text:
    Fred D. Holt, Appellant, v. City of Moline et al., Appellees.
    Gen. No. 6,132.
    1. Pleading, § 42

      —when original declaration abandoned. A party who elects not to abide by his original declaration, but obtains leave to amend it and flies an amended declaration, abandons his original declaration.
    2. Municipal corporations, § 1122

      —when city not required to keep park in safe condition. A city is not required by law to keep every part of a public park safe for public travel.
    3. Pleading, § 52

      —when declaration insufficient. It is not sufficient for a declaration to aver that a particular duty arises upon defendant, but it must state the facts from which the law will raise that duty.
    4. Pleading, § 45

      —how question as to whether new cause of action stated in amendment determined. The question whether the cause of action stated in an amended declaration was stated in the original declaration is determined by a comparison of the two declarations.
    5. Limitations, statute of, § 58

      —when cause of action barred. On amendment of a declaration if amendment is found to be a different mode of stating the same matter, the statute of limitations which ran after the original declaration and before the amendment was filed is not a defense.
    6. Limitation of actions, § 71

      —when statute does not run in action against city. In an action against a municipal corporation to recover for personal injuries alleged to have arisen through its negligence, amendments of pleadings examined and held not to state a cause of action subject to a plea of the statute of limitations.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 20, 1915.

      W. R. Moore and Dietz & Sinnett, for appellant.
    James M. Johnston, for appellees.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Holt sued the City of Moline and the Tri-City Railway Company in an action on the case in the Circuit Court of Bock Island county and filed a declaration containing five counts. The city demurred thereto and the demurrer was sustained. A demurrer by the railway company was also sustained, and leave was granted to plaintiff to amend his declaration, and afterwards he filed an amended declaration containing eight counts. The city demurred thereto and the demurrer was sustained as to counts 1 to 5 thereof and overruled as to counts 6, 7 and 8. To said counts 6, 7 and 8, the city filed a plea of not guilty and two pleas of the statute of limitations. Holt demurred to said pleas of the statute of limitations and that demurrer was overruled. Holt elected to abide by his demurrer to said pleas and the city had a judgment in bar against Holt, from which Holt prosecutes this appeal and assigns three errors, namely: (1) that the court erred in sustaining the demurrer of the city to the original declaration; (2) that the court erred in sustaining the demurrer to the first five counts of the amended declaration; and (3) that the court erred in overruling the demurrer to the pleas of the statute of limitations, filed by the city, and in entering final judgment for the city in bar of the action.

Appellant did not elect to abide by his original declaration, but obtained leave to amend his declaration and filed an amended declaration. He thereby abandoned his original declaration. This record therefore does not present the question whether the court erred in sustaining the demurrer of the city thereto.

The case stated against the city in the several counts of the amended declaration is that on July 4,1912, and for many years prior thereto, the city had control of certain public grounds, known as ‘ ‘ Outlot 2 ’ ’ in Prospect Park in said city, except that part of said outlot occupied by the railway company’s track, and that said city owed a duty to keep said lot in safe condition and free from obstructions liable to injure persons lawfully passing over said lot; that the railway company then and long prior wrongfully had on a part of said out-lot certain planks, rails, iron junk and a snowplow; that in disregard of its duty the city permitted said outlot to be in a bad and unsafe condition, with the said snowplow and other articles thereon, without guards, lights and warning to prevent people resorting to said park from falling over said articles and being injured, and that the appellant, while in the exercise of due care for his own safety, unavoidably stumbled over said articles and was injured. The first five counts of said amended declaration did not state any facts which made it the duty of the city to keep this particular place safe for public travel, unless that duty may justly be inferred from the allegation that these were public grounds and a park possessed and controlled by the city. We are of the opinion that a city is not required by law to keep every part of a public park safe for public travel. Certain parts of a public park should be kept in a safe condition for public travel, but there often are in such a park, ponds, lakes, knolls, ravines and forests not intended and not understood by the public to be intended for public travel; and machinery and appliances with which a park is kept in order may very reasonably be stored in some part thereof. It is not sufficient for a declaration to aver that a particular duty rested upon a defendant, but it must state the facts from which the law will raise that duty. Mackey v. Northern Milling Co., 210 Ill. 115; McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232. The demurrer was therefore properly sustained to the first five counts of the amended declaration.

The sixth, seventh and eighth counts of the amended declaration did fully and in various ways state a long-continued custom of many people to resort to this particular part of the park with the knowledge of the city, and apparently stated a good case against the city. The remaining question is whether these counts stated a new cause of action against the city or were only a restatement and more ample statement of that which was imperfectly alleged in the original declaration. If they stated a new cause of action, the demurrer to the pleas of the statute of limitations was properly overruled. If they restated a good cause of action defectively stated in the original declaration, then the demurrer to these pleas should have been sustained. Chicago City Ry. Co. v. Cooney, 196 Ill. 466; Salmon v. Libby, McNeil & Libby, 219 Ill. 421; St. Louis Merchants’ Bridge Terminal Ry. Ass’n v. Schultz, 226 Ill. 409; Lee v. Republic Iron & Steel Co., 241 Ill. 372; and McInerney v. Western Packing & Provision Co., 249 Ill. 240. Under our practice the question whether the cause of action stated in the amended declaration was stated, though defectively in the original declaration, is determined by a comparison of the two declarations ; and if they are found to be different modes of stating the same matter, the statute of limitations which has run after the original declaration and before the amended declaration was filed, will not be a defense. Chicago & N. W. Ry. Co. v. Gillison, 173 Ill. 264. We discussed this question in Sehnert v. Schipper & Block, 168 Ill. App. 245, on pp. 250-254. The fourth count of the original declaration alleged that the city possessed and controlled said outlet No. 2 (except that part thereof occupied by the railway company) as a part of Prospect Park, and that that part of said park was frequented by a large number of people. We conclude that that allegation defectively stated the matter absent from all the other counts of the original declaration and absent from the' first five counts of the amended declaration, and fully and elaborately set forth in the sixth, seventh and eighth counts of the amended declaration, and that therefore the three counts last named did not state a new cause of action, but stated with much more particularity and completeness the cause of action defectively stated in the fourth count of the original declaration. The demurrer by appellant to the pleas of the statute of limitations should have been sustained. The judgment is therefore reversed and the cause remanded with directions to sustain the demurrer to the pleas of the statute of limitations.

Reversed md remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Thomas Claffy, Administrator, Defendant in Error, v. Mary Farrell, Plaintiff in Error.
    Gen. No. 5,758.
    1. Executors and administrators, § 397

      —when a decree for sale of homestead should not be made. Where an intestate had an estate of homestead in land sought to be sold for the payment of debts for which payment the personal estate of intestate was insufficient, it was error to decree the sale prayed for unless the estate of homestead was waived or assigned in the manner provided by law.
    2. Homestead, § 83

      —when widow does not abandon homestead by remarriage. In case a widow having a homestead estate in land of a deceased husband remarries, she retains her homestead estate in such land notwithstanding the second marriage, but the second husband and his children acquire no such estate in such land.
    3. Executors and administrators, § 397

      —when homestead cannot be sold for debts. Land belonging to an intestate which was his homestead cannot be sold to pay his debts where it appears that the value of the land above incumbrances is not in excess of $1,000.
    4. Executors and administrators, § 396

      —what interest of intestate in land may be sold to pay debts. The interest of an intestate in land in which he had no homestead estate, but wherein his wife had such an estate, may be sold to pay debts subject to such, homestead estate.
    5. Execution, § 9

      —when interest of heir in land may be sold subject to homestead of wife. The estate of an heir in land may be levied upon and sold for the payment of his debts subject to the homestead estate of his wife in such land.
    6. Execution, § 8

      —when remainder in land subject to homestead may be sold. The estate of a remainder-man in land subject to the homestead estate of another person, whether assigned or not, maybe subjected to the' payment of the debts of such remainder-man, either before or after his death.
    7. Executors and administrators, § 397

      —when decree ordering sale of land subject to homestead not erroneous. In a petition by an administrator to sell the real estate of his intestate to pay debts where the personal estate of the intestate w,as insufficient to pay such debts, a decree ordering such sale subject to the homestead estate of intestate’s widow held not erroneous, where intestate in his lifetime had no homestead estate in such land.
    8. Appeal and error, § 1270

      —when appellate court will presume evidence sustained finding in decree. Where, on appeal from a decree finding facts to sustain it, there is no certificate or other showing of the evidence on which the decree was made, and where the record does not purport to show all the proceedings in the trial court, the Appellate Court will presume that the evidence sustained the finding of facts in the decree unless it appears from the record that the decree was not or could not be sustained thereby, and will not without evidence presume that the evidence was inconsistent with the facts found and the conclusion therefrom in the decree.
    9. Executors and administrators, § 417

      —how administrator claiming property as mortgagee brought in as party to action to sell land for debts. In a petition by an administrator to sell the real estate of his intestate to pay debts for the payment of which intestate’s personal estate was insufficient, which petition alleges that the title to the real estate sought to be sold was in plaintiff individually as mortgagee, and where such administrator filed in the cause an individual appearance as such mortgagee in the usual form of such entries in chancery suits, a decree of sale fixes such mortgagee’s rights in the property as an individual, and brings him into court as effectually as though the court had expressly ordered that he be made a defendant in the cause, it being unnecessary in such ease for plaintiff to procure an express order making him a defendant as an individual, or to have summons issued and served on him individually as a lien holder as required by section 102 of the Administration Act (J. & A. ¶ 151).

      10. Parties—how character in which party acts is to he determined. The character in which a person is in court is to be determined from the body of the pleadings in the action.
    11. Parties—when administrator in court in representative capacity. It is possible for a person to be in court in a representative and not in an individual capacity where on the evidence he might be in court in either capacity, as for example, where an administrator who appears as petitioner for leave to sell real estate of his intestate to pay debts, for the payment of which the personal estate of intestate is insufficient, is also, in his individual capacity as mortgagee, the holder of the title to such real estate.
    12. Appeal and error, § 1268

      —when presumed appearance regularly made. On appeal from a decree where it appears from the record that a defendant appeared by an agent after summons had been issued but not served on such defendant, the Appellate Court will presume that evidence was offered as to the authority of the agent to enter appearance for such defendant or that some other entry of appearance was made, where the decree finds that such defendant did enter an appearance in the cause without saying on what evidence the finding is based and where there is no certificate of evidence.
    13. Appeal and error, § 1273

      —when presumed that evidence heard in support of findings of County Court. On appeal from a decree of the County Court, the proceeding in which the decree appealed from was entered is to be aided by every presumption that evidence was heard in support of the findifig of facts contained in the decree which would prevail if the proceeding had been in the Circuit Court.
    Error to the County Court of Lake county; the Hon DeWitt L. Jones, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Edwin L. Waugh and Hamlin & Topliff, for plaintiff in error.
    Cooke, Pope & Pope, for defendant in error.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

We have heretofore sustained a demurrer to pleas of release of errors filed by certain of the defendants in error, and given such defendants leave to join in error. We recited in the opinion then filed (196 Ill. App. 65), the assignment of errors and the condition of the record so far as deemed necessary for the consideration of the questions then before us, and we will not here repeat what we there said. The defendants, Thomas Claffy, Joseph M. Barron, William Ryan, Tobias Jensen, William C. Upton and E. M. Hauser have filed their joinder in error. In the decree, after stating the .venue, title of the court and the. cause, it is recited to the effect that on the 9th day of August, 1895, came the petitioner by his attorneys, and upon their motion it appearing to the court that each and all of the defendants therein except the defendant, Jane E. Shaw, had been duly and personally served with summons therein ten days and more before the first day of the ten present term of said court; and that the defendant Jane E. Shaw had in writing waived the issuing and serving of process therein, entered her appearance and consented to a hearing at the then present term of said court. That the infant defendants, Edward Farrell and Mary Farrell, by Lewis 0. Brockway, their guardian ad litem, had filed their answer and the petitioner his replication to the same, and that the adult defendants having failed to plead, answer or demur to said petition as required by a former order of court, had therein failed and made default. That it was therefore ordered, adjudged and decreed by the court that each and all of the adult defendants be defaulted for noncompliance with said order. That said default be entered and said petition taken as confessed by each and all of the said adult defendants. That thereupon the cause coming on on that day (August 9, 1895) to be heard upon the petition taken as confessed by each and all of the adult defendants, the answer of said infant defendants by their guardian ad litem and the replication to such answer and the proofs both oral and documentary taken and heard in open court, and the court having heard the evidence and the arguments of counsel and being fully advised in the premises, on consideration thereof, found that each and all of the material allegations in the petition contained were true as therein stated; that the court had jurisdiction of the subject-matter of said cause and of each and all of the parties thereto.

And the court further found that William E. Farrell, named in said petition, departed this life intestate at said county of Lake on March 15, 1894; that the petitioner on or about the 6th day of March, 1895, was duly appointed administrator of the estate of said deceased, and gave bond and duly qualified; that an inventory and appraisement bill in said estate had been duly made, filed and approved; that the petitioner had rendered to said County Court a just and true account of the personal estate and debts of said deceased, which had been duly approved; that the personal estate of said deceased amounted to $90; that the debts and demands allowed against said estate, including widow’s award, amounted to $792.86; that there were just claims to be presented against said estate to the amount of $600; that there had come to the hands of the petitioner, personal estate to the amount of $90; that there was a deficiency of personal property to pay the debts of said deceased, which amounted to about $1,200.

That said William E. Farrell, deceased, died seized of certain real estate in said county of Lake (here follows a description of the real estate described in petition for leave to sell, closing with a statement that the lands described consisted of one hundred forty-three acres, more or less), and then stated that while the legal title to the same was in Thomas Claffy, he, in fact, held said title as a mortgage on which $2,000 was due, subject to the mortgage of the defendants, Jane E. Shaw and J. A. Moulton, amounting to $4,000.

That said deceased left surviving him the defendant, Catherine Farrell, as his widow, having dower and homestead interest in said real estate; and the defendants, Edward Farrell and Mary Farrell, as Ms children,. and only cMldren heirs and only heirs at law; and that both of said children were infants under the age of legal majority respectively.

And the court further found that all the things necessary to be done in order to obtain said decree had been regularly done in the manner required by law, and the petitioner having given the bond required by law in a proceeding for the sale of real estate of deceased persons for the payment of debts, in the sum of $3,500 with surety, to the satisfaction of the court, and that said bond and surety were thereby approved.

That it was theretofore ordered, adjudged and decreed by the court that the petitioner proceed to make sale of the right, title, interest and estate of the said William E. Farrell, deceased, in and to all of the real estate in said decree described; that said sale be made at public auction to the highest bidder for cash, at the east door of the courthouse in the City of Waukegan, County of Lake, and State of Illinois, on such day as the petitioner might appoint between the hours of ten o’clock in the forenoon and five o’clock in the afternoon, and give notice and advertise said sale in the manner required by the statute in such case, made and provided, that upon making such sale he make report thereof to the court, and upon the approval of such report and confirmation of such sale he convey the premises to the purchaser thereof.

The principal error complained of is number 4 of the assignment, and in the brief of plaintiff in error she grounds her argument on the following statement: The real estate which constituted a homestead and which was also subject to dower was sold contrary to the statute and for less than $1,000, to a party to the proceeding without setting off homestead or dower, and without the consent of the widow filed in the proceeding, as provided by statute. If the premises in question were the premises of deceased, we are of the opinion, as we stated in passing on the demurrer to pleas, that it was error to decree their sale unless the homestead was waived or assigned in the manner provided by law, which was not done. But we find nothing in the record from which it can be determined that the premises were the homestead estate of the deceased. The land in question is located on several different forty-acre tracts, but adjacent so that it might have been occupied and inclosed, as a farm. There is nothing in the record indicating where the dwelling house may have been located. It does not appear that it was the homestead of deceased except by inference from the allegations in the petition for sale of real estate and the finding in the decree of sale that the widow of deceased had homestead and dower rights in the land. It is quite possible that she had a homestead interest that she did not acquire by her marriage and residence with deceased. This may have been the land of a former husband, and she may have acquired a homestead estate in this land as his widow. In that event, neither William E. Farrel nor his children would have any homestead rights in the premises here in question; but she would have been entitled to a homestead estate notwithstanding her second marriage. Smith v. Rittenhouse, 260 Ill. 599. A reasonable assumption and a natural inference from the facts disclosed by the record is that the entire tract of land constituted one farm, inclosed and owned by deceased, that it was worth a few hundred dollars but not exceeding $1,000, in excess of the mortgage indebtedness of about $6,000, with which it was incumbered; therefore, if it was the homestead of deceased it could not be sold by his administrator for the payment of his debts. If, however, it was not the homestead of deceased, but was the homestead estate of his wife, the interest of deceased might be sold subject to such homestead estate in this proceeding. The estate of the heir may be levied on and sold for the payment of his debts subject to the homestead estate of the widow of deceased. Brokaw v. Ogle, 170 Ill. 115; Dinsmoor v. Bowse, 200 Ill. 555. And we assume the estate of any owner of a remainder, subject to a homestead estate of another person, assigned or unassigned, may be subjected to payment of the debts of such owner of the remainder either before or after his death. If the premises in question were not the homestead of William E. Farrel, deceased, in his lifetime, there was no error in decreeing their sale subject to the homestead rights of his widow. The decree recites that proofs both oral and documentary were heard. What those proofs were and what they tended to show we cannot know. The record brought here does not purport to show all the proceedings in the trial court, and contains no certificate of evidence and no other showing of what the proof was. Very likely the evidence was not preserved. It may be that the proof showed the usual condition of homestead in the widow derived from the marriage and residence with her deceased husband, and not the unusual condition of a homestead right in the widow of one man derived from her marriage and residence with another man, as in the ease of Smith v. Rittenhouse, supra. But we are bound to presume the evidence sustained the finding of facts in the decree, unless it appears from the record before us that it did not or could not sustain it. And we should not presume without evidence that something was proven inconsistent with the facts found and the conclusion therefrom in the decree.

It is urged that Thomas Claffy as an individual was not in court. He held the legal title to the land and filed the petition for sale to pay debts as administrator of the deceased. He recited therein the facts required by section 100 of our Administration Act (J. & A. ¶ 149), including the statement of his interest in the land as an individual. The petition did not follow the form of a bill in chancery in designating parties defendant and praying for summons, but summons was issued as required by section 102 (J. & A. ¶ 151), to the widow and heirs and persons holding liens other than Thomas' Claffy, and there was filed with the petition a written entry of appearance in the usual form of such entries in chancery suits, signed by Thomas Claffy, containing the title of the cause, naming Thomas Claffy, administrator, as petitioner, and Thomas Claffy, an individual, as one of the defendants. There is no express order of court making him a defendant, but the decree of sale fixes his rights in the property as an individual. We have no doubt he was in court as an individual as effectually as if summons had been issued against him. The character in which he was in court is determined from the body of the pleadings. 31 Cyc. 99; Kinsella v. Cahn, 185 Ill. 208. It is quite possible for a person to be in court in a representative and not in an individual capacity, as in the case of Cleveland v. Cleveland, 225 Ill. 570, cited by counsel; but nothing in that case, or in any other ease that we have been referred to, supports the contention of counsel that Thomas Claffy, as administrator, should have had summons issued and served on himself, or procured from the court some express order making him a party defendant in order to give the court jurisdiction of him as an individual.

It is also contended that Jane E. Shaw, who held the mortgage on the land prior to Claffy’s claim, was not in court. It appears from the record that summons was issued for Jane E. Shaw and not served. Her entry of appearance in writing, to which her name is signed by J. A. Holden as her agent, was filed in the case. It is insisted that this appearance did not give the court jurisdiction of her, because there is no proof of Holden’s authority to so act as her agent. But the court finds in the decree of sale that she did enter her appearance in the case and does not say on what it bases that finding. We must presume proof was offered of the authority of the agent or that there was some other entry of appearance by her that supports that finding. This preceding in the County Court is aided by every presumption of proofs heard in support of the findings of fact that would prevail if the proceeding was in the Circuit Court. Barnett v. Wolf, 70 Ill. 76; Glos v. People, 259 Ill. 332.

Plaintiff in error argues that the court erred in allowing certain claims after the date of the sale, of real estate. The record does not show when the claims were filed or contain any other data from which we can determine that question.

We are of the opinion that the record of the proceedings in trial court for the sale of land to pay debts discloses no error of that court. The decree is therefore affirmed.

Affirmed.


text:
    Carl Schneeweisz, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5,938.
    1. Railroads, § 615

      —when no question presented of violation of ordinance requiring automatic hell at crossing. In an action to recover for personal injuries sustained as a result of a collision between defendant’s railroad train and a wagon in which plaintiff was riding at the time of the accident, no question is presented of the violation of a village ordinance requiring the maintenance of an automatic bell at railroad crossings where the ordinance is not in evidence, although there is evidence that such a bell was maintained at such crossing at the time of the accident, but was not in operation.
    2. Negligence, § 3

      —what constitutes ordinary care. Ordinary care, as applied to the conduct of individuals, does not mean the highest degree of care.
    3. Negligence, § 1

      —what constitutes. Negligence is the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
    4. Negligence, § 198

      —when question for jury whether plaintiff guilty of contributory negligence. The question whether a plaintiff seeking to recover for injuries alleged to have been sustained as the result of defendant’s negligence was himself at the time of the accident in the exercise of the care for his own safety which a reasonable man would exercise under the same or similar conditions is a question of fact for the jury, unless the evidence of a want of such care is so clear that fair-minded men of ordinary intelligence would not differ as to the inferences to be drawn therefrom.
    5. Railroads, § 250

      —when presumed jury found that plaintiff acted as a reasonable person would have done in crossing tracks. In an action where plaintiff recovered a verdict for personal injuries alleged to have been sustained as a result of defendant’s negligence, the jury in finding for plaintiff must be presumed to have found that a reasonable man, guided by those considerations which ordinarily regulate human affairs would under similar circumstances have acted as the evidence shows plaintiff acted at the time of the accident.
    6. Railroads, § 755

      —when question for' jury whether plaintiff crossing tracks while view obscured guilty of contributory negligence. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s freight train and a wagon in which plaintiff was riding, which collision was alleged to be due to defendant’s negligence, and where contributory negligence was relied on in defense, and there was evidence that plaintiff’s view of the track in the direction from which such train was approaching was obscured by box freight cars and buildings standing on defendant’s right of way; that the ground was frozen and a high wind was blowing which, with the noise of the wagon on the frozen ground, tended to deaden the sound of the approaching train; that an automatic bell was maintained by defendant at such crossing which was not in operation at the time of the accident on which plaintiff might have relied to give warning of the approach of such train; and that, if the whistle and bell on the locomotive of such train were sounded, plaintiff did not hear them, held that it was a question for the jury whether plaintiff was guilty of contributory negligence, although plaintiff did not look and listen before crossing the track and there was evidence that had he done so he would have seen the approaching train.
    7. New trial, § 52

      —when not allowed because verdict against evidence. In an action where the evidence presents a question for the jury, a motion for a new trial will not be allowed unless the verdict of the jury was manifestly against the evidence, although the trial judge, if sitting as a juror, might not have consented to the verdict sought to be set aside, or, if trying the same case without a jury, might have found differently on the same facts, for the reason that if no verdict of the jury which did not meet the view of the trial judge as to the facts on which the verdict is found is to be accepted, the jury would be useless as a part of the trial.
    8. Appeal and error, § 1410

      —when finding conclusive on appeal. Although the present method of presenting a stenographic report of the evidence to a court of review has many advantages not possessed in former practice by a brief bill of exceptions, and better enables a court of review to determine the weight of evidence, yet where the trial court and the jury seem to have acted fairly and intelligently in reaching the conclusions sought to be reversed, a court of review has no power to reject such conclusions, although it may seem to such court that if it had acted in the place of such trial court and jury it might have reached a different conclusion.
    9. New trial, § 52

      —when properly denied because verdict not against manifest weight of evidence. In an action to recover for personal injuries sustained as a result of defendant’s negligence, because of a collision between, defendant’s railroad train and a wagon in which plaintiff was riding, a motion for new trial on the ground that the verdict was against the manifest weight of evidence, held properly denied.
    10. Railroads, § 695

      —when declaration sufficiently alleges negligent operation of train at excessive speed. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between a wagon in which plaintiff war riding and defendant’s freight train, a count in plaintiff’s declaration charging a violation of a village ordinance limiting the speed of such trains to ten miles an hour in that “said defendant then and there ran a freight train on one of its tracks * * * at a speed of * * * thirty miles an hour, down to, upon and across said street and down to and upón said plaintiff,” and also a count charging that defendant ran such freight train “down to and over and across said street at a rate of speed exceeding ten miles an hour in violation of said ordinance,” cannot be narrowed by construction so as to limit the charge of excessive speed to the space covered by the crossing, and to warrant the objection that the counts were not supported by proof of the excessive speed of the train before reaching the crossing.
    11. Railroads, § 737

      —when evidence sufficient to sustain, finding as to rate of speed of train in passing over crossing. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s freight train and a wagon in which plaintiff was riding, which collision was alleged to be due to defendant’s negligence, where plaintiff’s declaration charged a violation of a village ordinance limiting the speed of such trains to ten miles an hour, evidence held to sustain a finding that the train in question was running at a speed greater than ten miles an hour at the time of the accident.
    12. Railroads, § 737

      —when evidence sufficient to sustain finding as to operation of train over crossing at negligent speed. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s railroad train and a wagon in which plaintiff was riding, where plaintiff’s declaration charged negligence in that the speed at which the train in question was being run at the time of the accident was in violation of a village ordinance limiting the speed of such trains to ten miles an hour, evidence held sufficient to prove negligence as charged, it appearing that such violation of such ordinance contributed to the injury complained of.
    13. Trial, § 211

      —when denial of peremptory instruction on ground of variance properly refused. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s freight train and a wagon in which plaintiff was riding, where three counts of plaintiff’s declaration alleged that defendant’s engine struck such wagon and threw plaintiff out causing the injuries for which recovery was sought, and where the fourth count alleged that such injuries were caused by such engine striking plaintiff, the denial of a peremptory instruction for defendant on the ground of variance in that the evidence was alleged to show that plaintiff’s injuries were due to falling against such engine after jumping out of such wagon, held not erroneous where the motion for such instruction was directed to all the counts and not to each of the counts, the court being unable to allow such motion as to the fourth count, and also for the reason that there was evidence on which the jury might have found the fact to be as alleged in the first three counts.
    14. Railroads, § 718

      —when evidence admissible as to rate other trains passed crossing. In an action to recover for personal injuries alleged to have been the result of a collision occurring at a railroad crossing between defendant’s railroad freight train and a wagon in which plaintiff was riding, where the negligence alleged was in part that the train in question w.as at the time of the accident being run at a rate of speed which was in violation of a village ordinance limiting the speed of such trains to ten miles an hour, held not error to permit plaintiff’s witnesses to testify that other trains of defendant ran through the village in question at a high rate of speed, It appearing that the testimony objected to was brought out- on redirect examination, after defendant had made such witnesses to testify that the two main tracks of defendant at the point where the accident occurred were constantly used by fast moving trains of defendant, most of which did not stop at such village, and where it did not appear that plaintiff sought to emphasize other violations of the ordinance, and that such testimony did not exceed what was required by what defendant brought out on cross-examination, or materially add thereto.
    15. Appeal and error, § 1238

      —when party estopped to object that improper subject introduced at trial. A party cannot op review be heard to object that a subject which such party introduced into the trial was improper.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Snapp & Heise, for appellant; W. S. Horton and J. G. Drennan, of counsel.
    Cowing & King, for appellee.

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

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

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, Carl Schneeweisz, was on January 29, 1912, riding west in an ordinary farm wagon drawn by two horses driven by one Jacobs, on a public street across the double main track and two switch tracks of the appellant, Illinois Central Railroad Company, in the Village of Peotone, Will county, Illinois. There were two other men in the wagon, Nadler and Deininger. The latter was a stock buyer and grain dealer with his office near by. He had lived there for years, was supervisor of the town, and very familiar with the crossing and the operation of the trains over it. The other three men were all farmers living in the vicinity and were quite familiar with the crossing. The team passed over one switch track and over the northbound main track and the wagon was struck by the engine and a long freight train that was moving at a speed from twenty miles an hour seven hundred feet north of the crossing, decreasing to perhaps ten or twelve miles an hour as it reached the crossing. The four men were all standing in the wagon, J acobs, the driver, and appellee near the front, Nadler and Deininger near the rear. They could, any of them, have seen the train approaching from the north in time to stop the team and avoid the collision, but none of them did see it until the horses were near the southbound track, when they discovered it. Nadler and Deininger jumped from the rear of the wagon, appellee attempted to jump from the side, and it is not clear whether he was out of the wagon when it was struck by the engine. J acobs remained in the wagon and was thrown with it some distance. Appellee sustained injuries for which he brought this action, and in his declaration, alleging due care on his own part, in different counts charged appellant with negligence; in violating a village ordinance limiting the speed of trains to ten miles an hour; in running at a great and dangerous rate of speed onto and across said highway; in failing to ring a bell or blow a whistle before reaching the street; in allowing box cars and buildings within its control to stand on its right of way obstructing the view; and in violating another ordinance of the village requiring an automatic bell to be operated at the crossing; and charging that appellant had an automatic bell at the crossing that had been before operated but at the time was out of repair and failed to give warning.

A plea of not guilty was filed and a jury trial followed. Appellee failed to get the automatic bell ordinance in evidence, therefore no question of violating that ordinance is presented; though the fact that there was a bell there that had been used and was out of order, and not then in operation, is one of the circumstances to be considered. There was a verdict and judgment for the plaintiff for $4,000, from which judgment this appeal is prosecuted, and a reversal sought mainly on the ground that the evidence fails to show due care on the part of appellee, but oh the contrary clearly shows that he was guilty of negligence contributing to his injury. It is also argued that the evidence does not show any act of negligence of appellant charged in the declaration; in other words, it is claimed that it is clear that appellee was not at the time in question exercising that care for Ms own safety that an ordinarily prudent man would have done under the same or like circumstances, and that appellant was not guilty of the negligence charged. It is urged with great earnestness that the trial court should have directed a verdict for the defendant, if for no other reason, on the ground that it is so clear from the evidence that appellee was not in the exercise of ordinary care for his own safety, that there is no ground for difference of opinion among fair-minded men on that question. The fact that he did not look, as he might, and see the train approaching in time to jump from the wagon in safety, or cause the driver to stop before reaching the track, is pressed upon our attention, and we are referred to a number of cases in tMs. and other courts holding, in substance, that while it cannot be said as matter of law that it is negligence not to stop and look and listen before crossing a railroad at grade, still if under the circumstances ordinary care and prudence requires one to look and listen, then if an injury results that could have been so avoided it is a case of contributory negligence and the plaintiff cannot recover. It is no doubt difficult for the layman or even the lawyer to fix definitely in mind what is meant by ordinary care, due care, etc., as applied to the conduct of individuals. It is clear that it does not mean the highest degree of care.' There is a degree of care that would have prevented the accident in this case if appellee had exercised it, and it is difficult to conceive of a pedestrian, or driver of a veMcle, injured by collision on a railway crossing of a public highway, where he could not have avoided the injury by the exercise of a high degree of care, to ascertain before he went upon the railroad tracks whether there was a train approaching; yet there are many cases where the plaintiff has been permitted by reviewing courts to maintain his judgment obtained for injuries received under such circumstances. Our Supreme Court has repeatedly defined negligence to be “the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do.” Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 157 Ill. 406. This means if at any given time and place a plaintiff is exercising that care which a reasonable man would ordinarily exercise under the same or similar conditions, it is all that is required of him. Whether he did measure up to that standard at the time and place in question is a question for the jury unless the facts and circumstances proven are so clear that fair-minded men of ordinary intelligence would not differ as to the inferences to be drawn from them. Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, supra, in which case there is really no question of fact to decide and therefore none to submit to the jury.

There is no claim in this case that either of the four men in the wagon at the time in question was intoxicated. They seem, each of them, to have been normal men; they each testified on the trial of this case, and it would appear from a reading of their testimony that the three farmers in the wagon might any one of them be selected, if there was a search in their community for an ordinarily prudent man, to use as a measure of conduct; and it is quite clear that Deininger, the stock dealer and supervisor, was above the average of mankind, and because of that fact might well have been objected to as a standard of ordinary care and prudence to measure other men by. The claim that appellee was negligent rests entirely on the fact that he did not look and listen and thus avoid the injury; but they .all saw the train at about the same time; the two men standing in the rear of the wagon had, for that reason, a better opportunity to jump out, and they did so in time to avoid serious injury. Appellee seems to have attempted to get out at practically the same time, and, as we have said before, the evidence leaves it in doubt whether he was clear of the wagon before the engine struck it. It is of course possible that each of these four men was at the time and place in question omitting something which a reasonable man would do under the same or similar circumstances, but the fact that four reasonable men did under given circumstances do, and omit to do, certain things, tends in some degree to, at least, the impression that the hypothetical reasonable man, if he had been there at that time and under those circumstances, would have acted as they did; and a consideration of the situation in our opinion affords reason for the conclusion reached by the jury that appellee’s conduct was not below the requirement of ordinary care. The east track was a switch track. The next was the northbound main track. The next was the southbound track, on which this train was funning. The most western track was a switch track. East of the track and on the right of way north of the street crossing was a place where lumber and other merchandise was piled, and then several coal sheds and then the cattle yards. East of these sheds, but on the. right of way, was a traveled way leading from the street north to the coal sheds and the cattle yards. Appellee and the other two farmers had delivered some live stock to Deininger at the cattle yards shortly after noon of that day and Deininger had been there with them. They all got into the wagon at the cattle yards to go to the office, which was south of the cattle yards and west of the tracks. They drove down this roadway to the street and turned west towards the tracks. The evidence is contradictory whether there were box cars standing on the switch that would obstruct their view north, but over most of the roadway their view was obstructed by the sheds and they could not get an unobstructed view north on the right of way, much, if any, before turning to cross the tracks; but they could get such a view about thirty feet before reaching the east switch, and sixty-one feet from the southbound track on which they were struck. An automatic bell had theretofore been used by appellant at that crossing to give warning of approaching trains. It is not clear from the evidence when it got out of order, but it was not operated at that time. The men in the wagon were familiar with the crossing and therefore knew that there was a bell there and they may have somewhat relied on that for a warning. The main track nearest to them was the northbound track. They would naturally at first give most attention to the south to see if there was a train approaching on the first track they were to pass over, and they seem to have done so, though Jacobs says he looked north as they were about to turn and saw no train approaching, and appellee says he listened as they approached the crossing and heard no train. There was not a clear view to the south for a great distance, which naturally kept their attention directed that way for a longer time. There was a high wind blowing (there is no doubt of that; it is questioned in one part of appellant’s brief and admitted in another part); this, with the sound of the wagon on the frozen ground, tended to prevent their hearing the sound of the approaching train. If the bell of the approaching train was ringing or the whistle blowing (there is a conflict of evidence about that), none of these men heard it, and under the conditions it is likely they might not hear it. Deininger says he discovered the train and called out “jump” and jumped from the wagon taking Nadler with him. Appellee did not hear Deininger call out but saw the train and jumped at about the same time., The jury must be presumed to have found that a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would ordinarily have done as appellee did at that time and place. We have no doubt that the evidence presented a question for the jury to determine, and to be determined by the trial court only in passing on the motion for a new trial. If he was then of the opinion that, had the case been submitted to him on the facts, he would have found otherwise, or that if he had been acting as a juror instead of a judge, he would have refused his assent to the finding, it by no means follows that he should have granted a new trial. If such was the position and duty of the trial judge, and no finding of the jury that did not meet his own views .of the facts should be accepted, the jury would become an utterly useless part of the trial. The question before the trial judge was whether the verdict of the jury, involving the finding that appellee was at the time in the exercise of ordinary care, was so manifestly against the evidence that he should submit the question to another jury. He refused to do so, and it is our duty to determine whether he erred in so doing.

Counsel for appellant suggest that the oft repeated statement in the opinions of courts that the jury and trial judge saw the witnesses and heard them testify, and therefore were better able to judge the controverted facts, is grounded in old practice where the bill of exceptions was very brief and perhaps, in fact, unreliable, and that under the present practice, where this court is furnished with a stenographic report of the evidence, the rule should not govern. It is no doubt true that the present method of presenting the evidence to a reviewing court has many advantages that the court can better judge the weight of the evidence than under the old method of presenting an abridgement of the testimony; but reading the words of a witness, or of any narrator of facts, does not place the reader in so good a position to judge the truth as if he heard the spoken words and observed the manner of the speaker. This is common knowledge generally recognized by the courts. And even had we seen and heard the witnesses in this case, and felt that, had our duty been that of jurors, we would have found a verdict of not guilty, still it would not follow that we, for that reason alone, should reverse and remand the case. The jury and trial judge were performing duties imposed on them by law in passing on the facts in this case. There was a question that intelligent men might well differ in answering, and if the jury and trial court in our opinion acted fairly and intelligently in reaching their conclusions, we are given no power to reject them merely because it may seem to us that in their place we would have reached a different result. There may be intelligent as well as honest differences of opinion on doubtful questions. We think this record presents a case where we should accept the conclusion of the trial court and jury on the question of ordinary care of appellee.

While appellant seems to urge the question of appellee’s care with the most confidence, and it seems to us the difficult question in the case, it is urged also that the evidence does not support any allegation of negligence of the defendant. It is not, and cannot be, questioned that appellant was running its train, approaching the crossing, within the village limits, which were 1,500 feet north of the crossing, at a rate of speed much in excess of ten miles an hour, the limit fixed by the village ordinance. Neither is any question raised as to the validity of the ordinance, but it is said the declaration, in the counts charging violation of that ordinance, alleges that the train was run at the high rate of speed complained of at the crossing in question, and therefore is not supported by proof that it ran at that speed before reaching the crossing. There is conflict in the evidence whether it had slowed down to ten miles an hour or less when it reached the crossing. The first and second counts of the declaration each charge violation of this ordinance; in the first it is alleged that “said defendant then and there ran a. freight train on one of its tracks from the north at a speed exceeding ten miles per hour, to-wit: thirty miles an hour, down to, upon and across said street and down to and upon said plaintiff,” and in the second that “the defendant ran a freight train over one of said tracks from the north down to and over and across said street at a rate of speed exceeding ten miles per hour, contrary to the provisions of said ordinance.” It seems too narrow a construction of the language of those counts to limit the charge of excess speed contributing to the injury to the space covered by the crossing. But even were that the necessary construction, and the evidence of the rate of speed before the crossing was reached to be considered only on the question of its speed at the crossing, and on the question of appellee’s care in approaching the crossing perhaps on the asumption that no train would approach faster than ten miles an hour, still we are satisfied the jury were warranted by the evidence in finding that the train was running in excess of ten miles an hour at the time of the collision. The engineer and conductor placed the speed at the crossing at. nine miles an hour, the fireman at eight to ten miles an hour, the station agent at ten miles an hour, said it might have been eleven miles; another witness called by the defendant placed it at ten or eleven miles an hour. Six or seven witnesses called by plaintiff estimated the speed at fifteen to twenty-five miles an hour. There is also proof of how far the train went after the collision before stopping, and how far the team went after it turned onto the crossing, when witnesses saw both it and the train, and how fast the team was moving; from various of which items of proof counsel for each side figure out with much ingenuity proof of their respective contentions. The familiar argument of defendant’s that train men are better judges of the speed of trains, and of plaintiff’s that train men are not dependable witnesses as to that matter, because they are interested, is pressed upon us by the respective counsel. It will serve no useful purpose to further set out in detail the evidence supporting these contentions; nor is it necessary to discuss the obvious fact that violating the ordinance contributed to the injury complained of. There is in our opinion no cause for disturbing the verdict on the ground that negligence, as charged, was not proven. It is unnecessary to consider the evidence on other charges of negligence of appellant.

It is argued that there is a variance between the declaration and proof, the allegation in three counts being that the engine struck the wagon and threw plaintiff out, whereas it is contended he was out of the wagon before it was struck, and his injuries resulted from his jumping from the wagon and falling or jumping against the engine. This supposed variance was only presented to the trial court in the motions for a directed verdict at the close of the plaintiff’s evidence, and of all the evidence. The fourth count of the declaration did not charge that the wagon was struck, but charged plaintiff was struck, therefore the court could not direct a verdict'as to that count on that ground, and the motion was directed to all the counts, not to each of them. There was evidence however from which the jury could have found the occurrence as alleged. We see no reversible error on that ground. It is argued that the court erred in permitting witnesses for plaintiff to testify that other trains of appellant ran through the village at a high rate of speed. This testimony came on redirect examination of one of plaintiff’s witnesses who had been made to state on cross-examination that the two main tracks were constantly used by fast moving trains of appellant, and that the bulk of the fast trains did not stop in Peotone. There was no effort by plaintiff to emphasize the fact of other violations of the ordinance, and nothing proven in that respect not justified by the evidence for which appellant was responsible, or materially adding to the facts shown on the cross-examination. Appellant cannot be heard to object that a subject it introduced was improper. It is not claimed that the court erred in its rulings on the testimony, except as above stated, or that there was error in the instructions to the jury, except in refusing peremptory instructions, or that the verdict is excessive. Appellee assigns cross-errors, and argues that the court erred in its rulings as to the evidence offered under the automatic bell count of the declaration. We find no reversible error assigned by appellant, and conclude the judgment should be affirmed; therefore will not discuss the cross-error further than to say that we are of the opinion the court did not err in its rulings there questioned. The judgment is affirmed.

Affirmed.


text:
    John A. Carlson, Appellee, v. Avery Company, Appellant.
    Gen. No. 6,000.
    1. Appeal and error, § 16

      —when right of appeal exists. At law the right to appeal is statutory, and no appeal can be taken from the judgment of a court of inferior jurisdiction unless the statute either expressly or by plain implication provides for an appeal.
    2. Workmen’s compensation act, § 13

      —when no right of appeal to Appellate Court from proceedings by arbitrators. A proceeding by arbitrators under section 10 of the Workmen’s Compensation Act (J. & A. ¶ 5459), providing for the determination by arbitrators of questions of law and fact arising in the application of the act, is not a “suit or proceeding at law or in chancery” within the meaning of section 8 of the Appellate Court Act (J. & A. ¶ 2968), and section 91 of the Practice Act (J. & A. ¶ 8628), relating to appeals from final judgments of courts of inferior jurisdiction, but is in the nature of a voluntary arbitration.
    3. Workmen’s compensation act, § 13

      —when right of appeal from judgment upon trial de novo in Circuit Court of a proceeding by employee to recover compensation. A trial de novo in the Circuit Court of a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), on appeal from the finding of arbitrators as authorized by section 10 of such Act (J. & A. If 5459), made by a “suit or proceeding at law or in chancery” within the meaning of section 8 of the Appellate Court Act ( J. & A. ¶ 2968), and section 91 of the Practice Act (J. & A. ¶ 8628), providing for appeals from the final judgments of courts of inferior jurisdiction in any “suit or proceeding at law or in chancery,” although the proceeding appealed from was not such a suit or proceeding, since in such case the judicial proceeding in which the judgment sought to be appealed from was entered began with the trial de novo in the Circuit Court, for the reason that the tribunal entering the finding from which appeal was taken to the Circuit Court being nonjudicial, and the controversy adjudicated belonging to the eláss of cases of which the Circuit Court has original jurisdiction, the appeal authorized by section 10 of such Workmen’s Compensation Act was not strictly and legally such, but was a way provided by the statute instead of or in addition to the forms of proceeding otherwise required to give such jurisdiction to the Circuit Court, and such proceeding having therefore come before such court in the way provided by statute, it had jurisdiction thereof by virtue of its general powers.
    4. Words and phrases—proceeding at law or in chancery. The term “suit or proceeding at law or in chancery” includes only suits instituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules in chancery, and does not include cases instituted and carried on solely in accordance with statutory provisions.
    5. Workmen’s compensation act, § 12

      —how trial de novo in Circuit Court on appeal from hoard of arbitrators should he conducted. A trial de novo in the Circuit Court of proceeding by an employee to recover compensation for personal injuries by appeal from the finding of arbitrators under section 10 of the Workmen’s Compensation Act (J. & A. ¶ 5459), should be conducted in accordance with common-law forms or modes as modified by the Practice Act (J. & A. ¶ 8538 et seq.), and in accordance with general practice, as the act authorizing the appeal does not prescribe a form of procedure to be observed on the trial of such appeal, in such case and it is immaterial that no written pleadings are required in proceedings under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), as the same is true of other cases of which the Circuit Court acquires jurisdiction on .appeal.
    6. Appeal and error, § 1165

      —when proceedings subject to review. Though proceedings in their inception are not according to the course. of the common law, yet if they subsequently assume that form, as where they are brought up to another court for trial de novo according to the course of the common law, they are subject to review on writ of error.
    7. Appeal and error, § 1165

      —what constitutes trial de novo. A trial de novo is a trial anew in the appellate tribunal according to the usual or prescribed mode of procedure in other cases involving similar questions, whether of law or fact.
    8. Workmen’s compensation act, § 13

      —when trial de novo in Circuit Court “suit or proceeding at law or in chancery” and appealable. A trial de novo on an appeal to the Circuit Court from the finding of arbitrators under section 19 of the Workmen’s Compensation Act (J. & A. ¶ 5459), held to be a “suit or proceeding at law or in chancery,” so that an appeal from a final judgment entered therein is secured by section 8 of the Appellate Court Act (J. & A. ¶ 2968), and section 91 of the Practice Act (J. & A. ¶ 8628), relating to appeals from the final judgments of courts of inferior jurisdiction.
    9. Workmen’s compensation act, § 12*—what is proper pro- . cedure upon trial de novo in Circuit Court. As section 19 of the Workmen’s Compensation Act (J. & A. ¶ 5459), providing for an appeal from the finding of arbitrators appointed thereunder and for a trial de novo in,the Circuit Court, does not provide or direct the manner df the trial in the Circuit Court, the provisions of the Practice Act (J. &.A. ¶ 8538 et seq.), are applicable thereto.
    19. Trial, § 284

      —what special verdict must find. Special verdicts authorized by section 79 of the Practice Act (J. & A. ¶ 8616) must find all the controverted facts on which the judgment is based, and are to be distinguished from special findings which accompany a general verdict, also authorized by such section.
    11. Trial, § 284

      —what are requisites of special verdict. To sustain a judgment entered on a special verdict, such verdict must find all the facts essential to support the judgment and must leave nothing to be decided by the court except questions of law, for which reason the evidence from which a fact might have been found but is not found is without value in such special verdict.
    12. Trial, § 284

      —act authorizing special verdicts declaratory of common law. Section 79 of the Practice Act (J. & A. ¶ 8616) authorizing special verdicts is merely declaratory of the common law.
    13. Trial, § 284

      —when special verdict finding sufficient evidence prima facie to establish facts not sufficient. A special verdict finding sufficient evidence prima facie to establish the facts essential to sustain the judgment entered thereon is insufficient to sustain such judgment.
    14. Trial, § 284

      —when special verdict sufficient. A judgment based on a special verdict may be sustained if the verdict finds probative facts from which the court can find that the ultimate facts necessary to sustain such judgment necessarily result from the facts found in the special verdict.
    15. Trial, § 284

      —special verdict not to be aided by intendment. A special verdict cannot be aided by intendment, and any fact not ascertained by it will be presumed not to exist.
    16. Trial, § 284

      —what findings special verdict must contain. In civil actions, a special verdict must contain a finding of every material controverted fact necessary to support the judgment which does not appear elsewhere in the record, and, so used, the word “uncontroverted” may include facts essential to support the judgment as to which the evidence may not be controverted.
    17. Trial, § 284

      —what facts special verdict need not find. A special verdict need not find facts which may be otherwise ascertained from the record, as from the pleadings.
    18. Appeal and error, § 804*—when bill of exceptions must contain evidence: The evidence heard in the trial of an action is not part of the record thereof until made so by a bill of exceptions.
    19. Trial, § 284

      —when there cannot be both general and special verdict. Under section 79 of the Practice Act (J. & A. ¶ 8616), relating to the form of verdicts, a special finding may accompany a general verdict, but there cannot be in the same action both a general and a special verdict.
    20. Workmen’s compensation act, § 12

      —when there must be findings of average earnings before and after injury. Although no written pleadings are required in a proceeding by an employee, to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), there is an issue to be tried as to the difference between the average amount of the earnings of plaintiff before the accident and the average amount plaintiff is capable of earning in some suitable employment after such accident, and this issue requires a finding of his earnings at both such times.
    21. Appeal and error, § 761

      —when stipulation of facts not part of record. A stipulation of facts takes the place of evidence and is not part of the record proper, having no greater force and effect than uncontroverted evidence of the facts stipulated.
    22. Workmen’s compensation act, § 12

      —when evidence insufficient to support finding as to average earning capacity before accident. In a proceeding by an employee to recover compensation under the Workmen’s Compensation Act (J. & A. ¶ 5549 et seq.), a stipulation that plaintiff had been employed by defendant as alleged and “had earned and received pay for his services at the rate of $57 per month,” held insufficient to support a finding as to what was his average earning capacity before the accident, such stipulation having no greater force and effect than uncontroverted evidence of such facts, which evidence is insufficient to support such finding.
    23. Workmen’s compensation act, § 12

      —when special verdict permissible. Whether or not section 4 of the Workmen’s Compensation Act (J. & A. ¶ 5452), providing that the compensation recoverable thereunder shall be payable in instalments, prohibits a general verdict in an action to recover such compensation, and renders a special verdict imperative, a special verdict is at least permissible in such an action.
    24. Workmen’s compensation act, § 12

      —how finding in special verdict as to ability to earn stated amount of wages after injury construed. In a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), a finding in a special verdict that plaintiff was able to earn a stated amount of wages after the injury sought to be compensated is equivalent to a finding that plaintiff could not earn more than the stated amount at such time.
    25. Workmen’s compensation act, § 12

      —when evidence insufficient to sustain finding as to present earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), evidence held insufficient to support a finding in a special verdict that plaintiff’s present earning capacity was $10 per month.
    26. Workmen’s compensation act, § 12

      —when burden on plaintiff to show earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), where there is evidence that plaintiff still has some earning capacity, plaintiff has the burden of showing what that capacity is.
    27. Workmen’s compensation act, § 12

      —what must be basis of finding in special verdict as to specific earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), where there Is evidence that plaintiff still has some earning capacity, a finding in a special verdict that such earning capacity is a specific sum per month must be based on some evidence reasonably leading to á'uch a finding.
    28. Workmen’s compensation act, § 12

      —what may be basis of finding of earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 6449 et seq.), where there is evidence that plaintiff still has some earning capacity, a verdict as to the amount of such capacity may be properly found from plaintiff’s evidence, if not controverted, and, if controverted, then on the conclusion of the jury from all the evidence.
    29. Wobkmen’s compensation act, § 12

      —when question of disability of employee properly submitted to jury. In a proceeding by an employee to recover compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), evidence held sufficient to warrant the submission to the jury the question of disability of plaintiff due to the injuries for which compensation was sought.
    30. Appeal and error, § 601

      —how sufficiency of special verdict to support judgment saved for review. Where the trial court overruled a motion for a new trial made on the ground that the verdict was contrary to the law, which statement was repeated in the assignment of errors, and the denial of the motion and the entry of judgment in accordance with such denial were both assigned as error, the question of the sufficiency of a special verdict to support the judgment entered thereon was saved and presented for review.
    31. Workmen’s compensation act, § 7

      —when employee may recover compensation from time of incapacity to end of period. Under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), an employee who is injured at a given date, but not then partially incapacitated from his usual employment, and at any time thereafter during the period provided by the act becomes incapacitated as the result of the injury, may recover compensation from the time of such incapacity to the end of the period, although, after the injury and up to the time of such incapacity by reason of such injury, such employee works and receives wages at such employment.
    32. Workmen’s compensation act, § 7

      —when wages received after injury should not be deducted in fixing amount of disability payments. Where the employee’s compensation for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), is computed from a date six months after the injury as the time when the disability compensated commenced, amounts received for wages during the period intervening between the time of the accident and the time of the commencement of the injury resulting therefrom are not. “payments, allowance or benefit which” an employee may receive “from the employer during the period of his incapacity,” within the meaning of section 5 of the Act (J. & A. ¶ 5453), providing for the allowance of such payments in fixing the amount of disability payments recoverable under the act, the application of the section being limited to payments and allowances made because of the injury and incapacity resulting therefrom, and excluding from its meaning compensation for labor performed.
    33. Workmen’s compensation act, § 7

      —when payments made to employee should he deducted in fixing amount of compensation. In computing the amount of compensation due to an employee for personal injuries under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), an employer is entitled under section 5 of the Act (J. & A. ¶ 5453) to allowance for any payments made to the employee on account of his injury and the incapacity caused thereby.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    McRoberts, Morgan & Zimmerman, for appellant.
    L. O. Eagleton and Weil & Bartley, for appellee.

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

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

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

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

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

John A. Carlson, the appellee, was on June 24,1912, in the employ of Avery Company, the appellant, as night watchman, and had been so employed for the year immediately prior thereto, and had earned and received pay for such services at the rate of $57 per month. Both parties had accepted the provisions of the Workmen’s Compensation Act of June 10, 1911, in force May 1, 1912 (J. & A. ¶ 5449), and were working under that act June 24, 1912. (It is not the act now in force.) At that date appellee claims to have received an injury in the course of his employment for which he is entitled to be compensated under the provisions of that act. There was an arbitration as provided by section 10 of the Act (J. & A. ¶ 5459), and an appeal by the Avery Company from the award of the arbitrators to the Circuit Court of Peoria county, under a provision in that section authorizing an appeal and directing that “upon such appeal the questions in dispute shall be heard de novo, and either party may have a jury upon filing a written demand therefor with his petition.” A jury trial resulted in a verdict as follows:

“Peoria, Ill., March 21st, 1914.
“We, the jury, find that the claimant, John A. Carlson, was injured on the 24th day of June, 1912, while in the course of his employment, with the defendant Avery Company, and that because of such injury he has been partially and permanently incapacitated from pursuing his usual and customary line of employment, and that from the 21st day of December, 1912, he earned or was able to earn or is now earning or is able to earn the average sum of $10.00 per month in some suitable employment or business.”

The court after overruling appellant’s motion for a new trial entered judgment as follows:

“It is therefore considered and adjudged by the Court that the claimant John A. Carlson do have and recover of and from said defendant Avery Company, a corporation, the sum of Twenty-three and 50/100 ($23.50) Dollars for each and every month after the 21st day of December, A. D. 1912, and on the 21st day of each and every month thereafter for a period of time ending June 24th, A. D. 1920, said amount being one-half (½) the difference between the average amount which the claimant earned before the accident in question in this case, and the average amount he is now able to earn in some suitable employment or business as found by the verdict of the jury, and also his costs and charges by him about this suit in this behalf expended and that execution issue therefor.”

From which judgment this appeal is prosecuted.

It is to be observed that the judgment is based on the difference in appellee’s earnings before the accident and what he is able to earn since the accident, and that there is no finding in the verdict of what his average earnings were before the accident.

Appellee has entered a motion to dismiss the appeal, contending that no appeal lies from the judgment of a Circuit Court on a hearing under the provisions of said Workmen’s Compensation Act. We took the motion with the case and it is to be first considered. It is true that the right to appeal at law is statutory. Unless the statute expressly or by plain implication provides for an appeal from the judgment of a court of inferior jurisdiction none can be taken. The court said in Drainage Com’rs of Town of Niles v. Harms, 238 Ill. 414, on page 418: “The general rule that a right to an appeal is purely statutory has been settled beyond controversy.” Provision is made in section 8 of the Appellate Court Act (J. & A. ¶ 2968) for appeals from the final judgments of Circuit Courts “in any suit or proceeding at law, or in chancery”; and in section 91 of the Practice Act (J. & A. ¶ 8628), appeals to Appellate Courts are authorized, and the same limiting words “any suit or proceeding at law or in chancery” are used. We know of no other statute governing the question, and therefore assume that the inquiry is whether the trial in the Circuit Court was in a suit or proceeding at law or in chancery. The proceeding and trial by arbitrators under the provisions of the act was not a suit or proceeding at law or in chancery, but was in the nature of a voluntary arbitration. Deibeikis v. Link-Belt Co., 261 Ill. 454. Yet the trial in the Circuit Court may have been such a proceeding. That court obtained jurisdiction by an appeal from a nonjudicial body, or accurately speaking it acquired jurisdiction, not by an appeal in a legal sense, but in a way provided by statute, which way is instead of, or in addition to, the forms of proceeding otherwise required to give jurisdiction. The controversy belongs to a class of cases in which the court has original jurisdiction, and being before the court in the method prescribed by the statute the court had jurisdiction by virtue of its general powers, and the judicial proceeding began with the presentation of the case in the Circuit Court. Conover v. Gatton, 251 Ill. 587, and cases there cited; and Rowand v. Little Vermilion Spec. Drain. Dist., 254 Ill. 543. The court said in Myers v. Newcomb Spec. Drain. Dist., 245 Ill. 140, on page 146: “The term ‘suit or proceeding at law or in chancery’ only includes suits instituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules in chancery,” and adds that it does not include cases which are “instituted and carried on in conformity with forms and modes not according to or recognized by the common law or rules of chancery but solely in accordance with statutory provisions.” The Workmen’s Compensation Act in question provides for an appeal to the Circuit Court, or when the language is legally considered, provides if either party is not satisfied with the result of the arbitration he may have a trial de novo in that court. The act does not prescribe the form or method of proceeding in the Circuit Court, and therefore we assume that court having acquired jurisdiction should proceed with the trial in accordance with common-law forms or modes as modified by the Practice Act and in accordance with the general practice. Written pleadings are dispensed with, but that is true of other cases of which the Circuit Court acquires jurisdiction by appeal and tries the case de novo, as for instance trials on appeal from judgments of justices of the peace. The Supreme Court said in Grier v. Cable, 159 Ill. 29: “There can be no doubt that the Circuit Court, being a court of general original jurisdiction, is vested by law with jurisdiction of the subject-matter of suits against executors to recover claims against the estates of testators”; and considered whether the suit in the Probate Court was a proceeding at law or in chancery and concluded that it was not, but that it was a purely statutory proceeding; but the court seems to have made no question of the jurisdiction of the Appellate Court to review the judgment of the Circuit Court rendered on an appeal from the judgment of the Probate Court; and we believe it is generally understood by the profession that while a trial in the County Court on a contested claim against an estate of a deceased person is not a suit or proceeding at law or in chancery, yet an appeal lies from the judgment of the Circuit Court rendered there in a de novo trial, and this view is supported by the opinion of the court in Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180. It is said in 2 Cyc. 514: “Though proceedings are not in their inception according to the course of the common law,, yet if they subsequently assume that form, as where they are brought up to another court for trial de novo according to the course of the common law, they become subject to review by writ of error. ” It is said in Lewis v. Baca, 5 N. M. 289 (21 Pac. 393), that a trial de novo “means a trial anew in the appellate tribunal, according to the usual or prescribed mode of procedure in other cases involving similar questions, whether of law or fact. This definition is adopted in Words & Phrases, vol. 8, page 7108, with other definitions not inconsistent therewith. We are of the opinion that the trial in the Circuit Court was in a suit or proceeding at law and therefore the right of appeal to this court is secured by the statute, and the motion to dismiss the appeal is denied.

The manner of trial in the Circuit Court not being prescribed or directed by the Workmen’s Compensation Act, the provisions of the Practice Act are applicable. Fergus v. Garden City Mfg. Co., 71 Ill. 51. Special verdicts are authorized by section 79 of the Practice Act (J. & A. ¶ 8616); but special verdicts must find all the controverted facts on which the judgment is based, and are to be distinguished from special findings accompanying a general verdict, authorized by the same section of the Practice Act. Elgin City Ry. Co. v. Salisbury, 162 Ill. 187; Perdue v. Big Four Drain. Dist., 117 Ill. App. 600. The facts declared by the verdict constitute the basis of the judgment. 38 Cyc. 1868. A special verdict to sustain a judgment should find the facts essential to support the judgment. 23 Cyc. 776. The evidence from which a fact might have been found, without any finding of the fact itself, is valueless in a special verdict. Seabright v. New Jersey Cent. R. Co., 72 N. J. L. 8 (60 Atl. 64). The statute authorizing special verdicts is merely declaratory of the common law. The rules of law governing them are said in Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, to have been long settled; the authorities are there cited and discussed, and it is there said on page 142: “They should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law.” (Citing authorities.) “To authorize a judgment upon a special verdict, all the facts essential to the right of the party in whose favor the judgment is to be rendered, must be found by the jury; finding sufficient evidence, prima facie, to establish such facts, is not sufficient.” (Citing authorities.) “If probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient.” (Citing authorities.) “A special verdict cannot be aided by intendment, and therefore any fact not ascertained by it will be presumed not to exist.” (Citing authorities.) In civil actions a special verdict “must contain a finding on every material controverted fact to support a judgment. ’ ’ Encyc. Pl. & Pr., vol. 22, page 984. This statement in words or substance is often repeated in cases dealing with the question. Many cases are cited by the author of the above quoted text in support thereof, and the word “controverted” should perhaps be read into the statements quoted from our own Supreme Court. But what does that word mean? The same author says on page 987 of the same volume: “A special verdict need not find facts admitted by the pleadings,” and adds that according to some cases it need not when there is no conflict in the evidence. Only Wisconsin cases are cited in the note to the second proposition; and while that construction may be placed on the word “controverted” by the Supreme Court of Wisconsin, we do "not think it the general rule or one that we should follow in the light of the language of our Supreme Court above quoted. Very-likely a special verdict need not find facts that can otherwise be ascertained from the record proper. The pleadings are a part of the record; the evidence is not, until made so by the bill of exceptions. Special findings may accompany a general verdict under the provisions of section 79 (J. & A. ¶ 8616) but there cannot be .a general and a special verdict in the same case.

In the case at bar there was, as we have seen, no written pleadings, but there were issues to try, and one of them was as to the difference between the average amount which the claimant earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident, and this issue requires a finding of his earnings act those times. A stipulation was filed in the case as follows:

“It is stipulated by the counsel for claimant and defendant that on June 24th, 1912, both had accepted the provisions of the Workmen’s Compensation Act of June 10th, 1911, in force May 1st, 1912, and that both were working under the Act on June 24th, 1912, and that claimant had been in the employ of defendant as night watchman for the year preceding June 24th, 1912, and had earned and received pay for his services at the rate of $57.00 per month, payable semimonthly on the 5th and 20th days of each month.”

It is urged by appellee that the facts there stipulated were not “controverted” and therefore that the special verdict need not find them. The stipulation takes the place of evidence. It is not a part of the record proper. Raymer v. Modern Brotherhood of America, 157 Ill. App. 510. We do not see how it can have more force and effect than would uncontroverted evidence of the facts stipulated, which we have before said we do not .regard sufficient. It is quite likely that the stipulated fact, that the parties were under the Workmen’s Compensation Act, might be learned from other parts of the record proper, and therefore its finding omitted in the special verdict, though it would have been safer to incorporate it therein, but there was nothing in the record proper from which claimant’s earnings before the accident could be found.

Appellee in support of his motion to dismiss the appeal says that the provision in the Workmen’s Compensation Act for compensation to be paid in instalments, in effect, forbids a general verdict, and appellant in its reply does not controvert that statement. We are therefore not aided by briefs of counsel to determine whether a special verdict was imperative, but we see no reason why it is not permissible.

Appellee quotes the language of the court in Vincent v. Morrison, Breese (1 Ill.) 227, indicating that even though the verdict is insufficient, if this court is satisfied the claimant should recover the amount of the judgment the case should not be sent back for another trial that would result only in costs without benefit to the parties. We would give the suggestion more careful consideration if we were satisfied with the verdict in all respects except its failure to find the facts stipulated. We regard it doubtful whether claimant’s incapacity is the result of the accident complained of, and we see no sufficient foundation for the finding in the verdict that he is able now to earn $10 a month, which means that he is not able to earn more than that sum. It is clear from the evidence offered by the claimant that he has some earning capacity; and to support a verdict that depends upon the definite finding of what that capacity is, there should be more satisfactory evi-' dence than the record contains, and the burden is upon the claimant to produce such evidence. It is true that he might introduce evidence showing he had no earning capacity, or that it was any sum he might claim, and the-verdict would properly be found on that evidence, if not controverted, and if controverted then on what the jury might conclude from all the evidence, but the finding of a specific sum must be based on some evidence that would reasonably lead to that finding.

Much of appellant’s brief and argument is devoted to the contention that the evidence does not support any finding of injury and consequent disability of the claimant. There was in our opinion sufficient evidence tending to support that claim to require a submission of the facts to the jury.

Appellee says the question of the sufficiency of the yerdict to support the judgment is not saved for review, either in the motion for a new trial or. in the assignment of errors. In the written motion for a new trial one reason assigned.is: ‘ ‘ The verdict is contrary to the law.” This is repeated in the assignment of errors. It is also assigned as error that the court erred in overruling the motion of defendant for a new trial, and in rendering judgment against the defendant. And appellant in its brief says the verdict was bad in substance. We regard the question saved and presented for our determination.

The jury found that the claimant was partially and permanently incapacitated, etc., by his injury of June 24, 1912, and that from the 21st of December, 1912, he was able to earn $10 per month. The judgment is based on the theory that the limit of the recovery is eight years from the date of the accident, but that the computation of the difference in earnings begins December 21, 1912, about six months after the accident. The evidence shows that during this six-months’ period the claimant worked for the defendant at his usual employment, and received for that work $333.85. For that reason the jury did not find that his incapacity to earn his usual wages dated from the time of the accident. This raises the question whether an employee injured at a given date and not at that time partially incapacitated from pursuing his usual customary line of employment, but afterwards, during the eight-year period, whether six months or six years after the accident, becoming so incapacitated as the result of the injury, is entitled to recover from the time of his incapacity to the end of the eight-year period. The trial court held that he was, and in the absence of any authority on the construction of the statute in that respect, we' are inclined to the same opinion.

Our attention is called to the provision in section 5, clause 3, of the Act (J. & A. ¶ 5453), providing: “Infixing the amount of the disability payments, regard shall be had to any payments, allowance or benefit which the employee may have received from the employer during the period of his incapacity, except the expenses of necessary medical or surgical treatment”; and it is claimed that in disregarding the six months that claimant worked for the defendant, and the amount paid him for such work, after the accident, the court deprived the defendant of its rights under that provision of the statute. If the court was right in fixing compensation from the date of the disability and not from the date of the accident, it seems unimportant for whom the claimant worked or from whom he received compensation for such work, during the time intervening between the date of the accident and the date of the resulting disability. If payments were made, not in compensation for labor, but because of the injury and incapacity, the defendant would be entitled to the benefit of that provision of the act.

For the reasons above stated, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

Mr. Justice Niehaus took no part.