text:
    William O’Rourke, Appellee, v. Elliott W. Sproul, Appellant.
    Gen. No. 14,490.
    1. Pleading—when declaration sufficiently avers that plaintiff was rightfully upon the premises upon which he was injured. Held, that after verdict the declaration in this case sufficiently averred that the plaintiff was rightfully upon the premises in question at the time of his injury.
    2. Pleading—when declaration sufficient after verdict. After verdict the rule is where there is a defect or omission in the pleading in form or substance which would have been fatal on demurrer, yet if the issue joined is such as necessarily requires proof of the facts defectively stated, or omitted, without which it cannot be presumed that the judge would direct or the jury would give a verdict, such defect, imperfection or omission is cured by the verdict.
    3. Pleading—how declaration aided after verdict. Instructions may strengthen the intendments of the declaration after verdict where they do not exclude the presumptions which ordinarily would obtain.
    4. Personal injuries—when duty to exercise care with respect to persons rightfully upon premises arises. If it is alleged that a person at the time of his injury was rightfully upon the premises in question, the duty of the person or persons in possession of such premises to exercise ordinary care with respect to him arises if it is alleged and shown that such person and his servants knew or might have known by the exercise of ordinary care that such person was upon such premises. It is not necessary that it he alleged and shown that such person knew or had reason to apprehend that the injury in question might result from his negligence.
    5. Instructions—when cannot he complained of. One party cannot complain of the giving of an instruction at the instance of his adversary where he himself has asked for a substantially similar instruction.
    6. Instructions—when fact may he assumed. If there is no controversy in the evidence with respect to a particular fact the court may in its instructions assume the existence of such fact.
    7. Evidence—when opinion evidence properly excluded. Opinion evidence is properly excluded where the witness has not been qualified as an expert with respect to.the matter as to which his opinion is asked.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 26, 1909.
    Statement by the Court. This action was brought in the Superior Court to recover damages for personal injuries alleged to have been suffered by the plaintiff, appellee, by reason of the negligence of the defendant, appellant. The jury rendered a verdict for the plaintiff for $5,800. The court overruled a motion for a new trial, and entered judgment on the verdict. This appeal is prosecuted to reverse the judgment.
    The record discloses little controversy as to the facts. The evidence tends to show that during the early part of the year 1906 the South Side Elevated Eailroad Company was constructing a power-house on State street near Thirty-ninth street in the city of Chicago. Appellant Sproul had the contract for the mason work. The Hamler Boiler & Tank Company was employed by the railroad company to install in the building some ash-hoppers. Appellee O’Eourke was a boiler maker employed by the tank company in this work. While thus employed in one of these ash-hoppers on January 8, 1906, appellee was injured. At this time appellant’s workmen were employed in taking down a scaffold which had been used in connection with the mason work of the building. The hopper in which appellee was working was suspended from I-beams of the first floor of the building, the top of the hopper being riveted to the I-beams. The top of the hopper was about ten feet by twelve feet in dimension. The east side of the hopper was about eighteen feet from the east wall of the building. The top of the hopper in which appellee and others were working was partially covered by four or five planks, running north and south, with open spaces between the planks about ten inches in width. These open spaces were left for the purpose of admitting light to the hopper to enable the workmen in the hopper to perform their work.
    On this day, and for two or three days prior thereto, a railroad tie about eight feet long had been lying over the hopper in a northeast and southwest direction. The tie rested partly upon the two easterly planks above mentioned, its end extending about eight inches over the edge of the second plank from the east. About one-half of the tie rested on the flooring east of the hopper and the other half on the planks over the hopper.
    The scaffold which was being taken down was located on the first floor of the building and against the east wall. The running boards of the scaffold were supported by upright planks about sixteen feet long, ten or twelve inches wide, and two inches thick, and cross-pieces of the same material eight or ten feet long. One of these upright pieces with a cross-piece nailed to it was pushed over, or allowed to fall over, by the men who were taking down the scaffold, and it struck the end of the tie in such a manner as to cause it to fall into the hopper, crushing appellee’s hand.
    The evidence tends to show that appellant’s men had been warned frequently to be careful in their work, and that they knew men were working in the hopper.
    O’Donnell, Dillon & Toolen and Reynolds & Purkhiser, for appellant.
    Pringle, Northup & Terwilliger, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The first ground urged for a reversal of the judgment is that the declaration does not, nor does any count thereof, state a cause of action. The consideration of this question requires us to examine the declaration. The first count is as follows:

“For that whereas, heretofore, to-wit, on the 8th day of March, A. D. 1906, the defendant, in the city of Chicago, county of Cook and state of Illinois, was engaged in the construction of, and was assisting as a contractor and otherwise in the construction of a certain building, to-wit, a power house for the South Side Elevated Railroad Company and was employing certain servants then and there in said work and had charge of and was using in said work on the interior of said building certain servants then and there in said work, and had charge of and was using in said work on the interior of said building certain scaffolding made of planks and boards, and whereas the plaintiff was then, and there employed (but not by the defendant) in and about a certain ash hopper therein, which fact was then and there well known to the defendant and his said servants or might have been known to them by the exercise of ordinary care on their part, it became and was the duty of the defendant by his servants in that behalf then and there to use ordinary and reasonable care in and about the work of the defendant, so as not to injure the plaintiff and so as to not expose him' to unreasonable danger; yet the defendant, not regarding his duty in that behalf, by his said servants then and there negligently knocked, pushed and pulled down a part of said scaffold and the planks and boards thereof, and suffered the same to fall with great force down to and upon a certain timber then and there, whereby said timber was then and there caused to fall with great force and violence upon and against the plaintiff who was-then and there and at all times herein mentioned in the exercise of due care for his own safety, in consequence thereof plaintiff’s right hand was then and there crushed and shattered, by said timber, so that a part of said hand had to be, and was amputated, and so that plaintiff then and there became and was sick, sore, lame, disordered and permanently injured, -during all of which time, to-wit, from thence hitherto he suffered great pain.

“Plaintiff avers also that by reason of his said injuries he was then and there obliged to expend and become liable for divers large sums of money in endeavoring to be cured and healed of his hurts and wounds occasioned as aforesaid, and that by reason of said injuries he has been hindered and prevented from attending to his ordinary affairs and business, during all the time from thence hitherto, and has been hindered during all the time from thence hitherto from engaging in his usual occupation, to-wit, that of a boilermaker’s helper, and has thereby been prevented from earning divers large sums of money as wages, to-wit, Five ($5) dollars per day, and that by reason of said injuries he will be prevented from engaging in said occupation during the rest of his life.”

The second count differs from the first in alleging a failure to use certain safety appliances in lowering the scafford as the specific negligence relied on.

The third count differs from the first in alleging a failure to warn appellee before throwing down the scaffold, and that the timber was in a position above the plaintiff.

As no demurrer was filed to the declaration or any count thereof, the precise question presented on the declaration is whether, after verdict, the declaration or each count thereof is sufficient to support the judgment.

The specific contention here made by appellant is that the following facts appear from each count of the declaration: (1) that .the accident which resulted in the injury to the plaintiff took place on private property; (2) that no special relationship from which the law implies special duties existed as between the. plaintiff and defendant; and (3) no claim is made that the injury was wantonly or wilfully inflicted. These facts being conceded, it is contended that it was incumbent on appellee, in order to make out a cause of action, to allege facts from which the law will imply the duty of appellant to take reasonable dr ordinary care to avoid injuring appellee; and (2) facts from which it would appear that there was a breach of that duty by appellant or his servants. And it is claimed that no count in the declaration complies with either of these requirements. To sustain this claim it is urged that the averment that “the plaintiff was then and there employed (but not by the defendant) in and about a certain ash-hopper therein” is not a sufficient averment of the right of plaintiff to be upon the premises by the invitation, expressed or implied, of the owner, for it is necessary to supply the words “by the owner or by some one authorized by the owner to employ him”, or their equivalent.

In considering the sufficiency of this averment of the several counts of the declaration it must be borne in mind that the declaration shows that appellant was not the owner of the premises on which the injury is alleged to have occurred, but he was there as a contractor doing certain work in the construction of the power house. And it should also be noted that according to the averments of each count the negligence averred is not mere passive negligence or omission of duty such as failure to keep premises or machinery in repair or permitting pitfalls on the premises. On the contrary the declaration avers affirmative acts of negligence, wrongful acts committed, which produced the injury. The reasoning, therefore, of the cases, such as Gibson v. Leonard, 143 Ill. 182, which define the duties of owners of premises to trespassers or mere licensees and require no duty of the owner to the licensee “except the duty to refrain from affirmative or wilful acts that work an injury”, has no application here. We think the averment is a sufficient allegation that plaintiff was there rightfully, to support a judgment, after verdict.

The several counts aver that the defendant and his servants knew or might have known, by the exercise of ordinary care, that the plaintiff was at work in the hopper. From this fact the duty of the defendant arose to protect the plaintiff from the injury of which he complains. In this essential respect the declaration and each count thereof differs from that under consideration in McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232, and the declaration in Mackey v. Northern Milling Co., 210 id. 115, cited by appellant. In the McAndrews case supra, at page 238, it is said: “It does not appear from the averments of the original declaration that the defendant knew, or was bound to know, that the plaintiff was on said car or in its vicinity, or that he was likely to be injured by the car upon which he was at work being moved by the cars being handled by the servants of the defendant. The original declaration therefore fails to show that the defendant owed the plaintiff any duty not to throw the cars being moved by its engine against the car upon which he was at work, without giving the plaintiff timely warning. The declaration, therefore, in that regard was fatally defective.” It is obvious, we think, that the declaration in the above cited cases were considered insufficient for lack of an averment that the defendant knew of the presence of the plaintiff where he was alleged to be, and that if the declarations had contained such allegations, they would have been sufficient.

It is further urged that there is no averment in any count that suggests or implies that "the defendant knew or ought to have known that the timber was in such a position as to be liable to he struck by the falling scaffold, or that the surroundings of the timber, and the position of the plaintiff were such as to render it probable that the timber, if struck by the scaffold, might be caused to fall upon and injure the plaintiff.

We know of no well considered authority which holds that when the plaintiff in his declaration has averred facts showing the existence of a duty to the defendant, the failure to perform that duty, and a resulting injury, he must go further and also allege that the defendant knew or had reason to.apprehend that the injury might result from his negligence, otherwise the declaration will not sustain a judgment.

In Illinois Steel Co. v. Hanson, 97 Ill. App. 469, it was contended that the declaration did not state a cause of action in that it failed to allege that to cool the cobbles with water would cause them to act differently than if cooled without water, and “that it fails to allege facts from which it could he said that the defendant, in the exercise of ordinary and reasonable care ought to have apprehended that to cool cobbles with water or to fail to warn the plaintiff thereof would likely endanger the latter.” The court held the declaration sufficient, after verdict, to sustain the judgment. On appeal the ruling was sustained and it was also said: “The defendant having filed a plea thereto, cannot now question its sufficiency upon the mere ground that its allegations are- defective. ’ ’ Illinois Steel Co. v. Hanson, 195 Ill. 106.

In City of Elgin v. Thompson, 98 Ill. App. 358, the declaration did not in express terms aver that the roller was calculated to frighten horses or did frighten the horse drawing plaintiff, nor that the city should have known or did know it was calculated to frighten horses in time so it could have removed it before the injury. The declaration was not questioned by demurrer. It was held: “After verdict the rule is, where there is a defect or omission in a pleading, in form or substance, which would have been fatal on demurrer, yet if the issue joined is such as necessarily requires proof of the facts defectively stated, or omitted, without which it cannot be presumed that the judge would direct or the jury would give a verdict, such defect, imperfection or omission is cured by the verdict. (Twin City Gas Works v. The People, 156 Ill. 387; Gribben v. Callaghan, 156 Ill. 549.) ” See also C. & E. I. R. R. Co. v. Hines, 132 Ill. 161; Glue Company v. Wietzychowski, 227 id. 338; Postal Tel. Co. v. Likes, 225 id. 249; Grace & Hyde v. Sanborn, 124 Ill. App. 472.

We are of the opinion that all the counts in the declaration are sufficient after verdict to support the judgment. C. C. Ry. Co. v. Jennings, 157 Ill. 274.

In our opinion the trial court did not err in refusing to give' the peremptory instruction asked by appellant at the close of all the evidence. The evidence supports the declaration and warrants the verdict of the jury.

Error is assigned upon the ruling of the court in giving to the jury, at the request of the plaintiff, the seventh, eighth, ninth and tenth instructions. These instructions are as follows:

1 ‘ 7. The court instructs you that the law does not require the plaintiff to prove all the counts of his declaration. It is sufficient if you believe from all the evidence in the case, that he has established his case as alleged in any one of them by a preponderance of all the evidence.

“8. The jury "are instructed that if it is established by a preponderance of the evidence, taking into consideration the facts and circumstances proven in this case, and also all reasonable inferences to be deduced therefrom, that the plaintiff at and before the time of the injury in question was in the exercise of reasonable care for his own safety, and that the defendant in this case, or his agents,, or servants, acting within the scope of their employment, were guilty of negligence, as alleged in the plaintiff’s declaration, or some count thereof, and that the plaintiff was injured, as alleged in the declaration, as the proximate result of the said negligence, if any, of the defendant, his agents, or servants, then you should find in favor of the plaintiff.

“9. The jury are instructed that negligence is the omission to do something which an ordinarily reasonable person, guided by those considerations which ordinarily regulate human affairs, would do, or the doing of something which an ordinarily prudent and reasonable man, under the circumstances, would not do; and you are further instructed that if you believe from the evidence that the plaintiff was injured because of the negligence of the defendant, his agents, or servants, as charged in the declaration, or some count thereof; while the plaintiff was in the exercise of due care and caution for his own safety, then the plaintiff is entitled to a verdict.

“10. The jury are instructed that it was the duty of the defendant, his agents, or servants, to exercise due care and caution as to the safety of the plaintiff and other persons rightfully working in and about the premises, and if you believe from the evidence that the defendant, through his agents, or servants omitted to do something which an ordinarily reasonable person, guided by those considerations which ordinarily regulate human affairs, would do, or did something which an ordinarily prudent and reasonable person, under the circumstances shown in evidence, would not do, as charged in the decaration, or some count thereof; and if you further believe that, on account of some failure or omission, if any, on the part of the defendant, his agents, or servants, the plaintiff was injured while exercising due care and caution for his' own safety, then you must find for the plaintiff.”

The first objection to these instructions is based on the proposition that the first count of the declaration does not state a cause of action. This point is disposed of by what we have said above.

The second objection is that they do not give the defendant the benefit of the defense of assumption of a known risk. We do not understand that there is.any such question in the case.

• With reference to the errors assigned upon the instructions given, it has been repeatedly held that one party cannot complain of the giving'; of an instruction at the instance of his adversary where he himself has asked for a substantially similar instruction. W. C. St. R. R. Co. v. Buckley, 200 Ill. 260; Consolidated Coal Co. v. Haenni, 146 id. 614; Quincy Horse Ry. Co. v. Rankin, 123 Ill. App. 472; Marquette Coal Co. v. Dielie, 208 Ill. 123; Chicago & Alton R. R. Co. v. Harrington, 192 id. 9. At the instance of appellant, instruction No. 26 was given by the court. This instruction contains the same subject-matter as instruction No. 7 quoted above, and contains the same defect now urged against the seventh instruction. Instructions numbered twenty-three and twenty-four, requested by defendant, informed the jury that the defendant owed the plaintiff the duty of exercising ordinary and reasonable care to avoid injuring him. Under the practice and the authorities cited above, appellant is precluded from urging upon this court that the declaration does not allege facts showing that duty, or that the instructions given at the request of plaintiff stated that such was the defendant’s duty.

Instructions may strengthen the intendments of the declaration after verdict, where they do not exclude the presumptions which ordinarily would obtain. In Cribben v. Callaghan, supra, the court say: “The ordinary presumptions which obtain after verdict, and by operation of which a defective statement of a good cause of action is said to be cured, may sometimes be excluded by the character of the instructions given. The converse of this must also be true, namely, that such presumptions will be indulged in where the instructions favor them, and do not exclude them.” The jury in this ease were told to consider the instructions as one connected series, each to be read and understood in the light of the others. The sixteenth instruction required the plaintiff to prove that he was lawfully at or near the place where the scaffold was being taken down, etc., and the jury must have so found. This instruction, together with defendant’s instructions twenty-three and twenty-four, would aid the declaration if it needed aid in this particular. •

Whát we have said above disposes of one objection made to the tenth instruction, namely, that it assumes that the plaintiff was rightfully on the premises. It might be said further on that point, that there is no controversy in the evidence as to that fact, and therefore, the court might assume it as a fact in its instructions.

It is further urged against the tenth instruction, that the last clause of it is not in any way limited by reference to the declaration, and it ignores the question whether the defendant owed the plaintiff any duty to take ordinary care to avoid injuring him. We think, however, that the instruction is not open to the construction placed upon it. The instruction is not well-framed, nor is it couched in accurate language, but we cannot think the instruction worked any injury to appellant in view of the evidence and the other instructions given.

Complaint is made of the rulings of the court on certain questions put to the witness Hesprich, by counsel for appellant. The record shows that this witness was a common laborer and had been engaged “for off and on” in taking down scaffolds during a period of two years. He had testified that he and a fellow-laborer by the name of Barra had used ropes in lowering all of the uprights, except the last two. He was then asked: “Q. Is there any other way of taking down the two last putlogs except the way you took them down?” He answered “No, sir”. This answer was stricken out on motion of the plaintiff.

The ground of the objection to the question urged was that it called for the conclusion of the witness. The witness had not qualified as an expert upon that subject. Then, again, the question at issue was not whether or not they could be taken down in any other way. We do not think the court erred in sustaining an objection to the question, and striking out the answer.

The next question was, “Do you know how the last putlogs are always taken down in this kind of scaffolding?” The court sustained an objection as to the form of the question. The question simply called for the knowledge of the witness upon the subject, and his answer one way or the other would not tend to prove any other fact. But assuming that he had knowledge on the subject, it would not be of any importance to appellant unless it was followed by further inquiry, which was not done. The ruling therefore was harmless to appellant. The court properly struck out of the answer to the next question the conclusion of the witness, “that is the only way”. The question called for a fact only—in what way they took down the last two putlogs in this case—not whether it was the only way.

We think the court properly sustained the objection to the question: “Are ropes ever used in taking down the two last putlogs?” The question was not material under the evidence. And for the same reason the court did not err in sustaining the objection to the question: “What would be the result, Mr. Hesprich, if you were to use ropes on the last two put-logs ? ’ ’

We have considered all of the grounds relied upon by appellant for a reversal of the judgment, and we find no reversible error in the record. The judgment " is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    John R. Rutter et al., Executors, Appellees, v. Agnes McDonnell Maher et al., Appellants.
    Gen. No. 14,494.
    1. Forcible entry and detainer—character of action of. The action of forcible detainer while not a common law action is an action at law relating to real property.
    2. Abatement—when death of sole defendant does not effect. The action of forcible detainer survives as against the heirs of a sole defendant.
    3. Landlord and tenant—rights of heirs of lessee. The rights of the heirs of a lessee are no greater than the rights of such lessee would have been; if it appears that the right of possession of the lessee had terminated prior to her death and an action of forcible detainer had been instituted against such lessee, recovery of possession may be had by the lessor from the heirs upon their refusal to surrender their possession and being substituted as parties defendant to the action.
    Forcible detainer. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 26, 1909.
    Statement by the Court. This action in forcible detainer was commenced by appellees against one Mary McDonnell before a justice of the peace of Cook county, Illinois, on August 14, 1903, to recover possession of the property described in the record. The trial before the justice of the peace resulted in a judgment for appellees and against the defendant, Mary McDonnell, for the possession of the premises. Mary McDonnell perfected an appeal from the judgment to the Circuit Court. When the cause was reached for trial in the Circuit Court, February 18,1907, the attorneys for appellants informed the court that Mary McDonnell, the defendant, had died in the preceding December, and thereupon the case was passed to be taken up for trial on five days’ notice.
    On March 7,1907, the plaintiffs suggested the death of the defendant, and moved the court for leave to ^substitute as defendants in the cause Agnes McDonnell Maher, William Maher and James McDonnell, heirs of Mary McDonnell, deceased, former defendant, and for a summons to issue against said new defendants. An order of court was thereupon entered directing that the cause proceed against said heirs of Mary McDonnell and that a summons issue against them. The summons was duly issued and served on the new defendants by the sheriff on March 11,1907. The new defendants entered their appearance in writing by their attorney on April 17, 1907.
    The cause was then placed on the trial calendar and was reached for trial on September 20, 1907, and the trial resulted in a verdict and judgment in favor of the plaintiffs and against the defendants for possession of the premises.
    The evidence in the record tends to show that the original defendant, Mary McDonnell, in her life-time leased the premises in question, with other premises, from the plaintiffs, appellees, by a written lease dated May 1, 1883, for one year for fifty dollars, providing among other things that in order to enforce forfeiture for non-payment of rent it shall not be necessary to make demand on the day rent shall become due, but failure to pay the same at the place provided, or a demand and refusal to pay on the same day or at any time on a subsequent day shall be sufficient, and after such default shall be made, the party of the second part, and all persons in possession under her, shall be deemed guilty of forcible detainer of said premises under the statute. The lease further provided, “The covenants herein shall extend to and be binding upon the heirs, executors and administrators of the parties to this lease”.
    The second lease between the same parties is dated April 28, 1887, and leased the same premises from May 1, 1887, to May 1888, and contained the same covenants.
    The evidence in the record tends to show that in the year 1890, or 1891, appellees having sold off portions of the land to the Santa Fe Railroad Company and to the Sanitary District of Chicago, there was left only a small portion of the land formerly occupied by Mary McDonnell, the lessee. This land was not fenced, and the agent of appellees, under a mistaken belief that the house occupied by Mary McDonnell and appellants was included in the land belonging to the Drainage District, did not press Mrs. McDonnell for rent or for possession for several years, when a survey was made and it was discovered that the house in which Mrs. McDonnell and appellants, lived was oh the land still owned by appellees. Possession was demanded of Mary McDonnell, lessee, and she refused to give possession. On January 9, 1903, a written notice for the possession of the premises was served upon her, and she refused to give possession. This action was then brought against her to recover the possession. Mary McDonnell, Agnes McDonnell Maher, William Maher and James McDonnell occupied the premises in question until the time of the death of Mary McDonnell in December, 1906, and appellants still continue to occupy the premises.
    Edward J. Kelley and Henry J. Gtbbs, for appellants.
    Crafts & 'Stevens, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellants contend that upon the death of Mary McDonnell, the sole defendant, this action abated.

The action of forcible detainer, while not a common law action, is an action at law relating to real property. St. Louis Stock Yards v. Wiggins Ferry C.o., 102 Ill. 514, 520. As such we think it falls within the provisions of sections 11 of chapter 1, entitled Abatement, of the Revised Statutes. In Gruyer v. Wookey, 18 Ill. 536, the court held that the action of ejectment survived under this section of the statute, although at common law the action did not survive. At page 538 of the opinion the court say: “The only inquiry is,- as we have said, as to the survivor of the right,— whether that be title or possession,—and to whom it belongs, in order to substitute a plaintiff. And to know who shall be summoned as defendant, we inquire upon whom the law casts the right claimed in the action, or the responsibility of answering for the sum of money or damages to be awarded plaintiff in the action. Where no one is entitled to the one, nor liable to the other, the cause of action does not survive. But where both are true in law and fact, the action survives to the party next entitled, and against the party next liable, as claimant of the specific thing in dispute, or the estate out of which the recovery is to be satisfied.

“Testing the case upon these plain principles and we have no difficulty in finding the heir of a sole defendant, a proper substitute in an action of ejectment, in which his title, as heir, and that of his ancestor, are both in issue. Were a new suit brought against him, as heir, no more or less would be put in issue if he contested the plaintiff’s title. If he do not he may renounce as well under the revival as upon a new suit.

“So under every aspect of the case, and, without violating any of the old technicalities or analogies of the common law, in principle, we think this action now survives as well against the heir of a sole defendant as against surviving defendants.”

So here, in this statutory action at law, where the right of possession is involved as in ejectment, no reason is apparent why under the section of the statute above cited, the action of forcible detainer should not survive as well against the heirs of a sole defendant as the action of ejectment, for which it is a substitute, or additional remedy, in certain cases provided in the statute. Nothing could be gained, and no right would be subserved by requiring the plaintiffs to dismiss the action against Mary McDonnell, and compelling, them to commence a new suit against the appellants.

The evidence is undisputed that Mary McDonnell leased the premises from appellees and paid rent for and occupied the premises under the lease; that after the expiration of the lease a written demand was made upon her to deliver up the possession thereof and that she refused to surrender the possession, and that she remained in possession until her death. It also appears that appellants are the heirs of Mary McDonnell and that they lived with her on the premises up to the time of her death, and that they continued to occupy the premises after her death, refusing to vacate the same. Appellants are bound by the covenants of the lease and have no other or greater rights than Mary McDonnell had at the time of her death. Hence appellees have the right to bring an action against them of forcible detainer for the possession of the premises, and in our opinion the case falls within the letter and intent of section 11 of the Abatement Act, and appellants were properly brought before the court in this action.

Under the facts shown in the record appellants are in possession of the premises in question under Mary McDonnell and must surrender possession to her landlords. Their refusal so to do makes them liable in this action, her right of possession having been terminated prior to her death. Hardin v. Forsythe, 99 Ill. 312-321; Doty v. Burdick, 83 id. 473-478; Cox v. Cunningham, 77 id. 545.

The trial court did not err in refusing to give the peremptory instruction requested by appellants, for no defense to the action was shown by the competent evidence offered. For the same reason the court did not err in giving to the jury the peremptory instruction in favor of the plaintiffs. There is no evidence in the record on which in the eye of the law the jury could reasonably find in favor of appellants.

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

Affirmed.


author: Mr. Justice Baker

text:
    In the Matter of the Petition of John Biebel, Insolvent Debtor, Appellant, v. Louis Kuttnauer et al., Appellees.
    Gen. No. 14,475.
    1. Capias ad satisfaciendum—when discharge from arrest will not he ordered. A defendant arrested under a capias ad satisfar ciendum will not be discharged if it appears that the judgment upon which such writ was issued was rendered in an action of which malice was the gist. Malice is the gist of an action to recover for the wrongful, wilful and fraudulent conversion of the money of the plaintiff by the defendant.
    2. Capias ad satisfaciendum—appropriate order upon denial of application for discharge. Where the petitioner seeking a discharge from an arrest made under a writ of capias ad satisfaciendum was released upon bail pending the hearing of his petition, the appropriate order upon the dismissal of his petition is to remand such petitioner to the custody of the sheriff.
    Petition for release under Insolvent Act. Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 26, 1909.
    Statement by the Court. John Biebel filed in the County Court his petition to be released from arrest and imprisonment under a ca sa issued out of the Circuit Court to the sheriff of Cook county on a judgment recovered against him for $1,550.35 in that court by Louis Kuttnauer et al., partners as Louis Kuttnauer & Sons, in an action on the case. The plaintiffs in the judgment answered the petition setting up the record of the judgment and the proceedings under the same; averred that the judgment entered in the Circuit Court was rendered in a cause in which malice on the part of John Biebel was of the gist of the action; that the judgment entered in said cause in the Circuit Court of Cook county was res adjudicata, and was conclusive as to the matters at issue in said cause, and that inasmuch as the malice of appellant was of the gist of the action, and also as the question of malice was settled in the former suit, the judgment entered therein was an effectual bar to any further dispute of that question between appellant and appellees, and by reason thereof, appellees, as respondents, prayed that the petition be dismissed. On the hearing of the petition the record of the judgment was put in evidence, the petitioner tendered a schedule of his property, which the court refused to accept, dismissed the petition and remanded the petitioner to the custody of the sheriff.
    The declaration contains only one count, which alleges that plaintiffs, doing business in Detroit, employed defendant to.sell tobacco in Chicago and to collect money from customers and remit the same to plaintiffs; that they agreed to pay him a certain commission on such sales, and that he accepted such employment and sold goods for plaintiffs, etc.
    The declaration=then proceeds as follows:
    “Plaintiffs further aver that at various times during the course of said employment the defendant, not regarding his duty in that behalf, but contriving to injure and defraud the said plaintiffs in this behalf, wrongfully, wilfully and fraudulently, and without the knowledge or consent of the said plaintiffs, and without any notice to them whatever, collected certain sums of money for said plaintiffs as agent of said plaintiffs under said contract, and wilfully and fraudulently converted the moneys so collected to his own use, amounting in the aggregate to a large sum, to wit: the sum of $2,000, by means whereof the said sums of money so wrongfully converted by the said defendant to Ms own use were wholly lost to the said plaintiffs.
    “And plaintiffs further aver that though often requested the defendant has always refused and still does refuse to pay said plaintiffs the said several sums of money thus wrongfully converted by the said defendant to the use of the defendant, to the damage of the plaintiffs of the sum of two thousand dollars (2,000) and therefore they bring this suit, etc.”
    To the declaration the defendant pleaded not guilty. The following is the verdict of the jury:
    “We, the jury, find the defendant guilty of wrongfully, wilfully and fraudulently converting to his own use the sum of fifteen hundred and fifty and 55/100 dollars, the money and property of the plaintiffs, with intent to cheat and defraud the plaintiffs out of the same, and we assess the plaintiffs’ damages at said sum of fifteen hundred and fifty and 55/100 dollars.”
    Judgment was entered on the verdict, the order of judgment containing an order, “that a writ of capias ad satisfaciendum forthwith issue etc.”
    George Remus and Joseph S. Labuy, for appellant.
    Moses, Rosenthal & Kennedy, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

The question whether malice was of the gist of the action in which the judgment was rendered on which the ca sa was issued is to be determined from an inspection of the record. We tMnfe that malice was of the gist of said action. The declaration alleged that the defendant wilfully and fraudulently converted to Ms own use, without the consent of the plaintiffs, Ms employers, money of the plaintiffs which had come to his possession under Ms contract of employment, with wMch to injure and defraud the plaintiffs. The jury found the defendant “guilty of wrongfully, wilfully and fraudulently converting to Ms own use the sum of $1,555.30, the money and property of the plaintiffs, with which to cheat and defraud the plaintiffs out of the same”, and the court entered judgment on the verdict. The question of malice on the part of the defendant was settled in the former suit, and having been once determined, the doctrine of res adjudícala applies and the judgment is a bar to any further dispute of that question between the parties. Jernberg v. Mix, 199 Ill. 254; Bank of Flora, v. Burkett, 101 id. 391; Penoyer v. The People, 105 Ill. App. 481; Masterson v. Furman, 89 id. 291; Bechman v. Menge, 82 id. 228; Beattau v. Evans, 57 id. 311.

The petitioner was released on bail pending the hearing of the petition, and on the dismissal of his petition on the hearing the order that he be remanded to the custody of the sheriff was proper. Jernberg v. Mix supra; People v. Hanchett, 111 Ill. 90.

The judgment of the County Court will be affirmed.

Affirmed.


author: Mr. Justice Bakeb

text:
    Thomas Vournakis, Appellee, v. John Maropulos, Appellant.
    Gen. No. 14,480.
    1. Reversal—when not awarded upon confession of errors assigned. If an appellee assigns cross-errors with respect to rulings which he has not saved for review, a confession of such cross-errors by the appellant will not result in reversal.
    2. Pleading—what counts may he joined. Counts in case and counts in trespass may, under the Illinois Practice Act, be joined, though they could not at common law.
    3. Verdict—when excessive. A verdict for $2,500 rendered in an action for assault is excessive where it appeared that the defendant struck the plaintiff on the head with a bottle inflicting a wound which left a scar but which was attended with no serious consequences.
    Tort. Appeal from the Circuit Court of Cook county; the Hon. Meebitt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 26, 1909.
    Stein, Maybe & Stein, for appellant.
    Mageudee, Thompson & Candee, for appellee.
   Mr. Justice Bakeb

delivered the opinion of the court.

This is an appeal from a judgment for $2,500 recovered by appellee against appellant in an action of tort brought against appellant, Choromokas, Nicholochachas, also called Nichols, Trowgus and Konchopulas. During the trial plaintiff dismissed as to Konchopulas.

The cause of action set out in the first count of the declaration is an assault and battery alleged to have been committed by all of the defendants on the plaintiff, December 17, 1903. The first additional count alleges malicious prosecution by all of the defendants in causing the defendant, Trowgus, to procure the arrest of the plaintiff on February 5, 1904, for disorderly conduct. The second additional count alleges malicious prosecution by all of the defendants in causing certain police officers to arrest the plaintiff on February 5, 1905, on a charge of carrying concealed weapons. The third additional count alleges malicious prosecution by all of the defendants in having caused the defendant, James Nichols, to charge the plaintiff with subornation of perjury and with having procured the arrest of the plaintiff on February 24, 1904, on that charge.

The defendants other than Konchopulas pleaded not guilty.

The court, of its own motion, instructed the jury to find all of the defendants not guilty as to the first and second additional counts, and to find the defendants Nicholochachas and Trowgus hot guilty as to the first count. The court also, at the request of the defendant, instructed the jury to disregard the evidence in support of the first and second additional counts of the declaration under which the court had instructed the jury to find the defendants not guilty. The jury found the defendants Trowgus, Choromokas and Nicholochachas not guilty, and the defendant Maropulos guilty, and assessed plaintiff’s damages at $2,500. The plaintiff did not move for a new trial as to the defendants found not guilty. Defendant Maropulos moved for a new trial and the court overruled his motion and entered judgment on the verdict against him.

In this court appellee wrote on the transcript of the record the following:

“And now comes the appellee herein and files cross errors:

First. The court erred in ruling out the ordinance of the city of Chicago, offered by appellee.

'Second. The court erred in instructing the jury to disregard all evidence under the first and second additional counts of the declaration herein.

Third. The court erred in instructing the jury to find all the defendants not guilty under the first and second counts of the declaration.

Fourth. The court erred in instructing the jury to find the defendants, James Nicholochacas and P. L. Trowgus not guilty under the first count of the declaration.

Fifth. The court erred in refusing to give proper instructions offered on behalf of the plaintiffs.

Magetjdee, Thompson & Candee, Attorneys for Appellee.”

and the appellant filed the following:

“And now comes John Maropulos, Appellant herein, by Stein, Mayer & Stein, his attorneys, and not waiving any of the errors heretofore assigned by him; confesses the following cross errors assigned by Appellee herein:

First. The first cross error assigned, which is as follows: ‘The Court erred in ruling out the ordinance of the city of Chicago offered by appellee.’

Second. The second cross error assigned by Appellee, which is as follows: ‘The Court erred in instructing the Jury to disregard all evidence under the first and second additional counts of the declaration herein.’

Third. The third cross error assigned, which is as follows: ‘The Court erred in instructing the Jury to find all the defendants not guilty, under the first and second counts of the declaration.’ ” ■

Appellant then moved, “for an order reversing and remanding said cause on the cross errors of appellee and the confession thereof by the appellant,” and the motion was reserved to the hearing.

There is in the record no judgment in favor of the defendants who were found not guilty, but only the order denying the motion of Maropulos for a new trial and a judgment against him on the verdict against him. Appellee has not, as plaintiff in the Circuit Court, saved for review, by this court, the rulings assigned for error in the cross errors here confessed by appellant. He did not except to the ruling of the court excluding the ordinance, referred to in his first cross error; he did not except to the instructions referred to in his second cross error, nor to the instruction referred to in his third cross error, and he has not, by his assignment of cross errors or otherwise, asked that the judgment against appellant be reversed. . The motion to reverse and remand, by reason of the cross errors assigned by appellee and the confession of certain thereof by appellant, will be denied.

Counts in case and counts in trespass may, under our practice act, be joined though they could not at common law. Krug v. Ward, 77 Ill. 603.

From the evidence the jury might properly find the defendant Maropulos guilty of the trespass alleged in the first count of the declaration. The evidence for the plaintiff tended to show that Maropulos struck plaintiff on the head with a bottle, inflicting a wound which left a scar but was attended with no serious consequences. For this trespass alone the damages awarded by the jury must, we think, be held excessive. If the judgment for $2,500 can be sustained, it must be sustained on the ground that from the evidence the jury might also properly find Maropulos guilty under the third additional count. The complaint on which that count is based was drawn by H. W. McEwen, who was then engaged in the practice of law in Chicago. It was sworn to February 24, 1904, before James C. Martin, a justice of the peace, by the defendant James Nicholas or Nickolochacas. A warrant for the arrest of the plaintiff was issued by Justice Martin.

March 2, 1904, on motion of the defendant a change of venue was granted to Justice Everett, and March 10 the case was heard by Justice Everett and the defendant discharged.

Plaintiff called Maropulos as a witness and asked him whether he did not pay money to Mr. McEwen to' prosecute plaintiff in March 1904 and at other times, and he answered that he did not; that he only paid money to Mr. McEwen when he himself was arrested; that he paid McEwen money when he himself was arrested for gambling in his saloon. Asked by plaintiff’s counsel, “Did you bring Trowgus, Nickolochacas, Konchopulas and Choromokas to McEwen’s office to have them make complaints against Vournakis”, he answered, “I don’t know anything about it,—only about this case.”

Plaintiff also called Mr. McEwen, who testified that he drew the complaint referred to in the third additional count; that he was paid for drawing the same by Nichols; that Maropulos only paid him for services to the charge of gambling against himself and for entering the appearance of defendants in this case and for services in relation to a claim against an insurance company. After many questions had been put to the witness and answered, touching the question whether he had ever been paid money by Maropnlos for his services in said prosecution of the plaintiff, the court said, “He may ask him now, after his recollection has been refreshed, whether Maropulos, one of the defendants in this case, ever paid him for services in this prosecution about he has testified”, and in answer he said: “No, I don’t remember that Maropulos ever paid me anything in connection with these prosecutions”.

There is no evidence tending to show that Maropulos advised or counselled Nichols to make the complaint which he made against plaintiff, or that he aided or abetted the prosecution of plaintiff on such complaint. We think the finding of the jury, necessary to support the verdict for $2,500, that plaintiff was guilty under the third additional count of the declaration, must be held to be against the evidence and not supported by sufficient evidence, and that the Circuit Court erred in overruling the motion of the defendant Maropulos for a new trial.

The motion of appellant to reverse on his confes-.sion of certain of the cross errors assigned by appellee will be denied, but for the error indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Gilbert VanDaalen, Appellee, v. John A. Power, Appellant.
    Gen. No. 14,486.
    Slander and libel—when “thief” not actionable. The words, “You are a thief,” are not actionable unless the defendant in speaking them intended to impute crime to the defendant. This intention will be presumed from the use of the words, if not explained; all of the conversation, the facts and circumstances attending it, are to be weighed and considered in determining whether in speaking those words the defendant intended to charge the plaintiff with a crime; and such words are not actionable where the only just conclusion that can be drawn from all the evidence is that the defendant did not intend to impute to, or charge the plaintiff with larceny, embezzlement or any other crime.
    Action on the case for slander. Appeal from the Circuit Court of Cook county; the Hon. Mobton W. Thompson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed March 26, 1909.
    MoArdle & MoArdle, for appellant.
    Harry C. Levinson, for appellee; Zach Hoeheimer, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $300 recovered by the plaintiff in an action on the case for slander.

Defendant was manager in Chicago for Collier & Son, publishers. Plaintiff was in the employ of said firm as a collector under a written contract, which provided for the payment to him of a per diem compensation and commissions on sales made by him, provided Collier & Son received ninety-five per cent, of the amount due on such sales. It further provided that plaintiff should report money collected on the day it was collected and remit the same in full, and that his compensation should be paid him at the Chicago office of Collier & Son or remitted to him from that office. Plaintiff was told that he had been docked one day’s pay, and on the morning of April 13, 1904, went to defendant’s room which was connected with the general office of Collier & Son in Chicago, and asked why he had been so docked. Defendant told him that it was because he had taken three days to do two days’ work. Plaintiff then announced to defendant that he then quit the service of Collier & Son and said to him, “I have got here a statement of what is coming to me and until I receive it I am going to keep the money in my pocket.’-’ Up to this point the conversation between plaintiff and defendant was in the private office of defendant and was not in the hearing of any third person. Plaintiff then went to the general office and handed to the cashier a true statement of the amount of money collected by him the day before, showing that the net amount so collected was thirty-nine dollars, but in place of turning over the thirty-nine dollars he tendered to the cashier seven dollars and ninety-three cents, claiming that on resigning he was entitled to deduct the difference between thirty-nine dollars and seven dollars and ninety-three cents for wages, commission and three dollars and fifty-five cents for one-half of the premium on his bond. The cashier refused to receive the statement without the thirty-nine dollars, and handed the statement to defendant, who was then In the general office of Collier & Sons, where fifteen persons were employed. The plaintiff testified that the defendant looked at the statement, said that plaintiff was not entitled to commissions until ninety per cent, of the amount of his sales was paid, and plaintiff claimed that he was entitled to his commissions; that more than sixty per cent, had been paid on his sales; that the defendant then said, “In retaining this money you are acting as a thief”; that plaintiff warned defendant to be careful with his words, and that defendant then said: “You are dishonest. You have swindled the firm for the last six months that I know of, and a thief you are and a loafer you are”. On his cross-examination he testified that he knew when defendant said he was a thief that he was referring to the fact that he had retained a part of the thirty-nine dollars he had collected; knew that he was referring to the particular transaction of plaintiff keeping money out of his collections. Witnesses called by the plaintiff corroborated the testimony of plaintiff that defendant called plaintiff a thief and a loafer, said that he had swindled said firm, but their testimony did not tend to contradict the testimony of plaintiff as to the conversation between plaintiff and defendant which occurred in the general office of Collier & Son immediately before the speaking of such words. The testimony of the defendant and of the witnesses called by him was that defendant did not say that plaintiff “was a thief”, or “was acting as a thief”, did not call him “a thief”, but their testimony did not tend to contradict plaintiff as to the conversation between plaintiff and defendant in the general office before, according to the testimony of the plaintiff, such words were spoken by the defendant.

It is not contended that any of the alleged defamatory words set out in the declaration other than the words, “You are acting as a thief”; “You are a thief”, are actionable.

The question whether these words were spoken by the defendant, of the plaintiff, must, under the evidence, be regarded as conclusively settled by the verdict.

“When ever language charged to be defamatory has any reference to or is connected with any other language or event which affects its meaning or effect, it must be construed in relation to such other language or event”. Townsend on Slander and Libel, sec. 134; McKee v. Ingalls, 4 Scam. 30; Winchell v. Strong, 17 Ill. 596; Fovall v. Hallett, 10 Ill. App. 265. We think that the words: “You are acting as a thief”, if spoken alone, do not impute a crime, and therefore are not actionable. Plaintiff alone testified to the speaking of said words, and he testified that they were spoken just after he had declared to defendant his intention to retain a part of the money he had collected; that they were spoken not alone, but as a part of the sentence; “In retaining this money you are acting as a thief”. If it could be held that the words: “You are acting as a thief”, used alone are actionable, still those words, used in the connection and under the circumstances that plaintiff testified they were used by the defendant, are not actionable.

The words, “You are a thief”, are not actionable unless the defendant in speaking them intended to impute crime to the defendant. This intention will be presumed from the use of the words if not explained. All of the conversation, the facts and circumstances attending it, are to be weighed and considered in determining whether in speaking those words defendant intended to charge the plaintiff with a crime. McKee v. Ingalls, supra; Winchell v. Strong, supra; Fovall v. Hallett, supra.

The conversation related to a present transaction, to present conduct of the plaintiff. He handed in a true report of his collections of the previous day, showing a balance in his hands of thirty-nine dollars of the money of his employer. He declared his intention to keep out from that money certain amounts which he claimed to be due to him from his employers on his leaving their service, and tendered to the cashier seven dollars and ninety-three cents only of the thirty-nine dollars in his hands. The subject- matter of the conversation was the act of plaintiff in then withholding a part of the money collected by him, under his claim of right to pay himself out of such money what he claimed was due him from Collier & Son. We think that, considering the circumstances under which said words were spoken, the subject-matter of the conversation between plaintiff and defendant in which they were spoken, and the whole of that conversation, the only just conclusion that can be drawn from all of the evidence is that the defendant in speaking the words did not intend to impute to or charge the plaintiff with larceny, embezzlement or any other crime, and that therefore the words so spoken are not actionable.

The judgment of the Circuit Court will be reversed with a finding of facts and the cause will not be remanded.

Reversed.


text:
    James H. Jones, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,501.
    1. Negligence—when traction company not guilty. If plaintiff, in an action brought to recover for personal injuries, fell from a traction car as it was running in the usual manner, with only the ordinary motion or swaying of the car, no right of action arises.
    2. Negligence—when manner of handling traction car constitutes. If a motorman sets his brake so hard and in such a manner as to cause the car violently to jerk and lurch and thereby and as a direct result thereof one passenger is thrown against another so that such other is pushed or thrust from the platform upon which he was standing, negligence is established.
    3. Negligence—manner of applying hralces. It is the duty of a motorman so to set his brakes to stop his car as not to endanger the safety of passengers known to him to be riding upon the platform.
    4. Instructions—need not repeat. It is not error to refuse a correct instruction the substance of which is contained in another given.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 26, 1909.
    Franklin B. Hussey, Wm. J. Hynes and Watson J. Ferry, for appellant; John B. Harrington, of counsel.
    James O. Mc'Shane, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $2,000 recovered in an action on the case for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant.

Plaintiff was a passenger on a west bound electric street car of defendant in Thirty-ninth street, Chicago. The declaration alleged that he was such passenger and was riding on the front platform of defendant’s car; that defendant’s motorman in charge of said car so negligently, etc., ran and managed said car that in consequence thereof said ear, while in rapid motion, violently jerked and lurched backward and forward and thereby another passenger on said car was thrown against the plaintiff and the plaintiff was thereby thrown from the car to the ground and injured, etc. Plaintiff stood on the platform with his back against the front end of the car at the right and north of the door. To his left, with his back against the door, stood McNaughton. As the car approached Calumet avenue plaintiff fell or was thrown, to the north, from the platform down to the ground and injured. The testimony of plaintiff and of McNaughton was that as the car approached Calumet avenue, McNaughton requested the motorman to stop at that avenue; that plaintiff then stepped forward to permit McNaughton to pass behind him to the step on the north side of the platform; that as he did so, the motorman took hold of the brake lever, pulled it back violently, thereby applying the brakes so hard as to cause the car to lurch or jerk violently; that by such jerking or lurching McNaughton was thrown violently against plaintiff and thereby plaintiff was thrown from the car. Hart, a witness called by plaintiff, testified that he was a passenger standing inside of the car, hanging on to a strap; that the car gave a sudden lurch and he saw something “shoot” from the car; saw an object fall from the front platform at the north; that he called out, “Stop the car”, rang the bell; that the car stopped and he saw plaintiff lying on the street and helped to carry him into a drug store.

For the defendant, the motorman, the conductor and four passengers on the car testified. The motorman testified that the first notice he had that anything unusual had happened was when he got the emergency signal—three bells—to stop; that he did not see plaintiff fall from the platform; that the car did not lurch or jerk before he got the emergency signal; that McNaughton did not ask him to stop at Calumet avenue and he did not set the brakes to stop there, or set the brakes at all just before the accident. The conductor testified that he stood on the rear platform and saw a man lying in the street and gave the emergency signal to stop the car, and helped to pick up plaintiff and carry him into a drug store; that up to the time he gave the emergency signal, there was no jerking, lurching or sudden movement of the car. None of the passengers who were witnesses for defendant saw plaintiff fall from the car, and the attention of each was first attracted, either by the emergency signal, or by a cry to stop the car, and each testified that he had not noticed any unusual movement of the car before he heard such bell or cry.

If plaintiff fell from the car as the car was running in the usual manner with only the ordinary motion or swaying of the car, he has no right of action against the defendant for injuries sustained by such fall. The contention of the plaintiff was that the motorman was requested by McNaughton to stop the car at Calumet avenue; that on approaching that avenue the motorman set the brakes to stop the car, and that he negligently set the brakes so hard and in such an improper manner as caused the car to jerk and lurch violently, and that thereby McNaughton was thrown against the plaintiff and pushed plaintiff from the car. The question whether McNaughton requested the motorman to stop at Calumet avenue is only important in so far as it bears on the other contentions of plaintiff. Both plaintiff and McNaughton testified that as the car approached Calumet avenue McNaughton asked the motorman to stop at that avenue, and McNaughton testified that he lived on Calumet avenue near Thirty-ninth street and was on his way home. Opposed to this testimony, on this point, was only the testimony of the motorman, and from the evideuce the jury might properly find that McNaughton asked the motorman to stop at Calumet avenue. On the question whether the motorman set the brakes just before the plaintiff fell or was thrown from the car, the contention of the plaintiff is supported by the testimony of plaintiff and McNaughton and by the fact that McNaughton requested the motorman to stop at Calumet avenue, and is opposed only by the direct testimony of the motorman.

On the question whether the car jerked or lurched just before plaintiff fell or was thrown from the car, the contention of the plaintiff is supported by the positive testimony of the plaintiff, McNaughton and Hart, and is opposed by the testimony of the motorman, the conductor and four passengers, to the effect that they did not notice any jerking, lurching or other unusual motion of the car before plaintiff fell or was thrown from it. The testimony for the plaintiff tends to explain and account for the fall of the plaintiff from the platform, and that for the defendant does not account for or explain such fall.

We think that from the evidence the jury might properly find that the motorman set the brakes on the car just as plaintiff let go his hold on the bars or rods behind him and stepped forward to permit McNaughton to pass behind him; that he set the brakes so hard, and in such manner as to cause the car violently to jerk and lurch, and that thereby and as a direct result thereof McNaughton was thrown against the plaintiff and pushed or thrust plaintiff from the platform.

The motorman testified that there were five passengers on the front platform. It was therefore his duty, if he set the brakes to stop the car, to use care to so set them as not to endanger the safety of the passengers on the platform. In C. C. Ry. Co. v. Morse, 98 Ill. App. 662, affirmed in 197 Ill. 327, a judgment for the plaintiff was sustained where his right of action was based on the theory that he was injured by the violent jerking or lurching of an electric street car in which he was a passenger, and that such jerking or lurching was caused by the negligence of the motorman in so stopping the car as to cause such jerking and lurching.

From the evidentiary facts above stated which, as has been said, the jury might properly find in favor of the contention of appellant, the jury might, we think, properly find that the motorman in setting the brakes in the manner he did set them, was guilty of the negligence alleged in the declaration; that by reason and as a direct result of such negligence plaintiff was thrown from the car and injured and, therefore, the verdict of the jury cannot be held to be against the evidence.

Appellant further contends that the damages are excessive. Plaintiff was injured seventeen months before the trial. He testified that since his injury he had been totally deaf in one ear; that his sight and sense of taste had since that time been impaired; that he had suffered from dizziness and frequent and severe headaches. It was for the jury to say whether in fact, plaintiff’s condition had, since his injury, been such as he testified it had been, and whether such condition was the result of his injury.

. We do not think that the judgment should be reversed on the ground that the damages are excessive.

We find no error in the rulings on questions of evidence nor in the remarks of the presiding judge during the trial.

Complaint is made of the refusal to give for the defendant the following instructions:

11 The jury are instructed that the law does not exact or require of a street car company that its servants should be all the while upon their guard against dangers not reasonably to be expected, or against unusual or extraordinary occurrences or conduct on the part of others, nor does it require such companies to conduct their business with a degree of caution that would prevent the practical operation of their roads.

“If you. believe from the evidence, under the instructions of the court, that on the occasion in question the plaintiff failed to exercise ordinary care for his own safety, and that such failure, if any, caused or proximately contributed to cause the injuries complained of, then the plaintiff cannot recover, and you should find the defendant not guilty.”

The court gave for the defendant the following instruction :

“The court instructs the jury that the relation of passenger and carrier does not make the carrier an insurer of the absolute safety of the passenger. The carrier does not guarantee that it will protect passengers against remote, unusual and extraordinary perils not to be foreseen by the exercise of the highest degree of care consistent with the practical operation of the carrier’s railroad. The carrier is not required to exercise a degree of care which is not practicable in the operation of its business, and if the jury believe from the evidence, under these instructions, that the injury to the plaintiff could only have been prevented by the exercise of a degree of care and protection not reasonably practicable in the operation of the defendant’s street railroad, then the plaintiff cannot recover, and the jury should find the defendant not guilty.”

This instruction is substantially the same as the first refused instruction.

The court, for the defendant, instructed the jury “that before the plaintiff can recover he must prove that the defendant was guilty of the specific negligence charged in the declaration, or some count thereof, which caused the injury, and that the plaintiff himself was free from any want of ordinary and reasonable care for his own safety on the occasion in question”, and also that the plaintiff could not recover unless the jury believed from a preponderance of the evidence that he had proved: “That the plaintiff was exercising ordinary care for his own safety at and just prior to the time of the accident in question.” These instructions contain all that is material in the second refused instruction above set forth.

The defendant was not prejudiced by the refusal to give said instructions.

The record is, we think, free from error and the judgment of the Superior Court will be affirmed.

Affirmed.