sustain a recovery by the servant against the master for injury received under such circumstances. The reason for the exception may be stated to be that when the master has knowledge of the defects and promises to repair the same, he impliedly requests the servant to continue work, and that he (the master) will take upon himself the responsibility of any accident that may occur during that period.” Clarke v. Holmes, 7 Hurl. & Nor. 938, cited approvedly in Furnace Co. v. Abend, 107 Ill. 44.

Another well recognized principle exists, that may be considered as ingrafted on, and a modification of, the exception to the rule, and that is: If the danger from continuing in the master’s service is so imminent that no one but one utterly reckless of his personal safety would continue in the service under the circumstances, it would be negligence to continue such service, that would bar a recovery. The question as to the knowledge of the defect by the master, whether he promised to repair, and whether the servant continuing in the service did so when the danger was so imminent that none but a person utterly reckless of his personal safety would continue in the service, are all questions of fact, to be determined by the jury. Chicago and Anderson Pressed Brick Co. v. Sobkowiak, (Ill.) 36 N. E. Rep. 572.

In such cases unless the danger is so imminent that no one but one utterly reckless of his own personal safety would continue in the service under the circumstances, the employe is not in fault in complying with the request of the employer, and the employer is held by. his promise to have taken upon himself the responsibility of any accident that may occur to the employe by the use of the defective appliances during such period as may be reasonably necessary to remedy the defect. In determining the question whether a reasonably careful and prudent man would, in reliance on the promise of the employer to remove the danger, continue temporarily in the performance of his duties in the face of the known, apparent and continuous danger, all the circumstances connected with the nature of the service, the defect, the danger, and the promise should be considered. The continuance of the employe in the dangerous service during the time reasonably necessary for the employer to repair the defect does not in such case raise a conclusive presumption of negligence on the part of the employe. In such cases when the danger is equally known to the employer and employe, the presumption ordinarily is that the employer would not request or direct the employe to do what no one but one utterly reckless of his own personal safety would do. If, however, it does appear in any such case, from all the facts and circumstances, that the danger is so imminent that no one but one utterly reckless of his own personal safety would continue in the service during the time necessary to perform the service, and the employe is injured while so engaged, he is held to be guilty of contributory negligence. If all the facts and circumstances are before the court, and they are such that only one conclusion can be drawn therefrom, this question may be determined as a matter of law by the court. Cincinnati, etc., R. W. Co. v. Grames, supra.

In view of the authorities cited, it appears to us that it was for the jury to say whether the danger was so great, apparent, and continuous that none but a reckless brakeman, utterly careless of his own safety, would have continued in the service in which appellee was injured. If, under all the circumstances, and under the promise to supply him with a new lantern, appellee was not wanting in due care in using the lantern to couple the cars, then the company will not be excused for its negligence upon the ground of contributory negligence. If there was a finding that an ordinarily cautious and prudent man would not knowingly continue to use such a lantern in coupling cars, under the circumstances disclosed by the evidence in this case, a different question would be presented. In this case there is no- finding that this lantern had been previously used “for such purpose,”ox that it had continuously theretofore been accustomed to go out, or that an ordinarily cautious and prudent man would not, under the circumstances, continue to use in making couplings of freight cars, a lantern, the light of which was accustomed to go out in giving signals and the performance of other duties, except coupling cars.

It may be that it is probable that the light in the lantern was as likely go out while it was being used by appellee in coupling cars as it was accustomed to do in giving signals and in the performance of other duties. It is not our province, however, to indulge in inferences or probabilities. In this connection it should be borne in mind that the jury found on the question of due care, in answer to interrogatories, only, as we have before ob- ■ served, that if the light in a lantern used in coupling cars by night was, while used for such purpose, accustomed to go out continuously, an ordinarily cautious and prudent man would not knowingly continue to use such lantern fot coupling cars by night, but they did not find the lantern in question was such a lantern.

Neither did the jury find that an ordinarily cautious and prudent man would not, under the circumstances, have used the lantern in coupling cars on this occasion. What the peculiar circumstances, if any, were in connection with the use of the lantern by appellee when he was injured, we do not know. We are to presume, however, that any and all evidence legitimately admissible under the issues in favor of appellee was introduced. It was possible, under the issues, for such circumstances to have been shown as would have created an imperative duty on his part to act then and there in an attempt to couple the cars in order to enable the company to move its freight and passenger trains during that night. The evidence may have disclosed some emergency which required the coupling of the cars at that time, and if, in such emergency, in the line of his duty, he proceeded with the defective lantern, using care commensurate-with the danger, to do what was required to be done for his master, he was not necessarily guilty of contributory negligence per se under the facts and circumstances shown in the interrogatories and answers thereto.

It is true the nature of the cause of .action and the answers to the interrogatories are such as would lead, in the absence of the general verdict, to the inference that-an ordinarily prudent man would not have continued to use the lantern in question, but this inference the court can not make against the general verdict, since we can make no intendments in support of the answers to the interrogatories.

Before contributory negligence can be adjudged against appellee in this case, by the court, it must appear:

1. That the danger incurred by him was known and immediate.

2. That a prudent man would not, under the circumstances, have assumed the risk incident to the use of the defective lantern on this occasion.

The answers to the interrogatories do not, in our opinion, sustain the second proposition against the general verdict.

Filed Nov. 15, 1894;

petition for rehearing overruled Feb. 6, 1895.

Judgment affirmed.

On Petition foe a Reheaeing.

Davis, J.

The learned counsel for appellant have filed an earnest petition for a rehearing. The questions so ably presented for our consideration have been fully discussed by the court in consultation, and our decision thereon has been and is adverse to appellant.

Section 1414, R. S. 1894, the same being section 1361, R. S. 1881, in relation to appeals from the special term to the general term, in part, reads as follows: “It shall only be necessary for a party appealing from a special to the general term to pray an appeal to the general term, and it shall be granted as a matter of right,” etc.

The record in this case does not disclose that an appeal was prayed for and granted in special term, but in all other respects it appears that the statute in relation to appeals has been complied with, and that without objection appellant appeared in general term, and by agreement submitted the cause on appeal to the court.

The appellant having appeared in the general term, and by agreement submitted the cause on appeal to the decision of that court, it is too late, after the rendition of the final judgment by the general term against appellant, for appellant to say that the general term did not have jurisdiction of the action for the reason that no appeal was prayed for and granted in special term. Critchell v. Brown, Exr., 72 Ind. 539; TenBrook v. Maxwell, Admr., 5 Ind. App. 353.

Petition for rehearing overruled.

Filed Feb. 6, 1895.

Ross, C. J.

For the reasons stated in the dissenting opinion heretofore .filed by me, I think a rehearing should be granted.

Filed Feb. 6, 1895.

Dissenting Opinion.

Ross, J.

The pivotal question in this case is whether or not the appellee, knowing the defective condition of the lantern, had a right to continue to use it, although appellant had promised to furnish him a new one when the new supply, which had been ordered, arrived; and, continuing to use it, and having been injured by reason thereof, can make the appellant answer in damages therefor.

It- is a well settled rule that when a servant continues in the service of the master, knowing of' the defective condition of the machinery with which he is to wprk, he thereby assumes the risk as increased by the defect. Parke County Coal Co. v. Barth, 5 Ind. App. 159; Becker v. Baumgartner, 5 Ind. App. 576; Kentucky and Indiana Bridge Co. v. Eastman, 7 Ind. App. 514; Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Brazil Block Coal Co. v. Young, 117 Ind. 520; Pennsylvania Co. v. O’Shaughnessy, Admr., 122 Ind. 588; Louisville, etc. R. W. Co. v. Corps, 124 Ind. 427; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327; Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156; Buzzell v. Laconia Mfg. Co., 48 Maine, 113; Hatt v. Nay, 144 Mass. 186, and cases cited; Beach Cont. Neg. (2d ed.), section 371, and cases cited.

To this general rule there is an exception which arises when the master induces the servant to remain in his service upon a promise to remedy the defect.

“The only ground upon which the exception before us can be justified is, that in the ordinary course of events the employe, supposing the employer has righted matters, goes on with his work without noticing the corn tinuance of the defect. But this reasoning does not apply, as we have seen, to cases where the employe sees that the defect has not been remedied, and yet intelligently and deliberately continues to expose himself to it.” Wharton Neg. (2d ed.), 221. The servant has a right to assume that the master will keep his promise and make the repairs, but when he learns that the promise has not been observed and the repairs not made, he can no longer act upon the assumption. Knowledge on his part that the defect has not been remedied puts an end to the right to assume that the master has done his duty. Webber v. Piper, 38 Hun (N. Y.) 353; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20.

The exception to the general rule, therefore, can only be upheld on the theory that the servant has reason to expect that in consequence of his notification and the master’s promise to repair the defect, the repairs will be made before he will be subjected to danger from it; and this upon the hypothesis that, as it is. the duty of the master to furnish reasonably safe machinery and keep it in reasonably good condition and repair, he will do so when notified that it has become defective and unsafe for use.

I am free to admit that some of the cases apparently hold that a promise to repair on the part of the master is in effect a guaranty to indemnify the servant against injury while he remains exposed to the known peril. The great weight of authority, however, and all that can reasonably be deduced from the cases where the question has been fully considered is that if the danger from the use of the defective machinery is not great or imminent the servant may continue in the service a reasonable length of time after the promise to repair, and that if he is injured during that time he may maintain an action therefor. But even those cases hold that if the defect is such that obviously with the use of the utmost skill and care danger is imminent, the servant assumes the risk if he encounters it, notwithstanding the promise of the master to repair. Indianapolis, etc., R. W. Co. v. Watson, supra, and cases cited; Conroy v. Vulcan Iron Works, 62 Mo. 35; Woods Master and Servant (2d ed.), section 379.

The reason for the exception is not because the naked promise of the master makes the danger any the less or relieves the servant in any degree from the exercise of all reasonable diligence and care to avoid being injured, but because he is induced by the master to believe that the defect will be removed, and he will not be longer exposed to it. He is thus lulled into a feeling of security. But if the promise is not kept, and he knows it, and still continues to use the machinery in its defective condition, the inducement is gone, and he can not close his eyes to the dangers which confront him. To hold otherwise would be to cast upon the master the -obligation of exercising a greater degree of care for the safety of the servant, than the servant is bound to exercise for himself. The promise creates no greater obligation, but simply implies that the master will do the duty which the law imposes upon him to furnish his servants with machinery reasonably free from defects.

Among the interrogatories submitted to, and answered by, the jury in this case are the following:

"14th. Was the plaintiff injured on the 8th day of December, 1888, at between 6 and 7 o’clock in the evening, by having his left arm caught between the deadwood of a moving and a stationary car while he was making a coupling of the two cars, and while he was standing between the two cars for the purpose of making that coupling? Answer. Yes.

“15th. If you answer question thirteen in the affirmative, that plaintiff, at the time of his said injury, had in his hand a lantern, then state here whether or not the light in the lantern he then had in his hand, had ever before that time, in the customary and ordinary use of it, gone out while it was in the plaintiff’s hands and to his knowledge? Answer. Yes.

“16th. If you answer the last question in the affirmative, state how many times the light in said lantern had so gone out while in the plaintiff’s hands, and while he was using it in the ordinary and customary way, and if the same occurred on more than one day, state what the dates were? Answer, Yes, each day.

“20th. Was it dangerous for a person to attempt to couple cars by night with a lantern, the light in which was accustomed to go out in the ordinary use of the lantern? Answer. Yes.

“21st. If you answer question twenty in the affirmative, state whether or not the danger was great, apparent and continuous while the lantern was so being used. If you say it was not, state why the danger to the person so using a lantern of that kind was not great, apparent and continuous while he was so using it? Answer. Yes.

“22d. Would an ordinarily cautious and prudent man knowingly continue to use for coupling cars by night, a lantern the light in which, in the ordinary and customary use of the lantern for such purpose, had continuously theretofore been accustomed to go out? Answer. No, not if it continuously went out.”

Prom these interrogatories and the answers thereto, the jury find that the appellee was knowingly using a lantern furnished him by appellant, which, in the customary and ordinary use for which it was furnished and used, was liable to, and did, go out so that it was dangerous to use it; that the danger of using it was great, apparent, and continuous, and that an ordinarily cautious and prudent man would not knowingly continue to use it.

These facts can lead to but one conclusion, namely, that it was appellee’s own act that caused the injury.

As Elliott, J., in the case of Indianapolis, etc., R. W. Co. v. Watson, supra, says: "It is a fundamental principle in this branch of jurisprudence, that one who voluntarily incurs a known and immediate danger is guilty of contributory negligence, and we are unable to perceive why a promise should relieve the party injured through his own contributory fault. If the danger is not great and constant', then such a promise may well be deemed to relieve him; but where it is great and immediate, and is of such a nature that a prudent man would not voluntarily incur it, a promise does not nullify or excuse contributory negligence. Even if there be a promise by the employer, the employe must not subject himself to a great and evident danger, since this he can not do without participating in the employer’s fault. The community have an interest in such questions, and that interest requires thaj; all persons should use ordinary care to protect themselves from known and certain danger. A man who ¡brings about his own death or serious bodily injury sins against the public weal. All must use ordinary care to avoid known and immediate danger, although it is not the assumption of every risk that violates this rule. When the line of danger, direct and certain, is reached, there the citizen must stop, and he can not pass it, even upon the faith of another’s-promise, if to pass it requires a hazard that no prudent-man would incur.”

The jury here find that the danger from using the lantern was great, apparent, and continuous, and that no-ordinarily cautious and prudent man would use it. To risk danger which is great, apparent, and continuous is equivalent to courting injury, and one who does so must alone suffer.

The lantern furnished appellee by appellant can not well be called machinery in the sense in which that word is usually used. It is rather an implement, not necessarily used to work with, but to furnish light by which to work.

Hence, as is said by a recent writer, Bailey’s Masters’ Liability to Servants, 209: “In cases where persons are employed in the performance of ordinary labor, in which no machinery is used and no materials furnished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability. A common laborer who uses agricultural implements while at work upon a farm or in a garden or one who is employed in any service not requiring great skill or judgment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for negligence if, in using a utensil which he knows to be defective, he is accidentally injured. It does not rest with the servant to say that the master has superior knowledge, and has therefore imposed upon him. He fully comprehends that the instrument which he employs is not perfect, and, if he is injured, it is by reason of his own fault and negligence. The fact .that he notifies the master of the defect, and asks for another implement, and the master promises to furnish the same, does not render the master responsible, if an accident occurs. A rule imposing such a liability in such a case would be far reaching, and would extend the principle ‘that it is the duty o.f the master to the servant, and the implied contract between them, that the master shall furnish proper, perfect, and adequate machinery or other materials and appliances necessary for the proposed work, ’ to many of the vocations of life for which it was never intended.”

The same language may be found in the case of Meador v. Lake Shore, etc., R. W. Co., 138 Ind. 290. In that case the railway company furnished its servant a ladder to be used by him in the performance of his duty of lighting and extinguishing lamps at places where streets in the town of Elkhart crossed the railroad. The ladder got out of repair and the servant complaining of its condition, the company promised to furnish a new one soon. He continued to use the defective one and was injured, and the court held that he could not recover for the reason that he assumed the risk, notwithstanding the promise of the master to furnish a new one.

In the case of Crichton v. Keir, 1 Macph. (1 Scotch. Court of Sessions) 407, it was held that ‘‘In an action of damages at the instance of a railway laborer against his masters (the contractors) for bodily injury alleged to have been sustained through their furnishing him with ahorse unfit, from age and otherwise, for the work which it had to do, the pursuer (plaintiff) alleged, inter alia, that his masters were aware of the unfitness of the horse, had promised to furnish another, and had induced the pursuer to go on with the old horse in the meantime by promises of assistance, which they had failed to fulfill— held that the pursuer’s averments showed that he knew the unfitness of the horse and the danger of continuing to work with it: and, therefore, that he had no claim against his masters on account of the injury alleged.”

See, also, Marsh v. Chickering, 101 N. Y. 396; Cor coran v. Milwaukee Gaslight Co., 81 Wis. 191; Jenney Electric Light and Power Co. v. Murphy, 115 Ind. 566; Gowen v. Harley, 56 Fed. Rep. 973, and cases cited.

In the case under consideration, the promise which the appellee alleges in his complaint he relied upon was not to repair the lantern then being used by him, but a promise to furnish him a new one when a new supply arrived. He was not induced to continue the use of the old lantern under a promise that it would be repaired, relying upon which he continued its use upon the assumption that the appellant had kept the promise, and made the repairs; but, on the contrary, he knew that it was not to be repaired, and that if he continued in the appellant’s employ he must use it in its defective condition until the arrival of the new lanterns.

In the case of Marquette, etc., R. R. Co. v. Spear, 44 Mich. 169, Cooley, J., speaking for the court, says:

“But it is argued that the company promised to repair the engine, and plaintiffs had a right to rely upon this being done. The promise was to repair it sometime; and meantime the instrument was being employed by plaintiffs from day to day with knowledge that the repairs were not made. When there is a promise- to repair immediately, or within a fixed time, and a party relies upon its having been done, and is injured because of such reliance, he has a right to complain; but this is no such case. The promise was wholly indefinite, and plaintiffs never relied upon it except as a probable future event. They knew the repairs had not been made when they employed the engine on the day of the fire, and they deliberately and most carelessly took the risks of what actually happened.”

In the case of Webber v. Piper, supra, the court says:

“There was no defect in the saw beyond the fact that it was out of set. This is of constant occurrence when the saws are being used. The plaintiff asked that the saw be set and he was told, in substance, that it would be done at noon or be seen to at noon. The plaintiff, with full knowledge that the saw was out of set, used it, and he testified that by reason of the saw being out of set he was injured. The risk was one incident to the business.”

In view of the fact that the jury find that the appellee knew of the defective condition of the lantern; that the danger from using it in that condition was great, apparent, and continuous, and that an ordinarily cautious and prudent man would not have used it.

I think the court below, in general term, erred in reversing the judgment in favor of appellant on the answers to the interrogatories, notwithstanding the general verdict.

Filed Nov. 15, 1894.  