delivered the opinion of the Court:
Conceding the contract to be as plaintiff insists it was, that he was hired to defendants for a service disconnected with any care of the machinery used in the establishment, it is extremely doubtful whether it is proven, by any preponderance of the evidence, he was ever directed by any of his employers to oil the machinery, in doing which he was injured. On that question the evidence is conflicting, but there is much that we think goes far to strengthen the positive denial of defendants they ever gave him such orders. However that may be, he says, himself, that if he “ didn’t want to do it ” he could do “ something else.” He was at liberty to do or omit that ser*516vice, as he chose, according to his own version of the testimony. There is no doubt be had been cautioned to keep away from the machinery, and there is also testimony that tends, strongly, to support the theory the injury to plaintiff was the result of his own improper interference with the machinery in defendants’ shop.
In view of the character of the evidence, the seventh instruction, given for plaintiff, was highly calculated to mislead the jury. It assumes, by its phraseology, “ defendants were guilty of gross negligence.” The jury ought to have been left free to find, from the testimony, what duty defendants had omitted, or what positive wrongful acts they had done, and it was improper for the court to assume the existence of facts which show defendants had been guilty of gross negligence, or to assume, as a conclusion, they were guilty of gross negligence. Either assumption was hurtful to the cause of defendants.
Other instructions given are subject to the criticism they do not state accurately the doctrine of comparative negligence, but the error in that regard is slight; and on another trial, if one shall be had, the court will make the instructions on that branch of the case conform to the law, as declared in the previous decisions of this court. Chicago, Burlington and Quincy Railroad Co. v. Lee, 68 Ill. 576, and cases cited.
The judgment will be reversed and cause remanded.
Judgment reversed.