text:
    Louis J. Daly, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 16,137.
    1. Safety Appliance Acts—federal statutes construed. Held, that these acts provided that secure grab-irons or hand-holds should be upon the ends and sides of all tenders for the protection of men engaged in coupling and uncoupling ears.
    2. Safety Appliance Acts—when defense of assumed risk does not lie under federal statutes. If the defendant has failed to equip a tender with grab-irons or hand rails as required by statutes and the injury of the plaintiff proximately results from such default,. then under such ■ statutes the defense of assumed risk does not apply.
    3. Safety Appliance Acts—when engine and tender engaged in interstate commerce. Held, that where it appeared that the defendant was engaged in interstate commerce and constantly used the engine in question in the regular course of its interstate commerce business, the Safety Appliance Acts applied and a recovery might properly be had by a plaintiff injured in consequence of the defendant’s failure to observe such acts.

      4. Safety Appliance Acts—when servant injured entitled to mail of provisions of. The Safety Appliance Acts did not intend to limit the meaning of coupling or uncoupling ears to the instant of moving the rod or lever that raises or lowers the coupling pin; if the plaintiff at the time of his injury was in the act of preparing to couple he is entitled to claim the benefit of such acts.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Makcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 29, 1912.
    Calhoun, Lyford & Sheean, for appellant; John G. Drennan, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, hereinafter called plaintiff, brought suit against the appellant, hereinafter called defendant, for damages for personal injuries resulting in the necessary amputation of his right arm at the shoulder. The plaintiff obtained a verdict for the sum of fifteen thousand dollars and the Court entered judgment thereon.

The declaration consisted of two counts. The negligence alleged in the first count was that the defendant failed in its common law duty to furnish for the use-of the plaintiff reasonably safe hand-holds, or grab-irons, on the tender of its switch engine, on and about which the plaintiff was working for the defendant as a switchman; also that the defendant was negligent in not warning the plaintiff of the said condition and the danger thereof, describing the situation in some detail. The second count alleged, among other things, that the defendant was a common carrier engaged in interstate commerce and was negligent, in that it failed to place proper and secure hand-holds, or grab-irons, as required by the Federal Safety Appliance Act, on the tender of its engine, on and about which the plaintiff was working for the defendant as a switchman in the moving of interstate commerce.

The jury returned with the general verdict two special findings: One that the plaintiff was entitled to recover on the evidence and the instructions of the Court under the first count, and the other that he was entitled to recover on the evidence and the instructions of the Court under the second count. The defendant insists that the Court erred in refusing to instruct the jury to find for the defendant on the grounds that the evidence did not tend to prove the negligence charged; that the plaintiff assumed the risk, and that the evidence proved the plaintiff was guilty of contributory negligence.

If it be concluded that the Court properly submitted the case to the jury on the second count of the declaration, and, with the special finding of the jury on this count, the judgment should be sustained thereunder, it will be unnecessary to consider the case in relation to the first count.

The portion of the engine tender in question is described in the defendant’s brief as follows: “The tender was of the sloping type, the rear of the water tank being lower than the front. Across its rear ran a footboard, extending over the rails more than a foot on each side, for the use of the men. Fastened on the rear of the tender and about 34 inches above the foot-board was a heavy beam, 9 inches wide at the top, extending past each side of the tank 3% inches. Four inches from each end of this beam, on its top, was fastened an upright post, widest at its base. About six inches above the beam was a horizontal socket connected with the upright and extending 2% inches on each side from its center. This socket supported one end of a gas pipe, 1% inches in diameter and 2% feet long, running above the beam toward the draw-bar. At the other end the pipe was supported by a post. The sole purpose of the gas pipe was to furnish the man a handhold or grabiron in getting on or off the footboard and while riding thereon. The upright extended above the socket several inches and had a head on it 3%inches wide and 1% inches thick. In the upper surface of this head was a hole in which could be placed a flag. The diameter of the staff between the socket and the head was 2% inches. The distance from the center of the upright to the nearest point of the tank was 4% inches. From the top of the base beam to the top of the flagstaff was 12% inches. The tender was equipped with an automatic coupler, by which a car could be coupled to or uncoupled from it without the necessity of a man going behind the tender. The rod by means of which the coupler was operated extended from 7% inches outside the upright, clear across the rear of the tender. Between the upright and the post on each side of the draw bar, this rod ran through the pipes forming the handholds, but between the two inside posts it was uncovered so as to connect by a chain with the coupler. The ends of this rod ran outside the sockets attached to the uprights, and were turned down so as to form handles for the use of'the men in making couplings. While the rod turned and moved, the pipes themselves were stationary. Even though they might work out of their fastenings, they could not come clear out because of the rod passing through them.” Steps led up the inclined rear end of the tender to the front. The corner of one of these steps extended over about one-quarter of the top surface of one of the posts and about one-half inch above it.

The plaintiff was about thirty-six years old. He had worked as a switchman for the defendant at different yards for ten or eleven years. At the time of the accident he was working nights at the Fordham yards handling intrastate and interstate commerce. Between eleven thirty and twelve o’clock on the night in question the switch engine was backing south at the rate of about three miles an hour, pushing a. coal car coupled on the rear, or south end of the engine. The plaintiff threw the switch and stood on the east side of the track waiting to get on the rear footboard of the engine, to be in position to cut the car off at the place the fireman would designate on the track they were entering. As the rear end of the engine came up to the plaintiff, holding his lantern in his left hand, he attempted to step upon the footboard, and at the same time reached out with his right hand with the palm down to grasp the top of the post at the southeast corner of the tender. The step projecting over this post, as stated, prevented the plaintiff from securing a hold on the post, and he lost his balance and fell. The wheels passed over and crushed his right arm, necessitating the amputation as stated.

It is claimed by the defendant that the evidence did not tend to prove the negligence averred in the second count of the declaration, to which it should be understood we confine our consideration. The first proposition to be determined in this connection is whether the said posts might properly be held under the evidence to be handholds. The defendant says that the top part of the post, the portion extending above the end handhold, was not $ handhold, hut was a flag post, that is, having a hole in the top, it was for the purpose of holding a flag. The evidence tended to show that the step covered the top of the post in question to an extent that it could not have been so used. But even if the posts were so used as flag posts, it could not avail the defendant if they were also constructed for and used as handholds.

The Federal Safety Appliance Act of March 2nd, 1893, provides:

“That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.”

In the Act of March 2nd, 1903, it was further provided :

“That the provisions and requirements of the act (that of March 2, 1893) shall apply in all cases, whether or not the couplers brought together are of the same kind, make or type; and the provisions and requirements * * * relating to train brakes, automatic couplers, grab-irons, and the height of draw bars shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce, * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith.”

These Acts clearly provide that secure grab-irons, or handholds, shall be upon the ends and sides of all tenders for the protection of men in coupling and uncoupling cars. That there was a secure grab-iron at the end of the tender in question is not controverted. There was no evidence of any grab-iron on the side of the tender other than the post in question and the iron rods projecting therefrom, of which there were two. One, the end grab-iron, extending from inside the post along the rear of the tender, which under the facts in evidence could hardly be said to conform to the statute requiring a secure grab-iron on the side of the tender. The other was the coupling rod extending from the coupling apparatus in the middle of the rear end of the tender through the hollow end grab-iron, the post, and projecting, in the language of defendant’s counsel, “outside the sockets attached to the uprights (the posts) and were turned down so as to form handles for the use of the men in making couplings. ’ ’ These handles thus projecting outward from the posts were movable to the extent of about eight inches, in being used for coupling and uncoupling purposes, and, the evidence tended to show, were dangerous to use as grab-irons. If then, the posts • on the corners at the rear end of the tender were not constructed to be used as grab-irons or handholds on the sides of the tender, the defendant clearly failed to comply with the statute requiring it to provide secure grab-irons, or handholds, on the sides of the tender. There was also evidence that it was the custom among the switchman to use the said posts as handholds in stepping onto the foot-board of the tender from the side. Under such circumstances was it not a question of fact whether said posts were constructed as and used for the side handholds? If they were so constructed and used, then did the step projecting over a portion of the top of the post interfere with the use of the said post as a grab-iron or handhold, thereby causing the same to be dangerous and insecure as a handhold ? These were questions of fact for the jury. Mallott v. Hood, 201 Ill. 202. In view of the said requirements of the Federal statute they might, under all the evidence in the case, properly be answered in the affirmative.

It was the duty of the defendant to comply with the law. In St. Louis & I. M. Ry. v. Taylor, 210 U. S. 281, the Court said in respect to the said Safety Appliance Act: “The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just.. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibition of the law, and there arises from that violation the liability to make compensation to the one who is injured by it.” In reference to the questions of fact suggested, however certain the answers thereto may be in the minds of the counsel for the defendant, we are unable to hold that there was no evidence tending to prove the negligence charged, or that the verdict, whereby the jury must have found the defendant guilty of the negligence charged, was clearly and manifestly against the weight of the evidence on this material averment.

In respect to the next contention, that the- plaintiff assumed the risk, the said Federal Safety Appliance Act provides: “Any employe of any such common carrier who may be injured by any locomotive, car or train in use contrary to the provisions of this Act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing' in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.” If the defendant failed to equip said tender with the grab-irons or handholds required under said Act, then under the Act there was no assumption of risk by the plaintiff in the case at bar. Schlemmer v. Buffalo R. & P. Ry. Co., 205 U. S. 1.

Was the plaintiff guilty of contributory negligence! If the plaintiff knew, or in the exercise of ordinary care would have known, of the step projecting over the said post, it would seem that as a reasonably prudent person, with his experience, he must have known, or be held to have known,- the manner in which he attempted to grasp the said post was dangerous, and, under the circumstances, negligent. The plaintiff testified that he knew steps were on the incline of the tender, but he did not know until after the accident that the step projected over the post. There is no evidence to the contrary except the attending circumstances, from which it is claimed he must have known. We are not disposed to hold that the inference from the facts and circumstances in evidence that he knew, is of greater weight than his statement that he did not know. Next, should it be held that the plaintiff, in the exercise of ordinary care, would have known of the step projecting over the said post? The plaintiff was working nights at the yards- in question as an extra man. The evidence tends to show that he first went to work with the engine in question on the night of June 4th previous to the accident; that he worked with the said engine about thirteen nights in June and practically every night in July up to and including July 23rd; that he next worked with said engine September 12th and was injured the following night. There were about twenty-five switching crews working in said yards; each crew generally consisting of three men, the foreman, who watched the train and in a general way had charge of and directed the work; the man in the field, who lined up the switches and coupled cars, seldom, if at all, having worked on the engine; the man following the engine, who made couplings on and uncouplings from the engine, and it seems threw the switches at times when they were close to the engine. A Mr. Nolan was foreman in June. The plaintiff gave certain dates in July that he said he remembered when he was foreman and certain other dates that he was in the field, and said that he first followed the engine in question the night of September 12th, and was also following the engine the night of the 13th, when he was injured. It seems that the foreman and field man seldom did any work on the engine, but at times in going out to and coming from their work, all of the crew, or some of them, would ride on the footboard. The usual manner of boarding the engine with no car attached to it, was to stand in the middle of the track and as the engine approached step on the footboard and at the same time, it may be supposed, grasp the end grab-irons. The plaintiff went to wbrk at seven o ’clock in the evening, and usually worked until six o ’clock the next morning, occasionally until seven o’clock. It might be conceded that during the hours of darkness the plaintiff would hardly be expected to observe the step projecting over the post unless his attention was in some manner directed to the same, and plaintiff said that before the accident he had .not noticed the handhold, and said, referring to the time of the accident: “This was the first time I had the necessity of getting on there with a car attached to it in the position that I did at that time.” We state the situation in a general way, but sufficiently to show that the opportunities the plaintiff had to observe said step were not such that in our opinion would warrant us in holding, contrary to the verdict of the jury, that the plaintiff as an ordinarily prudent man, with his experience, exercising ordinary care, would have known the step projected over the said post. Was the plaintiff guilty of negligence in the manner in which he attempted to take a hold upon the post, is the remaining question of fact. Assuming, as from the foregoing it would appear we must, that the plaintiff did not know and that it should not be held by this Court that the plaintiff should have known, in the exercise of ordinary care, that the step projected over the post, we think that the jury might properly believe that the manner in which the plaintiff undertook to secure a hold upon the post was, under the circumstances, probable and natural, and find the same to be the conduct of an ordinarily careful and prudent switchman under like circumstances. We conclude, after careful consideration, that under all the evidence we would not be warranted in holding as a matter of law that the plaintiff was guilty of contributory negligence. See Campbell v. C. R. I. & P. Ry. Co., 243 Ill. 620.

In El Paso R. R. Co. v. Vizard, 211 U. S. 608, it was contended that the plaintiff ignored the handholds, with which the car was properly equipped, and in the use as a handhold of a rod, not intended as a grab-iron, resulting in his injury, he could not recover on the ground of contributory negligence. The Court there said: “Indeed, in an open, moving car, a hand-rail running through standards on the side and within easy reach, would naturally suggest doing just what the plaintiff did. It certainly could not be declared, as a matter of law, negligence.”

The counsel for the defendant further contend that this case does not come within said Federal Safety Appliance Act, because there was no proof that the engine. and tender were not at the time engaged in interstate commerce, and also because the plaintiff at the time of the injury was not engaged in coupling or uncoupling the car from the tender.

It was proven that the defendant was engaged in interstate commerce, and that the engine in question was being constantly used in handling interstate commerce; but there was no evidence that the car the engine was pushing at the moment of the accident, was interstate commerce. The defendant, engaging in interstate commerce and constantly using the said engine in the regular course of its interstate commerce business, would seem to bring it within the terms of the amendment of said Act of March 2, 1903, that “the provisions and requirements hereof and of said Acts relating to train brakes, automatic couplers, grab-irons, and the height or drawbars, shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce.” Wabash R. Co. v. U. S., 93 C. C. A. 393; U. S. v. C. & N. W. R. Co., 157 Fed Rep. 616.

The plaintiff testified that the car had been on the scales to be weighed, and he had been told to bring it around to the train yard; the switch he had lined up led into the train yard, and at the time of the accident the conductor (foreman) was in the yard lining up the switches, and he, the plaintiff, “had to be in a position to cut off the car when the foreman wanted me to.” In C. M. & St. P. Ry. Co. v. Voelker, 65 C. C. A. 226 a switch-man was injured while repairing a defective coupler preparatory to coupling the cars, and the Court said: “The contention that the preparation of the coupler for the impact is distinct from the act of coupling, is a mistaken attempt to separate a part of an act from the whole.' The preparation of the coupler and the impact are not isolated acts, but connected and indispensable parts of the larger act, which is regulated by these statutes, and the performance of which is intended to be relieved of unnecessary risk and danger.” To the same effect as C. J. Ry. Co. v. King, 94 C. C. A. 652, and Campbell v. C. R. I. & P. Ry. Co., 243 Ill. 620. We are disposed to accept the reasoning in these cases rather than that of the majority of the Court in Dawson v. C. R. I. & P. Ry. Co., 114 Fed. Rep. 870, upon which the defendant relies. It cannot be conceived that the Safety Appliance Act intended to limit the meaning of coupling or uncoupling cars to the instant of the moving the rod or lever that raises or lowers the coupling pin. So, whether the plaintiff in attempting to take a position so that he could uncouple the car when directed, which might be anyffnstant thereafter, was in the performance of a “connected and indispensable ’ ’ part of the- act of uncoupling the car was a question of fact for the jury, and as it appears to us in the case at bar, it is not sufficiently, clear to justify us in holding contrary to the verdict of the jury.

There was no error in the admission of the evidence of the custom of using said posts as handholds, or the rulings of the Court on instructions. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Gertrude Klauss, Defendant in Error, v. National Council, Knights & Ladies of Security, Plaintiff in Error.
    Gen. No. 16,171.
    1. Fraternal benefit societies—status of subordinate lodge. A subordinate lodge of a fraternal benefit society is the agent of the supreme lodge and may waive forfeitures or suspensions upon the member’s failure to pay assessments promptly.
    2. Fraternal benefit societies—when reinstatement effected. Reid, that a subordinate council in formally appropriating or lending money to a member to effect his reinstatement, coupled with the fact that the reinstatement was formally declared, was sufficient, notwithstanding the by-laws of the society provided a different method for effecting reinstatement.
    Error to the Municipal Court of Chicago; the Hon. Max- Eberhardt, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed April 29, 1912.
    A. W. Fulton, for plaintiff in error.
    Bradley, Harper & Eheim, for defendant in error; Clayton W. Mogg, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, obtained a judgment for one thousand dollars against the plaintiff in error, hereinafter called defendant, on a certificate issued by the defendant, a fraternal benefit society, to Carl Klauss, plaintiff’s husband, and payable to the plaintiff as beneficiary.

On November 30, 1907, and for some years prior thereto, Mr. Klauss was a member of Vorwaerts Council No. 826, a subordinate council of the defendant society. Assessment No. 173 of $1.90 and fifty cents spe-r cial dues to the subordinate Council for November, 1907, were paid December 19,1907, to and accepted by Mr. Lambrecht, Financier and Treasurer of Vorwaerts Council, and the only officer thereof authorized to accept the payments of assessments during the time covered in this controversy, and entered by Mr. Lambrecht on the membership receipt book of Mr. Klauss as paid Nov. 30, 1907. No subsequent assessments were paid except as hereinafter stated. The plaintiff testified that they received a letter from the lodge, just when does not appear, “that we are out of the lodge,” and she thereupon, February 6th, 1908, saw Mr. Hoffman, President of the Council, who advised her that she and Mr. Klauss attend the meeting of the Council that evening. Both Mr. and Mrs. Klauss attended the meeting of the Council that evening, and in the meeting Mr. Klauss asked the Council, in the language of Mrs. Klauss: “If they please would be so kind and lay the money out for us so we could get in good standing.” The Council took the following action, quoted from its minutes:

“Brother and Sister Klauss appeared in person before the Council with the request that Vorwaerts Council would be kind enough to loan them the money necessary to again put him in good standing in this Council as well as in the National Council, as they were already suspended, and without the assistance of the Council were not in the immediate position to put themselves in good standing. Thereupon the council appropriated to them the sum of $7.65 so they could place themselves in good standing in the National Council, and stand suspended from the sick benefit. The money must be repaid to the council by April 30, 1908. Neither Brother or Sister Klauss have any claim to the sick benefit. ’ ’

The minutes of the meeting were written in the German language, and the word “bewillight” was translated by the witness for the plaintiff ‘ appropriate ’ ’ or “set apart,” and was claimed by the defendant should be “loaned.”

A paper was drawn up reciting the amount of three months assessments, evidently December, January, and February, which was agreed to be paid by April 30th and signed by both Mr. and Mrs. Klauss, who then left the meeting. This paper was left with the Secretary of the Council and on February 22d brought to the home of the plaintiff by Mr. Lambrecht and there destroyed by him, with the statement to the plaintiff that “the Council had decided against her and that I was told to show them the paper and tear it up in their presence.” Mr. Lambrecht was not permitted to see Mr. Klauss, who was then in bed very ill. There was testimony on the part of the defendant to the effect that on February 6th and previous thereto Mr. Klauss was ill, and on the part of the plaintiff that Mr. Klauss had been out of work for some time and on said date and for a long time previous thereto and up to February 16th he was a strong, healthy man; that on said February 16th he was first taken ill, took to his bed February 18th and died February 24th.

The principal question in the case is whether the action of the local Council on February 6th reinstated Mr. Klauss as a member thereof in good standing. The by-laws of the defendant provided:

“To be entitled to participate in the Beneficiary fund, a beneficiary member shall comply with all provisions of the Constitution and Laws of the Order, now in force or which may be hereafter enacted, and shall, at death or disability, be a member of the Order in good standing. * * *
No member or beneficiary named in his certificate shall participate in or be entitled to be paid any sum from the Beneficiary fund of the Order * * *
who, at the time of such injury or death, shall be delinquent on account of non-payment of monthly or special assessments or dues as provided by the laws of this Order. * * *
Before delivering the Beneficiary Certificate upon the initiation of a member, the Financier of the council shall collect one assessment for the current calendar month and the local dues from the member, and thereafter on or before the last day of each succeeding calendar month, the member shall, without notice, pay the sum of one assessment and the local dues to the Financier. * * *
All assessments for any month shall become due and payable on the first day of that month. The certificate of each member who has not paid" such assessment or assessments on or before the last day of the month, shall, by the fact of such non-payment, stand suspended without notice, and no act on the part of the council or any officer thereof, or of the National Council, shall be required as essential to such suspension, and all rights under said certificate shall be forfeited. No right under said certificate shall be restored until it has been duly reinstated by the member complying with the laws of the Order with reference to reinstatement. * * *
Each member who has been suspended for non-payment of dues or non-payment of an assessment "or assessments shall only be reinstated in accordance with the Constitution and Laws of the Order. * * *
Any beneficiary member suspended by reason of nonpayment of an assessment or assessments, may within sixty days from the date of such suspension be reinstated upon the following conditions and none other, viz: If not engaged in any of the prohibited occupations mentioned in Section 107 of these Laws he may be reinstated by payment, within sixty days from date of suspension, of all arrearages of eve-ry kind, including dues and assessments, for which he would have been liable had he remained in good standing; Provided, however, that he be in good health at the time of reinstatement; Provided, further, that the receipt and retention of such assessments or dues, in case the suspended member is not in good health, shall not have the effect of reinstating said member or of entitling him or his beneficiaries to any right under his benefit certificate. * * *
Any member suspended, or expelled from the Order for any cause whatever forfeits all claims to the Beneficiary fund, Reserve fund, General fund and all other funds of the Order during said suspension or expulsion. * * *
Manner in Which Council or Individual May Pay Member’s Assessments. In all cases where the Subordinate Council shall determine to pay one or more assessments or dues for any member, the same shall be done only by resolution or motion, regularly offered and carried for that purpose, by a majority vote of the Council, which proceeding shall appear of record in the minutes of the Secretary, and the amount voted to be paid for any member must be transferred from the General fund of the Subordinate Council to the Beneficiary fund at that time, by a warrant drawn on the General fund. In cases where one or more assessments or dues are paid for a member, by any person, the said assessments or dues must be actually received at the date of the entry in the books, and the money placed in the proper fund. In no case shall the Financier forward any assessment or assessments for any member, unless the same has been ordered paid by a majority vote of the Council as above provided or where the amount due has actually been paid into the proper fund for or by the member. * * *
The National Council shall not be liable for the illegal receipt of arrears of Beneficiary or Reserve fund or National Council General funds or assessments from suspended' members, and the receiving of any such arrears and receipting therefor by any officer of a Subordinate Council and the reinstatement of any suspended member, except as provided in the laws of the Order, shall not be binding on the National Council.”

Many other provisions of the by-laws were introduced in evidence, but from the view we take of the case it is unnecessary to recite same.

It is claimed that the contract between the defendant and the decedent consisted of the application, certificate of membership, charter and by-laws of the defendant and the State statutes relating to fraternal benefit societies, and that each and every part thereof being binding upon the decedent, the action of the local Council of February 6th was unauthorized and void, and the decedent was not thereby reinstated, but at the time of his death stood suspended for the nonpayment of assessments, and therefore the plaintiff was not entitled to recover. In support of this contention the counsel for the defendant presents a very interesting and learned argument, a large part of which is devoted to a discussion of the propositions that the local Council of a fraternal benefit society should not be held the agent of the Supreme Council, and that the local Council and its officers have not the power to waive requirements of the contract. These arguments are disposed of in the language of the Court in Jones v. Knights of Honor, 236 Ill. 113, as follows: “Whatever the holding in other jurisdictions has been, it is clear that under the decisions in this State the subordinate lodge or council of a fraternal benefit society is the agent of the supreme lodge or council, and that such subordinate lodge may waive forfeiture or suspension upon failure to pay assessments and dues promptly.” (Citing authorities.)

It appeared from the evidence that it was customary for the Financier to accépt payments of monthly assessments during the next succeeding month and give the member credit for paying same in the month same were due and payable, and this was the course pursued by the Financier in accepting decedent’s Novemher assessment on December 19th, thereby, it would seem, waiving the payment of the same in November. On February 6th the decedent was in default in the payment of December and January assessments, the last day for the payments of the same being on the last day of the respective months, and the action of the local Council in appropriating or advancing the amounts in payment of the said assessments and that of February, waived the defaults in the payments thereof. At any rate it seems to uS that the formal action of the local Council, duly taken in its meeting of February 6th, reinstated the decedent as a member in good standing, regardless of the provisions of the by-laws. Jones v. Knights of Honor, supra. That the acts and conduct of the local Council established in the decedent’s mind the belief that he was reinstated as a member in good standing, and that he justly relied upon that conviction cannot, as it appears to us, be the subject of much doubt. The statement qf the Financier to the plaintiff February 22nd, that the Council had decided against her, etc., and his destruction of the evidence of indebtedness, could not, on any principle of law with which we are familiar, rescind the formal action of the Council of February 6th and cancel its agreement with the decedent as contended by the defendant.

The defendant further claims that the decedent was not in good health February 6th, and under the by-laws he must have been in good health at said time or he could not be legally reinstated. Whether he was in good health was a controverted question of fact submitted to the jury, and under the evidence we are not inclined to disagree with their finding thereon. Court of Honor v. Dinger, 221 Ill. 176.

While the instructions are subject to criticism in some respects, yet under all the evidence in the case and the rule prevailing as to instructions under the Municipal Court Act, we do not consider the objections urged thereto reversible error.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    Mary Howe, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,465.
    1. Instructions—when should be accurate. Where the evidence is closely conflicting the instructions should be accurate.
    2. Instructions—assumption of facts. An instruction is improper which assumes the existence of facts in dispute.
    3. Instructions—how facts to be determined. Instructions should require that the essential facts be established by the evidence.
    4. Instructions—when as to duty of master to furnish safe place erroneous. An instruction is erroneous which in effect unqualifiedly announces it to be the duty of the master to keep reasonably safe the premises or place where the servant was injured regardless of the question whether it was necessary or proper for such servant in the performance of Ms duties to go there.
    Action in ease. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed May 9, 1912.
    B. F. Nicholson and C. Le Roy Brown, for appellant.
    Edward R. Litzinger, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action brought in the Superior Court of Cook county by Mary Howe, administratrix of the estate of Matthew Howe, deceased, appellee, against Chicago City Railway Company, appellant and hereinafter referred to as defendant, to recover damages for personal injuries sustained by said Matthew Howe resulting in his death. The jury found the defendant guilty and assessed plaintiff’s damages at $8,000. The judgment followed and defendant appealed to this court.

The facts are substantially as follows: Defendant operated a power house at the northeast corner of 49th Street and Oakley avenue, in the city of Chicago. It was a building of considerable area and of one story and a basement. The main floor contained two large rooms. One, the boiler room, was on the north side of the building, and the other, the engine room, Was on the south side. In the boiler room were two long batteries of boilers extending east and west, and between the two batteries was an open space about 30 feet wide and about 150 feet in length east and west. The basement corresponded in general outlines, as to the aisles and walls, with the main floor. The plant was equipped with an automatic stoker system which fed the boilers with coal from the bunkers. Two coal conveyors ran on endless belts through the basement under the boilers, then upwards from the bunkers above the boilers and then down to the point of beginning. These conveyors ran east and west through the basement, and one was located along the north line of the south battery of boilers. The conveyors were used both for bringing in coal and for removing ashes. The ashes were taken from the ashpits in the basement of the boiler room into the conveyors and by them dumped into cinder cars outside the building. Near the center of said open space between the two batteries of boilers was an iron stairway leading from the main floor into " the basement. This stairway was in frequent use. The boilers of the south battery were separated at about the center by an open alleyway about eight feet wide and thirty feet long. This alleyway extended from said open space south to the south wall of the boiler room. In the basement, the north end of this alleyway was partially obstructed by one of said coal conveyors, the top of which was about twenty-six inches from the floor of the basement and the bottom about eight inches from said floor, and the south end of this alleyway led into another smaller alleyway about five feet wide and extending to the east and to the west. The portion of said smaller alleyway which ran west from said main alleyway was obstructed by a large exhaust pipe, and the portion which ran east extended to the east end of the east ashpit of said south battery of boilers, where there was another exhaust pipe. To the north of said smaller alleyway was the wall of said east ashpit, and to the south was the wall that separated the boiler room from the engine room. About the center of said smaller alleyway was an opening through said last mentioned wall, and on the floor of said smaller alleyway, about half way between said opening in said wall and said large alleyway, was a catch basin, containing hot water and steam, which was covered by an iron cover laid on brick and level with said floor. This smaller alleyway was dark, generally not lighted and no lights were burning therein at the time of the accident. The evidence tends to show that Matthew Howe was about forty-five years old and had been employed by the defendant for twenty years and in said power house for seven years; that prior to the accident, he was a strong and healthy man, an intelligent workman and in full possession of all his faculties; that he had charge of a gang of men attending to the coal unloading machine and the coal conveyors, and also had charge of the removal of the ‘ashes, spent about two hours a day in the basement at that work and was required to be in the basement at least twice every day; that he had little occasion to go into said smaller alleyway ; that Howe was subject to the call of the engineer in charge of the plant, Michael J. Callahan, to bring in his men to assist said engineer in doing any work required; that Howe= “did general work around,” and had a general supervision of everything in the basement; that about three o’clock on the afternoon of September 6, 1906, there was trouble in getting coal into the magazines of the boilers from the bunkers, and Callahan called Howe to bring in his men to assist him in the work; that at that time Howe was working at the coal unloading machine on the north side of the building, outside; that after Howe had placed his men around in different positions, Callahan asked Howe to go and call Usbick, one of Howe’s gang called “Billy,” who was then at work in the basement of the engine room, south of the wall separating said room from the boiler room and a little east of the said opening in said wall; that at the time Callahan asked Howe to call “Billy” there was no catastrophe pending, no occasion for Howe to use haste, and that Callahan gave Howe no order or direction as to .the route Howe should take; that at the time Callahan asked Howe to call “Billy” they were standing about in the center of the main floor of the boiler room; that Howe could have walked on the main floor of said boiler room around the east end of said south battery of boilers to a wooden stairway where, upon descending said stairway, he would have been but a few feet east of where “Billy” was then working, and that this would have been a safe, open and unobstructed route, though a longer one than the one Howe seemingly took. Although no one noticed what route he took, the testimony seems to indicate that he went down the iron stairway leading from the boiler room into the center of said large open space in the basement, that after 'descending said stairway he walked in a southerly direction, stepped o.ver said coal conveyor, which was not running, passed along said alleyway between said south battery of boilers until he reached said smaller alleyway, when he turned east passing over said catch basin, passed along said smaller alleyway until he came to a point where, because of the said opening in the said wall between the engine room and boiler room, his voice could be heard by “Billy,” and there called “Billy.” Usbick testified, “I heard Howe call but I didn’t see him, * * * I heard Howe hollering; he says ‘Billy, Mike Callahan wants you.’ ” Usbick further testified, “The wooden stairway from the first floor to the basement wasn’t far from where I was. * * * When Howe hollered I quit work and walked over to the steps and went up to Mr. Callahan in the engine room.” The testimony also seems to indicate, although no one saw what happened, that Howe after calling “Billy” retraced Ids steps along said smaller alleyway, and upon reaching said catch basin the lower portion of his body gotfinto the same, and by reason of the hot water and steam therein he was severely burned and scalded; that he was next seen moving to the north in said alleyway and going up said iron stairs; that then Callahan and other employes of the plant noticed that his clothing was Wet and hot, and, upon removing his clothing on the lower part of his body, saw that both legs were badly burned and scalded. Callahan testified that he asked Howe what was the matter, and that Howe replied that he had stepped into ‘ ‘ the catch basin. ’ ’ An ambulance was called and Howe was taken to the St. Bernard’s Hospital and treated, where after lingering ten days, he died.

It is claimed by counsel for defendant that the testimony tends to show that, in addition to the safe and unobstructed route above mentioned which Howe might have taken, there was another safe and unobstructed route which he might have taken, vizHe might have descended said iron stairway, gone east in said large open space in said basement, then, turning to the south, might have passed east of said coal conveyor and said ashpit, and then, passing through a door in the basement of said wall between the engine room and boiler room, been within a few feet of where “Billy” was working. But the testimony is conflicting as to whether or not this was an unobstructed route. There is also a sharp conflict in the testimony as to whether said smaller alleyway was used generally by Howe and his men as a passageway, or whether it was only used occasionally by other employes in cleaning said catch basin, and in making such repairs to the plant as required their presence temporarily in said smaller alleyway.

In urging this court to reverse the judgment, counsel for the defendant contends, substantially, (1) that defendant is not liable for the injury (a) because Howe, in obeying the order to go and call “Billy,” took a darker and more unsafe route than he could have taken, (b) because defendant owed no duty to him to have the place where he went safe, (c) because the narrow alleyway where the accident presumably occurred was not a passageway for general use by Howe and other employes of defendant, (d) because no actionable negligence on the part of defendant was proved, (e) because there is no proof that Howe exercised due care, and (f) because Howe assumed the risk; (2) that it is not shown by a preponderance of the evidence that Howe died as a result of the burns and injuries; (3) that the first, third and fourth counts of the original declaration did not allege that Howe died as a result of the injuries, and the amendments to said counts attempting to rem- ' edy this defect introduced a new cause of action, and said amendments being made more than one year after Howe’s death, the court erred in sustaining a demurrer to defendant’s plea of the statute of limitations to said counts as amended; and (4) there was manifest error in the court giving to the jury the second instruction offered by plaintiff.

We do not think there is any merit in counsel’s points numbered -2 and 3, but that there is merit in their contention as to said second instruction. After a careful consideration of the entire record we have reached the conclusion that the trial court committed error, prejudicial to defendant, in giving said instruction, and that the judgment must be reversed, and the cause remanded for a re-trial. Such being our conclusion it is manifest that a discussion here of counsel’s contentions, numbered 1 above, would be improper. We may, however, say with propriety that in our opinion the evidence on certain facts essential to establish the liability of defendant, is quite conflicting, and in such case it is important that the instructions of the court should be accurate. Lyons v. Ryerson, 242 Ill. 409, 416.

Said second instruction is as follows:

“The court instructs the jury that it was the duty of the defendant to exercise reasonable care to see that the premises, or place where the decedent Howe was sent in the performance of his duties was reasonably safe for that purpose, that if the defendant failed in the performance of this duty toward the decedent the said Matthew Howe, as charged in the declaration, while in the exercise of such care as an ordinarily prudent man would use under like circumstances, and did not assume the risk, if any, met with the accident and such accident caused his death, then you should find the defendant guilty.”

This instruction does not require the jury to believe from the evidence the elements mentioned therein as essential to make out defendant’s liability. It assumes that Howe “was sent” in the performance of his duties to the “premises or place” where, presumably under the evidence, he received his injuries. One of the defendant’s contentions was that Howe was not sent, and should not have gone, to the place where plaintiff claimed Howe was injured. Whether he was so sent was an essential question of fact for the jury to determine from the evidence. Furthermore, the instruction in effect unqualifiedly announces it to be a duty of defendant to keep reasonably safe the premises or place where Howe was injured, regardless of the question whether it was necessary or proper for Howe, in the performance of his duties, to go there. Stover Mfg. Co. v. Millane, 89 Ill. App. 532, 535.

The judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Andrew P. Anderson, Administrator, Appellant, v. Metropolitan West Side Elevated Railway Company, Appellee.
    Gen. No. 16,495.
    1. Verdicts—when not disturbed as afainst the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Master and servant—how question of fellow servants determined. Whether the relation of fellow servants exists is a question of fact to be determined by the jury. Where, however, the facts are not in dispute and all reasonable minds must inevitably reach the same conclusion therefrom, the question becomes one of law to be decided by the court.
    3. Instructions—when giving., upon fellow servant doctrine, not error. It is not reversible error to instruct a jury upon the law of fellow servants, where that question is one of the issues presented by the pleadings.
    4. Evidence—when habits of care incompetent. In a death case where there are no eye-witnesses to an accident it is proper to introduce testimony as to what the habits of the deceased were as a careful and sober man, as tending to establish that such deceased exercised ordinary care on the occasion under investigation, but this does not mean that such evidence is competent if no witnesses saw what the deceased was doing at the instant of the accident. If there were witnesses who saw what occurred immediately before and immediately after the accident, the evidence as to habits of care may properly be rejected.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Parhn Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.
    Rehearing denied May 23, 1912.

      Certiorari denied by Supreme Court (Making opinion final).
    Edmund H. Smalley, for appellant.
    Addison L. Gardner, for appellee; W. W. Gurley, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action for damages for personal injuries, resulting in death, brought in the Superior Court of Cook county by the administrator of the estate of Albert J. Anderson, deceased, appellant, and hereinafter referred to as plaintiff, against Metropolitan West Side Elevated Railway Company, a corporation, appellee, and hereinafter referred to as defendant. The jury returned a verdict finding the defendant not guilty, and on January 29, 1910, a judgment was entered upon the verdict, from which judgment plaintiff appealed to this court. It appears that this was the third trial of the cause by a jury. In the first and second trials the jury disagreed.

The facts of the case are substantially as follows t Albert J. Anderson was killed on the afternoon of October 16, 1906, while at work on the elevated structure of defendant’s railroad, at a point between Marsh-field Avenue and Laflin Street, in the City of Chicago. East of Marshfield Avenue the railroad has four tracks, numbered from north to south 1, 2, 3 and 4, which run parallel to ^ point west of the scene of the accident, where they diverge in a series of crossings. The first of these crossings is a junction of the two middle tracks, Nos. 2 and 3. After the two middle tracks cross each other at this junction they again diverge gradually, continuing east, until separated by a distance of about twenty feet, when they again become parallel, and are each paralleled by another outer track. East of said junction No. 2 track becomes No. 3 track, and vice versa. For some distance east of this junction, the elevated structure between these gradually diverging tracks, Nos. 2 and 3, is boarded over, forming a walk or platform on which, at a distance of a little over 100 feet from said junction, stands a small interlocking shanty, and just east of this is a stil-l smaller oil house. East of this oil house the space between said inner tracks, Nos. 2 and 3, is open, with the exception that from the platform, on which said interlocking shanty and oil house stand, there extends east for a distance of about ninety feet, along the north side of track No. 3, a board walk constructed of planks laid parallel with said track on stringers, level with the ties, the surface of which walk being some five inches below the top of the rails. This board walk extends to a signal or target which stands in the center of the walk at the east end, a little over three feet north of the north rail of said track. Along the north side of this board walk there runs an iron hand railing, and this railing is four feet nine inches from the north rail of said track, No. 3. There is a distance of thirty-two inches between this hand railing and the side of a car standing or passing on said track, No. 3. The signal or target consisted of an iron base about a foot square and nine inches high, supporting an iron pipe, at the top of which was a cap containing a lamp and holding a signal arm. In all it was about five feet high. East bound Logan Square and Humboldt Park trains pass Marshfield Avenue on track No. 2 and cross over to track No. 3 at said junction. The distance from Marshfield avenue to said junction is about 1,700 feet, and the evidence tends to show that said signal or target on said board walk would be in the sight of motormen on trains coming from Marshfield Avenue the entire distance with the exception of a space possibly of 200 feet, when said interlocking shanty would obstruct the view. At the time of the accident Anderson was on the east end of said board walk near the signal or target, which he and two other men were engaged in rewiring. He had been there about half an hour. These two other men were underneath the elevated structure, one, O’Rourke, on the ground at the foot of a ladder, the top of which rested against one of the girders, and the other man, ICilroy, was on said ladder, near the top, directly underneath said board walk, in such a position that he could reach with his hand the floor of the walk at the base of said signal or target. Kalroy was taking wires which Anderson from above was shoving down to him through insulators in bores in the walk at this point. While all three men were so at work, a train in charge of a motorman, named Thompson, came from the west on track No. 2, crossed over said junction of said two center tracks and approached said signal or target, where said men were at work, running on track No. 3, south of said board walk. The train consisted of two cars and, according to Thompson’s testimony, was running about fifteen miles an hour. Thompson further testified, substantially, that he first saw Anderson when his motor car was about at said junction, some 200 feet west of said signal or target; that Anderson was then at the east end of said board walk, north of track No. 3, near said signal or target, in a stooping position, with his hands on his knees, looking down through the walk, his head toward the south; that in said position Anderson was clear of the track; that by the time Thompson’s train had run further east and was about abreast of said interlocking shanty, Anderson had straightened up and was standing on the walk with his back to said iron railing, and with his face turned partly toward the approaching train; that Thompson did not blow any whistle but that he watched Anderson until the front of the motor car was within about eight feet of Anderson, when Thompson’s view of Anderson was cut off by the side of the motor cab window; and that during this intervening time, while the train was running from said interlocking shanty and until the time when Thompson’s view of Anderson was cut off, as aforesaid, Anderson did not change his said standing position. The testimony also tends to show that just after the rear of the train had passed the end of said board walk, the noise of escaping air attracted the attention of Kilroy and O’Bourke, and they then saw Anderson’s body falling from the east end of said board walk to the ground below, and that Anderson’s body in so falling had struck and broken an air pipe at the end of said board walk; that Anderson was almost instantly killed, receiving a fracture at the base of the skull behind and below the right ear; that the wound was apparently inflicted by a blow from a sharp corner of some part of one of the cars of the train. Kilroy testified, substantially, that he saw Anderson just before he was struck; that he was kneeling on said board walk, pushing wires down to Kilroy; that he was on one knee leaning over towards said No. 3 track; that he first saw the train approaching from the west when it was about abreast of said interlocking shanty, and that then Anderson was kneeling; that “then he raised;” that Kilroy was facing east as the train passed and did not see what part of the train struck Anderson and that the train was running “rapidly.” Anderson had been in the employ of the railroad company for about two years previous to his death as a repair man on wires and telephones, and later as a foreman of wiremen, and his duties during all of this period called him to various points along the line. He, as an electrician, had nothing to do with the running of the trains. At the time of the accident his health was excellent. He had been working at said signal or target for about half an hour before he was killed, and trains had been passing east on said track No. 3 every minute or so during that period. The company had no rule providing for the safety of or providing for the warning of men working on a track. Eule No. 180 of the defendant was offered in evidence as follows: “A succession of short blasts of the whistle is an alarm for persons on the track, and calls attention of the trainmen to danger ahead.” It was admitted that the motorman, Thompson, blew no whistle, nor gave any warning, as he approached said signal or target, and that there was no flag on the track to call the attention of the motorman to the fact that anyone was working on the elevated structure at that point.

It is contended by counsel for plaintiff that the judgment of the trial court should be reversed and a re-trial had because the court erred (1) in refusing to grant a new trial on the ground that the verdict is against the weight of the evidence, (2) in submitting to the jury by an instruction the question whether or not the deceased, Anderson, and the motorman, Thompson, were fellow servants, instead of instructing the jury that such relations did not exist, (3) in refusing to admit certain evidence of the good habits of the deceased, (4) in refusing to admit certain evidence of exclamations made by an alleged eye-witness at the time of the accident, (5) in refusing to admit certain evidence that there was no provision in the company’s rules for warning flags for electricians working on the track or elevated structure, (6) in refusing to admit certain evidence as to the rate of speed of the train, (7) in refusing to admit certain evidence as to the dangerous position in which the deceased was just prior to the accident, (8) in admitting certain evidence as to noise made by a train passing over the interlocking switches, (9) in admitting certain evidence as to the general construction of cars similar to those of the train run by Thompson at the time and place of the accident, (10) in giving certain instructions offered by the defendant and in refusing certain instructions offered by plaintiff, and (11) in refusing to set aside the verdict on the ground of alleged newly discovered evidence.

No good purpose, it seems to us, will be served in discussing all of the above points made by counsel for plaintiff. It is sufficient to say that after careful examination we have concluded that in none of the above particulars was prejudicial error committed by the trial court.

As to the objection that the verdict is against the weight of the.evidence, it was for the jury to say, under all the evidence, whether the defendant was guilty of negligence as charged, and whether the deceased was exercising due care for his own safety at the time of the accident, and their verdict was for the defendant on these issues, and in the two former trials, on the same issues, the jury on each occasion disagreed. The evidence tends to show that the deceased was not working on the track but on said board walk north of the track, where there was ample room for him to avoid being struck by a passing train; that he had thus been working for about half an hour, during which time many trains had passed him at frequent intervals, and he must have known that other trains would at short intervals also pass him, and that during said half hour he had been safely doing the same kind of wosk at which he was engaged when struck by some part of the train driven by Thompson. It cannot, therefore, be said the verdict is manifestly against the weight of the evidence.

Nor dq we think that the trial court erred in giving an instruction to the. jury containing, as we believe, a substantially correct statement of the law concerning fellow-servants, instead of instructing them, as counsel contends should have been done, that as between the deceased and the motorman, Thompson, the relation of fellow-servant did not exist. “The question whether servants of a common master are fellow-servants within the meaning of the law is usually a question of fact. If, however, the facts are not in dispute and all reasonable men would readily agree as to the conclusions which should be drawn from the admitted facts, the question whether the relation of fellow-servants exists in a given case becomes a question of law.” Linquist v. Hodges, 248 Ill. 491, 501. Under the evidence in this case we cannot say that “all reasonable men would readily agree” as to the relationship existing between the deceased and the motorman, Thompson, at the time of the accident. Furthermore, the question as to whether or not the deceased and Thompson were fellow-servants was one of the issues presented by the pleadings, and in such case it is not reversible error to instruct the jury upon the law of fellow-servants. St. Louis A. & T. H. R. R. Co. v. Eggmann, 60 Ill. App. 291; 161 Ill. 155, 160.

Complaint is made that the court refused to allow certain witnesses to answer certain questions relative to the good habits of the deceased. We understand it to be the law that, where there are no eye-witnesses to an accident resulting in death, it is proper to introduce testimony as to the habits of the deceased as a careful and sober man as tending to establish that the deceased exercised ordinary care on the occasion under investigation. Illinois Central R. R. Co. v. Nowicki, 148 Ill. 29; Dallemand v. Saalfeldt, 175 Ill. 310, 315; Illinois Central R. R. Co. v. Prickett, 210 Ill. 140; Collison v. Illinois Central R. R. Co., 239 Ill. 532; Stollery v. Cicero etc. Ry. Co., 243 Ill. 290. We do not think the circumstances of this case are such as to render the introduction of such testimony either necessary or proper under the rule as enunciated in the above cited cases. While seemingly no one saw what Anderson was doing at the instant he was struck or what struck him, he was observed by several witnesses immediately before and immediately after he was struck.

For the reasons indicated the judgment of the Superior Court is affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 16,517.
    1. Master and servant—when question of assumed risk one of fact. Held, under the evidence, that the question as to whether the plaintiff’s intestate, a car repairer, assumed the risk of being struck by a train as one of the ordinary risks incident to his employment, was a question of fact to be determined by the jury.
    2. Contributory negligence—car repairer struck by train. Held, under the evidence, that it was a question of fact for the jury to decide as to whether the plaintiff’s intestate, a car repairer, was guilty of contributory negligence in not being constantly on the lookout for approaching trains.
    Action in case. Appeal from the Superior Qourt of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.

      Certiorari denied by Supreme Court (Making opinion final).
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn, Edward W. Everett and J. Sidney Condit, of counsel.
    R. Wilson More and Frank L. Childs, for appellee; Ode L. Rankin, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action for damages for personal injuries, resulting in death, brought in the Superior Court of Cook county, by John F. Devine, administrator of the estate of Leonardo Storto, deceased, appellee, against Chicago & Alton Railroad Company, a corporation, appellant and hereinafter referred to as defendant. The jury returned a verdict for $3000 against defendant, and the judgment followed, from which judgment this appeal was taken. The accident occurred on the morning of February 4, 1908, and was caused by deceased being struck, run over and fatally injured by an engine of the defendant while deceased was working as a track repairer on the tracks of defendant.

The declaration consisted of three counts. The first count charged that while the deceased was repairing the tracks of the defendant, by the direction of defendant’s foreman, defendant negligently drove its engine and train over deceased and negligently failed to blow a whistle, ring a bell or give any warning of the approach of said engine and train. The second count charged that said engine was running in a backward direction, that it was defendant’s duty to have someone stationed on the back end of said engine or some place on said engine to keep a lookout for persons who might be lawfully upon said track and to give notice, by means of a bell, whistle or other means of warning, of the approach of said engine, and that defendant negligently failed to have any guard upon said engine and failed to give any such warning. The third count charged that, while deceased was working on said track and required to be in a stooping position and close to the ground, defendant negligently failed to keep a watch out for the approach Of trains, knowing the dangerous condition in which the deceased then was, and failed to give any warning by means of a bell, whistle or other means, of the approach of said engine, coming in a backward direction, and in the opposite direction from which deceased was facing.

The deceased was forty-five years of age and had worked for defendant for four years prior to the accident, doing the same kind of work and in the same neighborhood. He was struck by defendant’s engine while working at the northeast end of defendant’s bridge over the south branch of the Chicago Eiver, known as the “Bridgeport” bridge. The tracks crossing said bridge run northeast and southwest, are elevated twenty feet high, and from the bridge toward the northeast run straight. Many trains cross the bridge each day. Sometimes trains pass every few minutes, and sometimes “after a long time.” On the morning of the accident the deceased, his cousin Joseph Storto, G-eorge Diguardia and Salterelli, the foreman, started from the Halsted Street yards of defendant on a handcar and went to their work. Diguardia commenced work about a block and one-half northeast of the bridge at tearing up boards with a pick, and the foreman put deceased and Joseph Storto at the work of tightening bolts on the south bound track immediately northeast of the bridge, which track is the northerly track of the two tracks crossing said bridge. The foreman told them to look out for trains, saying that he would be far away from them and could not “holler” to them, and he then went to work about 500 feet northeast of where they were. The deceased and his cousin were engaged in said work of tightening, bolts at said place for about half an hour before the accident, and at the time of the accident had their faces toward the bridge. One or the other of them would occasionally,—every “two or three minutes,”—look up the track to the northeast to see if a train was approaching, but the testimony tends to show that for “two or three minutes ’ ’ immediately prior to the accident neither of them had looked in that direction, and that there was nothing to prevent them seeing an approaching train three blocks away. The train, consisting of a switch engine (with its tender in front) and of eight or nine coaches, approached said bridge from the northeast on said south bound track. Before crossing the bridge the train stopped for a short period of time at a point about 700 feet northeast of said bridge, and upon a signal being given by a switch-tender for the train to move, the engineer gave “two short blasts, not very loud” of his whistle, as an answer to said signal of the switch-tender, and started the train. The engineer testified that he did not see the two men working at the end of the bridge until he reached the place, that the engine was backing, that he was on the right-hand side of the engine, which was between the double tracks, that in looking out of the cab window and around the end of the tender he could see both rails of both tracks about 150 feet from the front end of said tender, and that the fireman of the engine, while the engine was backing towards the bridge was engaged in the work of “putting in fire.” The engineer further testified that he started the automatic bell ringer on the engine about 600 feet northeast of said bridge, that the bell on the engine rang from then on to the bridge and that the train was moving slowly; and he is corroborated by said fireman. Diguardia testified that he did not hear the bell on the engine ringing when the engine passed him, nor did he hear the bell ring nor the whistle sound subsequently. Salterelli, the foreman, testified that the bell was not ringing when the engine passed him, that he could not have heard the bell if it had rung during any of the period while the train was running between where he was and the bridge, and that he did not hear any whistle sounded from the engine from the time the answering signal to the switch-tender was given until the engine reached the bridge The testimony therefore as to whether or not any warning was given to deceased of the approach of the train after it left said point about 700 feet northeast of said bridge, is conflicting, Joseph Storto, who was working alongside of deceased, testified that when he first saw the train it was about two and one-half feet from him, that he did not hear any bell, or warning of any kind of its approach, that he jumped out of the way of the train, that the engine struck the deceased and moved him about seventy feet from the place where they were working before the train stopped, and that the engineer took the deceased out from underneath the engine and carried him over to a nearby shed, where he soon died. The testimony is also conflicting as to whether or not it was the custom of engineers of defendant to ring the bells of engines approaching said bridge from the northeast when about to cross over the same. Furthermore, the evidence in this case raises the question, proper we think for the consideration of the jury in view of the particular work in which deceased and his co-worker were engaged at the time of the accident and their close proximity to said bridge, and in view of the open spaces between the stringers of the bridge, and in view of the possibility of the bridge being moved, as to whether or not, in the exercise of due care for their own safety, it was not necessary for the proper execution o.f their work for deceased and his co-worker both to be facing towards the bridge at and immediately prior to the time of the accident.

In urging this court to reverse the judgment of the trial court, it is first contended by counsel for defendant that the deceased assumed the risk of being struck by the train, as one of the ordinary risks incident to his employment as a track repairer. After a careful consideration of the evidence, and of many authorities cited by the respective counsel, we are of the opinion that this was a proper question for the jury to decide, under all the facts and circumstances in evidence.

It is secondly contended by counsel for defendant that the deceased was injured solely by bis contributory negligence and his failure to exercise due care for his own safety, in not being constantly on the lookout for trains approaching said bridge from the northeast on said south bound track. We cannot agree with this contention, and are of the opinion that, under all the facts and circumstances of the case, this question was for the jury to pass upon. “The question of contributory negligence only becomes a question of law when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was such contributory negligence.” Dukemann v. Cleveland, etc. Ry. Co., 237 Ill. 104, 106; Chicago etc. Ry. Co. v. Kane, 70 Ill. App. 676, 679; Indiana, etc. R. R. Co. v. Otstot, 212 Ill. 429, 433. As it is said in Thompson on Negligence, section 1756:

“The position of track-walkers, track-repairers and especially that of car-repairers is materially different, in respect of the question of their contributory negligence, from that of ordinary travellers at highway crossings, and still more so from that of trespassers. They are not only lawfully upon the railway track and hence in a position of danger, but they are there under contract with the railway company for the performance of certain duties which require, to a greater or less extent, the exercise of their faculties, in the performance of which their faculties may become so ab- • sorbed as not to enable them to take the same care for their safety which might reasonably be expected from travellers at crossings and from intruders upon railway tracks or in railway yards. These considerations impose upon the railway company, with peculiar force, the duty of giving them warning upon the approach of a train or engine, by the use of audible signals; and by checking or stopping the train or engine in time to avoid injuring them, if the engineer perceives that, for any reason, they are not paying attention to those signals. As a general rule, it is not contributory negligence, as matter of law, for a person so employed not to be on a constant lookout for approaching trains.”

The judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice McSurely, having tried the case in the court below, took no part in this decision.


text:
    Penn-American Plate Glass Co., Plaintiff in Error, v. John B. Hawes and John M. Dodd, Defendants in Error.
    Gen. No. 16,533.
    1. Contracts—when parol evidence competent to supplement writings. Where letters are not in themselves so complete as to constitute a complete written contract parol evidence is competent, to supplement them. In this case, held, that it was competent to show that a sale was made by sample.
    2. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Superior Court of Cook county; the' Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.
    Daniel W. Scanlon and John W. Lovett, for plaintiff in error; Herman P. Haase, of counsel.
    Defrees, Buckingham, Ritter & Campbell, for defendants in error; Don K. Jones, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

The Penn-American Plate Glass Co., a corporation, plaintiff in error and hereinafter called plaintiff, brought suit in the Superior Court of Cook county to recover from John B. Hawes and John M. Dodd, co-partners, doing business as Hawes & Dodd, defendants in error and hereinafter called defendants, the sum of $475 for certain glass, called “novus” glass. Plaintiff’s declaration consisted of the common counts, to which defendants pleaded the general issue. Subsequently defendants filed a plea of set-off, from the bill of particulars of which it appeared that defendants claimed damages in the total sum of $121.96 for time, material and expenses in setting certain other “novus” glass, ordered by defendants of plaintiff, in the residence of one Joseph Schaffner, Chicago, which glass proved defective and was rejected, and for time, material and expenses in connection with the glass, for which plaintiff brought this suit, delivered to the J. I. Case Manufacturing Co.., at Racine, Wisconsin, and which was also rejected as being defective. The cause was submitted to the court for trial without a jury, and after a full hearing the court found the issues for the defendants as to plaintiff’s claim, and as to defendants’ claim of set-off found the issues for the defendants and assessed defendants’ damages at the sum of $83.31. Judgment was entered on the finding, to reverse which this writ of error was sued out.

It appears from the evidence that plaintiff was engaged in the manufacture of glass at Alexandria, Indiana, with branch office at Pittsburg, Pennsylvania, and that defendants were glass, tile and mantel contractors in Chicago; that defendants had contracted to finish a toilet room in the office of said Case Company and had ordered the glass in controversy from plaintiff for installation in that room; that there was no dispute as to the quantity of the glass delivered nor as to the price to be paid therefor; that plaintiff was desirous of having defendants use “novus” glass in their future contracts with their customers, and to that end a representative of plaintiff gave defendants a sample of said glass to put in defendants’ show room, where the same might be seen by said customers; that this sample was submitted to the architect of said Case Company and he O. K.’d and initialed it, and that when the glass was subsequently delivered at the Case Company’s plant it was examined by the architect and rejected by him because the glass was not of uniform color and was otherwise defective.

In urging this court to reverse the judgment, counsel for plaintiff contend that two letters, which were introduced in evidence, one dated January 6, 1905, from the plaintiff to defendants, and one dated January 7, 1905, from defendants to plaintiff in answer thereto, constitute the contract in reference to the glass in question; that nothing in said letters reveals the fact that a sample was used in making the sale, and that therefore parol evidence was inadmissible to show that the sale was in fact made by sample. We cannot agree with this contention. We do not think said letters are so complete in themselves as to constitute a complete written contract within the rule as to parol testimony. It does not even appear from the letters what the subject-matter of the contract was. No mention is made of “novus” glass. Furthermore, the subsequent correspondence between the parties discloses the fact that plaintiff knew that a sample had been submitted to said architect and that he in turn had submitted it to the officials of the Case Company. We think the court did not.err in admitting the verbal testimony as to the sale being made by sample. As is said in Stoops v. Smith, 100 Mass. 63, 65:

“The principle of law is clear and well settled, that the obligation of a written contract cannot be abridged or modified by or made conditional upon another preceding or contemporaneous parol agreement, not referred to in the writing itself. * * * But it is equally well settled that, for the purpose of applying the terms of the written contract to the subject matter, and removing or explaining any uncertainty or ambiguity which arises from such application, parol testimony is admissible, and has a legitimate office. For this purpose, all the facts and circumstances of the transaction out of which the contract arose, including the situation and relations of the parties, may be shown. * * * The subject matter of the contract may be identified by proof of what was before the parties, by sample or otherwise, at the time of the negotiation.”

“A written instrument, to be a contract in writing, must set forth the undertakings of the parties to it so plainly as to require neither parol testimony nor the promises or duties which the law would imply from the facts stated, to ascertain the extent and force of the contract.” Van Kirk v. Scott, 54 Ill. App. 681, 685; Illinois Central R. R. Co. v. Miller, 32 Ill. App. 259.

In Fuchs & Lang Co. v. Kittredge & Co., 242 Ill. 88, 94, it is said:

“A separate parol agreement as to any matter not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may be shown, where it appears that the written instrument was not intended to be a complete and final statement of the whole transaction between the parties. * * * Whether the letter in question was intended by the parties as a complete and final statement of the whole agreement between them was a question to be determined by the court from the circumstances of the case.”

It is further contended by counsel for plaintiff that the finding of the trial court is manifestly against the weight of the evidence, in that the evidence shows that the glass delivered to defendants was good, merchantable “novus” glass. It will serve no good purpose for us here to mention the conflicting testimony on this question. Suffice it to say that we are of the opinion that the finding of the court was not against the manifest weight of the evidence.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    Hulda Rittfeldt, Appellant, v. Carl O. Young, Appellee.
    Gen. No. 16,455.
    1. Verdicts—when not set aside as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Instructions—when refusal as to punitive damages will not reverse. Notwithstanding an instruction on the subject of the allowance of punitive damages is improperly refused, the error will be deemed harmless where the verdict was one of not guilty.
    3. Instructions—when inaeeuracies will not reverse. Notwithstanding instructions may not be strictly accurate a reversal will not be awarded if it is improbable that the jury could have been misled.
    Appeal from "the Superior Court of Cook county; the Hon. Robert W. Whisht, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.
    Joseph G. Sheldon, for appellant.
    Johnson & Molthrop, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

On the third trial of this ease—the first two trials having resulted in disagreements—the jury found the defendant, a physician, not guilty of an alleged rape on the plaintiff while under his professional care. A motion for a new trial was heard and overruled and judgment was entered upon the verdict.

The only errors assigned which are discussed in the brief of appellant’s counsel are that the verdict is contrary to the evidence, that the trial court erred in sundry rulings on questions of evidence, and that the court erred in giving two instructions and refusing another.

As to the first of the alleged errors, it would be a disagreeable and unprofitable task to recite here, in unsavory detail, the facts and circumstances in evidence. The plaintiff was twenty-one years of age at the time of the occurrence in question. Her claim that she was criminally assaulted by the defendant is positively denied by him and he proved a strong alibi. Her admissions that she made no resistance and no outcry at the time, and no complaint, for months afterwards, 'tend to discredit her testimony. Her case rests entirely on her own evidence and such corroboration as may be implied from the facts that nearly eight months after the alleged rape the defendant, at the demand of the plaintiff’s father, paid her $200 in money and gave her a receipt or contract signed by the superintendent of a “maternity hospital,” in which the hospital agreed, in consideration of $300 paid to it, to care for her during her confinement, and that she in return signed a receipt for $500, “as a release in full for alleged claims I may have against him” (defendant) “as alleged father of my unborn child.” The defendant claimed that this money was extorted from him by threats of publication and that, protesting his innocence, he paid the money only “to avoid scandal and notoriety.” In this state of the record, we cannot say that the verdict was contrary to the evidence.

The jury having found the defendant not guilty, the refusal of the court to give the offered instruction concerning punitive damages became a matter of no consequence, and if error, was harmless. As to the two given instructions complained of, while they are not strictly accurate, we think it is improbable that the jury could have been misled by them to the injury of appellant. Nor do we find any reversible error in the rulings of the trial court on the questions of evidence pointed out in appellant’s brief. On the whole record we think appellant has had a fair and full opportunity of presenting her case, and that substantial justice has been done.

The judgment will be affirmed.

Affirmed.


text:
    Craig A. Hood, Appellee, v. Mary Gehrs, Appellant.
    Gen. No. 16,468.

      Judgment—when counter affidavits upon motion to set aside improper. Upon an application to set aside a judgment entered by confession it is improper for the court to hear and consider counter affidavits as to the merits of the defense sought to be interposed.
    Judgment by confession. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed May 9, 1912.
    George A. Brinkman, for appellant.
    Simon T. Sutton, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Eight days after the entry of a judgment by confession in the court below for $226.22 upon a judgment note signed by appellant, she appeared and made a motion to vacate the judgment and for leave to plead to the merits. In support of her motion she filed several affidavits stating in substance that the note was given by her to the appellee, a practicing attorney at law, in consideration of services to be by him performed as her attorney in conducting a divorce suit; that appellee filed the bill for divorce, procured a temporary injunction and served several notices, apparently upon tenants of property alleged to be owned by appellant which she had transferred to her husband; that appellee collected $73 in addition to the judgment note, out of which he paid the costs of the divorce proceeding and kept the remainder; that two or three weeks later appellant and her husband “became reconciled” and the divorce suit was dismissed; that the money collected by appellee was sufficient to pay him for all the services he had rendered; that appellant demanded the return of the note but appellee refused to surrender it unless paid $75 in addition to what he had thus collected.

Upon the hearing of this motion the court, over the objection of appellant, permitted counter-affidavits as to the merits to be filed and read; and thereupon, after appellee, at the suggestion of the court, had remitted $86.22, leaving the amount of the judgment $140, the court denied appellant’s motion for leave to plead to the merits, from which action of the court the appellant appeals.

In Farwell v. Huston, 151 Ill. 239, 246, it is said:

“This court has held, in a number of eases, that a court of law exercises an equitable jurisdiction over a judgment by confession; that if there is an absence of authority to confess, the debtor will not be forced into a court óf chancery to obtain relief, but may move to set aside the judgment before the court of law which rendered it; and that such court of law may open the judgment and permit the debtor to present his defense to the claim, if he have any, but will, however, protect the creditor by permitting the judgment to stand as security. Yet, such relief will not be granted if it appears that the debtor owes the amount of the judgment, and has no defense, either legal or equitable, to the debt for which the judgment is rendered.”

In Mumford v. Tolman, 157 Ill. 258, 265, it is said:

“The question, on motion to vacate a judgment entered by confession, is not whether the judgment shall be set aside for errors of law, but whether there are equitable reasons why it should be opened up to let in a defense. Knox v. Winsted Savings Bank, 57 Ill. 330; Hansen v. Schlesinger, 125 Id. 230. ’ ’

We think the affidavits filed by appellant in support of the motion for leave to plead to the merits, when considered alone, were sufficient prima facie to show that appellant has a meritorious defense to the judgment note. The question is therefore presented, whether the trial court erred in considering and acting upon the counter-affidavits filed by appellee as to the merits, and in deciding the merits of the case upon a consideration of such affidavits. No case has been cited by counsel, and we have been unable to find one, in which our Supreme Court has passed squarely upon the question here involved in the case of a judgment entered by confession. The same question, however, has been raised and decided in cases where a motion to set aside a default was made. In Mendell v. Kimball, 85 Ill. 582, in which a motion of that character was presented, the court said:

“The record in this case shows that counter-affidavits were read by plaintiffs on the hearing of the motion to set aside this default. This is a vicious practice. Courts cannot do. justice to parties in thus trying the merits upon affidavits, when the affiants are not subject to cross-examination. Such motions should be determined upon ex parte affidavits in support of the motion, and they should be strictly scrutinized.”

This case was followed with approval in Gilchrist Transportation Company v. Northern Grain Company, 204 Ill. 510, in which the court uses the following language, (p. 512):

“One of the assignments of error is that the court erred in permitting the plaintiff to file, and read on the hearing of the motion, the counter-affidavits presented in its behalf. So far as these counter-affidavits related to the merits of the controversy the court erred in hearing and considering them. ’ ’

The court then holds that counter-affidavits are permissible in such cases to contradict the defendant’s affidavits as to matters purporting to show a legal excuse for not appearing and making defense before the default, and concludes as follows:

“It is therefore necessary for the defendant to show a defense prima facie on the merits, but if the affidavits on the part of the defendant show a meritorious defense, the court is not authorized to try the merits of the case on affidavits. Under our system such action would be an encroachment upon right to trial by jury. ’ ’

The Gilchrist case, supra, has been cited as authority in the following cases in the Appellate Court: American Mail Order Co. v. Marsh, 118 Ill. App. 248, 250; Mutual Insurance Co. v. Carnahan, 122 Ill. App. 540, 542; Vennum v. Carr, 130 Ill. App. 309, 310; Farrior v. Mickle, 133 Ill. App. 444, 448; Finklestein v. Schilling, 135 Ill. App. 543, 547; Birtman v. Thompson, 136 Ill. App. 621, 627.

In Vennum v. Carr, supra, the Appellate Court of the Third District intimated, but did not expressly decide, that the same rule should be applied to motions to set aside judgments by confession; in Mastin v. Richardson, 134 Ill. App. 252, 256, the same court went further and applied the intimation contained in Vennum v. Carr, supra, to such a motion; in Murphy v. Schoch, 135 Ill. App. 550, the Appellate Court of the Second District applied the same rule to a like motion, and in Birtman Co. v. Thompson, 136 Ill. App. 621, 627, the Branch Appellate Court of the First District reached the same conclusion on a motion to vacate a judgment by confession upon a warrant of attorney contained in a lease.

As opposed to these authorities the only case cited by appellee’s counsel is the case of Truby v. Case, 41 Ill. App. 153, in which the Appellate Court of the First District apparently holds to the contrary. An examination of that opinion, however, does not show that the counter-affidavits there referred to contradicted the showing of the defendant’s affidavits as to a meritorious defense; and as above shown, counter-affidavits are proper to be considered as to matters not going to the merits.

It is evident that the trial court considered the merits of this case upon affidavits filed by both parties, for it required a remittitur to be entered and then denied the motion for leave to plead to the merits. This was error.

The judgment will, therefore, be reversed and remanded with directions to the Circuit Court to grant the motion of the defendant and to permit the defendant to plead to the merits, the judgment, however, to stand as security until the case is tried.

Reversed and remanded with directions.