text:
    H. J. Andrews & Company, Appellant, v. Anchor Folding Box Manufacturing Company, Jesse Dimond and Harry Stotlar, Appellees.
    1. Appeal and erbob, § 270*—what is interlocutory, unappealable order. An order vacating a judgment,. even though entered at a term subsequent to the term at which the judgment was entered, is an interlocutory order and no appeal can be prosecuted therefrom.
    2. Appeal and erbob, § 580

      —how order vacating judgment may be questioned. A party desiring to question an order vacating a judgment may do so by preserving an exception thereto and assigning the same as error as part of the record after the controversy has been finally determined.
    Appeal from the City Court of Benton; the Hon. R. E. Hickman, Judge, presiding.
    Heard in this court at the October term, 1917. Appeal dismissed.
    Opinion filed April 5, 1918.
    W. P. Seeber, for appellánt.
    Hart & Hart, for appellees.

      See Illinois Note's Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On August 3, 1916, an order was entered by the City Court of Benton, Illinois, defaulting appellees in a suit brought by appellant and judgment was entered thereon in favor of appellant for $3,042.33. Thereafter on April 4, 1917, being at a subsequent term of said City Court, on motion of appellees, said judgment was set aside and appellees were permitted to file pleas of nonassumpsit and nul tiel corporation and a special plea by appellees, Stotlar and Dimond, to the effect that no notice of presentment and dishonor was given as provided by law. Thereafter, but at the same term of court, on leave given, the sheriff amended his return of service so as to show service had on the Anchor Folding Box Manufacturing Company by reading the summons in said cause to C. W. Dumham, secretary of said corporation, the president of said corporation not being found in Franklin county, etc.

To reverse the order or judgment entered by said City Court purporting to vacate the judgment therein entered by said court and giving leave to appellees to plead, appellant prosecutes this appeal. A motion was made in apt time by appellees to dismiss said appeal for the reason that the order vacating said judgment was not a final order and therefore could not be appealed from. We are of the opinion that the motion-to dismiss said appeal is well taken. An order of court vacating a judgment, even though entered at a term subsequent to the term at which the judgment was entered, is an interlocutory order and no appeal can be prosecuted therefrom. City of Park Ridge v. Murphy, 258 Ill. 365; Walker v. Oliver, 63 Ill. 199; Van Zandt v. Qormley, 66 Ill. App. 588; Roseland Mfg. Co. v. Arcan, 55 Ill. App. 336; Dean v. Gerlach, 34 Ill. App. 233; P. P. Mast Buggy Co. v. Litchfield Furniture, Hardware & Implement Co., 55 Ill. App. 98.

In Walker v. Oliver, supra, at page 200, the court says: “It is quite evident the plaintiff in error is" premature in suing out this writ of error, for the reason the record shows no final judgment from which an appeal or writ of error would lie. All that the Circuit Court did was to set aside a judgment previously rendered in that court, which decides nothing. When the cause is again tried, and a final judgment entered, an appeal or writ of error will lie, on which it can he assigned as error the setting aside of this judgment at a term subsequent to the one at which it was rendered. ’ ’

In City of Park Ridge v. Murphy, supra, the court at page 366 says: “Where a defendant makes a motion to set aside a default and vacate a judgment in order to allow a defense, and such motion is denied, the denial of the motion is a final judgment, which may be reviewed by appeal or writ of error (Lake v. Cook, 15 Ill. 353; Boyles v. Chytraus, 175 Ill. 370); but when the motion is allowed and the judgment is set aside merely for the purpose of allowing the party to interpose a defense the order is interlocutory and an appeal will not lie therefrom. (Walker v. Oliver, 63 Ill. 199.) In such case the court does not finally determine the rights of the parties. Where a default is set aside and a money judgment is vacated, the usual and proper practice is to allow the judgment recovered 'to stand as a security for the payment of any amount that may ultimately be recovered upon a retrial of the case, and any liens that have been acquired under the judgment are retained until the final determination of the merits of the controversy. Upon a retrial of the case the court may re-enter the same judgment or modify it or render an entirely different judgment, but until such final judgment is rendered there is no final disposition of the case within the meaning of the statute which allows appeals and writs of error to review final judgments. If the opposite party desires to question the action of the court in setting aside-the default and vacating the judgment, it is his duty to preserve exceptions thereto and assign error thereon as a part of the record after the controversy has been finally determined. (People v. Wells, 255 Ill. 450.)”

The foregoing cases indicate the manner, in which appellant may finally raise the question as to whether the court erred in vacating said judgment and in giving appellees leave to plead.

.Under the above authorities the appeal will be dismissed for the reason that the order attempted to be appealed from is not a final order or judgment.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    F. W. Moore and J. W. Bushnell, Plaintiffs in Error, v. Union Trust and Savings Bank, Trustee, et al., Defendants in Error.
    (Not to Tbe reported in full.)
    Abstract of the Decision. .
    Reformation of instruments, § 11

      —when mistake shown justifying reformation of contract for purchase of realty. Evidence held sufficient to sustain the chancellor’s findings that a verbal agreement that one of the parties to a contract for the purchase of realty should be reimbursed to the extent of the cash advanced by him to consummate the deal, and for his expenses, before the profits realized from the sale of the property so purchased should be divided among the parties, was hy mistake omitted from the written contract as drafted and to justify reformation.

      Error to the Circuit Court of St. Clair county; the Hon. J. F. Giixi-iam, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Bill for accounting by F. W. Moore and J. W. Bushnell, complainants, against Union Trust and Savings Bank, trustee, and August Schlafly, defendants. The latter filed a cross-bill praying reformation of the contract upon which the suit was based. From a decree in conformity with the prayer of the cross-bill, complainants bring error.
    J. C. Ivefts and D. J. Sullivau, for plaintiffs in error.
    Keefe, Hadley & Baxter, for defendants in error; W. C. Coftftett, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Albert Drda, Appellee, v. Illinois Terminal Railroad Company, Appellant.
    1. Railroads, § 350*—when damage to crops by flood shown. In an action by one as owner of certain land and as tenant of other land to recover damages for the overflowing of land occupied by him, alleged to be due to the construction of a railroad embankment across a river valley without leaving sufficient outlets, evidence held to sufficiently show that plaintiff’s crops were damaged hy water flooding his lands.
    2. Railroads, § 349*—what is question for jury in action to recover for damage to crops because of flooding of land. In an action by one as owner of certain land and as tenant of other land to recover damages for injury to his crops hy overflow alleged to be due to the construction of a railroad embankment by defendant across a river valley without leaving sufficient outlets, it was a Question of fact for the jury whether such overflow was due wholly to such an extraordinary flood as ordinary prudence could not have anticipated, or wholly to defendant’s defective construction of its bridges and embankments, or both causes.
    3. Railroads, § 330*—what is duty of railroad company as to outlets for floods through railroad embankment. It is the duty of a railroad company, in constructing an embankment and bridges for its right of way over a river valley, to provide ample outlets for the waters of such floods or freshets as men of ordinary prudence could have foreseen, but not against the waters of such extraordinary floods as could not have been reasonably anticipated.
    4. Railroads, § 349

      —what- are questions for jury in action against railroad for injury to crops because of flooding of land. The Questions as to what was an extraordinary flood in a particular river valley and whether the rain which caused injury to the crops of a person near a railroad embankment across the valley was an extraordinary flood, were questions for the jury, in an action against the railroad company for injury to plaintiff’s crops because of insufficient outlets in the embankment.
    5. Railroads, § 330*—when duty of railroad obstructing flow'of water of river to provide against extraordinary rainfalls. Although a rainfall may be extraordinary, yet if it be such as has occasionally occurred, even though at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of a railroad company which changes the course of a river or obstructs the flow of water by changes in its embankment across a river valley to provide against the consequence of such a rainfall.
    6. Railroads, § 350*—when overflow of land shówn to be due to construction of railroad embankment and defective outlets. In an action by one as owner of certain land and as tenant of other land to recover for injury to his crops as the result of a flood, evidence held sufficient to sustain a finding that the overflowing of plaintiff’s lands was caused by defendant’s embankment over the river valley and by its defective construction of outlets through such embankment.
    7. » Railroads, § 334*—when railroad constructing embankment over river valley liable for injury to crops by flood. Even though the rainfall of a particular year is unprecedented, yet if the act of the railroad company in constructing an embankment over the river valley and its bridges contributed together with an unprecedented flow of waters in the river to the flooding of land and injury to crops of one near the river valley and embankment, the railroad company would be liable for the injury caused thereby.
    8. Instructions, § 159*—consideration as a series. ■ Any inaccuracy in a particular instruction cannot be complained of where all of the instructions, when considered together with the allegations of the pleadings and proofs in the case, fairly state the law.
    9. Instructions, § 158*—how must be considered. Instructions must be considered in the light of the allegations of the pleadings and proofs in the case.
    10. Railroads, § 352*—when instructions ip action against railroad company for injury to crops because of overflowing of land are correct. In an action by one as owner of certain land and as tenant of other land to recover damages for injury to crops because of the overflowing of his land due to the construction of a railroad embankment over a river valley with insufficient outlets, held that the instructions, considered as a series, correctly stated the principles of law applicable to the case.
    11. Railroads, § 315

      —what are rights of railroad company as to change of channel of stream. Although a railroad company which has constructed an embankment on its right of way 'across a river valley has the right to change the channel of the river upon its right of way by straightening it out, yet in making such change it has no right to obstruct or in any way interfere with the flow of water.
    12. Railroads, § 342

      —when successive recoveries may be had for successive injuries by overflow of land due to construction of road across stream. The duty of a railroad company to so construct and maintain its road across a stream as not to injure adjacent land by throwing water back upon it is a continuing one, and each overflow resulting from a neglect of that duty creates a new cause of action for any injury thereby occasioned to the crops and land, and successive recoveries may be had for successive injuries caused by such negligence.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    H. S. Baker, A. M. Fitzgerald and Warnock, Williamson & Burroughs, for appellant.
    Burton & Burton, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment against the Illinois Terminal Railroad Company, in favor of Albert Drda for $750.

The case w^s tried on a declaration of one count alleging, in substance, that on August 13, 1916, and prior thereto, appellee was in possession of the southwest quarter of Section 34 in Ft. Russell township, Madison county, Illinois,. owning and farming the north 70 acres thereof and being in possession of and farming the south 90 acres thereof as a tenant; that prior to said date appellant built its railroad across Cahokia Creek Valley downstream from appellee’s land and filled up and totally closed the natural channel of Cahokia Creek where it was crossed by said railroad and' constructed a solid embankment across the same 25 feet high and 100 feet wide; that appellant .dug an artificial channel for said creek about 400 feet south and east of the natural, channel, which artificial channel was against and partly in a high bluff, and negligently constructed and left as a sole outlet for the waters coming down said valley a concrete opening of insufficient size, with a bridge thereover; that on August 13 to 19, 1916, heavy rainstorms occurred and the waters naturally flowed down said valley and would have 'flowed off towards the west and south but were obstructed and prevented from so doing by said embankment, and accumulated and flowed against said embankment to a depth of several feet and for a .width of a quarter of a mile and were held back upstream for several miles; that said waters were held back on appellee’s land several days until they could escape through said artificial opening, and flooded and destroyed certain crops then growing on his land.

Appellant filed the general issue and four special pleas. The second special plea was the ordinary plea of the statute of limitations. The other special pleas alleged, in substance, that said embankments, openings, culverts and bridges were constructed, in accordance with proper railroading and railroad engineering, and were and at all times since have continued to be sufficient and adequate for any and all natural water flowage which could reasonably and prudently be expected down said valley; that said embankments, openings, culverts and bridges constituted a permanent and lawful structure, so that any damages that might have been caused thereby accrued to the lands and premises when such structures were built, the measure of which was the depreciation in the market value of the lands, and that none of such damages occurred to the appellee within 5 years; also that the crops claimed to be damaged were grown by appellee as tenant, subsequent to the building of said embankment, and for them appellee would have no cause of action.

Appellee filed appropriate replications, alleging, among other things, that appellant did not construct its railroad embankment across Cahokia Creek Valley in the manner required by law and did not restore the same to its former state or to such state as not to unnecessarily impair its usefulness; that it did not construct its embankment across said creek valley with culverts, openings and bridges as provided by law suitable and sufficient to permit the waters which naturally flowed down Cahokia Creek and the valley to pass through the same in proper, natural and lawful manner; that appellant completely filled up the natural channel of said creek with said railroad embankment and unlawfully changed said natural channel and obstructed the flow of water down said valley until about August 21, 1915, when on account of the improper obstruction of the natural flow of waters down said valley, the culverts, waterways and bridges described in the declaration were washed out and destroyed by a large rain and overflow in said valley; that said embankments, bridges and culverts were afterwards negligently, improperly and unlawfully repaired and restored by appellant and have ever since that time been maintained without sufficient, adequate or lawful openings to permit the flood waters to flow through the same in their natural and proper course; that said embankment of -August, 1916, was not a permanent and lawful structure, and had never been such, and appellee’s right to recover was not for damages or injuries to his land but because said embankment constituted a continuing nuisance on account of its defective and unlawful construction. Appellant’s railroad where it crosses Cahokia Creek Valley runs almost north and south, and the valley, which at this place is approximately 1,300 feet wide from bluff to bluff, runs nearly east and west. The old Madison county railway constructed its railroad across the valley 50 years ago. It was located upon an embankment about 400 feet east of and upstream from appellant’s road and runs practically parallel to the railroad until it approaches the north side of the .valley, when it turns to the northwest and crosses appel-’ lant’s right of way. Appellant used this road under a lease until it built its own road across the valley in 1904 and 1905, since which time the former road has not been used. Appellant’s road is located upon an embankment about 25 feet high, 40 feet wide at the top and 100 feet wide at the bottom and crosses the old Madison county railway overhead, that is, the latter road, passes through appellant’s embankment and beneath its tracks.

Cahokia Creek is a tortuous and meandering stream, and, at the time appellant built its road and embankment, flowed from the east along the bluff on the south side of the valley for several hundred feet west, until it reached appellant’s right of way, where it turned to the north and flowed along the right of way to a point half across the valley, where it turned to the west across the right of way and then flowed to the southwest back to the south bluff, forming practically a half circle or horseshoe. "When appellant first constructed its embankment across the valley, it left three openings for the passage of the water. One about 58 feet wide was over the old Madison county railroad and on the north side of the valley; another was a trestle bridge about 180 feet wide at the top, and 50 feet wide at the ground, over the old channel of the creek near the center of the valley. The third was a steel bridge 66 feet wide, near the south side of the valley. These openings remained until the fall of 1911, when appellant began to fill the opening over the old channel near the center of the valley. By the fall of 1912 or the spring of 1913, the embankment was extended across the creek channel and the curve or half circle in the creek was elimiiiated by the digging of a new channel through the 66-foot opening on the south side of the valley. Three civil engineers testifying for appellant stated that this straightening of the channel enabled the water to flow down the stream more rapidly. One civil engineer testifying for appellee contended that by this change in the channel the water was thrown against a high bluff and the flow thereby retarded. The filling in of the old channel left the embankment across the valley with only two openings; one over the old Madison county railroad, on the north side of the. valley, and the 66-foot opening on the south side of the valley through which the new channel was made to pass. This condition remained until some time between August 17 and 21, 1915, when there was a rainfall in that vicinity of 11.04 inches, and as a result the entire valley was flooded from bluff to bluff to a depth of 17 to 17% feet on the upper side of the embankment and 10 to 11 feet on the lower side, the water reaching an elevation at appellant’s bridge of 466.5 (Memphis datum). On August 21st, the concrete abutments on either side of the 66-foot opening in appellant’s embankment on the south side of the valley were undermined and fell into the creek, and before the water finally subsided about 100 feet more of the embankment at this place were washed away. During the fall of 1915 and the spring of 1916, appellant rebuilt the bridge that was washed away. The new bridge consists of a center span resting upon two concrete piers 112 feet apart, and a 50-foot span at each end. It is 212 feet long on top and the center span is 104 feet in the clear from the top to .the bottom. At either end is a concrete abutment placed in the embankment and the embankment slopes downward towards the concrete piers. When the bridge was rebuilt the concrete abutments from the old bridge which had fallen into the channel were blown np with dynamite and partly removed, but some of the material was allowed to remain.

Appellee’s lands are situated upstream from appellant’s embankment in a northeasterly direction. They are not located on Cahokia Creek but on Burroughs Branch, which flows into Cahokia Creek from the north! It is about one-half mile from the south line of appellee’s land to Cahokia Creek measured along Burroughs Branch and about three-quarters of a mile from the confluence of Burroughs Branch with Cahokia Creek to appellant’s embankment. In August, 1916, from the 12th to the 15th, both inclusive, there was a rainfall in that community of 6.63 inches, and Cahokia Creek Valley was again flooded from bluff to bluff. The water above appellant’s embankment was 7 to 7% feet deep, attaining an elevation of 455.7. No damage was done to appellant’s bridge by this rain but appellee’s lowlands were overflowed, the crops growing thereon were injured and this suit was brought to recover damages. Appellee contends that by reason of the insufficient openings in appellant’s embankment the water was held, retained and backed up Cahokia Creek to the mouth of Burroughs Branch, thereby causing the same to back np and overflow his lands. Appellant contends that the lands of appellee Would have been overflowed whether there was any embankment or not; that appellant was in no way responsible for the injury to his crops and that whatever damage he may have suffered was due to natural causes.

The grounds upon which a reversal of the judgment is asked by counsel for appellant in* their argument are: First, the verdict was against the weight of the evidence; second, it was error to give certain of appellee’s instructions; third, appellant had the right to change the channel upon its own right of way; fourth, the construction complained of was permanent and any damages occasioned thereby occurred when it was. erected, the measure of which was the depreciation in market value; and fifth, appellee’s damages, if any, were due to natural causes. The evidence conclusively' shows that appellee’s crops were damaged by water flooding his lands. It was a question of fact to be determined by the jury whether such overflow was due wholly to such an extraordinary flood as ordinary prudence could not have anticipated, or wholly to the appellant’s defective construction of its bridges and embankments or both causes. (Ohio & M. Ry. Co. v. Thillman, 143 Ill. 127.) In constructing its embankment and bridges across Cahokia Creek Valley, it was appellant’s duty to provide ample outlets for the waters of such floods or freshets as men of ordinary prudence would have foreseen,, but not against'the waters of such extraordinary floods as could not have been reasonably anticipated. What was an extraordinary flood in that particular valley, and whether the rain of August, 1916, was an extraordinary flood, were questions of fact for the jury. (Ohio & M. Ry. Co. v. Thillman, supra.) This suit was brought to recover damages caused by the flood of August, 1916, which the evidence shows was not as large as the flood of August, 1915.' The water in August, 1915, reached an elevation of 466.5 at appellant’s bridge, but in August, 1916, after appellant had rebuilt its bridge, the elevation reached was only 455.70. There is also a notation on the map, introduced in evidence by appellant, showing a water elevation of 457.2 at appellant’s bridge in 1904. H. H. Ferguson, manager of appellant, who had been familiar with Cahokia Creek Valley since 1899, testified that the waters in times of flood had always run up as high as they did in 1916. The doctrine is well established that although a rainfall may be more than ordinary, that is extraordinary, yet if it be such as has occasionally occurred, even though at irregular intervals, it is to be foreseen that

, it will occur again, and it 'is the duty of those changing or obstructing the flow of water to provide against the consequence of such a rainfall. (Ohio & M. Ry. Co. v. Barney, 139 Ill. 9; Chicago, P. & St. L. Ry. Co. v. Beuter, 223 Ill. 387.) While Cahokia Creek in times of ordinary stage of water was confined to a narrow channel, yet in times of heavy rains, prior to the construction of appellant’s embankment, the water frequently extended from bluff to bluff, as clearly established by the evidence. It was as much appellant’s duty to provide for the escape of this ordinary overflow water as for the channel water. As an outlet for both this channel water and overflow water, appellant, when it filled the old channel in 1913, provided only two openings; one at the concrete bridge over the new channel at the south side of the valley, and the other at the right of way of the old Madison, county railroad, on the north side .of the valley. The evidence shows the water would have to reach a depth of 8 or 9 feet in the valley before it would -flow through the north opening.

By returning a verdict for appellee, the jury in effect found that the overflowing of appellee’s lands was caused by appellant’s embankments and its defective construction of outlets, and the facts appear to sustain such findings. Even though the rainfall of August, 1916, had been unprecedented, yet if the act of appellant in constructing its bridges and embankments contributed together with such unprecedented flow of waters, to the flooding of appellee’s lands, appellant would be liable at law for the injury caused thereby. (Ohio & M. Ry. Co. v. Thillman, supra; Voudrie v. Southern Ry. Co., 155 Ill. App. 279.) Under the proofs in the record we would not be justified in disturbing the verdict of the jury.

The instructions complained of raise a more serious question. The most vital objection urged is that they inform the jury appellee is entitled to recover, if the openings through appellant’s embankment were insufficient to properly carry off the rain and flood waters naturally coming down the valley in times of heavy rains and floods and appellee was damaged thereby; and also that they fail to advise the jury ap-' pellant was not bound to provide openings sufficient to care for the waters produced by extraordinary rains or floods. "While not as accurately drawn in this respect as they might have been, yet the instructions in this case, when considered as a whole and read as a series, fairly advise the jury of the law applicable to the case. They should be read in connection with the language of all the instructions, the allegations of the pleadings and the proofs in the case. (Ohio & M. Ry. Co. v. Thillmam, supra.) It was not necessary for each and every instruction expressly to state appellant was not bound to provide sufficient openings for the waters of extraordinary rains or floods. Instructions given for appellant told the jury that the railroad company in constructing its embankment and railroad across the Cahokia Creek Valley, at the place in question, was not required under the law to leave an opening through its embankment over said creek or valley sufficiently large to admit the flow and passage of unusual or extraordinary rains or floods, that is, such rains or floods as would not reasonably be expected or anticipated. Also that although the jury might find from the evidence that appellee sustained the damages claimed in his declaration, yet if they further believed from the evidence that the same resulted solely from an unprecedented rainfall or extraordinary freshet, such as would not reasonably be expected or anticipated by prudent persons, and that such damages would not have resulted but for such unprecedented rainfall or extraordinary freshet, they should find the defendant not guilty. On the part of appellee, the jury were instructed that appellant in building its embankment and constructing the concrete openings was required to provide sufficient openings, not only for waters that naturally name there in times of ordinary rain, but also for drainage of such unusual or extraordinary floods as naturally came there as it should have anticipated would occasionally occur in the future, because they had occasionally occurred after intervals, though of an irregular duration, in the past. Also that even if the rainfall in question was of such extraordinary character and extent as to justify the jury in finding it was unprecedented or that it was an act of God, which appellant was not bound to anticipate or guard against, yet if they further found that appellant constructed its solid embankment entirely across the creek valley and left insufficient openings for the waters naturally coming there in times of heavy rains and floods and that this fact, if such be a fact, in connection with the extraordinary rainfall, produced or caused the damage, if any, to appellee’s crops, then appellant would still be liable for such damage. These instructions when read with the other instructions in the case, and considered in connection with the pleadings and proof, appear to us to have correctly stated the principles of law applicable to the case, and appellant’s objections to the instructions above referred to are not well founded. (Ohio & M. Ry. Co. v. Ramey, supra; Chicago, P. & St. L. Ry. Co. v. Reuter, supra.)

It is especially urged that appellee’s instruction 8 is erroneous because in referring to the embankment the following words are used: “As constructed and as it existed in August, 1915 and 1916.” An examination of the record shows that counsel’s argument in this behalf is based upon a misapprehension of the wording of the instruction, for while the abstract shows the figures “1915” and the word “and” they were crossed out in the record so that the portion objected to reads “as constructed and as it existed in August, 1916.”

While appellant had the right to change the channel of the creek upon its right of way, yet in making such change it had no right to obstruct or in any way interfere with the .flow of water. This doctrine was recognized by the Supreme Court of this State in the early case of Gillham v. Madison County R. Co., 49 Ill. 484, and that decision has since been consistently followed. Appellant’s contention that the embankment was a lawful and permanent construction and that any damages occasioned thereby accrued when it was erected, the measure of which was the depreciation in market ■ value, and for which there could be only one recovery and that within 5 years from the time it was erected, would be well taken if this were a suit to recover damages resulting from the construction of the embankment. The cause of action set forth in the declaration is not for the recovery of damages resulting from the construction of the embankment, but for the recovery of damages resulting from the defective and negligent construction of the embankment by failing to provide sufficient openings for the water, or, in other words, this is a suit to recover damages resulting from an improper construction of the embankment and the openings through the same. This is a cause which the landowner could not have anticipated and could not have recovered for in condemnation proceedings. The principle is well established in this State that “the duty of a railroad company to so construct and maintain its road across a stream as not to injure adjacent land by throwing water back upon it is a continuing one, and each overflow resulting from a neglect of that duty creates a new cause of action for any injury thereby occasioned to the crops and land,” and successive recoveries may be had for successive injuries caused by such negligence. (Ohio &

M. Ry. Co. v. Thillman, supra; Sanitary Dist. of Chicago v. Bay, 199 Ill. 63; Ramey v. Baltimore & O. S. W. R. Co., 235 Ill. 502.) The cause of action set forth in the declaration falls within that class of cases.

. The claim of appellant that the damages sustained by the crops of appellee in the year 1916 were due to natural causes, that is, that they would have happened if the embankment had not been there, does not appear to be borne out by the proofs. The verdict in the case seems to be in harmony with the facts, there was no substantial error committed by the court in the trial and the judgment will be affirmed.

Affirmed.


text:
    Henry F. C. Dettmer, Appellee, v. Illinois Terminal Railroad Company, Appellant.
    (Not to foe reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louts Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied June 22,1918.

      Certiorari denied by Supreme Court (mailing opinion final).
    Statement of the Case.
    Action by Henry F. C. Dettmer, plaintiff, against Hlinois Terminal Railroad Company, defendant, for damages for injury to his crops and fencing by flooding, due to the construction of an embankment over a ' river valley with insufficient openings. From a judgment for plaintiff for $1,125, defendant appeals.
    H. S. Baker, A. M. Fitzgerald and Warhock, Williamsou & Burroughs, for appellant.

      Abstract of the Decision.
    1. Railroads, § 342*—when successive recoveries may be had for successive injuries by overflow of land due to construction of road. The duty of a railroad company to so construct and maintain its road across a stream as not to injure adjacent land by throwing water back upon it is a continuing one, and each overflow resulting from a neglect of that duty creates a new cause of action for any injury thereby occasioned to the crops and land, and successive recoveries may be had for successive injuries caused by such negligence.
    2. ■ Railroads, § 330*—what is duty of as to outlets for floods through embankment. It is the duty of a railroad company, in constructing an embankment and bridges for its right of way over a river valley, to provide ample outlets for the waters of such floods or freshets as men of ordinary prudence could have foreseen, but not against the waters of such extraordinary floods as could not have been reasonably anticipated.
    3. Railroads, § 349*—what are questions for jury in action hgainst railroad for injury to crops because of flooding of land. The questions as to what was an extraordinary flood in a particular river valley and whether the rain which caused injury to the crops of a person near a railroad embankment across the valley was an extraordinary flood, were questions for the jury, in an action against the railroad company for injury to plaintiff’s crops because of insufficient outlets in the embankment.
    4. Railroads, § 330

      —when duty of railroad obstructing flow of voater to provide against extraordinary rainfall. Although a rainfall may be extraordinary, yet if it be such as has occasionally occurred, even though at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of a railroad company which changes the course of a river or obstructs the flow of water by changes in the embankment across a river valley to provide against the consequence of such a rainfall.
    5. Railroads, § 334*—when railroad constructing embankment over river valley liable for injury to crops by flood. Even though the rainfall of a particular year is unprecedented, yet if the act of the railroad company in constructing an embankment over the river valley and its bridges contributed together with an unprecedented flow of waters in the river to the flooding of the land and injury to the crops of one near the river valley and embankment, the railroad company would be liable for the injury caused thereby.

      Burton & Burton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, iuui Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

6. Railroads, § 350*—when damage to crops by flood shown. In an action by the owner of certain land against a railroad company to recover damages for injury to crops because of the overflowing of his land, alleged to be due to the construction of a railroad embankment across a river valley without leaving sufficient outlets, evidence held sufficient to show that plaintiffs crops were damaged by water flooding his lands.

7. Railroads, § 349*—what is question for jury in action to recover for damage to crops because of flooding of land. In an action by the owner of bottom land to recover damages for injury to his crops by overflow, alleged to be due to the construction of a railroad embankment by defendant across a river valley without leaving sufficient outlets, it was a question of fact for the jury whether such overflow was due wholly to such extraordinary floods as ordinary prudence could not have anticipated, or wholly to defendant’s negligence in failing to provide sufficient outlets, or to both such causes.

8. Railroads, § 328*—what is duty as to providing outlets in embankment for extraordinary overflow water. It is as much the duty of a railroad company to provide outlets in its embankment over a river valley for extraordinary overflow water as for ordinary channel water.

9. Railroads, § 350*—when not shown that damage to crops was caused solely by unusual rainfall which could not have been anticipated. In an action by the owner of bottom land against a railroad company to recover damages for injury to crops and fencing, alleged to be due to the failure of defendant to provide adequate outlets in its embankment on its right of way across a river valley, evidence held not to show that the damage resulting from either of two rains was caused solely by such unprecedented rainfall as could not have been reasonably anticipated.

10. Railroads, § 315 —what are rights of railroad as to change of channel of stream. Although a railroad company which has constructed an embankment on its right of way across a river valley has the right to change the channel of the river upon its right of way by straightening it out, yet in making such change it has no right to obstruct or in any way interfere with the flow of water.

11. Instructions, § 159*—consideration as a series. Any inaccuracy in a particular instruction cannot be complained of where all the instructions, when considered together with the allegations of the pleadings and proofs in the ease, fairly state the law.

12. Instructions, § 158*—how must be considered. Instructions must be considered in the light of the pleadings and proofs.

13. Railroads, § 352*—when instructions in action for injury to crops because of overflowing of land are correct. In an action by the owner of lan.d to recover damages for injury to crops and fencing because of the overflowing of his land, due to the construction of a railroad embankment with insufficient outlets, held that the instructions, considered as a series, fairly stated the law» applicable to the case.

14. Railroads, § 330*—what rainfalls railroad company constructing embankment over river should provide for. A railroad company constructing a railroad embankment and bridges over a river valley should so construct them as to provide not only against ordinary rainfalls, but for the escape of the water of such unusual and extraordinary floods as it should anticipate will occasionally occur in the future, because they have occasionally occurred after intervals, thqugh of irregular duration, in the past.

15. Railroads, §. 353 —when damages for injury to crops and fencing by overflow not excessive. In an action- by the owner of land against a railroad company to recover damages for injury to crops and fencing by overflow, due to insufficient outlets in defendant’s embankment across a river valley, held that a verdict for $1,125 was not excessive.


text:
    Mabel M. Link, Administratrix, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Death, § 50b

      —what must be shown in action for negligent. In an action for negligent death, the plaintiff must prove affirmatively that the injured person was in the exercise of ordinary care for his own safety at and immediately prior to the time of the injury, and it is not sufficient for the plaintiff to prove simply that the death was due to the negligence of the defendant.

      Appeal from the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Mabel M. Link, administratrix of the estate of George L. Link, plaintiff, against Alton, Granite & St. Lonis Traction Company and East St. Lonis & Suburban Railway Company, defendants, to recover for the death of George L. Link, due to the collision of one of the interurban cars operated by defendant Alton, Granite & St. Lonis Traction Company with the buggy which plaintiff’s decedent was driving. On the trial of the case the action was dismissed generally as to the East St. Lonis & Suburban Railway Company. From a judgment for plaintiff for $5,000 against it, defendant Alton, Granite & St. Lonis Traction Company appeals.
    Williamson, Burroughs & Ryder, for appellant.
    Geers & Geers, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number. ‘

   Mr. Justice Higbee

delivered the opinion of the court.

2. Interurban railroads, § 4*—What care required of one approaching interurhan railroad crossing. It is the duty of one approaching in a buggy an interurban railroad crossing, where he has to cross four other tracks running parallel to it before reaching it, to exercise the care and caution commensurate with the known danger.

3. Interurban railroads, § 4*—when exerpise of care by driver of buggy in approaching crossing not shown. In an action against an interurban railroad to recover for the death of the driver of a buggy, due to a collision at a crossing, where the only eyewitnesses of the accident were the conductor and ihotorman and a person coming up the track in the opposite direction to that in which the car was going, and they all testified that deceased was driving, that both he and his companion had their heads down, and were not looking in any direction or making any efforts to ascertain whether or not any car or train was approaching from either direction, and the pedestrian testified that as he came near he shouted a warning of the approach of the train to which they paid no attention, and it further appeared that it was necessary to cross four parallel tracks in close proximity in approaching the interurban track, evidence held to show that deceased did not exercise due care for his own safety.

4. Appeal and error, § 1410*—when judgment reversed because verdict against manifest weight of evidence. In an action against an interurban railroad to recover for the death of a person, due to a collision between a buggy which deceased was driving and one of defendant’s cars, held that the verdict for plaintiff was so against the manifest weight of the evidence as to warrant a reversal of the case.

5. Appeal and error, § 1410*—when verdict not sustained because against manifest weight of evidence. While ordinarily the yerdicts of juries who have seen the witnesses upon the stand and heard them testify will not be disturbed, yet where such verdicts are against the manifest weight of the evidence, it is the duty of the Appellate Court to set them aside.

6. Interurban railroads, § 4 —when failure to give proper warning in approaching crossing and excessive speed not shown. In an action against an interurban railroad company to recover for the death of one driving a buggy as the result of a collision with one of defendant’s cars at a crossing, evidence held sufficient to show the giving of warning signals on approaching the crossing and that the speed of the train was not excessive.


text:
    Henry Fitzgerald, Appellee, v. W. H. Neville et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 105

      —when instruction on right of recovery by contractor is erroneous. In an action by a contractor on a building and construction contract against the owner to recover an alleged balance which defendants were retaining because of alleged defective brick used in the walls of the building, an instruction that if defendants took over and had used the building the plaintiff would be entitled to pay for their services at their reasonable worth, even though the building did not comply with the contract in any degree whatever, was erroneous as stating the law incorrectly and as being inapplicable to the facts, where it appeared from the evidence that defendants, although taking over and using the building, claimed damages for inferior brick used and retained the amount claimed as damages out of the contract price.

      Appeal from the Circuit Court of Massac county; the Hon. Robert T. Cook, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Henry Fitzgerald, plaintiff, against W. H. Neville and others, defendants, to recover a balance claimed to be due on a contract for extending and enlarging defendants ’ brick garage. From a judgment for plaintiff for $106.57, defendants appeal.
    W. L. Krone, for appellants.
    Fred R. Young, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois.Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. x

   Mr. Justice Higbee

delivered the opinion of the court.

2. Building and construction contracts, § 35*—when owners may recoup damages for defective work. The taking ■ over and using of a building which is defectively constructed by the owners does not constitute an acceptance in full discharge of the contract which will prevent the recouping, in an action by the contractors on the contract, of damages suffered from the use of defective material, where they claim damages for defective work and retain such damages out of the contract price.

3. Building and construction contracts, § 105*—when instruction on measure of damages in action by contractor to recover balance due is erroneous. In an action by a contractor against the owners of a building to recover a balance due on the contract, which defendants were retaining as damages because of defective brickwork, an instruction that if plaintiff “performed the contract, or substantially performed it, he would have a right to recover the contract price therefor, less any payments made in reduction of the contract price,” was erroneous, since the owners would he entitled to a reduction for the expense of making the work conform to the contract, or, if that could not be done, to a deduction of a sufficient amount to pay for damages sustained as the result of noncompliance with the contract.

4. Building and construction contracts, § 105*—when instruction on right of recovery of balance of contract price is improperly refused. In an action by contractors to recover an alleged balance on a building and construction contract, which the owners were retaining because of alleged defective brickwork, an instruction that plaintiff could not recover under the declaration unless he proved by a preponderance of evidence in the case a contract fully or substantially performed on his part, was improperly refused.


text:
    Garret Wilkins, Appellee, v. Madison Coal Corporation, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Mines and minerals, § 176

      —when not shown that roof of mine •was not safe when examined ~by mine examiner. In an action by a miner to recover for personal injuries sustained, due to the fall of a piece of slate from the roof of a crosscut in defendant’s mine, in which plaintiff and his buddy were engaged in. running a coal undercutting machine, evidence held to show that the roof was not in a dangerous condition at the time the mine examiner examined it, eight hours before the occurrence of the accident.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. G-illham, Judge,,presiding.
    Heard in this court at the October term,' 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Garret Wilkins, plaintiff, against Madison Coal Corporation* defendant, to recover damages for personal injuries-sustained on account of the fall of coal from the roof of a crosscut while plaintiff and his buddy were engaged in running a machine in undercutting coal in defendant’s mine. From a judgment for plaintiff for $1,275, defendant appeals.
    For the abstract of the decision of the court on a former appeal, see 188 Ill. App. 416.
    Burton & Burton, for appellant; John G. Drennan, of counsel.
    T. M. Webb, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Francis Kirsch, Appellant, v. East St. Louis & Suburban Railway Company, Appellee.
    1. Cabecees—duty to carry passenger to destination in one continuous passage. When one pays a fare to an interurban company running between two cities, a contractual relation is created, and it is the duty of the carrier to convey him to his destination in one continuous passage.
    2. Carriers—when passenger on interurban car not refused continuous passage to destination. A passenger on an interurban car running over a river between two cities is not refused a continuous passage to the terminal city, where, owing to the “bunching” of three cars, because of an accident, in the city in which passage is taken, the conductor announces, after the car has gone some distance, in obedience to an order of the superintendent given to relieve the congestion and to facilitate travel, that it will go no further and requests the passenger to take a transfer and get on the car following in close proximity, which he refuses to do, and remains on the car until it rounds a loop and starts on its return trip.
    Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding.
    Heard in this court at' the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Edgar P. Holly, for appellant.
    Barthel, Farmer & Klingel, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee, East St. Louis & Suburban Railway Company, operates a system of street and interurban railways in the City of East St. Louis and territory adjacent thereto. Over one of its lines it runs through cars between the City of Belleville, Illinois and the City of St. Louis, Missouri. These cars enter East St. Louis at its eastern limits and go westward on State street to Tenth street, southward on Tenth street to Missouri avenue, westward on Missouri avenue to Collinsville avenue, southward on Collinsville avenue to Broadway and then westward on Broadway to St. Louis via Eads bridge. Whenever due to accident or delay the cars would become bunched or-grouped together,-appellee’s superintendent of transportation would respace the cars and restore them to schedule time by ordering one or more of them turned back before reaching its regular terminus. One of the places where St. Louis bound cars which had become bunched were turned back was known as the “loop” in East St. Louis. This loop was made by the car on its arrival at Collinsville avenue continuing westward one block on Missouri avenue to Third street, southward on Third street to Broadway, eastward on Broadway to Collinsville avenue, and northward on Collinsville avenue, back to the intersection on Missouri avenue. The fare on all of appellee’s lines between points in East St. Louis was five cents, but the fare from points in East St. Louis to St. Louis was ten cents. This extra charge of five cents was strictly a bridge fare. All St. Louis passengers upon payment of their ten-cent fare were given a bridge ticket, good for the entire day on which it was issued. If a passenger had occasion to change cars before reaching the bridge he was given a transfer, which together with this bridge ticket would take him over the bridge without additional charge.

On the evening of February 26, 1917, appellant boarded one of .appellee’s cars on State street in East St. Louis. Upon informing the conductor he wanted to go to St. Louis and paying his fare of ten cents, he was given a bridge ticket. On account of an accident, three of appellee’s St. Louis bound ears had become bunched and were traveling close together. Appellant boarded the middle one of these cars. The conductor of this particular car bad received orders to turn at the loop, before appellant became a passenger, but did not so inform appellant or the other passengers untj.1 the car reached the beginning of the loop at Collinsville' avenue. At this point the conductor announced that the car would not go to St. Louis and requested all St. Louis passengers including appellant to take a transfer from him and board the Belle-ville-St. Louis car which was following. This appellant refused to do and insisted upon being carried to St. Louis on the car which he had originally boarded.

The conductor and the acting road supervisor, who was on the car, tried again to persuade him to take a transfer when the car reached Third street, but he again refused. At this point the other St. Louis bound car was within 25 or 30 feet. He, remained on the car until it had rounded the loop on its Way back to Belle-ville, and then got off without accepting a transfer.

Appellant brought this suit to recover damages for appellee’s alleged breach of duty to carry him to St. Louis in one continuous passage. The declaration consists of two counts, in both of which the gravamen of the action consists of the alleged failure of appellee to carry appellant to St. Louis in one continuous passage. Appellee pleaded the general issue. At the close of all the evidence the court, on motion of appellee, peremptorily instructed the jury to find it not guilty. Judgment was entered on the verdict, and from this judgment the plaintiff below appeals.

The facts in this case are undisputed. Therefore, if under the law applicable to these facts, appellee cannot be held liable to appellant, then the trial court committed no error by instructing the jury to find for the former. When appellant paid his fare a contractual relation between him and appellee was created, and it became appellee’s duty to convey him to his destination in one continuous passage. We do not understand however that the words “one continuous passage” have ever been held to mean without any

delay or without any change of cars or trains. The case of Churchill v. Chicago & A. R. Co., 67 Ill. 390. relied upon by appellant, does not so hold. The. only question presented in that case was whether a person has a right to ride on a stop-over ticket after the expiration of the time limited therein. What was said by the court with reference to a passenger’s right to be carried in one continuous passage was not necessary to a decision of that question. From the language there used we do not understand the court intended to lay down the doctrine that a passenger has the right to be carried without change of cars, but that he has a right to be carried without unreasonable delay. “The words ‘continuous passage’ in a ticket have been held to mean the continuous passage of the person to whom the ticket was, issued, and not that of the train; they do not import that he shall be carried without any stop or change of cars.” (10 Corpus Juris 808.) None of the authorities referred to by counsel or which we have consulted appear to go to the extent of holding a carrier must run the same train or car upon which he enters on his journey through to the passenger’s destination, but rather that it must carry him, to his destination without unreasonable delay. Appellant was offered a transfer to another of appellee’s cars, which was within 25 or 30 feet, and which would have carried him to St. Louis without any appreciable delay.

The case of Dryden v. St. Louis Transit Co., 120 Mo. App. 424, was similar in nearly every detail to the one at bar. In that case plaintiff entered a car of the defendant street car company at Twelfth and Market streets in the City of St. Louis, Missouri, intending to go to Broadway and Lucas avenue. When the car reached Broadway and Olive street the conductor informed the passengers that the car would not go further on Broadway, but would proceed east on Olive street and thence by several other streets proceed on its trip to the southwestern part of the city and requested the passengers to take a car following in close proximity, which was going to Broadway and Lucas avenue. “The plaintiff refused to change cars. The conductor asked him to take a transfer and board the next car, which he refused to do. The plaintiff was not informed that he would not be carried to his destination until the car reached Broadway, and stated that if he had known the car was not going to his place of destination before he boarded it he would have waited and taken another car; that his fare of five cents was not tendered back to him. The evidence on the part of defendant showed that there had been a delay of 15 minutes, caused by a ‘jammed switch,’ resulting in a blockade and disarrangement of the spacing of the cars on this line. The superintendent of the line testified that in order to restore the proper spacing of the cars, and to make up the time lost by the car, caused by the blockade, he ordered the conductor . to make the loop at Fourth and Pine streets instead of Broadway and Lucas.” There were two counts in that declaration, the first of which charged a breach of the contract to carry plaintiff to his destination and the second alleged a violation of the terms of an ordinance of the city which provided, in effect, that cars should not be turned from their established routing except in case of unavoidable accident or when about to be turned in according to schedule at a car shed. In passing upon the plaintiff’s right to recover under the first count, the court said: ‘ ‘ That there was no substantial breach of defendant’s contract to carry plaintiff to his destination, we think is clearly shown by plaintiff’s own evidence. At Broadway, the plaintiff was offered a transfer to another of defendant’s cars (at hand) to carry him to his destination, four blocks north of where he was. The mere inconvenience to plaintiff in getting off one car to take passage on another to be carried immediately to his destination was not an actionable breach of defendant’s contract to carry him.” And in relation to the count upon the ordinance the court held there was no violation of •the terms of the ordinance, saying: “As shown by the evidence, it was necessary to turn the car on which plaintiff was a passenger from its regular route, for the purpose of making up time that had been unavoidably lost, to restore it to its schedule time, and to give it the usual space ahead of the car that was following. We think this was not only a reasonable diversion, but a necessary one, for the accommodation of the traveling public.” We have quoted from this case somewhat at length not only because it was so similar to the case we have before us but also for the reason the views expressed by the court in the opinion filed therein correspond with our construction of the law governing this case.

A car had been derailed on this line earlier in the evening and the traffic delayed. The car upon which appellant was a passenger had been ordered to turn back for the purpose of making up the time-which had been thus unavoidably lost, and this was done for the accommodation of the traveling public. Appellant was not appreciably delayed or inconvenienced nor was he subjected to any indignity. The technical right to be carried through to his destination without delay and without change of cars upon which appellant insists must give way to the practical necessity of operating the car line for the benefit and convenience of the public at large, and where, as in this case, a passenger who was required to change cars before reaching his destination, has incurred no appreciable delay or inconvenience, he has suffered no damages for which he should be permitted to recover a judgment against the carrying company.

The court below properly instructed the jury to find a verdict in favor of appellee and the judgment against appellant based thereon is affirmed.

Affirmed.


text:
    Dorothy L. Boss, by J. R. Boss, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Railroads and bridges, § 21

      —when presumed that way over railroad was used as public street. Proof that a way over a railroad in a city was platted as a street; that although the crossing was not planked as other streets for the use of teams and vehicles, it had been in constant use for 40 years by persons traveling across the railroad at such point and occasionally by vehicles; that it was recognized as a street by the city by the enactment of an ordinance requiring a watchman at such point, and that the railroad maintained a watchman there for a number of years but the practice had been discontinued prior to the injury to plaintiff—a child, who used the way in going to and from school—by one of defendant’s trains, raised a presumption that, the way was a public street.
    2. Railroads, § 703*—when violation of speed ordinances creates prima facie ease of negligence. Proof that a railroad train is run at a rate of speed in violation of city ordinances, when it strikes a 6-year-old child at a point used in crossing the tracks by the public for such a period as to raise the presumption that it is a public street, creates a prima facie case of negligence, if such violation caused the injury.
    3. Railroads, § 750*—when question for fury whether violation of speed ordinances in operation of train caused injury to plaintiff. In an action against a railroad company to recover for the negligent injury of a child at a place used as a crossing and claimed to be a public street, held that it was a question for the jury whether the violation of speed ordinances caused the injury to plaintiff.
    Error to the Circuit Court of Effingham county; the Hon. William B. Wright, Judge, presiding.
    Heard in this court at the

      October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    A. H. Bares, for plaintiff in error; Harry F. Brewer, of counsel.
    Edward C. Craig, Dorald B. Craig and Parker & Biokelmar, for defendant in error; Johh Gr. Drerrar, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

At the close of the plaintiff’s evidence the court directed the jury to return a verdict for the defendant, which was accordingly done and judgment rendered against the plaintiff for costs, which the plaintiff1 seeks to set aside by this writ of error.

The declaration charges in the first and second counts that the defendant’s railroad was maintained and operated across a certain public street and highway in the City of Effingham known as Planters avenue, and that while the plaintiff, who was an infant of the age of, to wit, 6 years, was walking along upon said street at the intersection of said railroad in the exercise of due care for her own safety, the defendant carelessly, negligently and improperly managed and operated a certain locomotive engine on said railroad track and by reason of such careless, negligent and improper conduct then and there struck the plaintiff with great force and violence and injured her, etc.

By the third count it is charged that the defendant negligently operated its said locomotive at a high and dangerous rate of speed, to wit, of the speed of 30 miles per hour.

By the fourth count it is charged that the defendant operated said locomotive engine without ringing any bell or sounding any whistle or giving any warning or notice of its approach.

The negligence charged in the fifth count is that the defendant negligently failed to keep and maintain a flagman at the crossing of said railroad tracks on said Planters avenue, or to keep and maintain crossbars or gates to guard the approach of said railroad tracks upon either side thereof upon said street, as required by the ordinance of the City of Effingham.

By the sixth count it is charged that the defendant operated its train across the said street at a greater rate of speed than 6 miles per hour, to wit, at a speed of 30 miles per hour, contrary to the provisions of an ordinance of the City of Effingham.

By the seventh count it is charged that the defendant operated its locomotive without ringing a bell or sounding a whistle before reaching said Planters avenue as required by statute.

By the eighth count it is charged that the defendant was operating its locomotive at a higher rate of speed than was permitted by the ordinances of the City of Effingham over and across said Planters avenue.

By the ninth count it is charged that the defendant wilfully and wantonly, and with gross disregard of the safety of the plaintiff, operated its locomotive engine across the public street and highway of the City of .Effingham known as Planters avenue.

By the additional count it is charged that the defendant operated its locomotive across the public street known as Planters avenue, and failed and neglected to keep a flagman at the said crossing, contrary to the provisions of the ordinances of the City of Effingham, which ordinances are set out in full.

A further additional count was filed alleging that the plaintiff was walking upon and across the tracks of the defendant at a place where children living on the west side of the tracks and right of way of defendant attended the public schools, and that divers other persons crossed said tracks at morning, noon and night at a place where defendant had permitted children and divers other persons to pass across said tracks for a period of upwards of 20 years; that while the plaintiff was crossing the said track the defendant operated its locomotive recklessly, wilfully, wantonly and at a great and dangerous rate of speed.

Each of said counts concluded with the declaration that by the reason of the negligent” acts so alleged the defendant struck and injured the plaintiff while she was in the exercise of due care for her own safety for one of her age and experience.

The plaintiff in error, hereinafter called plaintiff, contends that the court erred in directing a verdict for the defendant because the evidence fairly tends to prove negligence upon the part of the defendant. The defendant in error, hereinafter called defendant, insists that the court was justified in its action because it appears that the plaintiff was a trespasser and was not injured while crossing defendant’s railroad at a public street or highway, and that it was not guilty of wanton and wilful injury of the child.

The principal question in dispute and the only one that we deem it necessary to consider is, “Did the evidence fairly tend to prove that the place at which plaintiff was injured was a public street in the City of Effingham?” If so, then the plaintiff was not a trespasser and the evidence submitted fairly tended to prove the defendant’s negligence, and the question of defendant’s liability should have been submitted to the jury to determine. Plaintiff was injured on what some of her witnesses called Planters street, or Planters avenue. It appears that this part of Effing-ham was laid out by Andrew J. G-alloway in September, 1855; that a plat with certificate attached was made by him, on which is shown Kentucky avenue, Virginia avenue and Planters avenue, together with other streets and avenues. All are shown alike upon the plat. It appears from the testimony of several witnesses that Kentucky, Virginia and Eailroad avenues were planked where they crossed defendant’s railroad. It further appears that Planters avenue had not been planked for the use of teams and vehicles, but it does appear that it had been in constant use by persons traveling from that part of the street east of the railroad to that part west of it and vice versa for 40 years last past, and that it was known as Planters avenue. A cinder walk for the convenience of foot passengers had been made upon each side of the railroad track and used by such persons as desired to pass that way to cross the tracks. Occasionally teams and persons on horseback crossed over the tracks at this place, but it was not a good crossing for vehicles. The place at which the injury occurred was recognized by the city authorities, the public and, we think, by the defendant as one of the streets of the City of Effingham and as a street crossing of the defendant’s railroad. On March 29, 1902, and again in 1909, the City Council of the City of Effingham passed an ordinance requiring defendant to place a flagman or erect gates at the crossing of its road of Fayette avenue, Eailroad avenue and Planters avenue. Building lots were laid out and houses erected fronting on Planters avenue upon both sides of defendant’s railroad, except as to the fractional blocks adjoining the railroad right of way. At the timé that the City of Effingham passed an ordinance requiring flagmen to be placed upon the several streets, gates were erected at Eailroad avenue and Kentucky avenue and a tower was erected upon the south side of Planters avenue, and the evidence tends to show that for several years a watchman was kept at Planters avenue who directed the children or persons attempting to cross the railroad track on said avenue and advised them when to stop and when to pass over; but the evidence shows that this watchman had not been kept at the crossing for several years prior to the injury of plaintiff. The defendant strenuously insists that this evidence, with all reasonable inference that might be drawn therefrom, does not tend to show this to be a public highway but only tends to prove that individuals cross the track from time to time without any right, and that its use was not of the character necessary to make it a public crossing. Counsel for defendant insists that the case of James v. Illinois Cent. R. Co., 195 Ill. 327, is conclusive of the case at bar, but we do not regard this case as at all parallel. As- we read the James case, supra, the Woodlawn avenue referred to ran parallel with and over the railroad, and that the injured in that case was traveling parallel with the road, and the court says: “The place where the injury occurred is a mesh of railroad tracks.” And it also appears that several roads at or near this point crossed the defendant’s road, and the court, in describing the location, further says: “At the place she was, there is no evidence showing that there was any walk or crossing over the tracks, nor is any reason shown why she sought or attempted to cross at that particular place.” This case is wholly different, as here it had been recognized by the public authorities and the defendant at times as a public crossing. Houses were built fronting upon this street on both sides of the railroad. A cinder walk had been made, by some one, extending almost, if not entirely, across the railroad tracks and was in constant use every day by travelers in the City of Effingham and was a connecting link between the street east and the one west of the railroad. It is also contended that the mere use of a crossing for 15 years or more is not sufficient to create a prescriptive right, and authorities are cited to sustain this proposition, which, standing alone and under some conditions, would be correct, but where it is a connecting link between two streets and used for the purpose of facilitating the travel upon the two ends of the street and has been continuously used in this manner for 40 years, we think that the rule would be wholly different. At least it will raise a presumption that it is a public crossing and calls upon the defendant to explain and show some reason why'such use under such circumstances does not constitute a prescriptive right. In the case of Thorworth v. Scheets, 269 Ill. 580, the court, in that opinion, says: “Where the use of a way has continued for the period prescribed by statute or for the period designated by the common law, the authorities usually hold that a right by prescription rests upon the presumption that the way has been laid out theretofore by competent authority. * * * In City of Chicago v. Borden, 190 Ill. 430, this court quoted with approval the rule that the public use of land for the period of 20 years as a highway, unexplained, will raise the presumption, without any positive agreement from the landowner, that it was done with his acquiescence, adversely and under a claim of right; and this is the general rule. After an uninterrupted use for the requisite period of enjoyment the owner of the land has the burden of proving that the use of the land was under some license, indulgence or special contract inconsistent with a claim of right by the other party.” The evidence certainly tends to show that the place in question was used by the public and the railroad jointly, and so far as we can see there is nothing that shows a superior right of the railroad company over the public to use this place, and when it was shown that the locus in quo was openly used jointly by the railroad and the public, then it certainly devolved upon the defendant to show that it had a superior right. Chicago & A. R. Co. v. O’Neil, 172 Ill. 527.

Many authorities have been cited by counsel for defendant to the effect that the mere use of a place across its track for the requisite number of years would not give a prescriptive right. We have examined many of these cases and find that in most of them they were at places not in any manner connected with the street or highway crossing the railroad, or were where injuries occurred to persons traveling longitudinally on the railroad, or were under such other conditions or circumstances as would not reasonably induce a belief that they were at a public crossing. The Supreme Court, in the case of the Village of Peotone v. Illinois Cent. R. Co., 224 Ill. 101, says:. “It cannot be seriously contended that, so far as the public was concerned, it was not claiming to be exercising a right in traveling over this road as a highway. The manner and extent of the use, the expenditure of public moneys thereon and the building of the town with reference thereto, all conclusively show that the public regarded it as a public highway. ’ ’ The Supreme Court in the case of Union Stock Yards & Transit Co. v. Karlik, 170 Ill. 403, 407, says: “It has never been held that the introduction of a plat or other documentary evidence that a street has been legally laid out and opened, or that it has been established by dedication or prescription, is necessary. Any proof which tends to show that it is used and called or recognized as a public street is competent. * * * Generally it is sufficient to prove that the injury occurred on a certain street by name, as ‘State street,’ ‘Clark street,’ etc.” And in the same case, the Supreme Court, later on in summing up the effect of the testimony of tlie witnesses that the accident occurred on a particular street, says: “In this case we think the statements of these witnesses that the accident occurred on Loomis street are competent testimony tending to show that the locus in quo was in a public street, and that the cross-examination of the witnesses did not have the effect to entirely destroy the tendency of their statements.” Whatever the result .may be upon a final hearing as to whether or not this was a public crossing, the evidence introduced, with its reasonable intendments, certainly was sufficient to require the defendant to show that after an uninterrupted use of this crossing for 40 years it was so used under some license, indulgence or special contract, inconsistent with the claim of right of the public. As we understand the contentions of the appellee, it is not seriously insisted that if this was a public crossing it was not guilty of such negligence as would require a submission to the jury, but, even if it did so contend, the evidence tends to show, that the train was being run at a rate of speed in violation of the ordinances of the city and this of itself would create a prima facie case of negligence, if such violation caused the injury to the appellant, and this was a question of fact that should have been submitted to the jury. United States Brewing Co. v. Stoltenberg, 211 Ill. 531.

After a careful examination of this record we are of the opinion that the trial court erred in directing a verdict for the defendant, and the judgment of the lower court will be reversed and the cause remanded for a further trial consistent with the findings herein.

Reversed and remanded.


text:
    Audrey Austin, by Lora Austin, Appellee, v. Nell Bass and James C. Harris, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. W. O. Potter, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Audrey Austin, a minor, by her next friend, Lora Austin, plaintiff, against Nell Bass and James C. Harris, defendants, under section 9 of the Dramshop Act (J. & A. 4609), to recover damages for the death of plaintiff’s father, alleged to have been caused by intoxication produced by intoxicating liquors sold and given him by defendant Bass in a dramshop operated by her in premises leased from defendant Harris. It appeared that plaintiff’s father became intoxicated while drinking in such dramshop with defendant Bass, who also became intoxicated, and that she shot and killed him. From a judgment for plaintiff for $1,750, defendants appeal. The same state of facts is involved as in Austin v. Bass, 206 Ill. App. 435, which decision controls the case at bar.
    Abstract of the Decision.
    1. Intoxicating liquors, § 189* — when landlord and saloon Keeper not liable for death of intoxicated person Killed by intoxicated saloon Keeper. In an action under section 9 of the Dram-shop Act (J. & A. f 4609) to recover damages for the death of a parent alleged to have been caused by intoxication produced by intoxicating liquors purchased in the saloon operated by one defendant in a building leased from the other defendant, there can be no recovery where the death was caused by the saloon keeper, while intoxicated, shooting and killing such parent, even though the latter was also intoxicated at the time from drinking liquor sold and given him by the saloon keeper.
    2. Intoxicating liquors, § 240

       — when awarding of exemplary damages proper in action under section 9 of Dramshop Act. To recover exemplary damages in an action under section 9 of the Dramshop Act (J. & A. f 4609), it must be shown that the sale was made under aggravating circumstances on the part of the parties selling, or was wantonly or wilfully made.
    3. Intoxicating liquors, § 250* — when instruction on exemplary damages in action under section 9 of Dramshop Act is erroneous. In an action under section 9 of the Dramshop Act (J. & A. If 4609), it is error to give an instruction telling the jury that exemplary damages may be recovered by merely proving that intoxicating liquors were sold to one who became intoxicated therefrom, if the person suing was thereby injured in his means of support, without also advising them when exemplary damages may be found and ignoring the requirement that the proof show a sale under aggravating circumstances on the part of the seller or that he acted wantonly or wilfully in making it.
    Denison & Spiller, for appellants.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.