author: Me. Justice Willis

text:
    Mathias Grayhek, Administrator, Appellee, v. Ludwig Stern et al., Appellants.
    Gen. No. 5194.
    1. Negligence—violation of ordinance. The violation of a municipal ordinance is prima facie proof of negligence.
    2. Contributory negligence—failure to keep watch of children. The law does not require persons in humble station in life to keep a constant watch over their children.
    3.. Instructions—particular phrases in, where death resulted from wrongful act, approved. In such an instruction the phrases “pecuniary injuries” and “pecuniary benefit,” held, not erroneous as wider in their scope than the phrase “injuries to maintenance and support,” charged in the declaration.
    4. Verdicts—when not excessive. Held, in an action for death caused by wrongful act that a verdict for $3,000 was not excessive where it appeared that the deceased (a girl) was at the time of . her death under five years.
    5. Verdicts—when not disturbed as excessive. Verdicts in actions brought for the death of a child through wrongful act of the defendant will not be set aside as excessive unless it is clear that the same are the result of passion, sympathy or prejudice. No positive rule can be laid down by which the damages to be awarded can be estimated. In such a case the amount must largely be left to the judgment of the jury and such is the evident intent of the statute.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. ' Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Opinion modified and refiled April 13, 1910;
    rehearing denied. Certiorari denied by Supreme Court (making opinion final).
    Coll McNaughton, for appellant.
    John W. D’Abcy, for appellee.
   Me. Justice Willis

delivered the opinion of the court.

This was an action on the case brought by Mathias Grayhek, administrator of the estate of Stephania Bercan, deceased, against Lndwig Stern and Maurice L. Stern, appellants, to recover damages for the benefit of the next of kin of deceased, who died from burns received from a fire alleged to have been negligently kindled and carelessly left unguarded by appellants.

; The declaration contained three counts. The first and second counts were substantially alike, and averred that appellants negligently set fire to a quantity of inflammable material at the intersection of Will and Indiana streets in the city of Joliet, by reason whereof certain children of tender years were attracted thereto; that they carelessly left said fire unguarded and that appellee’s intestate, a child of tender years, being attracted to said fire, thereby had her clothing ignited and was so burned that she died. The third count was like the first and second except that it contained an averment that the fire was kindled on the street in violation of an ordinance prohibiting the kindling of a fire on a public street. Bach count averred that the deceased left her surviving a father, mother, brothers and sister, her heirs, who were thereby deprived of their maintenance and support. A plea of not guilty was interposed and appellee obtained a verdict and judgment for $3,000 and the defendants below prosecute this appeal.

The evidence shows that appellants had, for a number of years, operated a store on Chicago street in the city of Joliet; that the building they occupied was removed from its original location to Indiana street preparatory to constructing a new building on the old site; and that appellants were conducting their business therein while the new building was being con-1 structed. These premises were removed from the general business district of the city of Jdiet six or eight blocks, and were in the heart of the largest Austrian settlement in the city. There were in the same neighborhood a meat market, grocery store and several saloons. The rest of the property was either residence property or vacant. On the morning of September 28, 1906, a quantity of waste paper, sweepings from the store, and other refuse material was piled on Will street, a short distance south of the building, and set on fire by appellants. For a time one of appellants was in charge of the fire, and they contend that it was extinguished as early as ten o’clock. At about eleven o’clock 'Stephania Bercan, appellee’s intestate, a child aged four years and nine months, was seen running from the direction of the fire towards her home with her clothes on fire. She was taken to a hospital and died in a few hours from the effects of the burns.

That appellants built the fire in the street as charged in the declaration is not denied, but that it was left unguarded is disputed. The kindling of the fire was a violation of the ordinance as charged in the third count. “The violation of a statute is prima facie evidence of negligence. This is also true as to the violation of a city ordinance, where the ordinance is such an one as the city is authorized by its charter or by statute to make.” U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531. “Its violation constitutes a prima facie case of negligence, if such violation caused the injury, which resulted in the death of the deceased.” U. S. Brewing Co. v. Stoltenberg, supra; Channon Co. v. Hahn, 189 Ill. 28; True & True v. Woda, 201 Ill. 315.

It is not disputed that the fire attracted the attention of and drew to its locality appellee’s intestate and a girl a little older. One witness testified that the child went with her as far as the grocery store which was close to appellants’ building; that one of appellants was burning boxes when she went in; that when she came out the fire was burning a little but appellant was not there; that she went from the grocery store to the butcher shop and that when she came out about ten minutes after she went into the grocery store she saw the child on fire running from the place of the fire straight home. Another witness testified that he saw the deceased squat by the fire and stir and scatter its remains with a stick, and saw the back of her dress catch fire from a lighted piece of paper. There was proof from a number of witnesses that she was seen running from the direction of the fire with her clothes aflame. It is not denied that she died from the burns she received, and there was no proof that there was any other fire in that vicinity or means by which her clothing could have become ignited. There was an effort made to discredit the evidence of appellee’s witness who testified that he saw the child’s clothing'take fire, by attempting to show that he had made statements at another time at variance with his evidence. Appellants’ proof tended to show that the fire was extinguished before the child’s clothes were ignited, but in the. absence of evidence that there was any other fire in that locality that morning, and from the evidence that the child was seen going towards the place where the fire was, and seen fleeing from it with her clothes on fire, it is clear to us that the jury were justified in finding from the direct evidence that the child’s clothing was ignited from the fire kindled by appellants. Moreover, had there been no eye witness to the accident, or if the jury discredited such witness, we think, under the authority of U. S. Brewing Co. v, Stoltenberg, supra, that the circumstantial evidence would sustain the verdict.

The second instruction given for appellee told the jury that if they found the defendant guilty, “then the plaintiff * * * is entitled to recover such sum as * * * will compensate the heirs at law * # * for the pecuniary injuries.” The third instruction given for appellee concluded as follows: “In estimating the amount of damages to be awarded to the plaintiff, as administrator, you may consider the pecuniary benefit which the next of kin might have derived from the deceased at any age of her life had she not come to her death as disclosed by the evidence, and the jury are not confined to the pecuniary value of her services to the next of kin until she arrived at the age of eighteen years.” Appellants argue that these instructions gave the jury too much latitude in measuring appellee’s damages, on the ground that the terms “pecuniary injuries” or “pecuniary benefit” were wider in their scope or meaning than “injuries to maintenance and support” as charged in the declaration. “Pecuniary” means “monetary; financial,” and the words “pecuniary injuries” are found in Hurd’s Revised Statutes, 1908, section 2, chapter 70, entitled “Injuries. ’ ’ In our opinion the jury could not have understood either from the declaration, if they saw it, of which there is no proof, or from the instructions, that a recovery for other than the financial loss which the family sustained by the death of this girl, was referred to. An instruction similar to appellee’s third was approved in Baltimore & Ohio Southwestern Railway Company v. Then, 159 Ill. 535; North Chicago St. Railroad Company v. Johnson, 205 Ill. 32; U. S. Brewing Co. v. Stoltenberg, supra.

Appellants urge that the parents of the child were negligent in permitting her to be upon the street unattended. There is no proof that either her father or mother knew there was any fire in the neighborhood. The father was in the house and the child had asked to go to a neighbor’s. The mother was attending to her household duties in the rear of the home and the proof shows that the child went to the neighbor’s and returned home after a time with some flowers, then went out again, and accompanied a neighbor as far as the grocery store, which was close to the building occupied by appellants. There is no evidence to support the contention that the parents were guilty of contributory negligence. They were of humble station in life, and the law does not require that such persons shall keep a constant watch over their children. City of Chicago v. Hesing, 83 Ill. 204; I. C. R. R. Co. v. Warriner, 132 Ill. App. 301, and cases there cited. The jury were, however, instructed at the request of the defendant that if the jurors believed that the negligence of the parents contributed to the death of the child then there could be no recovery and it was not error to refuse other instructions asked on that proposition.

It is contended that the verdict is excessive and is the result of prejudice or sympathy; also that owing to the humble station in life of the parents and probable opportunities of the deceased had she lived, it is doubtful if she would have been self-supporting. The deceased was strong, active and healthy. The evidence did not indicate that she was predisposed to disease or' infirmity of any kind, nor was there anything to warrant the conclusion that she would not have had the average earning capacity or have lived to an average age. The services which the child might have rendered her next of kin, could not possibly be known, and depended on many unforeseen circumstances such as the continued life of the parties, their condition as to health, etc. No positive rule can be laid down by which damages can be estimated in a case like this, and the courts have differed greatly upon the subject. The amount must necessarily be left largely to the judgment of the jury and such is the evident intention of the statute. Rev. Stat., chap. 70, sec. 2. A number of cases are cited on this point by both parties, none of which are controlling because they differ in facts and circumstances from the case at bar. In all, however, is seen the tendency and intention of the courts to uphold the verdict of the jury unless it is clearly the result of passion, sympathy or prejudice. We cannot say that the verdict here is tainted by any of these elements, and finding no reversible error in the record, the judgment is affirmed.

Affirmed.

Me. Peesiding Justice Dibell took no part.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Kittie A. Shaw, Administratrix, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5201.
    1. Master and servant—when moving cause of injury need not "be shown. If the preponderance of the evidence supports the finding of the court that a brick fell from the charging floor (dynamite being used) by reason of the negligence of the servant or servants of the máster, not fellow-servants of the servant injured, it is not essential to a right of recovery that the servant or his personal representative should show the cause or force which put such brick in motion.
    2. Pleading—effect of verdict upon defective declaration. If the declaration states a cause of action though defectively in some particulars and its sufficiency was not questioned by demurrer, the defects are cured by verdict.
    3. Verdicts-—when not excessive. A verdict of $5,000 rendered in an action for death caused by wrongful act is not excessive where it appears that the deceased at the time of his death was a strong healthy man of more than ordinary intelligence and earning capacity, working steadily, living with and supporting his wife and five minor children, all of whom he left surviving.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Gabnsey & Wood and William Beye, for appellant; Knapp & Campbell, of counsel.
    Donahoe, McNaughton & McKeown, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action on the case "brought by Kittie A. Shaw, administratrix of the estate of Alexander Shaw, deceased, against the Illinois Steel Company to recover damages for the loss of support by the next of kin of deceased, who died from injuries sustained while removing scrap or salamander from the inside of one of the company’s cupolas in its plant at South Chicago.

The declaration contained five counts." The first count averred that the company negligently permitted a large brick to remain loose in the wall of the cupola, which fell upon the head of deceased. The second count averred that the company negligently permitted a large number of bricks of great weight át and near said cupola above where the deceased was at work and that a brick fell into said cupola on the head of the deceased. The third count averred that the company negligently caused a large brick to be thrown into the cupola; and that the brick struck the deceased. The fourth count averred that the company negligently • permitted a large brick to fall into the cupola and that it struck the deceased. The fifth count charged general negligence in the conduct and management of said cupolas; that as a consequence a large brick fell upon the head of the deceased. Each count alleged that appellee’s death resulted from the negligence charged therein, that he was then in the exercise of due care, . and that the deceased left a widow, children and grandchildren as his next of kin and only heirs at law and that by reason of his death they suffered pecuniary loss. A plea of not guilty was filed, a jury was waived and the cause was submitted to the court on the evidence taken on a former trial. The court found the company guilty and entered judgment for the administrator for $5,000. Later, a nunc pro tuno order was made granting the company leave to entér a motion in arrest of judgment, which was made and overruled. Judgment was entered on the finding and the company prosecutes this appeal.

It appears that the company, on and before September 30, 1905, was engaged in the manufacture of iron and steel products at Joliet and South Chicago, Illinois. In the South Chicago plant there were three cupolas which were furnace-like structures eight or nine feet in diameter used in the reduction of pig iron combined with coke, stone and brick. They were placed in line five feet apart, lengthwise of a building forty or' fifty feet long, north and south, and twenty or twenty-five feet wide. The building had two metallic floors, the first ten feet from the ground, called the melting or tapping floor, which was practically level with the bottom of the cupolas; the other was about fifteen feet above the tapping floor and was called the charging floor. The roof was about ten feet above this floor. About six feet above the charging floor, the cupola wall tapered into the stack which projected out of the roof. The cupolas were steel lined with wedge-shaped fire brick, of two sizes slightly rounded on the inside. The larger ones, which were about nine inches long and nine inches wide at one end and seven at the other and four and one-half inches thick, were used up to a point where the wall began to taper, and from there those of the same size, except that they were two and one-half inches thick, were used. Under each cupola were four columns about ten feet in length set in the ground. In the bottom of the cupolas were circular holes, which, when the cupolas were in operation, were filled with plates held in place by supports which ran to the ground. On the charging floor there were four openings into each cupola about four feet square called charging doors, through which the material to be reduced was placed. At the bottom of each opening was an iron sill rising from three to four inches from the floor, against which the steel buggies containing material to be reduced were run when they were dumped. The cupolas were numbered one, two and three, beginning at the north. The north cupola was about eight feet from the south side of a stairway in the northwest corner of the building, and the south cupola was about eight feet from the north side of the elevator shaft, which was in the middle of the south end of the building. The distance from the cupolas to the side walls of the building was ten feet. The process sometimes created a frozen material called scrap or salamander, which adhered to the bottom and sides of the cupola and which had to be removed. At the South Chicago plant this was done by dropping a ball weighing about three tons from the stack upon the salamander. A heavy timber was placed across the stack through two holes in the sides about two feet above the dome and a block and tackle attached thereto, and by means of this the ball was raised. At the Joliet plant, the scrap and salamander were removed by exploding small charges of dynamite, and for some time prior to the accident deceased had done this work there, and he and one Andrew Partillo, his helper, were sent to the South Chicago plant to do the same work. They removed the salamander from cupola number one and began on number two about four o’clock p. m. September 29, 1905. At that time masons were engaged in putting a new lining in cupola number one. At first the brick and mortar were handed the masons through the opening in the cupola on the tapping floor, which had been made by removing a plate. After a time it became inconvenient to pass the material through the hole at the tapping floor and it was taken on the elevator to the charging floor and wheeled past cupolas numbers three and two to the north cupola, number one, and lowered to the masons through the charging door. The deceased and his helper loosened the salamander in clearing the cupola, and it was removed by men supplied by the company. Shortly after noon on September 30, 1905, the deceased had removed all the salamander from number two except some scrap which adhered to the wall about eight feet up from the bottom and which was about three feet wide. The deceased placed one end of an eight-foot ladder on the bottom rim of the cupola opposite the scrap and rested the other end about three inches above the top of the scrap, and was standing with one foot on the ladder and the other on the top of the scrap, preparing a charge of dynamite. The warning cry of “Fire” had already been given when a brick fell and struck Mm on the head, causing him to fall off • the ladder, through the opening in the bottom of the cupola, and down the chute upon the dump twenty feet below. His death resulted a few minutes thereafter from the injuries which he thereby sustained.

Appellant contends that the evidence shows that the brick that caused the death of Shaw fell from the stack and that it was dislodged by the last shot fired previous to the accident; and that his death was the result of an assumed risk. Appellee contends that his death was caused by a blow from a brick wMch fell into the cupola from the charging floor through the negligence of servants of appellant, not fellow servants with deceased.

For appellee, Shaw’s helper, Andrew Partillo, testified that he saw the brick fall and Mt Shaw on the head; thought the brick was one of the heavy ones for fining the cupola; that the brick broke in two, one piece falling near him; that he looked for the brick on the dump, but there were so many that he could not find it; that there were bricks on the charging floor in the forenoon; that after every shot he and deceased examined the walls of the cupola and then went in and cleaned out; that they looked for loose bricks in the cupola after the last shot was fired, but did not see any; and that Shaw always looked up and around, “watching better than I did.” Appellant’s superintendent testified that he looked over the cupola after Shaw was killed, and that “you couldn’t see any place where any brick had fallen out of.”

Andrew Vodachik, a mason’s helper on the charging floor working at cupola number one, testified that he was looking through the charging door of number two and saw a brick fall from above and hit Shaw. On direct-examination he was asked the followmg questions and made the following answers:

“Q. Did you see what struck Mr. Shaw? A. Yes, sir, I see.
Q. What was it? A. A brick fell down from above.
Q. Do you know where the brick fell from? A. The brick fell from,above the timber; where the timber was placed.
Q. Did you look to see where it fell from? A. Tes, sir; I looked; I seen.
Q. Did this brick fall from the stack? A. Yes, sir.
Q. Were there any bricks between where this brick came from and the timber? A. Between the timber there was no bricks, but I seen the space from where the brick fell.
Q. Between the place where the brick fell from and the timber, were there any bricks? A. There couldn’t be any bricks because that brick fell out.
Q. When you first saw the brick how far was it from Mr. Shaw ? A. When I first saw the brick it must have been about from twelve to thirteen feet.”

In his cross-examination the following appears:

“Q. You saw the brick that struck Mr. Shaw fall all the way down, did you? A. Yes, I seen it.
Q. You saw it when it started and you saw it when it struck him? A. When it hit him I seen it.
Q. Didn’t you say you saw it all the way down? A. When it was falling I seen it. Seen it from the place.
Q. Did you see it from above? A. Yes.
Q. How tall are you? A. A little more than six.
Q. About two feet above your head you first saw this brick ? A. Yes.
Q. Did you see the brick when it came out from the hole up above? A. Yes.
. Q. You saw it coming out of the chimney stack? A. I didn’t see it when it was falling out of there. I seen it when it was flying down.”

We attach but little'weight to Vodachik’s testimony because of its uncertainty and seeming improbability. We cannot conceive of a man a little over six feet in height stooping so as to be able to see through an opening in a thick wall, which opening came only four feet above the floor on which he stood, and be able to see a brick fall from the smoke stack above him and follow it with his eye until it struck Shaw, and that too when he was not working on this cupola and had no occasion to notice what was going on there hut was engaged in an entirely different work at cupola number one. On redireet-examination he testified that he was looking in at the charging door to see if they had set the shot so he could get away. The evidence shows that at the time the brick fell, the warning had been given that a shot was to be fired, and it does not seem probable to us that he, having no business at the place, would have run the risk of remaining after that.

It was undisputed that Shaw was experienced in the use of dynamite, and there was proof that he was careful always to inspect the cupolas after a shot had been fired before he allowed his men to enter, and to look for and take down loose material; that he inspected the inside of this cupola after firing the last shot; that the last shot was fired about half an hour before the accident; and that he was placing another charge at the time of the accident. There was also proof that upon an examination of the inside of the cupola after the accident, appellant’s superintendent could find no place from which a brick had fallen; that Partillo looked after the accident and found no such place. The only proof that the brick came from the wall of the cupola is the testimony of Vodaehik which, in our opinion, is unworthy of credence. If the brick did come from the inside of the cupola it must have fallen from the charging floor as the result of the negligence of servants of appellant, not fellow-servants 'with deceased. There was proof that bricks were being wheeled on the charging floor from the elevator to cupola number one past number two and piled near cupola number one, and let down and handed to the masons relining number one; also that men were charging number three. While there was no direct proof that a brick fell into the cupola from the charging floor, the possibility of its having come from the inside of the cupola was practically eliminated by proof of the fact that, upon an examination made by appellant’s superintendent and another of its servants, no place was found after the accident from which a brick had fallen. From a careful reading of all the evidence in the case, we cannot agree with counsel for appellant that the trial court misunderstood certain of the material evidence, but on the contrary, we are of the opinion that a preponderance of the evidence supports the finding of the court that the brick fell from the charging floor by reason of the negligence of a servant or servants of appellant, not fellow-servants of deceased, and it was not indispensable to the right of recovery that appellee should have shown the cause or force which put the brick in motion. Armour v. Golkowska, 202 Ill. 144.

It is urged by appellant that the declaration does not state a cause of action in that no count charges any duty on the part of appellant to warn the deceased; and that it does not charge that appellant had knowledge of the conditions and that the deceased lacked such knowledge, and that it does not state any facts from which a duty on the part of appellant can be inferred. Appellee contends that no count of the declaration is based on a neglect of duty on the part of appellant to warn and instruct deceased, but that the negligence complained of is in failing to exercise ordinary care to provide a reasonably safe place in which to work, and argues that the words “suffered and permitted” used in the declaration, express the idea of implied knowledge, citing Illinois Steel Co. v. Ostrowski, 194 Ill. 376, in which it was held that the averments, that the defendant “allowed” the machinery in question to become old and worn out, and that it neglected to have proper inspection of it, were sufficient as showing the defects in the machinery and the knowledge of defendant of them. In our opinion the declaration states a cause of action, perhaps defectively in some particulars, but as its sufficiency was not questioned by demurrer, any defects were cured by verdict. City of East Dubuque v. Burhyte, 173 Ill. 553. There was, therefore, no error in overruling the motion in arrest of judgment.

It is claimed that the damages are excessive. The deceased was a strong, healthy man of more than ordinary intelligence and earning capacity, working steadily, living with and supporting his wife, appellee, and five minor children, all of whom he left surviving. As the damages allowed only equal fifty per cent of the amount authorized to be recovered under the law, we do not consider them excessive.

Finding no reversible error in the record, the judgment must be affirmed.

Affirmed.

Me. Peesidistg Justice Dibell took no part in the decision of this case.


text:
    John Karkowski, Appellee, v. LaSalle County Carbon Coal Company, Appellant.
    Gen. No. 5211.
    1. Mines and miners—what principal doorway requiring attends-ant within meaning of statute. Seld, that the jury in this ease was justified in finding that the doorway in question in this case was a principal doorway requiring an attendant within the meaning of the statute. The court held that the jury -in determining what was a principal doorway had a right to consider whether hauling cars passed back and forth through the doorway in question.
    2. Mines and miners—what instruction as to wilful violation not improper. Seld, that an instruction on this subject given in this case was not subject to the criticism that it told the jury as a matter of law that the doorway in question was a principal doorway within the meaning of the statute.
    3. Mines and miners—what instruction in action charging wilful violation improper. In such an action an instruction on the subject of negligence is improper.
    4. Mines and miners—what not defense to action charging wilful violation. Good faith upon the part of the mine operator with respect to the observance of the statutory requirements is not a defense to an action under the statute charging wilful violation.
    5. Instructions—when defining particular word improper. An instruction defining the word “principal” as meaning “a thing of first or prime consequence” is improper, as such definition is but one of numerous definitions given of said word in standard lexicons.
    6. Instructions—must not single out particular evidence. An instruction -is properly refused which singles out one matter for the consideration of the jury in determining a particular issue of fact.
    7. Verdicts—when not excessive. Held, that a verdict in an action for personal injuries reduced by remittitur to $10,500, was not excessive where it appeared that the plaintiff at the time of the accident was 38 years of age, weighed 155 pounds, was earning $2.50 per day, while at the time of trial, nearly a year and a half after the accident, he weighed but 155 pounds and was without earning capacity.
    Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1909,
    Affirmed on remittitur.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    MoDougall, Chapman & Bayne and Walter A. Panneck, for appellant.
    Duncan, Doyle & O ’Conor, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

John Karkowski, appellee, worked in a mine of the La Salle County Carbon Coal Company, appellant, as a mule driver. The mine was operated by means of a perpendicular shaft below the surface of the earth, and \by main entryways and passageways leading at right angles from the bottom of the shaft, and by other passageways and entryways, with rooms driven off and leading away from said main entryways to the face of the coal. On June 8, 1907, appellee was driving a mule drawing two cars of coal called a “trip,” and riding on the left hand side of the front car. When the mule came to the door in what is known as the seventh north entry off of the third west entry off of the main north entry, about 1,200 feet from the head of the entryway, through which cars loaded with coal were hauling, there was no trapper there to open the door. The mule put his head against the door to push it open, but for some reason it did not open. At this door and beyond in the direction the mule was traveling, the grade of the entry was downward, and the loaded cars pushed against the mule and he turned sideways between the door and the car on which appellee was riding and began kicking violently and appellee was thrown off the car into the space between the car and the rib of the entry. Then the door opened and the mule went ahead dragging the cars and appellee’s left leg in front of the left front wheel, which did not revolve, either because it was spragged or because it was kept from revolving by appellee’s leg. Appellee was dragged about thirty feet, when in some way he got out from in front of the wheel and the mule went on to the foot of the incline and stopped. Appellee crawled or dragged himself to that point and called for help, and was taken to his home and later to a hospital. He was so seriously injured internally, that for two weeks no attention was paid to his injured leg because his death from the internal injuries was expected. On his rallying from the internal injuries, his leg was treated. On December 21, 1907, he brought this suit against the company for the injuries so sustained, basing his right, of action on the alleged wilful omission of appellant company to comply with the requirements of clause (f) of section 19 of chapter 93, entitled “Mines and Miners”, Hurd’s E. S. 1905, which provides that “At all principal doorways, through which cars are hauled an attendant shall be employed for the purpose of opening and closing said doors when trips of cars are passing to and from the workings.” He obtained a verdict and .a judgment for $15,000, and the company prosecutes this appeal.

The main question is whether this doorway was a principal doorway within the meaning of the act, as contended by appellee, or a subordinate doorway as claimed by appellant. More witnesses testified for apt pellant that it was not a principal doorway, than testified for appellee that it was. It is apparent that appellant’s witnesses viewed the matter from the standpoint of the owner of the mine, and appellee’s from the standpoint of the miner. The theory advanced by most of the witnesses for appellant would leave in this mine only two or four principal doorways and all of these but a short distance from the shaft. We think appellant’s construction of the meaning of the statute too rigid and not at all practical, and that if it were strictly applied to this particular mine, the mine could not be operated for want of air, as one of the chief requirements of the statute is the ventilation of the mine and all parts thereof, wherein miners work. One of the purposes of the clause of the act upon which this suit is based, is to provide for the safety of the drivers of “trips” through entryways where doors are placed for the regulation of the air circulation. The doorway where appellee was injured was not necessary for the ventilation of all parts of the mine, but it was necessary for the ventilation of quite a portion of the face of the mine where men were working at the time of the accident. One witness for appellant said that leaving that door open would not prevent some of the air from passing around the face of that portion of the mine, but he admitted that not enough air would circulate there to permit that portion of the mine to be worked for any length of time. From the evidence we think this should be held a doorway necessary for the ventilation of the mine. The fact that it is only required that an attendant be kept at doorways through which ears are hauled, to open and close the doors, shows that the legislators had in mind, when enacting the statute, something concerning the hauling of cars. They may have thought that if the drivers themselves undertook to open and close the doors, they might sometimes leave them open. It is obvious that the safety of the drivers was also contemplated, and the reason for it is clear, as in some of the entryways in mines where mules are used to draw trips which pass through doorways, the space between the load and the roof, and the car and the sides of the doorways is frequently very slight. A driver could get off the front of the car and go past the mule, open the door and return to his seat without particular danger; but if he should let his loaded cars pass, then close the door and seek to regain his position on the car, he might be imperilled. Moreover, he would have no certain way of causing the mule to stop after passing through the doorway.

It is urged that this argument applied to the statute would make all doorways through which cars were hauled, principal doorways, and would not give to the word “principal” its true signification. The statute was not passed with reference to this mine alone, but to conditions in coal mines generally. Other cases show that there are, in some mines, cross doorways through which cars occasionally pass and where doors are located. It may be that such a doorway would not be regarded as a principal doorway within the meaning of the statute. But whatever may have been meant by the term “principal doorway,” certainly the doorway in a hauling way through which loaded cars pass, and the door to which must be kept closed or the workmen would be driven from a considerable portion of the face of the coal or would die there for lack of air, ought to be considered a principal doorway. The purpose of the law was to protect the miners at work and the driver while driving his trip. Whether the doorway in question was a principal doorway or a subordinate one, under the authority of Himrod Coal Co. v. Stevens, 104 Ill. App. 639, and Madison Coal Co. v. Hayes, 215 Ill. 625, was a question of fact, upon which the evidence was very conflicting, with plenty of evideuce to support the verdict of the jury, and we do not feel warranted in disturbing it. There was no trapper stationed at this door, and if this was a principal doorway then the statute was violated, unless, indeed, appellant’s position in regard to the good faith of this mine manager is tenable, which will be discussed in connection with an instruction. Assuming that that instruction was properly refused, then appellant was guilty of a wilful omission to obey this law, and by reason thereof appellee was seriously hurt and is entitled to recover.

Appellant urges that appellee’s sixth instruction required the jury to find that the doorway in question was a principal doorway. This instruction is not subject to appellant’s criticism. It required that the jury, in order to find appellant guilty, believed from the evidence that appellee was injured as alleged in the declaration, and that such injury was caused by a wilful omission of appellant to comply with the statute, but did not tell the jury that this was a principal doorway. If it were possible to place such an interpretation upon it, that was removed by instructions given for appellant which .plainly told the jury that they are to determine whether this was a principal doorway, and if it were not, appellee could not recover.

Appellant complains of the refusal of its thirty-second, thirty-third, thirty-fourth, thirty-sixth, thirty-eighth and thirty-ninth instructions.

The thirty-second instruction related to the negligence supposed to be charged in the declaration. Its refusal was proper for several reasons. First, no negligence was charged in the declaration. This is not a suit to recover damages for an injury as a result of negligence, but for a wilful violation of the statute. Second, the court gave, at the request of appellant, an instruction designated as number ten, which told the jury that even though they believed from the evidence that appellant was guilty of negligence which caused or contributed to the injury to appellee, yet such fact would not warrant the jury in finding a verdict for appellee for the reason that appellee’s cause of action was not founded on the negligence of appellant, but upon its failure to obey or comply with the provisions of the statute. Number ten having been given at appellant’s request, it cannot now complain of the refusal of thirty-two and could not even had thirty-two been correct. The last sentence of instruction thirty-two read, “No presumption that the defendant was negligent arises from the mere fact that the accident happened.” It is urged that this was proper and that the rule was not contained in any other instruction. There was no error in its refusal, for the reason that it also related to negligence, and this is not an action based on negligence as before stated.

The purpose of the thirty-third refused instruction was to inform the jury of the meaning of the word “principal” and read, “The court instruct the jury that the word ‘principal’ means a thing of first or prime consequence.” This gave but one of numerous definitions of the word contained in standard lexicons, and all the main definitions should have been given if any were. As offered it was equivalent to telling the jury that there were but one or two principal doorways in this mine, thus invading their province.

The thirty-fourth refused instruction stated that certain elements of the proof would show that this was not a principal doorway. It was incorrect in every respect, invaded the province of the jury, and was properly refused.

The thirty-sixth refused instruction is the one heretofore mentioned, involving good faith. It would have told the jury that if appellant’s mine manager, in the exercise of his best judgment made in good faith, did not believe that this was a principal doorway, and for that reason did not place a trapper at said doorway, then they should find the defendant not guilty. This instruction was properly refused for several reasons. First, we adhere to our former conclusion that the question of the existence or non-existence of good faith is not involved in a case brought for the wilful violation of the provisions of the Mines and Miners Act, as expressed by us in Emerling v. Spring Valley Coal Co., 149 Ill. App. 97, and repeated in Aetitis v. Spring Valley Coal Co., 150 Ill. App. 497, which conclusions we then based upon the decisions in Catlett v. Young, 143 Ill. 74; Odin Coal Co. v. Denman, 185 Ill. 413; Eldorado Coal and Coke Co. v. Swan, 227 Ill. 586; Davis v. Illinois Collieries Co., 232 Ill. 284; Olson v. Kelly Coal Co., 236 Ill. 502. Notwithstanding the oft-repeated and vigorous insistence of counsel that the question of good faith of the mine operator or his or its mine manager is involved in a suit brought for a wilful violation of the requirements of the Mines and Miners Act, we deem it our duty to follow what the Supreme Court has said in those cases, and it will be time enough for us to hold as urged by counsel when the Supreme Court adopts their theory. Second, if good faith would relieve the operation of a mine from the charge of a wilful violation of this act, it must be the good faith of the operator of the mine, and if the operator is a corporation, then the good faith of its executive officers. Under this instruction the executive officers of appellant might have known that this was a principal doorway at which a trapper should be employed, but by employing a man and calling him a mine manager they could be relieved from liability by . having him swear that he really and in good faith believed this was not a principal doorway. If that could be done, then it seems evident that the whole benefit intended by the statute could be frittered away and the operator of the mine could be relieved from liability in every case. It seems to us that the evidence of appellant’s mine manager bears out the above suggestion. He testified that there were some sixteen or seventeen doors in the mine, but only two that he would call important; that the word “principal” was never used in the mine; that he never heard it applied in the mine; that he was surprised that there was such a thing. He had not sought to inform himself as to the requirements of the statute and was ignorant of its requirements and had made no efforts to determine whether he should comply with it at this doorway. Moreover, if it were the law that the good faith of the mine manager would excuse the operator, there is no evidence in this record on which to base a good faith instruction.

The thirty-eighth instruction was properly refused because it singled out one matter for the consideration of the jury in determining whether this was a principal doorway and omitted other elements also necessary to be considered by them in deciding that question.

The thirty-ninth was properly refused as it attempted to tell the jury, as a matter of law, that which was properly a question of fact for them to decide.

It is urged that the verdict is grossly excessive and greatly disproportionate to the injuries sustained and is the result of prejudice and passion on the part of the jury.

Appellee was thirty-eight years old, weighed one hundred and fifty-five pounds and was earning $2.56 per day when injured, while at the time of the trial, nearly a year and a half after the accident, he weighed one hundred and fifteen pounds and was without earning capacity. He sustained both internal and external injuries, by being dragged by the car for the distance of about thirty feet with his left leg over the rail and his body in between the car and the rib of the entryway. Ilis internal injuries were such as to require the administration of hypodermics of morphine to quiet him. He was extremely nervous and depressed and spit blood, and for about two weeks he was expected to die from the internal injuries. The leg was broken close to the hip, and he spent ten weeks in the hospital, seven weeks in bed, one week in a chair, walked on crutches four months and with two canes two months. At the time of the trial the injured leg was two and a half inches less than normal in length, was affected with progressive atrophy, and, at the point of the fracture, was swollen. He testified that he suffered pain throughout the extent of the limb and continuous pains in the abdominal regions. Three physicians testified as to appellee’s condition. One said that when his foot was on the floor the spine tipped with the pelvis to one side, and that threw the spine out of plumb forming a curvature of a little more than an inch. Two said that they found a shortening of the leg, and that the union was not a bony one, and was more likely to break than formerly;'that the position of the head of the femur in the acetabulum would give him pain, and that the pelvis would tip as well as the spine column in walking. One physician said that “in walking he throws his hip up and down two and one-half inches on one side, and that is considerable wear and tear to his back and spinal column, at the connect tion between the pelvis and the spinal column;” that his nervous condition would be influenced, and that he would suffer, and that the condition was permanent unless the bone was broken again.

We however conclude that in view of his age and earning capacity the damages are excessive, and that the verdict should be reduced to $10,500. This opinion will be lodged with the clerk, and counsel notified thereof, and if within five days appellee remits $4,500 of the judgment, it will be affirmed for $10,500 at the costs of appellee, and if not it will be- reversed and remanded.

Appellee having filed herein a remittitur of $4,500 . the judgment is affirmed for $10,500, at the costs of appellee.

Affirmed upon remittitur.


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    A. M. Swengel, Administrator, Appellee, v. Illinois Third Vein Coal Company, Appellant.
    Gen. No. 5212.
    1. Contributory negligence—effect of sudden danger. Persons in imminent peril are not required by law to exercise all the presence of mind and care which a prudent and careful man would exercise under ordinary circumstances.
    2. Mines and miners—what constitutes common law negligence. Held, under the evidence, that it was negligence in a mine to drive a team hauling loaded cars down a track without a light.
    3. Mines and miners—what rislcs are assumed; what not. Held, that a miner assumed any risk arising from meeting trains of loaded cars being hauled to the shaft at ordinary times with a light on the lead mule of the team, where there was such space between the side of the cars and the side of the roadway as the statute requires; but that he did not assume the risk that would arise from meeting a team of mules without a light on the lead mule, drawing a trip of unloaded cars at an unusual time, where there were no such places of refuge nor such a clear space between the side of the cars and the side of the roadway as required by statute.
    4. Instructions—directing particular verdict. If an instruction directs a verdict for either party or amounts to such direction in case the jury should find certain facts, it must necessarily contain all the facts to authorize the verdict directed.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Statement Tby the Court. The Illinois Third Vein Coal Company, appellant, operated a coal mine on the long wall system, by which all the coal was removed except a block left at the shaft to support the buildings on the surface. The mine contained two shafts, one known as the hoisting and the other as the escapement shaft. The hoisting shaft was about four hundred feet deep, and through it the men were lowered into the mine, and the coal was hoisted. It was separated into two compartments in which cages were operated. Bach cage had two decks, and on each, rails were laid which would connect with the tracks laid in the entryway, so that empty cars sent into the mine could run from the cages to the tracks in the entry, and loaded cars from the tracks to the cage. The bottom of the shaft extending about twenty feet below the level of the entries, was called the sump. This was a space for the purpose, among other things, of letting the cage down so that the upper deck would run flush with the bottom, and that the coal falling from the cars might find lodgment and not interfere with the hoisting or lowering of the cage. The sump was cleaned out each night and the coal and rock therein were thrown into cars. One of the main entries extending from the main shaft was known as the main north or north bottom, had two tracks and extended to the north two hundred and sixty feet. One of these tracks was called the loaded track because after the loaded cars came from the face of the coal, they came down this track to the shaft. The other was called the empty track because the empty cars, as they came from the cages into the mine, were pushed along this track. The loaded track, for most of the distance, was from fifteen to eighteen inches higher than the empty track. The distance between the two tracks was three and eight-tenths feet; the gauge of each track was three feet and two inches, and the box cars as they passed over the track were inside the rails. There was a double cross-over switch called the diamond placed near the shaft to enable cars to be run in on both sides. Loaded cars are usually run on the loaded tracks, and left to be run down to the cage the next morning. During the night the sump was cleared out, and the cars loaded from the sump were pushed back upon the empty track to the north, and in the morning run down to the switch to the north of the bottom, where they were switched to the loaded track, and then pulled by mules down to the shaft to be hoisted. It was the custom to have a light on the lead mule of the team or trip. The men usually went down into the mine from six-thirty to seven in the morning. As a rule their tools were left in the mine but occasionally the men left them outside, and in such case, their tools were not taken into the mine until the miners had gone down and the seven o’clock whistle had blown for work, and then they were taken down in the first empty car. The men remained at the shaft until they received them, and so left the bottom after work had commenced. On the morning of April 15, 1907, there were, on the loaded track, some fifteen or twenty loaded cars. In order to put them on the cage there was a man standing north of the cage, called the eager. The loaded track was on an incline, so that cars when hauled to a certain point, would run down of their own weight. Their descent was controlled by two boys called spraggers. The loaded cars were hauled to one spragger by mules, and let down by him to the other spragger who let them down to the shaft. Bicardo Milani went into the mine at the usual time that morning, but for some reason left his tools outside, and was obliged to wait until they came down before going to his working place. From seven to ten minutes after seven o’clock, after Milani obtained the tools, he started from the shaft north to' his working place with three other miners walking between the tracks, Milani in the lead. When they had gone some distance, they heard the crack of a driver’s whip ahead, and knew that a trip was coming. Cramer, the driver of the trip, saw the lights on their caps and hollered to them to get out of the way. Two of the miners jumped into some empty cars on the track, and the other ran back about twenty or thirty feet, and none of them were harmed. Milani stepped upon the loaded track in front of the trip and attempted to pass the mules, and did pass about three ■ of them, when they started to run and he was knocked down, run over and killed. Appellee, as administrator of his estate, brought this suit in the Circuit Court of Bureau county to recover damages suffered by his widow and children as the result of his death. The declaration consisted of three original and three additional counts, all charging a common law liability, on the theory that it was the duty of the company to furnish deceased with a safe place in which to work, and a safe place over which to travel to and from his work. The second original and the second and third additional counts' also alleged a failure to provide places of refuge along the roadway over which deceased had to .travel. All the counts alleged that deceased came to his death as a result of the negligence of servants of. the company, not his fellow-servants. It was also alleged that deceased was in the exercise of reasonable care for his own safety, and that he left bim surviving a widow and three minor children, as his heirs at law and descendants. There was a plea of not guilty, and a verdict and a judgment for the administrator for $2,500 and the company prosecutes this appeal.
    McDougall, Chapman & Bayne, for appellant.
    J. L. Murphy and William Hawthorne, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

It is urged that Milani was guilty of negligence in taking the side of the loaded track. The proof warrants the conclusion that Milani and his companions had no reason to expect that they would meet loaded cars being drawn toward the shaft at that time in the morning, and the evidence tends to show that the empty track was blocked with empties at the point where he first discovered the lead mule, and that the lead mule did not have a light on his head as was customary. Milani could not see the team coming as he would have done had there been a light on the lead mule, and it is entirely possible, from the evidence, and perhaps even probable, that as he heard these mules coming he supposed they were mules coming to the mouth of the shaft to haul out the empties, and not a team hauling loaded cars. If this were true he would have been safe on either side, off the space between the tracks. In this situation, he was confronted by sudden danger and not called upon to exercise that degree of care and foresight which would have been required of him had there been time for reflection. Under such circumstances a reasonably prudent man would undoubtedly have selected what appeared to him to be the safest course. “Persons in imminent peril are not required by law to exercise all the presence of mind and care which a prudent and careful man would exercise under ordinary circumstances.” Momence Stone Co. v. Groves, 100 Ill. App. 98, 197 Ill. 88; Paige v. Illinois Steel Co., 136 Ill. App. 410, 233 Ill. 313. The proof shows that the driver of these mules while on his way towards the shaft to haul back empties, was met by a team hauling some empties out on the other track and some cars which had been loaded during the night in cleaning the sump. The assistant driver boss was driving the train which was going into the face of the mine, and when he saw this driver coming towards the shaft with his mules, he told him to come above the switch where he intended to leave his loaded cars, and haul them back upon the' loaded track towards the shaft, and it was while these loaded cars were being hauled toward the shaft that Milani and his companions met the mules drawing them, traveling between the two tracks with no light displayed on the lead mule. It was a question of fact for the jury whether, under the facts and circumstances in proof, Milani was exercising due care, and in determining that question, and whether appellant was negligent, they had a right to consider not only the evidence offered in support of the averments in the declaration of a common law liability, but also that offered in support of the averments that places of refuge were not provided., along the roadway which Milani had to travel in going to his work. The proof clearly warrants the conclusion that it was negligence to drive the team hauling the loaded cars down the track without a light. The evidence left it doubtful whether the space on the outside of these tracks on either side of this way, was, in the absence of places of refuge, of the depth required by the Mines and Miners Act. If not, then the omission to supply places of refuge was a violation of the requirements of the act. As Milani had a right to depend upon appellant’s compliance with the requirements of the statute, we are of the opinion that on the question of Milani’s care and appellant’s negligence the verdict is sustained by the evidence.

Much of the proof that supports the finding that deceased was not guilty of negligence, and that appellant was, must be considered in determining whether Milani’s death was caused by a risk which he assumed or by a risk not incident to his employment. He did assume any risk arising from meeting trains of loaded cars being hauled to the shaft at ordinary times with a light on the lead mule of the team, where there was such space between the side of the cars and the side of the roadway as the statute requires; but he did not assume the risk that would arise from meeting a team of mules without a light on the lead mule, drawing a trip of loaded cars at an unusual time, where there were no such places of refuge nor such a clear space between the side of the cars and the side of the roadway as required by the statute.

Appellant urges that the giving of the third instruction for appellee amounts to reversible error, since it wholly ignored the doctrine of assumed risk. By this instruction the jury were told that it was the duty of appellant to furnish Milani a reasonably safe route to and from his working place and that if the jury believed that appellant “failed so to do as alleged in the declaration” and that, by reason thereof, Milani, while exercising ordinary care for his own safety, lost his life, appellee was entitled to recover. The third original and the second additional counts of the declaration expressly negative Milani’s assumption of the risk. The first and second original and third additional counts contain no averments expressly negativing such assumption, and it is doubtful if such a negation can be implied, as urged by counsel for appellee, from any of the averments therein except in the first original count. Counsel practically admit that the first additional count does not preclude the doctrine of assumed risk, but argue that as it is “only one-sixth of the declaration,” the instruction should not be held as reversible error on that account, as it was warranted by most of the declaration; and that this court cannot say that the jury decided the case on this particular count. This was a peremptory instruction directing a verdict; and if an instruction directs a verdict for either party, or amounts to such direction in case the jury shall find certain facts, it must-necessarily contain all the facts which will authorize the verdict directed. Lake Erie & Western Railroad Co. v. Wilson, 189 Ill. 89; Illinois Central Railroad Co. v. Smith, 208 Ill. 608; Montgomery Coal Co. v. Barringer, 218 Ill. 327. The jury if they followed this instruction, might have found the averments of the counts of the declaration which did not negative the assumption of the risk of his employment by deceased, to have been fully established by the evidence and based their verdict thereon, although- they believed that it was not shown by the evidence that deceased did not assume the risk by which he met his death. In the absence of a negation of the assumption of the risk of his employment by deceased, in each and every count of the declaration, we hold that the giving of the instruction constituted reversible error, and that the error was not cured by instructions given on behalf of appellant. Herdman Harrison Milling Co. v. Spehr, 145 Ill. 329; Illinois Central Railroad Co. v. Smith, supra; Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Montgomery Coal Co. v. Barringer, supra.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    Lucy E. Gifford, Plaintiff in Error, v. George E. Gifford, Defendant in Error.
    Gen. No. 5228.
    1. Appeals and ebbobs—when bill of exceptions as at law required in chancery. "Where a party in chancery is entitled to a trial by jury as a matter of right a bill of exceptions is essential to preserve the proceedings incident to such jury trial.
    2. Appeals and ebbobs—when exceptions required in chancery. While it is the general rule that exceptions need not be taken and preserved in the trial of a chancery cause, yet exceptions should be taken to adverse rulings in a chancery cause tried by a jury where the trial by jury is a matter of right by statute.
    3. Dismissal—when complainant not entitled to, without prejudice. Where a trial by jury is a statutory right -conferred in a chancery cause, after verdict the complainant is not entitled to dismiss his bill without prejudice. ■
    Divorce. Error to the Circuit Court of Iroquois county; the Hon. Fbank L. Hoopeb, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    O. F. Morgan and Benjamin F. Harrington, for plaintiff in error.
    Aldrich & Worcester and Stephen O. Malo, for defendant in error.
   Mr. Justice Willis

delivered the opinion of" the court.

June 4, 1908, plaintiff in error filed her bill in the Circuit Court , of Iroquois county alleging that she was married to' defendant in error April 14, 1906, and that they lived together until about October 10, 1906, and charging defendant in error with extreme and repeated cruelty since their marriage, with habitual drunkenness for a period of more than two years prior to filing the bill, and with adultery with one Minnie Henning, and with divers other lewd women whose names were to the plaintiff unknown, and praying for a divorce and other relief. After some preliminary proceedings defendant in error answered the bill, denying the charges of cruelty, drunkenness and adultery. Three issues were submitted to a jury, viz: (1) Has the defendant, George E. Gifford, since his marriage to the complainant, Lucy E. Gifford, and prior to filing her bill, committed adultery? (2) Has the defendant, George E. Gifford, been guilty of habitual drunkenness for the space of two years or over since his marriage to the complainant, and before the filing of the bill in this case? (3) Has the defendant, George E. Gifford, been guilty of extreme and repeated cruelty towards complainant, Lucy E. Gifford, since his intermarriage with her and prior to the filing of her bill of complaint in this cause ? The verdict of the jury was that defendant in error had not committed adultery, and was not guilty of habitual drunkenness, or extreme and repeated cruelty towards plaintiff in error. A motion for a new trial was denied, and thereafter plaintiff in error moved the court for leave to dismiss her bill without prejudice, which motion was denied. Judgment for costs was entered against plaintiff in error, the bill was dismissed for want of equity and this writ of error was sued out to review the decree.

It is claimed by plaintiff in error that defendant in error’s fifth instruction told the jury that plaintiff in error had alleged specific instances of adultery in her bill, and that to support those allegations she must establish by a preponderance of the evidence that defendant in error had been guilty of some one of the specific instances of adultery so charged, otherwise it would be their duty to find for defendant in error on the issue of adultery. This, plaintiff in error contends, excluded from the consideration of the 1 jury, much material matter alleged in the bill that might and could have been considered by the jury under the issues submitted, on the charge of adultery; although it is not asserted by counsel in support of the contention, that there was any evidence tending to sustain the general charge of adultery. To this contention, there are several sufficient answers. First, no bill of exceptions or certificate of evidence was taken. The record discloses that the clerk of the trial court copied into the record this and other instructions, and attempted to certify what instructions were given and what refused. While it is generally true that in a chancery proceeding, pleadings and other papers filed become a part of the record without a certificate of evidence, that rule relates only to causes proceeding according to the regular course of chancery practice. “The Revised Statutes (chap. 40, sec. 7) provide that ‘either party shall have the right to have the cause tried by a jury. ’ When the case is tried by a jury the trial has all the incidents of a trial at common law, and the verdict is not merely advisory to the court, but has the same force and effect of a verdict at common law.” Lenning v. Lenning, 176 Ill. 180; Razor v. Razor, 42 Ill. App. 504; Meeker v. Meeker, 75 Ill. 260 ; Whipple v. Eddy, 161 id. 114; Biggerstaff v. Biggerstaff, 180 id. 407; 7 Ency. Pl. & Pr. 120. “Where the court has submitted certain issues to the jury in accordance with the chancery practice the verdict is not conclusive as in an action at law, but merely advisory, and the court may enter a decree in opposition to the verdict. But where a jury trial is made a matter of right by statute, the verdict has the same effect as at law, and the court must render a judgment in conformity with it, or, if not satisfactory, may grant a new trial. ’ ’ 7 Ency. Pl. & Prac. 120, citing Richmond v. Richmond, 10 Yerg. (Tenn.) 343; Carpenter v. Carpenter, 9 N. Y. Supp. 583; Poertner v. Poertner, 66 Wis. 644. It is obvious that it would lead to strange results and complications to hold that a clerk, without a bill of exceptions or certificate of evidence, might certify in the record of a trial of a cause before a jury what instructions the court gave and what the court refused. To illustrate: Suppose that an instruction appeared to have been modified by interlineations. Some of the interlineations may have been made by counsel who tendered it, and some by the trial judge; or all may have been made by counsel or by the trial judge. Clearly the clerk has not the authority to certify what interlineations were made by the trial judge and what were made by counsel. We think it manifest that a certificate or bill of exceptions was essential to preserve the instructions for our consideration, and that for want of such a bill of exceptions, they are not before us. Second, while it is the general rule that exceptions need not be taken and preserved in the trial of a chancery cause, we are of the opinion that exceptions should be taken to adverse rulings in .a chancery cause tried by a jury where the trial by jury is a matter of right by statute. This record does not show that plaintiff in error excepted to this instruction or to any other instructions which she criticises. We are of the opinion that even if the instructions were in a certificate of evidence or a bill of exceptions, yet for want of an exception, plaintiff in error could not be heard here to question the ruling of the lower court thereon. Third, the evidence has not been preserved. It may be that there was no evidence supporting the general charge of adultery at unknown times and places, either with Minnie Henning, or with unknown women. We must assume, in support of the court’s ruling, in the absence of a bill of exceptions or certificate of evidence, that the only evidence on the subject of adultery related to the adultery charged with Minnie Henning at the time and place specifically named in the bill. If such were the conditions of the evidence, the instruction was unquestionably right.

The only question presented by this record for our consideration, is, did the court err in denying plaintiff’s motion for leave to dismiss her bill without prejudice after a verdict had been returned and a motion for a new trial made and denied?

Plaintiff in error in support of her contention that such ruling was erroneous, relies upon section 6, chapter 40 Hurd’s R. S. 1908, which provides that the practice in divorce cases shall be the same as in other cases in chancery except as otherwise provided, and the general rule of chancery practice, that only the filing of a cross-bill will take from a complainant the right to dismiss her bill without prejudice. In none of the numerous cases cited in support of the latter contention was there a verdict of a jury either on an issue out of chancery, which would be only advisory, or under the statute granting the right of trial by jury.

In the case at bar, the trial by a jury was a statutory right and had all the incidents of a trial at common law, and the verdict, when obtained, had the qualities of a verdict at common law. Penning v. Penning, supra. Had the court granted the motion to dismiss without prejudice it would have been equivalent to permitting plaintiff in error to suffer a nqn-suit. Section 70 of the Practice Act, Hurd’s R. S. 1908, provides that every person desirous of suffering a non-suit shall be barred therefrom, unless he do so before the jury retire from the bar. In this case leave was not asked before the jury retired to consider their verdict and we hold that the application to dismiss without prejudice was made too late, and that there was no error in the order denying the motion.

The decree is therefore affirmed.

Affirmed.


text:
    Jacob P. Nau, Appellee, v. Standard Oil Company, Appellant.
    Gen. No. 5223.
    1. Evidence—effect of greater number of witnesses. The jury cannot lawfully from mere caprice entirely disregard the larger number of witnesses testifying for or against the parties.
    2. Evidence—as to what medical expert competent. A medical expert who has qualified himself for the purpose of testifying in a cause is competent as to objective symptoms but not as to subjective symptoms or self-serving statements.
    3. Evidence—what competent by way of impeachment. If a witness out of court has made statements with respect to a material matter contrary to his testimony given in court, such statements may be shown by way of impeachment.
    4. Instructions—when allowing declaration to be considered as evidence will not reverse. Held, that an instruction did not require a reversal where by an evident mistake the jury were permitted to consider the declaration as evidence, it not appearing that the declaration was taken by the jury.
    5. Instructions—when reference to number of witnesses not erroneous. An instruction which pertinently refers to the number of witnesses testifying in a cause is not erroneous in omitting other elements which bear upon the question of the preponderance of the evidence; the instruction containing such reference not being given upon the subject of the preponderance of the evidence.
    6. Instructions—when refusal of correct will not reverse. A correct instruction may properly be refused if the contents are substantially contained in other instructions given.
    7. Animals—when modification of instruction in action for injuries resulting from alleged vicious, will not reverse. Held, in the particular instruction in question, it was not error for the court to strike out the words “It was the result of playful, frolicsome feeling or spirit that she was in.”

      8. Verdicts—when excessive. Held, in an action for personal injuries resulting from being kicked by a horse, that the sum of $5,000 was excessive where it appeared from the evidence that the plaintiff was kicked in the lower part of the abdomen and that immediately afterwards he vomited blood; that he went to bed and called a doctor who found black spots on the lower side of the abdomen; that he had fever and suffered from acute peritoni- • tis; that the region of the injury was swollen and that it was four or five weeks before he was able to get around, and that he complained of distress in the region of the injury from that time on; that an enlarged hardened condition appeared there, and a fistula developed that opened and discharged near the rectal opening; that this at times closed and had to be cut open, which was done four or five times; it, however, further appearing that all of such injuries were not justly attributable to the kick.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Pinkney & McRobebts, for appellant.
    Clyde E. Stone, Geobge B. Fosteb and Elmeb J. Stough, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Jacob P. Nau, appellee, was, for a number of years, in the service of the Standard Oil Company, appellant, as a cooper. On October 3, 1906, he was directed by appellant’s foreman to lead a span of horses from appellant’s barn to certain scales about two and a half blocks distant for the purpose of weighing them. On the way back to the barn, one of the horses kicked him in the groin or lower part of the abdomen, and, as he claims, very seriously injured him. He sued appellant to recover damages for such injuries. On the trial the cause was submitted to the jury on the first additional count of the declaration, which averred that appellant had in its possession a vicious horse which was liable to kick at persons handling it, which the appellant knew or might have known, and appellee did not know and had no means of knowing; and that while appellee, in the exercise of due care for his own safety, was leading the horse it kicked him in the stomach and greatly injured him. On the trial, appellee obtained a verdict and a judgment for $5,000, and the company appeals.

It is contended that appellant’s knowledge of the vicious disposition of the horse is not established by the greater weight of the evidence and therefore the verdict of the jury is contrary to the greater weight of the evidence. Appellee produced a number of witnesses, who testified that while the animal was owned and used by appellant, she did, at various times before the injury to appellee, kick at persons, and that the fact was repeatedly reported to appellant’s superintendent. Appellant produced a large number of witnesses who had known the animal before it was purchased by appellant and who testified that it was not in the habit of kicking. It does not follow from this that the preponderance of the evidence is, that at the time appellee was injured the animal was not vicious. She may not have been vicious when being worked on the farm, or during the brief time that she was in the hands of dealers, and may have shown viciousness after appellant bought her and she was placed in different surroundings. Whether or not the animal was vicious was a question of fact for the jury and it was within their province to determine, where and with whom, the preponderance of the evidence lay. The jury could not wilfully, from mere caprice, entirely disregard the larger number of unimpeached witnesses testifying for or against the parties, but they had a right to consider that some of appellant’s witnesses were testifying to a period considerably before this injury, and others had but little real knowledge of the animal, and that appellee’s witnesses knew the horse well and testified to a period immediately preceding the injury; that among them was her driver, the blacksmith who shod her, and men who saw her often in the stable. The jury were the judges of the credibility of the witnesses and their means of knowledge, and evidently considered the testimony of the witnesses for appellee of more weight than that of the. witnesses for appellant. We cannot say that their verdict is against the clear weight and preponderance of the evidence and therefore we would not be justified in setting it aside on the ground that the scienter was not proven.

Appellant contends that the court erred in the admission of the testimony of Dr. Forrest on the ground that it was based upon an examination made solely for the purpose of testifying, and cites a number of cases in support of its contention. An examination of the authorities relied upon shows that in each one the doctor testified from subjective symptoms, as well as from what he saw. In this case the questions put to Dr. Forrest limited the conditions inquired about to those disclosed by objective symptoms, and we find nothing in his testimony that leads us to believe that he based it upon anything else, and we conclude that its admission was not erroneous. Complaint is also made that the doctor assumed that the conditions to which he testified were the results of the injury sustained by appellee in October, 1906. This position is without foundation, as an examination discloses that he simply answered a hypothetical question containing this assumption put to him as an expert. Complaint is also made that the trial court erred in permitting Drs. Whiting, Early and Shoaf, to testify for appellee as to results that might possibly follow from the injury to appellee. A careful examination of their testimony convinces us that appellant’s position is not, well taken in this regard as so far as their answers went they related to probable results not those merely possible, and that there was no error in the admission of their testimony.

For appellant, its manager, Trann, testified in chief that he knew the mare and had never known her to kick. On cross-examination he was asked, fixing the time and place, whether he had not had a conversation with a Mr. Firebaugh with relation to this horse a short time after the injury to appellee, and he answered, “No.” He was then asked, “Isn’t it a fact that on that occasion you told him this, or this in substance. ‘We will have to get rid of this mare, this isn’t the first time she had kicked. ’ ” His answer was, “No, sir, it isn’t true.” In rebuttal, over appellant’s objection, Firebaugh was asked if Trann did make that statement to him at that time and place, and he answered that he did. It is contended that this evidence is incompetent, inasmuch as the conversation was not in the presence of appellant; that it was long after the accident and could not be regarded as a part of the res gestae, and that it would not have been competent if offered by appellee as direct proof. This evidence was not offered as a part of the res gestae and it is immaterial that the conversation was made out of the presence of appellant or subsequent to the accident. It was offered only for the purposes of impeachment, to show that the witness had made a statement out of court on a material point contradictory to a sworn statement made as a witness. Whether this mare had the habit of kicking at persons before the accident was a material matter and if Trann made statements out of court relative thereto contrary to those made in court, appellee had a right to ask him if he made such statements, and if he denied them,, then for the purposes of impeachment call Firebaugh and contradict him.

It is claimed that appellee’s first instruction omits the element of care on the part of appellee, prior to, and at the time of, the injury, and the element of knowledge of appellant of the disposition of the horse. We are convinced that the reasonable construction to be placed upon the instruction is, that it told the jury that appellee must prove all the material allegations of the first additional count of his declaration before he was entitled to recover. Since that count alleged knowledge on the part of appellant of the disposition of the horse, and due care and caution on the part of appellee, we do not see wherein the instruction is erroneous.

Appellant complains that appellee’s second instruction assumes that there was a risk in taking the animal to be weighed. The instruction did not contain such an assumption but left it to the jury to determine whether any risk was shown by the evidence, as it specifically stated, “if any risk is shown by the evidence to have existed.”

The third instruction related to the measure of damages, and was, in the main, upon a form approved in Cicero Street Ry. Co. v. Brown, 193 Ill. 274, but by an evident mistake, the last clause of the last sentence of the instruction read: ‘ ‘ are claimed and alleged and proved by the evidence in the declaration herein.” The declaration is not evidence nor is there anything in the record to show that the jury were allowed to take the declaration when they retired to consider their verdict. We are of the opinion that this misplacement of a phrase did not mislead the jury.

It is complained that appellee’s fourth instruction omitted the element of numbers in telling the jury how to determine where the preponderance of the evidence lay. By it the court told the jury that the credibility of the witnesses is a question exclusively for the jury; and that the law is, that, “where a Humber of witnesses testify directly opposite to each other, the jury are not bound to regard the weight of the evidence as evenly balanced.” This instruction is not directed to the question of the preponderance of the evidence and it was not necessary to embody the element of the number of witnesses therein. It is not, as claimed by appellant, in violation of the rule announced in the case of Elgin, Joliet & Eastern Railroad Co. v. Lawlor, 229 Ill. 630, or in the case of Chicago Union Traction Co. v. Hampe, 228 Ill. 350.

Appellant’s third instruction as requested, read as follows: “The jury are instructed, that, if you believe from the evidence that at the time the gray mare of the defendant kicked the plaintiff while he was engaged in leading her back from the scales to the barn, it was the result of a playful, frolicsome feeling or spirit that she was in, and not any natural vicious disposition, then under such circumstances, if you believe, the plaintiff cannot recover and your verdict should be for the defendant. ’ ’ The court modified the instruction by striking out the words “It was the result of a playful, frolicsome feeling or spirit that she was in.” We are of the opinion that the instruction as modified and given by the court contained all that appellant was entitled to on that subject.

Appellant complains that the court refused six instructions requested by it. An examination shows that the principles of law correctly stated therein were contained in other instructions which the court gave. The fifth, the refusal of which appellant contends is reversible error, relates to the fact that appellee was permitted to testify on his own behalf, and that his interest in the event of the suit might be considered in determining the credit to be given to his testimony. This instruction stated a correct rule of law and appellant was entitled to have the jury instructed thereon. Had it not been embodied in other instructions given, its refusal would have been reversible error, under the authority of West Chicago St. Railroad Co. v. Dougherty, 170 Ill. 282; Chicago & Eastern Illinois Railroad Co. v. Burridge, 211 Ill. 9. However, in these cases there was no other instruction telling the jury that the interest of the witness was to be considered. In this case, the seventh instruction given for appellant told the jury that in determining the weight to be given to the testimony of the different witnesses, they had a right, “to take into consideration the interest of the witnesses, if any, in the event of the suit, their feelings, or bias, if any had been shown, their demeanor while testifying and their means of knowledge of the matters testified to, and to give credit to the testimony of each witness as, under the circumstances in evidence, such witness seems entitled to.” We conclude that this instruction sufficiently embodied the principle contended for by appellant.

Appellant does not deny that appellee was kicked by the mare, but claims that the damages, if recoverable under the proof, are in excess of a reasonable compensation for the injuries sustained. The evidence shows that appellee was kicked in the lower part of the abdomen, and that immediately afterwards he vomited blood; that he went to bed and called a doctor who found black spots on the lower side of the abdomen; that he had fever and suffered from acute peritonitis ; that the region of the injury was swollen and that it was four or five weeks before he was able to get around, and that he complained of distress in the region of the injury from that time on; that an enlarged hardened condition appeared there, and a fistula developed that opened and discharged near the rectal opening; that this at times closed and had to be cut open, which was done four or five times. Two doctors testified that the condition was probably permanent; one that it would lessen his earning capacity and that .an operation might benefit him but that it was uncertain, and that from the history he got he concluded that abscesses which formed and discharged came from the injury, and that the condition would be a hindrance to appellee in every move he made. One doctor testified that he would not want to say that the fistula was due to the injury; that it was possible that it was; nor would he say this condition was permanent or was not. Another doctor testified that appellee seemed to be in good health prior to the injury. Appellee testified that he had not been able to work at his trade as cooper since the injury; that abscesses had formed fifteen or twenty times in Ms abdomen and discharged blood and pus through his bowels since the injury; that he had suffered from piles prior to the injury.

Under a consideration of all the evidence upon the extent of his injuries we conclude that not all of the troubles of which appellee now complains are justly attributable to this kick. We conclude that the damages are excessive. This opinion will be lodged with the clerk and counsel will be notified, and if within five days appellee remits $1,500 of the judgment, it will be affirmed in the sum of $3,500 at the costs of appellee, otherwise it will be reversed and remanded.

Appellee having filed a remittitur herein for $1,500 the judgment is therefore affirmed in the sum of $3,500 at the costs of the appellee.

Affirmed upon remittitur.