text:
    International Forwarding Company, Defendant in Error, v. C. R. Horrie, Plaintiff in Error.
    Gen. No. 15,357.
    1. Trial—what conduct of court improper. It is improper for the court extensively to examine upon direct the witnesses produced by a party and such conduct if prejudicial is ground for reversal.
    2. Trial—when remarks of judge will not reverse. Notwithstanding the trial court may have exceeded his province in expressing his opinions in the presence of the jury, a reversal will not he ordered if no substantial injustice appears to have been done.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 10, 1910.
    John A. Swanson, for plaintiff in error; Aaron Heims, of counsel.
    Albert H. Fry, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

The plaintiff’s claim in this case is stated to be for services rendered and money advanced for defendant’s use. The amount claimed is $10.15. The defendant in open court tendered in payment the sum of $7.75, which was paid into court. The trial court gave judgment in plaintiff’s favor for the full amount of the plaintiff’s claim. The defendant asks us to reverse that judgment, the difference between the amount claimed by plaintiff and for which it has judgment and the amount which defendant asserts is due, being $2.40.

The defendant’s contention is that against his wishes a party in Spain from which he purchased seventeen gallons of sherry, at a cost of $5.95, forwarded it by the plaintiff. The latter’s bill, including freight from Cadiz, Spain, to Chicago, “I. T. entry fee,” customhouse blanks and marine insurance, together with “fees for services in connection with the above transportation” of $2.79, make up the plaintiff’s bill of $10.15, for which it brought this suit.

The defendant’s reasons for asking us to reverse the judgment are that under the evidence the plaintiff was not entitled to recover the extra $2.40 over and above the amount tendered, that the trial judge erred in examining the witnesses himself, and that “the remarks of the judge in the presence of the jury concerning the effect of the evidence and his intimations as to the facts in the case, constituted reversible error. ” As to the first of these contentions the jury did not agree with defendant’s views that the $2.79 for plaintiff’s fees was an overcharge. It must suffice to say that there is evidence tending to show that the usual charge for such services is from $2.50 to $3 on such shipment. The charge could scarcely be deemed excessive, even under defendant’s evidence, and we should not be expected to review evidence in detail in support of this conclusion in a case such as this.*

That in examining the witnesses himself to the extent shown in this cause and in certain .remarks which the record shows the trial court indulged in, there was an overstepping of the province of the presiding judge, may we think be conceded. It is true, as said in Consolidated Coal Co. v. Sheperd, 112 Ill. App. 458, that “testimony elicited by an improper question from the court is more effective to impress and mislead a jury than when in response to questions by counsel.” The subject is considered in Dunn v. The People, 172 Ill. 582-595, in O’Shea v. The People, 218 Ill. 352-360, to which reference may be had, and in quite a number of other cases.

Upon the third contention, it is true as said by Justice Gary in Kane v. Kinnare, 69 Ill. App. 81-83, “Many judgments have been reversed in this state because the judge talked too much. The cases may be readily found by consulting the digests.” As said in Andreas v. Ketcham, 77 Ill. 377: “We are aware of no rule of law or practice that would allow the presiding judge to give to the jury his opinion on a controverted question of fact.” In this case however it is clear that no substantial injustice has been done. It would be inexcusable for obvious reasons to encourage appeals in cases of this character. The amount involved is absurdly small in comparison with the expense incurred in prosecuting the appeal, and no principle of importance is involved.

The judgment of the Municipal Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Frank O. Butler, Plaintiff in Error, v. Aurora, Elgin & Chicago Railroad Company, Defendant in Error.
    Gen. No. 15,361.
    1. Railroads—construction of statute requiring construction and maintenance of fences and cattle-guards. A third rail is an “agent” within the meaning of such statute which provides that the railroad shall be liable “for all damages which may be done by the agents, engines or card of such corporation to such cattle * * * thereon.”
    2. Railroads—when not obligated to fence right of way. A railroad company is not obligated to maintain a fence on or in front of a platform used as a station which shall be sufficient to prevent cattle from going over such platform to the right of way.
    Tort. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 10, 1910.
    Statement by the Court. Plaintiff brought in the Municipal Court an action of tort against defendant to recover damage for the killing of his cow. The cause was submitted to the court and there was a finding of not guilty and judgment on the finding. There is no controversy as to the evidentiary facts.
    Spring road, a north and south road, crosses the defendant’s double track electric railroad at right angles. Defendant’s right of way is 100 feet wide. On the west side of Spring road is a fence extending from the south line of the right of way to the south rail of the south track, where it connects with a cattle-guard made of corrugated tiling which extends north twenty-four feet “to a platform used by passengers in taking trains on the west-bound tracks.” The platform is reached from Spring road over a cinder walk which is practically on a level with the platform. The side of the platform, next to the right of way, is sixteen inches higher than the roadbed. The cow got on the right of way, either by passing over the cattle-guard or by passing over the station platform, and came in contact with a “third rail,” carrying an electric current, and thereby was killed. By the statute, “every railroad corporation” is required to “erect and maintain fences on both sides of its road, or so much of it as is open for use, suitable and sufficient to prevent cattle * * * from getting on such railroad, except a,t the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may hereafter be laid out and platted into lots and blocks, * * * and to construct and maintain at all road crossings * * * cattle-guards * * * and when such fences and cattle-guards are not made, * * * such railroad corporations” are made liable “for all damages which may be done by the agents, engines or cars of such corporation to such cattle * * * thereon,” etc.
    Asa Q. Reynolds, for plaintiff in error.
    Hopkins, Peppers & Hopkins, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The statute provides that in case of a failure to comply with its provisions, a railroad corporation shall be liable for damages which may be done, “by the agents, engines or cars” of the corporation to animals on its railroad. One of the meanings of the word “agent”is, “An active power or cause; that which has the power to produce an effect; as a physical, chemical or medicinal agent; as heat is a powerful agent.” Webster’s Dictionary. We think that the electric current with which the third rail was charged was an ‘‘ agent, ’ ’ used and employed by the defendant, within the meaning of the word as used in the statute.

It appears from the “statement of facts” that the platform north of the track was-“/used by passengers in taking trains on the west-bound track. ’ ’ It was, we think, a passenger station of the defendant. The only statement in the “Statement of facts” to show how the cow got on the right of way is the following: “The evidence does not show whether the cattle (including the cow in question) reached the right of way of the defendant by passing over the cattle-guards, or by getting on the station platform and jumping from the platform. ’ ’ As the cow may have gone on the right of way over the station platform, defendant is not liable under the statute unless it was bound to fence in its road; to maintain a fence on or in front of the platform sufficient to prevent cattle from going over the platform on to the right of way. In C. B. & Q. R. R. Co. v. Hans, 111 Ill. 114, it was held that the railroad' company, under the statute, was not bound to fence in its road at a station. In the opinion, referring to the case of C. M. & St. P. R. R. Co. v. Dumser, 109 Ill. 402, relied on by plaintiff in error, it was said: “It was not necessary in that case to decide that the company was derelict in its duty in failing to fence its track at the depot where it received and discharged passengers and freight,” We regard the decision in C. B. & Q. R. R. Co. v. Hans as conclusive against the liability of the defendant in this case under the statute.

We find in the statement no facts from which the court might properly find that the defendant was guilty of common law negligence, and the judgment will be affirmed.

Affirmed.


text:
    Carl M. Koedt, Appellee, v. Theodore Josephsen, Appellant.
    Gen. No. 15,383.
    1. Depositions—when objection to insufficiency of notice should be made. Objection to the insufficiency of the notice upon which the taking of depositions was predicated should be made, before the trial by motion to suppress.

      2. Depositions—when improper exclusion will not reverse. Improper exclusion of depositions will not reverse if it appears that the testimony was not so material or important that the Appellate Court can say that its exclusion was harmful to the complaining party.
    3. Evidence—what tends to show value of legal services. In order to establish the value of legal services rendered, evidence should be introduced tending to show what is the customary charge for the services rendered.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed November 10, 1910.
    Rehearing denied November 25, 1910.
    Statement by the Court. In assumpsit for services plaintiff had a verdict for $900, remitted $300, had judgment for $600 and costs, and defendant appealed. Niels josephsen and Thora Josephsen, his wife, who lived in Denmark, made a mutual will by which defendant was given a legacy of 25,000 crowns, about $7,000. Niels Josephsen died in June, 1905. Defendant was not entitled to the legacy until the death of Thora Josephsen, and she had control of the estate during her life. The will was proved in the Probate Court of Copenhagen but that court refused to give the defendant a copy. He made various unsuccessful efforts to obtain a copy of it, and in December, 1905, he stated his case to plaintiff, who had some years before been a vice-consul of Denmark in Chicago. Through the advice and assistance of plaintiff defendant employed counsel in Copenhagen to institute in the Superior Court there a proceeding to compel the Probate Court to give him a copy of the will. In August, 1906, the Superior Court granted the relief sought, but a few days before the order was entered Thora Josephsen died. The recovery was for the services of plaintiff in assisting defendant to obtain a copy of the will.
    Howard M. Harpel, for appellant.

      Jamrs A. Peterson, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

We do not think the judgment should be reversed because of the refusal of the trial court to permit defendant to read the depositions of witnesses taken in Copenhagen. The notice that defendant would apply for a dedimus was only served on a clerk in. the office of plaintiff’s attorney. The dedimus was addressed to the Judge of a certain court in Copenhagen or any Judge, Justice, etc., of said city. The depositions appear to have been taken in a proceeding in the Royal Superior Court of Denmark, at Copenhagen, and appear in the transcript of the record of that court certified by the clerk under the seal of the court. It appears from the transcript that Superior Court lawyer Tegner appeared for the defendant and was present when the depositions were taken. If the plaintiff had moved to suppress the depositions before trial the motion must have been allowed. If the objection to the depositions, which was first made at the trial, came too late and for that reason should have been overruled, the judgment should not for that reason be reversed, because the testimony was not so material or important that we can say that its exclusion was harmful to the defendant.

We find no error in the refusal of the court to give certain instructions asked by the defendant.

The remaining contention of the appellant is that the damages are excessive. Plaintiff testified that the customary charge for such services as he rendered was one “eighth of the amount collected on.” But the plaintiff was not employed to collect and in fact did not collect the legacy, and his testimony as to the customary charge for collecting legacies forms no proper basis for the assessment of damages in this case. The plaintiff gave a detailed statement of his services; testified that he had twenty-seven interviews with defendant and wrote for him twenty-seven letters, some of them of great length. But there is no evidence in the record tending to show the value of or the customary-charge for such services, nor any evidence which, in our opinion, is sufficient to sustain the judgment for $600.

The judgment will therefore he reversed and the cause remanded.

Reversed and remanded.


text:
    Felomina Vetrovec, Appellee, v. Joseph Meyers et al., Appellants.
    Gen. No. 15,389.
    1. Dram-shops—when instruction in action for injury to means of support not erroneous. It is not error in such an action to give to the jury an instruction which sets out in full section 9 of the Dram-shop Act upon which the action was predicated.
    2. Dram-shops—what not defense to action under section 9. The fact that one of the defendants who sold the liquor in doing so acted as the agent for his wife, the other defendant, who was the proprietor of the saloon in question, is not a defense which will absolve such defendant from liability.
    Action under section 9 of Dram-shop Act. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 10, 1910.
    Rehearing denied November 25, 1910.
    John J. Swenie, for appellants.
    Carl A. Ross, for appellee; Edwin White Moore, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action brought by plaintiff against Joseph and Sarah Meyers, defendants, under section 9 of the Dram-shop Act, to recover for injuries to her person and means of support in consequence of the intoxication of her husband, James Vetrovec, the jury found both defendants guilty and assessed plaintiff’s damages at $1,000. The defendants made separate motions for a new trial, which were denied, a judgment entered on the verdict, and the defendants appealed. Plaintiff alleged that the defendant Sarah Meyers was the keeper of a dram-shop wherein she and the other defendant sold to plaintiff’s husband intoxicating liquors, thereby causing his intoxication in whole or in part, and that in consequence of such intoxication she was injured in her person and means of support.

We find no error in the rulings of the court on questions of evidence.

The first instruction given at the request of the plaintiff sets out section 9 of the Dram-shop Act in full with the addition only of the following introductory words: “The court instructs the jury that the section of the Dram-shop Act of the State of Illinois, under and by virtue of which plaintiff brings this suit, is in words and figures as follows.” It is contended that for the giving of said instruction the judgment should be reversed. In Reisch v. The People, 229 Ill. 574, an action of debt on a retail liquor dealer’s bond, it was held not error to give this instruction.

The defendant, Sarah Meyers, was the owner of the saloon in which intoxicating liquors were sold to plaintiff’s husband, and the defendant, Joseph Meyers, the husband of Sarah, was employed by her to assist her in carrying on such saloon. It is urged in behalf of appellant, Joseph Meyers, that as in selling intoxicating liquors to James Vetrovec he was acting as agent for his wife, a known principal, he is not under the statute liable either severally, or jointly with her, to the plaintiff. Barnaby et al. v. Wood, 50 Ind. 405, was an action brought under a statute similar to the statute of this state against Barnaby and Newell. The complaint alleged that Barnaby as proprietor of a saloon and Newell as salesman in the saloon, sold plaintiff’s husband intoxicating liquors, etc., and it was held that the complaint made a case, within the statute, against Newell. In the opinion it was said, p. 407: “The section gives the action against any person or persons who shall, by selling, etc., have caused the intoxication, in whole or in part, of such person. We think the complaint makes a case, within the statute, against Newell. It is no excuse that he was a clerk or salesman only in the saloon. The statute is general.”

Worley v. Spurgeon et al., 38 Iowa, 465, was an action under a similar statute. Defendant L. D. Spurgeon was the owner of the saloon in which the sales were made. Defendant S. Spurgeon, his son, made some of the sales, and it was contended that the evidence did not support the verdict against the son. The evidence was held sufficient to sustain the verdict against each of the defendants. In the opinion it was said: “The statute says that any person who shall by the sale of intoxicating liquors cause the intoxication of any other person, etc. This language embraces equally any person who actually makes the sale, whether he is the owner, or the son, clerk or servant of such owner, all and each are alike and personally liable for the injurious consequences to the wife resulting from the intoxication caused by such sale.” In Johnson v. Barber, 5 Gil. 425, Barber recovered in an action of tort against John Johnson and Peter Johnson for firing a prairie, etc. The court refused to give for the defendants this instruction: “The plaintiff cannot recover against both of the defendants, for if John Johnson acted under the instructions and directions of Peter Johnson, then he, Peter, is alone liable. If John Johnson acted contrary to the direction of Peter Johnson, then he, Peter, is not liable, and they must acquit him. ’ ’ It was held that the refusal was proper: ‘ ‘ That if the act complained of was illegal, the fact that one of the defendants committed it under the direction of the other, did not shield him from responsibility, but both were equally liable to the party injured, as well the one who did the act as the one who procured it to be done.”

The acts of Joseph Meyers in selling intoxicating liquors to James Vetrovec were positive, affirmative acts, which were actionable in case certain consequences stated in the statute resulted therefrom. We do not think that the fact that he made such sale as agent or salesman for his wife can shield him from liability to the plaintiff under the statute for the consequences resulting from such sale.

In our opinion the evidence is sufficient to support the verdict against both defendants. The record is, we think, free from error, and the judgment is affirmed.

Affirmed.


text:
    Louis Ruedel, Appellant, v. Chicago Ornamental Iron Company, Appellee.
    Gen. No. 15,398.
    Master and servant—when former not obligated to warn. If an injury results to a servant from a danger known to him and which was obvious, the master is under no obligation to, give a warning with regard to such danger, and the servant injured in consequence cannot recover.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion Filed November 10, 1910.
    Mark J. Sullivan, for appellant.
    Frank M. Cox and R. J. Fellingham, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendant on a directed verdict at the close of plaintiff’s case, in an action on the case for personal injuries. The ground of reversal urged is, that on the evidence the court erred in directing a verdict for the defendant.

Plaintiff and one Leach were in the service of the defendant, a contractor for certain iron work in a large building then under construction, and set an iron window sill in an opening in a concrete wall thirty feet above the floor of the building. In doing such work they stood on a scaffold eighteen inches wide placed against the north side of the wall four feet below the bottom of the opening for the window. Directly opposite, on the south side of the wall, was an elevator shaft, in which the elevator cage or platform passed up and down every few minutes. The wall was eighteen or twenty inches thick and the sill about two feet wide. There were flanges an inch wide on the sides of the sill and it was fastened to the wall by iron screw bolts, which went through horizontally from one flange to the other. The heads of the bolts were on the south side of the wall and in them were nicks to receive the end of a screw driver, by means of which the bolts were driven into the opposite flange. Plaintiff and Leach were experienced structural iron workers. They began the work of setting the window sill the day before the day that plaintiff was injured, and worked three hours. They resumed work at eight o’clock the next morning and about nine o’clock had the sill bolted to the wall. As it was set the space between the elevator cage and the sill, as the cage passed the sill, was four or five inches. Iron bars projected beyond the edge of the cage three or four inches, so that the clearance between such bars and the window sill was only about one inch. About nine o’clock Clark, the defendant’s superintendent or foreman, came on the scaffold and told plaintiff and Leach that the sill was too close to the elevator, and they must move it. Plaintiff’s testimony as to what occurred while Clark was on the scaffold was in part as follows: Asked how close the sill was to the elevator when it passed by, he answered; '‘I don’t know exactly, I can’t tell yon. Q. About an inch? A. May be a half an inch or an inch; I don’t know. Q. Did the elevator go up and down while Mr. Clark was there at that time? A. Yes, sir. Q. You and Mr. Clark talked about how close the sill was to the elevator when it passed by? A. He talked about it. Q. And so did you? A. Yes, sir. Q. And when the elevator passed by there you and Mr. Clark noticed how close that elevator came to that window sill? A. I think so. * * * He looked at it, he looked it over. Q. And so did you? A. Yes.” Plaintiff testified that when Clark gave the order to move the sill: “I said it is a dangerous place here to work. Well, he said, never mind; do the work and I watched the elevator; something like that; I don’t know any more; so I had to watch on one side, say it from fifth floor down, and watch the other side, both sides, we have to watch them.” On cross-examination he was asked: “Did you not tell Clark that the work was dangerous because the elevator was going by there every few minutes ? A. Buns up and down. Q. You told him that ? A. Yes, sir. Q. That was what made it dangerous? A. Yes, sir.” Clark then went away and from that time until the accident no one other than plaintiff and Leach were present or had anything to do with the work or with watching for the elevator. They proceeded to take out the screw bolts by which the sill was fastened to the wall, plaintiff using a screw driver eight inches long. In doing so they stood on the scaffold on the north side of the wall and reached over the top of the wall, as they had done in putting in the bolts. The holes for the bolts were within less than an inch of'the top of the sill and between the man who was putting in or taking out a bolt, and the elevator as it passed up and down was only" the width of the sill, about twenty-four inches, and the top of the wall was about on a level with his breast. As the bolts were horizontal and their heads but four or five inches from the edge of the elevator cage as it passed by the sill, it is clear that to unscrew a bolt with a screw driver eight inches long, the hand must necessarily be in a position where, if it was not removed as the elevator passed up or down, it must come in contact with the cage proper, excluding the projecting bars. When plaintiff was taking out the last bolt the cage came down, struck his hand and inflicted the injuries complained of.

There is but one count in the declaration. It states the facts as to plaintiff’s employment and the work in which he was engaged; alleges that the bars attached to the elevator cage passed within a quarter of an inch of the edge of the window sill; that it was for that reason dangerous to work on said sill; that plaintiff, did not know the danger nor know that said bars were attached to the elevator cage; that defendant knew, or by the use of reasonable care would have known, of the danger, but negligently, etc., compelled plaintiff to stand on said scaffold and remove said sill, and failed to warn him of the approach or movement of the elevator, by reason whereof, while plaintiff was, with due care for his safety, unscrewing certain bolts in said sill close to the elevator shaft with a screw driver, the elevator cage came down, without notice or warning to the plaintiff, and the bars or legs thereof struck plaintiff’s hand and injured it, etc.

There was no change in plaintiff’s surroundings after the order to move the sill was given. He and Leach had put in the bolts with screw drivers and took them out in the same manner. The only danger in such work was that if the man engaged in putting in or taking out a bolt, the head of which was on the south side of the wall, failed to remove his hand as an elevator passed up or down, the elevator would strike his hand and injure it. This danger was known to plaintiff and the defendant was not negligent in failing to warn him of such obvious and known danger. If plaintiff had not noticed the bars extending from the elevator, he knew that the clearance between the edge of the cage and the sill, excluding the bars, was only four or five inches. He was unscrewing a horizontal bolt with a screw driver eight inches long and in doing so his hand must necessarily be so far from the head of the bolt as to bring it within the space occupied by the cage, excluding the bars.

There is in the declaration no allegation that the defendant promised plaintiff to watch the elevator or give him warning of its approach. Nor could the jury from the evidence properly find that Clark promised plaintiff and Leach that he, or any one for the defendant, would watch for the elevator and give them warning of its approach. Plaintiff and Leach worked an hour according to plaintiff’s testimony, or half an hour according to the testimony of Leach, after the order to move the sill was given, the elevator passing up and down every few minutes, without receiving any warning from any third person of the approach of the elevator. Plaintiff’s testimony that, “I had to watch one side, say it from the fifth floor down and watch the-other side, both sides we have to watch them,” means that he and Leach had to watch for the approach of the elevator in both directions.

Our conclusion, on a careful examination of the evidence is, that taking the testimony most favorable to the plaintiff as true and drawing, therefrom the inferences most favorable to the plaintiff that can properly be drawn therefrom, the evidence fails to show any right of recovery in the plaintiff, and the court therefore properly directed a verdict for the defendant.

The judgment will be affirmed.

Affirmed.


text:
    D. White, Appellee, v. Henry A. Gardner, Appellant.
    Gen. No. 15,405.
    1. Judgments—-when erroneous in action ex contractu. In actions ex contractu against two or more the plaintiff must recover against all of the defendants or none except in cases where a defendant interposes a defense personal to himself such as infancy, coverture, lunacy, bankruptcy and the like.
    2. Practice—effect of motion in. arrest. If a defendant moves in arrest of judgment without assigning any specific reasons and excepts to the denial of his motion, he is at liberty to urge any sufficient reason in the Appellate Court.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed November 10, 1910.
    Statement by the Court. Plaintiff brought an action ex contractu against appellant Gardner and Herman Lucht before a justice of the peace. Lucht was not served with summons and plaintiff had judgment against Gardner, who appealed to the Circuit Court. In that court an appeal summons to Lucht was issued and served on Lucht. The jury returned a verdict against defendant Gardner for $183. Defendant moved for a new trial, but in his written motion did not state as a ground for new trial that the verdict was against him alone. The court denied the motion. Gardner then moved in arrest of judgment, •the court denied his motion, and he excepted. The court then entered judgment against Gardner on the verdict and he excepted. There was no disposition of the cause as against defendant Lucht.
    Gardner, Stern & Anderson, for appellant.
    Thompson & Thompson, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

It is well settled in this state that in actions ex con tractu against two or more, the plaintiff must recover against all of the defendants or none, except in certain cases where a defendant interposes a defense personal to himself, such as infancy, coverture, lunacy, bankruptcy, and the like. No such defense was interposed Lucht in this case. Here the error alleged in the 'finding of the jury appeared on the face of the record. The general rule is that where errors are patent on the record they are open to revision in a court of review without any motion in arrest of judgment or exception taken in the trial court. Bennett v. Butterworth, 13. How. U. S. 669. But in this case Gardner moved in arrest and excepted to the denial of his motion. When a defendant moves in arrest of judgment without assigning any specific reasons, and excepts to the denial of his motion, he is at liberty to urge any sufficient reason in the Appellate Court. W. C. St. R. R. Co. v. Coit, 50 Ill. App. 640.

In Farrelly v. Hogshead, 97 id. 244, it was held that the objection here made to the judgment could not be raised for the first time in the Appellate Court. If the correctness of the rule stated in that case be conceded, the judgment in this case must still be reversed, for the question whether the plaintiff was entitled to a judgment on the verdict against Gardner alone was presented to the trial court by his motion in arrest and saved for review here, by that motion and his exception to its denial.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    Martin Zyla, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 15,353.
    1. Ordinary care-—duty of driver of wagon. It is the fundamental duty of the driver of a wagon to look ahead and keep a sharp lookout to avoid colliding with vehicles and persons which may obstruct his path.
    2. Negligence—duty of motorman. It is the duty of a person in charge of an electrically propelled car to have such car within reasonable control upon approaching cross thoroughfares so that the same may be readily brought to a standstill and collisions avoided.
    3. Instructions—what cannot he considered upon motion for peremptory. Upon a motion for a peremptory instruction asked at the close of all the evidence it is not the province of the court to weigh the evidence or to solve the conflict appearing therein.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed November 10, 1910.
    B. J. Wellman, for plaintiff in error; George McMahon, of counsel.
    C. Le Roy Brown and Paul W. Wemple, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

The learned trial judge on the motion of the defendant, at the conclusion of the hearing of all the proofs of both contestants, directed a verdict of not guilty and thereon entered a judgment of nil capiat and for costs. This writ of error seeks a reversal of that judgment on the contention that the case made was one of disputed fact which should have been left to the jury for solution.

The gravamen of the charge of negligence against defendant is that the car which collided with the wagon which plaintiff was driving was so carelessly and negligently operated and managed that the collision occurred injuring plaintiff, who was in the exercise of due and ordinary care.

The evidence tended to show that plaintiff was driving his team, drawing an empty coal wagon, in which he was riding, north near the intersection of a cross street; that when plaintiff and his wagon were within about twenty-five feet from the cross street a car of defendant going in the same general direction struck the wagon in the rear, throwing the plaintiff off the wagon into the street and injuring him.

There is some conflict in the evidence as to whether plaintiff was driving on the car track or only partially on the track, or whether he was in the act of turning out of the car track' at the time of the impact and as to whether or not the bell or gong on the car was being-sounded. Plaintiff swears he was not turning- out but was driving straight ahead. One of plaintiff’s witnesses testified that the team was going in the same direction as the car and that it appeared to be turning-out to the northwest and that the car struck the end of the wagon. Two witnesses testified for defendant that the wagon was being driven north and suddenly turned out to the east just before it was struck. It is not proper for us at this time to decide what this evidence tends to prove; suffice it to say, that the conflict in the evidence was not for the court to weigh and decide; that duty devolved upon the jury under well settled legal principles in this jurisdiction. We cannot say that plaintiff was wanting in- due care in not looking behind him to ascertain the approach of the car. His fundamental duty was to look ahead and keep a sharp lookout to avoid colliding with persons and vehicles which might obstruct his path, and such duty was equally obligatory on the motorman in charge of the colliding car. It is also well settled as a matter of law that it is the duty of a person in charge of an electrically propelled car to have such car within reasonable control on approaching cross thoroughfares, so that the same may be readily brought to a standstill and collisions avoided. This is not a case akin to Chicago City Ry. Co. v. Abler, 107 Ill. App. 397, for there the vehicle was suddenly and without warning driven on the track directly in the path of the moving car, and the court held such conduct so palpably negligent as to inhibit a recovery. In the situation of defendant’s car and plaintiff’s wagon, both proceeding in the same direction, a part of the wagon at least being directly in the path of the car, the duty imposed upon the motorman was to use due care to avoid a collision. In the Abler case supra the defendant was absolved from liability because there was no reason to suspect that the wagon would be suddenly driven in the path of the car so as to make it impossible to avoid a collision by the exercise of due cafe. Neither do we regard N. C. St. Ry. Co. v. Peuser, 190 Ill. 67, as at all similar to the case at bar. The collision in the Peuser case occurred on a dark night in the outskirts of the city. All the parties in the wagon which was struck by the car were drunk, shouting and singing and paying no attention whatever to their surroundings. The motorman continuously rang the bell and when the impact came the wagon was suddenly swerved from the tracks by the driver with intent to reach, the opinion opines, a saloon which had attracted the vision of the revellers. The motorman used all diligence in an effort to avoid the collision, which was imputable to the negligent conduct of the driver of the wagon.

In the condition of the plaintiff’s evidence we think it was error for the court to instruct a verdict in defendant’s favor. The fact that the instruction was given at the close of all the evidence does not change the situation. The court could not weigh the evidence or solve the conflict appearing in it. The law governing is stated in Balsewicz v. C. B. & Q. R. R. Co., 240 Ill. 238, thus: “In passing upon a motion for a directed verdict the court does not weigh evidence. It looks only to the evidence supporting the claim of the party against whom the motion is directed, and that in the light most favorable to him. Contradictory evidence, however strong, cannot be considered. If the condition of the evidence at the close of the plaintiff’s case does not justify an instruction for a verdict in favor of the defendant, no evidence which the defendant may introduce will justify such instruction, except uncontradicted evidence of an affirmative defense. Evidence contradictory of the plaintiff’s will not do it.” Woodman v. Ill. Trust & Savings Bank, 211 ibid. 578; Libby v. Cook, 222 ibid. 206.

In this case it cannot be said that the failure of plaintiff to look behind constituted, in itself, such negligent conduct on his part as to bar a recovery. The following language of Mr. Justice Brown in L. S. & M. S. Ry. Co. v. Enright, 129 Ill. App. 223, is equally applicable here: “On the whole we cannot say, to quote the language of the Supreme Court in Lake Shore & Michigan Southern Ry. Co. v. Johnsen, 135 Ill. 641, ‘That negligence has been established as a matter of law because the conduct of the injured party has been so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent.’ To quote further from the same opinion: ‘Unless the negligence of the plaintiff is proven by such conclusive evidence that there can be no difference of opinion as to its existence upon the mere statement of the facts, the jury must pass upon it.’ ” L. S. & M. S. Ry. Co. v. Enright, 227 Ill. 403.

We express no opinion as to the weight, force or effect of the conflict in the evidence found in the record, but for the error in peremptorily instructing the verdict found in the record the judgment of the Superior Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


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    John Flynn, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,397.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Verdicts—when not excessive. A verdict of $5,000 rendered in an action on the case for personal injuries is not excessive where it appears that an injury resulted to the skull which necessitated the surgical removal of a portion thereof and the installing of an artificial protection to cover a part of the brain.
    3. Negligence—when ordinance incompetent. An ordinance not pleaded is not competent to establish a substantive charge of negligence.
    4. Evidence—when latitude of cross-examination will not reverse. The trial court is vested with a wide discretion with respect to the latitude to be allowed to the cross-examiner and unless an abuse of the exercise of that discretion is shown no reversal will be ordered.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 10, 1910.
    Rehearing denied November 25, 1910.
    Statement by the Court. This is an action on the case for personal injuries, the trial of which before the Superior Court and a jury resulted in a verdict of guilty and an assessment of damages at the sum of $5,000. Upon this verdict a judgment was entered after the overruling of defendant’s motion for a new trial. This appeal is prosecuted with the purpose in view of having this court reverse the judgment. Defendant urges as error and argues that the plaintiff was guilty of contributory negligence and that the negligence is not proven; that the verdict and judgment are contrary to the probative force of the proof, and that the court" erred in its rulings on the evidence and in its instructions to the jury upon the law of the case, and that the damages are excessive. The cause went to the jury on two counts of the declaration and a plea of not guilty. The negligence charged in the first count is that defendant so carelessly and negligently drove and managed the colliding car, that by and through such negligence, etc., the car ran and struck with great force and violence the wagon in which plaintiff was riding; and in the second count charges that defendant negligently drove its car to and upon the highway without ringing the bell or giving warning of any kind, and that by reason of such negligence the car ran and struck with great force and violence the said wagon, etc.; and that in consequence of such negligent acts of defendant plaintiff was thrown from the wagon and injured.
    It is established by the evidence that the accident occurred at about six o’clock in the evening of February 11, 1906, which was more than an hour after sunset; that the colliding car was being propelled east upon Sixty-ninth street within a block west of Prairie avenue; that plaintiff was riding in an open buggy, drawn by a small horse, with two companions, one of whom, Cox, was handling the reins, and that the buggy with its occupants was proceeding in the car tracks going east and was overtaken and run into by the car without sufficient warning to give them an opportunity in the condition of the road on the south of the track and the near approach of another car coming from the east, for the buggy to be turned out of its path in time to permit of the colliding car to pass it and avoid the collision. Cox, who was driving, and the motorman in charge of the car, both died prior to the trial. George White (the third party in the buggy), and the plaintiff both testified that the buggy was being driven to the east in the car tracks, that the car was back of them, and at about the same time they saw a car proceeding west; that some one thereupon “hollered” from the sidewalk, “look out;” that the car struck the buggy with such violence that it was thrown “clear over the horse’s back.” The man who “hollered” “look out” was not produced as a witness. On the part of defendant, the conductor of the colliding car testified that the night was dark, that all the lights in the car were burning as also the headlight. His attention was first attracted by the application of the brakes; that he was at this time on the rear platform and looked east in the direction the car was travelling, and noticed a horse’s head facing west; that he got off the car immediately after the accident and found three men lying in the street and a horse and buggy, the buggy being tipped over. There is some evidence tending to prove that White, Cox and plaintiff had been drinking in several saloons and that they were somewhat the worse for their imbibing. Much evidence was given regarding the condition of the roadway south of the eastbound track. It also appears that there was no lantern or other kind of light upon the buggy.
    George W. Miller, for appellant.
    McGoorty & Pollock, for appellee; Alfred T. Johnsok, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

The controlling questions are largely of fact. The burden of solving the conflict in the evidence and of determining where the preponderance lies and of reconciling any apparent incongruity in the evidence was the province of the jury. There is sufficient evidence in the record to support the finding of the jury, and the trial judge having evidenced his concurrence in the verdict by overruling a motion for a new trial and entering judgment in accord with it, we are not permitted to set such judgment aside unless we can say from all the evidence that the verdict is contrary to its manifest weight. We are unable so to conclude after carefully reading and weighing the evidence in the record. It does seem remarkable that the force of the impact between the car and the buggy resulted in hurling the buggy over the horse so as to practically change the relation of the animal and the vehicle from the positions they occupied immediately before the collision: but in the light of the verdict of the jury we are unable to say that such result was impossible of occurrence. White and the plaintiff so affirm, and the only witness who gives any positive evidence in contradiction is Carp, the conductor, whose point of vantage from which to see the occurrence was not as good as that of the occupants of the buggy; at least we so think and it' is' evident the jury so concluded. Furthermore, the roadway south of the track on which the car was running was in such a bad condition as to make it impracticable if not dangerous to attempt to drive a vehiclé upon it. While there is no serious dispute as to the bad condition of this part of the street, there is some conflict in the evidence as to its being safe to drive upon. This dispute the jury solved in accord with the contention of plaintiff, and we think this fact had a material bearing upon them in their determination of the direction in which the buggy was being driven at the time of the collision. While it is true that plaintiff and Lis two companions were more or less under the influence of intoxicants, yet all the circumstances considered, it is hardly conceivable that the buggy was being-driven to the west in the face of the east-bound car; but more in consonance with reason and sane action, as sworn to by plaintiff and White, that Cox, the driver, desiring to get out of the way of the car following the buggy, was looking for an opportunity, after the west-bound car should have passed, to turn out to the north; for in the situation of the buggy to turn and attempt to cross ahead of the west-bound car, was fraught with apparently more danger than to continue in the path of the cast-bound car. Moreover, the driver had a right to assume that the motorman would do his duty and hold his car in such check that it would not strike the buggy in front of it. We do not, under the proofs in the record, find any justification for holding that Cox, who was driving, was guilty of negligence in not avoiding the collision aside from any question as to whether if he had been negligent, such negligence could, as matter of law, be attributable to plaintiff; consequently plaintiff not being chargeable with negligence, and the verdict being supported by the proofs, the judgment must be affirmed unless there are errors in the ruling of the court on the evidence or in its instructions to the jury, or the award of damages is excessive.

It is complained that the court erred in sustaining the objection of plaintiff’s counsel to the admission in evidence of an ordinance of the city of Chicago requiring vehicles to carry a light after six o’clock in the evening until the break of day in the morning. The objection was rightfully sustained. Defendant did not plead the ordinance and it was therefore not admissible against objection. I. C. R. R. Co. v. Ashline, 171 Ill. 313.

We find no harmful rulings upon the admission of evidence and no infringement or curtailing of the rights of defendant in cross-examination. There was no abuse of the necessarily wide discretion vested by law in the trial judge in determining the scope and limitation of cross-examination. C. R. I. & P. Ry. Co. v. Rathburn, 190 ibid. 572; Birmingham Fire Ins. Co. v. Pulver, 126 ibid. 329.

We see no impropriety in allowing the operating-surgeon to testify that if the flow of blood from the rupture of an artery in plaintiff’s head had not been arrested he would have died. It cannot be fairly said to have affected the assessment of damages, for the plaintiff did not die, but survived his injuries, and the suit is for compensation for such injuries. It was not error to admit any evidence which tended to establish the nature of such injuries, whether serious or not.

A careful examination of all the instructions given to the jury convinces us that the jury were sufficiently and accurately instructed as to every essential feature of the law of the case applicable to the fact in evidence to enable the jury to correctly apply the law to the facts in arriving at a verdict. No material right of defendant was affected to its detriment in the refusal of instructions tendered or in the modification of one given.

The damages are not excessive in our judgment. The jury we think acted with great moderation in their assessment. Plaintiff’s injuries are severe and permanent in character as well as painful. We cannot, notwithstanding learned medical expert testimony to the contrary, belive that an injury to the skull necessitating the surgical removal of a portion of it and the installing of an artificial protection to cover a part of the brain, is anything but an injury of the most serious character, rendering the life of the victim, as the evidence in this record substantiates, one of nervous fear and discomfort.

The cause -has been fairly tried and the legal rights of the defendant amply protected. The judgment of the Superior Court does justice between the parties and is therefore affirmed.

Affirmed.


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    Builders Material Company v. J. W. Johnson et al. On Appeal of John E. Burns Lumber Company, Appellant, v. Theodore Gottmann et al., Appellees.
    Gen. No. 15,402.

      Liens—mechanic’s lien act of 1903 construed. That portion of the above act which provides that the lien of the contractor or subcontractor shall not be defeated “because of lack of proof that the material after the delivery thereof actually entered into the construction” of the building, is construed as meaning that the materialman, in the first instance, is relieved from the burden of proving that such material actually entered into the construction of the building; proof of delivery to the owner or his agent or a delivery at the place where the building is being constructed being made prima facie proof. If such prima facie proof is rebutted and it is affirmatively shown that such material was not actually used in the construction of the building, no lien can be had.
    Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 10, 1910.
    William S. Corbin, for appellant.
    Fyffe & Adcock, for appellee; Edmund D. Adcock, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is a proceeding for a mechanic’s lien, in which appellant filed an intervening petition claiming a lien for lumber sold to J. W. Johnson & Company, a subcontractor, under one Hodges, the general contractor, who had a contract with Cottman & Kretchner to build and construct for them what is called a “concrete” building. The lumber involved in this appeal while delivered at the building of the owner was not incorporated into it so as to become an integral part of the structure when completed. It is not disputed that the lumber was used for making forms or moulds into which the concrete was poured in its plastic state in which it remained until hardened, after which the lumber was removed from the concrete and ultimately away from the premises by Johnson & Company. Johnson & Company’s contract called for a stated sum for all of the concreting and work to be performed by it and was made with the general contractor.

Under the Mechanic’s Lien Act of 1903- subcontractors and those claiming under them are accorded the same right to a lien and its enforcement as contractors. Section 7 of the Act of 1903 in some respects materially differs from the Acts in force preceding its enactment. By the Act of 1895 it was made incumbent upon claimants to make prima facie proof, as a sine qua non to establishing a lien, that material furnished for which a hen might be sought was in some way incorporated into the structure against which a lien is claimed. That part of the Act affecting this question is in these words: “Nor shall any such lien for material be defeated because of lack of proof that the material, after the delivery thereof, actually entered into the construction of such building or improvement, although it be shown that such material was not actually used in the construction of such building or improvement ; provided it is shown that such material was delivered either to such owner or his agent, to be used in such building or improvement, or at the place where such building or improvement was being constructed for the purpose of being used in construction. ’ ’

The proper construction and meaning of this statute is, we think, that the material man is relieved in the first instance from the burden of proving, that the material the subject-matter of the lien, actually entered into the construction of the building, and that proof of delivery to the owner or his agent or of delivery at the place where such building was being constructed would constitute proof prima facie of that fact. The evident intention of the Act of 1903 being to relieve the lien claimant from the hardship of being compelled in the first instance to make proof that such material was in fact ingrafted into the building, but did not go to the extent precluding the owner from rebutting by competent evidence the fact, if such be the fact, that the material did not enter into the construction of the building. It will be noticed that, by the terms of section 7 supra, when the material is delivered to the owner or his agent it must be for the ostensible purpose of being “used in such building or improvement,” and if delivered at the place of construction then it must be shown that it was “for the purpose of being used in such construction.” The language of the Act negatives, in our judgment, any presumption that it was intended thereby to give a lien upon delivery of the material at the place of construction regardless of the fact of such material being used in the actual construction of the building or improvement at such place. Delivery is only one step; it is not conclusive of the right to a lien. The use of the material in the construction of the building, while not necessary to be proved in the first instance, yet no lien can be allowed when the proof demonstrates that such material was not used in the construction of the building sought to be subjected to alien. If it may be said that the statute is ambiguous, as to what is meant by the words “used in construction,” then as the mechanic’s lien Act is contrary to the course of the common law the ambiguity must be resolved against the party seeking to enforce á lien under it. If an interpretation should be indulged of the words “used in construction” so broad as to mean in the instant case that the lumber being used for moulds in which the concrete was poured for hardening (the concrete only remaining and forming a part of the structure, the lumber being removed and retained by Johnson & Company) was actually “used in construction, ’ ’ then it would seem by parity of reasoning that any other implement or tool of whatever nature used in the erection of such building or any of its parts would be within the statute, for the purchase price of which a lien could be maintained. The lumber in question never was the property of the owner of the building. It was the property of Johnson & Company from the time appellant sold the same to it. It was not used in the actual construction of appellee’s building within the meaning of the lien statute supra, but was an instrumentality used in shaping the concrete of which the interior walls of the building were constructed, and no more entered into the actual construction of the building than did derricks, tackle, engines, or any other mechanical appliance which may have been used in its construction and after completion of the building removed as the property of the contractor owning and operating them, or the subcontractor owning and operating them, as the case might be. The section of the statute in question has not, as yet, been before our Supreme Court for interpretation. However, decisions of sister States, where a similar provision is found as the one under discussion, are, we think, in harmony with our interpretation. Oppenheimer v. Morrell, 12 Atl. 307; Basshor v. B. & O. Ry. Co., 3 ibid. 285; Standard Oil Co. v. Lane, 75 Wis. 636.

On fact and principle Ames v. Dyer, 41 Me. 397, is much like the case at bar. The Maine statute provides that “Any ship carpenter, caulker, blacksmith, joiner or other person who shall perform labor or furnish materials for or on account of any vessel, building or standing on the stocks or under repair after having been launched, shall have a lien for his labor or mate^ rials.” Lane invoked the statute for making certain moulds from which the ship “Oliver Jordan” was built, and the court says: “The molds for a vessel cannot be regarded as part of the materials with which it is constructed. They are used in its building as patterns in a foundry or the last for a shoe. They may be indispensable for the construction of a vessel, as are the tools of the carpenter or joiner, or the ground upon which the keel is laid, but they do not enter into its structure.' The materials of which the molds are made do not belong to the vessel, nor does the title to them pass to its purchaser. * ‘The whole theory of a lien for labor and materials’ says Sanford. J., in Phillips v. Wright, 5 Sandf. 342, ‘rests upon the basis that such labor and materials have entered into and contributed to the production or equipment of the thing upon which the lien is impressed.’ Subsequently he said, ‘Can it be said that materials are furnished for and toward building a ship when no part of them enters into or becomes a part of the ship?’ ”

In Sweet v. James, 2 R. I. 270, it was regarded as necessary to create a lien that the materials furnished should be incorporated in and become a part of the building upon which it is claimed to exist. “The model of a ship, the moulds by which its timbers are to be hewed, may be necessary and even indispensable, but they do not enter into any structure so as to be a part of its materials, and cannot be regarded as within the provision of the statute by which a lien is given in certain cases to the laborer and the material man.”

The reasoning of the foregoing quotation is as applicable to the moulds for the concrete of the building here involved as the moulds for the hewing of timbers for the ship in that case.

The decree of the Superior Court being without error is affirmed.

Affirmed.


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    George Cairns, Appellant, v. Marshall E. Sampsell, Receiver, etc., Appellee.
    Gen. No. 15,417.
    1. Negligence—when motorman guilty "pf. If a motorman on a street car through negligent inattention Ho the operation of the car fails to observe a young child standing near the track and apparently intending to cross, until it is too late to avoid injuring him, the street railway company is liable even though the front of the car passes the child before he collides therewith.
    2. Evidence—when impeachment erroneous. It is vital error to permit a witness to be impeached with respect to an immaterial matter.
    3. Subpoenas—what illegal use of. Process of subpoena was never intended to compel witnesses to appear and be examined touching their knowledge of matters in litigation either at the office of a party or of counsel.
    Tort. Appeal from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 10, 1910.
    Rehearing denied November 25, 1910.
    Alden, Latham & Young, for appellant.
    John A. Rose and Fbanic L. Kriete, for appellee; W. W. Gurley, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat and for costs rendered upon the verdict of a jury after the overruling of motions for" a new trial and in arrest of judgment.

The judgment must be reversed because, in our opinion, it is manifestly contrary to the weight of the evidence, and for error in admitting the evidence of the witness English, an investigator of defendant, as to conversations had with plaintiff’s witness Barton. As the case must again be tried we refrain from discussing the evidence, its weight or bearing, except as necessary to the determination of the grounds impelling us to reverse the judgment.

The action is tort for personal injuries suffered by plaintiff through the alleged negligent management and operation by defendant of one of its cars upon the streets of Chicago. The evidence develops without contradiction that at the time plaintiff was injured he was of the age of five and one-half years; that "with his brother Harry, about one year and a half his senior, he had been on a family errand to a meat market on Eighteenth street, and from that market walked east on the north side of Eighteenth street about a block and a half, and after passing Ruble street' a short distance started across Eighteenth street in a southeasterly direction to go to a candy store on the south side of Eighteenth street, there to invest a penny, which he held in his hand, in candy. A witness who was standing upon the front platform of the car testified that he saw plaintiff as the car was crossing Ruble street and that he was then about 75 feet away from the car between the curb and the north rail of the west-bound track; that he was walking “briskly” across the street in a southeasterly direction and that the car struck plaintiff as he reached the north rail of the east-bound track; that the speed of the car was not slackened until after plaintiff was struck, and that the car did not stop until its rear was about seventy-five feet from where plaintiff lay. Another witness, a passenger also, testified that he saw plaintiff when he was about twenty feet from the car and “hollered” to the motorman, who failed to make any effort to stop the car until after plaintiff was struck, and that the rear end of the car was fully seventy-five feet distant from where plaintiff lay after the accident. It likewise appears that the day was clear and that the accident happened between the hours of one and two in the afternoon, and also that the motorman had a clear view ahead of him, and that no wagons were in the vicinity of the car to either obstruct his view or impede his progress. The motorman in charge of the car admitted that he did not see plaintiff until after the accident. He testified: “I don’t know where the little boy came from” and “I saw nothing to make any effort to stop for until I heard something hit the gate and that is the time I stopped.” Also, “I did not see the boy at all before he was run over. * I do not know what part of the car struck the boy. * I did not see the car come in contact with the boy at all.” He also testified that the car went about forty feet to the middle of the block after striking plaintiff before stopping. We think it clear negligence for the motorman not to have seen plaintiff in time to avoid running him down. It is indisputable that plaintiff was in the street ahead of the car, walking toward the car track, and it follows that the motorman should have been on the lookout for children and others in the street in the path pf the car in order to escape the charge of negligent operation. It was not necessary for the motorman to watch the children on the sidewalk on the south side of the street, as he testified he did, but it was his duty to look ahead in the roadway for all obstacles including children. With a clear path ahead it was negligence for the motorman not to see the plaintiff. We think in view of all the testimony and of these plain omissions of duty on the part of the motorman, it is idle to contend, or pretend, that plaintiff ran into the side of the car. The little fellow was first struck by the side of the fender of the car, through the negligence of the motorman in not seeing him, as he might and could have done in the exercise of ordinary care, in time to have arrested the onward movement of the car sufficiently to have stopped it before striking plaintiff. If the motorman had even heeded the “hollering” of the passenger the accident might have been avoided, and if the motorman had seen plaintiff when he was seventy-five feet in front of the car it is obvious the accident could have been avoided. What the passengers saw it was the duty of the motorman to see.

The case of Perryman v. Chicago City Ry. Co., 242 Ill. 269, is on fact and law and the immaturity of the plaintiff similar to the case at bar, and is, we think, of controlling importance. It was there held, quoting from the syllabi that “If the motorman on a street car, through negligent inattention to the operation of the car, fails to observe a young child standing near the track and apparently intending to cross until too late to avoid injuring him, the street railway company is liable, even though the front of the car passes the child before he collides with the car.” The motorman in not seeing plaintiff was guilty of negligently operating the car and such negligence was in this case the proximate cause of the accident and resulting injuries to plaintiff.

The attempt to impeach Barton, a witness for plaintiff, on a purely immaterial and irrelevant matter, was error prejudicial to plaintiff’s case, as it was calculated’ to mislead the jury. Barton admitted that he was hostile to defendant and made no attempt to disguise that fact. Defendant could use that fact in attacking Barton’s reliability as a witness and impress it upon the jury both in argument and by instruction. As to what took place in regard to his making a promise to go to the office of defendant or of his being subpoenaed to go there was immaterial and had no tendency to prove any fact in issue or to affect his credibility or character. In the first place, if he promised to attend at defendant’s office, he was at liberty to break such promise without being responsible to any one but his own conscience for so doing; and in the second place, if defendant served a subpoena upon him returnable at its office, it was a nullity. Process of subpoena was never intended to compel witnesses to appear and be examined touching their knowledge of matters in litigation either at the office of a party or of counsel. If such process was used, it was an abuse of it, for which the guilty party might be proceeded against as for a contempt of court. An attempt to inject such alien matter into the trial was vital error.

The instructions complained about are not subject to the criticisms indulged concerning them, and the court did not commit any error in its rulings thereon. Neither was any sufficient reason shown for the granting of a new trial on the claim of newly discovered evidence.

By reason of the errors indicated in this opinion the judgment of the Superior Court is reversed and the cause remanded to that court for a new trial.

Reversed and remanded.


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    C. Lessig, Appellee, v. The American Pneumatic Carpet Cleaning Company, Appellant.
    Gen. No. 15,434.

      Assumpsit—when lies. Assumpsit lies for the negligent performance of a contract to clean tapestries.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed on remittitur.
    Opinion filed November 10, 1910.
    Jambs Jay Sheridan and Grover C. Neimeyer, for appellant.
    Charles B. Stafford, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Defendant is, as its name implies, engaged in cleaning carpets and also, as the evidence develops, tapestries and kindred fabrics. Plaintiff entrusted to' defendant a valuable piece of tapestry known in the trade and to connoisseurs of such articles as a “Beauvais” tapestry. It is claimed that the tapestry was returned in a ruined condition and valueless. To recover the value of this “Beauvais” tapestry was the object sought by the institution of this suit. A trial before the Circuit Court with a jury resulted in a verdict for $900, and the plaintiff having remitted $300 a judgment was entered by the court for the remaining $600 and defendant appeals.

It is contended that an action of assumpsit will not lie. Whatever may be claimed as to the amended count being in case, we think a recovery might be sustained in assumpsit under that count. Notwithstanding case would be an appropriate action, one good count in a declaration is sufficient to sustain a verdict and judgment thereon. When defendant undertook the task of cleaning the tapestry the law implied that it' would do so in-a workmanlike manner. For a breach of such implied contract assumpsit is an appropriate action. A close examination of the testimony convinces our minds that the jury might not only find that the “Beauvais” tapestry was the property of plaintiff, but that defendant returned it to plaintiff in a ruined condition and was therefore liable to respond to her for its value.

Waiving the criticisms on the court’s rulings on the evidence and its instructions to the jury, which we do not account for reversible error, we come to the question of the measure of plaintiff’s damages, which is the value of the “Beauvais” tapestry at the time it was delivered to defendant to clean. We do not regard plaintiff’s testimony as to value as at all reliable. She had no practical experience or expert knowledge. At most she was but an amateur. Mr. Bell, her father, expressed too many and divergent opinions as to value to entitle'his estimate to much weight. His first estimate of $500 is entitled to consideration from the fact that it sustains the testimony of Mr. Henry. Henry’s testimony is entitled to great weight. In the first place, he was entirely disinterested, bearing no relation to either of the parties, nor was he interested in the outcome of the controversy. Besides he had been in the business twenty years and was therefore most competent to judge of values. He testified that the tapestry, the subject of contention, was a French tapestry called a “Beauvais” and was made at the government factory in Paris, France; that it was two or three hundred years old, antique with age and in a fragile condition; that he had bought and dealt in similar tapestries at first hand, and valued the tanestry of plaintiff at $500. We think all the facts touching value considered, including Henry’s testimony, establish the value of the tapestry at $500. On the. trial defendant’s attorney insisting the tapestry was then in as good condition as it was when received for cleaning and was not worth to exceed $200, and plaintiff’s attorney proclaiming that it was worth nothing, the attorney of defendant offered to buy it for that sum. This offer was accepted and the $200 paid in open court. We think, therefore, crediting this $200 payment upon the value of the tapestry, the verdict and judgment should have been for $300 and no more.

The judgment of the Circuit Court will be affirmed on a remittitur of $300 within five days; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur of $300.


author: Mr. Presiding Justice

text:
    Minnie Hamilton, Appellee, v. Kankakee Electric Railway Company, Appellant.
    Gen. No. 5181.
    1. Negligence—what constitutes, in giving signal to start car. Held, under the evidence, that it might have been negligence for the conductor to give a signal to start an over-crowded car without first ascertaining whether any one was in the act of alighting, even though he thought the car had stood still sufficient time for any one to alight.
    2. Instructions:—when upon right of recovery proper. Held, that an instruction was proper which told the jury that “while the burden of proof is upon the plaintiff herein, still if the jury find that the evidence bearing upon plaintiff’s case preponderates in her favor although but slightly, it will be sufficient for the jury to find the issues in her favor.”
    3. Instructions—ignoring issues. Held, that an instruction as follows was bad because it ignored the question whether the conductor knew, or in the exercise of reasonable care ought to have known, that the plaintiff was in the act of alighting from the car.
    “The court instructs the jury that if they find from the evidence that the car upon which the plaintiff had been a passenger stopped at its usual place of stopping for a reasonable length of time to allow the plaintiff to alight, and if the jury find from the evidence that the same was a safe place for the plaintiff to have left the car, and if the jury find from the evidence that she did not alight while the car was standing, but did alight immediately after the ear had started and while it was in motion, and without the consent of the defendant, and if the jury further find from the evidence that said act of the plaintiff was the proximate cause of her injury, then the defendant is not liable for any damage she sustained by reason thereof.”
    4. Verdicts—when set aside on review. Held, in this case, that the evidence was insufficient and the verdict excessive, and for that reason a reversal is ordered.
    Action in case for personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion on rehearing filed November 18, 1910.
    Small & Brock, for appellant.
    Cooper & Hobbie, for appellee.
   Mr. Presiding Justice

Willis delivered the opinion of the court.o

Appellant operates an electric car line in the city of Kankakee. One of its tracks is laid along Greenwood avenue, which street runs north and south, and its nórth end is at the gate of Mound Grove Cemetery, where the track curves and runs west along Pair street to the Kankakee District Pair Grounds. Appellee was a passenger on a car of appellant going-north on this line on September 27, 1907, and while she was alighting- from the car she fell or was thrown by the motion of the car, and was injured. She brought this suit in the Circuit Court of Kankakee county to recover damages for the injuries thereby sustained. The declaration contained four counts. The first and second counts charged negligence in suddenly starting the car while appellee was alighting therefrom. The third count charged that appellant so carelessly and negligently operated its car that appellee was thrown to the ground with great force. The fourth count charged negligence in the employment of a conductor and a motorman who were incompetent and inexperienced, and that, by reason of their incompetency and inexperience in handling- said car, it was suddenly started while appellee was about to alight therefrom, throwing her to the ground and injuring her. Bach count alleged that appellee was in the exercise of due care for her own safety when injured. A plea of not guilty was interposed, and on a trial appellee obtained a verdict for $3,000. A motion for a new trial was denied, judgment was entered on the verdict, and the company prosecutes this appeal.

Appellee was riding in a closed car that hauled a trailer. There was a conductor on each car and, owing to the number of people going to the fair, which was then in progress, both cars were crowded. Appellee testified that she wished to get off at the cemetery, and that, when within about 200 feet of the cemetery gate, she pushed the button which gave the signal to stop; that the entire train had passed around the curve and west of the line of Greenwood avenue and that the rear of the front car was near the front entrance of the Friederich’s Marble Works,' when it stopped; that the aisle was so crowded that it was with difficulty that she made her way to the rear platform; that she had a bouquet of flowers and a pocket-book in her right hand, and, on account of the crowded condition of the vestibule, could not take hold of either railing as she went down the steps; that while her right foot was still on the step and she was stepping to the ground with her left, the signal was given to start and the car started and she fell forward. Her foot turned under her, and she struck the ground on her hand and hip. The car passed on without stopping. She got up, went over to the marble works, and sat on a monument; and a car which had been waiting at a switch just west, came on and she was taken aboard. Appellee introduced the following further proof upon the question of appellant’s liability. Mrs. Buck testified that she occupied a seat facing the one in which appellee was sitting; that she thought the car was right opposite Friederich’s Marble Works when it stopped; that she saw appellee on the ground when the car had moved about six feet. Blanche Dusenbury testified that she knew they were at the cemetery and in Greenwood avenue when they stopped; that the car had turned a little on the curve. She said she remembered the location because she wondered at their stopping at the cemetery entrance, as they generally went around the curve during the lair. Thomas Clark testified that he “remembered that the car stopped near the cemetery gate;” that he saw appellee hit the ground after the car started; and that the car had moved thirty or forty feet or more before appellee fell. Anna Gillis testified that she recollected that the car stopped at or near the cemetery gate, and then she said that it passed Friederich’s Marble Shop when it stopped. Appellant introduced the following proof. Its motorman testified that he stopped the rear of the front car at the sidewalk on the west side of Greenwood avenue; that the front end of the motor car was about twenty feet west from the west line of Greenwood avenue; that he stopped a minute or more, and then started the car slowly. The conductor of the motor or front car testified that he remembered stopping in tile vicinity of the cemetery; that when they stopped the motor car had just got into the curve, and was about in the middle of the curve; that the front of the car was about twenty-five feet from the end of the sidewalk; that he was three-quarters of the way up in the car, and that he turned and looked out through the rear door, but saw no one get off; that there were seven or eight people standing in the aisle, but that there was plenty of room on the rear platform. The conductor of the trailer testified that they- stopped at the cemetery gate; that the motor car had barely gone into the curve when they stopped; that three ladies got off his car and went into the cemetery; that they had passed through the cemetery gate which was thirty or thiry-five feet away before the car started. The foreman of Friederich’s Marble "Works testified that he had an unobstructed view of the car when it stopped; that it stopped on the curve at the usual place for persons to get off to go to the cemetery; that his attention was attracted by the unusual length of time that it stopped; that when he first saw appellee she was standing on the bottom step, and the car had moved twenty or twenty-five feet from where it stopped; but he pointed out as the place where the car stopped a position which measurements showed to be seventy-nine feet from where she fell, and thirty-seven feet from the cemetery gate. Viola Hasker testified that she sat in the trailer about two seats from the front, and that the cars stopped at such a place that she, sitting in the trailer, could look right» into the cemetery gate. If her testimony is true, it shows, when considered in connection with the plat in evidence, that the rear of the front car when it stopped was about seventy-nine feet from where appellee after-wards fell. Two other witnesses testified to facts which, if true, plainly indicate that the cars were on the curve when they stopped. Appellee fell west of the west side of the Friederich’s building, and the west line on that building was forty-eight feet west of the west line of Greenwood avenue. There was also proof tending to show that the car could not have been started suddenly on account of its loaded condition, the curve in the track, and the number of cars using power on that line at that time.

If appellee gave a signal that she wished to leave the car, and after it stopped was in the act of alighting when the conductor gave the signal to start and the car started, and she was thereby thrown to the ground and injured, the jury might well find that it was negligence in the conductor to give the signal to start so crowded a car without first ascertaining whether any one was in the act of alighting, even though he thought the car had stood still a reasonable time for. any one to alight. On the other hand, if the car had already started and proceeded either seventy-nine or forty-eight feet before appellee moved down upon the step and went off the car, and the conductor did not know that she was doing this, it is difficult to see how any negligence could be attributed to appellant or to its servants in charge of the car, but the injury would seem to be due. to carelessness or lack of good judgment on the part of the appellee. There is a clear numerical preponderance of witnesses, both for appellee and for appellant, who testify that the car stopped when they were both on the curve, and when the rear of the front car was either at the crosswalk on the west side of Greenwood avenue or else directly opposite the cemetery gate, and therefore either forty-eight or seventy-nine feet from where appellee fell. It was reasonable that the motorman should stop the car at one or the other of these places. Appellee pushed a button which rang a bell some two hundred feet before the cemetery was reached. Another passenger followed with another like signal. The conductor of the trailer, who had no bell, blew a whistle to indicate to the motorman that passengers on the trailer wished' to alight. The motorman knew and could not fail to know that these passengers wished to go to the cemetery. He would be likely to stop so that the rear of the front car which was a closed car, would be either directly opposite the cemetery gate or else at the cross-walk on the west side of Greenwood avenue. No reason appears in the proof why he should take his train entirely by the cemetery and stop with the rear of the front car opposite the west line of the marble shop. Appellee’s counsel suggest that the motorman would not be likely to stop on the curve with so heavy a load. But tnere was no proof to support that suggestion, and appellee by her objections kept out proof offered by appellant to show where the cars were usually stopped to let off passengers for the cemetery. If the greater number of the witnesses have testified to the truth the case stated in the declaration is not made out. There is another respect in which we are dissatisfied with the verdict. Appellee had no bones broken. Her flesh was not cut. She suffered some from shock that day, but her physician testified that she had recovered fairly well from the shock by the next morning. He then found that the skin upon her left knee was bruised and that the outer part of her left thigh was black and blue. It is very difficult to see how damages to the extent of $3,000 could arise from so slight a cause. Some considerable time later she was found to have sciatica or an inflammation of the sciatic nerve, and she has subsequently suffered seriously from an affliction of that kind. Her physician testified that sciatica could be produced by a blow upon the exterior portion of the thigh. The external injuries were so slight that we feel that the extent of the damage thereby inflicted upon appellee,' as well as the question whether appellant is responsible at all for the injury, ought to be submitted to another jury.

Appellant complains that appellee’s first, third and fourth instructions were erroneous. The first told the jury that “while the burden of proof in this case is upon the plaintiff herein, still if the jury find that the evidence bearing upon plaintiff’s case preponderates in her favor, although slightly, it will be sufficient for the jury to find the issues in her favor.” This instruction, in effect, has been approved in Taylor v. Felsing, 164 Ill. 331; Chicago City Ry. Co. v. Bundy, 210 Ill. 39; and Hanchett v. Haas, 219 Ill. 546.

Appellee’s third instruction told the jury that it was the duty of appellant when it stopped its cars, whether in consequence of a signal from some passenger on the car or not, not to start the same again while its passengers or any of them were in the act of getting off the ear, if the fact that the passengers were in the act of alighting were known to the person having charge of said car, or would be known to such person by the exercise of due care and caution in the discharge of his duties; and as a common carrier of passengers, appellant should give its passengers a reasonable opportunity to alight from its cars when standing still before starting the same, if the fact that its passengers, or any of them, desire to alight is knowin, or by the exercise of ordinary care and diligence would be known, to the person in charge of the car. The fourth instruction re-stated the principle announced in the third, and added that if the jury believed from the evidence that appellee was in the exercise of due care for her own safety while in the act of alighting from the car, and that appellant by its employe, negligently started the car while appellee was getting off before she had reasonable time to do so, and she was thereby injured, by reason of the negligence of appellant’s servants in charge of the car as charged in the- declaration or some count thereof, then the defendant would be liable if appellee sustained damages. We are of the opinion that the evidence warranted the court in giving these instructions.

Appellant asked and the court refused the following instruction:

‘‘ The court instructs the jury that if they find from the evidence that the car upon which the plaintiff had been a passenger stopped at its usual place of stopping for a reasonable length of time to allow the plaintiff to alight, and if the jury find from the evidence that the same was a safe place for the plaintiff to have left the car, and if the jury further find from the evidence that she did not alight while the car was standing, but did alight immediately after the car had started and while it was in motion, and without the consent of the defendant, and if the jury further find from the evidence that said act of the plaintiff was the proximate cause of her injury, then the defendant is not liable for any damage she has sustained by reason thereof.”

This instruction was bad because it ignored the question whether the conductor knew, or in the exercise of reasonable care ought to have known, that appellee was in the act of alighting from the car.

For the reasons above stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Richard D. Dirksen et al., Appellants, v. Marshall O. Manning et al., Appellees.
    Gen. No. 5336.

      Liens—what essential to establish mechanic’s lien. In order to establish a right to a mechanic’s lien a contract must be established by a preponderance of the evidence.
    Mechanic’s lien. Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed November 18, 1910.
    Louis H. Burrell and Harold D. James, for appellants.
    Robert B. Mitchell, for appellees.
   Mr. Presiding Justice

Willis delivered the opinion of the court.

Dirksen & Towslee, partners, filed an amended bill of complaint for a mechanic’s lien on a lot of ground and dwelling house thereon in Freeport against Manning, the owner, and J. H. Wieman & Sons, a partnership. Manning answered, the master took and reported the testimony, and there was a decree dismissing the bill for want of equity, from which complainants below appeal. The amended bill charged a contract by appellants with Manning to furnish the millwork to be used in the construction of the dwelling house which the Wiemans were then constructing thereon under a contract with Manning. Manning’s answer denied any contract between appellants and himself, but alleged that appellants were sub-contractors under the Wiemans, and also that appellants had not taken the steps required of a sub-contractor to fix his lien within the time limited by statute therefor. The material question is whether Manning made an original contract with appellants to become responsible to them for the millwork they furnished.

Appellants admit that the Wiemans had the contract with Manning for the construction of the building and for the doing of all the work and furnishing of all the material except the plumbing, and that in September, .1906, they made a contract with the Wiemans to furnish the millwork for the building, and furnished some material to the Wiemans as sub-contractors. Dirksen testified that on October 8, 1906, he told Manning over the telephone that they would furnish no more mill-work unless Manning agreed to be responsible therefor, and that Manning told them to proceed and furnish the work. Towslee testified to a conversation with Manning later the same day or the next day in which he attributes to Manning language apparently confirming that arrangement. This was all the evidence that appellants made a contract with Manning. Manning testified to conversations with Dirksen and Towslee at these times, but denied that they said they would not furnish the material unless he would be responsible therefor. Manning testified that he had never had any such conversation as they alleged with either of the appellants at any time, and denied that he had ever agreed to be responsible for the material they furnished. J. J. Wieman, Jr., who had sole charge of this contract for the Wiemans, testified that J. H. Wieman & Sons took the contract to build this house and furnish all material, except the contract for plumbing, and that his firm let the contract for the millwork to appellants, and that so far as he knew appellants furnished the millwork to his firm under said sub-contract, and that he had no knowledge that appellants made any contract therefor with Manning. On January 21, 1907, appellants obtained from the 'Wiemans an order on Manning to • pay appellants $365.95 and charge the same to the account of the Wiemans. This paper is inconsistent with the present claim of appellants that they furnished this material under an express contract made by them with Manning, but is consistent with the position of appellees that appellants were sub-contractors only. Appellants seek to explain this by claiming that the order was not for the price of the material furnished to this building but for other indebtedness of the Wiemans to them on other jobs on which they were sub-contractors. On consideration of all the facts and figures in evidence, we think this explanation improbable. On March 21, 1907, appellants served on Manning á notice of their claim of lien for $385.95 in which they described themselves as sub-contractors under the Wiemans. This paper had been prepared for them by counsel whom they had employed to obtain a lien on these premises, and must be presumed to have been drawn pursuant to the facts then stated to counsel. Said counsel testified that until the demurrer was sustained to the original bill it was his opinion that they were entitled to a sub-contractors’ lien. In June, 1907, appellants filed in the office of the clerk of the Circuit Court a claim of lien for $390.70 and $5 attorney’s fees, in which they set up a sub-contract by appellants with the Wiemans to furnish-the millwork, and that Manning, by said J. H. Wieman & Sons, contractors, agreed to pay them $400 therefor, and that they furnished the same, and also certain extra mill-work, at the request of Manning, by said J. H. Wieman & Sons, contractors. They did not in that claim for lien assert any contract with Manning except “by J. H. Wieman & Sons.” They thereby meant that they had made their contract solely with J. H. Wieman & Sons, bnt they sought to bind Manning on the ground that the Wiemans were Manning’s agents. In their original bill appellants claimed that while they were originally sub-contractors, yet on October 8 Manning and the Wiemans applied to them to furnish other millwork and that it was then agreed that appellants were to furnish the material to Manning or to the contractors, and they alleged that Manning and the contractors both owed them therefor. Under date of August 21, 1907, appellants wrote Manning that they had left the account with an attorney with directions if not settled at once to commence suit for a lien “as we do not seem to be getting any money from Mr. Wieman.” Under date of December 5, 1907, appellants wrote Manning, enclosing a bill for $385.95 and insisting on Manning paying the order for $365.95 or they would start legal proceedings, as “Mr. Wieman has done nothing towards the payment of same. ’ ’ These letters implied that the Wiemans owed them for this material.

To enable appellants to obtain a lien under this amended bill, it was essential that they prove a contract with Manning on October 8, by a preponderance of the evidence. Their case rests solely on the testimony of the two appellants. It is at least equalled by the testimony of Manning and Wieman. All the documents prepared by appellants for many months thereafter ignore the existence of such a contract and claim only as sub-contractors. We cannot know what the real truth is, but it is clear from the foregoing statements of the evidence that we cannot say that the trial judge erred in refusing to find an original contract between appellants and Manning. The decree appears to be supported by the preponderance of the evidence. Appellants did not take the necessary steps to establish a sub-contractors ’ lien till long after the time limited by law for so doing.

The decree is therefore affirmed.

Affirmed.