text:
    James E. Keelyn, Plaintiff in Error, v. C. G. Strieder, Defendant in Error.
    Gen. No. 14,440.
    1. Municipal Court—effect of failure to file statement of set-off. The failure of a defendant to file with his appearance a statement of his claim of set-off is waived -hy the plaintiff if he proceeds to trial upon such set-oif knowing that no such statement had been filed.
    2. Municipal Court—effect of oral statement of set-off. If a defendant has filed no statement of set-off as required by statute, but in lieu thereof makes an oral statement of the defense of set-off, he is as much bound by such oral statement as he would be by a written one.
    3. Negotiable instruments—what does not sustain defense of want of consideration. The defense of a want of consideration is not established by proof of partial failure of consideration.
    4. Negotiable instruments—as to what act of 1907 does not apply. The act of 1907 pertaining to negotiable instruments does not apply to a promissory note executed prior to its going into effect.
    5. Contracts—when rescission must he made. One who desires to rescind a contract for fraud must act promptly; he cannot be passive and speculate as to the result of his investment, and this is especially true of mining stock which is likely to fluctuate in value.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed May 3, 1909.
    Statement by the Court. The plaintiff in error, hereinafter referred to as plaintiff, sued the defendant in error, hereinafter referred to as defendant, on two promissory notes, one of date April 13, 1907, for the sum of $200, due thirty days after date, payable to the order of the Nevada Mine Owners Association and endorsed by said association to the plaintiff, and one of date April 24, 1907, for the sum of $600, with interest at the rate of six per cent per annum, payable to the same association, and by said association endorsed to the plaintiff. The suit was commenced September 19, 1907, and the last trial, which occurred January 23, 1908, was the second trial of the cause. The last trial was by the court, without a jury, and before any evidence was introduced the defendant, by his attorney, stated: “I wish to give notice of an offset, stating that the offset is for services and sale of 14.000 shares of stock, a commission of twenty per cent. Twenty-eight hundred dollars was the basis; that would be $560; and then we claim there is no liability on the note of $600 sued on, because it was given without consideration, making $1,160 against which they hold note of $100, $100 we have admitted to be due—what we have claimed—a difference in our favor of $460”. The defendant also tendered to plaintiff by his attorney four certificates of stock, numbered respectively 56, 57, 78 and 79, aggregating 3.000 shares, and asked plaintiff for $460 in settlement of the debt or obligation, which tender the plaintiff refused to accept. The court found the issues for the defendant and assessed his damages at the sum of $416.70, and after overruling motions of plaintiff for a new trial and in arrest of judgment, rendered judgment on the finding.
    Church & Sherburne, for plaintiff in error.
    Buckley, Gray & More, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The plaintiff put in evidence the $200 note above mentioned, and also the $600 note, and proved by the defendant that the signatures to said notes were his signatures, and that there remained due on the $200 note $100, and that he, the defendant, received from the Nevada Mine Owners Association a check for $600, on which he received the money, which check, with defendant’s endorsement on it, plaintiff put in evidence. Attached to the $600 note are three certificates, numbered respectively 75, 76, 77, each for 1,000 shares of the capital stock of the Groldfield Vaneda Mining Company, issued to C. Gr. Strieder, the defendant, and which were collateral security for the note. This evidence constituted a prima facie case, entitling the plaintiff to recover.

We will next consider the evidence in respect to the defendant’s claim that commission was due to him from the plaintiff on the sale by him of 14,000 shares of stock. It appears from the evidence that the Nevada Mine Owners Association was unincorporated, and that the plaintiff, James E. Keelyn, did business in that name, his office being in the city of Chicago. The evidence tends to prove that the plaintiff promoted the organization of the Groldfield Vaneda Mining Company, an Arizona corporation, which was chartered March' 21, 1907, with a capital stock of $1,500,000 divided into shares of $100 each. The general nature of its business, as expressed in its charter, is “to purchase, lease, or otherwise acquire, own, sell, let, operate or otherwise dispose of or deal in or with mines, mining lands, mining rights”, etc. Its property is in Nevada, and as the evidence tends to prove, consists of eight mining claims to which it has title, subject to the paramount title of the government, and two leases from the Ked Hills Mining Company, known as the October and St. Paul claims. Twenty thousand shares of the stock of the Arizona corporation, owned by the Nevada Mine Owners Association were allotted to the defendant, for sale on commission, the shares to be sold for twenty cents per share, defendant’s commission to be twenty per cent of the purchase price of the shares which might be sold by him. The defendant sold shares to various persons, for which, as he testified, he turned over cash or its equivalent to the association amounting to $3,200, and he says he reinvested the commission to which he was entitled in 4,000 shares of the stock. This disposed of the 20,000 shares, 16,000 being sold to others and 4,000 reserved by defendant to himself as commission. The 4,000 shares were issued to him and he testified, “When I got the shares of stock, that closed the deal”. Also, “I invested my commission in the stock. This transaction was closed up on the 6th of April”. So, far, the defendant’s testimony agrees with that of Mr. A. A. Heer, a witness for the plaintiff.

The defendant' testified as to the circumstances under which the $600 note was executed substantially as follows: He had a letter from a Mr. "White, to whom he had sent stock issued to him, “asking for $600 for the shares which he had agreed to purchase”, saying that he could not use the stock because of the restriction as to its being transferred or assigned prior to January 1, 1908, and that he, defendant, called on Mr. Heer and told him this, and Heer said they did not want any one who was dissatisfied to take the stock, and would return the money, and he told Heer that he had advanced the money for the WTfite stock, and Heer said to him to bring back the stock and he would give blm back his money. A few days later he, defendant, took "White to the office where Heer was, and the latter could not satisfy White, and, subsequently, defendant took "White’s stock to Heer, who said all right and gave bim a check for the money. It appears from the cross-examination of the defendant that 4,000 shares were issued to the defendant, and only 2,000 shares to White, and that the money, if any, which he advanced on the White shares could only have been $400, so that there was at least a consideration of $200 for the $600 note. The following occurred in defendant’s cross-examination :

“Q. How many shares of stock had White agreed to take? A. I made this proposition. I will take two thousand shares, perhaps three, at the time the deal was made with Heer, I said, You make it two thousand shares for White, four thousand for me, and I think White will take three thousand shares”.

The following questions and answers,, in defendant’s cross-examination, are in respect to the money received by him on the sale of shares:

“Q. Twelve hundred dollars from Riddel? A. Yes, sir.
Q. That is twenty-two hundred dollars? A. Yes, sir.
Q. And six hundred dollars from Graham, Deitz and Gorham; is that a fact? A. Yes, sir, and the balance from me.
Q. And that balance was four hundred dollars; not six hundred dollars, but four hundred dollars? A. Yes, sir.”

The claim óf the defendant, as stated by his counsel, before evidence introduced, was that the $600 note “was given without consideration”.

Section 43 of the act in relation to the Municipal Court provides: “In case the defendant shall desire, upon the trial, to present any set-off or counter claim, he shall file a statement thereof with his appearance”. No statement of set-off or counter claim was filed by the defendant. The plaintiff claims this was error, but he went to trial knowing that no such statement was filed by the defendant, and cannot now be heard to object. Nevertheless the defendant is as much bound by his oral statement of counter claim, on which the plaintiff went to trial, as if he had filed a written statement as provided by the statute.

The plaintiff, by section 40 of the act, when the suit is on a contract, is required to file a statement of the account or nature of the demand. A counter claim or set-off is legally a cross suit, and the evidence must be limited to the statement of it, as otherwise it might prove a delusion and a snare. Obviously, the object of the statute is that each shall have notice of the other’s claim, so that each may prepare for trial. McDonald v. The People, 126 Ill. 150.

In order to sustain the claim of no consideration, it is not sufficient to show a partial failure of consideration. The defenses of want of consideration and partial failure of considerati.on are separate and distinct (Wadhams v. Swan, 109 Ill. 46, 61), and the party pleading want of consideration must prove it by a preponderance of the evidence. Stacker v. Hewitt, 1 Scam. 207; Topper v. Snow, 20 Ill. 434; Mitchell v. Deeds, 49 ib. 416; McMicken v. Safford, 197 ib. 540.

In the case last cited the suit was on a promissory note, and the defendants pleaded want of consideration. The trial court gave to the jury the following instruction:

“It is sufficient in this case for the plaintiff to prove a promise to forbear bringing suit upon the note in question for a reasonable time, in consideration of the undertaking of the elder McMiclcen to secure the signature on the said note of the two defendants and the actual return of the note to the plaintiff hearing the signatures of the defendants, and that she thereafterwards actually forehore to bring suit for such reasonable time. This makes out a prima, facie case for the plaintiff and sufficiently supports the declaration to maintain a judgment, unless overcome by the testimony on the part of the defendants”.

The court held the instruction correct, saying: “Under the state of the pleadings in this case we are disposed to hold that the first proposition given on the request of the defendant in error was correct. The declaration contained the common counts and also a special count, and the note relied upon was offered in evidence and the signatures of plaintiffs in error thereto proved. As we understand the practice that has obtained in suits upon such instruments, that made a prima facie case for the defendant in error under the common counts, and if plaintiffs in error wished to rely upon their plea of want of consideration, they had a right to establish the facts alleged in their plea by evidence to be offered by them. (Stacker v. Hewitt, 1 Scam. 207; Hoyt v. Jaffray, 29 Ill. 104; Mitchell v. Deeds, 49 id. 416)”.

The cases cited rest on sound principle. If a defendant relying on a, counter claim or set-off, should bring an original suit, the burden would be on him to prove his claim by the greater weight of evidence, and there is no good reason why the same rule should not apply in both cases. The rule is the same in equity. If the defendant to a bill files a cross-bill praying affirmative relief, he must aver and prove facts entitling him to the relief prayed, or he fails; yet such cross-bill is a mode of defense.

Counsel for defendant claim that the burden was on the plaintiff, on defendant’s claim of want of consideration, to establish consideration and good faith, citing and relying on sections 28, 55 and 59 of the “act in regard to negotiable instruments payable in money”, approved June 5, 1907, and in force July 1, 1907. Section 194 of the act provides: “The provisions of this act do not apply to negotiable instruments made and delivered prior to the passage hereof”. The notes in question were executed respectively, April 10 and April 24, 1907; therefore consideration of the effect of the sections relied on by defendant’s counsel is unnecessary.

Mr. Heer, with whom defendant testified he dealt, testified as to the circumstances under which the $600 note was made, that after defendant had closed up the deal and all the stock which had been allotted to him had been issued and paid for, defendant came to his office and said there was one man—witness thinks White— who had failed to take his portion of the stock, and that he, defendant, had used money which he had on hand, and the failure had put him in a hole, and that he and defendant discussed what arrangement could be made to help him out, with the result that witness gave to bim the check of the Nevada Mine Owners Association for $600 and took his note with 3,000 shares of stock attached. Witness says his recollection is that he made ont the check the afternoon when the conversation occurred, and the next day defendant came to him, bringing the note and shares, which he took and gave the check to defendant. On cross-examination witness said: “Nothing was said, that I know of, at that time, in regard to the Nevada Mine Owners Association taking this White stock back in case Strieder was unable to obtain a purchaser for it”.

Evidence was introduced by the defendant on which his counsel rely as showing that representations were made with regard to the condition of thé property of the Goldfield Yaneda Mining Co. and the number of shares of the stock of the company, which had been subscribed for, and which affected the value of the shares, and which were false, and of such character that the defendant had a right to rescind the contract by which he acquired as commission 4,000 shares of the stock, and recover commission for the sale of 14,000 shares. Acting on this theory, he, by his counsel, produced and tendered to the plaintiff the 4,000 shares issued to him. The tender was refused, and plaintiff’s counsel contend that the tender came too late. The suit was commenced September 19, 1907; the stock was issued to defendant April 6, 1907, and the tender was made January 23, 1908, on the trial and just before any evidence was introduced. As before stated, a cross-claim is, in law, a cross-suit, and it would seem that the defendant should be in such position, in making such claim, as he would be required to be if he were bringing an original suit for the claim, and we think it is clear that if the defendant had brought an original suit for the claim, he would have been required to show, if he depended on rescission, that he had rescinded the contract, and had returned or tendered the defendant what he had received from him on the contract, before bringing suit; that he had placed the defendant in statu quo. However, we do not think it necessary to pass conclusively on this question. Defendant testified that a Mr. Edward White, who had been down to Goldfield, told him that things had been misrepresented; that nobody was working on the leases; and that a Mr. Shipman told him the same thing, and that, in the latter part of July or first of August, he, himself, went to Goldfield, and found the condition as had been represented to him, and that, when he returned he called on Mr. Heer and said to him that somebody had lied to him, defendant, and that “not until they made good on that proposition” would he take care of that note. He said nothing then about returning the stock, or the cancellation of the note. His language evidently indicates an intention to hold the stock until he could see how matters would turn out. September 6, 1907, the following letter was sent to him by the Nevada Mine Owners Association:

“Me. O. G. Strieder,
145 La Salle St.,
Chicago, Ill.
Dear Sir: On April 22nd last through Mr. Heer you received the Nevada Mine Owners Association check for $600.00 which amount at request of Mr; Heer was charged to bills receivable. The time has run along pretty well into the months and we deem it advisable to call your attention to the fact of the loan, and would ask that you come up to our office and adjust the matter at once, and greatly oblige,
Tours very truly,
Nevada Mine Owners Association”.

Defendant admitted having received the letter. On his cross-examination, after stating that he had received the letter, he was asked, “Did you adjust the matter”, and answered, “No, I didn’t feel like it”.

The defendant held his stock from April 6, 1907, till January 23, 1908, when the tender was made in court, more than nine months after the suit was commenced, and more than five months after he says he was informed that conditions had been misrepresented and after he had' inspected the property himself and had observed its condition, and more than four months after he received the letter of September 6, 1907, demanding settlement of the $600 note, which he ignored and says he did not settle because he “didn’t feel like it”. Nothing is better settled than that one who desires to rescind a contract for fraud must act promptly; that he cannot be passive and speculate as to the result of his investment; and this is especially true of mining stock, which is likely to fluctuate in value. Burwash v. Ballou, 230 Ill. 34; Follett v. Brown, 188 ib. 244; Bavarian Brewing Co. v. Farrar, 163 Ill. 471; Grymes v. Sanders, 93 U. S. 55, 62.

Counsel for defendant recognize the law to be as stated, and say that defendant did not discover the falsity of the alleged misrepresentations till the trial before Judge Scovel, “when Keelyn testified that he was the Nevada Mine Owners Association”. The trial before Judge Scovel was the first trial, and occurred October 14, 1907, and there is no evidence as to what Keelyn testified to on that trial, or that he testified at all. According to defendant’s testimony he was informed, prior to the last of July, or about the first of August, 1907, that there had been misrepresentations, and he went to Goldfield and inspected the property, and, returning, saw Mr. Heer and told him that somebody had handed them a lemon, etc. Our conclusion is that the evidence is not sufficient to sustain the defendant’s claim that the $600 note was given without consideration, or his claim for commission, and that the finding of the trial court is manifestly against the weight of the evidence.

The judgment will be reversed and judgment will be entered here for $700 and interest at six per cent per annum on $600 from April 24, 1907, the date of the $600 note. The date of payment of $100 on the note for $200 does not appear from the evidence. Conse-. qnently, interest cannot be computed on the remainder due on that note.

Reversed and judgment here.


source: Caselaw Access Project

author: Mb. Pbesiding Justice Adams

license: Public Domain

text:
    Julius Asmossen, Appellee, v. Swift & Company, Appellant.
    Gen. No. 14,449.
    1. Contributory negligence—when person scalded while at work in vat not guilty of. Held, that the plaintiff who was injured while at work about a vat by falling therein and being scalded, was not, under the evidence, guilty of contributory negligence.
    2. Master and servant—when doctrine of assumed risk does not apply. Held, under the evidence that the plaintiff who was injured while at work about a vat by falling therein and being scalded, did not assume the risk which resulted in his injury.
    3. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $2,000 was not excessive where it appeared that the plaintiff was severely burned about his legs and sustained injuries permanent in character.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Duptjy, Judge, presiding.
    Heard in this court at the March term, 1908.
    Rehearing denied May 17, 1909.
    Affirmed.
    Opinion filed May 3, 1909.
    Winston, Payne, Stbawn & Shaw, for appellant; John Babton Payne and John D. Black, of counsel.
    West, Eckhart & Taylob, for appellee.
   Mb. Pbesiding Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment for $2,000 recovered by appellee against appellant in a suit to recover damages for injuries claimed to have been caused by appellant’s negligence. The declaration is in case and contains only one count, and defendant, appellant here, pleaded the general issue. The sufficiency of the declaration is not questioned, nor is it claimed that there is any variance between it and the evidence. The jury found the issues for the plaintiff and assessed his damages at $2,000, and the court, after overruling defendant’s motions for a new trial and in arrest of judgment, rendered judgment on the verdict.

The plaintiff is, by birth, a German. He is a tinsmith and learned his trade in Germany. He has been in this country thirty-four years, the last twenty years of that time in the city of Chicago. He had worked as tinsmith for the defendant two years continuously next before August 29, 1905, the date of the accident, and was sixty years of age at that date. About nine or ten o’clock in the forenoon of August 29,1905, the foreman of the tinshop ordered the plaintiff to go to the fifth floor of the lard refinery- and repair a spot in the room, and referred him to the assistant foreman of the refinery, and it appears from the testimony of Sullivan, the assistant foreman of the lard refinery, that he showed plaintiff the job, which was to repair a pipe. It also appears that plaintiff knew where the pipe was. Plaintiff went up to the fifth floor, taking with him his helper, John Bock. The room in which the pipe was is thirty feet in length from east to west, and twenty feet wide from south to north. There is a vat in the southwest corner of the room, situated about five feet from the west wall and four feet from the south wall. It is about ten feet in length, from east to west, about three and a half feet wide and three and a half feet deep.- It is constructed of two inch planks, and there is an iron rod across it from side to side, about the middle of its length, to hold the sides together. The pipe to be repaired was of galvanized iron and was six inches in diameter. It came from the roof through the ceiling of the room and turned with an elbow near the east end of the vat, and then ran west, horizontally, over the centre of the vat to and through the west wall. It was five or six feet above the top of the vat. Two pipes run into the vat from the roof, one a water pipe, one inch in diameter, tkpough which cold water was introduced into the vat, a®B which ran down eighteen inches into the vat; the other is a steam pipe an inch and a half in diameter, which runs nearly to the bottom of the vat. It branches out into two pipes at the bottom, which are situated about nine inches from the sides of the vat, one on each side. These pipes are about two and a half or three inches above the bottom of the vat, and are perforated with holes a few inches apart to permit steam to escape. Each of the water and steam pipes is operated by a valve, by means of which the water or steam is let into or excluded from the vat. The vat was used for washing greasy rags, the rags being in constant demand in the refinery.

Plaintiff and his helper, Bock, were the only witnesses who observed and knew of their own knowledge whether there was any water in the vat when they first saw it, on the day of the accident, and both of them testified that the vat was empty, that there was no water in it, and plaintiff testified that while he was taking the old pipe down there was no water in the vat. Some of defendant’s witnesses testified to the custom of letting in the cold water and steam, from which it is sought to be inferred that there must have been water in the vat when plaintiff and his helper went to it to do the work ordered. When plaintiff arrived at the vat he directed Bock, his helper, to go for a heavy plank. In about twenty minutes Bock returned with a plank about six feet long, ten or twelve inches wide and an inch and a half thick. During Bock’s absence, plaintiff made straps of galvanized iron to hang the pipe. The plank was placed, resting on the east end of the vat,-which it extended over eight or more inches, and on the iron bar which ran from side to side of the vat. Plaintiff then got on the plank and he and his helper took down a piece of the old pipe about ten or twelve feet in length, and a part of the elbow. Plaintiff and Bock both testified that there was no water in the vat at that time. When the old pipe was taken down, plaintiff removed the plank from the vat and placed it against the north wall of the room, and he and his helper then went to the tinshop with the old pipe, made a new piece of pipe and an elbow and returned to the vat, and found that there were four, five or six inches of water in it, and plaintiff told the vat-man not to put any more water or any steam in the vat till he should have finished his work, and after he had replaced the plank on the vat and was trying to place the new pipe in position, the vatman commenced to turn on the steam, and plaintiff told him ‘to -shut it off, that the job would be finished in twenty minutes; but the vatman said, “I can’t wait for you fellows; I have to get my day’s work done”, and continued to turn on the steam. This occurred very shortly before the accident. The plaintiff, at the time of the accident, was standing on the plank near the east end of the vat, trying to slip the elbow over the collar. The new piece of pipe weighed between fifty and sixty pounds, and while he was thus engaged, he says the steam came up so that he could not see, and he slipped and jumped down into the hot water. He says he guesses that the plank slipped. Bock’s testimony is corroborative of the plaintiff. He testified, in substance, that the vat-man turned the steam on while plaintiff was on the plank, and it was a couple of minutes before it came up through the water, and then it came up pretty fast; that plaintiff was standing about two feet from the east end of the vat, working on the elbow, and was shoving the pipe to the south when he slipped.

Appellant’s contentions are, that plaintiff assumed the risk of the work which he was doing at the time of the accident; that he was guilty of contributory negligence; that the court erred in refusing to direct a verdict on defendant’s motion and tendered instruction to that effect; and in admitting improper evidence for plaintiff, and in refusing instructions requested by defendant, and that the damages are excessive.

It is the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place in which to work, and to so maintain it. Whether the defendant in the case at bar, acting by its servant, the vatman, was guilty of negligence which caused the injury to the plaintiff, in turning steam into the vat while plaintiff was at work over it, in pursuance of a proper order given to him by his foreman, was a question for the jury. The jury found for the plaintiff on that question, the evidence supports the finding, and it is not contended by defendant’s counsel that the defendant was not negligent.

The defendant’s negligence is sought to be avoided by the contentions that plaintiff assumed the risk, and was also guilty of contributory negligence. What risk did he assume and in what was he negligent?' When he went to the vat it was empty. It was only three and a half feet in width and the same distance above the floor. There certainly was no obvious or extraordinary risk in placing a - plank of the dimensions shown by the evidence, as the plank in question was placed, and commencing the work which plaintiff had been directed to do, and plaintiff took down the old pipe without difficulty or accident. The vatman, William Seaman, also referred to as Zener in the evidence, who died before the trial, must have known, when he saw the plaintiff take the old pipe down, that it had to be replaced, and, after plaintiff returned from the tinshop with the new pipe, he was requested by plaintiff not to turn either water or steam into the vat before plaintiff should complete the job. When plaintiff got on the plank to hang the new pipe, there was in the vat four or five inches of water. He had to proceed with his work. What more could he have done for his safety than request defendant’s servant, as he did, not to turn in any water or steam? Can it be reasonably said that after making such request, he assumed the risk of the steam being turned on? We think not. Subsequently, while plaintiff was at work, trying to hang the piece of pipe ten or twelve feet long, six inches in diameter and fifty to sixty pounds in weight, Seaman commenced turning steam into the vat, notwithstanding plaintiff’s direction to the contrary, and continued so to do until the steam became so thick and hot as to obscure plaintiff’s vision, with the unfortunate consequence that he slipped into the hot water in the vat and was injured.

Of the witnesses who testified, the plaintiff and Bock are the only ones who saw the accident and who knew, of their personal knowledge, of the conditions before and at the time of the accident.

In Illinois Steel Co. v. Bauman, 178 Ill. 351, the plaintiff was injured by the intentional act of a co-servant in pouring an excessive quantity of slag into a mold, which caused an explosion, by which plaintiff was injured. The court say: “It cannot be said that an explosion occasioned by the intentional act of a pourer, in purposely permitting slag to pass into the molds, in a quantity known to be dangerous, is, as a matter of law, one of the ordinary, usual and known risks of his employment. Whether it is so is a question of fact—not of law”. Ib. 355.

The question whether the plaintiff assumed the risk, in the present case, was submitted to the jury by an instruction given at defendant’s request, and we do not disagree with the finding that he did not.

Defendant’s counsel contend that the plaintiff, knowing the danger of remaining on the plank when the steam was being turned on, was guilty of contributory negligence, and cite the following testimony of plaintiff in support of the contention:

"Q. And you knew that you could not work up there safely with the steam coming from there; is not that so?
A. That is the reason I told him. That is the reason I said for him to shut off the steam.”

But, certainly, the plaintiff could not reasonably anticipate that Seaman, the man in charge of the vat, would turn bn the steam at all, or would continue to turn it on after plaintiff had directed him to shut it off.

It is further contended that plaintiff, in remaining on the plank after he knew that the steam was being turned on, was guilty of contributory negligence. The plaintiff, while the steam was being turned on, was holding up the east end of a 50 or 60 pound piece of pipe, at the elbow near the east end of the vat. Had he jumped to the floor, as it is said by defendant’s counsel he might have done, the pipe, the west end of which was hanging loosely on a hanger, would necessarily have fallen and perhaps have broken, and, in falling, might have injured the plaintiff. He was in a dangerous position, standing on the plank and holding up that weight,- and had little time to think. Under these circumstances, it cannot be said, as matter of law, that he was negligent in not dropping the pipe and leaping to the floor.. This was a question for the jury (Ill. C. R. Co. v. Anderson, 184 Ill. 294, pp. 303304), and we do not dissent from the finding as to contributory negligence.

The objections that the court erred,in refusing to direct a verdict for defendant, and in admitting and refusing to strike out certain evidence for appellee, are without merit.

Counsel for defendant quote at. length, in their argument, certain instructions offered for defendant, which they say the court erred in refusing. All they say in reference to these instructions is this: “A reading of these instructions makes clear the view of the trial court, in refusing to grant the peremptory instructions.” We think it very clear that the court properly refused to take the case from the jury.

Plaintiff testified that his helper took him out of the vat; that there was no skin on his legs from his knees to his ankles, and one leg was burned over the knee. He was taken to the County Hospital in an ambulance, where he was put to bed and his legs bandaged. Every day for a week, sometimes twice, he was taken to the operating room and diseased flesh removed from his legs. He remained in the hospital for six weeks, unable to walk. He left it on crutches and went, with the aid of another person, to the room which he had occupied prior to the accident, where he remained a week. He then became worse, and was treated by two physicians for a short time, when he went to the Alexian Brothers Hospital, where he remained under treatment for three weeks, when he again returned to his room. His wages were $10 per week, and he could not go to work until February, 1906, about six months after the accident. Doctor Hall examined the plaintiff the day before the doctor testified. He testified that he found scar tissue practically all over his right leg from two inches above the knee to the base of the toes, and that the left leg was in the same condition except the scar tissue did not extend above the knee, and that there was a general varicose condition of the veins of the legs; that the legs above the knees were in a normal condition and without varicose veins. He further testified that if the plaintiff was, before the accident, in good health, the accident would be a sufficient cause for the conditions which he found. Also, that it would be necessary for plaintiff to keep his legs bandaged to prevent the varicose veins from breaking. The plaintiff was in good health before the accident. We cannot sustain the objection that the damages are excessive.

We find no reversible error in the record. Therefore, the judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Harry W. Kinney, Appellant, v. Caledonian Insurance Company, Appellee.
    Gen. No. 14,444.
    This case is controlled hy the decision in Kinney v. Rochester German Ins. Co., 141 Ill. App. 543.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed May 3, 1909.
    Morris St. P. Thomas, for appellant.
    Bates, Harding & Atkins, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

The controlling questions in this cause were all decided by this court in the similar suit of Kinney v. The Rochester German Insurance Company, disposed of here on appeal June 11, 1908. (141 Ill. App. 543.)

That suit and this one were on policies of insurance issued at the same time on the same application through the same agents and on the same property. The claim is made on the same fire loss.

There was the same prima facie case for the plaintiff made by evidence and stipulation (except as to the amount due if the defendant was liable at all), and although the pleadings were different in that they were special in the case at bar, while only the general issue was pleaded by the defendant in the Rochester German Insurance Company case, the same defenses were made to the respective policies and with the same result in the Municipal Court. Those defenses were cancellation of the policy under its terms by written notice to the assured, making it expire on October 24, 1906, the day before the fire occurred, and that the policy was void from the beginning because there were misrepresentations and concealments made by the assured’s agent at the time of the application. The policies in the respective suits each contained the clause quoted in Kinney v. Rochester German Insurance Company (supra) avoiding the policy if the assured had concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof, and under this clause it is claimed, as it was in the Rochester German Co. case, that the policy was void when issued, inasmuch as some person represented to the agent of the defendant from whom the policy was procured, at the time it was procured, that the property was occupied as a scale factory only, and concealed from him the fact that it had in it also a candy factory.

Both cases were heard without a jury, but by different trial judges.

In the present case some rulings made in the Rochester German Company case on the admission of evidence, which we deemed erroneous, were not made, but on the essential matters, on which the decision of that case turned, the view of the trial judge below in the present case was identical with that of the trial judge in the Rochester German Company case, which at the time of the trial of the ease at bar had not been decided in this court. They both apparently held that the cancellation had not been effected as claimed by the defendant. This is shown in the present case, as in the former, by one of the propositions of law marked “held” by the court. It is not necessary to pass on the proposition insisted on by the appellant, that in the absence of an assignment of cross-errors, the appellee is foreclosed from questioning this holding of the trial court, because, for the reasons which we have set forth in the opinion in Kinney v. Rochester German Insurance Co. (supra), we agree with the judge of the Municipal Court, that the attempted cancellation never became effective. The attempt was identical for the two policies, as will be seen by reference to the recital of facts in the opinion in the Rochester German Insurance Company case.

But both judges in the Municipal Court held that the policies had been procured through concealment and misrepresentation, in that the partial occupancy of the premises insured by a candy factory had been withheld from the knowledge of the insurer’s agents, and in that one Alexander M. Boss, or some other employe of Cummings & Co., the brokers who procured the insurance for the plaintiff, at the time of securing the same had stated to one Sweetland, who represented the insurers, that the building was occupied as a scale factory, while as a matter of fact there were both a scale factory and a candy factory in it.

On this matter there was some variation in the testimony of Mr. Sweetland as given at the two trials. He was testifying in the case at bar as to the same transaction and to • the same conversation which he had testified to in the case against the Rochester- German Insurance Company. In the latter case, however, he swore that there was a written application made by the representative of Cummings & Co., who asked for the insurance, and that it must have been destroyed; in the case at bar he swore that there was no such written application, basing his statement, he says, on the fact “that after the trial” (of the Rochester German Company case) he “went through all his records,” and “went through everything” he “could think of and refreshed his memory to the extent that he found the application was the forms brought in.” The “forms” he referred to were slips which located and described the building, but without stating the occupancy thereof, while a written application would have contained all the details of information concerning occupancy that the Insurance Company could need. The opinion in Kinney v. Rochester German Insurance Company (supra) alludes to the “written application” and to the acknowledgment that it had been destroyed, and, to the slight extent that the inferences drawn from the record in that case depended on that aeknowledgment, they fail in the present suit. Bnt we deem this of slight importance and more than counterbalanced by the doubt which even in the absence of other considerations is thrown on the accuracy of Mr. Sweet-land’s recollection and testimony by the discrepancy, which is but imperfectly explained.

In other respects we do not see but that the recital of facts and the inference drawn by this court from them in the Rochester German Company case on the question of the alleged concealment and misrepresentation are equally applicable to the case at bar. They need not, therefore, be repeated. We refer to the opinion in that case as furnishing reasons for our decision in this.

The question concerning the identity of the representative of Cummings & Company who called for the insurance, Is not, we think, after careful comparison, so different as to make our reasoning in the former •case of less force in this.

The admission of the “rate slips” 563 and 611 in this case make the case shown by the record even stronger against the companies than in the Rochester German Company case.

We feel constrained in this case, as we did in that, to reverse the judgment appealed from and to render the judgment here which the Municipal Court sitting without a jury should, in our opinion, have entered; that is, a judgment in favor of appellant and against appellee for $997.50, with interest thereon at five per cent per annum from February 18, 1907, to the date of entry.

Reversed and judgment here.


text:
    Harry W. Kinney, Appellant, v. Buffalo German Insurance Company, Appellee.
    Gen. No. 14,445.
    This case is controlled by the decision in Kinney v. Caledonian Ins. Co., ante, p. 256, and Kinney v. Rochester German Ins. Co., 141 Ill. App. 543.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed May 3, 1909.
    Morris St. P. Thomas, for appellant.
    Bates, Harding & Atkins, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

There is no essential difference between this case and Harry W. Kinney v. Caledonian Insurance Company, No. 14444, ante, p. 256. We refer to the opinion in that case and to the opinion in Kinney v. Rochester German Insurance Company, 141 Ill. App. 543, for the reasons which compel us in this ease to reverse the judgment of the Municipal Court and to render judgment in this, court in favor of the plaintiff (appellant) against the defendant (appellee) for $997.50, with interest thereon at the rate of five per cent per annum from February 18, 1907.

Reversed and judgment here.


text:
    Kate Garrity, Appellee, v. Chicago Car Seal and Manufacturing Company, Appellant.
    Gen. No. 14,450.
    Master and servant—when question of assumed rish determined hy the jury. Held, under the evidence, that it was for the jury to determine whether the plaintiff had assumed the risk arising from the use of a defective machine, it appearing that the plaintiff knew that the machine was defective, but it not appearing that the knowledge of the plaintiff extended to the particular danger which resulted in injury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the March- term, 1908.
    Affirmed.
    Opinion filed May 3, 1908.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county in favor of the appellee, who was plaintiff below, against the appellant, who was defendant below. The judgment was for $2,000 and was entered on the verdict of a jury for that amount in an action on the case for personal injuries.
    The plaintiff’s declaration was in three counts. In the first count it alleged that the defendant corporation allowed a machine, which it owned and operated for cutting strips from sheets of tin, to become so out of order that it repeated,—that is, set its knives in motion without the pressure of the operator on the treadle,—and then ordered the plaintiff, who was in its employ and who did not know that the machine was thus out of order, to operate said machine, with the result that the machine started of itself without the foot of the plaintiff on the treadle, and cut off a part of two fingers of the plaintiff’s right hand.
    The second count described an instrument called a clip attached to said machine, and alleged the duty of the defendant to keep the clip in order, so that said clip would draw back from between the knives of said machine the last strip of tin cut from said sheet. It then alleged that the defendant neglected the duty and permitted the clip to be so out of order that said clip would not hold sheets of tin tightly, and would not draw back the last strip of tin cut from said sheets, but would slip from said strip of tin without drawing said strip back. The plaintiff, the count alleged, did not know the clip was out of order, but the defendant, knowing that the machine and clip were out of order, directed her to work on said machine and to use the machine for cutting sheets of tin into strips and to use the clip to hold said sheets of tin. While the plaintiff, in the exercise of due care and diligence, was obeying the order, she tried to draw out the last strip of tin cut from said sheet. The clip slipped from said strip, and the plaintiff, while removing with her fingers said strip of tin, had the first and second fingers of her right hand maimed and injured by said machine starting suddenly.
    The third count alleged the duty of the defendant to keep the machine in repair so that it would not start of itself, and that its knives should not move until the operator pressed the foot treadle, and its further duty to provide a clip for the machine which should hold the last strip of tin tightly and enable the operator to withdraw the last strip of tin from the knives when cut. It further alleged the neglect of both these duties by the defendant, and its permitting both machine and clip to become out of order so that the knives would come together without the treadle being pressed, and the clip would not tightly hold the sheets of tin and would not withdraw the last strip of tin from the knives when cut. The defendant, knowing of these conditions, ordered the plaintiff, who did not know of them, to work on the machine, and while obeying, the plaintiff tried to withdraw the last strip of tin cut from a sheet of tin; the clip slipped from said strip and plaintiff was obliged to use her fing-ers to remove said strip. While she was removing it with her fingers, which it was perfectly safe to do while said machine was at rest, said machine suddenly started, against the will of the plaintiff, and cut off portions of the first and second fingers of her right hand.
    To this declaration the defendant pleaded not guilty and the issues were submitted to a jury. After the evidence on both sides was concluded a motion for a peremptory instruction, made by defendant, • was denied. The verdict before noted followed, and after a motion for a new trial and a motion in arrest of judgment had been overruled, the judgment herein appealed from was entered. The assignments of error complain that the verdict is against the law and the evidence, that the damages are excessive, and that the trial court erred in rulings on evidence and rulings on instructions.
    Frank M. Cox, for appellant; Morse Ives, of counsel.
    Daniel Y. Gallery, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The evidence in this case shows clearly that the machine by which the plaintiff was injured as described in the declaration had been out of order for years. Sometimes the springs would weaken and sometimes the clutch, so-called, would become loose. Either condition made the machine likely to “repeat,” that is, after the foot of the operator had been removed from the treadle which set the machine in motion, the knives would fly up and down several times automatically. The appellant knew of this defective condition, for the attention of its machinist had been often called to it. That such a condition of machines like this is not an unusual one, but is always dangerous, may be said to be a matter of common knowledge.

The contention is made by the defendant that the machine was not out of order. This contention is based on the testimony of the machinist for the defendant company, who operated the machine for fifteen minutes after it had cut the plaintiff’s fingers off, and said it did not repeat and that he found nothing wrong with it; on the testimony of one J. Case, who, as one of the witnesses for the defendant, testified, “always operated every machine that any girl got hurt on,” and who accordingly operated the one in question shortly after the accident; and the testimony of a mechanical expert (Bergman) that “he knew of no possible condition that might exist in that press that would cause it to voluntarily repeat once or twice and then stop itself, and work all right for awhile.”

But despite this testimony, the stubborn fact remains that the machine was certainly out of order, that it did “repeat,” starting automatically, and that it did cut a part of the plaintiff’s fingers off.

The strength of the defendant’s case does not lie in the denial of the defective condition of the machine or of the want of knowledge on its part that the machine was defective, but in the contention that the plaintiff too knew this, and assumed the risk. It is certain that the plaintiff did know that the machine was defective and had had long experience with it, an experience running over several years. It is a harsh application of the doctrine of assumed risk to hold that a woman, even though of mature age and intelligence, is prevented from recovery for an injury resulting from being specially set to work by her foreman on a defective and dangerous machine, known by the employer to be defective and dangerous, because the employe too knew and feared the danger. However, though such a condition too often means the alternative of losing the employment or incurring the danger, the law does hold firmly to the proposition that where the order, although specific, is to do usual work in the ordinary line of the employe’s duty, the employe assumes the risk of all dangers or defects with which he is familiar. Still, under all ordinary circumstances the question of the assumption of risk is for the jury under proper instructions, and it was left to the jury in the present case, under instructions which we think correct, such as VI, VII, XVII and XX.

But it is said that the verdict and judgment as rendered were against the weight of the evidence, if the jury, as it was hound to do, assumed the legal doctrine to be laid down accurately in these instructions.

We think that the defendant’s citations fail in point and are distinguishable by this following consideration:

Knowledge that the machine was dangerous and defective having been brought home to the defendant who owned, controlled and operated the machine, the jury could rightfully attribute to it knowledge of all its dangers and the exact character of its defects. Since it knew that the machine was dangerous and defective and ordered its use nevertheless by its employes, it cannot be heard to say that it did not know that its defect was such that it might “repeat,” as it did, some time after the operator’s foot had been removed from the treadle.

But on the other hand, it was proper for the jury to consider the actual extent of the familiarity or knowledge of the employe with the danger or defect, or to put it in another form, the actual extent of the danger of which she had knowledge and familiarity. No knowledge of any greater risk than the evidence showed she actually had knowledge of, need be imputed to her. It was proper for the jury to consider from the evidence what that was. The jury were told that if they believed that the risk or danger which resulted in the accident was obvious and patent, the plaintiff could not recover. They evidently found that it was not obvious or patent, and we cannot disturb their finding, if for no other reason than that they had before them for examination and demonstration the machine itself, which we have not. Repeatedly the witnesses are noted to have “indicated” on the machine and otherwise, matters which we cannot follow exactly from the record, but from the testimony, indications and demonstrations, the jury evidently believed that the defect which caused the machine to “repeat” and the knives to fall was not obvious or patent to the plaintiff.

But it is said that the evidence showed her to have actual knowledge of the defect and of the danger which it involved. This was also left to the jury under the instructions, and here it is that the question of the weight of the evidence becomes acute.

The plaintiff claims that the evidence shows only that, in the language attributed to the trial judge in the appellant’s brief, she knew that the machine “wa's liable to repeat, but did not know it was liable to repeat under the circumstances under which it did repeat. She did not know it would repeat after it had once stopped.”

We think this distinction fairly taken. There was evidence tending to show that her experience had been that unless the machine “repeated” immediately after her foot was removed from the treadle it would not repeat at all, and evidence tending to show that before the accident she exercised the care which she deemed sufficient by waiting for a brief space after removing her foot from the treadle for “the repeating” which she had reason to fear, and only put her fingers near the knives when she supposed that danger was no. longer to be feared. The supposition proved contrary to the fact, but the question for the jury was, did the evidence show her to have or place her under the presumption of having knowledge to the contrary. The jury answered the question in the negative. We shall not disturb their verdict.

The question of contributory negligence was also for the jury. The defendant insists that it was contributory negligence for the plaintiff to put her fingers beneath the knives; that she should have used a stick or hook. Had the machine not been defective, there would have been no danger in putting her fingers under the knife.

As the trial judge wrote on the margin of “Instruction XVI” when refusing it as tendered by the defendant, “The danger was not from putting fingers under knife, but from machine repeating. There was no danger from a good machine.” The jury evidently thought the same way.

This leaves only the matter of instructions to be considered. We do not consider that there is any error in Instruction A on the measure of damages. The argument of defendant’s counsel that the jury could have been misled to suppose that they could consider any injuries except those sustained by reason of the occurrence involved in the suit, does not seem to us sound.

Instruction XIV was modified so as to make it unobjectionable and given.

Instruction IX was properly refused, for the reason that under the circumstances of this case it might be misleading. It directed a verdict for the defendant if the plaintiff “knew of the liability of the machine to repeat,” but, as the trial judge in effect noted on it in refusing it, the plaintiff might have known of the liability of the machine to “repeat” under certain conditions and not known that it had that liability under others.

Instructions X and XII and XVIII were covered by those which were given.

Instruction XVI was as follows:

“If you believe from all the evidence that plaintiff before she was injured, knew, understood and appreciated the danger of having her fingers under the knife when the knife came down, and that it was unnecessary for her to do so in performing her work, then it is immaterial from what source plaintiff acquired this information as to the danger, whether from her own actual experience and observation in operating the machine or otherwise.”

That this proposed instruction was unnecessary and misleading in the view of the trial judge was shown by his comment on it in refusing it as shown by the record: “The danger was not from putting fingers

under knife, but from the machine repeating. There was no danger from a good machine. It might not have been necessary for plaintiff to have put her fingers under the knife, and still in the exercise of ordinary care she might have thought so.”

We think this not an inapt comment, and that it implies a sufficient reason for refusing the instruction.

The damages are large, but we.do not consider them excessive, nor is it so argued.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Netta Lakin, Appellant, v. South Side Elevated Railroad Company, Appellee.
    Gen. No. 14,455.
    1. Appeals and errors—what question presented upon review of action in giving peremptory instruction. If a peremptory instruction has been given, the question to be considered on appeal is, was there any evidence given, or any evidence excluded which ought to have been admitted, which with all the inferences properly to he drawn therefrom, tended, if true, to prove the plaintiff’s case as set forth in the material allegations of the declaration.
    2. Negligence—what tends to establish, in action by passenger. A space between a car from which a passenger on an elevated train is invited to alight, and the platform, may, under all of the circumstances of the case, constitute such negligence as will justify a verdict in favor of a passenger injured in consequence.
    3. Passenger and carrier—care required of latter. A carrier is required to exercise the highest care which is compatible with the practical and practicable operation of its road.
    4. Passenger and carrier—what not contributory negligence by former. It is not contributory negligence as a matter of law for a passenger in leaving an elevated car to look straight ahead and not downward.

      5. Judicial notice—of what taken. Judicial notice will be taken of the absence of daylight at a given time of day in a particular month.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed May 3, 1909.
    Harper E. Osborh, for appellant.
    William: B. Moss and William H. Haight, for appellee ; Noble B. Judah, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This case was taken from the jury in the Superior Court by a peremptory instruction for the defendant. There is only one question, therefore, for us to consider. It is this: Was there any evidence given or any evidence excluded which ought to have been admitted, which, with all the inferences properly to be drawn therefrom, tended, if true, to support the plaintiff’s case as set forth in the material allegations of her declaration? Rack v. Chicago City Railway Company, 173 Ill. 289; Woodman v. Illinois Trust & Savings Bank, 211 Ill. 578; Libby, McNeill & Libby v. Cook, 221 Ill. 206.

The material allegations of the declaration, on which the contention between the plaintiff and defendant turns, are these:

In the second count they are that the defendant “carelessly and negligently stopped” its “train at a place where there- was a large opening between the platform" of said train and the platform of said Twelfth street station, which was unknown to plaintiff,” but known to the defendant, by reason whereof the plaintiff, “while attempting with all due care and diligence to alight from said train, stepped in said opening” and was injured.

In the fourth count they are the same, and the additional one that the defendant invited' the plaintiff to get off at its Twelfth street station by announcing the name of the station and opening the gate of said car.

In the fifth count there are the same allegations as in the fourth, and the additional one that it was the duty of the defendant to have good and sufficient light so that the said opening between said platform of said station and the platform of the car on which plaintiff was riding would be plainly visible at all times, but that the train arrived at six o ’clock in the evening on November 11th and the platform was dark.

The seventh and last count contains nothing additional to the preceding ones. The plaintiff discontinued as to the first, third and sixth counts.

The evidence tended to show that the plaintiff entered the train of the defendant as a passenger on November 11, 1905, at about 5:30 p. m. at the LaSalle street station on the loop and paid her fare. She had never been on the Elevated Bo ad but twice before and had never got on or off the cars at the Twelfth street station. She entered the ear by the front door, walked back in the car to find a seat and found one near the rear door. When the Twelfth street station was reached the train stopped, the guard called out the name of the station and opened the gates. The plaintiff, Mrs. Lakin, stepped to the rear door. On the rear platform there were three or four people standing, who went on further. But at least two or three people besides the plaintiff got off the car, stepping from this rear platform to the platform of the station. They were all ahead of her. The two persons imme: diately in front of her were women, and one of them wore a long, trailing skirt. The plaintiff looked straight ahead of her on a level, she says, and stepped off the car platform, the gates closing and the train starting as she did so. She did not step on the platform of the station, but fell between that platform and the cars and was injured. At the time she attempted this passage from car to station, the car platform was directly opposite the inside stairway in the platform of the station. The opening into which she stepped (to give the largest distance the evidence tended to show) between the car platform and the station platform, was 20 inches wide.

At the point involved, the Twelfth street station platform was curved. (A map or drawing was shown to the court below, which is not incorporated in the record.) Therefore, whenever a south-bound car stopped so that the rear car platform was opposite the entrance to the station stairway, as it was in the present case, there would be a space of 16 to 20 inches between the rear car platform and the station platform, while the forward or southern portion of the car would be that less distance from the station platform which is the necessary and usual space allowed in running by and standing alongside of a station platform which is straight.

It does not appear precisely on what considerations the trial judge took the case from the jury, but the argument of the defendant’s counsel seeks to justify it on two grounds.

It is said, first, that no evidence tending to show negligence on the part of defendant had been offered by the plaintiff; and, second, that the evidence did so clearly show negligence on the part of the plaintiff materially contributing to the injury that there could be no question thereof in the minds of reasonable men. This being so, it mattered not whether the defendant was or was not negligent.

After a careful consideration of the authorities cited and the arguments advanced by appellee, we are unable to assent to either of these positions, and think the case should have been submitted to a jury, both on the question of the alleged negligence of the defendant, and of the alleged contributory negligence of the plaintiff. We shall speak with reserve of the effect of the evidence on our minds not desiring to indicate to what judgment on the evidence our minds inclined. We do not think there was material error in excluding offered evidence, hut we cannot and do not agree with the conclusion of the defendant that proof of the existence of a space between a car, from which a passenger on an elevated train is invited to alight, and a platform, cannot tend to prove negligence to men of reasonable minds. The width of the open space, the cause or necessity for its existence, the degree of light and other concomitant circumstances are to be considered before such a conclusion can be reached.

We have carefully examined and considered the opinions in the various cases cited by the respective parties on this question. We do not purpose to analyze or criticise them herein, but a comparison of them impresses us with the strength of the plaintiff’s position, that the true test of actionable negligence in this regard may well be,, whether the highest care which is compatible with the practical and practicable operation of the road has been exercised as to this matter of running the car platform to a line less than a dangerous distance from the station platform. We think the doctrine of the New York and Massachusetts and Illinois cases cited can all be reconciled on this theory.

We do not think that when once the relation of carrier and passenger is established, ordinary as distinguished from the highest care will fulfill the duty of the carrier towards the passenger in the arrangements made for his alighting from the cars. We think the contrary is the case.

The question of contributory negligence we think was also a question for a jury under the circumstances shown by the evidence. The absence of daylight at the given time of day on a November night, in this latitude, is a matter of which the court takes notice. The presence of artificial light, if it existed, we think was a matter to be proved under the conditions shown, if set up by the defendant as proof of contributory negligence on the plaintiff’s part. To look straight ahead and not downward is not necessarily (so that no reasonable minds conld come to a different conclusion) negligence in stepping from a car platform which is level with a station platform. It may be, and it may not be, it seems to us, as conditions and circumstances may determine. The analogy between stepping from a necessarily elevated point to the ground, and from a car platform into an opening between that platform and a stationary platform on the same plane, is hardly sound.

As we have said, without intending to indicate our own view of the facts as presented by the plaintiff, or whether, thus presented and undefended, they establish or refute the alleged liability, we do decide that this question is not one which can be treated as one of law only, nor one of mixed law and fact, on which reasonable minds cannot differ.

We think, therefore, it should have been submitted to a jury, and for that reason the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    Henry H. Kennedy and Harry A. Daugherty, Executors, Appellees, v. Aetna Life Insurance Company, Appellant.
    Gen. No. 14,426.
    1. Insurance—when recovery upon accident policy sustained. Held, under the evidence, the recovery awarded was properly sustained in that the evidence, circumstantial in character, tended to show that the death of the insured resulted from a cause covered hy and included within the terms of the policy in suit.
    2. Evidence—effect of circumstantial. If a fact be not susceptible of direct proof, circumstantial evidence is not only competent to establish such fact but frequently is more satisfactory and convincing in character than direct testimony would have been.

      Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Merbitt W. Pinckney, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 3, 1909.
    Statement by the Court. This is an action for a death claim under an accident policy of insurance issued by the defendant company to the plaintiffs’ testator, James A. Fullenwider.
    The cause was tried before the Circuit Court with a jury and resulted in a verdict and judgment for $5,832.85, the maximum amount recoverable under the terms of the policy, with interest. The cause was tried under a declaration as amended, consisting of three counts, to which defendant pleaded the general issue, together with a special plea to the first count, which was withdrawn on the trial under a stipulation between the parties that the defenses relied upon in said plea might be put in evidence under the general issue. Such defenses are to the effect that defendant was not liable for more than $400 because Fullenwider met his death by some unknown person intentionally firing a bullet into his body.
    The three counts above referred to recited, first, that Fullenwider came to his death by bodily injuries sustained throng'll external, violent and accidental means, to wit, by bullet wounds inflicted by certain persons, who, at the time said wounds were inflicted, assaulted Fullenwider for the sole purpose of robbery; and, second, that Fullenwider sustained bodily injuries resulting' in his death solely through external, violent and accidental means in being struck by a bullet then and there accidentally discharged from a revolver held by some person (other than Fullenwider) unknown to plaintiffs; and, third, that Fullenwider sustained bodily injuries by being struck by a bullet then and there intentionally discharged from a revolver or other deadly weapon held by some person (other than Fullenwider) unknown to plaintiffs, and that Fullenwider at the time the injuries were inflicted was assaulted by said unknown person or persons for the sole purpose of robbery. The date of the assault is averred as of December 2, 1903, and the date of death resulting therefrom as of December 3, 1903. _ The following portions of the accident insurance policy sued on are material to the questions in dispute, viz:
    “The principal sum insured hereby is five thousand dollars.
    This policy is issued and accepted subject to the following conditions and benefits:
    1. The amount insured under this policy shall be payable only in case the insured shall, during the term of this insurance, sustain bodily injuries solely through externa], violent and accidental means, which injuries shall, independently of all other causes, result in loss of life, limb, sight or time, as herein defined.
    2. If such injuries alone cause the death of the insured, within ninety days of the happening thereof, the principal sum shall be payable to the beneficiary stated in copy of application endorsed hereon, if living.
    15. In event of death, loss of limb or sight, or disability due to injuries intentionally inflicted upon the insured by any other person (except assaults committed for the sole purpose of burglary or robbery), whether such other person be sane or insane, or under the influence of intoxicants or not,- or due to injuries received while fighting or in a riot; or due to the taking of poison, voluntarily or involuntarily, or to any gas or vapor; or due to injuries received while under the influence of intoxicants or narcotics, then in all such cases referred to in this paragraph the limit of this company’s liability shall be one-tenth the amount otherwise payable, anything to the contrary in tin's policy notwithstanding.”
    It appears that somewhere in the neighborhood of seven o’clock in the evening of December 2,1903, while Fullenwider was walking in a public street of Chicago in the vicinity of Forty-first street and Wabash avenue, he was held up by two men, who wrestled with him, one of whom held a revolver in his hand, and from whose grasp Fullenwider broke away and ran in a southerly direction hallooing “rohhers,” “murder,” “police,” “help,” etc., and that while he so ran hallooing the person holding the revolver shot at and mortally wounded Fullenwider, who was taken immediately to a hospital where he died from such wounds so inflicted the following day. For this cold blooded murder of a reputable lawyer and citizen of Chicago neither culprit has been apprehended and justice languishes unrequited. Was this murder one of revenge for some real or fancied wrong at the hands of the victim, or was the assault and subsequent taking of Fullenwider’s life the result of an attempt to and with the purpose of robbing him? These are the crucial questions presented for solution. The jury and the trial court have determined that Fullenwider was murdered in an attempt to rob him, and that his executors, the plaintiffs in this suit, are entitled to recover with interest the maximum amount payable under defendant’s policy. Defendant seeks a reversal of the judgment rendered upon this theory, and urges upon us as reasons for such reversal that the verdict and judgment are manifestly contrary to the probative weight of the proof; that the trial court should, as it was requested to do, have directed a verdict in its favor, and that it erred in the admission of improper evidence and in the giving of certain instructions at the instance of plaintiffs and in refusing to give others proffered by defendant, and in denying its motion for a new trial.
    Flannery & McKinley, for appellant.
    Joseph W. Moses, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

While the declaration presents two theories as to how Fullenwider came to his death, viz: the accidental shooting of Fullenwider and the shooting of him for the purpose of robbery, the establishing of either of which would be within the terms of the policy, casting upon defendant a liability to respond to plaintiffs for the maximum amount recoverable under the policy; yet a careful perusal of the evidence in the record convinces us that the jury were warranted in finding from a consideration of all the evidence that Fullenwider was shot by the miscreants who stopped him and wrestled with him in an attempt to rob him. The proof sustaining the count of the declaration drawn upon such theory of liability is, regardless of the remaining counts, sufficient to support the verdict and maintain the judgment entered thereon.

At the close of plaintiffs’ proofs the evidence made a sufficient prima facie case upon the theory that Fullenwider was shot in an attempt to rob him, justifying the court in submitting the case to the jury, and it follows that the motion of defendant to then instruct a verdict as requested was properly denied. The motion of defendant to instruct a verdict at the close of all the proofs was also properly denied, because the conflicting theories of the parties as then disclosed by the evidence presented questions of fact deducible from such evidence, the sole province of determining which the law cast upon the jury. There was evidence to weigh in reaching a conclusion upon the facts, for the case as it then stood cannot be said to be of such a nature that reasonable minds would not disagree in regard to what the evidence proved so as to make the question presented one of law for the court and not of fact for the jury.

There were but two witnesses to the circumstances of the shooting—Thomas Lowry and Grace Doyle McGuire—and each side used one of them to sustain their respective contentions; and while some conflict is apparent in their stories of the tragedy as they witnessed it from their respective points of vantage, yet there is nothing in either account, with all the inferences rationally to be indulged, which detracts from the theory of plaintiffs that the sole purpose of Fullenwider’s assailants was robbery. As the statement in the brief of counsel for defendant is not challenged as unfair, we quote from it the substance of the testimony of these two witnesses which we regard as containing substantially all the material points covered by their testimony.

Mrs. McGuire, plaintiffs’ witness, testified in substance “that in December, 1903, she lived on Forty-sixth street near Wabash avenue, and her mother lived at 4130 Wabash avenue. On the evening of the shooting she was walking north on the west side of Wabash avenue, intending to go to her mother’s house. Upon arriving there she saw some one standing on the corner of Forty-first street, and, wondering who it was, walked on until she arrived at a lamp-post in front of the frame cottages, just south of the corner. She1 then saw two men holding Fullenwider as though they were wrestling with him, and one of them held a revolver in his hand. Fullenwider said ‘Oh’ or ‘No,’ and, breaking away from them, ran south. He turned around as he broke away, but had not gone far, had just broken away, when one of the men.sh.ot him. After the shot was fired one of the men ran northeast and the other northwest, and Fullenwider continued running sonth, shouting ‘robbers,’ ‘murder,’ ‘police,’ ‘help.’ ‘I am shot.’ She turned and went back to her mother’s house to get help, and was standing on the porch when Fullenwider ran past the house. After he had passed the house a man who was on the other side of the street, just north of Forty-second street, crossed over and assisted him down to Forty-second street. She did not see any one on the west side of the street between Forty-first and Forty-second, except Fullenwider, until she saw that man cross over from the east side.”

Lowry, examined for the defense, testified in effect “that he was walking south on the west side of Wabash avenue to his home on Forty-second street, and saw two men, whom he described as roughly dressed and disreputable looking, standing near one- of the pillars under the South Side Elevated Bailroad, which crosses Wabash avenue and Fortieth street. After he crossed the surface tracks in that street one of the men walked out toward him, and, when he got within three feet of him, Lowry became suspicious and turned around to recross the tracks to go west to State street, but, seeing a policeman coming down Fortieth street, he turned back and continued south on the west' side of Wabash. When he again passed the pillar both men were standing under the structure about ten feet from him, and followed about seventy-five feet behind him until he passed Forty-first street. When he was about one hundred feet south of the latter street he heard loud talking, and again turned around and saw the same two men and the insured standing on the southwest corner of Forty-first street and Wabash avenue. The two men were four or five feet apart and Fullenwider was standing between them—about two or three feet from the nearest. Fullenwider was in the act of turning away from them, south, when the man nearest to him shot him in the back. He had just started to run and got a few feet away from his assailants, when the shot was fired. Neither of the men did anything to Fullenwider except fire the shot. They then ran in different directions, one northeast and the other west. Fullenwider hallooed for help, and ran south on the west side of the street, and Lowry went north ten or fifteen feet to meet him, and assisted him to Forty-second street, where they met Dr. Jipson, who took him to the hospital. He saw no one on the west side of Wabash avenue between Forty-first and Forty-second streets, except Fullenwider, until he met Dr. Jipson at the corner of Forty-second. When he met Fullenwider he noticed the latter wore a scarf pin and watch chain.”

The testimony shows that Fullenwider was a lawyer practicing his profession in Chicago, and that his office was in the down town district of that city; that he was married and lived with his wife at 472 Forty-second street in a residence district of Chicago about half a block east of G-rand boulevard: that he was the owner of a flat building at 4031 State street, on which he was superintending the making of some repairs. Between five and six in the evening of the day he was shot, he left his office for his home, going first to his flat building, which he left within an hour of the time he started from his office, and walked in the direction of his home, and was halted in the vicinity of Wabash avenue and Forty-first street by two men and shot while in the act of fleeing from them. Defendant argues that the men who assaulted Fullenwider mistook him for the witness Lowry. The evidence shows a dissimilarity of appearance between the two men which would preclude' the possibility of mistaken identity, Lowry being tall and slender and Fullenwider short and stout. There is, moreover, to our minds, nothing in the evidence from which to divine any reason why these men should wish to slay Lowry in cold blood.

Nothing in the evidence would, to our minds, permit of such an assumption. One great difficulty with defendant’s contentions lies in the fact that they rest in naked assumptions and improbable conjectures, without an atom of evidence upon which to ground them. Lowry swears that Fullenwider’s assailants were two men “roughly dressed” and “disreputable looking.” The time was early evening on a dark winter night. What more reasonably probable than that these men were footpads, awaiting a victim to dispossess of his personal belongings ? What characteristics of “hold up” men more marked than Lowry’s description of these two men as “roughly dressed and disreputable looking” could be imagined? They were typical of their class. The jury were to weigh the evidence in the light of their knowledge and experience of the affairs of life, gained in their several callings and business. Presumably they were residents of Cook county or they would not have been on the jury, and as juries go, the major portion of them reside and do business in Chicago. It is common knowledge that citizens are often robbed in large cities under circumstances similar to those surrounding Fullenwider at the time he was shot. What other conclusion could the jury have reached under the evidence and with such knowledge, coupled with the exclamations made by the victim in his effort to escape, of “murder,” “robbers,” “police,” “help,” and the lack of any testimony that Fullenwider was assailed by these men for any other purpose ? One of the men held a revolver over Fullenwider at the time Mrs, McGuire first saw the contest, and in the light of Fullenwider’s action what more reasonably probable than that these men demanded his money in regular highwayman fashion when they first seized him? It seems to us to be the only rational and reasonable solution of these facts that robbery was the sole purpose of the attack. But counsel for defendant urge that while the original attack may have had for its purpose robbery, that when Fullenwider broke away and ran, the purpose of his assailants was instantly changed from an intent to rob to a feeling of hatred and anger at the escape of their victim, so that the shot was fired in revenge and with murderous intent. We regard such contention as unreasonable and illogical and unsupported in the slightest degree by any testimony sanctioning such an inference. To our minds the only reasonable and natural inference to be drawn from the testimony is, that the original assault was for the purpose of robbery; that the fleeing of the victim made it evident that the intention of the assailants was likely to be thwarted, to prevent which the shot was fired, and that the purpose of robbing the victim was frustrated by the approach of pedestrians impelling the assailants to desist from their purpose of robbery and to flee in an effort to escape arrest for the dual crime of which they were at the moment of fleeing guilty. This reasonably accounts for the valuables on the person of Fullenwider not having been disturbed. The robbers met a condition of resistance which they evidently had not anticipated. The credibility of Mrs. McGuire is impugned by defendant’s counsel. While we do not regard the slight discrepancies between the stories of Mrs. McG-uire and Lowry as at all important in their bearing upon the incidents related by each, yet the determination of the credibility o'f the witnesses and the harmonizing of their evidence was the duty of the jury, with which we have no right to interfere unless it is clear that their solution of the testimony is contrary to the manifest weight of the evidence or the result of passion or prejudice on the part of the jury. We fail to find any of these disturbing elements present or inferable from the conclusions at which the jury arrived.

Whether Fullenwider met his death through accidental discharge of the revolver in the hands of one of his assailants, or whether he was shot for robbery or for revenge, were the issues before the jury, and they rested for their determination upon evidence of a circumstantial character to be drawn ■ from facts clearly proven.

The assault and the shooting of Fullenwider are proven facts. The motive and intent of the assailants rest in circumstances to be drawn from these facts and the actions of the parties engaged in the assault; so that the fact that Fullenwider in his attempt to escape cried “robbers” is a circumstance which, together with the other evidence, the jury was justified in taking into consideration in determining the issues before it, and warranted its conclusion that the purpose of the shooting was robbery. As said by this court in an opinion by Mr. Justice Brown in Wilkinson, Excr. v. this defendant, 144 Ill. App. 38, “Circumstantial evidence is frequently as satisfactory, and not infrequently more satisfactory, than direct evidence, to establish the existence or occurrence of any fact, and in accordance with this hypothesis all the affairs of men are conducted.” Much of the reasoning of the Wilkinson case is enlightening of many of the questions presented in discussion here. Much of the interesting argument and citation of authority of the learned counsel for defendant is of little importance, in the view we take of the probative force of the evidence as above indicated.

There is evidence in the record at least tending to sustain both theories of the manner in which Fullenwider came to his death, on the issues joined in the declaration under which the parties proceeded to trial. It became the duty of the jury to decide upon which theory, if either, the evidence, with all legitimate inferences to be drawn from it, proved Fullenwider was killed. To enable the jury to arrive at a correct conclusion as to the probative force of the proofs, it became necessary that they should be instructed as to the law governing both theories presented by the evidence and the pleadings. It follows that the learned trial judge in so doing adhered to legal precedent, and that such action was without error. But were this not so, defendant by offering and procuring to be given to the jury similar instructions upon both of these theories, is disqualified from now raising the question against the opposing party. C. & A. R. R. v. Harbur, 180 Ill. 394. The jury were correctly instructed that it was not necessary to a recovery to prove the material averments of any count of the declaration by direct and positive evidence, but that such averments could be proved by circumstantial evidence. We think that the instructions as to circumstantial evidence were amply safeguarded to prevent the jury from reaching a conclusion founded on mere conjecture or surmise. Were language of caution lacking in the instructions given at the instance of plaintiffs, it is apparent that one given at the request of defendant, which told the jury that they had no right to indulge in conjectures or speculations not supported by the evidence, and “that in determining whether the injuries to insured were or were not effected through accidental means, or whether they were or were not intentionally inflicted upon him by any other person for the sole purpose of robbery, the jury must confine themselves to the evidence and such inferences as they believe may be rightfully and reasonably inferred from the evidence, ’ ’ etc., furnished a sufficient corrective. We have not discovered in any of the instructions given, after carefully examining them, any error calling for a reversal of the judgment. They fairly presented the law upon the issues joined as applied to the evidence, enabling the jury to apply the law so given in determining the probative force and weight of such evidence. Whatever may be said in favor of the giving of the refused instructions complained about, we are convinced that the instructions as a whole fairly presented all the law to the jury necessary for them to reach a correct conclusion on the whole case.

We are of the opinion, for reasons already given, that the trial at nisi prius was fair and in accord with legal precedent, and that the judgment of the Circuit Court does justice between the parties and ought to be, and therefore is, affirmed.

Affirmed.