author: Me. Justice Willis

text:
    Charles Aetitis, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 5,154.
    1. Jury trial—what appropriate examination of talesmen. In an action on the case for personal injuries, it is permissible for the plaintiffs counsel to inquire of the talesmen as to whether or not they are interested in any casualty company which insures employers of labor against damages for injuries to employes.
    2. Mines and Miners Act—when report of superintendent not incompetent. The report of the accident in question made by the general superintendent of the mine owner to the state mine inspector pursuant to the statute, is not rendered incompetent by virtue of the fact that it contains statements not required by law to be made.
    3. Mines and Miners Act—what reports competent. Reports and records of an accident made pursuant to the requirements of the statute are competent evidence against the party making them; if, however, such reports and records contain improper statements likely to be prejudicial to the mine owner, specific objection should be made to such statements in order that the trial court may properly protect such mine owner from resulting prejudice.
    4. Mines and Miners Act—what not defense to action charging wilful violation. In an action under the Mines and Miners Act charging a wilful violation of the statute, it is not material as to whether or not the defendant in good faith believed that no dangerous condition existed.
    5. Mines and Miners Act—what not required of mine examiner. Under ordinary circumstances an instruction is erroneous which requires a mine examiner in order to make an examination in good faith, to know what work was still required to he done there—ordinarily a mine examiner is not expected to know what work is to be done in the future, but held, únder the facts of this case, the giving of such an instruction was not reversible error.
    6. Evidence—when question calls for conclusion. Held, that it was proper to sustain an objection to the following question: “Did you make a sufficient examination at the time to determine if it was in a safe condition?” as such question calls for a conclusion.
    7. Appeals and errors—what abstract should show. The abstract filed on appeal should show objections and exceptions to rulings complained of; otherwise such rulings will not be considered.
    8. Conduct of counsel—when alleged improper remarles not ground for reversal. A complaint of the remarks of counsel to be properly urged should show not disconnected sentences objected to, but the entire context should be preserved in order that a fair consideration of the propriety of such remarks may be made.
    • 9. Instructions—to what reference to declaration applies. A reference in an instruction to a declaration construed to mean a reference to so much of the declaration as was not excluded by the court.
    Action in case for personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    McDougall, Chapman & Bayne, for appellant.
    William Hawthorne and J. L. Murphy, for appellee.
   Me. Justice Willis

delivered the opinion of the court.

Preparatory to building a mule stable in an old entry-way in one of its mines, appellant took the timbers out of the roof, leaving a space about thirteen feet square and from twelve to thirteen feet high at the highest point, above which was about four hundred feet of rock and earth. This space which had been timbered about twenty years before, was first used as a lye or switch and later as a gob room where refuse dirt and rock were placed. Appellant’s mine examiner had charge of the night work, and Sunday night, January 20, 1907, had his men pull down the loose rock and remove the debris at the place. He was there at three-thirty Monday morning for about ten minutes and examined the place while the men were finishing this work. Appellant’s mine manager entered the mine about seven o’clock Monday morning, examined the place where the mule stable was to be built, and then went for appellee and directed him to go with one Challenger and build the stable. To make a place for upright timbers, it was necessary to cut into the soapstone rib or side, from the bottom of the entry-way to a height of eight feet or more. This rib was nearly perpendicular for four or five feet and then slanted toward the center. The manager made chalk marks where the cuts for the legs or upright timbers were to be made, and directed appellee to make one and Challenger the other. Before appellee commenced work, appellant’s assistant mine manager examined the place. Appellee had made a cut into the rib about seven feet high and from fifteen to twenty inches deep at the top, when the rock above fell upon him, breaking his leg and injuring him otherwise. He brought this suit to recover damages for injuries so sustained. The original declaration containing three counts, was based on the Mines and Miners Act as amended in 3905. The first count, under section 18, charged the duty of appellant to employ a legally qualified mine examiner, and on each day to cause such examiner to visit and inspect the mine before the men were permitted to enter, and observe whether there were any unsafe conditions, and to mark conspicuously all places where dangerous conditions existed. The second count, based on the last sentence of paragraph (d) of section 16, charged the duty of appellant through a duly qualified manager of said mine, to see that all dangerous places above and below were properly marked and danger signals displayed wherever required. The third count, based on paragraph (b) of section 18, charged the duty of appellant to allow no person to enter the mine to work therein except under the direction of the mine manager until all conditions had been made safe. Bach count averred a wilful disregard of the duty charged, in consequence of which appellee was injured. Later, four counts charging appellant with common law liability were added. At the close of all the evidence, appellee'dismissed the common law counts. The court instructed the jury to- disregard the third count. The case was submitted on the first and second counts, and a verdict was returned for appellee for $2,000. A motion for a new trial was denied, judgment was entered on the verdict and the company appeals.

Appellee testified that before he started to cut into the rock, he looked as far as he could with the aid of his light and saw no danger signals; that he could not see the roof, and that the manager did not warn him of danger; that he pulled down the loose rock and tested as far as he could with his pick. Challenger testified that he did not see danger signals; that appellee tested the rock all the time he was working; that the rock that fell did not come out of the rib, and that the notches where appellee worked were all right after the fall; that there was more rock down the morning after the accident. Appellant’s general superintendent in reporting the accident to the state mine inspector, said, “A piece of rock fell from the top and struck him.” The assistant mine manager testified that he examined the rib and roof and, in his opinion, it was safe; that the customary way of telling whether rock was loose and liable to fall was to take a pick or some other instrument and hit it, and it could be told by the sound whether it was safe to pull down the rock; that he did not tap the roof but looked at it; and that it was removing the rock in cutting places for the timber that caused the fall. The mine manager testified that he examined the place before the men went to work, and saw that all the loose rock was taken down that would fall; that he looked at the rib and the roof; that upon an examination after the accident he could tell that it was the cutting out and the removal of the support of the arch that caused the rock to fall. His record made and filed in the office of appellant as required by the statute stated that, “A piece of rock came out of the top and caught him.’’ Appellant’s mine examiner died before the second trial and his testimony given at the first trial was read into this record and showed that he examined the place about half past three Monday morning by looking at it.

Whether the rock that injured appellee fell from the roof as a result of the removal of the timbers, or whether the fall was occasioned by the removal of the support to the arch caused by cutting into the rib, was a question of fact for the jury. There was no evidence that danger signals were displayed, and whether the roof was in a dangerous condition when the work was commenced, and should have been marked conspicuously, was also a question of fact for them to decide. The finding on these facts is the basis of their verdict in favor of appellee, which, in our opinion, is supported by a preponderance of the evidence.

Two jurors were asked on their voir dire by counsel for appellee if they were interested in any casualty company which insured' employers of labor against damages for injuries to employes. The court sustained an objection to these questions, and appellant, in support of its contention that they were prejudicial to its interest, cites McCarthy v. Spring Valley Coal Co., 232 Ill. 473. Here, appellee was not introducing evidence as was appellee in the McCarthy case, nor was any particular casualty company mentioned; nor did the questions, as in the McCarthy case, tend to intimate to the jury that appellant was insured against liability for accidents of this character by a casualty company which would have to respond in damages. It was held in Iroquois Furnace Company v. McCrea, 191 Ill. 340, that such questions were proper, at least for the purpose of enabling counsel to exercise their right of peremptory challenge, if for no other; and we are of the opinion that the questions complained of did appellant no harm.

Complaint is made of the admission in evidence of the report of the accident made by appellant’s general superintendent to the state mine inspector, pursuant to paragraph (a) of section 27 of the Mines and Miners Act, because it contained the statement that, “A piece of rock fell from the top and struck him,” it being urged that the statement was not made for the personal knowledge of the superintendent, and that the law required him to report the fact of the accident only; that he was not required to report the cause, and that there was a failure to show his authority to bind the company by statements. If appellant were correct in its contention that the report was incompetent because it contained more than was required, it would always be possible for the operator to obviate the introduction in evidence of such a writing against itself, by inserting some unnecessary or improper matter.

The court, over appellant’s objection, admitted in evidence the record of the accident made and filed in appellant’s office under paragraph (a), section 27, supra. Appellant contends that its admission was error on the ground that it contained the statement that appellee had a wife and child, again citing McCarthy v. Spring Valley Coal Company, supra. In the McCarthy case, counsel stated to the jury that appellee had a wife and five children. That statement, the court said, was made for the purpose of enhancing the damages by getting before the jury, facts calculated to arouse their sympathy. In the case at bar, counsel did not, as in the McCarthy case, attempt to take any advantage by reason of the statement. Moreover, through it a line was drawn, partially obscuring it, and the natural inference of the jury would be that it was untrue. Appellant did not, upon the trial, raise this specific question nor object to the admission of the record because of this statement. Had it done so, doubtless the court would not have admitted that part of it in evidence, nor permitted the jury to have taken it with them on retiring to consider their verdict. We see no reason why reports and records made pursuant to the requirements of the statute should not be competent evidence against the party making them, and, in our opinion, the report and record in this case were properly admitted in evidence.

Appellant contends that it was error not to permit the mine examiner to answer the question, “Did you make a sufficient examination at the time to determine if it was in a safe condition?” This ruling was correct as the question called for a conclusion. Whether the place where appellee was injured was safe or unsafe, was a question of fact to be determined by the jury and not by the mine examiner. Olson v. Kelly Coal Co., 236 Ill. 502.

It is claimed that it was error to allow appellee to show that a large amount of rock had fallen the morning after the accident. Whatever benefit might be derived from objections or exceptions appearing on this subject in the record, is waived, since they are not shown by the abstract filed in this court.

Appellant complains of remarks of counsel for appellee in his argument; but from our examination of such single and disconnected sentences as are preserved for our consideration, we do not deem them sufficiently prejudicial to justify a reversal of the judgment. The context should have been preserved that we might know in what connection the statements were made, in order properly to determine their possible effect upon the jury.

Counsel for appellant asserts that the law is, that if the mine manager and mine examiner in good faith made an examination of the place where the accident occurred, and from such examination, in good faith, Believed that no dangerous condition existed, and for that reason placed no danger signal there, appellee is not entitled to recover on the counts charging that such failure caused the accident. In Emerling v. Spring Valley Coal Company, 149 Ill. App. 97, on the authority of Eldorado Coal Company v. Swan, 227 Ill. 592, we said: “The question of the existence or non-existence of good faith, on the part of the operator of a coal mine, is not involved in a suit brought for the wilful violation of the statute.” Catlett v. Young, 143 Ill. 74; Odin. Coal Co. v. Denman, 185 Ill. 413; Davis v. Illinois Collieries Co., 232 Ill. 284; Olson v. Kelly Coal Co., 236 Ill. 502. Were good faith a defense as claimed by appellant, it could hardly be urged in this case as the mine examiner was also night boss and knew of the removal of the timbers which had supported the roof for twenty years, and of all conditions existing at or near the place, having had men there removing rock on Thursday, Friday and Sunday nights previous to the accident which had fallen since the removal of the supports; yet on Monday morning he considered looking at the roof and rib a sufficient examination, and did not display danger signals at the place where but a few hours later the accident to appellee occurred, caused, the jury said by their verdict, by a fall of rock from the roof from which the support had been removed.

Complaint is made of the third, fourth, sixth, seventh, eighth and tenth instructions given for appellee. The third told the jury if they believed appellant’s mine manager gave plaintiff and Challenger certain orders and directions about the work they were to do, and then went away; that shortly afterwards the mine manager sent his assistant to the place in question to look after the work; that when the assistant came there he gave orders concerning the work, appellee was bound to follow such other and further directions and that by so doing he was not guilty of such disobedience as would defeat his action. The proof showed that the mine manager White, and afterwards his assistant Miller did give appellee directions relative to the work and we see no reason why the instruction is not correct.

It is argued that appellee’s fourth instruction is erroneous because it permits a recovery under the declaration when the court instructed the jury there could be no recovery under the third count. It did state if the jury believed certain things from the evidence as laid in the declaration, they should find appellant guilty. We are of the opinion that such reference to the declaration meant so much of the declaration as was not excluded by the court, and the jury would so understand the instruction. Appellee had dismissed the additional counts and the court had directed the jury that there could he no recovery on the third count and it must be assumed that they knew the instruction referred to the counts that had not been withdrawn and upon which the case was submitted. West Chicago Street Railroad Co. v. Buckley, 200 Ill. 260; Sandy v. Lake Street El. R. R. Co., 235 Ill. 194; Emerling v. Spring Valley Coal Co., supra.

This is also true of appellee’s fifth, sixth, seventh and eighth instructions.

Appellee’s tenth instruction, under ordinary circumstances, would be regarded as erroneous. It requires the mine examiner, in order to have made an examination in good faith, to know what work was still required to be done there, while ordinarily a mine examiner is "not expected to know what work will be done in the future. But in this case, the mine examiner was also the night boss, and did know what work was to be done, and in view of that fact we hold that the giving of the instruction was not reversible error, since the verdict, in our opinion, does substantial justice, and a different verdict could not have been returned had the instruction not been given.

Complaint is made of the refusal of appellant’s twenty-seventh instruction which was as follows:

“The court instructs the jury that if they believe from the evidence that the fall of rock which injured the plaintiff: was caused by the doing of the work which he was engaged in doing at the time of the fall, then he cannot recover, and the verdict 'of the jury should be not guilty.”

This instruction was properly refused for the reason that the facts stated therein might be so, and yet the injury to appellee might also have been caused by the failure of appellant to observe and follow the statutory requirements, the violation of which was alleged in the first and second counts of the declaration.

Appellant complains of the refusal of its twenty-seventh, twenty-ninth and thirtieth instructions. The facts stated in the twenty-seventh and thirtieth instructions might have been true and yet the injury to appellee have been caused by appellant’s failure to observe the statutory requirements as alleged in the first and second counts of the declaration. Instruction twenty-nine was embodied in the twenty-first given for appellant.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    E. A. Chalstran, Appellee, v. Board of Education of Township High School, etc., Appellant.
    Gen. No. 5,157.

      Contracts—when party entitled to abandon and recover profits. If a party has entered into a contract with a board of education to erect a school building, he is entitled to abandon such contract and recover the profits that would have accrued to him from its fulfillment, in the event of the voters of the particular territory in question lawfully determining subsequently to the making of such contract that they will not erect such a school building.
    Assumpsit. Appeal from the Circuit Court of Knox county; the Hon. Robebt J. Gbiee, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Carney, Carney & Frank, for appellant.
    R. D. Robinson, for appellee; Armor Moreland, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

On March 2, 1906, appellee entered into a written contract with appellant to build a high school building. At the time he knew that a petition, asking that an election be held on April 2,1906, for the purpose of voting for or against discontinuing the township high school, had been signed and filed with the township treasurer. The election was held resulting in a vote to discontinue the school. Appellee then had nearly all the materials on the ground, and done some excavating and built a part of the basement wall, but on the day following the election he abandoned work on the building, took away such material as could be removed, and afterwards commenced this suit against the Board of Education to recover damages for loss sustained. The declaration consisted of a single count that set out the contract and averred that appellee commenced work thereunder; that he was ready, willing and able to complete the building according to the contract, but was prevented by a vote of the people discontinuing the high school district, and alleged loss of profits which would have accrued to him from the completion of the work, loss in value of material furnished and for work. On the trial, he was restricted in his proofs to the loss of profit and obtained a verdict for $500. A motion for a new trial was denied, judgment was entered on the verdict, and the Board of Education appealed.

The bill of exceptions omits the evidence, instructions and rulings of the court, but in place thereof embodies a stipulation of the parties wherein it was agreed, that, had appellee completed the building according to the contract, he would have made a profit of $500 and that, if, under the law as applied to the facts as stipulated, appellee, by reason of the election, had the legal right to abandon the contract, he was entitled to recover $500 and the judgment should be affirmed. Otherwise, it should be reversed and judgment entered here for appellant.

The only question for our determination is, whether or not the vote of a majority of the people to discontinue the township high school gave appellee, on the day after the election, the right to abandon the contract and recover in this suit the stipulated amount of profits he would have earned had he completed the building under the contract.

Appellant contends that while the election was legally held and the petition and notice for the vote were timely and in proper form as required by law, yet that, under the law reasonably construed the vote on April 2, 1906, on the proposition to discontinue the township high school, which a majority of the votes cast in April, 1905, had been found in favor of establishing, was unauthorized by law and without force or effect in law, as the township high school was not yet fully organized and there had been no change in the conditions in the school district to warrant a resubmission of the question to a vote, and relies in support of its contention on Kiehna v. Mansker, 178 Ill. 15. That case construes clause 11 of section 27 of article 5 chapter 122 Hurd’s Eevised Statutes 1908 which empowers school directors, when, in their opinion from chang’ed conditions, an old site has become unsuitable, to call an election and submit the question of a change of site to the electors. This involves a different subject-matter and a different section of the statute from the case at bar, and we think has no application to the facts in this record, nor do we think that the statute will bear the construction that appellant seeks to put upon it.

We do not see that the fact that appellee knew that an election had been called to discontinue the high school, interferes in any way with the validity of his contract to erect the building. He could not know and did not know that the election would result in discontinuing the high school, and had it not, he could have continued the work and earned his profit. Both the Board and appellee had a right to enter into the contract to build the school house at the time it was made, and whether the Board of Education should have, in some way, protected the rights of the district against the possible discontinuance of the district, did not concern appellee. Section 43 of article 3 of chapter 122, supra, authorized this election as held. The proposition to discontinue did, in fact, carry, and the legal effect was to dissolve the high school district. Under the facts appearing in this record, we hold that the contract was lawfully made, and that it was lawfully abrogated by the voters of the district, and that appellee was entitled to the profits he would have made by completing the building under the contract, which, it is stipulated, would have been $500.

The judgment is therefore affirmed.

Affirmed.


text:
    The People ex rel. Henry H. Lichenwalter et al., Appellants, v. Elry H. Spangler et al., Appellees.
    Gen. No. 5,163.
    Roads and bbidges—when petition does not authorize laying out of road. A petition presented to the highway commissioners of two towns asking for the laying out of a road on a line between the two towns in question does not confer jurisdiction unless it is signed by not less than two-thirds of the resident landowners in each of such towns within two miles of the proposed new road.
    Mandamus. Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibble, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Lagger & Blatt, for appellants.
    Peter Shutts, Knox & Akin and Fred W. Walter, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

A petition asking that a road be laid out on a certain portion of the line between Jackson and Manhattan townships in Will county, signed by residents and landowners of said towns, was presented to the highway commissioners of said towns July 19, 1907. The highway commissioners of the two towns met July 2, 1907, to examine the route of the proposed road, and to hear reasons for and against granting the prayer of the petition, and a'djourned to July 12, 1907. They met on that day and declined to act on the petition and adjourned sine die. Thereafter a petition was filed in the Circuit Court of said county, praying that a writ of mandamus issue commanding the highway commissioners of the two towns to meet and act upon the petition.. The petition for mandamus alleged that the relators, with others, duly made and subscribed a certain petition in writing, in duplicate, for the laying out of a new road, the central line of which was to be the boundary line between the towns of Jackson and Manhattan; that said duplicate petitions dnly gave the names of all the owners of the land over which the said proposed road was to pass, and alleged that the said petitions were more1 than twelve in number, and more than two-thirds of the landowners residing in said towns within two miles of the route of the proposed road. A demurrer to the petition was sustained, and the relators appeal.

A number of errors are assigned, but, as we view the case, the only question for our consideration is, did the petition invest the commissioners of the two towns with jurisdiction to lay out the road?

To determine this, sections 31 and 57 of chapter 121, Hurd’s E. S. 1908, must be read together. People v. Blackwelder, 21 Ill. App. 254; Wright v. Commissioners, 145 Ill. 48. Section 31 provides that commissioners may alter, widen or vacate any road or lay out any new road, in their respective towns when petitioned by any number of landowners not less than twelve, who shall reside in said town within two miles of the road to be altered, widened, vacated or laid out, or two-thirds of the landowners residing in said town within two miles of the road to be altered, widened, vacated or laid out.

Section 57 provides that public roads may be established on county or township lines in the same manner as other public roads, except that in such cases a copy of the petition shall be posted up in and presented to the commissioners of each town interested; said petition to be as in other cases, and signed by not less than twelve or two-thirds of the owners of land residing thereon, in either township or county within two miles of the road to be laid out, whereupon it shall be the duty of the commissioners of the several towns to meet and act as one body in the same time and manner as in other cases in considering the petition.

In the case at bar, the petition addressed to the commissioners, was made in duplicate, and a copy filed with the commissioners of each town. It recited that landowners, twelve in number and being more than two-thirds of the landowners residing in said towns within two miles of the proposed road petitioned that it be laid out.

Appellants argue that there were, at the time of presenting said petition, thirty persons owners of land located within two miles of the proposed road. Of these there were but eighteen residing on their land so located within two miles of said road. Of these, fourteen signed said petition, so that a considerably larger proportion than two-thirds of the owners of land residing thereon in both of said towns within two miles of the proposed new road signed the petition. The petition was apparently based on the assumption that, under the statute in question, the two towns were to be considered as a unit, and that signers of a petition to the number of twelve, or more than two-thirds of the landowners residing in the two towns within two miles of the proposed road, might be obtained indiscriminately from the two towns without regard to the number signing in either.

“Under section 31, the commissioners of a town may lay out or vacate a road in their respective towns when petitioned by not less than twelve of the landowners residing in such towns within two miles of the road. The petition in each case must be signed by landowners residing in the town. A petition signed by landowners residing in another town would not authorize the commissioners to take any action.” Wright v. Commissioners of Highways, supra.

“The manifest policy of the law is that the local authorities in each township shall have control of and be held responsible for the system of highways -within the township, and that a petition of the landowners within certain bounds is essential to give jurisdiction to the proceedings of the commissioners. It is not to be supposed that this policy is abandoned when the road is on a town or county line, or runs from one town to another. All the reasons for such policy are operative and obvious in these cases as much as when the road is wholly within one town.” People v. Black-welder, supra.

Section 57 provides that the commissioners of the several towns should meet and act as one body at the same time and manner as in other cases in considering the petition, but they could not be compelled to act unless the petition was signed by the requisite number of landowners in the township from which they were elected. The commissioners of the town of Jackson could not be compelled to proceeed to lay out a road on a petition signed by landowners of the town of Manhattan; nor could the commissioners of Manhattan be compelled to lay out a road on a petition signed by landowners of the town of Jackson. To have authorized the commissioners of the town of Manhattan to act, the petition should have been signed by not less than twelve or two-thirds of the resident landowners in said town within two miles of the road petitioned for; and to have authorized the commissioners of the town of Jackson to act, the petition should have been signed by not less than twelve or two-thirds of the resident landowners in said town within two miles of the proposed new road.

From aught that appears in the petition filed with the highway commissioners, or in the petition for mandamus, all the landowners who signed the petition may have resided in the town of Jackson or they may have resided in the town of Manhattan. There is nothing to show that not less than twelve or two-thirds of the resident landowners in each township within two miles of the proposed road signed the petition.

We are of the opinion that the petition to the highway commissioners did not meet the requirements of the statute, and did not confer jurisdiction upon them; and that they properly refused to act, and could not be compelled to proceed to lay out the road. Therfe was, therefore, no error in sustaining the demurrer to the petition for a writ of mandamus.

The judgment is affirmed.

Affirmed.

Mr. Presiding Justice Dibell took no part.


text:
    The Henning Brewing Company, Appellant, v. The Atchison, Topeka and Sante Fe Railway Company, Appellee.
    Gen. No. 5,166.
    1. Negligence—what does not support presumption of wilfulness. The fact alone that a train was running within the limits of a city at a speed in excess of an ordinance thereof is not sufficient to support a presumption of wilfulness.
    2. Verdicts-—when not disturbed. A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case. Appeal from the Circuit Court of Marshall county; the Hon. Leslie D. Puterbaugh, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Tracey & Tracey and E. D. Richmond, for appellant.
    Barnes & Magoon and Lee F. English, for appellee; Robert Dunlap, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

■The Henning Brewing Company, appellant, owned a warehouse in which it stored beer, ice and other commodities incident to its business, situated on land leased from the Atchison, Topeka and Santa Fe Railway Company, appellee, on its right of way at Toluca. The lease provided for the payment of $1 per year rent, and contained a stipulation exempting appellee from liability for damages to appellant’s property arising from the negligence of appellee’s servants ■ or agents or otherwise. About one o’clock a. m., April 7, 1908, a west bound passenger train, passing through Toluca left the track near the switch, ran some distance along a side track, and struck and partially demolished appellant’s warehouse. The train was wrecked, the engineer killed, and the fireman injured. About two hours later, a wrecking, train arrived, the track was cleared, the remaining portions of the wrecked building were pulled down, and the material was piled upon the right of way. Refrigerator cars were brought, in which to place the ice and beer. Later, with appellant’s consent, appellee had a part of the beer hauled to the Schlitz Brewing Company’s plant near by, from which it was after-wards taken by appellant and sold. The Brewing Company brought this suit against appellee to recover damages for the destruction and conversion of its property. The declaration contained four counts in case, and one in trover. The first count in case charged general negligence in running the train. The other three counts in case charged wilful and wanton negligence in driving the train, and the fourth also charged the violation of an ordinance limiting the speed of trains in the city of Toluca to ten miles per hour. The fifth count charged that appellant was possessed of a certain frame building, ice, beer, and other property contained therein, and lost the same; that appellee found the property and converted it to its own use. There was a plea of not guilty. At the close of appellant’s testimony in chief, on appellee’s motion, the court directed a verdict on the first four counts; and at the conclusion of all the testimony the jury returned a verdict for appellee on the fifth count. A motion for a new trial was denied, and judgment was entered for appellee, from which the brewing company appeals.

Appellant does not deny that appellee might, by contract, exempt itself from liability for damages arising from any negligence of its agents or servants other than that which was wilful and wanton, but contends that there was evidence of wilful and wanton negligence on the part of appellee’s engineer and fireman, and that the court erred in directing a verdict on the counts in case, for the reason that this evidence should have been submitted to the jury for them to determine whether or not such negligence was the cause of the injury.

The only proof as to the speed and management of the train was contained in the testimony of the fireman who said that they were about seven minutes late at Toluca, and were not trying to make up time; that he looked out for the switch light near the warehouse as they were entering town, probably two or three hundred feet or farther away, and did not see it; that before he had time to speak to the engineer he felt the engine strike the switch, and next the engine turned over; that the engineer was looking out and shut off steam before he whistled into town, just about the time they reached the whistling post a quarter of a mile east of the switch; that he let the engine drift a little way, and then applied his brakes; that he made the first reduction then and a second that put on the full braking power at the switch; and that they were running from fifteen to twenty-five miles per hour. He said they could have seen the switch light about a quarter of a mile away, and by applying the brakes and reversing the engine, could have stopped within that distance; that by applying the emergency they could stop in pretty short order.

' Appellant argues that the train must have been running fifty or sixty miles per hour within the city limits; that it was the duty of the engineer and fireman to have looked out for the switch light within a distance in which they could have stopped the train if necessary before reaching the switch, and that they were bound to stop before coming to the switch when they discovered that there was no light there; and that it was their duty to run the train through the city so as to have it under control; and that their conduct showed such want of care for the rights of others as to justify the presumption of wilfulness.

It is manifest that the train was running within the city limits in violation of an ordinance limiting the speed of trains therein to ten miles per hour, but that fact alone is not sufficient to support a presumption of wilfulness. Illinois Central Railroad Company v. Hetherington, 83 Ill. 510; Blanchard v. Lake Shore and Michigan Southern Railway Company, 126 Ill. 416; Illinois Central Railroad Company v. Eicher, 202 Ill. 556.

Thompson in his Commentaries on the Law of Negligence, vol. 1, sec. 20, says: ‘1 The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of others, which duty the person owing it assumed by contract, or which is imposed upon the person by operation of law.” There was no evidence that there was any wilful or intentional failure on the part of the engineer and fireman to perform their duty, or any want of care of, or indifference to, the safety of the property of appellant; and since their own safety was involved, there can be no presumption that the engineer lost his life and the fireman was injured through wilful or intentional disregard of duty. Chicago, Rock Island & Pacific Railway Company v. Hamler, 215 Ill. 525. Appellee had the right to contract with appellant exempting self from liability for damages resulting from any negligence, not wilful or wanton, of its agent or servants .(Chicago, Rock Island & Pacific Railway Company v. Hamler, supra; Blank v. Illinois Central Railroad Company, 182 Ill. 332), and as there was no evidence of wilful or wanton negligence on the part of appellee’s servants or agents, the court did not err in directing a verdict on the counts in case.

Appellant urges that the verdict on the count in trover is contrary to the evidence.

There is evidence that appellee took possession of the property and tore down what was left standing of the warehouse; that its division superintendent promised appellant’s vice-president that appellee would pay for all damages done, and told him to send the bill to a certain officer of the appellee in Chicago and it would be paid; that appellee sent for refrigerator cars for the purpose of taking possession of the beer and ice. The division superintendent denied that he promised that appellee would pay the damages and said that he told appellant’s vice-president that he had nothing to do with it, and that upon his asking who had, he gave him the name and address of the assistant general freight agent in Chicago and the general claim agent at Topeka, Kansas. Appellee introduced evidence showing that it sent for the refrigerator cars, not for 'the purpose of taking possession of the beer and ice, but for the supposed accommodation of appellant who did not use them. Appellant’s vice-president testified that the building after it had been struck by the train was of no value to them. It was not denied that the timbers and boards of which the building was constructed were left on the right of way where appellant could take them. Appellee showed that it pulled down the building or the parts remaining standing because it was overhanging in such a manner as to be dangerous to the workmen. It showed that appellant came and got the beer appellee removed to Schlitz Brewing Company plant, and sold it to its customers.

The only ruling of the trial court complained of by appellant is the giving of appellee’s fifth instruction. The criticism to that instruction is, that it forbade the jury finding for appellant even if the evidence showed that appellee assumed control of the property and destroyed it or allowed it to be sold or misused so as to be valueless. This defect was cured by the first instruction given for appellant which told the jury that if appellee wrongfully took the property into its possession, and while in its possession, the same was lost, stolen, or destroyed, before the commencement of this suit, that would constitute a wrongful conversion of the property, and they should find appellee guilty.

The jury decided the conflict in the evidence in favor of appellee, and the trial court approved their finding. No material errors of law have intervened, and we shall not disturb their verdict.

The judgment is affirmed.

Affirmed.


text:
    Delia Godsall, Appellee, v. City of Joliet, Appellant.
    Gen. No. 5,169.
    1. Evidence—when admission cannot he complained of. If a fact is elicited by the complaining party upon cross-examination, subsequent proof of such fact made by the opposite party cannot be complained of.
    2. Verdicts—when not excessive. Held, that a verdict in an action on the case for personal injuries, reduced by remittitur from $1,350 to $1,000, was not excessive where it appeared from the evidence that the plaintiff, a woman of thirty years of age, was sick for some little time after the accident, endured pain and suffering, had a miscarriage and possibly received an injury permanent in character.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Robert W. Martin, for appellant.
    John W. D’Arcy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee who was thirty years of age, and two months advanced toward maternity, was injured June 6, 1908, on a wooden sidewalk on the south side of La Fayette street, at a point about one hundred and twenty-five feet east of Hickory street, in the city of Joliet, by a plank tipping up in front of her, as her husband, who was walking by her side, stepped on its outer edge.

Within ten days thereafter she gave the appellant the notice required by law, and afterwards brought this suit to recover damages for injuries caused by the accident. On the trial, appellee obtained a verdict for $1,350. A motion for a new trial was made, and, on the suggestion of the trial judge, $350 was remitted from the verdict. The motion for a new trial was denied and judgment was entered on the verdict for $1,000, from which this appeal was taken.

It is urged by appellant that the court erred in admitting incompetent evidence; that appellant had no actual notice of the defective condition of tfle walk, and the evidence was not sufficient to establish constructive notice thereof; and that the court erred in refusing appellant’s instruction asked at the close of all the evidence directing the jury to find appellant not guilty; and that the damages were excessive.

A physician, called the evening of the accident, testified that he found appellee suffering from fright and shock, and that her pulse was rapid. He prescribed for her, and saw her the next morning. At that time she had begun to flow and there was a condition of miscarriage; that he visited her ten or twelve times. She testified that he visited her every day for sixteen days and twice a day for the first four days; that before the injury she did all of her house work except the washing and ironing, and helped with them; that before the injury she had no displacement of the womb, but that since the injury she had been able to do but little of her housework, and that she had had pain ever since the fall and a bearing down feeling of the womb.

Appellee was permitted to prove by her mother, over the objection of appellant, that before the injury, she did her own housework, and took care of her family which consisted of her husband and four children. It is urged that it was error to admit proof that she had fonr children. Appellee, to sustain the propriety of the admission of this testimony, cites Joliet v. Conway, 119 Ill. 489, which was a suit .to recover for injuries sustained by reason of the failure of the appellant to maintain in suitable repair a certain sidewalkand appellee therein, after testifying as to her injuries, their nature and extent, and their effect upon her ability to labor, also testified without objection that she had done housework for her family from the time of her marriage until the injury. She was then permitted to testify over objection that she was doing the housework for her husband and eight children. In passing on the error assigned thereon, the court said: “The objection to this evidence might properly be disposed of upon the ground, that if its admission was erroneous it could not have operated to the prejudice of the defendant. It had already been shown properly, and- without objection, that the plaintiff was a married woman, residing with her husband ; that she had been in good health, and had done her housework continuously from her marriage until she was injured, as charged; also, that one of the consequences ■ of the injuries received was a miscarriage ; * * * It is difficult, with this evidence before the jury, to perceive in what way proof of the mere fact that she was doing the work for her husband and eight children, or that there were eight children in the family, could have been prejudicial to the defendant. It is familiar doctrine that error without prejudice will not reverse. ’ ’ But this evidence in the case at bar was clearly competent for the reason that before appellee’s mother testified, Dr. Clyne, the physician who attended appellee at the time of the accident, and examined her about a week before the trial and testified that she then had a displacement of the womb of a serious character, was cross-examined by appellant’s counsel, and the cross-examination elicited the fact that appellee had borne four or five children. He was questioned for the purpose of having him attribute the displacement of the womb and certain thickening of the wall of the vagina to which he testified, to childbirth and not to the injury received by the fall upon the sidewalk, and also to obtain information for a foundation for proving by the physician called by appellant, that in the case of a woman of the age of appellee who had borne four children and had fallen in the manner proven by appellee, falling of the womb and thickening of the vaginal wall, subsequently discovered, would not be attributed to the fall; and that the miscarriage would not cause them. Counsel for appellant, having, on cross-examination, elicited the fact that appellee had four or five children, cannot complain that the same fact was afterwards testified to by appellee’s mother. There was no error in the admission of her testimony.

The walk was constructed of planks nailed upon stringers laid lengthwise of the walk, and the evidence did not show that appellant had actual notice of its defective condition; but four witnesses testified for appellee as to its condition at the place where she was injured, prior to the accident. One, that she had passed over the walk more than twenty times between January 1 and June 6, 1908, and that the boards were loose and shook when stepped on and the nails were rusted out. Another witness testified that he had lived near where appellee was injured since the previous August, and was familiar with the condition of the walk; that about one hundred and twenty-five feet east of Hickory street the planks were loose, that the stringers had rotted so that the nails would not hold, and that it had been in that condition since August before the accident. Another witness testified that there was always loose boards there, and that she had often got tripped herself. Appellee’s husband testified that the part of the stringers he saw was rotten. The only witness called by the city to testify as to the condition of the walk, examined it four days after the accident, and before any change or repairs were made, and testified that he saw a couple of loose planks, and a few cracked ones; that he tested the planks and found by walking on the south side and stepping on the end projecting over the stringers, four planks that would tip up all the way from eight to twelve inches; and that he measured them and examined the loose planks, and that the stringers under them did not look good; that some of the spikes were sticking to the planks and some to the stringers; that the stringers were as if dry rot had commenced in them. From this evidence the jury were warranted in finding that appellant had constructive notice of the defective condition of the walk, and there was no error in refusing to direct the jury to return a verdict of not guilty.

We do not consider the judgment excessive. It is clear that appellee was sick for some little time and endured pain and suffering, the loss of the child and subsequent ill health, and it is possible that the injury may be permanent.

Fnding no reversible error, the judgment is affirmed.

Affirmed.


text:
    Beulah Keyes, Executrix, Appellee, v. The Estate of Lucy Thornton, Deceased, Appellant.
    Gen. No. 5,171.
    1. Appeals and errors—when no questions of law preserved for review. If no propositions of law are submitted to the trial judge to be passed upon and there are no rulings in excluding or admitting evidence to which exceptions were taken, no questions of law are preserved for review in a case tried by a judge without a jury.
    2. Contracts—what essential to authorize presumption that hoard was given and services rendered without expectation of compensation. Where near relations, by blood or marriage, reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or pay compensation for the services, on the one hand, or for the board and lodging or other necessaries or comforts, on the other; but such presumption may be overthrown and the reverse established by proof of an express or implied contract, and the implied contract may be proved by facts and circumstances which show that both parties at the time the services were performed, contemplated and intended pecuniary compensation.
    Contested claim in court of probate. Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    S. J. Drew, for appellant.
    Knox & Akin, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee, executrix of the last will and testament of J ohn Keyes, deceased, filed a claim against the estate of Lucy Thornton, deceased, in the Probate Court of Will county, for care and maintenance of the decedent during the last six years of her life. The claim was disallowed, and an appeal was taken to the Circuit Court of said county, where a trial was had before the court without a jury, and a judgment for $1,275.54 was rendered in favor of appellee, to which the administrator of the estate of Lucy Thornton excepted and prosecutes this further appeal.

Appellant contends that the judgment is contrary to law; that it is not supported by the evidence; that “the evidence does not show an express contract, or such facts from which an express contract exists, where the family relationship exists;” and that the court erred in not sustaining appellant’s motion to exclude all.of the evidence pertaining to the amount of compensation as claimed by appellee.

At the close of appellee’s evidence, appellant moved the court to exclude all evidence of declarations made by John Keyes, and all evidence pertaining to the amount of compensation for services, but offered no proof except the files in the estate of Lucy Thornton. The court sustained appellant’s objections to testimony showing statements made by John Keyes out of the presence of Lucy Thornton, but did not rule on appellant’s motion to exclude evidence pertaining to the amount of compensation for services. Appellant did not ask for a ruling on that motion and preserved no exceptions to the ruling of the court upon the first motion, nor upon the failure of the court to pass upon the motion to exclude the evidence as to compensation.

■ No propositions of law were submitted to the trial court to be passed upon, and there were no rulings in excluding or admitting evidence over appellant’s objection to which exceptions were taken. Therefore, there is no question of law before us. Dwelling House Ins. Co. v. Butterly, 133 Ill. 534; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61; Downing v. Kirkpatrick, 125 Ill. App. 542.

The evidence shows that Lucy Thornton, deceased, was the mother of Benlah Keyes, and for several years prior to her death resided with John Keyes, deceased, and his wife, Beulah Keyes; that when she went to live with John Keyes, she had adequate means for her support, and had resided in her own house up to that time; that she was then about ninety years old, and quite infirm; that her hearing was affected and she was rapidly losing her eyesight, and had been confined to her bed by sickness; that for a considerable time she had had no one to take care of her, and had great difficulty in getting any one to stay with her; that about two years before, she had fallen and broken her wrist; and that she went to live with John Keyes to be fed and cared for as an invalid; that she lived there six years, and died there. During that time, she rendered no services of any kind to John Keyes, or to the members of his family; and through all the time she was there, she was a great care and caused considerable expense.

“Where near relations, by blood or marriage, reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or pay compensation for the services, on the one hand, or for the board and lodging or other necessaries or comforts, on the other; that they were intended as mutual acts of kindness, done or furnished gratuitously.” In re Schmidt’s Estate, 93 Wis. 120.

This presumption may be overthrown and the reverse established by proof of an express or implied contract; and the implied contract may be proven by facts and circumstances which show that both parties, at the time services were performed, contemplated or intended pecuniary compensation. Miller v. Miller, 16 Ill. 295; Freeman v. Freeman, 65 Ill. 106; Switzer v. Kee, 146 Ill. 577; Heffron v. Brown, 155 Ill. 322; Martin v. Martin, 89 Ill. App. 147; Smith v. Birdsall, 106 Ill. App. 264.

The evidence shows that the subject of compensation had been discussed between John Keyes and Lucy Thornton, and that it was fully understood that she was to pay for her board and care. The amount had been discussed but not fixed upon. Keyes, at one time, requested a settlement of the account, and she expressed a desire to keep her property in her own name as long as she could, and possibly until her death. Keyes was willing to accommodate her if he could safely, and she and Keyes took counsel in the matter, and were advised that if it was understood she was to pay for her board, the amount could be determined afterwards. That she intended to pay Keyes for services, but did not want to do so while living is further established by a witness to whom she said, “I have plenty of means, and if I live prudently as I have always done there will be sufficiently left to pay them for my care.” To another person, she said, “John is good to me, but he will be well paid for all he is doing for me,” to which Keyes replied, “I expect to be paid for my care,” to which she said, “I want them well paid for all they have done for me.” She said to another, “I know I am a great affliction to John Keyes, and they have been so good to me, and I hope there will be enough left to pay them well for their trouble.”

“One who becomes a member of the family cannot be charged for his support. But in order to become a member of the family he must assume and discharge duties usually incumbent upon the individuals of the family.” Wence v. Wykoff, 3 N. W. Rep. 685.

In the absence of proof, the near relationship existing between the wife of John Keyes and Lucy Thornton will not authorize the conclusion that she became a member of the family. She entered his house as an invalid for board, care and nursing, and not as a member of the family. She assumed no duties and rendered no service to Mm or members of Ms family. He expected compensation for Ms services, and she, at the time they were rendered, intended to compensate Mm therefor, and the law will surely raise an implied contract whereby she became bound so to do.

Appellant’s chief argument is that the income from the estate of Cary Thornton, the deceased husband of Lucy Thornton, was chargeable with her support, and that John Keyes, as a joint executor and trustee of said estate and as agent for Lucy Thornton, was charged with applying this money to pay her personal debts and that, for tMs reason, the claim is not maintainable against the estate of Lucy Thornton. We fail to see the force of such argument and cannot agree with counsel for appellant in his contention.

The suggestion in appellant’s argument that the amount of the judgment is excessive has no force, as appellant offered no proof tending to question the reasonableness of the amount, and there was evidence showing that the services were worth from $15 to $25 per week. The judgment is equal to less than $8 per week for five years.

Finding no reversible error in the record, the judgment is aErmed.

Affirmed.

Mr. Presiding Justice Dibell took no part.


text:
    George K. Angelos, Appellee, v. Peter Pelias, Appellant.
    Gen. No. 5,172.
    1. Evidence—when admission of irrelevant, ground for reversal. To admit proof of facts not in issue which, tends to distract the attention of the jury from the real issues of the cause, is ground for reversal. »
    2. Evidence—right of witness to refer to memoranda. Upon the defense of payment a defendant has a right to use in making his case a memorandum hook kept by himself.
    3. Conduct of counsel—when ground for reversal. Remarks of counsel made upon subjects not in issue and of a kind calculated to prejudice the jury, are improper, and if objections thereto are not sustained, constitute ground for reversal.
    Assumpsit. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Lagger & Blatt, for appellant.
    Barr, Barr, & Barr, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee brought this suit against appellant to recover for wages claimed under special contracts. The declaration contained the common counts only. Appellant pleaded non assumpsit and payment, and asked for a specific bill of particulars, whereupon appellee stated in open court that his claim was for wages only. On a trial, appellee had a verdict for $1,062.50. The court required a remittitur of $129 and denied a motion for a new trial and entered judgment for $933.50 from which this appeal was taken.

The evidence discloses that appellee, a nephew of appellant, came from Greece, and entered his employment. Both agree that the services for which the suit was brought were rendered under express contracts made from time to time, the consideration to appellee being a specific sum to be paid in money, and board and lodging furnished. They differed as to the amount that was to be paid. In this condition of the proof appellee was permitted to introduce evidence tending to show the poor quality of the meals and lodging furnished, and also evidence as to the amount of money that his services made for appellant. All of this testimony was incompetent, and was admitted over objections of appellant, to which exceptions were preserved. This proof was calculated to prejudice the jury against appellant. There were but two questions at issue: First, what was the amount or what were the amounts which it was agreed should be paid as wages for the times of service in dispute, and second, what payments had been made thereon for the services so in dispute? It is plain that to permit proof of poor meals and poor room for lodging, or of how much was made by appellant from appellee’s services, was to distract the attention of the jury from the issues in the case, and to prejudice them against the defendant, and to induce a verdict upon matters not at issue.

Appellant was allowed, without objection, to testify from a memorandum book made by himself. On appellant’s cross examination, a controversy arose between counsel as to the right to inspect such memorandum book, counsel for appellee contending that he had a right to inspect the whole book, counsel for appellant as vigorously insisting that counsel for appellee’s right of inspection was limited to appellee’s account. The court made several attempts to regulate the conduct of counsel, and to quell the uproar occasioned by their vociferous criminations and recriminations, without succeeding, and apparently to dispose of a troublesome subject, of its own motion, excluded all the evidence which appellant had given, based upon his book accounts. An exception was preserved to this ruling. The ruling deprived appellant of his defense of payment and was erroneous.

Many things said by counsel for appellee during the introduction of the testimony, and in the argument to the jury, which were outside the issues, were improper and calculated to, and undoubtedly did, prejudice the jury against appellant’s theory of the case. Counsel not only commented on the poor character of the board and room where appellee slept, but accused appellant of treating appellee as a slave, and of getting very rich out of his services and out of the services of other boys brought over from Greece, and that he was about to retire upon a competency made in that way. Exceptions were taken many times to these remarks and these exceptions should have been sustained. We do not deem it necessary to consider other errors assigned, but for those indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Edward Guthrie, Appellee, v. The Empire Coal Company, Appellant.
    Gen. No. 5,198.
    1. Mines and Minees Act—when recovery for wilful violation authorized. If one employed in a mine is struck by a train of pit cars which did not display a light as required by the statute, a recovery will be sustained.
    2. Mines and Minees Act—when instruction as to quantum of proof not erroneous. In an action charging a wilful violation of the Mines and Miners Act, held, that it was not error for the court to instruct the jury that it was not necessary that the plaintiff should establish his case by the evidence beyond a reasonable doubt; but that to entitle him to recover it was sufficient if he proved his case by a preponderance of the evidence.
    3. Evidence—propriety of questions as to willingness to submit to physical examination. Held, that the refusal of the trial court to permit counsel to ask a plaintiff,, suing for personal injuries, in the presence of the jury, whether he was willing to submit his body to an examination, was not reversible error.
    4. Vebdict—when not excessive. Held, in an action on the case for personal injuries, that a verdict reduced by remittitur from $4,600 to $3,200, was not excessive where it appeared from the evidence that the plaintiff at the time of the accident weighed 170 pounds, was earning $2.50 per day and that much of the time he was able to do the work of a robust man and that as a result of the effects of this injury upon whatever diseased condition already existed in his system, he had not been able to work any since and has become a physical and mental wreck.
    Action in case for personal injuries. Appeal from the Circuit Court of Mercer county; the Hon. Fbank D..Ramsay, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Church & Church, William Jackson, George A. Cooke and John M. Wilson, for appellant.
    Oscar E. Carlstrom and N. J. Graham, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a suit brought by appellee to recover damages for injuries sustained November 9, 1906, as the result of being struck by a train of pit cars in appellant’s mine where he was employed. The cause was before this court and the judgment reversed and the opinion filed August 10, 1908. 142 Ill. App. 332. At the former trial, the case was submitted to the jury upon a declaration containing two amended counts. The first charged a wilful failure to carry a conspicuous light on the front end of every trip or train of pit cars moved by machinery as required by section 21 (a) of the Mines and Miners Act, and that a train of pit cars violently struck appellee, threw him to the ground and injured him. The second count charged a wilful violation of said section in a failure to cut places of refuge in the side wall on the hauling way of the mine; and that while appellee was traveling on the hauling way, a train of pit cars approached and struck him in the back and injured him. On the former appeal, it was held that the court erred in excluding proof that there was adjacent to the' main hauling way, a way provided in winch the men could go to and from their work, and notices posted requiring them to use that way and not travel on the main hauling way; that appellee had been especially warned, and had promised that he would not go in the main hauling way again. Before the second trial, appellee dismissed the second count. There was a verdict for $4,600, a motion for a new trial was made, and the court required a remittitur of $800. The motion for a new trial was denied, and judgment was entered for $3,800 from which the company appeals.

In the mine was a main south entry or hauling way on an inclined plain, and off this were a number of entries running east and west nearly opposite each other, and about three hundred and fifty feet apart. Off these entries were rooms; those off the east entries were driven to the north, and those off the west entries to the south. The east entries were numbered by odd numbers beginning at the shaft, and the west by even. Parallel with the south entry, and about forty feet west of it, was a way provided for the men to go to and from their work, variously called the man way, passing way and traveling way. The west entries extended to this man way. Over the south entry or main hauling way, cars were moved by cables attached to an engine located a little north of the shaft bottom. One cable, called the main rope running between the rails, was hitched to the north end of the train of cars or trip, and used to haul the loaded cars north to the shaft. Another cable at the south end of the trip called the tail rope, was used to haul in the empty cars, and ran over a drum at the mouth of the eleventh east entry, then passed along in the roof of the hauling way near the east side, over pulleys and back to the shaft. When cars were drawn into the mines,' the force of the engine was applied to a drum to which the tail rope was attached, and the drum to which the main rope was fastened, ran loose, allowing the main rope to unwind. When loaded cars were drawn out, the process was reversed. Both cables were always in motion when empty cars were being hauled north to the pit. As a train of cars was approaching from the south, the cable in the roof was running the other way. At the mouth of the ninth east entry, where appellee was picked up after the injury, the roof was about five feet high, and the cable ran three or four inches below it.

From appellee’s testimony, it is apparent that he was in an exceedingly feeble mental condition at the time of the last trial, and great stress is placed by appellant upon the apparent inconsistencies in his testimony. He was uncertain about many things and contradicted himself many times, but adhered to his statement that it was the trip car that struck him. A cousin of appellee’s who apparently had not been on very good terms with his family, testified that she had a conversation with him soon after the accident in which she asked him if the car ran over his hands and he replied, “No,” that if it had been the car, it would have taken it off; that it must have been the tail rope. Upon this testimony, and the fact that his hand was torn rather than crushed, appellant argues that appellee was not struck by the trip, but that he got hold of the tail rope and his hand was lacerated by coming in contact with the pulley. Appellee testified that the car struck him on the left side, and the evidence shows that the left side of his head, his left shoulder, hip, side, arm and hand were injured, and it is not likely that he would have received such injuries from taking hold of the cable running in the roof. The jury had a right to weigh the testimony of these witnesses, and, in our opinion, were justified in crediting the positive testimony of appellee, rather than that of a possibly prejudiced witness as to a statement alleged to have been made by appellee at a time of great physical suffering. When all his evidence is carefully considered, we think it clearly appears that appellee left his work in the ninth room off the eleventh east entry; that he went west on the eleventh east, and across the main hauling way to the man way provided by appellant, and then north some distance in the man way; that his light went out, and he being in total darkness became confused, left the man way, went across the main hauling way near the mouth of the ninth east, and was struck by a trip going north to the shaft without displaying the light required by the last sentence of section 21 (a) of the Mines and Miners Act. Even though an employe should not travel along the main hauling way, as we held in our former opinion, yet employes had to be constantly crossing the main hauling way in passing to and from the various entries, and were not safe in so doing without the protection afforded by the light at the front of the trip. A miner’s light might go out at any time and he would be in great peril if he chanced to stray from the man way to the hauling way, and trains ran thereon without the light required by statute.

Hugh Jones, a witness for appellee, testified in chief that he asked appellee what was the matter when he found him lying upon the ground after the accident and that appellee told him. On cross examination, appellant asked Jones what appellee told him, and the court sustained an objection thereto. This ruling was proper as the witness had not stated what appellee said. Indeed, if appellee had sought to prove what appellee said, appellant would no doubt have objected. Appellant afterwards called Jones and asked what appellee did say as to how he got to that place, and the question was answered, and counsel could have inquired further had he seen fit.

Appellee admitted that he had received sick benefits a few months before the injury, but he did not know how much or for how long a time. Appellant sought to prove by the books of the society, the length of time that he had received such benefits. The court held this proof not competent, but did hold that appellant could prove whatever appellee said. We see no error in this ruling.

Appellee was asked, in the presence of the jury, if he were willing to submit to an examination by physicians appointed by the court. On objection, the court ruled that appellant might ask him if he were willing to submit to an examination of Ms left side, left hand, and the left side of his head by physicians appointed by the court, in order that they might show the results of their examination. Appellant refused this offer, and the court sustained appellee’s objections to questions as to his willingness to submit his whole body to the examination of physicians in order that they might testify, and this ruling is assigned as error. No authority on this exact question has been called to our attention. In City of Chicago v. McNally, 128 Ill. App. 375, a suit to recover damages for personal injuries in which the court refused to allow counsel to ask plaintiff if she were willing to submit to a physical examination by an expert selected by the court, or by some specialist on nervous diseases, or by some one selected by some member of the jury, the court said, in passing on an assignment of error on this ruling: “The question presented is a new one, and has not been passed on by the Supreme Court, and we are not inclined to hold that the refusal of the trial court to permit the plaintiff to be asked, in the presence of the jury, whether she was willing to submit to a medical examination, is reversible error.” On appeal in City of Chicago v. McNally, 227 Ill. 14, the Supreme Court said: “The question whether or not one may be asked, in the presence of the jury, as to his or her willingness to submit to an examination has never been before us for decision. We think the question in the form it was asked was properly refused.” We hold that the refusal of the trial court to permit counsel to ask appellee in the presence of the jury whether he were willing to submit his body to an examination, was not reversible error, especially as the offer of the court gave to appellant all the latitude to which it was entitled.

Section 33 of the Mines and Miners Act makes a wilful neglect, refusal or failure to do the thing required by any section, clause or provision of the act, a misdemeanor punishable by fine or imprisonment or both. The court instructed the jury that it was not necessary that appellee should establish his case by the evidence beyond a reasonable doubt; that to entitle him to recover it was sufficient if he proved his case by a preponderance of the evidence. Appellant contends that this was error, and relies upon The People v. Sullivan, 218 Ill. 419, to support this contention. The Sullivan case was a prosecution by information to enforce the penalty of an alleged violation of sections 33 and 272 of the criminal code. While our attention has not been called to a case where this precise question has been decided, we feel compelled to be controlled by the rule announced in Woods v. Daily, 211 Ill. 495, and cases there cited. The Woods ease was an action on the case by appellee to recover damages for an injury sustained to her means of support in consequence of the death of her husband, alleged to have been caused in whole or in part by the sale to him of intoxicating liquors. There the court instructed the jury that a preponderance of the evidence was sufficient upon which to base a verdict for the plaintiff and the court in passing on an assignment of error predicated thereon, said,-“We do not view that question as an open one in this court. In the case of Hall v. Barnes, 82 Ill. 228, which was an action by the wife under the Dramshop act, the court said: * * * ‘While it is true the action is penal, and the material allegations in the declaration must be fully proven, yet it is not necessary the evidence should exclude all reasonable doubt. It is sufficient if there is a preponderance of evidence.’ * * * This is an action to recover damages, and not to recover a fine or a penalty (Robinson v. Randall, 82 Ill. 521) and this court, in that class of cases, has uniformly approved instructions which have informed the jury the plaintiff need only establish his case by a preponderance of the evidence. * * * In Miller v. Balthasser, 78 Ill. 302, which was an action of trespass to recover damages for criminal assault, the court, on page 305, said: ‘It is said, where the offense charged is of so grave a character, more than a bare preponderance of the evidence should be required to warrant a verdict. This is not, however, a criminal or penal action, but is merely a civil action, brought to recover damages for a personal injury. The judgment involves neither the life nor the liberty of the defendant, and we are aware of no authority that would require the plaintiff to establish her cause of action by more than a preponderance of the evidence.” The suit at bar is to recover damages for personal injuries resulting from a wilful violation of a provision of the Mines and Miners Act, and not a criminal or penal action to recover or enforce the penalty for its violation, and the Sullivan case is not in point. We conclude that it was not error for the trial court to instruct the jury that it was sufficient to entitle appellee to recover if he proved his' case by a preponderance of the evidence.

It is contended that the damages are excessive, and that appears to us to be the most serious question presented by this record. At the time of the accident appellee weighed one hundred and seventy pounds. At the last trial he weighed one hundred and eleven pounds. It is evident that he is now a physical and mental wreck. At the time of the accident, he was earning $2.50 a day. Some witnesses called him a strong, robust man. He had worked on a farm in the summer season doing hard work. It does appear, however, that five or six years before this injury, he had syphilitic sores upon his palate which necessitated an operation, which affected his speech, and that his hearing was bad; that during the year preceding that in which he was injured he had been treated for syphilitic troubles and that he was then in the third stage of syphilis. A physician examined him for admission into a life insurance company about a year before the injury and certified that he had no syphilis and was in good health. During the summer or early fall preceding the November in which he was injured he received sick benefits from a local beneficiary society, and there had been many times during the preceding five years when he appeared to be in bad physical condition. A physician testified that syphilis could be developed by receiving a hard blow or severe injury so that one who might have lived for a great while would have the disease increased in violence by severe injury. The physicians did not testify that they told appellee that he had syphilis and it is conceivable that appellee did not know what the matter was with him. The proof, then, is to the effect that he weighed one hundred and seventy pounds when injured and was earning $2.50 a day and much of the time was able to do the work of a robust man, and that, as a result' of the effect of this injury upon whatever diseased condition already existed in his system, he has not been able to work any since and is now a physical and mental wreck. While perhaps we might have been better satisfied had a smaller verdict been returned, yet, since the trial judge has reduced it to $3,800, we do not feel warranted in making a further reduction, or in granting a new trial because the judgment is excessive.

It is unnecessary further to discuss in detail the objections made to the ruling of the court on the instructions. Enough has been said elsewhere in this opinion to justify the court in giving appellee’s instructions, and the important elements contained in appellant’s refused instructions were embodied in its given instructions.

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

Affirmed.


text:
    John Andreicyk, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    Gen. No. 5,204.

      Instructions—when upon preponderance of evidence erroneous. An instruction which details the various elements which the jury may consider in determining upon which side the preponderance of che evidence lies, is erroneous if it omits a reference to the number of witnesses testifying upon a side, such element being important in the case and not supplied by any other given instruction.
    Action in case for personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    W. R. Hunter, for appellant; Homes T. Dick, of counsel.
    E. P. Harney, N. L. Piotrowski and Cooper & Hobbie, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant’s double track railroad runs north and south from a point south of Woodland junction to Chicago through Momenee where it crosses the Kankakee river. North of the river it crosses the C. & I. S. B. B. at right angles. Its round-house, coal sheds, freight yards and shops are situated on the south side of the river and its depot on the north side. Between appellant’s tracks, about six hundred feet north of the depot at a point where a “Y” connects the C. & I. S. B. B. with the tracks of appellant is a signal about three feet high called a “dwarf” or “pot” signal. On November 17, 1907, appellee was found injured lying from ten to twelve feet north of this signal, and this suit was brought to recover damages for such injuries. The declaration contained three counts. The first alleged that appellee was lawfully on appellant’s train by invitation, and that its servants maliciously threw him with great force off said train under the wheels, and thereby one of his feet was cut off and the other mangled. The second count alleged that while appellee was riding on appellant’s train, its employes, acting within the scope of their authority, wilfully and wantonly beat appellee and threw him off said train. The third count alleged that appellant’s servants wantonly and wilfully caused appellee to be thrown off said train. A plea of not guilty was interposed, and a trial had, resulting in a verdict for appellee for $10,500. A motion for a new trial was denied, judgment was entered on the verdict and the company appealed.

Appellee’s account of the accident and the account of it given by appellant’s witnesses vary greatly, and on all vital points, one is flatly contradictory of the other.

Appellee testified that he was twenty years old, and could not speak or understand much English; that he came from Russian Poland in June, 1907, to Detroit, Michigan; that he left Detroit, November 12, 1907, and went to Charlestown, West Virginia, where he stayed two days; that from there he went to Cincinnati, and left there Friday morning on a freight train for Chicago ; that by riding on freight trains and walking he reached Momence about noon, Sunday, November 17, where he stopped at a coal shed; that a freight train came and he walked alongside it; that somebody on the engine made a motion with his hand for him to get on the rear; that there were two persons in the window of the engine and after he had boarded the train there were three; that he got on an open coal car next the engine while the train was standing still, and in about three or four minutes it started, and a man came from the engine and asked him in English where he was going and he told him Chicago; that the man told him to give him money and he said he had none; that another man came from the rear and they searched his pockets and took a razor; that another man came from the engine and struck him lightly on the head with a shovel twice and told him to get off; that he stepped on a hoard where they coupled cars; that a man was standing on the same board and another was sitting in the corner of the car; that one took hold of his right hand and started to pull Mm and the other got him by the waist and they threw him off; that he was taken to the doctor’s, and when he woke he had only one leg and the other was wrapped up. A witness for appellee testified that he was on the “Y” going towards the depot when he heard a cry and looked under the train and saw this boy between the north and south bound tracks; that when the train had passed he went over where he was; that he lay about twelve feet north of the pot signal; that the tram was within ten or fifteen feet of the witness when it-passed; that when it got up a way, eight or ten cars, he saw two or three men next the engme; that to the best of his remembrance the next car to the tank was a coal car.

The fireman testified that he first saw appellee at Coaler where he climbed into the cab of the engine and offered to break coal to get a ride; that appellee climbed back over the tank and the next time he saw him was at Momence; that they picked up five or six cars south of the river there, and the head brakeman climbed into the engine cab and rode there through the city; that after they were across the river, he saw appellee outside the track and just as the engine got opposite him the head brakeman motioned appellee to get on; that he started to do so and grabbed the second or third box car behind the engme, and just as he got hold of it, a dwarf or pot signal struck Mm; that neither the witness nor the head brakemen left the cab from the time the brakeman got in until after the accident. The conductor testified that he first saw appellee at Woodland junction, which was some thirty miles south of Momence; that appellee jumped off and he next saw him at Coaler; that he went up where appellee was and told him to get off and stay off, and that appellee went away; that between St. Anne and Momence he found appellee in a car of coal next the engine and told him to get off at the next stop and go away, and that appellee promised he would; that when they got to Momence, they picked up five box cars and three coal cars which were coupled on with the box cars next the engine, and that there he saw appellee in the yards; that the first notice he had of trouble was after they had started he heard some one scream and saw appellee lying on the ground; that he did not throw appellee off the train and did not see any one else do it; that the brakeman called his attention to the pot signal and that it was bent over; that the engineer, fireman, rear and head brakeman and himself were the only members of the train crew. The rear brakeman testified that he first saw appellee at Woodland junction; that the conductor put bim off a mile south of Coaler; that they stopped at Coaler; that the witness went back to flag the rear and appellee passed him going towards the train; that when they were near St. Anne, he saw appellee and the head-brakeman sitting in a coal car next the engine talking; that just south of the river he saw a young fellow grab a car and get on ahead of a box car; that the first thing he saw of the accident he heard appellee cry out and saw him between the tracks; that when he got off he saw the signal was broken. A baggageman testified that at seven o’clock that morning the signal was all right. The engineer testified that he first saw appellee at Coaler in the cab of the engine; that appellee wanted to break coal for his passage to Chicago; that he told appellee he must get off and that he climbed over the tank; that he saw appellee again at Papineau in the first car with the head brakeman; that from the time the train left the yard on the south side of the river at Momence until he stopped north of the “Three I” railroad, he did not go out of his cab, and during all that time his fireman and the head brakeman were with him. The head brakeman was not a witness. There was evidence that three boys got on the train as it passed the depot south of the point of the accident, and that after the train stopped they left the train.

As the judgment must be reversed for an error of law, we refrain from expressing any opinion on the merits of the case, except to suggest that the preponderance of the proof seems to favor appellant’s theory of the case.

At the request of appellee the court gave the jury an instruction which detailed the various elements which they were to consider in determining upon which side was the preponderance of the evidence. It omitted the number of witnesses testifying concerning the controverted facts as one of the elements to be considered in determining which version of the facts were established by the preponderance of the evidence. In this respect it was like the instruction upon that subject discussed in Elgin, Joliet & Eastern Ry. Co. v. Lawlor, 229 Ill. 621. The number of witnesses was one of the elements to be considered. Gage v. Eddy, 179 Ill. 492; Chicago Union Traction v. Hampe, 228 Ill. 346. In this case the number of witnesses was a very important element for appellant. In the Lawlor case, the court said respecting an instruction that omitted the number of witnesses, “We do not think it can be said that this court has given its unqualified approval to this instruction, or that it might not be misleading in a case where the question of numbers was important and no other instruction was given supplementing it.” In Chicago Union Traction Company v. Hampe, supra, the court, in passing on an instruction which omitted any reference to the number of witnesses testifying pro and con and concluded “and from all these circumstances determine upon which side is the weight or preponderance of the evidence,” said, “This instruction directed the jury to determine the matter of the preponderance from the elements mentioned in the instruction. It omitted one very important consideration and for that reason should have been refused.”

In the case at bar the element omitted was not embodied in any other instruction, and, as the record shows that appellee’s testimony in support of the averment in the declaration that he was thrown from the train by appellant’s employes, is not corroborated by the testimony of any witness, and by scarcely any facts or circumstances in evidence, and that it was contradicted by the testimony of the engineer, fireman, conductor and rear brakeman, the element of the number of witnesses testifying pro and con upon that subject was of great and perhaps controlling importance to appellant, and its omission from this instruction was serious and reversible error.

For that error, the judgment is reversed and the cause remanded.

Reversed and remanded.