author: Mb. Justice Graves

text:
    Minnie Martinet, Appellant v. Elmer D. Duff et al., Appellees.
    Gen. No. 17,099.
    1. MORTGAGES — absolute deed. Before a warranty deed absolute in form, purporting to convey the fee and containing no defeasance clause, is'declared by a court of equity to be a mortgage on parol evidence, sueb evidence must be clear, strong, definite, unequivocal, convincing and satisfactory.
    2. Mortgages — evidence. Where a bill is filed in chancery to have a warranty deed of the ordinary statutory form declared to be a mortgage, the burden of overcoming the presumption that tlie deed is wliat it appears to tie rests on tlie complainant and is not overcome by a mere preponderance of tbe evidence.
    S. Mortgages — deed absolute in form. Where a bill is filed to have a deed absolute in form declared to be a mortgage, there must be an existing debt or obligation which the grantee in the conveyance can enforce by way of foreclosure proceedings.
    4. Appeals and eeeobs — -findings of fact. The findings of fact of the master in chancery are not set aside by a court of review where the evidence is conflicting unless they are clearly, palpably and manifestly against the weight of the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Karlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 12, 1913.
    Lewis Edward DickiNSON, for appellant.
    D. I. Jarrett, for appellees.
   Mb. Justice Graves

delivered the opinion of the court.

This suit was begun by appellant by filing her bill in chancery to have a deed absolute in form declared to be a mortgage. Issues were joined and the cause was referred to a master in chancery to take proofs and report his conclusions on the issue, “Was the deed executed by the complainant July 18, 1908, conveying certain real estate in the bill of complaint described, an absolute deed, or intended only as a mortgage, as alleged by the complainant?” The master took the evidence, heard the arguments of counsel for the respective parties, and found that appellant had failed to establish her bill by her proof, and recommended that the bill be dismissed for want of equity. Sixty-four objections, filed before the master by appellant to his findings, were overruled, and were later re-argued before the chancellor as exceptions to the master’s report, and were overruled by the chancellor, who confirmed the master’s report and entered a decree in which it is recited that the court finds that the deed in question was an absolute conveyance of the real estate described therein, was not intended to be and was not a mortgage, and on sncb finding dismissed the bill for want .of equity. The deed in question was the ordinary statutory form of warranty deed, and the presumption is that it is what, on its face, it appears to be. The burden of overcoming that presumption rests on the person who asserts the deed to be a mortgage, and is not overcome by a mere preponderance of the evidence. Heaton v. Gaines, 198 Ill. 479; Gannon v. Moles, 209 Ill. 180; May v. May, 159 Ill. 209.

Before a warranty deed, absolute in form, purporting to convey the fee and containing no defeasance clause, will be declared by a court of equity to be a mortgage on parole evidence, that evidence must be clear, strong, definite, unequivocal, convincing and satisfactory. Ryder v. Ryder, 244 Ill. 297, 311, 312; Keuper v. Mette’s Unknown Heirs, 239 Ill. 586, 592; Burgett v. Osborne, 172 Ill. 227, 241; Keithley v. Wood, 151 Ill. 566, 573; Fisher v. Green, 142 Ill. 80, 87. See also Coyle v. Davis, 116 U. S. 108; Cadman v. Peter, 118 U.S.73.

There must be an existing debt or obligation which the grantee in the conveyance can enforce by way of foreclosure proceedings. Rue v. Dole, 107 Ill. 275, 281; Fisher v. Greene, supra; Heaton v. Gaines, 198 Ill. 479, 489; Gannon v. Moles, 209 Ill. 180, 191; Burgett v. Osborne, supra; Bacon v. National German-American Bank, 191 Ill. 205, 209; Crane v. Chandler, 190 Ill. 584, 589; Caraway v. Sly, 222 Ill. 203, 206.

On questions of fact the findings of the master in chancery, who saw the witnesses and heard them testify and whose findings have in all respects been confirmed by the chancellor, while, perhaps, not entitled to the same weight in an appellate tribunal as the findings of a jury, will not be set aside by such tribunal where the evidence is conflicting, unless they are clearly, palpably and manifestly against the weight of the evidence. Ruddy v. McDonald, 244 Ill. 494; Trel-oar v. Hamilton, 225 HI. 102; Kenper v. Mette’s Unknown Heirs, 239 Ill. 586-593.

Appellant relies for a reversal of the decree on the claimed fact that the findings of the master and chancellor are manifestly against the weight of the evidence.

The evidence in this case is very voluminous. The master’s report, including the evidence, his findings, and the objections filed thereto, comprise about 250 pages of single-spaced typewriting, or what would ordinarily amount to 500 pages of typewritten matter. The so-called abstract can hardly he described and must he seen to he appreciated. It does not conform to rule 19 of this court, and is of no use whatever as an abstract, or even as an index to the record. We have, therefore, been forced either to affirm the order for want of a sufficient abstract, or to laboriously search through the record to find what the proof shows. We have pursued the latter course and find there is a sharp conflict in the evidence as to nearly all, if not all, of the material questions of fact involved, but that upon the whole record the master and the chancellor were warranted in holding that the averments of the hill were not supported by proof of the character necessary to warrant a finding that the deed in question was intended to be or was a mortgage. If we have failed to find all the evidence in the record offered by appellant, and which, it is claimed, supports appellant’s contention, it is the fault of the insufficient abstract.

Finding nothing in the record to warrant this court in holding that the decree of the Superior Court is manifestly wrong on the facts, the same is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Fred Bender, Appellee, v. The Bender Store & Office Fixture Company and Julius A. Stone, Appellants.
    Gen. No. 19,158.
    1. Corpop.atioNS — name. ‘While persons seeking to form a corporation may ordinarily choose any name, they cannot take the name of a corporation already existing or one that is to he used to deceive the public or to be passed off for that of some other person or firm in business.
    2. Corporations — issuing of charter does not give right to name. The fact that the state issues a charter to a corporation by a certain name does not give such corporation a right to use it for the purpose of deceiving the public.
    3. Corporations — use of unfair name may he enjoined. Where a corporation selects an individual name of one in competition for the purpose of deceiving the public, there being no one in the new corporation by such name, its use will he enjoined.
    4. Corporations — when use of name may he enjoined. Where the use of a corporate name results in palming off goods on the public as the goods of another, its use is properly enjoined.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 13, 1913.
    Samuel G. GeodsoN and Blum & Blum, for appellants.
    D’AítcoNa & Pflaum, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from an interlocutory injunction order, restraining The Bender Store & Office Fixture Company, a corporation, and one Julius A. Stone, who was the president of the corporation, and their attorneys, clerks, employes and servants, and all persons claiming through or under them from using the word “Bender” in connection with the business of selling store and office furniture.

The hill made the basis of the order was filed by one Fred Bender and was dnly verified. It is averred in the bill, in substance, that appellee is and for many years bas been in tbe business of selling store and office furniture in tbe city of Chicago, and chiefly on South Wabash avenue between Twelfth and Twentieth ■streets in said city, and that in his signs and in his advertisements has designated his place of business as “Bender Store and Office Fixtures” with the name “Bender” prominently displayed on signs in white letters on a blue background, and has become known and is designated as “Bender, dealer in store and office fixtures,” and by that name has an established business in store and office fixtures, and a favorable name- and reputation for honesty and for selling good goods at cheap prices which is valuable to him; that appellant Stone has for many years been engaged in the same line of business, but has sold an inferior grade of goods; that the said Stone and one Ella Graham and one B. J. Cupler, for the purpose of defrauding and cheating the public and inducing the customers of ap-pellee to deal and trade with them in the belief that appellee was connected in business with them, have adopted the name of “The Bender Store & Office Fixture Co.” and by that name have become incorporated, and under that name are doing business at 1120 South Wabash avenue in the City of Chicago; that by that name they have advertised themselves by signs in white letters on blue background, in which the name “Bender” appears prominently, similar to the signs of the complainant and otherwise; and on information and belief that the said Stone represented himself to be “Bender,” the proprietor, and thereby the public and the. customers of appellee have been deceived and the business of appellee has been reduced, his reputation injured and he has suffered loss and damage; that the corporation issued 250 shares of stock at the par value of $10 per share and that the said Stone subscribed for and holds 248 shares, the said Ella Graham one share and the said E. I. Cupler one share; that there .was in truth no person by the name of ‘ ‘Bender ’ ’ connected with the corporation or its business. In addition to this verified hill complainant filed and presented to the court two affidavits. By one it is made to appear that the said Stone had said in the presence of affiant that he, Stone, was “Bender, the proprietor,” and that the store run by him was Bender’s store, and by the other it was made to appear that at the defendant’s place of business were signs similar to those used by complainant, both in style and contents, and that defendant Stone had said he was thereby getting “a lot of cheap advertising.” Appellants have not answered the bill, but have filed the affidavit of appellant, Stone, in which nearly all the allegations of the bill and the affidavits presented with it are denied, except that the corporation exists and is doing business and advertising under the name of The Bender Store & Office Fixture Company. While the appellants, by this affidavit of Stone, deny that the purpose or result of adopting the name “The Bender Store & Office Fixture Co.” was to deceive the public, or to obtain from appellee his customers, no reason why that name was chosen and used is given, neither is it pretended that any one by the name of Bender is in any way connected with the corporation or its business.

Appellants, by their argument in this court, place their right to have the order reversed on the following six grounds, quoted from their brief, viz:

1. There is no trade name in the name of an individual.

2. An injunction will not lie to restrain a corporation so using its name, at the instance of a person who has not previously acquired right to the exclusive use of the name.

3. The rights given by the statute to incorporate cannot be taken away by means of an injunction.

4. Where a number of persons bear the same name and do business under the same name none of them lias a monopoly of it and no one of them can enjoin a corporation in which snch name is used as a part of the name from using such corporate name.

5. The secretary of state is given absolute power regarding the granting of charters and when he has exercised' that power a private individual may not enjoin the use of the name granted by the state.

6. The state law provides what power a corporation shall have and gives no veto power to a private individual with regard to the exercise of such powers.

None of these contentions can he adopted under the facts disclosed by the hill and affidavits filed by the respective parties in this case.

The protestation of Stone in his affidavit of the want of intent to deceive the public and the customers of appellee, and to injure appellee in his business by the adoption and use of his individual and business name, fall far short of overcoming the evidentiary force of the bald fact that the name was so used without any justifiable reason or excuse for so doing being given. Every sane person must be presumed to intend the natural and probable, as well as the inevitable, results of his deliberate acts, in spite of his assertions to the contrary. The act of appellants in assuming the name of appellee connected with his business appellation could not but mislead those who saw the signs and read the advertisements into the belief that appel-lee was interested in the business thus advertised and this regardless of whether any force is given to the affidavits of Portis that Stone said to him that he was Bender and that the place of business was Bender’s, and that of Pretschold to the effect that Stone said he was getting a lot of cheap advertising’ out of the sign “Bender Store and Office Fixtures,” and as to these affidavits we are bound to say the facts stated in them comport so exactly with the manifest purpose of appellants in assuming the name, as to carry conviction of their truth.

It is true, persons seeking to form a corporation may ordinarily clioose any name tlieir fancy dictates, subject, however, to the rule that they may not choose the name of a corporation already existing, or one that is to be used to deceive the public, or to be passed off for that of some other person or firm in business. Allegretti v. Chocolate Cream Co., 177 Ill. 129; Imperial Mfg. Co. v. Schwartz, 105 Ill. App. 525; De Long v. De Long Hook & Eye Co., 89 Hun, 399; Van Houten v. Hooten Cocoa & Chocolate Co., 130 Fed. 600; Nims on Unfair Business Competition, sec. 102, p. 206. "When a corporation violates that rule, it does so at its peril. Neither does the fact that the state issues a charter to a corporation by a certain name give to such corporation a right to use it, if it was deliberately chosen, or is used for the purpose of deceiving the public and thereby appropriating the business of another. McFell Electric & Telephone Co. v. McFell Electric Co., 110 Ill. App. 182; Imperial Mfg. Co. v. Schwartz, 105 Ill. App. 525; Peck Bros. & Co. v. Peck Bros. Co., 51 C. C. A. 251, 113 Fed. 291; Garrett v. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472; J. & P. Coats, Limited, v. John Coats Thread Co., 135 Fed. 177; De Long v. De Long-Hook & Eye Co., 89 Hun, 399; Nims on Unfair Business Competition, sec. 102; Hopkins on Unfair Trade, p. 108. When such unfair name is selected by a corporation for the purpose of deceiving the public into the belief that its goods are the goods of another, the use of that name for that means will be enjoined. McFell Electric & Telephone Co. v. McFell Electric Co., supra; Hopkins on Unfair Trade, p. 108; R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 576, 70 Fed. 1017. We think the rule goes even further and is that when the use of a name results in the palming off of one’s goods on the public as the goods of another, the use of such name will be enjoined. R. W. Rogers Co. v. Wm. Rogers Mfg. Co., supra; Stuart v. Stewart Co., 33 C. C. A. 480, 91 Fed. 243; Pillsbury v. Flour Mills Co., 12 C. C. A. 432, 64 Fed. 841; Rogers Mfg. Co. v. Rogers & Spurr Mfg. Co., 11 Fed. 493; Elgin Nat. Watch. Co. v. Illinois Watch Case Co., 179 U. S. 665; Meyer v. Medicine Co., 7 C. C. A. 558.

Under the facts disclosed by the bill and affidavits in this record the Circuit Court would not have been justified in refusing the interlocutory injunction. What may be developed when appellants have answered the bill and the cause is heard on its merits we cannot foresee. Nor is it material to the disposition of this appeal. On the record here presented the interlocutory injunction was properly ordered.

The order is, therefore, affirmed.

Order affirmed.


author: Mr. Justice McSurely

text:
    Louis Reval, Appellee, v. Robert Miller, Appellant.
    Gen. No. 17,012.
    1. Sales — “caveat emptor’’. The rule of caveat emptor does not apply where there is a warranty or fraud.
    2. Evidence — invoices. Plaintiff bought of defendant a large number of small items of merchandise, packed in cases, and defendant delivered to plaintiff an invoice list and guarantied that the cases contained all items invoiced. Plaintiff’s bookkeeper copied the items from the invoice and another employee checked off on such copy a large number of missing articles, and the bookkeeper thereupon made another list of the missing items and destroyed the original list. Held, that where apparently the items were correctly copied from such copy and the list was the only means of proving such missing- articles, its admission was not reversible error.
    Appeal from the County Court of Cook county; the Hon. Lotos M. Reckhow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 13, 1913.
    Rudolph Frankenstein, for appellant.
    McEwEN, WEISSENBACH, Shrimski & Meloan, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

In this case Louis Reval recovered a judgment against Robert Miller, appellant, in án action alleging fraud and deceit. It is urged that the judgment should be reversed.

The evidence before the jury tended to show that Miller offered to sell to Reval a miscellaneous lot of goods comprising a large number of small items like handkerchiefs, buttons, jewelry, pieces of ribbon, silk, etc., most of which was packed in cases; that Miller gave Reval a book containing an invoice list of the goods, saying in substance that he would guarantee that the cases contained every item in the invoice, with a few exceptions which are not material. The sale was made and the money paid. Subsequently on examination it appeared that the cases did not contain all the goods listed in the invoice, the shortage being a considerable amount, whereupon Reval brought suit.

Appellant claims that the rule of caveat emptor applies. We do not think so. It has been held that the rule of caveat emptor does not apply where there is a fraud or warranty. See vol. 6 L. R. A. (old series) 73, and cases there cited.

When Reval started to check up the goods he delivered the invoice book receipt from Miller to his bookkeeper, who copied the items therefrom and handed the copy to another employe, who followed it in checking off the merchandise and noted thereon the missing articles. He returned the list to the bookkeeper, who from it made another list of the missing items and destroyed the original list. It is argued that it was error to admit this list as being a copy from a copy. Apparently the items were correctly copied, and the admission of the list in evidence was not reversible error. Chicago & A. R. Co. v. American Strawboard Co., 190 Ill. 268; Wright v. Charbonneau, 122 Ill. App. 52. See also Wigmore on Evidence, vol. 2, sec. 1530. We might add that the only way possible to have introduced evidence as to the articles missing was by introducing a list made by some one, as it would be a physical impossiblity for anyone to testify from memory concerning the large number of small articles.

The judgment is affirmed.

Affirmed.


text:
    C. Helmer Johnson, Administrator, Appellee, v. City of Chicago, et al., on appeal of City of Chicago, Appellant.
    Gen. No. 17,015.
    1. Bridges — licensees. Where plaintiff’s intestate, a hoy of nine years of age, while crossing a bridge of a city, was called upon by the bridge tender to assist in turning the bridge, and, because of the defective condition of the bridge and its machinery and abutments a collision with a steamer resulted, the fact that plaintiff’s intestate might have gotten across the bridge hut returned at the request of the bridgeman did not make him a mere licensee, and he was entitled to the same degree of care which the city owes those using its highways in the ordinary manner.
    2. Infants — flaying on highway. Children may play upon the highway, and a city is liable for its negligence if a child while playing should, without any fault on its part, be injured by reason of a defect in the highway.
    3. Infants — contributory negligence of. Whether the conduct of plaintiff’s intestate, a boy of nine years, at the time of an accident, amounted to contributory negligence, is for the determination of the jury.
    Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 13, 1913.
    Edward J. BruNdage and Clyde L. Day, for appellant; George L. Beker, of counsel.
    Gallagher & Messuer, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

On May 22, 1907, Arthur Zelmansky, a boy of nine years of age, lost his life in connection with a collision between a steamboat and a bridge crossing the Chicago River. Suit was brought against the City of Chicago, the Gilchrist Transportation Company, and the Dun-ham Towing & Wrecking Company, resulting in a verdict of not guilty as to the Dunham Company, and of guilty as to the other defendants and assessing damages at $3,600. Before judgment the Gilchrist Company paid plaintiff $600, leaving a judgment for $3,000 against the City, from which this appeal is taken.

The occurrence resulting in the death of Arthur Zel-mansky, hereinafter called plaintiff, was as follows: At the point where Kinzie street crosses the Chicago River the City maintained a wooden bridge, which operated on a center pier in the middle of the river, the bridge being operated by hand power by lever, and usually turned by one man. The bridge had been constructed for many years and is described as “old fashioned.” Protection piles were constructed from the center pier on which the bridge revolved out to a point about two feet beyond a perpendicular dropped from the side of the bridge as it stood when open to permit navigation. There is testimony that these piles were in a very dilapitated condition, that they were very rotten; while one witness testified that the pilings and abutments supporting and protecting the bridge were entirely gone, all but one row of piles. Experts testified that the bridge should have had solid protecting piles projecting beyond the sides of the bridge when it was swung. There is considerable testimony that these piles were weak and would not resist any pressure. On the day in question a steamboat was coming down the river from the north, traveling south in tow of a tug boat. At this time plaintiff, with six youthful companions, was crossing the bridge from west to east. Just about the time they arrived at the west end of the bridge the bell was rung to warn travelers that the bridge was going to be opened to permit passage of tbe steamer. The boys hastened across the bridge, and one of them reached the easterly shore. The others were still a few feet from it when the bridge tender called upon them to assist ip turning the bridge. The bridge was turned by means of a lever, some 16 or 18 feet long, and the boys joined in the work. The bridge should have been turned so that its body would be parallel with the course of the river and resting within the protecting piles, but this was not done, and its then southerly extremity was permitted to project over the protecting piling, and into the channel of the river through which the steamer was coming. The officers of the steamer, evidently foreseeing a collision, slowed down the speed of the boat to about one mile an hour and called to the bridge tender to straighten the bridge, but before this could be done the steamer came in contact with the piling around the bridge. The piles gave way and the steamer struck the bridge, which swayed, rocked and swung around, the southerly end of the bridge swinging towards the east and the northerly end toward the west, so that it projected over the deck of the steamer about six feet and came in contact with the deck house. The collision was severe, some of those on the- bridge being knocked down, and one of them rendered unconscious. At this time the boys were standing on the bridge, and one of them testifies that he thought the bridge was going into the river, as it was “tottering that way.” There is testimony that a police officer stationed at the bridge called to the boys to jump to the boat. The boys did jump, and all of them made it in safety except plaintiff, who was the last to jump. One.of his feet struck the rail of the steamer, and he fell into the river and was drowned.

Plaintiff’s declaration and original counts were upon the theory that the City was negligent in allowing the protecting piles to become so rotted and ont of repair, and also that its servants so carelessly managed the bridge that thereby the collision took place. No contention is made that the City was not negligent in regard to the maintenance and operation of the bridge, and that this negligence did not proximately contribute to the accident. It is further conceded that ordinarily such a bridge is part of the highway, and that if the boys could not have gotten off the bridge but were marooned, they could still claim the same degree of protection as if they were on a highway. But it is argued that when the boys might have gotten across before the bridge started to swing, but returned at the request of the bridgeman, they became mere licensees and not entitled to the same degree of care which the City owes those who use its highways in the ordinary manner. We are referred to no decisions which so hold, and following what seems to us the better reasoning, we are not disposed to assent to this claim.

It has been repeatedly held that children may play upon the highway, and that the City would be liable for its negligence if a child while playing should, without any fault on his'part, be injured by reason of a defect in the highway. City of Chicago v. Keefe, 114 Ill. 222; Village of Bath v. Blake, 97 Ill. App. 35; City of Waverly v. Reesor, 93 Ill. App. 649. The swinging of the bridge did not lessen the degree of care owed by the City to plaintiff, and if plaintiff met his death through the negligence of the City as alleged in plaintiff’s declaration, and plaintiff was not guilty of contributory negligence, the City is liable.

It is urged that plaintiff was guilty of contributory negligence. He was nine years of age and was there in the company of older companions and followed their lead. His remaining on the bridge with the other boys in response to the request of the bridge tender was a very natural thing to do. When the bridge was struck it shook violently, and there is testimony that the police officer shouted to the boys, “Jump for your lives!” "Whether the conduct of plaintiff, of such tender years, both before and after the bridge was struck amounted to contributory negligence was for the jury to determine, and we cannot say that its conclusion was wrong.

The judgment will be affirmed.

Affirmed.


text:
    John F. Higgins, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,018.
    1. Master and servant — ordering dangerous work. Plaintiff was ordered to work in a gang loading old street car rails on a flat car, the rails being raised and heaved over three stakes beside the car. The top of the middle stake was over three inches higher than the end stakes, and the master had had notice of the fact, and a rail in consequence bounded back, crushing plaintiff’s leg. A count alleged negligence in the danger from such high middle stake and in the foreman’s order to throw the rails over such dangerous stake. Held, that the master may be liable as not using reasonable care in furnishing a reasonably safe place to work, and as the greater height of the middle stake was unusual, unnecessary and not obvious, plaintiff cannot be said to have assumed the risk.
    2. Master and servant — gang foreman not fellow-servant. The foreman of a gang loading street car rails on a car, when giving orders to the gang, is not a fellow-servant.
    3. Damages — future sieving. An instruction permitting a jury to take into consideration in fixing damages “such future suffering and loss of health and physical disabilities, if any, as they might believe from the evidence the plaintiff would sustain,” where there is no evidence that the plaintiff whose right leg had been amputated, will ever by reason thereof sustain any future suffering, etc., is not ground for reversal.
    4. Practice — improver remarks of counsel. Improper remarks of counsel for plaintiff in addressing the jury held not of sufficient importance to require a new trial.

      5. iNsranjCTioisrs — order to do dangerous worTc. An instruction to a jury, copied from one given and approved in Yarber v. Chicago & A. R. Co., 235 Ill. 589, regarding the assumption of risk in obeying a foreman’s order to do dangerous work, held applicable to the facts in this case.
    Appeal from the Superior Court of Cok county; the Hon. Theodore Bbektako, Judge, presiding. Heard in the Branch Appellate
    Court at the October term, 1910.
    Affirmed.
    Opinion filed March 13, 1913.
    George W. Miller, for appellant; Leonard A. Busby, of counsel.
    Gallagher & Messker, for appellee.
   Mr. Justice McSurely

delivered tlie opinion of tlie court.

This is an appeal from a judgment recovered by Nicholas Blum, since deceased, for personal injuries received while working for the Chicago City Bailway Company, hereinafter called defendant.

A brief statement in outline of the accident is, that Blum was ordered to work as one of a gang in loading-old street car rails from the ground onto a flat ear. The loading was done at the side of the car, and at the side were three upright stakes, one near each end and one in the middle. The men would lift the rail up and, in response to verbal signals given by a gang foreman, would raise the rail higher until it was near the top of the stakes and then, in response to the signal word “heave,” the men would heave the rail over the top of the stakes onto the car. There was evidence that the top of the stakes was about 5 feet 6 or 7 inches from the ground, but that the middle stake was about 3% or 4 inches higher than the end stakes at the particular car in question. Blum, who had been doing other work with the laborers employed by defendant on the street, was ordered to work with the loading gang. It does not appear that he had ever before done such work, and there was testimony from which the jury might infer that he had never before seen how the work was done. He assisted and succeeded in lifting two rails over the stakes, bnt the third rail although lifted up, it is said, about 5 feet 8 inches, struck the top of the high middle stake, bounded back and fell on Blum, crushing his right leg so that it had to be amputated.

There is testimony to the effect that about 15 minutes before this accident, and before Blum was ordered to work there, another accident of the same kind had happened, caused by a rail striking the high middle stake, with resulting injuries to a laborer, and that the general foreman, after investigating the stakes, had ordered the gang foreman to get the middle stake down; but this order was not obeyed.

It is claimed by defendant that none of the counts of the declaration' was sustained by the evidence. "Whatever may be said about other counts, it is clear that the evidence did sustain the last count, in which is alleged the danger of the high middle stake above described, and the negligence of the foreman in ordering the men to lift and throw the rails over this dangerous stake.

Counsel for appellant argue many points most thoroughly and ingeniously. To notice adequately even a few of the points suggested would be impossible within the limits of an opinion of reasonable length. We agree with every proposition of law as stated in appellant’s brief which is supported by precedent in this state, but we do not see how this affords any escape from liability under the facts before us. We are of the opinion that the gang foreman, Clinton, was not a fellow-servant when giving orders to the gang. Neither can it be said that the master used reasonable care in furnishing a reasonably safe place to work, with the middle stake higher than the others, which fact was made known to the master by a prior accir dent and a consequent investigation, in ample time to have remedied the defect before the accident to Blum occurred. This prior accident and investigation were not known to Blum, and as the greater height of the middle stake was unusual and unnecessary and not obvious, he cannot be said to have assumed the risk. In any event these were matters for the jury to pass judgment upon, and we are unable to conclude that its judgment is manifestly wrong.

It is urged that instruction described as No. 5 should not have been given as not being applicable to this case. The criticism is not well taken. The instruction was applicable as touching the assumption of risk in obeying the order of a foreman to do dangerous work. As to other points of criticism it is sufficient to say that this instruction is almost a copy of one given and approved in Yarber v. Chicago & A. R. Co., 235 Ill. 589 (595), where the facts were similar to those now before us.

Instruction described as No. 6 is criticised because it permitted the jury to take into consideration in fixing the damages “such future suffering and loss of health and physical disabilities, if any,” they might believe from the evidence the plaintiff would sustain, and it is earnestly and strongly arg-ued that there was no evidence that the plaintiff, with the amputated leg, will ever by reason thereof sustain any future suffering, loss of health or physical disability. We are not of the opinion that we should reverse the judgment in this case because this instruction was given. Kennedy v. Swift & Co., 234 Ill. 606.

The alleged improper remarks of counsel for plaintiff in addressing the jury are not of sufficient importance to require a new trial.

As there fails to appear any manifest reason for reversing the judgment, it will be affirmed.

Affirmed.


text:
    Mary Sixby, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,028.
    1. Municipal Court — judicial notice of rules. The Appellate Court takes judicial notice of the rules of the Municipal Court of Chicago.
    2. Municipal Court — objections to oral instructions. Under Municipal Court Rule 8, specific objections to oral instructions are to be made immediately upon the conclusion of the charge and before the jury retires, in order to raise questions as to their correctness in the Appellate Court.
    3. Appeals and errors — filing document certified by cleric. It is not competent for either party, on an appeal, to make part of the record reviewed by that appeal an additional document, certified to by the clerk of the court in which the original judgment was rendered.
    4. Practice — argument of counsel outside of the evidence. In argument before the jury, counsel should not undertake to argue points outside those introduced in evidence, nor assert what he would believe or disbelieve outside of the evidence, nor unjustly-berate or asperse an adversary witness.
    5. Carriers — contracts. A question concerning the character of the contract of carriage of plaintiff while riding on defendant’s street car, held disposed of by the opinion in Chudnovski v. Eckels, 232 Ill. 312.
    6. Damages — excessive. Where plaintiff’s claim of having suffered a Pott’s fracture is clearly against the evidence, a verdict for $2,500 damages is excessive and remittitur of $1,000 will be required.
    Appeal from the Municipal Court of Chicago; the Hon. Henbt C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed upon remittitur otherwise reversed and remanded.
    Opinion filed March 13, 1913.
    C. Le Rot Brown and "W. D. Bartholomew, for appellant ; LeoNard A. Busby, of counsel.
    Thomas E. Rooney and Ferdinand Goss, for ap-pellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment obtained by Mary Sixby, hereinafter called plaintiff, against the Chicago City Railway Company, hereinafter called defendant, for $2,500 as damages for personal injuries received while alighting from a street car owned and operated by defendant.

Defendant’s counsel have moved this court to strike from the files a document heretofore filed by leave of court, on April 17, 1911, purporting to be a certified copy of the rules of the Municipal Court of Chicago. It is not competent for either party, on an appeal, to make part of the record reviewed by that appeal an additional document certified to by the clerk of the court in which the original judgment was rendered. For this and other reasons the motion to strike will be allowed.

Proceeding, then, to the points presented as grounds for a reversal, it is urged that the court’s oral charge was erroneous. To this plaintiff replies that this point is not open to review by this court as no specific objection was made to the oral charge, as is required by the rules of the Municipal Court. To this the reply is made that the rules are not before this court, especially after the motion to strike, heretofore referred to, has been allowed. To this plaintiff rejoins that the statute (sec. 20 Municipal Court Act) requires the Appellate Court to take judicial notice of the rules; and to this defendant answers that the statute is un-consitutional. The Appellate Court, in two cases at least, has already held that we should take judicial notice of the rules of the Municipal Court. Marwick v. Edgar, 170 Ill. App. 167, opinion by Mr. Justice Brown, and Northern Coal & Supply Co. v. Mueller Bros. Fuel Co., 171 Ill. App. 342, opinion by Mr. Justice Clark, and in the interest of uniformity we shall follow these decisions on this point. There is therefore before us Municipal Court rule No. 8, requiring objections to oral instructions to be specific, and to be made immediately upon the conclusion of the charge and before the jury retire. This was not done in this case, and hence no question touching the correctness of the instructions can be raised in this court.

We cannot assent to the claim that the verdict, upon the question of liability, was contrary to the law and the evidence. The opinion in Chudnovski v. Eckels, 232 Ill. 312, disposes of the point concerning the character of the contract of carriage. Plaintiff testified that at the time of the accident she was riding on a street car of the defendant, to which she had been transferred, and no attempt was made by the defendant to contradict either this testimony or her story of the manner in which the accident happened.

It is claimed that the amount of the verdict is excessive. At the time of the accident plaintiff was on her way to call upon a friend. After the injury she walked to the sidewalk and then to the house of the friend, in the same block, and walked up stairs. She remained there an hour or a little more. "While there she complained of her foot hurting, and it was seen to be slightly swollen. She was wearing low shoes with high heels at the time. Some liniment was applied through the stocking. Upon leaving her friend she walked down the stairs and onto the street without assistance, boarded a car, and after leaving the car walked about a half block to her home. A doctor was called, who diagnosed the injury as Potts fracture. Each of the doctors testifying, one for the plaintiff and the other for the defendant, described a Potts fracture as a condition where the small bone of the leg at or near the ankle joint is fractured, with laceration of the ligaments and displacement of the large bone from its attachment at the ankle joint; that in such a case the foot is everted and turned out, the ankle coming down practically on the surface. It also appears that a deformity is always present in a Potts fracture. No such deformity caused by the eversion or turning, out of the foot is present in this case. One of the doctors testified that a person could not walk on a Potts fracture. Plaintiff testified that she worked in various households doing general housework, at which she earned $1.60 a day, and that as a result of the accident she was prevented from earning money from March until the first of August or first of September. In the interval between the time of the street car accident and the trial of this case plaintiff had had another fall, which confined her to the house .for some time. The second fall was caused by her slipping on the ice. From the evidence before us we have reached the conclusion that the injury was not so severe as the jury apparently was led to believe, and that the claim that plaintiff suffered a Potts fracture is clearly against the weight of the evidence, and that the verdict of $2,500 is excessive.

We are also of the opinion that the remarks of counsel for the plaintiff made in argument to the jury touching the evidence of the doctor testifying for the defendant were improper. Counsel should not undertake to argue points to the jury outside those introduced in evidence. As was said in West Chicago St. R. Co. v. Kean, 104 Ill. App. 147: “In argument a lawyer ought not to assert what he would believe or disbelieve outside of the evidence; nor will he unjustly berate or asperse an adversary witness.”

Holding as we do, that the verdict is excessive, we shall order that if plaintiff within ten days after the filing of this opinion shall file a remittitur of $1,000 the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur; otherwise reversed and re- . mamded.


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    J. F. Rowley, Appellee, v. E. H. Erickson Artificial Limb Company, Appellant.
    Gen. No. 17,036.

      Yeedict — what informality harmless. Where a case is dismissed as to one of two Joint plaintiffs, an objection tbat a verdict for plaintiff is defective which, refers to “plaintiffs damages” is hypercritical, since the omission of the apostrophe is merely an informality and is harmless, especially where defendant did not suggest that the jury be instructed as to the dismissal.
    Appeal from the Circuit Court of Cook county; the Hon. Kjckham Scanlah, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 13, 1913.
    Ralph F. Potter, for appellant; Axel A. Eber-hart, of counsel.
    Charles M. Poell, for appellee.'
   Mr. Justice McSurely

delivered the opinion of the court.

The appellee, J. P. Rowley, hereinafter called plaintiff, obtained a judgment against the E. H. Erickson Artificial Limb Company, hereinafter called defendant, for malicious libel, which we are asked to reverse.

It is conceded by counsel for defendant that its president, E. H. Erickson, did certain things designed to injure plaintiff’s business, amounting to malicious libel, but the contention is that such acts were not the acts of the defendant company, and hence it cannot be made to answer in damages. Plaintiff and defendant were both manufacturers of artificial limbs and competitors in the business, the former having his plant in Chicago, the latter in Minneapolis, Minnesota. In January, 1904, an agent of the defendant in Meadville, Pennsylvania, by the name of Young, received a box containing five or ten thousand circulars libeling plaintiff’s business. With the shipment were a letter and a mailing list, with instructions to Young to mail the circulars to the persons named in the list. This was done, either directly or indirectly, through Young. He testified that the letter of instructions was sent by the defendant company; that a check sent at the same time to pay for the stamps for mailing was signed by the defendant company, and that other communications and instructions touching the distribution of the libelous matter were signed by the defendant company. E. H. Erickson was the president and general manager of the defendant. The artificial legs made and sold by it were invented and patented by him, and he seems to have been the responsible head of everything in connection with the business. Defendant’s argument is that what was done concerning the libelous circulars was not done in promoting the company’s business, and therefore not within the scope of the duties of the president and general manager, Erickson. We do not agree with this contention. The libelous matter was an attack on the business of the plaintiff in maldng and selling artificial limbs; it was obviously designed and intended to injure and lessen the trade of a competitor and, if successful, would result in advantage to the defendant company. Erickson’s acts were performed within his duties to increase the business of his company over that of its rival. There was abundant evidence to justify the jury in finding the defendant guilty.

Complaint is made of the refusal by the court to give certain instructions tendered on behalf of the defendant. An examination of these instructions leads to the conclusion that they were properly refused. The first refused instruction omits entirely the element of liability resulting from the act of an agent acting within the scope of his general authority; while the other refused instruction, touching the witnesses testifying, was improper in that it singled out one class of witnesses only, and omitted vital elements which the jury should take into consideration in passing on the weight of the evidence; and it also was improper in its attempt to tell the jury how the “effect” of testimony was to be judged.

The suit was originally commenced by J. F. Eowley individually, and the J. F. Eowley Company, a corporation. At the conclusion of the plaintiff’s case the suit whs dismissed as to the J. F. Rowley Company, and it is urged that the form of the verdict is defective because it refers to the “plaintiffs damages.” We think this objection is hypercritical. At the time the verdict was returned there was but one plaintiff in the case, J. F. Eowley. The omission of the apostrophe amounts merely to an informality and is harmless. Plaintiff was entitled, under the statute, to dismiss one of the joint plaintiffs, and defendant did not suggest that the jury be instructed as to this dismissal.

As we find no error in the record, and holding that the verdict was fully justified by the evidence, the judgment will be affirmed.

Affirmed.


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    John Fanning, Appellee, v. George Brandl and Paul P. Brandl, Appellants.
    Gen. No. 17,040.
    1. Assault — joint judgment. In an action against two defendants for assault, a joint judgment may be rendered against such, defendants.
    2. Damages — when not excessive. A verdict for five hundred dollars is not excessive where plaintiff was sixty years of age when he received a blow on his shoulder blade from which he testified he suffered much pain, and the attending physician testified that there was a swelling around the shoulder blade which in a person of plaintiff’s age would cause pain and weakness in the injured part for life.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlait, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 13, 1913.
    Rehearing denied March 27, 1913.
    Adolph Raphael and JohN C. Wilsou, for appellants.
    JOHN J. CobuRN, for appellee; David T. Alexander, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

John Fanning, hereinafter called plaintiff, recovered a judgment against Paul P. and George Brandi, hereinafter called defendants, in a suit alleging an assault committed by them against him. Defendants seek to reverse this judgment.

The plaintiff, then sixty years of age, got into a dispute with the defendants, coal dealers, in their office after their alleged failure to deliver some coal to plaintiff, which he claimed to have paid for in advance. While remonstrating with them, in language the character of which is disputed, the defendants, as plaintiff says, shoved and pushed him towards and outside the door, and when he reached the edge of the doorway the defendant George Brandi struck plaintiff a swinging blow with his clenched fist on the shoulder blade. Any attack on plaintiff is denied by the defendants and two other witnesses, who were present at the time, and it is claimed that the only thing which occurred was that George Brandi took plaintiff by the arm and led him outside.

The point urged by counsel for defendants, that the verdict is contrary to the weight of the evidence, involves the credibility of the witnesses. Upon this question we necessarily must rely chiefly upon the judgment of the jury and the trial court. One uncon-tradicted circumstance tending strongly to corroborate plaintiff’s story of the blow was the presence, within a short time after the occurrence, of marked indications npon plaintiff’s body of a severe blow at the point where be says be was struck by one of tbe defendants. Furthermore, cross-examination of the witnesses for the defendants, other than the defendants themselves, developed that for a short space of time, while plaintiff and the defendants were together near the door, the witnesses could not see them and hence could not know what occurred at that instant. After consideration we see no reason to disturb the conclusion of the jury as to the guilt of the defendants.

The contention that no joint judgment against the defendants can be rendered herein is answered by the rule as stated in Wabash St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364 (381): “Where one has received an actionable injury at the hands of two or more wrongdoers, all, however, numerous, are severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff in such a case has his election to sue all jointly, or he may bring his separate action against each or any one of the wrongdoers.” And in Lynch v. City of Chicago, 152 Ill. App. 160, the court quotes with approval from Washington Gaslight Co. v. Lansden, 172 U. S. 534: ‘ ‘ Those of the wrongdoers who are sued together and found guilty in an action of tort are liable for the whole injury to the plaintiff, without examining the different degrees of culpability.”

The verdict was for $500, and we cannot say that it was excessive. Plaintiff testified that he suffered much pain, and the doctor treating him testified that there was present a swelling around the shoulder blade, which in a person of the age of plaintiff would cause pain and consequent weakness in the injured part as long as the patient lived. In Chicago & A. Ry. Co. v. Tracey, 109 Ill. App. 563, the court said: “It was for the jury to assess the damages, and in doing so they might allow compensation for the pain and suffering undergone by Mm as a result of the blows inflicted, and for the humiliation, indignity, vexation and disgrace put upon him by the conduct and acts of his assailant. Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185.”

We find no abuse of discretion on the part of the trial court in cross-examining the witnesses. By means thereof material circumstances were developed which otherwise might not have appeared.

'The criticisms made against instructions are not of sufficient importance to warrant a reversal.

We find no error in the conduct of the trial, and no manifest reason for setting aside the verdict of the jury, and therefore the judgment will be affirmed.

Affirmed.


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    In re Estate of B. Stepan, Deceased. On Appeal of Madlena Stepan, Executrix, Appellant, v. Rosa Svoboda, Appellee.
    Gen. No. 17,046.
    1. Fratebkai, benebiciart societies — waiver of Imitation as to beneficiaries. Where a fraternal beneficiary organization has issued a certificate to a member, wherein it agreed to pay the benefit on the death of such member to a cousin of the member’s husband, and the statute of Ohio under which the society was organized provides that “payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent upon such members,” and the by-laws of the society restrict such beneficiaries to the “rightful heirs” of the member, the society waives such limitation in its by-laws by promising to pay the benefit to such beneficiary and by making the check payable to the joint order of such beneficiary and the widower of the member, and when such widower has obtained possession of the money, he and his executrix cannot be heard to invoke the limitation in the by-laws as a ground for withholding the money from the beneficiary, in an action for money had and received, tlie latter being, under the organic Ohio law, a relative by marriage of such member.
    2. Assumpsit — money had and received. An action for money had and received will lie whenever one person has received money which in justice belongs to another and which in justice and right should be returned.
    3. Iittbeest — remittitur. Where the amount of interest wrongfully allowed can be determined, a remittitur will be required as a condition to affirmance.
    Appeal to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate
    Court at the October term, 1910.
    Affirmed upon remittitur otherwise reversed and remanded.
    Opinion filed March 13, 1913.
    Charles R. YouNG, for appellant Madlena Stepan.
    DeWitt C. Jones, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court allowing the claim of Rosa Svoboda, appellee, against the estate of Bartholomew Stepan, deceased. The case was tried by the court on a stipulation of facts. In July, 1906, Marie Stepan, wife of Bartholomew Stepan, became a member of the Bohemian Roman Catholic First Central Union of Women (hereinafter called the Society), a fraternal organization incorporated under the laws of Ohio, and received from it the certificate of such Society, in and by which the Society agreed upon the death of said Marie Stepan to pay the sum of $1,000 to Rosa Svoboda, appellee, described in said certificate as, “My Cousin.” In April, 1908, Marie Stepan died, and both Bartholomew Stepan, the husband, and Rosa Svoboda claiming the death benefit, the Society paid it by a check payable to the joint order of the two claimants. By some arrangement between the claimants Stepan got possession of the money, although Rosa Svoboda claimed it but never received any of it. Rosa Svoboda and Stepan are cousins by blood. He died in October, 1908, and thereupon she filed ber claim against bis estate for $1,000, which was allowed by the Circuit Court.

Appellant claims that this judgment was wrong for the reason that under the by-laws of the Society ap-pellee could not receive the death benefit. The provision of the by-laws referred to is as follows: “Upon the death of a fellow member who is entitled to a death benefit the Women’s Eoman Catholic Central Union will pay to the rightful heirs of the deceased, such amount as has been fixed at the last regular convention.” Hence it is said that appellee not being one of the “rightful heirs” of Marie Stepan, she cannot receive the death benefit. That the law of Ohio controls the construction to be given the certificate is argued by both counsel. The provision of the Ohio statute touching beneficiaries in such organizations is as follows: “The payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent upon such members.”

Appellee was a relative by marriage of Marie Stepan, and therefore, in our opinion, should come within one of the classes of persons which under the organic law of the Society were entitled to be named as the recipients of death benefits. Conceding the right of the Society to adopt the by-law above set out, thereby restricting the beneficiaries to the classes named therein, yet the Society retained the right to waive any provision of the by-law and do any act not inhibited by the statute. In this case the Society waived any limitation the words “rightful heirs” might convey, and promised to pay the death benefit to appellee, a relative by marriage of Marie Stepan. They also did in effect pay the money to appellee, although jointly with Bartholomej Stepan, thus again waiving any limitation as to her, implied from the language of the by-law. The society having never invoked the by-law as a ground for declining to pay ap-pellee, but by its affirmative acts having waived any claim of ineligibility as to her, appellant cannot he heard to invoke the limitations contained in the bylaw as a ground for withholding the money from her. In our opinion this is the controlling question involved.

This is a suit for money had and received, and as the Supreme Court said in Wilson v. Turner, 164 Ill. 398 (403): “An action for money had and received will lie whenever one person has received money which, in justice, belongs to another, and which, in justice and right, should be returned.”

The judgment of the Circuit Court was right, although we are not of the opinion that interest should have been allowed. As this is a case where the amount of the interest can he determined, the order will he that if appellee shall within ten days after the filing of this opinion enter a remittitur of $75, the judgment will he affirmed; otherwise the judgment will be reversed because of the error in the allowance of interest.

Affirmed upon remittitur; otherwise reversed a/nd remanded.


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    W. L. Doggett, H. E. L. Doggett and A. M. Doggett, Trading as W. L. Doggett & Brothers, Appellees, v. Charles Ruppert, Appellant.
    Gen. No. 17,962.
    1. Brokers — questions for jury. Where plaintiffs had been employed by defendant to secure a purchaser for a leasehold and procured a prospective purchaser, to whom the sale was finally made, the questions whether their employment had then ceased or whether their services were the procuring cause of effecting the sale, and whether they were acting in good faith, were all for the jury, and verdict for plaintiffs will not be disturbed.

      2. Appeals and ebrors — objections as to parties. Where a co-partnership brings suit and one member is not joined as a party, it is too late to raise tbe point of sucb nonjoinder in tbe Appellate Court, and where tbe assignment of error has been made on tbe point, it is not before tbe court.
    3. Appeals and eebobs — general assignment of error. A general assignment of error that tbe court erred in denying defendant’s motion to find for tbe defendant is not sufficient.
    Appeal from tbe Municipal Court of Chicago; tbe Hon. Isidore H. Himes, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    Henry S. Wilcox and Jesse Wilcox, for appellant.
    Bradley, Harper & Eheim, for appellees.
   Mr. Justice McSurely

delivered tbe opinion of tbe court.

Tbis is a suit for services rendered by A. M. Dog-gett, a member of tbe firm of appellees, real estate brokers, for Charles Ruppert, appellant, at bis instance and request. Tbe case was tried by tbe court and a jury, and appellees obtained a verdict and judgment for $2,500, wbicb we are asked to reverse.

Tbe transaction involved was tbe sale of tbe leasehold of tbe northwest corner of Quincy street and State street, in Chicago, wbicb was owned by appellant. Tbe evidence proved that appellant employed A. M. Doggett to secure a purchaser of tbe leasehold; that Doggett brought one Jacob Kesner to appellant as a possible purchaser; that negotiations back and forth between appellant and Kesner were carried on for a considerable time, in wbicb Doggett took an active part, and that finally Kesner did buy tbe leasehold. Appellant claims that Doggett was not tbe procuring cause of tbe sale but that bis employment had ceased, and that the sale to Kesner was brought about through other causes than through the services of Doggett. Considerable testimony wbicb it is argued supports tbis claim was presented to tbe jury. It is not necessary to narrate it in this opinion. After giving careful consideration to tlie record before us, we are unable to say that tbe conclusion of tbe jury was against tbe weight of tbe evidence. Tbe question whether tbe services and efforts of Doggett were tbe procuring cause of effecting tbe sale to Kesner, was a question of fact for tbe jury, and upon tbe record before us its verdict should not be disturbed. Reed v. Young, 146 Ill. App. 210; Hafner v. Herron, 165 Ill. 242; Rigdon v. More, 226 Ill. 382.

Tbe point is made that Doggett did not act in good faith towards appellant, but apparently tbe jury thought otherwise, and tbe evidence presented as supporting this claim of bad faith is not convincing.

Some complaint is.made of tbe rulings of the court upon tbe evidence, but nothing appears sufficiently serious to require a reversal.

Tbe suit was commenced by W. L. Doggett, H. E. L. Doggett and A. M. Doggett, doing business as W. L. Doggett & Brothers, while tbe evidence shows that one O. J. Doggett was also a member of tbe firm, and it is argued that this nonjoinder bars a recovery. We do not agree with this contention, for it comes too late to raise this point for tbe first time in tbe Appellate Court. Spraker v. Ennis, 78 Ill. App. 446; Johnson v. Richardson, 17 Ill. 302. Furthermore, no assignment of error is made on this point, and therefore it is not before us. Swift & Co. v. Fue, 167 Ill. 443.

Tbe general assignment of error that tbe court erred in denying defendant’s motion to find for tbe defendant is not sufficient. Stanley v. Chicago T. & S. Bank, 61 Ill. App. 257; Prairie State Loan & Bldg. Ass ’n v. Gorrie, 167 Ill. 414; Berry v. City of Chicago, 192 Ill. 154.

Finding no reversible error in tbe record, tbe judgment is affirmed.

Affirmed.


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    Myrtie S. Bennett, Appellee, v. Eugene Huss, Administrator, Appellant.
    Gen. No. 17,970.
    1. Negotiable instruments — agreement as to payments. Where a promissory note contains the words “Qualified hy agreement of even date herewith attached hereto,” and at the same time and as part of the same writing the parties agree that certain goods to he delivered by the payor shall be received in payment of the note, the original promise is not altered because of the method of making payments, and the note is still a promissory note.
    2. Justices of the peace — contracts. In an action before a justice without pleadings on a note and an agreement of even date made as part of the same writing, whereby certain goods to he delivered by the payor were to he received in payment, one who signed the note is liable for the breach of contract if the goods were not delivered as agreed, regardless of whether the instrument is a note.
    3. Costs — supplemental abstract. Where a judgment is affirmed on appeal the cost of appellee’s supplemental abstract may he taxed against appellant where it seems that such abstract was necessary.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard jn the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    Gallagher & Messner, for appellant.
    At,ANSON 0. Noble, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment of $250 obtained by appellee against Matthew J. Huss, since deceased. The facts, stated very briefly, are, that appellee on November 1, 1902, sold a number of partly finished pianos and materials for pianos to the Schmidt & Schultz Company, piano manufacturers, and received in return a promissory note of that date for $600, signed by the purchasers and Matthew J. Huss, who was their attorney. At the same time and as part of the same writing as the note, they contracted to deliver to appellee certain pianos, which she was to receive in payment of the note at specified prices. A portion only of these pianos was delivered, and the Schmidt & Schultz Company having failed to deliver the remainder provided for in the contract, Matthew J. Huss was sued for the balance due, after crediting the note with the pianos delivered. The paper was drafted by Mr. Huss in his office, with certain changes made in the handwriting of the attorney for appellee in Mr. Huss’ office. Mr. Huss testified that he was asked by appellee’s attorney at the time to sign as surety, and that he replied, “Tes, I will.” The note contains the words, “Qualified by agreement of even date herewith attached hereto,” referring to the above described contract. It is argued that because of these words the instrument is not a promissory note.

We see nothing in the contract attached to the note but an agreement and a method for paying the note. The note contains the words, “ On or before December 25th, 1902, after date for value received, we promise to pay,” etc. This original promise was not altered or modified because of the method agreed upon for making payments. There was no condition in the agreement which might operate to make void the obligation to pay. We cannot agree with the contention that the note was not a promissory note.

It is urged that the defendant, Huss, was released by a change of the contract, made without his consent. The argument seems to be that under the terms of the contract the note was to be paid in pianos, to be delivered by December 25, 1902, and the evidence shows that there was delay in making these deliveries, that one piano was delivered in December, one in January, and one around the first of February. We are of the opinion that the evidence amply justifies the conclusion that Mr. Huss knew of the delays and requested Mrs. Bennett for an extension of time, assuring lier that he would pay the note in the event that the Schmidt & Schultz Company should fail to do so.

Begardless of the points suggested by the appellant, the defendant, Huss, would still be liable upon the note and contract. The suit was begun before a justice of the peace, without pleadings, and plaintiff was entitled to a judgment against the defendant for a breach of the contract whether the instrument was a promissory note or not.

Counsel for appellee asks that appellant be taxed with the costs of appellee’s supplemental abstract and with the statutory penalty. We are not disposed to impose the statutory penalty, but as the supplemental abstract seems to have been necessary because of the omission of material matters from the original abstract, the costs of the supplemental abstract will be taxed against the appellant, and the judgment of the trial court will be affirmed.

Affirmed.


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    Peter Schwarz, Appellee, v. August F. Poehlmann and Charles Peschke, Appellants.
    Gen. No. 17,984.
    1. Criminal law — deadly weapon. A piece of rut)tier hose about 21 inches long and 1% inches in diameter, one end of which is plugged with a piece of wood 3% inches long and the other with a similar piece 1% inches long, is per se a deadly weapon within the meaning of the Criminal Code.
    2. False imprisonment — instructions. In an action for false imprisonment, where the evidence tends to show that plaintiff made threats against defendant and was arrested while carrying a deadly weapon, instructions are improper and present immaterial matters where they indicate that verdict should he for plaintiff if the jury believe that he was carrying such weapon to make an attack on tramps and not on defendant.

      3. Areest — when justified. Where a Tillage marshal hears that a person has made threats to “get even” with another and finds such a person, carrying a deadly weapon, the marshal may arrest such person without waiting for an attack to he made.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1913.
    Todd & Plummer, for appellants; James Todd and WhartoN Plummer, of counsel.
    Wiley W. Mills, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit brought by the appellee, Schwarz, claiming damages for an alleged false imprisonment. He recovered a judgment for $500, from which this appeal is taken.

Appellant Poehlmann at the time of the occurrence in issue was the president of the village of Morton Grove, Cook county. Peschke was the village marshal. About September 20, 1908, Poehlmann and the appel-lee, Schwarz, had an altercation, in which Schwarz was worsted. The testimony tends to show that on the evening of September 27th Schwarz, with a friend named Collins, was drinking in a saloon run by Schwarz’s brother, and that he there made threats against Poehlmann, indicating an intention to obtain revenge by “getting even” for the injuries he had received at the hands of Poehlmann. The bartender gave Schwarz and Collins each a piece of rubber hose, and they left the saloon together. The piece of hose carried by Schwarz is attached to the record as an exhibit. It is the ordinary rubber hose, about 21 inches long and 1% inches in diameter. One end is plugged by a piece of wood 314 inches long, and the other by a similar piece of wood 1% inches long. The end with the smaller piece of wood is evidently intended as the handle. It was made some time before this by Schwarz while tending bar for his brother, and he says its purpose was “to protect himself in case of a fight.” The threats of Schwarz and the fact that he had armed himself with this weapon were shortly thereafter communicated to Peschke, the marshal, who found Schwarz in another saloon and arrested him and locked him up in jail. Poehlmann was also told of Schwarz’s conduct, and told Peschke to place Schwarz under arrest, and was informed that that had already been done. As there must he another trial, we have narrated only the briefest outline of the occurrence.

By the criminal code, division VI, section 4, it is provided that “An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.” It follows, therefore, that Peschke or Poehlmann was authorized to arrest Schwarz for committing a criminal offense, if his conduct at the time amounted to such an offense. Paragraph 54-a of division 1 of the criminal code provides that “whoever shall have in his possession * * " any slung-shot or metallic knuckles, or other deadly weapon of like character, or any person in whose possession such weapons shall be found, shall be guilty of a misdemeanor. ’ ’

Is the weapon, admittedly in Schwarz’s possession when he was arrested, a “slung-shot or other deadly weapon of like character?” Webster’s dictionary defines a slung-shot as “a small mass of metal or stone fixed on a flexible handle, strap, or the like, used as a weapon.” In Cyc., vol. 13, page 283, a deadly weapon is said to be “any weapon likely to produce death; any weapon or instrument by which death may be produced; a weapon dangerous to life, likely to produce bodily injury from the use made of it, likely to pro-chice death or great bodily harm * * * a weapon or instrument as is made and designed * * * for the destruction of life, or the infliction of injury.” In McNary v. People, 32 Ill. App. 58, a deadly weapon was said to he a weapon likely to produce death or great bodily harm by the use made of it, and it was held that the term “club” imports a deadly weapon. In Sleeting v. Supreme Tribe of Ben Hur, 161 Ill. App. 449, it was held that a large bottle was a deadly weapon within the meaning of the law making an assault with a deadly weapon a criminal offense.

We have heretofore described the weapon in Schwarz’s possession, and have given it careful inspection and examination, and are convinced that both in popular and legal signification it is per se a deadly weapon, and a deadly weapon of like character as a slung-shot, and within ,the scope of the statute above mentioned. Appellee admits that it is a weapon, and that he was carrying it as a weapon, but for the pur-: pose of an attack on other persons than Poehlmann. The case was tried apparently upon the theory that the sole issue was as to the motive of Schwarz in having this weapon in his possession. The jury was instructed so as to lead it to understand that it should render a verdict for the plaintiff, Schwarz, if it should believe that he was carrying the deadly weapon for the purpose of making an attack on some tramps instead of an attack on Poehlmann. Schwarz’s claim was that he was carrying this weapon for the purpose of making an attack on these tramps, but the record discloses neither any reason for or authority in him to do this. It was not necessary for the marshal to wait until the attack had been made before making the arrest.

Holding as we do, that the jury was wrongly instructed, and thereby an immaterial issue presented, and that appellants did not receive a fair trial upon the real issues involved, the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Wanda Schindler, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 17,997.
    1. Carbiebs — duty to provide safe exit. A carrier is bound to use the highest degree of care and skill reasonably practicable in providing passengers with a safe means of exit from the station.

      ?„ Carriers — unusual accident. Where plaintiff in a personal injury action, after leaving defendant’s train, stumbles on a bolt while passing through the exit turnstile, it is immaterial in determining defendant’s liability that thousands of people had passed through without stumbling.
    Appeal form the Superior Court of Cook county; the Hon. Harry C. Mobaw, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    CalhouN, Lyeord & Sheeah, for appellant; Johk C. DeeNNAN and Edward W. Rawlihs, of counsel.
    Gallagher & MessNer, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Mrs. Wanda Schindler, hereinafter called plaintiff, obtained a verdict for $4,500 as damages for personal injuries sustained by her while passing through a turnstile at the 63rd street station of the Illinois Central Railroad Company, hereinafter called defendant. The court required a remittitur of $2,000, and entered judgment for $2,500, from which this appeal is taken.

On the day of the accident, August 8,1909, plaintiff, with her husband, their three children and a friend, was a passenger on one of defendant’s trains from Randolph street, in Chicago, running south. The party left the train at the 63rd street station and started toward the street, passing through one of the exit turnstiles maintained by tbe defendant, -wbicb it is necessary for passengers to use in leaving tbe station. Tbis turnstile is tbe ordinary iron turnstile used at tbe suburban stations of tbe defendant. It turns in a bind of upright framework supported by iron posts wbicb are bolted or spiked to tbe floor. It is claimed by plaintiff that just as sbe turned to enter tbe turnstile sbe tripped on one of these bolts wbicb protruded above tbe floor. Tbe distance from tbis bolt to tbe base plate of tbe pivot-post of tbe turnstile is 18% inches. Tbe bolt protruded one inch above tbe plate, wbicb is said to be one-balf inch in thickness, making tbe bolt-bead 1% inches above tbe level of tbe floor upon wbicb plaintiff walked. Sbe says that when sbe struck her foot against tbe obstruction in tbe floor sbe fell in tbe turnstile. That tbe accident happened substantially in this manner is corroborated by other witnesses and by circumstances in evidence. Tbe jury was justified in accepting tbis version of tbe occurrence rather than that contended for by tbe defendant.

As stated in her original declaration, tbe theory of tbe plaintiff was that sbe bad tripped upon a nail or spike projecting from tbe board floor; but during tbe trial, prompted thereto, it is said, by the failure of tbe evidence to support tbis theory, plaintiff filed an additional count, alleging tbe presence of tbe protruding bolt in tbe passageway, and that it was tbe obstacle over wbicb sbe tripped and fell. Counsel for defendant urge that plaintiff’s evidence shows that sbe did not stumble over any nail in tbe boards, but that sbe did stumble over tbe bolt-bead, and that tbis bolt-bead was in a position where it was practically impossible for anyone to stumble against it, and that tbe turnstile with it in that position bad been used with safety for many years by thousands of people. We fail to see bow this claim affects tbe liability of defendant. Plaintiff was a passenger, and tbe defendant was bound to use tbe highest degree of care and skill reasonably practicable in providing her with a safe means of exit from tlie station. From tlie evidence of tlie protruding bolt in tbe very narrow floor space for passageway tbrongb tbe turnstile, tbe jury was amply justified in concluding tbat tbe defendant bad failed in its duty and tbat it was guilty of tbe negligence charged.

What we bave heretofore said as to tbe cause of tbe accident disposes of tbe point tbat tbe verdict is manifestly against tbe weight of tbe evidence. ¥e see no reason to differ from tbe finding of tbe jury on this point.

It is said tbat tbe verdict was so excessive as to show that it was tbe result of passion and prejudice. Plaintiff was 24 years old at tbe time of tbe accident and bad been married about five years. She bad given birth to three children and on tbe date in question was advanced about three months in pregnancy. She testified tbat when she fell she struck tbe left side of her body on tbe turnstile and received a severe pain. She was taken home and went to bed and suffered a miscarriage tbe ninth day thereafter, and remained in bed for three weeks. Prior to tbe accident she was a healthy woman and never bad any pains during tbe menstrual period. Since tbe accident she has suffered from painful menstruation, and tbe medical testimony shows tbe left ovary prolapsed and tbe uterus retro-flexed. The páins from which she suffers are on tbe left side. Tbe medical testimony is to tbe effect tbat a surgical operation will be required to correct tbe ovarian condition. There is other evidence tending to show a condition of nervous .exhaustion and inability to perform tbe housework which plaintiff bad been accustomed to doing. With this evidence before us we are unable to assent to tbe claim tbat tbe jury was improperly influenced in returning its verdict.

Complaint is made of tbe giving of instruction No. 5, to which it is a sufficient reply to say tbat this is a passenger case, and tbe cases cited by tbe defendant where such an instruction was held,improper are not in point. There was no error in giving this instruction in this case.

Finding no reversible error in the record and holding, as we do, that the verdict was fully justified by the evidence, the judgment will be affirmed.

Affirmed.


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    Adelheid Friend, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 18,012.
    1. Cabriebs — conditllon of cars. In a personal injury action it is a question for the jury whether defendant carrier in permitting loose pieces of matting to be in the aisles of the car exercised the highest degree of care.
    2. Appeals and errors — waiver of right to assign error. By pleading the general issue to an amended count, defendant waives the right to assign error upon the ruling of the court in sustaining the demurrer to the plea of limitations.
    3. Damages — excessive. $7,500 remitted to $5,000 held not excessive for severe internal injuries to woman of fifty-two.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    W. H. Haight and AddisoN L. CardNeb, for appellant.
    Adolph Kraus, Samuel Alschuler, Charles E. Holder and Thomas J. Lawless, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment of $5,000 for personal injuries. On August 20, 1906, Mrs. Adelheid Friend, hereinafter called plaintiff, fell on the floor of an elevated railroad car, owned by the defendant, as it was standing still at the Madison street and Wabash avenue station in Chicago. She was at this time 54 years of age and weighed 220 pounds. She was a passenger on the car and had just arisen from her seat near the middle of the car to go to the door to alight when the accident happened. The floor of the aisle of the car was covered with matting, in two long pieces each 20 inches wide and 13 feet 7 inches long, laid side by side along the length of the aisle. This matting was made of heavy woven rope material about an inch in thickness, and extended from the door of the car back towards its middle to the cross seats, where they joined other pieces of matting laid in the aisle between the cross seats. Between the outer edge of the long mats and the legs of the side seats next the aisle there was a clear floor space of 5% inches on each side. The long mats were not fastened in any way and there was nothing to prevent them from being pushed or moved by the feet of passengers either backward or forward into the floor space under the seats, or forward and over each other. There was evidence tending to show that the pieces of matting in the aisle at the time of the accident in question were five or six inches apart, and one side turned up about two inches. Plaintiff testified that her foot got caught under this rope matting, which caused her to fall.

Defendant claims, as one of its points relied upon for reversal, that the court erred in refusing to direct a verdict for the defendant. We cannot agree to this claim. Plaintiff was a passenger, and therefore defendant was bound to exercise towards her the highest degree of care. Whether the conduct of defendant in permitting loose, shuffling pieces of matting to be upon the floor of the car in the aisles was the exercise of the highest degree of care, was properly a question for the jury to decide. The jury was properly and fully instructed upon the law touching the negligence of the defendant and under what circumstances the conduct of the plaintiff would prevent a recovery. The jury concluded that the defendant failed in its duty towards plaintiff and that plaintiff did nothing amounting to negligence winch contributed to tbe accident, and we cannot say that this conclusion is manifestly against tbe weight of tbe evidence.

"We do not agree with tbe contention of tbe defendant that tbe defendant was required to exercise only ordinary care in tbe maintenance of tbe car floors and coverings thereon. Illinois Cent. R. Co. v. O’Connell, 160 Ill. 636.

We find no error in tbe action of tbe trial court in permitting plaintiff to amend tbe sixth count. Tbe amendment stated practically tbe same elements contained in other counts. Furthermore, by filing tbe plea of tbe general issue to tbe amended count tbe defendant waived tbe right to assign error upon tbe ruling of tbe court in sustaining tbe demurrer to tbe plea of limitations. Chicago & A. R. Co. v. Clausen, 173 Ill. 100. Tbe abstract gives no information as to tbe date tbe amendment was made, therefore we can not determine tbe propriety of tbe plea of limitations.

Tbe modification of instruction No. 35 complained of was made to state tbe law more accurately, and tbe instruction as modified was entirely proper. There was no error in refusing instructions Nos. 36, 37 and 38. No. 36 was a repetition of tbe matter contained in other instructions, and 37 and 38 directed a verdict based upon an improper instruction as to tbe degree of care required of tbe defendant. They also ignored elements contained in certain counts.

Tbe most serious contention concerns tbe amount of tbe verdict. Tbe jury awarded $7,500, which was remitted to $5,000. There was evidence tending to show that plaintiff’s injuries were a swollen and inflamed left leg, including foot, instep and knee, with pain extending up to tbe hip. Tbe X-ray shows as a result of this injury a kind of callous growth on tbe instep, which tbe doctor says is permanent and that pain will continually be present. ■ Plaintiff herself testifies that she still suffers with pain in tbe hip. It is also claimed that plaintiff is suffering from an aggravation of bladder trouble induced by tbe accident. There was evidence tending to show that for some years before the accident plaintiff suffered with a pouching of the bladder, which condition is called a cystocele, and that this condition was caused by giving birth to many children. After the accident this condition seemed to be aggravated, and the family physician testified that he first discovered after the accident that the plaintiff had inflammation of the bladder, which is a different disease from cystocele; that he had examined her before the accident but discovered no inflammation, although it may have been present. Her condition not improving, about three years after the accident she was operated upon by a surgeon, who testified that he found an ulcer of the bladder as well as inflammation, and that at this time he found what he calls a plug of fat from the inside of the abdomen protruding into the bladder. There were other statements made by the doctors indicating that the fall produced a rupture of the bladder through which this plug or portion of the fat of the abdomen intruded. There seems to be little doubt but that plaintiff some years after the accident was found to be in a very serious condition internally. Nearly all of the doctors, including those who appeared for defendant, testified that her condition at the time of the accident would have a tendency to be aggravated by the fall. The questions as to the extent of the injury to the leg, and as to whether the fall aggravated the previous condition of cystocele, and whether the rupture and ulcer of the bladder were induced by the fall, were purely for the- jury and the trial court to pass upon, and we cannot say that their conclusion was clearly unwarranted from the testimony. After cáreful consideration of the evidence we are unable to conclude that the amount of the judgment is excessive.

For the reasons above indicated the judgment is affirmed.

'Affirmed.


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    Nicola Neroni, Appellee v. Inland Steel Company, Appellant.
    Gen. No. 18,024.
    1. Master Aíro seevaiít — roiling mills. While plaintiff, an employe in defendant’s rolling mill, was going along what was ordinarily used as a passageway, a red hot angle iron came from a roller and struck the edge of an overlapping plate constituting part of the floor, and curled back around his legs, and when he jumped to avoid this, he landed in front of a trough, from which a hot angle iron came out, striking and burning his right leg. Held, that the plaintiff did not assume the risk, nor was he guilty of contributory negligence as a matter of law, and there is sufficient basis in the evidence for the jury to conclude that his conduct with reference to the path he pursued and when he jumped did not constitute contributory negligence, that he was on a passageway and that he did not assume the risk of the unusual and extraordinary occurrence of the red hot iron running across the passageway.
    2. Limitations — amended declaration. Where the gist of the action is the same in the original and an amended declaration, the amendment does not state a new cause of action vulnerable to the plea of the statute of limitations.
    Appeal from the Superior Court of Cook county; the Hon. Far-I.IN Q. Ball, Judge, presiding. Heard in the Branch Appellate
    Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    John A. Bloomingston, for appellant.
    Stedman & Soelke, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment for $1,500 for personal injuries received by Nicola Neroni, hereinafter called plaintiff, while in the employ of the Inland Steel Company, hereinafter called defendant. The accident happened on August 7,. 1906, in the rolling mill of defendant located at Chicago Heights. This plant is abont 400 feet long, running north and south, and 200 feet wide. About midwáy on the east side of the building there are doors, which are usually open. There is a battery of rollers running east and west about half way across west of the east line of the building. Bars of red hot angle iron are pushed or run through these rollers in a northerly direction across what is called the “rolling floor,” up to a passageway on the north end of the “rolling floor.” This “rolling floor” is composed of pieces of plates of iron or steel lapping with the ends and frequently projecting one over the other, which condition had prevailed for some time previous to the date of the accident. This “rolling floor” runs a distance from the rollers north about 50 feet, at which place there are “cooling-beds,” which are about three feet wide and ninety feet long, running north and south. The so-called passageway lies between the “cooling beds” and the end of the troughs or channels into which the iron runs as it comes from the rollers. There are no sanitary arrangements in the center of the building, neither is there any method of furnishing drinking- water to employees in the building. The angle iron passing-through the rollers is about 1/16 of an inch in thickness, and men are employed to take the rails as they come through the rollers and carry them to the next rollers. This process is repeated until the iron is pressed into its final shape. Near the trough are stationed men with tongs to take the iron from the trough to the “cooling beds.” Outside the side door is a drinking-water faucet, used by the men. In reaching this faucet, or in leaving the building for any purpose, the men walk to the passageway in front of the rollers and east to the door. Plaintiff was employed 26 hours before the accident happened, to work in the middle of the shop. The first night and the following day he procured drinking water from the furnace room at the south end of the factory. This water is described as “warm and no good.” On the day of the accident, when going to the furnace room for a drink, the foreman motioned to him to go east, indicating the open doorway. Plaintiff walked hack to his place of employment, worked a few minutes, then went south to the passageway above described, thence east along the passageway towards the door. While doing this a red hot angle iron came from one of the rollers and ran across the passageway in front of plaintiff and struck the edge of a plate constituting part of the floor, curling back and around plaintiff’s legs. To avoid this he jumped, landing‘in front of one of the troughs, from which a hot angle iron came out, striking him and burning his right leg from the knee to the ankle joint, extending to the bone.

This case has been tried four times. Defendant’s counsel earnestly urges upon this court that the evidence does not sustain the verdict, and this claim seems to be based upon the apparent discrepancies in the testimony of the witnesses upon the different trials. Plaintiff claims that whatever discrepancies may appear were occasioned by the fact that many interpreters were used in the first and second trials on account of the different Italian idioms spoken by the witnesses, but that on the third and fourth trials competent interpreters were used. As this point goes to the credibility of the witnesses, and the alleged discrepancies were brought to the attention of the jury, together with whatever explanation thereof which might be made, we are of the opinion that it was peculiarly for the jury to pass upon, and that this court would not be justified in reaching a different conclusion from that indicated by the jury in its verdict.

The question of assumed risk is also ordinarily one for the jury to determine. Plaintiff assumed the risk of the ordinary and obvious dangers incident to his employment, but the evidence before the jury tended to show that the crossing of the passageway by the hot angle rail was not an ordinary occurrence. While counsel for defendant argues that this is not a pas-. sageway, yet from the evidence showing the nsnal and ordinary nse made of this part of the floor, and considering that it was apparently the only means by which one could cross from the west to the east side of the building to the door, without jumping over the troughs or “cooling beds,” there was sufficient basis for the jury to conclude that it was a passageway. We cannot say that plaintiff assumed the risk of the unusual and extraordinary occurrence of the red hot iron running across the passageway, and must leave the conclusion of the jury upon this point undisturbed.

There is no merit in defendant’s claim that there is a variance between the allegations of the declaration and the proof. The evidence did not show that the bar in question went clear across the passageway into the hot beds and there struck an obstruction, but rather that the obstruction which it hit was in the passageway and that the obstruction was the overlapping edge of one of the floor plates.

Neither is there any merit in the claim that the court erred in sustaining the demurrer of the plaintiff to defendant’s plea of the statute of limitations, for the amendment did not state a new cause of action. The gist of the action was the same both in the original declaration and in the amendment. We see no reason to dissent from the conclusion of the jury as to whether or not plaintiff was guilty of contributory negligence. We cannot say that he was so guilty as a matter of law. His conduct at the time, both with reference to the path he pursued in going towards the door and when he jumped to avoid the bar, was a proper subject for the consideration of the jury as to whether this constituted contributory negligence on his part.

We have given consideration to the point urged concerning the admission and rejection of testimony and the giving and refusing of instructions, but are of the opinion that no reversible error was committed in these.

Finding no sufficient reason for concluding that tlie verdict of tlie jury upon the controverted points is manifestly against the weight of the evidence, and there being no reversible errors upon the trial, the judgment is affirmed.

'Affirmed.