author: Mr. Presiding Justice Higbee

text:
    T. O. Rotramel, Plaintiff in Error, v. T. K. Ford, Defendant in Error.

      Partnership—when equity will not entertain proceeding for accounting. If the partnership has been fully dissolved and a written contract entered into representing the dissolution effected, the remedy is at law for a breach of such contract of dissolution and equity will not take jurisdiction of a bill for an accounting.
    Bill in chancery. Error to the Circuit Court of Franklin county; the HoN. W. H. Green, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 21, 1912.
    W. H. Williams, for plaintiff in error.
    Denison & Spiller, for defendants in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On January 12, 1907, the parties to this suit entered into a written' partnership agreement to engage in the grocery business in the city of Benton, Illinois, providing that each party should furnish one-half the capital and be entitled to one-half the net profits; that plaintiff in error, Rotramel, should have entire management of and devote his time and personal attention to the business and should receive in addition to one-half the net profits, $50 a month for his services. It was further agreed that should either party desire to withdraw from the partnership, he should give at least • thirty days ’ notice of such intention, and also give his co-partner the option of purchasing his interest. In pursuance of this agreement a stock of goods was purchased for $1250 and Rotramel took charge of the business, keeping the bank account in his own name and so continued until January 29, 1908, when the partnership was dissolved by mutual consent and a written agreement in reference thereto was entered into by the parties.

This agreement provided that, whereas, said firm had accounts and bills payable to the amount of $3000 more or less and were desirous that the same should be paid and the partnership dissolved; that therefore the said defendant in error, Ford, agreed to assume all the indebtedness of the firm for goods and fixtures and to pay Rotramel for services rendered by him from January 12, 1907, to the date of the agreement, the sum of $50 a month, also to pay said Rotramel the money he had invested in the business; less all items that should be charged to his account, said amount to be paid out of the proceeds of the business after the payment of the indebtedness of the firm. It was further agreed that Rotramel should devote reasonable time and effort to collecting outstanding accounts without compensation; also that the amount of money invested by Rotramel should be adjusted by two persons named and in case of a controversy between them, the same should be settled by a third party to be selected by them; that in the adjustment of the accounts all' books, papers, etc., pertaining thereto, should be submitted to the parties selected to adjust the same; that upon the execution of the agreement, the possession of the business, books, etc. should be taken by Ford and Rotramel should retire from said firm and business. This agreement was executed and Rotramel retired from the business. Shortly after-wards on May 16, 1908, Rotramel filed his bill in chancery against Ford, setting out the facts as above stated and attaching copies of said contracts as exhibits to his bill. He further alleged that in pursuance of said agreement of dissolution, he had surrendered possession of said books, business, etc., to Ford and had in every particular fulfilled his part of the agreement; that Ford had wholly refused to carry out his part of the agreement although often requested by appellant so to do; that complainant notified said arbitrators of his desire to make a final settlement of said co-partnership bnt he is informed they now refuse to act; that he has been sued by certain creditors of the firm and is threatened with suit by others who refuse to recognize the liability of Ford as a partner; that during the continuance of said partnership and. since he has been compelled to expend large sums of money to meet the indebtedness of the firm, which he is in danger of losing unless a speedy accounting is had between him and said Ford; that shortly after the dissolution of said partnership said Ford sold the stock of goods formerly owned by said partners to another party; that Ford had all the books and papers pertaining to the co-partnership in his possession and therefore complainant cannot make more specific allegations.

The prayer of the bill is that “defendant render to the court a just and true account of all his acts and doings in respect to said co-partnership, said accounting to be rendered under the oath of said defendant, and that said defendant be decreed to pay to your orator such sums of money as may be found to be due according to said agreement of dissolution herein-before mentioned” and that he may have such other and further relief as justice and equity may demand.

Ford answered, admitting the execution of the former agreement of partnership, the carrying on of the business under it, the execution of the agreement of dissolution and that after said dissolution he took possession of the business, books etc., but denied all the other material allegations of the bill.

Replication was filed and the cause referred to the master in chancery to take the proofs. The master reported the evidence and the court entered a decree finding that it had jurisdiction of the subject-matter and parties and stating that upon a hearing upon the evidence the court found the issues in favor of the defendant Ford, and rendered judgment against complainant Rotramel for costs.

The only point raised and argued by plaintiff in error as a reason why there should be a reversal of this case, is that the proofs did not sustain the decree in favor of defendant in error.

The bill in this case seems to have a double purpose, one of which is to compel a partnership accounting between the parties and the other to enforce the provisions of the agreement of dissolution. No statement is made by the master in chancery as he was only required to report the evidence and the short decree of the court, which simply finds the issues in favor of Ford and renders judgment against Rotramel for costs, throws no light npon the subject of the account. The evidence upon this subject is confusing and from it it is difficult to satisfactorily determine the condition of the accounts between the parties. Nor does it clearly appear from the arguments of counsel, exactly what is claimed by them as to the condition of the accounts. We are inclined to the belief, however, that under the evidence, the principal, if not the only real controversy between the parties, was the right of Rotramel to recover his salary of $50 a month during the time he conducted the business as provided for in the articles of dissolution.

It is said by plaintiff in error that the court below in deciding the case, stated that the partnership in question was dissolved by mutual consent of the parties by a written instrument, and it appeared that complainant was to have $50 a month for his services and that his remedy was at law for the amount due him.

Plaintiff in error correctly contends the general rule is as laid down in Burns v. Nottingham, 60 Ill. 531, “That one partner cannot bring an action in assumpsit against his late partner unless upon a dissolution of the co-partnership, the partners account together, and a balance is stated in favor of one, and the other agrees to make payment of such sum.”

In this case, however, there was a final dissolution of the partnership in writing and an agreement of the terms upon which the dissolution was to take effect and a further agreement as to the payments to be made by Ford under certain conditions. The mere fact that the amount invested by Botramel in the business was not stated or determined by the agreement and the further facts that the indebtedness of the firm and the amount of the accounts due it, were not ascertained and named, do not affect the agreement as a final settlement between the parties. In fact plaintiff in error relies on the agreement as a final settlement and seeks to enforce it injhis bill.

We are of opinion that under the circumstances plaintiff in error was not entitled to a partnership accounting nor was it necessary for him to go into equity to enforce his rights under the contract. If Ford has failed to comply with the terms of the contract of dissolution, Botramel has his remedy in an action of law upon the contract. This case differs from that of McCandless v. Crouse, 220 Ill. 344, relied on by plaintiff in error as upholding the doctrine that a bill for accounting may be sustained, although there had been a dissolution of the partnership by written agreement in this, that in the case so relied upon the agreement simply provided for a dissolution of the partnership and expressly stated that the terms of dissolution and settlement were to be agreed upon thereafter.

In this case however there was not only a dissolution of the partnership but the terms of the settlement were fully agreed upon and stated in the instrument. If therefore the court below intended to dismiss the bill for want of equity because plaintiff in error had a complete remedy at law, we agree with the conelusion of the court. Defendant in error however does not concede that the case was determined in its favor on the ground that plaintiff in error had his remedy at law and the decree apparently shows a hearing upon the.merits and a finding of the issues on such hearing in favor of defendant in error. In order that there may be no mistake upon this question and that plaintiff in error may not be barred from bringing his action at law upon the contract to determine whether or not there is anything due him by virtue of the terms of the same, the decree will be reversed and the cause remanded with directions to the court below to dismiss the bill for want of equity, for the reason that plaintiff in error has his remedy at law.

Decree reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Kate Hall, Administratrix, Appellee, v. Vandalia Railroad Company, Appellant.
    1. Federal employers liability act—effect of contributory negligence. While under this act contributory negligence by the employe will not absolutely bar a recovery, yet such contributory negligence is proper to be shown in mitigation of damages, and where the evidence tends to establish contributory negligence, instructions which ignore the principle above, are erroneous and ground for reversal.
    2. Federal employers liability act—when defense of assumed rish available. It is only in a case where there was a violation of the statute enacted for the safety of the employes that contributed to the injury or death of the employe that it is to be held as a matter of law that the employe did not assume the risk of his employment.
    3. Federal employers liability act—when defendant engaged in interstate commerce. Held, that the defendant is engaged in interstate commerce within the meaning of the Federal Employers Liability Act where it appears that the injury occurred while the defendant was engaged in moving freight from its point of shipment in one state to its destination in another or others.

      4. Federal employers liability act—when declaration not fatally defective. A declaration invoking the Federal Employers Liability Act is not fatally defective where it alleges that the suit is brought for the benefit of the "widow and next of kin,” when it should allege that it is brought for the benefit of the "surviving widow and children of the employe.”
    Action in ease for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Whitnel, Browning & Gillespie, for appellant; Foryce, Holliday & White, of counsel.
    Dan McGlynn and John C. Robertson, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, Kate Hall, seeks in this case to recover damages as administratrix of the estate of her husband, Bichard 0. Hall, against appellant, for the death of her intestate, alleged to have been caused by negligence of appellant, claiming a right of recovery under and by virtue of an act of Congress entitled “An Act relating to the liability of common carriers by railroad, to their employees in certain cases,” approved April 22, 1908, commonly known as the Federal Employers Liability Act.

Each of the two counts of the declaration sets out that on August 8, 1910, appellant was a common carrier, engaged in commerce between the states of Illinois and Indiana and was possessed of and maintained a certain railway switching yard in the city of East St. Louis, Illinois, wherein were located divers railway tracks over which certain servants of appellant moved, switched and handled railroad cars, loaded with merchandise, while engaged in such commerce as aforesaid; that on said date and for several weeks prior thereto appellant negligently maintained a certain pile of lumber in such close proximity to one of said tracks in said highways known as No. 4, as to be dangerous to the life and limb of its servants engaged in switching cars upon and over said track'; that Richard 0. Hall, plaintiff’s intestate, was employed by appellant in said yards in the night time, in switching and handling on and over said track No. 4, a certain car loaded with merchandise" and while said car was engaged and being used in interstate commerce ; that while said Hall was engaged in his usual and customary duties as a switchman and while he was standing in the stirrup of said car as the same was being moved upon and over said track, he came in contact with said pile of lumber and was knocked from the car and killed.

The negligence alleged in one count of the declaration is the placing of said lumber in such close proximity to the track as to be dangerous and permitting it to remain there; and in the other count the dangerous proximity of the lumber and also a defective and insufficient roadbed caused thereby.

Upon the trial the jury returned a verdict in favor of appellee for $10,000 and a motion for a new trial and in arrest of judgment having been overruled, judgment was entered for that amount.

The proof discloses that appellant operates a railroad from East St. Louis to Indianapolis, Indiana, and has three switching yards in or near East St. Louis, one of which is called “The lower yard” where, between tracks No. 4 and No. 5, some six weeks or two months prior to the date of the injury mentioned in the declaration, two piles of lumber used for making railroad crossings each 12 to 14 feet long and 4 or 5 feet high, had been placed; that intestate, Hall, had worked in these yards about a year and a half as a switchman and when the foreman was not working he would act as foreman of the crew; that this lumber was placed so close to the track as to be dangerous to switchmen standing on a ladder on the side of a car passing on track 4; that on the night of the day in question Hall was riding on a freight car with his feet in the stirrup and his hips hanging down about even with his feet so that his body extended out from the side of the car; that he did not rise or change his position as he reached the pile of lumber; that he was struck and knocked off the car by it and shortly thereafter died from his injuries, leaving surviving him a widow and three minor children.

It was claimed by appellant, that there was some proof tending to show that Hall knew the danger caused by the proximity of the lumber to the track and that he had avoided it a number of times by raising himself in the ladder as lie passed on the car. We deem it inexpedient to make a more extended statement of the facts, for the reason that this case must be reversed and remanded for another trial for other reasons.

Appellant in its brief urges 17 reasons why the judgment of the court below should be reversed, but they may properly be considered under four heads. The principal questions involved arise upon the construction to be given to the Federal statute, relied on by appellee in her behalf, and under which the suit is brought. Sections 1, 3 and 4 of that statute which are particularly involved here, are as follows:

“1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, that every common carrier, by railroad, while engaging in commerce between any of the several States or Territories or between any of the several states and territories * * *, shall be liable in damages to any person suffering injury while lie is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representatives, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe’s parents; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or -other equipment.”'

Section 3. “That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to any employe or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe; Provided, that no such employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.”

Section 4. “That in any action brought against any common carrier under or by virtue of the provisions of this act to recover damages for injuries to or the death of any of its employes, such employe shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes' contributed to the injury or death of such employe. ’ ’

Appellant claims, and such claim is stated in a number of' different ways, that the court below erred in holding on the trial, and by his rulings on instructions, that while the fact the. evidence was such as to show that the deceased was, as a matter of law, guilty of contributory negligence and had assumed the risk at common law, nevertheless, under the statute above referred to, the defendant was not entitled to the benefit of those defenses.

Appellee on the other hand contends that said employers liability statute “gives a right of action and provides that the defendant shall be liable in damages for any violation of the act and that by reason of that fact, the defenses of contributory negligence and assumption of risk, are not available to the defendant. ’ ’

The main question presented to us therefore is, can appellant in this suit, brought under the statute, avail itself of the defense of contributory negligence and assumption of risk or either of them on the part of said Hall, or to state the converse, is appellee entitled to recover, regardless of the questions whether her intestate was guilty of contributory negligence at the time he was injured or the facts showed a condition of affairs which under the common law would constitute an assumption of risk.

It will be observed that section 1 of the statute provides, that every common carrier by railroad, while engaged in commerce between the states, shall be liable in damages for the injury or death of an employe, resulting or caused in whole or in part by the negligence of such carrier, or by reason of any defects or insufficiency due to its negligence in its cars, etc.

Appellee’s counsel claims that the general language of this statute must prevail and under it the defenses of contributory negligence and assumption of risk cannot be availed of as a defense, and cites in support of his theory numerous well known cases, where it has been held by the supreme court of this state, that such defenses cannot be availed of in suits brought under the mining act and the child labor law.

It will be further observed however, that section 3 provides, that the fact that the employe may have been guilty of contributory negligence, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe; Provided, that no such employe shall be held to have been guilty of contributory negligence, where the violation by such common carrier of any statute enacted for the safety of employes, contributed to the injury or death of the employe. It is further provided, in section 4, that such employe shall not be held to have assumed the risk of his employment in any case, where the violation by such common carrier of any statute, enacted for the safety of employes, contributed to the injury or death of such employe. It appears to us that considering the words and sentences used, according to their ordinary acceptation, the intent of the act, so far as the same applies to this case, is readily to be understood. Section 1 gives a right of action for the injury or death of an employe, resulting in whole or in part from the negligence of the common carrier, or from defects, due to its negligence, in its cars, appliances, etc. Section 3, which is entirely in harmony with section 1, plainly provides that in all actions under the statute, contributory negligence shall not be a bar to a recovery, but it directly provides that the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. Mondou v. N. Y. N. H. & B. R. R. Co., U. S. Supreme Court, Opinion filed January 15, 1912. The section also plainly provides that the doctrine, of contributory negligence on the part of the employe shall not be a defense in case the violation by the common carrier of any statute, enacted for the safety of employes, contributed to the injury or death of the employe.

In this case there was no proof whatsoever of the violation by appellant of any statute' enacted for the safety of its employes, consequently the proviso cannot be called into action. Under section 3, appellant was entitled to have the jury consider contributory negligence on the part of Hall, if proven, to diminish the damages. No instruction given by the court stated the law on this subject, to the jury, although some of appellant’s refused instructions bore upon the question of contributory negligence.

Only one instruction was given on behalf of appellee and that told the jury, that if they found the defendant guilty, then in assessing plaintiff’s damages, they had a right to take into consideration all of the testimony offered upon that question and allow such damages as they might deem fair and just compensation with reference to the pecuniary injury resulting from the death of the plaintiff’s intestate-to his widow and next of kin, and that in estimating plaintiff’s damages, they had a right to take into consideration whatever they might believe from the evidence the widow and next of kin might have reasonably expected in a pecuniary way from the continued life of the intestate.

Appellant was claiming that Hall had been guilty of contributory negligence and there was evidence tending to sustain that contention. This instruction wholly ignored the question of contributory negligence and the duty of the jury to consider it under the statute above referred to, in diminution of damages, and the giving of the same was for that reason reversible error. The instruction was also inaccurate in referring to the widow and next of kin as the parties entitled to compensation in case damages were allowed, when it should have named the widow and children, but we do not consider this so serious an inaccuracy as to constitute reversible error.

Section 4 of the Federal Act appears to us to plainly indicate that it is only in a case where there was a violation of the statute enacted for the safety of the employes and the same contributed to the injury or death of the employe that it is to be held as a matter of law, that the employe did not assume the risk of his employment. If, as contended by appellee, the defense of assumption of risk is not available even in a case like this where there was no violation of any safety statute, by reason of the general language used in section 1, then section 4 would be wholly useless and nugatory. We agree with the contention of appellant that under the facts of this case, it was entitled to avail itself of the defense of assumed risk, but we do not agree with it that the question as presented here was one of law which the court should have decided in favor of appellant, but are of the opinion that it was a question of fact to be submitted to the jury.

It is a contention of appellant that the facts in this ease do not show that appellant was at the time of the injury in question engaged in interstate commerce. It was held in U. S. v. Col. & N. W. R. R. Co., 157 Fed. Rep. 321, that, “every part of every transportation of articles of commerce in a continuous passage from a commencement in one state to a prescribed destination in another state, is a transaction in Interstate Commerce * * Every carrier who transports such goods to any part of such continuous passage is engaged in interstate commerce whether the goods are carried upon through bills of lading or rebilled by the general carrier.” The freight carried in the car in question had been loaded into the car at Indianapolis, Indiana, and included shipments for consignees in East St. Louis, Illinois, and St. Louis, Missouri. At the time of the injury the car had not reached its destination but was being moved to the platform or warehouse where it was to be unloaded. These facts show' that the injury occurred while appellant was engaged in moving freight from its point of shipment in one state to its destination in another or others and was therefore engaged in interstate commerce.

Complaint is further made by appellant that the declaration was insufficient because the suit is brought for the benefit of. the “widow and next of kin” when under the statute relied upon, it should have been brought for the benefit of the “surviving widow and children of the employe.” This however is not a matter of vital importance as we have above indicated and may be readily corrected on another trial of the case.

For the reason that appellant was not given the benefit on the trial of the defense of contributory negligence in diminution of damages, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Jane L. Judd, Appellee, v. James W. Judd, Appellant.
    Separate maintenance—when conduct of wife does not justify husband’s desertion. The keeping of boarders by the wife in order to earn money to prevent the foreclosure of a homestead mortgage is not such conduct, even though strenuously objected to by the husband, as will justify his desertion.
    Bill in chancery. Appeal from the Circuit Court of Madison county; tho Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 21, 1912.
    C. H. Burton, for appellant.
    Early & Williamson, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court,

Appellee filed a bill in chancery for separate maintenance against appellant, her husband, in May, 1910. In her bill she alleges she is a resident of Madison county, Illinois, and was married to appellant March 3, 1881; that a few years after said marriage he commenced a course of unkind, cruel and inhuman conduct toward her which he continued until she finally separated from him, April 1,1910; that his conduct was such as to render it unsafe and improper for her to live with him and that he had failed and refused to furnish her with means of support for more than three years prior thereto; that he is a man of violent and ungovernable temper and has on many occasions addressed to her the most opprobrious epithets and threats of personal violence; that in consequence of such conduct on his part, she was obliged on said date to leave the house of defendant and seek refuge with her friends; that on January 1, 1905, she purchased part of a lot and afterwards built thereon a house which was occupied by her and appellant; that to erect said house she borrowed $1,100 of a loan association; that appellant paid the monthly dues on said loan for about three years; that in March, 1909, he ceased to pay said dues and refused to provide appellee with means of support and that she was then compelled to take boarders to procure a living and make the monthly payments.

The bill .concluded with a prayer that appellant be compelled to make provision for appellee’s support and that she be decreed the free possession, use and control of said premises.

Appellant’s answer denied most of the allegations of the bill and set up that appellee without jilst cause ceased to live and cohabit with him on and after December 20,1908; that the money put in said real estate was derived from property owned and afterwards sold by appellant. The bill, answer and replication contained many charges of improper conduct on behalf of both parties, which it is unnecessary to repeat here.

The decree found that appellee had been living separate and apart from appellant, without her fault, since July 11, 1909, and that during said time he had failed and refused to provide for or contribute to her support and maintenance, according to his means and their condition in life; that appellee purchased said real estate out of her own moneys as her own property and held title thereto; that appellant had paid for monthly dues and interest on the loan on said premises made by said association, the sum of $528 and had built a stable thereon at a cost of $55 and that appellee had paid the rest of the dues and interest to the association up to the time of the decree.

It was decreed that appellee was entitled to separate maintenance from appellant and that the latter should pay her the sum of $10 per month during the time he should occupy a room in sáid dwelling house; that in case he should remove from said room he should pay appellee the sum of $3 a month and that he pay the costs of suit.

The evidence in this case showed an entire lack of harmony between the parlies and that a most deplorable condition existed. Each charged the other with immoral conduct and sought to prove the same. They had frequent quarrels in which the most violent language was used by both of them.

The proofs clearly showed that appellee was living-separate and apart from her husband within the contemplation of the statute and the only other fact necessary for her to show, to sustain her bill, was that she was living in that manner without her fault. The temper and violent language of the wife do not appear to have been the reasons why appellant refused to live with and support her, but his refusal to do so appears to have been based upon the fact that she was determined to keep boarders.

In July, 1909, when the dues to the building association were four months in arrears and if not paid in two months more, would have subjected the premises to a foreclosure, appellee commenced to keep boarders. Her object in so doing, as she claims, was to raise the necessary amount to pay the association dues and save her home. Appellant objected strenuously to this action on her part and when she persisted in her intention, he refused to contribute any further to her support, and while occupying a room in the house, took his meals elsewhere. Appellee continued to keep boarders for a while and afterwards for sometime worked out as a domestic in order, as she says, to obtain money to protect the home from the foreclosure of the mortgage debt.

While appellee’s conduct towards appellant has not been free from censure, yet upon a consideration of all the proofs we cannot say that the court below was not authorized in giving a decree in her favor. The amount fixed by the court to be contributed by appellant towards the- support of appellee was not exorbitant and the decree will therefore be affirmed.

Affirmed.


text:
    East St. Louis and St. Louis Express Company, Appellee, v. Illinois Traction Company, Appellant.
    1. Verdicts—how excessiveness may he cured. A verdict for an excessive amount may be cured by the entry of a remittitur.

    2. Instructions—•when modification proper. If an instruction as presented would be calculated to mislead, a modification which cures that vice is proper.

      Assumpsit. Appeal from the City Court of East St. Louis; the HoH. Mortimer Millard, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed March 21, 1912.
    H. C. Dillon and W. S. Louden, for appellant.
    Taylor & Mayer and D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The facts upon which this suit is based, grow out of the following transaction: On October 10, 1906, appellant entered into a written contract with appellee, whereby the latter was to haul all freight from the terminals of appellant to its warehouses in East St. Louis, Venice and Madison, Illinois, and St. Louis, Missouri. Appellee was to receive for each hundred weight of freight hauled, an amount stated in the contract, which was not the same for all warehouses, hut depended upon the amount of service to he rendered. The contract provided that appellant should pay appellee the sum of 75 cents per hour, or any fractional part thereof, for any delays occasioned by appellant to the teams of appellee, in excess of one hour. The contract covered a period of fourteen months, hut at its expiration on December 10, 1907, it was continued in force and both parties acted under it up to and including April, 1909. During all this time, monthly settlements were had between the parties which, up to June, 1907, included the settlement of penalties for delays in excess of one hour. Appellee claims that after that time the payment of such penalties was not made and that there was due it for such delays from June, 1907, to April, 1909, inclusive, the sum of $1386.20 and brought this suit in assumpsit to recover that amount.

The jury returned a verdict in favor of appellee for $1382.70 and it is from a judgment for that amount that this appeal is prosecuted.

Appellant claims that the verdict was not supported by the evidence and that the court erred in regard to the instructions.

The only evidence on the part of appellee in addition to the contract, was the testimony of F.'W. Morrison, who was president, and principal owner of the stock, of appellee and managed its business, while the only evidence on the part of appellant was 29 voucher checks for settlements made between the parties and two statements appearing to show the arrival and departure of the wagons from appellant’s terminals in April and May, 1907. Mr. Morrison testified that when the first voucher was turned in which failed to contain the settlement for overtime, on complaint of B. F. Tabler, who was the district traffic manager of appellant, the latter stated to him that they would “fix it up later.” By the course of business adopted between the parties when a wagon was hauled by the teams of appellee to appellant’s platform to be unloaded by the latter’s men, they were entitled to one hour to unload the same, but if the wagon was not unloaded at the end of the hour, appellant was to pay 75 cents for each additional hour or fraction thereof, as was provided for by the contract. The overtime for which appellee was to be entitled to charge, was ascertained as follows: When one of the appellee’s wagons arrived at a platform of appellant, an agent of appellee, who was stationed there, would receive from the driver, duplicate reports upon which he would mark the time of its arrival. The wagon would then be unloaded by servants of appellant and when that was done, an agent of appellant at the warehouse would endorse on the duplicate reports the time when the wagon was unloaded. It was agreed between appellant and appellee that these drivers’ reports should constitute the record of the overtime, one copy being retained by each party. When a wagon had become empty and appellant had no team there to hitch to it, it was marked a dead wagon and under the agreement between the parties, no charge could be made for a dead wagon. The only way of determining what was due appellee, if anything, for overtime, was from these drivers’ reports, some 10,000 of which appear to have been produced upon the trial. They were offered and admitted in evidence, but the suggestion was then made by counsel that some agreement would be entered into, to obviate the encumbering of the record with these reports later on. No such arrangement, however, is shown to have been made and the reports are not included in the record.

The trial of the case in the court below was interrupted from time to time to give the witness Morrison opportunity to examine the reports and he was then permitted to state the result of his examination. He, having examined all the drivers’ reports, testified that they, as a whole, showed the amount due appellee for overtime, to be $1386.20, from which there was a small reduction to be made for errors which reduced the amount to $1382.72, the amount of the judgment. Morrison also testified that according to the reports $415.55 of the total amount of overtime, ascertained by him, was shown to be due for dead wagons. The 29 voucher checks introduced by appellant, covering the period in question, all contained the words “in full payment of the following, memo. ’ ’ Many of them contained the statement that they were given “in full and complete payment of all charges for transfer and terminal expense at St. Louis and East St. Louis” to a date named. Others stated they were “in full for transfer and warehouse charges on merchandise between East St. Louis and St. Louis” for a time named, and still others that they were “in full settlement of transfer and warehouse charges” for a certain month. An examination of these vouchers fails. to show any allowance for overtime and the court properly admitted the evidence of Mr. Morrison, explaining that under the working arrangement and custom of both parties the over charges were not included under the term “transfer and warehouse charges,” but that they had been, and were to be, settled for separately. The wording of the vouchers did not, under the circumstances, bar appellee of the right to recover for overtime. It appears from the record, however, that it was agreed between the parties, that the drivers’ reports should constitute the record of the overtime and the proof of such overtime on the trial was based entirely upon these reports. As appellant must be bound by what these reports show as to the overtime, so, also, appellee must be bound by what they show as to the dead wagon charges. They show that the dead wagon charges amounted to ■ $415.55 and the judgment in favor of appellee was too large by that amount.

Appellant complains that the only instruction given for appellee was misleading, because there was no evidence to support it. It told the jury that if at the expiration of the written contract, it was agreed between appellant and appellee, that they should continue on under its terms, that then the terms of said written contract would govern the charges made during the time they so continued to act thereunder. This instruction stated a correct principle of law and the testimony of the only witness in the case supplied the facts upon which it was properly based.

Appellant further complains that its second instruction, which told the jury that appellee could not recover, if it appeared from the evidence that settlements were made between appellant and appellee each and every month and at such times appellee received from appellant vouchers covering the full amount due appellee, was modified by inserting the words “including the claim for overtime.” Under the proofs in the ease this modification was eminently proper and without it the instruction would have been misleading.

Appellant also complains that the court erred in refusing its instructions Nos. 5 to 22 inclusive but does not state of what the error consisted. An examination of these instructions, many of which take up the voucher checks referred to, in order, and state that if appellee received the money provided to be paid therein, it could not recover, under the declaration, any amount claimed to be due prior to the date named in the voucher, shows that they were all properly refused.

If appellee shall within twenty days from this date enter a remittitur of $415.55, judgment will be entered in this court for $967.15, otherwise the judgment will be reversed and the ease remanded.

Affirmed on remittitur.


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    Ernest H. Smiley, Administrator, Appellee, v. East St. Louis and Suburban Railway Company, Appellant.
    1. Negligence—excessive speed. Held, that where the proofs warranted the jury in believing that an interurban ear approached a street crossing at a speed in excess of that permitted by the ordinance of the city, and that no signal of its approach was given, a .verdict finding negligence would not be disturbed.
    2. Contributory negligence—how question determined. The question of whether a person at the time of his injury or death was guilty of contributory negligence is one of fact to be determined by the jury under the evidence and proper instructions of the court.
    3. Instructions—failure to define particular phrase. Seld, that the giving of an instruction was not error because of its failure to define the phrase “lawful use of the street”—such phrase not being defined in other instructions given.
    4. Damages—when presumed in death case. In an action for death caused by wrongful act, damages are presumed in law where the deceased left a mother surviving.
    5. Verdicts—when not excessive. Held, in a death ease, that a verdict for $5,000 was not excessive where it appeared that the deceased left a surviving mother to whose support the evidence tended to show he, to some extent, contributed.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied April 6, 1912.
    Barthel, Farmer & Klingel, for appellant.
    F. J. Tecklenberg and D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought this suit to recover damages for the benefit of the next of kin of his intestate, John C. Louden, who was killed by one of appellant’s cars at the intersection of Horner and Second streets in Lebanon, Illinois.

There were three counts in the declaration, the first of which charged that appellant so negligently and carelessly operated, controlled, managed and ran one of its cars across Second street, in said city, that it was driven against an automobile in which Louden was passing along and he was thereby thrown out and killed. The second, that appellant was operating its car at a high and dangerous rate of speed without ringing a bell, sounding -a whistle or giving other reasonable notice of its approach to the crossing. The third, that the car was running at a speed in violation of the ordinance of the city of Lebanon,, limiting the speed of cars to ten miles an hour.

There was a plea of the general issue and a verdict and judgment in favor of appellee for $5,000.

Appellant contends that the proofs do not support the verdict, for the reason that they do not show it was guilty of the negligence charged in the declaration and do show that appellee’s intestate was guilty of contributory negligence at the time he was injured ; that the court erred in giving instructions on behalf of appellee and that the verdict is excessive.

On June 14, 1910, as is disclosed by the proofs, appellant was operating a line of electric cars between the cities of Lebanon and Bast St. Louis. From its eastern terminus, its tracks ran in a westerly direction for several blocks and then turned south through a narrow street about 20 feet wide, called Horner street. From the point where the railway track turned into Horner street, there was a down grade towards the south to or beyond Second street which Horner street crossed two blocks from the turn. At the intersection of these streets the view of the cars coming south on Horner street was somewhat obstructed by houses built at and near that point. John C. Louden, an unmarried man 42 years of age, lived in Lebanon with his mother and an unmarried sister, was postmaster of the city and also engaged in other business. He had lived in Lebanon nearly all his life and was acquainted with the city and its surroundings. On the evening of the day in question, he started from his home a block or two west of the intersection of Horner and Second streets, east on the latter street towards appellant’s tracks, riding in a Brush Runabout automobile, weighing 800 or 900 pounds, going at the rate of four or five miles an hour. On the south side of Second street near its intersection with Horner was located a house some 35 or 40 feet west of appellant’s track with a porch on the north side of it. At the northwest corner of the intersection of the two streets, was a house, the east line of which was only 20% feet west of appellant’s track and it was necessary to get near enough to the car track to look to the east of this house to see a car coming down Homer street from the north. As Louden approached the crossing and was passing this house a neighbor and acquaintance, Herbert H. Swears, who was sitting on the porch, called to him in a loud voice saying ‘ ‘ The car is coming, Buck. ’ ’ Louden looked up at him, smiled, waved his hand and went on. Whether Louden understood what Swears said to him or simply took his call as a 'salutation, could not be known but he seemed to slow the car down a little though he did not stop. His automobile went on to the track where it was struck by appellant’s car and he was so badly injured that he lived but a short time.

At just what rate appellant’s car was traveling at the time it struck the automobile was a question upon which the witnesses did not agree. Several wit-’ nesses, who testified for appellee, placed the speed at from 15 to 20 miles an hour, while the conductor and motorman placed it at from 6 to'9 miles an hour; the latter stating it might have been as much as 10 miles an hour. There was evidence tending to show that when the car struck the automobile, the collision made a noise which was heard for a considerable distance; also that the automobile was carried in front of the car from 90 to 99 feet and then thrown over on the opposite side of the track from which Louden came. It was drizzling rain at the time or just prior to the collision and the tracks were slick from the water. When the motorman first saw the automobile, he says he was some 45 feet from the crossing and it 35 feet therefrom; that he reversed the brake and sanded the track but the car, which was 48 feet long, ran some two car lengths before it could be stopped.

Concerning the question as to whether the servants of appellant rang the gong or gave any other signal in approaching the crossing, there was the controversy among the witnesses which nearly always arises when this question is presented. The proofs on the whole appear to us to have warranted the ■ jury in believing that the car approached Second street at a speed in excess. of that permitted by the ordinance of the city and that no signal of its approach was given. If appellant’s car, as the evidence seems to prove, went down grade on a street only 20 feet wide at a time when the tracks were slippery from rain and approached a street crossing at an unlawful rate of speed, without giving a signal, the jury were also justified in finding that the car was negligently operated.

The question as to whether Louden was guilty of contributory negligence at the time and just prior to his injury, was one for the jury to determine under proper instructions and the evidence was such as to sustain a finding on their part in favor of appellee in this regard.

Instruction No. 6 given on behalf of appellee was as;follows: “The court instructs the jury that while the ordinance introduced in evidence only limited the speed of the car to ten miles an hour, still that does not mean that the defendant might run its cars at that rate of speed at all places and undet all circumstances: And in this case if. you believe from a preponderance of the evidence, that the rate of speed at which the car in question was being run at the time it struck the deceased, was inconsistent with the lawful and customary use of Second street, then such speed is not authorized by said ordinance.”

Appellant complains that this instruction and two others, which contained somewhat similar language, were erroneous, for the reason there was no evidence what the customary use of Second street was and because whether the rate of speed would be lawful or not, would depend upon the facts in evidence, showing a duty arising from the frequent or infrequent use of the street by the public. Also because the term “lawful use of the street” was nowhere defined in the instruction.

In Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, it is said: “Street cars propelled by electricity cannot be lawfully run at a rate of speed which is incompatible with the lawful and customary use of the highway by others. Here the appellee had as much right to be upon the street as the appellant. A street railway company has no property interest in the street and therefore no right to run its cars at a rate of speed which will interfere with the customary use of the street by others of the public with safety.”

In Savage v. C. & J. Elec. Ry. Co., 238 Ill. 392, the court approved an instruction which told the jury “that the defendant must not operate its cars in the streets at a rate of speed incompatible with the lawful and customary use' by the public,” saying that such was the law. It is further there stated in reference to such instruction “the jury were fully advised as to the degree of care which the deceased was required to exercise in crossing the street and the question whether the rate of speed was inconsistent with the customary use of the street, with such care, was one of fact for the jury. There was no error in giving the instruction.”

In this case the jury were fully and repeatedly advised by the instructions as to the degree of care required of appellee’s intestate in passing over the crossing in question. There was also proof showing the conditions existing at the crossing and for some distance around it, together with evidence which tended to give some general information concerning the size of the city and the distance of this crossing from the business center.

We are of opinion that the trial court did not err in giving these instructions.

What is above said will also dispose of appellant’s objection to instruction No. 5 given for appellee, which told the jury, it was the duty of appellant’s servants in charge of the car on approaching the crossing in question, to use care “commensurate with the danger to be anticipated at that point by an ordinarily prudent person. ’ ’

The final reason urged by appellant why the judgment of the court below should be reversed is that the verdict was excessive.

The complaint of appellant is that the proof did not show Louden contributed to the support of his mother or sister, and therefore only nominal damages could be recovered. There was however some slight evidence in the case tending to show that the deceased contributed to the household expenses. So far as the mother is concerned, however, she belonged to the class known as “lineal kindred’.’ and is therefore presumed in law to have sustained actual damages.

In Huff v. P. & E. Ry. Co., 127 Ill. App. 242, it was held, “that whether or not the deceased had contributed to the support of his next of kin is material only as to his collateral kindred, to-wit, his brothers and sisters ; that the rule that actual damages are presumed in cases of lineal kindred such as parent and child, is not limited to minor children but extends to parents and adult children, and that inasmuch as the deceased left a father and mother surviving him, it was error to instruct the jury that appellant was entitled to recover nominal damages only. ”

It is equally true that where the suit is brought for the benefit of next of kin who are collateral kindred only of the deceased, and have not received pecuniary assistance from him and are not in a situation to require such assistance, then nominal damages only can be recovered. Rhoads v. C. & A. R. R. Co., 227 Ill. 328. The fact that the sister is named with the mother as one of the next of kin for whose benefit this suit was brought, and that there is very slight evidence of anything contributed by deceased to his sister, should not operate to defeat the recovery of substantial damages in this case, if .appellee was otherwise entitled to the same.' The question of the apportionment of the damages is one which may be left to the probate court. The damages assessed by the jury in this case were not in the light of the proofs so excessive as to call for a reversal of the judgment on that account. The judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Henry Felhour, Appellee, v. East St. Louis Railway Company, Appellant.
    1. Instructions—when motion for peremptory properly denied. Whero the evidence tends to establish the allegations of the declaration a motion for a peremptory instruction is properly denied.
    2. Instructions—lohen as to conjoint use of street not erroneous. Held, in this case, that it was not error to give an instruction as follows:
    “The court instructs the jury that both plaintiff and defendant were equally in the position of right to use the public thoroughfare upon which the plaintiff ivas driving and the defendant was operating its cars, which right they held and enjoyed independently of each other, and that each should exercise ordinary care in the use of the street. ’ ’
    3. Instructions—when refusal of correct will not reverse. It is not error to refuse a correct instruction if its contents are substantially contained in another instruction given.
    4. Verdicts—when not excessive. Held, in a personal injury action, that a verdict for $750 was not excessive where it appeared that the plaintiff’s injury was painful, resulted in the gathering of pus in his shoulder which necessitated an operation serious enough to require the administration of an anaasthetie, it further appearing that the plaintiff was attended by a physician for about 3 weeks and incurred a liability for $60 and at the time of the trial, more than 2 months after his injury, was still suffering from the bruises sustained.
    Action in case for personal injuries. Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Barthel, Farmer & Klingel, for appellant.
    J. F. Vickers, for appellee.
   Mr. Presiding Justice Higbee

delivered tlie opinion of the court.

This suit was brought by appellee, the driver of a delivery wagon, against appellant to recover damages for injuries occasioned by his being thrown from his wagon at a time when it was struck by one of appellant’s electric cars.

The three counts of the declaration charge the car was running at a high, rapid and excessive rate of speed, a failure on the part of appellant to keep a proper lookout to avoid running into and injuring persons passing along and across the street and a failure to ring a bell or gong or give any warning of the approach of the car.

There was a plea of the general issue and the trial resulted in a verdict and judgment against appellant for $750.

It is insisted by appellant on this appeal that the court below erred, in refusing to direct a verdict of not guilty on motion of appellant, both at the close of appellee’s evidence and again at the close of all the evidence, in giving an improper instruction on behalf of appellee, in refusing an instruction offered by appellant and in sustaining a verdict for an excessive amount.

Appellee was a driver in the employ of the meat packing house of Armour & Co. at East St. Louis, his business being to deliver meats at various places in the city, for which purpose he used a one horse wagon owned by his employer. On February 3,1911, at about half past six o’clock P. M., having made his last delivery of meat for the day, he was driving north along Collinsville avenue on his way back to his employer’s plant. Collinsville avenue runs generally north and south in said city, and is intersected at right angles by St. Clair avenue. Along the center of the former street, appellant has two tracks, one for south hound cars on the west side of the street and the other on the east side of the street for north bound cars. Davies Meat Market, at which appellee had made his last delivery of meat, was located on the east side of Collins-ville avenue, some 350 to 400 feet south of its intersection with St. Clair avenue, and it was while driving north along Collinsville avenue between that market and St. Clair avenue that one of appellant’s cars came in contact with his wagon and caused him to be thrown out against the curbing on the street and injured.

There was a sharp conflict between the testimony of the witnesses for appellee and those of appellant, as to the manner in which the collision occurred. Witnesses for the former testified that appellee was compelled to drive onto the street car track to pass three vehicles standing along the curbing ahead of him and that he was again turning oil the track when the car came up and caught his left hind wheel, throwing the end of the wagon to the right and then again struck the front part of the wagon or left front wheel, the second collision causing appellee to be thrown from the wagon; that appellant’s car was at the time going at the rate of eight or ten miles an hour and that no warning was given of the approach of the car by the ringing of the gong or bell.

The testimony of an equal number of witnesses on the part of appellant tends to show that the car was going at a much slower rate of speed than that above mentioned; that appellee before the collision had already cleared the track bnt that when the car reached him he in some manner backed his wagon into it and that his front wheel was not struck at all by the car. The motorman also swore that he rang the gong once before the wagon was struck.

It is sufficient to say that the facts as sworn to by appellee’s witnesses showed a clear right on his part to recover for his injuries and it was for the jury to determine what witnesses were the better entitled to belief under all the circumstances of the case. The court below therefore properly refused to take the case from the jury.

Appellee’s third instruction, which is the one complained of by appellant, is as follows:

“The court instructs the jury that both plaintiff and defendant were equally in the position of right to use the public thoroughfare upon which the plaintiff was driving and the defendant was operating its cars, which right they held and enjoyed independently of each other, and that each should exercise ordinary care in the use of the street.”

. Appellee was compelled to go upon the track to pass other vehicles as appeared from the evidence of himself and his witnesses. We find no error in this instruction when it is applied to all the facts and circumstances in evidence in this case. A like instruction was held good where the circumstances of the injury were in many respects similar in character to those in this case, in W. C. St. R. R. Co. v. Maday, 88 Ill. App. 49.

Appellant’s third instruction refused by the court correctly informed the jury, that it was necessary for plaintiff to prove by a preponderance of the evidence that he was at and immediately before the time of his injury, in the exercise of due care and caution for- his own safety, as charged in his declaration, but there was no error in refusing the same, for the reason that the same theory of the law was fully covered in a number of other instructions given for appellant.

The injury sustained by appellee appears to have been a painful one and resulted in a gathering of pus in his shoulder, from which he suffered severely for several weeks until relieved by lancing, which operation was serious enough to require the administration of an ansesthetic. He was attended from time to time by a physician for some three weeks, and incurred a hill for such services of $60. At the time of the trial, or more than two months after the occurrence of the injury, he was still suffering from his bruises and had not been able to do any manual labor. Under these circumstances we do not consider the judgment of $750 so excessive as to warrant a reversal of the case.

Judgment affirmed.


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    Henry Steckstor, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    1. Safety appliance acts—ivhen declaration sufficient. Held, that where the declaration alleged that “such ears were not then and there equipped with couplers that would then and there couple automatically by impact, without a man going between the ends of the cars, contrary to the statute in such ease made and provided,” that evidence of defective couplers which would not work automatically was competent and that such evidence was sufficient to authorize a recovery.
    2. Safety appliance acts—what defense not available under Federal and State Acts. The defense of contributory negligence cannot be interposed to bar a recovery.
    Action in case for personal injuries. Appeal from the City Court of Harrisburg; the HoN. A. E. Someks, Judge, presiding.
    Heard in this court at the October term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 21, 1912.
    P. J. Kolb and W. F. Scott, for appellant; Glennon, Cary, Walker & Howe, of counsel.
    Choisser, Choisser & Kane and Clark & Hutton, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, while a brakeman, in the employ of appellant, was seriously injured and brought suit against appellant for damages, charging that his injuries were occasioned by reason of the failure of the railway company to equip certain of its cars with automatic couplers in compliance with the state and federal safety appliance acts.

There were two counts in the declaration, the first based on the state statute and the second on the federal statute,"but at the close of plaintiff’s evidence,.the court, on motion of appellant, instructed the jury to find defendant not guilty as to the second count and the case thereafter proceeded under the first count based on the state law alone.

A verdict for $1950 was returned by the jury in favor of appellee and for that amount the court gave judgment.

The facts in the case as shown by the proofs, are as follows: On September 28, 1909, appellee was head brakeman of a yard switching crew consisting of an engineer, fireman, conductor, and two brakemen. On that date the crew were directed to proceed .from the yards of appellant at Harrisburg, Illinois, with a cut of empty coal cars, to the mine of the Saline Collieries Company at Carrier Mills, situated on appellant’s road a few miles south of Harrisburg, and to bring back some loaded coal cars which were standing on the sidetrack at said mine. The crew was accompanied on the trip by the yard foreman, W. 0. Horn. On arriving at the mine and placing the empty cars in proper position for loading, the engine backed in on to the track where the loaded cars, -about ten in number, were standing. Three cars next to the engine were coupled together but the third and fourth cars were not coupled, and between them is where appellee’s injury was received. One of these two cars was equipped with an R. E. Janney coupler and the other with a Climax coupler, both of which, when in proper condition, are operated by a lever at the side of the car by means of which a pin is pulled up, releasing the coupling whereupon the knuckles open automatically. When cars equipped with such couplers in proper working condition, are pushed together, they couple automatically without the necessity of a brakeman going between them. The rear brakeman, Butler, who was looking after this coupling,, signalled to the engineer to back up which he did, but the cars failed to couple. He again gave the signal and the second time there was a failure to couple. At this time appellee arrived at the place where Butler was engaged and directed him to go back towards the rear end of the train, saying he would make the coupling. The cars were standing north and south with the engine at the south end of the line.

Appellee testified, and his testimony is to some extent corroborated by Horn, the yard foreman, a witness for appellant, who stood within a few feet of him at the time in question, that the drawbar on one car was pushed to the east and that on the other to the west; that he gave the engineer a signal to go ahead and pulled the lever at the side of the car, but this did not open the knuckles; that he then reached in with his hand and opened the knuckles and again signalled the engineer to back np; that the cars again failed to couple and that this operation was repeated several times; that he went in between the cars and attempted to push the drawbars together with his shoulders but they were rusty and would not move; that as he gave the signal to the engineer to back up for the sixth time he stood with his right foot on- the east rail and his hand holding the grab iron on the stationary car, and as the cars came together he gave one of the drawbars a quick kick with his left foot which broke it loose so that it made the coupling. At the same time his right foot slipped off the rail and his left foot was caught between the couplers and so crushed that it had to be amputated; that he had been ordered by Horn to hurry up in order that they might get away to meet a passenger train at Bedford.

Appellant introduced evidence to show that the couplers were, after being brought to Harrisburg the same evening, tested by coupling and uncoupling them and were found to be in good working order, no repairs having been made upon them in the meantime; also that on the following morning the couplers were taken apart and examined and that no defect of any kind was found. Appellant also claimed, and introduced evidence tending to prove, that there was no rust upon the couplers except a small amount that ordinarily accumulates on couplers while in service and that the cars in question had been in service.

Appellant insists that there was a variance between the allegations of the first count of the declaration, under which recovery was had, and the proofs offered, in that the declaration charged appellant with having failed to equip the cars in question with couplers that would couple automatically by impact, while the proof only tended to show that the couplers were defective; that no proof was offered by appellee that the cars were not equipped with automatic couplers, and it is undisputed that they were so equipped.

The.charge in the declaration was that “said cars were not then and there equipped with couplers that would then and there couple automatically by impact, without a man going between the ends of the cars, contrary- to the statute in such case made and provided.” While, under this charge, proof would have been proper to show that the cars were not equipped with automatic couplers, yet it was sufficiently broad to include the charge that though equipped with couplers, which if in good order would act automatically, yet their condition was such that they would not then and there couple automatically by impact. In the same connection appellant contends that in construing this, law the fact should be taken into consideration that any piece of machinery will not always work perfectly under any and all conditions, and that so long as a coupler is of the kind required by law and is shown to be in good working order, a railroad company should not be held liable merely from the fact that such coupler may fail to act. Substantially the same contention was made before this court in the case of Erlinger v. St. L. & O’Fallon Ry. Co., 152 Ill. App. 640, and we there said: “We think that simply to furnish the equipment is not such full performance of the duty imposed as the law requires. To so hold would be judicially to nullify the very purpose and object of the act. The cars are not only to be so equipped but they must be so equipped as they may couple automatically by impact and so they may be uncoupled, without the necessity of a man going between the ends of the cars. The law not only requires the equipment but it requires such equipment as at all times when in use avoids the necessity of going between the ends of the cars.”

The evidence in this case showed that while the cars in question were equipped with automatic couplers of approved design, yet as a matter of fact they were in some way defective or had become out of order so that after repeated attempts they could not be made to couple automatically and thus answer the purpose for which they were originally intended. So far as appellee was concerned in the performance of his duty, the cars might as well have been devoid of all safety coupling devices whatever. While there was some controversy as to the exact condition of the couplers, yet it was for the jury to say, under proper instructions as to the law, whether as a matter of fact, said cars were equipped with the couplers provided for by the statute.

The Illinois statute in reference to safety appliances provides, "That any employee of any such common carrier who may be injured by any train, locomotive, tender, car or similar vehicle in use contrary to the provisions of this act, shall not be deemed to have assumed the risks thereby occasioned, nor to have been guilty of contributory negligence, because of continuing in the employment of such common carrier or in the performance of his duties as such employee after the unlawful use of such train, locomotive, tender, car, or similar vehicle had been brought to his knowledge.” Rev. Stat. (Hurd 1908) chap. 114 sec. 231.

The main contention of appellant appears to be, that this statute does not cut off entirely the defense of contributory negligence, nor relieve the appellee of the burden of alleging in his declaration and proving, that appellee at and immediately prior to the time of his injury was in the exercise of due care and caution for his own safety; that the only advantage accruing to the employee therefrom is that he shall not be deemed guilty of contributory negligence, because of continuing in his employment or in the performance of his duties, after the unlawful use has been brought to his knowledge.

In Luken v. L. S. & M. S. Ry. Co., 248 Ill. 377, under a somewhat similar case where a switchman assisting in making up a train, went between cars equipped with automatic couplers, one of which was not in working order, for the purpose of effecting the coupling and was injured while endeavoring to put the coupler in such condition that it would work, it was said: “Under the Illinois statute, plaintiff cannot be held to have assumed the risk of injury by going between the cars in the performance of his duties, and it does not appear that he was negligent in any other respect;” and a judgment in favor of the switch-man was affirmed.

What is above said would appear to apply with equal force to appellee in this case. It is true that the doctrine of assumed risk and contributory negligence, while frequently considered together, are separate and distinct defenses, but we deem it a proper inference from the doctrine above laid down that appellant cannot, under the statute, avail itself of the defense of contributory negligence as against appellee, based on the fact that he went between the cars in making the coupling.

Appellant complains that four instructions offered by it, were refused by the court. We think the action of the court in this regard was proper, as they were at variance with the views above expressed in regard to the doctrine of contributory negligence. We have considered other criticisms of the rulings of the court in regard to the instructions, but they do not seem to us to have involved any error. The judgment of the court below will be affirmed.

Affirmed.


text:
    Charles Tomasi, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    1. Mines and miners—when -wilful violation established. Held, where the uncontradicted proof shows that loose material on the floor at the entrance to a crosscut created a dangerous condition, and that the place was neither marked nor reported by the mine examiner as required by law, that a miner proximately injured as the result thereof was entitled to recover. '
    2. Damages—when declaration sufficient to sustain recovery for mental suffering. Held, that instructions authorizing a recovery for mental suffering were sufficiently supported by allegation in the declaration that the plaintiff “has suffered and will suffer much pain and anguish on account of said injuries and the loss of his eye.”
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bebnbeuter, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied April 6, 1912.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    Terry & Gueltig, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought suit for injuries received by him while working in appellant’s coal mine, and recovered a judgment against the latter for $1272.33. The declaration was based on alleged violations by appellant of the mining act of this state, and consisted of eight counts. The first alleged that appellee was employed as a miner, in a mine operated by appellant, and was shooting and loading coal in and about room No. 3 off the second stub entry of the fifth west entry; that he shot down the coal by means of blasting powder ignited by a squib, or fuse, lighted by him; that after lighting the squib, he would seek a place of safety until the shot should be discharged; that before the time of his injury, there had been recent falls around or about the cross-cut or passageway between 'rooms 3 and 4, which constituted an obstruction in' the roadway thereof; that appellant wilfully failed to have its mine examiner inspect said place and observe whether there, were any recent falls or obstructions by means whereof, appellee, in the exercise of his duties as a miner, came in contact with said obstructions, was thrown to the ground and prevented from reaching a place of safety; that a shot which had been previously lighted, exploded and threw material against his head, limbs and body, whereby he was bruised and injured and his left eye destroyed. The second count charged that appellant wilfully failed to have its mine examiner place a conspicuous mark at said place as a notice to all men to keep out. The third charged a failure to place such mark and report his findings to the mine manager. The fourth, that appellant wilfully permitted appellee to enter the mine while it was in an unsafe condition and to work therein not under the direction of the mine manager.

The four additional counts substantially repeated one or .more charges set forth in the first four but more in detail and in one of them it was also charged that by reason of the weight resting on the props sustaining the roof of the roadway in question, they had become bent and projected into and obstructed the same.

Appellant argues as reasons why the judgment should not be permitted to stand, that it is against the manifest weight of the evidence, that the wilfulness charged was not the proximate causé of the injury and that the fifth instruction given for plaintiff is erroneous.

Appellee, as it appears from the record, was employed with his buddy, Dominick Contratto, in shooting down and loading coal in appellant’s mine in rooms three and four, extending west off of stub entry No. 2 of west entry No. 5. At the same time a man was engaged in cutting coal in the same two rooms with a machine. In working the machine the operator would cut in one room one day and the next day the miners would go into it and shoot down and load up the coal. Rooms three and four ran parallel and the face of each was distant 150 to 200 feet from stub entry No. 2. There were several cross-cuts through the pillar of coal left between these two rooms, the one nearest the face being 21 feet from it and the next one 61 feet further. While appellee was not engaged at work in the first opening, yet it appeared that it was cut through by the machine operator; that props had been put in; that the space was some four feet wide and extended a distance of nine feet, from one room to the other, and was used by the miners as a passageway between the two rooms. It was customary for appellee and Contralto to each put in a shot at the face, at opposite sides, and after the fuses were lighted to seek places of safety until after the explosion.

On the afternoon of the day of the injury, in October, 1909, appellee had gone into a room known as room No. 2 off of said stub entry No. 1, which was some distance from his own room, and fired three shots for a fellow miner who had desired to go home before the time arrived for firing shots in the mine.

Appellant claims that appellee was injured in some manner while firing these' shots and there is some circumstantial evidence tending to sustain this claim. The direct proof in the case however sustains the claim of appellee; that after firing said shots he returned to room No. 3 off of said second stub entry, where he and Contralto had each drilled and put in a blast of powder ready to fire; that the shot put in by appellee was at the face of the mine on the south side next to room 4, and the shot of Contratto on the opposite side of the face; that after his return they started the fuses and Contratto went down room No. 3 while appellee attempted to go through the crosscut into room No. 4; that as he entered the cross-cut he fell over a lot of slate and other debris, striking his head against one of the props at the entrance to the cross-cut; that when he fell his miner’s light went out; that at about the same time Contratto’s shot went off, but appellee was not hnrt thereby; that almost immediately thereafter, while appellee was trying to regain his feet in the dark, his own shot exploded, throwing a lot of coal against his head and body, with much force, causing, among other injuries, the destruction of his left eye.

It was shown by the proofs that loose materials were constantly falling from the roof and were permitted to remain at and about the place where appellee says he tripped and fell. The operator of the machine testified that some two thousand pounds of material had been lying around there for a week.

The uncontradicted proofs in the ease showed that the loose material on the floor at the .entrance to the cross-cut, where appellee ■ claims to have fallen,- ere-, ated a dangerous condition and that -the place was neither marked nor reported by the mine examiner as required by law. The preponderance of the evidence also showed that appellee was injured at this place and that the dangerous condition which had existed there for some time, was the direct and proximate cause of his injury.

Appellant’s criticism of the fifth instruction is, that it told the jury that in estimating plaintiff’s damages, if they fonnd he was entitled to recover, they might consider among other things, to what extent, if any, he may have endured physical and mental suffering, as a natural and inevitable result of his injury, when there was no allegation in the declaration of any kind, claiming damages for mental suffering. It is true as stated in Garvey v. Elevated R. R. Co., 155 Ill. App. 601, that to entitle mental suffering to be included as an element of damages, in cases of personal injury, there must be a suitable averment of the fact of mental suffering in the declaration, but the several counts of the declaration in this case alleged that appellee “has suffered and will suffer much pain and anguish on account of said injuries and the loss of his eye.”

We are of opinion that the above allegation contained in each count of the declaration was, when taken in connection with the evidence, showing the nature of the injury suffered by appellee, sufficient to warrant the inclusion of mental suffering as an element of damages. It may also be said that the proof showed appellee’s loss of wages and doctor’s bills incurred by him, amounted to something over $400, so that the amount allowed him as damages for the loss of his eye and minor injuries, would amount to less than $900, which would not be excessive were the question of mental suffering wholly eliminated.

The judgment in this case will be affirmed.

Judgment affirmed.


text:
    Dan Middleton, Appellee, v. Everett A. Shanafelt, Appellant.
    Appeals and errors—when finding of chancellor not disturbed. The finding of a chancellor will not he set aside as against the weight of the evidence unless clearly and manifestly so.
    Bill in equity. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Jonas & Haley, for appellant.
    Kagy & Vandervort, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in equity, growing out of the following acts and circumstances: In 1905 James L. Middleton, the father of appellee, who was employed by the Sandoval Coal and Mining Company at its mine at Sandoval, Illinois, purchased 160 acres of land located about a mile from Sandoval and gave a note secured by mortgage on the same for $3,200. Some six months later he conveyed the coal and mineral rights under the land to the Sandoval Coal and Mining Company for an expressed consideration of $4,-000. A few months afterwards the Coal and Mining Company and its superintendent Mr. Marshall, who owned most of the stock and with whom James L. Middleton appears to have been closely connected, went into bankruptcy, and about the same time Middleton went to appellant Shanafelt and offered to sell him said premises. Shanafelt then consulted with his brother-in-law, Albert A. Holstlaw, and they determined to make the purchase. They then executed a note to James L. Middleton for $800 and each took a deed from him to eighty acres of the land. These deeds contained the following, among other provisions :

“Except the royalty to the coal and other minerals lying beneath the surface of the above described tract of land previously deeded to the Sandoval Coal and Mining Company” and “subject to a mortgage for $3.200 in favor of James H. Garrison.”

Upon the trial both appellant and Holstlaw testified that they were to pay only $800 for the land and that Middleton said the Sandoval Coal and Mining Company was to pay off the mortgage. Middleton denied this and stated that the consideration for the land was to be $25 an acre or $4,000 in all; that of this amount Shanafelt and Holstlaw were to pay him $800 and assume the mortgage of $3,200 on the premises, which would make the total consideration $4,000. Appellee and Holstlaw subsequently paid $192 interest on the mortgage indebtedness of $3,200 but claim that they did so at the request of James L. Middleton. In the deed conveying the coal interests to the Coal and Mining Company, no mention was made of the mortgage indebtedness on the premises to Garrison.

The proof as to the value of the premises was somewhat conflicting and covered quite a range but it appears to show that the premises without the coal rights, were at the time of the sale to Shanafelt and Holstlaw, worth at least the sum of $4,000 which Middleton claimed to have been the price agreed upon.

The bankruptcy proceedings above referred to, were delayed from time to time, but in 1907 the Coal Company was adjudged a bankrupt and John S. Stonecipher was appointed trustee and took possession of the coal rights under the land in question. In June, 1908, tbe interest being in default on the $3,200 mortgage on the premises, the holder of the notes began foreclosure proceedings, making appellant Shana-felt, said Holstlaw, John S. Stonecipher, trustee, and James L. Middleton, defendants. Proceedings were had which resulted in a decree finding that by the deeds to them above mentioned, appellant and said Holstlaw had each assumed and agreed to pay one half of said encumbrance of $3,200 on said premises, together with the interest thereon; that there was due to the several complainants who were holders of the notes, from said Shanafelt and Holstlaw, for principal and interest on said notes, certain sums therein mentioned; and it was decreed that said Holstlaw and Shanafelt pay to the complainants within ten days from the date of the decree, said sums of money with interest, and that in default of said payments being made, the said mortgaged premises be sold; that in case the moneys arising from said sale should be insufficient to pay the amount with interest due complainants, together with the costs and the expenses of sale, that the amount of said deficiency should be reported by the master and that upon the confirmation of his report said Holstlaw and Shanafelt, who were found personally liable for the payment of the said debt, pay to the complainants the amount of such deficiency and that complainants have execution therefor.

The land was subsequently sold by the master for $3,721.55, which was the full amount of the debt, interest and costs, and a certificate of purchase given to the purchaser. Afterwards an arrangement was brought about by James L. Middleton, with the trustee in bankruptcy and certain persons interested in the mine, as bond holders, whereby the mine property was sold to appellee, Dan Middleton, the son of James L. Middleton for $100,000, payable in monthly installments of $2,500 each. After some $17,000 of the purchase price had been paid on the new contract, a new company was formed to take over the property and pay the balance of the purchase money. Before appellee could give the new company a perfect title to the property, the lien created by the decree of foreclosure had to be removed, and to accomplish this, appellee, with the assistance of the trustee, redeemed the premises from the master’s sale, by paying the full amount of the debt, interest and cost to the master in chancery, thereby freeing the premises from the indebtedness and the lien of the decree. When this had been done, the property was conveyed to appellee who then deeded the same to the new company. Subsequently" appellee filed his bill in this proceeding against appellant and Albert A. Holstlaw, to compel them to repay to him the money advanced by him to the master in chancery, to redeem the premises from said sale or such amount as the court should find right and equitable to be repaid to him on account of the redemption money he had so advanced.

Hpon the trial the court found the issues in favor of appellee; that appellant and Holstlaw had agreed to pay the mortgage indebtedness on said premises as a part of the purchase price therefor and that appellant and Holstlaw had each become liable to pay appellee one half of the money so paid by him to the master in chancery to redeem said premises; that the premises owned by Holstlaw were worth $50 per acre, those owned by appellant $45 an acre and the coal underlying the land the sum of $12 per acre. It was accordingly decreed by the court that appellant and Holst-law each pay one half of the redemption money so paid by him and that appellee have a lien upon said premises owned by them, for the payment of the same.

It was further ordered that in case of a failure to pay said amount within the time fixed by the decree that said premises, except the coal and other minerals lying beneath the surface thereof, be sold to satisfy said debt and the costs. From this decree appellant Shanafelt has alone appealed.

It is contended on behalf of appellant here, that there is no equity shown in the case, that the remedy of appellee, if any, is at law, that there is no evidence to support the findings of the decree, that the evidence in the case shows that appellee never had any interest in the property but that James L. Middleton was the real party in interest and if any payment was made of the indebtedness for the redemption of the premises, it was a payment by James L. Middleton of his own indebtedness for the repayment of which he had no claim upon appellant and Holstlaw.

If the findings in the decree are supported by the evidence, then appellant and Holstlaw assumed the payment of the mortgage indebtedness at the time they purchased the top premises. They did not pay the debt but permitted the premises, including the coal interests, to be foreclosed and sold. They refused to redeem from the sale and it became necessary for appellee, who held a contract for the purchase of the premises, in order to protect large interests, to redeem from the foreclosure sale. That appellee had such an interest as entitled him to redeem from such sale, cannot be questioned. He was not a volunteer in any sense of the word but was compelled to make the redemption to protect very valuable interests. Having done this he had a right to compel appellant and Holstlaw to repay him for the money so advanced by him on their behalf. This right of recovery was an equitable right, whether it be in the nature of contribution or exoneration, which he had a right to enforce by securing a lien upon a portion of the premises owned by appellant and Holstlaw, that is, the surface without the coal rights. Even if it could be said that the other proofs in this case did not sustain the finding of the court that appellant and Holstlaw assumed the payment of the mortgage indebtedness at the time they purchased the premises, yet the decree of the court in the foreclosure proceedings, introduced in evidence here, where the mortgage indebtedness was declared to be their debt and an execution awarded against them for any deficiency in case the premises did not sell for enough to pay the debt, was a sufficient basis to sustain appellee’s claim for repayment from them in this suit.

The proofs in the case therefore appear to have established the liability of the two defendants to the bill. Nor does the evidence appear to us to show as claimed by appellant, that the' real party in interest is James L. Middleton and that Dan Middleton had no interest in the premises in question which entitled him to maintain this suit. On the contrary the evidence discloses that James L. Middleton disposed of all his interest in the property long prior to the time this suit was brought. Appellee sometime afterwards obtained his interest in the same through a contract of purchase made with the trustee in bankruptcy. It is immaterial whether he did this at the request of James L. Middleton, the trustee, or the bond holders interested in the coal rights, or whether it was done upon his own initiative. Under the contract he had a legal right to make the redemption and was the only one who had the right to take a deed from the trustee to the property. The liability of appellant and Hoist-law to pay the debt had already been established by the decree in the foreclosure suit before appellee redeemed the premises. This suit was properly brought in the name of appellee.

The equities in the case appear from the record to be with appellee and we find no reason for disturbing the decree of the court below.

Decree affirmed.