author: Mr. Presiding Justice

text:
    Mary C. Merrifield, Defendant in Error, v. Western Cottage Piano & Organ Company et al. (T. W. Burrows, Plaintiff in Error).
    Gen. No. 4,968.
    1. Executions—against whom writs should run. An execution should follow the judgment and must on its face appear to be against all the defendants against whom the judgment is entered, notwithstanding from the death or some other cause no levy can be made on the property of some.
    2. Jurisdiction—power of court to set aside order after term of entry. It is not competent to hear evidence or affidavits made subsequent to a ruling in order to modify a ruling made at a previous term, except in the matter of setting aside a default, and that is in the discretion of the court.
    3. Jurisdiction—power of court to set aside order after term of entry. The court may change a ruling upon a pleading at any time before the final judgment, but not upon any order the determination of which depends upon a hearing of independent facts.
    4. Judgment—when form of, allowing leave to plead, proper. An order as to one defendant to a judgment entered by default which gives him leave to plead but which does not set aside the judgment, is proper.
    Assumpsit. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldredge, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 10, 1909.

      Statement by the Court. On January 18, 1907, the Western Cottage Piano and Organ Company (hereinafter described as the company), executed three notes for $5000 each, payable four months after date to the order of W. T. Rickards & Co. Each of the notes was endorsed by L. W. Merrifield and T. W. Burrows. On January 24,1907, a similar note for $5000 was made by the company with the same endorsers. The four notes were endorsed without recourse to Mary C. Merrifield by W. T. Rickards .& Co. Mary C. Merrifield brought suit in assumpsit to the June term 1907 of the Circuit Court of LaSalle county on these three notes so endorsed to her, against the maker and also against the endorsers whom she declared against as guarantors. Summons was duly served ten days prior to said term on all the defendants. On the 21st of June, the defendants were defaulted and judgment was rendered against all of them for $20,084.49. On the 29th of June, the defendant, Burrows, made a motion to set aside the default and open up the judgment and for leave to plead. The court on hearing the motion made an order “that execution herein be and the same is hereby restrained, grants leave to said defendant to plead and orders that the judgment entered herein stand as security for the debt.” No bill of exceptions was taken to the entering of this order. The defendant Burrows filed a plea of the general issue with notice of special matters intended to be relied on, and filed with his plea and notice an affidavit that he had a good defense upon the merits and that his defense' is particularly set forth in the notice of special matters relied on. On the 22nd of October,, at the October term, counsel for Burrows gave notice that on the next day they would ask for leave to file an additional plea for Burrows, and would also ask leave to file a plea for the defendant company, but the record does not show any such motion was ever made on behalf of defendant company. On October 23rd the defendant, Burrows, moved for leave to withdraw the notice under the general issue and for leave to file special pleas. This motion was granted. Thereupon the defendant, Burrows, filed three special pleas, and the plaintiff filed a replication concluding with a verification. The record does not show that the pleading was closed. On February 8, 1908, an execution was issued on this judgment against the company and L. W. Merrifield to the sheriff of LaSalle county. On February 11, at the January term, the attorneys for T. W. Burrows, professing to act in the name of the company, made a motion to recall and quash the execution, and the plaintiff made a cross motion to set aside the order “entered herein on June 29, 1907, setting aside the default as to the defendant, T. W. Burrows, opening up the judgment and granting leave to the defendant to plead.” On February 18th the court sustained the motion made by plaintiff “to vacate order setting aside default as to T. W. Burrows” and “overruled the motion to recall the execution made by the company.” The defendant, Burrows, excepted to this ruling.
    Eddy, Haley & Wetten and Butters, Armstrong & Ferguson, for plaintiffs in error; P. C. Haley, of counsel.
    McDougall & Chapman, for defendant in error.
   Mr. Presiding Justice

Thompson delivered the opinion of the court.

The plaintiff in error, T. W. Burrows, prayed an appeal from the judgment of the Circuit Court and filed an appeal bond in apt time, but, for some reason, has abandoned his appeal and has sued out a writ of error to reverse the order of the court of February 18th, and assigns error and contends that the court erred in refusing to quash the execution and in sustaining the cross motion of defendant in error, “to vacate order setting aside default as to T. W. Burrows.” The company also assigns error on the refusal of the court to quash the execution.

The judgment entered on June 21, 1907, is against the company, L. W. Merrifield and T. W. Burrows; the execution issued February 8, 1908, is against the company and L. W. Merrifield and not against Burrows, and was issued while the order was in force restraining execution in the cause.

An execution should follow the judgment and must on its face appear to be against all the defendants against whom the judgment is entered, notwithstanding from the death or some other cause no levy can be made on the property of some. Freeman on Executions, Sec. 42; 8 Ency. of Pl. & Pr. 418; Douglas v. Whiting, 28 Ill. 362; Hobson v. McCambridge, 130 Ill. 367; Kinkade v. Gibson, 209 Ill. 246.

The execution having been issued against only part of the defendants and failing to conform to the judgment, was irregular and should have been quashed, and the court erred in overruling the motion to quash it.

It is insisted by plaintiff in error that when the .court had at the June term, 1907, made an order permitting the defendant Burrows to plead, that the court could not at a subsequent term vacate that order. If the order of June 29th had refused the defendant the right to plead, it would have been appealable, for the reason that it would have been a final disposition of the case. Under the order permitting the defendant' to plead, the case remained pending in court. So long as a cause is pending and the parties are before the court, “the court has the power, and it is its duty, at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufficiency of a pleading or other similar matter, to promptly set aside the order and correct the error,” and it makes no difference that the ruling was made by a different judge. Fort Dearborn Lodge v. Klein, 115 Ill. 177; Culver v. Cougle, 165 Ill. 417; Coughran v. Gutcheus, 18 Ill. 390; Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419.

While the rule is recited thus broadly in the adjudicated cases, upon an examination it will be found that where orders have been vacated or rescinded after the term at which they were entered, they are orders pertaining to a common law record proper. It is not competent to hear evidence or affidavits made subsequent to a ruling in order to modify a ruling made at a previous term, except in the matter of setting aside a default, and that is in the discretion of the court. Sec. 58, Practice Act; Garner v. Creshaw, 1 Scam. 143; Powell v. Clement, 78 Ill. 20; Cox v. Brackett, 41 Ill. 222.

If at a subsequent term parties may present new matters to the court to induce it to change its ruling made at a previous term, and a court may hear evidence or affidavits and reverse its judgments or orders made upon any issue, there would never be a final termination of a suit. If a judgment is entered upon a statement of facts not authorizing such action the party aggrieved has the right to preserve in a bill of exceptions the evidence upon which the court acted, and after the final disposition of the case, a court of appeals may reverse the ruling on an appeal or writ of error, but the trial court has no authority to sit in review upon its own decisions. Lill v. Stookey, 72 Ill. 495; Becker v. Sauter, 89 Ill. 596; Adams v. Gill, 158 Ill. 190. A court may not at a subsequent term set aside an order granting a new trial, although the case is still pending. Greenburg v. People, 129 Ill. App. 566. “Within a year from the entry of a final judgment in ejectment, the court in which such judgment was rendered will on application of the unsuccessful party have jurisdiction of the parties and of the subject-matter, and its finding the payment of all costs, even though erroneous, and its judgment for a new trial will until reversed be conclusive on the parties. During the term the new trial was awarded the court may set the order aside but not after the term has expired.” County of Cook v. Calumet & C. C. & Dock Co., 131 Ill. 505.

The court may change a ruling upon a pleading at any time before the final judgment, but not upon any order the détermination of which depends upon a hearing of independent facts. In this case the trial court heard affidavits filed at a later term concerning a ruling made at a previous term upon some showing of which no record was preserved. This we are satisfied was not proper, and no authority is cited in support of the action of the court. It is not proper for the court to hear affidavits made subsequent to the ruling made at a previous term to induce the court to reverse itself.

It is insisted on behalf of defendant in error, that even if the order of the Circuit Court of February 18th was erroneous, and was made when that court was without authority to set aside the order of the former term, yet the case being in this court by writ of error, that this court will review the whole record, and defendant in error argues that the order made by the Circuit Court on June 29, 1907, was erroneous and therefore this court should vacate that order and affirm the judgment of the Circuit Court rendered on the 21st day of June. The contention of the defendant in error is that the order of June 29th is erroneous because the judgment and default were not set aside as to all the defendants. It is claimed that it is error to set aside the judgment as to one defendant and grant leave to that one to plead unless the judgment is set aside as to all the defendants. Gould v. Sternberg Admx., 69 Ill. 531; Kingsland v. Koeppe, 137 Ill. 334.

The rule clearly is that if a judgment is set aside as to one of the defendants it must be set aside as to all, for the reason that a judgment must be rendered against all the defendants at the same time and hence may not be set aside as to one defendant only, but a default may be set aside as to part of the defendants only. Frequently issues are joined as to part of the defendants and others are defaulted and then the jury are sworn to try the issues joined and assess the damages on the default. McDonald v. Fairbanks, Morse & Co., 161 Ill. 124.

The order of June 29th, however, does not set aside either the judgment or the default but “orders that execution herein be and the same is hereby restrained, and grants leave to said defendant to plead and orders that the judgment herein stand as security for the debt.”

It is manifest that, if the judgment stand as security for the debt, the judgment and default are not set aside. The reasonable construction of the order is that the defendant in error be permitted to plead and an issue be made upon the pleadings and that the issue ' be tried, and if upon a trial the issues be found in favor of plaintiff in error then the trial court would thereafter set aside the judgment and default as to all the defendants and would render judgment in accordance with the finding on the issues, and if the issues should be found against the plaintiff in error the court would overrule the original motion to set aside the judgment and default.

There is neither any cross error assigned upon the order of June 29th, nor was there any certificate of evidence preserved, so that this court has nothing ■ before it upon which it can say that the order of June 29th was erroneously entered.

Because of the error in the order of February 18th, the judgment vacating the order of June 29th and refusing to quash the' execution issued February 8, 1908, is reversed and the cause remanded with directions to the Circuit Court to quash the said execution and overrule the cross motion made by defendant in error.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Christena Willig, Appellee, v. City of Chicago Heights, Appellant.
    Gen. No. 5,091.
    Statute of Limitations—when amendment states new cause of action. In an action against a municipality to recover for personal injuries a declaration which fails to allege the serving of the statutory notice, does not state a cause of action and an amendment which alleges such material fact sets up a new cause of action.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 22, 1909.
    Craig A. Hood, for appellant.
    Dyer & Whittemore, for appellee; Robert E. Haley, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Christena Willig to recover damages from the city of Chicago Heights for personal injuries sustained by her by reason of a defective sidewalk over which she was passing in said city. On May 31, 1907, the appellee filed in the office of the city attorney and city clerk of appellant a notice such as is required by section 2 of the act of May 13, 1905, concerning suits for personal injuries against cities, giving notice to the city that she claimed damages against the city for injuries sustained on January 19, 1907, and that unless settlement was made suit would be brought. This suit was begun in the City Court of Chicago Heights and plaintiff’s declaration was filed July 16, 1907. The defendant filed a plea of the general issue and thereafter upon "the application of defendant the venue was changed to the Circuit Court of Will county. In her original declaration the plaintiff did not plead or make any reference to the notice served on the city on May 31,1907, and on June 2, 1908, by leave of-court she amended her declaration by pleading such notice. The defendant thereupon refiled the general issue and filed a special plea of the statute of limitations, that the cause of action set forth in the amended declaration did not accrue within one year. The plaintiff demurred to the special plea and the court sustained the demurrer. On a trial the jury returned a verdict in favor of plaintiff for $4,000. The defendant entered a motion for a new trial. The court overruled the motion on condition that a remittitur of $1,000 should be entered. Upon a remittitur being entered judgment was rendered in favor of plaintiff for $3,000 and the city has appealed to this court.

Amongst the other errors assigned the appellant contends that the trial court erred in overruling the demurrer to the plea of the statute of limitations. The original declaration did not aver notice was given to the city as is required by the statute. More than one year after the cause of action accrued the declaration was amended by averring the giving of the notice within the time required by the statute. A declaration must allege all the facts necessary to support a cause of action and a failure to state any fact the traverse of which would defeat the action does not state a cause of action. The failure to plead, within the time limited for beginning the suit, the serving of notice, was a failure to plead a fact material in the statement of appellee’s cause of action. The statute of limitations had barred the cause of action before the declaration was amended so as to aver a cause of action. Walters v. City of Ottawa, 240 Ill. 259; Erford v. City of Peoria, 229 Ill. 546; Smith v. City of Chicago Heights, 141 Ill. App. 588. The court erred in overruling the demurrer to the special plea. The declaration failing to state a cause of action within a year,from the time the injury was sustained, the judgment is reversed and the cause is remanded to the trial court with instructions to overrule the demurrer.

Reversed and remanded.


author: Mr. Justice Dibell Per Curiam:

text:
    Bessie Hamilton, Appellant, v. Spring Valley Coal Company, Appellee.
    Gen. No. 5,002.
    1. Mines and Miners Act—what essential to sustain action under. In order to recover under the Mines and Miners Act for injuries sustained or death caused in a mine, it is essential that the wilful violation charged be established by the evidence, and further, that the injury or death resulted from such wilful violation.
    2. Mines and Miners Act—what evidence competent in action under. In an action under the Mines and Miners Act to recover because of an alleged wilful violation thereof, the testimony of qualified experts in mining matters is competent upon the question as to whether the conditions and surroundings in question were safe.
    3. Mines and Miners Act—what defense to action under. In an action under the Mines and Miners Act charging a wilful violation of the statute and the maintenance of a dangerous place in the mine in question, it is competent to show that an examination of the alleged dangerous place had been made and reported safe and that the owner had taken certain precautions against accident (the danger being one of the kind as to which the statute did not specify what particular precautions should be taken), which precautions were of the same kind as those taken by other mine owners.
    4. Mines and Miners Act—what questions immaterial in action under. In an action under the Mines and Miners Act charging wilful violation, questions of the exercise of ordinary care and questions of assumed risk are not material.
    5. Appeals and errors—when erroneous rulings will not reverse. Even though the trial court may have • erred in its rulings in the admission of evidence, yet such errors will not reverse if the plaintiff complaining of such rulings did not make out a prima facie case.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Rehearing denied, additional opinion filed April 21, 1909.
    Statement Tt>y the Court. At about 10 a. m. of March 19, 1906, Edward Hamilton, an employe of the Spring Valley Coal Company at its mine No. 5 at Dalzell, in Bureau county, in charge of the drivers of its cars in part of that mine, in some way got under a car of coal weighing about 2,500 pounds and received such injuries that he died next day. His widow brought this action against the coal company to recover damages caused to herself and infant child by said death. At the close of the evidence at the trial plaintiff dismissed all counts of her declaration except the first, third and fourth. The jury returned a verdict for defendant. Plaintiff moved for a hew trial. That motion was denied and there was a judgment against plaintiff for costs, from which she appeals.
    The mine was operated by the “long wall system.” There was in the mine an entry known as the northeast entry. A few hundred feet from the shaft an entry turned off from this known as the north northeast entry. In each of these entries a railroad track was laid whereon cars of coal were hauled from the face of the coal to the bottom of the shaft. At the junction of the north northeast entry with the northeast entry there was a switch, by means of which cars coming out from the face of the coal on either of said entries could thence be drawn along the northeast entry to the shaft, where the coal was taken out of the mine. It was essential to the operation of the mine that pure air should be forced through all the passages where men worked. There was machinery to force the air into the mine, and a shaft where it would go out. The air forced into the mine would return by the shortest route to the shaft where it was permitted to pass out. It was therefore necessary to have many entries closed by trap doors, so arranged as to prevent the air back of them from returning to the outlet by such ways, but which trap doors could be opened temporarily to let the empty and loaded cars pass through. In the north northeast entry about twenty or thirty feet from where its track left the northeast entry as they went to the face of the mine, was a trap door made of wood and set in a wooden frame. Outside of this wooden frame on the sides and the top dust or coal or mud was put so that the air would not pass around the frame. It was necessary that the bottom of this door should pass over the top of the rail so that it might be opened far enough to permit the passage of cars. The track consisted of rails two and one-half inches high spiked upon ties set in the ground underneath. If the door frame was erected at a place where there was a tie sometimes the side timbers of the door frame were fastened to the tie, which thus became the sill of the door; otherwise a timber was placed underneath the rails as a sill. This, however, would leave an open space, not covered by the door, of two and one-half inches, the height of the rail, and as much more as the door swung above the rail. Much air from back of this door would pass underneath this open space and the door so made would not accomplish the purpose. To fill this space it was the practice in this and other coal mines to place a tie about three inches thick on top of the tie or sill between the rails, cut at the ends so as to permit the wheels of the car to pass through. The door was hung to swing in towards the current of air, which was on the side- towards the face of the coal. The bottom of this door was intended to set against the top part of this tie placed above the sill or tie underneath the rail. A piece of canvas was also nailed on the inside of the door at the bottom to prevent a leakage of air. If there were a single door frame it might easily be knocked down if a car ran off the track and struck against its side. There was therefore built in this entry, as at other trap doors in other entries, a second door frame a few feet from the one upon which the door was-hung. This second door frame had no piece placed between the rails and had no door, but was fastened to the other frame. This prevented the possibility of knocking down the frame upon which the door was hung. At each door a boy called a trapper was stationed. When he saw or heard either loaded or empty cars coming, it was his duty to open the door, fasten it open, and then get .out of the way. If carloads of coal were being hauled out from the face, it was the duty of the trapper at this door, after fastening the door open, to run out to the switch at the northeast entry and turn it so that the cars could pass on to the shaft. The cars were drawn by mules. It was customary to have four mules draw out a train of six cars, each loaded with about 2,500 pounds of coal. At the place in question, cars going out went on a slight up-grade, and there was a curve where they passed into the northeast entry. The feet of the mules were always liable to dig out the dirt between the ties to a greater or less extent, and especially where the pulling was hard because of an upgrade or a curve, and these places were from time to time filled in by servants of the company. The train of cars drawn by mules was accompanied by a driver. In loading the front car a space was left in the left front corner where the coal was not piled to the same height as the rest of the load, and there the driver could sit. The mules were attached to the car by a chain called a tail chain. In hauling a load up-grade and around a curve there was danger that the mules would lift the front wheels of the front car off the track. To prevent this it was customary for the driver at such places to “ride the chain.” There was in front of the car at the bottom of the box a timber extending across the car from side to side and from three to five inches wide, called a bumper. When the driver rode the chain he stood with one foot on the bumper and one foot on the chain while he held on the box of the car with one hand and placed the other hand on the hind mule, the mules traveling single file.
    McDonald was driving the team which hauled loads from the face of the coal to the shaft through the north northeast entry on the day in question. Hamilton was in charge of drivers in that part of the mine. As McDonald came out on his third or fourth trip that morning, driving four mules hauling six loaded cars, his mules stopped just after they had passed through the trap door at the place described, and before the head car had reached the doorway. He had difficulty in starting his team. The trapper had gone to the northeast entry to get out of the way of the cars, and Hamilton was standing there. Hamilton called out to McDonald that he would come and help him, and went in. Hamilton told McDonald to go by the side of the mules and that he would ride the chain. The place was entirely dark except the lamps on the caps of McDonald, ¿Hamilton and the trapper. McDonald went by the side of the mules, saw Hamilton reach up as if to take hold of the box of the car and as if to step upon the bumper. At that instant Hamilton said “All right,” which meant for the driver to start his team. McDonald did not see Hamilton get upon the car or know what he did. McDonald started his team, and when they had gone a few feet heard Hamilton call out “Whoa.” McDonald stopped his team as soon as he could, assisted by the trapper, who, at his command, stopped the head mule. Hamilton was then found to be under the head car. The mules were detached, help was sent for, men came, ties were brought, and the car was lifted off from Hamilton, and he was removed to the shaft and taken out of the mine to his home, where he died next day from the injuries.
    Each of the three counts referred to charged that dangerous conditions existed at this trap door. The first count charged that the mine manager wilfully failed to cause said dangerous places and conditions to be properly marked and danger signals to be displayed thereat, as required by statute. The third count charged that defendant wilfully allowed Hamilton to enter the mine, not under the direction of the mine manager, while dangerous conditions existed that had not been made safe, in violation of the statute. The fifth count charged that defendant wilfully failed to have its examiner inspect all places, and place a mark at all places, where dangerous conditions were discovered, and at the place in question, and wilfully failed to cause a record thereof to be made, in violation of the statute. Each of these counts originally related merely to the sill underneath this door, and charged that to be the dangerous obstruction, and that thereby Hamilton was caused to fall and receive the injuries. At the close of plaintiff’s evidence plaintiff amended each of these counts by charging that there was a rut about eight inches deep on each side of the sill. As so amended, the charge of dangerous conditions and of the manner in which plaintiff alleged Hamilton came to his death was as follows in each of said three counts: “At the trap door aforesaid in the said mine in the north northeast entry an obstruction had been placed and allowed to remain on said roadway, consisting of two pieces of two by four inch timber spiked and nailed securely to the tie on which the rails of said roadway were laid, and to each other, thereby constituting and making a sill under said trap door, and allowing a rut about eight inches to exist on either side of said sill, which projected and extended from the floor of said entry a distance of about six inches, and extended and projected up in the middle of said roadway, a distance of one and one-half inches higher than and above the top of the rails, constituting the roadway on which the pit cars were hauled, and projected up to within a short distance, to wit: within three inches of the bottom or bed of the pit car as it passed over it, and thereby always creating a danger that a driver when passing over said obstruction in front of his trip of cars his foot would be thereby caught and he be thereby caused to stumble or be dragged under the trip of cars aforesaid—by reason whereof, on to wit, the day aforesaid, while said Edward Hamilton, who in pursuance of his duties as such driver boss or foreman, had been called for to assist and help one Robert McDonald, a driver in said north northeast entry, was assisting the said Robert McDonald to get his trip of cars through and past said trap-door and exposed to the dangerous conditions as aforesaid, and while he the said Edward Hamilton was so assisting in bringing a trip of ears drawn by a four mule team through the trap-door aforesaid, was necessarily and unavoidably caught on the obstruction hereinbefore described, constituting the sill of the trap-door aforesaid, and was thereby necessarily and unavoidably caused to stumble and fall under the said trip of cars,” etc.-
    The evidence for plaintiff tended to show that this piece spiked upon the tie between the rails at the door extended an inch and a quarter or an inch and a half above the rail and that the space on each side of the sill had been dug by the feet of the mules to a depth of five to eight inches below the top of said sill, and that this was a dangerous condition. The evidence for the defendant tended to show that said timber extended above the top of the rails about half an inch, and that this was necessary to prevent the passage of the air when the door was closed, and that a piece that high was the customary construction at such doors in such mines, and that the depth of the hole dug by the feet of the mules on each side of the sill was but slight, and was liable to he found as deep at any place on the main hauling ways at any time, and when filled it might be dug out again in a very short time by the feet of the mules, and that both these depressions, and coal and other obstacles which had fallen from the roof, were liable to be met at any time by those passing along the haulways, and that it was customary to have men go over the mine at night and remove the falls and fill in places which had been dug out by the feet of the mules.
    William H. Hawthorne and John L. Murphy, for appellant.
    McDougall, Chapman & Bayne, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

In order to make her case it was necessary for plaintiff to prove not only that said door sill and the depression on either side thereof made by the feet of the mules constituted a dangerous condition within the meaning of the statute concerning mines, but also that Hamilton was caught upon said sill and thereby caused to stumble and fall under the first car. We have carefully read from the record the evidence of each witness who saw Hamilton, either before or after his injury, and we are unable to find any proof from which the jury could reasonably determine that Hamilton caught his foot either in the depression next to the door sill or upon the sill itself. McDonald saw him make a motion as if to" step upon the bumper and take hold of the box, and heard him say “all right” at the same instant, and McDonald then turned away and started his team. When the car had gone a few feet, he heard Hamilton call out “Whoa,” and stopped the team as soon as he could, with the aid of the trapper stopping the head mule. No one else saw any part of the accident. McDonald found that Hamilton was under the car and sent for help, and several men came and assisted in taking him out. It is clear that the distance from center to center of the two door frames was six feet. One witness said it was five feet eight inches between the door frames, but he doubtless meant “in the clear.” Another witness said it was two feet but he afterwards changed it to six. The others said they were six feet apart. The car was seven feet long. It had passed nearly through the outer frame before it stopped. Hamilton’s head and shoulders were under the front of that car. One witness said that his head was about ten feet from the door. This is omitted from the abstract. Another testified that the distance from the front of the car as it stood to the door was about ten feet and a half or eleven feet. The proof showed that one of his feet was bent and that the sole of the shoe on that foot was broken. The wheels of the front car were off the track and it may be that one of those wheels ran over Hamilton’s foot and that the car was thereby thrown off the track. While some testimony of one witness places Hamilton’s head nearer the door than above stated, yet what we have given is the clear preponderance of the evidence. No one saw his foot near the sill or near the depressions, whatever they were, on either side thereof. No one saw any mark on the sill or on the ground indicating that Hamilton’s foot had been caught or dragged there. It may be that his foot was caught on that sill and he was thereby thrown from the car. It may be he made some misstep in attempting to get upon the car or that he failed to get a firm hold of the box and slipped off the chain after the team started. There is no proof that he was higher than any ordinary man and the position of his head ten or eleven feet from the sill tends to indicate that when he fell he was some four or five feet beyond the door. It is to be presumed that he called out the instant he lost his balance or fell. The accident was a deplorable one, but we find nothing in the evidence from which the jury could decide what caused it. We do not think the jury could be permitted to say that, because it was possible that he caught his foot on that sill and was dragged that distance, therefore they would find that such was the manner in which he was injured. If any inference is to be drawn from what McDonald saw it would be that Hamilton took hold of the top of the box, stepped upon the bumper with one foot, and undertook to ride the chain with the other, and that in some unknown way he slipped and fell and went under the car. This would not warrant a verdict for plaintiff under this declaration. We are therefore of opinion that if a verdict for plaintiff had been returned, it must have been set aside for want df proof of the essential allegation that Hamilton was caught upon the obstruction caused by the sill and depressions on each side thereof, and thereby was caused to stumble and fall under the car. If, therefore, the court erred as alleged in rulings in admitting evidence for defendant and in giving instructions for defendant, still the judgment should not on that account be reversed, inasmuch as plaintiff did not make a prima facie case.

Defendant was permitted to prove by qualified experts in mining matters that the conditions and surroundings existing at this trap door were safe. It is urged that this was erroneous. We consider that the rulings of the court in that respect are substantially sustained by Donk Bros. Coal Co. v. Stroff, 200 Ill. 483; Henrietta Coal Co. v. Campbell, 211 Ill. 216, 227, and Kellyville Coal Co. v. Strine, 217 Ill. 516. The ground upon which this evidence is permitted is that ordinary jurymen are not familiar with matters pertaining to the proper operation of coal mines, and that the conditions existing in such a place are not a matter of common knowledge or information.

Defendant was permitted to show that this trap door was constructed and its sill maintained in the method usually adopted in other like mines, and the jury were instructed that if said sill was constructed in the manner in which such doors with sills used for that purpose in coal mines are usually and ordinarily constructed in coal mines by men of ordinary care and caution, then such sill did not constitute a dangerous condition under the law. A distinction, we think, should be drawn between cases where the mine owner has failed to do some specific thing required by statute, and where the alleged dangerous condition is in a matter not specifically prescribed by statute. Where the -statute has directed a fence to be built around the top of the mine, or a light to be displayed at the bottom of the mine, or the roadways to be sprinkled when the air in the mine is charged with dust, the operator is not permitted to say, in defense to an action for an injury caused by a failure to comply with such requirements, that he did some other thing which he thought was a sufficient protection of the men in his employ. But the statute contains no directions as to how the sill or the trap door shall be built or how the roadway shall be fitted for travel except that the operator must guard against dangerous conditions. If, therefore, in such a matter, the mine examiner has made an examination as required by statute, and has honestly decided that the conditions are safe, and has so reported, and if the mine manager so believes, and if the conditions are those which prudent mine managers consider safe in their mines, then, though the jury might decide that they were mistaken and that the conditions were in fact dangerous, it is difficult to see how they could decide that the operator had wilfully permitted dangerous conditions to exist. It is a wilful violation of the statute that is charged in this declaration. A wilful violation of the statute is a conscious violation. El Dorado Coal Co. v. Swan, 227 Ill. 586, 591. It therefore seems to us that the rulings upon evidence and instructions of which complaint is made were in the main correct. Perhaps instruction number 28b is inaccurate in not including specifically the knowledge of the mine examiner, but that defect is sufficiently cured by other instructions given, such as Nos. 33, 34 and 35. We do not approve of the allusions in certain instructions to want of care on the part of Hamilton and to the hazard of the business, as those matters are not material in an action for the wilful violation of the statute. Kellyville Coal Co. v. Strine, supra. Yet each of these instructions, as given, correctly stated the law, and the allusions did not constitute reversible error. Some other instructions were given which were of doubtful propriety, but we do not think they should reverse a verdict which was required by the condition of the evidence upon the question of how Hamilton’s death was caused.

The judgment is therefore affirmed.

Affirmed.

Per Curiam:

Hpon a petition for rehearing appellant insists that there is more evidence in the record from which an inference may be drawn that the feet of deceased were caught upon the sill of the door, than is stated in the foregoing opinion. If that be so, still the question whether his death was caused in the manner charged in the declaration was a question of fact for the jury. The jury decided that question against appellant and the trial judge approved the verdict. There seems to us a clear preponderance of proof in support of the verdict, and certainly the state of proof would not warrant us in saying that the jury should have found for appellant. We have considered the other points made in the petition for a rehearing and do not find that they show reversible error in the record. The petition for a rehearing is denied.


author: Mr. Justice Dibell

text:
    Francis M. Smith, Appellant, v. Roy E. Swigart, Appellee.
    Gen. No. 5,085.
    1. Trial—when remarks of counsel not improper. _ It is not improper for counsel to state in opening: “We are at a sad disadvantage in this case, our client being in California,” the fact being that such client was not present at the trial.
    2. Depositions—when objections come too late. An objection to either question or answer in a deposition which can be obviated by re-taking the deposition, cannot first be made at the trial, but must be made on a motion to suppress that part of the deposition in apt time before the trial to permit the party to re-take the deposition if desired.
    3. Appeals and errors—when abstract insufficient to save question. If error is assigned upon the giving of an instruction the abstract must show that the giving of such instruction was excepted to.
    4. Appeals and errors—what essential to save question of sufficiency of evidence. In order to save for review the question of the sufficiency of the evidence to sustain a verdict and judgment, the abstract should show that the party seeking to raise such question moved for a new trial and excepted to the action of the court in denying the same.

      Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Mark C. Keller, for appellant.
    Wingert & Wingert, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee lived in Lee county and owned a farm there of 120 acres, and had bought land in California, and was about to remove there, and had listed his Lee county land for sale with appellant for $18,000 cash, and had agreed to give appellant $120 to sell the farm. Appellant induced him to reduce the price to $16,000 and to agree to sell the land upon a written contract partly on time. Appellant found one Hughes, who orally agreed to pay $16,000, partly in cash and partly on time, and thereafter appellee told various persons that he had sold his farm to Hughes. Appellee and Hughes met a few days later for the purpose of entering into a written contract, when it was found that they were not agreed upon the terms, and no written contract was prepared or executed, and the proposed sale was abandoned. Appellant claimed that he had done all that he was required to do to entitle him to the commission, and brought this suit therefor, and recovered before a justice, but upon the trial of the cause in the Circuit Court on appeal he was defeated and he now" appeals to this court.

In opening the case to the jury appellee’s counsel said: “We are at a sad disadvantage in this case, our client being in California.” It is argued that this language was improper. The record shows that appellee had removed to California, and that his deposition was takenbef ore the removal. He was notpresent at the trial. It was a fact that it was a disadvantage to appellee that he was not present to testify in reply to various matters of proof introduced by appellant, and we fail to see why it was improper to state that circumstance to the jury.

Appellant complains of the overruling of an objection to a question put to appellee. This question was put in the taking of the deposition of appellee. The objection was made at the trial and the record shows that the objection was only that the question was leading. An objection to either question or answer in a deposition which can be obviated by retaking the deposition cannot first be made at the trial, but must be made upon a motion to suppress that part of the deposition in apt time before the trial to permit the party to retake the deposition if desired. It was not error to overrule the objection at the trial.

The abstract presents no other question for our consideration. Appellant contends that the court erred in giving an instruction for appellee. The abstract does not show that appellant excepted to the giving of the instruction.

Appellant argues that the verdict is not supported by the evidence. In order to preserve that question for review it was essential that appellant should move for a new trial and should preserve in his bill of exceptions an exception to the order overruling the motion for "a -new trial. The abstract of the bill of exceptions in this case shows that some one moved for a new trial and that the motion was denied and that some one moved in arrest of judgment and that that motion was denied. It does not show who made these motions, nor any exception to their denial. The abstract therefore does not preserve for review the questions above raised. Rule 16 of this court (137 Ill. App. 625) requires the abstract to fully present every exception relied upon and every error alleged. It is the universal rule in all courts of appeal in Illinois that the abstract must show the errors alleged.

We have, however, looked into the evidence and are satisfied that on the merits the jury were warranted in finding that the appellant had no cause of action. Even on the testimony offered by appellant it is very doubtful whether in conversation between Hughes and appellee any time had been fixed when Hughes would be bound to make the last payment and when appellee would be bound to make a deed. If the testimony offered by appellee is true, it is clear that that part of the contract had not yet been arranged. The serious disagreement, however, was over another matter. There were upon the premises three mortgages for the total principal sum of $5,200, each past due. Hughes was to assume these mortgages, and he claims that appellee told him that the mortgages could remain as long as he kept up the interest. Appellee claims that what he told Hughes was that so far as he knew the mortgages could be allowed to remain. Before the parties met to have a.written contract prepared appellee had ascertained that some, at least, of the mortgagees wished the mortgages paid. Appellee claimed that Hughes unqualifiedly agreed to assume the mortgages. Hughes claimed that he was to assume the interest on the mortgages from the coming March 1st, but that he was not to assume the principal of the mortgages in the written contract at all but was only to assume them when he should make the final payment and receive a deed. If the jury believed that each party was truly testifying to his understanding of the verbal arrangement, then the minds of the parties had never met upon that feature of the contract, and there had never been even a verbal contract of sale completed between the parties. Hughes was to be let into possession upon the payment of only $2,000, and it certainly would make a great difference to appellee whether Hughes was or was not to immediately assume the mortgages. According to appellee’s proof, after it was found that the parties were not agreed upon the subject of the assumption of the mortgages, it was then proposed that Hughes pay the mortgages and enough cash to appellee to make $7,200, and give his note to appellee for the remaining $8,800 of the consideration, and appellee asked him if he would secure that note by a mortgage on the farm and Hughes said that he would not. Thereupon appellee made inquiry at a bank concerning the financial responsibility of Hughes, and thereupon declined to accept the note unless it was secured by a mortgage upon the farm. Appellee then told Hughes that he was through with him, and left, and told appellant that he might find another purchaser. We are satisfied that the proof warranted the jury in finding that the minds of Hughes and appellee never met upon all the terms of a contract of sale. They were therefore warranted in finding for appellee.

The judgment is therefore affirmed.

Affirmed.


text:
    Standard Varnish Company, Appellee, v. D. N. Jay et al., Appellants.
    Gen. No. 5,113.
    1. Corporations—effect of failure to record charter. If business has been transacted under the name of a corporation without filing its charter, the stock subscribers are liable as partners.
    2. Evidence—what sufficient to establish delivery of merchandise. Held, that the evidence in this case was sufficient prima facie to show delivery of the merchandise in question to the consignee.
    3. Evidence—when complaint of absence of cannot be made. The absence of material evidence cannot be complained of by the party whose objection has prevented its introduction.
    4. Assumpsit—what ■ proof not essential. In an ordinary case of a suit to recover for merchandise sold and delivered, it is not necessary to aver or prove that the defendant was' requested to pay and did not do so.
    Assumpsit. Appeal from the County Court of Kendall county; the Hon. William Hill, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Rehearing denied April 21, 1909.

      Wheeler, Silber & Isaacs, and Charles Darnell, for appellant.
    Atwood, Pease & Loucks, John Fitzgerald and O. G. Lawbaugh, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The Standard Varnish Company brought this suit in assumpsit against D. N. Jay and six others, stockholders and officers of H. A. Otis Manufacturing Company, to recover for merchandise alleged to have been sold and delivered to said company, the ground of liability against said defendants being that they had assumed to exercise corporate powers under said corporate name without having complied with the provisions of the statute requiring a certificate of the organization of the company to be filed in the recorder’s office of the county in which its principal office was located. One defendant was not served and did not appear. The suit was dismissed as to another defendant when it was shown that he did not become a stockholder till after the transactions here in question. Defendants pleaded the general issue and a denial of joint liability and also certain supposed defenses growing out of the subsequent bankruptcy of the H. A. Otis Manufacturing Company. These defenses are not now argued and are therefore waived. One person who subscribed for stock was not made a defendant but his nonjoinder was not pleaded. The jury rejected some items of the account without any apparent reason therefor and gave a verdict for plaintiff for $110.30, the price of two barrels of varnish. Plaintiff had judgment. Two of the defendants prosecute this appeal.

The application for a license to open books of subscription to the capital stock of the H. A. Otis Manufacturing Company was acknowledged on September 28,1906, and filed in the office of the Secretary of State on October 17, 1906; a meeting of the subscribers was held on November 5, 1906; the certificate of complete organization was issued on November 15, 1906; and said certificate was filed for record in the recorder’s office of Kendall county, the location of the principal office of the company, on November 25, 1907, more than one year later. Before the certificate of organization was even issued, the defendants were doing business under the corporate name. The transaction here in question occurred on November 10 to 12, 1906, before the certificate of complete organization was even issued. The appellants therefore were transacting business under that corporate name before the organization of the corporation was completed, and they were therefore liable as partners for what was done in the name of the corporation, under the rules announced in Loverin v. McLaughlin, 161 Ill. 417, and Richardson Fueling Co. v. Seymour, 235 Ill. 319.

The chief contention of the appellant here is that the evidence is insufficient to show the sale and delivery of two barrels of varnish. The shipping clerk of appellee testified that he shipped the goods. Appellee introduced in evidence a shipping receipt issued by the Chicago, Burlington & Quincy Railway Company at Chicago, dated November 10, 1906, acknowledging the receipt from appellee of two barrels of varnish consigned to “H. A. Otis Mfg. Co., Plano, 111.” The agent of the railway company at Plano testified that these two barrels of varnish were received by him at Plano station on November 12; that some one at the factory of the H. A. Otis Manufacturing Company called up by telephone and was in great haste for the varnish, and that within an hour after the arrival of the goods at the station he delivered them to a dray-man who hauled goods between the depot and the various factories. ' He testified that he had in his office a written order from the H. A. Otis Manufacturing Company to deliver goods to this drayman, but he did not have the written order present in court and, on motion of appellants, that answer was excluded. Appellee also put in evidence the account hooks kept by the EL A. Otis Manufacturing Company at that time. It was proved that Safeblade, a stockholder and an officer of the-company, was the manager of the business at that time, and that the entries in these books were made by him or under his direction. In these books under date of November 10, 1906, was a credit to appellee for amount of invoice, $110.30. The record books of said corporation were put in evidence showing that a short time afterwards at a meeting attended by the appellants, a motion was unanimously adopted ratifying all that Safeblade had done as manager of the business. The question is whether this proof makes a case for plaintiff.

The delivery of goods to a common carrier consigned to another is a constructive delivery to the consignee. The carrier then becomes the bailee of the consignee and the consignee becomes the owner of the goods. L. S. & M. S. Ry. Co. v. National Live Stock Bank, 178 Ill. 506; City of Carthage v. Duvall, 202 Ill. 234. Entries in books of a corporation are competent evidence against the stockholders. Culver v. Third National Bank, 64 Ill. 528; Dows v. Naper, 91 Ill. 44.

The declaration averred that the appellants, though often requested, had not paid appellee. Appellee did not prove nonpayment. It is essential that plaintiff prove the material allegations of some one count of his declaration. Where demand and nonpayment are material parts of plaintiff’s case they must be averred and proved. It may well be that, if the contract be to pay so many days after demand, it must be alleged and proved that demand was made and that the stipulated time passed without performance by defendants. But in the ordinary case of a suit to recover for merchandise sold and delivered it is not necessary to aver or prove that defendant was requested to pay and did not do so. 1 Chitty Pl. 329, 330; Walker v. Welch, 13 Ill. 674. As a general rule the burden of proving payment is upon the party claiming the benefit of it. Bonnell v. Wilder, 67 Ill. 327; Hanke v. Cobiskey, 57 Ill. App. 267; Schwarze v. Greenbaum, 58 Ill. App. 221; Price v. German Exchange Bank, 60 Ill. App. 418; Harlev v. Harlev, 67 Ill. App. 138; Steingrebe v. F. M. & G. B. Co., 83 Ill. App. 587. But, further, appellee called as a witness one of its salesmen, whose duty it was to look after the collections growing out of certain sales, including the collection of this account, and offered to prove by him that there was a total amount due on this account of $115.98 and that he knew it was unpaid. The appellants moved to strike out the offer and that motion was sustained. Having thus kept out what was apparently competent testimony, appellants are hardly in a position to say that the record is faulty in failing to contain affirmative proof of nonpayment. We conclude that the proof above indicated, including that furnished by the books of the H. A. Otis Manufacturing Company, makes a prima facie case for appellee.

Complaint is made of certain instructions, but upon examining them we do not find that they contain reversible error.

The judgment is therefore affirmed.

Affirmed.


text:
    Frank S. Williams, Appellant, v. Michael C. Connors, Appellee.
    Gen. No. 5,109.
    1. Judgment—form, of, when rendered upon pleadings. A final judgment for a defendant on the pleadings should he that defendant go hence without day.
    2. Service of process—when defect in copy of summons does not affect. Service by copy of summons confers jurisdiction where the copy delivered to the defendant omitted from . its face, but showed upon the back the name of the plaintiff in the action.
    Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    Prettyman, Velde & Prettyman, for appellant.
    Quinn, Quinn & Otman, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The sole question in this case is whether the court acquired jurisdiction of the person of the defendant in this action of assumpsit by a sufficient service of summons under the last sentence of section 2 of the Practice Act of 1907, which reads: “Service of summons, except when otherwise expressly provided by statute, shall be made by leaving a copy thereof with the defendant in person.” Omitting all reference to certain proceedings which were vacated at the same term, the record before us contains the following: a summons against Michael C. Connors, returnable on the second Monday of November after the date thereof to answer unto. Frank S. Williams in an action of assumpsit wherein the damages were laid at $3,000; a return upon said summons by the sheriff showing service on defendant Michael O. Connors “by reading the same and delivering a true and correct copy thereof” on September 20, 1907; a declaration in assumpsit; a plea by defendant to the jurisdiction of the court, averring that defendant was not served with process in that no copy of the summons in said action was ever delivered to him; a motion by plaintiff for leave to amend the copy of the summons left with the defendant and a denial of said motion; a bill of exceptions taken upon the denial of said motion; a replication to the plea of the jurisdiction ; a demurrer to said replication; an order sustaining the demurrer; an election by plaintiff to abide by his replication; a dismissal of the suit by the court at plaintiff’s costs; and the proper steps for taking and perfecting an appeal. The judgment was erroneous in dismissing the case. A final judgment for a defendant on the pleadings should be that defendant go hence without day. Wilkinson v. Olin, 136 Ill. App. 527.

The plea to the jurisdiction was defective in that it set out what an attorney had told defendant and an allegation on information derived from his attorney, but we treat those matters as surplusage. The copy delivered to the defendant by the sheriff was attached to and made a part of the plea. The name of the plaintiff is not contained upon the face of the copy of the summons, but on the back thereof is the indorsement, “M. C. Connors ats. Frank Williams.” The replication to the plea stated what the cause of action was upon which the suit was brought; the due issuance of a summons, which summons was set out in full; that said summons was duly served more than ten days prior to the first day of the return term, and it set out a copy of the return upon said summons; and it alleged that the copy of the summons delivered to defendant was a true copy of the original except that the words ‘6Frank S. Williams” were omitted, but that on said copy when the same was delivered to defendant there was plainly and legibly endorsed in ink the following: “M. C. Connors ats. Frank Williams.” The replication further averred that from the reading of said original summons to defendant and from the delivery of said copy to him, defendant then and there gained full knowledge of the contents and meaning of the summons, and that a few minutes after said copy was delivered to him defendant stated to certain persons that Frank Williams had commenced this suit against him to recover back his money for a dredge that defendant had sold him. That part of the replication which alleged a conversation between defendant and others, and that which alleged that he had full knowledge of the contents of the summons, we consider immaterial, and it may be disregarded.

No case exactly in point is found, but there are cases involving similar principles. In Harris v. Jenks, 2 Scam. 475, the judge dismissed the suit because the words “The State of Illinois” were omitted from the caption of the summons. In the Circuit Court on appeal plaintiff was given leave to amend the summons by inserting those words. The Supreme Court, in affirming a judgment for plaintiff, said that the words “the State of Illinois” may have appeared on some other part of the summons and that it was not important on what part of the summons those words appeared. In Wilday v. Wight, 71 Ill. 374, the summons gave the last name of plaintiff as “Wright.” Defendant filed a plea in abatement because of that defect. Plaintiff then amended the summons by leave of court and, without any action on the plea, defendant was ruled to plead and was defaulted and judgment was entered for plaintiff. This judgment was affirmed, the court saying: 11 Mere clerical errors or trivial mistakes should not operate to delay the • administration of justice.” In Sidway v. Marshall, 83 Ill. 438, plaintiff’s given name was incorrectly stated in the summons, but was correctly stated in the declaration, and that was held sufficient to sustain the judgment. In Kagay v. Trustees, 68 Ill. 75, an action of debt, the summons did not state the amount claimed as debt, and defendants moved to quash the writ for that defect. The court allowed the writ to be amended and retained jurisdiction ; and this was approved. In Bank of Louisiana v. Elam, 10 Rob. (La.) 26, the statutes required that the citation should contain the title of the suit and in that case the title was on the citation and not in it. It was held sufficient that the title appeared upon the citation in such a manner as to preclude any mistake. In Great Northern Hotel v. Farrand & V. Organ Co., 90 Ill. App. 419, defendant filed a plea to the jurisdiction of the court because of a slight error in the copy delivered to the officer of the defendant corporation. The court said that there was no pretense that the defendant was misled or did not understand or interpret the copy delivered the same as if the copy had been exact; that defendant entered its special appearance in the right court and in the proper case and in apt time. “The office and purpose of a summons is to advise the defendant of the fact that a suit had been commenced, of the names of the parties, and the time and place when and where he must appear. ’ The court said that the statute which required service upon a corporation by leaving a copy with its president did not require a fac simile of the summons to be delivered, and that in that case the purpose of the provisions had been attained and that there had been a substantial compliance with the statute.

The principle of these decisions is applicable to this case. Here the copy was exact in every particular except that the name of the plaintiff was omitted from the face but was given on the back of the copy. Defendant in apt time came into the proper court and cause and filed his plea. He was not misled in the slightest respect. When the copy delivered to him was all read it conveyed to him all the information which the law required. The plaintiff does not prepare the copy and may not see it. We think it too technical a rule to hold that the slightest mistake in the copy delivered shall operate to leave the court without jurisdiction of the person of the defendant to whom a copy of the summons has been delivered which is exact in every particular except one, where that defect is completely supplied by that which appears upon the back of the copy. It follows that we are of opinion that the court erred in sustaining the demurrer to the replication. The copy of the summons attached to and made a part of the plea had the same endorsement on the back thereof and it is perhaps a question whether the demurrer should not be carried back and sustained to the plea; but as the plea does not expressly aver that those words on the back of the copy were written in ink in a legible hand when the copy was delivered to defendant, we conclude that it was proper for plaintiff to reply and set up that fact in order to make the sufficiency of the service plainly appear. As we are of opinion that the service was sufficient it is unnecessary to decide whether plaintiff should or could have been given leave to amend the copy.

The judgment is reversed and the cause remanded with directions to overrule the demurrer to the replication.

Reversed and remanded.


text:
    Thomas J. O’Callaghan, Appellee, v. Dellwood Park Company, Appellant.
    Gen. No. 5,117.
    1. Passenger and carrier—who subject to liability of latter. A company owning an amusement park and operating a scenic railway is subject, when it has accepted passengers upon such railway for hire, to the liabilities of carriers of passengers generally.
    2. Pleading—what averment of declaration may be treated as surplusage. If a declaration sets up facts from which the law implies the duty of the defendant to exercise the highest degree of care, a statement in such declaration that it was the duty of such defendant to exercise ordinary care may he treated as surplusage.
    3. Pleading—what proof sufficient to sustain declaration, in action on the case. The plaintiff in a declaration filed in an action of case need not prove each and every allegation but fulfills his legal burden if he proves enough of such allegations to establish a cause of action.
    4. Verdict—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $1,200 was not excessive where it appeared that the plaintiff at the time of the accident was 25 years of age, was earning $2.65 per day, that his face and mouth were seriously injured, that he was unable to work for 13 weeks and hears permanent scars upon his face, etc.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.

      Statement by the Court. Appellant operates an amusement park at grounds located between the cities of Joliet and Lockport in Will county. It has therein what is called a scenic railway. Appellee was injured while riding upon said scenic railway, and brought this action against appellant to recover damages for said injuries. He had a verdict for $1,600, was required to remit $400 and had a judgment for $1,200, from which defendant below prosecutes this appeal.
    The cars upon the scenic railway were shaped somewhat like a cutter or sleigh, and had two seats, each capable of holding two adults or three children. The back of each seat was high, and the back of the front seat therefore furnished a protection to the persons riding on the back seat. For the protection of the persons riding on the front seat there was an iron bar turning upon a swivel, which was lifted up to permit persons to take their places on the front seat and was then drawn down in front of them before the car started. It came about waist high to a passenger when seated, and could be taken hold of by the passenger to protect him during the ride. There were four wheels under each car, flat and without a flange, which ran upon a maple rail laid upon another timber and rested on cross ties. There were like timbers and maple rails on each side of the track, and two flat wheels on each side of the car which played against these maple rails. A part of the way the railway ran upon trestle work elevated considerably above the ground. Passengers entered the cars at a platform on the upper edge of a valley, which platform was some forty-two feet above the lowest point in the tracks. After the passengers were seated the car was started by hand and was then propelled by an endless chain up an incline, and was then released from the endless chain and dropped fifteen feet down a sharp incline, and thereby gained the principal momentum for the trip. Several times during its course the track went up over a small artificial hill and then dropped again. The course of the road was circuitous and contained numerous curves, and passed through and by attractive natural scenery. The cars reached the foot of the incline almost directly below the starting place. The cars were then drawn by an endless chain up an incline to the starting platform just referred to. When the car had nearly reached the foot of the portion of the road traveled by the force of gravity there were two appliances, called brakes, in the road bed some distance apart, at each of which a man was stationed to so elevate the track in frgnt of the car as to check its speed, the second brake being intended to reduce the speed so that the car could be readily caught by the endless chain and carried up from the bottom of the valley. The entire length of this railway, following the dips in the track, was 1,970 feet. The distance in which the car was propelled by gravity was about 1,600 feet and that distance was generally traversed by the car in three-fourths of a minute or a minute. The car was not accompanied by any person in charge of it.
    On September 25, 1906, somewhere about 9 p. m., appellee and William Kirby paid five cents each, the regular fare for a ride around this railway, and took their places in the front seat of a car, and after they were seated the handle bar in front was drawn down over their laps and the car started. After it had gone down the first declivity the car came to a sharp curve at a place five or six feet above the ground. They both testified that the car was suddenly checked. Kirby testified that the. car was just barely moving, and then testified that it was stopped. Appellee testified that it stopped, but afterwards testified that he did not know whether it stopped or not. Kirby testified that a grinding sound was heard underneath, as if they were passing over stone or gravel. Appellee testified that there was a grinding noise, as if something was hanging from the side or bottom of the car. Appellee sat on the left hand side, which was the outside of the curve, and had hold of the handle bar with his left hand. When the speed of the car was thus suddenly checked while upon the curve, Kirby was pitched forward over the handle bar, and appellee was thrown out of the car and fell upon stones underneath. The car immediately resumed its motion and went on with Kirby in it. When he reached the second brake at the bottom of the incline, he got out and went across to the place where appellee fell out and found him lying on the stones there, seriously hurt about the face and mouth, and bleeding. Kirby testified that appellee was conscious, but appellee testified that he did not regain consciousness until he was in a hospital two or three hours later. An employe of defendant, who went with Kirby to the place where appellee was found, testified for appellant that appellee was unconscious. Although portions of the park were lighted by electricity, the place where this accident happened was in darkness, and there were no eye witnesses to the occurrence, except Kirby' and appellee. Appellant’s employes testified that each of the cars had been inspected on the morning of that day and were then in good order; that half an hour after this accident this car was taken out of service and inspected and nothing found wrong with it; and that the next morning the track was inspected at the curve and nothing wrong was found there.
    E. Meers, for appellant.
    J. W. D’Arcy, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

At the request of appellee the court gave two instructions to the effect that it was the duty of a company operating such a railway to exercise the highest degree of care and caution for the safety of its passengers consistent with the practical operation of the railway, and to do all that human care, vigilance and foresight could reasonably do, consistently with the character and mode of conveyance adopted and the practical prosecution of the business, to prevent accidents to passengers while riding upon its cars. One of these instructions was not technically correct, but it did not direct a verdict, and no point is made' here upon any technical inaccuracy. These instructions placed upon appellant the obligations which the law imposes upon common carriers of passengers for hire, and the principal question in the case is whether appellant is subject to that measure of liability. So far as we are advised this is an open question in this State. The vehicle in which appellant’s passengers rode was a car running upon wheels placed upon rails. The inspection and control of all the appliances were solely in appellant and its servants. The persons riding in the car could do nothing to guide, control or stop it. They were entirely at the mercy of the appliances appellant had provided. It carries these passengers for hire. It made but a single stop, and the passengers rode for pleasure only, and not upon business. We see no reason why the latter circumstance should affect the rule of liability. We see no good reason why the same underlying principles which bring the operator of a passenger elevator in a building within the rule of liability applied to the common carrier of passengers should not bring those operating these cars upon this scenic railway within the same rule of liability. In Hartford Deposit Co. v. Sollitt, 172 Ill. 222, the court said: “Persons operating elevators are carriers of passengers, and the same rules applicable to other carriers of passengers are applicable to those operating elevators for raising and lowering persons from one floor to another in buildings. It is a duty of such carriers of passengers to use extraordinary care in and about the operation of such elevators, so as to prevent injury to persons therein. The fact of the falling of the elevator is evidence tending to show want of care in its management by the operator or its servants, or that the same was out of repair or faultily constructed.” The same doctrine is announced in Springer v. Ford, 189 Ill. 430; Chicago Exchange Bldg. Co. v. Nelson, 197 Ill. 334; and Beidler v. Branshaw, 200 Ill. 425. In Springer v. Ford, supra, the court quotes with approval from Treadwell v. Whittier, 80 Cal. 575, as follows: “Persons who are lifted by elevators are subjected to great risks of life and limb. They are hoisted vertically and are unable, in the case of the breaking of the machinery, to help themselves. The persons running such elevator must be held to undertake to raise such persons safely, as far as human care and foresight will go. The law holds him to the utmost care and diligence of very cautious persons, and responsible for the slightest neglect. Such responsibility attached to all persons engaged in empl oyments where human beings submit their bodies to their control, by which their lives or limbs are put at hazard or where such employment is attended with danger to life or limb. The utmost care and diligence must be used by persons engaged in such employments to avoid injury to those they carry. The care and diligence required is proportioned to the danger to the persons carried. In proportion to the degree of danger to others must be the care and diligence to be exercised. Where the danger is great the utmost care and diligence must be employed. In such cases the law requires extraordinary care and diligence.” Much of this language is applicable to passengers riding in cars upon appellant’s scenic railway. From the very nature of the means of conveyance adopted passengers thereon are subjected to great risks to life and limb. The sudden falls and sharp curves and great speed are sources of peril. The passengers are unable to help themselves in.case of any break or displacement of any part of the car, or of the rails or timbers upon which it rests, or of the rails or timbers at its sides which form the channel or trough which guides and controls its course. The passengers who enter these vehicles and start upon this journey submit their bodies to the control of the appliances which appellant has constructed. They put their lives and limbs at hazard upon a journey which appellant has made attractive in order to induce them to take and pay for the trip. No agent of appellant goes with the car, and it is therefore all the more incumbent upon appellant to exercise the utmost vigilance that there shall be no defect either in the car or in the artificial route to be traversed. "While those who ride in elevators do not pay, the patrons of this scenic railway are passengers for hire. Operators of elevators are equally subject to this stringent rule of liability whether those who ride are engaged in real business with some occupant of the building or are going up or down from motives of mere curiosity. Why should the motives of those who ride upon this scenic railway relieve the operator from the duty to carry these paying passengers safely, so far as human care and foresight can do so, consistently with the mode of conveyance adopted, and the practical prosecution of the business? We conclude appellant is responsible as a common carrier. Since this opinion was first written appellant has furnished us with a copy of an opinion rendered in January, 1909, by the Supreme Court of New York, appellate division, in Lumsden v. L. A. Thompson Scenic Eailway Co., relating to an accident upon a similar railway. We do not think that case in point, for there, under the proof, there was nothing unusual or extraordinary about the motion of the car, and there was no evidence that anything happened upon the trip when the plaintiff was injured which was not the usual occurrence made necessary by the motion of the car.

It follows, therefore, that after evidence had been introduced showing that appellee had paid his fare and was riding in this vehicle on this railway in charge of appellant and that by some mischance in the operation of the car he was thrown out and injured, he had made a prima facie case, and cast upon the carrier the burden of relieving itself of liability; and that the instructions were correct, unless .they should have been different because of the peculiar frame of the declaration. Each of the two counts of the declaration first stated that it was appellant’s duty to exercise ordinary care for the safety of persons riding upon its railway. Then each count set out in detail the facts which in the view we have taken would require appellant to exercise the highest degree of care consistent with the practical operation of the road and the mode of conveyance adopted. It is not necessary that a declaration shall state the duty of the defendant, and if it does so, and states it inadequately or incorrectly, that statement may be treated as surplusage. The declaration must state the facts from which the law raises the duty. The most that can be said against this declaration is that each count first charges that it was appellant’s duty to exercise ordinary care, and then states facts from which the law raises the duty to exercise the highest degree of care. We conclude that the statement of the duty to exercise ordinary care may be treated as surplusage, and therefore that his anomolous condition of the duration did not require the court to refuse the instructions referred to.

The first count of the declaration charged that the car suddenly stopped and that appellee was thereby thrown to the ground and injured. The second count charged that the car suddenly decreased its speed and stopped in a violent manner and partially tipped forward and that thereby appellee was thrown from the car and injured. We have already stated the testimony of Kirby that the car was barely moving, and again that it stopped, and tipped forward, and that he was thrown forward upon the iron handle, and that appellee was thrown out, and also appellee’s evidence that the car was stopped, and afterwards that he did not know that it was entirely stopped. Appellant introduced testimony tending to show that it could not have come to an entire stop at that place, for two reasons. Appellant’s witnesses testified that there was not sufficient descent at that point for the force of gravity to have again started the car, and that if it had entirely stopped it would have remained stationary till the next car came behind it and struck it and started it and then the two cars would have reached the first brake station together; and the attendant at that station testified that the first car with Kirby in it reached his place the usual time before the next car arrived. Appellant’s witnesses also testified that the cars were run ten seconds of time apart, and that if the car in which appellee was riding had been reduced to even three-fourths of its speed, it could not have regained its original momentum, and would have been struck by the next car. We place no great stress upon the evidence that the cars were run ten seconds apart. It is evident that while it was customary to wait at least ten seconds before starting another car, so that there would be no danger that the rear car would collide with the one ahead, yet the time taken by the passengers for the next car in paying their fares, procuring and surrendering their tickets and taking their seats in the car, might often consume more than ten seconds, and that the car would not be started till they were all seated. We are of opinion, however, that the evidence that there was not a sufficient decline in the track at that curve to start a car which was standing still makes it very improbable that this car came to an entire stop. It is argued that as each count of the declaration charged that the car was stopped there was a variance in the proof, and therefore a verdict for the plaintiff cannot be sustained. The second count, however, alleges that the car suddenly decreased its speed, as well as that it stopped, and if it suddenly decreased its speed, and partially tipped forward, and appellee was thereby thrown out, sufficient of the allegation would be proved to warrant a recovery, and the further allegation that the car stopped could be treated as surplusage. A plaintiff is not obliged to prove every allegation of a count in Ms declaration, but it is sufficient if he prove enough of his declaration to establish his cause of action.

Appellant contends that the proof does not show that it was gMlty of any negligence or was in any way responsible for the accident, and does not show what caused the accident; and also that the proof warrants the conclusion that appellee was not exercising due care. Appellant contends that appellee and Kirby must have been standing up, and that appellee was thrown out because he was standing up. Before the car left the starting platform appellee saw a sign wMch gave notice to passengers to look out for their hats. He testified that he took off Ms hat and held it in his right hand, being the hand next to Kirby. The man stationed at the first brake testified that when Kirby and the car reached the first brake Kirby was standing up with one hat on'his head and with another hat (wMch was evidently appellee’s hat) in his left hand, which was the hand next to where appellee sat before he was thrown out. From this appellant argues that both were standing up when the accident happened and were indulging in some kind of play. Kirby and appellee each testified that they did not stand up, but remained seated till thrown forward. Kirby testified that as he approached the first brake he started up for the purpose of getting out of the car there and going to the aid of appellee, and that that was the occasion of his standing up at the time he reached the first brake, but that he was prevented from getting out by the man at that brake and therefore did not get out till he reached the second brake. Kirby did not explain how he came to have appellee’s hat in his hand. In this state of the proof we cannot" say that the jury erred in finding that they were both properly seated when the accident happened. Kirby may have got appellee’s hat in an effort to catch appellee as he pitched forward and out of the car. It was impossible that appellee should know or be able to prove what caused the sudden slackening of the speed of the car on that sharp curve. It was in the night time, at a place which was in entire darkness. He was seriously injured and incapable of investigating the situation. He has no means of proving whether the car which appellant’s employes inspected half an hour later was the one in which he was riding, nor whether anything had been done by other employes of appellant at the place of the injury before it was inspected the next morning, nor whether the character of the obstruction was such that evidence of it would be visible next day. It may be that the play between the sides of the trough in which the car ran, at the point on the curve where the accident happened, may have been such as to check the speed of the car suddenly. If, in such a case, the passenger must show exactly what caused the car to suddenly slacken its speed, then it would generally be impossible for a person injured under such circumstances to prove a case entitling him to recover compensation for his injuries. We conclude that if the jury believed that the speed of the car was suddenly checked at that point while appellee was in his seat, and that he was thrown therefrom, and injured thereby, such proof made a prima facie case.

It is argued that the judgment is excessive. Appellee was twenty-five years old and was earning $2.65 per day. His face and mouth were seriously injured. He was "unable to work for thirteen weeks. He bears permanent scars upon his face, and the shape of his mouth is permanently distorted. The jury saw the permanent effect of his injuries upon his face and mouth, and after the trial judge had approved an allowance of $1,200 for his loss of time, pain and suffering and permanent disfigurement, we are unable to say that it is excessive.

The judgment is therefore affirmed.

Affirmed.


text:
    Robert W. Sheridan, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,108.
    1. Appeals and ebrobs—when questions waived. If the declaration and the instructions are not contained in the abstract, if no exception is shown in the abstract and no ruling of the court upon the evidence, if the only exception set out in the abstract is to the denial of the motion for a new trial, and if the only point argued is that the verdict is excessive, notwithstanding there may be other assignments of error, all questions are deemed waived except such question which pertains to the excessiveness of the verdict.
    2. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $2,500 was not excessive where it appeared that by virtue of the accident the plaintiff was unable to work for a period of five months, that after resuming his work he was not able to earn the same amount as he had earned before the accident, towit, $4 per day, even though he had sustained no permanent injury.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Pinkney & McRoberts and Joseph A. Weil, for appellant.
    Dailey & Miller, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee was riding on a coal wagon along a public street in the city of Peoria, and crossing diagonally a branch street railway line upon which appellant operated a single car, propelled by electrical power, when the wagon was run into from the rear by the street car, and appellee was thrown from the wagon and was injured. This is an appeal from a judgment for $2500, which appellee recovered against appellant for said injuries. Appellant has assigned various errors upon the record and copied them into its abstract and its brief. But the declaration and the instructions are not contained in the abstract; no exception is shown in the abstract to any ruling of the court upon the evidence; the only exception set out in the abstract is to the denial of the motion for a new trial; and the only point argued is that the verdict is excessive. All other questions therefore are waived.

Appellee was about fifty-three years old when injured. He owned a team and a coal wagon. For four months of the summer season he raised corn upon sixteen acres of land for food for his team, and did teaming for contractors. During the remaining eight months of the year, the coal season, he purchased coal at a mine at six cents per bushel, and hauled it into the city and there sold and delivered it to his own customers at nine or ten cents per bushel. Before the injury he hauled two or three loads per day, containing from eighty to one hundred bushels each. By the accident he sustained a fracture of one of the bones of his ankle joint, which supports the larger bone of the leg; his ankle was also severely sprained, and, according to his surgeon, the ligaments were torn to some extent. It was three or four months before appellee was able to stand upon that foot, and five months before he was able to work. He suffered pain during that period, and still suffers pain when working and also at night. When he was able to resume work he found that he could not stand upon the injured foot to shovel and handle as much coal in a day as before the injury. Thereafter he was able to handle only two small loads each day of forty or fifty bushels each. A computation shows that he was able to earn much less than before. During his five months of total cessation of labor his team and wagon might have been let out at $4 per day, but when he resumed work he had to use them himself to make even his reduced earnings. It would take but a few years to make his loss in earnings because of this injury amount to $2500. While the injury may not be permanent, it had continued till the trial, some fifteen months later. When we consider his pain and suffering, his loss of earnings up to the trial, and his possible continued loss of earnings thereafter, we cannot. say that this verdict is so great that it should be treated as excessive, after it has been approved by the trial judge who saw the witnesses and had means superior to ours by which to determine the value of their testimony and the extent of appellee’s injury.

The judgment is therefore affirmed.

Affirmed.