delivered the opinion of the court.
The question in this case is this: Should the learned judge have granted a new trial upon the ground that the verdict is clearly against the weight of the evidence ?
When the motion to take the case from the jury was made, it was the duty of the court to see if there was evi*528dence in the case which, with all its reasonable intendments and inferences, fairly tended to make out the plaintiff’s case. If there was, it was the duty of the court to submit to the jury the question of negligence on the part of the defendant and of due care upon the part of the plaintiff, as alleged in the declaration. Chicago City Ry. Co. v. Martensen, 198 Ill. 511.
But when the motion' for a new trial upon the ground that the verdict is not justified by the evidence is being considered, it is then the duty of the court to determine whether or not the verdict is clearly against the weight of the evidence. If it is, he should grant the motion. If it is not, he should deny the motion. This rule is so well settled that the citation of authorities is not needed to support it.
When the trial court overrules such a motion, and the case comes here and the same ground is here urged, it is the duty of this court to examine the evidence, in order to determine whether, under the rule referred to, it is sufficient to sustain the verdict. In prosecuting this inquiry we must give due weight to the fact that the jury saw the witnesses, a privilege not granted to us, but that fact will not relieve us of the duty of setting aside the verdict and of granting a new trial if, in our judgment, the verdict is so clearly against the weight of the evidence as to indicate passion or prejudice upon the part of the jury. Alsop v. O. &. M. Ry. Co., 19 Ill. App. 293; Gehm v. People, 87 Ill. App. 161; Illinois Central R. R. Co. v. Cunningham, 102 Ill. App. 207.
The preponderance of the evidence is that appellee had been constantly working in these ash-pits for two months prior to his injury; that he alone did this work, and no one else had .anything to do with the ash-pits. The grates which were above the screw, if perfect and in place, prevented his foot from dropping down upon the screw. Over these grates there was a layer of iron plates upon which the ashes rested. When appellee had to clear out the ashes he started in at one end of the pit and removed the end *529plate by pulling it toward him, thus exposing one of the grates. With his hoe he drew the ashes within reach down upon the grate, and they fell through the five-inch aperture upon the screw. He then pulled another plate toward him, thereby exposing a second grate, and thus continued the work until he had emptied one-half of the pit. By a repetition of this process he removed the ashes from the other half of the pit. In doing this work in this manner he always had a plate to stand upon, and beneath that and above the screw there was always a grate, if it was perfect and in place, to protect him from the screw.
The evidence of plaintiff’s witnesses is to the effect that one of the grates was broken, the hole being about fifteen by _twentjr-two inches; that this hole had been there for from sixty to seventy-five days. A. Snider says everybody was talking about it. All of them could see it plainly when near the edge of the pit. Kingston saw this hole “ a couple of hundred times; it was easy to see.” He had heard Foreman Bennett and Tennant, who had charge of the pit, talk about this hole six weeks before the accident. But appellee claimed that he had never seen that hole and did not know it was there, although he had daily uncovered every grate in that pit, and, if the grate was broken as described, he had raked the ashes down that large hole at least fifty times before he was hurt. It is undoubtedly true that at times, while he was working, there was much steam and dust in the pit, but that such a hole could have been in one of those grates and be the common topic of conversation among his fellow workmen for two months’ time and appellee not be aware of its existence, passes the bounds of credulity. His statement in rebuttal, in the answer of “no” to the question, “You knew how to do the work properly, didn’t you?” does not create a favorable impression upon our minds.
An employe assumes all the known and ordinary dangers of his employment. If the danger is open and obvious, so that by the exercise of ordinary care in the use of the machinery or in working with it, he will have knowledge *530of such danger, he is bound to take notice of it, and he will not be heard to say that he had not such knowledge. Armour v. Brazeau, 191 Ill. 126. If, on the contrary, there was no broken grate, and the danger was inherent in the construction or use of the machinery, and appellee knew the construction of the machinery and the danger attendant upon its use, as we think is clearly shown by the preponderance of the evidence, and continued in the service, as he did, he is deemed to have assumed the risks and to have waived all claims against appellant for damages arising out of his personal injury. Browne v. Siegel, Cooper & Co., 191 Ill. 233.
It is certain that there was upon the day of his injury a space between two of these grates, or a hole in one of the grates, through which the foot of this unfortunate man passed down to the screw. But that such aperture was a break or hole in one of the grates, is far from being proven. The evidence of five unimpeached and intelligent witnesses, who examined the pit right after the accident, tends to show that none of the grates were broken. They further say that such an opening would be made by pushing the short grate next the center under the plate covering the gearing; and that when they made their examination this condition existed. Courts are slow to charge witnesses with perjury; nor will they do so when their evidence can be otherwise reasonably explained. From a careful examination of the record we are of the opinion that the hole the witnesses for the plaintiff so plainly saw from the edge of the pit, was the open space caused by pushing the short grate, or the two grates nearest the center, to the south.
Ho other person than appellee had to do with these grates and plates. Each time he removed the ashes it was his duty to replace them and to see that they were in their several places, so that they might securely retain the next discharge of ashes, and so that, in disposing of the ashes, he might work in safety.
It is in evidence that this machinery at the time of the accident was in the same condition as when it was installed *531eighteen months prior thereto; that the grate next the center had always been shorter than the others, in order that the gearing might be readily reached, and that while appellee worked in the pit the construction of this machine had not been changed.
Appellee describes the accident in these words: “It was about three o’clock that I stepped on the plate, and my foot slipped and I fell into the hole.” The declaration does not allege that the plate was defective, slippery or dangerous; and hence no cause of action can be founded upon the defective, slippery or dangerous condition, if any, of this part of the machinery. Wabash W. Ry. Co. v. Friedman, 146 Ill. 583-589.
The evidence shows that, immediately after appellee was injured, the two plates nearest the hole were found standing on edge at the side of the pit, instead of being drawn back over the grates, which, bv the undisputed testimony, was the proper method of handling them as the work progressed.
This is a hard case, since appellee is maimed for life, but we can not bend the settled rules of law so that they shall follow either our sympathies or our desires.
The whole record being considered, we are of the opinion that the case should be submitted to another jury.
The judgment of the Superior Court is reversed and the cause is remanded.