text:
    Mary A. Neff, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,913.
    1. Cabbiers—when passenger injured by premature starting may recover. Under conflicting evidence whether a passenger gave a proper signal to. alight and was injured hy the premature starting of the street car, or whether she was struck by the overhang of the car going into a curve after she had alighted, a judgment for the plaintiff was sustained.
    2. Damages—when $2,000 for injuries to bade and abdomen is not excessive. If it appears from the irreconcilable evidence that a passenger alighting from a street car sustained a fractured rib causing a chronic condition of pleurisy, a severe wrenching of the back and injury to the stomach and abdomen, causing temporary hemorrhage from the bowels, permanent constipation and a pendulous condition of the abdomen, a verdict for $2,000 is not excessive.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavattagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Franklin B. Hussey and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    James G. McShane, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment in the Superior Court against appellant for $2,000, as damages for personal injuries alleged to have been occasioned by the negligence of appellant, and this appeal followed.

The declaration, after setting out the ownership and operation by appellant on July 29, 1908, of a certain street railway upon and along Michigan avenue, in the City of Chicago, alleges that at the time and place aforesaid appellee had become and was received and accepted by appellant as a passenger for hire upon a certain street car, which appellant was then and there operating northward upon and along said railway, and when said car reached, to-wit: the intersection of Michigan avenue and Randolph street, appellant stopped said car to permit appellee to alight therefrom, and upon the stopping of said car, appellee promptly attempted to alight therefrom, and while she was in the act of alighting from said car, and while exercising ordinary care and caution for her own safety, and while appellant knew, or by the exercise of due care would have known that she was so in the act of alighting from said car, appellant then and there wrongfully and negligently started said car forward suddenly and violently and without warning to appellee, and as a direct result and in consequence thereof she was thereby then and there thrown violently from said car to and upon the ground, etc.

It is urged that the judgment should be reversed for the reasons, first, that the verdict is against the manifest weight of the evidence, and second, that the damages awarded by the jury are excessive.

Appellee testified that she boarded a north-bound Indiana avenue car at Wabash avenue and 12th street for the purpose of going to the Goodrich Docks at the foot of Michigan avenue or Wabash avenue; that when the car reached a point on Michigan avenue about midway between Randolph and Washington streets she pressed the button as a signal for the car to stop at the corner of Randolph street and Michigan avenue; that she was then the only passenger in the car, and the conductor was in the front part of the car talking with the motorman; that upon hearing the signal the conductor said, “All right lady;” that when the car stopped she got up from her seat and walked to the rear platform for the purpose of alighting and the conductor again said, “All right lady;” that while she was in the act of- stepping from the platform the car started up with a jerk and she was thrown upon the pavement. William Cover, a teamster, who was then driving north on the east side of Michigan avenue, and somewhat in the rear of the car, testified that he saw appellee stepping off the car and saw the car start while she was stepping off and saw her fall:

Appellant’s theory, supported in the main by the testimony of the conductor and motorman, is that, as the car approached Randolph street, the police officer at the crossing signalled the motorman to stop, to enable pedestrians to cross the street, and that the car was stopped in response to such signal; that before the car stopped appellee had not indicated by bell or otherwise her desire to alight; that while the car was at a stop appellee arose from her seat or made some demonstration which moved the conductor to ask her if she desired to alight and she said she did; that the conductor then sounded the bell as a signal to the motorman not to start the car until further notice; that appellee then walked to the rear platform, stepped from it to the step, thence to the street pavement, and after she alighted in safety the conductor signalled the motorman to proceed. The further theory advanced by appellant that after alighting from the car appellee walked northward along the side of the car, and after it had started and proceeded into the curve she was struck by the overhang of the car and so received the injuries complained of, is based largely on mere conjecture. The car did not stop after appellee alighted and the conductor and motorman were not informed of the accident until the return trip of the car.

There are apparent discrepancies and inconsistencies in the testimony of all the witnesses, which counsel for both litigants have pointed out with. discriminating particularity, and as to which the reasonable limits of an- opinion preclude a detailed discussion. We have carefully considered and weighed the evidence bearing upon the question of the liability of appellant to respond in damages for the injuries alleged ■ and are unable to hold that the verdict of the jury is palpably wrong.

As resulting from the fall appellee claims to have sustained a fractured rib which penetrated the pleura, causing a chronic condition of pleurisy; a severe wrenching of her back; injury to her stomach and abdomen, causing temporary hemorrhage from the bowels and permanent constipation, also a pendulous condition of the abdomen, known as enteroptosis.

If full credence be given to the testimony of appellee and of her attending physicians and of physicians who testified at her instance as experts, the damages awarded are not excessive, while if the testimony of the witnesses called by appellant be true, the injuries sustained by appellee are greatly exaggerated and do not warrant the damages awarded. The evidence upon this issue is in hopeless and irreconcilable conflict. While we should have been better satisfied if the damages awarded had been less, we cannot say they are so excessive as to require interference by us.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Frank H. Jones, Trustee, Appellee, v. Lewis W. Parker and Livingston T. Dickason, Appellants.
    Gen. No. 16,940.
    1. Reformation of instruments—mutual mistake of fact. Where parties have executed a lease under a mutually mistaken impression that the weekly rental therein provided for was at the rate of a certain amount per day, and an erroneous figure has been inserted by the stenographer, the court will decree reformation of the instrument according to the true intent and meaning of the parties.
    2. Reformation of instruments—effect. Where a lease is reformed by a court, rent found to be due is due as of the date of execution, and the costs are taxable against the party who has failed to perform the agreement as really intended to be made.

      Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Rehearing denied February 14, 1913.
    Henry M. Hagan and George C. King, for appellants.
    Adams, Bobb & Adams, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a decree of the Superior Court reforming a written instrument because of a mutual mistake of fact and granting certain other relief.

The bill is filed by Frank H. Jones, as trustee in bankruptcy of the estate of Williams & MacRitchie, bankrupts, against Lewis W. Parker and Livingston T. Dickason, surviving partners of the firm of W. E. Dorwin & Co., and alleges, in substance, that on Nov. 28, 1908, W. E. Dorwin & Co., requested the complainant to execute to them a lease of certain property belonging to said bankrupts, consisting of ten flat cars, an unloader, a railroad plow, pumping outfit, blacksmith shop and tools located near LaFayette, Louisiana; that complainant verbally agreed with said firm to execute a lease therefor for the term of four weeks at a daily rental of $35 per day for six days in each week, and procured authority from the United States District Court to execute such lease on said terms; that thereafter a draft of said lease was prepared in accordance with said agreement and order and submitted to said Parker for approval and execution; that shortly thereafter said Parker notified complainant and his attorney, David Jetzinger, that said rent was more than the firm was able to pay, and that he did not consider it necessary to include the ten flat cars in the lease, and requested complainant to name a rental for the property other than said flat cars; that complainant fixed a rental of $22 per day for such other property and the same was satisfactory to said Parker; that Parker then requested complainant to prepare a draft of the lease in accordance with said new agreement; that thereupon said Jetzinger handed the draft of the first lease to his stenographer and requested her to rewrite the same, omitting the ten flat cars and •changing the rental from $210 per week to $132 per week, and when the lease, as thus redrafted, had been prepared to send the same to Parker at his office in Chicago; that said stenographer neglected to omit the ten flat cars from said redraft of said lease, but did change the rental therein as directed, and sent said lease to said Parker; that thereafter said Parker informed complainant and Jetzinger that the firm had. concluded it wanted the ten flat cars, and that he would be willing to execute the first draft of the lease which had been drawn; that said Parker thereupon produced a draft of a lease, including said ten flat cars, for execution by complainant, which draft complainant and Jetzinger supposed was the original draft, and the parties thereupon executed the same; that said lease so executed was not the original draft, but was the second draft which included the ten flat cars and stated the rental at $132 per week; that said Parker then well knew he was fraudulently presenting to complainant the second draft of said lease, which ought to have omitted said ten flat cars, for the purpose of inducing complainant to execute a lease on the entire property for the rental of only a portion thereof; that complainant executed said lease so presented to him under a pure mistake, believing the same to have been the first lease that was drafted and that the rental reserved therein was $210 per week, and that said Dickason and Parker likewise either executed said instrument through the same mistake, or that they executed and presented the same for complainant’s signature fraudulently and with the intent to gain an unconscionable advantage over complainant by virtue Of the mistake which had been made by said stenographer, as before stated, etc. The bill prays that the court investigate the facts and circumstances relating to the execution of said lease, and ascertain and decree that the same was executed by the parties thereto under a mutual mistake in the belief that they were executing the lease which had been theretofore drafted, providing for a rental of $210 per week; or that the court may ascertain that complainant executed said lease under a mistake of fact induced by fraud and misrepresentation on the part of the defendants; that the court may ascertain, in any event, that the true intent and meaning of said lease was that the rental should be stated at $210 per week; that the court may order said lease reformed in accordance with its true intent and meaning and upon the reformation of said lease the defendants be decreed to pay the unpaid rental thereunder, as thus reformed, etc., concluding with the usual prayer for general relief.

A general demurrer to the bill was overruled and thereupon the defendants answered the same. The gist of the answer is “that no misrepresentation, ex-imes s or implied, as to the contents of said contract was ever made by defendant Parker to complainant, nor was complainant induced to sign by any fraud practiced by defendant Parker, but that if complainant was ignorant of the contents his ignorance is in no degree due to fraudulent practice on the part of the , defendants.” After replication filed the cause was referred to a master to take the proofs and report the same with his conclusions.

The salient facts disclosed by the evidence and as found by'the master are that the preliminary negotiations regarding the lease in question were had between Parker, acting for the firm of W. E. Dorwin & Co., and Jetzinger, acting for complainant as the receiver and trustee, and the estate of the bankrupts; that such negotiations resulted in a tentative agreement, subject to approval by the trustee and the principal creditors of the bankrupts, whereby Dorwin & Company were to pay a rental of $22 per day for all .the property involved and Jetzinger prepared a written lease on that basis and delivered a copy of the same to Parker; that three days following Jetzinger notified Parker" that' the proposed rental was too small and the lease would not be executed, whereupon Parker, after communicating with the other members of his firm, definitely agreed with the complainant to accept a lease of all the property at a rental of $35 per day for six days each week; that the tentative agreement, as heretofore drafted, was then surrendered by Parker to Jetzinger and the latter prepared a lease which was intended to embody the final agreement, two copies of which were given to Parker, who sent them to Dickason to be signed by him individually ; that Dickason signed both copies and Parker then signed his own name and also the firm name and took them to complainant who signed both copies, retaining one and returning the other to Parker; that the rental stated in the lease as finally executed was $132 per week, but neither Parker nor the complainant noticed that the sum of $132 per week for six days was less than a rental of $35 per day for six days, and both executed the leases in the belief that the rental stated therein was the rental of $35 per day agreed upon by them, which would be $210 per week; that the error in the lease in regard to the weekly rental was doubtless caused by the stenographer employed by Jetzinger in incorporating parts of the tentative draft into' the final draft, and in failing to change the amount of the rental in conformity with the final agreement. The master further found that none of the allegations of the bill of complaint in regard to fraud and deception on the part of the defendants had been proved.

The decree follows the finding and recommendation of the master and directs that the contract be reformed, so that the paragraph which reads “to pay as rent for the said property for six days of each week, the sum of $132 per week,” "be reformed so as to read “to pay as rent for said property for ■ six days of each week the sum of $210 per week. ’ ’ The decree further finds that the defendants retained possession of the property from December 2, 1908, until January 18, 1909; that the total amount of rent agreed to be paid amounted to $1,400, and that after crediting the payment there is a balance due of $700 and interest at 5 per cent., amounting to $44.30, making a total due the complainant of $744.30, and directs that the defendants Parker and Diekason pay the complainant the sum of $744.30 with interest at 5 per cent, from the date of the decree, and also pay the costs “which are hereby taxed in the sum of $214.70,” and that execution issue.

Appellants insist that there is a fatal variance between the averments of the bill of complaint and the proof. Considering its allegations relating to the precise manner in which the alleged mutual mistake of fact occurred in connection with the proof, as made, the bill is by no means a model, but the allegation in the bill that complainant executed the lease under a pure mistake, believing that the rental reserved therein was $210 per week, and that the defendants likewise executed the lease under the same mistake, is sufficient to support the decree.

It is next urged that a mutual mistake of fact was not proved. It is uncontroverted that appellee, the lessor, executed the lease under the mistaken belief that the sum of $132 per week was the equivalent of ,$35 per day for a week of six days and appellant Parker testified that at the time he signed the lease for and on behalf of "W. E. Dorwin & Co., the lessee firm, •it was his understanding that he was signing a lease for a rental of $35 a day for six days in the week; that he did not realize that $132 a week for six days a week was not at the rate of $35 a day; that of course he would have known it‘if he had taken a pencil and figured it up, but he was under the impression that it (the lease) called for $35 a day. Parker was the member of the firm who actively conducted the negotiations on its behalf, and his knowledge regarding the transaction must be imputed to the firm. The signature of Dickason to the lease appears to have been attached by him in his capacity as a partner, and it follows that in that capacity he was bound by the conduct of Parker. In its last analysis the mistake involved was one of fact arising out of the erroneous supposition that $35 per day for a week of six days amounted to $132 per week instead of $210 per week, and such mistake was mutual.

The rent is due upon an instrument in writing properly reformed as of the date of its execution and appellee is entitled to receive interest on the unpaid balance of such rent.

Appellants could have avoided the payment of any costs by performing the agreement as made and all the costs in this proceeding were properly taxed against them.

There is no substantial merit in any of the errors assigned and the decree is affirmed.

Decree affirmed.


text:
    West Side Masonic Temple Association, Appellee, v. Robert B. Smith, Appellant.
    Gen. No. 16,952.
    1. AssocaATiorrs^saZe of real estate by officers. Where certain officers of an association have been authorized to negotiate a sale of real estate, such officers must act jointly in order to bind the association.
    2. " Chanceet—admissions. Where a fact alleged in a bill in chancery is admitted in the answer, such admission is conclusive and precludes the necessity of establishing the fact by proof.
    Appeal from the Superior Court of Cook county; the Hon. Fabian Q. Bail, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.

      Ossian Cameron, for appellant; Samuel J., Andalman, of counsel.
    Samuel W. Jackson, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a bill filed by appellee against appellant in the Superior Court to set aside and declare null and void, as a cloud upon the title of appellee to certain real estate, an affidavit filed by appellant on January 11,1909, in the recorder’s office of Cook County, as follows:

“State of Illinois, ) County of Cook. ( SS*
Robert B. Smith, being first duly -sworn, on oath, deposes and says, that on December 17th, 1908, he received a proposition in words and figures, as follows:
‘ Chicago, Dec. 17, 1908.
‘Mr. Robert B. Smith,
145 LaSalle St.,
Chicago, Ill.
Dear Sir:—
We will sell the West Side Masonic Association property, located on West Van Burén St., South front, on the N. E. corner of the alley, East of Ashland Avenue, 74x188.9 ft. for $10,000 cash, clear of all liens, taxes and assessments.
In case a sale is made by you at this price, we will pay you the usual commission of 2%%.
Tours very truly,
James M. Parnie, President.
By D. S. Bain,
D. S. Bain, Treasurer.’
That thereafter, on December 24th, 1908, affiant secured an enlarged and definite option on said premises up to and including January 20th, 1909, on the terms specified in the aforesaid writing both of which propositions and options were duly accepted by this affiant;
Thereupon affiant' secured and now has a purchaser for said premises on the above specified terms, who is ready, able and willing to consummate the deal in strict compliance with said terms.
Affiant further states that the legal description of said premises is as follows, to wit:
Lots Thirty-eight (38), Thirty-nine (39) and Forty (40) in Block Twenty (20) of the Canal Trustees’ Subdivision of the West Half (W. %) of the Northeast quarter (N. E. %) and the Northwest quarter (N. W. %) of Section Seventeen (17), Township Thirty-nine (39) North, Range Fourteen (14) East of the Third (3d) Principal Meridian, situated in the City of Chicago, County of Cook, and State of Illinois.
And further affiant saith not.
Robert B. Smith.
Subscribed and sworn to before me this 9th day of January, A. D. 1909.
Gertrude Heise,
Notary Public.”

Upon the hearing a decree was entered in accordance with the prayer of the bill and this appeal followed.

The evidence discloses that at a meeting of the stockholders of appellee association, held October 30, 1903, a motion was made to have the president, secretary and treasurer of the association negotiate a trade of the lots belonging to the association, and bring the matter before the board of directors, but it does not appear that such motion prevailed; that thereafter, on October 17,1908, D. S. Bain, the treasurer of said association, purporting to have authority to act for the president, submitted to appellant the written proposition set forth in the affidavit above mentioned; that thereafter, on January 8,1909, at a meeting-of the directors of said association, an offer was made on behalf of J. T. Cunningham to purchase the property for $9,500, which offer "was, on motion, accepted, subject to the approval of the stockholders; that at a meeting of the stockholders of said association, held on January 26, 1909, said action of the board of directors was approved and a contract for the sale of the property to Cunningham was authorized to be signed, with the understanding’ that the purchaser should take the title, subject to the said affidavit of appellant filed for record in the recorder’s office; that appellant had procured a purchaser for the property at $10,000, who was ready, able and willing to consummate the purchase by paying cash therefor.

There is no proof that appellant, on December 24, 1908, “secured an enlarged and definite option on said premises up to and including January 20, 1909,” as ■ stated in the affidavit in question. Whether or not D. S. Bain was authorized by the president to sign the latter’s name to the communication addressed to appellant is a controverted question of fact, as to which, even if material, the decree must, upon this record, be held to be conclusive. As heretofore stated, it does not appear that the motion made at the meeting of the directors, held on October 30, 1903, authorizing the president, secretary and treasurer of the association to negotiate a trade of its property, ever prevailed, but if such motion did prevail the officials named must have acted jointly in order to bind the association. Brown v. Grand Rapids P. F. Co., 7 C. C. A. 225, 58 Fed. 286, cited by appellant in support of- its contention that any one or all of the officials named were authorized to bind the association, is not in point. It was there held that a resolution authorizing, the officers named to secure “any and all other creditors” by subsequent mortgages, did not require the giving of a mortgage to secure all other creditors, as the word “and” in that connection should be given the meaning of “or.”

It is further urged that the court was without jurisdiction to grant the relief prayed, because of the absence of any allegation and proof that appellee was in possession of the premises, or that the premises were vacant and unoccupied. Appellant has evidently overlooked the fact that the bill specifically alleges that appellee “is now and has been for many years last past, seized and possessed,” etc., and that the answer to the bill specifically admits the truth of such allegation. It is well settled that where a fact is alleged in the bill and admitted in the answer, such admission is conclusive and precludes the necessity of establishing the fact by proof. Loughridge v. Northwestern Mut. Life Ins. Co., 180 Ill. 267.

There is no error in the record and the decree is affirmed.

Decree affirmed.


text:
    Charles A. Klinck, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,966.
    1. Carriers—where employee intends to use pass. In a personal injury action, where plaintiff, a clerk in the employ of defendant street railway, is given a monthly ticket as a part of his compensation, and in going to work is injured when about to get on defendant’s car, there is a relation of carrier and passenger, and the intended use of the ticket does not produce the relation of master and servant.
    2. Carriers—pass accepted as part of compensation not a grcutuity. Where it is agreed when plaintiff enters the employ of a defendant street car company that he shall receive a certain sum per month and transportation, the monthly ticket which he receives is a part of Ms compensation and not a gratuity.
    3. Evidence—when conversation between plaintiff and superintendent regarding terms of employment is admissible. In a personal injury action the conversation between plaintiff and superintendent of defendant railway company regarding terms of employment is admissible to show whether or not employee’s ticket is a gratuity.
    4. Agency—authority of superintendent to promise employee ticket as part of compensation. Where it is shown that defendant’s superintendent exercised authority to hire and discharge employees and to determine their compensation, and defendant ratified his acts, there is sufficient evidence to establish his authority to bind defendant in promising plaintiff transportation as a matter of right and part of his compensation, though inconsistent with terms on the back' of the ticket.
    5. Evidence—similar piles of stone on other streets. In a personal injury action, in order to show the purpose of a pile of stone at the place of accident, it is proper to admit testimony concerning the use by defendant of like stone on other streets.
    6. Carriers'—effect of terms on back of ticket whereby employee assumes risk. In a personal injury action, where an employee’s ticket is given as part of compensation, a stipulation on the back that employee assumes risk of accident is contrary to public policy and not binding.
    7. Carriers—instructions. In a personal injury action, where plaintiff, a clerk of defendant street car company, was injured when about to get on one of its cars to go to work, it is not error to instruct the jury that if they believe “from the evidence that it was one of the express or implied terms” of plaintiff’s contract of employment that defendant should furnish free transportation and that the ticket was not given as a gratuity “without any valuable consideration,” then a stipulation on the back whereby employee agrees to assume all risk of accident is not binding on plaintiff.
    8. Carriers—duty of carrier to one about to become a passenger. In a personal injury action, where plaintiff was injured when about to board defendant’s car, it is not error to instruct the jury that, though defendant’s servants did not know plaintiff intended to board the car and had not expressly or impliedly accepted him as passenger, yet defendant was bound to use reasonable care to avoid injuring him.
    Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Rehearing denied February 14, 1913.
    Samuel S. Page and C. LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Superior Court by Charles A. Klinck against the Chicago City Bailway Company to recover damages for personal injuries, wherein a trial by jury resulted in a verdict and judgment against the defendant for $6,500, to reverse which judgment the defendant prosecutes this appeal.

The declaration contains two counts, each of which alleges the possession of and operation by the defendant, on September 29, 1907, of a street railway upon and along Cottage Grove avenue, whereon the defendant operated as a common carrier certain street cars for the conveyance of passengers, and which said railway then and there crossed and intersected Bowen avenue,, where the defendant was accustomed to stop its said cars for the purpose of receiving and discharging passengers. The first count further alleges that at the time and place aforesaid plaintiff was a clerk by occupation, and was then or there at or near said crossing or intersection, at about the place where the defendant was so accustomed to receive and discharge its passengers, for the purpose of becoming a passenger for a valuable consideration, moving from him to the defendant, upon one of its said street cars, which it was then and there operating northward upon and along said railway, and when said car reached the place where the plaintiff was as aforesaid, the defendant, through its servants in charge of the operation and management of said car, but who were not his fellow-servants, reduced the speed of said car until it was moving not much, if any faster than a man could walk, and apparently for the purpose of receiving the plaintiff as such passenger upon said car; that while and when the speed of said car was so reduced as aforesaid, he, at the place aforesaid, and while exercising ordinary care and caution for his own safety, then and there attempted to board said car in order to become such passenger thereupon, and while he was in the act of so boarding said ear, but before he had fully and safely boarded the same, defendant’s said servants, so in charge of the operation and management of said car, although they knew or by the exercise of due care in that behalf would have known that plaintiff was so in the act of boarding said car, then and there wrongfully and negligently, and without warning to the plaintiff, increased the speed, and started said car forward suddenly and violently, and as a direct result and in consequence of the premises, plaintiff was thereby then and there thrown violently from said car to and upon the ground there, etc.

The second count further alleges that prior to the time aforesaid, which was in the night-time, and while it was dark, the defendant wrongfully and negligently placed and piled large quantities of stone, or gravel, immediately alongside of its said railway, at about the place where it was so accustomed to receive and discharge passengers upon and from its said car, and it negligently permitted said stone, or gravel, to be and remain at said place from thence to the time of the injury hereinafter complained of; that at the time and place aforesaid plaintiff was a clerk by occupation, and was then and there at or near said crossing or intersection, at about the place where the defendant was so accustomed to receive and discharge passengers, for the purpose of becoming a passenger for a valuable consideration, moving from him to the defendant, upon one of its said street cars which it was then and there operating northward upon and along said railway, and when said car reached the place where the plaintiff was as aforesaid, the defendant, through its servants in charge of the operation and management of said car, but who were not his fellow-servants, reduced the speed of said car, until it was moving not much, if any, faster than a man could walk, and apparently for the purpose of receiving the plaintiff as such passenger upon said car; that while and when the speed of said car was so reduced, as aforesaid, he, at the place aforesaid, and while exercising ordinary care and caution for his own safety, then and there attempted to board said car in order to become such passenger thereon, and while he was in the act of so boarding said car, but before he had fully and safely boarded the same, defendant’s said servants, so in charge of the operation and management of said car, although they knew or by the exercise of due care in that behalf could have known that plaintiff was so in the act of boarding said car, then and there wrongfully and negligently, and without warning to the plaintiff, increased the speed and started said car forward suddenly and violently, and as a direct result and in consequence of the speed of said car being so increased and said car being started forward as aforesaid, and of the existence and presence of said stone, or gravel at said place, the plaintiff was thereby then and there jerked violently from said car to and upon said stone, or gravel, and said stone, or gravel, caused or contributed to cause plaintiff’s left foot to get under said car and one or more of the wheels of said car thereby then and there passed over plaintiff’s left foot, etc.

At the time of his injury on September 19, 1907, appellee lived on Bowen avenue and was employed by appellant as a clerk at its barns, located at 39th street and Wabash avenue, and had then been so employed for about eight months. His employment commenced at 6 o’clock in the evening and continued until about 4 o’clock in the morning, and he was allowed about half an hour to get his “supper,” for which purpose he usually left the office at about half past ten or eleven o ’clock and patronized some near by restaurant or went to his home. On the night in question he quit work about half past ten o ’clock and went to his home on street cars operated by appellant, and after having had his supper he walked east on the south side of Bowen avenue to Cottage Grove avenue, where he crossed over to the northeast corner of the intersection of said streets for the purpose of boarding one of appellant’s north-bound cars and being carried to the place of his employment.

Four or five days following his employment by appellant, appellee was given for his personal use an “employees’ 62 ride monthly ticket,” upon the face of which were printed the figures 1 to 62 inclusive, and upon the back of which was printed the following:

“Conditions.
“This ticket is for the exclusive use of the person whose name appears on its face. If presented by any other person, or after expiration of the month for which issued, the conductor will take it up and collect regular fare.
“On each presentation of this ticket, the conductor will accept it only for the passage of the person whose name appears on the face of ticket and will punch out one number for each ride until all numbers are punched. If the ticket is presented after all numbers have been punched the conductor will take it up and collect regular fare.
“This ticket is good for 62 rides during the month for which issued and for two days preceding the first day of that month.
“In consideration of the issuance of this ticket the person accepting and using it agrees to abide by its conditions and assumes all risks of accident, and expressly agrees that this Company shall not be liable under any circumstances, for any injury to the person or for any loss or injury to the property of the pas- ' senger using this ticket.
“The Company reserves the right to recall or take up this ticket at any time.
“This ticket must be returned before another will be issued.”

A like ticket was given to appellee each month during his employment, and upon the occasion in question he had in his possession a like ticket for the month of September, 1907, which he purposed using for his transportation.

Appellee testified that when he first applied to appellant’s superintendent for employment he was informed by such superintendent that there was then no opening for him, but that when there was an opening for him he would be notified and employed; than when he was notified about two weeks later that he might then have employment in the office he asked the superintendent what his wages would be, and the superintendent replied, “$70 a month, and you will get your transportation;” that he continued to receive the same wages up to the time of his injury. There is no contradiction of the testimony of appellee regarding what was said at the time he was employed.

Concerning the happening of the accident, appellee testified that when he reached the north crosswalk on Cottage Grove avenue, he looked south for an approaching car and saw one at about 43rd street, a distance of two or three blocks south; that he was smoking and desired to enter the car by the front platform and so walked to a point about 45 or 50 feet north of said cross-walk and near the east rail of the north-bound track, where the car would ordinarily stop to discharge and receive passengers at the front platform; that as the car approached north it had a headlight, and when it reached a point about 25 feet south of the south cross-walk he signaled for it to stop by holding up his hand; that he did not see the motorman at that time, but observed him as the car approached and about the time he attempted to board it; that as the ear approached it slowed down so that when it reached the point where he was standing it was traveling at about the speed a man would walk; that a man then stepped off the car at a point about two feet south of where he was standing; that he then started to get on the car and took hold of the rail with his left -hand and got his foot on the step and was just about to enter the car when it made a sudden and violent start forward; that the violent starting forward of the car loosened his foothold on the step and his foot then came in contact with a pile of crushed stone lying close to the track and his hold on the hand rail was loosened and he fell in such a position that the wheels of the car passed over his left foot. On his further examination appellee testified that he took hold of the rail with his right hand and stepped upon the step with his right foot. After the accident to appellee the car did not stop, but proceeded to the end of its trip.

It is nncontroverted that at the time in question, and for three or four weeks prior thereto, a quantity of crushed stone, estimated as two or three wagon loads, was piled outside of and near the east rail of appellant’s north-bound track, beginning at a point about 50 feet north of the north cross-walk at the intersection of Bowen and Cottage Grove avenues and extending north 10 or 15 feet.

The first controversy has reference to the relation which may properly be held to have existed between the parties at the time of appellee’s injury, as determining their respective duties and liabilities.

It is insisted on behalf of appellant that the negligence relied on by appellee must be regarded as a breach either of the duty owed by a carrier to a passenger or of the duty owed by a master to a servant; that if appellee’s status was that of a passenger, he was a free passenger and in that event the stipulation in the ticket exempting appellant from liability was binding; that if appellee’s status was not that of a free passenger, it was that of a servant being carried to and from his work by his employer, in which event the judgment cannot be sustained, because the declaration does not count upon the breach of the duty owed by a master to a servant, and because the trial in the court below was not conducted in accordance with the settled law governing the relation of master and servant.

While counsel for appellee does not disavow a right of recovery predicated upon the relation either of passenger and carrier or master and servant, but argues that a recovery based upon either of said relations may be sustained, he insists that appellee’s right of recovery is not necessarily referable to the existence of either of said relations; that as the declaration alleges that appellee was at the place in question “for the purpose of becoming a passenger,” and that he “then and there attempted to board said car in order to become such passenger thereupon,” it may properly be held that neither the relation of passenger and carrier nor of master and servant had attached, and in that event the stipulation in the ticket exempting appellant from liability was inoperative and the rules governing the relation of master and servant were inapplicable.

"We are unable to acquiesce in the view that the relation existing between appellant and appellee may properly be designated as that of strangers, and we dismiss that subject without further discussion.

What facts constitute the contract relation of passenger and carrier or master and servant present a question of law, and it becomes necessary for us upon a consideration of the facts alleged and proved to determine which, if either of those relations, existed between appellant and appellee at the time of the latter’s injury.

It is uncontroverted that at and immediately prior to the time appellee attempted to board the car he was at a place in the street where the cars operated by appellant customarily stopped upon signal to dis-. charge and receive passengers. In that respect such place was analogous to a depot platform or other like place where trains ordinarily stop to discharge and receive passengers.

In considering what facts will create the contract relation of carrier and passenger, in Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, it was said:

“It is not necessary to create the relation, that the passenger should have entered a train, but if he' is at the place provided for passengers, such as the waiting room or platform at the station, with the intention of taking passage and has a ticket, he is entitled to all the rights and privileges of a passenger. A railroad company owes a general duty to receive and carry those who present themselves at the time arid place provided for passengers requiring transportation. In Chicago & A. R. Co. v. Wilson, 63 Ill. 167, Wilson, after purchasing a ticket for a train, was standing on a platform constructed by the railroad company for • the convenience of passengers between the main track and a switch track. He was waiting for the passengers to alight from the train upon which he expected to take passage,- when he was struck and injured by another train. The court regarded him as a passenger and held the company liable for the character of the platform. In North Chicago St. R. Co. v. Williams, 140 Ill. 275, it was held that the contract constituting the relation of carrier and passenger might be implied from the attempt of Williams to enter, in a proper manner, a street car as a passenger, with the intention of being transported thereon.”

The court also there quoted with approval from Cooley on Torts, 653, as follows:

“When the passenger has presented himself at the proper place to be transported, his right to care and protection begins.”

In Booth on Street Railways (2nd Ed.) sec. 326, it is said:

“The duty of a common carrier does not extend to the personal safety of one who is not actually a passenger. But it is not necessary that there should be an express contract to constitute the relation of carrier and passenger, nor that there should be a consummated contract. It may. be implied from slight circumstances, and may arise before the payment of fare or entry into the car. The existence of the relation depends largely upon the intention of the person at the time he enters, or while attempting to enter. He is not necessarily a trespasser after he boards the car, even if no fare has been collected from him before ■he suffers an injury, simply because he has violated a rule of the company as to the mode of getting on. Where a person intends to take passage on a street car and has hailed it for that purpose, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to step upon the platform.”

Unless the fact that appellee had in his possession the employees’ ticket heretofore mentioned, which he then intended to present and use for his transportation, and the further fact that he was employed by appellant in the capacity of a clerk, precluded the existence of the relation of carrier and passenger and created the relation of master and servant, it must be held that when he attempted to board the car at the place in question there was created the relation of carrier and passenger and not the relation of master and servant.

For the purposes of this case, it may be conceded that if the employee’s ticket was given to appellee as a mere gratuity the stipulation thereon exempting appellant from any liability for injury to his person would be effective and would preclude a recovery.

It is undisputed that when appellee entered the employment of appellant it was agreed that he should receive as compensation for his services $70 a month and his transportation. His transportation upon the cars of appellant whenever he chose to avail himself of it, whether in going to or from his work or for any other purpose, was something of money value which must necessarily have been offered and accepted as an inducement to appellee to enter the employment of appellant.

It can hardly be doubted that if appellee had at the time in question intended to pay the fare for his transportation in money of his private means the relation thus created would be that of carrier and passenger, and we are unable to perceive any substantial distinction as affecting that relation between the payment by appellee of his fare in cash and the payment by him of his fare in services or money’s.worth. Sufficient facts are alleged in the declaration to constitute the relation of carrier and passenger between appellant and appellee at the time in question, and as the ticket was not a gratuity, but was offered and accepted as in part compensation for appellee’s service, the intended use by appellee of such ticket at the time in question did not operate to substitute the relation of master and servant for that of carrier and • passenger.

In support of its insistence that the relation of master and servant existed between appellant and appellee at the time in question, appellant relies upon the authority of certain cases, wherein it is said, in substance, that a person in the employ of a railroad company, who travels back and forth from his home to his place of employment on the cars of the company, and whose transportation free of charge constitutes a part of his contract for services, is, while so traveling, not a passenger, but a servant, and is subject to the rules governing the relation of master and servant. Vick v. New York Cent. & H. R. R. Co., 95 N. Y. 267; Ionnone v. New York, N. H. & H. R. Co., 21 R. I. 452; Chicago Terminal Transfer R. Co. v. O’Donnell, 114 Ill. App. 345; Illinois Cent. R. Co. v. Leiner, 202 Ill. 624; Walsh v. Cullen, 235 Ill. 91. In all of these cases and in others wherein substantially a like statement appears the application of the rule announced related to cases wherein the transportation of the servant was purely gratuitous, or the servant while being carried by the master was subject to the direction and control of the master. There are, however, expressions in the Vick case, supra, to which we cannot give our as- . sent.

In Doyle v. Fitchburg R. Co., 162 Mass. 66, and 166 Mass. 492, plaintiff’s decedent, employed as a clerk in the freight department of defendant, was killed while traveling for his convenience upon defendant’s railroad upon a ticket similar in form to the one given by appellant to appellee and containing the like stipulation exempting the defendant from liability for personal injuries, and it was held that the ticket was not a gratuity and that the relation of carrier and passenger existed between the deceased and the defendant.

In Dickinson v. West End St. Ry. Co., 177 Mass. 365, the plaintiff, a motorman in the employ of the defendant, having finished his work for the time being, was, while riding home to his dinner, upon the front platform of one of defendant’s cars, injured by the negligence of the motorman operating the car. Plaintiff was thus riding under a rule “permitting policemen, firemen, advertising agents, news agents and employees of the defendant company in uniform to ride free at any time, such persons being required to ride upon the front platform so far as practicable,” and it was held that while so riding he was a passenger and not a servant. The case was held to come within the decision in Doyle v. Fitchburg R. Co., supra, and it was said:

“At the time of the accident he (Dickinson) did not stand in the relation of a servant to the defendant. His time was his own and he owed the defendant no duties until the time arrived for resuming his work. It was no part of his duty to the defendant, as a servant, to take the car on which he was riding, and go to a particular place for his dinner. He might go where he pleased and when he pleased during the interval before coming back to his work. This case is different in this particular from cases in which the plaintiff was riding in the line of his duty in the course of his employment. His rights were the same as if, after finishing his day’s service, he had taken a car in the evening to visit a friend or to do any business of his own.”

This language is applicable to the facts in the case at bar.

Appellee in going home to his supper was serving his own convenience. His time was his own and he was not then in the performance of any duty which he owed to appellant.

The doctrine announced in the Doyle cases, supra, is expressly recognized in Walsh v. Cullen, 235 Ill. 91.

If a right of recovery exists in this case, it is to be predicated upon the relation of carrier and passenger and not upon the relation of master and servant.

It is next urged that even conceding the relation between the parties was that of carrier and passenger, the verdict is contrary to the manifest weight of the evidence.

The testimony of appellee relative to the manner in which and the place at which he attempted to board the car, the speed at which the car was traveling, the presence at the place of the pile of crushed stone, the sudden jerk of the car forward, and the happening of the injury, is corroborated in its substantial particulars by the testimony of Edward E. Rowlands, who was a passenger riding upon the front platform of the car and who alighted therefrom immediately before appellee attempted to board the car at the same platform.

William K. Ellington, called as a witness by appellee, testified that at the time of the accident he was standing on the northwest corner of Cottage Grove and Bowen avenues and saw appellee cross from the southwest corner to the northeast corner and stand just about where a person would get on the front end of the car north of the north cross-walk; that he noticed the car coming and that as it approached the crossing it slowed up to a speed about as fast as a man would walk; that the car then started forward again in a kind of a jerk; that after the car passed on, he heard appellee hollering for help and went to his assistance.

The motorman testified that he did not see appellee as the car approached the crossing and that he received no signal for the car to stop, other than a request from Rowlands, who was on the front platform, to slack up, which request was made at about the south side of Bowen avenue; that Rowlands alighted from the car at about the north edge of the north cross-walk while the car was going at a speed of about six miles an hour and before it had reached the place where it would have stopped, if it was going to stop; that he was watching Rowlands to see that lie got off safe, because the car was going a little fast for a man to jump off; that he saw Rowlands jump off and saw that he landed safe; that cars running-north usually slowed up at that point, because there was an incline of about two feet to a railroad subway a short distance further north; that when he slacked up to let Rowlands jump off the power was off and the breaks were set; that after Rowlands jumped off the brakes were thrown off and the car went ahead; that the car did not start up with any sudden or violent jerk; that he did not see anybody take hold of the car or attempt to take hold of it.

Prior to the trial and while appellee was in the hospital, appellant procured from him a signed statement of the facts and circumstances attending his injury, and appellant also procured from the witness, Row-lands, on separate occasions prior to the trial three statements signed by the witness relative to the occurrence in question. The testimony of such witnesses is not in complete accord with their signed statements, but there is no such variance as would warrant the jury or the court in concluding- that their testimony bearing upon the facts in controversy was unworthy of credence. We are unable to say that the verdict of the jury upon the issues of fact involved was clearly unwarranted.

It is urged that appellee was erroneously permitted to testify to the conversation with appellant’s superintendent relative to the terms of appellee’s employment, because the same was in contradiction of and inconsistent with the alleged agreement expressed on the employee’s ticket, which was thereafter accepted and impliedly acquiesced in by appellee, and because it was not shown that appellant’s superintendent had any authority to bind it by promising transportation to appellee as a matter of right. Appellant’s superintendent exercised authority to hire and discharge employees and to designate and determine their compensation, and the terms of their employment, and the authority so exercised by him was ratified by appellant by its paying to appellee the wages agreed upon and by its furnishing to appellee his transportation upon its railway. These facts were sufficient to establish the authority in question of appellant’s superintendent. The agreement for appellee’s compensation, as expressed by appellant’s superintendent, was material in determining whether or not the employee’s ticket was a mere gratuity. If it was a mere gratuity, it may be conceded appellee was bound by its conditions, but if it was not a gratuity, the conditions thereof here particularly involved were contrary to public policy. The objections to the testimony were properly overruled.

The presence of a pile of crushed stone in close proximity to appellant’s track was not denied, but appellee sought to show that the stone was placed there, or caused to be placed there, by appellant for use by it in repairing or constructing its tracks, ánd over the objection of appellant, was permitted to show that similar stone was used by appellant for such purposes and was piled in like manner at other places in streets where it maintained street car tracks. The witness, John E. Klinck, a brother of appellee, testified that he had observed the use by appellant of like stone all along Cottage Grove avenue, and on 39th, 43rd and 47th streets in making track bed. The testimony had some tendency, even though slight, to prove the fact sought to be adduced and was not improperly admitted. It was a circumstance proper to be considered by the jury, even though entitled to but little weight. The objection to the admission of this evidence is, however, stripped of any force by the 25th instruction, given at the instance of appellant, as follows :

“You are hereby instructed that it is immaterial in this case whether the stone in question, at or near the place of the accident in question, was put there or was there by the defendant or its procurement.”

The first instruction, given at the request of appellee, is as follows:

“The court instructs the jury that if you believe from the evidence that it was one of the express or implied terms or conditions of plaintiff’s contract of employment that defendant should furnish him free transportation upon its cars and that the employee’s ticket, introduced in evidence, was not given him as a pure gratuity, without any valuable consideration, then the stipulation or condition on the back of said ticket, to the effect that the person accepting and using said ticket agrees to assume all risk of accident, and expressly agrees that defendant company shall not be liable under any circumstances for any loss or injury, was not and is not binding upon the plaintiff.”

It is said this instruction is erroneous, because it directed the jury to ascertain either the expressed or implied terms of appellee’s contract of employment; because there could not be both express and implied terms covering the same matter; because there is no evidence upon which to base the reference to the implied terms of employment; because it left to the jury the determination of a question of law, viz., whether or not the employee’s ticket was given to appellee as a pure gratuity without any valuable consideration, the jury not being informed as to what constituted valuable consideration.

Within the holdings in Doyle v. Fitchburg R. Co., supra, Dugan v. Blue Hill St. Ry. Co., 193 Mass. 431; Harris v. Puget Sound El. Ry., 52 Wash. 289; and Whitney v. New York, N. H. & H. R. Co., 43 C. C. A. 19, there was some evidence tending to show the terms of appellee’s employment by implication, and the reference thereto was not improper. The competent testimony of appellee, which was not controverted, warranted the jury in finding that there was an express agreement as to the terms of his employment and no harm could have resulted to appellant from the reference to any implied terms. In the sense in which it is involved in the case and is used in the instruction, the term “valuable consideration” could not have been misinterpreted by the jury.

The thirty-second instruction tendered by appellant was modified by the court by adding the words appearing in italics, and as given to the jury, was as follows:

“If plaintiff has failed to prove by a preponderance of all of the evidence, under the instructions, that defendant’s employees on the occasion in question knew that plaintiff intended to board the car in question and expressly or impliedly accepted him as a passenger, then the plaintiff did not in law become a passenger upon said car and this defendant ivas obliged only to use reasonable care to avoid injuring the plaintiff”

It is insisted that the instruction was improperly refused as tendered and was improperly- modified by the court. The instruction, as tendered, does not negative the presence of appellee at the time and place in question, and if, as the evidence tended to show, he was then present at a place where passengers were ordinarily discharged and received at the front platform of the car, appellant was at least bound to exercise reasonable care to avoid injuring him, and this notwithstanding the servants of appellant did not know that appellee intended to board the car and such servants had not expressly or impliedly accepted appellee as a passenger. The position and • conduct of appellee at the time and place in question distinguishes the case at bar from Illinois Cent. R. Co. v. O’Keefe, 168 Ill. 115, relied upon by appellant in support of its criticism of the instruction as given.

Our attention is directed to certain incidents at the trial which, it is claimed, manifested' hostility on the part of some of the jurors toward appellant, but we perceive nothing therein requiring the reversal of the judgment.

There is no substantial error in the record affecting the merits of the case and the judgment is affirmed.

Judgment affirmed.


text:
    Nettie A. Broaddus, Appellee, v. William T. Bruce, Appellant.
    Gen. No. 16,984.
    1. Monet had and becetved—evidence. In an action to recover $3,000, a judgment for plaintiff is against the manifest weight of the evidence where the evidence fails to account for the acquirement of that sum hy plaintiff and her husband, the testimony is unreasonable as to the manner in which the money was cared for, de- ' fendant advanced money to plaintiff for various purposes, plaintiff wrote several letters to defendant without any allusion to the money in question and no fact or circumstance corroborates plaintiff’s testimony.
    2. Evidence—when mere preponderance necessary. It is not incumbent on plaintiff to establish her case beyond a reasonable doubt or hy a clear preponderance of the evidence to recover in an action for money alleged to have been given to defendant to invest, but • a mere preponderance is necessary.
    Appeal from the Muncipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed January 29, 1913.
    D. J. Normoyle and E. J. Kelley, for appellant.
    Charles C. Spencer, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Municipal Court by Nettie A. Broaddus against William T. Bruce to recover $3,000, alleged to have been given by the plaintiff to defendant for the purpose of being invested on account of plaintiff and wrongfully detained by the defendant. There have been three trials of the case, two of which resulted in verdicts • for the plaintiff, which were set aside by the trial court. The third and last trial before the court without a jury resulted in a finding and judgment against defendant for the amount of plaintiff’s claim, to reverse which judgment the defendant prosecutes this appeal.

It is insisted on behalf of appellant that the finding of the court is against the manifest weight of the evidence and that the court erred in refusing to hold as the law of the case certain propositions submitted by appellant.

The propositions submitted to the court were properly refused for two reasons. First, they were not submitted in apt time and second, as formulated, they are neither propositions of law nor propositions of fact, but embody mixed propositions of law and fact for the submission of which there is no warrant.

As the judgment must be reversed and the cause remanded because the finding upon which the judgment is predicated is against the manifest weight of the evidence, it becomes necessary to discuss the evidence.

In 1901 appellee, accompanied by her husband and her son, removed from Lacón or Kewanee in this state to Chicago, and in 1904 or 1905 she met the appellant, who then also resided in Chicago with his wife and family and was employed as superintendent of the Boston Store stables. They had formerly resided at Putnam in this state, where they had known each other in childhood. Following their meeting and the renewal of their former acquaintance, appellant procured the employment of appellee’s husband and son as teamsters, and appellee and her family resided for a time in rooms oyer one of the stables. About that time, or shortly thereafter, the relations between appellee and appellant became illicit and so continued until shortly prior to the commencement of this suit. The husband of appellee died in February, 1908, and on December 8th or 9th following, appellant abandoned his wife and children and accompanied by appellee went to Seattle, Washington, where, immediately upon his arrival, he was arrested upon the charge of wife abandonment and returned in custody to Chicago. Appéllant then had upon his person something over $9,000 in currency, including five $1,000 bills. It is uncontroverted that on December 8, 1908, being the same day or the day preceding that on which appellee and appellant left for Seattle, appellant withdrew in currency from the Illinois Trust and Savings Bank $9,500.

Regarding the transaction, wherein appellee claims to have given $3,000 to appellant, she testified that in the last week of March, 1908, she had that amount of money in three bills of $1,000 each, which she desired to invest in a rooming house; that appellant was going around helping her to find one and she gave him the three $1,000 bills at that time to invest for her; that appellant retained the money until December following, when they went to Seattle where he was to invest that amount for her in a rooming house, and where he proposed to purchase a livery stable. Concerning the source from which said money was derived and the manner in which it had been kept, appellee testified that her husband brought with him $4,000 in four $1,000 bills when he removed to Chicago with her in 1900 or 1901, and that said bills were in the possession of herself or her husband until three or four weeks prior to his death on February 16, 1908, when he gave the bills to her; that during all of that time the four $1,000 bills were kept in the mattress of the bed occupied by her husband and herself, or carried by one or the other of them on his or her person, or taken by her in her trunk when she made trips out west; that during a portion of that time she had an account in the First National Bank of Chicago, but no part of said money was ever deposited there by her. Without reviewing the evidence in detail it is sufficient to say that it wholly fails to account for the acquirement by appellee and her husband of $4,000, prior to their removal to Chicago.

It is uncontroverted that appellant paid the funeral expenses of appellee’s husband and also frequently advanced money to appellee for various purposes; that upon one occasion, in 1905, appellant deposited $1,500 to secure the bail of appellee’s son, when he was arrested upon a criminal charge, and that upon several occasions appellee and her husband borrowed money from a loan broker, which they secured by giving chattel mortgages upon their household furniture. Following the termination of the illicit relations which had existed between appellee and appellant, appellee wrote appellant several letters, wherein she charged him with unfaithfulness to her and made reference to her helpless and destitute condition and her inability to meet necessary expenses, in none of which letters does she make any allusion to the money in question or make any claim upon appellant therefor.

Appellant denied that appellee had ever given him $3,000 or any other sum of money to invest for her, or that any portion of the money which he had with him when he accompanied appellee to Seattle belonged to appellee, and the bank account of appellant shows. that no deposit of any money was made by him between August 16,1907, when he deposited $11,000, and December 29, 1908, when he deposited $4,300. The necessary inference from this circumstance, that from April 1, 1908, to December 29, 1908, appellant carried $3,000 in currency on his person, or kept the same elsewhere than in the bank where he carried an account, is as unreasonable as is the testimony of appellee regarding the manner in which she and her husband cared for the fonr $1,000 bills which she claims they had in their possession from 1900 or 1901 to 1908. .

If, notwithstanding the inherent incredibility of the testimony of appellee in the respects mentioned, the record disclosed some fact or circumstance corroborative of her testimony, other than certain alleged admissions by appellant to the effect that $3,000 of the money which he carried with him to Seattle belonged to appellee, we might be reluctant to disturb the finding and judgment of the trial court, but the record is not only barren of any such fact or circumstance, but every fact and circumstance disclosed by the record is inconsistent with appellee’s claim.

The alleged admissions, if made by appellant, were made under circumstances which necessarily detract from their probative value. If the-testimony of the witnesses be true, such admissions were made by appellant while the charge of wife abandonment against him was being pressed, and before his reconciliation with his wife and family, and while he was in an irresponsible condition induced by alcoholism and surrounded by those who appear to have had some interest in common in establishing the claim of appellee.

We are unhesitatingly impelled to the conclusion that the finding of the trial court is against the manifest weight of the evidence.

Counsel for appellant insist that it is incumbent upon appellee to establish her case beyond a reasonable doubt, or at least by a clear preponderance of the evidence, but such insistence is without merit, and she will be entitled to a verdict or finding when she shall have proven her case by a preponderance merely of the evidence. '

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Catholic Bishop of Chicago, Appellant, v. City of Chicago, Appellee.
    Gen. No. 16,987.
    1. Railroads—liability for settling of building caused by excavations on right of way. Where plaintiff’s building, which he occupied, was damaged by settling caused by work done by a railway company in connection with the elevation of its tracks as required by ordinance, the company is liable for such damages.
    2. Cities and villages—power of city to indemnify railway company against liability for damages caused by elevation of tracks.
      A city is bound by the contract contained in an ordinance which requires it to assume all liability for damages to property adjacent to the right of way of a railway company caused by work connected with the elevation of tracks as required by such ordinance, where the company elevated its tracks in strict compliance with the ordinance and deeded valuable property to the city as provided therein which could not have been acquired by ordinance against the company’s will.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with directions.
    Opinion filed January 29, 1913.
    P. J. O’Keeffe, for appellant; Edmund W. Burke, of counsel.
    Edward J. Brundage and Robert N. Holt, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is. an action on the case instituted in the Circuit Court by the Catholic Bishop of Chicago against the City of Chicago, wherein a hearing by the court upon a stipulation as to the facts resulted in a finding and judgment against the plaintiff, who prosecutes this appeal.

The declaration alleges the ownership, possession and control by the plaintiff of certain property, known as Holy Angels Church and School, consisting of a church building used for religious worship and a school building used as a parochial school, situated in the City of Chicago, and abutting on the right of way of the Chicago Junction R. R. Co., and the Union Stock Yards and Transit Co.; that on March 16, 1903, there was adopted by the City of Chicago an ordinance requiring said companies to elevate their tracks, construct certain subways and construct embankments, abutments and retaining walls for such track elevation, in accordance with certain specifications therein contained; that in pursuance of said ordinance the said companies elevated their tracks to a height of 20 feet, where the said property of the plaintiff abuts, and constructed embankments, abutments and retaining walls to the like height; that in the construction of said embankments, abutments and retaining walls it was necessary for said companies to excavate their right of way to a depth of about ten feet; that by the said construction of said embankments, etc., the gable in said school building was caused to settle, the upper portion of the gable was caused to pull away from the building at the roof line, the main portion of the building near the gable was caused to crack in the side walls, the foundation of the church building was caused to settle and fall away, etc., whereby said property sustained damage to the extent of $15,000, etc.

It was stipulated that the plaintiff was the owner and in possession of the property described in the declaration and that the same was located as therein stated; that the plaintiff had sustained damages thereto in the amount of $15,000 as a result of the construction of certain railroad tracks and structures on the right of way of the said railroad companies contiguous to said property; that the elevation of said structures on and over said right of way, causing said damage, was pursuant to the ordinance adopted March 16, 1903, which said ordinance was made a part of the stipulation, and provided, among other things, that “nothing in this ordinance contained shall be so construed as to require the said railroad companies to assume or pay any direct, incidental or consequential damages to adjacent property or business caused by the passage and enforcement of this ordinance or by the excavation, depression or change of grade made in any part of the public avenues, streets, or alleys, or by the elevation of the tracks of said railroad companies as herein required to be elevated, or to defend any suit or suits which may be brought against any party or parties for the recovery of any such damages ; be it understood, and the City of Chicago hereby agrees, that all such damages, if any there shall be, shall be adjusted and paid by the City of Chicago, and said city will and hereby agrees to assume the defense of any and all suits brought for the recovery of all such alleged damages, intervening therein if necessary for the purpose. * * * ”

It was further stipulated that said railroad companies performed the work in strict compliance with the terms of said ordinance in 1905, and that said work was paid for by the Chicago Junction B. B. Co.; that in accordance with the terms of said ordinance the said railroad company ceded to the City of Chicago four valuable pieces of real estate to be used as public streets and alleys; that the cause be submitted to the Honorable Kickham Scanlan, judge of the Circuit Court, for his decision under the facts stipulated, as to whether, under the law, the city exceeded its powers in making the contract in the said ordinance with the railroad company, and, second, as to whether, as a matter of law, the liability of the city is restricted to damages resulting from the work done in the public streets of the city; that if said judge shall decide the city is liable under the ordinance and the facts stipulated, then said court shall enter judgment in the sum of fifteen thousand dollars ($15,000) against the defendant and in favor of the plaintiff, and that either party shall have a right to appeal or sue out a writ of error from any final order entered in the case.

Counsel for appellee say: “There are two questions in this ease: First, Is there any damage for which a recovery may be had in law under this declaration and the facts as stipulated? Second, If there is, who shall pay it?”

It is not controverted that the damages to the property of appellant, the amount of which damages is stipulated, accrued in the manner and by the means alleged in the declaration.

In Chicago Flour Co. v. City of Chicago, 243 Ill. 268, where precisely the same provision in the same or a like ordinance was involved, it was said:

“That provision of the ordinance was not intended to impose upon either party a liability which did not before exist, but was intended to determine, as between the parties to the agreement, which should pay the damages for which it might be reasonably anticipated one or both would become liable in the prosecution of the work.”

In that case, the plaintiff sought to recover damages alleged to have been sustained through being deprived of the use of certain switch tracks during the work of elevating the tracks of the defendants. There was neither a physical taking of plaintiff’s property nor any diminution of its value, but merely a temporary interference with the ordinary means of access to and egress from the property during the progress of the work. It was held that damages resulting from such cause were not recoverable and that only such damages were contemplated in the ordinance as were recoverable in law.

In Kotz v. Illinois Cent. R. Co., 188 Ill. 578, the plaintiff sought to recover damages to his adjoining lot from increased noise, smoke and cinders occasioned by the elevation of defendant’s tracks upon its right of way, and also damages to his alleged easement of light, air and view resulting from such elevation, and it was held that such damages were not recoverable.

Obviously the doctrine announced in these cases can have no application to the case at bar, wherein the injury occasioned to appellant’s property by doing the work authorized and required by the ordinance was direct and physical, for which damages are clearly recoverable in law.

It cannot be doubted that in the absence of the provision in the ordinance indemnifying the railroad company against the payment of damages so occasioned, it would be liable to appellant therefor. In Chicago Flour Co. v. City of Chicago, supra, in speaking of said provision, it was said:

“We think it apparent * * * that the object of the provision was to afford indemnity to the railroad companies, and, as between them and the city, to impose upon the latter the liability for all damages legally recoverable against either or both on account of the work mentioned in the ordinance.”

It only remains to be determined whether or not appellee “had the power to assume a liability for damages for which it would not be legally liable” This question was not necessarily involved in the Chicago Flour Co. case, supra, and was, therefore, not decided.

It is stipulated that the work of elevating the tracks was performed by the railroad companies in strict compliance with the terms and conditions of the ordinance, and that the railroad companies conveyed to appellee four valuable pieces of real estate to be used as public streets and alleys, as provided in said ordinance.

In consideration of its agreement in the ordinance to indemnify the railroad company appellee thereby acquired from the railroad company valuable property which it could not by ordinance have compelled the railroad company to relinquish against its will. In City of Chicago v. Pittsburg, C., C. & St. L. Ry. Co., 244 Ill. 220, where a like consideration was involved, it was held that the city was bound by its contract obligation in the ordinance to release the railroad company from all damages occasioned by the work done by the railroad company, in pursuance of such ordinance.

As affecting the validity of the contract obligation of the city, we are unable to perceive any substantial ground for distinction between a contract of release and a contract of indemnity as to legal damages resulting from the performance of work under the executed provisions of such an ordinance.

The judgment of the Circuit Court is reversed and final judgment will be entered in this court in favor of appellant and against appellee for $15,000 and costs ■ of suit.

Judgment reversed and judgment here for $15,000 and for costs of suit.


text:
    John Reed, Appellee, v. Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 16,993.
    1. Master and servant—when negligence in directing dismantling of scaffold is for the jury. While a painter was standing upon a ladder painting the bottom of a girder of an elevated railway structure, men who had been painting the sides were, at the direction of a foreman, dismantling a swinging scaffold that hung from the girder and lowering the planks to the street by ropes. The foreman on the ground could see the painter but was giving attention to passers-by and a plank or a swinging of the scaffold knocked the painter off the ladder, if eld, whether the railway company through its foreman was guilty of negligence in directing the scaffold to be dismantled in close proximity to the painter, as he was situated, was a question for the jury.
    2. Master and servant—concurrent negligence of fellow-servant and vice principal. Where a painter was standing upon a ladder painting the bottom of a girder of an elevated railway structure and fellow-servants were, at the direction of a foreman, dismantling a swinging scaffold hanging to the girder and lowering planks to the ground, and the swinging of the scaffold or a plank knocked the painter off the ladder, if the accident was occasioned by the negligence of the fellow-servant acting in co-operation with the negligence of the company through its foreman, the company is liable.
    3. Master and servant—when contributory negligence of servant is for jury. Where a painter standing upon a ladder painting the bottom of a girder of an elevated railway structure was unable to observe the movements of men dismantling a swinging scaffold that hung from the girder and lowering planks to the ground at the direction of the foreman, and was struck by the swinging of the scaffold or by a plank, and he had no knowledge that the scaffold was to be dismantled, and the workmen were unable to see him upon the ladder, the question of whether he was guilty of contributory negligence was for the jury.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.

      Addison L. Gardner, for appellant; W. W. Gurley, of counsel.
    Miles J. Devine, for appellee; John T. Murray, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

In this suit by appellee against appellant to recover damages for personal injuries, a trial by jury in the Superior Court resulted in a verdict and judgment against appellant for $3,000, to reverse which judgment this appeal is prosecuted.

On June 11, 1907, appellee, as one of a gang of six men, was, under the direction of appellant’s foreman,, Alfred Lamp, engaged in painting the longitudinal girders which formed a part of the elevated structure of appellant’s railway, where the same crossed Ashland avenue in Chicago, and the same gang of men under the same foreman had been doing like work for appellant for about two months prior thereto. The entire work of painting the upright columns and the sides and bottoms of the girders was usually done at the same time by the several men employed in the gang. The sides of the girders being painted by men standing on a swinging scaffold and the bottoms of the girders and the upper portion of the upright columns by men standing upon Y-shaped ladders resting upon the street pavement. Appellant’s railroad crossed Ashland boulevard with four tracks, under each of which there were two girders 5 or 6 feet in depth, located almost directly beneath the track and rails, and about 6 feet apart. Prior to the day in question a swinging scaffolding had been constructed under the south four girders, the west side of the scaffolding being from 8 to 12 feet east of the west curb of Ashland boulevard. In the construction of the scaffold clamps were affixed to the flanges of the girders, to which clamps were fastened ropes to the end of which wooden stringers' .were affixed. The stringers ran north and south and planks were laid thereon running from east to west, upon which the men stood while painting the sides of the girders. The bottoms of the girders were about 14 feet above the street and the scaffold planks were from 8 to 12 inches below the bottoms of the girders. On the morning in question appellee, while upon the scaffold painting the sides of the girders, was directed by the foreman to get off the scaffold and paint the bottoms of the girders from the ladder. Appellee then used the ladder, upon which he stood, so that, while standing erect, his shoulders were about on a level with the bottoms of the girders, and shifted the ladder from place to place upon the street as his work required. While thus standing upon the ladder, engaged in painting the bottom of the second girder from the south, working from east to west and looking southwest, he was struck in the back below the right shoulder by a plank or a swinging stringer of the scaffolding and knocked with his ladder to the ground and injured.

The declaration alleges three distinct grounds of recovery: First, that appellant, by its servants and agents, who were not fellow servants of appellee, then and there so negligently and carelessly managed, controlled and handled said scaffolding and the supports thereof, that the same swung around toward appellee * * * and struck him; second, that it was the duty of appellant to provide appellee with a safe place to work, but appellant neglected its said duty and while appellee was standing upon the ladder painting one of the girders, with his head above the lower surface of the girders and out of sight of the swinging scaffold, appellant began taking down the said swinging scaffolding without any notice to appellee, and in so doing then and there so negligently and carelessly managed and handled said scaffolding and supports thereof that the same swung and struck appellee; third, that appellant, by its foreman, so carelessly, negligently and improperly ordered and directed the removal of said swinging scaffolding and the supports thereof that the same swung and struck appellee.

The only ground urged for a reversal of the judgmen is the action of the trial court in refusing to give to the jury the peremptory instructions tendered by appellant at the close of the evidence for appellee and again at the close of all the evidence. This position is predicated upon the insistence, first, that no negligence on the part of appellant or its servants was shown; second, that if there was any such negligence shown it was that of fellow servants of appellee; third, that the undisputed evidence shows that appellee was guilty of contributory negligence.

It is clearly established by the evidence that while appellee was standing upon the ladder painting the bottom of the girder, the men who had been painting the sides of the girders, were at the direction of appellant’s foreman, engaged in dismantling the scaffolding and lowering the planks upon the street below by means of ropes; that appellant’s foreman, whose entire time was occupied in superintending the work, was standing upon the street beneath the girders directing the work of lowering the planks, so that no injury would result to those who might be upon the street; that immediately preceding the injury to appelleé one of the men engaged in lowering the planks called to the foreman and asked if all was clear below; that as the foreman then saw an automobile and bicycle approaching from the north, he replied, “No;” that after the automobile and bicycle had passed the point of danger, the man upon the scaffold again inquired of the foreman if the way was clear, and the foreman replied, “Yes;” that thereupon the plank was lowered to the street. Whether appellee was struck by the plank as it was being lowered, or by the swinging of the scaffold, occasioned by the move- ■ ments of the men engaged in dismantling it, was a controverted question of fact properly submitted to the jury. There is evidence tending- to show that appellee had no notice or knowledge that the scaffolding was to be dismantled; that from his position upon the ladder he was unable to observe the movements of the men upon the scaffold, and that the men upon the scaffold were unable to see appellee where he was then at work upon the ladder. The foreman testified that before directing the men upon the scaffold to dismantle it, he directed appellee to come down from the ladder, and that appellee did so. He further testified that he did not see appellee at work upon the ladder when the planks were being lowered. Appellee denied that he was directed by the foreman to come down from the ladder. In the face of the undisputed fact that at the time of his injury appellee was standing upon the ladder engaged in painting the bottom of the second girder from the south, the testimony of ' the foreman that, although he was standing upon the street below, he did not see appellee upon the ladder, is entitled to little credence.

Whether or not appellant, through its foreman, was guilty of negligence in directing the scaffold to be dismantled in close proximity to appellee, as he was then situated, was fairly a question of fact for the jury.

Conceding that the relation of fellow servants existed between appellee and the men upon the scaffold, if the injury to appellee was occasioned by the negligence of such fellow servants acting in co-operation with the negligence of appellant, through its foreman, appellant would be liable. Kennedy v. Swift & Co., 234 Ill. 606; Sturm v. Consolidated Coal Co., 155 Ill. App. 1.

The question of the contributory negligence, if any, of appellee was properly submitted to the jury.

The trial court did not err in refusing to direct a verdict for appellant, and the judgment is affirmed.

Judgment affirmed.