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    Charles B. Hulse, Appellee, v. Oscar M. Hulse, Appellant.
    1. Statute of Frauds—when no defense. If a contract may by any contingency be performed within one year, it is not within the Statute of Frauds.
    2. Statute of Frauds—when no defense. A contract entirely executed on one side and nothing remaining to be done under it except ■ payment by the other party, is not within the Statute of Frauds.
    3. Statute of Limitations—when begins to run. The Statute of Limitations does not commence to run against an obligation to pay money until the maturity of such obligation has arrived.
    4. Contracts—what sufficient consideration. A compromise of a, doubtful claim fairly obtained is a sufficient consideration on which to found a contract no matter what the ultimate result of a contest might have been.
    5. Contracts—what sufficient consideration. A debt barred by the Statute of Limitations or any moral obligation which was once a legal one is a sufficient consideration to support a contract
    6. Real property—status of oil. Oil in place in the earth is realty but “oil in place” is not contemplated by the term royalty. It can, however, make no difference whether royalty reserved be oil or money as royalty when collected must necessarily be personal property.
    Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Statement by the Court. The appellee is a half brother of the appellant; and he bases his right of action in the lower court upon the following, which he insists are true facts, to-wit: December 22, 1894, he made a warranty deed to Myron 1ST. Hulse, another half brother of his and a full brother of appellant, to ninety-six acres of land, to-wit, north half of northwest quarter of section 19, and that part of the south twenty rods of the south half of southwest quarter, section 18, that lies west of the center line of Dogwood Creek, being about 155 rods long,—all in township 7, north range, 13 west, in Crawford county, Illinois. In this deed, by fault of the scrivener, there was an error in the description of the land, the grantor only intending to convey about thirty acres of this tract, and did not intend to convey any part thereof known as the homestead or dower of Nancy Hulse, widow, mother of appellee and step-mother of the appellant. This homestead tract consists of the above named tract in said section 18, and the north twelve and one-half rods off the north side of said tract in said section 19, and contains about thirty-two acres. Myron N. Hulse lived with appellant for many years before he died, and attempted to will to appellant all his said lands. It is said by appellee that this will was never probated, and that there was some question as to his sanity when he made the will. Appellant, after the death of Myron N. Hnlse, asked appellee and all the other heirs of his "brother, Myron, namely, David Hulse, Joseph Hulse, Jasper N. Hulse and Alice Scott, to join in a deed to Mm to his deceased brother’s land claimed by him by will, presumably to settle all questions of title thereto. Appellee refused to sign this deed unless appellant would correct the error in said deed to Myron 1ST. Hulse. All the other heirs executed such a deed August 24, 1897. Finally, on March 10, 1898, appellee executed the deed to appellant in consideration of an agreement by appellant to him that he, appellant, would make right or correct the error in the deed to Myron 1ST. Hulse, and make right the wrong occasioned thereby. The matter of correcting said error is not heard of much after the making of this deed until the year 1907, the widow still occupying the homestead. The land becoming valuable for oil, on a renewal of this controversy, appellee and appellant finally entered into another agreement by wMch the land known as the homestead tract was to be leased for oil for the best royalty -obtainable by appellant and the widow and the other heirs; and appellee was to be paid for tMs tract by appellant all that could be realized out of the royalty for -oil on the share claimed by appellee, the “top” thereof, as they expressed it, to be owned by appellant, and the land to be entirely appellant’s when the oil should all be taken therefrom. The land was then leased under this agreement by the widow, the appellant and the other heirs to R. T. Cisler and "W. A. Campbell for oil; and one David W. Odell was by contract made trustee " for them to dispose of the rental oil and divide the proceeds thereof among the parties to whom it should be paid. Hnder this agreement Odell collected ‘money for rental oil on tMs share held by appellant under his agreement with appellee the sum of $1,749.08. Of tMs ‘ •sum collected appellant paid appellee in 1907 and 1908 the sum of $836.25. Appellant then refusing to pay any further payments under said agreement, appellee began this suit in assumpsit in the lower court to recover against appellant the remaining sum of $912 collected as royalty. Appellant pleaded the general issue, special plea of the five years’ Statute of Limitations, and two pleas of Statute of Frauds, that the supposed promise was an agreement for sale of land, etc., and was not to be performed in one year, etc., and that they were not in writing, etc. Issues were formed, and on a trial appellee obtained a verdict and judgment against appellant for $700, after appellant’s motion for new trial was overruled. Appellant appeals to this, court assigning numerous errors of the lower court.
    P. G-. Bradbury and Jones & Bell, for appellant.
    Shamhart & Isley, for appellee.
   Mr. Justice Duncan

delivered the opinion of the-court.

The, appellant’s counsel in their argument rely on three grounds for a reversal of the judgment of the lower court: (1) That the appellee did not prove the alleged contract by the preponderance of the evidence; (2) that said contract was not in writing and void under the Statute of Frauds; (3) said contract was void for want of a sufficient consideration.

First. The alleged contract between the appellee1 and the appellant was abundantly proved by the appellee’s evidence. It is admitted by the appellant in his evidence that there was a mistake in the deed of appellee to Myron N. Hulse; and that he asked the appellee and the other heirs of Myron N. Hulse to. make him another deed to the land properly describing it; and that appellee at first refused to do so, insisting' that there was a mistake against appellee in the original deed. He also admits that he paid to appellee $662.60 in three different payments, and that they were made at about the same time and at the same places as appellee stated they were made. His explanation,. however, is that his brother was poor and needy, and that all of said payments were gifts, pure and simple, and not payments in pursuance of any such contract as appellee claimed. He denies positively that he either made any such agreement with appellee, or that he promised his step-mother that he would pay appellee the royalty realized on this disputed share of land, if she would join in a lease of the homestead tract for oil. These contracts, however, are positively testified to by appellee and his mother, and they are strongly corroborated by David Hulse, Jackson Scott and Rolla. Hall. David Hulse testified that appellant said when the lease for oil was made, that there was a mistake in the deed to Myron, and that he intended to turn the royalty over to Charley; but that he, appellant, wanted the “top of the ground.” Nancy Hulse, the widow, testified that he said to her that if she would sign the lease for oil, he would give Charley the “royalty and bonus,” and that she consented and signed the lease. Rolla Hall testified that appellant told him about July 6,. 1908, that Charley was drawing the royalty and that he, appellant, was tó get the land; and, that while he didn’t believe in “going back” on what he agreed to-do, he thought he would take out Charley’s royalty and give it to Joe (another brother). A great deal of the evidence of the appellant and his witnesses, in a measure, corroborated the appellee and his witnesses; and the court and jury were thoroughly warranted in finding for the appellee on this question. The fact that, appellee was mistaken as to where, and before whom, he signed the deed has little significance, as well as his statement that he did not acknowledge the deed to appellant before any one. No intention of the. witness to deny this deed, or to testify falsely, is shown by these statements, as it was at all times his claim that he signed this deed. These statements simply indicate a probable fault in memory, and a lack of knowledge-as to what constituted an acknowledgment of the deed.

Second. The Statute of Frauds has no application "to this case, and the debt was in no sense barred by the Statute of Limitations. The contract of appellant was that he would pay appellee the royalty realized for that share of the land, that is, the rent or profits of the lease, if appellee would let the remainder of the land, ■after the oil was taken, remain in appellant’s name. Oil in place in the earth is realty, to be sure; but “oil in place” is not contemplated by the term royalty. Royalty, even if paid in oil, is personal property, and the proceeds thereof would be money. It is not always the case that in leases for oils or minerals that royalty is payable in certain portions of the oils or minerals to be taken, as it happens to be in this case; and at the making of this contract sued on, it was not known what would be the amount or character of the royalty paid, or whether there would in fact be anything in the way of royalty realized. But it can make no sort of difference whether the royalty reserved be oil or money, as royalty, when collected, must necessarily be personal property in any case. The Statute of Limitations •could have no bearing in the case, because the payments for this land were not due until the royalty was collected, and the first royalty was collected in November, 1907. It is also true that if the contract might, by any contingency, have been performed within one year, it is not within the Statute of Frauds. So a contract entirely executed on one side, as this one was, and nothing remains to be done except payment by the other part, it is not within such statute. McPherson v. Cox, 96 U. S. 404, 24 L. Ed. 746; Osgood v. Skinner, 111 Ill. App. 606; White v. Murtland, 71 Ill. 250; Fraser v. Grates, 118 Ill. 112; Curtis v. Sage, 35 Ill. 22.

Third. The consideration was ample to support the ■contract. The compromise of a doubtful claim, fairly obtained, is a sufficient consideration on which to found a contract, no matter what the ultimate result of a contest might have been. So is a debt barred by the Statute of Limitations, or any moral obligation which was once a legal one. Lawrence v. Coddington, 52 Ill. App. 133; Honeyman v. Jarvis, 79 Ill. 322; Keener v. Crull,. 19 Ill. 189; Morse v. Crate, 43 Ill. App. 513; Hobbs v. Greifenkagen, 91 Ill. App. 400. These authorities proceed upon the principle that the law permits a man to-pay an honest debt no matter how barred, or to right any wrong or grievance that another may have suffered by his conduct, without litigation; and that “when he constitutes himself a judge in his own cause- and decides against himself,” by making a new contract, “he cannot be heard to reverse his own judgment.”

There is one question in this record not made clear, and that is whether or not the total amount of $1,949.08 realized by appellant for royalty, all came by reason of the share of land in question. We could not hold, under the evidence of this record, that appellee is entitled to the royalty of any other part of the homestead tract held by appellant by other title than that that came to him by reason of the error in appellee’s deed to his brother, Myron. The agreement did not cover the tract or share conveyed by Jasper Hulse to appellant, or any other share held by him except appellee’s original share deeded by him by mistake. However, there is no complaint here, and there was none in the court below, that the verdict is excessive. Hence it must be presumed that this royalty all came to appellant by reason of the tract in question.

Perceiving no reason why the judgment below should be reversed, it is therefore affirmed.'

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Thomas E. Wibel, Appellee, v. Illinois Central Railroad Company, Appellant.
    L Negligence—how question determined. If there Is evidence tending to support a charge of negligence the question of whether there was negligence in fact is one to be determined by the jury.
    2. Negligence—when railroad company guilty of, in connection with construction and maintenance of street crossing. Held, under the evidence, that a brakeman of the defendant company was entitled to recover because of the negligence of such company with respect to the construction and maintenance of a crossing hy reason of which such brakeman while performing his duties caught his foot between a plank and a rail and was thrown across such rail and injured hy being run over.
    3. Railroads—status of crossing plank. Held, that the crossing plank in question in this case was a part of the public road.
    4. Railroads—duty to employes with respect to tracks. “The law requires a railroad company to exercise reasonable and ordinary care and diligence in furnishing safe tracks for its employes. If it is necessary for the safety of its employes in the larger towns and terminals, it is equally necessary in the smaller places where switching is necessary to he done.” “Railroad tracks within switch limits must he ballasted so as to render them reasonably safe for the use of employes in the performance of their duties, and an employer might be held liable for a failure to use such'reasonable care.”
    5. Railroads—what does not excuse failure to ballast tracks. 'The fact that a railroad company was not accustomed to ballast its tracks at places similar to the one in question, does not excuse it from ballasting if it was required so to do in order to make a reasonably safe track for the use of its employes.
    6. Ordinary care—what competent upon question of. “Where an injury complained of was caused by an instrumentality or method which, at the time of the accident, was in its normal condition, evidence going to show that such an instrumentality was or was not commonly used under similar circumstances hy persons in the same line of business as the defendant is always competent for the purpose of proving that he was or was not in the exercise of due care in adopting or retaining that instrumentality as a part of his plant.”
    7. Evidence—when proof of custom competent. Proof of a custom and usage is sometimes competent upon the question of notice.
    8. Practice—when special interrogatories properly refused. It is not error for the court to refuse to have the jury say upon which count or counts they found for the plaintiff, if any.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Kramer, Kramer & Campbell, for appellant; John O. Drennan, of counsel.
    Webb & Webb, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Illinois Central Railroad Company appeals from a judgment recovered by Thomas B. Wibel in the City Court of East St. Louis, in the sum of $10,000, for personal injuries received while employed by appellant as a brakeman on one of its freight trains. The court denied appellant’s motion for peremptory instructions and overruled appellant’s motion for a new trial, upon which rulings a number of errors are assigned here.

This is the second appeal in this cause, a judgment for $10,000 herein being’ reversed and the cause remanded for further trial by this court at its August term A. D. 1908, for errors in instructions. 147 Ill. App. 187. The cause has been again tried upon the •second, third, fifth and sixth counts of the second amended declaration filed May 18, 1909, the first and fourth counts thereof being withdrawn from the jury. The substance of the charge in the. last declaration is that appellant negligently suffered a certain public road crossing and its track at Reynoldsville, Illinois, io be and remain in an unsafe condition, to wit: that a plank west of the east rail in said crossing was too far from said rail, and that the ties north and adjoining said plank and crossing were uncovered and pro- ' jected above the surface of the ground, and that the •spaces between the ties at said crossing were unfilled; whereby appellee without knowledge thereof and while ■discharging his duty as brakeman in disconnecting the air hose at the ends of two moving cars, with all due care and caution, had his foot caught between said plank and rail, was thrown forward and thereby caused to step into one of said open spaces and fall across the rail; whereby the cars ran over and crushed his left leg and caused him to lose the same.

The fifth count contains the further allegations that it was the custom and usage of the defendant to ballast its said main line, and side tracks within switching limits, on its road at switching yards, up to and level with the surface of its ties, so as to enable its servants to do their switching without injury, and that at said time and place where there were switching tracks and yards, he was without notice of said hole and said uncovered ties, and was relying on a compliance there with said custom and usage.

Appellant’s first contention is that appellant was not. guilty of any negligence in the construction and maintenance of the crossing. Counsel say: ‘1 The construction of the crossing in question was an engineering problem. The presumption is that the structural program adopted and used in its construction was in accordance with the practical necessities of the case, and, in fact, the undisputed evidence shows this to be true,, regardless of that presumption.” We must, and do, recognize the doctrine that it is against public policy for courts to lay down rules as to the manner of the-construction of railroads or to submit to a jury for decision purely engineering questions of railroad construction. The crossing plank in question is no part of the railroad construction in the sense spoken of by counsel, and is not placed there as any essential part of the railroad as such, but as a part of the public road. The railroad so far as its use and operation is concerned could better do without the plank than with it. It is not even a convenience for any employe of the road while operating or assisting in its operation. The plank is entirely for the convenience of the public in traveling the public road; and, but for the fact that the public road is at that point, the plank would not be there at all no matter how extensive might be the switch yards. While this is true it must necessarily be left to the railroad world to say how near the plank may approach the rail, and the honest decision of the competent engineers must and does settle this question, and hence it is probably in every case necessarily left to the railroad companies to place these crossing planks. When they do this they are adding to their construction that which is a convenience and a necessity to the public in the use of the public road simply; and at the same time it is probably true that they are adding a new danger to the foot traveler as well as to the employes of the company. The space must not be too small because that would endanger more people by derailment of trains than if too wide for public travel. If there is any well-known distance or distances that will minimize or remove all danger, it seems reasonable that these should be adopted. We think it is a proper question for a jury to pass on after hearing all competent evidence thereon, as to whether or not a railroad company has been guilty of negligence in placing one of these crossing planks; and, of course, a question finally for the court as to whether or not the jury have settled it against the manifest weight of the evidence. All the witnesses testifying for appellee give the width of the north two feet of this opening (where appellee got his foot caught) at "two and one-half inches or more. Of these witnesses Charles Griffith said he measured it and that it was two and one-half inches and had been that way since the crossing was placed there. The witnesses for appellant testified that it was one and seven-eighth inches wide at south end and gradually got wider to north end where it was two and one-eighth inches wide. McBoberts and Vaughn so testified and they measured it, while another witness, Boe, supervisor of appellant, testified that it varied from one and seven-eighth inches wide at north end to two and one-eighth inches wide at south end, reversing the measurements of McBoberts and Vaughn. Vaughn, the section foreman, who placed the plank in the crossing testified that he intended to get it just two inches from the rail all the way. He says it is a cypress plank about fourteen feet long, ten inches wide and three inches thick. The other evidence shows that it is about three and one-half inches thick and about one and one-fourth inches lower than the ball of the rail, and that the spaces there between the ties are not filled with ballast, leaving the hole five or six inches deep.

F. J. Parrish, an expert civil engineer and witness for appellant, states that the flange of the wheels should have a certain amount of space for play, usually from one and three-quarter inches to two inches; and again says from two and one-fourth to two and one-half inches, and that the space should not be filled beyond the level of the ties, about four and one-half inches. The evidence further shows the tread of the flange to be about three-fourths of an inch, that is, that it extended .that far below the ball of the rail. Under this evidence we think the settling of the question of negligence in regard to the width and depth of this hole, particularly in view of the fact Vaughn admits it was not put down by him as instructed, or as he intended, was properly left to the jury. It has been so held in the following cases which are directly in point: E. J. & E. Ry. Co. v. Raymond, 148 Ill. 242, and 47 Ill. App. 242; B. & O. S. W. Ry. Co. v. Keck, 89 Ill App. 72.

■ The evidence clearly shows that appellee was injured on the public road crossing and on the main line of appellant’s road and within the switching limits of the road at said town of Beynoldsville. There are three switches at this point known as the passing track, the house track and a spur track. The passing track and the house track lie just east of the main track at the place of the accident and the switch-stands are north and south of this point. It is proved without contradiction that there is considerable switching done at this point particularly in the day time, and some at night by the through trains. It is also clearly proved that the main track just north of and adjoining this road crossing was not ballasted, or surfaced up level with the surface of the ties, and that there was a hole or an unfilled space at the very point where appellee was injured. A number of witnesses testified that this space or hole was from four to six inches lower than the bottom of the crossing plank or surface of the ties there. The photograph of this crossing introduced in evidence and relied on by both parties to corroborate their respective claims also clearly shows that the ballast between the crossing plank and the first tie north of it does not come higher up on the tie than about its middle and that almost the full thickness of the next tie north shows above the ballast. It is said by appellant’s counsel that it was not required to ballast its track between the rails at any place for the protection of switchmen. One reason assigned is that by reason of the “safety appliance acts” of the United States and of this state, automatic couplers, air-brakes, grab-irons, and draw-bars of uniform height, and other safety appliances, are required to be used on cars and engines, so that brakemen can do their work without going between the cars to couple and uncouple them, etc.; and that the law of this state requiring switching yards to be ballasted and surfaced when dangerous to switchmen in performing their work is no longer applicable.

In the statement of appellant’s counsel we find this description of the air line and hose: “At the point where the air-hose connects with the air line on each car is what is known as an angle cock. This angle cock consists of a lever of six or seven inches long attached to the air hose. This lever is practically over the rail on either side of the car. By means of turning the angle cock a valve on the inside of the hose stops the air at that point from going further to the rear of the. train. One of thése angle cocks is on each air hose, so that there will be two of them in the connection between the two cars. The angle cocks are between the drawbars and the side of the car. At the time in question the angle cock on the rear car of the two cars in question was on the east side of the car coupling apparatus on the rear car, and between the draw bars and the rail, being nearly over the east rail as is indicated by the testimony of the appellee as hereinafter set forth as to what he was doing just before he was injured while the angle cock on the front car of the two cars was on the west side of the coupler. * * * The hose from the rear car of the two cars in question then crossed over the space intervening between the two cars and under the drawbars and the two were joined together by means of a catch or lock immediately under the drawbar, and about eighteen inches from the ground.”

Now, appellee went between these two cars for the purpose of cutting the air line, and how these hose can be coupled or uncoupled without going between the cars and over the rail is not explained. If there is any evidence in this record showing that there is no necessity for going between the rails we have failed to find it. Besides our Supreme Court has announced it as a duty of railroads to ballast their switching yards when dangerous to switchmen long before and long since these safety appliance acts were passed. Appellee testified that cutting the air hose was a part of his duty as brakeman and it is undisputed; and Conductor Nelson of that train crew testifies for appellant that he told appellee at the time in question to do this work, telling him where to cut the train, etc. In I. C. R. R. Co. v. Cozby, 174 Ill. p. 116, our Supreme Court said: “The theory of plaintiff on the trial was that the spaces between the ties for eight or ten feet north of the ‘heels’ of the ‘switch points,’ where there were ‘no bridles ’ and when there was no excuse for leaving them open, were negligently left unfilled; that deceased, while in the discharge of his duty in "attempting to uncouple the train, came to his death by stepping into one of these unfilled spaces. * * * If this theory was the correct one (and there is evidence to support it), then the negligence of the railroad company was established.”

In I. C. R. R. Co. v. Sanders, 166 Ill. p. 278, it is said: “The evidence seems to show that, as a general rule, railroad companies at stations within switching limits, have their tracks filled up to the level of the ties, so that'brakemen may walk over the ties in coupling cars without stumbling or falling. If this precaution had been observed it is apparent appellee’s foot, in attempting to couple the cars in question, would not have been caught under the ties, and he would not have stepped into the cattle-guard and received the injury.”

In L. E. & W. R B. Co. v. Morrissey, 177 111. p. 382, after quoting from the Sanders case, the court says: ■“What was said in the Sanders ease is applicable here. The evidence in this case shows that many of the railroads—the Chicago and Alton, the Chicago and Northwestern, the Chicago, Burlington and Quincy, and several other roads—on the main track, in the switch yards and at terminals, grade up their tracks even with the top of the ties to make them safe for brakemen coupling and uncoupling cars. The law requires a railroad company .to exercise reasonable and ordinary Care and diligence in furnishing safe tracks for its employees. If it is necessary for the safety of its employees in the larger towns and terminals, it is equally necessary in the smaller places where switching is necessary to be done. ’ ’

It is said again by said court in I. C. R. R. Co. v. Eicher, 202 Ill. p. 562: “The place was used by employees of the defendant and was within its switch yards. It was its duty to use reasonable care to provide a safe and suitable .place for its employees to work. Bailroad tracks within switch limits must be ballasted so as to render them reasonably safe for the use of employees in the performance of their duties, and an employer might be held liable for a failure to use such reasonable care. ’ ’ The same doctrine is also recognized in L. E. & W. R. R. Co. v. Wilson, 189 Ill. 89.

The foregoing citations answer about all the questions raised by appellant, challenging the statement that there was any duty on the part of appellant to ballast its track at the place in question. The size of the town, the amount of the business done, the amount the railroad company realizes on the business done, or the fact that it has no switch engine and crew stationed there can have nothing to do with eliminating such a •duty if it be shown necessary to make the switch yards reasonably safe, as was done in this case.

The safety appliance acts were not intended as steps ¡backward in making safe switch yards, but as an additional step forward to minimize the great number of employes that were being killed or crippled in switching, the most dangerous occupation in railroad service. There are many more reasons why there should be no limitation of this salutary rule, than that said employes, may be more safe while coupling and uncoupling cars. They must necessarily cross back and forth over the track, and otherwise on the track, in front of cars and engines and behind them in the performance of their various duties as brakemen, when not in the act of coupling or uncoupling cars and when a fall or a momentary stumble may be fatal.

We recognize that it is necessary for every railroad company to have proper drainage to get the most good' out of ballast, as claimed by appellant. This would be a valid excuse''for not ballasting the road, if it was proved that it could not be both drained and ballasted at the place in question. We are unable to conceive of any place in a right of way, or in the one in question, that cannot be thoroughly and completely drained by covered drains and the surface still be maintained in reasonably safe condition for brakemen; and we find nothing in the evidence in this case that will excuse the-defendant from ballasting on the theory or claim that it cannot be both drained and ballasted. The fact that the company was not accustomed to ballast its tracks at places similar to the one in question, if it was a fact, would not excuse it from ballasting if it was required in order to make a reasonably safe track. This point however was strongly controverted by appellee, and the jury would be warranted in their finding against the defendant that such a custom prevailed. If it did prevail then it would only be available as proof tending to show notice to appellee of the conditions there.

We have consideréd thoroughly what the appellant, has to say on the question of contributory negligence, assumed risk, proximate cause and the weight of the-evidence. We think that under the evidence these are-all questions for final settlement by the jury, and that we would not be warranted in saying that the verdict is manifestly against the weight of the evidence or that it is excessive. Two verdicts have been rendered for the same amount. The appellee’s testimony is in substance, that he received his injury on a dark, foggy morning about four o’clock, at the north end of this crossing plank while the conductor was standing on the passing track at the south end of the crossing, which would be about fourteen feet away; that there was a hot box in this train about the sixth car from the engine and they stopped there to cut it out on the side track; that only in cases of such an emergency did they ever stop at Beynoldsville at all and that he never did do any switching there before and was not acquainted with these switch yards and knew nothing of these holes or of the unballasted condition of this switch yard; that when the train stopped it ran too far south for the car to pass back clear of the cut-off, and that both he and the conductor gave a back-up signal; that about that time they discovered that the next car behind the hot box also had a hot box and that it would not be necessary to back up and that they both again signalled to the engineer to stop; that then' at the direction of the conductor while they were standing at the south end of the crossing near the passing track, he stepped back between the north car with the hot box: and the car north of it while the train was going about, two miles an hour; that he was a-straddle of the rail holding the grab-iron of the car in front of and north of him with his right hand and with his left hand on the-angle cock; that he stepped then with his left foot, the-toe part, between the plank and the rail and that his-foot went down three or four inches; that his foot caught a short while and he jerked it while the cars were moving slowly northward; that they bumped him in the back and he started to fall, straightened up pretty quick, jerked his foot out, and stepped with it off the north end of that crossing plank into a hole, and that that threw him down right inside the rail right north of the crossing, and while trying to get himself and leg over the rail the wheels ran up his left leg and crushed it and caused it to be amputated about five or six inches below the hip; that his foot caught in the plank about eighteen inches south of the north end of the plank; that when he fell his leg was on the west side of the rail and that he had his lantern on his right arm and that then they stopped the train.

The only eye witness, Conductor Nelson, corroborates him in every particular, except that he says appellee never got his foot out from between the plank and rail at all, though he states he fell off the north end of that plank in the hole north of it. Appellee’s foot was clear of the hole when the train stopped. Several witnesses for appellant, including the employes on that train, testify to various statements that he made that night and afterwards before he brought this suit, all only tending to contradict him as to his statements that he jerked his foot out before the wheels ran over him. The statements of these various witnesses are as follows, varying with different witnesses: “Wibel told me he got his foot caught between the plank and the rail, had his foot caught in there. As I understood, he said the heel of his shoe.” “He told me while he was lying down there before we put him in the caboose, that he got his foot in the crossing plank and could not get it out.” “He told me he got his heel ‘ketched’ between the plank and rail and could not get it out.” “He said he got his foot caught and was suffering.” “He told me he got it out, and before he could get away it caught him.” “He said he got his foot caught, that is all he said.” “He said that his foot got caught between the crossing plank and the rail; that he jerked and yanked and got it out; that he yanked it loose, but before he could get it out of the way, the car caught and knocked him down and' ran over his leg.”

These statements were all made apparently at different times but shortly after the accident before he saw any attorney. It will be seen that none of them were intended or given as full explanation of what took place. Some of them do not contradict his statement on the trial at all, and those that did, he denied making them in those words. They were evidently given while suffering intensely when talking could not be indulged in to the extent of giving any full or detailed account. Two strong circumstances tend to corroborate him in the statement that he did get his foot out before it was crushed, the fact that it was out and several feet away from where it was caught after the cars stopped, and that he was lying north of the plank in the unballasted part of the road or side of it. His suffering was extreme and long, and he was twenty-eight years old and earning good wages. We do not think the fact that the plaintiff only filed his first count of his declaration when he began suit of any controlling influence in proving that appellee changed the facts and the theory of his case, as the other counts were filed before the first trial.

Appellant contends that it was error to permit witnesses to testify that it was the practice and custom of appellant to ballast its tracks at similar places when switching was required to be done. We have already quoted from our Supreme Court in cases where such evidence as to the custom of other roads was sanctioned by them to prove negligence. 1 Labatt on Master and Servant, sections 53 and 53-d, is authority at least for such evidence being competent to prove the servant’s knowledge of the risk. The same doctrine is held in Penn. Co. v. Hankey, 93 Ill. 584 The court in this last case also says on page 584: “Again he had surely no reason to assume or suppose this side track was ballasted, unless by the custom of railroad com-parties such tracks were very generally, if not universally, ballasted.” If such evidence is admissible by the defendant to show knowledge of the servant, there is. no sound reason, we think, why the servant should not be permitted to show a custom of ballasting to disprove or negative the idea that he had notice of an unballasted switch. Upon principle we think the same rule should apply with reference to the custom and usage of other railroads, that is that it is admissible to prove or disprove notice to the servant of the condition of the switch yard complained of.

In this case appellee introduced evidence also of the custom and usage of other railroad companies with reference to ballasting similar switch yards, over the objections of appellant. As already seen we have quoted our Supreme Court as approving this very character of evidence for the purpose of proving negligence. Our Supreme Court does not seem to have passed on this very question as a contested point in the cases-named, and the decisions of that court are not in entire harmony on this question. However, it has repeatedly held that it is competent for the defendant- to show that it is in line with common usage as tending to disprove negligence, though such evidence is not conclusive. It has also held that it is competent for a servant to prove he did his work in the usual and customary way as tending to disprove contributory negligence. There is. considerable logic in the claim that the plaintiff ought to be allowed to prove that it was the practice and custom of other railroads generally to ballast switch yards, at similar places as.tending to show negligence, in connection with the other evidence offered showing that it was dangerous and unsafe. Such evidence should not be held as conclusive, however, in any case. Labatt on Master and Servant lays down the rule in Vol. 1, sec. 43, thus: “It may be laid down as an undisputed proposition that, where the injury complained' of was caused by an instrumentality or method which* at the time of the accident, was in its normal condition, evidence going to show that such an instrumentality was or was not commonly used under similar circumstances by persons in the same line of business as the defendant is always competent for the purpose of proving that he was or was not in the exercise of due care in adopting or retaining that instrumentality as a part of his plant.”

At any rate the evidence was competent in this case on the question of notice to appellee, and no instruction was given the jury informing them that the plaintiff could recover on failure to.comply with such custom and usage. On the contrary the jury was instructed that the law does not require railroad companies to ballast their roads in switchyards or elsewhere with cinders or other substances to and on the level with the top of the ties or in any other manner, unless the same is necessary to make their tracks reasonably safe for the purposes and uses for which such tracks are used and intended to be used.

The only instruction given by the appellee, being one on the measure of damages, is complained of as erroneous. The only objection to the same that is tenable, so far as we can see, is that it does not not limit the damages to those claimed or charged in the declaration. The declaration however claims or charges all the damages that are proved, and the only damages proved were such as he received on that crossing and none other. The jury could not have been misled thereby. What we have already said answers the objections to the refusing of appellant’s peremptory instruction.

The court did not err in refusing to have the jury to say upon which count or counts they found for the appellee, if any. Junction M. Co. v. Ench, 111 Ill. App. 353; Stevenson v. Avery C. & M. Co., 143 Ill. App. 397.

Finding no reversible error in this record, the judgment of the lower court is affirmed.

Affirmed.


text:
    Carl Althardt, Appellee, v. Consolidated Coal Company of St. Louis, Appellant.
    1. Master and servant—what essential to recover for failure to furnish safe place to worle. In order for a servant to recover against his master for failure to provide him with a reasonably safe place in which to work, or a reasonably safe appliance or instrumentality with which to work and which the master had not promised to remedy, it must be shown- that the danger complained of existed, that the master had notice thereof or might have had by the exercise of ordinary care, and that the servant did not know of the danger and had not equal means of knowledge with the master.
    2. Master and servant—what promise to repair essential to preclude operation of doctrine of assumed risJc. In order for a servant to relieve himself of the assumption of risk by reason of such a promise it must appear not only that the master made such a promise, but that the promise was made and accepted with the view of removing a possible danger of injury to the servant by reason of the supposed defect; if it is for the purpose only of .making the work less difficult to the servant, or more profitable to him, or of enabling him to do more work or better work, it will not have the effect of relieving the servant of an assumed risk.
    3. Master and servant—effect of promise to repair. The purpose and legal effect of a promise by an employer to repair defective machinery, or to remedy or remove a dangerous condition or appliance, is to relieve the employe of the assumption of a risk that the law would otherwise cast upon- him.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    Wise & Keefe, for appellant; George O. Mastín, of ■counsel.
    B. Gut Kneedler, D. H. Mudge and C. H. Burton, ■for appellee.
   Mr. Justice Duncan

delivered the opinion of the -court.

Consolidated Coal Company of St. Louis appeals from a judgment obtained against it by Carl Althardt :in the sum of $1,200 in the Circuit Court of Madison county for personal injuries alleged to have been caused by the negligence of the appellant.

The cause went to the jury on the second count of the' declaration which is in case, the other counts having been withdrawn. Said count charges in substance that the defendant was operating a coal mine called No. 17 at Collinsville, Illinois, and that plaintiff was therein employed as a driver; that it was the duty of the defendant to furnish him a reasonably safe mule to drive-in said mine; that the defendant did not regard that duty, but furnished him with a mule called “Paddy,” which was dangerous and unfit for use and would kick and bite and injure men in the mine, especially its driver; that he notified the defendant that the mule was dangerous and would kick, and requested the defendant to give him other employment in said mine and to relieve him from driving said mule, and that on December 30, 1907, the defendant promised him another job and ordered him to continue driving said mule during said day; that relying upon said promise and acting on said orders, he continued to drive said mule said day; that while driving said mule in said mine on said day and exercising ordinary care for his own safety, the plaintiff was kicked by said mule on the right jaw, crushing the bone and permanently injuring the plaintiff so that he suffered great pain and lost his teeth in the lower jaw bone and portions of his jaw bone, to his damage of $5,000.

General issue was pleaded and at close of the evidence appellant’s motion for peremptory instructions were denied by the court, and also its motion for a new trial.

Of the many errors assigned it will only be necessary to consider two, the denying of appellant’s peremptory instructions and the overruling of the defendant’s motion for a new trial, in the view we have taken of the case. It is well proven in this ease that the mule in question was dangerous and unsafe for the purpose for which he was used by reason of his disposition to kick. The appellee and appellant both knew this, and according to the evidence of the' appellee he notified the appellant that this mule was dangerous by reason of his disposition to kick as averred in the second count of the declaration. Under ordinary circumstances, there could not be any recovery by the appellee, as it would be a case of the assumption of the risk by appellee by continuing to drive the mule after such knowledge. In order for a servant to recover against his employer for failure to provide the servant with a reasonably safe place in which to work, or a reasonably safe appliance or instrumentality with which to work and which the master had not promised to remedy, it must be shown that the danger complained of existed, •that the master had notice thereof or might have had by the exercise of ordinary care, and that the employe did not know of the danger and had not equal means of knowledge with the master. L. E. and W. R. R. Co. v. Wilson, 189 Ill. 89; Swift Co. v. Gaylord, 229 Ill. p. 338. This was practically conceded by appellee in dismissing the first count of the declaration after the evidence was introduced by the plaintiff, which count was simply based on the failure of the defendant to furnish a reasonably safe mule to plaintiff to drive in said mine. But the right of recovery by appellee under the second count is based upon the alleged promise of the appellant that it would remedy or remove the danger to appellee from driving this dangerous mule by giving him another job at the face of the coal, if he would drive the mule one more day. And upon the further allegation that by said promise appellee relying thereon was induced to continue to drive said mule for another day and was kicked and injured on that day while driving that mule as ordered by appellant.

The appellant based its right to a peremptory instruction upon the ground that the undisputed evidence in this record shows that the appellee knew that the mule was dangerous, and that appellant did not promise the appellee that if he would drive the mule one more day it would give him another job in the mine, and that appellee was not relying upon such a promise when he was injured; and that if any promise was made to appellee it was not made or accepted to obviate any supposed danger, but for the purpose solely of giving and accepting a more paying job.

The purpose and legal effect of a promise by an employer to repair defective machinery, or to remedy or remove a dangerous condition or appliance, is to relieve the employe of the assumption of a risk that the law would otherwise cast upon the employe.

In order, however, for the servant to relieve himself of the assumption of the risk by reason of such a promise it must appear not only that the master made such a promise, but that the promise was made and accepted with the view of removing a possible danger of injury to the employe by reason of the supposed defect. If it is for the purpose only of making the work less difficult to the employe, or more profitable to him, or of enabling him to do more work or better work, it will not have the effect of relieving the employe of an assumed risk. Tesmer v. Boehm, 58 Ill. App. 609; Chic. B. & I. Co. v. Hayes, 91 Ill. App. 271; 1 Labatt’s Master and Servant, secs. 418, 419, 421; Bodwell v. Nashua Mfg. Co., 70 N. H. 390.

The complaint of the employe to the employer in such ease must be to the effect that the defect renders the work more dangerous, and accompanied with the statement, express or implied, that he cannot continue the work longer unless the danger is removed. Then if a promise is made to the employe that the danger will be removed in a reasonable time if he will go on with the defective appliance, it must be taken as understood between them that the continued use in the then condition of the appliance will be at the risk of the master and not of the employe or servant, as it is for the master’s convenience and at his request. Assuming that the promise of the master to remove the employe to a safer job will have the same effect in law as a promise to repair the defect or remove it and substitute another, the appellee’s evidence is not sufficient for a recovery by him in this case on that ground. This doctrine seems to have been held both ways by our Appellate Courts, and not passed on by our Supreme Court. U. S. S. Refinery v. Welcher, 123 Ill. App. 379; I. C. R. R. Co. v. Weiland, 67 Ill. App. 332 and 179 Ill. 609. However, it is not necessary here tu pass upon that question as the evidence in this record fails to-prove the promise alleged, by the greater weight of the evidence, and absolutely fails to prove that the plaintiff exacted such promise for the purpose of avoiding danger, but does prove clearly that if exacted at all it, was for the purpose simply of obtaining a more lucrative employment.

The substance of plaintiff’s claim is that this promise was made by appellant on Monday, December 30, 1907. He, himself, testifies in substance as follows t “I told Mr. Grieve about this mule on Saturday, December 28, 1907 (that he was a dangerous mule). He said I wasn’t pulling coal enough for him. I said if I am not, get another driver, because I was scared of the mule anyhow, and he said finish the day out. I finished the day out and Grieve (mine manager) told me to-come back Monday, and he would give me a chance Monday. I came back, saw Grieve, Monday, December 30, 1907 (the day appellee was injured). I asked him if I could go with my brother and he said I should go down and he would see. My brother was running-a machine in this mine. I went below and asked him if he was going to let me go in (with his brother) and he said, Ho. I told him (mine manager) I was going away and he told me to get a committee, Jack Larimore and Herb Strain. The committee is called to settle-disputes between the operators and the miners; I saw the committee; they had a talk with Grieve; I was standing alongside but didn’t hear what they said; Grieve told me to drive that mule today and he would' give me a chance, and the committee told me the same thing. I stayed because I thought I was going to get a chance.” On cross-examination he said he kept on driving the mule under the promise of Mr. Grieve to give him .a place before he went down there, that he gave him this promise of a better job before he got Paddy, the kicking mule, and that this promise was made before he, appellee, ever saw “Paddy,” when he was driving other mules; that a better job meant more money and that his desire was to get a better job; that he didn’t tell Grieve to get another mule; that he wanted to quit being a driver and wanted to be a miner; that it took him two years working at the face before he could get a certificate of competency and that was the reason he spoke to Grieve about this job, and “Grieve said it would be all right and he would see what he could do for me Monday.”

He then says that the committee and Mr. Grieve met and had a talk; that Mr. Grieve- said he could drive or quit, and the committee told him he had better drive the day out and he would stand a better chance to get another job, and that that was all he said to Grieve about it. He then says he told Mr. Grieve three or four times he was afraid of the mule, and that he told him that Monday that he was afraid the mule would kick him. It thus appears from his examination that his promise of a job was before the day of his injury, and that on the day of his injury Grieve told him to drive the mule or quit, and that it was the .committee that told him that he had better drive that day as he would stand a better chance for the other job. It also appears that he was wanting or insisting on quitting, driving, not because it was dangerous, but because the other job was worth more money to bim. The committee, Larimore and Mr. Strain, were both witnesses for the plaintiff, and they testified that they as committee took up the matter between plaintiff and Grieve; that plaintiff said he wanted to go to the face and that Grieve said he wanted the plaintiff to finish driving, and then he would try to get him a place and that nothing was said by them to the committee about ■ the mule, Paddy; that they, the committee, decided that he should go on driving, and told plaintiff to go ahead and drive the mule and do as the mine manager wanted him to do, and he could get the job easier, and that they would- use their influence to get him a job; that they also saw the mine manager and he said he would do the best he could for plaintiff, but did not say when he could or would give him another job.

Grieve testified that no promise to plaintiff was made at all on the day he was injured, and denies that he ever made any such promise. Plaintiff having located this promise at a time before he ever drove Paddy it is clear that the evidence does not sustain the main proposition of plaintiff’s declaration that the de- • fendant promised to remove the danger complained of by giving him another job.

If this was all there was averred in that count, a verdict should have been directed for the defendant. As there is the further allegation in the declaration in said count that the plaintiff was ordered to drive the mule after the defendant was notified that the mule was dangerous, and that appellee was afraid to drive it, and as there is some evidence tending to support this proof, the cause ought to be remanded for further proceedings. The case was not tried apparently upon this allegation, and the jury were not instructed upon this theory of the case, and it is not urged or defended here on that theory. We are therefore not disposed to further comment upon this branch of the case.

For the reasons above stated the judgment of the lower court will be reversed and the cause remanded for further proceedings.

Reversed, and remanded.


author: Mr. Justice Duhcah

text:
    The People of the State of Illinois, ex rel. Appellee, v. Roswell Bibb, Appellant.
    1. Bastardy—when verdict not disturbed. A.verdict in bastardy will not be disturbed merely because it may appear that the duration of pregnancy was less than the usual period. A verdict in such a case will not he set aside unless clearly and manifestly against the weight of the evidence.
    2. Bastardy—when instruction as to interest of defendant appropriate. In a prosecution for bastardy in the name of the People it is not error for the court to direct the jury’s attention to the interest of the defendant without making any reference to the interest of the plaintiff.
    Bastardy. Appeal from the County Court of Madison county; the Hon. J. E. Hellskotter, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    John J. Breuholt, for appellant.
    J. F. G-illham, for appellee; F. E. Sebastih, of counsel.
   Mr. Justice Duhcah

delivered the opinion of the court.

Birdie May Bussell began this prosecution for bastardy in the name of the People against Boswell Bibb, the appellant, in the County Court of Madison county. AJter a trial by jury the defendant was found guilty of being the father of her illegitimate child as charged in her complaint. Motion for new trial by the defendant was overruled by the court, and judgment entered on the verdict. The defendant has appealed to this court, and for a reversal of this judgment he insists that the charge of bastardy is not sustained by the greater weight of the evidence, and that the court gave an improper instruction to the jury.

There is no contest over the facts that the complaining'witness, Birdie May Bussell, is an unmarried female, and that on October 19, 1907, she was delivered of a female bastard child. The contest was solely over the one question as to whether or not the defendant was the father of this illegitimate child. As is to be expected, the complaining witness and the defendant were the only witnesses on the question of their unlawful intercourse. The complaining witness swears that he had intercourse with her four different times, to-wit: On a Saturday night in September, late on the night of October 19th, and on a night in December, all in 1906, and that the last time was some night about the middle of January, 1907. The first two times she says were about two blocks away from her home in North Alton, the first time being on their way home from church, and the second time on their way home from a show. The last two times she says occurred in her mother’s back yard just after they came home ■ from the African M. E. Church, and that the last time was just after her brother had left them to take his girl home. The defendant denied that he ever had sexual intercourse with this girl at any time. He also denied that he was ever in her company alone, or that he ever went with her anywhere, and particularly denies that he ever went with her from church or from any show from September, 1906, to January, 1907. He also states positively that he never was at her house, and then again that he never was at her house that he knew of. She is corroborated and he is contradicted in these matters by four witnesses, to wit, first by Ashley Bussell, her brother, who swears that the defendant came home with her from church in December, 1906, and in January, 1907, but does not remember the dates; that he never knew anyone going with her except the defendant; that on the Sunday night in January, 1907, that appellant came home with her, he, witness, left him and his sister at his mother’s gate, he going on to take his girl home; that the defendant once came to their house and left a suit of clothes on his way to Bocky Ford; and that no other man or boy ever called on his sister at their house from September, 1906, to January, 1907. Her mother swears that the girl was born March 19, 1892, and that she never allowed her to go with anyone bnt herself and her son, and never knew that she went with Bibb; and that he was in her house once on his way to Rocky Ford.

William Cannon swears that he saw Bibb with this girl, going home with her from a church entertainment in December or January, does not remember which, and that he was walking with her. Jose Bavenue swears that in the latter part of the Fall of 1906, he saw the defendant and the girl together standing in her yard. To break the force of the People’s evidence, the defendant relied on himself and four other witnesses, to wit: First, the justice of the peace, J. P. Thornton, who testified that on the day the girl swore out the •complaint, November 23, 1907, she told him that the last time Bibb had intercourse with her was the first Sunday in January, 1907; that he reminded her that that was the 6th day of January, and the fact that the child was born October 19, 1907, seemed “little out of gear to him;” but that she was emphatic and insisted it was on that date. She denied making this statement •on the trial.

David Searles says that he and defendant belong to the K. P. Band, and that on the first Sunday in January, 1907, defendant and he were at K. P. Hall at a “smoker,” two miles from Bibb’s house, from 3 or 4 o’clock in the afternoon of that day to about 9 o’clock P. M. Says he knew it was on the 6th day of January, because he kept down every day he worked. He does not remember, though, where he was on the 13th and 20th of J anuary. He then says the reason he knew it was on the 6th day of J anuary was that the smoker was to have been on New Tear’s and was postponed to the next Sunday. George Means says he was also a member of this K. P. Band, and remembers the “smoker,” and that “as near” as he could remember it was on the 6th of January; that the whole band was there as “near.as” he could remember, and that they were there from 3 o ’clock P. M. to near 9 P. M.; that he' knows Bibb was there, because he saw him; but that he did not keep track of him any more than the rest of them; that they were all there as “near as” he can remember, and that Bibb was there “as near as” he could remember; but that he can’t remember where he talked to Bibb nor why he talked to him.

Allen Bibb, the defendant’s father, also testified that the defendant came home twenty minutes after 9 o ’clock that Sunday evening and talked to him and his. sister and then went to bed; that he also heard the complaining witness' say that January 6th was the last time she had intercourse with his son. The defendant also testifies to this alibi, too. If it shall be conceded that the girl did state that the last intercourse was on January 6th, and that she remembered it that way when the warrant was sworn out, there was nothing “out of gear” in that statement, from the fact that the child was born 286 days later, October 19, 1907. The duration of pregnancy is stated by scientific authorities, which have often been in evidence in our courts, to be from 260 to 308 days. Pike v. People, 34 Ill. App. 112. Two hundred and eighty-six days after conception will not be very far from the average time a full matured child is born. Let it be conceded also that she did make the statement that the last time she had intercourse with him was January 6th, and that she afterwards at the trial denied stating that it was on the 6th, it must be remembered that exact dates are hard to remember, and that it is hardly to be expected that a young girl in her embarrassing position would remember all that she said at a former trial. The important and material question is, did he have sexual intercourse with her. It is well proved that he had the-opportunity, though he denies it; and that he was the only company she ever had up to that time, she being only a little over fourteen years of age. No court, it seems to us, could say that the verdict was clearly and manifestly against the weight of the evidence. At any rate, we think the jury were fully warranted in finding the defendant guilty, and that we have no right under the law to interfere with the judgment of the lower court under the evidence in this record.

The second ground assigned for a reversal of the judgment, that the second instruction of appellee is erroneous because it directs the jury’s attention “to the interest of the defendant without making any reference to the interest of the plaintiff,” is untenable. As said by our Supreme Court in C. & E. I. R. R. Co. v. Burridge, 211 Ill. 13, had the suit been between two natural persons “and had both plaintiff and defendant testified, this objection would be good. In such case an instruction of this character should be so drawn as that it would apply to either party to the suit without pointing out either.” In this ease the complaining witness is not a party to the suit, and the rule does not apply. While this prosecuting witness is interested in the suit, as all others are, more or less, in any suit, yet she is not a party, plaintiff, as the suit is in the name of the People. In cases of prosecutions, in the name of the People, such an instruction is proper. Henry v. People, 198 Ill. 194; Dunn v. People, 109 Ill. 642.

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

!Affirmed.


text:
    William Elam, Appellee, v. Majestic Coal & Coke Company, Appellant.
    1. Mines and miners—what evidence properly excluded in action charging wilful violation. Held, that it was not error to exclude a statement of the plaintiff as follows: “It was on account of my own negligence.”
    2. Evidence—what competent upon question of interest. For the purpose of testing the question as to whether or not a witness is interested in the controversy, it is proper to ask him upon cross-examination as to whether or not it was not a fact that he was requested to see if he could 'not effect a compromise of the litigation.
    3. Pleading—what averment essential to recover medical expenses incurred in connection with seeking to effect cure. Expenses in■curred in seeking to effect a cure of personal injuries sustained cannot be made a part of the recovery unless claimed by proper averment in the declaration.
    4. Amendments and jeofails—what does not constitute amendment. The mere fact that the court grants leave to make an amendment does not constitute the amendment; the leave must be availed of and the appropriate paper filed.
    5. Instructions—what phrase used in pertaining to damages improper. If only compensatory damages may be recovered in an action the phrase “entitled to” is improper.
    6. Instructions—when upon question of damages improper. It is never proper for the court to tell the jury in a case where exemplary damages cannot be awarded that they should give such damages to the plaintiff as they believe from the evidence he is entitled to.
    7. Damages—what does not sustain averment of expenditures. An averment in- a declaration that plaintiff expended divers sums of money for medical attention is not supported by proof that he incurred or became liable for such expense.
    8. Trial—when remarles of counsel will not reverse. Notwithstanding remarks of counsel made in argument to the jury are improper they will not result in a reversal where an objection was made and promptly and positively sustained by the court. Remarks of counsel, though improper, to constitute ground for reversal, must have resulted in apparent prejudice to the opposite party.
    9. Appeals and errors—of what complaint cannot he made, A party cannot complain of error in his own favor.
    Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed upon remittitur.
    Opinion filed April 9, 1910.
    Dan McGlynn, for appellant.
    W. P. Lighteoot and W. O. Edwards, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

William Elam, appellee, filed a declaration in case against the Majestic Coal and Coke Company to the May term, 1908, of the Perry County Circuit Court, claiming damages for personal injuries to him alleged to have been caused by the wilful violation of section 16 of the Mines and Miners Act. The amended decíaration contains two counts, the first of which charges, that on May 13, 1908, plaintiff was employed in appellant’s coal mine near DuQuoin, Illinois, as a miner in room No. 19 of entry I, on west side of said mine; that on said day and prior thereto, while plaintiff was mining coal in said room for defendant," it became necessary that the roof of said room be propped; that on said day and prior thereto, plaintiff made a demand to defendant through Frank Scott, a driver of said defendant, and through "William Stockton, defendant’s pit-foreman, to provide plaintiff a sufficient supply of props by delivering said props at said room on the miners’ cars to enable the plaintiff properly to prop and secure the roof of said room; that the defendant, not regarding its duty in that behalf, wilfully failed to deliver said props after being so demanded; that by reason of defendant’s said wilful failure, the plaintiff was on said day, while mining coal in said room, severely injured by coal and slate falling from said roof on to him, thereby crushing and breaking the bones in his arms and leg and otherwise bruising and maiming him in his back and limbs, etc. The second count charges substantially the same grounds for recovery in somewhat different language, naming the ad damnum at $10,000. The general issue was pleaded to the whole of the declaration. At the close of all the evidence the court denied, appellant’s motion for peremptory instruction and after overruling appellant’s motion for a new trial, entered judgment against the defendant in favor of plaintiff for $1,000, from which judgment Majestic Coal and Coke Company appeals.

Appellant challenges the sufficiency of the evidence to sustain the judgment below for two reasons (1) that the preponderance of the evidence does not show that any demand was made of appellant by appellee for props; and (2) that if such a demand was made the evidence shows that appellee had all the props that were needed for propping his room. There is no contention that the other allegations of the declaration are not sustained by the evidence. The testimony of the appellee is in substance that he and his “buddy” or co-worker, were mining the top coal in said room 19 which had been driven about two hundred and fifty feet from the entry, all the coal being taken therefrom except the'top seam of the thickness of about three feet; that this top seam was propped up by six foot props, as the lower seam of coal had been mined out; that to mine the top seam they began at the face of this room and were mining towards the entry, by driving holes in the coal in which shots were placed by appellee and his “buddy”, which were fired by the shot-firer at the close of the day; that before they left of an evening appellee and his buddy would knock out the six foot props under the top coal that was likely to be blown down by shots and pile them forward by the track to preserve it from falling coal; that as the top coal was shot down they needed ten foot props to prop the slate roof over the top coal to keep it from falling on them; that on the morning of May 12, 1908, they had no ten foot props and were in need of them, and on that day he and his buddy made a demand on the driver, Frank Scott, for ten foot props, and that the driver said all right; but when the driver came back he told them that he asked the pit-boss, Stockton, for the props, and that Stockton said there “wasn’t any down, and that he couldn’t stop hoisting coal to.get them down.” Appellee is entirely corroborated in this evidence by his buddy, Gr. A. Weaver, and also by the driver. The appellee also testified that about noon of the next day, May 13th, he went in person to the bottom and demanded props of Stockton, pit boss. He is corroborated in this statement by his buddy, as to the fact that he went to the bottom about that time. Stockton admitted that appellee talked with him at the bottom that day, but denies absolutely that appellee made any such demand, or that the driver on the day before made any demand whatever for props. Appellant seeks to further off-set this evidence of plaintiff by showing he had no need of ten foot props, and that if he did need them he had plenty of them close at hand. Four or five witnesses of appellant state that it was not slate that fell on appellee, but that it was top coal only and which could only have been propped with six foot props. They say they examined the placewÉere he was hurt, and that there was no slate on the floor there, and that only top coal fell on him. They made this examination sometime after the injury, generally the next day, and only knew the place by hearsay. Most all of them admit, too, that there was slate-next to this coal and towards the face of this room. Appellee and his buddy both swore positively that it was slate with some coal that fell on him, and that it was the slate they wanted to prop with the ten foot props. They are also corroborated by one of defendant’s witnesses, Dexter Porter, who was driver for appellant the day appellee was injured, who says he was in appellee’s room that day when he and appellee were talking about some slate; that appellee then picked up a pick and was sounding some slate; “I said that is kinda loose; he was sounding some slate there over his head; I told him it was dangerous, that he had better work on the edge of the coal; he said that is dangerous; I said, yes, that is checked. I took his car and went on. I don’t remember as I told him there he had better prop it or not. I believe I said you ought to have some props under it if you can’t get that coal that is down. He made no reply.” This is-strong evidence, conclusive if true, that there was a. dangerous • condition in the slate on the day he was injured. Appellant’s witnesses testify to the room there being smooth and nice with no dangerous conditions there next day after the injury. The dangerous slate spoken of then by appellant’s witness, Porter, must have already fallen on appellee before the roof got into this good condition spoken of by appellant’s witnesses. It is insisted by appellant that the fact that appellee made no demand on Dexter, the driver, the day of appellee’s injury, who is the customary .servant of whom props are demanded there, that this is good evidence he made no demand for props of any one at all; but it will be noted that if the testimony of .appellee and his “buddy” and of Scott, the driver of the day before, is true, that Stockton had informed them there were no ten foot props in the mine and that he would not stop hoisting to get them down. This fact furnishes a strong reason for appellee going then to ■Stockton in person for these props, taken in connection with his knowledge that he was in danger of slate falling on him and had been so warned. As to the ■claim that appellee already had plenty of ten foot props, the evidence shows that if they were in the mine at all, they were in the cross cuts between rooms 18 and 19, and 19 and 20, and between the dangerous slate in question and the face of the room. Besides if they were there the driver, the appellee and his buddy had no knowledge of their being there and were not informed of it when demand was made for props, if it was made. The statute provides that the mine owner “shall always provide a sufficient supply of props * * * delivered on the miner’s car at the usual place when demanded, as nearly as possible, in suitable lengths and dimensions for the securing of the roof of the miners.” The miners are not required to hunt in cross cuts or other portions of the mine where they are not at work, for props, nor to take notice of the fact that there are props in such places for use. The Statute requires the operator to deliver them at the usual place on demand, and those props were not at such usual place, or even in their rooms, if we understand the evidence. Considering the case as a whole we are of the opinion that it is for the jury to decide these questions of fact, and we cannot say that the jury were not warranted in finding that the evidence preponderated in favor of appellee.

Dr. Grillis ’ evidence discloses the fact that the coal company sent him to treat appellee when he was injured; that he did a great deal of work for the appellant, and he admitted that he advised the appellee to. settle his claim with appellant. He also testified as witness for appellant that he had no interest in this, law suit. For the purpose then of simply testing the-question of whether or not he was an interested witness, or rather as tending to show that he was somewhat interested in the suit, it was proper for appellee’scounsel on cross examination to ask him if it was a fact that appellant requested him to see if he couldn’t, get him to compromise or settle this suit. The examination extended no further and it was not error to permit it. Neither was it error to exclude the mere statement of appellee that “it (the injury) was on account' "of my own negligence.” Unless the statement con-tinned into details by the witness, showing or tending to show that appellant was not liable for the injury, it was properly excluded, as contributory negligence is not a defense to this character of actions. Carterville Coal Co. v. Abbott, 181 Ill. 495; Henrietta Coal Co. v. Martin, 221 Ill. 470.

Appellant’s objection, however, to appellee’s evidence as to the amount of expenses incurred for medical attention should have been sustained by the court. There is no averment in the declaration that appellee incurred or became liable for any such expenses. An averment in a declaration that plaintiff expended divers sums of money for medical attention is not supported by proof that he incurred or became liable for such expense. Gammon v. Havelock, 40 Ill. App. 268; B. & O. S. W. Ry. Co. v. Schell, 122 Ill. App. 348.

It is true that appellee obtained leave to amend his declaration so that it would aver that he incurred or became liable for such expenses, but the amendment was never in fact made. An order of court granting leave to amend is not equivalent to the making of such amendment, and it was error in the court to allow such evidence until the amendment was in fact made, as appellant duly objected to the same and has preserved its exceptions to such ruling. Condon v. Schoenfeld, 214 Ill. 226; Both v. Burnham, 126 Ill. App. 223.

Two objections are raised by appellant to the only instruction offered by appellee, which concludes thus, “then in that case you should find the issues for the plaintiff, and assess his damages at such sum as you may be satisfied from the evidence he is entitled to.” The particular objection raised to this instruction is as to the use of the word “satisfied.” Three authorities are cited to the effect that by the use of such word too high a degree of proof was required for appellee to •sustain his case, to-wit: Albrecht v. Ward, 91 Ill. App. 38; Ruff v. Jarrett, 94 Ill. 475; Rolfe v. Rich, 149 Ill. 436.

It has many times been decided that a party cannot •complain of error in his favor. See last case cited. Appellant also complains of this instruction because it tells the jury that if they find from the preponderance of the evidence that appellee ordered props, and that defendant failed to furnish them, and that appellee was injured as a consequence thereof, then appellant would he liable, without requiring them further to find that appellee did not already have on hand a sufficient supply of props at the time. In other words the objection is that the instruction directs a verdict without requiring a finding of said material fact. We do not think the instruction when read as a whole is subject to that objection. If there be any doubt about the jury being misled thereby when considered alone there can be none at all when considered with appellee’s second instruction which told the jury in substance that if they believe from the evidence that there was on hand in his room available for. immediate use props in sufficient quantities and in proper lengths, and that he neglected to use them in proping his roof that then they should find the defendant not guilty. We have already discussed the facts hearing on this question as an additional reason why appellant was not prejudiced by this instruction. The word “entitle” ought to have been stricken out of this instruction, and the word “sustained” substituted therefor. It is never proper for a court to tell a jury in a case like this that they should give such damages to the plaintiff as they believe from the evidence he is “entitled to,” where only compensatory damages are recoverable. Such words may be used where exemplary damages may be recovered provided the instruction is otherwise properly worded. But as the amount of damages in this case was exceedingly small for the Injury, the appellant was not prejudiced thereby.

The remarks of counsel for appellee “who is Stockton? He is in the employ of this company; he draws a big salary, and who is interested—,” were improper because there was no evidence in this record that he . drew a salary, large or small. These words should not have been used, and where there is a well-grounded belief that a party may have benefited himself or his client by such unfair means, it will not be "the policy of this court in any case to allow the judgment to stand. Legitimate and fair argument only looks to the law and the evidence for its foundation. After the prompt and positive action of the court in -stopping counsel in his improper remarks upon objections made thereto, we find no evidence in this record that they had any effect upon the jury, unless that evidence be the smallness of the verdict rendered for appellee.

But for the error already indicated in admitting improper evidence as to the incurring of expenses for medical services, the judgment will have to be reversed and the cause remanded for a new trial; and it is so reversed and so remanded, unless the appellee, as he lias indicated a willingness to do, shall within fifteen days from the filing of this opinion enter a remittitur herein for the sum of one hundred and ten dollars, the amount proved for such services, and if he so does it will be affirmed.

Affirmed upon remittitur filed.


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    W. D. Fry et al., Appellees, v. The American Insurance Company, Appellant.
    1. Appeals and erbobs—when bill of exceptions stricken. If no bill of exceptions is signed by the trial judge at the term at which the proceedings occurred and no time for presenting a bill of exceptions beyond that term is provided for, a bill of exceptions signed at a subsequent term will be stricken from the record.
    2. Appeals and erbobs—practice of reviewing rulings in default cases. In default cases where a party is not satisfied with the amount of damages assessed on the inquest and claims that improper rulings have been made on the evidence, the proper practice is to preserve the evidence heard and ask that the inquest be set aside and that a new inquest be granted, or that the inquest and default be both set aside and the party let in to make his own defense. On a refusal after proper showing made, the reviewing court may correct such erroneous decision.
    3s Judgments—when default should be set aside. If a defendant is misled into suffering a default by the conduct of the plaintiff or if such default is taken in violation of a stipulation or a fraud has-intervened in the taking of the default, in any or either of such cases the default should be vacated.
    4. Damages—effect of agreement restricting amount of. If an agreement is made to the effect that the damages to be assessed upon a trial shall not exceed a specified sum, such agreement will be recognized and enforced by the courts.
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed April 9, 1910.
    Statement by the Court. This appeal is by The American Insurance Company from a judgment taken by default by W. D. Fry, Martha E. Branson, Robert Branson and Matthew Branson against appellant in the Circuit Court of Marion county for the sum of $2,107.92.
    The default in this case was entered on motion of plaintiffs’ attorney, May 6, 1908, of the April term of said court, 1908, which convened April 27,1908; and on May 28,1908, the cause was continued generally. The record then shows that on September 28, 1908, leave was granted defendant to supply files; and that the cause was continued “under the rule.” At the January term, 1909, an application to the court was made by the defendant for the supplying and consideration of a former lost motion and affidavit by the defendant to set aside said default, filed June 8, 1908, of said April term, 1908, a proven copy of said last motion and affidavit accompanying said application; and, on a hearing by the court, said application was overruled. At the April term, 1909, said application of the defendant for the consideration and supplying of said lost motion and affidavit to set aside said default, was again made to the court by the defendant with additional reasons assigned therefor; but said application was again refused by the court, and on cross motion of plaintiffs’ counsel said motion was stricken from the files. A jury was then impaneled by the parties to assess plaintiffs’ damages on said default, and the defendant appeared and cross examined plaintiffs’ witnesses, and offered instructions to be read to the jury which were refused. Errors are assigned on all rulings, orders and judgments of the court.
    Kagy & Vahdervort, for appellant.
    Nolemah & Smith and Charles H. Holt, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

The proofs introduced by the defendant at the January term, 1909, of said court unquestionably show that said motion and affidavit to set aside the default in this cause was made and filed about June 8, 1908, of the term in which said default was taken; and it unquestionably shows that said motion and affidavit was lost from the files and that correct copies were offered and supplied in accordance with leave granted by the court at the previous September term. On motion, however, of appellees ’ counsel it is insisted that all the verbal evidence taken at said January term on the question of the loss and contents of such lost files, shall be expunged from the bill of exceptions because no bill of exceptions was signed by the judge at said term and no time for presenting a bill of exceptions was extended beyond that term. As appellees’ contention is found to be true and that the bill of exceptions in the record was not signed until the following March term, appellees’ motion will have to be sustained and said evidence is by this court expunged from the record. Village of Franklin v. Franklin, 228 Ill. 591; Guyer v. D. R. I. & H W. Ry. Co., 196 Ill. 370.

This same motion, however, was renewed at the next term of court when judgment was entered with additional grounds assigned, and the affidavit of Mr. IT. H. Sikkema which includes the proofs of loss made out and sworn to by W. D. Fry, one of the appellees, together with all the other exhibits referred to in said affidavit, was offered in support of said motion. This affidi it is undisputed in any of its parts by appellees. It shows very clearly that the defendant was not chargeable with negligence in this case in failing to plead, and that said default and judgment ought never to have been asked by plaintiffs. From this affidavit and other sworn exhibits filed with it, letters, telegrams and agreements of appellees’ attorney, Charles EL Holt, and proofs of loss made by Mr. Fry, appellee, under date of April 20, 1908, it appears without any contradiction whatever, that this cause was compromised by the defendant, represented by Mr. Sikkema, and plaintiffs, represented by Mr. Holt and Mr. Fry, one of the appellees, on April 20,1908, seven days before the appearance term for said cause begun. At said time a written stipulation headed with the style of said cause and addressed to the April term of said court, 1908, was signed by Chas. H. Holt, attorney for plaintiffs, which stipulation is in these words: “It is stipulated by and between Chas. H. Holt, Attorney for Plaintiffs in the above entitled canse and the American Insurance Company, defendant, that the above entitled cause having been settled upon the basis of twelve hundred fifty dollars ($1,250) the above entitled suit is to be dismissed upon the receipt of a draft from the Company for that amount at the cost of the plaintiff.” Attached to Mr. Sikkema’s affidavit as an exhibit is the proofs of loss made out on same day said stipulation is dated, and is sworn to by Mr. Fry, appellee, before Chas. H. Holt as notary public and containing among others this statement: “Total amount ■claimed of this Company under above named policy” (the one in question) “as a compromise settlement twelve hundred and fifty dollars ($1,250).” It also appears from said affidavit that Mr. Sikkema said to Mr. Holt that he, Sikkema, was not an attorney or versed in law and that he might need an attorney to represent him in court; and that Mr. Holt told him that the company would not need an attorney as he, Mr. Holt, would see that the suit was dismissed as soon as the draft should be sent by affiant; that at another time, May 11th, after said default was taken, while in Salem some one volunteered the information to him that he thought a default had been taken in this case; that affiant immediately went up stairs in the court room while court was in session and asked Mr. Holt, appellees’ counsel, if default had been taken in this case and that Mr. Holt told him that default had not been taken; and that Holt said he had told the court that a compromise had been made and that the case had been set for May 19, 1908. The remainder of Mr. Sikkema’s affidavit shows that he relied on the statement of Mr. Holt and that he was at all times diligent about this case and trying to get it settled up, and never knew there was a default taken until some time in June, 1908, when he immediately took steps to have it set aside by procuring an attorney and filing said affidavit, etc. It appears that the hitch on making the settlement was caused by the appellant being garnisheed by attaching creditors of appellees shortly after or about the time this compromise was made. Mr. Holt and Mr. Sikkema seem to have been working together after the garnishee process to get these creditors to settle with appellees at a discount, and that this suit after the stipulation was continued by agreement for that purpose. But it no where and in no manner appears that appellant was negligent or at fault in any way and was ready at all times to pay said sum of $1,250, when the attaching creditors could be settled with, and appellant protected from them. Mr. Holt’s explanation of the default verbally given to Mr. Sikkema after Mr. Sikkema learned of it, was that the company had not sent the draft as they claimed there was an attachment and that the creditors wanted $900; and that Mr. Holt said that if the company had seen fit to allow some one to get judgment, that appellant could pay it as they, Holt and Fry, could not stand for it. He and Mr. Fry had admitted before that that appellees owed said creditors.

The defendant’s counsel asked Mr. Fry, appellee, on cross examination and offered to prove by him when the damages were being assessed in this case, that this settlement had been made and that the damages were agreed on by plaintiffs and defendant at the sum of $1,250. But appellees objected to it and the court sustained the objection, and refused to allow proof of this character, and appellant excepted to such ruling and has assigned error thereon.

It seems to us that no matter what had been the ruling of the court at the previous term, -that the court even at its last term when judgment was entered should have sustained defendant’s motion to set aside said default and have allowed it to plead to the merits. There is no good reason why it should not have been done at the previous term, and the principal reason assigned now why it should not have been done at the last term is because the court had passed on part of the same motion at the previous term. The application presented the very strongest of grounds for the sustaining of this motion. The insurance company could not help being garnisheed, and it was not reasonable for appellees to expect it to ignore these proceedings and pay them the full $1,250. “Where the applicant was misled into suffering the default by the plaintiff, the default should be opened or vacated although it is otherwise regular.” “Where a judgment by default is taken in violation of a stipulation entered into between the plaintiff and defendant or their authorized attorneys, the proper relief will be granted. ” “ Fraud as a ground for the vacation or opening of a default, is entirely distinct from the statutory grounds of mistake, inadvertence, surprise or excusable neglect.” “The trial court has inherent power to grant the motion for that cause.” 6 Ency. of Pleading and Practice, 172,173 and 175.

It is insisted by appellees that in the application to have the default set aside and for leave to plead, the appellant failed to show diligence and failed to state therein any meritorious defense. We understand that such must be stated; but we think unusual diligence was disclosed under the circumstances of this case, all of which are not stated in this opinion, and the stipulation above referred to was ample defense in itself to the whole of this judgment.

The burden of proof as to the amount for which the judgment by default shall be taken rests upon the. plaintiff. In the absence of proof plaintiff is entitled to only nominal damages on default when the damages are unliquidated. The plaintiff may cross examine the witnesses introduced by the plaintiff in a default case. 6 Ency. of Pleading and Practice 128,129 and 137.

Our supreme court has decided that the proper practice of having reviewed the rulings of a court in default cases where a party is not satisfied with the amount of damages assessed on inquest and claims that improper rulings have been made on the evidence, is to preserve the evidence heard, and ask that the inquest be set aside and that a new inquest be granted, or that the inquest and default be both set aside and the party let in to make his defense. On refusal after a proper showing made, the reviewing court may correct such erroneous decision. Motsinger v. Coleman, 16 Ill. 73; Chic, and R. I. R. R. Co. v. Ward, 16 Ill. 525; Morton v. Bailey, 1 Scam. 213; Wanack v. The People, 187 Ill. 124.

The appellant has properly preserved its record for a review of the evidence here, and we thiuk the court, erred in refusing to allow the defendant to cross examine the plaintiff as to the stipulation agreed to by him, and as to what he had stated in the proofs of loss under oath as to the amount of his damages. Appellant-had the right to know_ upon what theory or basis he fixed the damages at over $2,000 at the trial while-he had only fixed them under oath at $1,250 in his proofs of loss. Independent of this if there was an agreement on appellees’ part that the damages should not be assessed at more than $1,250, we think it should be binding as fixing the damages on this assessment, although we recognize the rule that the defendant cannot question anything alleged in plaintiffs’ declaration except the amount of damages to be assessed.

For the reasons above indicated the judgment of the lower court is reversed, and the cause remanded for further proceedings, with directions that the defendant be allowed to plead all of its defenses, if any, on the merits of the case.

Reversed and remanded with directions.