text:
    Franciszek Makuch, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 16,134.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not "be set aside as against the evidence unless clearly and manifestly so.
    2. Master and servant—when rislas not assumed. A servant does not assume extraordinary risks, not necessarily incident to his employment unless such risks are known to him and he voluntarily continues to work.
    3. Master and servant—what rislcs assumed. The risks assumed by a servant are such only as cannot be obviated by the master’s employment of reasonable measures of precaution.
    Action in case for personal injuries. Appeal from the Superior Court of Gook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    Rehearing denied February 20, 1912.
    Winston, Payne, Strawn & Shaw, for appellant; John D. Black and John C. Slade, of counsel.
    Rockhold & Busch, for appellee; Francis X. Busch, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This action is for the recovery of damages for personal injuries sustained by appellee on October 1, 1907, by being thrown from and under one of the cars of appellant, appellee being a laborer assisting in the work of unloading sand from the cars.

The case was tried before the court and a jury, and resulted in a verdict of $8,000 in favor of the appellee, upon which judgment was rendered.

The appellant urges as grounds for reversal of the judgment, that the court erred in overruling its motion for a directed verdict, made at the close of plaintiff’s case; that the court erred in overruling appellant’s motion for a new trial; and that the court erred in its rulings on instructions.

The appellee had been working for the appellant about one week at the time of the accident. During that time he had been employed on track elevation work at Forty-ninth street between Union avenue and Wallace street, unloading sand and raising tracks. A temporary timber structure had been erected over Union avenue, about 17 feet high. A temporary track sloped gradually to the level of Halsted street on the west, and there was just east of the Union avenue temporary structure an incline so steep as to prevent an engine from coming east of Union avenue and to make it necessary to set the brakes on the cars which were shoved over Union avenue onto the temporary track. There were five or six cars east of Union avenue, and the appellee was working at one end of the one next to the last car furthest from Union avenue, there being three or four cars between Union avenue and the appellee. From where he was working it was impossible to see west of the Union avenue structure. While appellee was working upon the car at the time of the accident, the foreman, whose name was Shannon, ordered a conductor to bring in six more cars. The contention of the appellee is that Shannon ordered the appellee and all the other laborers to get on the cars and shovel sand, after he had ordered the conductor to bring in more cars; that Shannon did not warn the men of the approach of the second lot of cars at any time; that when these cars were brought in they were shoved up the incline on the west of the Union avenue temporary structure and against the cars standing on that structure; that this was done with great violence, causing the cars to move about the length of a car, and causing the appellee to be thrown from the car in such a way that the wheels of one of the cars passed over his leg, injuring it to such an extent as to require amputation. It is further contended by appellee that the evidence shows that before the coupling was made no bell or whistle was sounded near enough to the place of coupling to enable the appellee and the others working upon the cars to hear; that it had been the custom for the foreman to warn the men of the approach of cars under such circumstances, so that the men might get off the cars and place themselves in a position where they would not be injured. It appears that there were tracks of the Grand Trunk Railway Company immediately south of the Chicago Junction tracks and parallel with them; that these Grand Trunk tracks had been elevated before the work on the Chicago Junction tracks began; that there was a retaining wall along the south side of the Grand Trunk and one on the north side of the appellant’s tracks between Union avenue and Wallace street; that the plan was to fill in all space between these two retaining walls, putting the Grand Trunk tracks and the appellant’s tracks on the same level.

The testimony of Shannon, the foreman, was to the effect that when the first seven cars were put in he was more than a block away and that he did not get back to the cars until after the men had gotten into them. He further testified that when he heard the engine coming up the hill he told the men to “look out” for themselves—that, they were going to make another coupling; that he heard the engine sound a whistle and ring a hell, and shouted for the men to look out for themselves; that when he shouted some of the men looked up and some of them shouted to the others to look out; that when the impact came none of the men were knocked down but some of them jumped from the cars; that it was always customary before the accident to move cars on that track while the men were working in them, and that it was done the same way before the accident as it was done at the time of the accident; that the only warning he had ever given at previous times was “look out boys.”

Shannon’s testimony with regard to having given the warning to the men is corroborated by other witnesses for the appellant. The testimony of the greater number of witnesses, however, appears to corroborate the testimony of the appellee that no warning was given, which of course necessarily was in the negative form and to the effect that they did not hear any bell rung or whistle sounded, and that they did not hear Shannon give the usual warning “look out.”

The first point argued by the appellant on the alleged error of the court in overruling its motion for a directed verdict is that if there was any negligence which contributed to the appellee’s injury it was that of a fellow-servant. The claim is made that Shannon, with respect to the particular work in hand, was a fellow-servant of appellee. We do not think such is the law. In C. R. I. & P. Ry. Co. v. Strong, 228 Ill. 281, cited by appellant, it was held that in an action for damages for the death of a switchman, caused by the negligence of the foreman of the switching crew in improperly signaling the engineer to back the train, the question whether the signal was given in the foreman’s capacity as foreman or in the capacity of a fellow-servant of the switchman is one of fact for the jury.

In Nordhaus v. Vandalia R. R. Co., 242 Ill. 166, the court had a somewhat similar case under consideration. In that case the plaintiff’s intestate, Zehak, with others, was in a car; shoveling cinders out through an opening in the bottom. The car was run into by a car attached to a switch engine, through the negligence of a flagman, and the court said: “We do not think, however, that the court could rightfully have declared, as a matter of law, that the flagman through whose negligence the accident occurred was a fellow-servant with Zehak.”

In the case of C. & E. I. R. R. Co. v. Kimmel, 221 Ill. 547, plaintiff’s intestate, Eockhold, with other laborers, was at work shoveling cinders from a car which was one of a train of standing cars. The foreman, a man named Francis, had directed the movements both of the shoveling gang and the train crew. The court held in such circumstances that “Francis was the direct representative of the appellant, and not a fellow-servant with any of the workmen. * * * If the negligence of the representative of the appellant company, whose negligence is the negligence of the company, contributed to the injury, and the injury would not have occurred but for his lack of care, then the appellant company is liable. * * There was a conflict in the evidence upon this subject, but it was for the jury to determine whether or not such warning was actually given by Francis, the foreman.”

We think that the questions of fact as to whether or not the accident was due to the negligence of Shannon, the foreman, and whether at the time of the accident Shannon was a fellow-servant of the appellee or vice-principal of the appellant, were both properly left to the jury to determine, and we find nothing in the record which would justify us in setting aside the verdict upon the ground that it is against the manifest weight of the evidence in these regards.

An argument is made by the appellant upon a proposition advanced that appellee assumed the risk of the usual method of handling the cars, upon the theory, as we understand it, that it was customary before the accident to move cars while the men were working in them. The testimony tends to establish the fact that the cars were upon a temporary trestle work; that the brakes were set to prevent their moving down the incline; that theretofore it had been the custom of the foreman to warn the men before other cars were allowed to come in contact with the cars upon which the laborers were working. Indeed, appellant in its brief says: “There was no dispute of the proposition that ordinarily and on all occasions but this one Shannon called a warning to the men on the cars whenever the engine approached and they would take position so as not to be injured.” It is true that the foreman, Shannon, testified that it was always customary before the accident to move the cars while the men were working in them, but apparently he was the only witness who testified to that effect, and his testimony is contradicted by several of the witnesses for appellee. A servant does not assume extraordinary risks not necessarily incident to his employment, unless such risks are known to him and he voluntarily continues to work after such knowledge. I. T. T. R. R. Co. v. Thompson, 210 Ill. 226. The risks assumed by a servant are such, only, as cannot be obviated by the master’s employment of reasonable measures of precaution. C. & G. T. Ry. Co. v. Spurney, 197 Ill. 471.

It is next urged upon us that the judgment should be reversed because, as alleged, three of the instructions given as tendered by the appellee were erroneous, and because the court modified three of the instructions tendered by the appellant and gave them as modified. Nine instructions as tendered by the appellee were read to the jury, also fifteen as tendered by the appellant, three of the latter, as heretofore stated, being somewhat modified. We think the instructions as a whole fairly advised the jury as to the law which should govern them on the different questions presented by the evidence. In our opinion, the three instructions tendered by the appellee, which are criticised, could not have misled the jury in view of the other instructions. The jury were instructed that the instructions constiuted one connected body or series and should be so regarded by them. All of the instructions tendered by the appellant were given, and the modifications in three of them were not of such character as in our opinion should cause a reversal.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Isaac N. Perry v. John Kausz. The People of the State of Illinois, Defendant in Error, v. John Kausz, Plaintiff in Error.
    Gen. No. 16,160.

      Contempt—tohat requires discharge in proceedings for criminal. In criminal contempts alleged to have been committed out of the presence of the court, if the contemner’s answer is sufficient to acquit him of the charge he must be discharged.
    Error to the Municipal Court of Chicago; the Hon. Isidore Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 6, 1912.
    John W. Burdette, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

A writ of error is prosecuted by the respondent, John Kausz, from an order of commitment for contempt of court, wherein a fine of $25 was imposed upon him and he was ordered committed to the common jail of Cook county, Illinois, until he should comply with the order of the court by paying the fine so imposed, the commitment containing the provision that the term of imprisonment should not exceed six months, or until he should otherwise be discharged by due process of law.

From the record it appears that a judgment was obtained by Isaac N. Perry against the respondent in the Municipal Court of Chicago. Execution was issued upon the said judgment, and on August 7, 1909, before the return of the execution, supplementary proceedings were instituted under section 64 of the Municipal Court Act. The proceeding was begun by the petition for a citation requiring Kausz, as judgment debtor, to attend and be examined as to his property. The citation was issued and made returnable August 21, 1909. On August 21st Kausz attended at the time' and place set, and a motion was made by his attorney to quash the petition and citation for insufficiency appearing upon the face of the petition. This motion does not seem to have been disposed of. On the same day, a rule was entered by the judge before whom the matter was pending, requiring Kausz to show cause at Branch 13 of the Municipal Court, at 9:30 a. m. September 4, 1909, why he should not be committed for contempt of court, “for failing to attend as witness before court.” This rule was never served on Kausz. An alias rule was entered continuing the contempt proceeding until September 18, 1909. Copy of this order was served on Kausz, but on motion of his attorney, appearing as a friend of the court, the rule was quashed. On the same day, September 18, 1909, the following order was entered:

“Isaac N. Perry v. John Kausz. Contract No. 146427%
“It is ordered that John Kausz, be and he hereby is ordered to show canse if any he have, before Branch thirteen of this Court, at 9:30 o’clock a. m. on the eighth day of October A. D. 1909, why the said John Kausz should not be attached and punished for a contempt of this Court in refusing and neglecting to attend before this Court, and be examined concerning the property of the judgment debtor herein.”

Copy of this rule was served upon Kausz, and thereupon he filed an answer, setting up among other things that the respondent was not informed by the notice-purporting to be a copy of the order or rule to show cause, at what time or under what circumstances the supposed offense was committed; that no writ, summons, citation or notice to attend or be examined concerning the property of the judgment debtor, returnable September 18, 1909, was • ever served upon him; that the lawful fees for attending and testifying in such case were not paid or tendered; that he was informed that the cause would be called for some purpose on that day and attended before the judge sitting in the branch of the court where the matter was pending; that the respondent was not then and there called to the bar of the court or notified, advised or informed that he was expected or required to be examined concerning the property of the judgment debtor in said cause. The answer further sets up that the respondent on each and every occasion when and where any writ, summons, notice, rule or citation has been served upon him, has appeared and been present in the court room and remained during the transaction of all matters relating to the cause; that he was at no time called to the bar of the court or advised or informed that he was expected or required to be examined concerning the property of the judgment debtor (himself). The answer further sets up the fact that a motion was made on August 21st to quash the citation returnable on that day, and that the said motion was not and has never been disposed of. The answer is under oath.

It appears that on October 13, 1909, the day on which the hearing was had in the contempt proceedings and after the answer was filed, the court called the respondent to the bar and asked him the following question, “Are you now ready and willing to be examined in regard to the property of the judgment debtor'?”, and thereupon the respondent, upon the advice of counsel, answered that that matter was not then pending and that he was not notified to appear for that purpose, and for the further reasons set out in his answer theretofore filed he was not ready and willing to be examined, and declined to be so examined. Following this colloquy the order of commitment was entered.

It will be noticed that the charge of contempt against which the respondent was then defending himself, was his failure to appear September 18th or prior thereto. It will also be noticed that in the answer, after setting out that he was present in the court whenever cited to appear, for the purpose of examination concerning his property, it was stated that no attempt was ever made to examine him, and that a motion was made in his behalf to quash the citation requiring bim to submit to examination, which motion was never disposed of. It has repeatedly been held that in criminal contempts alleged to have been committed out of the presence of the court, if the contemner’s answer is sufficient to acquit of the charge he must be discharged. Crook v. People, 16 Ill. 534; Buck v. Buck, 60 id. 105; People v. Diedrich, 141 id. 665; Oster v. People, 192 id. 473. It is also a general rule that an attachment for contempt alleged to have been committed out of the presence of the court should be based upon an affidavit as to the truth of the facts constituting the alleged contempt. There is nothing in the order of commitment in the case now under consideration to indicate that the alleged contempt was committed in the presence of the court, nor is there any finding that the allegations of the answers were untrue. If, as set out in the answer, the respondent was never called upon by the court, in open court, prior to the institution of contempt proceedings, to submit himself for examination, and if, as set out in the answer, he was in court at all times when required so to be by citation or otherwise, it is difficult to see how he could be guilty of the contempt for which he was committed. We think the order of commitment was improperly issued.

We are asked by the plaintiff in error, Kausz, to impose costs upon Isaac N. Perry, the judgment creditor, as relator. It is insisted, however, by the plaintiff in error in his brief that the court had no jurisdiction in the supplementary proceeding in relation to which the judgment was entered:—

“First, because, while in its body it purported to be the petition of Isaac N. Perry, the judgment creditor, it was not signed by him, but by procuration by Louis Krinsky, described in the signature as his duly authorized agent.’ There is no suggestion of the authority of Krinsky to act for Perry other than this vain recital in the signature.
“Second, because it is not verified by the judgment creditor, but by Louis Krinsky, who avoids making oath that he is the agent of the judgment creditor or that he had any knowledge of the facts and circumstances in question, but who merely swears that he is the person who signed the petition; that he knows the contents thereof and that the matters therein set forth are true. ’ ’ ’

There has been no appearance by the defendant in error in this court. In the writ of error sued out by the plaintiff in error no attempt was made to bring Isaac 1ST. Perry before the court, and he has not entered his appearance. There is nothing in the record to indicate that he was the relator in the proceeding, except the petition which the plaintiff in error insists was absolutely nugatory. Under these circumstances we see' no legal basis on which Perry may be charged with costs of the proceeding.

For reasons stated the judgment will be reversed.

Reversed.


text:
    Harry S. Gilbert, Appellee, v. Dora K. Smith et al., Appellants.
    Gen. No. 16,220.
    1. Redemption—rights of mechanic’s lien creditor. A mechanic's lien creditor whose lien is established in a foreclosure suit and who has been given a deficiency decree after the sale is entitled to enforce his decree or judgment in the same way as any other decree or judgment creditor of the debtor, that is to say, under section 20 of chapter 77, providing for redemption after 12 and before the expiration of 15 months from sale, he may redeem.
    2. Redemption—when scheme to hinder lawful creditor illegal. A mortgagor cannot after the expiration of the period of redemption provided for his benefit, undertake some scheme with a person, not his creditor, whereby he and such person may realize money out of the mortgaged premises.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 6, 1912.
    Adkinson & Hibben, for appellants.
    Harper E. Osborn, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

A bill in chancery was filed by the appellee, as complainant, against the appellants, as defendants, seeking to set aside and to declare null and void the redemption of the appellant, the Henry 0. Shepard Co., from a sale by a master in chancery of certain described property, formerly owned by the appellant, Dora K. Smith, and a decree requiring the appellant Christopher Strassheim, as sheriff, to sell said premises in accordance with the statute to satisfy a judgment in favor of the appellee and against the appellant Dora K. Smith for $701.51 together with interest thereon, the sale by the master in chancery having been made in a foreclosure proceeding brought by one Charlotte M.. Fischer against the appellant, Dora K. Smith, upon a trust deed theretofore given by the said Dora K. Smith. Answer was filed by the defendants, and after a hearing before the chancellor a decree was entered substantially in conformity with the prayer of the bill. By the decree the complainant was required to pay to the Henry 0. Shepard Co. the sum of $2,490.98, paid to the sheriff by the Shepard Company at the time of the attempted redemption by that company. The decree enjoined the defendants, Dora K. and Edward Q-. Smith, Edward K. Findley and Henry 0. Shepard Co., from interfering with the rights of the complainant, and restrained Christopher Strassheim, as sheriff, from issuing a deed to the holder of the sheriff’s certificate of sale made July 6, 1909, upon an execution issued on a judgment against the said Dora K. Smith. This decree the appellants seek to have set aside by this court.

From the record in the case it would appear that Charlotte M. Fischer filed her bill on May 20, 1907, to foreclose a trust deed on the premises in question, making Dora K. Smith and others parties defendant; that the property was sold on May 25,1908, for enough to satisfy the mortgage indebtedness to the said Fischer; that on June 20, 1908, appellee recovered a judgment against the appellants Dora K. and Edward G-. Smith for $701.51; that Dora K. Smith did not redeem within the twelve months allowed by statute; that about one week prior to the expiration of the twelve months Edward G. Smith, who was the husband of Dora K. Smith, represented to the appellee that he had a bona fide purchaser for the property, and requested appellee to assign his judgment and not to redeem; that afterwards Gilbert agreed to assign his judgment for $475 or $500; that said Edward G. Smith was informed that Gilbert intended to redeem from the master’s sale unless he (Gilbert) should receive the $500 in cash; that on June 1, 1909, Edward G. Smith, who was indebted to the Shepard Company on the balance of a note for $450, and also upon a small open" account, called on the Shepard Company and informed its officers that he would try to get his wife to assume this indebtedness; that on the same day, namely June 1,1909, Smith and his wife called on the officers of the Shepard Company and Mrs. Smith informed them that she was at one time the owner of the property in question and that her right to redeem from the master’s sale had expired May 25, 1909; that the officers of the Shepard Company were informed that it would take about $2,500 to redeem from the master’s sale, and that the property was worth from $3,750 to $4,000; that Mr. and Mrs. Smith advised the officers of the Shepard Company that this was the only property which they had and that they could give no other security for the Shepard debt; that if the Shepard Company would pay Mrs. Smith $650 cash she would sign a judgment note for $1,240, and would also execute another for $1,100 to her son, Edward K. Findley, the judgment upon which, when entered, would be assigned to the Shepard Company as further security; that thereupon Mrs. Smith endorsed the old $450 note of Mr. Smith, and she and her husband executed a new note dated June 1, 1909, for $131.26, the amount of the Open account, the note being payable on demand; that on June 5, 1909, Dora K. Smith executed her two judgment notes as agreed, one for $1,240.33 to the Shepard Company and one for $1,100 to Findley, both due on demand, and delivered said notes to the Shepard Company, which turned them over to its attorney; that on June 9, 1909, judgment was entered on the two notes and an assignment of the $1,100 judgment taken from Findley to the Shepard Company; that the entry of the judgments was attended to by the attorney for the Shepard Company, and an execution on the Shepard Company judgment for $1,240.33 placed in the hands of the sheriff, the sheriff being paid the amount necessary to redeem from the master’s sgle; that thereafter there was paid to the attorney representing Dora K. and Edward Gf. Smith the sum of $650.53. The sheriff’s sale was had on July 6, 1909. The complainant testified that at the time of the sheriff’s sale he told .the purchaser that he (Gilbert) would contest the sale on the ground of fraud. One of the attorneys for the appellants was • called as a witness by the complainant and testified as to the amount paid the sheriff, and further that the balance, “some $650,” was paid to Mr. ITazen (attorney for Mr. and Mrs. Smith) June 9, 1909, after judgment had been taken on the two notes and after redemption from the master’s sale was had.

It is strenuously argued by the appellants that the appellee, Harry S. Gilbert, was at the time of the filing of the bill in no position to redeem. The argument is that because the judgment upon which he claimed the right to redeem was one entered in the suit for foreclosure of the trust deed, in which suit his mechanic’s lien was established and allowed, he was not the possessor of such a judgment as entitled him to redeem the property under section 20 of chapter 77 of the statutes, which provides- for redemption after twelve months and within fifteen months after the sale by decree or judgment creditors, etc. It is asserted that having proved his mechanic’s lien in the foreclosure suit, his right to subject the property to sale in order to satisfy his lien was exhausted when the sale was had in that proceeding, and that the allowance to him hy the final decree in the case of a deficiency decree and judgment did not put him in the class of judgment creditors whose right to redeem is provided for in said section 20. It is argued that for that reason he should have redeemed under section 18 of the same chapter, which provides for redemption within twelve months hy the mortgagor or some one claiming under the mortgagor. The case of DeWitt Co. Bank v. Mickleberry, 244 Ill. 81, is cited as authority upon the proposition. Since the briefs were filed in the case now before us the particular point has been passed upon by the Supreme Court in Strause v. Dutch, 250 Ill. 326. In that case it was held that a mortgagee who has secured a deficiency decree after the sale of the mortgaged property in foreclosure proceedings, is such a decree creditor as is entitled under the statute to redeem the premises sold. It follows necessarily that a mechanic’s lien creditor whose lien is established in a foreclosure suit and who has been given a deficiency decree after the sale is also entitled to enforce his decree or judgment in the same way as any other decree or judgment creditor of the debtor. "Whatever our views upon the question might otherwise be, we are bound by the majority opinion in the case last referred to.

The next question to be considered is as to the relative rights of the appellee, Harry S. Gilbert, and the appellant, the Henry 0. Shepard Company, in the matter of the redemption from the foreclosure sale and their right to have a sale of the property in satisfaction of their respective judgment liens upon it. If it is assumed that the Henry 0. Shepard Coihpany had a valid lien, then Gilbert, under section 24 of chapter 77 of the revised statutes, had, as a senior creditor, the preference in the matter of redemption for two days next after the expiration of the twelve months. It is, in onr opinion, conclusively shown in the record that Gilbert intended to exercise and would have exercised this right but for the fact that he was negotiating for a settlement of his claim with the defendant, Edward G. Smith. At the time the defendant, the Henry 0. Shepard Company, had no judgment against the defendant, Dora K. Smith, and wás in no position to make redemption and cause a sale of the property to be had in satisfaction of any debt or judgment existing in its favor and against the said Dora K. Smith. It appears that the defendants, Edward G. Smith and Dora K. Smith, went to the officers of the Shepard Company and informed them in some respects as to the property in question. It does not appear that the officers of the Shepard Company were informed of the existence of the lien of the complainant. The negotiations with the Shepard Company resulted in the giving of a judgment note by Dora IÍ. Smith to the Shepard Company of $1,240.33. Of this amount about $589.50 was represented by an old indebtedness owing by Edward G. Smith to the Shepard Company. At the time of the execution of the judgment note by Mrs. Smith no money was paid to her or anyone representing her. It was not until after judgment had been entered upon the note and an execution placed in the hands of the sheriff, and the sheriff had been paid the amount necessary to redeem from the master’s sale, that the balance of the amount of the note, namely $650.53, was paid to the attorney for Mrs. Smith.

We make no mention of the judgment note for $1,100 made by Mrs. Smith to her son, the defendant Findley, upon which judgment was taken and assigned by Findley to the She'pard Company, because, in our opinion, it becomes unimportant in view of the other facts and circumstances of the case.

The attorney representing the Shepard Company at the time the judgment note was taken presumably knew of the deficiency decree or judgment of the appellee, Gilbert. It was a matter of record. Manifestly section 20 above referred to was intended simply for the benefit of creditors of the mortgagor. It was never, in our opinion, contemplated that under this section a mortgagor might, after the period of redemption provided for his benefit by section 18 of the statute had expired, enter into some scheme with a person not his creditor, whereby he and such person could realize something out of the mortgaged premises. A decree or judgment suffered to be taken under such circumstances with the intent of delaying, hindering or defrauding a bona fide creditor of the mortgagor, we believe to be within the inhibition of section 4 of chapter 59 of the revised statutes, and under that statute void as against such a creditor.

On June 5, 1909, when the judgment note was executed by Mrs. Smith in favor of the Shepard Company for $1,240.33, Mrs. Smith was not indebted to that company in that amount. It is true that a few days before she had signed an old note made by her husband, part of which was unpaid, and had executed a new note payable on demand, for an open account owing by him to the Shepard Company. It was not until after judgment had been entered on the note and an execution placed in the hands of the sheriff that the Shepard Company paid her the'' $650.53. In the case of Strauss v. Tuckhorn, 200 Ill. 75, it was held that the owner of an equity of redemption may confess judgment for the express purpose of enabling the judgment creditor to redeem the premises, provided there is a bona fide existing indebtedness from him to such judgment creditor. In that case, however, the master in chancery had found, and the court below had sustained his finding, that there was a bona fide indebtedness. In the case before us the court specifically found after hearing the evidence in open court that “there was no valid indebtedness then due from said Dora K. Smith on the said $1,240 note at the time said judgment was rendered and said redemption was made, and that the said Harry S. Gilbert continued to have the right to redeem from the said master’s sale.” We agree with the learned chancellor in his conclusion in this regard.

For the reasons stated, the decree will be affirmed.

Decree affirmed.


text:
    John Whalen, Defendant in Error, v. Cornelius J. McGrath, Plaintiff in Error.
    Gen. No. 16,252.
    Master and servant—when doctrine of assumed rislc applies. A servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent and if he voluntarily enters or continues in the service knowing or having means of knowing its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting from such dangers.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 6, 1912.
    Ralph F. Potter and William J. Weldon, for plaintiff in error.
    E. M. Seymour, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

John Whalen, the defendant in error, brought suit against Cornelius J. McGrath, the plaintiff in error, in the Municipal Court of Chicago, for damages on account of injuries alleged. to have been received through the negligence of the latter. The case was tried before the court without a jury and judgment entered in favor of the defendant in error for $225.00.

We take the following statement of facts from the brief of the defendant in error:

“On March 31, 1909, defendant in error was an employe of plaintiff in error, who was a contractor of interior decoration of houses in Chicago, and employed one Edward Golden as foreman, who had charge of the defendant in error, in the paper hanging, painting and calcimining of different houses through the city, and on the day in question at about 3 p. m. Whalen was finishing a job on Sedgwick street. Golden came to him and ordered him to proceed at once to 290 Huron street, where another job was awaiting him. About one week prior to that Golden had taken measurements of the rooms to be decorated there and had seen the pantry in which work was to be done by defendant. When he thus ordered Whalen to work there a driver for McGrath by the name of Salomon came and the following conversation was had between the three:
“Salomon said: ‘There are two men working at 290 Huron street and there is no scaffolding. ’ Golden said: ‘Whalen, go over there right away and finish the day and report there in the morning. ’ Whalen said, ‘There is no scaffolding; what shall I do?’ Golden answered, ‘ Start to work in the pantry. ’ And the question was put to him:
“ ‘Q. You expected him to use the shelf as a scaffold? A. He is naturally supposed to do the best he can.’
“Defendant in error obeyed and went to work in the pantry; -he calcimined the ceiling, using the shelves of the pantry as scaffolds to elevate himself. While stepping down from the upper ones he stepped on one board 18 inches up from the floor, which broke and he fell, his right shoulder striking the door jamb, which fall caused sub-clavicular dislocation of the right shoulder, the effects of which resulted in his remaining about five weeks idle and paid $65 for medicine and surgical operation, during which time he suffered great pain and the injury may be permanent.
“The boards on which he stood seemed-to be only three feet long. There was no evidence offered on the part of plaintiff in error.”

We think this statement of facts presents the case as favorably to the defendant in error as the record warrants.

We know of no rule of law which under the circumstances warranted the finding and judgment. It cannot be said that the shelves in the pantry were appliances furnished by the master, and there is no proof that the plaintiff in error directed him to use the shelf as a scaffold. The defendant in error evidently considered this a convenient way in which to get at his work and adopted it. Under such circumstances the master is not liable. A servant assumes not only the ordinary risks incident to his employment, hut also all dangers which are obvious and apparent; and if he voluntarily enters or continues in the service, knowing, or having means of knowing, its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting from such dangers. McCormick Machine Co. v. Zakzewski, 220 Ill. 522.

The judgment will be reversed.

Judgment reversed.


text:
    Louis Desch, Plaintiff in Error, v. Peter Nielsen, Defendant in Error.
    Gen. No. 16,278.
    Municipal court—when final judgment rendered on review. If a ease is tried in the Municipal Court without a jury and the finding is for the defendant, the Appellate Court will upon finding that the judgment should have been for the plaintiff, enter judgment for the plaintiff for the amount shown by the evidence to be due him.
    Error to the Municipal Court of Chicago; the Hon. Hugh T. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 6, 1912.

      John J. Poulton, for plaintiff in error; Francis J. Sullivan, of counsel.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought in the Municipal Court of Chicago for six months’ rent claimed to be owing by the defendant in error to the plaintiff in error. A set-off was claimed by the defendant in error for lace curtains, window shades and stove pipe, left by the defendant in error on the premises when the same were vacated by him, and alleged to have been purchased from the defendant in error by the plaintiff in error; for board claimed to have been furnished by the defendant in error to the plaintiff in error and his wife some years previous, when the defendant in error was living in Germany; for a water tax claimed to have been paid by him, and storage charges on furniture also claimed to have been paid by him. There was a finding in the court below in favor of the defendant below on the set-off for one dollar and fifty cents.

We are asked to reverse this finding and enter a judgment in this court for the amount of the demand of the plaintiff in error. The record shows conclusively that the rent was due and owing. A careful examination of the record does not show that the defendant in error proved any of the items of his set-off. There was no agreement shown for the purchase of the curtains, shades or stove pipe. There was nothing to show that the defendant in error was authorized to pay the water tax or the storage charges on the furniture. There was no legal proof establishing the claim of the defendant in error for the board included in the claim of set-off. The court below should have entered a judgment for the plaintiff in error, and the case will therefore be reversed and a judgment entered in this court in favor of the plaintiff in error, Louis Desch, and against the defendant in error, Peter Nielsen, for the sum of $60.

Reversed.


text:
    William Rock, Defendant in Error, v. Louis S. Owsley, Receiver, Plaintiff in Error.
    Gen. No. 16,292.
    Appeals and errors—when finding by court not disturbed. The finding of the court in eases tried without a jury has the same effect on appeal as the verdict of a jury and such finding will not be disturbed as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 6, 1912.
    Walter W. Boss and John Prendergast, for plaintiff in error.
    Alphonse Lefkow, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error in the Municipal Court of Chicago for the value of a cow claimed to have been killed through the negligence of the plaintiff in error as receiver of the Suburban B. B. Company, on or about August 15, 1909. The case was tried before the court without a jury. The court found the defendant guilty, assessed the plaintiff’s damages in the sum of $65 and entered judgment for that amount.

We are asked to reverse this judgment on the ground that there was no negligence shown on the part of the plaintiff in error, and the further ground that the defendant in error was guilty of failure to exercise due care in allowing his cow to run at large, contrary to the statute.

The proof tended to show that the defendant in error pastured his cow in a lot which was not fenced, fastened her to a stake on the night of the accident. On the following morning he found her dead in a ditch beside the railroad track. On behalf of the defendant in error it was shown by the testimony of a witness, a woman 60 years of age, who lived at the corner of Fillmore and Harlem avenues, across the street from the place of the accident, that on the 15th of August, 1909, between 12 and 12:30 in the morning, she was in her room and saw and heard a car coming at a high rate of speed; that the next morning she saw a cow lying about 50 feet south of the crossing in the ditch, and a cow’s tail on the crossing; that the car was coming fast; that she did not see any headlight, and that she knew the cow belonged to the defendant in error.

On the part of the plaintiff in error the testimony of the motorman in charge of the car was offered. He says his car was running at a speed of from 27 to 30 miles an hour; that the car had a headlight on it, but that it was foggy; that he did not see the cow until he was about 45 or 50 feet from her; that he threw on his air brake and emergency brake, etc., but was unable to stop the car until it went 50 feet past the cow.

We see no reason for reversing the judgment. The statute with .regard to allowing animals like cattle to run at large was not violated. Whether or not the defendant in error was negligent under the circumstances was a question of fact. It was also a question of fact whether or not the plaintiff in error was negligent in the matter of the speed of the car when crossing the street taking into consideration the darkness and foggy conditions. The finding of the court on these questions has the same effect as the finding of a jury in similar circumstances.

Judgment affirmed.


author: Mr. Justice F. A. Smith

text:
    Sophia Cwiklik, Defendant in Error, v. Anna Hrejsa et al., Plaintiffs in Error.
    Gen. No. 15,874.
    1. Landlord and tenant—when former liable for personal injuries. For defects of which the landlord had notice contained in the portion of an apartment building used in common by the tenants of such building the landlord is responsible.
    2. New trial—what essential to require, for newly discovered evidence. In order to justify a new trial for newly discovered evidence it must appear that the evidence is of a conclusive character and is not merely cumulative and it must further appear that the evidence could not have been discovered at the time of the trial by the exercise of due diligence.
    Error to the Circuit Court of Cook county; the HON. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    DeWitt 0. Jones, for plaintiff in error.
    Johnson & Belasoo, for defendant in error; Joel Baker, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This appeal is from a judgment of the Circuit Court in a suit brought by the defendant in error against the plaintiffs in error to recover damages for injuries received by the plaintiff below in falling from a rear porch of premises known as No. 446 South Jefferson street, Chicago, on the second day of October, 1902,

The declaration avers that the defendants were negligent in allowing the back stairs, platform and railing thereon, which was in constant use by the tenants of the building and others in entering and leaving the building, to become weak, worn out, rotten and unsafe, whereby the plaintiff, while on said stairs and platform by invitation of the tenant of the building, was caused to fall to the ground and was injured.

The case was tried on the issues presented by the general issue filed by the defendants, and a verdict was rendered for plaintiff for $1,200 and judgment was entered thereon.

At the time of the accident the title to the premises was in the defendants Anna Hrejsa and Mary A. Cizkovsky.

The first ground urged for a reversal is that the plaintiff failed to establish the allegation of her declaration that the stairs, platform and railing in question were under the control of the defendants.

No proof of the terms of the tenancy of the tenant of the second floor was made. It appears, however, from the evidence that Mrs. Emily Behrens was the agent of the defendants for the collection of rents and had general charge and control of the building for them; that she was notified by the tenants of the building, prior to the accident, that the porch and railing thereof were in an unsafe condition. Mrs. Behrens attended to the repairs of the premises. There is also evidence that before the accident when there was a fire in the premises, the defendants employed a carpenter to repair the building; and that when a wedding was held in the house before the accident Mrs. Behrens testified that she had a carpenter who examined all the stairs. Mrs. Behrens also testified that there were two tenements above the platform in question. They all used the one stairway and platform. There were four tenants or families living in that part of the house.

We are of the opinion that sufficient appears in the évidence to show that the platform and stairs in question were used in common by four different tenants or families living in the upper part of the building, and that the stairs, platform and railing in question were under the control of the defendants, the landlords, for the common use of the tenants of the building. Upon these facts the defendants are liable for injuries resulting from defects of which they had notice. Burke v. Hulett, 216 Ill. 545; Shoninger Co. v. Mann, 219 id. 242.

The next contention is that the verdict was contrary to the credible evidence in the case. There is in the testimony an irreconcilable conflict between the plaintiff’s witnesses and the defendants’ witnesses. The testimony of the witnesses Mitus, James, and others clearly tends to prove that the back porch and railing were in a shaky, weak and unsafe condition. The testimony of the defendants’ witnesses tends to show that some of them had examined the premises six months and a year before the accident, and at those times the porch and platform were in good condition. Mrs. Behrens, the agent of the defendants, admitted that the railing was in a weak condition.

Considering all the testimony in the case, and without entering into an analysis of it, we are of the opinion that the jury had sufficient basis in the evidence for the verdict rendered by them; and the verdict is not contrary to the credible evidence.

It is urged that a new trial should have been granted on the affidavits of newly discovered evidence. We have examined the affidavits and we dp not think that they show due diligence on the part of the defendants in the preparation for trial. We do not think the facts set out in the affidavits, if proven upon a second trial, would present a defense óf a conclusive character. In order to justify a new trial on newly discovered evidence it must appear that the evidence is of a conclusive character, and is not merely cumulative, and it must further appear that the evidence could not have been discovered at the time of the trial by the exercise of due diligence. Edgmon v. Ashelby, 76 Ill. 161; C. & N. W. Ry. Co. v. Calumet Stock Farm, 194 id. 9, 16; C. & E. I. R. R. Co. v. Stewart, 203 id. 223.

Wp do not think the defendants are entitled to a reversal of the judgment upon the ground that the court refused to grant a new trial upon the affidavits presented setting up newly discovered evidence.

We do not think that the court erred in overruling the motion in arrest of judgment.

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

Affirmed.


text:
    Frank Ledl, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 16,052.

      Verdicts—when not disturbed as against the evidence. A verdict will not be disturbed as against the evidence unless clearly and manifestly so.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6. 1912.

      Cci-tiorari denied by Supreme Court (making opinion final).
    John A. Eose and Frank L. Kriete, for appellant; W. W. G-urley, of counsel.
    Brady & Levy, for.appellee; C. Stuart Beattie, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought by Frank Ledl against the Chicago Railways Company, appellant, to recover damages for personal injuries.

Plaintiff’s declaration contains three counts, The first count avers that the defendant was negligent in that by means of its snow-sweeper it threw the snow from its tracks into a high pile or ridge of snow, which sloped down toward the tracks, and negligently permitted the high pile or ridge of snow to remain; that the pile or ridge of snow had become frozen and otherwise packed hard and slippery so as to expose passengers, in alighting from defendant’s cars, to great danger of slipping or falling thereon, and thereby slipping back to and upon said track of the defendant; that when the car on which the plaintiff was a passenger was approaching Marshfield avenue, the plaintiff requested defendant’s motorman to stop the car at Marshfield avenue to permit him to alight, the. motorman carelessly, recklessly, negligently and wrongfully managed and operated the car, and through such negligent, careless and wrongful conduct of the defendant in that regard, the plaintiff was thrown to and upon the pile or ridge of snow and thence upon the track and under one of the wheels of said car and was thereby injured.

The second count alleged that the motorman so carelessly, recklessly and negligently operated and managed the car of defendant that the plaintiff, intending to alight at the crossing or intersection of Marshfield avenue with West Division street, while in the exercise of ordinary care and caution for his safety, was caused to fall from the car and was thereby injured.

The third count is similar to the first, except that it sets out an ordinance of the city of Chicago and charges a breach thereof. The ordinance requires defendant to remove all dirt and snow and other accumulations from so much of the surface of the streets containing their railway tracks as lie between the outermost rails of said tracks, and also from such additional surface in width as may be prescribed in any ordinance relating to or affecting any such street, and remove the same from and out of such street.

The defendant pleaded the general' issue, and the cause was tried upon the issues thus made.

Appellant’s contention is that the verdict is against the weight of the evidence; that the court erred in instructing the jury on behalf of the plaintiff, and in refusing instructions requested on behalf of the defendant, and in its rulings on evidence.

We have considered carefully the testimony and evidence introduced in the cause, and we find in it considerable conflict as to the alleged negligence in handling the car, and upon the question whether the motorman so managed the car' as to produce an unnecessary jolt or jerk of the car whereby it is alleged that the plaintiff was thrown from the car into the street and injured. Considering the testimony in all its bearings, we are not convinced that the verdict of the jury is manifestly and clearly against the weight of the evidence. Consideration must be given, under such circumstances, to the superior opportunities of the trial judge and jury over this court, sitting as a court of revieWj for determining the credibility of the witnesses. We are disposed to allow the verdict of the jury to stand for the reasons above stated. It does not appear to be manifestly and clearly against the weight of evidence and, under the law, unless this appears we are not authorized to interfere.

Objections are urged to the third and fifth instructions given at the request of the plaintiff. We find no material error in these instructions. The objections are technical rather than substantial. The jury could not have been misled by the instructions.

It is also urged that the court erred in refusing’ to give the eleventh instruction requested by the defendant. In our opinion the instruction was properly refused for the reason that it contained at least one contention, or element, not supported by the evidence.

Our attention is called to several rulings on evidence in which the appellant contends the trial court erred. Upon a careful examination of these rulings in connection with the evidence we find no material error.

The judgment of the Superior Court is affirmed.

Judgment affirmed.


author: Mr. Justice P. A. Smith

text:
    The Journal Printing Company, Appellee, v. Inter-Ocean Newspaper Company, Appellant.
    Gen. No. 16,088.

      Corporations—what does not constitute doing "business in this state. The mere signing of a contract in Illinois does not constitute doing business in this state in violation of the statute.
    Bill for accounting, etc. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    Knight, Barbour & Adams, for appellant; .Tames J. Barbour, of counsel.
    Lawrence P. Conover, for appellee;
   Mr. Justice P. A. Smith

delivered the opinion of the court.

This appeal is from a decree directing appellant, Inter Ocean Newspaper Company, to account to appellee for moneys which appellant has collected from advertisers upon contracts whereby the advertising matter was to be published simultaneously in the Chicago Inter Ocean, Minneapolis Journal, Indianapolis News, and the Des Moines Capital, for the gross sum of $6.60 an inch, $3.24 of which was to be retained by the Inter Ocean Newspaper Company, appellant, and the balance forwarded to the Minneapolis Journal for proportionate disbursements to other papers.

The bill of complaint of the Journal Printing Company sets forth an agreement between appellant and appellee for a joint advertising arrangement, whereby each newspaper corporation instead of confining its contract with its own particular customers to the insertion of advertisements in the particular newspaper which the corporation was organized to conduct and carry on, undertook for the sum of $6.60 an inch to have the advertisements published in the newspapers of the foreign state as well as in the home paper.

The material part of the agreement set up in the bill of complaint relative to the issues presented on this appeal is as follows:

First, the Inter Ocean Newspaper Company agrees with the Minneapolis Journal to solicit advertising in the form of reading matter in Canada for publication in the Inter Ocean daily, Sunday or weekly edition, at the option of the advertiser, and that all such advertising secured in the territory shall appear in the Minneapolis Journal, Indianapolis News and the Des Moines Capital. Under the existing arrangements between the last two mentioned papers and the Minneapolis Journal the Inter Ocean agreed to furnish matrices for simultaneous reproduction in the other papers in which the advertising was to appear, and payment was to be made to the Inter Ocean for the advertising. The Inter Ocean Newspaper Company was to handle the collections, and out of them was to pay to the Minneapolis Journal, the complainant, $3.36 an inch, out of which the Minneapolis Journal was to pay the Indianapolis News and the Des Moines Capital.

On the part of the J ournal Printing Company, complainant, it was agreed it was to solicit advertising in Minnesota and the Dakotas, and it was agreed all advertising secured in the territory for the Minneapolis J ournal should also appear in the Inter Ocean, the Indianapolis News and the Des Moines Capital.

The defense set up by the Inter Ocean Newspaper Company is, that the Journal Printing Company, complainant, is not entitled to prosecute this suit in this state, for the reason that it appears without controversy that it had not complied with the provisions of Chapter 32, Revised Statutes of this state, entitled, “An Act to Regulate the Admission of Foreign Corporations for Profit to do Business in the State of Illinois.” The Circuit Court, upon the coming in of the report of the master, to whom the cause had been referred, entered a decree overruling the plea of the defendant, and holding that the equities were with the complainant, and finding that the complainant was entitled' to receive from the defendant a portion of all moneys collected by the defendant on account of advertising referred to in the contract between the parties set forth in the bill, and ordered that the cause be referred to a master to state and take account of the dealings between the defendant and the complainant.

There is no material controversy in the evidence contained in the record. The complainant had never at any time filed with the Secretary of the State of Illinois its Articles of Certificate of Incorporation, nor had it secured a license permitting it to do business in the State of Illinois. The complainant is a corporation organized under the laws of the State of Minnesota. The defendant, Inter Ocean Newspaper Company, is an Illinois 'corporation, organized under the laws of this state.

The contract in question was entered into on or about the 16th day of January, 1905, and was signed by Lucian Swift, Manager of the Minneapolis Journal, for and on behalf of the Journal Printing Company, complainant, and by A. C. Phillips, Manager of the Inter Ocean, for and on behalf of the Inter Ocean Newspaper. Company. The contract was signed in duplicate, and both copies were signed at Chicago by Herbert Vanderhoof, Ward D. Williams, and A. C. Phillips, as business manager. Thereupon both copies were sent to Lucian Swift at Minneapolis, Minnesota, and were by him signed in Minneapolis. The complainant retained one of the copies and returned the other to the defendant at Chicago.

After the execution of the contract the parties proceeded to carry it out by soliciting advertising in their respective territories for publication in all of the newspapers above named. The proofs and matrices of advertising matter secured by the Inter Ocean Newspaper Company were forwarded by the defendant to the Journal Printing Company, the complainant, and were published by that company, and the defendant company also sent proofs and matrices to the complainant for the use of the Indianapolis News and Des Moines Capital, which the complainant forwarded to such newspapers.

It further appears that the defendant thereupon proceeded to collect for the advertisements, and in many instances remitted to the complainant its portion or share of the amount collected, as well as the shares due the Indianapolis News and the Des Moines Capital.

It further appears that at the date of the execution of the above contract a verbal agreement between the complainant and the firm of O’Meara & Ormsbee existed, whereby O’Meara & Ormsbee agreed to represent the complainant in soliciting advertising for the complainant outside of the state of Minnesota, and especially in Chicago, and that all orders and copy secured by them were to be submitted to the managing editor of the Minneapolis Journal, and O’Meara & Ormshee were to represent the merits of the Journal to the various advertising agencies, and get such Journal on their list. The agreement also provided that various local solicitors were employed by the firm of O ’Meara & Ormshee, and were to be paid by them, and that all orders and copy secured by them were to be sent to the Minneapolis Journal for its approval, and if there accepted, were published in accordance with the terms of such orders in the Minneapolis Journal. Under the agreement O’Meara & Ormshee were paid a substantial sum per week in full of services and expenses for thus representing the Minneapolis Journal outside of the state of Minnesota. While thus representing the complainant orders for advertising were secured in Chicago aggregating $5,000 and upwards per annum. O ’Meara & Ormshee maintained an office in Chicago, and continued to maintain such office at the time of the hearing of the cause; and on the door of the office there was a sign, “O’Meara & Ormshee, representing Brooklyn Eagle, Newark News, New York Globe, and Minneapolis Journal, A. E. Chamberlin, Western Manager.”

It was further agreed that all orders for advertising were to be executed by the complainant at Minneapolis, Minnesota.

In our opinion the execution of the contract set up in the complainant’s bill between complainant and the defendant, and the publication of the advertising matter in the respective journals, was not doing business arid did not involve doing business by the complainant in the state of Illinois in violation of the laws of Illinois relative to foreign corporations doing business in this state. We are of the opinion that the complainant did not at the date of the execution of the agreement or subsequent thereto, while the agreement was in force, transact business in Illinois within the meaning of that section of the Illinois Statute relative to foreign corporations. Booz v. Texas & Pacific Ry. Co., 250 Ill. 376.

The contract in question, in our opinion, was made in Minnesota, where it was finally executed by the business manager of the complainant, but even if the contract was signed in Illinois that does not constitute doing business in this state in violation of the statute. Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727. Nor do we think that the acts of appellee’s agents and representatives, O’Meara & Ormsbee, in soliciting advertisements in this state, subject to the approval of the complainant,"appellee, constituted or was doing business in this state within the meaning of the statute. Beale on Foreign Corporations, sec. 207; Havens & Geddes Co. v. Diamond, 93 Ill. App. 557.

In our opinion the decree of the Circuit Court is correct and it is affirmed.

Affirmed.


text:
    Thomas Knox, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 16,094.
    1. Pleadings—when recovery cannot he had upon declaration charging failure to furnish safe place. If the declaration is predicated upon the alleged negligence of the defendant in failing to fasten the slabs of a platform upon which the plaintiff was working, there must be evidence that it was physically possible or practicable to fasten such slabs.
    2. Master and servant—when doctrine of assumed rislc applies. When an employe has the power to adopt his own method of doing work and he voluntarily selects, of two ways, the more dangerous, he does it at his peril and cannot recover for an injury resulting from such selection.

      Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed February 6, 1912.
    Rehearing denied February 20, 1912.
    Statement by the Court. Thomas Knox, appellee, brought this action in the Superior Court against the Illinois Steel Company, appellant, to recover damages for injuries which he received on August 17, 1903, while in the employ of appellant.
    The declaration consists of two counts. The first count alleges that the plaintiff was in the employ*- of defendant in its slab mill, where there was a certain platform of iron or steel slabs alongside of which the defendant was accustomed in the prosecution of its work to lower or drop ingots; that the platform was not reasonably safe for the plaintiff to work upon or about when raising ingots from off or near the same, and that it was practicable to have so fastened the slabs that they would not jump,. shift or move from their proper position; that not regarding its duty it negligently failed and neglected to so fasten or secure the slabs that a certain large ingot, weighing six tons, was dropped upon or close to the platform, whereupon it became the plaintiff’s duty ‘to assist in raising the ingot, and as a result thereof certain of the slabs composing the platform were caused to suddenly and violently jump, shift or move from their proper positions, and one of the slabs struck against and fell upon plaintiff’s right foot.
    The second count is the same as the first in matters of inducement, and alleges that the plaintiff did not know of the dangers to which the condition of the platform exposed him; that the defendant knew or by the exercise of ordinary care in that behalf would have known that the plaintiff did not know the conditions and understand the dangers to which it exposed him, and that by reason thereof it became the duty of the defendant to have informed the plaintiff of the conditions and to have warned him of the dangers; but, not regarding its duty, it then and there negligently failed and neglected to so inform or warn, the plaintiff, and as a result thereof the injury to the plaintiff occurred in the manner set forth in the first count.
    The case was tried upon the issues made by defendant’s plea of the general issue to the counts of the declaration.
    For about four years prior to the accident the plaintiff had worked in the slab mill of the defendant. Three years of that time he had worked about the machinery, and for a year prior to the accident he had worked as heater helper. For two weeks prior to the accident he had worked as a heater during the absence of the regular man working in that capacity. On several occasions prior thereto he had worked as a heater in place of the regular heater.
    The slab mill was about one hundred feet square. On the east side of the mill were the heating pits or soaking pits. Ingots would be placed in these pits by means of an overhead crane, and would remain there subject to the heat of the gas flame until the temperature was raised to the proper degree for rolling. The pits ran north and south.
    Just to the west of these pits there was a raised brick walk supported by channel or angle irons. The uprights,that supported this walk were about two and one-half feet apart in a line running north and south. Upon this walk the heaters and helpers would stand and pass while attending to the ingots that were in the soaking pits. The slab platform consisted of three slabs of steel. Each slab was about thirty inches wide and from three to four inches thick, and twelve to fourteen feet long, and weighed about 2,200 pounds. When in position the long way of the slabs was north and south. The east side of the east slab was up flush against the channel or angle irons supporting the walk, which was just to the west of the soaking pits. The level of the walk was ten to twelve inches above the level of the slab platform. The adjoining slabs of the platform when in position touched each other. The slabs of this platform rested upon three tiers of rails. The rails in these tiers were about twelve inches apart. The bottom tier of rails rested upon the floor of the building and ran east and west. The middle tier of rails rested upon the bottom tier of rails and ran north and south. The top tier of rails rested upon the middle tier and ran east and west. Upon the top tier of rails the three slabs composing the slab platform rested. The rails extended out about two or three inches beyond the west side of the west slab. Immediately to the west and south of the slab platform was an open space paved with brick extending about forty feet to the west. The slab platform was about ten or twelve inches above the brick floor to the westward. Immediately to the north of the slab platform was a filter which was at the south end of a train of table rolls. The filter was tilted at its lower end inclining at an angle of about 45 degrees towards the north.
    When an ingot was at the proper temperature a heater or his helper, both of them working together, signalled the crane man, who would run his crane over the pit, and the crane mechanism would be lowered and by means of a tong arangement the ingot would be grasped by the crane and hoisted out of the pit. The ingot would then be carried over to the filter and placed in the filter, the crane releasing the ingot. It was the duty of the heater and his helper to see that the ingot properly got to its proper position in the filter, and then as far as the heater or his helper were concerned their work on the ingot was finished.
    When the ingot had been placed in the filter the upper end of the filter was lowered and as the upper ■ end of the filter was lowered the upper end of the ingot would lower until the end of the filter would pass between the table rolls, when the operation of the rolls would engage the ingot and the ingot would be run to the north along the table rolls' until it arrived at the rolls proper where the ingot would be rolled into its proper slab shape.
    It was a matter of frequent occurrence for an ingot to drop from the crane. Sometimes an ingot would drop upon the slab platform, sometimes between the platform and the pits, and sometimes back into the pits. The ingots varied in size and weight from four tons to ten or twelve tons.
    Prior to the construction of the slab platform, about a year before the accident here in question, the dropping of the ingots had resulted in serious damage to the brick work of the flues, by means of which the gas was conducted to the soaking pits. The brick flues ran under the floor upon which the slab platform was constructed. The force of the impact of the dropping of twelve ton ingots had resulted in such injury to this brick work that the expedient of protecting it by means of the slab platform was adopted.
    On the morning of the accident plaintiff had started to work at what is known as the manipulator, which was part of the mechanism of the rolls whereby the steel as it comes through the rolls was mechanically turned so that when it was to pass through the roll again it would be in the proper position for subsequent rolling. He had been ordered by the superintendent to discontinue work at the manipulators and to go down to the pits as a heater. He started down along the west side of the table rolls and at that time saw the crane carrying the ingot over to the slab platform and tilter to place it on the tilter. When a little to the north of the crane he saw the ingot drop from the crane. The ingot when it dropped from the crane fell upon the slab platform striking on the middle slab, and, falling to the west, dislodged the west slab at the north end so that the north end was out eighteen inches to the west of its proper position, leaving a space of about eighteen inches between the east side of the west slab and the west side of the middle slab. The ingot as it lay there after having fallen rested partly on the slab and partly on the floor to the west. Knox, having been assigned to the duty of heater, directed his helper G-runhard to get the fishing tongs to assist in lifting the ing’ot so that it could be placed in the filter. The position of the ingot was such that the crane could not reach it, so the so-called fishing tongs being longer than other were attached to the ingot by Grunhard and Knox. The chain attached to the fishing tongs was then attached to the lift of the crane. Knox stepped away from the ingot about ten feet to the south, and standing in a position about four feet to the west of the west slab which was then out o.f position, gave ú signal to the crane man to hoist. The raising and pulling in of the ingot to the east swung the north end of the west slab to the east, and necessarily the south end of the slab to the west, and plaintiff was struck by the south end of the slab and injured. Immediately upon this happening the crane man lowered the ingot and the weight of the ingot on the north end of the slab raised the south end of the slab and released the plaintiff, Knox.
    Knapp & Campbell and William Beye, for appellant.
    John C. King and James D. Power, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

At the close of the plaintiff’s evidence, and at the close of all the evidence, defendant’s motion for a directed verdict was denied. Defendant presented instructions as to each count of the declaration, directing the jury to find the defendant not guilty as to each count, which the court refused. The jury returned a verdict of $15,000, on which judgment was entered after defendant’s motion for a new trial had been overruled ; and the case is in this court on appeal from that judgment.

It is the contention of defendant, appellant, that the court erred in not directing a verdict as to each count of the declaration; in overruling defendant’s motion for a new trial; in erroneously instructing the jury as to the amount of damages; and in improperly refusing and modifying instructions asked by the defendant.

The negligence averred in the first count of the declaration is that the defendant failed to fasten the slabs of the platform. The defendant at the trial requested an instruction that the jury find the defendant not guilty as to this count. This instruction was refused. Recovery can be had upon this count only upon the negligence charged therein. C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330. There is no word of evidence in the record showing or tending to show that it was practicable or physically possible to fasten the slabs, or what it was possible or practicable to fasten them to in order to make the platform safer. There is no claim on the part of appellee that there is any evidence upon this subject. On the contrary it is argued on behalf of appellee that it was not necessary that any evidence should have been introduced to show that it was practicable to fasten the slabs; that the construction of the platform was of such a simple character that the jury could pass upon that question in the absence of evidence. With this contention we cannot agree. The rule of law in respect to the burden of proof in a suit by a servant against his master for injuries resulting from defective machinery or appliances is stated in Wood on the Law of Master and Servant, Sec. 414, as follows:

“The servant, in order to recover for defects in the appliances of the business is called'upon to establish three propositions: 1st, That the appliance was defective ; 2nd, That the master had notice thereof, or knowledge, or ought to have had; 3rd, That the servant did not know of the defect, and had not equal means of knowing with the master. ’ ’

This is the settled law of this state. Goldie v. Werner, 151 Ill. 551; Armour v. Brazeau, 191 id. 117, 126; Sargent Co. v. Baublis, 215 id. 428, 432, 433; Montgomery Coal Co. v. Barringer, 218 id. 327, 329. If it was not practicable to fasten these heavy slabs to the foundation of the platform so that they would not be broken loose by the falling of large ingots upon them, the defendant was not negligent in allowing the slabs to remain without being fastened. In order to show negligence in this regard it was necessary to show that the slabs could have been securely fastened to something, for, if they could not in the nature of things, be so securely fastened the defendant has omitted no duty to the plaintiff in that regard. The burden of this proof was on the plaintiff, in our opinion. It will not do to leave such an essential element in plaintiff’s case to the pure guess, conjecture or speculation.of a jury. Burke v. Hulett, 216 Ill. 545, 552; A. T. & S. Fe. Ry. Co. v. Alsdurf, 68 Ill. App. 149; Mogk v. Chicago City Ry. Co., 80 id. 411; Patton v. Tex. & Pac. Ry. Co., 179 U. S. 658, 663.

If, as the declaration avers, the defendant negligently failed and neglected to so fasten or secure the slabs that a certain ingot was dropped upon or close to the platform, and it became the plaintiff’s duty to assist in raising the ingot and as a result thereof certain of the slabs composing the platform were caused to suddenly and violently jump, shift or move from their proper positions, and one of the slabs struck against and fell upon the plaintiff’s right foot, we are unable to see that the negligence averred was the proximate cause of the injury. The injury was caused, according to the averments in the count, and the undisputed evidence in the case, after the ingot had fallen, and the slab had been driven from its position by the concussion, and in the work of raising the ingot from its position to place it in the tilter had been commenced. The slab which struck and injured the plaintiff, according to the testimony, was displaced from its proper position by the fall of the ingot. The ingot was lying partly upon the north end of the slab and partly upon the walk or floor of the mill. The fact that the slab was left unfastened up to this point in the occurrence had occasioned the plaintiff no injury. The plaintiff was in charge of raising the ingot from the position where it had fallen, and directed Grunhard to get the fishing tongs to assist in lifting the ingot. The evidence shows that the crane was so far to the east of the ingot that the long fishing tongs were necessary in order to reach it. He then directed the crane man, after the fishing tongs had been attached to the crane, to lift the ingot. He chose his own time in which to give the order; he chose his own position while giving the order, and placed himself so near the south end of the slab that, in the natural course of things, as the ingot would be lifted and pulled to the east, it would drag with it the north end of the slab, and in so doing would naturally cause the south end of the slab to swing around to the west where the plaintiff was standing. The plaintiff might have taken a position where any movement of the slab could not have reached him, but instead of choosing such a position, he negligently chose one within reach of the slab, and he must be held, under the undisputed facts in the case, to be guilty of contributory negligence which proximately and directly caused the injury which he received.

"Where an employe has the power to adopt his own method of doing work, and he voluntarily selects of two ways the more dangerous, he does it at his peril, and cannot recover for an injury resulting from such selection. P. D. & E. Ry. Co. v. Puckett, 52 Ill. App. 222; P. C. Mining Co. v. Harvey, 78 id. 278; C. I. & L. Ry. Co. v. Barr, 204 Ill. 163; Ill. Steel Co. v. McNulty, 105 Ill App. 594.

For two reasons, therefore, the failure to prove the negligence of the defendant, and the contributory negligence of the plaintiff, there can be no recovery under the first count of the declaration.

As to the negligence charged in the second count, that the defendant failed to warn Knox of the fact that the slabs were unfastened, we are of the opinion that independently of what we have said with reference to the first count of the declaration, the evidence does not sustain the charge of negligence in the second count.

The plaintiff in his testimony stated that he did not know before the accident whether the slabs were fastened or not. He walked over the platform many times each day, and in looking down upon it, he says the platform appeared to be a solid part of the mill. The slabs in question, which weighed 2200 pounds each, when placed in their position formed what would appear to be a substantial platform. But here again the plaintiff was not injured by reason of any failure of the defendant to warn him that the slabs were unfastened, for he was injured, as the evidence shows, after the slab had been displaced by the fall of the ingot, and he knew where the slab in question was lying because the north end of it was under the ingot which he was attempting to hoist by means of the crane. It was unnecessary for the defendant to warn him as to where that slab was lying because it was before his eyes and he knew that it was out of position and loose. It would have made no difference in the situation as it existed just prior to the time when plaintiff was injured if he had been warned daily or any number of times prior thereto that the slabs were loose and unfastened. By the dropping of the ingot a new situation was created. The slab was partly off from its resting place, the north end being some eighteen inches further to the west than where it usually rested, and the south end was lying up against the south end of the middle slab. The slab was thus resting partly on the steel foundation and partly off, and thus the ends of the steel beams formed a fulcrum on which the slab was resting.

We are not unmindful of the testimony of the plaintiff, that when he came to the place where the ingot was lying, “the slabs were in their position at that time. The falling on the slab did not loosen or affect the slab at all,” and that there was no displacement of any part of the platform before the ingot was raised. But this statement of Knox is worthless and of no weight whatever, for on cross-examination he says:

“I just got down there in time to see this ingot drop from the crane. It dropped out of the crane. The crane was about six feet from the tilter at the time and it dropped down onto the slab platform.
Q. Could you see what it did to the slab platform when it dropped? A. I didn’t see it do anything.
Q. Did you look at the slab platform to see if it did do anything? A. No.
Q. Didn’t pay any attention to the slab platform? A. No, sir.
Q. You don’t know whether the slabs were all close together or whether they were apart? A. Well, if they were all close—
Q. Wait a minute; you did not look? A. No, sir.
Q. Up to the time the accident happened, you did not look at the slab platform at any time, did you? A. Up to the time the accident happened?
Q. Yes, up to the time it caught you there? A. No, sir.
Q. At any time after this ingot had fallen, when you came up there did you look at those slabs on the table? A. Not before I moved the ingot.
Q. Not before the ingot was moved? A. No, sir.”

If the slabs were all in place after the ingot fell, as Knox testified on his direct examination, in raising the ingot the movement of the west slab which struck the plaintiff would have been impossible physically, for the evidence shows without question that the east slab of the platform, as stated above, rested against the irons which supported the walk.

When appellee took charge of lifting the ingot from the place where it fell, and in lifting the ingot so pulled the north end of the slab to the east, he knew that the south end of the slab would naturally be caused to swing to the west. If he had been warned of the fact that the slabs were loose before this situation was created it could not have changed his action or. added to his knowledge in the least of the situation then existing. The ingot was lying on the north end of the slab and its situation was plainly observable by the plaintiff, so that the negligence averred in the second" count of the declaration, if the defendant was negligent in that regard, had nothing whatever to do with the immediate cause of appellee’s injury. The injury was caused by the lifting of the ingot under the orders of appellee from the place where it had fallen, and in lifting it dragging the north end of the slab to the east and causing the south end of the slab to swing to the west over the ends of the iron frame work.

The situation was fixed and certain at the time the plaintiff undertook to lift the ingot. The plaintiff was responsible for everything done which caused the movement of the slab. He gave all the directions and all the orders, and took a dangerous position with reference to the slab, which he must have seen was out of position and was resting upon the ends of the beams constituting the foundation upon which the slab ordinarily rested. There was no possible connection between the failure to warn, alleged in the declaration, and the situation as it existed when the plaintiff took charge of the work of lifting the ingot from the place where it rested and placing it in the tilter.

In onr opinion the evidence fails to show that the negligence averred in the second count of the declaration was the proximate cause which produced the injury complained of. It follows that no recovery can be had under the second count of the declaration.

As these conclusions are decisive of the action it is unnecessary to consider and decide the other questions argued.

The motions to direct a verdict as to each count should have been sustained by the court, and the jury should have been instructed to find for the defendant. The judgment is reversed with a finding of fact.

Reversed.