text:
    People ex rel. Jessie Spalding Walker v. Aurora, Elgin & Chicago Railway Company.
    Gen. No. 13,811.
    1. Fbanchises—ordinances as to stopping of trains construed. Held, that the several ordinances in question in this case, construed together, did not impose upon the respondent company any obligation to make regular stops at the points named in the petition for mandamus.

    2. Mandamus—who cannot maintain, to obtain construction of franchise ordinance. A private citizen without legal, property or personal interest cannot maintain mandamus to settle some doubtful question arising upon the face of a franchise ordinance. People v. Suburban R. R. Co., 178 Ill. 508, explained.
    MAndamus. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    Taylor & Martin, for plaintiff in error.
    Hopkins, Peppers & Hopkins, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

Jessie Spalding Walker of Chicago filed a petition in the Circuit Court of Cook county on May 24, 1906, praying for a writ of mandamus directed to the Aurora, Elgin and Chicago Railway Company, commanding it to stop all its passenger trains at Austin boulevard (the western limit of the city of Chicago) and at Central avenue (one-half mile east of Austin boulevard).

The petition avers that said Walker is a resident of Chicago, and the Aurora, Elgin and Chicago Bail-way, a corporation organized under the law of Illinois relating to the organization of railroad companies, that has been engaged since before February 23, 1905, in operating an electric road through parts of Kane, DuPage and Cook counties. It also avers that the Metropolitan West Side Elevated Bailroad Company is a corporation organized under the same law, and that for many years before Februry 23, 1905, it had been engaged in operating an elevated railroad in the city of Chicago.

The petition sets up two ordinances of the city of Chicago in full. We note them in chronological order, which is reversed in the petition.

The first is an ordinance passed by the city council of Chicago March 18,1901. The ordinance licenses the construction and operation of a railroad by the Metropolitan West Side Elevated Bailway Company, its successors, assigns or lessees, “commencing at the present western boundary line of the city of Chicago in Austin boulevard (Sixtieth avenue) and running thence easterly between the south line of Harrison street on the north and the center line of the right of way of the Chicago Terminal Transfer Bailroad Company on the south, etc., * * * to the east line of South Fifty-second avenue in said city, with the right to connect the tracks authorized with its railroad tracks theretofore authorized by ordinance to be laid. ’ ’

Section 6 of this ordinance provides that “The said railway company, its successors, assigns or lessees, shall construct, and at all times during the continuation of this ordinance shall maintain, stations for the accommodation of passengers at Central avenue and at Austin boulevard, at which all trains shall stop to take on or let off passengers.”

This ordinance, the petition avers, was duly accepted by the Metropolitan West Side Elevated Eailway Company.

The second ordinance was passed by the city council of Chicago on February 23, 1905. This ordinance provides in its first section that:

“In consideration of the acceptance hereof and the undertaking by the Metropolitan West Side Elevated Eailway Company, its successors, assigns and lessees, to comply with the provisions, conditions and requirements herein contained, permission and authority are hereby granted and given to said Company, its successors and assigns, by contract with the Aurora, Elgin and Chicago Eailway Company, to permit such Company to operate its cars or trains for transportation of passengers, mails and newspapers over the lines of road of said Metropolitan West Side Elevated Eailway Company, its successors and assigns, Provided, however, that such cars and trains while on the road of the said Metropolitan Company shall not perform a local service and shall be under the control and management of said Company.”

The second section provides that:

“The permission and authority hereby granted to said Metropolitan West Side Elevated Eailway Company, its successors, assigns and lessees, are upon the express condition that said Metropolitan Company shall daily operate a sufficient number of cars to meet the demands of public traffic between 52nd Avenue and Austin Boulevard at an interval of every fifteen minutes during the period from 6 a. m. to 8 p. m.,” etc.

The third section makes a condition in similar terms, that within two years the said Metropolitan Company will maintain a service with not more than fifteen minutes between trains between its Fifth Avenue terminal and the city limits (i e., Austin boulevard or North Sixtieth avenue), “it being the intention of this provision to eliminate the change of cars by passengers now required and in effect at the Fifty-second avenue station of the said Metropolitan Company.”

Section 4 contains the provision that:

“The permission and authority hereby granted to said Metropolitan West Side Elevated Bailway Company, its successors, assigns and lessees, are upon the express condition that said Company, its successors, assigns and lessees, shall be bound by all of the terms, conditions and provisions of. an ordinance of March 18, 1901, duly accepted by said Metropolitan West Side Elevated Bailway Company,” etc.

The petition avers that the Metropolitan West Side Elevated Bailway Company accepted this ordinance, and shortly thereafter the Aurora, Elgin and Chicago Bailway Company, by contract with said Metropolitan West Side Elevated Bailway Company, availed itself of the privileges and licenses granted in said ordinance, and has ever since and is now operating its trains for the transportation of passengers over the lines of road of said Metropolitan West Side Elevated Bailway Company from Austin boulevard to the Fifth avenue terminal on the line of said road of said Metropolitan West Side Elevated Bailway.

The petition then avers that the Aurora, Elgin and Chicago Bailway Company is not now complying and has never complied with section 6 of the ordinance of March 18, 1901, which requires all passenger cars to stop at Central avenue and Austin boulevard to take on and let off passengers; that the said Aurora, Elgin and Chicago Bailway Company, the respondent, stops passenger trains at Austin boulevard coming east to the Fifth avenue terminal to let off passengers only, but refuses to permit passengers to get on its trains at Austin boulevard coming east, and that no trains of respondent stop at Central avenue, either westbound or east-bound, to take on or let off passengers; that west-bound trains stop at Austin boulevard to take on passengers for transportation west of Austin boulevard, but will not discharge passengers at said Austin boulevard.

Further averments are that the Metropolitan West Side Elevated Railway Company has established and now maintains stations at both Austin boulevard and Central avenue; that Austin boulevard, where it intersects the line of road of the Metropolitan West Side Elevated Railway Company, is immediately adjacent to the western limits of the city of Chicago, and that the said station at Central avenue is one-half mile east of the station at Austin boulevard; that the distance between the Fifth avenue terminal of the Metropolitan West Side Elevated Railway Company and the station at Austin boulevard is approximately seven miles; that the said Metropolitan Railway Company maintains stations between these two points at eighteen different streets, which are named; that at the time of the enactment of the ordinance of February 23, 1905, and continuously since, the said Metropolitan West Side Elevated Railway Company was engaged in operating an elevated railroad and maintained passenger stations at these different streets, including Central avenue, and at Austin avenue.

It is in virtue of the premises that the writ of mandamus is asked.

To this petition a general and special demurrer was filed, the special grounds of demurrer set forth being: First, that petitioner does not show that she is entitled to maintain the petition, and, second, that the Metropolitan West Side Elevated Railway Company is an indispensable party to the petition.

June 29, 1907, the Circuit" Court on argument sustained the demurrer, and as the petitioner elected to stand by her petition, dismissed the same at the costs of the petitioner, to reverse which judgment order the petitioner has sued out this writ of error.

There is, in our opinion, more than one reason why the judgment of the court below in this case is right and should be affirmed.

In the first place, by the ordinances which are set. forth in the petition there is no duty imposed on the respondent, the Aurora, Elgin and Chicago Railway Company, to stop its trains at the stations at Central avenue and Austin avenue, or at either of them.

It is true that the ordinance of March 18, 1901, provides (among many other stipulations) that the Metropolitan West Side Elevated Railway Company and its successors, assigns or lessees shall stop all their trains at Central avenue and at Austin boulevard, and that the ordinance of February 23, 1905, allowing the Metropolitan West Side Railway Company to contract with the Aurora, Elgin and Chicago Railway Company to permit that company to operate its trains over the lines of the Metropolitan Company, purports to give that permission “on the condition that said Metropolitan Company, its successors, assigns and lessees shall be bound by all of the terms, conditions and provisions” of the ordinance of March 18, 1901.

But it is also true that in this later ordinance there are other provisions prior to the one before quoted, explicitly making the permission for a contract between the two railways conditional that the Aurora Company shall not perform any local service, and that the Metropolitan Company shall maintain and operate a sufficient number of cars to meet the demands of public traffic at the two points involved here.

It does not require much astuteness indeed to recognize the fact that in all probability the ordinance would never have been asked or accepted or the contract permitted by it made, unless this reservation by the Metropolitan Road had been provided for. The object of the ordinance'to allow the Aurora inter-urban road an entrance into the city without making it a competitor of the Metropolitan intra-urban line, is apparent. Construing the two ordinances together, the absence of any obligation imposed by them on the Aurora, Elgin and Chicago Railway Company to stop its trains at Central avenue or Austin boulevard seems to us clear.

This renders any further discussion of the case unnecessary. But we agree with the learned judge of the Appellate Court of the Fourth District, in deciding a similar case—The People v. St. Louis & Belleville Electric Railway Company, 122 Ill. App. 422—that the doctrine laid down by the Supreme Court in North v. The Trustees of the University of Illinois, 137 Ill. 296, is entirely applicable to a case like this, namely: That mandamus will not lie on the petition of a private citizen merely to settle some doubtful question. “To entitle him to the writ he must clearly show that he has a legal right which he has been denied, and that the denial of such right affects his personal interest.”

We have noted the argument of the plaintiff in error that the case is inapplicable as authority, because of a different state of facts. The reasoning, however, is satisfactory to us. We are not citing the case as authority, but as noting our own agreement with its reasoning.

“It is only as a passenger seeking transportation from Belleville to East St. Louis or vice versa that relator is personally interested,” said the learned judge in the case cited of the demand of the relator in that case for the restoration of passenger service on the defendant’s road, adding, “It is not clearly apparent that the relator has been injured in his personal interest or that he would in any way be benefited by the reinstatement of passenger service upon defendant’s road. * # * For aught that appears in the record, there is and was at the time of filing the petition ample facilities for the carriage and accommodation for relator and all other would-be passengers, and with precisely the same kind of service now sought to be required of the defendant. * * * In what respect then, it may be asked, would be the practical benefit to the relator?” And so the writ was denied. The situation here is the same. We do not think the allegations of the petition show any personal interest or consequently any standing in the relator to demand as of right this extraordinary remedy." Nor do we think that the court in the People v. The Suburban R. R. Co., 178 Ill. 594, meant to decide to the contrary of this doctrine.

A person may have no “legal” or property interest, and yet have a “personal” interest, which will warrant his application for a mandamus, undoubtedly, and the facts of the Suburban Bailroad case show plainly enough that every resident of Biver Forest would be likely to have a personal interest in the action sought in that case.

But in any event, whether or not there was any standing shown in the relator to demand the performance of the obligation if it had existed, we are clear that there is no such obligation. We do not deem it necessary to pass on the alleged want of necessary parties defendant to the petition.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Siegel, Cooper & Company v. Metropolitan Amusement Association.
    Gen. No. 13,823.
    1. Verdict—when, rendered in Municipal Court, not disturbed. A verdict rendered in the Municipal Court will not he set aside as against the weight of the evidence unless clearly and manifestly so.
    2. Amendments and jeop’ails—when actual amendment, pursuant to leave, not essential. Actual literal amendment of written pleadings is not essential where written pleadings were not required under the Municipal Court Act.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    A. BmswANGEB, for plaintiff in error.

      Blum & Blum, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error brought to reverse a judgment of the Municipal Court rendered in favor of the plaintiff, the Metropolitan Amusement Association, against the defendant, Siegel, Cooper & Co., for $125. The suit was brought on a bill of particulars reading:

“For advertising in Sans Souci Park Souvenir Program amounting to....................................$125.”

An amended bill of particulars being required a written contract signed,

“Siegel, Coopeb & Co., Address Jos. Basch, Sec.”

and countersigned,

“Approved, G. B. McCleaby, For Sans Souci Park,”

was set forth, which read as follows:

No. 00. Sans Souci Pabk,

The Metbopolitan Amusement Association, Owner.

Memobandum op Agbeement.

For Advertising in Sans Souci Park Souvenir Program.

Chicago, March 26, 1906.

We hereby authorize The Metropolitan Amusement Association to insert in the weekly Sans Souci Park Souvenir Program (for free distribution in Sans Souci Park) during the season of 1906, advertisement in space one page in colors—the back page—for which we agree to pay $125.00. Payment for same to be made June 15, 1906.

Guaranteed circulation of program is 125,000 copies. In event of our failure to furnish copy for advertisement publisher is hereby authorized to insert our business card.”

This contract with other documentary and oral evidence was produced at the trial of the cause before the court without a jury, and the results were a finding in favor of the plaintiff for $125 and the judgment thereupon before described.

We are asked to reverse the judgment on the ground that it is against the weight of the evidence, and that the damages were at all events excessive.

It is a case which falls within the fourth class designated by the ■ Municipal Court Act, and we are to “decide such cases upon their merits as they appear from the stenographic report signed by the judge.” (Sec. 23 of Municipal Court Act, paragraph 8.) And this is what we are called on to do by the defendant when we are asked to reverse the judgment as against the evidence.

But on a careful consideration of the evidence as it appears in the report, we cannot see our way to do this. The defendant does not deny the execution and delivery of the written contract by a duly authorized party, nor that it continued in existence in the hands of the plaintiff and its assignee until after the advertising called for by it had been furnished, and until it was produced in evidence in this cause. Nor does the defendant deny that its terms were complied with by the plaintiff’s assignee, or that the recovery was according to its provisions.

The defense is that before the printing called for by the advertisement was done, the contract was abrogated or cancelled by the consent of the parties, and that the subsequent action under it was unauthorized, and made no claim against the defendant, and evidence was introduced by the defendant tending to establish this.

But at best the evidence tends to show a misunderstanding and a slip about the business which finally resulted, after all the cancellation spoken of had been made—if it were definitely made—in the defendant’s authorized advertising manager furnishing the plaintiff’s assignee, who held the contract, with the copy necessary for the advertisement. This might properly be considered a rehabilitation of the contract; under the circumstances, authorizing its completion, despite what had gone before. Of course this would not have been the effect had there been fraud or misrepresentation, but none is alleged. There is nothing in the point about the failure to prove the circulation. The testimony was that 160,000 copies of the program were printed all at one time (before plaintiff’s assignee heard of the alleged cancellation), and that they were all circulated in the park during, the summer.

The amendment allowed by the addition of Mr. Valentine’s name as usee was not necessary; but if it were, we do not think any actual literal amendment of written pleadings would be required where no written pleadings at all are necessary.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Mary C. Beatty v. Metropolitan West Side Elevated Railroad Company.
    Gen. No. 13,926.
    1. Passenger and carrier—when doctrine res ipsa loquitur applies; when not. Where the declaration contains a general charge of negligence and there is evidence that the plaintiff was ■ a passenger and that an accident happened in and by which the plaintiff was injured, if the accident and circumstances attending it are so unusual and of such a nature that the accident could not well have happened without negligence on the part of the defendant, the doctrine res ipsa loquitur applies; but where the proof shows that the accident to the plaintiff happened in no unusual way, such as in this case from a sudden lurching or jerking of the car, the burden of proof is upon the plaintiff to establish the negligence charged and the doctrine res ipsa loquitur does not apply.
    2. Instructions—when undue prominence not given to particular issue. The repetition in several .-instructions of the rule of law that the burden of proving negligence is on the plaintiff, is not the giving of such undue prominence to a particular question of law as will warrant a reversal.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed May 1, 1908.
    Frank L. Childs, for plaintiff in error; Ode L. Rankin, of counsel.
    Addison L. Gardner, for defendant in error; W. W. Gurley, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries brought by plaintiff in error against defendant in error, the trial resulted in a verdict for the defendant, and to reverse the judgment on that verdict plaintiff prosecutes this writ of error.

Defendant operated an elevated electric passenger railroad, and plaintiff was a passenger in one of its trains.

The declaration consists of two eouhts. The negligence alleged in the first count is, that defendant, “by its divers then servants, so negligently managed or operated its said train of cars on which the plaintiff was then and there a passenger, that while the plaintiff was in the exercise of due and ordinary care for her own safety, in consequence of such careless management, Mary C. Beatty, the plaintiff herein, was, before she had time to gain a seat, with great violence thrown or hurled to the floor over an obstruction in the aisle of defendant’s said car.”

The negligence alleged in the second count is, that defendant, “by its divers then servants, so suddenly and violently started or jerked forward the said train of cars on which the plaintiff was then and there a passenger, that notwithstanding the fact that she was a woman of great age and in the exercise of such care and caution, which could he reasonably required of her, Mary C. Beatty, the plaintiff herein, was, before she had time to gain a seat, with great violence, thrown or hurled to the floor over an obstruction in the aisle of defendant’s said car.”

Two witnesses only testified as to the accident, plaintiff and her daughter. Plaintiff testified that she entered the front door of the second car of the train, “I took about two steps and the car gave a very swift jerk and started me to fall; before I could catch myself, it gave another very heavy jerk, very heavy, and by that time it threw me and I fell across a suit case and hurt my right arm.” Her daughter testified that plaintiff was about one step inside the door when “the car gave a very sudden jerk, sort of halted, then very sudden, that threw her. I was looking in the direction in which my mother was going. There was a very sudden jerk and then there was a sort of halt and then a still more sudden jerk that threw mother.”

The grounds of reversal argued in the brief for plaintiff in error, are that the court erred in refusing to give plaintiff’s instruction No. 1, and in giving defendant’s instructions 6 and 17. The following is plaintiff’s instruction No. 1:

“The court instructs the jury that if they believe from the evidence that the plaintiff was a passenger upon the train of the defendant as alleged in the declaration, and that the plaintiff, while such passenger, if the jury believe from the evidence she was a passenger, used ordinary care for her own safety as alleged in the declaration, and that while in the exercise of ordinary care for her own safety, if plaintiff did exercise ordinary care for her own safety, plaintiff was injured by and through the operation of its train by defendant, if the jury believe from the evidence plaintiff was a passenger upon the train of defendant, then the law presumes the defendant to be guilty of negligence and the burden is upon defendant to rebut such presumption by showing that it was not guilty of negligence in the operation of the train in question upon which plaintiff was a passenger, if plaintiff was a passenger upon train operated by defendant.”

The court gave for the plaintiff, with others, the following instructions:

“The court instructs the jury that common carriers of persons for hire in the operation and management of their cars are required to do all that human care, vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted and the practicable prosecution of the business to prevent accidents to passengers riding upon their cars.

If the jury believe from the evidence that the plaintiff at the time in question was in the exercise of ordinary care, and was injured by or in consequence of the negligence of the defendant, if you believe from the evidence the defendant was negligent, as charged in the declaration, then you should find the defendant guilty.”

The cause of plaintiff’s fall, according to the allegations of the first count of the declaration, was the negligence of the defendant in managing and operating the train. That count does not allege, as defendant in error seems to contend, that the suit case in the aisle was the cause of plaintiff’s fall, but that when she fell, because the defendant “negligently managed and operated its-train,” she fell on or over an obstruction in the aisle of the car. The charge of negligence in the first count is very general; that the defendant negligently managed and operated its said train of cars, etc.

That where the declaration contains a general charge of negligence and there is evidence that the plaintiff was a passenger and that an accident happened in and by which plaintiff was injured, if the accident and circumstances attending it are so unusual and of such a nature that the accident could not well have happened without negligence on the part of the defendant, the plaintiff is entitled to have an instruction given to the jury in snbstance the same as plaintiff’s refused instruction No. 1, is well settled. Whether in a particular case proof that an accident happened to a passenger will be of such legal value as to make out a prima facie case of negligence against the carrier, depends on whether the accident is of a kind which does not ordinarily occur if due care has been exercised. A prima facie case is made out and a presumption of negligence on the part of the carrier arises from proof that a passenger was injured by derailment, collision with a train, or an object on the track, the breaking of a wheel, an explosion, and many other causes. In C. U. T. Co. v. Newmiller, 215 Ill. 383, the injury resulted from an explosion in the controller of an electric motor, and it was said that the case fell fairly within the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur is not applied “unless the accident is of a kind which does not ordinarily occur if clue care has been exercised.” 6 Thomp. Neg., sec. 7635.

All that was proved in this case was that the car jerked or lurched, and thereby the plaintiff was thrown down and injured. She was in the- car next behind the motor car. The train could not be started without causing that car to jerk or lurch to some extent. It is quite possible that from only the ordinary and unavoidable jerking or lurching of a car caused by starting a train, a passenger might, without negligence on his part, lose his balance and fall. The question is not, whether the jury might from the evidence as to the jerking of the ear, have found as a fact that the defendant negligently operated the train, but is, whether from the fact that the plaintiff, a passenger, without negligence on her part, lost her balance and fell, because of the jerking or lurching of the car, and was injured, the law presumes that the defendant negligently started the train. We think that under the evidence in this case the question whether the defendant was or was not guilty of negligence in starting the train, was a question of fact for the jury; that question was submitted to the jury by other instructions given for the plaintiff, and the trial court did not, in our opinion, err in refusing plaintiff’s first instruction.

Instructions 6 and 17, given for the defendant, are as follows:

“6. The jury are instructed that this is an action brought by the plaintiff to recover from the defendant damages for personal injuries alleged to have been sustained as a result of negligence on the part of the defendant, as charged in plaintiff’s declaration in this case, and the burden rests upon the plaintiff to prove negligence on the part of the defendant as charged. Unless the jury believe that plaintiff has proved such negligence on the part of the defendant by a preponderance of all the evidence in the case, you should find the defendant not guilty.

“17. The jury are instructed that the burden is upon the plaintiff to prove her case under the declaration filed herein by a preponderance of all the evidence in the case; and if she has failed to prove that she was injured by the negligence of the defendant as charged in the declaration, and that she was in the exercise of ordinary care for her own safety by a preponderance or weight of the evidence, or if the jury, after summing up the evidence cannot tell from the evidence whether the plaintiff was injured through the negligence of the defendant, her own negligence, or from some other cause, then the jury should find for the defendant. ’ ’

The objection urged to these instructions is, that in each is stated the doctrine that the burden of proving negligence is on the plaintiff, and that by such repetition undue prominence is given to that doctrine. This objection cannot be sustained.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    William H. Fosbury v. Aurora, Elgin & Chicago Railway Company.
    Gen. No. 13,941.
    1. Instructions—what question of law presented hy motion for peremptory instruction. The motion of a defendant to direct a verdict of not guilty presents to the trial court the question of whether, taking as true the testimony most favorable to the plaintiff and drawing therefrom the inferences most favorable to him that could properly be drawn, the jury could properly find a verdict in favor of the plaintiff.
    2. Instructions—when question of propriety of giving peremptory, saved for review. By taking an exception to the giving of a peremptory instruction and taking a bill of exceptions containing all of the evidence, saves for review the question of the propriety of such instruction under the evidence in the case.
    3. Trespassers—duty of railroad company towards. A railroad company owes to a trespasser on its tracks and right of way no duty except to refrain from wantonly or wilfully injuring him. The fact that many other persons have been in the habit of traveling on the right of way of such company and no measures had been taken to prevent it, does not operate to change the relative rights of such a trespasser and the company.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed May 1, 1908.
    Mark J. Sullivan, for appellant; John F. Mahon, of counsel.
    Hopkins, Peppers & Hopkins, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries, the court, at the close of plaintiff’s case, on the motion of the defendant, directed a verdict of not guilty, and to reverse the judgment entered on that verdict the plaintiff prosecutes this appeal.

The bill of exceptions shows that plaintiff excepted to the giving of said instruction; that on the return of the verdict the plaintiff, “Moved the court to set aside the verdict so rendered and grant a new trial, for the reason that the verdict is contrary to the law and evidence, but the court denied the motion and gave judgment on the verdict against the plaintiff; to which decision of the court, in denying said motion, and entering judgment, the plaintiff, by his counsel, then and there excepted.” Plaintiff filed no written motion for a new trial, nor any points in writing specifying the grounds of his verbal motion. The bill of exceptions purports to contain all of the evidence.

The motion of the defendant to direct a verdict of not guilty presented to the trial court a question of law, viz.: the question, whether taking as true the testimony most favorable to the plaintiff and drawing therefrom the inferences most favorable to him that could properly be drawn, the jury could properly find a verdict in his favor.

We think that the plaintiff, by taking an exception to the giving of the instruction and taking a bill of exceptions containing all of the evidence, saved for review the question of the propriety of such instruction under the evidence in the case. I. C. R. R. Co. v. O’Keefe, 154 Ill. 508.

Defendant operated on its own right of way an electric passenger railroad. The electric current was carried by an uncovered third rail laid on the same ties with the rails on which the cars ran. The road crossed the Desplaines river on a bridge, the approach to which from the west was over an embankment of considerable height. Some distance above this bridge was a bridge of a steam railroad company. On the day of the accident, plaintiff went out from the city on one of defendant’s trains which he left at Desplaines avenue, a station east of the Desplaines river. He then went north to the steam railroad, crossed on its bridge to the west side of the river. There was a path to the south over private property along the west bank of the river from the right of way of the steam railroad to defendant’s right of way. At one time there was a barbed wire fence on the north line of defendant’s right of way, but a gap a hundred feet wide had been in this fence where the path came to it, for two or three years before the accident. A considerable number of persons were in the habit of going south in this path daily, through the gap in the fence up the side of the embankment to its top, and then walking east on the embankment and over the bridge to the east side of the river, and a path had thereby been worn up the side of the embankment. There was no footway of any kind on the bridge, and persons crossing the same had to walk on the rails or on the cross ties. The nearest station on defendant’s road to the west was about half a mile from the point where this path came to the top of the embankment, and the nearest station to the east was at Desplaines avenue, about the same distance away and on the other side of the river.

Plaintiff testified that he had never heard of a third rail, and knew nothing of the danger attending contact with it; that he walked south in the path on the west side of the river and up defendant’s embankment and turned to the east to go over the bridge; that he stepped, or stumbled, on said third rail and thereby was burned and seriously injured by the electric current which it carried. There is no allegation that the defendant wilfully or wantonly injured the plaintiff. The negligence alleged is a failure to guard or protect said third rail or to place safeguards or warnings around said third rail.

From a careful review of the evidence we are led to the conclusion that the plaintiff was a trespasser on the tracks and right of way of defendant, and that defendant therefore owed him no duty except to refrain from wantonly or wilfully injuring him. The fact that many other persons "had been in the habit of traveling on defendant’s right of way and no measures had been taken to prevent it, did not change the relative rights of the plaintiff or of the defendant. I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hetherington, 83 id. 510; Blanchard v. L. S. & M. S. Ry. Co., 126 id. 416; I. C. R. R. Co. v. O’Connor, 189 id. 559; Boden v. G. T. Ry. Co., 133 id. 72.

We think that the trial court did not err in directing a verdict for the defendant, and the judgment will therefore be affirmed.

Affirmed.


text:
    James Cotter, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 13,955.

      Negligence-—when failure to look constitutes. The jury, without conditions or circumstances which excuse looking, where looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed May 1, 1908.
    William J. Hynes, Samuel S. Page and Watson J. Ferry, for appellant.
    D. W1 Parker, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $1,000 recovered by appellee in an action on the case for personal injuries alleged to have been sustained by him through the negligence of the defendant.

Plaintiff, when injured, was a motorman of the Chicago Union Traction Company, in charge of a ear which ran in Twelfth street, an east and west street. The tracks crossed Clark street on a viaduct about twelve feet above the general level of that street.

Defendant company operated an electric street railway in Clark street, and there was a grade or incline to the north from the Twelfth street viaduct, up which its south-bound cars ran on the west track and crossed the traction company’s tracks on the viaduct.

Plaintiff was running a west-bound car and brought his car to a stop with the front end about thirty-five feet east of the east rail of the east track in Clark street. Before plaintiff started his car forward, he saw a car of the defendant company coming south up the grade in Clark street. He testified that he thought that car was about 150 feet north of Twelfth street, and was running at about ten miles per hour; that defendant’s car was a large car, lighted, and that night he could see it for a mile; that his car was a light car with ten or fifteen passengers in it; that he ran his car at the rate of two miles per hour from the time he started it until the collision, with his brake chain nearly wound up, so that the shoe would just touch the wheels without interfering with their motion; that this was for the purpose of stopping quickly if necessary; that he could have stopped his car in a distance of two or three feet; that he did not, after starting his ear, look to the north again until just as defendant’s car was about to strike his car, when a passenger on the front seat of his car called out, “Look out; that fellow is going to hit you,” and he looked around and saw- defendant’s car about fifteen feet away, coming towards him at the rate of eight miles per hour; that almost immediately the collision occurred, by which he was thrown from his" car and received the injuries complained of.

Plaintiff’s car was thirty feet long; the distance from the front end of his car to the east rail of the east track when he started his car was thirty-five feet, and the distance from that rail to the west rail of the west track was fourteen feet, so that before his car would clear the west track, it must move a distance of about seventy feet from the place where it stood when he started forward. He knew when he started forward that a car was coming on the west track; he thought it was 150 feet away, and that its speed was ten miles per hour. It was under such circumstances, as shown by his own testimony, that he started his car forward at two miles per hour and maintained that rate of speed until the collision, without looking again to the north and with his brake chain so nearly wound up that he could have stopped his car within a distance of three feet.

If by the exercise of ordinary care on his part, plaintiff could have seen the approach of defendant’s car as his own car came near to the track on which that car was coming, then the law made it his duty to see that car, and if he failed in such duty, his failure would bar a recovery. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 149.

The failure of plaintiff to look to the north after he started his car forward to see if the car which he saw coming towards the track on which his car was before he started his ear, while not in law negligence per se, was negligence in fact; if there were no conditions or circumstances which excused him from looking.

“A jury, without evidence of conditions or-circumstances which excuse looking, where looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.” I. C. R. R. Co. v. Batson, 81 Ill. App. 142, 153, and cases there cited.

We are unable to find any evidence of the existence of any circumstances, or conditions, that excused plaintiff from again looking to the north as his car approached the track of defendant on which he had seen a car coming towards the track on which his car ran. Defendant’s car was in plain sight. Plaintiff was charged with the duty, not only to exercise care for his -own safety, bnt care for the safety of the passengers in his car.

We think that upon his own testimony the plaintiff did not exercise ordinary care for his own safety, bnt was guilty of negligence which directly contributed to his injury, and the judgment will therefore be reversed with a finding of fact. '

Reversed with finding of fact.


text:
    William V. Moore v. United States One Stave Barrel Company et al. Consolidated With First National Bank v. United States One Stave Barrel Company et al.
    Gen. No. 13,976.
    Gen. No. 13,948.
    1. Parties—who may maintain bill to enforce stock, liability. The assignee of a judgment against a corporation may maintain in his own name a bill to enforce stock liability.
    2. Corporations—what not payment for corporate stock. Held, under the evidence in this case, that a stock subscription was not fully paid by the transfer of patent rights.
    3. Corporations-—who liable for unpaid stock subscription. An assignee of corporate stock, the subscription for which has not been paid in full, is liable for the unpaid subscription where he takes the stock with notice of the facts.
    4. Corporations—power of directors to release liability for stock subscriptions. It is beyond the power of the directors of a corporation to release a stockholder from his liability for an unpaid stock subscription, at least so far as existing creditors are concerned.
    5. Corporations—when directors disqualified. Directors are disqualified from voting with respect to matters in which they have a personal interest or with respect to a matter concerning the personal interest of another director who controls their votes.
    Bill in equity. Appeal from the Superior Court of Cook county; the Hon. George A. Diipuy, Judge, presiding.
    Heard in the Branchi Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed May 1, 1908.
    Rehearing denied May 12, 1908.
    Whitman & Miller, for appellants; Orville Peck-ham and Edwin White Moore, of counsel.
    0 ’Bryan & Marshall and Hiram T. Gilbert, for appellees.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Appellant Moore filed in the Superior Court his hill in equity against The United States One Stave Barrel Company, Espy L. Smith, Lutellus Smith, John F. Palmer and Douglas Dyrenforth. The First National Bank of Chicago was, on its petition, made a co-complainant with Moore. On the hearing the hill was dismissed for want of equity, and from that decree Moore and said bank took separate appeals, which in this court have been consolidated for hearing. The bill as it stood, after the Bank was made a complainant, was a bill to compel the two Smiths and Palmer to pay the judgment of Moore against said Barrel Company, and also the judgment of said Bank against said company upon the ground that said Smiths were liable to complainants, as creditors of said company, on unpaid subscriptions to the capital stock of said company, and that Palmer was also liable as the assignee and holder of unpaid shares of stock of said company which were subscribed for by McGill, and by his consent issued by the company to Dyrenforth, and upon the return and cancellation of his certificate reissued, to Palmer. Said Barrel Company was qrganized as a corporation under the laws of Illinois, April 7, 1896, with a capital of $100,000, divided into 1,000 shares of $100 each, of which 250 shares each were subscribed for and taken by Espy L. Smith, Lutellus Smith, Heylin T. Smith and James K„ McGill.

The judgment of Moore is a judgment recovered against the Barrel Company by True, as receiver of the Frontier Iron Works, and by said receiver sold and assigned to complainant Moore. We think that as such assignee Moore could maintain a bill in his own name, and is entitled to the same relief that the plaintiff in the judgment would be entitled to if the assignment had not been made and the bill had been filed by him. Dimond v. Rogers, 203 Ill. 464.

The suit of Moore was, in effect, a suit for the benefit of all creditors of the barrel company who should ask to be made co-complainants with Moore. The fact that appellant Bank did not recover its judgment until after the filing of Moore’s bill is immaterial.

The Barrel Company ceased to do business in 1897 ■ or 1898. Moore’s bill was filed October 1, 1901, and the bank became a complainant January 22, 1902. We do not think that either complainant should be denied relief on the ground of laches.

We will first consider the question as to the liability of the defendants Espy L. and Lutellus Smith, and then that of the defendant Palmer. March 7, 1896, the following instrument in writing was' executed by Louis Beed and Lutellus Smith:

11 Option.

Whereas, John W. Philp, of Humboldt, Tennessee, did obtain Letters of Patent of the United States of America, for certain improvements in the manufacturing of staves for barrels, etc., which Letters Patent bear date the fourth day of September, A. D. 1888, and are numbered 389,006, and also another certain Patent issued as aforesaid to the said Philp, bearing date the ninth day of March, A. D. 1886, and numbered "337,701; and,

Whereas, Louis Beed is now the owner of said Patents, and all rights and privileges thereunder, excepting for the States of Louisiana and Mississippi;

Now, this Indenture witnesseth, That in consideration of One Dollar, and other good and valuable considerations, the receipt of which is hereby acknowledged, I, Louis Beed, aforesaid, hereby give and grant to Lutellus Smith of Chicago, Illinois, the sole right, option and privilege of selling said patents in and for all of the United States and Territories, excepting the States of Louisiana and Mississippi, for the sum of Fifteen Thousand Dollars ($15,000) at any time on or before Thirty days from the date of this instrument, to any person, persons or company the said Smith may see fit, and to make any and all necessary contracts for the purpose of said sale and of consummating it; and I hereby agree to execute, acknowledge and deliver any and all papers necessary for the assignment or transfer of my interest to any person, persons or company said Smith may designate, for said sum within said time.

Witness my hand and seal this seventh day of March, A. D. 1896.

Signed: Louis Reed. [Seal.]

Signed: Lutellus Smith. [Seal.]”

The same day apparently the following instrument in writing was executed by the same parties, although it is dated March 6, 1896:

“Whereas, I have this day sold to Lutellus Smith the right, option or privilege of selling and disposing of certain letters patent numbered 389,006, and also certain letters patent numbered 337,701, more fully and particularly described in said agreement called option, to which reference is made, now, therefore, this agreement, witnesseth, that should the said Smith sell said patents for the sum named in said option, to wit: fifteen thousand dollars, I agree to pay to the said Smith for his services in the premises the sum of five thousand dollars immediately upon payment being made to me, or upon my accepting the terms of any sale made by said Smith, and should the said Smith receive the said purchase price that he may retain therefrom the said sum of five thousand dollars in full of all demands in the premises.

Louis Reed. [Seal.]

Lutellus Smith. [Seal.]

Chicago, March 6,1896.”

The first board of directors of the Barrel Company, elected April 6, 1896, consisted of Espy L., Lutellus and Heylin T. Smith, McGill and Van Bergen. These directors, excepting Heylin T. Smith, met July 29, 1896, and adopted the following resolution:

“Whereas, on the third day of April, 1896, before the organization of this Company, the President and Secretary, in the name of this Company, entered into a contract with one Louis Beed, relating to his services, and accepted from him certain assignments of his interest in Patents No. 337,701 and 389,006, being the entire interest covered or protected by said patents excepting in and to the States of Mississippi and Louisiana, and paid to the said Beed the sum of Five Thousand ($5,000) Dollars, in money, as well as six notes, signed in the name of this Company, five of which notes were for the sum of One Thousand' ($1,000) Dollars each, and one of said notes for the sum of Five Thousand ($5,000) Dollars; and

Whereas, at the time of said transaction with said Beed, Lutellus Smith, Esq., held, owned and controlled an option from the said Louis Beed for the purchase of said interest in said patents, under and pursuant to which option the said transaction was had with said Louis Beed, and this Company thereby given the benefit of said option; and

Whereas, the said optioh, as well as the said patents, were of great value to this Company and essential to the performance of the functions and purposes for which it was organized:

Now, therefore, be it resolved:

First: That the contract made on the third day of April, A. D. 1896, purporting to be between this Company and the said Louis Beed, be, and the same is hereby ratified and adopted as to the act and deed of this Company.

Second: That the Five Thousand ($5,000) Dollars advanced to the said Beed on said third day of April, be severally credited to the person or persons advancing the same, and that due credit therefor be entered upon the books of this Company.

Third: That the said six notes heretofore mentioned, given in the name of this Company, to said Louis Beed, on the third day of April, 1896, for the total sum. of Ten Thousand ($10,000) Dollars, be hereby adopted, ratified and approved, and the payment thereof assumed by this Company as its obligation.

Fourth: That the sum of Forty-five Thousand ($45,000) Dollars is a fair, just and equitable sum to be paid to Lutellus Smith and his confrere, Espy L. Smith, for the giving to tliis Company the benefit of the option acquired by them of and from the said Louis Reed prior to the third day of April, 1896, for the purpose of the said patents or patent interests. And the said Lutellus Smith being now present, and consenting thereto, it is hereby ordered that the sum of Twenty-two Thousand Five Hundred ($22,500) Dollars be severally credited to the said Lutellus Smith and Espy L. Smith as subscribers to the capital stock of this Company, and that stock of this. Company be duly issued accordingly.”

It is claimed by appellees, Espy L. and Lutellus Smith, that when the above resolution was adopted, each was the owner of one-half of the Reed-Philp patents, except for the States of Louisiana and Mississippi, and that they sold their interest in said patents to the Barrel Company for $50,000 in the capital stock of the company; that the patents were fairly worth that sum, and that by such transfer their stock was paid for. We agree with the master in his conclusion that the evidence does not support their contention. The only writings signed by Louis Reed in evidence, are the two contracts, with Lutellus Smith above set forth, and the formal deed of assignment by Reed of his interest in said patents to said Barrel Company, executed and acknowledged November 24, 1906.

The contract of March 7, 1906, did not give to Lutellus Smith the right to buy Reed’s interest in said patents at the price of $15,000, but only gave him the exclusive right to sell the same at that price to others for thirty days, with a separate agreement that in case of such sale Reed should pay him for his services in making the sale $5,000. The resolution of July 29, recites transactions had April 3, 1906, not between Espy L. and Lutellus Smith as individuals, and Reed, but between them as offióers of the Barrel Company, in the name of the company, and Reed. True, the Barrel Company was not then a corporation, but proceedings to organize such corporation were begun March 19 and completed April 7, and the Smiths gave Reed for $10,000 of the purchase price, notes purporting to be the notes of the corporation, which notes were by said resolution adopted and assumed as the notes and obligations of the corporation.

The Act of Congress provides that “every patent or interest therein shall be assignable in law by an instrument in writing.” The evidence does not show that Reed assigned his interest in said patents to either of the Smiths by an instrument in writing. The patents belonged to Reed until they were sold to the company by the Smiths, under the authority given to Lutellus Smith by the contract of March 7. The question of their value is not material, for they were acquired by the company for $15,000. Of this amount Espy L. and Lutellus Smith each furnished $2,500, and for that sum and no more, in our opinion, is each entitled to credit on his original stock subscription for 250 shares of stock by reason of the purchase of said patents by the corporation.

We next come to the question of the liability of Palmer. Palmer loaned the Barrel Company, August 6, 1896, $2,500 and entered into an agreement in writing with the company giving him the privilege of demanding and receiving from the company in payment of such loan 250 shares of its stock, “legally full paid and non-assessable. ”

October 27, 1906, the company issued to Dyrenforth, who acted for Palmer, a certificate for 250 shares of its capital stock. The same day, that certificate was surrendered and a new certificate issued in lieu thereof for the same number of shares to Palmer. The stock issued to Dyrenforth was the stock originally subscribed for by McGill, who released Ms rights and consented that the company might resell said stock. Palmer denies that he knew that the 250 shares of stock he acquired was the stock originally subscribed for by McGill. He, in his cross-bill alleged that October 27, 1906, he concluded to avail himself of the option to accept in payment of said notes of $2,500 “legally full paid and non-assessable stock” to the amount of $25,000; that at the time he so elected he “did not know in what manner said corporation had acquired said stock, or the right to dispose of the same to your orator as full paid and non-assessable stock, and your orator implicitly relied upon the said Espy L. Smith and Lutellus Smith to take all the steps that might be necessary and proper to cause the delivery to your orator of said twenty-five thousand dollars ($25,000) par value of stock legally full paid and non-assessable; that at the time the said transfer of said stock was to be consummated your orator gave to said Douglas Dyrenforth your orator’s check for the sum of twenty-five thousand dollars ($25,000) on the promise of said Smiths that said twenty-five thousand dollars ($25,000) par value of stock would be issued to said Douglas Dyrenforth and be by him transferred or assigned to your orator, and that said corporation would thereupon issue to your orator a certificate for said twenty-five thousand dollars ($25,000) par value of the stock, and return to your orator said twenty-five thousand dollars ($25,000), whereupon said corporation did on the same day return to your orator said twenty-five thousand dollars ($25,000), together with a certificate for twenty-five thousand dollars ($25,000) par value of stock, purporting on its face to be and alleged by said Espy L. Smith and Lutellus Smith to be legally full paid and non-assessable.”

May 4,1907, Palmer wrote Espy L. Smith referring to said loan of $2,500, as follows:

“I (was) to have the option of asking re-payment of this obligation in cash; or, if I so elected, to accept in lieu thereof 250 shares of the Barrel Co., legally full paid and non-assessable, to the end that I might be put on the same footing as yourself and Lutellus Smith in original stock holdings and costs thereof, viz.: 25 per cent, of total stock at 10 per cent, of full value.”

Both the Smiths testified that Palmer was told when the loan was made that the stock he was to get had been subscribed for by McGill, and that the release from McGill of his right to the stock was obtained at Palmer’s request. We think that the evidence shows that Palmer had full notice of all the material facts in relation to the 250 shares of stock which were transferred to him by Dyrenforth, and must therefore be held to have known that said shares were unpaid except as to the amount of $2,500.

May 20, 1897, when the Barrel Company was known to be insolvent, and long after the indebtedness upon which appellants ’ judgments are founded had been incurred, the directors of the company, at Palmer’s instance, passed a resolution providing for the rescission of the said arrangement by which Palmer had acquired 250 shares of the company’s stock for $2,500, and directed that the officers of the company accept from Palmer the surrender of his certificate for said 250 shares of stock and cancel the same, and said certificate was thereupon surrendered, by him to the company. The resolution was adopted by the votes of Palmer, Dyrenforth and Espy L. Smith, Lutellus Smith the only other director voting against it. Dyrenforth was not a stockholder, and was elected a director at Palmer’s request to represent him. Espy L. Smith had given Palmer, November 9, 1896, an irrevocable power of attorney to vote his stock as Palmer should direct, for the expressed purpose of giving Palmer, “the sole direction of the policy of the company, so far as it could be held or exercised by the owner of the majority of the stock.” This resolution was, we think, invalid for two reasons: First, because it was beyond the power of the directors to release Palmer from Ms liability to existing creditors (Zirkel v. Joliet Opera House Co., 79 Ill. 334), and second, because it was passed by the votes of Palmer and two other directors under his control (Adams v. Burke, 201 Ill. 399).

It is further contended on behalf of Palmer that if the Smiths and Palmer are each liable, Palmer is entitled to require the liability of the Smiths to be exhausted before resort is had to his liability. We find no sufficient support for this contention in the facts disclosed by this record.

The conclusions reached by us are the same as those reached by the master and stated in his report. In that report the master has found the amount due from the Smiths and Palmer respectively to the Barrel Company, after giving to each credit for all the sums paid or loaned to the company. We think the chancellor erred in sustaining the exceptions to the report of the master, and the decree will be reversed and the cause remanded with directions to overrule the exceptions of the defendants to said report, and to enter a decree in accordance with the recommendations therein contained.

Reversed and remanded with directions.


author: Mr. Justice Freeman

text:
    William H. McDoel, Receiver of L., N. A. & C. Ry. Co., v. Kate Heuermann, Administratrix.
    Gen. No. 13,657.
    Contbibtjtoby negltgence—what is, as matter of law. A flagman employed to observe the movements of trains and to warn persons approaching a crossing of dangers, held, under the evidence in this case, guilty of contributory negligence in crossing the tracks to pick up a mail pouch and failing to keep a careful watch upon his own account, and this notwithstanding there was evidence tending to show that the train which struck him was exceeding the ordinance speed limits.
    Bakes, P. J„ dissenting.

      Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Clutfobd, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed with finding of facts.
    Opinion filed May 1, 1908.
    Rehearing denied May 12, 1908.
    Statement by the Court. This is an action in which appellee, as administratrix seeks to recover damages from appellant as receiver of the Louisville, New Albany & Chicago Ry. Co. for the death of Peter Heuermann, who was struck and killed by the tender of a locomotive operated by said railway company.
    The accident occurred about 7:55 p. m. March 23, 1897. The deceased was employed as a flagman by the Chicago and Eastern Illinois Railway Company at the crossing of Thirty-third street over the railway tracks where the accident occurred and had been so employed for a period of eight years preceding. The tracks at this place are said to be owned by the Chicago & Western Indiana Railroad Company and are used by a number of other railroad companies. There were gates at the crossing where the deceased was stationed as flagman, which he operated, and there was a flag shanty, which he occupied. The only witness who testifies to seeing the accident was one Flood, an engineer then employed by the Chicago & Eastern Illinois Ry. Co. He was working with an engine on a sidetrack west of the main tracks. A Chicago & Eastern Illinois dummy train which carried mail was approaching from the north and the deceased left his shanty and went toward the dummy train, apparently to get mail which was thrown off there, some of it falling near the east rail of number 4 track. The deceased crossed over number 3 track, picked up the mail and straightened up, standing near the east rail of number 4 track, upon which the freight train of the Louisville & New Albany railroad was then approaching. The witness Flood testifies that, seeing the freight train approaching and about 200 feet from the deceased, he blew the whistle of his locomotive, and the engineer of the freight train then blew his whistle. There is evidence tending to show that the head-light of the freight engine was burning and the bell ringing. The deceased had previously closed the crossing gates. Instead of remaining where he was standing, or stepping back from the track upon which the freight train was approaching, the deceased started to cross over that track, in front of the advancing train, and was struck by the engine, which went three or four car lengths after it struck the deceased. The jury returned a verdict in favor of appellee, upon which judgment was entered.
    Gr. W. Kretzinger and L. L. Smith, for appellant.
    -Whitman & Hornee, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of appellant that a flagman employed at a railroad crossing, whose duty it is to warn the public of the approach of trains, cannot recover for injuries occasioned by being struck by a train it was his duty to see and guard against; that he is bound to look out for himself as well as others, and that the Circuit Court erred in refusing to instruct the jury as requested at the close of appellee’s evidence and again at the close of all the evidence to return a verdict for defendant.

There is no apparent controversy as to the facts. It appears that the deceased had for a number of years been employed as a flagman at the crossing where the accident occurred. He had previously worked on á railroad, and, so far as appears, was in good physical condition. Appellee’s attorneys say that they rely “upon all the evidence” to support the contention that the deceased lost his life in consequence of negligence of the railroad company. The only specific claim of negligence, however, referred to in their briefs is thus stated: “Employes of a railroad company may rely upon ordinances or statutes regulating the rate of speed and use of whistles and bells of railroad trains within the city and are entitled to the full benefit of such ordinances and statutes.” The speed ordinance, so called, of the city of Chicago was introduced, and we find in the abstract evidence tending to show that the train which struck the deceased was “going between ten and twelve miles an hour.” The ordinance provides a speed of nine miles an hour for freight trains in that district of the city. It is contended in behalf of appellant, however, that1 an ordinance limiting speed of railroad trains within a city cannot be relied upon by a flagman, since it is his duty at all times to be watchful and to protect the public and the trains at the crossing at which he is stationed. In Ruane v. L. S. & M. S. Ry. Co., 64 Ill. App. 359-364, it is said that “the statute is designed for the benefit of the public and not for employes of the railway whose duty it is at'all times and under all circumstances to protect the public at the crossing in question. Gibson v. Leonard, 143 Ill. 182-196.” In the last cited case it is held that only such persons as are intended to be benefited or protected by a statute can rely on a violation of it as giving a cause of action. In Clark v. Boston & Albany R. Co., 128 Mass. 1-4, where a flagman was struck by a train at a crossing at which he was employed to give notice when cars were about to cross the street, the court says: “The plaintiff undertook to perform a duty which he failed to perform and while thus neglecting his duty he received the alleged injury”; that “he simply failed to see what it was his duty to see and failed to give the notice he was there to give.” The fact that the deceased in the case at bar received mail from a passing dummy and that he went toward the track where he was injured to pick up such mail did not, we think, relieve him from the duty to look out for trains, the duty for performance of which he was employed. The evidence fails to show, so far as we can discover, that he was required by his employment to place himself in a position of danger to receive mail from the dummy, or that it was his duty to do so at all. In E. St. Louis Ry. Co. v. Eggman, 170 Ill. 538-540, cited by appellee’s counsel, the deceased was in the employ of the railroad company as a carpenter and was constructing a drain near or under defendant’s tracks. It was held that although he was an employe working in the yards or other private grounds, he was entitled to the protection of ordinances regulating speed and providing for the ringing of bells. In the case at bar, however, the intestate was a flagman of long experience, familiar with all the conditions at the crossing, and employed not to stand on the tracks or work there, but to look out for passing trains. There is evidence, as we have said, to the effect that the train in question was exceeding the rate of speed prescribed by ordinance by about a mile an hour. This evidence is necessarily based on a hasty observation of a single witness. The excess of speed, if any, was at least not great, and is not shown to have contributed to the accident.

It is urged, however, that the deceased was guilty of contributory negligence, and that at the moment preceding the accident he left a position of safety beside the track and attempted to cross in front of the freight train. The evidence is not conclusive that he was in a position of safety before he so started to cross, although the testimony of the plaintiff’s witness Flood may in part bear that construction. It is said, on the other hand, by appellee’s attorneys, that “ill-advised action in attempting to escape impending danger is not necessarily negligence per se.” It was snowing and the wind was blowing at the time. Deceased had picked up mail on number 4 track and was very near, if not on, the east rail of the track upon which the train which struck him was approaching. He made the mistake of standing still after picking up the mail, and then attempting to cross that track in front of the engine, instead of backing away from it. This mistake in itself may not be, under the circumstances, conclusive evidence of contributory negligence; but that it was contributory negligence to place himself on or dangerously near the tracks upon which trains were liable to pass, and without keeping careful watch for trains of the various roads using those tracks and on a windy night in a snowstorm, was, we think, contributory negligence of a character which must necessarily preclude recovery.

The ¡judgment of the Circuit Court must therefore be reversed with a finding of facts.

Reversed, with finding o.f facts.

Mr. Presiding Justice Baker dissenting.


text:
    City of Chicago v. Nellie Carlin, Administratrix.
    Gen. No. 13,672.
    1. Personal injuries—what evidence essential to establish that death resulted from, fall. A claim for damages because of the death of the plaintiff’s Intestate from an alleged fall upon an alleged defective sidewalk, cannot be sustained, in the absence of direct proof of a fall which might have caused such death and in the absence of some circumstantial evidence tending to establish such a fall; a presumption supported by a presumption is not sufficient.
    2. OitDiiirARY care—proof of exercise of, essential to recover for death caused by alleged wrongful act. There must be some evidence, direct or circumstantial, of the exercise of ordinary care by the intestate in order to sustain a recovery for death caused by alleged wrongful act.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed with finding of facts.
    Opinion filed May 1, 1908.
    John B. Caverly, for appellant; William J. Staple-ton, of counsel.

      Theodore Gr. Case, for appellee; Benjamin D. Magruder, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee against the city of Chicago for damages resulting from the death of Patrick Grrannan, appellee’s intestate, alleged to have been caused by negligence of appellant.

It appears from the evidence that the deceased left his house a little after two p. m. on the tenth of December, 1903. His widow testifies that he was a careful, prudent and healthy man. His body was found about half after six o’clock the next morning beside a sidewalk on the southeast corner of Twenty-ninth and Halsted streets, about three or four feet from the sidewalk. The body was lying face downward on the ground and was frozen stiff. His nose was flattened somewhat, apparently from the pressure against the ground. There were no marks of injury otherwise. Testimony of a physician who was called to examine the body at the coroner’s inquest and who made a postmortem examination tends to show that “the heart was large and fatty, the stomach showed gastritis, almost dyspeptic, and the other organs were somewhat fatty throughout the body”; that he “found no evidence of bruises or injury on the body”; that in his opinion the deceased “came to his death from fatty degeneration of the heart”; that if the deceased had fallen and the fall had caused his death, there would have been “marked evidences” of the fall upon the body.

The declaration charges that the city maintained a defective sidewalk at the place where the body of the deceased was found; that said walk was elevated above the ground about six feet without “reasonably adequate safeguards, barriers, fences or other reasonable means of protection to hinder or prevent the public and the deceased from falling or being precipitated from off the edge of the said sidewalk, which was * * * situated at a high distance above the ground,” and that for want of such protection the deceased fell and was precipitated from the sidewalk to the ground and thereby killed.

It is urged in behalf of appellant that there is no evidence that appellee’s intestate came to his death as alleged in the declaration. There is no direct evidence that the deceased fell from the sidewalk. There is no evidence that he was on that walk during the afternoon or evening before his body was found; that his death was caused by falling from the sidewalk, and that if so, the fall was due to the absence of a railing or other protection is mere conjecture. There is evidence tending to show that he had been troubled with heart disease. The conjecture that he fell from the walk in consequence of the absence of a railing is unsupported by evidence of bruises or injuries. The only evidence urged in behalf of appellee as supporting the theory of a fall is the flattened condition of the nose where it rested on the frozen earth. If, however, a man in sound health, as appellee’s witnesses testify the deceased was at the time, had fallen while fully conscious from a high sidewalk, it is scarcely to be believed that he would not have thrown out his arms and protected his face from direct contact with the ground. On the other hand, if the man fell in consequence of heart disease and was unconscious when he struck the ground, it can readily be understood how he should be found as was the deceased. If, however, such fall had been from a sidewalk six feet high or thereabouts, and the man struck upon his face on the frozen ground, it would appear from the medical testimony that other features besides the nose would show marks of the fall. “Such a conclusion is both reasonable and natural.” Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. Yet plaintiff’s witnesses found no such bruises. One of them testifies that the “only mark visible on the body of the deceased was that the nose was flat. It seemed to be a natural flatness from lying on the ground.” The claim that the decedent fell from the sidewalk is itself a mere assumption unsupported by any direct evidence. If to this is added the further presumption that the fall caused his death, which is contradicted by medical testimony, we have a case resting upon a presumption “based upon a presumption,” which the law does not tolerate. Globe Accident Ins. Co. v. Gerisch, supra. If the presumption was based upon direct evidence tending to show that no other cause of death could have operated except a fall from that sidewalk, a different case would be presented. It is not so based. As said in Morris v. I. & St. L. Ry. Co., 10 Ill. App. 389-395, “The very foundation of indirect or circumstantial evidence is the establishment of one or more facts from which the inference is sought to be made, and the law requires that these facts from which the presumption is to arise should be established by direct evidence, as if they were the very facts in issue.” See also Bycyznski v. Ill. Steel Co., 115 Ill. App. 326-327; Condon v. Schoenfield, 214 Ill. 226-229.

The case at bar differs materially on the facts from cases cited by appellee’s counsel, such as C., B. & Q. R. R. Co. v. Gunderson, 174 Ill. 497. In the case before us there is no evidence as to whether the deceased was sober or otherwise at the time he met his death, nor, as we have said, that death was the result of the alleged negligence of appellant. We cannot concur in appellee’s statement that there is evidence “tending to show that the deceased at the time of the accident was in the exercise of due care for his own safety.” We find no evidence in the record upon that question. Hays v. Gallagher, 72 Pa. St. Rep. 136, cited by appellee, is not, we think, in point. In that case there was the statement of the injured man that he fell from the bridge, and it seems to have been conceded that he did so fall. Here there is no evidence of such fall, nor any such concession.

For reasons indicated, the judgment of the Superior Court must be reversed, with a finding of facts.

Reversed, with finding of facts.


text:
    City of Chicago v. Nora Thomas, Administratrix.
    Gen. No. 13,684.
    1. Negligence—when city guilty of, in failing to protect approaches to bridge. It is negligence for a city to fail to prevent the public from entering upon an open bridge under its control by not sufficiently lighting the approaches or providing a watchman therefor or otherwise.
    2. Obdinaby cabe—from what may be inferred. Direct evidence of the exercise of ordinary care is not essential; its exercise may be inferred from all the surrounding circumstances shown; the natural instinct of self-preservation may be considered.
    3. Evidence—when objection to, comes too late. An objection to the competency of evidence comes too late when first made on appeal.
    4. Evidence—what competent as to care exercised with respect to approaches to bridge. Evidence of precautions taken by a city during the daytime to prevent the public from entering an open bridge is competent as tending to show the care which the 'public might expect to be exercised by such city in the night time.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagheb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed May 1, 1908.
    Statement by the Court. This is an action to recover for the death of Charles Thomas alleged to have been caused by the negligence of appellant.
    The accident occurred at the Twelfth street bridge November 7, 1902, at about 7:30 p. m. Two witnesses saw the deceased and his team go over the abutment into the river, the bridge having been opened to permit passage of a vessel. These men testify that they crossed the bridge from the west just before the accident; that when they were within a short distance of the bridge the bell on the bridge rang and they ran across while the bridge was turning. They continued their way eastward upon Twelfth street and saw ahead of them near the crossing of Twelfth street and Fifth avenue a team approaching at a walk from the east, the driver sitting in the wagon. They seem to have paid no further attention to the team until they looked around when they were near Fifth avenue about two hundred feet from the bridge, and saw the wagon with a man in it going over the edge of the abutment into the river. They ran back and saw a man “swimming around.” A vessel was coming through from the south. One of the horses was rescued. The .body of appellee’s intestate was recovered some days later. The deceased left a wife and five children.
    The issues were submitted to a jury which returned a verdict in favor of appellee for $5,000. Judgment was rendered accordingly, from which the city prosecutes this apeal.
    Edward J. Brundage, Corporation Counsel, and John B. Caverly, for appellant; Joseph B. David, of counsel.
    Miles J. Devine, for appellee; John T. Murray, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the city was not bound to maintain a watchman, nor to provide guards or chains at the bridge. It appears from the evidence that there was a chain at the entrance to the east end of the bridge which in the daytime was stretched across the street by an officer to stop traffic when the bridge was opened. At the time of the accident there was no officer there and the chain had not been put up. There is evidence not disputed to show that an electric light located on the street at the east end of the bridge was dim and ‘ ‘ flickering. ” As one witness says, “it was pretty near out, pretty near dark.” It is true the bell on the bridge was rung just as the latter was about to be swung open, but at that time deceased was apparently over two hundred feet away and according to one witness was on Fifth avenue, from which he was turning on to Twelfth street when the witness saw him. If this testimony is to be credited, and it is not questioned, the deceased was not in sight of the bridge at the time the bell gave its warning and possibly not in hearing of the bell. There was, it appears, a red light on the bridge itself, but it was at the time in the middle of the river, and not in a position to attract special attention. It is evident that such an opening in the public street over the river, with no one present to give warning and insufficient light to call attention to the absence of the bridge, was exceedingly dangerous. The city recognized the danger in the daytime and provided chain and watchman to guard against it. If it was regarded as the duty of the city to furnish such protection in the daylight, no reason appears why the duty should have been neglected after dark when it is obvious from the evidence the danger was greatly increased. In City of Chicago v. Wright, 68 Ill. 586, a case in which the facts were essentially like those in the case at bar, it was held that the jury having found the city guilty of negligence “in not using proper precautions to protect the public against casualties like the one in question,” there was nothing in the evidence to justify disturbing the verdict. To the same effect is City of Chicago v. Powers, 42 Ill. 169. It is not questioned that the light at the east approach to the bridge was at the time of the accident dim and nearly out.

In the case last cited it was held to be as much a part of the duty of the city “to light the bridge as any other portion of the street.” That duty was not being performed when this accident occurred, and we are of opinion the jury were justified in finding the city guilty of negligence in that connection. If the light was out of order it was the duty of the city to take other measures to guard the opening when the bridge was open. In City of Chicago v. Baker, 195 Ill. 54-61, it is said that whether or pot a city is bound to light its streets “it is not denied that where it undertakes to do so it must properly light” them.

It is urged, however, that if the city was negligent in not sufficiently lighting the approach to the bridge and in not maintaining guards or a watchman there it does not appear that such negligence was the proximate cause of the accident. The jury found otherwise and were, we think, amply justified by the evidence in so finding.

It is said the .evidence fails to show the deceased not guilty of contributory negligence. There was no witness and no evidence as to what precautions the deceased was taking, if any, when he approached the dangerous opening. Due care may, however, be “inferred from all the circumstances immediately prior to and at the time of the injury,” and “it was not incumbent upon appellee to establish care and caution” by direct and positive testimony. Chicago City Ry. Co. v. Fennimore, 99 Ill. App. 174-177; C. & E. I. R. Co. v. Beaver, 199 Ill. 34-36. The natural instinct prompting to the preservation of life, and the evidence of danger may be taken into consideration in determining such question. See also N. C. St. R. Co. v. Rodert, 203 Ill. 413-415.

Objection is made to the admission of the evidence which tended to show that a chain was in use at the approach to the end of the bridge at different times and that a policeman was stationed there in the daytime. The evidence was not objected to when introduced, and it is too late to make the objection here for the first time. We are of opinion, however, that the evidence was competent. The deceased had driven across the bridge in the 'daytime, and it was a question for the jury whether the city was negligent in omitting at night a precaution which the deceased might, so far as appears, have expected would also be taken when the bridge was open at night. We find no error in the admission of evidence tending to show the habits of the deceased as to sobriety.

Complaint is made as to certain instructions, but we find no material erroi in that respect. It is conceded the verdict and judgment are not excessive in amount.

The judgment of the Circuit Court must be affirmed.

Affirmed.