text:
    Marvin H. Bordner, Appellee, v. James B. Depler, Appellant.
    1. Evidence—when opinion of witness competent as to question of value. The question being as to the value of corporate stock, a witness who has been an officer of the company, is familiar with its affairs and who states that he has an opinion as to such value, held, competent to give the same.

      2. Evidence—must he confined %£o issues. Evidence is incompetent which does not tend to prove any issue involved in the case.
    8. Amendments and jeofails—when denial of motion to amend not ground for reversal. It is within the discretion of the court to grant or deny leave to amend a plea during the trial of a cause. The denial of such motion is not ground for reversal in the absence of a showing as to why such application was not sooner made.
    Assumpsit. Appeal from the Circuit Court of Pulton county; the Hon. Geokge W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Harry M. Waggoner and Marvin T. Robison, for appellant.
    Lucien Gray, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In the spring of the year 1904, the Lewistown Oil •<& Gas Company, a corporation, was organized for the purpose of prospecting for oil and gas, in the vicinity of Lewistown, Illinois. All of the available money of the corporation was expended in drilling a well upon land belonging to appellant, James B. Depler, with the result that instead of producing a flow of oil or gas, as was anticipated, the well produced an abundant flow of water, which was claimed to have some medicinal properties. Thereafter in May or June, 1905, at a meeting of the stockholders of <said corporation held for the purpose of discussing and determining the advisability of raising money for the purpose of liquidating some indebtedness of the corporation, and to meet the expense of cleaning-up the grounds, capping and well, and advertising the premises as a pleasure and health resort, in anticipation of the organization of a corporation to utilize the water and to conduct a sanitarium and resort on said premises, appellee subscribed and paid for the purposes stated the sum of $10 in consideration, as is alleged and as the evidence tends to show, of the promise then expressly made by appellant, that the latter would give to each person so subscribing the sum of $10 one share of the capital stock of the par value of $100 in a corporation thereafter to be organized for the purpose named. In pursuance of the plan then contemplated, the Depler Mineral Springs Company was organized and incorporated in October, 1905, with an authorized capital stock of $100,000, divided into 100 shares of the par value of $100 each.

It is not necessary to an understanding of the issues involved in this case to set forth in detail the provisions of the preliminary agreement between the stockholders of the Lewistown Oil & Gas Company for the organization of the Depler Mineral Springs Company, or to charter provisons of said company, or the terms of the lease executed by appellant to said company of the premises on which the well was located. It is sufficient to say that a certain number of shares of the capital stock of the Depler Mineral Springs Company were issued to appellant in consideration for the lease by him of said premises, and for certain purposes, including the delivery by him to each of the several subscribers to the fund raised at the meeting of the stockholders of the Lewistown Oil & Gas Company in May or June, 1905, heretofore mentioned, the shares of the capital stock of the Depler Mineral Springs Company, to which they were entitled.

Appellant ¡having refused to deliver to appellee one share of the capital stock of the Depler Mineral Springs Company, appellee brought this suit in assumpsit against appellant to recover the value of said share of stock, and upon a trial in the Circuit Court of Fulton county recovered a verdict and judgment against appellant for $16, and this appeal followed.

It is urged that the court improperly permitted the witness J. G. Quisenberry to state his opinion as to the value of the share of stock in question. The witness had been the secretary of the corporation until July 10, 1906, and was familiar with the business of the corporation at that time. He testified that he had an opinion as to the value of the stock immediately prior to December 5, 1906, the time in question, and that in his opinion the stock was then worth from $15 to $20 per share. While the opinion of the witness was not conclusive as to the value of the share of stock in question it was competent to be considered by the jury in determining such value, and the court did not err in overruling appellant’s objection to the evidence. Butler v. Mehrling, 15 Ill. 488; O. & M. Ry. Co. v. Long, 52 Ill. App. 670.

It is next urged that the court improperly admitted in evidence the lease of the premises by appellant to the Depler Mineral Springs Company, and that the court improperly permitted the witness Quisenberry to testify to an alleged statement by appellant that the $10,000 of the capital stock of the corporation mentioned in the lease to be issued to appellant was to cover in part the $6,300 invested by the stockholders of the Lewistown Oil & Gas Company in boring the well on the premises. The lease was competent evidence as tending to show that appellant had received certain shares of the capital stock of the Depler Mineral Springs Company and the alleged statement by appellant to the witness Quisenberry was competent as tending to show the purpose for which appellant held such stock.

The liability of appellant here sought to be enforced does not arise out of any agreement or provision in the lease, and the parol statement alleged to have been made by appellant does not contradict or vary any of its terms or provisions.

On his direct examination appellant testified that he did not consider the shares of stock in the corporation as being worth anything. Upon his cross-examination appellant admitted that he had purchased five shares of Lake W. Sanborn for $312.50, and five shares from W. M. Simpson, and one share from H. N. Mnrphy, at the same price. It is urged that evidence of the purchase of stock by appellant from Sanborn and others and the price paid therefor was immaterial and incompetent. The evidence was adduced upon the cross-examination of appellant not as substantive proof of the value of the stock but as tending to contradict the statement of appellant on direct examination that the stock had no value. The record, does not sustain appellant’s contention that he was not permitted to state the reasons which induced him to purchase the shares of stock referred to, and to pay the price which he testified he paid therefor. This matter was fully developed on his re-direct examination.

The court properly sustained appellee’s objection to the question propounded to the witness Brown as to what, if anything, was said at a meeting of the stockholders of the Lewistown Oil & Gas Company relative to the cancellation of a certain lease. Appellee does not appear to have been present at the meeting referred to and no record of any action in that regard by the stockholders at such meeting was offered in evidence.

As tending to show a failure of consideration, appellant offered in evidence a lease of the land upon which the well was located, executed by himself to the Lewis-town Oil & Gas Company, and which he claimed had never been cancelled or surrendered by the lessee. If appellant made the promise to appellee alleged in the declaration the fact that the lease referred to was not cancelled or surrendered could not operate to release appellant from performance. The cancellation or surrender of the lease was not made a condition precedent to the performance by appellant of his promise, and appellee had no power or authority to cancel or surrender it. The lease was properly excluded as e"V Ldence.

The alleged mistake in the articles of incorporation of the Bepler Mineral Springs Company was wholly foreign to any issue involved in the case, and proof tending to show such mistake and the purported correction thereof by unofficial action of the parties was properly rejected.

During the course of the trial and some time after appellee had rested his case, counsel for appellant moved the court for leave to amend his plea so as to admit proof of failure of consideration. The motion was denied, and the action of the court in this regard is assigned as error. Assuming that the motion made in behalf of appellant contemplated leave to file an additional special plea setting up failure of consideration, no showing was made by appellant why such plea was not sooner filed, and in the absence of such showing, such motion having been made during the progress of the trial, it rested within the sound judicial discretion of the court to determine whether or not leave to file such additional plea should be granted. And the exercise of such discretion will not be reviewed unless manifestly abused. City of Chicago v. Cook, 204 Ill. 373; Byerly v. Wilson, 123 Ill. App. 662.

We are of opinion that the trial court exercised' its discretion properly in this instance. The instructions taken as a series state the law applicable to the case with substantial accuracy. The first instruction offered by appellant and refused by the court stated a mere abstract proposition of law which if given to the jury would have tended to mislead them, and the instruction was, therefore, properly refused. By appellant’s third refused instruction the existence and terms of the contract relied upon by appellee were made to depend upon the undisclosed understanding or intention of appellant, and not upon what was in fact said and done between the parties thereto.

The verdict of the jury is amply supported by the evidence, and the record being free from error prejudicial to appellant the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    John Grimes, Appellee, v. Lake Erie & Western Railway Company, Appellant.
    1. Common cabbiebs—what not defense to action for failure to furnish car as agreed. In an action against a common carrier for failure to furnish a car for the shipment of freight, at the time agreed; it is no defense to show the exercise of due diligence in the effort to furnish such car.
    2. Common cabbiebs—who authorized to hind, to furnish car. Held, that the station agent in this case had apparent, if not implied, authority to hind the carrier to furnish a car at a specified time and place.
    Assumpsit. Appeal from the Circuit Court of 'McLean county; the Hon. Colostin D. Myebs, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    John E. Pollock and John B. Cockrum, for appellant.
    Welty, Sterling & Whitmore, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On February 19,1906, appellee applied to the station agent of appellant at Padua, Illinois, for a car in which to ship a load of fat cattle to Chicago upon the following day, and said station agent agreed to have such car at the station by 11 o’clock on February 20, so that the cattle could be transported to Chicago by the freight train scheduled to leave Padua at that time. Appellee drove his cattle to the stock yards at Padua in time for shipment as agreed, but owing to the failure of appellant to furnish a car until four o’clock in the afternoon of the following day, the cattle were not shipped until then, and by reason of having remained in the station stock yards they became stale and shrunken, and did not arrive in Chicago until the morning of February 22, when the market was not as favorable to appellee as it had been on the day previous. For the loss occasioned to him by reason of the failure of appellant to furnish a car as agreed, appellee brought this suit and recovered a verdict and judgment against appellant for $125.

This is not a suit by a shipper to recover damages resulting from the failure of a common carrier to ship stock to its destination within a reasonable time after the same was received by such carrier, or for the failure of a common carrier to furnish a car within 'a reasonable time after application made therefor by a shipper, but is an action to recover damages resulting from the failure of a common carrier to furnish a car at the time and place unqualifiedly agreed upon.

In such case appellant cannot relieve itself from liability upon the ground that it exercised due diligence in its efforts to furnish a car at the time and place agreed upon. The agreement of the station agent of appellant, if binding upon it, was unqualified, and what was said in Deming v. G. T. Ry. Co., 48 N. H. 455, is applicable: “When the carrier contracts to carry goods within a prescribed time, no temporary obstruction, or even an absolute impossibility of complying with the engagement, will be a defense to an action for failing to perform his engagement, for when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by his contract.”

We have no doubt but that the station agent of appellant had apparent, if not implied authority, to contract with appellee to furnish a car at a specified time and place, and that appellant is bound by such contract. Wood v. C., M. & St. P. Ry. Co., 68 Iowa 491; Harrison v. M. P. R. R. Co., 74 Mo. 364.

There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Alva W. Mitchell, Appellant, v. Pratt Nelson, Appellee.
    1. Appeals and erbobs—when estoppel to urge particular theory arises. If an appellant has tried a cause in the lower court upon one theory, he cannot, upon appeal, urge as error that the lower court did not, upon such trial, proceed upon another and inconsistent theory.
    2. Instructions—should he confined to the issues. An instruction which presents to the jury a material issue with respect to which there is no evidence, is erroneous and constitutes ground for reversal.
    3. New trial—when surprise ground for. If a party has been taken hy surprise hy evidence introduced, and shows upon the motion for a new trial that he was not negligent in being so taken hy surprise, and, likewise, shows prima facie ability to meet and refute the evidence which so took him by surprise, a new trial should he awarded—the evidence in question being vital to the issues.
    Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Edward J. Sweeney, Alfred Adams and Edward E. Adams, for appellant.
    John Fuller and Herrick & Herrick, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellant brought suit in the Circuit Court of De Witt county against appellee to recover treble the sums of money alleged to have' been lost by one Louis N. Mitchell, a brother of appellant, and won by Pratt Nelson, appellee, in certain bets upon the outcome of foot races between J. P. Haughn and J. L. Sanderson. The first count of the declaration charges that said Louis N. Mitchell lost and said appellee won $1,500 in the foot race which took place November 24, 1903, and the second count charges that said Louis N. Mitchell lost and said appellee won $2,500 in a foot race on December 7, 1903. A trial by jury resulted in a verdict in favor of appellee and judgment against appellant for costs of suit.

It is first urged on behalf of appellant that the verdict of the jury is against the manifest weight of the evidence. Most of the witnesses who testified as to the salient facts in the case are confessed gamblers and confidence men, or such as have no occupation or visible means of support, and the evidence of these witnesses is inextricably conflicting. If the number of such witnesses can give any probative value to their testimony as evidence, and add to or detract from the weight to be given to it, it may be conceded that the advantage lies with appellee. In view of the fact that the judgment must be reversed for errors of law, we refrain from further discussion as tó the weight of the evidence.

It appears from the evidence that Louis 1ST. Mitchell, on February 19, 1906, commenced his action against appellee under the provisions of section 132 of the Criminal Code, to recover the amount of money alleged to have been lost by him to appellee, in bets upon the same foot races involved in this case, but as such suit was commenced more than six months after the money was alleged to have been lost, it was determined by counsel for said Louis N. Mitchell that the suit was barred by the statute, and the same was dismissed on May 31, 1906. On May 22, Í906, this suit was commenced by appellant.

It was incumbent upon appellant to show by a preponderance of the evidence that the money alleged to have been lost in wagers upon the foot races was lost by Louis N. Mitchell and won by appellee.

The testimony of appellee and of several witnesses called on his behalf tends to show that appellee was not present at or a party to any wager with Louis N. Mitchell upon the result of the foot races, but that the money was wagered and won by one Lucas.

There are some circumstances in evidence in the case which suggest collusion between appellant and his brother, Louis N. Mitchell, in the prosecution of the case at bar, and the case was tried in the court below upon the theory that such collusion, if shown to exist, would prevent a recovery by appellant.

It is now contended on behalf of appellant that the covin or collusion mentioned in the section of the statute authorizing this prosecution, which provides that in case the person who shall lose such money or other thing’, shall not, within six months really and bona fide, and without covin or collusion, sue, and with effect prosecute, for such money or other thing, by him lost and paid or delivered, it shall be lawful for any person to sue for, and recover treble the value of such money against the winner, refer to covin and collusion between the loser and the winner and not to such covin and collusion between the loser and a third party bringing suit, and counsel cite Kizer v. Walden, 198 Ill. 274, in support of such contention. Having tried the case upon the theory stated, and having by all of his instructions tendered to the court to be given to the jury advised the latter, in effect, that collusion, generally, between himself and his brother Louis N. Mitchell would bar a recovery, appellant is not in a position to urge such contention in this court. If . the collusion mentioned in the instructions referred to a secret arrangement between appellant and his brother, whereby the suit was to be prosecuted by the former for the benefit of the latter, the instructions were correct. Staninger v. Tabor, 103 Ill. App. 330.

The seventh instruction given at the instance of appellee informed the jury, that if they believed from the evidence that appellant advanced or loaned to the witness Louis M. Mitchell, any or either of the sums of money alleged to have been lost in wagers, on the foot races, and that appellant advanced or loaned the same to said Louis N. Mitchell with knowledge that the same was to be so wagered, then as to any such sums of money they should find the issues for appellee. It is elementary that instructions should be predicated upon the evidence in the case, and that they should not assume the existence of .evidence not appearing in the record. There is not a scintilla of evidence in the record in this case which tends to show that any of the money wagered by the witness Louis N. Mitchell was loaned or advanced to him by appellant, and the instruction was, therefore, erroneous and misleading. The modification by the court of appellant’s fifth instruction was proper. The instruction given by the court upon its own motion is not subject to the criticism urged against it.

Upon the trial appellee introduced in evidence a letter purporting to have been written by Louis iSL Mitchell to J. P. Haughn, the contestant in the foot races upon whom it is alleged that said Mitchell wagered his money. The letter is as follows:

“Soeento, III., Mch. 3, 1904.
Me. J. P. Haughn,
Fairbury, HI.
Friend Haughn :•—•
I haven’t heard from Graham, or Byan since I saw you last fall, so thought I would write you. I wrote Graham and Byan both and heard nothing from either. Do you suppose there is any chance of getting even with Lucas in a month or two. Let me hear from you and what you will be doing in the next few months.
Bespy., L. N. Mitchell.”

It is claimed on behalf of appellant that the name “Lucas” appearing in the letter was substituted therein for another name and was written therein after its receipt by Haughn for the purpose of supporting the contention of appellee that the money in question was wagered with and lost to one Lucas instead of appellee. It is clear that this was a decisive issue in the case. In his motion for a new trial, appellant represented to the court that he was taken by surprise upon the trial of the case by the introduction of evideuce tending to show that Lucas and not appellee was the person with whom Louis N. Mitchell wagered and lost his money, and affidavits were presented strongly tending to show that the name “Lucas” written in the letter was a substitution and that the man alleged to have been Lucas was not within the State of Illinois in November or December, 1903, when the foot races in question were run, but was then in San Antonio, Texas, where he resided, and that upon another trial of said ease appellant would be able to establish such facts by the depositions and testimony of competent witnesses. The showing made by appellant upon the motion for a new trial was such as should have moved the court to grant the motion.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Walter Mahan et al., Appellants, v. Franklin Schroeder, Executor, Appellee.
    1. Evidence—what not part of res gestee. Statements which are merely self-serving and hearsay in character, are no part of the res gestee.

    2. Negotiable instruments—what not competent to affect assignment of notes. Statements merely self-serving and hearsay in character, are not competent for the purpose of impeaching the assignment of notes and mortgage.
    3. Trusts—what essential to establish express executed trust. In order to constitute an express executed trust, there must he a transfer of the legal title of the subject-matter by the owner to the trustee for the beneficial use of the cestui que trust.

    4. Trusts—what evidence essential to establish. In order to establish an express trust, the evidence must he clear and satisfactory not only as to the existence of the trust but also as to the terms and conditions thereof.
    5. Notaries public—when certificate of acknowledgment prevails. The certificate of a notary to the effect that an instrument was executed as the voluntary act and deed of the executing party, will prevail in the absence of proof of fraud or conspiracy.
    6. Mastebs in chanceby—effect of findings of fact by. The findings of fact by a master in chancery are not binding upon the chancellor but are merely advisory upon the issues of fact involved.
    Bill in equity. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Edward Pierce, for appellants.
    Stone & Oglevee and Ezra M. Prince, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellants, grandchildren and legatees of Maria Schroeder, deceased, filed their bill in equity in the Circuit Court of McLean county against appellee, as executor of the estate of Herman Schroeder, deceased, the husband of said Maria Schroeder, to establish and declare a trust with respect to a certain note and mortgage for the principal sum of $11,000 and the proceeds of a certain check for the sum of $279.59, and to have an accounting thereof, and also for the appointment of a trustee to receive and administer said property according to the terms of the will of said Maria Schroeder. The master in chancery, to whom the cause was referred to take and report the proofs with his conclusions thereon, found the equities of the cause to be with appellants and recommended that a decree be entered in accordance with the prayer of the bill. Appellee filed certain objections to such report which objections were overruled by the master, and the cause was then heard by the chancellor upon exceptions to the report, and upon such hearing’ the exceptions were sustained and a decree entered dismissing the bill for want of equity.

Herman and Maria Schroeder were natives of Germany and emigrated to this country immediately after their marriage in 1848, and settled in Bloomington, Illinois, .in 1852. Herman Schroeder was induced to leave his native country because of his connection with the then threatened revolution. He was of so-called plebeian stock, while his wife was connected with the titled aristocracy. While the evidence does not disclose that he was ever matriculated as a physician, he occasionally assumed to prescribe for physical ailments, and was generally known as Dr. Schroeder. He was an eccentric man, of frugal habits, high temper and irascible disposition and during his residence in Bloomington accumulated considerable real and personal estate. Mrs. Schroeder was the superior of her husband intellectually and was a woman of strong character. Owing, presumably, to the difference in their temperaments and social positions, they were not altogether congenial, and their married life was not unmixed with trouble. In 1887 Mrs. Schroeder instituted a suit for separate maintenance against her husband which was subsequently dismissed and settled by a written agreement whereby the parties resumed their marital relations and Dr. Schroeder conveyed to his wife an undivided one-half interest in certain real estate in the city of Bloomington. Although the evidence does not disclose how or when she acquired title thereto, or the value thereof, it appears that she also owned a ten-acre tract of land in the vicinity of Bloomington, known as “Villa Maria.” Thereafter Mrs. Schroeder collected the rents and income arising from her separate estate and kept her separate bank account. Three children were born of the marriage, Franklin, the appellee; Minerva, intermarried with one Schirmer and since deceased, and America, the mother of the appellants. Some time prior to January 9, 1901, Mrs. Schroeder exchanged her interest in the property in the city of Bloomington, conveyed to her by her husband, for 160 acres of land in McLean county, and upon that day she conveyed the said land to one Claus W. Struve, and in consideration therefor received $1,000 in cash and a note for $11,000 dated February 26,1901, payable in ten years, with interest at the rate of 534 per cent, per annum, evidenced by ten coupon interest notes for $577 each, the principal note and coupons being secured by a mortgage on the premises sold. On the same day she executed a voluntary conveyance of the premises known as “Villa Maria” to her son Franklin for life and after his death to the heirs of his body. In January, 1901, the health of Mrs. Schroeder commenced to fail and she was an inmate for a time of the Brokaw hospital in Blooming-ton, to which her husband had contributed $5,000, and where he preferred that she should go for treatment. She preferred to go to St. Joseph’s hospital, because the nurses there could converse with her in German as well as in English, and subsequently she went to the latter hospital, where she remained the greater part of the time, until her death, November 27, 1901. In 1896 Dr. and Mrs. Schroeder executed their several wills whereby they bequeathed to each other all of their estate, and subsequently thereto, on April 5, 1900, July 25, 1900, December 13, 1900, and March 7, 1901, Mrs. Schroeder executed other wills whereby she bequeathed the greater portion of her estate to her daughter, America, for life, with remainder to her children. The $1,000 received by Mrs. Schroeder from the sale of her farm she deposited in the First National Bank of Bloomington, and during her illness at St. Joseph’s hospital she frequently signed checks in blank to be filled out by her daughter America, who drew the money from the bank. On June 5, 1901, Mrs. Schroeder discovered that the entire amount of her deposit in the bank had been withdrawn and that she was without funds with which to pay her expenses at the hospital. She consulted her attorney, E. H. Miner, who had the custody of her will and of the Struve note and mortgage, and it was determined that she should borrow from the bank $300 upon her note, which Miner should sign as security, and that the Struve note and mortgage should also be deposited as collateral security for the loan. A note of that date for $300, payable in ninety days, was accordingly made to the bank and Mrs. Schroeder was given credit for that amount upon her account. On June 10, 1901, Mrs. Schroeder spent the day with her husband at their apartments in Bloomington and returned to the hospital on the following day. On that day, June 11,1901, she again consulted her attorney, Mr. Miner, who then drew up and she executed the following paper:

“St. Joseph’s Hospital,
Conducted by Sisters of St. Francis, Bloomington, 111.
Bloomington, III., June 11, 1901.
“Db. Herman Schroeder :
“On my death I request that you turn over tó my executor named in my will dated March 7, 1901, the note placed in your charge given by Claus Struve and Mary Struve, for $11,000 together with the coupons attached, that he, my executor, may carry out my last will and testament.
“Dated this 11th day of June, 1901.
Maria Schroeder.
“Attest: Sister M. Lucy.”

This paper designated in the record as “Exhibit 41” was taken by Miner and attached to the will of Mrs. Schroeder. On or before June 15, 1901, following the execution of said paper, while Mrs. Schroeder was again at her apartments in Bloomington she sent for Mr. Miner and after a consultation with him, he went to the bank and procured the Struve note and mortgage and gave them to her. On June 15, Mrs. Schroeder indorsed the Struve principal note and coupon notes and executed an assignment of the mortgage securing the same, to her husband. The assignment of the mortgage was drawn in the office of August Boeker, the business agent and adviser of Dr. Schroeder, and the acknowledgment of Mrs. Schroeder to said assignment was taken "by said Boeker as notary public. Of the $300 borrowed from the bank by Mrs. Schroeder there then remained to her credit $280, $20 having been drawn out by check on June 8,1901. The amount of interest accrued on the note was 41 cents and Mrs. Schroeder gave to her husband a check on the bank for $279.59. This check bears date June 13, 1901, and is indorsed “paid” on the same day. Dr. Schroeder took up the note of his wife at the bank for $300 with money withdrawn by him from his personal account in another bank, and said note is stamped on its face “Paid June 12,1901.” At the time of these transactions Mrs. Schroeder was about 75 years of age and her husband was about 80 years of age.

The will of Mrs. Schroeder executed March 7, 1901, was not filed for probate until August 27, 1904, a period of two years and nine months after her death, when it was admitted to probate, and Miner, who was nominated therein as executor, having refused to qualify, Homer W. Hall was appointed administrator with the will annexed. Thereafter, Hall, as such administrator, brought suit in trover against Dr. Schroeder to recover the value of the Struve note and mortgage. This suit was dismissed by Hall on March 10, 1905, and on March 31, 1905, Dr. Schroeder paid to his daughter, America Hoffman, the sum of $1,000 in consideration of her written release of him from any and all claims that she might have had against him on account of any property, notes, credits or money that he might have which belonged to her mother at any time during her life, and from any and all claims which she might have under her mother’s will, and she thereby assigned and transferred to her father all claim of interest which she might have in a certain promissory note which formerly belonged to her mother, the ownership of which was in issue in a suit against her father by the administrator of her mother’s estate.

Dr. Schroeder died April 7, 1905, leaving a last will and testament and codicil thereto, whereby he gave to his daughter America Hoffman for life and at her death to her son, George Mahan, certain lots in Bloomington; to his son Franklin and wife Elizabeth, for their joint lives and the life of the survivor, with remainder in fee to their children, certain real estate in Bloomington; the remainder of his estate to be divided at the end of five years after his death into three equal parts, one of which he gave to his daughter America; one to the children of his son Franklin, and one to his son Franklin.

As grounds for the relief prayed the bill alleges that at the time the principal and interest notes and mortgage in question were assigned by Mrs. Schroeder to her husband she was very sick and greatly troubled and worried in mind over the loss of her bank account and the manner • of its withdrawal by her daughter America; that her husband, a strong minded, severe man, of whom she stood in great fear, fraudulently contriving to secure possession of said notes and mortgages, and deprive appellants of the benefit thereof, took advantage of her enfeebled condition and by threatenings, cajoling and representing to her that unless said note and mortgage were placed in his custody, their daughter America would obtain possession of and squander the same, so played upon her fears and weakness as to influence and induce her to consent and trust him with the custody and control of said papers; that in accordance with said arrangements she thereupon executed her certain writing declaring that said note and mortgage were placed in the hands of her husband as trustee only, and directing that at her death he return the same to her executor to be disposed of in accordance with her will; that she then gave to her husband a check for the balance of $279.59 remaining to her credit in the bank, and executed and delivered to him an assignment of the mortgage securing said notes, and that he thereupon cashed said check and paid to the bank the loan of $300 theretofore made to her, and received and retained possession of the said notes and mortgage; that he paid no consideration for the said notes and the assignment of said mortgage; that Mrs. Schroeder was led to and did believe and intend that the sole purpose and object of said transaction was to place said notes and mortgage beyond the reach of their daughter America during the lifetime of the said Mrs. Schroeder, and at her death to be turned over by her husband to her executor; that she was overreached in said transaction by her husband, who retained possession of said notes and mortgage after her death and claimed to be the owner thereof, and who refused, and whose executor, appellee herein, still does refuse to account for or turn over said notes and mortgage to the representative of Mrs. Schroeder. The answer of appellee denies all of the allegations of the bill as to fraud and improper conduct on the part of Dr. Schroeder, and avers that Mrs. Schroeder sold, assigned and delivered the said note, coupons and mortgage to her husband for a good and valuable consideration, as her own individual property, without any trust or condition whatever.

There is much incompetent evidence in this record. Statements and declarations of Mrs. Schroeder out of the presence of her husband to the effect that she stood in fear of her husband, and as to her intentions with respect to the disposition of her property, not directly affecting the principal transactions here involved, were no part of the res gestae, were merely self-serving and hearsay in their character, and therefore incompetent for the purpose of impeaching the assignment of the notes and mortgage to Dr. Schroeder. Francis v. Rhoades, 146 Ill. 635; Compher v. Browning, 219 Ill. 429; Dowie v. Driscoll, 203 Ill. 480; Oliphant v. Liversidge, 142 Ill. 160. This objection applies with equal force to the so-called declaration of trust executed by Mrs. Schroeder, designated as “Exhibit 41.” There is no evidence in the record tending to show that Dr. Schroeder ever had any knowledge of the existence of this instrument until nearly three years after the death of his wife, and the mere fact that the instrument is in writing and is directed to him, does not relieve it of its character as á self-serving declaration.

The contention of appellants that the instrument operated to create an express executed trust is not tenable. In order to constitute an express executed trust there must be a transfer of the legal title of the subject-matter of the trust by the owner to the trustee for the beneficial use of the cestui que trust. Barnum v. Reed, 136 Ill. 388. And in the same case it was held that a court of equity will not aid or perfect a defective gift. That if legally made by a transfer of the legal title to the trustee, it will be upheld and enforced, but if the gift is imperfect or incomplete, a court of equity cannot convert it into a declaration of trust on account of such imperfection, and thus give it effect. ' In the case at bar the evidence tends to show that the Struve note and mortgage were not in the possession of Dr. Schroeder when Exhibit 41 was executed by Mrs. Schroeder, and it is conclusively established that said note was not indorsed nor was said mortgage assigned by Mrs. Schroeder until four days after the execution of said paper. Dr. Schroeder therefore had no title to said note and mortgage when Exhibit 41 was executed, and the title subsequently acquired by bim was not, so far as the evidence tends to show, impressed with any trust. Appellants rely upon the case of Padfield v. Padfield, 72 Ill. 322, as supporting their contention that the execution by Mrs. Schroeder of Exhibit 41 constituted an express executed trust. The undisputed facts in that case were that the trustor, Thomas Padfield, had transferred by indorsement to his son, a large amount of notes, mortgages and other securities, and that the son then executed a contract binding himself to pay his father $2,000 annually for his support, and upon the death of his father to pay to certain parties two-thirds of the amount realized by him on said notes for the use of the other children of the trustor, and it was held that the trust became executed in favor of the beneficiaries. The cases are clearly distinguishable upon the facts.

It is difficult to reconcile the conduct of Miner, who acted as attorney for Mrs. Schroeder and who had the custody of her will executed March 7, 1901, in which he was nominated as executor, and of the paper designated ‘ Exhibit 41,” with his testimony as it appears in the record in support of the contention of appellants. Miner took no steps to have the will of Mrs. Schroeder probated until two years and nine months after her death, and then refused to qualify as her executor. And when Hall was appointed as administrator with the will annexed and attempted to execute the will, and to that end brought an action in trover against Dr. Schroeder to recover the value of the note and coupons in controversy, he informed Hall and the attorney whom Hall had retained to prosecute said suit, that said note and coupons had been turned over by Mrs. Schroeder to her husband in his own right, and upon receipt of such information the suit was dismissed. The inference is quite clear that Miner was informed by Mrs. Schroeder that she had in fact indorsed said note and coupons and assigned the mortgage securing the same to her husband absolutely.

The evidence is conflicting as to the mental condition of Mrs. Schroeder during the time of the transactions in question and as to the relations then existing between herself and her husband. A careful consideration of the evidence, however, leads us to the conclusion that Mrs. Schroeder then had sufficient mental capacity to transact ordinary business; that her husband treated her with kindness and consideration during her illness; and that she was not overreached or unduly influenced by him.

It is not controverted that Mrs. Schroeder was much shocked and grieved by the conduct of her daughter America in surreptitiously withdrawing for her own use the larger part of the deposit of $1,000 in the bank and that she then lost confidence in her daughter and regarded her as a spendthrift, incapable of appreciating the proper value and use of money.

The mere fact that Dr. Schroeder may have impressed upon his wife the danger of permitting their daughter America to have access to her property, and encouraged his wife to place it in his hands where it would be beyond the power of Mrs. Schroeder to accede to the importunities of their daughter, does not stamp the transaction involving the assignment of the note and mortgage to him, as fraudulent, or as having been so assigned in trust. Upon its face the assignment of the mortgage bears no indication that the transaction was impressed with a trust. The assignment of the mortgage was acknowledged by Mrs. Schroeder before a notary public, and in the absence of any allegation in the bill, or of any proof in the record of fraud on the part of the notary, or of any fraudulent collusion between such notary and Dr. Schroeder, the certificate of the notary that the assignment of the mortgage was executed by Mrs. Schroeder as her voluntary act and deed must prevail. Oliphant v. Liversidge, supra; Gritten v. Dickerson, 202 Ill. 372. Neither does the record disclose any .evidence tending to show that the transaction of indorsing the note and coupons by Mrs. Schroeder and delivering the same to her husband was impressed with a trust. August Boeker, the notary, testified: That he was called by telephone message to the residence of Dr. and Mrs. Schroeder; that when he arrived there Mrs. Schroeder met him and said “Mr. Boeker, just think of it, my only daughter has taken all the money from her mother while she was sick in bed, every dollar I had is gone, a daughter robbed her own mother;” that Dr. and Mrs. Schroeder then showed him the checks which had been signed by Mrs. Schroeder for different amounts, filled out in the handwriting of her daughter America; that Mrs. Schroeder then said that she wanted to1 make an assignment of the mortgage to her husband as he had to pay the money she had borrowed at the bank; that Dr. Schroeder agreed to pay any notes that she had signed and to give her all the money she needed as long as she lived.

It is urged that the fact that Dr. Schroeder paid his daughter America $1,000 in consideration of the release by her of all her interest in her mother’s estate and the transfer to him of her interest in the Struvenote, the ownership of which was involved in the suit in trover above mentioned, was tantamount to an admission on his part that he did not then own said note in his own right, but as trustee. We do not think that the inference suggested necessarily follows. The evidence discloses that Dr. Schroeder was then seriously ill, and that he died within a week thereafter. He was doubtless moved to make the settlement by the importunities of his daughter for money and his desire to terminate a litigation, which must, necessarily, at his advanced age, have been the cause of much irritation to him.

It was incumbent upon appellants to establish by clear and satisfactory evidence, not only the existence of a trust, but also the terms and conditions of such trust, as alleged (Lurie v. Sabath, 208 Ill. 401), and this, we are constrained to hold, they have failed to do.

The findings of the master were not binding upon the chancellor as is claimed by appellants, but merely advisory upon the issues of fact involved. Ennesser v. Hudek, 169 Ill. 494.

Appellee’s motion to tax the cost of the additional abstract to appellant will be denied, and the decree of the Circuit Court will be affirmed.

Affirmed.


text:
    Arthur A. Weber, Administrator, Appellee, v. Chicago, Burlington & Quincy Railway Company et al., Appellants.
    1. Tbiai—when conduct of counsel ground for reversal. Held, that the following conduct of counsel is ground for reversal: In the preliminary cross-examination of a witness the following occurred: “Q. Are you now perfectly cool?” to which question the witness answered, “I am, yes, sir.” Thereupon the following assertion was made: “I see your hands and feet jerking all the time, I thought perhaps you were a little nervous,” it appearing that no such conduct on the part of the witness was apparent to the court and that the effort upon the part of examining counsel was to produce the impression that the witness had shown indications of fear, and the effect of such conduct was not remedied by the sustaining of an objection and a reprimand.
    2. Tbial—when arguments of counsel ground for reversal. In a close case, an effort to read from a decision of the Supreme Court and a criticism of the Supreme Court’s rulings, constitute ground for a new trial.
    3. Ihstbuctions—when as to instinct of self-preservation erroneous. In an action for death caused by wrongful act, it is erroneous to permit the jury to consider the instinct of self-preservation where there was an eye-witness of the accident which resulted in the death.
    4. Instbuctions—when, as to exercise of ordinary care, erroneous. Held, that the following instruction was erroneous in that it limited too closely the time within which the deceased must have been in the exercise of ordinary care for his own safety:
    “The court further instructs the jury that in order for the plaintiff to recover in this case, it is necessary for him to prove by a preponderance of the evidence that the following allegations in the declaration are true, to-wit:. 1st. That the plaintiff’s intestate, Frederick Weber, was killed at the time and place alleged in the declaration, and that he left him surviving a widow and next of kin as charged. 2nd. That the defendants were guilty of the negligence mentioned in the declaration or some one or more counts thereof in the manner charged in the declaration and that in consequence and by reason thereof the said Frederick Weber was killed. 3rd. That at the -time of his death the said Frederick Weber was in the exercise of ordinary care for his own personal safety; and the other instructions of the court must be considered and construed by the jury in connection with this instruction; and if the jury believe from the evidence that the statements herein recited are true, a verdict should be rendered in favor of the plaintiff.”
    5. Instbuotions—approved form as to rule to look and listen.
      The following instruction as to the rule to look and listen is approved:
    “If the jury believe from the evidence that under all the facts and circumstances surrounding said Frederick Weber, shown by the evidence when he was driving along the said highway, mentioned by the witnesses approaching and in near proximity to the crossing of said highway and said railroad, ordinary care and caution required that he should stop and look and listen to ascertain whether any locomotive engine or train was approaching said crossing on said railroad within such distance as to make it dangerous or unsafe to drive upon the said railroad at such crossing, then it was the duty of the said Frederick Weber to stop, look and listen before driving upon the said railroad at said crossing; and if the jury believe from the evidence that the said Frederick Weber neglected or failed to do so, and that if he had so stopped, looked and listened, he would have discovered or ascertained the approach of said locomotive engine and train in time sufficient to have avoided the injury, then the plaintiff cannot recover in this case.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Adams county; the Hon. Habby Higbee, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Joseph N. Carter and Matthew F. Carrott, for appellant ; Chester M. Dawes, of counsel.
    Vandeventer & Woods, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee as administrator of the estate of Frederick Weber, deceased, against appellants, Chicago, Burlington & Quincy Bailway Co. and Chicago, Burlington & Quincy Bailroad Co., lessee and lessor, respectively, of a- line of railroad, for wrongfully causing the death of his intestate. A trial by jury resulted in a verdict against appellants for $6,500, from which verdict appellee was required to remit $2,500, and judgment was entered against appellants for $4,000.

The declaration contains six original and six additional counts, the first three of which original counts charge in substance that appellants were possessed of and operating a railroad and running theron a certain locomotive engine and train of cars, which engine and cars they were driving upon said railroad toward Quincy over and across a public highway running east and west; that while the deceased was riding in a vehicle drawn by horses on said highway across said railroad, using ordinary care for his own safety, appellants so negligently and carelessly operated their said engine and cars that the same struck the vehicle in which said deceased was riding with great force and violence, and that he was thereby killed. The fourth original count charges that the said public crossing of the highway by the railroad was at grade, and that by reason of the nature of the ground, and of certain trees, buildings, fences, weeds and crops standing and growing upon the land immediately east of such crossing and north of the public highway, it became extremely difficult for a person approaching the crossing from the east on the highway to see or hear a locomotive and train approaching the crossing from that direction ; and that it was the duty of appellants to have placed and kept a watchman or some other safeguard at said crossing to give warning to travelers on the highway, of the approach of locomotives, or to have required trains approaching said crossing from the east to run at a low rate of speed; that appellants did not perform or regard such duty but negligently permitted trains approaching said crossing to run at a high rate of speed, and did not provide any other safeguard to render said crossing reasonably safe.

The fifth and sixth original counts charge that appellants drove their locomotive engine upon and over said crossing without observing the provisions of the statute requiring the sounding of a steam whistle or the ringing of a bell continuously for a distance of at least eighty rods before said crossing was reached. The six additional counts are substantially like the six original counts, except that each additional count charges that the Chicago, Burlington & Quincy Railroad Co. was the owner of said railroad, and that the Chicago, Burlington & Quincy Bailway Co. was operating said railroad as lessee.

It was stipulated upon the trial that the Chicago, Burlington & Quincy Bailroad Co. leased its railroad to the Chicago, Burlington & Quincy Bailway Co., on November 20, 1901, and that at the time the deceased was killed the latter company was operating the railroad.

The evidence tends to sho'w that on July 16, 1903, at about 1:30 o’clock in the afternoon, the deceased was riding along in a spring wagon drawn by two horses, going westward on a public highway toward the city of Quincy, at a point about a mile east of the corporate limit of said city where said public highway was crossed at grade by the railroad track of appellants; that while the deceased was attempting to cross said railroad track on said highway, he was struck and instantly killed by a locomotive engine and passenger train running at the rate of about forty miles an hour southwesterly toward the city of Quincy; that for some distance before reaching the crossing a view of the railroad track and of the trains thereon to the northeast was somewhat obscured from the vision of a person traveling west on said highway toward said crossing by an embankment from six to ten feet in height on the north side of the highway, upon which embankment there was a board fence, and by fruit trees, growing corn, weeds and grass. The evidence is in sharp conflict upon the question as to whether or not the required statutory crossing signals were given by those in charge of the locomotive engine. The only eye witness of the accident which resulted in the death of appellee’s intestate was Louis Cain, the locomotive fireman, who testifies in substance that he was looking out of the engine cab on the left hand side coming toward Quincy; that the highway crossing signal, consisting of two long and two short blasts of the whistle, was given just before the whistling post was reached; • that the bell upon .the locomotive which was rung automatically by compressed air was started in motion at Fowler, a station eleven miles northeast of Quincy, was ringing continuously until the crossing was reached; that when he first saw the deceased upon the highway the latter was twenty or thirty feet from the crossing, riding in a spring wagon drawn by two horses; that the lines were hanging slack and that the deceased was looking down—appeared to be looking at something in his hand. He further testifies that as soon as he saw the deceased approaching the crossing he called the attention of the engineer to the fact and the latter immediately applied the air brakes and sounded the danger or alarm whistle; that the horses then stopped of their own accord; that he then saw the deceased grab up the lines and slap the horses, and reach for a whip in the back of the vehicle; that the deceased then stood up and started to whip the horses and drove them upon the crossing, and at a point half way between the crossing and the whistling post there was nothing to obstruct his view of a vehicle in the road twenty-five, fifty or 100 feet east from the crossing and that from his position in the cab at the whistling post eighty rods from the crossing there was nothing to obstruct his view of a person driving on the highway at a point 200 feet east of the crossing; that after striking the deceased the train, consisting of the locomotive and three cars, ran about two train lengths, when it returned to the scene of the accident.

In the preliminary cross-examination of the witness Cain by one of the counsel for appellee, the witness was asked: “Are you now perfectly cool?” to which question the witness answered: “I am, yes, sir.” Counsel for appellee then said to the witness: “I see your hands and feet jerking all the time, I thought perhaps you were a little nervous.” To this remark of counsel for appellee, counsel for appellants objected and the trial court suspended the further cross-examination of the witness, sharply reprimanded counsel for appellee, dismissed the jury from the box, and ordered a short recess to be taken. Counsel for appellants then moved the court to withdraw the case from the jury and for a continuance of the cause, because of the conduct of counsel for appellee and his remark to the witness, but the court overruled the motion and thereafter the further cross-examination of the witness proceeded.

It is manifest from what.appears in the record, including the remarks of the court, that the statement of appellee’s counsel characterizing the conduct and actions of the witness was wholly unwarranted by the facts. While the trial judge did all in his power to protect the witness from the unjustifiable imputation put upon him by counsel for appellee, we are of opinion that the prejudicial effect of the statement was not thereby wholly removed. The jury were undoubtedly led to believe by the statement of counsel for appellee that he had seen something in the conduct and actions of the witness which was unobserved by them or by the trial court, and this is the impression counsel for appellee doubtless intended to give to the jury.

During his closing argument to the jury one of the counsel for appellee spoke as follows: “Now I intend to say something here and you (turning to counsel for appellants) may object if you want to. I dare you to allow me to read that case to the jury.” (Eeferring to a law book lying upon the table.) “The railroads forced the Supreme Court to change the law for the benefit of the railroad. Thomas v. Thompson was killed.” (Eeferring to another case in the Supreme Court.) “The case was tried, damages were returned and the Supreme Court affirmed it. Fifty years ago a man was killed under like circumstances to this case; many men, many women, many children, many horses have been killed. For fifty years the railroads in Illinois have been stained red with human blood.”

In a case as close upon the facts as is the case at bar, the unprofessional, unfair and wholly unwarranted reference by counsel for appellee to the adjudi - cations of the court of last resort in this State, and his reflections upon that court, the challenge to appellants’ counsel to permit counsel for appellee to read to the jury a decision of the Supreme Court, which counsel for appellee well knew it was improper to do, and the grossly intemperate appeals to the passion and prejudice of the jury by counsel for appellee, shown by the foregoing abstract from the record, constitute error which neither the objections thereto by counsel for appellants, nor the rulings of the trial court sustaining such objections, operated to render harmless. Wabash Ry. Co. v. Billings, 212 Ill. 37; C. U. Trac. Co. v. Lauth, 216 Ill. 176; Ill. Cent. R. R. Co. v. Seitz, 111 Ill. App. 242; Chicago & Alton Ry. Co. v. Scott, 232 Ill. 419.

By the eighth instruction given at the instance of appellee the jury were informed, among other things, that in determining the character of the conduct of the deceased, at the time of his injury and death, they might take into consideration the natural desire or impulse of rational human beings to avoid danger or death.

In view of the fact that the witness Cain was an eye witness of the conduct of the deceased as he approached and drove upon the crossing in question, we think the portion of the instruction referred to should not have been given to the jury as an element proper to be considered by them in determining the question of due care or want of due care on the part of the deceased.

In I. C. R. R. Co. v. Kief, 111 Ill. App. 354, this court said: “Where eye-witnesses have testified to the facts and circumstances 'surrounding the accident which caused the death of the plaintiff’s intestate, the rule which entitles the jury to consider the instinct of self preservation and the presumption which may arise from proof of the habitual exercise of due care, does not apply.” And in that case it was further said: “We are therefore of opinion that the presumption does not exist where there are, as in the case at bar, eye-witnesses to the accident.”

The tenth instruction given at the instance of appellee, was as follows:

“10. The court further instructs the jury that in order for the plaintiff to recover in this case, it is necessary for him to prove by a preponderance of the evidence that the following allegations in the declaration are true, to-wit: 1st. That the plaintiff’s intestate, Frederick Weber, was killed at the time and place alleged in the declaration, and that he left him surviving a widow and next of kin as charged. 2nd. That the defendants were guilty of the negligence mentioned in the declaration or some one or more counts thereof in the manner charged in the declaration and that in consequence and by reason thereof the said Frederick Weber was killed. 3rd. That at the time of his death the said Frederick Weber was in the exercise of ordinary care for his own personal safety; and the other instructions of the court must be considered and construed by the jury in connection with this instruction; and if the jury believe from the evidence that the statements herein recited are true, a verdict should be rendered in favor of the plaintiff.”

This instruction is subject to the criticism that it limits the time when the deceased must have been in the exercise of ordinary care for his own safety, within too narrow a compass. And the error in the instruction in that regard is rather heightened than otherwise by the statement therein that “the other instructions of the court must be considered and construed by the jury in connection with it; and if the jury believe from the evidence that the statements herein recited are true, a verdict should be rendered for the plaintiff.” .Notwithstanding other given instructions may have stated the rule in broader terms, more accurately, we think the language last quoted was calculated to direct the attention of the jury, in their application of the rule governing the deceased in the matter of the due care to be exercised by him, to the rule as stated in the instruction in question in preference to or the exclusion of the true rule upon the subject announced in other instructions.

In North Chicago St. R. R. Co. v. Cossar, 203 Ill. 608, it was held that it was not proper in a personal injury case to give an instruction which limits the question of due care to the conduct of the plaintiff at the time of his injury, regardless of his conduct in placing himself in danger.

In Chicago Ry. Co. v. Ryan, 225 Ill. 287, it was held that the language in an instruction “at the time,” referring to the time when the plaintiff must have been in the exercise of due care for his own safety, did not limit the exercise of due care to the precise moment of the accident, and the instruction there under consideration was thus distinguished from the instruction condemned in C., M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248.

The instruction here involved comes within the condemnation of the decision in the Halsey case, supra.

The 37th instruction offered by appellants and refused by the court, is as follows:

“If the jury believe from the evidence that under all the facts and circumstances surrounding said Frederick Weber, shown by the evidence when he was driving along the said highway mentioned by the witnesses approaching and in near proximity to the crossing of said highway and said railroad, ordinary care and caution required that he should stop and look and listen to ascertain whether any locomotive engine or train was approaching said crossing on said railroad within such distance as to make it dangerous or unsafe to drive upon the said railroad at such crossing, then it was the duty of the said Frederick Weber to stop, look and listen before driving upon the said railroad at said crossing; and if the jury believe from the evidence that the said Frederick Weber neglected or failed to do so, and that if he had so stopped, looked and listened, he would have discovered or ascertained the approach of said locomotive engine and train in time sufficient to have avoided the injury, then the plaintiff cannot recover in this case.”

A similar instruction was under consideration by the court in Chicago City Ry. Co. v. O’Donnell, 208 Ill. 277, and the instruction was approved and its refusal was held to be error. The instruction is not subject to the criticism that it required the deceased, as a matter of law, to stop and look and listen, before he attempted to drive over the crossing. We have considered the objections urged to the action of the court in giving, refusing and modifying certain other instructions, but find no error in that regard.

For the errors indicated the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Fulton Dixon, Appellant, v. W. L. Million, Appellee.

      Evidence—what incompetent to show terms of contract of employment. In. order to establish the amount agreed to be paid for a particular service, it is not competent to permit evidence as to the terms of a settlement made by an employe with another employe for the performance of such services.
    Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    E. J. Miller, for appellant.
    A. J. Myers, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover an amount alleged to be due appellee for the labor of himself and a helper in constructing a house for appellant. The suit was originally instituted before a justice of the peace, where appellee recovered a judgment against appellant for $31.25. Appellant did not appear before the justice and judgment was there rendered against him by default. Upon appeal to the Circuit Court, a trial by jury resulted in a verdict and judgment against appellant for $21.50.

The terms of the contract between appellee and appellant, whereby the former performed labor for the latter, are sharply controverted, and the number of days which appellee worked for appellant is also in dispute between the parties. Appellee testifies that appellant agreed to pay him $3.50 per day for the labor of himself and his helper, Bert Smith, and that he and his helper worked for appellant twenty-nine and one-half days. Appellant testifies that he agreed to pay appellee $3.25 per day for such labor and that appellee and his helper worked twenty-three and one-fourth days. If the contention of appellant is correct he has paid appellee in full for his services.

The evidence, as it appears in the record, preponderates in favor of appellant’s contention and his version of the agreement with appellee, but in the absence of error in the admission of incompetent testimony we should not be disposed to hold that the verdict was so manifestly against the weight of the evidence as to require a reversal of the judgment.

Over the objection of appellant the witness, Bert Smith, who acted as appellee’s helper in performing labor for appellant, was permitted to testify that appellee had settled with him upon the basis of twenty-nine and one-half days ’ labor at $3.50 per day. Appellant was not a party to the alleged settlement between appellee and Smith, and the testimony of Smith as to such settlement was without any probative value as to the terms of the agreement between appellant and appellee and the admission of such testimony was manifestly prejudicial to appellant.

For the error indicated the judgment will he reversed and the cause remanded.

jReversed and remanded.


author: Mr. Pbesiding Justice Baume

text:
      Illinois Central Traction Company et al., Appellants, v. Elias Mann, Administrator, Appellee.

    1. Evidence-when absence of, cannot be urged on appeal. The absence of evidence to support a particular allegation cannot be urged by an appellant who, by objection upon the trial, has prevented the introduction of such evidence.
    2. Master and servant-duty of former to furnish reasonably safe track. It is the duty of a traction company to exercise reasonable care to provide a reasonably safe track upon which its cars are to be operated by its servants, and whether or not the company has failed in the performance of such a duty is a question of fact to be determined by the jury under the particular facts and circumstances in evidence.
    3. Master and servant-what risk not assumed. Held, that the risk arising from the presence upon the tracks of weeds was not such a risk as a motorman, employed by the defendant company, assumed as a matter of law.
    4. Master and servant-what risks are assumed. A servant assumes the risks ordinarily incident to his employment and the risk of such dangers as are obvious or which by the exercise of ordinary care he would have discovered. A servant may however have actual or constructive knowledge of a defect in an appliance with which, or in a place where is required to work, yet have no knowledge of a danger which may be incident to such defect.
    5. Master and servant-when doctrine of assumed risk available as defense to master. A master can only be relieved from liability upon the ground that his servant assumed the risk, where the servant is chargeable with knowledge both of the defect and of the danger incident thereto.
    Action on the case. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Shutt, Graham & Graham, for appellants.
    Brown, Wheeler, Brown & Hay and Hamilton & Catron, for appellees.
   Mr. Pbesiding Justice Baume

delivered the opinion of the court.

This is an action on the case hy appellee against appellants to recover damages for wrongfully causing the death of one Earl Buehler. A trial in the Circuit Court of Sangamon county resulted in a verdict and judgment against appellants for $2,500.

The declaration alleges that appellants were operating an electric railway upon which the cars were equipped with air brakes; that the deceased, Earl Buehler, was employed by appellants as a motorman upon a car running between Springfield and Virden; that it was the duty of appellants to provide a reasonably safe track and roadway upon which to operate said car, but that appellants neglected their duty in that behalf and permitted their track and roadway to become and remain overgrown and covered with a growth of grass and weeds to a height of one fobt above the top of the rails; that when said grass and weeds became wet with dew or rain they weighted down upon the rails, which became so smooth and slippery that it was impossible to control the movement of cars so as to arrest the speed thereof by use of the air brake; that on August 18, 1905, the deceased was operating a car south of Virden and while he was making every reasonable effort to stop said car, and was in the exercise of reasonable care for his own safety, said car collided with another car on appellants’ track, because of the slippery condition of the rails, etc.

From May 14, 1905, until August 17, 1905, the deceased was employed as a motorman by appellant, the Illinois Central Traction Company, operating a car between Springfield and Carlinville. During the time of his employment the deceased left Springfield for Carlinville every day at 3, 7 and 11 o ’clock p. m. arriving at Carlinville two hours later, except upon the last trip, when he usually went only as far as Thayer, a station midway between Springfield and Carlinville, where he met a northbound car, and there surrendering his southbound car to the motorman of the northbound car, who returned to Carlinville, he took the northbound car and returned to Springfield for the night. The movement of the cars was controlled by a dispatcher at Springfield, who communicated with the motorman by telephone. On arriving at the stopping place, a station or sub-station, the motorman left his car and announced his arrival to the dispatcher by telephone and received orders for the movement of the car.

On the night of August 17, 1905, the deceased, upon arriving at Thayer, the usual place of meeting of the northbound and southbound cars, communicated his arrival to the dispatcher and received an order to proceed to Virden Siding to meet the northbound car, which had been delayed. At Virden Siding there is a sub-switch at its south end with the main track. Southbound cars were entitled to the right of way and in the usual course of procedure it was the duty of the deceased, upon his arrival at Virden Siding, to stop his car on the main track, 100 to 200 feet north of the switch, and wait there until the northbound car had run into the switch. When the northbound car had run into the switch the two car crews would exchange cars, the southbound car would proceed forward on the main track, and after it had passed the switch point, the northbound car would move back on the switch track until it ran on the main track, and thence proceed north to Springfield.

The evidence does not disclose when the deceased applied the air brake to stop his car at Virden Siding, but Brock, the conductor of the car, who was upon the rear platform, testifies that he alighted from the car at a point on the main track about 200 feet south of the switch; that the car was then moving at a speed of about twelve miles an hour; that the wheels of the car were not revolving but were sliding upon the rails. The car proceeded thus 100 feet further south, where it collided with the northbound car. The evidence shows that the headlight on the northbound car was burning and that from Yirden Siding a northbound car could be plainly seen approaching for a distance of two or three miles. It is undisputed that the main track at Yirden Siding was overgrown with grass and weeds, which covered the rails; that there was a heavy fall of dew on the night of the collision; and that when the wheels of the car passed over the rails the grass and weeds were crushed upon the rails.

The evidence further tends to show that the grass and weeds upon the track were of sufficient height to come in contact with the axles of passing cars, so that the lubricating oil or grease on the axles was communicated to the grass and weeds, which when crushed upon the rails of the track communicated such oil or grease to the surface of said rails.

The theory of appellants is that the deceased intended to take the switch at Yirden Siding so as to compel the northbound car to remain on the main track and thus make it more convenient for him, to return to Springfield on the northbound car; that he did not attempt to stop his car north of the switch point as he was required to do; and. that he was thereby guilty of such contributory negligence as precludes a recovery. The difficulty with this theory is that it is almost purely speculative. It is only sustained by the supposition of the conductor that the deceased intended to enter the switch because the car had passed the switch point, and by the fact that the car did not stop north of the switch. The deceased must have observed the approach of the northbound car when he reached Yirden Siding and in the absence of proof to the contrary, or the evidence of eye-witnesses, as to the conduct of the deceased, the jury were justified in taking into consideration the natural instincts prompting to the preservation of life and avoidance of danger. Furthermore, the evidence tends to show that even after it is admitted that the wheels of the car were held by the brake and were sliding upon the rails, the car moved 100 feet south to the point of collision with the northbound car at a rate of speed sufficient by the force of the impact to knock the front truck from under the northbound car, to break the windows and crush the vestibule of that car, throwing its platform over the platform of the southbound car and to seriously damage the northbound car. Upon this state of the record the question as to whether or not the deceased was guilty of negligence contributing to his death was a question of fact for the jury and we are not prepared to say that the finding of the jury upon that issue was unwarranted.

It is urged on behalf of appellants that there is no evidence in the record tending to show that the presence of grass and weeds upon the rails of the track caused the same to become slippery so that the wheels of the car would necessarily slide upon the rails after the brake was applied, and, therefore, that there is no proof in the record that the conduct of appellants in permitting grass and weeds to grow upon the track was negligence, which negligence was the proximate cause of the death of appellee’s intestate. Upon the trial appellee offered evidence for the purpose of showing the effect which would ordinarily be produced upon the rails of the track by the presence of grass and weeds thereon, but upon the objection of counsel for appellants such evidence was" excluded. Appellants are not therefore in a position to urge the absence of evidence which but for their objection would have appeared in the record.

The weeds and grass which were growing upon the track are described by the witnesses as being “live and strong.” When they were crushed upon the rails they necessarily exuded moisture, and this moisture together with their crushed pulpy fiber mingled with lubricating oil or grease upon the surface of the rails was evidently calculated to intensify the slipperiness of the rails, and make it more difficult if not impossible properly to control the movement of a car by the use of the air brake. It was the duty of appellants to exercise reasonable care to provide a reasonably safe track upon which their cars were operated by their servants, and whether or not appellants failed in that duty under the circumstances disclosed by the record in this case was a question of fact for the jury.

It is insisted by appellants that the deceased assumed the risk incident to the operation of a car upon the track at the place in question because he must be held to have had actual knowledge of the condition of said track, and the presence of grass and weeds upon it at that place. A servant assumes the risk ordinarily incident to his employment and the risk of such dangers as are obvious or which by the exercise of ordinary care on his part he would have discovered. McCormick Machine Co. v. Zakzewski, 220 Ill. 526. A servant may, however, have actual or constructive knowledge of a defect in an appliance with which, or in a place where he is required to work, yet have no knowledge of a danger which may be incident to such defect.

A master can only be relieved from liability upon the ground that his servant assumed the risk, where the servant is chargeable with knowledge both of the defect and of the danger incident to such defect. Hartrich v. Hawes, 202 Ill. 334. Appellee’s intestate must be held to have had actual knowledge of the presence of grass and weeds upon the track at Virden Siding, but it does not necessarily follow that he had knowledge, or by the exercise of reasonable care would have had knowledge of the fact that the wheels of cars operated upon the track at that place crushed the grass and weeds intermingled with oil or grass upon the face of the rails, causing the rails to become so slippery that the movement of cars thereon could not be controlled by use of the air brake. The track was entirely within the control of appellants and the deceased owed no duty relating to its care and maintenance. The car operated by the deceased usually met the northbound car at Thayer and prior to the night upon which the collision occurred deceased had not had occasion to stop at Virden Siding, which it is conceded was an unusual meeting place for the two cars. Having no occasion to stop at Virden Siding it may well be held that the deceased was not chargeable with knowledge of the condition in the respects mentioned of the track at that place, which condition made it impossible by the use of the ordinary means at his command to stop the car at the proper place. Whether or not the deceased assumed the risk which resulted in his death was submitted to the jury under proper instructions, and we are not disposed to disturb their finding upon that issue.

The first instruction given to the jury at the instance of appellee states an abstract proposition of law regarding the duty of a master to exercise reasonable care to provide his servant with a reasonably safe place to work. Being abstract in form the instruction should have been refused or modified so as to make it concretely applicable to the facts of the case, but taken in connection with all of the other given instructions we áre of the opinion that it did not influence the jury to the prejudice of appellants.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Acorn Brass Manufacturing Company, Appellant, v. James Gilmore, Appellee.
    1. Contracts—how contracts of guaranty construed. Contracts of guaranty should be construed as favorably to the creditor as other written contracts.
    2. Conteacts—when undertaking of guaranty becomes effective. An absolute undertaking of guaranty becomes effective against the guarantor as soon as acted upon by the guarantee.

      3. Contracts—when undertaking of guaranty accepted. Held, that the letter set forth in this opinion was an an absolute guaranty and that the letter, likewise set forth, was an acceptance thereof, such letters constituting a contract.
    Assumpsit. Appeal fgom the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Penwell & Lindley, for plaintiff in error; F. W. Winkler, of counsel.
    R. Allan Stephens and Swallow & Swallow, for defendants in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The declaration of appellant in its action in assumpsit against appellee alleges, that on or about August 31, 1903, one Dr. W. H. Stephens applied to appellant and' placed with it an order for the manufacture of certain devices to be manufactured by it and delivered to said Stephens, and at the same time represented to appellant that he would place orders with it for the manufacture of like goods in the future, and further represented that appellee, James Gilmore, would guarantee and be responsible for any indebtedness incurred by said Stephens to appellant by reason of the manufacture by appellant and delivery to said Stephens of any goods aforesaid; that thereupon appellant, by its president, wrote to said appellee a letter as follows :—■

“August 31, 1903.
Jas. Gilmore,
Danville, HI.
Dear Sir:—■
Dr. W. H. Stephens has placed an order with us amounting to $115.00, and the probabilities are that future orders will run the account much higher. In asking for references, Dr. Stephens made the statement that you would guarantee the account, since he has not any commercial rating at present. If it is satisfactory to you, we would thank you for a letter guaranteeing us against loss from any transaction with this gentleman.
Tours respectfully,
J. S. Knight, Pres. Acorn Brass Meg. Co.”

That on or about September 3, 1903, appellant received in due course of mail a letter from appellee, as follows:

“Danville, III., Aug. 31, 1903.
Acorn Meg. Co.
Gents :—
Tours of this date to hand, and in reply will say I will be responsible for the amount of $500.00 for Dr. Stephens, but I do not think he will run the amount so large, as he is placing the mouth props for cash and will be able to pay you after first lot is turned out.
Besp., James Gilmore.”
Whereupon appellant on the same day wrote to said appellee and caused to be mailed to him a letter, as follows :—
“James Gilmore, Esq.,
Danville, DLL
Dear Sir:
We acknowledge receipt of your favor of the 31st ult. guaranteeing the account of W. H. Stephens for $500.00. We thank you for the same and remain Tours very truly,
Acorn Brass Meg. Co.,
J. S. Knight, Pres.” '

The declaration further alleges that confiding in the promise of appellee hereinbefore set forth, appellant on April 28, 1904, and divers days thereafter, to and including September 8, 1904, manufactured and delivered to said Stephens, trading under the name of Stephens Dental Specialty Company, in which said company no person or corporation other than said Stephens was interested, certain goods upon an agreed credit of thirty days from delivery, at an agreed price of $926.20, and that appellant received from said Stephens on account thereof $494.75, leaving a balance due appellant from said Stephens of $431.45. To this declaration appellee interposed a general and special demurrer which was sustained by the court, and appellant electing to abide its declaration, judgment was entered against it in bar of its action and for costs of suit.

The special ground of demurrer relied upon by appellee in support of its contention that the declaration fails to allege a cause of action, is, that it does not allege that appellee had notice that the alleged guaranty was accepted by appellant and that credit had been given upon the faith of such guaranty. It has been held that a contract of guaranty should be construed as favorably to the creditor as other written contracts (Swisher v. Deering, 204 Ill. 203), and that such a contract, although that of surety, is to be construed liberally, and in furtherance of its spirit to promote the use and convenience of commercial intercourse. Taussig v. Reid, 145 Ill. 488; Davis v. Wells, 104 U. S. 159.

The letter of appellee to appellant dated August 31, 1903, was not, as is insisted by appellee, a mere proposal upon the part of appellee to become a guarantor, but was an absolute and unqualified guaranty of indebtedness which might be incurred by Stephens to appellant to the extent of $500, and it became effective as a guaranty, as soon as it was acted upon by appellant. In Frost v. Standard Metal Company, 215 Ill. 240, it was held that an acceptance is necessary to create liability if there is only a proposal to guaranty, but that rule has no application when the undertaking is primary and absolute. The language of the letter “I will lie responsible for the amount of $500.00 for Dr. Stephens,” is just as effective to constitute an absolute and unqualified guaranty as the more technical expressions, “We hereby guarantee,” or “We hereby agree to guarantee,” or “We agree to pay,” used in the cases cited, which appellee seeks to distinguish from the case at bar. But if it be conceded, for the sake of the argument, that the letter written by appellee was a mere proposal to guarantee, the letter of September 3, 1903, written by the president of appellant to appellee, acknowledging receipt of apellee’s letter of August 31, 1903, must be held to be an acceptance of such guaranty and notice to appellee that it would be acted upon by appellant as such guaranty.

The declaration states a good cause of action and the demurrer should have been overruled. The judgment of the Circuit Court will, therefore, be reversed and the cause remanded.

Reversed and remanded.


text:
    James Lane, Plaintiff in Error, v. The People, Defendant in Error.
    1. Evidence—what competent upon question of intent. In a prosecution for obtaining property by false pretenses, where the intent is an essential ingredient of the crime, it is error to deny to the accused the right to state what his intention was.
    2. Presumptions—what person presumed to contemplate. A person accused of crime is presumed only to have intended the natural and probable consequences of his purposed or deliberate act.
    3. Instructions—when erroneous in ignoring question of intent. An instruction which tells the jury that if they find certain facts they may render a verdict of guilty, is erroneous, in a prosecution where intent is an essential ingredient, if such instruction ignores the question of intent.
    Prosecution for obtaining property by false pretenses. Error to the County Court of DeWitt county; the Hon. Fred C. Hill, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed.
    Opinion filed April 21, 1908.
    Herrick & Herrick, for plaintiff in error.

      Arthur F. Miller and John Fuller, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff in error was convicted in the County Court of DeWitt county of the offense as charged in the information, of obtaining property by false pretenses, and was sentenced to pay a fine of $100, and to imprisonment in the county jail for the period of ninety days.

The facts in the case as developed by the evidence, are substantially as follows: On or about March 28, 1904, one A. L. Day, at the solicitation of plaintiff in error, purchased some hogs to be delivered at Jenkins’ Switch, in DeWitt county, for shipment by plaintiff in error to Bloomington, Illinois. For this purpose Day purchased from the prosecuting witness, Frank Cline, one hog, for which plaintiff in error was to pay said Cline at the rate of $5 per hundred pounds. The hog was delivered by Cline at Jenkins’ Switch on April 1, 1904, and plaintiff in error then gave to James Cline, the father and agent of Frank Cline, a check on the State Bank of Clinton for the sum of $22 in payment for the hog. On the following day Cline presented the check to the bank for payment, when payment was refused by the bank for the reason that plaintiff in error had no funds on deposit in the bank to pay said check. It further appears that plaintiff in error had been buying hogs for some time prior to April 1, 1904, and had settled for purchases so made by checks drawn by him upon the State Bank of Clinton, under an arrangement with the cashier of said bank, whereby the checks were paid by the bank and charged to the account of plaintiff in error as overdrafts, when plaintiff in error had no funds on deposit in the bank. The books of the bank show that for several months prior to April 1, 1904, plaintiff in error had frequently overdrawn his account at the bank in amounts varying from $300 to $800, and that on March 29, 1904, the account of plaintiff in error with the bank was balanced. It further appears from the evidence, that plaintiff in error was never notified by any of the officers of the bank that his checks drawn thereon would not be paid by it.

A careful consideration of the evidence persuades us that it does not justify the conviction of plaintiff in error of the offense charged.

The court erred in not permitting plaintiff in error to testify as to what his intention was in giving the check to Cline. The section of the statute upon which this prosecution is predicated makes the intent of the party charged, of the essence of the offense. Rev. Stat. 1905, chap. 38, sec 98. In Wohlford v. The People, 148 Ill. 296, it was held that when the intent is of the essence of the offense, or an important element constituting the offense, the defendant has the right to testify to what his intention was in the commission of the act with which he is charged.

Notwithstanding the fact that the rules of law applicable to the case at bar are simple and capable of being given to the jury in a very few instructions the trial court gave to the jury thirty-one instructions at the instance of defendant in error and twenty-three instructions at the instance of plaintiff in error. The practice of encumbering the record with so many inapplicable and repetitious instructions is a vicious one and should be discouraged. Dunn v. The People, 109 Ill. 635; Hayner v. The People, 213 Ill. 142; Roberts v. The People, 226 Ill. 296.

It would serve no useful purpose, and would extend this opinion to needless length, to comment upon the instructions seriatim. The third instruction, given at the instance of defendant in error, omits an essential element in the rule attempted to be stated. A person is only presumed to intend the natural and probable consequences of his purposed or deliberate act.

The twenty-fifth instruction given at the instance of defendant in error is palpably erroneous in excluding the element of intent of plaintiff in error to defraud Cline. Many of the other instructions given on behalf of defendant in error are mere repetitions of other given instructions.

The judgment of the County Court will be reversed but the cause will not be remanded.

Reversed.


text:
      Samuel F. Springer, Appellee, v. Illinois Central Traction Company, Appellant.

    Masteb and servant-what risks are assumed. An experienced adult employe is chargeable with knowledge of the ordinary conditions under which the business in which he is employed is conducted and assumes its ordinary risks and hazards, and will be presumed to have notice of, and to have assumed, all such risks and hazards which to a person of his experience and knowledge are or ought to be patent and obvious.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed with finding of fact.
    Opinion filed April 21, 1908.
    Shutt, Graham & Graham, for appellant.
    McAnulty & Allen, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries alleged to have resulted from the negligence of appellant. A trial by jury resulted in a verdict and judgment against appellant for $600.

The declaration charges that appellant maintained a pole in its right of way near the city of Decatur, for the purpose of suspending’ a trolley wire, which pole was not placed at a sufficient distance from the main track and cars passing over the same so that persons operating said cars could perform their duties with reasonable safety, and that while appellee, who was in the employ of appellant, acting as motorman, was, on April 24, 1906, operating a motor on the front end of a car, exercising- due care for his own safety and having no knowledge of the dangerous proximity of the said pole to the track, was struck by said pole while the car was in motion and while he was in the line of his duty, and was thrown to the ground and injured.

At the time of his injury appellee was employed by appellant in its electric interurban railroad operating between Decatur and Springfield, as a conductor. The cars of appellant were operated by electricity communicated by an overhead trolley wire, which wire was suspended over the track, where the track was straight, by mast arms fastened to poles set 100 feet apart on one side of and at a uniform distance from the track, and where the track was on a curve, by span wires extending across the track fastened to poles on each side of the track. On April 24, 1906, appellee left Decatur in charge of a car and had gone but a short distance, when he was called upon by the motorman to take the latter’s place and operate the motor temporarily. Appellee did so, and as he approached a curve in the track, near what is known as the Leader. Works, he shut off the power for the purpose of allowing the car to drift around the curve, in the usual manner. When the car had about passed the elbow of the curve appellee turned the lever one point for the purpose of applying the electrical current and discovered that no power was available. Then, while the car was in motion, he put his head out of the door in the side of the cab, for the purpose of ascertaining whether the trolley wheel was in contact with the wire, and while in that position he was struck in the head by a pole and thrown ont upon the ground and injured. The evidence is contradictory as .to the clear distance between the pole and the side of the car, but the record discloses that such distance was not less than eighteen inches and not more than thirty-six inches. We think a preponderance of the evidence tends to show that such distance was at least thirty-two inches.

As bearing upon appellee’s right to recover, several questions are argued by counsel for appellant, but in the view we are constrained to take of the case it will only be necessary to discuss and determine one of such questions.

The testimony of appellee discloses that he had had eight years’ experience as a motorman; that prior to his injury he had been in the employ of appellant for four and a half years, two years as a motorman and conductor and two and one-half years as conductor; that he had operated a car as motorman from ten to twelve times over the track at the place where he was injured, and had served in the capacity of a conductor over that line for six or seven months. It is the settled law of this State “that an experienced adult employe is chargeable with knowledge of the ordinary conditions under which the business in which he is employed is conducted and assumes its ordinary risks and hazards, and will be presumed to have notice of and to have assumed all such risks and hazards which to a person of his experience and knowledge are or ought to be patent and obvious, and that an employe assumes all hazards which are obvious and apparent and which are known to him, although such conditions are produced as the result of the master’s negligence if he continues in the employment without a promise to remedy such defects.” Kath v. East St. L. Ry. Co.,232 Ill. 126. Applying this rule to the facts, as adduced by the evidence in the record in the case at bar, it is manifest that appellee is barred from recovery of damages for the injuries sustained by him. The position of the pole in question was the same during the entire time of appellee’s employment. Its proximity to the. track and to the side of a car passing on such track was patent and ohvions and it is impossible that appellee could have passed over the track as frequently as his employment required him to do so without actual knowledge of the existing conditions in that regard. The accident occurred about the noon hour and no conditions existed which prevented appellee from observing his situation with reference to the pole. The facts in this case are substantially similar to those involved in Kath v. East St. L. Suburban Ry. Co., supra, where it was held that the injury suffered by the plaintiff resulted from a risk which was assumed by him.

The judgment of the Circuit Court will be reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Finding of Fact: We find that appellee assumed the risk of the injury for which damages are sought to be recovered in this case.