text:
    Guiseppe Colozza, Appellee, v. Iowa Central Railway Company and Wabash Railroad Company, Appellants.
    Gen. No. 18,364.
    1. Master and servant , § 115

      —when railroad companies jointly liable for injury to servant. Where a servant of a lessor railroad is injured by the negligence of the lessee railroad, both are jointly liable.
    2. Master and servant, § 548*—when declaration avers joint liability of railroad companies for injuries to servant. Count in a declaration in an action against two railroad companies held to state a cause of action where it alleges that defendants owned and operated a railroad with engines, cars, trains, tracks, etc., and that plaintiff while employed by one of the companies was injured by the defendants carelessly operating their cars.
    3. Master and servant, § 532*—when additional counts state no new cause of action. Additional counts differing from the original counts in alleging that one of the defendant railroad companies owned and managed the tracks and that the other operated as lessee, while the original counts alleged that both defendants owned and operated the engine and cars which injured the plaintiff, held not to state a new cause of action.
    4. Master and servant, § 779

      —when instruction applying foreign law to joint defendants, erroneous. In an action by a servant of a lessor railroad company against both lessor and lessee companies for injuries resulting from the negligence of the latter while employed in another State, an instruction purporting to apply to both defendants and based on a law of such other. State which takes away certain defenses but applies only to railroads which are employers of the servant injured, held erroneous.
    5. Railroads, § 485*—liability for negligence of lessee company. Both lessor and lessee railroad companies are liable for the negligence of the lessee company.
    6. Statutes, § 272*—necessity of pleading laws of other States. Unless the law of another State is pleaded it is not admissible in evidence, and it will be conclusively presumed to be the same as the law of this State.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    W. H. Bremner and Gardner, Carton & Gardner, for appellants.
    Beach & Beach, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

In November, 1909, appellee was working as a track repairer in the yard of the Iowa Central Railway Company at Albia, Iowa. The tracks in the yard ran north and south. East of the main track there were four switch tracks, numbered' one, two, three and four. Appellee was working on track number two with a number of other men. There was a pile of ties lying on the ground east of track number four, nearly opposite the place where the men were working. The tracks were owned by the Iowa Central, but the Wabash Railroad Company also operated trains over them, under an agreement permitting such use.

In the forenoon of November 8, 1909, the Wabash Company set out a train of cars on track number three, leaving an opening four or five feet wide between two of the cars about opposite the place where the track repairers were at work. The workmen passed through this opening several times during the day in going to and from the pile of ties. There were ten or twelve cars on the track north of the opening, and a like number to the south of it. There were also cars on tracks two and four. About three o ’clock in the afternoon of that day, a Wabash engine, which had been switching at the south end of the yard (several hundred feet south), backed a train of fifteen or sixteen cars in on track number three, shoved them against the cars standing south of the opening, which in turn moved on and closed the opening just as appellee was passing through it. His right arm was caught between the cars and crushed so that it had to be amputated. He brought suit against both railroad companies and recovered a judgment for seven thousand five hundred dollars, from which both have appealed.

As originally filed, the declaration consisted of three counts. The first count alleges that both defendants were corporations owning and operating a railroad with engines, cars, trains, tracks, switches and sidings in Monroe county, Iowa; that the plaintiff (appellee) was employed by the Iowa Central Railway Company at or near the city of Albia, in said county, and that his duties required him to work in and about the yards of the defendants and from time to time to cross the tracks; that while he was performing such duties with due care, defendants so carelessly operated an engine and train of cars, which were in charge of other employes who were not fellow-servants of the plaintiff, that they were suddenly and violently moved and the plaintiff was caught and crushed between the cars. The second count differs from the first only in alleging that the plaintiff was in the act of crossing the track along.which the cars were moved as he was required to do by the duties of his employment, and de- • fendants failed to ring a bell, sound a whistle or give any other warning of the approach of the train. The third count is the same as the second, with the addition of an allegation which sets out in full section 2071 of the Iowa Code as amended in 1909, the material portions of which, so far as this case is concerned, are as follows: “Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employes thereof. * * * In all actions hereafter brought against any such corporation to recover damages for the personal injury or death of any employe under or by virtue of this section, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe; * * * nor shall it be any defense to such action that the' employe who was injured or killed assumed the risks of his employment.”

To this declaration, the defendants filed separate pleas of not guilty. The Wabash company also filed an additional plea denying any joint operation of the engine and train of cars. The Iowa Central company filed three additional pleas, the first of which denies that it owned the engine and train in question and that it jointly operated the same. The second alleges that the Iowa Central company had granted to the Wabash company the right to jointly use its tracks, that the latter solely owned and operated the engine and train which injured the plaintiff, that the plaintiff was employed solely by the Iowa Central, and that the law of the State of Iowa did not charge it with any liability to the plaintiff for injuries resulting from the negligence of the Wabash company in operating trains over the tracks of the Iowa Central, company. The third plea alleges that the Iowa Central neither owned nor operated the train which injured the plaintiff. The plaintiff demurred to all of the additional pleas and his demurrer was sustained to all except the third additional plea of the Iowa Central Railway Company, and was overruled as to that plea. Thereupon the plaintiff filed a replication stating in substance that the Iowa Central Railway Company was the owner of the tracks and the Wabash Railroad Company its lessee, and that the latter owned and operated the engine and train which injured the plaintiff. To this replication the Iowa Central company filed a special demurrer on the ground that the replication was a departure from the cause of action stated in the declaration. This special demurrer was overruled. On November 28, 1911, more than two years after the accident occurred, plaintiff filed three additional counts, which were the same as the original counts, with the exception that in place of the allegation that both defendants owned and operated the engine and the cars which injured the plaintiff it was alleged that the Iowa Central company owned, controlled and managed the tracks, and that the Wabash company was the operating lessee. To these additional counts the defendants pleaded the statute of limitations, and the plaintiff demurred to said plea. The demurrer 'was sustained and the plea of general issue was ordered to stand to the three additional counts.

Considerable space has been devoted in the brief of counsel for the Iowa Central company to a discussion of the rulings of the court upon the questions of pleading involved. We deem it unnecessary to answer in detail each of the propositions thus argued, as we think, after a careful consideration of the points discussed, that the record is free from substantial error in this respect. As to the plea of the statute of limitations, the argument of counsel is, in substance, that none of the original counts of the declaration states a cause of action because, it is said, no facts are averred from which it appears that there was any duty on the part of the defendants to protect the plaintiff from the injury of which he complains, and inasmuch as the facts giving rise to such a duty are stated, it is claimed, for the first time in the additional counts filed more than two years after the accident occurred, therefore the additional counts state a cause of action which was never before stated, and the statute applies. In support of the first premise of this argument, counsel rely chiefly on the case of McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232. In that case the declaration alleged that the plaintiff was an employe of the Illinois Steel Company (which was not a defendant) at its plant in South Chicago, at which plant there were certain railroad tracks, and that while the plaintiff, with due care, etc., was upon and about to unload a car standing on one of the tracks, the defendant railway company negligently and without warning, shoved other cars against the car in which plaintiff was standing and injured him. It was there held that the declaration did not state a cause of action. That case was distinguished, however, in the later case of Grace & Hyde Co. v. Sanborn, 225 Ill. 138, where a declaration similar in most respects to that filed in.the McAndrews case, supra, contained the additional averments that the plaintiff was in the employ of the defendant, and “was in the necessary discharge of his duty as an employee of defendant” when he was injured. The Court held that these additional averments were sufficient to overcome the objections sustained to the declaration in the McAndrews case, saying (p. 141): “The master owes to the servant the duty of refraining from injuring him by any negligent act while the servant is in the performance of his duty. The declaration, therefore, states facts from which the defendant’s duty to the plaintiff above mentioned appears, and this case is in this respect distinguished from McAndrews v. Chicago, Lake Shore & Eastern Railway Co., 222 Ill. 232, where the relation of master and servant did not exist.” In Lake Shore & M. S. Ry. Co. v. Enright, 227 Ill. 403, the McAndretvs case was again distinguished on similar grounds. In the present case, the original counts of the declaration contain the same averments, in substance, as those which were thus held to supply the defect found in the McAndretvs case. No demurrer was filed to these counts and therefore, upon the authority of the Sanborn and Enright cases above cited, we think the counts stated a good cause of action in a manner sufficient, at least, to withstand attack after verdict or when questioned by a plea of the statute of limitations to the amended or additional counts. These cases are also a sufficient answer to the argument advanced to the effect that the declaration does not state any facts which constitute negligence on the part of defendant. As to the question of departure, we think the argument of appellants ’ counsel is fully answered against their contention by the same cases, when read in connection with Anderson v. West Chicago St. Ry. Co., 200 Ill. 329; Chicago & G. T. Ry. Co. v. Hart, 209 Ill. 414; and, especially, Wabash R. Co. v. Keeler, 127 Ill. App. 265.

The serious question involved on this appeal is whether the court erred in giving to the jury the first instruction. That instruction states a rule of liability taken, almost verbatim, from section 2071 of the Code of the State of Iowa, as amended in 1909, which is quoted above, and then tells the jury that if they should believe from the evidence that the plaintiff was guilty of contributory negligence at and just before the injury, such contributory negligence is not a bar to a recovery, but that in estimating the amount of damages to which the plaintiff is entitled, if any, the jury shall diminish such damages in proportion to the amount of negligence attributable to’the plaintiff. In form, this instruction applies (and we must assume it was intended by the court to apply) to both defendants, notwithstanding the fact that the plaintiff was not an employe of the Wabash company, but was employed solely by the Iowa Central. It is conceded by counsel on both sides that the question of the liability of the defendants upon the facts proved in this case must be determined by reference to the Iowa law. The third original count and the third additional count are framed entirely upon that theory. Appellants’ counsel insist that so far as the defense of contributory negligence is concerned section 2071 of the Iowa Code above mentioned is purely a master-and-servant statute; that is, that it is only applicable in suits brought by or on behalf of a railroad employee to recover damages for injuries sustained through the negligep.ce of his own employer. To this contention appellee’s counsel reply that by another section of the Iowa Code, an operating lessee railroad company is charged with all the duties and is made subject to all the liabilities imposed by law upon the lessor which owns the tracks and yard. But no section of the Iowa Code which imposes any such liability was pleaded. That the law of a foreign State must be pleaded if relied on by a plaintiff is conceded. If it is not so pleaded, the foreign law is not admissible in evidence, and the courts of this State will conclusively presume that the law of the foreign State is the same as the law of this State. By the law of this State both the lessor and lessee railroad companies are liable for the negligence of the lessee. Anderson v. West Chicago St. Ry. Co., supra, Chicago & G. T. Ry. Co. v. Hart, supra. But in any suit brought under the law of this State both the lessor and the lessee would be entitled to urge the defenses of contributory negligence and assumed risk. Section 2071 of the Iowa Code, which was pleaded, removes these defenses in all actions brought under the law of that State against a corporation operating a railway “to recover damages for the personal injury or death of any employee,” when such damages are sustained in consequence of the neglect of the agents of such corporation, but it does not purport to take away the defense of contributory negligence from an operating company when it is sued by one who is neither in fact, nor by operation of law, its agent or employe. Under the doctrine announced in Anderson v. West Chicago St. Ry. Co., supra, and Chicago & G. T. Ry. Co. v. Hart, supra, the Iowa Central Railway Company is regarded as the principal, and the Wabash Railroad Company as its agent, and for any injury sustained through the negligence of such agent the principal is liable as well as the agent, and both are jointly liable. It does not follow, however, that both may urge the same defenses under the Iowa statute. Under section 2071 of the Iowa Code, the immediate employer of the plaintiff (viz: the Iowa Central company) is deprived of the defense of contributory negligence as a bar to a recovery, but that defense may be urged by one who is not the employer of the injured person, even though such one may be jointly liable with the employer. The first instruction was therefore erroneous in making no distinction in this respect between the Wabash company and the Iowa Central.

It follows from the view we have expressed that the judgment is erroneous as to the Wabash Railroad Company; and on familiar principles, if erroneous as to one, it must be reversed in tolo. The judgment will therefore be reversed and the cause remanded for further proceedings.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Victoria Boyrezka, Appellee, v. Thomas Janowski, Appellant.
    Gen. No. 18,380.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.

      Abstract of the Decision.
    1. Animals, § 40

      —scope of averments charging negligence of owner of dog. A count in a declaration averring negligence of defendant in suffering a dog “to run at large without taking due and proper care to secure the same,” held to permit recovery for failure to guard or securely muzzle the dog.
    2. Animals, § 48*—when instruction may ignore defense of contributory negligence. Instruction permitting recovery for a dog bite may ignore defense of contributory negligence where the evidence does not tend to prove such a defense.
    3. Animals, g 48*—when instruction as to damages not improper. An instruction on measure of damages for a dog bite limiting the jury to the consideration of injuries and damages as shown by the evidence, held not to authorize recovery for injuries which cannot he legally considered where no evidence of injuries of that character.
    4. Trial, § 233*—when declaration may be taken to jury room. Court may permit the declaration to go to the jury room where the instructions are so framed as to be meaningless to the jury without it.
    5. Instructions, § 111*1—when not objectionable permitting recovery on eliminated counts. Instruction permitting recovery if jury believes plaintiff was injured “in manner and form as set out in plaintiff’s declaration, or any count thereof,” held not objectionable as permitting a recovery under a count eliminated by a specific instruction.
    Statement of the Case.
    Action by Victoria Boyrezka against Thomas Janowski to recover for injuries sustained by plaintiff from a bite by defendant’s dog. From a judgment for plaintiff for five hundred dollars, defendant appeals.
    Royal W. Irwin and Frank W. Koraleski, for appellant.
    F. W. Jaros, for appellee.

      See Illinois Notes Digest, Vois. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Otto G. Logan, Appellee, v. George W. Jackson, incorporated, Appellant.
    Gen. No. 18,392.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 571

      —proof essential to recover for neglect to furnish safe place to worlc. To recover for failure of master to furnish a safe place to work, plaintiff must show not only that the defect existed but also that the master knew or should have known of the defect and that plaintiff did not know or have equal means with master in knowing of it.
    2. Master and servant, § 127*—when rislc of injury from temporary conditions of danger, assumed. The rule that servants engaged in the construction and demolition of buildings assume the risk of injury from temporary conditions of danger, held to apply where a structural iron worker was injured by jumping on an upturned nail while engaged in constructing a railroad bridge.
    3. Master and servant, § 685*—when evidence insufficient to charge master with notice of dangers. Evidence that the foreman passed over the place of the accident prior to the time plaintiff was injured, held insufficient to prove that master had notice of an upturned nail which caused the injury.
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Otto G. Logan against George W. Jackson, incorporated, to recover for injuries sustained by plaintiff while employed by defendant as a structural iron worker in constructing a bridg’e. From a judgment for plaintiff for seven hundred dollars, defendant appeals.
    John A. Bloomingston, for appellant.
    J. W. Sutton, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    M. Hakes and J. R. Hakes, trading as M. & J. R. Hakes, Appellees, v. B. Aaron & Sons, Appellant.
    Gen. No 18,406.
    1. Sales, § 98

      —when "buyer not entitled to rescind. A buyer of frozen poultry in a cold storage warehouse with the understanding that the goods are to be withdrawn and paid for before a certain day is not entitled to rescind the sale for breach of warranty as to the condition of the goods, where he has withdrawn and paid for a portion and has made no attempt to rescind the contract within a reasonable time.
    2. Sales, § 106*—rule as to buyer’s right to rescind. In ex-ecutory contracts when the article delivered is not the article ordered, or is not equal to the sample, or does not comply with some representation as to quality, the buyer may reject and return the article as soon as it is found not to comply with the contract of purchase, provided he exercises such right within a reasonable time and has done nothing in the meantime beyond what is necessary to make a fair test of the article delivered.
    3. Sales, § 105*—when buyer waives right to rescind. Buyer waives right to rescind an executory contract of sale for breach of warranty where he neglects to make an examination of the goods within a reasonable time.
    4. Sales, § 330*—when refusal of instruction on right to rescind, not error. Refusal of instruction to the effect that the buyer may rescind for misrepresentations as to quality or that goods were not equal to samples “upon discovery of such fact,” held not error, since the instruction places no restriction on time to rescind.
    5. Sales, § 330*—when instruction as to rights of buyer for breach of warranty, not objectionable. An instruction that buyer had no right to rescind for breach of warranty under certain circumstances and that he simply had the right to recoup, held not objectionable as indicating that buyer could not return the goods.
    6. Sales, § 330*—when instructions not erroneous in asserting contract was executed. Instructions detailing circumstances under which title would pass, held not objectionable as asserting that the contract became executed so that buyer’s only defense was his right to recoup for damages for breach of warranty in suit for contract price.

      7. Municipal Coubt of Chicago, § 17

      —when not error to refuse offered written instructions. When Municipal Court elects to instruct the jury orally, it is not error for the court to refuse to give an offered written instruction even though it is correct and applicable to the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    McEwen, Weissenbach, Shrimski & Meloan, for appellant.
    West & Eckert, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Appellees, who are in the poultry business at Laurens, Iowa, being the owners of about ten thousand ducks, which were packed in boxes and stored in a cold storage warehouse in Chicago, sold them on April 5, 1910, to appellant, a corporation engaged in buying and selling poultry on South Water street. During the negotiations which preceded the sale, one of the appellees, J. E. Hakes, went with the president of the appellant company and his “buyer” to the cold storage warehouse, where forty or fifty of the boxes, chosen at random from the whole number of boxes, were brought out of the “freezer,” the covers removed and the contents examined. All the witnesses agree that, the ducks thus exhibited were in fine condition. Appellant claims that an examination of every duck or every box of ducks, at that time, would have been impracticable on account of the great number of ducks and because an examination of the ducks in their then frozen condition, if made, would have disclosed nothing, so far as the soundness, or unsoundness, of the ducks was concerned. Appellees deny this claim, assert that there is a simple and well known test to determine the soundness of frozen poultry and claim that the fullest opportunity was then given to appellant to make that test or make such an inspection or examination as it desired, or thought was necessary or advisable to make. Appellant testified that at and before that time J. R. Hakes expressly stated that all the ducks were equal to the samples exhibited and were “fancy A No. 1” ducks. Hakes denied that he used the term “fancy A No. 1 ducks,” but admitted that he said the ducks were of the best quality, were all alike and equal to those exhibited. On April 6, 1910, appellees wrote to appellant as follows: “We are handing you herewith memorandum showing lot numbers, number of packages, and expiring dates of poultry sold you yesterday, with the understanding that these goods are to be withdrawn and paid for prior to May 1st, and on any goods held in storage longer than the expiring dates, you to assume this additional storage. A copy of this letter has been filed with the Booth Cold Storage, who will invoice these goods to you at 22% cents per pound, as per terms of sale.” Inclosed in this letter was a memorandum giving the lot numbers, the number of boxes in each lot number, and the weight of each lot, the whole aggregating 768 boxes of ducks, weighing 42,738 pounds. This letter' and memorandum were delivered by Hakes in person to the president of the appellant company, who, without objection or comment, handed them to his manager. During the following three or four weeks appellant “withdrew” from storage and sold 439 boxes of ducks and remitted to appellees a part of the agreed price for the same. About April 20, 1910, one of the boxes sold by appellant was returned to it in bad condition. The attention of Hakes, who was then in Chicago, was called to the condition of the ducks in that box, but it seems to have been conceded by appellant at that time that the bad condition of that particular box of ducks was due to careless handling or keeping after the box was taken out of the warehouse. On May 10th, appellant wrote to appellees, complaining that other boxes of ducks had been returned by appellant’s customers. The letter said: “We have had complaint on about twelve or fourteen boxes, both in the city and out, which I have made good and expect you to do the same to me. Hereafter we will examine every box carefully before shipping it, and if not O. K. will return them to Booth’s and charge same to you.” On May 25, 1910, appellants again wrote to appellees to the same effect, saying: “It seems there was some of these ducks mixed in each lot, according to the way we find them, and would like to hear from you, as we wish to get this matter straightened up. We dare not ship any out without examining every box. Those we find that are not what they ought to be we are returning to the freezer.” To this letter appellees replied- that they had notified the storage company to go through the remainder of the boxes in storage and “take out such boxes that show bad condition.” On June 18, 1910, appellant notified appellees by mail that, for the reason stated in their prior letter, they “must now refuse to accept any more, for the reason that they are not A No. 1, as purchased.” (Though this letter was not admitted in evidence, its substance was admitted by appellant’s counsel.) The evidence shows that of the 439 boxes that were taken from the storage warehouse by appellants and sold, seventy-eight boxes were returned, and 329 boxes were never removed from the warehouse by appellant. While it was contended that all of the ducks that were returned were in bad condition, and while appellees did not deny that some of them were bad when returned, there was evidence from which the jury might reasonably find that they were not in bad condition at the time they were withdrawn from the cold storage warehouse. Many of them were resold nearly a year later, when all that remained in the warehouse, including those thus returned, were sold by the storage company to pay charges. There is evidence tending to prove that even then, all except about thirty boxes, were in good condition. There is also some evidence to the contrary. The price realized at that time for most of them was nearly, if not quite, the full market price for cold storage ducks in good condition. After all were thus disposed of, appellees brought suit and, upon a trial before a jury in the Municipal Court, recovered a judgment for the full contract price and storage charges, less the amount which had been paid for the ducks taken out and sold by appellant.

It is insisted by appellant’s counsel that the instructions given by the trial court and the refusal of the court to give certain offered instructions, show that the court entertained erroneous views of the law applicable to the transaction in question and the rights of the respective parties. The court elected to give its instructions orally and therefore, under the rule announced in Morton v. Pusey, 237 Ill. 26, it was not error for the court to refuse to give any offered written instructions, even if they were correct and applicable to the facts in evidence. Aside from this rule, however, the offered instructions were not accurate and were misleading. They stated, in substance, that if the jury believed, from the evidence, that certain stated representations as to the quality of the ducks were made by the plaintiff, and such representations proved to be untrue, or if samples were submitted and the bulk was not equal to the samples, or if the ducks were unfit for consumption as food, then the defendant had the right, “upon discovery of such fact,” to rescind its contract and “refuse to accept” any more of the ducks. By these instructions no time limit or other restriction was placed upon appellant’s alleged right of rescission, except such as may be implied from the words ‘ 'upon discovery of such fact.” The rule is well settled that in executory contracts, when the article delivered is not the article ordered, or is not equal to the sample, or does not comply with some representations as to quality, the buyer has the right to reject and return the article as soon as it is found not to comply with the contract of purchase, provided such right be exercised within a reasonable time, and provided the buyer has done nothing in the meantime beyond what is necessary to make a fair test of the article delivered. In such cases the law gives the purchaser a reasonable time for examination, but if he neglects or fails to make such an examination within a reasonable time, his right of rescission is thereby waived, and when sued for the purchase price thereafter, his only defense is to show, by way of recoupment, any damages he has sustained by the breach of the warranty expressed or implied in the contract. Doane v. Dunham, 65 Ill. 512; Owens v. Sturges, 67 Ill. 366; Underwood v. Wolf, 131 Ill. 425, 439; Mayes v. Rogers, Schwartz & Co., 47 Ill. App. 372.

The abstract shows that the only objection made to any part of the oral charge was “to that portion that tells the jury that they had no right to rescind this sale, under certain circumstances detailed by the court, and that they simply have the right to recoup.” The only place in the oral charge in which the jury were told that the appellant had no right to rescind the sale is in a sentence which read^ as follows: “If you believe from the evidence that the plaintiffs supplied the defendant with samples of the ducks in question and that meant an implied warranty on the part of the plaintiff that the whole lot was substantially of the kind and quality as the sample, then the defendant would be entitled to refuse to receive any ducks that did not so correspond to the sample, or he could receive the ducks and recoup in this case by charging the plaintiff with the difference between the value of the ducks of the kind and quality as the sample and the value of the ducks as received; and the defendant would be entitled to a reasonable time and a reasonable opportunity in which to inspect the ducks to ascertain whether they were of the kind and character as to correspond with the sample, or he would be required to inspect them within a reasonable time after having a reasonable opportunity to inspect them; and if he accepts them after an inspection, or if he has a reasonable opportunity and time to inspect the ducks and fails to do so and he goes on and exercises acts of ownership over them, the law would consider that as an acceptance and he could not thereafter rescind the sale and return the ducks to the plaintiffs.” By another paragraph of the charge the court told the jury that if there was an express warranty as to quality and the ducks were not as warranted, “then if the defendant desired to reject the said ducks it must do so within a reasonable time, and if it failed to do so it became obligated to pay the contract price less the damages, if any, shown by the evidence to have resulted on account of the breach of the warranty.” These paragraphs do not indicate any view by the court that appellant could not return the ducks under any circumstances, as seems to be claimed by appellant’s counsel. By other paragraphs the term “warranty” was defined and explained to the jury and they were also told that appellant was under no obligation to inspect each and every box of ducks at the time of making the contract and that, if it did not inspect them, it had the right to rely upon any representation or warranty as to the condition and quality of the ducks, and, upon the discovery of the falsity of such representations, or breach of such warranty, to recoup in this suit the difference in value, if any, between the value of the ducks as warranted, or represented, and their actual value on April 5,1910.

It is urged that the instructions in effect told the jury that by the letter of April 6, 1910, the title to the whole 768 boxes' of ducks in the storage warehouse passed to the appellant, that thereby the contract became an executed contract, and that appellant’s only defense when sued for the contract price was the right of recoupment. We do not think the charge of the court, when read as one charge, as it must be, is fairly open to this criticism. The paragraphs above mentioned are inconsistent with the theory thus advanced. There is no specific reference to the letter in the charge but the jury were told that “when the parties agreed upon a price” for ducks “in a warehouse, packed, numbered and marked as to weight” (as to which facts there was no controversy), “and if you believe from the evidence nothing further remained to be done by the parties but the defendant to withdraw such ducks from time to time and pay for them,” then upon notice of the sale to the warehouse, the sale was completed and the title passed. This is far from being an assertion that the contract was, in fact, executed when the letter of April 6th was sent, as claimed by counsel.

In the brief and argument of appellant’s counsel their contention as to the law applicable to the facts of this case is stated as follows: “Regardless of whether the contract in question was executory or executed, and regardless of whether the title to the ducks in question passed to the defendant on the 6th of April, 1910, nevertheless the defendant had the right, when opportunity was presented, to inspect the ducks in question, and if they failed to comply with the express warranty that it claimed plaintiffs had made to it, or if they failed to comply with the warranty, either express or implied, arising out of the showing to the defendant of certain boxes of ducks as samples, to reject the ducks and rescind the contract.” As to that portion of this contention relating to sales by sample, the charge of the court was in accord with this contention of appellant’s counsel. As to the remainder of the contention, however, the rule in this" State is not as sweeping as is thus stated by counsel. In Owens v. Sturges, 67 Ill. 366, it is said: “Where a person purchases chattels on a warranty as to soundness or quality, and the contract is executed, on the failure of the warranty the purchaser may recoup the damages sustained by reason of the breach, from the purchase price of the chattels. Where the contract is unexecuted, or there is a stipulation that the property may' be returned if not found to be satisfactory, or if the warranty be accompanied with fraud in the sale, in such cases the vendee may return the property on discovering the breach of warranty, but otherwise he has no such right. He then must retain the property, but may show the warranty and breach in mitigation of damages, and to reduce the recovery.” To the same effect are Farris v. Alfred, 158 Ill. App. 158, and J. I. Case Threshing Mach. Co. v. Puls, 158 Ill. App. 1. There is no claim in this case that there was any stipulation in the contract that the property might be returned, if not found to be as represented, nor is there any claim that there was any fraud in the sale. Hence, the only theory upon which the defendant would be entitled to return the property upon the failure of the warranty is the theory that the contract was unexecuted. We think the trial court recognized that theory of the facts by stating in effect, that a purchaser with a warranty has the right to reject the article delivered for failure to meet the warranty, provided he does so within a reasonable time. But if the charge of the court be fairly susceptible of the meaning given it by counsel, we think there is no error of which appellant can complain, for the reason that there is no evidence fairly tending to prove that at the time of the attempted rescission of the contract, viz: June 18, 1910, the contract was unexecuted. By the express terms of the letter of April 6th, which unquestionably states a part of the contract, if not the whole of it, the sale was made upon the understanding that all the ducks should be withdrawn and paid for before May 1st. There is not a particle of evidence that appellant attempted to rescind prior to May 1st. The letter of April 6th, 1910, passed the title in the property to appellant, subject, perhaps, (upon that view of the evidence most favorable to appellant) to the right of examination within a reasonable time. There is no pretense that even at the time of the attempted rescission, appellant had made any examination whatever of the ducks remaining in the storage warehouse, or had made any attempt to make such an examination, although the ducks had then been in its possession and control for seventy-three days. Therefore, even if it be assumed that the contract was executory when made, it had become fully executed on June 18,1910, for at that date nothing remained to be done except the payment of the agreed price, less the damages, if any, resulting from the breach of warranty, if there was any such breach.

In our opinion the jury were fairly and fully instructed, and we cannot say that the verdict was contrary to the preponderance of the evidence. The judgment of the Municipal Court will therefore be affirmed.

Affirmed.


text:
    Sam Weil, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,424.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tttthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.

      Abstract of the Decision.
    1. Street railroads, § 142

      —when instruction on degree of care erroneous. Instruction requiring motorman to stop his car “in the shortest possible time and space” to avert a collision, held erroneous.
    2. Street railroads, § 142*—when instruction improper as assuming facts. Instructions assuming that a particular act or omission on the part of the motorman constitutes negligence, held improper.
    3. Street railroads, § 149*—when refusal of requested instruction is error. Refusal to give an instruction which correctly states the rule applicable to defendant’s theory of the case, there being evidence, to support such theory and the principle therein not being covered by other instructions, held érror.
    4. Appeal and error, § 1652*—when erroneous instruction not cured by others. Instruction, erroneous in requiring motorman to exercise highest degree of care to avert a collision, not cured by other instructions where it directs a verdict on finding the facts to be as stated therein.
    •Statement of the Case.
    Action by Sam Weil against the Chicago City Railway Company to recover for personal injuries resulting from a collision of one of defendant’s cars with a wagon upon which plaintiff, as driver, was attempting to cross defendant’s tracks at a street intersection. From a judgment for plaintiff for two thousand dollars, defendant appeals.
    Franklin B. Hussey and C. Le Roy Brown, for appellant ; Leonard A. Busby, of counsel.
    Levy & O’Donnell, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, game topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Isaac Zlatkin et al., Appellees, v. Morris L. Goldberg et al. Jacob Levy, Appellant.
    Gen. No. 18,427.
    (Not to be reported in full.)
    Abstract of the Decision.
    Execution, § 273

      —when evidence sufficient to sustain decree on Mil in aid. Decree subjecting property alleged to have been fraudulently conveyed to the lien of complainant’s judgment, held sustained by the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement of the Case.
    Bill in aid of an execution by Isaac Zlatkin and others against Morris L. Goldberg and others to subject to the lien of complainants’ judgments certain property alleged to have been fraudulently conveyed between the defendants to defraud creditors. From a decree for complainants, Jacob Levy, one of the defendants, appeals.
    Matthew P. Brady, for appellant, Jacob Levy.
    F. B. Hovey and Edmund W. Froehlich, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Reid, Murdoch & Company, Defendant in Error, v. Somerset Canning Company, Plaintiff in Error.
    Gen. No. 17,566.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Sales, § 77

      —when cannot be cancelled for failure to give shipping directions. Contract of sale, which did not contemplate immediate shipment, held not to justify seller in cancelling sale for failure of buyer to give immediate shipping directions.
    2. Sales, § 381*—damages. When seller cancels contract, not duty of buyer to purchase elsewhere so as to minimize the loss where the buyer was justified in believing that seller would yet deliver.
    Hitch, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Reid, Murdoch & Company, a corporation, against Somerset Canning Company, a corporation, to recover damages for nondelivery of goods purchased by plaintiff from the defendant. From a judgment for plaintiff for four hundred and twelve dollars and fifty cents, defendant brings error.
    William Ritchie and Sidney B. Meyer, for plaintiff in error.
    Colson & Johnson, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Stanley Ciecierski, Defendant in Error, v. Martin Hermanski, Plaintiff in Error.
    Gen. No. 17,615.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Animals, § 47

      —questions for jury. Whether owner of dog had knowledge of his mischievous propensity or that the plaintiff’s injury was attributable to owner’s neglect is a question for the jury.
    2. Animals, § 15*—proof of scienter. Scienter may be proved by attendant circumstances, without the necessity in all cases of proving prior cases of injury.
    3. Appeal and error, § 1467*—when admission of evidence not prejudicial error. In an action to recover damages for a dog bite, admission of a certified copy of the records of the Municipal Court of Chicago showing that defendant had been fined for permitting his dog to run at large unmuzzled, held not prejudicial error.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pet, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Stanley Ciecierski against Martin Hermanski to recover damages sustained by plaintiff by reason of being bit by a dog belonging to defendant. From a judgment for plaintiff for seventy-five dollars, defendant brings error.
    John C. Curtin, for plaintiff in error; A. S. Lakey, of counsel.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    R. G. Badeaux, trading as R. G. Badeaux & Company, Defendant in Error, v. August Rohrer and Marie Rohrer, Plaintiffs in Error.
    Gen. No. 17,711.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Brokers, § 55

      —when entitled to commissions for procuring real estate purchaser. Real estate broker held entitled to commissions for producing a purchaser ready and willing to purchase where the sale was not made because of the encroachment of a bay window of the building over an adjoining lot.
    2. Brokers, § 33*—when original agreement for compensation not altered by subsequent instrument. Written instrument claimed to be a contract as to commissions after purchaser was produced but not signed by both the parties, held not to alter or change the rights of the parties under their original agreement.
    3. Brokers, § 27*—when not breach of trust to return earnest money. Not a breach of trust for a broker to return earnest money to procured purchaser when sale not consummated for failure of owner to make good title.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Ward, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by B. Gr. Badeaux, trading as B. Gr. Badeaux & Co., against August Bohrer and Marie Bohrer to recover for money advanced and for commissions due plaintiff as a real estate broker for presenting to defendants a purchaser. From a judgment for plaintiff for one hundred and fifty-two dollars and sixty cents, defendant brings error.
    Frederic R. De Young, for plaintiffs in error.
    H. P. Sinden, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Rosario Fortier, Plaintiff in Error, v. The Western Foundry Company, Defendant in Error.
    Gen. No. 17,763.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 685

      —when insufficient to prove negligence of master. Finding of jury that servant was not injured by the negligence of the master in permitting electric wires where servant was working, held warranted by the evidence.
    2. Evidence, § 368*—conclusions of witness. Witness may be permitted to state that a scar “looked like a burn" or “that the ends of a person’s fingers were like a burn, shiny.”
    3. Appeae and error, § 1491*—when exclusion of evidence is harmless. Errors in excludihg" evidence will not reverse where in the court’s opinion no other verdict should have been rendered.
    Error to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Rosario Fortier against The Western Foundry Company, a corporation, to recover for injuries sustained by plaintiff by falling from a scaffold while in the employ of the defendant as a carpenter. From a judgment in favor of defendant, plaintiff brings error.
    John C. King and James D. Power, for plaintiff in error.
    F. J. Canty, P. L. McArdle and J. C. M. Clow, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section ntilnber.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Mary Lunkes, Defendant in Error, v. Alex. Gluljich, Plaintiff in Error.
    Gen. No. 17,850.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim may be amended. Plaintiff may amend statement of claim after the close of his case.
    2. Municipal Court of Chicago, § 33*—when claim in forcible detainer may inelude claim for rent. In forcible detainer proceeding in the Municipal Court, statement of claim may include claim for rent.
    3. Municipal Court of Chicago, § 33*—effect of tender of rent in forcible detainer proceeding. In a forcible detainer proceeding in the Municipal Court, plaintiff’s right to possession having become fixed before tender of rent made by defendant in open court, held not affected by the tender and refusal thereof.
    4. Appeal and error, § 666*—sufficiency of abstract. An abstract of record, which is merely an index of the transcript of the record, does not comply with Appellate Court rules and is sufficient reason for affirming the judgment.
    5. Forcible entry* and detainer, g 8*—when evidence presumed sufficient. Judgment in favor of plaintiff in forcible entry and detainer proceeding will be assumed to be warranted by the evidence when record does not disclose the kind of notice served on defendant.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Mary Lunkes against Alex. Gluljich in forcible detainer to recover possession 'of certain " premises. From a judgment in favor of plaintiff, defendant brings error.
    Joseph Granick, for plaintiff in error.
    Charles Werno, for defendant in error.

      See Illinois Notes Digest, Tois. XI to XI,. same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Elizabeth Chapman, Appellee, v. Maria Roggenkamp, Executrix, Appellant.
    Gen. No. 17,877.
    1. Sales, § 254

      —when implied warranty of fitness of canned goods for food. Person poisoned hy eating unwholesome canned peas purchased of retail dealer, held entitled to damages from such retail dealer on an implied warranty that the peas were fit for food.
    2. Sales, § 254*—when retail dealer impliedly warrants food provisions to he wholesome. In the sale of all provisions hy a retail dealer for immediate domestic use there is an implied warranty of the fitness and wholesomeness of such provisions for consumption.
    3. Sales, § 283*—questions for jury. Whether a person’s illness was caused from eating unwholesome food purchased of a retail dealer is a question for the jury.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement by the Court. On December 28, 1908, Elizabeth Chapman,' plaintiff below, brought suit in the Superior Court of Cook county against John Roggenkamp, Adolph Roggenkamp and Frank C. Weber & Co. to recover damages sustained by her from eating the contents of a can of peas, sold to her by said John Roggenkamp. Before the trial, on plaintiff’s motion, it was'ordered that “all papers and proceedings in said cause be and are hereby amended by discontinuing as to the defendant, Frank C. Weber & Co.” During the trial, on plaintiff’s motion, the same order was entered as to the defendant, Adolph Roggenkamp. The amended declaration charged in effect that on January 1, 1908, the defendant John Roggenkamp was engaged in the grocery business and sold to plaintiff in Cook county a can of peas for eating purposes, for which plaintiff paid defendant the price asked; that said peas were purchased by plaintiff for immediate consumption by herself and family, which purpose was known to defendant; that defendant warranted that said peas were good, sound, healthy and wholesome, and fit for human consumption, and were free from deleterious or poisonous substances; that plaintiff relied upon said warranty in purchasing said peas; that said can of peas' contained poisonous and deleterious substances, and that said peas were unwholesome and unfit for human use, so that when eaten would cause sickness to, and would be dangerous to the life and health of, the person eating them; that after purchasing said peas plaintiff cooked the same in a reasonably and careful and proper manner and, relying upon said warranty, ate a portion of said peas, and thereupon, by reason of the poisonous condition of said peas when purchased, plaintiff became ill, and was greatly injured and damaged, etc. The defendant filed a plea of the general issue, and also two special pleas of the statute of limitations and that the defendant did not ‘ ‘ either expressly or impliedly warrant the contents of said can of peas.” To those special pleas demurrers were interposed and sustained. The trial resulted in the jury finding the issues in favor of the plaintiff and assessing her damages at five hundred dollars, upon which finding judgment against the defendant was entered. After the defendant had perfected his appeal to this court he departed this life, and the executrix of his last will was here substituted as appellant.
    The facts are substantially as follows: On January 1, 1908, the defendant was engaged in the retail grocery business on West 51st street, Chicago. Plaintiff’s husband was a barber, and his shop was across the street from defendant’s grocery store. In the rear of the shop, plaintiff, her husband, their three children and several other persons resided. On the day aforesaid plaintiff went to defendant’s store' and purchased some groceries, paying cash for the same. Among the articles purchased was a can of peas. The can was of tin, on the outside of which was pasted a paper label on which was printed “New City Early June Peas. Packed for Frank C. Weber & Co., Chicago, Ill. Finest Quality.” Plaintiff testified that she “asked for a can of best peas,” and that defendant handed her the can of peas in question, which she took to her home and put on the pantry shelf. She further testified that, on January 4th, she personally opened the can, rinsed the peas, put them in a “sauce pan” with some milk, a little flour and some butter and salt, and cooked the peas; that she also about the same time cooked other articles of food for the family noon day meal; that when she opened the can and rinsed the peas they apparently looked all right and that she did not notice any odor from them. It appears from the testimony of several witnesses that plaintiff and her three children first ate luncheon together, consuming, with other articles of food so prepared, all of the peas in question with the exception of a few which a female assistant to plaintiff in the house-work “tasted;” that shortly thereafter plaintiff’s husband, his brother and one Schulz, an assistant in the barber shop, ate luncheon, partaking of the same articles of food to a greater or less extent as plaintiff and her children had eaten, with the exception of the peas in question; that shortly after plaintiff and her three children had partaken of the meal they all became extremely ill, feeling dizzy and vomiting; that plaintiff became unconscious; that said assistant in the housework also became ill, but not to the extent to which plaintiff and said children did; that none of the men became ill and that two physicians were immediately sent for and attended and prescribed for plaintiff and the children. Dr. Felmlee, plaintiff’s family physician, testified that he arrived at plaintiff’s home about two o’clock in the afternoon, after the other physician had arrived; that he examined plaintiff and the children with the other physicían and found them suffering from “violent vomiting and. purging; ” that plaintiff was “extremely prostrated, very weak and almost pulseless,” and that from what he personally observed at the time and from “the history of the ease” he formed the opinion that plaintiff “at that time was suffering from a ptomaine poison.”
    C. E. Heckler, for appellant.
    Pease, Smietanka & Polkey, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

It is contended by counsel for defendant that the evidence does not establish that plaintiff’s illness and sufferings were caused by the peas. This was a question for the jury under all the facts and circumstances in evidence. From the verdict it is evident that the jury believed that plaintiff’s illness was caused by her eating the peas in question and, in our opinion,.the verdict is amply supported by the evidence.

It is also contended by counsel that, in a sale of canned provisions by a retail dealer directly to a consumer, where the dealer purchased the same from a wholesaler or packer and is not aware of the unwholesome condition thereof at the time of the sale to said consumer, there is no implied warranty that said provisions are sound and wholesome. It is argued that where a person purchases from such a dealer articles of food in cans for immediate consumption, the buyer, from the nature of the transaction, must know that the seller has no greater knowledge as to the condition of the articles than the buyer has, and hence, does not rely upon the seller’s superior knowledge, and that, therefore, there is no implied warranty of the wholesomeness of said articles. .

In Wiedemm v. Keller, 171 Ill, 93, Keller was a retail dealer in meats and plaintiff called at Ms place of business and purchased a quantity of pork to be used in her family. The pork turned out to be unwholesome and unfit for food. Plaintiff cooked the pork and ate some of it and was made ill, and it was held that the dealer was liable to plaintiff for damages by reason of the implied warranty of the fitness and wholesomeness of the pork for consumption. Our Supreme Court says, on page 98:

“As a general rule, we think the decided weight of authority in the United States is, that in all sales of meats or provisions for immediate domestic use by a retail dealer, there is an implied warranty of fitness and wholesomeness for consumption. There is, however, no implied warranty of soundness or wholesomeness arising from the sale of meats or provisions to a dealer or middle-man who buys on the market, not for consumption, but for sale to others. Nor would there be any liability, in a sale for immediate domestic use, where the vendor was not a regular dealer. * * * In this case, however, the appellee was a regular retail dealer, and as such he sold the meat to appellant for domestic use, and, under the law as it seems to be settled in this country, as the meat turned out to be unwholesome, he was liable, although he was not amare that it was diseased when he sold it to appellant.
In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound .article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk.”

Counsel endeavors to distinguish the Keller case supra, from the present case. He says that in that case the dealer had an opportunity of inspecting the pork before selling it, which opportunity of inspection the defendant in the presnt case did not have because the peas sold to plaintiff were in a sealed tin can. Inasmuch as it appears from the opinion in the Keller case, and from several authorities cited therein, that public safety demands that, in all sales of provisions for domestic use by a retail dealer, there should be an implied warranty of the fitness and wholesomeness of said provisions for consumption, and inasmuch as it further appears in the Keller case, as also in the present case, that the retail dealer was not aware at the time of the sale of the unwholesomeness of the articles of food, we think that, under the facts of this case and the weight of authority, the defendant is liable on an implied warranty. See also Nelson v. Armour Packing Company, 76 Ark. 352; 15 Am. & Eng. Ency. Law (2d Ed.) p. 1238; Hoover v. Peters, 18 Mich. 50, 54.

Complaint is also made of the action of the trial court in admitting and refusing, to admit certain testimony, and in giving and refusing to give certain instructions. We have carefully considered the arguments of counsel in these particulars, and are of the opinion that there is no prejudicial error in the record. In the view we take of the law we think the jury were correctly instructed, and we do not think that the verdict is excessive, as contended by counsel.

The judgment is accordingly affirmed.

Affirmed.


text:
    Henry A. Fowler, Administrator, Appellee, v. Chicago & Western Indiana Railroad Company and Chicago & Erie Railroad Company, Appellants.
    Gen. No. 17,914.
    1. Railboads, § 517

      —duty to trespassers on tracks. Railroad owes no duty to a trespasser on its tracks except to refrain from wantonly or wilfully injuring him and to use reasonable care to avoid injury to him after he is discovered to be in peril.
    2. Railboads, § 564*—when contributory negligence, no defense. Contributory negligence such as that of a trespasser upon a railroad track cannot be relied on where such person is wantonly and wilfully injured by the railroad company.
    3. Railboads, § 531*—right of engineer to presume trespasser will leave track in time. The rule that an engineer upon discovering a person on the track may presume that such person will leave the track in time to escape injury does not apply where such person is on a bridge and because of high girders on each side of the track can not easily step out of danger.
    4. Railboads, § 578*—when declarations of engineer admissible. Declaration of engineer soon after the accident that “he saw deceased just enter the trestle * * * and thought he would get out of the way,” held admissible as a part of the res gestae and also competent evidence as tending to show his knowledge of the perilous position of deceased.
    5. Evidence, § 76*—test to determine what constitutes part of res gestae. For evidence to be admissible as part oí the res gestae, the act, declaration or exclamation must be so intimately interwoven or connected with the principal fact it characterizes as to be regarded a part of the transaction itself, and also clearly to negative any premeditation or purpose to manufacture testimony.
    6. Evidence, § 76*—rules in determining res gestae. Whether an act or declaration will be considered as part of the res gestae depends upon the circumstances of each case.
    7. Evidence, § 79*—when declarations part of res gestae. Declarations to be a part of the res gestae are not required to be precisely concurrent in point of time with the principal fact.
    8. Appeal and erbob, § 1775*—when declaration sufficient to sustain verdict. An entire verdict on several counts will not be set aside where there are one or piore counts sufficient to sustain it.
    9. Appeal and ebbob, § 1690•■'-^when error in overruling motion to direct verdict is waived. Objection to action of court in overruling motion to direct verdict is waived by proceeding to introduce testimony.
    Appeal- from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    W. O. Johnson and Bull & Johnson, for appellants.
    Royal W. Irwin and Frank W. Koraleski, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

This is an action brought by Henry A. Fowler, as administrator of the estate of Thomas Booney, deceased, to recover damages for the killing of said Booney by a passenger train operated by the Chicago & Erie Bailroad Company upon the elevated tracks of the Chicago & Western Indiana Bailroad Company in the city of Chicago. The deceased was seventeen years of age and was a trespasser on the tracks at the time. The two railroad companies were made defendants, and the jury returned a verdict against both, assessing plaintiff’s damages at four thousand, five hundred dollars, and the court, after overruling defendants’ motions for a new trial and in arrest of judgment, entered judgment upon the verdict.

The second count of the declaration averred, in substance, that while plaintiff’s intestate was walking in a northerly direction along and upon one of said tracks, and over a bridge or viaduct and between large steel beams or girders, about four and one-half feet high, on either side of said tracks, and while he was in the exercise of ordinary care for his own safety, the defendants caused to be operated in a southerly direction upon said track an engine or train; that the defendants knew of the presence of plaintiff’s intestate upon said track and upon said bridge or viaduct, and between said girders, and that he could not leave said track and viaduct and thereby avoid the approach of said engine or train; that it was the duty of the defendants to stop said engine or train until he could leave said viaduct and remove himself from said track into a place of safety; that the defendants, not regarding their duty, then and there “willfully and wantonly” caused and permitted said engine and train to proceed towards plaintiff’s intestate over said track at a high and dangerous rate of speed and to run into and strike plaintiff’s intestate, then and there upon said bridge or viaduct, thereby causing his death.

The elevated tracks, five in number, ran in a north and south direction along Wallace street in the city of Chicago. One of the streets which they crossed, at right angles and by means of a viaduct or bridge, was 60th street. This viaduct was about seventy feet long. Solid steel uprights, about five feet high, ran along the' east and west sides of the viaduct, and also between each of said tracks. Between tracks numbered two and three, counting from the east, there was an open space in the viaduct, ten or fifteen feet wide and running clear across 60th street. Immediately north of the viaduct and opposite said open space was a stairway which admitted passengers to the platform of the 59th street station. About fifteen feet south of the viaduct and between tracks two and three there was a switchman’s shanty. About twelve hundred feet north of the north line of said viaduct was a crossing of the Pennsylvania Railroad Company. Just prior to the accident a gang of men were engaged in repair work on track number three about three hundred feet north of said viaduct. The accident occurred about 11 o’clock on the morning of May 4, 1909. The sun was shining and the rails were dry. The train consisted of an engine and five cars, equipped with modern appliances, and approached said viaduct from the north on track number three, and before the engineer made efforts to stop the train it was running at a speed of about twenty-five miles per hour. The details of the accident, as shown by the testimony of plaintiff’s witnesses, are as follows:

Vincent B. Boyd testified that for about five minutes prior to the accident he had been sitting on the concrete wall of the elevation, east of the tracks and about four hundred feet north of said viaduct; that this concrete wall was about four feet higher than the level of the tracks; that he first noticed the deceased standing near said switchman’s shanty, south of said viaduct and at the side of track three, talking to somebody; that deceased then walked towards the witness on track three, “in between the viaduct, with his head down looking like he was counting the ties,” and “apparently not looking at the approaching train;” that the witness first saw the train when it was north of him, about at the Pennsylvania crossing, and it approached “very quickly;” that “the train didn’t seem to slow up until it hit him and knocked him over;” that “he was pretty near off the north end of the viaduct when the train hit him;” that when the train stopped the rear of the train was “quite a ways past” the body of the deceased, but whether the rear of the train was south of and off of the viaduct he did not remember.

Michael Bowen, an employe of the defendant Western Indiana Bailroad Company, testified that on the morning of the accident he and several other men were working on track three, about two hundred and fifty feet north of said viaduct; that the train whistled at said Pennsylvania crossing “for the men to get out of the way;” that the train di'd not whistle as it passed him and he would have heard it'if it had; that he heard no bell rung; that after the train had passed him “it commenced to slacken up a bit;” that he looked towards the south and saw a man “coming down the bridge with his head down;” that when he first saw the man on the bridge he was about twenty-five or thirty feet north of the south end; that after the man was struck he went to the bridge and the man’s body “was almost in the middle of the bridge, lying alongside of the track.”

Two witnesses, in answer to hypothetical questions, testified that a train, equipped like the train in question and with the rails dry and in good condition, while running twenty-five miles per hour, could be stopped in from two hundred and fifty to three hundred feet.

John Murray, a boy friend of Thomas Booney, the deceased, testified that on the morning of the accident he was walking east on the north side of 60th street, underneath said viaduct, when Booney, who was on the elevation just south of the viaduct and east of track three, called down to him through said opening in the viaduct between tracks two and three, and thereupon they engaged in conversation; that after talking a couple of minutes the witness started to go to his home, which was about one hundred and seventy-five feet away, intending to immediately return and go down town with Booney; that when he was about half way home he heard a train begin to stop, that his attention was attracted by the grinding of the brake shoes on the wheels, and he turned around, went back and ascended the stairway and went onto the bridge or viaduct; that he saw Booney’s body lying a little north of the center of the bridge and on the east side of track three; that the train had stopped “just south of the bridge;” that after reaching Booney’s body and viewing it, he turned around, went to his home, and came “right back and on to the trestle again;” that “it took me about two minutes to come back;” that Booney’s body was still lying there and there was a crowd around; that he “just passed by” the body and went to the front of the train; that there were three or four men gathered around the engine talking to the engineer, who was in his cab; that “some one asked who it was that got hurt, and I answered the question;” that a general conversation ensued and the witness heard the engineer say that “he seen this young man just enter the trestle when he was about the Pennsylvania crossing and he thought he would get out of the way;” that the witness then went back to where Rooney’s body was lying, and remained there about ten minutes, when the police came and removed the body.

At the conclusion of plaintiff’s evidence, the attorneys for the defendants moved to strike out that portion of the testimony of the witness Murray as to said statement or declaration- of the engineer of the train, on the ground that it was incompetent, and not part of the res gestae, which motion was overruled, and the several motions of the defendants, then made, that the court instruct the jury to find them not guilty were also overruled, and exceptions taken. Neither of the defendants stood by the motions for a directed verdict in their favor, but proceeded to introduce testimony. By this course they waived all objections to the action of the court in overruling their said motions for a directed verdict. Goldie v. Werner, 151 Ill. 551, 554; Joliet, A & N. R. Co. v. Velie, 140 Ill. 59, 64; Dunham Towing & Wrecking Co. v. Dandelin, 143 Ill. 409; Langan v. Enos Fire-Escape Co., 233 Ill. 308. At the close of the plaintiff’s case, practically the only evidence in the record tending to show that the engineer had actually discovered Rooney in the perilous position in which he was in time to have avoided injuring him by the exercise of reasonable care, was the testimony of the witness, Murray, as to the admission or declaration of the engineer above mentioned. That admission or declaration, according to Murray’s testimony, tended to show that the engineer had knowledge that Rooney was entering the bridge when the train was about twelve hundred feet away from the bridge. The fact of this knowledge in the engineer was a material and essential element in plaintiff’s case where the charge was wilful and wanton Negligence. “A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or willfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril.” Illinois Cent. R. Co. v. Eicher, 202 Ill. 556, 560; Bartlett v. Wabash R. Co., 220 Ill. 163; Neice v. Chicago & A. R. Co., 254 Ill. 595, 603. And in our opinion the rule, that an engineer is not bound to stop his train the moment he sees a person on the track, but has the right to presume that such person will leave the track in time to escape injury and without being negligent may continue to run'the train until he discovers that such person is heedless of the danger, does not apply where such person, as in the present case, was on a bridge and, because of the high girders on each side of the track, could not easily step out of danger. Peirce v. Walters, 164 Ill. 560, 564. And “contributory negligence, such as that of a trespasser upon a railroad track, cannot be relied on in any case where the action of the defendant is wanton, wilful or reckless in the premises, and injury ensues as the result.’ ” Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596, 607; Elgin, J. & E. Ry. Co. v. Duffy, 191 Ill. 489, 492.

The defendants introduced but one witness, L. F. Truman, the engineer of the train. He testified that he had been employed as a locomotive engineer by the Chicago & Erie Railroad Company for twenty-eight years; that as he approached the Pennsylvania crossing he noticed a gang of laborers working on the track about three hundred feet north of the viaduct; that right after he crossed the Pennsylvania crossing he “blew his whistle for the section men;” that he was then sitting on the right side of the cab looking out of the front window; that the train was then going twenty or twenty-five miles per hour; that he first saw Eooney when he (the engineer) was “right about where the' section men were working;” that “I think he (Eooney) must have been on the viaduct when I first seen him;” that at that time “it looked as though he was just entering” the viaduct; that he was not then on the track, but “walking just on the outside of the east rail;” that “he had his overcoat on his arm;” that the train was then going twenty-five miles per hour; that neither when he first saw Eooney nor after-wards did he blow the whistle or ring any bell; that when he blew the whistle at the Pennsylvania crossing for the section men “it was so close it would do” for Eooney; that he did not put on the air as soon as he saw Eooney; that he did not put on the air until he (the engineer) was “within ab'out seventy-five feet of, the bridge;” that he did not put on the sand because “I didn’t have time;” that when he put on the air “there was no chance” for Eooney to get off the bridge; that the train was about three hundred and seventy-five feet long and he stopped the train in about its length, “the hind end standing right close to where the man lay. ’ ’ The witness denied that after the accident he had made any statement to the effect that he first saw Eooney in the viaduct when the train was about at the Pennsylvania crossing.

We think that the effect of the above testimony of Truman, the engineer, was to strengthen plaintiff’s case, in that it showed that he saw Eooney in a perilous position on the track and bridge when the former was about three hundred feet away from the viaduct, and in that said testimony, in connection with the other evidence, strongly tended to show that the engineer did not, after seeing Rooney, use reasonable care to avoid injuring him and was guilty of wanton and reckless conduct. The plaintiff was entitled to the benefit of this testimony. Goldie v. Werner, supra; Joliet, A. & N. R. Co. v. Velie, supra. And we think that the trial court did not err in overruling the several motions of the defendants for a directed verdict made at the close of all the evidence. It was for the jury to say, under all the facts and circumstances in evidence, whether or not the engineer was guilty of negligence, which was wanton and reckless in character, and we are not disposed to disturb the verdict on the ground of the insufficiency of the evidence to support it. Lake Shore & M. S. Ry. Co. v. Bodemer, supra; Martin v. Chicago & N. W. Ry. Co., 194 Ill. 138; Elgin City Banking Co. v. Chicago M. & St. P. Ry. Co., 160 Ill. App. 364.

But the principal ground here urged by counsel for the defendants for a reversal of the judgment is, that the trial court erred in admitting, over objection, that portion of the testimony of the witness, Murray, as to the statement or admission of the engineer made shortly after the accident and before Rooney’s body had been removed. Counsel argue that the same is not a part of the res gestae, in that it did not constitute a verbal act and was not a spontaneous exclamation, and that such a statement or declaration is incompetent as against the defendants because the engineer’s employment does not carry with it authority to make such a declaration at a time subsequent to the time that the train struck Rooney.

After careful consideration we are of the opinion that under the facts of this case no error was committed by the court in admitting said testimony. The decided cases, as to whether or not certain declarations are properly a part of the res gestae and admissible, are not harmonious. “The true test, in all cases, by which the admissibility of such testimony is determined, is, the act, declaration or exclamation must be so intimately interwoven or connected with the principal fact or event which it characterizes, as to be regarded a part of the transaction itself, and also to clearly negative any premeditation or purpose to manufacture testimony.” Lander v. People, 104 Ill. 248, 256. “Whether or not such act or declarations will be so considered must depend upon the circumstances of each case.” Chicago & E. I. R. Co. v. Chancellor, 165 Ill. 438, 444. While a narrative of past events cannot be introduced as a part of the res gestae, “continuousness is not always to be measured by time.” Swanson v. Chicago City Ry. Co., 242 Ill. 388, 395. “It is not concurrence in time alone, nor separation in time alone, which has been made the test, as an analysis of the cases will show.” Chicago Union Traction Co. v. Brethauer, 125 Ill. App. 204, 211. “Declarations, to be a part of the res gestae, are not required to be precisely concurrent in point of time with the principal fact if they spring out of the principal transaction, if they tend to explain it, are voluntary and spontaneous, and are made at a time so near it, as to preclude the idea of deliberate design; then they are to be regarded as contemporaneous, and are admissible.” Davids v. People, 192 Ill. 176, 189. We think the ruling of the trial court is supported by the following decisions of the courts of this state, viz: East St. Louis Connecting Ry. Co. v. Allen, 54 Ill. App. 27; 30; Quincy Horse Ry. Co. v. Gnuse, 137 Ill. 264, 269; Springfield Consol. Ry. Co. v. Welsch, 155 Ill. 511, 512; Muren Coal & Ice Co. v. Howell, 217 Ill. 190, 199; and by the following cases, similar to the present case, in other States, viz: Anderson v. Great Northern Ry. Co., 15 Idaho 513; Alsever v. Minneapolis & St. L. R. Co., 115 Iowa 338; Hooker v. Chicago, M. & St. P. Ry. Co., 76 Wis. 542, 547; Hermes v. Chicago & N. W. Ry. Co., 80 Wis. 590. Furthermore, we think the testimony as to the declaration of the engineer was competent evidence as tending to show knowledge on his part of the presence of Booney in a perilous position, while acting within the scope of his employment. Swanson v. Chicago City Ry. Co., supra; Ohio & M. Ry. Co. v. Porter, 92 Ill. 437, 439; Hyvonen v. Hector Iron Co., 103 Minn. 331, 332; Union Pac. R. Co. v. Edmondson, 77 Neb. 682, 685.

Counsel also contend that the declaration is insufficient to support the verdict in that it fails to state sufficient facts showing the duty of the defendants in the premises towards plaintiff’s intestate. The declaration consisted of three counts. We think the second count is sufficient at least after verdict. Smith v. Chicago & E. I. R. Co., 99 Ill. App. 296, 300; Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Danley v. Hibbard, 222 Ill. 88. “Where there is an entire verdict on several counts, the verdict will not be set aside because the declaration contains a defective count if there are one or more counts sufficient to sustain a verdict.” Bennett v. Chicago City Ry. Co., 243 Ill. 420, 434.

Finding no reversible error in the record, the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Bernard McQuillen et al., Appellees, v. Matteo Mazzone, Appellant.
    Gen. No. 17,937.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the' Hon. Mazzini Slusseb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied .Qctober 23, 1913.
    Statement of the Case.
    'Action by Bernard McQuillen and others against Matteo Mazzone to recover money claimed to be due as rent for certain premises occupied by defendant. From a judgment for plaintiff for nine hundred and sixty dollars, defendant appeals.

      Abstract of the Decision.
    1. Landloed and tenant, § 321

      —when certificate of sale to tenant not admissible in suit for rent. In an action against a tenant in possession for rent, a certified copy of a master’s certificate of sale to defendant is not admissible to show that defendant is not accountable for the rent.
    2. Landloed and tenant, § 131*—when tenant estopped from denying landlord’s title. A tenant in possession is estopped from denying title of his landlord, and he must surrender possession before he can assail that title or set up title in himself.
    3. Landloed and tenant. § 321*—when evidence of a claim for repairs by tenant, inadmissible. In an action for rent under a lease requiring lessee to keep premises in repair at his own expense and to make no alterations except with lessor’s consent, evidence offered by defendant of a claim for repairs made by him without lessor’s consent, held inadmissible.
    4. Mobtgages, § 607*—rights of holder of certificate of sale. Holder of a certificate of sale is not entitled to possession of the premises or to the rents, issues or profits thereof during the period of redemption.
    Rocco DeStefano, for appellant.
    Louis Shissler and John A. Stagg, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John Dadie, Administrator, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 17,981.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Maecus A. Kavanaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Reversed and remanded.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.

      Abstract of the Decision.
    1. Municipal corporations, § 1087

      —when evidence to establish defect in street, improper. In an action for injuries caused by city permitting a hole to remain in street testimony of plaintiff’s witnesses regarding a hole in the street more than one hundred and fifty feet away from the place where the only eyewitness testified that the accident occurred, held improper and prejudicial.
    2. Municipal corporations, § 1091*—when evidence of defects in street, other than caused the injury, inadmissible. While in some cases proof of the general condition of a street near the place of accident may be admissible as tending to establish notice to the city, still notice to the city of a particular defect which caused the injury cannot be established by proof of another particular defect which is in no way related to the former and did not contribute to the injury.
    3. Municipal corporations, § 1098*—sufficiency of evidence. Evidence held insufficient to prove that city had notice of defect in street
    Statement of the Case.
    Action by John Dadie, administrator of the estate of Thomas M. Smith, deceased, against the city of Chicago to recover damages for the death of deceased alleged to have been occasioned by falling from a wagon on account of a certain hole permitted by defendants to remain in the street. From a judgment in favor of plaintiff against the city of Chicago for eleven thousand one hundred and twenty-three dollars, the City of Chicago appeals.
    William H. Sexton and N. L. Protrowski, for appellants; David R. Levy, of counsel.
    Johnson & Belasco, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Hattie M. Balsley, Appellee, v. John Hetzel, Appellant.
    Gen. No. 18,005.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 187

      —sufficiency of evidence to sustain verdict for injuries resulting from, collision with wagon. In an action to recover for personal injuries sustained by plaintiff by reason of the negligence of defendant in driving his wagon so as to collide with plaintiff who was attempting to board a street car, evidence held sufficient to sustain verdict for plaintiff.
    2. Release, § 22*—Effect of covenant not to sue one of several tort feasors. A covenant not to sue one of several tort feasors does not operate as a release of either the covenantee or the other tort feasors.
    Appeal from the Superior Court of Cook county; the Hon Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Hattie M. Balsley against John Hetzel and Chicago Railways Company to recover for injuries sustained by plaintiff by reason of collision of a wagon with a street car at a street intersection, where plaintiff was awaiting to board a street car. Upon suit being discontinued as to the Chicago Railways Company and judgment entered for plaintiff for two thousand five hundred dollars, John Hetzel appeals.
    Lackner, Butz & Miller and W. G. Shockey, for appellant.
    Johnson & Belasco, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

3. Release, § 26*—questions for jury. In an action against two tort feasors, the question whether a certain sum paid to plaintiff by one of the defendants after the commencement of the suit was received in satisfaction of all claims against such defendant, held properly submitted to the jury.

4. Appeal and errob, § 1507*—when restricting cross-examination as to release, not error. Trial court’s ruling in sustaining objections to questions asked plaintiff on cross-examination relative to her acceptance of a certain sum paid plaintiff by one of the defendants,. held not error where the court allowed counsel large latitude in questioning witness as to such subject.