text:
    G. C. Stafford, Appellee, v. H. E. Kimmel, Executor, Appellant.
    1. Executors and administrators, § 284

      —when appeal to Circuit Court properly dismissed for failure to file appeal bond. On appeal to the Circuit Court from an order of the County Court allowing a claim against an estate, the appeal bond is jurisdictional, and where no appeal bond whatever has been filed the court may properly dismiss the appeal and deny appellant’s cross-motion to file an appeal bond nunc pro tunc.

    2. Appeal and error, § 654*—jurisdiction of court when no appeal bond filed. Where a party entitled to an appeal files no bond or instrument in the nature of a bond within the time prescribed by law, the court, to which the appeal is taken, cannot permit a bond to be filed and has no jurisdiction to do anything but dismiss the appeal.
    3. Appeal and error, § 654*—right of Probate Court to dispense with-requirement of filing appeal bond. Section 11 of the Probate Court Act, J. & A. j[ 3269, providing for appeals to the Circuit Court upon the appellant giving an appeal bond in such amount and upon such conditions as the court shall approve, cannot be construed as authorizing the Probate Court to make an order that no bond whatever be filed, nor is such section applicable to County Courts acting as Probate Courts in counties having a population of less than 70,000.
    Appeal from the Circuit Court of Perry county; the Hon. William: B. Hadley, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    B. W. Pope, for appellant.
    George W. Dowell, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, G. 0. Stafford, filed a claim for five hundred dollars in the County Court of Perry county against the estate of Matthew Laxon, deceased, of whose last will and testament H. E. Kimmel was exec- ■ utor. The claim was contested by the executor but allowed by the County Court, and the executor prayed an appeal from the order allowing the claim to the Circuit Court. The county clerk filed a transcript of the proceedings in the office of the clerk of the Circuit Court, and later appellee entered a motion in that court to dismiss the appeal because no appeal bond had been filed. Appellant then filed a cross-motion asking leave of court to file an appeal bond nunc pro tunc. With that motion he filed an affidavit stating that the estate was solvent, that he had called upon the county judge to fix the amount of the appeal bond, and was informed by the judge that no appeal bond was necessary, as the estate was solvent and any amount paid would be through the County Court which had control of the estate through the executor, who was an officer of the court, and duly bonded to perform the duties of his office; that said claim was allowed upon the hearing of evidence at the June term, 1913, of said County Court, but that judgment was not finally entered thereon until the October term, 1913; that said executor prayed an appeal to the following November term of the Circuit Court of said county; that his application to the county judge for leave to file a bond was made within five days after final judgment was rendered in said County Court. It should be noted, however, that the record in this case shows that the judgment allowing said claim was entered on June 3, 1913. Appellee contested the cross-motion and the court denied the same, granted appellee’s motion, dismissed the appeal for want of an appeal bond, and entered judgment against appellant for costs.

It is the complaint of appellant here that the Circuit Court erred in not permitting him to file a bond as prayed for in his petition, and also in dismissing the appeal, the latter for the reason that an appeal bond is not absolutely necessary if the court so orders, or makes no order for a bond to be filed. Section 68 of chapter 3 of the ¡Revised Statutes of this State (J. & A. ft 117) provides that, “in all cases of the allowance or rejection of claims by the county court, as provided in this act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by the county judge.” The act in reference to justices provides that the party praying for an appeal from a judgment óf a justice of the peace shall, within twenty days from the rendition of the judgment from which he desires to take the appeal, enter into bond with security to be approved by the justice, in case the bond is filed with him, or by the clerk of the court to which the appeal is taken in case the bond is filed with such clerk; and this act further provides that no appeal from a justice of the peace shall be dismissed for any informality in the appeal bond, but it shall be the duty of the court before whom the appeal may be pending to allow the party to amend the same within a reasonable time so that a trial may be had upon the merits of the case. B. S. eh. 79, pars. 115,179. (J. & A. 6976, 7038.)

Appellant insists that as he, in good faith, called upon the county judge of said county to fix the amount of bond preparatory to making the same, but did not file it because the county judge told him he did not require an appeal bond in such cases, that he had done all that was necessary for him to do in the County Court or before the county judge to perfect his appeal, and that he should have been permitted to file a bond in the Circuit Court. Had appellant filed a bond within the time prescribed by the statute, had it been ever so imperfect, a different question would have arisen, as under the statute above referred to and the rulings of our courts of appeal it would have been the duty of the Circuit Court to permit appellant to thereafter file a good bond in a time, to be fixed by the court, and not to dismiss the appeal on account of the insufficiency of the original appeal bond, except on a failure to file a sufficient bond within the time so fixed: Horner v. Goe, 64 Ill. 178; Dunaway v. Campbell, 59 Ill. App. 665; Enright v. Rehbach, 133 Ill. App. 50.

It is also well determined that where the party entitled to take the appeal files no bond or instrument in the nature of a bond, within the time prescribed by law, the court to which the appeal is taken cannot legally permit a bond to be filed for the reason that the right of appeal is purely statutory; that where the statute fixes the time within which the appeal bond must be filed, the provision is mandatory and jurisdictional and in such case the court to which the appeal is taken has no jurisdiction to do anything but dismiss the appeal. Hill v. City of Chicago, 218 Ill. 178; Rosier v. Williams, 92 Ill. 187; Fairbank v. Streeter, 142 Ill. 226. This, rule has been applied by our courts not only to cases where no bond has been attempted to be filed, but also to cases where a joint appeal has been granted, and only one of the persons appealing files a bond, and also in cases where others than those entitled to appeal file a bond, it being held in such cases that no bond can be filed by the proper parties after the time prescribed by the statute has expired. Tedrick v. Wells, 152 Ill. 214; Fay v. Seator, 88 Ill. App. 419; Blood v. Harvey, 81 Ill. App. 187. In Ted-rick v. Wells, supra, where the parties for whose use a suit was brought on a replevin bond, filed an appeal bond in which the nominal plaintiff who sued for their use did not join, the Appellate Court denied a motion for leave to file an amended appeal bond and sustained a motion to dismiss the appeal. This action of the Appellate Court was sustained by the Supreme Court which said in the course of its opinion: “You can no more amend a thing that has no existence,—not even potential,—than you can amend a void thing.” In this case appellant had wholly failed to file any appeal bond, and Ms motion in the Circuit Court was to file an appeal bond mmc pro tunc. As no appeal bond had been filed the Circuit Court had acquired no jurisdiction and had no power to sustain the cross-motion of appellant for leave to file a bond, but it properly and necessarily sustained the motion of appellee to dismiss the appeal. Appellant’s contention that it is not necessary that a bond be filed if the County Court so orders or makes no order for a bond to be filed is based upon section 11 of the Probate Court Act (J. & A. 3269), which provides that appeals from the final orders, judgments and decrees of the Probate Courts to the Circuit Courts of their respective counties may be taken upon the appellant giving bond in security in such amount and upon such condition as the court shall approve.

Appellant’s theory is that under this section the Probate Court may make an order that no bond whatever be filed. We do not agree to this construction of the law, but even if it were correct that provision of the law could not be availed of here as it is part of the act providing for the establishment of Probate Courts in counties having a population of 70,000 or more, and does not apply to County Courts acting as Probate Courts in counties having less population, like Perry county, where these proceedings took place.

The judgment of the Circuit Court, dismissing the appeal of the executor from the County Court, will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Ella Stafford, Appellee, v. H. E. Kimmel, Executor, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Perry county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.

      Statement of the Case.
    Ella Stafford was allowed seven hundred and fifty dollars as a claim against the estate of Matthew Laxon, deceased, for services rendered deceased as a housekeeper and nurse. H. E. Kimmel, executor, prayed an appeal to the Circuit Court from the order of the County Court, allowing the claim. A transcript was filed and the case docketed in the Circuit Court where the claimant made a motion to dismiss the appeal for want of an appeal bond, and the motion was sustained and the appeal dismissed.
    The questions raised on this appeal are identical with those involved in the case of Stafford v. Kimmel, p. 281, ante, and the decision in that case held controlling.
    B. W. Pope, for appellant.
    George W. Dowell, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    William Diehl, Appellee, v. East St. Louis Light and Power Company, Appellant.
    1. Electricity, § 27

      —when evidence sustains recovery for injuries resulting from, fall of glass insulator from pole. In an action against an electric light and power company for personal injuries sustained by plaintiff by reason of a defective glass insulator falling from a cross arm of one of defendant’s poles situated at the edge of a sidewalk, held that a verdict for plaintiff was sustained by the evidence, it appearing that the insulator had been -left attached to the arm without being used to support wires for several years, and that for a month or two before the accident its cracked condition was easily discernible upon examination.

      2. Negligence, § 221

      —when failure of instruction to confine jury to negligence alleged not misleading. The fact that an instruction did not use the words of the declaration as to the negligence complained of, does not render it misleading, where no other negligence than that named in the declaration was sought to he proved and the proof concerning the negligence charged in the declaration was sufficient to warrant a verdict for plaintiff.
    3. Instructions, § 110*—when cannot he complained of as authorizing recovery on defective count. The fact that an instruction given would authorize a verdict for plaintiff on a defective count in the declaration cannot be complained of where the defect in the count would not render it insufficient after verdict.
    4. Negligence, § 128*—when count in declaration sufficient after verdict. Where a count in the declaration charged an electric light and power company with negligently permitting a glass insulator to be upon a pole in a broken condition, but failed to charge that the company knew or in the exercise of reasonable care should have known that the insulator was in defective condition, held that though the count would have, been subject to a special demurrer for such defect, yet the word “permitted” implies notice and made the count sufficient after verdict.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Barthel, Farmer & Klingel, for appellant.
    D. J. Sullivan, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the .opinion of the court.

William Diehl, appellee, brought this suit to recover damages for personal injuries received through the alleged negligence of the East St. Louis Light and Power Company, appellant. The jury found the issues for appellee and assessed his damages at six hundred dollars, but a remittitur of one hundred dollars was entered by appellee and the court gave judgment against appellant for five hundred dollars, from which an appeal is taken to this court. The complaint of appellant is that the evidence did not show a right of recovery and that its interests were prejudiced by several erroneous instructions given at the request of the appellee.

Appellant, as it appears from the proofs, is engaged in furnishing electricity for the use of patrons in Bast St. Louis and one of its electric light poles is located at the edge of the sidewalk, a few feet north of Missouri avenue on Sixth street in said city. There are cross arms on said pole, with wires attached thereto, some twenty-five or thirty feet above the sidewalk. To the end of one of these cross arms is attached an iron bracket, called a spreader, the lower end of which drops below the cross arm and turns up, forming a pin, upon which threads were cut so that a glass insulator could be screwed thereon to carry wire. Formerly an insulator was screwed upon this solid iron pin, which had- been used at one time by appellant for insulating the wire connection with the Beykirch grocery store immediately across the sidewalk on the west side of the street. The connection with the building, however, was afterwards abandoned, and for some time prior to the time appellee was injured the wires had been removed and the glass insulator left on the spreader unused. On December 5, 1912, appellee, who was an employee of said grocery store, brought a large box of papers out of the store and set it down on the edge of the sidewalk near the pole. A paper had fallen from the box when he set it down and as he reached to get it part of the insulator dropped from the pole, striking the back of his hand and wrist and cutting them' so severly that he was compelled to lose two months’ work, arid leaving the usefulness of his hand considerably impaired. Two witnesses for appellee, who lived above the grocery store, testified the insulator had been cracked for from one to two months prior to its falling and this crack was quite visible. One of them stated she had lived there three years and had never seen any wire on it.

The declaration contained two counts. The first charged that appellant permitted the insulator to he upon the iron bracket or holder in a split or broken condition, so that it was liable to fall upon pedestrians or persons on the sidewalk at that place, and because of such defective condition it fell upon and injured appellee. The negligence charged in the second count was the placing of the glass insulator upon an iron screw or holder, which was stated to be improper and dangerous, for the reason that the insulator was liable to be split and broken by changes in temperature effecting the iron screw or holder; that such danger was known to appellant or should have been known to it by the exercise of ordinary care. The theory of the defense appeared to be that the insulator in question was one of a kind in common use by the Company in East St. Louis and other places and that so far as the witnesses examined were concerned they did not know of insulators having been split or broken when placed upon iron pins, like the one in question, through expansion and contraction of the pin caused by changes of temperature.

An examination of the evidence leads us to the conclusion that it warranted a finding by the jury that said insulator had been left upon the iron pin for several years with no wire around it and was not, during that time, necessary to appellant or used by it in conducting its business; that for a month or two before the accident it was cracked and its condition was easily discernible upon examination; that it was placed some twenty-five or thirty feet above the sidewalk where persons were passing back and forth; that in its cracked and broken condition it might fall at any time to the walk below and was therefore dangerous to persons passing along; that a piece of it did fall upon appellee and injure him severely. It was for the jury to determine from all the facts whether the charges made in the declaration were proved, and we find no good reason for not agreeing with the conclusion which they arrived at in this case.

Appellant complains of appellee’s given instruction No. 2, which told the jury that if they believed from a preponderance of the evidence the use of said insulator above the public sidewalk at the point in question, as it was there being used as shown by the evidence, was negligence on the part of the defendant and such negligence caused appellee’s injury, and he was at the time in the exercise of ordinary care for his own safety, they should find the defendant guilty, because the instruction did not confine the negligence to that charged in the declaration. While this instruction did not use the words of the declaration as the negligence complained of is there set forth, yet the jury could not have been misled by it as no other negligence than that named in the declaration was sought to be proved, and the proof concerning the negligence charged in the declaration was, as we have above seen, sufficient to warrant the verdict against appellant. The complaint of appellee’s third given instruction is that it authorized a verdict for appellee in case the jury found the defendant guilty of negligence as alleged in the first count of the declaration, it being claimed by appellant that the first count did not contain the elements of a good cause of action, for the reason that it nowhere charges appellant knew or by the exercise of reasonable care should have known that the insulator was split or broken. While it is true that the first count had no charge of knowledge on the part of appellant, or that it might have acquired knowledge by the exercise of reasonable care, of the condition of the insulator, yet it does charge that appellant negligently permitted the insulator to be upon the bracket in a broken condition. While this count might have properly been a subject of special demurrer for the defect mentioned, yet the word permitted” implies notice and is sufficient to sustain the count after verdict. Peebles v. O’Gara Coal Co., 239 Ill. 370; City of Chicago v. Stearns, 105 Ill. 554. The instructions as a whole appear to have fairly .informed the jury of the law governing the case, and we are of opinion that upon the facts and the law the judgment was substantially correct and should be affirmed.

Judgment affirmed.


text:
    Thomas C. McAleeman, Appellee, v. East St. Louis Light and Power Company, Appellant.
    (Not to he reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vakdevehter, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Thomas C. McAIeeman against East St. Louis Light and "Power Company to recover for injuries to plaintiff’s horse, which were of such a nature as to render it necessary that it be killed, and for damages to the wagon and harness alleged to have been caused by the negligence of a servant of defendant in throwing the end of a rope to another servant at the top of a telegraph or telephone pole so as to cause the the horse, which was hitched nearby, to take fright and run away. There was a verdict in favor of plaintiff for $300, but a remittitur was ejntered by plaintiff and judgment was given for $213.60. Some days later the judgment was vacated and plaintiff given leave to file an additional count to the declaration.
    In the meantime an appeal had been prayed from the judgment and an appeal bond filed. Plaintiff instead of filing an additional count filed a complete amended declaration. He again entered the remittitur and judgment was a second time entered for $213.60 and an appeal allowed. The last amended declaration filed omitted the former allegations of negligence and in lieu thereof charged that a servant of defendant negligently dropped or threw the end of a rope from the top of a telegraph pole or electric light pole.
    Abstract of the Decision.
    1. Pleading, § 246

      —effect of amendment as abandonment of former pleading. Where a plaintiff files his final amended declaration he abandons his former declaration and the last declaration cannot be aided by anything contained in the former.
    2. Negligence, § 187*—when proof insufficient to sustain allegar tion of negligence. In an action for damages resulting from the death of a horse and damages to a wagon and harness alleged to have been caused by the negligence of a servant of defendant in dropping or throwing the end of rope from the top of a telegraph or electric light pole so as to cause the horse to become frightened and run away, held that a verdict for plaintiff could not be sustained, for the reason that the proof did not tend to sustain the charge of negligence in the declaration, the defendant’s witnesses testifying that the rope was not thrown in any manner and plaintiff’s principal witness testifying that the end of the rope was thrown from the ground to a servant at the top of the pole.
    For the purpose of this appeal the Appellate Court treated the case as though the amendment had been allowed in the usual manner upon the trial.
    Barthel, Farmer & Klingel, for appellant.
    M. D. Baker and Dan McGlynn, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Forrest Kneedler, Appellee, v. Bankers’ Accident Association of Illinois, Appellant.
    1. Insurance, § 704

      —when judgment based on stipulation sustained by the record. A judgment for plaintiff in an action for accident insurance based on a stipulation of facts, held supported by facts appearing in the record, though the policy was not included in the stipulation or introduced in evidence.
    2. Insurance, § 704*—when Appellate Court will not assume that act in which insured was engaged was unlawful. On appeal from a judgment allowing recovery on an accident policy where the case was tried on a stipulation of facts that the insured was engaged in cockfighting at the time of the injury, the Appellate Court cannot assume that cockfighting was unlawful where the stipulation and the evidence failed to disclose whether the act took place in this State.
    3. Insurance, § 667*—when stipulation insufficient to show unlawful act caused the injury. Where it was stipulated in an action for accident insurance that plaintiff was engaged in cockfighting at the time of the injury, held that even if the act was unlawful the stipulation did not so connect the injury with the act of cockfighting as to show that the unlawful act was the agency which brought about the injury.
    4. Insurance, § 408*—when injury while engaged in unlawful act does not preclude recovery. The mere fact that a person insured against accidental injury received such injury while engaged in the commission of an unlawful act does not necessarily preclude him from recovering on the policy.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Silas Cook and Kramer, Kramer & Campbell, for appellant.
    William F. Borders, for appellee.

       See Illinois Notes Digest, Vola» 7 J t© XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Forrest Kneedler, appellee, brought suit before a justice of the peace against Bankers’ Accident Association of Illinois, appellant, and recovered a judgment, from which an appeal was taken to the Circuit Court where a jury was waived and trial had before the court, upon the following stipulation:

“It is hereby stipulated by and between the parties in the above entitled cause, as follows: It is agreed that a policy of insurance No. 2317, in the defendant company was issued to the plaintiff under date of January 16th, 1911, and that all premiums due thereon, have been paid and were paid at the date of injury, to wit, June 15th, 1912.
It is further stipulated that an accidental injury was received by the plaintiff on or about June 15th, 1912. It is further stipulated that the plaintiff suffered material injury and substantial loss of time. It is further stipulated that the necessary proper proofs of loss within the necessary time were furnished to the defendant company. It is further stipulated that the plaintiff at the time of injury above referred to was engaged in and assisting in cockfighting. It is further stipulated that if any judgment is rendered in this case in favor of plaintiff, the judgment shall be for the sum of $86.78.
It is further stipulated that the above matters are agreed upon for the purpose of shortening the case, and that said cause is to be tried upon the agreed state of facts hereinabove set forth.”

Judgment was recovered by the appellee in the Circuit Court for $86.78, the amount agreed upon in the stipulation as the amount due if appellee should be found entitled to recover.

On this appeal the sole question raised in appellant’s argument is that there was no fact appearing in the record sufficient to support the judgment, because the policy was not included in the stipulation or introduced in evidence. The fair interpretation of the stipulation is that on June 15, 1912, appellee held a policy of insurance in Bankers’ Accident Association of Illinois on which all premiums were fully paid; that on said day he was accidentally injured and thereby suffered material injury and substantial loss of time; that he made proper proofs of loss in due time; that his damages amounted to $86.78, and that the injury was received by him while engaged in assisting in cockfighting. We do not agree with counsel for appellant that it was necessary the policy of' insurance should be introduced in evidence or set forth in stipulation to entitle appellee to recover. It is argued by appellant that from aught that appears in the stipulation, which contains all the proofs, the policy sued on might have been a fire insurance policy. This argument does not appear to us to be reasonable or well founded, as the stipulation shows that appellee held a policy of insurance issued by appellant; that he received an accidental injury and that proper proof of loss was furnished appellant within the required time. We think the irrefutable inference from the stipulation is that appellee was insured by appellant not against loss to property by fire, hut against accidental injury, and that proper proof of loss could only be made in case of accidental injury under a policy covering accidental injuries which might be received by appellee. That the injury was a personal one is also evidenced by the statement of the stipulation that the same was received while appellee was engaged in and assisting in cockfighting. Whether the cockfighting took place in the State of Illinois or not the stipulation fails to disclose, and in the absence of proof upon the subject it cannot be assumed by this court that the act was unlawful where committed. But even if it were shown that the cockfighting occurred within this State, the stipulation does not so connect the injury with the act of engaging in cockfighting as to show that the unlawful act was the agency which brought about the injury. We- have held that the mere fact that a person insured against accidental injury received such an injury while in the commission of an unlawful act does not necessarily preclude him from recovering on his policy against the company issuing the same. Hutton v. States Acc. Ins. Co., 186 Ill. App. 499.

The judgment of the trial court in this case will he affirmed.

Affirmed.


text:
    Frank J. Owens, Administrator, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Railroads, § 516

      —duty to trespassers or mere licensees on right of way A railroad company owes no duty to a trespasser or a mere licensee on its right of way except not to wantonly or wilfully injure him.
    2. Railroads, § 583*—when evidence insufficient to sustain recovery for death of trespasser on right of way. In an action against a railroad company for the death of plaintiff’s intestate alleged to have been caused by the defendant wantonly and wilfully driving and managing its train so that the deceased. while walking along defendant’s right of way was struck and killed, held that the evidence was insufficient to sustain a verdict for plaintiff, it appearing that the deceased had no grer ;ghts on the right of way than a mere licensee and that the b " lar did see the deceased before he was struck, and there was a:;'- absence of proof showing or tending to show wanton or w its or a reckless disregard of the safety of others on the ;■ c employees in charge of the engine.
    Appeal from the City Court i ,'st St. Louis; the Hon. Robert H. Flanotgan, Judge, presiding. -ard in this court at the March term, 1914.
    Reversed with fine of facts.
    Opinion filed July 28, 1914.
    Kramer, Kramer & C ’bell, for appellant; Edward Barton, of counsel.
    Silas Cook and Louis I sley, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Frank J. Owens, administrator of the estate of Joseph L. Owens, brought this suit to recover damages occasioned by the death of his said intestate, who was struck and killed by an engine drawing one of appellant’s passenger trains.

The first of the three counts of the declaration charged that the Baltimore and Ohio Southwestern Railroad Company, on July 26, 1913, while deceased was walking on its right of way in the city of Bast St. Louis, wantonly and wilfully drove and managed its locomotive engine and train at a high and dangerous rate of speed, to wit, twenty to thirty miles an hour, in excess of the ordinance of said city, and that by reason thereof deceased was struck by said engine.

The second count alleges the locomotive and train were wantonly and wilfully driven and managed, going at a high and dangerous rate of speed and that no bell was rung continuously, as provided by the city ordinance.

The third, that no bell was rung, no whistle sounded or warning of any kind given while said train was running at a high and dangerous rate of speed. There was a plea of the general issue followed by a verdict and judgment for five hundred dollars against the railroad company, from which it has appealed to this court, contending that the judgment should be reversed, because the trial court erred in not giving its peremptory instruction offered at the close of the evidence and also for errors alleged to have been committed by the court in regard to the instructions.

There were few witnesses who were present at the time of the accident, and as their testimony is not conflicting to any considerable extent, it can easily be determined what the true conditions were at that time, and the proofs show them to have been as follows: In the city of Bast St. Louis appellant has three tracks on its right of way running easterly from a street known as Exchange avenne towards the city limits, the south track being the inbound track, the middle track the outbound track and the north track a switch. There was a space of thirty feet between the north and the south track. For a number of years persons have been accustomed to pass over appellant’s right of way in going from.Exchange avenue to streets and alleys east of it. The deceased was a painter, sixty-two years of age, who worked part of the time at his trade and at other times was employed about the stock yards. On the morning of July 26, 1913, Henry Grimm and Gus Boeske were in a saloon at the corner of Seventh street and Exchange avenue. Grimm and Boeske were going fishing and shortly afterwards started to the right of way, thence east along the same between the two main tracks. Soon afterwards they looked back and saw deceased following between the same tracks and from forty to seventy-five yards behind them. Very shortly after this they met a freight train coming towards them on the south track. As near as can be determined deceased crossed over from the place where he was walking between the main tracks to the space between the middle track and the switch, but about the time the freight train reached Exchange avenue Boeske again looked around and saw a passenger train of appellant’s coming from the west and close upon deceased, who then appeared to be upon or north of the middle track upon which the train was coming east and some thirty yards behind them. These two were on the south side of the track, and as Boeske saw the danger of deceased he called out to him, “look out, the passenger.” It was clear deceased either attempted to cross the track or was traveling along the same at this moment, at any rate he apparently did not hear the warning and was struck and killed. His body fell or was cast to the north side of the train which ran about six car lengths after striking him.

The only testimony on hehalf of appellant was that of fi'_ ,gineer and fireman. The former testified that Ms place was on the south side of the engine; that he saw two men ahead of him between the two main tracks; that the bell was rung automatically and he sounded the wMstle; that the two men seemed bewildered and he was afraid they would jump in front of him which caused him to blow an alarm; that he did not see deceased and did not know he had -struck him until the fireman called to him, and that there was nothing to prevent him from seeing any one who might be between the engine and the two men. The fireman testified that he was putting in fire when the conductor sounded the alarm; that he raised up to see what the trouble was and saw the deceased about ten feet ahead outside the rail; that he then “hollered” and the engineer applied the brakes. Boeske testified “there was lots of wMstles up there and bells rung” hut that he could not tell whether the passenger train was wMstling or not, while Grimm stated that the freight train kept whistling hut that he could not tell whether he heard the passenger train whistle. Several other witnesses testified either that the signals were not given or that they did not hear them given before deceased was struck.

We are rather inclined to the belief that the weight of the evidence shows that signals were given by bell and whistle just before the engine reached deceased, but we do not think a decision of that question essential for the proper disposition of this case. The most that can be said in favor of deceased’s rights at the time he received his injuries is that he was a mere li-; censee upon appellant’s right of way at a point where he and others had been permitted to travel. Under the circumstances appellant owed no duty to deceased except not to wantonly or wilfully injure him, and this rule of law as applicable to this case was recognized by1 appellee by the fact that he charged that the injury was caused by the wantonness and wilfulness of appellant in each count of the declaration. Before appellee could recover therefor, it was necessary for him to prove by a preponderance of the evidence that the in-, jury was caused by the wilfulness or wantonness of appellant, or by such gross negligence on its part as to amount to wilfulness of wantonness.

In the case of Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559, where it was attempted to recover for personal injuries received by O’Connor, who was knocked down by a passing train while he was traveling upon the railroad right of way at a point where many persons were accustomed to go, the Court said: “The plaintiff was traveling upon defendant’s right of way, not for any purpose of business connected with the railroad, but for his own mere convenience, as a footway, in reaching his home on return from a search after his cow. There was nothing to exempt him from the character of a wrongdoer and trespasser in so doing further than the supposed implied assent of the company, arising from their noninterference with a previous like practice by individuals. * * * The place was one of danger, and such persons went there at their own risk, and enjoyed the supposed implied license subject to its attendant perils. At the most, there was here no more than a mere passive acquiescence in this use. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obli- ; gation on the part of the owner to provide against the danger of accident.” In the same case the Supreme Court also said: “This court is committed to the doctrine that a railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way or tracks except that it will not wantonly or wilfully inflict injury upon him, and we have frequently held that the mere fact that signals required by statutes and ordinances are not given, even though those operating its trains may have knowledge of the fact that persons have been in the habit of crossing its tracks or walking upon them at places other than public crossings or public places, will not amount to proof of wilful and wanton disregard of duty toward such trespassers.”

In respect to the matters above mentioned, there is/ no difference in law between a trespasser and a mere! licensee. In Illinois Cent. R. Co. v. Eicher, 202 Ill. 556, it is held: “A railroad company owes no duty to al person walking along its tracks without its invitation, - either expressed or implied, except to refrain from!; wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered j to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee or one who is on the track by mere sufferance, without objection of the company.”

It has sometimes happened that the negligence of a party causing an injury is so gross and reckless as to amount to wilfulness or wantonness. In the case of Chicago City Ry. Co. v. Jordan, 215 Ill. 390, the rule is laid down: “"Where there is a particular intention to injure, or a degree of wilful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent, and becomes wilful or wanton. In such a case there may be an actual intent to injure, or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended.”

Appellee insists that the engineer must have seen deceased as he approached, but the engineer testified that he did not see him and did not know that he had struck deceased until after the accident occurred. The surrounding conditions, as shown by the proofs, do not seem to us to impel the inference that the engineer must necessarily have seen deceased before the latter was struck or even that he must necessarily have done so had he exercised ordinary care. Indeed there is an entire absence of proof showing or tending to show either wantonness, wilfulness or reckless disregard of the safety of others on the part of appellant’s employees in charge of the engine. The judgment in this case will be reversed, and as it appears no charge of wilfulness or wantonness on the part of appellant’s employees in charge of the engine in causing the death of appellee’s decedent can be rightfully sustained, the cause will not be remanded.

Reversed, with finding of facts.

Finding of facts to be incorporated in the judgment.

We find that the death of Joseph L. Owens, plaintiff’s intestate, was not caused by the wilful and wanton acts of the Baltimore and Ohio Southwestern Railroad Company, appellant, as charged in the declaration.


text:
    Robert A. Waddell, Appellee, v. John A. Noser, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Randolph county the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Robert A. Waddell against John A. Noser to recover a broker’s commission for the sale of real estate owned by defendant. The declaration was composed of two counts, one for money laid out and expended and the other for work, labor and services rendered by plaintiff in effecting a sale of said property. There was a plea of general issue and a judgment on a.verdict of the jury for $329. To reverse the judgment, defendant appeals.
    The facts showed that defendant employed plaintiff to find a satisfactory exchange of his flouring mill and other vacant real estate; that plaintiff found a party by the name of Rowden who had some houses in St. Louis, he was willing to exchange, and that when Rowden went with plaintiff to inspect defendant’s property the defendant, on being informed that Bow-den’s houses were covered by mortgages, discontinued further negotiations and Bowden went to the station to take a train back to St. Louis. Before Bowden could get a train, defendant went to the station and made a contract with him to trade his mill for one of the houses. Bowden took the mill at a valuation of $6,700, and in payment therefor defendant took one of the houses valued at $9,000 subject to an incumbrance of $3,800, leaving an equity therein of $5,200, and a mortgage back on the mill for $1,500, making in, all $6,700.
    Abstract of the Decision.
    I. Bbokebs, § 84

      —when evidence as to value of property exchanged inadmissible. In an action for brokerage commissions for negotiating an exchange of property, rejection of evidence offered by defendant concerning the actual value of the property taken by defendant in exchange, held not error where the parties put a value on the property in making the trade.
    The theory of the defense was that plaintiff did not fulfil his contract to find defendant a buyer or a trade for the amount of the consideration agreed on; that the original negotiations were abandoned and a new trade consummated entirely different from the original, for which plaintiff was not entitled to any commission, because he was not the efficient cause of the consummation of the same; and that as plaintiff had not carried out the special contract between the parties he was entitled only to what his services were reasonably worth under a quantum meruit.

    Ralph E. Sprigg and J. Fred Guster, for appellant.
    H. Clay Horner, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Bbokebs, § 64 —computation of commissions. For the purpose of calculating an agent’s commissions on an exchange of property, the property taken by the principal must be assumed to be worth the value placed upon it by the parties to the trade at the time the contract was consummated.

3. Bbokebs, § 95*—when requested instruction properly refused. In an action for brokerage commissions on an exchange of real estate, a requested instruction based on the theory that the contract as consummated between the defendant and purchaser was wholly different from the contract contemplated between the broker and the purchaser, the broker if entitled to recover at all could recover only on a quantum meruit for services rendered, held properly refused for the reason that the contract of exchange was not wholly different from the contract as contemplated between the broker and purchaser.

4. Bbokebs, § 64*—when consummated contract by principal does not defeat right to commissions. A contemplated contract entered into between a broker and a purchaser to exchange the principal’s flouring mill and other real estate for three houses belonging to the purchaser, and a consummated contract later entered into between the purchaser and the principal to exchange the mill for one of the houses, held not to be so different as to require the broker to recover on a quantum meruit for his services rather than upon his express contract for commissions.

5. Bbokebs, § 95*—when requested instruction properly refused. A requested instruction stating a rule of law to govern the jury in case they found that the negotiations for the exchange of the properties had been abandoned by the principal and purchaser, held properly refused where there was no proof of any abandonment of negotiations by the parties.

6. Bbokebs, § 97*—when requested instruction properly refused as misleading. A requested instruction telling the jury that a person employed to make a sale of property is not entitled to a commission where he is not the efficient cause of the consummation of the transaction for which the recovery of commission is sought, held properly refused as misleading in the case, as tending to cause the jury to believe that plaintiff was not entitled to recover unless he had directly brought about the trade exactly as consummated.


text:
    Solomon Ward, Appellee, v. Mississippi River Power Company, Appellant.
    1. Appeal and ebbob, § 186

      —when freehold involved. On appeal from a judgment in an action of trespass vi et armis to recover for the cutting of timber, where the general issue and pleas of liberum tenementum were filed, but the special pleas were ordered stricken from the files with leave to defendant to prove any matter of defense under the general issue, and the main issue was whether plaintiff owned the property on which the timber was cut, held that the case involved a freehold and was not reviewable by the Appellate Court.
    2. Appeal and ébbob, § 123*—right of parties to confer jurisdiction when freehold involved. Jurisdiction cannot by agreement of the parties be conferred upon the Appellate Court to review a case involving a freehold.
    3. Appeal and ebbob, § 131*—duty of Appellate Court when freehold involved. Where it is clear that a case involves a freehold, it is the duty of the Appellate Court to consider that question sua sponte and transfer the case to the Supreme Court.
    4. Appeal and ebbob, § 123*—exceptions to rule that Appellate Court is without jurisdiction when freehold involved: The rule that the Appellate Court has no jurisdiction to review a case involving a freehold has two exceptions: One is where the suit is commenced before a justice of the peace or in the County Court, the other is where a freehold is involved in the original judgment or decree but not in the points assigned for error.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1914. Transferred to Supreme Court.
    Opinion filed July 28, 1914.
    John F. McGinnis, for appellant.
    John J. Brenholt, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The declaration filed in this case by Solomon Ward, appellee, was in trespass vi et armis, and alleged that the Mississippi River Power Company, appellant, on July 14, 1913, and at other times, with force and arms against the protest of appellee, destroyed his timber growing npon certain of his lands to the value of eight hundred dollars. Appellant filed the general issue and three pleas of liberum tenementum. Thereafter, the court entered an order striking all the special pleas from the files and providing therein that appellant might prove any matter of defense under the plea of general issue that would be a proper defense under any proper plea. Issue was joined and the case went to trial, resulting in a verdict and judgment in favor of appellee for one hundred and fifty dollars.

Appellant did not, on the trial, deny cutting the timber but relied as a defense, and sought to .show by the proof, that the land on which it was growing was its land and not that of appellee. It appeared from the proofs that appellant had purchased a strip of land sixty feet wide off of a forty acre tract of land in Madison county from a man named Euntz and that appellee had land joining this forty acre tract on the north. The controverted question on the trial was whether the strip of land which was cleared up by appellant for the use of its wires and towers, used in conveying an electric current from Keokuk, Iowa, to St. Louis, Missouri, belonged to the forty acres owned by appellee or was part of the sixty foot strip purchased by appellant from Euntz. To determine this question the testimony of surveyors and a number of other witnesses was given as to the location of the line between the two forties, as to where the division fence stood and as to how long appellee and those through whom he had claimed title had been in possession of the strip in question.

The court told the jury, among other things, in its instructions, that they should find the issues for the appellant if they believed from the evidence that appellee was not the owner of the land or that appellant owned the same. Appellant states in its brief that all the pleadings go to show the title to the premises was an issue in the case, and counsel for appellee also states in his brief that the paramount issue in the case was “upon whose land was the timber growing which was cut,” and that this was the question submitted to the jury under the instructions of the court. Both parties would therefore appear to agree that the determination of this case involves a freehold, and the first important question which arises is whether this court has jurisdiction to review the judgment. While there is no motion by either party to dismiss or transfer the appeal for lack of jurisdiction, yet jurisdiction cannot be conferred upon this court even by agreement of parties in such a case, and if it is plain that this court has no jurisdiction, it is its duty to consider that question sua sponte and transfer the case to the Supreme Court, which has jurisdiction. Aden v. Road Dist. No. 3, 97 Ill. App. 347.

It has frequently been held by our Supreme Court that where the title to real estate is put in issue by the pleadings and a decision of the case involves a decision of that issue, a freehold is involved. Douglas Park Bldg. Ass’n v. Roberts, 218 Ill. 454, and cases cited. Mr. Justice Cooke in the opinion delivered by him in the case of Jones v. Sanitary Dist. of Chicago, 252 Ill. 591, says: “We have repeatedly held that when a freehold is so put in issue that a decision of the case necessarily involves a decision of that question, this court has jurisdiction on direct appeal,” and a number of cases are cited by him in support of this rule. It is also well established in this State that where, in a case of trespass guare clausum fregit, there are pleas of general issue and liberum tenementum filed, a freehold is necessarily involved and the Supreme Court alone has jurisdiction on appeal. Douglas Park Bldg. Ass’n v. Roberts, supra; Piper v. Connelly, 108 Ill. 646; City of Alton v. Fishback, 81 Ill. App. 86.

It is true that in this case the Court struck from the files the pleas of liberum tenementum, but in doing so he entered the order above referred to, allowing defendant to make any defense that might properly be made under any proper plea, and the case appears to have been tried on the same theory as though such pleas had been filed, and it must be so treated here. This court held in McDowell v. Jones, 106 Ill. App. 473, that in an action of trespass quare clausum fregit, where the only material question tried was the ownership of the premises in question, a freehold was directly involved and that the appeal should have been taken to the Supreme Court. There are two exceptions to the general rule above laid down, however, and these are: First, where the suit is commenced before a justice of the peace or in a County Court in which case the appeal must be taken to the Appellate Court. This question is discussed somewhat at length and numerous authorities cited in Boyd v. Kimmel, 244 Ill. 545. That case originated in the County Court, and an appeal was taken therefrom to the Appellate Court and the case was later transferred by the Appellate Court to the Supreme Court on the ground that a freehold was involved. The Supreme Court stated in its opinion that if the County Court had jurisdiction to try the title to the disputed real estate in question and to establish a proper boundary line between the litigants, then the appeal should have been taken to the Supreme Court, and if the County Court did not have jurisdiction to try. a case involving a freehold and render a judgment that would be binding upon the parties to the title, the appeal was properly taken to the Appellate Court; and it was held by the court that the County Court did not have jurisdiction to try a case involving a freehold and' render a judgment binding as to the title and therefore the appeal was properly taken from that court to the Appellate Court. In that case the court also approves the doctrine laid down in Pitts v. Looby, 142 Ill. 534, and Cobine v. McKittrick, 186 Ill. 324, that an action for damages to real property commenced before a justice of the peace is different from an action of trespass guare clausum, fregit commenced in the Circuit Court, because the justice of the peace has no jurisdiction to try title to real estate and the question of freehold can only be incidentally involved, and therefore appeals from the trial courts, to which such justices’ cases may be taken, should be to the Appellate Court and not to the Supreme Court. The other exception is where a freehold is involved in the original judgment or decree but not in the points assigned for error, in which case the appeal should be taken to the Appellate Court. Prouty v. Moss, 188 Ill. 84; Franklin v. Loan & Investment Co. of North America, 152 Ill. 345.

In this appeal it was argued by counsel on both sides, and such argument was proper under the errors assigned, that appellee having attempted to show ownership by adverse possession, the title to the land in question was the principal issue to be determined. It will therefore be seen that according to the rules laid down in the above authorities the question of freehold was involved not only upon the trial of this cause in the Circuit Court, but also upon this appeal and therefore the appeal should have been taken directly from the Circuit Court, where the suit originated, to the Supreme Court.

The clerk of this court will accordingly be directed to transmit the transcript in this case and all the files herein, together with the order of transfer, to the clerk of the Supreme Court.

Transferred to Supreme Court.


text:
    Ida Jefferies, Appellee, v. A. J. Alexander et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquors, § 225

      —when evidence tends to prove death 6y delirium, tremens. In an action hy a wife for damages resulting from her husband’s intoxication produced by a sale of liquor to him by the defendants, where the declaration alleged that the husband died of delirium tremens, held that there was evidence tending to show that he died of such affliction, where it was undisputed that he was in a highly delirious state and was seeing and doing things commonly supposed to attend an attack of delirium tremens; but also held that under such conditions it was immaterial •whether the delirium was properly named in the declaration or not, the proofs plainly showing a case in which plaintiff was entitled to recover.

      Appeal from the Circuit Court of Marion county; the Hon. James C. McBeide, Judge, presiding. Heard in this Court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Ida Jefferies against A. J. Alexander, L. E. Kammier, Edward E. Kell, August Langenfeld and others either found not guilty or dismissed out of the case, under the Dramshop Act, to recover damages on account of the death of plaintiff’s husband, Newton Jefferies, alleged to have resulted from his habitual intoxication brought on by the sale of intoxicating liquors to him by the defendants after plaintiff had served notice on them not to sell or give him intoxicating liquors. There was a plea of the general issue and a verdict and judgment in favor of plaintiff. To reverse the judgment, defendants appeal.
    W. H. Nelms, F. P. Drennan and Noleman & Smith, for appellants.
    Bundy & Wham and L. B. Skipper, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Intoxicating liquobs, § 208 —^when evidence to show existence of former wife of husband inadmissible. In an action by a wife under the Dramshop Act to recover damages resulting from her husband’s intoxication alleged to have been produced by the sale of liquor to him by the defendants, evidence offered to show that the husband had a wife living by a former marriage, and a decree of divorce obtained by such wife from the husband which defendants claimed was void for the reason that it failed to state that the complainant in the divorce suit was a resident of the county in which the suit was brought, held properly rejected on the ground that the decree could not he collaterally attacked.

3. Intoxicating liquobs, § 249*—when instruction in language, of statute not misleading. In an action brought by a wife under the Dramshop Act to recover damages resulting from the saie oi. intoxicating liquors to her husband, the giving of an instruction purporting to contain all the words of the statute, but omitting some portions immaterial to the case, held not misleading so as to constitute reversible error where other instructions given properly limited the damages to the injury sustained . by plaintiff in ■ her means of support.

4. Divorce, § 64*—when decree cannot be collaterally attacked. A decree of divorce cannot be attacked in a collateral proceeding for the reason that the decree did not state the complainant in the divorce suit was a resident of the county in which the suit was brought.

5. Appeal and ebrob, § 111 i*—when remarks of counsel not prejudicial. Improper remarlo ch plaintiff’s counsel in his argument to the jury held not of such ma-.vrial importance as to warrant a reversal of the judgment.

McBride, J., having tried this case in the court below, took no part in this decision.


text:
    Charles J. Hahn, Appellee, v. Pauline Schnell, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Clinton county; the Hon. Albert M. Bose, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Charles J. Hahn against Pauline Schnell and Carlyle Schnell in trespass. The declaration charged the defendants with turning on the dwelling Louse of plaintiff and into the open doors and windows thereof large streams of water with great force and violence thereby injuring the plaintiff, disturbing his peace of mind and damaging his property. There was a plea of not guilty and a verdict in favor of plaintiff for nine hundred dollars followed by a judgment for a like amount. To reverse the judgment, Pauline Schnell alone appeals.
    The facts show that Pauline Schnell owned the house in which the plaintiff was living as a tenant at Carlyle, Illinois; that there had been some difficulty over the rent and that she and her son, Carlyle Schnell, resided in Missouri. The son and the mother returned to Carlyle and the son had a conversation with'one Shade and one Thalls about a little job he wanted done. They went into a saloon and after taking several drinks Shade and Thalls agreed to “take the chance,” and on the night in question secured a hose from the city hose house and attached it to a city hydrant near where plaintiff resided and the three men directed the hose towards the windows causing a dirty stream of water to be thrown into the house.
    Appellant claims that the proofs failed to show she was in any way connected with the offense complained of; that there was error in. plaintiff’s third instruction and in the courts ruling on certain evidence.
    The third instruction complained of is as follows:
    “The court further instructs that if you believe from a preponderance of the evidence in this case that David Shade and Thomas Thalls wilfully and maliciously entered the premises occupied by the plaintiff in the nighttime, and turned a stream of water from a hose, connected with the city hydrant, upon the dwelling house occupied by the plaintiff and through the open window of said house upon the person of the plaintiff, as charged in the declaration, and if you further believe, from the evidence, that said David Shade and Thomas Thalls were procured or employed to do said unlawful act by the defendant Carlyle Schnell, and that he stood by and aided and abetted them in the perpetration of the same, and if you further believe from the evidence that the defendant, Pauline Schnell, was the owner of the dwelling house in question, and that with a view of procuring possession of the same or forcing the plaintiff and his family to vacate the dwelling house, she was present or stood by and aided, abetted or encouraged the said Carlyle Schnell in the commission of said unlawful acts, or if you believe from the evidence that the said Pauline Schnell not being present had knowledge of what was about to be done, and had advised, encouraged, aided or abetted the said Carlyle Schnell to attempt to dispossess the plaintiff and secure possession of said dwelling house by the commission of the act done, then both the defendants, Carlyle Schnell and Pauline Schnell, are liable for the unlawful acts of the said David Shade and Thomas Thalls.”
    Ford & Jones and William Johnston, for appellant.
    Noleman & Smith and H. G. Weber, for appellees.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Trespass, § 49 —when'finding of guilty against joint defendant sustained, by the evidence. In trespass against two defendants charging them with turning large streams of water with force and violence through the open doors and windows of plaintiff’s dwelling house, where it was not disputed that one of the defendants and two other persons committed the act charged, hut the other defendant, who was the mother of the codefendant, denied having aided or abetted in the commission of the act charged, held that a verdict finding both defendants guilty was sustained by the evidence.

2. Trespass, § 55*—when giving of argumentative instruction not reversible error. In an action of trespass charging a son and ■ mother with turning a large stream of water upon and into plaintiff’s dwelling house, an instruction given for plaintiff which in part stated that if the mother “was the owner of the dwelling house in question, and with a view of procuring possession of the same or forcing the plaintiff and his family to vacate the dwelling house, she was present or stood by and aided, abetted, etc.,” then she was liable with the other defendant, held objectionable as argumentative in setting forth a reason why the mother might have desired or been led to assist her son in his unlawful assault, but held that regardless of any reason which may or may not have actuated her to have assisted said offense, the instruction set forth the law applicable to the case and that the argumentative portion would not warrant a reversal.

3. Trespass, § 48*—admissibility of evidence. In trespass against two defendants for turning water upon and into plaintiff’s dwelling house, exclusion of evidence offered to show that one of the defendants had paid out large sums for fines and costs for the same act and that the wife of the plaintiff had previously recovered a judgment against him, held proper.

4. Appeal and error, § 1213*—when errors not affecting appellant cannot be complained of. In trespass against two defendants for turning water upon plaintiff’s dwelling house, exclusion of evidence offered to show that one of the defendants had paid out large sums for fines and costs for the same act and that the wife of the plaintiff had previously recovered a judgment against him cannot he complained of by the other defendant on appeal by her alone, as such action of the court did not in any manner concern plaintiff’s right of action against her.


author: Mr. Justice Harris

text:
    Thomas M. Ballance, Defendant in Error, v. City of Granite City, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 1085

      —burden of proof. In an action against a city for personal injuries alleged to have resulted from the negligence of the city in permitting its sidewalk to remain out of repair, the burden is upon the plaintiff to show, by a preponderance of the evidence, that the sidewalk was out of repair at the time of the accident and for a sufficient length of time prior thereto to give the city notice thereof, actual or constructive; that the city had notice of the accident as provided by statute; that plaintiff at the time of the accident was in the exercise of due care; and that he was injured and the extent thereof.

      Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Thomas M. Ballance against City of Granite City to recover for personal injuries alleged to have been caused by the negligence of the defendant in permitting a sidewalk to remain in an unsafe condition. The jury returned a verdict in favor of plaintiff for $2,09.1, and judgment was entered on the verdict. To reverse the judgment, defendant prosecutes a writ of error.
    The error argued for reversal is that the verdict is manifestly against the weight of the evidence.
    D. J. Sullivan and M. B. Sullivan, for plaintiff in error.
    Dah McGlyhh, for defendant in error.

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

   Mr. Justice Harris

delivered the opinion of the court.

2. Municipal corporations, § 1098*—when verdict for injuries resulting from defective sidewalk sustained by the evidence. In an action against a city for personal injuries sustained by plaintiff by tripping and falling by reason of the defective condition of a sidewalk which it was alleged the defendant negligently permitted to remain out of repair, a verdict for plaintiff on conflicting evidence held not against the manifest weight of the evidence.


text:
    Frank Deason, Appellee, v. County of Williamson, Appellant.
    1. Assumpsit, action of, § 33

      —when common counts proper to recover for services under Pauper Act. A physician who has treated paupers and cyclone sufferers under the Pauper Act, J. & A. Iff 8355 et seq., is entitled to recover from the County for such services under the common counts.
    2. Paupers, § 25*—right of physician to recover for aid to persons not paupers. To entitle a physician to recover under section 24 of the Pauper Act, J. & A. jf 8378, for treatment of cyclone sufferers, he must show that those treated did not come within the definition of paupers, that they were injured or had fallen sick and that they have neither money nor property to pay for medical aid.
    3. Appeal and error, § 1506*—when refusal to permit cross-examination of plaintiff reversible error. In an action by a physician to recover from the County for treatment of paupers and cyclone sufferers, refusal to permit cross-examination of plaintiff to show that other physicians had performed some of the services sued for and what the arrangement was between them, held reversible error.
    4. Paupers, § 22*—when instruction improper. In an action by a physician against the County to recover for treatment of paupers and also for treatment of cyclone sufferers, an instruction given for plaintiff which directed a verdict and told the jury as a matter of law that if they believed the services were ordered by the overseer of the poor the plaintiff would be entitled to recover, held erroneous as authorizing the jury to return a verdict for the claims without stating the necessary elements to entitle plaintiff to recover.
    5. Paupers, § 25*—when instruction on right of physician to recover for treatment of cyclone sufferers erroneous. An instruction based on the right of a physician to recover from the County for the treatment of cyclone sufferers, held erroneous where it does not include the element that the parties treated were without means to pay for the medical aid.
    6. Paupers, § 22

      —when instruction on right of physician to recover for treatment erroneous. An instruction based upon the right of a physician to recover from the County for treatment of paupers and cyclone sufferers which told the jury that if the supervisor employed plaintiff to render medical aid to the parties mentioned in the suit, the plaintiff would be entitled to recover a fair and reasonable compensation for his services, held erroneous.
    Appeal from the Circiut Court of Williamson county; the Hon. Richabd S. Fabrand, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    D. T. Hartwell and George E. Store, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.

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

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

   Mr. Justice Harris

delivered the opinion of the court.

The appellee, a physician, a resident of Bush, Williamson County, brought this suit for professional services rendered to paupers, and for professional services rendered in an emergency case, following a cyclone passing through the village of Bush, April 21,1912, and to recover therefor filed his declaration consisting of the common counts.

The defendant filed thereto the general issue. A trial upon the issues resulted in a verdict and judgment for the sum of $289, from which this appeal is prosecuted.

Appellant contends that this verdict is excessive, admitting liability to the amount of $156. The right to recover in this suit is based upon two sections of the statute. The first, waiting upon Mabel Minor and Florence Lewis, paupers. (Sections 18 and 20 of chapter. 107, E. S., J. & A. 8355, 8362, 8372.) The second, for waiting upon the cyclone sufferers under section 24 of the same chapter. (J. & A. ft 8378.)

It is contended by appellant that there could be no recovery as to the Minor and Lewis claims except for the services after the supervisors had been notified of their condition and authorized treatment. Appellant insists there can be no recovery for treatment of cyclone victims because, under the common counts, an expressed or implied promise to pay or an expressed or implied request to perform services is essential to a recovery.

Appellant insists that error was committed in the admission of evidence and restriction of cross-examination of appellee; that the court committed error in the giving of appellee’s instructions 2, 4 and 6.

The statute upon which appellee proceeds is a humane provision of the law for the protection of the unfortunate where they prove to be paupers, and where they are not paupers but where in an emergency they are unable to take care of themselves. However, the existence of such provisions of the law does not mean that a generous people in providing such a law are not to be protected in having those charged with the performance of duty under the law, before they can recover, perform it, in the manner and the way the law provides. In other words, where certain powers and rights are delegated to certain persons by the Legislature to appropriate to their own use funds out of the public treasury, they must do it within the law and according to law. From an examination of the record in this case on account of the refusal of the court to permit a cross-examination of appellee upon the question of his interest in the subject-matter of the suit and the giving of the instructions 2, 4 and 6 for appellee this cause must be reversed for another trial, the facts will not be discussed except to dispose of these questions.

A recovery may be had under the two sections of the statute involved under the common counts where the facts authorize a recovery. Under the section of the statute which appellee seeks recovery for treatment of Mabel Minor and Florence Lewis, they must be shown to be paupers, and treated under the direction of the supervisor or after notice to the supervisor of their condition and with his acquiescence to raise either an expressed or implied promise to pay. This would not operate to bind the County to pay for treatment administered prior to such time. County of Clinton v. Pace, 59 Ill. App. 580.

Under section 24 of the Pauper Act (J. & A. 8378), appellee was authorized to treat the cyclone sufferers where prompt and immediate action is required without notice to or permission from the supervisor. To entitle appellee to recover under this section he must show:

First. That those treated did not come within the definition of pauper; second, that they were injured or had fallen sick; third, that they have neither money nor property to pay for medical aid. County of Clinton v. Pace, 59 Ill. App. 577.

It is always necessary for the party seeking to recover to show that the cause of action belongs to him, and a cross-examination of a party as to his interest in the money to be recovered is proper and it is error to deny. Where it was sought on cross-examination of appellee to show that other physicians had performed some of the services charged for by appellee and what the arrangement was between them was proper and the denial was error.

The evidence in this case called for a-finding of the jury on the question of when the supervisor was first notified and permitted the Minor and Lewis treatment, and who treated the cyclone sufferers and what was a reasonable charge therefor.

It would follow that the admission of evidence upon these issues should be free from error and the jury accurately instructed. It is true instructions were given for appellant defining the issues under these two sections of the statute, but when read with appellee’s given instructions 2, 4 and 6 they are in conflict therewith and misleading. Appellee’s given instruction number 2 directs a verdict and tells the jury as a matter of law that if they believe the services were ordered by the overseer of the poor that appellee would be entitled to recover a reasonable and fair compensation for the services rendered. It includes services rendered or claimed by appellant to have been rendered even prior to notice in the Minor and Lewis claims; and also that the order would include a right to recover for treatment of cyclone sufferers.

This instruction would authorize the jury to return a verdict for all these claims they believed fair and reasonable without the necessary elements to entitle a recovery and should not have been given.

Appellee’s instruction number 4 is based upon the right to recover for treatment of cyclone sufferers without permission of the supervisor, and should have included the elements that an emergency existed and that the party injured had no property or means to pay for medical aid, and because the instruction did not include, “That the parties treated were without means to pay for the medical aid,” this instruction should not have been given.

The complaint as to the giving of appellee’s instruction number 6 for the reasons given as to appellee’s number 2 and for the further reason that it told the jury that if the supervisor employed appellee to render medical aid to the parties mentioned in this suit, he would have a right to recover a fair and reasonable compensation for services so rendered.

The parties mentioned in the evidence included parties who were treated under a different section of the statute, and this instruction gave the jury the opportunity to find under the law that if the supervisor had been spoken to about the treatment of Minor and Lewis and had so directed treatment without any further showing, that would bind the County as to treatment of cyclone sufferers. This instruction should not have been given.

We think the errors in the admission of evidence and the giving of instructions go to the merits of the case, and the judgment will have to be reversed and cause remanded.

Reversed and remanded.


text:
    Angelique Huchette, Administratrix, Appellee, v. Williamson County Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Angelique Huchette, administratrix of the estate of J. B. Huchette, deceased, against the Williamson County Coal Company to recover for the for the death of the deceased resulting from a stone falling from the roof of a mine upon him while employed to go into the mine and extinguish a fire. The declaration consisted of four counts, all of which charged common-law negligence.
    The first count alleged that the defendant carelessly and negligently failed to prop its roof; that defendant knew of its dangerous condition or could have known of it; that plaintiff’s deceased did not know of such dangerous condition, and did not know of the dangers consequent to improperly propping roof and did not have equal means of knowing with defendant. The second count that said roof was insufficiently propped and same as first count. The third count that the roof was insufficiently propped and that deceased was carelessly and negligently sent into cross cnt to assist in extinguishing fire, the escaping of steam and loosening of rock, etc. The fourth count same as third, negligent order, unsafe place to work, etc.
    Abstract of the Decision.
    1. Mines and minerals, § 148

      —burden of proof in suit for death of miner. In an action against a mining company to recover for the death of a miner resulting from the fall of a stone from the roof of a mine, held under the averments of the declaration the burden was upon the plaintiff to prove by a preponderance of the evidence that the deceased while in the exercise of due care and caution was injured by defendant’s failure to use reasonable care to furnish deceased with a reasonably safe place to work; that at the time of the accident he was acting under and in obedience to a special order; that the danger was known to defendant or could have been known by the exercise of reasonable care; that deceased did not know of the danger and that he was free from the negligence which contributed to the injury.

      All of said counts charged that the deceased while he was in the exercise of due care was killed hy and through the negligence of defendant to the damage of the plaintiff in the sum of ten thousand dollars. A plea of not guilty was filed and an issue joined thereon. From a judgment entered on a verdict in favor of plaintiff for fourteen hundred dollars, defendant appeals.
    Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.
    Neely, Gallimore, Cook & Potter, for appellee.

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

   Mr. Justice Harris

delivered the opinion óf the court.

2. Mines and minerals, § 173*—when recovery for death of miner not sustained by the evidence. In an action against a mining company to recover for the death of a miner resulting from" the fall of a rock from the roof of a mine, where the declaration alleged defendant was guilty of common-law negligence in failing to prop the roof, held that a verdict in favor of plaintiff could not be sustained for the reason that the .evidence showed that the deceased was not in the exercise of due care for his own safety, it appearing that deceased was taken from the place where he was injured to a place of safety and directed to keep out, and that he returned to the place he was injured in violation of the directions.

3. Appeal and error, § 1411*—when verdict may be set aside. A verdict on conflicting testimony may be set aside as against the weight of the evidence where the verdict is based on the testimony of one witness, which was denied by three others, and all the circumstances and inferences to be drawn from the evidence corroborated the three witnesses.

4. Appeal and error, § 1802*—when judgment may be reversed without remandment. Where a verdict upon which a judgment was entered is without sufficient evidence to support it and the case has been tried twice in the lower court, and it appears from the record that all the facts material to the issue have been brought forward to both parties and that a new trial would serve no good purpose, the case will he reversed with a finding of fact.


author: Mr. Justice BLarris

text:
    J. H. Bayer, Appellee, v. St. Louis, Springfield and Peoria Railroad, Appellant.
    1. Street railroads, § 152

      —when refusal of requested instruction reversible error. In an action against a street railway company for damages to plaintiff’s auto truck alleged to have been caused by defendant’s street car colliding with it at a street intersection, refusal of an instruction offered by defendant which told the jury that if they believed that plaintiff’s driver drove the truck against the side of defendant’s car, and that in so doing they believed he was guilty of negligence contributing to the accident, they should find for defendant, held reversible error for the reason that the instruction stated the law applicable to the case and was not covered by other instructions.
    2. Damages, § 190*—sufficiency of proof of amount. Though proof of damages by plaintiff’s testimony alone, which is indefinite, as to the amount may not be grounds for reversal of the judgment, it is an unsatisfactory way of proving damages where with care the amount could be ascertained with reasonable certainty.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Richard Yates and H. C. Dillon, for appellant; George W. Burton, of counsel.
    C. H. Burton, for appellee.

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

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

   Mr. Justice BLarris

delivered the opinion of the court.

The declaration filed in this case consisted of one original count and an additional count called the first and second counts. The first count, in substance, avers that on June 15, 1912, appellant possessed and operated a certain electric railroad through the city of Venice and village of Madison and was operating by and through its servants a certain car from the north towards the south upon State street in the city of Venice at and near an intersection with Market street, both being public streets, and appellee then and there with due care for his own safety was riding in an auto truck upon Market street going from east towards the west and towards said intersection lines with State street; that appellant by and through its servants in charge of said car negligently and improperly drove and operated said car so that it struck with great force and violence the auto truck in which appellee was riding and by means whereof the auto truck, then and there the property of appellee, was crushed, damaged and injured to the amount of seven hundred and fifty dollars.

The second count avers, in substance, the same as the first count, and that there was then and there in force in the city of Venice a certain ordinance limiting the speed of electric cars on State street to not more than fifteen miles per hour, and that the appellant negligently and improperly drove said car at a speed in excess of fifteen miles per hour, and by reason thereof appellee while in the exercise of due care and caution riding in the auto truck was struck by said car with great force and violence and his, appellee’s, auto truck crushed, damaged and injured, etc.

The general issue was filed by appellant to the declaration. Upon a trial the jury found appellant not guilty under the second count of the declaration, at the close of evidence offered by appellee under the instruction of the court. The trial proceeded under the first count of the declaration and the jury found the appellant guilty and assessed appellee’s damages at three hundred dollars. Upon motion for a new trial the appellee entered remittitur of the sum of fifty dollars. Motion for a new trial was overruled and judgment entered for the sum of two hundred and fifty dollars.

The facts in this case as they appear from the record show: That appellee with his driver and two other workmen in an auto truck started west on Market street about one hundred and fifty feet east of the intersection of said Market and State streets, the place where the accident occurred. The auto was being run at the time on second speed; that the view to the north on State street at the intersection was obstructed until the car would be within about twenty feet of the intersection; that a collision occurred between the electric car and auto is not a matter of dispute; that it was at a street crossing much used by the public is established by the evidence. The circumstances tending to show due care and caution of appellee and negligence of the Company were the questions of fact upon which there was a sharp conflict of the evidence to the extent of' four or five witnesses on each side. The credibility of some of the witnesses was attacked and all submitted to the jury.

Appellant relies upon three propositions to reverse this case:

First. That the driver of appellee’s auto truck was guilty of contributory negligence and appellee under the facts cannot recover.

Second. That appellant was entitled to have its refused instructions 1, 2 and 3 given and the refusal of the court to give them is reversible error.

Third. That the verdict of the jury was excessive and that error was not cured by remittitur.

The first proposition argued by appellant, excerpts from the testimony of a number of witnesses quoted and from an examination of the record of the evidence of physical conditions, conduct of servants of appellant in running the car and the conduct of appellee while approaching the crossing, made the case close upon the facts, with evidence tending to support a finding of the jury, whatever it might be, and at the same time call upon the court to apply the law with greater accuracy.

The merit of the contention of appellant is covered by the second proposition. It appears from the record, without contradiction, that appellant’s refused instructions numbers 1, 2 and 3 were presented by appellant to the court and refused, and that each one of them correctly stated a proposition of law applicable to the case is not denied. It is, however, insisted by appellee that the same proposition was covered by other given instructions for appellant. The first of said instructions is, as follows:

The Court instructs the jury, that if you believe from the evidence that plaintiff’s driver on the occasion in question, drove the auto truck, owned by the plaintiff, against the side of defendant’s car, and that in doing so, if yon so believe, he was guilty of negligence contributing to the accident, then you should find the defendant not guilty.”

That the above instruction states the law applicable to this case is not denied or argued by appellee, and leaves to be determined whether or not appellant’s defense of a failure on the part of appellee to exercise due care and caution has been submitted to the jury as it has a right to have it submitted.

The declaration charged by reason of the negligence of the servants of appellant, while the appellee was in the exercise of due care, that appellant’s car was with force and violence run against appellee’s anto, and appellant answers by the evidence of two or more witnesses and the marks on the car that appellee ran his auto into the side of appellant’s car, which evidence tended to prove the defense, and if believed by the jury might sustain the jury in a finding that appellee was not in the exercise of due care; that a fair presentation of this issue to the jury is necessary under the pleadings and facts and any error by reason of which the jury was deprived of either the law or the facts applicable thereto goes to the merits of the case and is reversible error.

Appellee says this proposition was covered by other instructions, particularly numbers 1, 5, 7, 8 and 9 given for appellant. After a careful reading of appellant’s instructions the most that can be said is that the jury were told; “That unless the jury believe the plaintiff was in the exercise of due care and if by the exercise of reasonable and ordinary care on his part could and would have kept out of the way of the car and thus have avoided the collision,” he could not recover.

The instructions referred to were abstract in character of the law on due care and caution so frequently mentioned, and particularly in the case of Carlin v. Grand Trunk Western Ry. Co., 243 Ill. 64.

The instruction offered contained the law as to a state of facts which was supported by the evidence, which if found to be true by the jury would defeat a recovery, and of which appellant in no other given instruction had the benefit thereof and should have been given and it was reversible error to refuse. The third proposition might not, standing alone, call for a reversal of this case, but as it must be reversed all that will be. said is that appellee’s evidence is the only evidence upon the measure of. damages and he cannot definitely state how much his damages were, but about two hundred and fifty dollars, may be more and might have been less, which is an unsatisfactory way of proving damages of this kind, where with care the amount could be ascertained with reasonable certainty.

For the error in refusing this instruction the judgment will be reversed and cause remanded.

Reversed and remanded.


text:
    Essa Russell, Appellee, v. O’Gara Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Action by Essa Bussell against O’Gara Coal Company to recover for the death of her husband, Thomas Bussell, resulting from the fall of the roof of defendant’s mine.
    The declaration consists of three statutory counts, the first charging a demand for props from the mine manager and a failure to furnish suitable props. The second count charges a custom and practice adopted in mines and known and recognized hy defendant, whereby the diggers would order props, caps and timbers from the timberman, and that plaintiff’s deceased so ordered but that defendant wilfully failed to provide them. The third count charges a dangerous condition in the room where plaintiff’s deceased was required in the exercise of his duties to be, consisting of loose slate, rock and other substances forming a part of the roof of said room, and that defendant knew of this dangerous condition or could have known thereof; that defendant allowed Thomas Bussell to enter said room and to work therein without the direction of the mine manager before the said dangerous condition had been made safe; that in each of said counts it is alleged by reason thereof Thomas Bussell was injured from which injuries he died, and that plaintiff as his surviving widow has been damaged, etc. To each of the counts the general issue was filed, upon which a trial followed, and a verdict of the jury returned finding defendant guilty and assessing plaintiff’s damages at two thousand dollars. From a judgment entered on the verdict, defendant appeals.
    Abstract of the Decision.
    1. Mines and minerals, § 89

      —duty to furnish sufficient props. The fact that the miner has unused props will not relieve the mining company of the duty to furnish props of suitable length.
    2. Mines and minerals, § 89*—effect of ordering props before they are needed. The fact that a miner orders props before they are needed, held not to relieve a mining company from liability to furnish them.

      M. S. Whitley, for appellant.
    Ronalds & Dodd and Choisser & Kane, for appellee.

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

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

   Mr. Justice Harris

delivered the opinion of the court.

3. Mines and minerals, § 89 —right of miner to continue work after demand for props. The fact that a miner, with knowledge of the dangerous condition of the roof of the mine, continued to work two days after props were ordered from the timberman, does not charge him with contributory negligence or with assuming the risk, where there was a custom for the timberman to receive orders for props, and he was charged with knowledge of the dangerous condition of the mine and permitted the miner to work without the direction of the mine manager.

4. Mines and minerals, § 90*—when company bound by custom of timberman to furnish props. Where a mining company has adopted and recognized a custom whereby a miner orders props, caps and timbers from the timberman and has the timberman measure and determine the length of suitable props, it is bound by such custom and the timberman becomes a vice-principal, and his knowledge and neglect of duty is that of the company.

5. Mjnes and minerals, § 187*—when instruction not misleading. In an action against a coal mining company for the death of a miner alleged to have resulted from the failure of defendant to provide props, caps and timbers, .an instruction given for plaintiff which undertook to set out what was necessary to prove under a count in the declaration, held not misleading, for the reason that the declaration referred to caps and timbers while the evidence was with reference to props, there being undisputed evidence that props, caps and timbers are inseparable.