text:
    Pasquale Stillo, Appellee, v. Joseph M. Pellettieri, Appellant.
    Gen. No. 17,022.
    1. Landlord and tenant—holding over. A tenant for a year or years, who holds over after the expiration of the term, becomes either a trespasser or a tenant at the option of the landlord.
    2. Landlord and tenant—consideration for a new lease. A tenant under a written lease for a year claimed the right to remain in the premises after the term under a verbal agreement, that he might remain and that because relying thereon, he had made certain repairs, such as painting, had made a contract for electric lights, and had bought certain labels for use in his business. The landlord denied making the verbal agreement, the painting was done with paint that he furnished, and there was no evidence. that he had any knowledge of the contract for electric lights, or of the purchase of the labels. Held, there was nothing done by the tenant that could be held to be consideration for a new lease, or as obligating the landlord to treat the tenant as a tenant after the expiration of the term.
    3. Landlord and tenant—when receipt of rent from tenant holding over does not continue the lease. A receipt by a landlord of rent for the month following the expiration of a term for a year is not indicative of an election to hold the tenant for another year where a notice has been served on the tenant that the tenancy will expire at the end of the term, and that he shall give up possession accordingly, and the tenancy on holding over is but for another month.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rocco DeStefano, for appellant.
    George A. B. Pfuhl, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

We are asked to reverse a judgement obtained by Pasquale Stillo, plaintiff, against Joseph M. Pellettieri, defendant, in a forcible detainer suit tried by a jury. Defendant was a tenant in the premises belonging to plaintiff, under a written lease, for a term beginning October 1, 1905, and ending September 30, 1906. Defendant claimed the right to remain in the leased premises after the term of the lease, for the reason, as alleged, that the plaintiff had verbally agreed that he might remain, and relying thereon he had made certain repairs, such as painting, had made a contract for electric lights, and had bought certain labels for use in his business. The plaintiff denied making any promises or agreements with the defendant, other than those contained in the written lease. The jury evidently gave greater credence to the testimony of the plaintiff than to that of the defendant. The painting was done in April, 1906, with paint furnished by the plaintiff, and there is no evidence that plaintiff had any knowledge of the contract for electric lights or of the purchase of labels. There was nothing done by the defendant which could be held to be a consideration for a new lease, or as obligating the plaintiff to treat the defendant as a tenant after the expiration of the term provided for in the written lease. The plaintiff did accept from the defendant the payment of rent for the month of October, 1906, which was the month next following the last month of the term of the lease. Nothing appears in the abstract of record touching the circumstances of this payment.

On September 30, 1906, the plaintiff served the defendant with a notice in writing as follows:

“You are hereby notified that your tenancy of the following described premises, to-wit: the store floor of the three-story building commonly known as 330 West Polk street in the City of Chicago, will terminate on the 31st day of October, 1906, and you are hereby notified to give up possession of said premises accordingly.
Dated Chicago, September 30, 1906.
(Signed) Pasquale Stillo."

Defendant remained in possession of the premises until August, 1907.

The authorities are uniform in holding that a tenant for a year or years who holds over after the expiration of the term becomes either a trespasser or a tenant, at the option of the landlord. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Directors Theological Seminary v. Chicago Veneer Co., 94 Ill. App. 492; Hately v. Myers, 96 Ill. App. 217; Goldsborough v. Gable, 140 Ill. 269; Springer v. Cooper, 11 Ill. App. 267; Taylor’s Landlord and Tenant, 7th Ed., Sec. 22. And it might be that standing alone the receipt by the landlord of rent for the month following the term of the lease would be indicative of the landlord’s election to hold the tenant for another year, but in this case the intention of the plaintiff must be determined by the written notice which he served upon the defendant, and from this it plainly appears that his election was not to hold the defendant as a tenant for another year but only for another month, which was his right.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Mary A. Shaw, Appellee, v. The Chicago, Rock Island and Pacific Railway Company, Appellant.
    Gen. No. 17,035.
    1. Carriers—res ipsa loquitur. Where the truck of the tender to an engine leaves the rails and the wheels run on the cross ties causing a passenger coach to tilt over and a passenger is injured, the rule of res ipsa loquitur applies.
    2. Carriers—that cause of accident is unknown will not rebut presumption of negligence. Where the truck of the tender to an engine leaves its rails and the wheels run on the cross ties causing a passenger coach to tilt over, and a passenger is injured, that' the cause of the derailment of the tender wheels is unknown will not rebut the presumption of negligence arising from the application of the rule res ipsa loquitur.

    3. Carriers—when employes are negligent in operating train after a derailment. The wheels of a tender to an engine going thirty miles an hour left the rails and the engineer ran the train for one thousand feet before lessening the speed, the derailed wheels cut through rotten ties for a distance of ten or twelve feet and the jar oik striking the sound ties caused a passenger coach to tilt over. There was evidence that the train crew were negligent in not noticing the derailment and in not taking steps to stop the train. Held, it was for the jury to determine whether the conduct of the engineer and train crew after the wheels were derailed was negligence which contributed to the accident.
    4. Damages—when $15,000 not excessive. Certain wheels of a' train became derailed and a passenger was thrown alternately forward and back in her seat, her breast striking the edge of a chair in front of her. At the time of the accident she had black hair, weighed two hundred and twelve pounds and was of great physical ability. At the trial, three years later, her hair was gray, she weighed one hundred and two pounds and was unable to do any housework. She suffered an injury to her spine, had a cancerous lump on her breast, and had had constant medical attention. Held, a verdict for $15,000 would be sustained.
    5. Damages—when proof is sufficient that injury was caused by accident. Certain wheels of a train became derailed, and a passenger was thrown alternately forward, and back in her chair, her breast striking the edge of the chair in front of her. Since the accident her hair turned gray, she lost one hundred and ten pounds in weight, lost the unusual physical strength she possessed, and has suffered with a cancerous lump on a breast, and with pains in her spine. Expert and non-expert witnesses testified on both sides. Held, a finding of the jury that the injuries were caused by the accident would be sustained.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 3, 1912.
    M. L. Bell and A. B. Enoch, for appellant.
    Charles H. Mitchell, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment for $15,000 obtained by Mary A. Shaw, hereinafter called plaintiff, against the Chicago, Bock Island & Pacific Bailway Company, hereinafter called the defendant, in an action on the case for damages on account of personal injuries claimed to have been received by her while a passenger on an eastbound train belonging to the defendant, which was derailed near a station named Watkins, Colorado.

The declaration charges: (1) that defendant negligently permitted its track to become unsafe for the passage of trains over the same, and negligently suffered certain cross ties to become and remain decayed, whereby the train was derailed, etc.; (2) that the car in which plaintiff was riding was, through the negligence of defendant’s servants in the management of the train, derailed and precipitated upon the ground with great violence; (3) general negligence in the operation of the locomotive arid train of cars; by reason whereof the train became derailed, “and then and there before and after said derailment the defendant so carelessly managed said car that for want of due care said car partially overturned and was thrown from the rails with great force and violence;” (4) general averments of careless management and operation of train, with particular averments of injuries sustained by plaintiff.

Defendant’s first point in urging a reversal is that the evidence does not show a liability.

The train in question was approaching from the west toward Watkins, about 10 o’clock in the morning, at a speed of 28 or 30 miles an hour. At a point about 1,000 feet west of the westerly end of the switch track at Watkins, the forward truck of the tender left the rails and the wheels ran on the cross ties. This was not discovered by the engineer until the engine was about at the switch track. He then first began to diminish speed. The engine was going at the rate of about 25 miles an hour when it struck the switch track. The derailed truck struck the switch rails and tore them up. Continuing onward, the wheels of the derailed truck struck a bit of track where, as described by one witness, there were seven or eight rotten ties extending for a space of ten to twelve feet along the track. The derailed wheels cut through these rotten ties and sank into the ground, and ran through these ties and the ground until the sound ties were reached. The truck wheels then struck the sound ties with great force, and the coupling between the tender and engine was broken apart and the engine, weighing ninety tons, was thrown into the air, while the tender and cars ran off the rails and into a ditch on the side. When stopped, the tender was lying nearly on its side, and the car next it was partially overturned, and the other cars were more or less tilted over.

The happening of the accident having been proven, the rule of res ipsa loquitur applies and the burden of rebutting the presumption of negligence rests on the defendant. Defendant seeks to rebut this presumption by showing that the cause of the first derailment is unknown; but this is not sufficient for this purpose. The cases cited, in which the defendant carrier is held to have successfully rebutted the presumption of negligence, are cases where the immediate cause of the accident was known; that is, the accident was caused by the breaking of a car wheel or a rail or some other portion of the equipment, although what caused the breaking of the particular piece of equipment was unknown. It has been held that where the defendant has shown that it used the highest degree of care in the purchase and inspection of the particular article of equipment which subsequently broke, thus causing the accident, the presumption of negligence was rebutted; but we are referred to no case which holds that the inability or failure of a carrier to account for an accident in a res ipsa loquitur case is a sufficient defense. It will not avail to reply that the cause of the accident is a mystery. There is some evidence tending to show that the swaying of the water in the tank would cause the tender to roll, with a tendency to raise the wheels from the rails. There is also evidence from which it might be fairly inferred that the tender wheels .were derailed by reason of an obstruction on the rail.

It is charged by the plaintiff that the train was negligently managed, both before and after the wheels of the tender left the rails. There is little, if any, denial of the fact that the engineer ran his engine and train with the front wheels of the tender running on the ties for nearly 1,000 feet before he made any effort to lessen the speed. There is also evidence from which the jury could reasonably infer that the conductor and other members of the train crew were negligent in not noticing the derailment and in taking no steps to stop the train. It appears clearly established that for a distance of ten or twelve feet the ties were rotten and that the wheels cut through these and into the ground, and that the greatest jar and the derailment of nearly the entire train and the tipping over of the cars was caused by the wheels of the tender sinking into the rotten ties to the ground, and then striking the sound ties with a shock. It was a proper question for the jury to determine whether or not the conduct of the engineer and other persons operating the train, after the wheels of the tender were derailed, was negligence which contributed to the accident as charged in the declaration. We cannot say that the verdict of the jury finding the defendant guilty is against the weight of the evidence.

It is contended that the plaintiff’s injuries were not caused by the accident, and that the verdict is excessive.

The plaintiff at the time of the accident was sitting in a chair car, the fourth from the engine. When the truck wheels struck the sound ties, after running through the rotten ones, the forward pulling of the engine and the momentum of the cars to the rear, produced a succession of backward and forward jerks, throwing plaintiff alternately forward, with her breast against the upward and back edge of the reclining chair in front of her, then back again and against the back of her own seat; and as each truck of the train came up to this point the operation would be repeated. She became partly unconscious. The plaintiff is a married woman, and at the time of the accident was 43 years of age. She weighed 212 pounds, and the evidence tends to show that she was a woman of unusual physical strength and endurance. She did her own housework in a nine-room house, washing, ironing and baking, and in addition, did many other things, indicating that she was a person of great physical ability. After the accident and her return home she remained in bed for two weeks, receiving medical attention; suffered pain in the spinal region, and her weight had diminished greatly. At the time of the trial, which was three years after the accident, she weighed 102 pounds, a loss in weight of 110 pounds. She has suffered with what was called a cancerous lump in the left breast, and has had constant medical attention since the accident. Her hair, which before the accident was entirely black, has become gray. To relieve the pain in her spine she rests her weight upon an air cushion, and has not been able to do any work since receiving these injuries.

Physicians were called to testify on behalf of the plaintiff and of the defendant. The jury and the court below heard the many witnesses who testified concerning the physical condition of the plaintiff. They also had the opportunity to observe the plaintiff herself. It has been said many times that this court should not interfere with the verdict of a jury on a question of this kind, unless such verdict is manifestly and palpably against the weight of the evidence. Donelson v. East St. Louis Ry. Co., 235 Ill. 625. In the case at bar we are not able to say that the finding of the jury that the injuries to plaintiff were caused by the accident in question, and the amount awarded her, are manifestly against the weight of the evidence.

Complaint is made of an instruction given to the jury at the request of plaintiff, touching the preponderance of evidence. While the instruction in the form given is subject to criticism and might under other circumstances become ground for reversal yet, following Deering v. Barzak, 227 Ill. 71, we do not think it warrants a reversal in this particular case.

It is urged that the trial court committed error in not admitting in evidence- an article published in a certain magazine entitled “Annals of Surgery.” The ruling of the trial court in this regard was correct. City of Bloomington v. Shrock, 110 Ill. 219.

It is suggested that other errors were committed by the court in ruling upon the admissibility of evidence, but after consideration of these we hold that there was no reversible error in such rulings.

In conclusion, this court feels compelled to say that the violent and heated mutual criticism of counsel exhibited in the briefs and arguments filed in this case have given no aid whatever to the court in attempting to arrive at a decision.

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

Affirmed.


text:
    Frederick S. McClory, Appellee, v. Sara Johnston Towne, Appellant.
    Gen. No. 17,048.
    1. Pleading—affidavit of merits. It is error to strike an affidavit of merits from the files in an action on a note where the declaration alleges that defendant, the maker of the note, endorsed it and delivered it to plaintiff, and the affidavit states that defendant is in no way indebted to plaintiff and has had no business dealings with him, and did not deliver nor authorize the delivery of the note sued on as alleged, and that no demand was made, and that she never received consideration therefor, hut the note was stolen' from her husband.
    2. Negotiable instruments—when plaintiff must show that he is holder for value. If it is alleged that a note sued on was stolen from the husband of the maker and endorser, the plaintiff must show that he is a holder for value.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Lorenz & Reed, for appellant.
    A. W. Martin and Edward H. S. Martin, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The plaintiff, Frederick S. McCIory, brought suit against the defendant, Sara Johnston Towne, declaring upon a promissory note. Pleas and affidavit of merits were filed, which affidavit was stricken from the files, and leave given to file an amended affidavit of merits. This was done, but the trial court held it to be insufficient and struck it from the files, then struck the pleas from the files for want of an affidavit of merits, and rendered judgment against the defendant for want of a plea.

Motions and points were made by both parties, which we do not comment upon for the reason that in our judgment the affidavit of merits of February 28, 1910, was sufficient, and the cause must be reversed on account of error in striking the same from the files. The declaration was the common counts and a special count. By the special count it was, among other things, alleged that the defendant, who was the maker of the note, endorsed it “and then and there delivered the said note, so endorsed, as aforesaid, to said plaintiff.” The amended affidavit stricken from the files is substantially as follows:

“Sara Johnston Towne makes affidavit that she is defendant in said cause; that she verily believes that she has a good defense to said suit upon the merits to the whole of plaintiff’s demand; that she is in no way indebted to the plaintiff, either directly or indirectly; never had any relations, dealings or business transactions of any name, nature or character whatsoever with plaintiff or with any of his agents, either personally or by agent; she never delivered or authorized delivery of said note sued upon as alleged by the plaintiff; never had any accounting with the plaintiff, nor was any demand made therefor by the plaintiff; that she never received any consideration for the note sued upon, but that it was delivered into the custody of her husband, who deposited the same in his safety deposit box of the Columbus Safe Deposit Company’s vaults in Chicago, and was never delivered by him to any one for any consideration, and the said note sued upon herein was taken from said vault by one Manie B. Ayers, who had access to said vaults, and at times kept some of her papers in said safety deposit box, or that said note was secreted from said safety deposit box by some one who removed Manie B. Ayers’ papers therefrom; that the plaintiff herein received and obtained possession of the said note without having paid any consideration therefor, and subsequent to the maturity thereof.”

This affidavit is a direct denial of the allegation in plaintiff’s declaration that the defendant “delivered the said note, so endorsed, as aforesaid, to said plaintiff.” It is also an averment that the note was stolen or unlawfully taken from the possession of her husband. If this is a fact it is for the plaintiff to show that he was a holder for value.

“The general rule is, that the holder of a note is presumed to be, prima facie, a holder for value. (Story on Notes, 4th Ed. Sec. 196.) But where the maker of the note shows, that it was obtained from him by fraud, the burden of proof is shifted from him to the holder, and the latter must show that he acquired it in good faith for value in the usual course of business, and in such a way as not to create a presumption of knowledge of its invalidity. (Daniel on Neg. Ins., 4th Ed., Sec. 815; Story on Notes, 196.)” Hodson v. Eugene Glass Co., 156 Ill. 397, 404; Wright v. Brosseau, 73 Ill. 381.

Defendant was entitled to a trial upon the merits, and for the error in striking the affidavit from the files the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Wm. Leyda et al., Administrators, Appellees, v. Kelly-Atkinson Company, Appellant.
    Gen. No. 17,066.
    1. Master and servant—when defective materials not selected by fellow-servant. In an action for wrongful death where deceased fell on the breaking of a defective scaffold constructed of piping, recovery is not barred on the ground that fellow-servants selected the pipes in question, where the foreman ordered them to be selected from a certain pile and where they were selected before the deceased was employed and he was ordered to use the ones selected.
    2. Master and servant—duty to furnish reasonably safe materials. If a construction company undertakes to furnish materials for a scaffold, reasonable care must be used to furnish reasonably safe materials.

      3. Master and servant—notice of defects in material for scaffolds. In an action for personal injuries where the evidence shows that one of the pieces.of pipe used for scaffolds had broken the year before and that such fact was known to defendant’s foreman, defendant should have known of their defective condition.
    4. Master and servant—contributory negligence. Contributory negligence by one killed on the breaking of a needle beam of a scaffold while deceased and another were moving planks thereon is not shown where it appears that the planks were being moved in the customary manner, and where it is conceded that if the pipe and coupler of which it was constructed had been sound the beam would have carried the weight.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court. at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Kremer & Greenfield, for appellant.
    Richard J. Finn, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment against the Kelly-Atkinson Company, hereinafter called the defendant, obtained by plaintiff in an action for damages for wrongfully causing the death of James Burns while in the employ of defendant on or about June 15, 1906.

Burns was one of a gang of four structural iron workers working as riveters on the Englewood branch of the South Side Elevated Railroad, then being constructed by the defendant, and with one other man lost his life by the breaking of a scaffold, which caused him to fall. The scaffold was slung by ropes from the top of the bridge or span of the elevated structure where it crossed the Pennsylvania tracks. It was constructed of iron pipes running parallel to each other, with planks placed across them where the work of riveting was being done. The bridge structure was about twenty-six feet wide, and when a single piece of pipe was not long enough to reach across this distance, two pieces were screwed together. It was the custom for the men to rig or erect their own scaffolds from material furnished by the employer. The pipe that was in use on the occasion of the accident was taken from a pile consisting of about thirty or forty pieces, which was lying on the elevated structure nearby. It was hollow pipe, measuring inches inside and 3 inches outside diameter. This particular pipe had been used in 1904 and 1905 in a compressed air line, but had been lying unused and exposed upon the elevated structure all the winter and spring before the accident.

Burns and Decker, the men who lost their lives, came to work on the job three or four days before the accident. The day before they came to work, Thompson, defendant’s foreman, ordered a man named Saddler, who was employed as a fitter, to go to this pile and get four pieces of pipe for needle beams. He did so, assisted by a man named O’Neill, who testified that they selected from the pile the best pipe they could find. Saddler says it was old pipe and rusty, but as near as he could see it looked all right. The next morning, when Burns and Decker came to work, they were ordered by the foreman, Thompson, to construct the scaffold in question with these four pieces of pipe, which was done, Thompson and O’Neill assisting. Thompson testified that he did not make an inspection of the pipes at the time to see whether they were strong enough to hold together. Two pieces of pipe eighteen feet long were screwed together, making a needle beam thirty-six feet long, with a coupling in the center. Two such needle beams were made and slung from the top of the structure parallel to each other, about eight feet apart, and across these six planks about twelve feet long were placed at the point where riveting was to be done. Burns and his gang worked on this scaffold two or three days. On the day of the accident they worked upon one end of the scaffold, and then they moved across to the other end.' They moved by Burns and Decker sitting one on each needle beam and shoving the planks across in front. A short time thereafter they started to move the planks across again in the same way, and had just reached the center, Burns being on the south needle beam and Becker on the north, when the coupling on the south needle beam gave way- and both men and planks fell to the ground.

We are met at the outset with the important question of fact as to the cause of the breaking of the coupling. The coupler was the ordinary gas pipe sleeve or coupler, attached to one end of a piece of pipe, within which sleeve were threads into which the other piece of pipe, which had threads on the end, was screwed. The break in question was about three-fourths of an inch from the end of the piece of pipe going into the sleeve. Defendant claims that the cause of the break was that the pipe was not screwed far enough into the coupler, while plaintiff claims that the break was caused by the rusty, weakened and defective condition of the end of the pipe which was screwed into the sleeve. After careful consideration of the evidence and an inspection of the pieces of pipe themselves, which are exhibits herein, we are of the opinion that the greater weight of the evidence tends to support the claim that the break was caused by the thread end of the pipe becoming worn so thin by use and rust from exposure as to be of insufficient strength for the purpose for which it was used. It would be of no value to recite at length the testimony and evidence upon which our conclusion is based; This was the apparent finding of the jury, and we see no good reason to dispute its correctness.

Defendant contends that even if the pipe in question was defective it is not liable, for the reason that the pipe was selected by a fellow-servant of Burns. It will be noted however, that the foreman, Thompson, directed that the material for the scaffold should be selected from a certain particular pile of pipe. This fact distinguishes this case from that class of scaffold cases in which the selection of the materials and the erection of the scaffold is left entirely to the workers themselves. It also distinguishes it from the facts involved in Nevin v. Grace Co., 165 Ill. App. 259, wherein it appears that the materials for the scaffold were selected from boards “incidentally lying’ in the building,” without any direction or control of the employer. A further distinguishing fact is that Bums was not employed on this work at the time the particular four pieces of pipe were selected under orders from Thompson. The selection of material was made before he was employed, and hence there can be no relation of fellow-servant with him with reference to that particular act. It also appears that the first connection Bums had with the scaffold was in following the order of the foreman to construct the scaffold with the particular four pieces of pipe. He never directly or through a fellow-servant exercised any selection of the materials to be used. If the defendant undertook to select and furnish the materials with which to construct the scaffold, it was its duty to use reasonable care to furnish reasonably safe materials for the purpose. The evidence shows that one of these pieces of pipe had broken the year before, which fact was known to Thompson, the foreman, so that the defendant should have known of the defective condition of these pieces of pipe. Wrisley Co. v. Burke, 203 Ill. 250; Ehlen v. O’Donnell, 205 Ill. 38; Schillinger Bros. Co. v. Smith, 225 Ill. 74; Diamond Glue Co. v. Wietzychowski, 227 Ill. 338.

As to the claim that Bums was guilty of contributory negligence in moving the boards across on the needle beams as he did, the evidence discloses that this was the usual and customary manner of doing this. Also it is conceded that if the pipe and coupler had been sound and properly joined, the needle beam would have been sufficiently strong to carry the weight which was placed upon it.

Perceiving' no error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    William Hogan, Appellee, v. Crane Company, Appellant.
    Gen. No. 17,081.
    1. Master and servant—questions for jury. Where plaintiff was injured while inside a car unloading it, on its being struck by a switch train, the question whether defendant’s foreman was present and had notice that plaintiff was in the car is for the jury where the evidence is conflicting as to whether such foreman was near the car watching plaintiff and gave a signal for the switching train to back against the' car. ■
    2. Appeals and errors-—presumptions. It will be presumed that an argument was given consideration by the jury.
    Appeal from the Superior Court of Cook county; the Hon. R. W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Alder, Latham & Young, for appellant.
    McGoorty & Pollock, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment obtained by-Hogan, the plaintiff, in an action to recover damages for a personal injury received by him while employed by the defendant. This case has been passed upon both by the Appellate Court (131 App. 314) and the Supreme Court (228 Ill. 338). Reference to these reported opinions will give a full statement of the facts involved, and we therefore refrain from making a complete statement here. Briefly stated, Hogan, after assisting in loading a freight car, was helping to carry from it a flat sheet or plate of iron used in the work, when just as he was emerging through the car door the car was struck by a switch train backing into it, causing it to lurch, so as to crush the hand of the plaintiff between the edge of the iron plate and the side of the door of the car. His little finger was cut off and the next finger severely bruised.

As we understand the opinion of the Supreme Court, there can be no recovery in this case, except, if there should be any recovery, under the count in the declaration alleging “that the defendant knew, or in the exercise of ordinary and reasonable care would have known that plaintiff was in the car, and that it negligently and carelessly and without warning ran the switch engine against the car.” It was held by the Supreme Court that there was not sufficient evidence in the first trial to sustain that charge. “There was no evidence tending to prove, or from which the jury could reasonably have found, that defendant’s employes knew, or ought to have known, that the plaintiff was in the car.” Upon the second trial plaintiff undertook to supply this evidence, and whether it has been successfully accomplished is the question now before us.

It is claimed on behalf of the plaintiff that the foreman, Hayes, just before and at the time of the accident, was standing on the platform within a few feet of Hogan, and that while lookng toward the door, just as Hogan was coming out, he, the foreman, gave a signal to the engineer to start the switch engine. Sipronas Dargwicz, the only witness who did not testify at the first trial, testified at the second trial in substance that Hayes, the foreman, was there on the platform beside the car, and that he told Hogan and the others “to go into the car'and take out the tools, and also to remove the plate that was put over the hole;” that just as Hogan was going out with the iron plate “we heard Hayes say ‘all right’;” that at that time Hayes was standing some four feet from the door; he was looking toward the door; that “when Hayes yelled out ‘all right’ he yelled out very loud.” This testimony, with that of other witnesses, tends to support plaintiff’s theory that Hayes, the foreman, knew that Hogan was in the car, and that without warning he caused the switch engine to run against it. Hayes says that he left the place of the accident ten minutes before it happened, that he did not know Hogan was in the car, and that he gave no such signal as is testified to by plaintiff’s witnesses; and the testimony of other witnesses tends to corroborate Hayes’ statement. The issue as to which was the true story was therefore properly for the jury to determine.

It is argued that if it is a fact that Hayes “hollered ‘all right, Bill’ in a loud voice,” Hogan ought to have heard it. This has force as an argument to be made to the jury, and we must presume that it was given proper consideration. The facts were peculiarly for the jury to determine from the conflicting testimony before it. It evidently gave greater credence to the testimony of plaintiff’s witnesses, and after careful consideration of the record before us we have concluded that we would not be justified in holding that the verdict is manifestly against the weight of the evidence.

Complaint is made of rulings of the court during the trial and of the refusal of certain instructions tendered by the defendant. We do not find any errors in the rulings of the court which are sufficiently serious to require a reversal, and we hold that the instructions refused were properly refused.

For the reasons indicated the judgment will be affirmed.

Affirmed.


text:
    George Hardy, Appellee, v. Gideon C. Bach, Appellant.
    Gen. No. 17,091.
    1. Appeal and error—presumption on failure to abstract document. On a failure to give any information in the abstract of record as to the nature and contents of a document introduced in criminal conversation to prove a valid marriage, the court will assume that it was sufficient for the purpose for which it was offered, and that the marriage was properly proven.
    2. Husband and wife—criminal conversation. Proof of the reputation of a wife for chastity, and specific acts of unchastity prior to her marriage, while no defense in criminal conversation, is admissible in mitigation of damages.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Tinsman, Rankin & Neltnor, for appellant.
    Charles R. Napier and Charles S. McIlvaine, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action on the case by George Hardy, charging Gideon C. Bach with criminal conversation with Margaret Hardy, plaintiff’s wife. The jury returned a verdict for $1,000.

Counsel for defendant argue that a valid marriage between George Hardy and Margaret Hardy was not proven. As was said in Keppler v. Elser, 23 Ill. App. 643: ' ‘ The plaintiff in a case of this kind is bound to prove a marriage valid in all respects.” The plaintiff, to prove the marriage, introduced in evidence a document which is described in the abstract as “Plaintiff’s Exhibit C.” Counsel not having seen fit to give us any other information in the abstract of record as to the nature and contents of this document, we must assume that it was sufficient for the purpose for which it was offered and that the marriage was properly proven.

The defendant offered to prove the reputation of Margaret Hardy for chastity, and specific acts of unchastity by her prior to her marriage to the plaintiff. Such evidence, while no defense is admissible in mitigation of damages. Sanborn v. Neilson, 4 N. H. 501; Conway v. Nicol, 34 Ia. 533; Smith v. Hockenberry, 138 Mich. 129; Rea v. Tucker, 51 Ill. 110; 2 Greenleaf on Evidence, Section 56.

The ruling of the trial court in not permitting the introduction of such evidence was reversible error. Therefore the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Jessie R. Van Vlissingen, Appellee, v. Peter Van Vlissingen, Appellant.
    Gen. No. 17,109.
    1. Divorce—request for jury trial. A request for a jury trial by a party to a divorce suit under R. S. Ch. 40, Sec. 7, need not be in writing
    2. Divorce—jury trial. Where several issues of fact are presented in a suit for divorce, among which is the substantive ground upon which the divorce is sought, the conviction of the husband of forgery, it is error under R. S. Ch. 40, Sec. 7, to deny the husband’s request for a trial by jury.
    3. Divorce—imprisoned defendant is entitled to a writ of habeas corpus ad testificandum. Where a husband sued for divorce on the ground of having been convicted of forgery, is imprisoned in the penitentiary, it is error to refuse to grant his petition for a writ of habeas corpus ad testificandum, and it is not sufficient to admit that if present he would testify as set forth in the petition, since he has a right to face the complainant and witnesses and to assist his counsel during the trial.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Louis Greenberg, for appellant; Hugo J. Thal and I. T. Greenacre, of counsel.
    Robert F. Pettibone, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by Peter Van Vlissingen from a decree of the Circuit Court, entered July 13, 1910, granting the complainant, Jessie R. Van Vlissingen, a divorce from^him on the ground that he had been convicted of a forgery. The decree allowed her to resume her former name, and perpetually enjoined him from claiming any right, title or interest in or to any real estate owned by her, and especially from claiming any right, title or interest in a farm in Virginia, and from claiming any right to household furniture and other personal property. The bill filed by complainant alleges among other things, that the defendant was convicted of the crime of forgery in the Criminal Court of Cook County. • The defendant appeared by counsel and filed an answer, afterwards amended, in which the conviction was denied, as well as other matters alleged in the bill. To this amended answer a replication was filed.

It is urged as one of the grounds upon which this decree should be reversed that the proof of a conviction was insufficient in that the certified copy of the order of judgment of the Criminal Court, commonly called the penitentiary mittimus, fails to show the record of the case in that it omits (1) any order for the grand jury;, (2) the impaneling of the grand jury; (3) the appearance of the grand jury in open court returning an indictment at the bar; (4) the arraignment of the accused; (5) his plea; and (6) a proper placita.

It is argued that in the absence of any statutory provision in that respect, the fact that a person has been convicted of a crime must be proved as at common law, that is, by the introduction of the whole record, or an exemplification of such record. As we must remand this cause upon other grounds, we express no opinion upon these objections. At another hearing counsel for complainant will doubtless supply any deficiencies in the proof he may think necessary to be supplied.

When the cause was called for trial the defendant, by his counsel, requested a trial by jury, which was denied by the court, who proceeded to hear the evidence and try the cause. Section 7, chapter 40, entitled “Divorce,” Hurd’s Illinois Statutes, is as follows: “When the defendant appears and denies the charges in the complainant’s bill for a divorce, either party shall have the right to have the cause tried by a jury.” Clearly- under this statute, defendant was entitled to have granted his request for a jury trial. The suggestion by complainant’s counsel that the request was not in writing is without merit. A request in such a case need not be in writing. Neither is there any force in the argument that there was no issue of fact to be presented to a jury. Several issues of fact were presented, among which was the substantive ground upon which the divorce was sought. The refusal to grant a jury trial was a denial to the defendant of a right to which he was entitled, and was reversible error.' We also hold that it was error to refuse to grant the petition of the defendant for a writ of habeas corpus ad testificandum. When the case was called for trial the defendant was imprisoned in the penitentiary at Joliet, so that it was impossible for him to be present at the trial without the aid of the court. While the disposition of such a petition is within the discretion of the court, yet we are inclined to hold that a prisoner confined within the jurisdiction of the court is in most cases entitled to the aid of the court in obtaining his presence at a trial where he is a defendant. (Church on Habeas Corpus, 2nd Ed., Sec. 94, p. 151.) It is not a sufficient answer to say that opposing counsel will admit that if present defendant would testify as set forth in the petition. His presence in court to face the complainant and the witnesses and to assist his counsel during the trial, are rights of which he should not be deprived except under extraordinary circumstances.

For the reasons indicated the decree will be reversed and the cause remanded.

Reversed and remanded.


text:
    John Gentzen, Appellee, v. H. M. Hooker Company, Appellant.
    Gen. No. 17,123.
    1. Malicious prosecution—evidence. The admission in evidence of an order of nolle prosequi entered in a criminal court in the case which is the basis for an action of malicious prosecution, without any limitation of its purpose, is error.
    2. Malicious prosecution—evidence. Where an assistant state’s attorney testifies in malicious prosecution for defendant company as to conversations with certain officers of the company in his office, and it appears on cross examination that he had made a memorandum for his personal use of points among which one was that the defendant company was the prosecuting witness, such memorandum is not admissible as a public record nor as tending to impeach his direct testimony, since it contained merely his conclusions.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    John T. Murray, for appellant.
    Lowes & Richards and Rice & O’Neil, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by the H. M. Hooker Company from a judgment against it obtained by John Gentzen in an action for damages for an alleged malicious prosecution.

As we must remand this case for errors hereinafter indicated, we shall refrain from any statement of the evidence adduced upon the trial. It was a very close case on the facts, and it was necessary to secure justice that no improper evidence should have been submitted to the jury.

There was admitted in evidence, over the objection of counsel for the defendant, a copy of an order of nolle prosequi entered in the Criminal Court in the case of The People v. John Gentzen, which case is the basis for this action for malicious prosecution. This was admitted in evidence and marked as an exhibit for the plaintiff, without any limitation of its effect. It went to the jury for any and all purposes, including its bearing upon the question of the innocence of Gentzen of the criminal charge. In Skidmore v. Bricker, 77 Ill. 164 (167), the court says of permitting such a record in evidence: “In this there was manifest error. The question in this case is not whether the accused was guilty or innocent, but whether the prosecuting witness had probable ground for believing the accused guilty. If the record of acquittal was permitted to be read in evidence on the trial of this class of cases, a recovery could he had in almost every case of acquittal. Such a practice would deter all men from thus endeavoring to enforce the criminal laws of the state. The prosecutor would he compelled to secure a conviction or respond in damages for a malicious prosecution. This is not, nor can it ever be held to be, the law. Far better to abolish the action for malicious prosecution, than adopt such a rule. Under it, no one would dare to prosecute, who was able to respond in damages.” The cases cited by appellee’s counsel are distinguished from the Skidmore case and the case before us, in that in the cases cited the record of acquittal was admitted solely for the purpose of showing the termination of the criminal prosecution, which limitation was expressly stated in apt words, either in the offer or by an instruction. No limitation of the purpose of the exhibit appears in this case, and its admission in this way was prejudicial error.

Mr. Zolotkoff, an assistant state’s attorney, called by the defendant, testified to conversations with certain officers of the defendant company in his office. Upon cross-examination it developed that he had made a memorandum for his personal use of points in the criminal case. In this memorandum are the words, “Prosecuting witness H. M. Hooker Company, Corp. Ill. pros.” This memorandum was permitted to go to the jury as an exhibit introduced by plaintiff. It is manifest that, this memorandum was no record required to be kept by law, but only a private paper of the witness, Zolotkoff. Furthermore, it cannot be admissible upon the ground that it tends to impeach anything testified to by the witness upon his direct examination. At most it contained merely his conclusion drawn from the facts to which he had testified, and nothing tending to contradict the facts themselves. It is a reasonable inference that this memorandum would tend to give the jury the impression that it was an official record of the state’s attorney’s office that the defendant company was prosecuting the criminal case, which alleged fact was the principal contested point upon the trial. Its admission was prejudicial error.

We do not pass upon the point urged as to alleged improper remarks of the attorney for plaintiff in kis argument to the jury. There may have been sufficient provocation for what was said. However, we cannot avoid the conclusion that, in view of the evidence in the case, the very large verdict returned by the jury must have been caused by other considerations than would be caused by a dispassionate weighing of the evidence under the instructions of the court.

For the errors indicated the judgment will he reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Lawrence De Mas, Plaintiff in Error.
    Gen. No. 17,187.
    1. Pandering—information. Objections to an information charging pandering that it does not allege that the person is a “female person” and that she was induced to .remain “as such inmate” go merely to the form.
    2. Pandering—appeals and error. On appeal from a judgment on an information charging pandering it is too late to complain of informalities in the information.
    3. Pandering—sufficiency of information. An information charging pandering is not insufficient because it begins by saying that Lena Burkett comes “in his own proper person,” where it elsewhere appears that such person is a female and furthermore the name “Lena” imports a person of the female sex.
    4. Jury—waiver of jury trial. A waiver of jury trial signed by the defendant by making his mark is sufficient.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 3, 1912.
    J. Gray Lucas, for appellant.
    John E. W. Wayman, for appellee; Zach Hofheimer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The plaintiff in error was arrested upon a capias issued upon an information sworn to by Lena Burkett, charging him with the crime of pandering. A jury trial was waived and trial had by the court, which found De Mas guilty, and he was sentenced.

It is claimed that the information is-insufficient in that (1) it nowhere alleges that Lena Burkett is a “female person(2) it is not alleged that she was induced to remain therein “as such inmate(3) the information begins by saying that Lena Burkett comes “in his own proper person.”

The first two objections go merely to the form of the information and not to the substantive offense charged. No motion to quash the information was made, nor any motion for a new trial or in arrest of judgment. It is too late now to complain of informality in the information (Hurd’s Illinois Statutes, Chapter 38 Div. XI., Secs., 6 and 9). As to the third point, it appears elsewhere in the information more than once that Lena Burkett is a female. Furthermore, the name “Lena” imports a person of the female sex. People v. Pizzi, 170 Ill. App. 537.

A suggestion is made that the waiver of a jury trial being signed by plaintiff in error making his mark, is not sufficient. Such a signing is sufficient. The judgment is affirmed.

Affirmed,


text:
    The People of the State of Illinois, Defendant in Error, v. William J. McBeth, Plaintiff in Error.
    Gen. No. 18,197.
    Husband and wipe—abandonment. A finding that defendant is guilty of wife abandonment and failure to provide as charged in an information in the language of the statute (Hurd’s Revised Stats. Chap. 68, § 24) should be reversed where it appears from the evidence and from statements of the prosecuting witness that the husband was always willing to return, but that she would not permit it, and that he gave her $5 a week for food and clothing and gave her $50 before leaving for a week, and that she during that time collected the receipts from his saloon amounting to $75 or $100, and that on his return she threw his clothes to him and would not let him in.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed October 3, 1912.
    Herren & Aspern, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a prosecution upon a charge of wife abandonment and failure to provide for her support, under section 24 of chapter 68, Hurd’s Revised Statutes. The case was tried by the court, who found the defendant guilty in manner and form as charged in the information. The information charges in the language of the statute that the defendant “did without good cause abandon and neglect and refuse to maintain and provide for his said wife.” It is argued that the evidence does not support the charge of wife abandonment.

On October 16,1911, Sophia McBeth the prosecuting witness, testified that her husband kept a saloon at Belden and Marshfield avenues; that they were married in 1893, and lived together in rooms at Halsted street and Belden avenue; that in September, 1911, about five weeks before the trial, he came home early in the morning; that she asked him for some money and he gave her $50 and left her that night; that before that he had been paying her $5 a week for clothing and meals; that he would get drunk and would abuse her. After he left she took charge of the saloon and collected the receipts for a week, amounting to $75 or $100; that her husband then returned and tried to resume charge of the saloon, but that she would not permit him to go behind the bar; that he tried to strike her and she called up the police and had him arrested for cruelty; that shortly afterward he returned to the place where they roomed, but she would not let him in the house and threw his clothes to him through the transom. She also says that she had left her husband about three months before and stayed away six weeks; that she had left him a good many times since they were married; that he went with another woman, and that she was afraid of him “because he was a brute;” that she had started divorce proceedings twice, but did not know whether or not the divorce proceedings were still pending.

The following questions were put to the witness by the attorney for the people, and the following answers made:

“Q. How many times did he leave you?
“A. Never; it was me that left him.
“Q. How about this last time?
“A. He left me, but he was willing to return, but I wouldn’t permit it.”

We think it is at once evident that while plaintiff in error may have been guilty of reprehensible conduct towards his wife, he cannot be said from the evidence to have been guilty of wilfully abandoning her and failing to provide for her support. During the time he was away on his drunken spree she was receiving all the profits from his business. The relations of the couple were certainly not harmonious, but we cannot avoid the conclusion that the wife was not properly advised in seeking relief from her alleged wrongs by filing the charge which was filed in this case. The evidence does not support the finding of the trial court. Virtue v. People, 122 Ill. App. 223; also People v. Peterson, 172 Ill. App. 287.

The court finds that the defendant was not guilty in the form and manner as charged in the information filed in this case, and the cause will therefore be reversed.

Reversed.


author: Mr. Presiding Justice Higbee

text:
    John Kaler, Appellee, v. Swift & Company, Appellant.
    1. Contributory negligence—when for the jury. Questions of assumed risk and contributory negligence are usually for the jury, especially where the evidence tends to show that the party injured had no knowledge of the danger and could not have ascertained it by the exercise of ordinary care.
    2. Instructions—when peremptory properly refused. A peremptory instruction is properly refused where there is evidence tending to prove all the material allegations of a declaration alleging a failure of defendant company to perform its duty to provide plaintiff a safe place in which to work, in that insufficient light was furnished to make objects on the floor discernible, and in that crates were allowed to remain on the floor over which the plaintiff stumbled while exercising due care and was injured.
    3. Master and servant—instructions. An instruction, considered in connection with the facts, sufficiently covers the acts of defendant connected with the injury where it provides that a finding for plaintiff is warranted if from the evidence the jury believe that plaintiff, as defendant company’s servant, while exercising ordinary care was injured as charged in the declaration because of failure by defendant to use reasonable care to furnish a reasonably safe place in which to work, and that plaintiff had not assumed the risk of injury in the manner shown.
    4. Instructions—how considered. Instructions must be considered in connection with the facts of the case to which they are applied.

      5. Instructions—when do not authorize recovery,on evidence of negligence not charged in the declaration. An instruction authorizing a finding for plaintiff, if from the evidence the jury believe that plaintiff was injured as charged in the declaration because defendant failed to use reasonable care to furnish, a reasonably safe place in which to work, is not objectionable as.permitting recovery on evidence of negligence not charged in the declaration where the declaration charges failure to provide a reasonably safe place in which to work, and also failure to furnish sufficient light in a room, and that crates were thrown on the floor therein rendering it dangerous to walk over.
    6. Damages—instructions. An instruction as to the elements to be considered in estimating damages for a personal injury is not objectionable because it ignores the question as to whether plaintiff aggravated his injuries by inattention. .
    7. Damages—instructions. Whether plaintiff aggravated his personal injuries by carelessness is a matter of defense to be provided for by instructions for defendant.
    8. Instructions—when refusal not error. It is not error to refuse instructions fully covered by those given.
    9. Damages—when not •excessive. A judgment for $3,000 is not excessive where the plaintiff who was 48 years old was receiving from $16.50 to $19.00 per week, was in bed for six months with blood poisoning because of the injury to his leg, his whole side is affected, and his injuries seem to be permanent.
    Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1911.
    Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    C. E. Pope, for appellant.
    Wise, Keefe & Wheeler, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment recovered by appellee, for injuries received by him, while in the employ of appellant. The one count of which the declaration consisted, charged that it was the duty of appellant to use reasonable care to furnish appellee a reasonably safe place in which to do his work, but that disregarding that duty appellant negligently failed and omitted to furnish or supply on the fifth floor of the building, where appellee was employed, any natural or artificial light, by which he would be enabled to work around and upon said floor and to discern any objects which might be upon the floor that would interfere with his walking or passing over the same; that on or about December 15, 1909, appellee was required to go from the fourth floor to the fifth floor which was dark and unlighted, upon which floor certain crates had been placed and thrown, which were not discernible to appellee on account of the darkness prevailing in said room, which rendered the floor dangerous to walk upon or travel over; that said condition was known to appellant or should have been by the exercise of ordinary care by it, but was unknown to appellee and not discoverable by him by the exercise of ordinary care; that while appellee was walking along said fifth floor in the line of his duties, in the exercise of ordinary care for his own safety, he, on account of the absence of light in such room, stumbled over and against said crates and was thereby thrown with great force and violence against certain iron pipes in said room, receiving injuries for which he brought suit.

The trial jury assessed damages in favor of appellee at $5,000 but, appellant having entered a motion for a new trial, appellee filed a remittitur of $2,000, and judgment was thereupon entered against appellant for $3,000.

Appellant offered a peremptory instruction in its favor at the close of the evidence in the case, which was refused by the court and it here contends that said instruction should have been given to the jury for three reasons: First, that appellee assumed whatever risk there was of being injured in the manner he claimed he was and in the manner set out in the declaration; second, appellee was guilty of contributory negligence which precluded a recovery, and third, the material averments in the declaration were not proven.

We find from a careful examination of the record that, though the evidence in the case is somewhat confusing, the following facts are substantially established : Appellee, a man forty-eight years of age, was, at the time he was injured, which was on or about the date above mentioned, and had been for some three years prior thereto, employed by appellant in its packing house near East St. Louis, and had charge of the lard rendering department. The rendering process was conducted on the fourth, fifth and sixth floors of the building, and while appellee’s duties confined him principally to the sixth floor, where the rendering proper was done, yet it was necessary for him, several times a day, to go to the fourth and fifth floors where the product from the sixth floor was conveyed, in order to ascertain that kettles and other appliances were in proper condition. The fifth floor on which the injury occurred, was ninety-six feet long and eighty feet wide and there were in it nineteen posts, ten inches square and sixteen feet apart, to support the floor above. In the southeast corner was a stairway and vestibule. The walls on the east and north were solid, while those on the south and west contained nineteen windows. The glass in these windows was thick, had a wire netting woven in it and was known as fireproof glass. Just west of the vestibule was a large square tank with a capacity of 30,000 pounds of lard which, to a large extent, excluded the light from the two windows in front of which it was located. From this tank a pipe extended to and under a large circular tank located a little north of the center of the room known as the scale tank. Near the northwest corner of the fifth floor was a large tank called a settler, which received lard from the rendering kettles above. From this tank a pipe extended to about twenty feet of the northeast corner of the room and then passed through the floor to distribute lard throughout the floors below. At about the place this pipe went through the floor there was another large tank ten feet high and built on a platform some three feet above the floor. A portion of this room appears to have been used as a storage place for empty lard cans and the crates in which they were placed for shipment.

It is claimed by appellant that these cans and crates were piled up on one another in such a way as to leave aisles for the workmen to pass through in going to the various tanks on the floor. The evidence however is not clear as to the manner in which these articles were piled up though it appears they, for the most part, occupied the central space of the floor. Above the scale tank in the middle of the room were scales located at such a height that it was necessary for the men in reading the same to stand upon something higher than the floor and for this purpose they frequently used the empty crates. On the day in question there was a canvas hanging on the south side of the room which, in some degree, obstructed the light from the south windows, while steam arising from a kettle on the fourth floor came through an opening on the west side of the building, settled on the windows on that side of the room and interfered with the light afforded by them. Appellant had two or three workmen or janitors, whose duty it was to arrange the cans and crates upon the floor in such a way as not to interfere with the work of appellee and others, whose duties called them to the tanks, and with these men and with the work of clearing the floor, appellee had nothing to do, his duties being limited to visiting and caring for the various tanks and settlers located thereon. On the day he was injured, appellee, desiring to ascertain if the settler over the tank in the northwest corner of the fifth floor was cleaned, came up the stairway from the fourth floor, entered the room at the vestibule at the southeast corner and started north near the east wall in the way he was accustomed to do, and when he reached the tank stand ing near the northeast corner of the room started to go around it on his way to the northwest corner of the room, when he tripped and fell over some crates left in the passageway, which he did not see in the darkness, and was thrown against an iron pipe with such force as to cut through his underwear, trousers and overalls, breaking and bruising the skin for an inch or more on his leg below the knee. He wrapped up his wound and, at the suggestion of another workman, purchased a medicine to use upon it and attempted to continue his work. A couple of days later, the injury not healing, he reported to appellant’s foreman, who directed him to a physician having an office at the plant. He was later referred by this physician to another who was the surgeon for appellant at that place. His wound did not yield to treatment and blood poisoning set in. Appellant’s superintendent had him sent to a hospital where he was compelled to remain for six months. He suffered greatly and his whole side appeared to have become affected. The infection was deep and the physician in charge of him had to make numerous incisions in the leg to let out the pus.

At the time of the trial, in October, 1910, he was still compelled to walk on crutches and the evidence tended to show his injuries were permanent. When he was injured appellee was receiving as wages $16.50 a week and at times, when he worked overtime, $19.

The questions of assumed risk and contributory negligence are usually questions of fact for the jury and especially is this so where, as in this case, there is evidence tending to show that the injured party had no knowledge of the existence of the danger and could not, by the exercise of ordinary care, have ascertained it. (I. C. R. R. Co. v. Heath, 228 Ill. 312.) Appellee was proceeding to attend to his duties according to his usual custom and he testified that he had no reason to suspect that there would be any crates in the passageway. It also appeared that the light in the portion of the room where the injury occurred was very poor and that the crates would not have been noticed unless a person was looking closely for them. While it is true that there were many windows on two sides of the room, yet there were various reasons, as above mentioned, which prevented the light from reaching the portion of the room in question, so as to make objects on the floor clearly discernible. In fact there was evidence tending to prove all the material allegations of the declaration as above set forth. The trial court therefore could not have properly done otherwise than to refuse the peremptory instruction and submit the case to the jury.

It is further contended by appellant that the verdict was contrary to the preponderance of the evidence and that therefore a new trial should have been given. From a consideration of all the facts in proof, we are of opinion that the evidence was sufficient to sustain the verdict and that the court did not err in refusing a new trial.

Appellant complains of the two instructions which were given on behalf of appellee. The first was as follows: “The court instructs the jury that if you believe from a preponderance of the evidence in this case that while the plaintiff was working for the defendant as its servant and while he was in the exercise of ordinary care for his own safety, he was injured, as charged in the declaration, by reason of the fact that the defendant failed to use reasonable care to furnish a reasonably safe place in which to work, and had not assumed the risk of being injured in the manner shown by the testimony, then you would be warranted in finding for the plaintiff.” The first criticism of the instruction is that it did not require the jury to find that appellee was in the exercise of ordinary care both at and before the time he was injured, the language used being “while he was in the exercise of ordinary care for Ms own safety he was injured etc.” An instruction must always he considered in connection with the facts of the case to which it is applied. Under the facts in this case, the language used in the instruction sufficiently covered all the acts of appellant having connection with the injury.

Appellant further claims that the question of assumed risk was not properly submitted to the jury. This as we have above seen, however, was a question of fact for the jury in this case and while the court might properly have made some further statement concerning the law as to assumed risk, yet under the proofs, a failure to do so was not error. The principal objection, however, urged to the instruction by appellant, is that it permits a recovery npon evidence of negligence not charged in the declaration, it being said that the declaration charges a negligent failure and omission on the part of appellant to furnish a certain supply of light, while the instruction permits as a ground for recovery, a failure on the part of appellant to úse reasonable care to furnish appellee a reasonably safe place in which to work. This objection does not appear to us to be well taken. The declaration as will above appear, charges directly a failure on the part of appellant to use reasonable care to furnish appellee a reasonably safe place in which to do his work and in connection therewith alleges not only a failure to furnish sufficient light but also that certain crates had been thrown or placed on the floor, which rendered the same dangerous to walk upon or travel over.

The second instruction given for appellee states the usual and ordinary elements to be considered by the jury in estimating appellee’s damages in case they should find the defendant guilty. The criticism of the instruction is that it ignores the question as to whether or not appellee did not aggravate his injuries by Ms own carelessness or inattention thereto. The instruction in question correctly stated the general rule of law applicable to the question of damages in cases such as this, and the question whether appellee aggravated his injuries by carelessness, was a matter of defense to be properly provided for in the instructions given for the appellant as was actually done in this case.

The modifications of its instructions objected to by appellant were unimportant and did not materially change the import of any of them.

Appellant complains that some twelve of its instructions were refused by the court. A number of these instructions stated abstract principles of law and with the exception of refused instructions Nos. 20 and 21, appellant does not state wherein the court erred in refusing them, nor does an examination of them disclose that there was any error on the part of the court in so doing. Defused instructions Nos. 20 and 21, which both stated a rule of law applicable to the case, in the event it was found that appellee’s injuries were occasioned or aggravated by his own carelessness or neglect, were fully covered in theory by instruction No. 19 given for appellant.

The final contention of appellant is that the judgment in this case is excessive. The age and earning-capacity of appellant and the injuries suffered by him would appear to be sufficient warrant for the judgment of $3,000, in his favor, entered by the court below.

Judgment affirmed.


text:
    John R. Challacombe, Appellant, v. William E. Anderson, Supervisor, et al., Appellees.
    1. Roads and bridges—power of commissioners to contract indebtedness. The statutes do not give the commissioners of highways of a town power to bind the town or to- contract indebtedness except in relation to their special fund.
    2. Roads and bridges—extent of indebtedness commissioners may contract. Commissioners of highways cannot contract indebtedness in excess of money on hand and taxes levied.
    3. Townships—extent of power to levy taxes. A town tax cannot be levied or a town fund raised to discharge a debt not incurred by the town as a corporation.
    4. Roads and bridges—duty of one furnishing labor and materials to highway commissioners. A person furnishing labor and materials to the commissioners of highways of a town has no right to expect payment except from funds on hand or tax levies made, and it is his duty to ascertain whether the amount so available is sufficient before permitting them to incur the indebtedness.
    5. Mandamus—when does not lie against town auditors. The auditors of a town cannot be compelled by mandamus to cause a general tax to be levied to pay a judgment against the highway commissioners for labor and material previously furnished to the commissioners.
    6. Townships—act relating to judgments against town construed. The statute (3 Starr & Curtis, 3929, § 50) providing that a judgment against a town or town officers in actions by or against them in their name of office shall be a town charge was not intended to authorize town auditors to levy a town tax to pay a judgment against the highway commissioners.
    Mandamus. Appeal from the Circuit Court of Fayette county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    Lane & Cooper and G. T. Turner, for appellant.
    Brown & Burnside, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On April 28, 1911, appellant filed a petition for a writ of mandamus in the Circuit Court of Fayette county against William E. Anderson, supervisor, Emery Hopper, town clerk, and James Carter and B. M. Backenstow, justices of the peace, being the board of town auditors of the town of Loudon in said county.

The petition alleged that in 1906 the commissioners of highways of said town of Loudon became indebted to him in the sum of $1,047.00 for work done and material furnished by him and that though he repeatedly demanded payment of said amount, he was never able to collect the same; that he brought suit against said commissioners of highways for said indebtedness in the Circuit Court of said county, and on September 30, 1908, obtained judgment for $1,046.65 and costs of suit; that said town has no bonded indebtedness and no other indebtedness than the judgment therein mentioned in favor of appellant and is not indebted beyond the constitutional limit; that he has repeatedly made demand on the highway commissioners of said town, on the treasurer of said highway commissioners and on the town itself, for payment of said judgment and costs, but that no part of the same has been paid; that on March 23, 1911, he made demand on the town clerk of said town for payment of said money or that said judgment be audited and allowed by the town board of auditors thereof; that on March 28 following, he presented a certified copy of said judgment to the town board of auditors at their regular semiannual meeting, with a written demand that said claim be audited and allowed and a certificate made for the levying of a tax to pay the same and that said certificate be delivered to the county clerk of said county as provided by law; that said board refused to allow said claim or any part thereof and refused to audit the same a,nd to make and sign a certificate as demanded.

The prayer of the petition was that a writ of mandamus be directed to appellees commanding them as the board of town auditors to examine and audit said judgment, interest and costs of suit and allow the same as a proper claim against said town; that the same be certified to the town clerk and to the county clerk in the manner provided by law.

Appellees filed a general demurrer to the petition, which was sustained by the court. Appellant abided by his petition and the court thereupon entered an order dismissing the petition with judgment against appellant for costs and the latter has brought the case here for review by appeal.

The question presented for our consideration is, can the board of auditors of a town be compelled by mandamus to cause a general town tax to be levied to pay a judgment previously obtained against the commissioners of highways of said town for labor and material furnished said commissioners some years prior thereto.

It is claimed by counsel for appellant that highway commissioners are town officers and that when a judgment is obtained against them it is the duty of the board of town auditors to allow the same as a town charge by virtue of section 6, art. 5 chap. 139 Rev. Stat., which provides “Judgments recovered against a town or against town officers in actions prosecuted by or against them in their name of office, shall be a town charge and when collected shall be paid to the person or persons to whom the same shall have been adjudged; ’ ’ that being a town charge the same should be audited by the town board, filed with the town clerk together with a certificate of the board specifying the nature and claim of the demand, and certified to the county clerk, at the same time and in the same manner as other amounts required to be raised for town purposes, to be levied and collected as other town taxes, as provided for by sec. 7, art. 13 of said chapter.

It is true that the commissioners of highways of a town are, in a certain sense, town officers as they are elected by the qualified electors of the town, and the territory and the highways of which they have charge are confined to the limits of the town, hut their duties are totally distinct from those of the other town officers and their only way of obtaining funds is by-levying a tax as provided by statute for road and bridge purposes. The tax so levied by them has no connection with the general town fund and they have a treasurer of their own who receives the same and can only pay it out upon their order.

It is well settled in this state that the commissioners of highways of a town are a quasi corporation, as distinguished from the corporation of the town itself and as such quasi corporation can sue and be sued. Town of Rutland v. Town of Dayton, 60 Ill. 58; Sheaff v. People, 87 Ill. 189.

There is nothing in the statute which gives the commissioners of highways power to bind the town or to contract indebtedness, except as the same may relate to their own special fund. In O. & M. Ry. Co. v. People, 123 Ill. 648, the court states, “It is a plain proposition that the highway commissioners have no powers except those conferred by the statute, and that they can perform no acts or impose no burdens, except those plainly authorized by the statute, and when they undertake to perform any act which the statute does not say they may do, that act will be void.”

It appears to be equally clear that commissioners of highways are powerless to contract indebtedness in excess of money they may have on hand and the amount of taxes already levied by them, although after the taxes are levied they may incur indebtedness in discharge of their duties to the amount of the same before they are collected. Upon this subject it is said in Commissioners v. Newell, 80 Ill. 587, after reviewing certain sections of the statute, “It is manifest that the commissioners may after they have levied the road and bridge tax, proceed to its expenditure for the purposes for which it was levied in anticipation of its collection. But we fail to find any provision of the statute from which it may be inferred that it was designed to impower them to incur any indebtedness beyond the amount already levied. With quasi corporations of this character the rule obtains that their power to impose taxes or incur indebtedness, will be strictly construed. ’ ’

In Adams v. Commissioners, 151 Ill. App. 68, the court states the rule to be as follows: “Commissioners of highways have no power to draw any orders for the payment of indebtedness unless there is a fund for such payment or a tax levy has been made for that purpose. * * * Commissioners of highways are powerless to pledge the credit of a township for work and labor upon roads and bridges to be paid for in the future, out of revenues to be derived from taxes subsequently levied and an order given in such case is void.” If appellant furnished the commissioners of highways of the town, of Loudon labor and material for roads and bridges he had no right to éxpect to receive any pay therefor, except out of funds they might have had or a tax levy already made, and before permitting them to incur the indebtedness it was his duty to have ascertained that the amount of money in their treasury or the taxes levied would be sufficient to meet the indebtedness. If the debt due appellant was contracted at a time when the commissioners did not have sufficient funds on hand or taxes levied to meet the same, and he could by mandamus compel appellees to levy a tax and pay the debt out of the town' funds, he and the commissioners themselves would be permitted to do indirectly what they could not do directly, and the safeguards which the statute has provided, for the protection of the taxpayers, would be effectually destroyed. Nor can the fact that appellant has obtained a judgment against the commissioners for the amount of his indebtedness avail him in this proceeding. His judgment was against the highway commissioners as a quasi corporation and in any event could only apply to their funds. The town fund is entirely distinct and levied for purposes wholly different from those to which the funds of the highway commissioners can be devoted. The law will not permit a town tax to be levied and a town fund raised for the purpose of discharging a debt, which the town as a corporation has not incurred.

We are of the opinion that the statute relied upon by appellant, and providing that a judgment recovered against a town or against town officers in actions prosecuted by or against them in their name of office, shall be a town charge, was not intended to authorize the town auditors to levy a town tax to pay a judgment against the commissioners of highways of the town and that the court below properly sustained the demurrer to appellant’s petition.

Judgment order affirmed.


text:
    Jerome Sertiff, Appellee, v. Armour & Company, Appellant.
    1. Master and servant—falling tank. In an action by an employe in a packing house to recover damages caused by the falling of a water tank/ a recovery is justified where it appears that the servant was not guilty of contributory negligence and the evidence although conflicting further tends to show that a defect in the timbers supporting the tank must have been known to the defendant or could have been ascertained by the exercise of ordinary care in an examination of the same.
    2. Instructions—repetition. It is no error to refuse an instruction which is substantially embodied in others given.
    3. Damages—when not excessive. A verdict for $3,000 for personal injuries is not so excessive as to warrant a reversal where the proof shows that the injured person received forty bruises, that he would never have perfect use of his left foot which .would always pain him, that his right knee would always remain stiff, and that a depression of the skull had produced general ill health and nervousness.

      Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    Messick & Messick and Kramer, Kramer & Campbell, for appellant.
    Webb & Webb, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, Jeróme Sertiff, while in the employ of appellant, was injured by the falling of a water tank in the latter’s packing house and brought this suit to recover damages.

The declaration contained but one count, which in general terms charged that appellant, so negligently and carelessly maintained and kept a certain floor and tank in its buildings, that in consequence thereof, said floor gave way under the weight of said tank and said floor and said tank and the contents thereof fell and injured appellee, who was employed on the floor on which said tank was located.

The trial resulted in a verdict and judgment in favor of appellee for $3,000.

In answer to special interrogatories given at the request of appellant, the jury found that the building in question was properly constructed for the purposes for.which it was used; that appellant had not used reasonable care and diligence to have the timbers and material in the building inspected to ascertain whether they were in a reasonably safe and sound condition for the purposes for which they were being used; and that the evidence showed the accident in question was caused by decayed and defective timber.

Appellant states as reasons why the judgment in this case should be reversed, (1) that the facts did not sustain the verdict, (2) the court erred in refusing its fourth and fifth instructions and (3) the verdict was excessive.

Appellee contends that there was enough evidence that the timbers supporting the tank were decayed and insufficient to accomplish the purpose for which they were intended to warrant the jury in finding that the tank fell on account of their decayed and imperfect condition; that such condition was known or by reasonable care and diligence could have been ascertained by appellant; also that the falling’ of the tank was itself proof of negligence on the part of appellant and therefore the doctrine of res ipsa loquitur, is applicable.

Appellant on the other hand contends that the evidence showed the injury was caused by the breaking of one of the posts supporting the fourth floor where appellee was working; that such post had been tested a short time before and no defect in it had been discovered; that such post had an imperfect growth or latent defect in the interior, not discoverable by examination or inspection, by ordinary tests and reasonable diligence, which caused it to give way and let the tank fall; that it was not shown that the falling of the tank was occasioned by defective or decayed timbers, in or about the same; also that the doctrine of res ipsa loquitur is not applicable to the case or if it is, the proofs on the part of appellant are sufficient to overcome any inference of negligence arising therefrom.

The building in which appellee was employed consisted of four floors, and the tank, which fell and caused appellee’s injury, was supported by timbers, extending about ten feet above the fourth floor, on which appellee was at work. In the construction of the building, beginning with the basement floor, iron posts were erected sixteen feet apart throughout the entire floor, four posts constituting what was known as a section. At the top of the posts were placed iron pieces called T’s which projected some twelve inches out from the sides of the posts. Timbers 12x12 inches square extended from post to post, resting on the T’s. On the top of the T’s and immediately above the upright iron posts, wooden posts 12x12 inches square were placed to constitute the first floor and at the top of these posts were wooden T’s similar to the iron ones used in the basement. The same manner of construction was used throughout the different floors. After the fourth floor had been constructed, upright wooden posts were placed resting on the top of the posts on the third floor, but the size of the same was reduced to ten inches square. At the top of these posts, which were some ten feet high, were placed T’s or brackets and also beams or timbers the same as on the tops of the posts on the other floors. This construction formed a skeleton for another floor which was not covered over but was used to support a water tank and certain machinery. The tank in question was about sixteen feet long, four feet wide and three feet high and when filled with water, weighed about 10,000 pounds. It rested on two pieces of timber 6x10 inches in size and some sixteen feet long, extending lengthwise under the tank. The ends of these timbers rested on two of the 12x12 inch pieces, which extended from post to post as above stated and formed two sides of that particular section where the tank was located. The crosspieces upon which the tank rested had no support between the timbers on which their ends rested. From this tank, which was usually kept full of water, extended iron pipes attached to which were pieces of hose at the lower ends of which were brushes, used in connection with the water passing through the hose by men standing under the tank to wash beef carcasses, as they were conveyed along in front of them. When the carcasses were washed they were conveyed on a little further where the water was scraped off with knives by other men, among them being appellee.

On February 14, 1911, appellee was at work hear the tank scraping water from a beef carcass with a knife, when without any warning the tank fell. The end coming down first crushed through and carried with it a section of the floor and the tank finally rested on end on the third floor. Several workmen were carried down with the tank, one being killed and the others, among them was appellee, injured. He was found pinned down under the broken timbers about the tank, covered with bruises, his knee cap broken and his left foot severely injured. He was taken to a hospital where he remained two weeks and up to the time of the trial was still receiving medical attention. A considerable amount of rotten and decayed timber was found about the tank and certain of the timbers, which formed the foundation for the tank, were shown to have been in some degree decayed and defective at the ends. It also appeared that an upright post at the southwest end of the section in which the tank was placed, that extended from the third to the fourth floor, was broken about four feet above its base. On the inside of this post was a defect referred to as a curl or knot at the place where it broke, but the evidence tends to show that upon the outside the post seemed to be sound. It also appeared from the evidence of appellant, that it had in its employ a competent man who examined this post as well as the other posts on the third floor about ten days or two weeks before the occasion in question and that they all, at that time, appeared to be sound. It further appeared that the timbers upon which the tank rested had been replaced about four years prior to this time, but it was also shown that the steam and water on that floor had a tendency to rot timbers rapidly and that these timbers had never been examined during the four years.

There was further evidence to the effect that certain of the timbers were sappy or rotten at the ends and that if a timber used as these were is in such a condition, pressure on it would cause it to crawl to one side and misplace anything that might be above it.

The evidence upon the questions of fact presented was at many points conflicting*, but we have considered the record carefully and upon the whole the facts appear to us to sustain the special findings of the jury and the general verdict in favor of appellee.

Appellee was engaged in his usual work and was entirely guiltless of any negligence contributing to his injury. That some defect in the timbers, either inherent or caused by long usage, caused the tank to fall cannot be questioned. If the testimony of witnesses introduced by appellee, a portion of which is to some extent corroborated by the testimony of appellant’s witnesses, is to be believed, and we may judge from the exhibit of the timber in evidence, a condition existed in the timbers directly and indirectly supporting the tank which the jury were justified in finding must have been known to the appellant or could readily have been ascertained by it by the exercise of ordinary care in an examination of the same.

The question of res ipsa loquitur is ably discussed in the briefs and appellant ..especially cites and comments upon many cases bearing upon that subject. But we deem it unnecessary to discuss that question, as in our opinion the facts outside of any inference which might be drawn from the application of that doctrine to this case were sufficient to support the verdict in favor of appellee.

Appellant complains of the refusal of the trial court to give its fourth instruction, which told the jury that the mere fact the accident happened and plaintiff was injured did not in and of itself alone entitle plaintiff to recover in this case, nor did it prove or justify the inference that defendant was guilty of negligence as charged in the declaration. Instruction 17 given for appellant directly told the jury that if they believed from the evidence the injuries to appellee happened to him by mere accident, without fault on the part of the appellant, or its servants, appellee could not recover and the same statement of the law is in effect contained in instruction 11 given for it. The other instructions given on both sides fully and clearly informed the jury that appellee could not recover unless he proved by a preponderance of the evidence that appellant was guilty of the negligence charged in the declaration and that such negligence was the proximate cause of the injury complained of. There was therefore no error in refusing said instruction. Appellant’s fifth refused instruction was substantially the same as the fourth refused above referred to, but stated the theory of law involved with more elaboration and for the reasons above given was also properly refused.

In regard to the extent of appellee’s injuries, the proof showed that there were some forty bruises on his body; that he would never have perfect use of his left foot and it would pain him as long as he lived; that by reason of the injury to the knee cap, his right knee would be stiff; that there was a depression of the skull on the right side of the head, causing a pressure on the brain which produced nervousness and insomnia and that his general health was not good. While the proof does not show that he had a large earning capacity, prior to the time he was hurt, yet his injuries were so numerous and a few of them so severe, that we do not consider the amount of the judgment excessive to such an extent as to warrant a reversal of the same on that account, and the judgment of the court below will be affirmed.

Affirmed.