text:
    Carrie Pate, Appellee, v. Gus Blair Big Muddy Coal Company, Appellant.
    1. Mines and miners—what are dangerous places within meaning of statute. Held, that a pit car, clevis and pin, cable, and the various parts of a rope haulage system, were not mere tools or appliances with which the employes worked as distinguished from working places and that the statute requiring the mine examiner and the mine manager to examine and mark all dangerous places with danger signals, etc., before the employes are permitted to enter the mine, was applicable.
    2. Mines and miners—what object of statute, requiring marking dangerous places. The principal object of the statute in having the mine examiner to mark and report dangers to the mine manager, is that the mine manager may find them and make them safe. The danger signals also are to prevent other employes from casually going to said danger while in the mine; but as to all employes who will be exposed to the danger while at work or going to or from work, the statute is mandatory that they must not be allowed to enter the mine for work unless under the direction of the mine manager. The object of the statute is safety to the employes, and the question of whether or- not it will make a job for an employe or cost the mine owner the price of a job, is not to be figured in the interpretation of the statute.
    3. Mines and miners—what not defense to action charging wilful violation. In an action charging willful violation of the Mines and Miners Act, neither the defense of assumed risk nor that of contributory negligence is applicable.
    4. Mines and miners—what competent upon question of knowledge and willfulness. Where an injury resulted by reason of a pin in the clevis working out and causing a car to be detached from a cable, the evidence not being clear as to just what caused such pin so to work out, it is competent in order to show knowledge or willfulness on the part of the mine owner to introduce evidence with respect to the condition of the machinery 'with reference to the defects alleged in the declaration, the number of times the friction blocks failed to work and the effect thereof, the number of times the clevis and pin became detached from the cars, etc., and the vibrations of the rope and the effect thereof, if known prior to the date of the injury.
    5. Instructions—when upon question of damages erroneous. An instruction upon this subject, as follows:
    “If you find the defendant guilty -and that the plaintiff has sustained damages as laid in the declaration, then, in assessing the plaintiff’s damages, you may take into consideration the age of the deceased and his ability to earn or acquire money before and at the time of his death, if shown by the evidence; his relationship to the plaintiff and the duty thereby devolving upon him to support her, if shown by the evidence; the wages, if any, derived from his ordinary occupation or business before his death, if shown by the evidence; and all other matters whereby said widow might reasonably expect to derive pecuniary benefit from the continued life of the deceased (in so far as the same are shown by the evidence), and from all the facts and circumstances in evidence, taken in connection with your own knowledge and experience in the ordinary affairs of life, you should award the plaintiff such pecuniary damages, as, in your sound discretion, you may believe from all the evidence said widow has by his death, Sustained in her means of support not exceeding $10,000,—”
    is erroneous in that (!)• it does not limit the jury in determining the amount of damages to the evidence bearing upon that question, (2) it permits the exercise of too broad a discretion and (3) it does not explain the reason for the limit placed upon the amount of recovery.
    6. Instructions—when upon question of damages closely scrutinized. Instructions upon the question of damages will be closely scrutinized where the damages awarded are large.
    7. Trial—when remarks of counsel ground for reversal. Remarks of counsel outside of the evidence in referring to what the Supreme Court has said, even though objections thereto may have been sustained, will constitute ground for reversal.
    8. Evidence—what proper upon cross-examination. Evidence as to whether or not a mine manager is licensed is proper on cross-examination where he has testified as an expert engineer.
    ‘ Action in case. Appeal from the Circuit Court of Jackson county; the Hon. W. N. Butler, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Statement by the Court. This was an action in ease by appellee against appellant for the death of her husband, a trip rider in appellant’s coal mine, by reason of the alleged willful violation of the Mines and Miners Act. On a trial by jury a verdict and judgment were rendered in favor of appellee for $8,000. It is charged in a three count declaration that the defendant had and maintained a rope haulage system on a railroad track located on a steep incline in the main east entry of appellant’s mine; that said system consisted of an iron cable attached to certain drums and "extending along said track over certain rollers and through certain sheave wheels for a distance of 1,500 feet, the same being operated by a stationary steam engine; that in hauling with said system the cable was attached to the front end of a loaded trip of about twelve ears, by means of an iron clevis and pin attached to an iron link or hook, the other end of said cable being similarly attached to the rear end of the trip; that, when the trip of cars was pulled up the incline to the bottom of the mine, the cable was released therefrom, and in like manner attached to a trip of empties for the return trip into the mine; that there were four defective parts and dangerous places in this system, (1) on the engine by reason of the disc wheels or balance wheels being broken off; (2) at the friction blocks used to apply to said drums, by reason of their being worn and failing to work, thereby eausing the drum to slip in the cable; (3) at the drum where the wire rope would not wind properly, thereby causing the rope to unduly vibrate; (4) at the attachment of the clevis and pin which was so worn that it would readily become detached from the loaded cars running up the incline, whereby said haulage system was dangerous to operate. Alleges that the defendant willfully failed to have this rope haulage system examined by a duly licensed mine manager and a conspicuous mark placed at all of said dangerous places, etc.; that the mine manager willfully failed to see that said dangerous places were properly marked and danger signals there displayed as required by statute; and willfully permitted the said deceased to enter said mine for work and not under his direction before said dangerous places were made safe; that in consequence thereof the pin and clevis connecting the cable with the trip became detached from the loaded trip the deceased was riding up the incline and the cars ran back on, and killed him, etc.
    The evidence tends to show that the clutch blocks would not hold the rope, but would slip and cause the trip to stop on the incline; that the rope would vibrate and that this vibration would cause the clevis pin to work up and out of the bottom hole of the clevis and allow the loaded trip to run down the incline; that the disc or balance wheel on the engine was broken off, but that this was not the cause of the injury. The deceased was killed by reason of the clevis and pin becoming detached from the car and rope and letting the loaded trip run down over him while he was trying to block them with the dog for that purpose on the rear car.
    Denison & Spillee, for appellant; George C. Mastin, of counsel.
    John M. Herbert and W. A. Schwartz, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

It is insisted by appellant that the court erred in refusing to direct a verdict of not guilty, because the evidence does not tend to prove the declaration or any count thereof. As the judgment will have to be reversed and the cause remanded for further proceedings, we do not deem it proper to discuss the evidence on its merits. We think however that the cause was properly submitted to the jury. We have examined the argument of appellant’s counsel to the effect that the pit car, clevis and pin, cable, and in fact all the parts of the rope haulage system are mere tools or. appliances with which the employes work, as distinguished from working places, and that the statute requiring the mine examiner and the mine manager to examine them before the men are permitted to enter the mine for work and properly mark all dangerous places with danger signals, etc., does not apply to this haulage system. We do not regard this haulage system or any of its parts as coming within the class of instrumentalities denominated as “tools”, such as a hammer, ax, saw, etc., any-more than would the elevators in a grist mill or a coal washer that are constructed to elevate or carry the wheat, flour or coal from one part of the mill or washer to another. The haulage system in question is a permanent fixture in the mine, just as much so as is the mill machinery or the machinery of a coal washer above mentioned. The fact that the rope moves a distance of 1,500 feet winding backwards and forwards on drums or rollers to do the hauling does not make it any less a fixture, or cause it to be regarded as a mere tool, as a shovel or pick, or even like a work mule, so far as the provisions of this statute are .concerned. The elevators in the mill or coal washer travel in some cases long distances, carrying their loads of wheat or flour or coal or refuse, and every bolt or screw or pin or hook holding the machinery in place or repair is a part and parcel of the fixture, just as certainly as is the stationary engine that furnishes the power. This haulage system was used for forwarding the coal to the bottom of the mine for the purposes of hoisting and passing it into the channels of trade, and its entire operation was a part of the operation of the mine and within the protection of the statute, when pulling a trip of cars up this incline. We can see no practical difference in this machinery and that described in case of Spring Valley Coal Co. v. Greig, 226 Ill. 511, as to operation or as to character of the machinery; and we are unable to discover any reason why the statute is not just as applicable to the machinery in question here as to that described in the case before the Supreme Court, wherein it is positively announced that that machinery came within the requirements of the statute. “Who, then, should be kept out of a mine until such conditions have been made safe?” and “How could this provision (marking dangers) apply to a rope, a pit car, a coupling pin, a lever upon an engine, or to any other tool?” —we are asked by appellant’s counsel. To the first question we answer, only those employes should be kept out of the mine who will be exposed to the danger while at their work or in going to and from their work. We see.no difficulty in marking any part of this system by a danger signal. Counsel do not seem to understand or appreciate the fact that the danger signal is not intended as the only means of protection to the mine employe. The statute absolutely forbids the mine manager to permit any mine employe while at work to be exposed to a danger found by the examiner, unless under his directions as mine manager, until the dangers are made safe. The principal object of the statute in having the mine examiner to mark and report the dangers to the mine manager, is that the mine manager may find them and make them safe. The danger signals also are to prevent other employes from casually going to said danger while in the mine; but as to all employes who will be exposed to the danger while at work or going to or from work, the statute is mandatory that they must not be allowed to enter the mine for work unless under the direction of the mine manager. How can safety be secured for an employe if he is to be exposed to a known danger every minute of the time he is at work? The object of the statute is safety to the employes, and the question of whether or not it will make a job for an employe, or cost the mine owner the price of a job, is not to be figured in the interpretation of the statute. That the old common law doctrine, that when the employe is warned or knows of the danger he assumes the risk, or that if he is guilty of contributory negligence he cannot recover, cannot be invoked as a defense under this statute, is so well established in this state now, in the application of this statute, as to make further discussion thereof unnecessary. So the fact that the deceased undertook to stop the cars by putting the dog into action, after 'he had already gained a place of safety, is no defense in this case, if a case be made for the plaintiff under the statute.

The lower court erred in giving appellee’s instruction No. 4. which is as follows:

“4. If you find the defendant guilty and that the plaintiff has sustained damages as laid in the declaration, then, in assessing the plaintiff’s damages, you may take into consideration the age of the deceased and his ability to earn or acquire money before and at the time of his death, if shown by the evidence; his relationship to the plaintiff and the duty thereby devolving upon him to support her, if shown by the evidence ; the wages, if any, derived from his ordinary occupation or business before his death, if shown by the evidence; and all other matters whereby said widow might reasonably expect to derive pecuniary benefit from the continued life of the deceased (in so far as the same are shown by the evidence), and from all the facts and circumstances in evidence, taken in connection with your own knowledge and experience in the ordinary affairs of life, you should award the plaintiff such pecuniary damages as, in your sound discretion, you may believe from all the evidence said widow has, by his death, sustained in her means of support, not exceeding ten thousand dollars.”

This character of instruction has been repeatedly condemned by our Supreme Court. In determining the amount of damages to be recovered in this case the jury should only consider the evidence bearing upon the question of the amount of damages the plaintiff had sustained and that are recoverable, if any. They should not consider “all the facts and circumstances in evidence, ’ ’ as they were instructed to do in this instruction, in determining the amount of damages to be awarded. The death may have been a very sad or shocking one that would elicit a great deal of sympathy and feeling. These facts as well as many others that might come into a case ought not he considered in determining the amount of damages to be awarded. The expression, “you should award the plaintiff such pecuniary damages as, in your sound discretion, you may believe from all the evidence said widow has, by his death, sustained in her means of support, not exceeding ten thousand dollars,” makes this instruction still more objectionable. The two phrases, “in your sound discretion,” and, “not exceeding ten thousand dollars,” are calculated to mislead a jury. By the word discretion, as ordinarily used, is meant unrestrained choice or will. In the use of the latter expression, “not exceeding ten thousand dollars,” no reason or explanation is given to the jury for being so informed. If the jury had been informed that that was the amount sued for, and that the rule of law is that a plaintiff .cannot recover more than the amount sued.for, it would not have been so objectionable. As the instruction reads it seems to simply convey to the minds of the jury the idea that $10,000 is the maximum sum the court considered should be awarded, in case damages were awarded. Such expressions as to damages have been allowed to pass without causing a reversal; but when the damages are very high and apparently excessive, as in this case, they have usually been considered as reversible error. City of Chicago v. Gilfoil, 99 Ill. App. 88; I. C. R. R. Co. v. Johnson, 221 Ill. 42; Muren Coal and Ice Co. v. Howell, 204 Ill. 515.

Another very strong reason why this verdict should not he permitted to stand is that counsel for appellee used prejudicial and unfair remarks to the jury in their arguments, not based on the evidence in the case. The following are the most objectionable ones: “This boss denied he made a statement to the deceased, Pate, as to throwing the dog on the car when an accident happened, and that is one of the things of these bosses, that in order to be a good boss you must be a good witness ;” “The court says we have enough in our declaration to go to the jury on;” “The Supreme Court says this, is a good case.” Comment is unnecessary as to the effect of such unfair methods. True, it is, the court sustained an objection to them, but that does not remove the effect on the jury. Counsel must understand that when there is any indication in the record at all that they may have profited by such unfair means, this court will not sustain the verdict.

We think the evidence as to whether or not the mine manager was licensed was proper on cross examination in view of the fact that he was testifying as an expert engineer. Of course no fault could be attributed to the company because he was not licensed.

In conclusion we will say that it is not made very clear by the evidence just what caused the pin in the clevis to work out and cause the car to be detached from the cable. The condition of the machinery with reference to the defects alleged in the declaration, the number of times the friction blocks failed to work and the effect thereof, the number of times the clevis and pin became detached from the cars, etc., and the vibrations of the rope and the effect thereof, if known, prior to the date of the injury, are competent evidence as tending to show knowledge or willfulness on the part of the mine owner, and are not objectionable because remote.

For the errors above indicated the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    B. Joseph Heitkamp et al., Appellants, v. American Pigment & Chemical Company et al., Appellees.
    1. Corporations—.,jurisdiction of chancery to dissolve. A court of chancery has no jurisdiction to declare a forfeiture and to decree the dissolution of a corporation and the sale and distribution of its property and to appoint a receiver pending such proceedings except that given by section 25 of the Corporation Act.
    2. Corporations—section 25 of act construed. Section 25 of the Corporation Act conferring power upon courts of chancery to dissolve a corporation for “good cause shown” signifies a legal cause, such a one as the sovereign authority might by law resume the franchise granted.
    3. Corporations—jurisdiction of chancery to grant relief to minority stockholders. A court of chancery upon a proper showing has jurisdiction to grant relief to minority stockholders in case of fraudulent conduct by officers, directors or stockholders. .
    4. Corporations—what hill hy minority stockholder for appointment of receiver must allege. Where a bill by a minority stockholder for the appointment of a receiver is based on any particular ground the facts should be specifically set forth; the allegations should also be positive and definite in charging fraud or fraudulent mismanagement so that the court can say that the charges are not the mere conclusions of the pleader.
    5. Corporations—when appointment of receiver improper. The appointment of a receiver to take possession and control of corporate property is improper where the bill fails to show any equitable jurisdiction to granting the primary relief sought.
    6. Corporations—how power to appoint receivers exercised. Courts hesitate to throw corporations into the hands of receivers and proceed with extreme caution in the appointment of receivers and will refuse the appointment in cases where it is not clearly shown that the appointment will be beneficial to the parties in interest.
    7. Corporations—how right to examine records, etc., enforced. A stockholder has a right under the law to examine the records and books of account of a corporation, but such right is enforceable by mandamus rather than by injunction.
    8. Corporations—rule as to interference by courts with foreign. The general rule is that courts of’ one state will not interfere in controversies relating merely to the internal management of the affairs of a foreign corporation at the suit of a stockholder, and will refuse to appoint a receiver or dissolve the corporation or divide its assets among its shareholders.
    9. Chancery—how question of jurisdiction raised. All matters which go to the jurisdiction of a court of chancery may be taken advantage of by demurrer whether specially pointed out in the demurrer or not.
    Bill in chancery. Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Statement by the Court. B. Heitkamp- and forty-three others as stockholders in the American Pigment and Chemical Company, a corporation organized and chartered in the Territory of Arizona for the purpose of manufacturing pigment and chemical products from barium, zinc, lead and other metals, filed a bill in chancery in the Circuit Court against said corporation and William J. Armbruster, promoter and stockholder in said corporation, for the purpose of “winding up” and determining the business of said corporation in Illinois, and for appointing a receiver and selling its property and distributing the proceeds thereof to the stockholders according to the provisions of its charter. The bill also prays for an accounting and for an injunction against Armbruster. A demurrer was sustained to the bill by the lower court and the same was dismissed. Complainants appealed.
    It is averred in the bill that the authorized capital stock of said company is $600,000, divided into 6,000 shares of the par value of $1.00 each; that 600 of said shares are known as Class “A” preferred 8%; 600, as Class “B” preferred 8%; and 4800, as Common; that the combined stock of complainants in said corporation is 401 shares of Class “A” preferred, 401 shares of Class “B” preferred, and 363 shares of Common stock, for which they paid over $40,000; that in consideration for certain patents held by said Armbruster for the combining and manufacturing said chemical products and his knowledge and experience as a chemist, etc., said Armbruster was given 4,300 shares of Common stock and the 600 shares of Class “B” preferred; that as an inducement to complainants and others to purchase stock, for each share of Class “A” preferred stock purchased at $100, Armbruster gave one share of Class “B” preferred to the purchasers; that by such sales of stock $60,000 in cash was paid into the treasury of the corporation, and eleven acres of land near East Alton, Illinois, was purchased by the corporation on which was erected a plant consisting of a two story building equipped with machinery supposed to be of the proper kind necessary for the manufacture and sale of the pigment and products aforesaid. It is further averred that by reason of certain false representations made by Armbruster in a certain prospectus, complainants became stockholders as aforesaid; that Armbruster obtained the charter of the defendant corporation, January 16, 1906, in the Territory of Arizona for the manufacture of said products ; that said plant is all the property now owned by the corporation; and that it could not be sold for more than $25,000, and that it has no property in the Territory of Arizona.
    E. M. Grossman and Wise, Keefe & Wheeler, for appellants.
    Webb & Webb, for appellees; James T. Roberts, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

After reading the bill carefully we find nowhere in it the necessary averments to give a court of chancery in this state jurisdiction to declare a forfeiture and to decree the dissolution of the corporation and the sale and distribution of its property and to appoint a receiver pending such proceedings. A court of chancery has no such jurisdiction in this state, except that given by section 25 of our Act relating to corporations, and this bill does not allege or set out any facts showing the existence of any of the causes named in the statute. It is not claimed that the corporation has done anything to subject it to a forfeiture of its charter or corporate powers; and the “good cause shown to dissolve or close up the business of a corporation and to appoint a receiver therefor, ’ as mentioned in the statute, signifies a legal cause, such a one as the sovereign authority might by law resume the franchise granted. Wheeler v. Pullman I. and S. Co., 143 Ill. 197; Hunt v. The LeGrand R. S. R. Co., 143 Ill. 118.

It is not claimed, however, by the complainants that they are entitled to any relief under the statute; but that their prayer for relief can be granted, and must be granted, by reason of the general powers of a court of equity to grant relief to minority stockholders in certain cases for the fraudulent conduct of its officers, or its other stockholders and officers. We concede that in a proper case a minority stockholder may have a remedy in a court of equity, and that independent of our statute there are instances in which, equity jurisdiction is clearly recognized by the courts of this country and in England. In the case of Wheeler v. Pullman I. and S. Co., 143 Ill. at page 207, our Supreme Court says: “It seems to be well settled that if the agents of the corporation, in whom the authority to control its affairs is vested, are themselves guilty of wrong against the corporation, either by personal conversion of its funds, or being interested in another corporation or business, fraudulently manage the affairs of the corporation to its detriment and for the benefit of such other corporation or concern, a court of equity will, upon a proper bill filed, interfere, at the suit of a stockholder, to protect his interest in the corporation, without requiring him to first request or demand that the guilty agents proceed, virtually, against themselves,” citing authorities. “It is, however, fundamental .in the law of corporations, that the majority of its stockholders shall control the policy of the corporation, and regulate and govern the lawful exercise of its franchise and business.”

To the same effect are many other authorities, notably Hawes v. Oakland, 104 U. S. 450, where it is said: “We understand that doctrine to be that to enable a stockholder in a corporation to sustain in a court of equity in his own name, a suit founded on a right of action existing in the corporation itself, and in which the corporation is the appropriate plaintiff, there must exist as the foundation of the suit—some action, or threatened action of the managing board of directors or trustees of the corporation which is beyond the authority conferred on them by their charter or other source of organization; or such fraudulent transaction completed or contemplated by the acting managers, in connection with some other party or among themselves, or with other share holders as will result in serious injury to the corporation, or to the interests of other share holders; or where the board of directors, or a majority of them, are acting for their own interests, in a manner destructive of the corporation itself, or of the rights of the other share holders; or where the majority of share holders themselves are oppressively and illegally pursuing a course in the name of the corporation, which is in violation of the rights of the other share-holders, and which can only be restrained by the aid of a court of equity. Possibly other cases may arise in which, to prevent irremediable injury, or a total failure of justice, the court would be justified in exercising its powers, but the foregoing may be regarded as an outline of the principles which govern this class of cases. * * * He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court.”

Where the bill for the appointment of a receiver is based upon any particular ground the facts should be specifically set forth. The allegations should also be positive and definite in charging fraud or fraudulent mismanagement, so that the court can see that the charges are not the mere conclusions of the pleader. Wheeler v. Pullman I. and S. Co., 43 Ill. App. 626; The Smith-Dimmick L. Co. v. Teague, Barnett & Co., 119 Ala. 385; Bradbury v. Waukegan and W. M. and S. Co., 113 Ill. App. 600.

Turning again to this bill we find that the elementary rules of pleading as set forth in the foregoing authorities are so essentially and persistently violated all through this bill as to make it necessarily demurrable, even if we treat the corporation as an Illinois corporation, or concede that the same rules apply to it as if it was such. Nearly the whole of complainants’ argument is taken up in showing that there are some foreign corporations doing business in this state with property here, that our courts may under certain circumstances deal with at the suit of a stockholder; but little, if any, of the argument is devoted to showing why, or on what grounds this bill should be sustained. We gather from the bill and argument together that the whole complaint as to fraud in this bill 'is leveled at Armbruster. The prayer of the bill as against Armbruster is, “that the said Armbruster may be enjoined from drawing or paying to himself any salary until the further order of this court; that he be further enjoined from paying out or expending any money of said corporation, or in any way encumbering the property of the said corporation, or creating any obligations against the same,” and that “as against the value of any stock which the said Armbruster may hold, he be held to account for all moneys received by him and not expended in necessary and proper expenses of the management of such corporation.” It is nowhere averred in this bill that Armbruster ever appropriated a dollar of the corporation’s money to his individual use or misappropriated it to any one else. It is not averred that he is not entitled to, and does not earn, his salary as manager, in terms that the court can see that he is not entitled to it. There are charges in the bill to the effect that he squandered the money of the corporation, and that he so mismanaged it that it paid no dividends, that it borrowed money and should not have done so under good management, and that he violated the charter, but we are not advised in the bill in what particulars he did so. The allegations of such charges are couched in general statements of mere conclusions of the pleader without giving any facts whatever that the court may understand or know what acts are complained of as being fraudulent. The most formidable charges in the bill are to the effect that by fraudulent statements in his prospectus and by other false statements, Armbruster induced complainants to purchase their stock, and to allow him to have the stock that was given him; but the bill does not ask for the rescission or cancellation of any of the stock, but treats it all as valid and subsisting holdings. The substance of the real charges for which a dissolution and an accounting of and the appointment of a receiver are asked, is as follows: Tha't after payments were made and the* plant was completed, Armbruster continued and now is sole manager, and that the corporation has never paid any dividends; that as “your orators are informed and believe, it never performed the conditions and duties enjoined upon it by its charter and by-law;” that Armbruster has failed to execute a bond, although he handles the money, and by his shares of stock has controlled and manipulated the election of directors who would co-operate with him and permit him to control and do everything he desired to do, and refuses subscribers of the preferred stock to choose any officers, and refuses to let complainants have any knowledge of such management; that he and said corporation refused complainants the right to inspect the books, or to have statements, concerning the debts and moneys on hand, and that no directors were elected for the year 1909; that because complainants tried to gain some knowledge of its affairs and to be represented on its board of directors to protect their interests, Armbruster pretended to become offended, and “by his acts and conduct, as well as his declarations, indicated that he intended, so far as he could, to make the stock of your orators valueless;” that although he and the corporation have had $60,000 from sale of preferred stock and $25,000 from sale of common stock and $7,500 borrowed by pledging the property by passing “pretended resolutions,” no dividends have been paid and no profits have been made; that the property, “by fraud and mismanagement and connivance of Armbruster, as manager, has been so depleted and reduced in value that if it were cashed it would not pay 30% on the value of complainants’ stock;” that if he is allowed to further control it, it will be of no value whatever, that further indebtedness will be created by fraud and connivance of Armbruster and his board of directors, pretended claims against the corporation will be reduced to judgments and said property wholly absorbed; that “Armbruster has been receiving a salary of $125 per month, as manager, which he causes to be paid to himself from the funds of said company, which he unlawfully and fraudulently handles without any right or authority. ’ ’

The bill really discloses on its face that the complainants know little or nothing about the real financial condition of the corporation, and that the funds held by Armbruster are held as an officer of the corporation. It is not sufficient to say that he acts fraudulently or that he squanders the funds, or that he misappropriates them, or that he' will do so; but the real facts that he has done, if any, or that he is threatening to do, if any, should be averred so that the court may see if the conclusions of the pleader are warranted.

The bill shows no equitable grounds for an accounting against Armbruster for want of proper averments of ultimate facts showing some real fraud or wrong against the complainants by way of withholding or misappropriating funds. If he is acting without a bond contrary to the by-laws and complainants ’ rights and to their detriment, facts should be averred showing it, and that they are powerless to remedy it through the board of directors.

The bill failing to show any equitable jurisdiction in a court of chancery to grant any of the primary relief prayed in the bill, as the appointment of a receiver was to be a mere incident to that relief, the court had no power or authority under the bill to appoint a receiver and authorize him to take possession and control of the corporation property. The People v. Weigley, 155 Ill. 491.

All matters which go to the jurisdiction of the chancery court may be taken advantage of by demurrer, whether specially pointed out in the demurrer or not. Wetherell v. Eberle, 123 Ill. 666.

Courts hesitate to throw corporations into the hands of receivers, and proceed with extreme caution in the appointment of receivers, and will refuse the appointment in cases where it is not clearly shown that the appointment will be beneficial to the parties in interest. 5 Thompson on Corporations, 2nd Ed., Sec. 6334.

There was no valid right or reason shown why an injunction should issue in this case for the reasons above shown. The complainants had a right under the law to examine the records and books of account of the corporation as stockholders, and could enforce it by mandamus. Coquard v. Nat. L. O. Co., 171 Ill. 480.

The general rule is that the courts of one state will not interfere in controversies relating merely to the internal management of the affairs of a foreign corporation at the suit of a stockholder, and will refuse to appoint a receiver or dissolve the corporation or divide its assets among its shareholders. North State C. and G. M. Co. v. Field, 64 Md. 151; Sidway v. Mo. L. & L. Co., 101 Fed. R. 481; 6 Thompson on Corporations, 1st Ed., Sec. 7904; Tuttle v. Bank, 161 Ill. 497; Sprague v. Voting Machine Co., 134 Ill. App. 379.

The decree of the court sustaining the demurrer and dismissing complainants ’ bill is right and it is affirmed.

Affirmed.


text:
    The People, for use of Edward Gobin, Plaintiff in Error, v. Thomas May, Jr., et al., Defendants in Error.
    1. Bonds—when cleric approving, acts judicially. The clerk of the Circuit Court in approving sureties upon an appeal bond when directed to do so by the court, acts judicially or quasi judicially.
    2. Bonds—when cleric not liable for acceptance of insufficient sureties. The clerk of the Circuit Court in accepting sureties upon an appeal bond when directed by the court under the statute to pass upon the sureties that might be tendered, is not personally liable for accepting insufficient or insolvent sureties even though he may act negligently. In order to fasten personal liability upon him it must be established that his act was maliciously and wilfully wrong.
    Action of debt. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    C. H. Burton, for plaintiff in error.
    Wise, Keefe & Wheeler, for defendants in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This is the second judgment in this cause that the plaintiff in error has brought here for review from the lower court. The case as it appeared here before is well stated by Mr. Justice Higbee in 133 Ill. App. 139.

After this cause was reversed and remanded by this court the plaintiff filed an amended declaration of one count only, which is identical with the first count of the declaration described in Judge Higbee’s opinion above cited. To this amended declaration a general demurrer was filed by the defendants, and was sustained and judgment was rendered thereon by the court for costs and in bar of the action, the plaintiff electing to stand by his declaration.

The sole question for our determination is, as to whether or not a circuit clerk who negligently accepts insufficient sureties on an appeal bond when directed by the court under the statute to approve such sureties, is liable to the party injured by reason of such negligence.

“Official action is judicial when it is the result of judgment or discretion. * * * An officer will he regarded as being clothed with judicial or quasi-judicial functions, when the powers confided to him are so far discretionary that he can exercise or withhold them according to his own judgment as to what is necessary and proper, * * * Official duty is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task and when the law which imposes it, prescribes and defines the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion.” The People v. Bartels, 138 Ill. 322.

There is no claim that the clerk accepted bond in a less sum than that fixed by the court; hut the exact claim is that he negligently accepted an insolvent surety, and that therefore the appeal bond was worthless. When tested by the rules laid down by the Supreme Court above quoted, and by all the other authorities on this subject that we have been able to examine we are compelled to say that the duty of the clerk in the particular named was judicial or quasi-judicial, and we are unable to recede from our former holding-in this case. Moreover, our Supreme Court say in speaking of this very duty of the clerk, that is, the acts to be performed by Mm, that they require the exercise of judgment and discretion, and are in their nature judicial. It is true that the clerk in performing these duties is not a judge of a court within the meaning of our Constitution, but nevertheless such acts are quasi-judicial acts. Owners of Land v. The People, 113 Ill. 296; The People v. Leaton, 121 Ill. 666.

Such acts and similar acts have been repeatedly held as quasi-judicial acts, and that officers performing them are not responsible to any one receiving an injury thereby, unless they act maliciously and wilfully wrong. The People v. Percells, 3 Gilman 60; M’Allister’s Admrs. v. Scrice, 7 Yerger (Tenn.) 277; Amperse v. Winslow, 75 Mich. 234; Reed v. Conway, 20 Mo. 22; Schoettgen v. Wilson, 48 Mo. 253; Edwards v. Ferguson, 73 Mo. 686; Jenkins v. Waldron, 11 Johns. (N. Y.) 114; Rail v. Potts and Baker, 8 Hum. (Tenn.) 225; Walker v. Hallock, 32 Ind. 239; Porter v. Haight, 45 Cal. 631; City of Chicago v. Seben, 165 Ill. 371; Porter v. R. R. I. & St. L. R. R. Co., 76 Ill. 561; Kerr v. Russell, 69 Ill. 666.

To say that such acts when performed by the judge are judicial acts, but when performed by the clerk are ministerial acts, simply, and give a right of action to one injured thereby, would be imposing a very great hardship upon him without reason or apparent justice. If he' should refuse to approve the surety and the other party should be injured thereby, he would also have a right of action if he could establish negligence, if the plaintiff’s position is correct.

The judgment of the lower court is right and therefore it is affirmed.

Affirmed.


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    Michael O'Donnell, Jr., Appellee, v. M. H. Kavanagh et al., Appellants.
    1. Personal injuries—what essential to recover. In an action for personal injuries it is necessary to aver and prove three elements, to make out a cause of action: “(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure.”
    2. Pleading—how averments should he made. In an action on the case for personal injuries the averments of the elements essential to constitute a cause of action must be positive and consist in the setting forth of the facts from which the legal conclusions follow; a declaration which merely states legal conclusions is insufficient.
    3. Pleading—when declaration in case insufficient. A declaration in an action on the case for personal injuries alleging that the injury in question resulted from coming in contact with a telephone wire heavily charged with electricity is insufficient if it fails to allege facts which show (I) that the defendants possessed, owned, used, operated or maintained such wire, (2) that the wire contained any defects or that it was in any way negligently strung, badly insulated or improperly attached to the pole, and (3) that the defendant had actual or constructive notice of the defects or dangers.
    4. Appeals and errors—effect of judgment erroneous as to one defendant. A judgment in an action on the case for personal injuries is a unit and if reversed as to one defendant will be reversed as to all.
    Action in ease for personal injuries. Appeal from the Circuit Court Effingham county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this cotirt at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Statement by the Court. Appellee recovered a judgment against appellants in the sum of $1,200 for personal injuries received by him September 9, 1907, by coming into contact with a telephone wire heavily charged with electricity by reason of its falling and lying across the street and the electric wires of the Effingham Electric Light and Power Company. The declaration charges that for two years prior to, and on, September 9, 1907, Kinloch Long Distance Telephone Company owned, maintained and operated lines for the transmission of telephone messages with poles and posts on which the wires and insulators of the said telephone lines were placed, standing on both sides of a portion of Banker street, a public street of the city of Effingham; that upon other poles and posts below and under said telephone lines were strung the wires of said electric light and power company and by which electricity for light and power was there and then conducted; that the said Kavanaghs were then and there and theretofore engaged in the business of transmitting telephone messages and were then using said lines of the Kinloch Long Distance .Telephone Company; that thereupon it was the duty of said defendants not to suffer any wire strung to said telephone poles above said electric light wires to fall across said electric wires and sag down on the surface of said street; that each of said defendants did negligently suffer and permit a certain wire strung to the three poles of said Kinloch Long Distance Telephone Company, above said electric wires, on the west side of said street and south of Fayette avenue and across said Banker street to fall on said electric wires and across Banker street and so remain for thirty days; that on said date while walking southerly on Banker street with reasonable care plaintiff came in contact with said wire so down and heavily charged with electricity and was greatly shocked and burned, etc. The evidence discloses that the wire that burned plaintiff was an iron wire put up at the instance of one Frank McKeen, manager of the Wabash Valley Telephone Company, composed of private individuals, of M. H. and John E. Kavanagh from August 25, 1904, to May 2,1905, and of said Kavanaghs and Claus Tysdall from May 2, 1905, to June, 1906, at which last date all property of said Wabash Valley Telephone Company was sold and transferred to the Kavanagh Telephone Company, a corporation. Said wire was put up on the poles of the Kinloch Long Distance Telephone Company and without its consent; and was "never owned, used, controlled or maintained by.it so far as appears from the evidence. Banker street extends north and smith and is crossed by Fayette avenue at right angles and both are public streets of the city of Effingham. The iron wire in question ran from the office of the Wabash Valley Telephone Company along Banker street and from thence to a public schoolhouse in the city of Effingham and appears to have only been used for a few months. It was put up about the year 1904, by simply extending it from said office through the angles formed by the cross-arms and braces extending from the ends of the cross-arms and down and to the posts of the Kinloch Long Distance Telephone Company, the wire lying in the angle against the braces and posts, and extending on Banker street to the third post south of Fayette avenue, and thence crossing Banker street southeasterly, was tied to a stub post on the east side of the street, sometimes called by the witnesses, the stub post of the electric light company, and sometimes called the stub post of the long distance telephone company. The wire was “dead-ended” about one year before the injury to the appellee, by wrapping the wire around the post or brace at the south side of Fayette avenue. At the time of the injury to 'the appellee, as appears from the evidence, this wire did not extend from Fayette avenue north to the office aforesaid nor to the present office of the Kavanagh Telephone Company; and was not in use at all as a telephone wire by any one. The wire was blown down by a storm shortly before the accident, and was lying on the street and on the electric wires when appellee came in contact with it on his way home from school.
    W. B. Mann and G. F. Taylor, for appellants.
    Zimmerman & Rinehart and Wright Bros. & Denton, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

It is first insisted by appellants that the declaration does not state a cause of action. There is no averment in this declaration that any one or more of the defendants possessed, owned, used, operated or maintained the particular wire in question by contact with which the appellee was injured. There is no averment that the wire contained any particular defects, or that it was in any way negligently strung, badly insulated, or improperly attached to the poles by the defendants or any of them. There is no averment of actual or constructive notice to the defendants of any defects or dangers connected with this wire. In cases like this it is necessary to aver and prove three elements to make out a cause of action: “(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of whiefi he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence; * * * and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the declaration must state facts from which the law will raise the duty.” McAndrews v. C., L. S. & E. Ry. Co., 222 Ill. 232, and cases there cited; Bahr v. National Safe Deposit Co., 234 Ill. 101.

The averment that it was “the duty of said defendants not to suffer any wire strung to said telephone poles above said electric wires to fall across said electric wires and sag down, ’ ’ etc., is but the statement of a legal conclusion and the allegation is not traversable. Besides such a conclusion is not warranted from the facts previously averred, that the appellant telephone company owned, maintained and operated lines, poles, posts, wires, etc., for the transmission of messages, and that the other two defendants were engaged in using said lines in transmitting telephone messages. It is not averred that the wire in question was so owned, used or possessed; and for aught that appears in the declaration it may have been put up by a total stranger and trespasser. We cannot make out from the evidence that the wire was in use at all at the time of the accident, nor are we able to say from the evidence whether it was the property of the Kavanaghs and Tysdall as an old and abandoned wire, or whether it was owned by the Kavanagh Telephone Company, on September 9,1907. The evidence does clearly show that the appellant telephone company never did own it at any time, or control it or use it; and gave the Wabash Valley Telephone Company notice to remove it from the Kinloch poles and that they promised, but neglected, to do so. It therefore was in no way liable to the appellee for his injury by said wire. Its structures were all good and safe, and having no control over the iron wire, though on its poles, it was not liable for injury thereby. Chicago Telephone Co. v. Hayes, 121 Ill. App. 313; Holmes v. Union T. & T. Co., 41 N. Y. Sup. 551, affirmed in 139 N. Y. 651.

The judgment therefore cannot stand against the Kinloch Long Distance Telephone Company under the evidence in any view of the case, and being erroneous as to one of the appellants it must be held erroneous as to all of them. Field v. French, 80 Ill. App. 78; Morrow v. Langan, 16 Ill. App. 505. The declaration is fatally defective for the want of averments of ultimate facts showing the existence of a duty from the defendants to the plaintiff and the failure of the defendants to perform that duty. The evidence also fails to support the allegations that are made in the declaration as to the use of this particular wire by the appellants at the time of the injury, if it could be construed into such an averment. The case was tried upon the theory that if the said wire had been on the posts of the Kinloch company and had fallen therefrom on to the electric wires and thereby became charged with electricity, and that appellee was burned by it, that then appellants were liable no matter who put it on the poles or who owned,- maintained, controlled or used it, by reason of the fact simply that they owned the telephone line, and the other wires, poles, etc., or used them and had failed to look after this particular wire. The instructions are based upon the same erroneous theory, many of them; and, seemingly for that reason, the evidence fails to show clearly who owned or had control of this wire at the time of the injury, whether any use was being made of it by any one, or if abandoned and worthless and dangerous, whose duty it was to remove it. No advantage can be gained by further discussion of the instructions or of the evidence in the case in its present situation without further insight into the merits of the case.

For the errors above indicated the judgment of the lower court is reversed and the cause will be remanded for further proceedings.

Reversed and remanded.


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    Ida L. Wilson, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Pleading—when declaration in case for negligent maintenance of railroad crossing sufficient after verdict. In an action on the case for personal injuries predicated upon section 8 of the Railroad and Warehouse Act, a declaration after verdict is sufficient which avers that it was the duty of the defendant railroad company to construct and maintain an approach to the crossing in question and that “as in pursuance of such duty” it caused to be placed a walk of ashes, cinders and other materials, beginning at the easternmost edge of its right of way on the south side of the street in question and did not maintain and keep it in repair, etc.
    2. Pleading—when declaration in case for negligent maintenance of railroad crossing not sufficient after verdict. In an action on the case for personal injuries predicated upon section 8 of the Railroad and Warehouse Act, a declaration is not sufficient if it fails to aver that a portion of the walk in question was a part of the approach to the crossing or that it' was built as such and fails to aver any facts showing it to be the duty of the defendant railroad company to maintain it as a sidewalk.
    3. Pleading—effect of failing to demur. All defects of a declaration not objected to before verdict are cured thereby, if the declaration amounts to a defective statement of a cause of action and not to a statement of a defective cause of action.
    4. Railroads—what essential to establish that walkway is approach to crossing. The fact that a railroad company builds a walkway connected with a crossing, together with the manner in which such walkway is built, and the fact that it continued to repair and control the same, tends to establish that such walkway was an approach to the crossing.
    5. Instructions—when refusal to direct verdict upon defective count will not reverse. The action of the court in refusing to direct a verdict upon a defective count will not reverse if the declaration contains one good count which the evidence tended to establish.
    6. Instructions—when inaccuracies will not reverse. Inaccuracies and awkward wording of instructions will not reverse in the absence of prejudice resulting.
    7. Instructions—repetitions. The court by its instructions is not bound to repeat the same proposition of law. A correct instruction may therefore he refused if its contents are substantially contained in another instruction given.
    8. Verdicts—when excessiveness not saved for review. The ex-cessiveness of a verdict will not be reviewed on appeal where no error has been assigned that the verdict is excessive.
    9. Personal injuries—what evidence will not reverse, as tending to arouse sympathy or prejudice. Held, that while it was error for the court to permit a plaintiff in an action for personal injuries to testify that she had a husband, a son and a daughter, yet that such evidence not being reflected in the size of the verdict did not constitute ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Wayne county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.

      Kramer, Kramer & Campbell, for appellant; Edward Barton, of counsel.
    Boggs & Boggs, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellee brought this suit to recover damages for personal injuries received by her, and charged that they happened by reason of the defective condition of the approach to the road crossing of appellant’s railway with Delaware street in'Fairfield, Illinois. It was alleged that the defective condition was caused by the neglect of appellant to keep said crossing and approach in repair; whereby there were ditches washed in the surface thereof. On a jury trial verdict and judgment were rendered against the appellant and the city of Fairfield, the defendants below, in the sum of $625. The defendant railroad company appealed.

The evidence discloses that the railroad track and right of way there runs north and south and is two hundred feet wide and is crossed by Delaware street at right angles. On the south side of that street, east of the railroad, a brick sidewalk was built extending west to the east line of the right of way one hundred feet from the main track of appellant. On the right of way and within fifteen or twenty feet of the west end of the brick, walk is a traveled wagon-way running north and south into Delaware street and turning west therein to said crossing. About the center of this wagon-way and some ten or twelve feet west of the north end of the brick walk, two ditches were suffered to be washed running north and south across the walkway and in the drive-way there and were about twelve and sixteen inches deep respectively and about the same in width, both growing deeper and wider as they extended north, a few feet north of the brick walk line. The appellee was on her way home from St. Louis about two o’clock a. m. of October 28, 1908; and was walking westward over this brick walk and across those ditches from the depot of the Southern Railroad Company, when she slipped and fell into one of these ditches and received the injuries of which she complained. The evidence further shows that the line of the walk-way at the place where she was injured, called by the witnesses the cinder walk, was very nearly on a level with the surface there of Delaware street and the drive-way leading to the west on the right of way, and was part of the drive-way, and that it gradually sloped to the railroad with an acclivity of about two feet.

The Statute upon which appellee bases her right of recovery is paragraph 71 and section 8 of the Railroad and Warehouse Act which provides as follows: “At all of the railroad crossings of highways and streets in this State, the several railroad corporations in this State shall construct and maintain said crossings, and the approaches thereto, within their respective rights-of-way, so that at all times they shall be safe as to persons and property.” The liability of the city in this case is predicated on its violation of the next section 9 of said Statute, but it has not appealed.

Appellant first insists that neither count of the declaration avers that the place of injury was on either the crossing or the approach thereto, and that therefore the declaration does not state a cause of action. The first, count of the declaration avers that it was the duty of appellant to construct and maintain an approach to said crossing on the south side of Delaware street, and that “as in pursuance of such duty,” it caused to be placed a walk of ashes, cinders and other materials, beginning at the easternmost edge of its right of way on the south side of said street,, and did not maintain and keep it in repair, etc. This averment amounts in substance to an allegation that in pursuance of that duty the railroad built the walk as part and parcel of the approach. The declaration was not demurred to, and we think all defects not objected to before verdict are cured thereby. The defects in said count are “defective statements of a cause of action, and not statements of a defective cause,” and cannot be taken advantage of except by demurrer. Helmuth v. Bell, 150 Ill. 268, citing 1 Chitty on Plead. 711.

The evidence shows clearly from this record that the appellant built the cinder walk or the approach to the crossing and that it has had sole charge of it for as much as ten years, and refused to allow one witness, Mr. David Baker, to make a walk on the right of way unless he built it as appellant desired it built. The appellant does not deny any of this evidence. The plaintiff’s evidence tends strongly to show that this cinder walk was built as part of the approach to the crossing and that the approach was thus made to take in the walk-way in order that wagons and other vehicles might approach the crossing from the south by the wagon-way on the right of way, and that it has had charge of it and made all repairs thereon since it was constructed. The whole structure was in its right of way, and the fact that the railroad built it, the manner in which it was built, the continuing to repair and control it, all justified the jury in finding that it was part of the approach; and the court did not err in refusing to take the case from the jury. O. & M. R. R. Co. v. Cox, 26 Ill. App. 491; City of Bloomington v. I. C. R. R. Co., 154 Ill. 539; 2 Thompson on Negligence, sec. 1502; 29 Cyc. 618; 33 Cyc. 275; Central R. R. Co. v. Robertson, 95 Ga. 430.

The second count of the declaration is bad because it fails to aver that the cinder walk therein mentioned was part of the approach or that it was built as such, and fails to aver any facts showing it to be the duty of appellant to maintain it as a sidewalk. This however does not bar a recovery on the first count of the declaration; and it was harmless error in the court to refuse to direct a verdict thereon for the defendant, as the portion of the street therein complained of, although designated as a cinder walk, was proven by appellee to be part of the approach to the crossing, and it was not denied by appellant. For the same reason the defendant was not prejudiced by the giving of plaintiff’s instruction No. 3. The evidence shows, as suggested by appellant’s counsel, that there was in fact no sidewalk built by the appellant or any one else between the west end of the brick walk and the railroad track. We have examined all the other instructions given for the plaintiff ánd which were complained of by appellant; and, while some of them are somewhat inaccurate and awkwardly worded, we do not think that the giving of these instructions with those given for defendant were prejudicial to appellant. The damages in this case are not excessive and it is not assigned for error that they are excessive. The evidence also shows that the plaintiff was in the exercise of reasonable care and there is no evidence to the contrary. It was error for the court to admit the evidence as to the number and names of the appellee’s family; but it could not have harmed the appellant to simply relate that she had a husband, and a son and daughter living in St. Louis, giving their names. There was nothing in this recital calculated to arouse the sympathy or prejudice of the jurors, and the size of the verdict does not indicate that they were affected by this evidence unduly.

The appellant also insists that the court erred in refusing to give its refused instruction. All that was material in this instruction is found in substance in appellant’s other given instructions, and it was not therefore error in the court to refuse to repeat the same rules of law found in the refused instruction.

The other errors assigned by the appellant are not tenable, and finding no reversible error in this record the judgment of the lower court is affirmed.

Affirmed.


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    E. M. Peavler, Appellee, v. City of Mt. Vernon, Appellant.
    1. Statutory law—rule of construction. In interpreting the meaning of ordinances and statutes, particularly of statutes and ordinances substituted for old ones, “the old law, the new law, the mischief and the remedy must be considered.”
    2. Statutory law—rule of construction. In the interpretation of statutes and ordinances courts must be guided and governed by the legislative intent as expressed in the statute or ordinance and not by what they intended to but did not express thereby. Courts cannot modify them but must enforce them as they find them.
    3. Statutory law—when conduct of parties not considered in construction of ordinance. If an ordinance is plain and no room for construction exists the conduct of the parties under such ordinance will not be considered in determining its meaning. The • intention of the enacting body will govern.
    4. Fees and salaries—construction of ordinance pertaining to compensation of city attorney. The ordinance in question in this cause was as follows:
    “The city attorney shall be entitled to charge the city and receive as his fee, in each case, for the violation of city ordinances, an amount equal to one-half of the judgment recovered by said city for fine, penalty or forfeiture, and a salary of $300 per annum.”

      Seld, that such ordinance was plain in its meaning and that the city attorney was entitled to his compensation as fixed by such ordinance upon judgments recovered irrespective of whether the same had been collected.
    Assumpsit. Appeal from the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    A. D. Webb, Curtis Williams and G. Gale Gilbert, for appellant.
    Kirby Smith, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellee, a duly licensed attorney of Illinois, was elected, and qualified, and served, as city attorney of appellant for the time beginning April 20, 1905, to April 20, 1909; and for said four years he was paid $1,200 as salary and the further sum of $1,584.65, the same being one-half the judgments recovered and collected for said city through his services as said city attorney. Judgments were also obtained by him in favor of appellant for fines and penalties amounting to $900, $800 of which was never paid the city in any manner, $93.40 thereof was worked out on the streets by prisoners, and $6.60 thereof was collected by the police magistrate since appellee went out of office. Appellee claimed the city owed him a sum of money equal to one-half the amount of said latter judgments, $450, as balance of his fees or salary as said city attorney; and recovered a judgment of $450 in his suit therefor against the appellant, the trial being before the court without a jury. The city appealed.

The city concedes that no part of said $450 has ever been paid to appellee, and denies that appellee is entitled to any part thereof as such salary or fees except as to the amount of said judgments that were collected. The ordinance fixing appellee’s salary as city attorney and admitted by the appellant as being in full force during the term of appellee as such officer, provides as follows: “The city attorney shall be entitled to charge the city- and receive as his fee, in each case, for the violation of city ordinances, an amount equal to one-half of the judgments recovered by said city for fine, penalty or forfeiture, and a salary of three hundred dollars per annum.”

The principal contest in this case is over the meaning of the words, “judgments recovered,” as used in said ordinance. The contention of the appellant is that the word, “recovered,” in said ordinance means, “collected,” and that the city attorney is only entitled to one-half of such judgments as have been collected. The legal definition of the word, “recover,” as given by Anderson in his law dictionary is, “To obtain by judicial action or proceeding,” “to obtain by cause of law.” He defines the word, “recovery,” as, “obtainiag by legal process or proceeding; .restoration of a right by judicial award,” which is the same definition practically as given by Bouvier in his law dictionary. Anderson says that the word, “recover,” when referring to note, means, “to collect or obtain the amount, possibly by a suit at law.” Webster in his International Dictionary gives the law definition of the word recover thus: “to obtain a judgment; to succeed in a law suit; as, the plaintiff has recovered in his suit.” There is quite a difference in the meaning conveyed and understood in common parlance by the following phrases: “judgment recovered,” “money recovered,” “note recovered,” “debt recovered;” and, yet, in all these phrases if the word “obtained” be substituted for the word recovered the meaning of each phrase will remain practically unchanged. When we recover or obtain our money or our debt, we have the thing itself or the value therefor, as commonly understood; but when we simply recover or obtain judgment on our claim or demand, we have only established our right and authority for obtaining or recovering our money or debt or claim, whatever it may be. There are instances when the words, “recovering judgment,” might be interpreted to be the equivalent of “collecting judgment,” but in such cases it is other words in the contract, or law or ordinance interpreted, that shows or explains the words to be there used in such special sense. The following cases are good expositions of how such words may be varied in meaning by the general context of the instrument interpreted; and, yet, an authority really for the view herein expressed as to the ordinary legal meaning of the words, “judgment recovered.” Fisher v. Mylius, 42 W. Va. 638; Powell’s Admx. v. Powell, 84 Va. 416; Strohecker v. The Farmer’s Bank, 6 Pa. St. 41; Norton v. Winter, 1 Oregon 47; Oxford v. Paris, 33 Me. 179; Leslie v. York, 112 Ky. 712; Keiny v. Ingraham, 66 Barb. (N. Y.) 250; Words and Phrases, 7 Vol. 6019.

The words in the above ordinance, ‘ ‘ an amount equal to one-half of the judgment recovered by said city for fine, penalty or forfeiture,” have a plain, palpable meaning, that is to say the intention of the ordinance is that the city attorney shall be paid a sum of money in every such case equal to one-half of the judgment rendered by the court, whether collected or not collected. There is nothing in the context of this ordinance that makes such construction even doubtful to our minds, particularly when we read the former city ordinance on the same subject which was repealed and succeeded by the above ordinance, to wit: “The city attorney shall receive a salary of three hundred dollars per annum, and one-half of the fines collected in money, in prosecutions for violations of city ordinances.” In interpreting the meaning of ordinances. and statutes, particularly of statutes and ordinances substituted for old ones, “the old law, the new law, the mischief and the remedy must be considered. ’ ’ If our interpretation is not right in this case, and if appellant’s is right, the passing of the latter ordinance was but mere pastime without intent to substantially change the salary of the city attorney. Wright v. People, 101 Ill. 126.

It is also insisted by appellant that in case of doubt in the construction of a statute or ordinance that the doubt should be solved in favor of the public and against the appellee; and that in such case the interpretation that the parties themselves have placed upon the statute or ordinance in their dealings with one another, if reasonable, should be. considered by the court in determining its meaning. If we should concede that this contention is correct, the answer to this argument is that in our judgment there is no room for doubt as to the meaning of this ordinance, and that the interpretation thereof by the appellant is altogether unreasonable and cannot be sustained. The only ground for contending that the parties made any interpretation contrary to appellee’s position now is, that he never made or filed any claim to this salary or fee until after his term expired. As a matter of fact he never filed any claim for any of his salary collected by him. But we cannot concede in any event, that the actions of the parties shall be a guide to the correct interpretation of this ordinance. The salary of an officer is an incident of the office and is not fixed by contract; but is fixed by law, and in this particular instance by the city’s own ordinance. The city must pay it according to the provisions of the ordinance, and if the ordinance does not express the intention of the city as to the amount of salary and fees to be paid the city attorney, the only remedy now is to abide by the ordinance and comply with it until it can be remedied by a new ordinance. In the interpretation of statutes and ordinances courts must be guided and governed by the legislative intent as expressed in the statute or ordinance, and not by what they intended to, and did not, express thereby. Courts cannot modify them, but must enforce-them as they find them.

There was no error in refusing appellant’s propositions of law.

The judgment of the lower court is right and is therefore affirmed.

Affirmed.


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    Henrietta Roloff, Administratrix, Appellee, v. Luer Bros. Packing & Ice Company, Appellant.
    1. Master and servant—when doctrine of assumed risk applies. A judgment obtained by a servant against his master for personal injuries sustained will not be enforced if the manifest weight of the evidence shows that such servant had assumed the risk of injury from the conditions prevailing which resulted in his injury.
    2. Contributory negligence—when restriction of cross-examination ground for reversal. It is error for the court to refuse to permit the answering of a Question which will tend to establish whether or not the plaintiff’s intestate was in the exercise of ordinary care for his own safety.
    3. Contributory negligence—what material upon issue of. The character of the machinery and the structures at the place of the accident, with their surroundings, the amount of light and the ability of one to see the structures, are all elements which bear upon the question as to whether ordinary care was exercised by the person injured or killed.
    4. Evidence—when coroner's verdict incompetent. A coroner is given no power by the statute to make a finding on the question of the negligence of either the injured or killed employe or of his employer, with a view to fixing or defeating personal liability -against the employer. A verdict imputing negligence to the employer is not admissible in evidence against such employer in an action for damages. In this case the verdict in question contained an objectionable finding as follows: “Said crank-shaft and pit was unprotected.”
    Action in case for death caused- by alleged wrongful act. Appeal from the Circuit Court of Madison County; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Statement by the Court. Appellee as administratrix of the estate of William J. Roloff, deceased, recovered a judgment against appellant in the sum of $5,000 in the lower court for personal injuries alleged to have been caused by the negligence of appellant, resulting in the death of appellee’s intestate. Just before noon of May 7, 1908, said William J. Roloff was taking down and removing a scaffold upon which he had been whitewashing the ceiling of appellant’s old engine room of its plant. He had removed two planks of this platform and had placed them on the stairway against the north end of the new engine room with a view to taking them to the second story, and had the third one pointing northeast and lying on the granitoid floor in the large sixteen foot doorway connecting said engine rooms. Turning his back to a Ball ice machine then running" about five or six feet east of him, he picked up this third plank and started northeast with it to the stairway; and, walking sideways and backwards, his foot struck the base or guard of the Ball ice machine which caused him to fall and sit down on this base with the plank on his lap. While in this position and before he could arise, the crankshaft of the ice machine struck him on the left side of his neck, killing him instantly and dragging his body into the crank-shaft pit. The old engine room was west of, and adjoining, the new engine room; and at their north ends where the deceased was killed they were partially connected by a large opening about sixteen feet wide and fourteen feet high, made by removing that portion of the east brick wall of the old engine room. Straight west of the Ball ice machine at the distance of about ten feet, and in the old engine room, stood another small ice machine not then running; and straight north of this machine, some five or six feet, stood another small ice machine in the northeast corner of the old engine room and which was not then running. The stairway ran along the north end of the new engine room to the second story, the foot of the stairway being at the north end of the brick wall that was removed for said opening. The northwest corner of the base of the Ball ice machine in the new engine room was about seven feet southeast of the west corner of the old brick wall at the foot of the stairway, the foot of this stairway extending twenty-seven inches south of this point of the old wall, some twenty inches of which at the north end had not been removed. The fly wheel on the east side of the small ice machine to the south was about twelve feet southwesterly from the south corner of the stairway, while the northeast corner of the other small ice machine was about five feet west and a little south of the stairway. The base of the Ball ice machine was of iron and extended about twelve inches above the floor level; and from the west line, of this base to the west line of the crank-shaft that struck the deceased, the distance is about twenty-two inches. The deceased had been whitewashing for two or three days in the old engine room on this scaffold about six feet above the floor, over these small ice machines and in plain view of the Ball ice machine which was running all the time; and had been whitewashing in the new engine room and various parts of the building for a month or more.
    The declaration consists of four counts charging in substance (1) the negligent failure of the defendant to place a guard or railing in front of the crank-shaft and other parts of the machinery to protect Roloff from the danger thereof; (2) that it negligently failed sufficiently to light the engine room; (3) that it failed to furnish sufficient help to aid Roloff in moving his scaffold; (4) that it failed to furnish sufficient space to enable Roloff to remove the plank by the ice machine, whereby he was killed, etc.'
    Wise, Keefe & Wheeler, for appellant.
    Merritt U. Hayden and C. H. Burton, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellant insists on this appeal that this case is wholly without merits, that the deceased knew all about the location of the Ball ice machine and its dangers and assumed the risk by continuing in his employment without complaint. The proof utterly fails to support either the third or the fourth counts of the declaration. The evidence does not tend to show, so far as we can find, that the plank were too heavy for one man to handle. While it does show that there were several obstacles that made the placing of the plank in the stairway somewhat difficult, still it does show that while he had voluntary help to place the first plank, he himself placed the second one with apparent ease and without complaint and did not call for help with it or the third one. There was no evidence introduced as to the weight of these plank, or as to the character of the wood, or as to difficulty in any way in handling them. The defendant asked thé only question bearing on this subject, to-wit: “What difficulty if any, is there in putting a board of this size in this space and putting it on to those stairs?” This question was asked of a witness who had done this work and the plaintiff’s objection to this question being sustained by the court, it was not answered. The Ball ice machine is a large machine some twenty feet or more long, is a permanent structure in that building, not built with any view to passages around it for passing it with lumber, but with a view to manufacturing ice. For its purpose and uses it has plenty of space all around it for safe passage and there is no ground for complaint in that regard as charged in the fourth count. It could be plainly and easily seen by Roloff from the scaffold where he was whitewashing in the old engine room, and from any place in the space between the machines- where the plank was picked up by him, according to the undisputed- evidence of all the witnesses testifying on that subject. All the witnesses, some four or five, except one, testify that the new engine room and the Ball ice machine were well lighted by a large skylight above and south of it, and by one north of it, and by a hole in the north wall of this room, and by a window in the old engine room to the west. Some say that it is light enough there to read the fine print of a newspaper and another expresses it that a nickel could be dropped and sighted and picked up anywhere about the machine. The architect read his rule and took the measurements there by this natural light. The floor is perfectly level and smooth all about there. The evidence discloses that the deceased had worked all about the plant there at whitewashing for a month or more, and passed this machine that killed him many times a day in going back and forth, dressing and undressing and mixing his whitewash for use. The only trouble about the evidence in this particular is that it does not disclose how close by it he passed, nor at what parts of it he passed. One witness testifies that on the day Roloff was killed it was a dark, cloudy day; and that on such days and on that day it was dark and gloomy around this machine, and the parts of it could not be readily seen. If this is true one could not readily see the wide iron base that tripped the deceased into the pit when he was killed; and how well the deceased was acquainted with the machine before that would be a considerable factor in determining the questions of contributory negligence, assumed risk, etc. The most that can be said in behalf of the plaintiff is that there was sufficient evidence to go to the jury with the first two counts of the declaration. If the evidence showed clearly that he had been frequently close by this crank-shaft and base of the machine so that he must have been familiar with their construction, we would be compelled to say that the manifest weight of the evidence showed that he assumed the risk, for to see this structure and machinery is equivalent to knowledge of its dangers to one of ordinary intelligence. But as the case will have to be tried again we will not further discuss the merits of the case.

The court erred in its rulings on the evidence. John Schuppe, a witness for the plaintiff, testified in detail about the movements of the deceased and how he got hurt. He was asked on cross examination, “And there was no difficulty in seeing the engine there, was there.” The court sustained an objection to this question. The witness’ evidence in chief bore largely on the movements of the deceased and necessarily on the question of his due care for his own safety. The character of the machinery and the structures there with their surroundings, and the amount of light and the ability of one to see these structures, all shed light on the question of due care, and the court erred in sustaining this objection. The court admitted over the objections of the defendant the coroner’s verdict, to wit; “That he (Roloff) came to his death on 7th day of May, 1908, at Luer Bros. Packing & Ice Company’s plant, by falling backward in a crank-shaft pit of the Ball ice machine in said company’s plant. Said crank-shaft and pit was unprotected.” The coroner is given no power or authority by statute to make a finding on the question of the negligence of either the deceased or of his employer, with a view to fixing or defeating personal liability against the employer for his death. Such a verdict imputing negligence to the defendant is not admissible in evidence against such defendant in an action for damages for such death. Cox v. Chic. & N. W. R. R. Co., 92 Ill. App. 15; Chic. M. & St. P. R. R. Co. v. Staff, 46 Ill. App. 499; Callaway v. Spurgeon, 63 Ill. App. 571.

The effect of the last sentence of said verdict was to impute negligence to the defendant in failing to protect the crank-shaft and pit, and that part of the verdict should not have been read to the jury. The instruction to disregard it did not in our judgment remove the effect of this finding by the coroner’s jury. This evidence was directed to the vital points of the case and was of such a character as to be a controlling factor in the making of the verdict of the jury.

For the errors indicated the judgment of the lower court is reversed and the cause will be remanded for further proceedings.

Reversed and remanded,.


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    Sadie Wilkerson, Appellee, v. Willis Coal & Mining Company, Appellant.
    1. Mines and miners—when willful violation established. Willful violation in failing to make the roof of a mine safe as provided by-statute is established where such roof is left with “treacherous” slate in such condition that it would probably “come down in a very short time,” the same being removable by fifteen minutes’ work.

      2. Mines and miners—when cause of action for willful violation established. Upon proof that a mine examiner found a dangerous condition and reported it to the mine manager, that the mine manager willfully failed to make the place in question safe and willfully permitted the deceased to go into the mine to work and he exposed to the danger by reason of which he lost his life, a cause of action is established.
    3. Mines and miners—what not defense to action charging willful violation. If the plaintiff established a willful violation in that the place where the deceased lost his life was known to be dangerous and was not made safe as required by statute, a liability will not be defeated upon the. ground that the examiner and manager had in good faith sought to repair the condition and to render the same safe and did in their judgment so repair and render such place safe.
    4. Mines and miners—what not defense to action charging willful violation. Contributory negligence on the part of the deceased is not a defense to an action under the Mines and Miners Act charging willful violation of its provisions.
    5. Pleading—what proof sufficient to sustain action in tort. In tort it is sufficient to prove enough of the averments to make a case and it is not necessary for the plaintiff to prove all of the allegations of the declaration.
    .6. Instructions—when improper modification will not reverse. If a party offers a faulty instruction and it is modified by the court in such a way as to still leave it faulty, the party so offering it cannot complain of the court’s action in that regard .
    7. Instructions—when error will not reverse. An error in modifying an instruction will not reverse if substantial justice has been done and the jury could not reasonably have arrived at a different finding under the evidence.
    Action in case for death caused by wrongful act. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Statement by the Court. This appeal is from a judgment of $2,000 rendered in the lower court on a jury trial in favor of appellee and against the appellant coal company for the death of Otto E. Wilkerson, her husband, by reason of the alleged willful violation of the Mines and Miners Act. There are four counts in the declaration, the propriety and sufficiency of which are in no way questioned. The substance of the charge upon which the recovery is based is that the defendant had in its employ a mine examiner who made an examination of appellant’s mine September 9, 1908, before the miners were permitted to enter therein for work; that he discovered at the mouth-of twelfth west entry off of the main north entry a lot of cracked and loose, material in the roof there which was dangerous and liable to fall; that he made a record of those conditions as he found them in the book kept for that purpose, and placed on the roof there a conspicuous mark as notice to all men to keep out; that the mine manager of appellant willfully violated the Statute, by allowing said deceased, a track layer in said mine, to enter therein for work and not under his direction as mine manager, before said conditions were made safe; and that in consequence thereof said Wilkerson was killed by a fall of slate from the roof at said point.
    The evidence shows that Flynn, the mine examiner, discovered the dangerous conditions described in the declaration, and made a report thereof to Rogers, the mine manager, and recorded it in the proper book; that Rogers then directed Flynn, who was also his assistant mine manager, to take with him the necessary timbermen and repair the place; that Flynn and his assistants went to the place and pulled down all the loose material that could be taken down with picks; that they found a large quantity of slate there that they could not pull down which they sounded with their picks, pronounced it “safe for the day” and went away without further effort to safeguard the place, except that Flynn remained near it for a good part of the day watching the roof there; that about four o’clock that afternoon, quitting time, Wilkerson came from his work to this place and climbed into a car there with another man and the car driver; and, while waiting for the signal that the electric current was turned off the wires so they could be safely hauled to the bottom, a large piece of the overhanging slate fell on Wilkerson and killed him.

      C. E. Pope, for appellant.
    Webb & Webb and A. R. Dry, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

It is insisted by appellant that the court erred in refusing to direct a verdict of not guilty, because the evidence shows that the mine manager took with him good, competent men, and in good faith and to the best of their judgment, repaired the place in question and made it safe. We are unable to agree with counsel for appellant that the timber men in good faith attempted to make this place safe. The evidence shows clearly on the other hand that they left this place in a dangerous condition and that it was their deliberate judgment that it was unsafe as they left it. There is no question in our minds as to their competency to detect the danger there and to make the place safe, but their own evidence shows clearly that they found it dangerous and left it dangerous.

Sanderson, one of these expert men that went to repair this place, testified about the piece of slate that fell on Wilkerson as follows: “I took all that was loose down and left that until I thought it would get loose; * * * I took down all this slate I could get down and I pronounced it good for that day; * * * I thought it would come down in time; I wanted it to get ripe, I knew it would get ripe; * * * the slate that fell was eleven inches thick; that which fell was bastard free stone, it is a treacherous stone; I did not know how soon it would come down, but I pronounced it safe for that day; * * * I was told to take the loose slate down and make it safe for that day; the slate right under the rock is heavy—-it is treacherous; it may sound all right one time and then come down in a very short time; I knew that that morning; it could have been shot down in fifteen minutes and would not have interfered with any work. ”

Flynn testified thus: “Sanderson pulled down the slate on the north entry first and went over and pulled down slate in the twelfth west, * * * and then said to me, ‘we will have to get this piece down, ’ and he rapped this piece of slate, and said he couldn’t get it down, and I wouldn’t be sure whether he said he would have to shoot it down or not; I was there when he was rapping it; it did not sound so bad; there is no slate that is safe; I didn’t consider this piece that fell would fall right then.” Again he says: “I went to the place where this slate fell, and I said to Sanderson we would have to get this down, it is in the road; I didn’t think it was liable to come down any time; I said a while ago I didn’t consider any slate safe.” He also testified that he stayed around there and examined it several times after they had left it, and that he told the boy working there not to get under it; and that he was watching the place because he didn’t want it to fall on anybody.

The evidence for appellant not only fails to show that Flynn made the place safe; but that he knowingly and willfully failed to do so, and that he was not willing to swear that it was made safe within the meaning of the Statute. The word, “safe,” as used in the Statute means safe, not dangerous. A place is not made safe within the meaning of the statute when it is knowingly left with “treacherous” slate in the roof that will probably “come down in a very short time,” and which could be removed in fifteen minutes work.

It is also argued by appellant that there is no evidence in this record to sustain the averment in the declaration that there had been a “recent fall” at said place. It can make no sort of difference whether or not there was a recent fall in the roof there, or whether or not there had in fact been a prior fall of any kind there. In tort it is sufficient to prove enough of the averments to make a case, and it was not necessary for appellee to prove said allegation in this case. She proved that the mine examiner found this dangerous condition and reported it to,the mine manager; that the mine manager willfully failed to make it safe, and willfully permitted the deceased to go into said mine to work and be exposed to the danger, by reason of which he lost his life. This was sufficient proof to entitle her as his widow to recover under the declaration.

We have carefully examined all the instructions given for appellee and for appellant, and they state the law applicable to the case fully and accurately with one exception. The court modified appellant’s instruction No. 2 by interlining the words, “and in your judgment,” making the instruction to read as follows: “And if you further believe that said men went to the place in question and did remedy those conditions, and did, in their judgment, and in your judgment, make the place safe, then the court instructs you that there was not a willful failure',” etc. The instruction as modified did not Accurately state the law. But it is also true that the instruction as submitted to the court did not accurately state the law. “It is the duty of the owner of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails in either particular, with knowledge of its dangerous condition or with knowledge of facts from which he ought to know of its dangerous condition, he is liable to a person in the mine under his employ who is injured as a result of his willful failure to obey the mandates of the Statute. * * * His liability does not rest upon the ground that in good faith or bad faith he thought there was no danger in the mine, but upon the ground that he has, knowing the facts which made the mine dangerous failed to have the statutory marks properly placed in the mine. When the mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so he acts at his peril, and he cannot excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine owner or operator, or his examiner or manager, to usurp the functions of the court and jury, and to pass upon a question which, in every case like this, is a matter of proof and is to be determined as a fact by the jury.” Aetitus v. Spring Valley Coal Co., 246 Ill. 32.

The same rule above announced is equally applicable with reference to the duty of making a place safe, as in the case before us, when the operator or examiner or mine manager has found and marked a place in the mine as dangerous. It is then the duty of the mine manager to make the place safe, and he cannot be justified in leaving the place dangerous simply because he in good faith believed, or feigned to believe, he had made it safe, when the conditions are such as he ought to know that it is dangerous. In this case it is so apparent that the assistant mine manager did not, and could not, believe that he made the place in question safe, that we are not disposed to disturb the verdict because the said instruction as given is not entirely accurate in stating the law. Besides, if a party offers a faulty instruction, and it is modified by the court in such a way as to still leave it faulty, the party so offering it cannot complain of the court’s action in that regard. If the court did commit error in modifying the instruction, substantial justice has been done and the judgment should not be reversed, as the jury could not reasonably have arrived at a different finding under the evidence. Ryan v. Donnelly, 71 Ill. 100; Crown Coal and Tow Co. v. Taylor, 184 Ill. 250; Swift & Co. v. Rennard, 119 Ill. App. 173.

Contributory negligence on the part of the injured miner has been so frequently held by our Supreme Court and Appellate Courts to be no defense to a willful violation of the Mines and Miners Act as to not require further discussion of .such doctrine. Therefore, the fact that the deceased was attempting to ride in the car against appellant’s rules, if true, cannot be considered as a defense in this case. Kellyville Coal Co. v. Strine, 217 Ill. 516.

We have considered all the other errors assigned by appellant and find that they are not well taken. Finding no reversible error in this record, the judgment of the lower court is affirmed.

Affirmed.