text:
    Ellen Golden and Thomas E. Hunt, Administrators, Plaintiffs in Error, v. South Chicago City Railway Company, Defendant in Error.
    Gen. No. 18,104.
    1. Appeals and errors—where verdict of not guilty is sustained. In an action for death where it is alleged that defendant negligently ran a street car over an excavation in which plaintiff’s intestate was working and caused the excavation to cave in on him, there being evidence that the excavation was in violation of city ordinances, that the soil was loose and unsupported, and that deceased, an experienced drain layer, must have known of the danger, a verdict of not guilty will be affirmed.
    2. Evidence—res gestae. In an action for the death of plaintiff’s intestate, a drain layer, killed by an excavation caving in, the testimony of a witness as to what he heard men around the scene of the accident say as to how the excavation caved in is admissible as part of the res gestae.

    Error to the Superior Court of Cook county; ' the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 8, 1913.
    David K. Tone, H. M. Ashton and Elmer J. Tone, for plaintiffs in error.
    Zane, Busby & Weber, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action against the South Chicago City Railway Company, hereinafter called the defendant, to recover damages for the death of Thomas Golden on the 8th of May, 1908. Upon the trial the jury returned a verdict finding the defendant not guilty, and the administrators of the estate of Thomas Golden are asking this court to reverse the judgment entered upon the verdict.

The amended additional count upon which the case was tried alleged that the defendant was operating street cars on Superior avenue in Chicago; that Golden at the time of the accident was employed by a drain contractor named Keiss, to construct a drain or sewer in said street; that in doing so Golden and other workmen dug an excavation in Superior avenue and beneath the tracks of the defendant; that said excavation was liable to cave in when cars were operated over it unless such cars were operated with care and at a low rate of speed; that while Golden was working in said excavation with the knowledge of the defendant, it carelessly and negligently ran its cars over said excavation at a high rate of speed, and that by reason thereof the banks of said excavation became jarred and loosened and caved in upon Golden, by means whereof he was killed.

The evidence presented to the jury tended to show in part that at the time of this work the ordinances of the city required, under penalty, that every private drain or sewer must be constructed in conformity with the orders of the commissioner of public works, and that the ordinances also forbade any person, without a permit in writing from said commissioner, to place any pipe underneath any street surface. The rules of the commissioner required all drains to be laid in open trenches and forbade an interference with the running of street cars.

The deceased, Thomas Golden, was an experienced drain layer in the employ of Keiss. Keiss had notified the Street Eailway Company that he intended to lay a sewer underneath the tracks, but there is no evidence that he obtained the necessary permits prescribed by the city ordinances. On the morning that the men started to work they cut an open trench from the sidewalk on the east side of the street out to the east or north-bound track, about six feet deep. The testimony tends strongly to show that at this time Keiss, the contractor, was drinking and intoxicated. About the noon hour, having reached the east track in the street, the men started to tunnel under it and continued this work after one o’clock. Keiss did not order- this work done, but Golden selected that way himself. One of the men working with Golden objected to working in the tunnel under the track, on the ground that it was dangerous, and withdrew. This was in the presence and hearing of Golden. However, Golden continued with the work of drilling under the track. At this time a drain inspector for the city, in the hearing, and presence of Golden, warned Keiss that the work could not be done in that way since the ground would not hold, and that he ought to1 hold it up in some way. The ground at this place was loose and sandy and would not stand without support, but Keiss put in no supports or sheeting.

When Golden reached the main sewer in the tunnel he used a large hammer in order to make the connection. The hammer was used to make a hole in the main sewer. Golden took the hammer and began striking on the pipe to make the connection. Just before this time a car had come up from the south, and Keiss had signalled it to slow down. The testimony tended to show that the car was slowed down by the motorman and that it proceeded slowly up to the excavation and crossed it at a slow rate of speed, Keiss following it up to the excavation. The car passed over and turned the corner at the next cross street. About eight or ten minutes after this car had passed, and while Golden was striking upon the main sewer with the eight pound hammer, the ground suddenly caved in upon him clear from the surface. The men rushed to dig him out but while they were digging the ground caved the second time. When at last Golden was gotten out of the ditch he was dead.

In the main the above testimony is not disputed, although the testimony given by Keiss and a workman named Higgins tends to contradict some of the foregoing statements. It was sought to impeach their testimony by showing that upon this trial it was not' in accord with their testimony given before the coroner’s jury and upon a former trial. It was for the jury to weigh the evidence, and we cannot say that it was not justified in concluding that these two witnesses were mistaken upon some of the points involved.

After a consideration of the entire record before us we have reached the conclusion that no other verdict could have been properly returned by the jury than the verdict it did return upon the trial. The evidence clearly shows that Golden knew that he was violating the regulations of the city in drilling under a street railway track without permission. It is further obvious that the situation of the ground, its loose character, the necessity of supports or sheeting in the trench or for the sides and roof of the tunnel, and the danger of working in the tunnel under such conditions, were as fully apparent to Golden, if not more so, as to any one else. It is not disputed that Golden was an experienced drain layer, and the evidence tends to show that the particular method of work in this instance was largely within the control and direction of Golden. It is also in evidence that others were aware of the danger and warned of it, and that one of his fellow-workmen abandoned the work protesting that he did so on account of the danger involved; and all this was in the presence of Golden.

We feel bound to conclude that the conduct of Golden amounted to negligence directly contributing to the accident in question, and that the jury was amply justified in so finding from the evidence. We are also of the opinion that the evidence shows that the cause of the accident was not the passing of the street car, but because of the loose character of the soil in which the trench and tunnel were dug, together with the failure of the contractor, Keiss, properly to guard against the danger of a cave-in by the use of supports or sheeting.

Plaintiffs complain of certain instructions given by the court at the request of the defendant. We are of the opinion that the criticisms of these instructions are not sound. In any event any inaccuracies appearing therein are not of sufficient importance to justify a reversal.

Complaint is also made of the ruling of the court in permitting a witness to testify as to what he heard the men around the scene of the accident say as to how the tunnel caved in. It is contended by plaintiffs that this testimony should have been stricken out on the ground that it was simply hearsay, while the defendant contends that these statements were a part of the res gestae. It is frequently difficult to determine what conduct or statements by bystanders constitute a part of the res gestae, and we are not prepared to say that in all cases the opinions of bystanders as to the cause of an accident are admissible, even though such opinions may have been expressed immediately after the occurrence and so closely connected with it as to allow no time to fabricate a story. However, in this particular case a consideration of the testimony leaves us in very little, if any, doubt that the cave-in was the result of the failure of the contractor and of the deceased himself properly to support the sides of the trench and the roof and sides of the tunnel. Furthermore an examination of the testimony of the witness gives very little, if any, information as to the cause of the accident, for when he inquired of by-slanders as to how it had caved in the reply was that it had “just caved in.” This of course does not throw any light upon the real question involved, and we cannot conclude under the circumstances that the refusal of the trial court to strike out the testimony was reversible error.

Having reached the conclusion that the jury returned the only verdict which could reasonably be returned upon the evidence before it, and that no re-' versible errors occurred upon the trial, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    Charles E. Burtless et al., Appellees, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 17,086.
    1. Cabbiebs—when action must be brought by holder' of bill of lading. Under the "Carmack amendment, chapter 3591 U. S. Comp. Stat. 1911, p. 1288, an action for loss, damage or injury to property transported from a point in one state to a point in another must he brought by holder of the bill of lading and it is presumed that a bill of lading was issued as the statute requires.
    2. Bill of lading—no recovery when not introduced in evidence. Where the record shows a bill of lading was issued, the shipper may not recover against the carrier if he fails to introduce it in evidence.
    3. Cabbiebs—damage for delay. In an action for damage, to sheep in transportation, where plaintiff testifies concerning the time taken in different parts of the transit, it is error on cross-examination to exclude a question as to whether the sheep after being held at a certain place for several months were not sent on to their destination and delivered to the consignee on the original bill of lading, since such evidence would affect the measure of damages for unreasonable delay.
    Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed May 9, 1913.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellees.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

A judgment for $2,876.84 in favor of the appellees jointly as plaintiffs was obtained against the Oregon Short Line Bailroad Company as defendant, for damages alleged to have been sustained to seven carloads of sheep and lambs delivered by one of the plaintiffs, Charles E. Burtless, of Boise, Idaho, to the defendant at Nyssa, Oregon, for transportation to the Knollin Sheep Company at Chicago, via the Oregon Short Line Bailroad, the Union Pacific Bailroad and the Chicago & Northwestern Bailway. The action was one of the first class in the Municipal Court, and a common-law declaration consisting of two counts was filed, to which was afterwards added an additional count, and thereafter by leave of court the plaintiffs filed an “amended statement of claim herein.” The issue seems to have been formed, however, on the common-law pleadings, and the statement of claim may be treated, we think, as a bill of particulars and not as the foundation of the proceeding.

The property was delivered to the defendant October 22,1906, nearly four months after the Carmack amendment to the Interstate Commerce Act went into effect (chapter 3591, U. S. Comp. Stat. 1911, p. 1288.) At the time of the trial three important decisions of the United States Supreme Court were not in existence, and in our opinion the trial was had upon the wrong theory, due, no doubt, to the fact that- counsel in the case and the court did not have these decisions for their guidance. The cases referred to are Adams Exp. Co. v. Croninger, 226 U. S. 491; Chicago, St. P., M. & O. R. Co. v. Latta, 226 U. S. 519; Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513. No bills of lading were introduced by the plaintiffs in the case, the only written evidence of the contracts between the parties being “limited liability live stock contracts” entered into between Burtless as shipper and the defendant at or about the time of the shipment, and introduced by the defendant.

As in our opinion there should be a retrial of the case, many of the points raised in the briefs need not be discussed. In the case of Gamble-Robinson Commission Co. v. Union Pac. R. Co., post, p. 256, we have in an opinion filed this day given our views as to the rights of parties under section 20 of the act. We there state it as our opinion that since the passage of the act, and under the construction given to it by the Federal Supreme Court, suits for loss, damage or injury to property transported from a point in one state to a point in another must be brought by the holder of the bill of lading, and the presumption is to be indulged in that a bill of lading was issued as the statute requires. We have heretofore held that where the record shows that a bill of lading was issued, the shipper may not recover against the carrier if he fails to introduce it in evidence. Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609.

Mr. Burtless in his testimony stated that the other plaintiff, Scott Anderson, was interested “in this consignment,” but whether as joint owner or otherwise does not appear.

It appears from the testimony introduced by the plaintiffs that the animals- were unloaded for feeding at different places along the route of the Oregon Short line, the Union Pacific and the Northwestern railroads. Complaint is made that there were numerous delays on the way, and as to the alleged bad condition of some of the feed yards at which stoppage was had.

The consignment arrived at La Fox, Illinois, about thirty miles from Chicago, on the Chicago & Northwestern Railway, on the morning of November 2nd.

Mr. Burtless testified that the conditions of transit between Grand Island, Nebraska, and La Fox were exceptionally good, that the run was made quick and fast, and that the feed and water at La Fox “were as good as could be.” He further testified that the usual and customary time of transit from Nyssa, Oregon, to Chicago via. this route was “about seven days, seven to eight days, maybe eight,” thus showing that the transportation to La Fox consumed three days more than the usual time to Chicago. He was then permitted to testify, over the objection of the defendant, as to what the market value of the stock in question would have been at the Union Stock Yards in Chicago if the cars had reached there October 30th, and what the reasonable market value would have been if the consignment had come through after the usual rest at La Fox. On cross-examination he testified that the date of arrival at La Fox, November 2nd, was Friday, and that “we would have brought the sheep into Chicago on Sunday evening if they were in good marketable condition;” that he based his testimony of the market value of the sheep in the condition in which they should have arrived in Chicago on October 30th, on the general market; that the only knowledge he had about the condition of the market on the 30th was what he was told and from what he learned from the Drovers’ Journal or through market reports; that he knew what the market was on November 5th.

He was asked on cross-examination whether the sheep, after being held at La Fox for a period, some of them for two months and some of them for three months, were not sent on in their transit to the destination and delivered to the Enollin Sheep Commission Company in Chicago on the original bills of lading. This question was objected to and the objection sustained. This was erroneous. If it be assumed that the plaintiffs were the legal holders of the. bills of lading, and that after the long delay at La Fox, during which the sheep were fattened at plaintiffs’ direction and expense, they directed the forwarding of them to the consignee at Chicago on the original contract of carriage, thus taking advantage of the through rate, the transportation contract was completed, and the damages for unreasonable delay, if such there was, would certainly be measured on an entirely different basis than that upon which recovery was permitted.

Even if the production of bills of lading (or their absence being accounted for) was not essential there must be a new trial for the errors in the rejection of evidence.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Payette Fruit Packing Company, Appellee, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 17,935.

      Carriers—when error to direct a verdict. In an action for damage to cantaloupes, where the affidavit of defense denies liability and denies that plaintiff suffered the damage complained of or that any damage sustained was due to the neglect of defendant, and plaintiff introduces evidence to show the melons were delivered to defendant in good condition and further testimony as to delay in transit and damaged condition when received at destination, a verdict should not be directed for plaintiff though defendant introduces no evidence.
    Appeal from the Municipal Court of Chicago; the Hon. Max Ebebhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed May 9, 1913.

      John A. Sheean, for appellant.
    Charles A. Butler, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This was an action brought by the appellee, as plaintiff, against the appellant, as defendant, to recover for loss and damage alleged to have been incurred to a shipment of four cars of cantaloupes from Payette, Idaho, to Seattle, Washington.

It appears from the bills of lading offered in evidence by the plaintiff that three of the cars were consigned to Cordon & Company, at Seattle, and one to Bast Portland, Oregon, which last car it is claimed was diverted, before reaching Bast Portland, to Seattle, by contract between the parties.

Seattle is on the Northern Pacific Railroad, and the right to recover is predicated upon the interstate commerce law, as amended by the Carmack amendment in 1906, reference to which has been made in two cases in which .opinions have been filed this day, namely, Burtless v. Oregon Short Line R. Co., ante, p. 249, and Gamble-Robinson Commission Co. v. Union Pac. R. Co., post, p. 256.

The affidavit of defense recites that:

“This defendant has a good defense to the whole of plaintiff’s claim, that the various shipments set forth in claim of plaintiff did not suffer any damage; that if any damage was sustained it was not due to any neglect or default of railroad company for which railroad company is answerable to plaintiff; that railroad company did exercise all care required by law to preserve cantaloupes during transit and while in its possession, that there was no unreasonable delay in transit, or if there was delay it was due to causes over which railroad company had no control.”

The defendant introduced no evidence, and the record is before us on the case as made by the plaintiff’s evidence. This consisted of testimony with reference to the condition of the cantaloupes at the time they were delivered to the defendant, from which it would appear that they were in good condition; further testimony as to delay in the transit of the fruit; and also testimony tending to show that the goods, when received at Seattle, were damaged, and the amount of such damage.

At the close of the plaintiff’s case the court directed the jury to find a verdict for the plaintiff, the amount fixed being one dollar more than that mentioned in the statement of claim.

As the affidavit of defense denied liability; denied that the plaintiff suffered the damage complained of; denied that if any damage was sustained it was due to the neglect or default of the defendant; denied that there was any unreasonable delay in transit, etc., these questions were all such as should have been submitted to the jury, and we know of no rule, in such circumstances, which authorizes the court to direct a verdict. Nothing is admitted by the defendant, as we read the record, excepting, possibly, the fact as to what the melons in their alleged damaged condition sold for.

Among other questions of fact to be determined was as to whether or not the destination of the car which by the bill of lading the defendant undertook to transport to East Portland, was, by oral arrangement between the parties, changed to Seattle.

The case should have been submitted to the jury, and the court erred in directing the verdict. As there must be a retrial of the case we refrain from discussing the evidence.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Gamble-Robinson Commission Company, Appellee, v. Union Pacific Railroad Company, Appellant.
    Gen. No. 17,936.
    1. Carriers—Carmack amendment to Interstate Commerce Act. The Carmack amendment to the Interstate Commerce Act does not provide a method by which a contract of shipment may be altered or enlarged with respect to a change of destination.
    2. Carriers—effect of Carmack amendment. By the Carmack amendment, Congress so manifested a purpose to take possession of the subject of the liability of a railway carrier for loss or damage to an interstate shipment as to supersede all state regulations including laws invalidating contracts limiting the carrier’s liability.
    3. Carriers—action must be brought by one who holds bill of lading. Under the Carmack amendment an action for loss, damage or injury to property transported from a point in one state to a point in another must be brought by the holder of the bill of lading, and the presumption, is that the law was obeyed and a bill of lading issued, the purpose of the act being to protect the one legally entitled to possession of the property carried.
    4. Bill oe lading—loss of, doe's not defeat action. The loss or destruction of a bill of lading does not defeat an action to recover for damage to goods while in transit.
    5. Carriers—effect of Carmack amendment. Under the Carmack amendment, a provision in a bill of lading limiting the liability of the initial carrier to its own negligence is inoperative.
    6. Carriers—where ultimate destination of shipment is changed by oral agreement. Where the initial carrier agrees orally with the shipper while the goods are on its line to change the destination, it is liable under the Carmack amendment for damage the goods may receive in the hands of other carriers before they reach their destination.
    7. Pleading—in Municipal Court. In the Municipal Court, where no written pleadings are required, the party suing need not name his action and if misnamed it will not affect his rights if upon hearing the evidence he appears to he entitled to recover and the court has jurisdiction of the defendant and the subject-matter.
    8. Appeals and errors—saving questions. A statement of claim though technically defective, which apprises the defendant of plaintiff’s demand as required by section 40 of the Municipal Court Act is regarded as sufficient when questioned for the first time in the court of review.
    9. Costs—motion to tax cost of depositions. In an action where depositions are used which were taken in other cases between the same parties, dismissed on motion of plaintiff, it is proper to deny plaintiff’s motion to tax the costs against defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed May 9, 1913.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit was brought by the appellee (plaintiff) against the appellant (defendant) for damages claimed to have been done to the fruit contained in 21 cars transported from Ogden, Utah, to different places in Minnesota, South Dakota and Iowa by the defendant and other railroads; whose lines of road connect with it at Omaha, Nebraska, and also one car transported from Ogden to Omaha. As to this latter car the defendant was the only carrier, and the larger part of what will hereafter be said in this opinion will have no bearing upon the case with reference to this one car. The suit was brought against defendant as initial carrier, under what is known as the Carmack amendment to the Interstate Commerce Act of February 4, 1887, the amendment having gone into effect June 29, 1908 (34 'Stat. at Large, 584, chap. 3591, U. S. Comp. Stat. Supp. 1911, p. 1288). The particular section of the act upon which this suit is predicated (unless the claim of plaintiff is correct that it is maintainable at common law) is No. 20, and reads as follows:

“That any common carrier, railroad, or transportation company _ receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered, or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed; provided that nothing’ in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage, or injury, as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

As a basis for the establishment of its case the plaintiff introduced in evidence bills of lading issued by the defendant, acknowledging receipt from the Salt Lake Valley Packing Company as consignor of the different cars, respectively. In some instances the plaintiff was designated as consignee, in others “EL D. Foy, Agt.” In all instances the destination fixed by the bills of lading was Omaha, Nebraska. The rate of freight is not mentioned. They are signed by the defendant, by its agent, and by the “Salt Lake Valley Packing Company, by E. L. Eobinson, shipper,” and.directions as to icing the cars, etc., appear in each instance: It seems to be undisputed that the plaintiff at the time of beginning the suit was the lawful holder of the bills of lading.

The contention of the plaintiff is that prior to the arrival of the cars at the destination fixed by the bills of lading, namely, Omaha, Nebraska, an oral contract was entered into between it and the defendant for a “diversion” (as it is termed) of the cars to Minneapolis, St. Paul and other places in Minnesota, Aberdeen, South Dakota, New Hampton, Iowa, etc. The proof in this respect is largely confined to the testimony of David F. Gamble, an officer of the plaintiff, who on his direct examination stated that he had to do with the change of destination of the cars covered by the bills of lading*; that he generally did it through telephone conversation with Mr. D. M. Collins, the agent of the Union Pacific Railroad Company at Minneapolis; that “this was usually the same day—sometimes the following day or not more than three days after the receipt of the bill of lading.” In his testimony he then proceeds to take up the cars, one by one, as mentioned in the statement of claim, and in respect to practically all of them says that he called up Mr. Collins on the telephone and requested him to forward the car on the original bill of lading to Minneapolis or some other point, “through rating to apply;” that he surrendered the bill of lading in each instance to Mr. Collins, and that Mr. Collins promised to divert the car; that he gave Mr. Collins the routing from Omaha to the different points to which he asked him to divert and deliver the cars; that the bills of lading were returned to him.

Mr. D. M. Collins, for the defendant, testified that he was district freight agent for the defendant at Minneapolis ; that he was acquainted with David Gamble; that he never received any request from Mr. Gamble to change the destination’ of any cars in transit and, seriatim, he denied that Mr. Gamble called him up on the telephone and asked him to change the destination of the different cars in question. He further testified that he kept in his office a record in relation to requests for changes in destination of cars in transit; that copies of all telegrams sent about them and any memoranda made at the time were kept, and that there was no one in his office excepting J. E. Collins and himself who had anything to do with handling matters of this kind. On cross-examination he stated that prior to August, 1907, diversions requested by the Gamble-Robins on Commission Company were wired to W. H. Hancock, freight agent, direct; that since then plaintiff called np office of witness and asked his clerk to divert the car or have Mr. Hancock change the car, and that he, the clerk, would wire Mr. Hancock, saving plaintiff the trouble and expense; that he himself did not do this work but that his son, J. E. Collins, who was chief clerk at the time, had full authority.

J. E. Collins testified that in September, 1907, he was chief clerk in the district freight and passenger office of the defendant at Minneapolis; that at the request of Mr. Gamble he changed the destination of four cars; that in each instance the request was followed by a written confirmation; that there were no requests for a change of destination of cars of which there was not a record in the office; that he had looked through the records in .the office and searched carefully for all the diversion ri?S5rds and that there were no other records relative to the cars about which Mr. D. M. Collins was questioned except the four to which reference has been made; that neither Mr. Gamble nor any one for plaintiff requested him to have changed the destination of other ears, and that the only cars upon which the request was made that the destination be changed were the four cars heretofore referred to. On cross-examination he testified that the defendant required those who wanted to divert cars to show some evidence of their interest in the property; that it was customary when the destination of cars was changed to have the bills of lading produced or surrendered.

On rebuttal Mr. Gamble testified that no one had anything to do with the diversion of fruit for his company in September, 1907, but himself; that he never attempted to change the destination of any of these shipments through any other agency or office than “these gentlemen at Minneápolis;’’ that the diversions were all done through Mr. Collins’ office, and that many times Mr. Collins would come to this office to see some of the bills of lading; that the Union Pacific Bail-' road Company had no other office or agency at Minneapolis or St. Paul through whom diversions were made at that time.

The four orders confirming the diversion of the four cars heretofore referred to were placed in evidence. Mr. Gamble testified that he gave a written confirmation of the oral order of diversion in each case, but did not produce copies of them. The record does not disclose the rate of freight charged from Omaha to the different points in the three states mentioned. Mr. Gamble testified that the through rate from Ogden to the various points was applied, but no written evidence was offered as to the amount of freight paid. It would appear that the through rate was less than the sum of the locals. If, therefore, the amount of the freight paid had been disclosed, and the freight rate between Ogden and Omaha and the local freight rate between Omaha and the ultimate destinations had been shown, the evidence would have been helpful in determining the question at issue. There would have been additional proof of the “oneness of charge” and “singleness of rate.” Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186.

Under section 20 of the Act of 1906 amending the Interstate Commerce Law, the initial carrier (in this instance the defendant) is required to issue a receipt or bill of lading for the property received by it for transportation from a point in one state to a point in another state, and the holder of such bill of lading may recover against the initial carrier for any loss, damage or injury to such property caused by it or any common carrier, etc., to which such property may be delivered or over whose line or lines such property may pass in pursuance of the contract created by the receipt or bill of lading and the delivery to the initial carrier for shipment. The act does not provide a method by which the contract may be altered or enlarged with respect to a change of destination.

In the case before ns the measure of damages was fixed at the difference between what it is claimed the fruit was worth in the condition in which it was received at the ultimate destinations, namely, Minneapolis, St. Paul, etc., and what it would have been worth if it had been received within a reasonable time from the time of its departure from Ogden, and the ears had been properly iced and the fruit otherwise properly taken care of during its transportation. A recovery, therefore, is not justifiable against the defendant as initial carrier unless it be shown that a contract was entered into by it for the transportation of the fruit from Ogden to the several destinations. If the fruit in the twenty-one cars had been delivered at Omaha and was found to be in a bad condition, and this condition was brought about by the negligence of the defendant, the measure of damages would of course be based upon entirely different conditions.

In the case of Adams Exp. Co. v. Croninger, 226 U. S. 4-91, the Federal Supreme Court, in an opinion by Mr. Justice Lurton, exhaustively discusses the question as to the effect of the Carmack amendment and other amendments to the Interstate Commerce Law. In our judgment this opinion, which was filed January 6, 1913, renders nugatory as authority many cases in our Supreme Court and the courts of last resort in other states, among others Nonotuck Silk Co. v. Adams Exp. Co., 256 Ill. 66, which was decided in October, 1912, and Plaff v. Pacific Exp. Co., 251 Ill. 243. Referring to the Carmack amendment, Mr. Justice Lurton, speaking for the court, says:

“Prior to that amendment, the rule of carriers’ liability, for an interstate shipment of property, as enforced in both Federal and state courts, was either that of the general common law, as declared by this court and enforced in the Federal courts throughout the United States (Hart v. Pennsylvania R. Co., 112 U. S. 331), or that determined by the supposed public policy of a particular state (Pennsylvania R. Co. v. Hughes, 391 U. S. 477), or that prescribed by statute law of a particular state (Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133).
“Neither uniformity of obligation nor of liability was possible until Congress should deal with the subject.”

After quoting with approval the language of the Supreme Court of Georgia depicting the situation in the matter, the court proceeds: “To hold that the liability therein declared may be increased or diminished by local regulation or local views of public policy will either make the provision less than supreme, or indicate that Congress has not shown a purpose to take possession of the subject. The first would be unthinkable, and the latter would be to revert to the uncertainties and diversities of rulings which led to the amendment. The duty to issue a bill of lading, and the liability thereby assumed, are covered in full; and though there is no reference to the effect upon state regulation, it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject. * * * To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing Federal law at the time of his action gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would cause the proviso to destroy the act itself. One illustration would be a right to a remedy against a succeeding carrier in preference to proceeding against the primary carrier, for a loss or damage incurred upon the line of the former. The liability of such succeeding carrier in the route would be that imposed by this statute, and for which the first carrier might have been made liable. ’ ’

In later cases it has been held by the IT. S. Supreme Court that Congress has so manifested a purpose in the Carmack amendment to take possession of the subject of the liability of a railway carrier for loss or damage to an interstate shipment as to supersede all state regulation upon the same subject, including the provisions of state constitutions or laws invalidating contracts limiting the carrier’s liability. Chicago, St. P., M. & O. R. Co. v. Latta, 226 U. S. 519; Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513; Fry v. Southern Pac. Co., 247 Ill. 564.

We think it follows from these authorities that the law respecting the duties and responsibilities of common carriers of interstate shipments is now to be found wholly in the acts of Congress as construed by the Federal Supreme Court. We are further of the opinion that by reason of the Carmack amendment, suits for any loss, damage or injury to property transported from a point in one state to a point in another must be brought by the holder of the bill of lading, and the presumption is to be indulged in that the law was .obeyed and a bill of lading issued. We do not wish to be understood as meaning that the person bringing the suit may not recover without production of the bill of lading, if the non-production can be accounted for, as for instance that the bill of lading has been lost or destroyed. The evident purpose of the act is to protect the one legally entitled to the possession of the property carried, whether it be the consignor, consignee or owner (who is neither consignor nor consignee), or one with whom the bill of lading has been hypothecated. The design of the statute also is to afford protection to the common carrier against having to pay more than once for any loss or damage for which it may be responsible.

The necessity of an act of Congress to make uniform the law respecting interstate shipments is well illustrated by the case before us, because the bills of lading contain a provision (now made inoperative by the provisions of the act) which in terms limits the liability of the initial carrier to its own negligence, and such a provision has been variously construed by the courts of the different states and the Federal courts. The rule of the initial carrier’s liability, as similar provisions have been construed by the Federal Supreme Court, under the general common law, would preclude recovery. Becovery, therefore, if had in the case before us must be under the statute and not under the common law.

We come now to the question in the present case as to whether or not the proof warrants the conclusion that by agreement of the parties the ultimate destinations of the many cars of fruit involved in this proceeding were changed by the parties to the suit by an oral contract and in such manner as to render the defendant, as the initial carrier, responsible for the damages claimed to have resulted to the shipments.

It is undisputed that the cars reached their ultimate destinations, and the evidence of Mr. Gamble, received so far as the abstract shows without objection, was that the through rate was applied; that no diversion was made through any other office than that of the defendant company in Minneapolis. The evidence as to when the diversion was made as to each particular car is not entirely harmonious, but we cannot say that the finding of the jury that this was done before the arrival at Omaha or before it was incumbent upon the defendant to take possession of the fruit is against the weight of the testimony so far at least as many of the cars are concerned.

It is argued that all the evidence offered in regard to the condition of the fruit at the ultimate destinations and as to the market value was improperly received. The abstract of record shows that very few objections were raised. Our attention has been called to certain testimony which had to do with one particular car. The amount of damages claimed in the statement was slightly more than $10,000; the amount of the recovery was $4,500. We have carefully read the record and are unable to say that there was not sufficient evidence unobjected to to sustain the verdict in the amount. At the close of all the testimony a motion was made to “strike from the record all of the testimony as to the condition and market value of car ‘P. F. E. 5866’ ”, and fourteen others of which the numbers and initials are given. It does not appear either from the abstract or the record itself that any reasons were assigned for striking from the record this testimony. The bill of exceptions contains a colloquy between court and counsel and also certain argument between counsel, all apparently directed to a motion then made to direct a verdict in favor of the defendant.

It is argued that there can be no recovery because the statement of claim does not present a cause of. action under the Carmack amendment. The recital is “Plaintiff’s claim is for money damages incurred to, to-wit, 1,180 boxes of, to-wit, peaches, etc. shipped from, to-wit, Ogden, Utah, on, to-wit, September 5, 1907, via. said defendant to, to-wit, said plaintiff at, to-wit, Minneapolis, Minnesota, arriving thereat, on, to-wit, September 13, 1907; incurred by reason of the failure of said defendant to exercise the care required of it said, to-wit, fruit while in its possession, custody and control, and further on account of the unreasonable delay of said defendant to furnish sufficient and adequate equipment at the initial point of transit thereof for the transit thereof, and further by reason of the unreasonable delay in the transportation thereof, and on account of the failure of said defendant to furnish sufficient and adequate equipment for said transit to, to-wit, 1,180 boxes of, to-wit, peaches, the property of said plaintiff; * * *” and similar allegations as to other cars.

No demand was made for a more specific statement of claim and no motion was made to strike the statement from the record on the ground that it did not state a cause of action. On the other hand the defendant interposed the defenses, first, that the plaintiff was a corporation organized and existing under the laws of some other state than Illinois, and was doing business in Illinois in violation of the statute as to filing articles of incorporation; second, that the defendant did not fail and refuse to furnish sufficient and adequate equipment nor delay in furnishing same, and that it exercised due care in handling the property of plaintiff, and that there was no delay in the delivery of the same. An additional affidavit of defense was filed setting forth “that the property alleged to have been shipped via. defendant in plaintiff’s statement of claim described was not the property of plaintiff nor was it shipped via defendant to the different points alleged in plaintiff’s statement of claim.” Defendant bases its contention upon the case of Walter Cabinet Co. v. Russell, 250 Ill. 416, in which the court held that ‘‘while the formalities of pleading have been abolished by statute, it is still the law in the municipal court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement.”

In the case of Edgerton v. Chicago, R. I. S P. R. Co., 240 Ill. 311, it was held that in cases in the Municipal Court where no written pleadings are required the same rule will govern as controls the form of action before justices of the peace, and that in such action the party suing need not even name his action, or if misnamed that it will not affect his rights, if upon hearing the evidence he appears to be entitled to recover and the court has jurisdiction of the defendant and of the subject-matter of the litigation.

No interrogatories were propounded to the plaintiff, as is permitted under the Municipal Court Act. The affidavit of defense having been filed, the situation is similar to that shown in many decided cases wherein the common-law pleadings were used. The defect in pleading, if it were one, was waived. Illinois Steel Co. v. Hanson, 195 Ill. 106.

The statement of claim, even if technically defective, apprised the defendant of the plaintiff’s demand as required by section 40 of the Municipal Court Act, and after judgment must be regarded as sufficient. 'This point in the case apparently is raised in this court for the first time.

The plaintiff has filed cross-errors on the refusal of the court to tax the costs of depositions taken in certain cases between the parties hereto, which cases were dismissed by the plaintiff. It is alleged that the subject-matter of these five or six suits was the same as the subject-matter of the present suit and that the depositions were by consent used by the parties in- the present suit. A motion to retax the costs was made in the Municipal Court after the appeal to this court had been perfected. We do not think the order entered was erroneous.

The judgment will be affirmed.

Affirmed.


text:
    Tillie Freitag, Appellee, v. Union Stock Yards & Transit Company, Appellant.
    Gen. No. 18,027.
    1. Carriers—injury to trespassers. Where plaintiff, an employe of a packing house going from work, crosses defendant’s tracks in the stock yards at the crossing of a private road instead of crossing over a viaduct provided for that purpose and is struck by a train, there being evidence that the train was moving slowly and that the flagman or trainman did not see plaintiff in time to prevent the injury, a judgment for plaintiff will he reversed since plaintiff was a trespasser, and defendant was not guilty of wilful or wanton negligence.
    2. Railroads—running trains over crossing which many people are using. Defendant in a personal injury action is not guilty of wanton and wilful negligence in running trains on its tracks at a time when many pedestrians using a private road were crossing, when it has provided a viaduct over the tracks for the purpose of pedestrians.
    3. Railboads—where crossing is connected with public street. Where a railroad crossing is so connected with a public street as to be apparently a part of it and has been used by the public for many years, one who is injured in crossing is not held to be a trespasser.
    4. Railroads—trespassers. A railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way except not to wantonly or wilfully injure him.
    5. Railroads—duty to people using crossing. Where a place on a railroad company’s right of way has been openly used jointly by the railroad and the public as a crossing, the railroad company owes to persons crossing at such places the duty of exercising reasonable care to avoid injuring them, and the failure to give required signals may amount to wanton or gross negligence.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed May 9, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; John Barton Payne and John D. Black, of counsel.
    William: Elmore Foster, Bert J. Wellman, Arthur A. House and Frederick Sass, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This appeal brings up for review a judgment rendered in favor of appellee (plaintiff) against the appellant (defendant) in a suit brought by the appellee for damages resulting from personal injuries sustained by her on the track of the defendant on December 27, 1904.

The declaration consists of 13 counts, including those added after the original declaration was filed, but the case was submitted to the jury upon the third additional count only. Prior to the trial suit was dismissed as against another defendant, the Chicago Junction Railway Company. Some of the counts were withdrawn by the plaintiff, and the court instructed the jury that as to the others, excepting the one referred to, there could be no recovery. No cross-errors have been assigned to the action of the court in thus excluding from the consideration of the jury the matters set up in these other counts, and on this review of the case we are limited in the consideration of the basic right of the plaintiff to a recovery, so far as the pleadings are concerned, to the matters set forth in the one count. This count alleges in substance that the defendant was using certain grounds in the city of Chicago as stock yards; that it was the franchise holder and proprietor of a certain steam railroad with numerous tracks which ran into and through said grounds, and which it operated by its lessee, the Chicago Junction Bailway Company; that the “railway tracks were intersected and crossed at grade or level, on said grounds, by a certain common public highway, road, street, foot path, crossing or public place open to the public, which had been constantly used by persons having work and business on said grounds and by the public for more than twenty years prior to the -27th day of December, 1904, for the purpose of ingress, egress, etc. * * * with the knowledge of the defendant;” that between the hours of five and six in the evening the “said intersection and crossing was daily used by thousands of pedestrians;” that on said day, between five and six o’clock in the evening, while the air was filled with snow and a high wind blowing, plaintiff and divers others were passing over said railroad tracks on said common public highway, road, street, foot path, crossing or public place open to the public, and that defendant, by its lessee, was then and there switching certain cars or trains of cars and was driving the same near and towards the said crossing, and the servants of the said Chicago Junction Bailway Company then and there in charge of said cars or train well knew that the intersection or crossing was daily thronged with pedestrians at said hour and that the plaintiff and said others were then and there passing over said railroad tracks on said intersection or crossing, and well knew that plaintiff was then and there in a position of danger and well knew that she conld not and did not see said cars or train of cars and well knew that she conld not escape from said danger; yet, disregarding its duty in the premises, knowingly, wittingly, wilfully and maliciously and with a wanton and reckless disregard for the rights of the plaintiff, the defendant, by its lessee, then and there ran, switched, drove and propelled the said cars or train of cars upon and against and over the plaintiff, whereby she was injured, etc. About a year before the accident the defendant had constructed over the tracks a large viaduct for foot passengers, the evident purpose of which was to enable pedestrians to get over the tracks without subjecting themselves to risk of injury. A sign 61 inches long and 47 inches high was placed over each approach to the viaduct, bearing upon it in large letters the words, “Dangerous crossing—Walk over viaduct—Crossing on tracks forbidden.” Appellee testified that she had seen the signs on the viaduct but had never read them; that she could not read English; that she had asked a boy once to read one of the signs for her and that he said, “the viaduct was there for to go over if crossing was blocked.”

The plaintiff was an employe of a packing house. About 5:45 p. m. on the day of the accident, after leaving her work, she reached the crossing of the tracks and a private road. The tracks were four in number. The road was enclosed on both sides by board fences which extended to the tracks. The entrance to the viaduct which plaintiff would have taken if she had not chosen to take the course she did, was passed by her before she reached the tracks. The roadway south of the tracks was paved with granite blocks and was about twenty-one feet in width, that portion of the roadway being used for team traffic. Alongside the track and on the west side of it there was a cinder path. This path led to the stairway of the viaduct and extended alongside the stairway to what is spoken of in the record as the first or southernmost track. From the photographs introduced in evidence by consent during the submission of evidence by plaintiff, it would seem that the cinder path ended at the first track reached from the south. It is undisputed that the granite blocking ended just south of the south track, and that over the tracks there was a planked driveway. On the evening of the accident, which was dark and stormy, the plaintiff walked between the team road and the east end of the steps leading to the viaduct, and continued on north to the railroad tracks. When she reached the south track she found standing upon the track to the north a number of cars. The testimony of practically all the witnesses for the plaintiff, as well as the defendant, was to the effect that these cars upon this track completely blocked the crossing. The plaintiff testified that there was a space of about two or two and one-half feet left free and not covered by ány cars; that she did not walk through this space, but could not tell why she did not do so; that she had on her head a knitted woolen garment, called a “fascinator,” which reached down to her neck and was tied with strings about the neck.

At this time a train consisting of twelve cars and an engine was backing up upon the third track, other cars which previously had been attached to the train having been left on the second track, as heretofore stated. The plaintiff testified that she turned west about eight feet from the standing car (evidently the west car of those upon the second track and crossing), and then turned northwest upon the third track, where she was struck and received very serious injuries. She further testified that she saw no flagman. That a flagman was there is not disputed. The flagman testified that at the time of the accident he stood at the west end of the standing car with his lantern in his hand; that people were passing over the track and he was trying to warn them; that he saw plaintiff come around from the south side of the car, at an angle, not close enough to him so that he could reach her, but about five or six feet away from him; that she was following two men that were hurrying across and trying to keep up with them, and that he called to her to look out; that she did not stop or look to the right or left, and that the backing train was upon her just as she put her foot on the track on which it was moving.

A switchman named Fox, who was a witness for plaintiff, testified that he saw her walking from behind the end of the standing car “at a pretty good gait,” a couple of seconds before she was struck; that she walked right in front of the moving train; that she was five feet from the moving train when he saw her go by the end of the standing car and was about thirty feet away from him. It seems to be admitted, at least we find nothing in the record tending to show anything to the contrary, that the point at which plaintiff was struck was thirty-one feet west of the west line of the planked crossing. Fox’s testimony also is not disputed that his position at the time of the accident was about three or four feet west of the west side of the roadway and on track No. 3; that he had a lighted lantern in his hand and was signaling to the conductor to back the train toward him on that track; that the conductor in charge of the train was walking alongside of the train.

There was evidence tending to show that many pedestrians used the roadway, perhaps as many as, if not more than, used the viaduct; also that there were at the time of the accident several persons upon the viaduct who crossed over it in safety.

It was admitted in the argument for the plaintiff, as necessarily it must have been, that the plaintiff at the time of the accident was a trespasser. The only count of the declaration upon which reliance is placed is what is known as the third additional count. This count, as heretofore appears, does not set forth specifically what acts of any employes of the defendant, or of its lessee, are claimed to be of such a character as to constitute wilful and wanton conduct. The facts of the case are entirely unlike those in other cases to which our attention has been called by the appellee. No ordinance as to speed was violated so far as the record shows. On the other hand, the train appears to have been going at a very slow rate. If it be assumed that there should have been a light upon the rear car during the switching movement, which is a matter of doubt, the absénce of it did not constitute wanton negligence. The engineer and the fireman of the train are not claimed to have been at fault. It is insisted, however, that the flagman might have .done more than he did to protect her. There is no contradiction of his testimony to the effect that the plaintiff passed him at such a distance that he could not have grasped her or prevented her by physical means from going upon the third track. He was at his place of duty under the circumstances, and was protecting the crossing from the south. The switch-man, with his lantern, was also at the crossing, protecting it from the north, where he was signaling the train to back toward him. We do not think either of these men can be said to have been guilty of negligence, much less wanton conduct.

We do not understand counsel for appellee to argue that the evidence showed that there was a cinder path where the plaintiff was struck. On the other hand, it is said that the question is not whether or not there was a path, but whether people walked there in sufficient numbers to apprise the defendant of their probable presence there at that time of the day.

The case of Lake Shore S M. S. R. Co. v. Bodemer, 139 Ill. 596, is cited by the plaintiff. In that case a nine year old boy was struck by a train on a private right of way between two streets in the City of Chicago. The train which committed the injury was traveling at the unusual speed of thirty-five or forty miles an hour over street crossings, upon unguarded tracks so connected with the public streets and so apparently the continuation of a public street as to be regarded by ordinary citizens as located in a public street, in conceded violation of a city ordinance as to speed, and without warning of the approach of the train by the ringing of a bell. It appeared that there were no gates where Twenty-sixth street crossed the tracks; that the tracks were laid upon what was called Clark street, running directly south from Twenty-second street; that there were two roadways along the east and west sides of the tracks; that there were no fences between these roadways and the tracks; that the public drove along these roadways, running north and south, with wagons to unload cars on the tracks between Twenty-fifth and Twenty-sixth streets. The court held that the engineer in such circumstances showed such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness and wantonness.

In the case now under consideration no ordinance was violated, and there was no proof that the engineer knew or had reason to expect that persons would be upon the private property of the defendant at the place where the plaintiff was injured. It is argued that the switchman was at fault, and that at this time of the day he should not have caused a movement of the train; in other words, that permitting the train to move under the circumstances was evidence of such gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness. We cannot agree in this conclusion. The defendant having provided a safe method for pedestrians to cross the track by way of the viaduct, we do not think that the presumption of wilfulness or wantonness on its part may be indulged in if operations upon its tracks were not caused to cease at this time of the day.

In the case of Pittsburgh, Ft. W. C. R. Co. v. Callaghan, 157 Ill. 406, the place of the occurrence was not on the private property of the railway company, and the party injured was not a trespasser.

In the case of Chicago & A. R. Co. v. O’Neil, 172 Ill. 527, the city ordinance was shown to have been violated. There was evidence tending to show that the place of the accident was a public place open to the public. That being so, the person injured was not as in the case before us, admittedly a trespasser.

In the case of East St. Louis Connecting R. Co. v. O’Hara, 150 Ill. 580, the tracks upon which the accident happened were not enclosed or separated from the street on the one hand, or the wharves of a ferry company on the other, but were so connected with the public street as to be apparently a part of it, and had been used by the public for many years. The rule with reference to conduct as respects trespassers did not apply.

The case of Neice v. Chicago & A. R. Co., 254 Ill. 595, is also cited by the plaintiff. In this case the injured person was on the platform at a station of the defendant road; he was not there for the purpose of taking passage. It was held that he was a trespasser. He was struck by a train going at a rate between twenty-five and forty miles an hour at a place where the maximum rate of speed fixed by ordinance was ten miles an hour. The court said:

“There was no relation existing between him and the defendants which created a duty or obligation toward him as a passenger or one intending to take passage or transacting any other lawful business on the depot grounds, and it is true that ordinarily in the case of a trespasser the obligation of care to avoid injury arises at the time that his perilous position becomes known to those in charge of the train. (Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559; Illinois Cent. R. Co. v. Eicher, 202 Ill. 556; Thompson v. Cleveland, C. , C. & St. L. R. Co., 226 Ill. 542.) _ Upon the right of way of the railroad where the public are not invited or authorized to go for the transaction of business with the railroad company, those in charge of the train must have knowledge both of the presence of the trespasser and of his dangerous situation, but depot grounds and platforms provided by the railroad company for the use of the public in the transaction of its business, where persons have a right to be for legitimate purposes and where they may reasonably be expected, are quite different. If they are there for a legitimate purpose in connection with the business of the company they have a right to demand the exercise of reasonable care for their safety. If they are simply idlers, loiterers or trespassers the duty of the company is only to abstain from wilfully or wantonly injuring them.”

In the case of Illinois Cent. R. Co. v. O’Connor, 189 Til. 559, as in the case before us, it appeared that the place of the injury was upon defendant’s right of way and not upon a public street. There was no controversy over the fact that in the summer season persons in a greater or less number were in the habit and had been for several years, of crossing the defendant’s grounds from the foot of Twenty-fifth street, in the city of Chicago, due east to the lake for the purpose of bathing; that this fact was known to the defendant and its employes operating the train at the time of the accident; that the plaintiff with others had gone to the lake shore and was returning by the same route at about nine o’clock at night, when on one of the tracks of the defendant he was struck by a flat car which was being backed northward. The evidence was conflicting as to the speed at which the car was moving, and also whether ordinances set out in the declaration were being observed, but the evidence tended to show that the speed of the backing-train was some seven or eight miles an hour; that no lights were displayed upon the rear car or bell rung or other warning given. There was no evidence to the effect, nor was it claimed, that any employe of the defendant in charge of the train saw or had knowledge of the fact that the boy was on the track or right of way. It was not denied that the plaintiff was at the time he received his injury a trespasser upon the track of the defendant. In passing upon the case the court said:

“This court is committed to the doctrine that a railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way or tracks except that it will not wantonly or wilfully inflict injury upon him, and we have frequently held that the mere fact that signals required by statutes and ordinances are not given, even though those operating its trains may have knowledge of the fact that persons have been in the habit of crossing its tracks or walking upon them at places other than public crossings or public places, will not amount to proof of wilful and wanton disregard of duty toward such trespassers.”

Previous decisions to the same effect are Illinois Cent, R. Co. v. Godfrey, 71 Ill. 500; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510; Blanchard v. Lake Shore & M. S. R. Co., 126 Ill. 416.

The court in the O’Connor case, supra, distinguishes it from the decisions to which reference has been made heretofore in this opinion, where the place “has been openly used jointly by the railroads and the public,” or where, from the evidence, the ownership of the place is left in doubt, or where the accident occurred on a “public street or upon the planked tracks adjacent thereto,” or where the evidence tended to show that the place of the injury was a public street of a city. Chicago & A. R. Co. v. O’Neil, 172 Ill. 527; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77; Lake Shore & M. S. R. Co. v. Bodemer, 139 Ill. 596. The rule is that the company owes to persons at such places the duty of exercising reasonable care to avoid inflicting injury upon them, and the failure to give required signals may amount to wanton or gross negligence. In the O’Connor case, as in the one before us, the plaintiff was upon the defendant’s right of way, not upon any business with the defendant—nor by any right or claim of right—but for his convenience. In that case it was conceded by the evidence that by putting himself to the inconvenience of walking a few blocks either north or south he could have crossed the tracks to the lake shore with safety. In the case before us it is clear from the evidence that the plaintiff, by using the viaduct placed over the tracks for her convenience, could have crossed them with safety. We are controlled by the decisions of the Supreme Court in similar cases heretofore mentioned and others of later date. Illinois Cent. R. Co. v. Eicher, 202 Ill. 556; Feitl v. Chicago City Ry. Co., 211 Ill. 279; Thompson v. Cleveland, C., C. & St. L. R. Co., 226 Ill. 542.

In our opinion the motion to direct a verdict for the defendant on the third additional count should have been given. It follows therefore that the judgment of the Superior Court must be reversed.

Beversed.


text:
    Harry Hamill, Defendant in Error, v. Thomas A. Watts, Plaintiff in Error.
    Gen. No. 18,101.
    1. Municipal Court—evidence. Under rule 17 of the Municipal Court defendant is permitted to introduce evidence of only such defenses as are set out in his affidavit of merits.
    2. Municipal Court—when allegation of fact is admitted. Under rule 19 of the Municipal Court every allegation of fact in any statement of claim, counterclaim or set-off not denied specifically or hy necessary implication in the affidavit of defense is taken to he admitted, except as against an infant or lunatic.

      3. Municipal Court—who may sue. Under rule 23 of the Municipal Court the assignee and equitable and bona fide owner of any chose in action not negotiable may sue thereon in his name.
    4. Corporations—when certificate of incorporation is not recorded. A corporation has no right to transact business when it has not recorded in the county where its principal office is located a certificate of organization from the Secretary of State.
    5. Master and servant—action for wages. In an action by plaintiff as assignee of certan miners’ wage claims, where defendant does not deny they were assigned to plaintiff for a valuable consideration but contends that the claims were against a certain corporation and the evidence shows that the alleged corporation had not recorded a certificate of organization and that defendant was the owner and operator of the mine, there is sufficient evidence to sustain a judgment for plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate. Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    Gideon S. Thompson, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Judgment was rendered in this case in favor of the plaintiff (defendant in error) and against the defendant (plaintiff in error) on an alleged assignment of wage claims.

The plaintiff’s statement recites that his claim is based on sundry labor claims, being' for money due from the defendant to various persons for work and labor in and about the operation of a coal mine at Mt. Vernon, Illinois; that the defendant was operating the mine under the name of Mt. Vernon Coal Company, and while so operating it became indebted to sundry persons named in the statement; that the claims were purchased from the several holders thereof at the request of defendant by one H. D. Wagner; that Wagner assigned the claims to the plaintiff for a valuable consideration, and that the plaintiff is the actual bona fide owner of the same.

The affidavit of defense filed recited that none of the persons mentioned in the amended statement of claim had ever had any claims against the defendant for work and labor; that the mine at Mt. Vernon was owned by a corporation and not by the defendant; that the defendant is in no way whatsoever, and never was, indebted to any of the said persons; that the defendant did not operate the coal mine under the name of the Mt. Vernon coal company and did not become indebted to the said persons in the amounts claimed in the statement of claim or in any sums whatsoever; that the defendant never requested Wagner or any other person to purchase from the holders these said claims at their face value or at any other sum. The affidavit has further recitals as to the defendant having agreed to sell his interest in the capital stock of the corporation owning the mine to one Patton, and as a part of the purchase price of said stock in said mine said Patton agreed to pay all claims due to any laborers from said corporation; that the defendant never had any dealings of any kind with the plaintiff, and never had any knowledge or notice of the alleged assignments of any claim against the defendant.

There' was a trial before the court without a jury, and a finding in favor of the plaintiff for the sum of $973 and judgment rendered upon such finding.

The points relied upon by defendant for reversal, as shown by the brief, are, that the record does not show that the employes whose claims were assigned believed or had knowledge that they were working for any one other than the Boland Coal Mining Company; or that they had been employed by the defendant or thought to hold him liable for their wages, or that said employes ever made a claim against the defendant; that the record affirmatively shows that one Pollock knew that the mine had been sold to the Boland Company, arid that notwithstanding that the judgment included a wage claim of Pollock’s; that the assignments were not proved by competent evidence, and that it was not necessary to show that the charter of the Boland Company had not been recorded.

Rule 17 of the Municipal Court provides that the defendant shall file an affidavit sworn to by himself, his agent or attorney, stating that he verily believes that he has a good defense to the suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense in such a manner as reasonably to inform the plaintiff of the defense which will be interposed at the trial, and evidence “of only such defenses as are set out in said affidavit shall be admitted upon the trial.” Rule 19 provides that “every allegation of fact in any statement of claim or of counter-claim of set-off if not denied specifically or by necessary implication in the affidavit of defense filed in reply by the opposite party, shall be taken to be admitted except as against an infant or lunatic.” See also Rule 20 and Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276.

Section 18 of the Practice Act, providing that the assignee and equitable and bona fide owner of any chose in action not negotiable may sue thereon in his own name, has been made to apply to cases in the Municipal Court by rule'23.

It is to be noted that the affidavit of defense does not deny the fact alleged in the statement that Wagner assigned the claims to the plaintiff for a valuable consideration. It does deny that the defendant operated the coal mine under the name of the Mt. Vernon Coal Company, and further that the persons mentioned in the amended statement of claim had any claims against the defendant for work and labor, and alleges that he did not become indebted to them.

At the trial a bookkeeper who had been employed at the mine gave evidence which, in' our opinion, tended strongly to show that the defendant was operating the coal mine under the name of the Mt. Vernon Coal Company (that he did so operate at one time is admitted by defendant), and the dispute between the parties seems to be based largely upon the question as to whether or not the Boland Coal Mining Company had been formed and the property turned over to that company, and as to whether at the time the labor was performed that company conducted the operations of the mine. It appeared that the bookkeeper kept the time of the men and participated in the making of the pay checks. The affidavit of defense does not challenge the plaintiff’s claim, made in his statement, that Wagner purchased them from the several holders and owners thereof, but merely denies that the defendant requested him so to purchase them. Pay checks introduced in evidence bear upon them the words “Mt. Vernon Coal Company,” and, as heretofore stated, we think the evidence was sufficient to warrant the conclusion that it was under this name the defendant was doing business. We are not convinced that the Roland Coal Mining Company, as a corporation organized under the laws of Illinois, was operating the property at the time the labor was performed. The bookkeeper testified that the “only thing” he had heard about the business of the mine belonging to a corporation known of that name “was just a rumor;” that he had never received any official notice of it; that afterwards the superintendent told him it was then a corporation, and that he guessed that this was told him about a week after the time it was supposed to have been incorporated; that there was no change in the bookkeeping, and that the letterheads were changed a week or possibly two weeks after the time “the place was supposed to have been incorporated.” The bookkeeper seems to have had charge of the bank account, and testified that when a large collection was made it would be put in the bank in the name of the Mt. Vernon Coal Mining Company.

The defendant testified on cross-examination (not abstracted) that he was the ‘6record owner” of the mine prior to the incorporation of the Boland Coal Mining Company. Letters written by him to his bookkeeper tended also to indicate that he regarded himself as the owner at-the time the labor claims originated.

The record does not show that a certificate from the Secretary of State of the complete organization of the corporation had been recorded in the office of the Becorder of Deeds of the county where the principal office of the company was located. It was said in the case of Loverin v. McLaughlin, 161 Ill. 417 (425), that such a corporation has no right to transact business.

There was introduced in evidence a special warranty deed by the defendant and wife conveying the title to certain lands in the city of Mt. Vernon to the Boland Coal Mining Company, which appears to have been properly acknowledged and duly recorded.

Notwithstanding this evidence, we are unable to say that the finding of the court that the mine was being operated by the defendant and that the laborers whose claims were assigned were in his employ is erroneous. The judgment will be affirmed.

Affirmed.


text:
    Frank A. Blair et al., v. Michael H. Hickey et al. On Appeal of Tressie O. Hickey (Cross-complainant) Appellant, v. Frank A. Blair et al., Appellees.
    Gen No. 18,398.

      Mortgages—when cross-hill may he dismissed. On suit to foreclose a trust deed given to secure a, loan, dismissal of a cross-bill alleging payment after a demurrer is filed thereto is proper when payment could have been shown under the answer.

      Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Frank P. Betnolds, for appellant.
    No appearance for appellees.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The appellees filed a bill of complaint against Michael H. Hickey and his wife, Tressie O. Hickey, the appellant, seeking to foreclose a trust deed given to secure a loan for $10,000. Answers were filed by Hickey and the appellant. Thereafter the appellant filed a cross-bill alleging payment of the indebtedness prior to the filing of the original bill, and asking that the indebtedness be declared paid and satisfied and “said trust deed be declared a cloud upon the inchoate right of dower” of appellant in the premises. To this cross-bill a demurrer was filed and sustained, and from a decree dismissing the cross-bill the appeal is taken.

The decree was proper. The appellant could have shown under her answer to the original bill that the amount claimed therein to be due upon the notes and trust deeds securing the same had been paid, and no cross-bill was necessary.

Affirmed.


author: Mr. Justice Barnes

text:
    Henry G. Tyrrell, Appellee, v. John S. Robinson et al., Appellants.
    Gen. No. 17,107.
    1. Statute of frauds—how question raised. The statute of frauds cannot he relied on in the Appellate Court when the question was not raised in the trial court hy plea, objection to- evidence, motion to strike out evidence, or by instructions given or refused.
    2. Statute of frauds-—how question presented. The question of the statute of frauds is not presented by merely a request for a directed verdict.
    3. Master and servant—when contract for compensation established. Evidence held to support special counts alleging an agreement to pay plaintiff, an estimator, a monthly salary and certain commissions.
    4. Appeals and errors-—examination of record. When the Appellate Court reviews a record to determine whether the evidence supports the verdict and is convinced that it does and announces its conclusion without extensive analysis of the testimony it is not justly subject to the imputation that it did not examine the record and failed to discharge its duty.
    Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion on rehearing filed May 9, 1913.
    Underwood & Manierre and Holdom, Manierre & Pratt, for appellants.
    Prank Crozier, for appellee
   Mr. Justice Barnes

delivered the opinion of the court.

Appellants ask for a reversal of the judgment for plaintiff on two grounds; (1) that the contract sued on comes within the statute of frauds, and (2) that the verdict was against the manifest weight of the evidence.

It is enough to say with respect to the first that not only was there no plea setting up the statute of frauds (whether necessary or not), but there was no objection to evidence, nor motion to strike out evidence, nor instruction given or refused or asked for, by which the question was raised in the court below, and manifestly it cannot be raised here for the first time. Highley v. Metzger, 187 Ill. 237; Sanford v. Davis, 181 Ill. 570.

That it could have been raised in the court below by one of these methods and the court thus have been apprised of the purpose to claim the benefit of the statute (had appellants entertained any such purpose), hardly needs to be stated, and it has been held at least twice by this court that the question is not presented merely by the request for a directed verdict. Hodges v. Bankers’ Surety Co., 152 Ill. App. 372; Lanser v. Fidler, 158 Ill. App. 94.

But were the questions properly raised, the record can hardly be said to support the contention which rests alone upon plaintiff’s testimony that it was an oral contract of hire for one year, and that he “went to work” the day after it was entered into; for there was no proof that it was a part of the agreement that plaintiff should commence work the next day or that his term of service was to begin in the future. The evidence is perfectly consistent with an understanding that his term of service began the day of entering into the agreement. The difference between an express agreement for services to commence in the future and one that does not so provide is pointed out in Billington v. Cahill, 51 Hun 132, which reviews the cases on this subject.

As to the other ground urged, we think the evidence amply supports the special counts alleging an agreement to pay plaintiff, as estimator, a monthly salary of $150 and commissions amounting to one-half of one per cent, of the contract price of building work estimated by him. That he was to receive and was paid, up to the time of the severance of their relations, $150 monthly is not denied. In addition thereto he was paid $300 under circumstances which an impartial reader of the record would regard as a recognition and strong corroboration of plaintiff’s claim to commissions. The conclusion is further supported not only by defendant’s feeble explanations that “it was a gift” and again that it was a raise of salary (which was not subsequently recognized), but by the undenied testimony that when plaintiff submitted to one of defendants his estimate of about a million dollars for the erection of a building, said defendant added $5,000 thereto, a sum that would just about pay, and was probably intended to pay, the commission that would be due plaintiff under his version of the agreement.

It is needless to point out other matters in the record which confirm in our minds the verity of plaintiff’s contention. We would not have pointed out these corroborations of his testimony but for appellants’ repeated insistence that none could be found in the record. In fact we cannot read this record without being impressed, as the jury must have been, that the treatment plaintiff received from the defendants evinced a plain purpose to evade their obligations.

The first question not having been fully argued in the original briefs, we granted a rehearing of this case. The petition therefor, however, not only violated the well known rule against a reargument of the entire case, but, in its unmistakable tone of disrespect, the ethics usually observed by the profession.

When this court reviews a record to determine whether the evidence supports the verdict of a jury and is convinced that it does, and announces its conclusion thereon without extensive analysis of the testimony in its opinion,—which the law does not require and which, in case of affirmance, usually subserves no useful purpose and is often dispensed with,—it is not justly subject to the imputation that it did not examine the record and failed to discharge its duty. Notwithstanding an unwarranted charge in the petition to that effect, the rehearing was granted, but for the reason above stated. The judgment is affirmed.

Affirmed.