author: Mr. Justice Baker

text:
    Maggie Gents, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 15,102.
    1. Negligence—failure to guard electric wires. It is the duty of a traction company employing electric wires to use reasonable care to protect the public against danger from injury. The care to be observed should be commensurate with the danger and failure to exercise such care constitutes actionable negligence.
    2. Verdicts—when not excessive. A verdict for $12,750 rendered in an action on the case for personal injuries in favor of a minor, a girl, is not excessive where it appears that the plaintiff’s hand was severely burned and there were slight burns on other parts of her body; that as a result of the injury to the hand parts of three fingers were amputated, the little finger became attached to the palm of the hand, and a loss of control over the thumb resulted; that since the accident her health has been impaired; that she suffered from severe headaches, nausea and frequent vomiting and does not sleep ,well.
    Action in case for personal injuries. Appeal from the Superior court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in court at the October term, 1908.
    Affirmed.
    Opinion filed June 2, 1910.
    Rehearing denied June 16, 1910.
    Mastín & Sherlock and Frank Crozier, for appellant.
    Elmer & Cohen, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee, a minor, suing by her next friend, brought an action on the case against appellant and the Illinois Valley Bailway Company to recover for personal injuries sustained by her by coming in contact with a telephone wire of the Coal Company which had become charged with a dangerous current of electricity through contact with a trolley wire of the Bailway Company. At the close of the evidence and before the instructions were read to the jury, plaintiff dismissed as to the Bailway Company. The jury found the defendant Coal Company guilty, assessed plaintiff’s damages at $12,750, and from a judgment on the verdict that Company prosecutes this appeal.

The Railway Company operated in Dakota street in Spring Valley an electric street railway with an overhead trolley wire carrying 500 volts, a current of electricity dangerous to human life. The Coal Company had on the east side of Spalding avenue a telephone wire leading from its office to its mine, which crossed Dakota street three or four feet above the trolley wire of the Railway Company. There was a telephone pole at the northeast corner, another at the southeast corner of said street and avenue, and a third on the east side of Spalding avenue 157 feet south from the pole at said northeast corner. From the evidence the jury might properly find that the telephone wire was not •attached to or supported by the pole at said southeast comer. On the other two poles were cross arms, to which were attached glass insulators. The telephone wire was fastened to said insulators by wires called tie wires. Between the pole on Spalding avenue and Dakota street were several tall trees, through the branches of which the wire passed. It broke a few inches north of the pole on Spalding avenue, and the end of the wire hung down near the sidewalk on Spalding avenue. Neither the trolley wire nor the telephone wire was insulated, nor was there any guard wire or other wire or appliance to prevent the telephone wire, in case it broke from coming in contact with the trolley wire, and when the telephone wire broke it did come in contact with the trolley wire and thereby became charged with a dangerous current of électricity. Plaintiff, a girl of eleven years of age, was passing along the sidewalk on Spalding avenue when her hand came in contact with the telephone wire and thereby she received the injuries complained of.

The negligence alleged against appellant in the first count of the declaration is, that it negligently, etc., permitted its telephone wires to become loose and to fall on and across the highly charged wire of the Railway Company so that its wires became charged with a deadly current of electricity and fell on and across a public street, etc.; that alleged in the second count is, that it negligently, etc., permitted its telephone wire to come in contact with the heavily charged wire of the Railway Company and to fall on the street, etc.; that alleged in the third count is, that it negligently, etc., failed and neglected to properly guard or protect its. wires from coming in contact with the heavily charged wire of the Railway Company; that alleged in the additional count is, that it did so negligently, etc., support, tie and keep its telephone wires that same were in constant danger of breaking and falling on the public street, etc., and coming in contact with said Railway Company’s wire and thereby impart to said wires falling on said street a dangerous current of electricity, etc.

We see nothing in the remarks or conduct of counsel for plaintiff, or of counsel for the Railway Company,, to justify or warrant a reversal of the judgment. Nor do we find any reversible error in the rulings of the' court on the evidence or the instructions.

It appears from the evidence that telephone wires-are liable to break at any time. The wire which broke was a copper wire 14 Birmingham gauge. Hill, the manager of a telephone company, a witness for appellant, testified that he had seen lots of copper wires of that description break when it was up. Hetzner, a line man of another telephone company, a witness for appellant, testified that telephone “wires are liable to break at any time.” The evidence for the plaintiff was that it was proper and usual, when a telephone wire crossed over a trolley wire in a public street, to attach such wire to poles on each side of the street, and to fasten such wires to the insulation on the poles by means of tie wires in such manner as that if the wire broke it would not slip through the loop or fastening made with such tie wires. The testimony for the Coal Company was that spans of 150 feet or longer were usual, and that it was not proper or practicable to fasten a telephone wire to an insulator with tie wires in such manner as that such wire would not slip through the loop or fastening; that to do so would tend to kink the telephone wire and cause it to break.

While there is some conflict in the testimony, the jury might from the evidence properly find that when the wire broke, a few inches north of the pole on Spalding avenue, the wire south of the break did not slip through the fastening to the insulator on that pole, nor did the wire south of that pole sag, and also that the wire north of the break did not slip through the fastening of the pole at the northeast corner of Spalding avenue and Dakota street, nor did the wire north of that pole sag. On the question whether it was proper and practicable to fasten a wire to an insulator in such manner as that the wire would not, in case it broke, slip through the fastening, the evidence that defendant’s wire which broke was fastened to an insulator on a pole on each side of the break in such manner that it did not, when it broke, slip through the fastening, would properly have great weight with the jury in favor of the contention of the plaintiff that such method of fastening was proper and practicable. The fact that neither end of the wire slipped through the fastening to the insulator on the pole nearest to the break, and that the wire beyond such pole did not sag, strongly tended to show that if the wire had been fastened to an insulator on the pole at the southeast corner of Spalding avenue, in the same manner that it was fastened to the other two poles, when the wire broke, as it did, it would not have come in contact with, the trolley wire.

Appellant’s witnesses, Hill and Hetzner, also testified that contact between appellant’s telephone wire and the trolley wire should have been guarded against by stringing wires across Dakota street from poles on each side of the place where the telephone wire crossed that street and connecting those wires by two wires parallel with and above the trolley wire. The contention of appellant was and is that as its wires were in place before the trolley wire was put up and the Bailway Company had control of the posts in Dakota street, it was not the duty of appellant, but was the duty of the Bailway Company, to erect and maintain such guard wire.

Appellant maintained above the trolley wire a telephone wire which was liable to break at any time. It was its duty to use proper care to protect the public against danger from injury from its wires and to use to that end such care as is commensurate with the danger. Economy L. & P. Co. v. Hiller, 203 Ill. 518.

We think that from the evidence the jury might properly find that appellant failed to exercise proper care to guard the public against danger of injury from, its wires, but was guilty of the negligence alleged in the declaration, and that plaintiff, without fault on her part, was injured as the direct result of such negligence. The verdict therefore cannot, in our opinion, be held to be against the evidence.

The plaintiff’s hand was severely burned and there were slight burns on other parts of her body. As a. result of the injury to the hand parts of three fingers were amputated, the little finger is attached to the palm of her hand, and she has no control over the thumb. The evidence tends to show that since the accident her health has been much impaired; that she has severe headaches, nausea and frequent vomiting and does not sleep well. Other symptoms described by the physicians indicate a weak heart and a deranged and unstable condition of her nervous system. The evidence further tends to show that there is little probability of any great improvement in her condition, and that her present condition is attributable to the shock she received from contact with- a wire carrying 500 volts of ■electricity. We do not think that the judgment should be reversed on the ground that the damages are excessive. In our opinion the record is free from reversible error, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Zoilesny, Appellee, v. University Club of Chicago, Appellant.
    Gen. No. 15,134.
    1. Master and servant—when violation of rule precludes recovery. If a rule be reasonable and known to the servant and he is injured by virtue of his disobedience thereof, he is not entitled to recover.
    2. Contributory negligence—what equivalent to. If a party is unable to remember what occurred for. some time before the accident and there was no witness thereto and the circumstances point as much to the negligence of the plaintiff as to its absence, he cannot recover. ■
    Action in case for personal injuries. Appeal from the Superior court of Cook county; the Hon Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed June 2, 1910.
    Rehearing denied June 13, 1910.
    Follansbee, McConnell & Follansbee, for appellant; Mitchell D. Follansbee and Ralph D. Stevenson of counsel.
    Frederic D. Jordon, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the University Club of Chicago from a judgment for $5,000 recovered against it by Joseph Zoilesny in an action on the case for personal injuries. In the club house of defendant was a passenger elevator and also a small freight elevator or dumb waiter, operated by an electric motor, which ran to the seventh floor. Plaintiff had been in the service of defendant about six weeks before he sustained the injury for which he sued. The cable which suspended the car of the freight elevator broke," the car fell from the seventh floor to the first, and plaintiff was found in the car with his right thigh bone broken.

We think that from the evidence the jury might properly find that the cable which broke was defective and had been defective for such a length of time, that if the defendant had exercised reasonable care it would have known of such defective condition before the accident, and also, that the plaintiff did not know of the defective condition of the cable, and was not negligent in failing to discover such defective condition.

The car of the freight elevator was three feet wide, two feet two inches deep and four feet high. The side towards the door of the shaft and the top were open. A T iron ran from the center of the top of one end of the car to the center of the top of the other end, and the hoisting cable was attached to the center of the T iron by clamps. It was twelve inches from the rear side of the car to the T iron and twelve inches from the T iron to the front edge of the car. A switch threw the current on and off the motor and was operated by a hand cable. At each floor was a door opening into the shaft, so that a person on any floor could, by pulling on the hand cable, raise, lower, or stop the car. At the seventh floor the car stopped automatically. It was not intended that any one should ride on the freight elevator. To do so a man of ordinary stature must either squat or crouch down in the car so as to bring his head below the T iron, or stand with the upper part of his- body in , the space, twelve inches wide, between the T iron and the back wall of the car, or stand in front of the T iron, where there was only a space of twelve inches between the T iron and the edge of the car. The steward of the Club when he hired plaintiff told him that he must not ride on the freight elevator. He saw plaintiff riding on the elevator only once, and then told him to keep off it, that it was dangerous to ride on it. The kitchen was on the sixth floor, the ice was kept on the seventh, and the eighth was used as a store room. The elevator was used to take up supplies, to take down garbage in cans and take up the empty cans, and to carry cooked food and dishes from one floor to another. Plaintiff prepared the ice for use, swept, cleaned, took up the garbage, placed it in cans and sent them down on the elevator to the garbage man, and took the empty cans from the elevator when they were returned.

The testimony as to the circumstances attending plaintiff’s injury was in substance as follows: Plaintiff testified that he came to the club house at six in the morning and sent down the garbage in cans; that the ice man then brought up the ice to the seventh floor and took it off from the elevator; that plaintiff wanted to sweep the floor of the car and the floor of the room; “I was sweeping the floor and sweeping this elevator, the small pieces of ice, chips of ice and water that was on the elevator; there were other small pieces such as pieces of meat, bone, pie and so forth.” Asked by his counsel the last thing he knew before he was hurt, the position he was in, etc.,.he answered, “I had a broom and in that position was sweeping the floor, (witness rising and stooping over), and sweeping off the dummy.

Q. Were you standing in front of the elevator, or on the elevator then? A. At the elevator sweeping.

The Court: Q. Were your feet on the elevator or were they on the floor? A. On the floor.

Mr. Jordan: Did you hear any noise at that time? A. While sweeping something happened very quick, (the interpreter, ‘the witness snapping his fingers there’), and then I fell down and that is the last I knew. ’ ’ He further testified that the next he knew he was at the hospital. On cross-examination he testified as follows:

“Q. What is the last thing you remember there, when you were sweeping at the University Club? A. Why I remember I had a broom, and I was sweeping and suddenly a crash, and I fell, that is all. Q. Were you facing the elevator at the time you were sweeping? A. Of course, because I was sweeping it off; I had to face it”.

Emma Campana, who was at work on the seventh floor, testified that she heard a snapping noise, then a noise as of something falling, and saw a broom fly back into the room from the elevator. Bussema, called by the defendant, testified that he was the driver of a •garbage wagon; that before the accident he had sent up two empty garbage barrels on the elevator and was waiting for a full barrel to come down; that just then, “the whole elevator came down”, with plaintiff and •an empty soap grease barrel in it; that he took the barrel off from the elevator and then took plaintiff off. Whitcomb, the night clerk, called by plaintiff, testified that when he reached the foot of the shaft plaintiff was still in the car, and that he and a garbage man took him out, and that there was no barrel in the car.

The defendant asked and the court gave the following instruction: “If you believe from the evidence that the plaintiff was, at the time of his injury, riding upon the dumb-waiter, then you are instructed that under the circumstances of this case, as a matter of law, he is not entitled to recover, and you shall find the defendant not guilty.” This instruction was proper under the undisputed evidence in the case. It was a rule of the defendant that no one should ride on the freight elevator or dumb waiter. The rule was reasonable, was known to the plaintiff, and if, in violation of such rule, he was riding on the elevator when injured, he was guilty of such negligence as to prevent his recovery. Abend v. T. H. & I. R. R. Co., 111 Ill. 202; Labat Master & Servant, sec. 365.

As to what caused plaintiff to fall we have only his own testimony, and that fails to show how or in what manner the breaking of the cable caused him to fall. He was standing, according to his testimony, on the floor of the club house, not on the floor of the elevator. The T iron was only four feet above the level of the floor on which he stood and was only twelve inches in front of the back wall of the car. He would not in sweeping the floor of the car take a position which brought his head under the T iron, and there is no evidence tending to show that his head was under the T iron or that it was struck by it. It is said in behalf of plaintiff that the reason that he cannot state by what he was struck or how he came to fall is, that a sudden and severe shock often causes the injured person to forget the circumstances immediately preceding the injury. This view finds support in the testimony of Dr. Doane, a witness for the defendant, and in N. J. R. R. Co. v. Palmer, 33 N. J. Law, 90, and Griffith v. B. & O. R. R. Co., 44 Fed. 574. Admitting that plaintiff was unable to remember what occurred for some time before he fell, and we have a case where there is, practically, no eye witness to the accident. In such case the circumstances must be such as to show that the plaintiff exercised proper care for his own safety. In such a case, where the circumstances point as much to the negligence of the plaintiff as to its absence, the plaintiff cannot recover. Cordell v. N. Y. C. & H. R.. R. Co., 75 N. Y. 330.

In this case the circumstances tend quite as strongly to show that plaintiff was riding on the elevator when the cable broke, as they do to show that he was not. He was found in the car of the elevator at the foot of the shaft. While not impossible, it is exceedingly improbable that he could have gotten into the car after the cable broke.

La our opinion, whether the plaintiff was or was not able to remember the occurrences preceding his fall, the evidence fails to show a right of recovery against the defendant. If he remembered and truly stated all that occurred immediately before his fall, he cannot recover because his testimony fails to show that the breaking of the cable caused or contributed to his fall and consequent injury. If, because of his injury, he was unable to remember the occurrences preceding his fall, then the circumstances pointed as much to negligence on his part, which directly contributed to his injury, as to the absence of such negligence.

For the reasons indicated the judgment of the Superior Court will be reversed.

Reversed.


text:
    Harry L. Null, Appellee, v. Swift & Company, Appellant.
    Gen. No. 15,140.

      Pleading—when declaration in case fatally defective. If the declaration in case for personal injuries alleges no facts from which the law raises a duty on the part of the defendant to protect the plaintiff against the injury of which "he complains, it cannot be presumed after verdict that such facts are proved, and a motion in 'arrest should be granted.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 2, 1910.
    Winston, Payne, Strawn & Shaw, for appellant; John Barton Payne, John D. Black, and John C. Slade, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries plaintiff had judgment for $7,500 and the defendant appealed. There were three counts in the declaration. By consent of both parties the court gave to the jury the following instruction:

“ The ■ plaintiff cannot recover under the second or third count of the declaration herein, and you should disregard said second and third counts of the declaration, and therefore you must determine and decide this case upon the evidence before you under the instructions, the same as if said second and third counts were not in the declaration. So that, wherever the word * declaration’ or the words 1 counts of the declaration’ appear in these instructions, the same shall be construed by you to mean the first count of the declaration. ’ ’

The effect of this instruction was to withdraw from the jury the second and third counts and submit the cause on the issues joined in the first count. The verdict of guilty must therefore be held a verdict of guilty on the first count alone. The verdict of guilty on the first count was equivalent to a verdict of not guilty on the second and third counts, and by the verdict those counts were eliminated from the case. The People v. Weil, 243 Ill. 208.

Defendant moved in arrest of judgment, its motion was denied, and the ruling of the court denying said motion is assigned for error.

The first count alleges that the defendant was in occupation and control of a building used as a soap factory, in which, under the control of the defendant, was an elevator which the defendant ought to have kept in repair, etc.; that not regarding its duty, etc., the defendant negligently suffered said elevator to be and remain in bad and unsafe repair and condition, by means whereof the plaintiff, who was lawfully riding thereon, with all due care and caution, was thrown from said elevator in such manner that his leg was unavoidably caught between the elevator and the casing or opening, and thereby his leg was broken and crushed, etc.

The count is defective because it fails to state facts from which the law raises a duty on the part of the defendant to protect the plaintiff from the injury of which he complains. The allegation that it was the duty of the defendant to keep the elevator in repair, etc., was but the averment of a conclusion or inference of law. McAndrews v. C. L. S. & E. Ry., 222 Ill. 232.

In that case, in answer to the contention that the defect in the declaration was cured by verdict, the court said, p. 241: “The rule is, if the declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the findings of those which are alleged, a verdict, for plaintiff does not cure the defect. (Foster v. St. Luke’s Hospital, 191 Ill. 94.) Here, one of the elements of the plaintiff’s cause of action, viz: the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains, was wholly omitted from the declaration, and the averment thus omitted cannot be implied or inferred from the facts which are alleged in the declaration. Such omission was, therefore, not cured by the verdict.”

In this case, as in that, no facts from which the law raises the duty on the part of the defendant to protect the plaintiff against the injury of which he complains, are alleged, and it cannot be presumed, after verdict, that such facts were proved, because the facts from which the law raises such duty are not such as can be-implied or inferred by fair and reasonable intendment, from the facts which are alleged in the first count of the declaration.

The count is clearly insufficient to support the judgment, and the court erred in denying defendant’s motion in arrest of judgment. For that error the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    In re Estate of Elizabeth E. Smith, deceased. A. R. Hallgren, Appellant, v. William H. Utt, Administrator de bonis non, Appellee.
    Gen. No. 15,147.
    Administration of estates—when bar of statute against claim, arises. If a claim is not presented for allowance within the year prescribed by statute it can only he made payable out of subsequently discovered assets, and an administrator de bonis non is not estopped from urging the bar of such statute because of his representation to the claimant (which amounted to a misrepresentation of law) made before his appointment that there was ample time for the presentation of such claim.
    Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthilt., Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 2, 1910.
    Eric Winters, for appellant.
    Wallace E. Shirra, for appellee; Mason & Mason, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

November 24, 1905, letters of administration of the estate of Elizabeth E. Smith, deceased, were granted to Sheridan E. Fry by the Probate Court. February 19, 1907, A. R. Hallgren exhibited to said court his claim against said estate for money lent to the decedent, which was allowed for $1,047 as a claim of the seventh class, to be paid out of after discovered assets only. On appeal to the Circuit Court the claim was again allowed for $1,047 as a claim against said estate of the seventh class, to be paid out of after discovered assets only, and the claimant appealed.

The only question presented is as to that part of the judgment appealed from which provides that the claim shall be paid out of after discovered assets only. That question was saved for review by propositions of law submitted by the claimant and refused by the court.

The statute provides that claims of the seventh class shall include “All other debts and demands of whatever kind without regard to quality, or dignity which shall be exhibited to the court within one year from granting of letters as aforesaid, and all demands not exhibited within one year as aforesaid shall be forever barred,” except as to after discovered assets. R. S., chap. 3, sec. 70, clause 7.

The claim of Hallgren was not exhibited to the Probate Court within one year from the granting of letters of administration and was therefore, by the terms of the statute, barred except as to after discovered assets.

The contention of appellant is, that under the facts shown in this case it would be unjust and inequitable to permit the administrator and heirs of the intestate to set up the statute as a defense to the claim. The facts relied on are those stated in the testimony of William H. Utt, a witness called by the claimant. Mr. Utt testified that he represented the intestate in her lifetime in a suit which was tried four times; that the intestate desired the claimant to be a witness for her in said suit, and he demanded that she pay the claim in question; that claimant delivered to Mr. Utt certain checks on which the greater part of his claim was based, for which Mr. Utt gave him a receipt promising to return said checks on demand; that Mr. Utt was appointed administrator de bonis non of said estate in February, 1907, and did not return to claimant said checks until after such appointment; that after the death of Mrs. Smith he represented her heirs at law and settled the suit referred to and received in settlement a large sum of money; that during the year next after the granting of letters of administration, the claimant repeatedly asked Mr. Utt if he should file his claim against said estate, and was told by Mr. Utt that he need not do so; that he had until the Spring of 1907 to file the claim, and that the heirs of Mrs. Smith had promised to settle his claim. Mr. Utt further testified that he had formerly practiced law in Iowa, had not had much experience in probate law in Illinois, and thought that the law of Illinois, like the law of Iowa, gave a claimant a year to present claims from the last publication of notice to present claims; that it was at his urgent suggestion that claimant did not file his claim.

The claim was barred by the terms of the statute when Mr. Utt was appointed administrator de bonis non. It is therefore immaterial what he may have said to the claimant after his appointment. His representation to the claimant that he had until the Spring of 1907 to file his claim was a representation as to matter of law.

We do not thinh that because of such representation, made before his appointment as administrator, he, as administrator, was estopped from insisting on the bar of the statute, and the judgment of the Circuit Court will be affirmed.

'Affirmed.


author: Mr. Justice Freeman

text:
    John W. Schwab, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 15,097.
    1. Trial—what conduct of judge not improper. While it is not proper for a judge to undertake to influence the jury upon questions of fact, it is entirely within his province if he does not understand the testimony of a witness to ask him concerning such testimony and to seek to make that clear which otherwise would be ambiguous.
    2. Instructions—what not exclusion of theory of intoxication. Held, that if the instruction upon the question of the exercise of ordinary care criticised in this case did in fact exclude from the jury the alleged theory of the defense that the plaintiff was intoxicated at the time of the accident, yet complaint could not be made because the defendant had caused an instruction to be given which contained a like vice.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Bkentano, Judge, presiding. Heard in this court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 2, 1910.
    John A. Bose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    Carleton H. Pendleton, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment against the defendant in an action to recover for personal injuries.

It is contended by defendant’s attorneys that “the verdict is not supported by and is against the weight, of the evidence.”

There is evidence on the part of plaintiff tending to show that on Christmas eve, 1906, at about eight o’clock he was a passenger riding on the rear platform' of a motor car, which with a trailer constituted a train operated by the defendant upon its street car line on Lincoln avenue, Chicago. It appears from such evidence that at a point near the middle of the block between School street and Eoscoe street there was a sudden jerk of the car, which had slacked up and been suddenly started again at full speed. The plaintiff testifies as follows: “With this jerk it bumped me up against the controller and pitched me forward head first out of the car, and I grabbed the nearest thing I could see. I grabbed the grab handle on the car and it tossed me round between the cars. I don’t remember how I lit; I remember striking the street. The next thing I remember was the trailer passing over me, over my left leg at about the knee. It took the heel off my right, shoe and badly bruised my right ankle. ’ ’ His left leg was crushed, and he was taken to the Alexian Brothers Hospital, where that leg was amputated about ten or twelve inches above the knee. His right leg was bruised and had some of the flesh of the calf of the leg . torn off. There is evidence tending to show that the road bed at the point where the accident occurred was “paved from side to side with blocks” and was in such condition that, as is testified, “if we had a little rain, the next morning you would see the blocks swimming all over the street.” It is stated by plaintiff’s witnesses that the tracks were not level there, that “they were continually repairing that track,” that “the rail was not heavy enough for them big cars” and that “it was continually bump, bump, bump all the time;” that the jerk at the time of the accident was unusual and sudden, a hard jerk; that “the effect of the jerk on the trailer car was that it gave such a jerk” that it “bumped into the motor ear; it gave an awful jerk;” that the effect on men standing on the front platform of the trailer car was that they fell “over toward the end of the car;” that plaintiff was standing on the inside of the rear vestibule, facing in the direction the •cars were going; that as the cars started up the jerk pitched him head first out of the car, “threw him hard enough to go out of the car and down to the street;” that “this jerk put the other passengers standing in that vestibule off their balance” and caused the trailer to crash into the motor car.

There is evidence on the part of the defense to the •effect that the plaintiff “rushed off,” that he “jumped off” and that he carelessly slipped and fell off the car. It is argued that in view of the fact plaintiff had the free use of his hands, it was a physical impossibility in view of the character of the jerk described by plaintiff’s witnesses, that he should have been thrown by it bodily forward and off the car if at the time he was ■capable of exercising and was exercising due care. If the jerk was as sudden and severe as it is said to have been, we are not able to agree with defendant’s counsel that it was a physical impossibility for the accident to have occurred as plaintiff says it did. He seems from his evidence to have made such use of his hands as any man might reasonably be expected to make under similar conditions. It would have been better for him apparently had he not so used them, for in such case apparently he might have been thrown directly out on the street and so escaped from being swung around to the rear and under the wheels of the trailer behind. It is argued however that the jerk, if it occurred, is not under the evidence attributable to negligence in the operation and management of the car. The plaintiff says "he was standing on the rear platform, not on the steps of the car, and that he stood out there because “the seats were all full and people standing in the aisles.” Whether the accident occurred through negligence of the defendant was a question for the jury. There is evidence from which they might conclude as they did that it resulted from such negligence. It was also a question for the jury whether plaintiff was in the exercise of due care for his own safety.' There is evidence tending to show the jerk in this instance was unusually severe and sudden, and evidence also from which the inference may be drawn that it was as said in defendant’s brief, but “a little more than ordinary.” It appears from the evidence the tracks were in such condition the jury might reasonably conclude that momentary negligence on the part of the operator of a car might cause a severe jerk or bump such as plaintiff testifies threw him suddenly to the street. The defendant contends that as there is evidence of two witnesses tending to show plaintiff was intoxicated he “may have been stupid enough to be uncertain and negligent.” One witness testified that he believed plaintiff to have been under the influence of liquor, but there is evidence to the contrary and no good reason appears which would warrant us in setting aside the verdict supported as it is by sufficient credible evidence.

It is objected that the court made improper remarks-prejudicial to appellant. One of defendant’s witnesses testified that plaintiff “rushed right past me and jumped off.” The court thereupon inquired, “Didn’t you say he jumped off the car?” The witness replied, “Yes sir.” No objection appears to have been made at the time and no exception was taken. If there had been objection, the contention that the question of the court was prejudicial is based on mere conjecture and so far as the record shows does not appear to be well founded. It is the duty of the trial judge to listen to and endeavor to comprehend testimony. If he does not hear it or if it is in any respect ambiguous,. we know of no reason why he may not ask the witness to make it clear. No basis exists in principle or precedent so far as we are aware which requires him to be a mere automaton. It is not of course proper for a trial judge to endeavor to influence a jury upon questions of fact which are exclusively within the jury’s province. We find no reasonable cause to suppose the remark of the court referred to was prejudicial.

No material error appears in the rulings of the court on evidence to which objection is urged. The evidence tending to show a crowded condition of the cars, while it had no direct bearing on the negligence alleged in the declaration, seems to have been admitted without controversy. It tended however to explain why plaintiff was riding on the platform of the motor car. At the place of the accident there was a sign notifying patrons of the line that “ears stop here.” It was proper to identify the place of the accident. That the conductor “grew angry” when signals to stop were given him at the time of the accident was brought out in answer to a question to which it was not perhaps fairly responsive ; but the question was proper and the course of the conductor in jerking the bell cord to go ahead was part of the res gestae. What was done by him after the accident was not otherwise competent and had no relation to the question of negligence causing the injury. But it was not we think harmful in the present instance.

The evidence as to the condition of the road bed was competent. If the condition was bad, due caution was to be expected in management of the cars running over it at that point. Testimony as to the effect of the alleged jerk upon any part of the train, that it caused the trailer to bump into the motor car ahead and disturbed: the equilibrium of other passengers, was competent.

It is urged the second instruction in behalf of plaintiff excluded from the jury the defendant’s theory that plaintiff was drunk. The instruction defined ordinary care as that degree of care which persons of ordinary prudence would ordinarily exercise for their own safety under the same circumstances which the jury believed from the evidence “surrounded the plaintiff before and at the time of his alleged injury.” The instruction clearly referred to the physical circumstances surrounding him and the car itself, together with the condition of the road bed, not to plaintiff’s physical condition. If it can be supposed the jury could understand the circumstances referred to in the instruction as including possible intoxication of the plaintiff, which would we think be a strained view, then what is said in Wilcke v. Henrotin, 241 Ill. 169-173, is in point, since defendant requested and obtained an instruction open to the same objection. Apparently neither party' deemed it worth while under the evidence to submit instructions based upon the theory that the evidence warranted the jury in finding plaintiff to have been intoxicated at the time of the accident.

The damages awarded are large, but we are unable to say in view of the serious nature of plaintiff’s injuries that the jury were not warranted in the amount of the verdict by the evidence. In such case the court is of opinion that interference would not be justified.

The judgment must be affirmed.

'Affirmed.


text:
    John McMasters, Appellee, v. Grand Trunk Railway Company, Appellant.
    Gen. No. 15,112.
    1. Master and servant—right of latter to rely upon performance of duty 6 y former. It is the duty of the master to exercise ordinary care to furnish the plaintiff a reasonably safe place for his work and the latter has the right to presume and act upon the presumption that'this has been done.
    2. Master and servant—when doctrine of assumed rish does not apply. If a servant is injured in obeying the order of his foreman the doctrine of assumed risk does not apply.

      3. Instructions—effect of use of phrase “to establish.” The plaintiff is not required “to establish” any elements essential to recovery; his burden is simply successfully to carry the onus of proof where the burden of proof rests upon him.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 2, 1910.
    Kretzinger, Gallagher & Rooney, for appellant.
    TTtratvt Blaisdell, James L. Bynum and Herren & Standidge, for appellee; Oliver R. Barrett, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment against defendant for personal injuries.

Material facts are in substance as follows: Plaintiff was employed by the defendant in the latter’s" roundhouse at Elsdon, Illinois. In the roundhouse there was an excavation or pit over which engines were placed in order to be repaired. Upon the 14th of November, 1905, plaintiff, who was a machinist, was directed by his foreman to go into this pit and take the “jacket” off of an engine which had been somewhat damaged by an accident. The engine was already in position over the pit. It had been found necessary in order to enable the repairs to be made to remove what is known as the “buffer beam” from the front of the engine. Attached to this buffer beam and extending out about eight inches in front of it was what is called a “casting,” a square block of iron, it is said, “about 12x12 in depth” and about “15 inches wide,” which weighed in the neighborhood of 250 pounds. There is a difference of opinion as to the weight of the buffer beam and attachments varying from about five hundred to a thousand pounds. The buffer beam had been removed from the engine by two machinists in defendant’s employ several hours before the accident. These men had blocked the beam up, using, as one of them states, “four or six timbers.” According to the testimony of one of them, the first two timbers were laid across the track. They were 10 by 12 timbers and were seven or eight feet long. Across them two 8x6 timbers were laid, which were four feet long, and “then there was another small piece laying up on top of them to fill up under the buffer beam.” The other of the two men who blocked up the buffer beam says the third course was “a 4x6 on top of” the second course of timbers and that “we might have put an inch board on top of that; I don’t say whether we did or not.” The recollection of the two men differs, it will be seen, as to the way in which the blocking up was done. The buffer beam having been detached and left resting on this support, the two men “pinched” the engine back twelve or fourteen inches and left the buffer beam resting on this blocking.

Plaiiftiff had been working at that roundhouse about nineteen years. On the morning of the accident he was directed by the foreman to take the jacket off the engine. He at first tried to get into the pit under the engine by “going in between the two drivers,” but found he could not do so by reason of “brakes on them,” and there was no room to get in between the brakes. He then undertook to go underneath the front of the engine. He got down on his side, the usual way, he testifies, of going under, and had gotten his feet in the pit when the buffer beam and casting attached came down upon him, causing the injuries complained of.

It is urged in defendant’s behalf that the evidence is not sufficient to sustain the verdict and judgment; that plaintiff failed to prove the negligence charged in the declaration; that the fact the buffer beam fell did not create a presumption of negligence of defendant. There is however without doubt, we think, evidence from which the jury might properly draw the conclusion that if the.beam had been properly supported by the blocking under it the fall would not have occurred. There is conflict in the evidence as to whether the beam was supported in the usual and customary way. There is evidence however tending to show that it was not. The support was, it is said, entirely under the beam itself and there is evidence tending to show there was no support under the casting attached, estimated to weigh from two hundred to nearly six hundred pounds, and projecting out from the front of the buffer beam. There is evidence tending to show that the cross timbers laid above the first course were between three and four feet long. Defendant’s witnesses say four feet. The buffer beam is described by plaintiff as being 1 ‘ 10 by 12 or 12 by 12, eight foot six long, and the casting fastened on the center.” Upon this state of the evidence it was not error to submit the question of defendant’s negligence to the jury.' It is clear from the nature of the accident that the support as it was placed under the beam and attachment was not adequate, and whether the inadequacy was caused by failure to place the support under the heavy projecting casting as well as under the beam itself, or whether it was caused by the shortness of the cross timbers or the way in which the timbers were placed, and whether the existence of these conditions constituted negligence on the part of the defendant, were proper questions for the jury. It was the duty of the master to exercise ordinary care to furnish the plaintiff a reasonably safe place for his work, and the latter had a right' to presume and act upon the presumption that this had been done. As said in Missouri Mai. Iron Co. v. Dillon, 206 111. 145-152, £‘The master cannot screen himself from liability upon the ground that he did not know of the defects in his appliances, if he might have known of them by the exercise of due care. ’ ’ The plaintiff was not required to inspect the supports placed under the buffer beam and attachment. It was the duty of defendant to use reasonable care to keep them fit, and this duty may require inspection. ‘ ‘ This duty of inspection rests upon the employer and not upon the employee and depends upon the character of the machine or appliance, since ordinary care may require an inspection oftener in one -case than in another.” Armour v. Brazeau, 191 Ill. 117, and Wrisley Co. v. Burke, 203 Ill. 250, cited in Missouri Mal. Iron Co. v. Dillon, supra, p. 153. It is urged the accident may have occurred from insufficient blocking or a latent defect in some of the timbers or by appellee himself displacing the beam, or by the manner ■of the blocking. If we assume that the timbers of the ■support may have been disturbed by the effort of plaintiff to get under the engine at that place and so caused to give way, the supposed fact would not relieve the •defendant. There is evidence tending to show that plaintiff was ordered under the engine and that in obeying the order he was obliged to go as he did, other ■openings into the pit being closed by the engine and .appliances. There is evidence to the effect that as a witness stated, “that is the only way I seen to get under. They had the engine pinched back and that is the only place he had to get through there.”

In view of the undisputed evidence that plaintiff was injured in obeying the order of the foreman, the objection that instructions complained of excluded the defense of assumed risk is not well taken. In such case the question of assumed risk is not involved, where as hiere it is negatived in the declaration, which charges that plaintiff was injured while he was going into the pit “pursuant to the orders and direction of defendant,” and also “in compliance with the request and demand of the defendant.” The evidence sustains the ■declaration in this respect. As plaintiff was acting under defendant’s order, defendant “cannot invoke the •doctrine of assumed risk in this case to relieve itself from liability.” Springfield Boiler Co. v. Parks, 222 Ill. 355-360, and cases there cited. Kirk v. Jajko, 224 Ill. 338-343. In the case at bar there is no evidence which tends to show that plaintiff had or should have had any knowledge of the unsafe condition of the supports of the buffer beam, and “therefore no proof upon which an instruction stating the doctrine of assumed risk could have been based.” Byrne v. Field, 237 Ill. 384-389. On the other hand plaintiff testifies that he- ' had no such knowledge.

It is urged that the court erred in refusing two other instructions ■ requested by defendant’s counsel. The ■ first of these would have required the plaintiff “to establish” certain propositions. This would have been clearly erroneous even if the propositions themselves-were sound. The plaintiff does not have to “establish” but is required to support his case by a preponderance of evidence. The other refused instruction was inapplicable to the evidence. There was no error in the refusal complained of.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Warren A. Lathrop, Appellee, v. Robert R. Carrol, Impleaded, Appellant
    Gen. No. 15,136.
    Statute of limitations—when foreclosure proceeding not tarred. The statute which bars foreclosure unless the proceeding is commenced within ten years after the right of action accrues, does not operate as a bar until after the lapse of ten years from the last payment made on the note secured by the trust deed sought to be foreclosed.
    Foreclosure. Appeal from the Superior Court of Cook county;, the Hon. Fablin ,Q. Ball, Judge, presiding. Heard in this court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 2, 1910.
    Rehearing denied June 23, 1910.
    A. B. Chilcoat, for appellant; W. P. Black, of counsel.
    George W. Brown, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The defendant, appellant herein, encumbered certain described property by a trust deed to Baird and Brad- „ ley of Chicago to secure a note for $1,500 dated August 1, 1892, payable in five years with interest at six per cent' evidenced by ten coupon notes. The principal note contained a clause as follows: “And if the time for the payment of the principal sum shall be extended the provisions of said note shall continue in force during the period of such extension and until the sums hereby secured are fully paid.” Subsequently September 27,1893, a second mortgage was executed to another party to secure a note for $130; and August 11, 1905, a third mortgage or trust deed was executed securing a note for $400 of that date, payable to Warren A. Lathrop, the complainant herein. The latter having purchased the $1,500 note secured by the first mortgage, filed his bill on the 28th of October, 1907, to foreclose the said first trust deed and also the trust deed given to secure the $400 note to complainant.

It is claimed in behalf of the defendant that more than ten years had elapsed after the maturity of the $1,500 note when this foreclosure suit "was commenced, that there was no written agreement to extend the time of payment of that note after its maturity, that no interest payments were endorsed on the note in defendant’s presence or with his knowledge or consent, and that he is not indebted to complainant in the sum of $1,500. The note contains endorsements as follows: “3At. paid to February 1,1898” and “Int. paid to Feb. 1, 1905.” There is evidence tending to show that the interest had been actually paid from time to time up to the dates as shown by said endorsements, which were made when the note was transferred to complainant, from memoranda made at the different dates when such payments of interest were actually made to the then holder. of the note. These separate payments were not themselves endorsed on said note at the dates when they were made. There is evidence however to the effect that the ten original interest coupons evidencing the interest agreed to he paid on the $1,500 note were all paid and that all the additional interest accruing on said principal note up to the first of February, 1905, was also paid, and the defendant does not deny these payments. A receipt for $45.50 dated April 5, 1898, signed by Baird & Bradley by a cashier who testified at the hearing, and purporting to be for interest due April 1, 1898, was produced by defendant from his files, as he testified, and was introduced in evidence by complainant. The evidence shows conclusively that defendant had designedly paid the interest on this $1,500 note within less than ten years of the time when the present foreclosure suit was begun, and thus acknowledged the obligation.

The statute of limitations provides (R. S. of 1905, p. 1333, sec. 16) that actions on promissory notes “shall be commenced within ten years next after the cause of action has accrued;” but that “if any payment or new promise to pay shall have been made in writing on any * * * note * * * within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.” The words “if any payment or new promise to pay shall have-been made in writing,” do not require the evidence of the payment to be preserved in writing, but only requires the new promise to pay to be in writing. Bowles v. Keator, 47 Ill. App. 98. In Schifferstein v. Allison, 123 Ill. 662, the meaning of section 11, chapter 83, R. S. is construed. That section is as follows: “No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature -of a mortgage unless within ten years after the right of action or right to make such sale accrues.” The court says: “The mortgage or deed of trust confers, not upon its holder but upon the holder of the debt, the right to resort to the property described for its payment, and so it is impossible that an action or right to make a sale shall accrue unless it shall accrue under the debt. What therefore the word ‘accrue’ means in the 16th section it must mean in this section”—(section 11 above quoted)—“the two must be construed together ; and thus construing them, it is quite apparent that the cause of action or right to make a sale is to be regarded as having accrued after the last payment endorsed upon the indebtedness.” Any payment of interest or part of the principal renews the mortgage so that an action may be brought to enforce it within the statutory time after such last payment. 2 Jones on Mortgages, sec. 1198, p. 150. The action in the case at bar was brought within ten years after the payment of interest on the note for $1,500 in controversy, and was not barred by the statute of limitations.

The judgment of the Superior Court will be affirmed.

Affirmed.


author: Mr. Justice Freemah

text:
    Neil J. Shannon, Administrator, Appellee, v. Iroquois Iron Company, Appellant.
    Gen. No. 15,141.
    Master and servant—when doctrine of assumed risk applies. If an accident result to a servant from dangers incident to his em- • ployment of which he was not ignorant and of which he was bound to know in the exercise of ordinary care for his own safety, he cannot recover.
    Baker, J., dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Co.urt of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed June 2, 1910.
    Winston, Payne, Strawn and Shaw, for appellant^ John Barton Payne and John C. Slade, of counsel.
    Pease, Smietanka & Polkey, for appellee.
   Mr. Justice Freemah

delivered the opinion of the court.

This is an appeal from a judgment against the defendant in an action to recover for alleged negligence causing the death of plaintiff’s intestate. The deceased had been employed at the time of the accident about five years as a helper upon defendant’s furnaces, on one of which he met the accident causing his death. He had worked during that time alternately upon day and night shifts of two weeks each.

The declaration avers that the ordinary and usual duties of the deceased Corak were to act as keeper of a certain high furnace used by defendant for the smelting of iron, “and to look after the same and the operations thereof in the process of heating and melting iron and ore; that at the time of the accident the said furnace was in process of repair; that he was taken from his said employment and directed to assist in laboring around this furnace; that in the process of repairing the furnace a certain railing which had formerly been on the top of the furnace and certain portions of the top of the furnace had been removed, leaving holes or openings therein; that Corak did not know of the removal of the railing or of the existence of the holes or apertures; that about one o’clock A. M. of April 4, 1907, the night was dark and conditions and objects were indistinguishable without a light; that it began to rain at that time and defendant’s foreman directed certain of the employes, including Corak, to go to the top of the furnace and spread a tarpaulin over the openings in the top to keep the rain from falling on the inside of the furnace. It is charged that defendant failed in its duty to exercise proper care in giving warning of the dangers caused by the removal of the railing and the existence of the openings in the top of the furnace, and that in consequence of such neglect of duty on the part of the defendant, Corak while performing his work upon the top under orders of the defendant and exercising due care himself, fell from the top of the furnace a distance of fifty feet and was killed.

Uncontradicted evidence tends to show that upon March 14th, about three weeks before the accident, the furnace had been blown out to be cleaned and repaired, after having been running constantly over seven years. On the night of the accident the deceased came to his work about six o ’clock in the evening while it was still light. He was doing some cleaning of iron upon the ground. Plaintiff’s evidence tends to show that while the repairs were in progress Corak had worked three or four days about the middle of March on top of the furnace from which he fell, 11 a part of the time throwing the old bricks off the top.” He and his fellow employes while the furnace was not running were doing ‘1 any kind of work that came up to help repair the furnace so that we could go to work on our regular jobs,’’ as one of them testifies. “At the time he fell the brick men were working inside the furnace mouth or hopper, lining it with brick.” The boiler makers had been at work two weeks, removing old plates around the top of the furnace and putting in new ones. These plates made a circular platform all around the mouth at the top of the furnace. Four of these plates had been removed and were out at the time of the accident. There were two elevators which ran from below to an elevator house on a level with the top of the furnace. In front of the elevator house was a platform or floor 22 feet wide and 17 feet long made of iron extending to and on a level with the top of the furnace and connecting the elevator with the circular platform surrounding the top. This circular platform was constructed of the iron plates above referred to, which were in process of removal and restoration at the time of the accident. The first of the removed plates left an opening which was about seven feet beyond the extreme point where the outside of the elevator platform connected with the outside of the circular platform about the furnace top.

Just before the accident, when it • began to rain slightly, one of the “bosses” directed a canvas or tarpaulin to be taken to the top of the furnace to cover it and protect the workmen laying bricks inside. Five workmen, including the deceased, were sent with the canvas up to the elevator. It was dark up there, and after lighting a small light the boss went down to get a larger one and brought up a torch. Two additional “torches were lit on the top,” and were “placed there so we could see well the plates. They were standing upright about one foot above the plates.” The foreman held the torch he had brought. “It was a stick wrapped with waste which was dipped in kerosene oil and lighted.” Two of the men began spreading the canvas over the furnace mouth. One was standing on what was the right side of the furnace to one looking forward from the elevator platform. This man testifies, “I was standing there where the plate was taken out and George was opposite me on the other side. Corak was standing at the first post where the lights were. We were all together and the foreman. I was standing and working with George. Nic Corak and Vidovic were looking at us. They were not working then. George and I were pulling the canvas.” The witness states that the last time he saw Corak he was near “the first post where the three were standing, where the lights were lit.” While this witness, Marie and George were spreading the canvas and Vidovic was helping a “very little” and when they had been at work not over five minutes a noise of something falling was heard. The men looked around and11 saw one man was missing. ’ ’ The foreman called out, but got no answer. Then the men went down on the elevator. The dead body of Corak was found on the roof of a shed some fifty feet below and at the side of the furnace.

Plaintiff’s witness Marie states that when the party were going up in the elevator together, the foreman “told ns to look out and not fall down.” When they got on the top of the furnace and it was dark the foreman again “warned us to watch out and not to fall in and said ‘You can see some of the plates are off/ When he came back with the lighted torch he said to us, ‘look out for the plates being taken out—see the plates being taken out/ ” At that time “we were all standing around him close together.” The witness Marie is corroborated by Vidovic, also a witness called by .plaintiff. The latter says: “WThen we got up to the top of the furnace the foreman told us to look and not fall in anywhere. He told us to look out and watch it well and not to fall in down below, not to fall down. I heard it well. This was said when we went on the top and were all standing there close together.”

It appears from Vidovic’s testimony that the deceased and Marie and Vidovic were from the same country and they all, including Corak, the deceased, “spoke the same language as George and Val.” The latter, Val, was the foreman, who gave the warning. The same witness on redirect examination said that “the foremen George and Val did not speak Croatian as well as we, but we understand each other very well. Their native language is Slavic.” The witness Marie being recalled testified through an interpreter as follows : “I always understand whatever orders Val gives me, and the same way with George, whatever he says I understand. Why shouldn’t II He knows my language and he tells me in mine. The same was true of Corak and Vidovic. They understood also. We five men were working in the same gang a number of years. * * * Nic Corak had' been working on that gang about five years at that place with these same men, Val and George. Val and George had been either workmen or foremen with him all that time.”

The foreman, Valentine Smobrilla, called as a witness for the defense, testified to practically the same state of facts. He says he expressly told the men there were some plates taken out, and that they all said, “All right,” that they would take care of themselves. He says he spoke Slavish to them and that “there is a little difference between the Croatian and Slavic language.” He had known the deceased five years, had talked much with him during that time and “understood what he said to me;” that he talked to Corak in the Slavic language and that Corak “spoké pretty near the same thing, spoke pretty good. I always told him what to do and he did it.” There is other testimony, .all of it corroborative of that above set forth, and tending to show that the openings left by the removal of plates were pointed out to the men there and could be ■distinctly seen by them. The foreman states that Corak had been on the furnace since he knocked the bricks out and five or six days before the accident.

It is contended in behalf of defendant that the deceased assumed the risk of the conditions existing; that plaintiff failed to show the exercise of ordinary care for his own safety on the part of the deceased, and to prove that the fall was caused by any act or omission ■of the defendant; that deceased was guilty of contributory negligence and that appellant was guilty of no negligence. If it be true that the evidence fails to show that the fall of the deceased which caused his death was the result of some negligent act or omission on the part of the defendant, it will be unnecessary to consider the other contentions. It is claimed by plaintiff’s counsel that the defendant was guilty of negligence in having carelessly failed to warn Corak of the dangerous conditions at the top of the furnace. It is conceded in the brief of plaintiff’s counsel that the deceased had been at the top of the furnace “some six days before the accident, when he went up with Smotrilla, the foreman, to assist in placing some planks over the funnel of the furnace,” and that about four days before that time and “some ten days before the accident,” the iron workers or boiler makers began operations at the top of the furnace, removed the railing and started to replace the iron plates of the platform with new ones. He had worked there previously also. That Corak could have done the work of placing planks over the furnace without noticing that the iron workers were engaged in removing old plates and substituting new ones, there is no evidence tending to show and is not reasonable to suppose. That he could have worked anywhere as he did about that furnace which for five years he had been familiar with, and have remained ignorant of the fact that the work of tearing down and rebuilding was going on at the top as well as elsewhere, it is not easy to believe. The openings left where old plates were taken away must have been visible from below to one looking up at any time. But we are not left to conjecture as to his having been warned. The uncontradicted testimony of practically ■ all the witnesses present at the time of the accident tends to show that he and the others were directly warned by the foreman at the time that plates were out and that they must all be careful not to fall. That the-deceased was ignorant of the dangers there is no evidence to show and no evidence of circumstances from which it can be inferred. There is affirmative evidence tending to show he could not have been so ignorant. The burden of such proof of ignorance was upon the plaintiff. In Swift v. Gaylord, 229 Ill. 330-340, it is said: “Knowledge or want of knowledge of a defect may be inferred from the circumstances, but by whatever evidence the fact must be shown the burden of proof in that regard rests upon the plaintiff.”

A fatal defect in the plaintiff’s case is that the evidence entirely fails to show how or why or where the deceased fell. No one saw him fall and the first knowledge of it his companions had was when something was heard to strike on the roof below. The foreman at first thought his men had carelessly knocked something down, and it was not until it appeared the deceased was no longer on the furnace with them that the truth came to be known. Whether he fell through an opening where a plate had been removed or over the outer edge of the platform the evidence fails to disclose. The place where the body was found throws no light on what part of the top of the furnace he fell from. The deceased for aught that appears may have fallen because of an attack of vertigo or for other reasons for which the defendant would be in no way responsible. There is no evidence tending to show whether or not the deceased was in the exercise of due care for his own safety. In the absence of such evidence to affirm this judgment would be to base the affirmance on mere conjecture, which cannot supply the place of evidence. What is said in C. & A. R. R. Co. v. Crowder, 49 Ill. App. 154, 161, is in point. In Calumet Iron & Steel Works v. Martin, 115 Ill. 358, cited in the case above referred to, it was said: “From the earliest reported case in our reports where the question was passed upon to the present time, a period of more than thirty years, the general rule has been declared and recognized in opinions announced from time to time that in order to recover for injuries from negligence, it must be alleged and proved that the injured party was at the time he was injured observing due or ordinary care for his own safety.”

This case in an illustration of the now quite generally accepted view that the burden of the consequences of an accident of this character should not be left to fall alone upon the family of the deceased, but should be borne in part at least by the community which benefits by the use of appliances adding to the common prosperity, but which in so doing take their toll of human life and limb. The defendant however cannot be made to assume this burden in a case where the evidence and law do not warrant its imposition.

The judgment of the Superior Court must be reversed.

Reversed.

Mr. Justice Baker dissenting.


author: Mr. Presiding Justice Chytraus

text:
    William Wendnagel et al., Appellees, v. George T. Houston et al., Appellants.
    Gen. No. 14,976.
    1. Evidence—of what judicial notice taken. It is a matter of common knowledge, of which courts must necessarily take judicial notice, that there is probably no article of merchandise bought and sold in the market in both large quantities and small quantities but that the price is less when purchased in larger quantities. The line of demarcation, however, between the lesser and the higher prices, is not a matter of common knowledge.
    2. Evidence—how market value must be established. Proof of market value must be shown by a witness competent to testify to the market value of the commodity in question at the time and place involved when sold in ithe quantities in issue, when a defendant raises a question as between wholesale and retail prices1.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Geoege A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 3, 1910.
    F. H. Wickett, George J. Meier and H. C. Lust, for appellants.
    Adams & Froehligh, for appellees.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is an action of assumpsit to recover damages for breach of contract in that defendants failed to deliver 100,000 feet of oak lumber which the plaintiffs had purchased of the defendants. The contract of purchase was made in October 1902, at $41 per thousand feet, for delivery about August 1903. By a later agreement the time of delivery was extended to November 1903. The case has been before this court once before. Houston v. Wendnagel, 135 Ill. App. 95.. On that former occasion the plaintiffs had recovered a judgment, but this court was obliged to reverse the judgment and remand the case for a new trial. Although the contract time for the delivery of the lumber was November 1903, by reason of an extension of time, it appears that the plaintiffs, then, for the purpose of having the damages determined for the nondelivery, introduced evidence of the market value of the lumber at points of time other than November 1903. Evidence was even introduced tending to show the price of the lumber as late as November 1904, a full year after the breach occurred. The reversal necessarily followed. The plaintiffs have again recovered a judgment. Indeed the defendants do not dispute their breach of the contract. It only remains to be determined whether any damages were sustained by the plaintiffs and, if any were sustained, then the amount thereof. The facts of the case appear fully in the report of the former hearing in this court and it is unnecessary to now re-state them.

Unfortunately for the parties we are again obliged to reverse the judgment and to remand the case for a new trial, on account of error, going to the merits of the case, in the theory upon which the case was tried.

It may well be that a retail dealer buying and selling the kind of lumber in question in small quantities would know and be familiar with the market price in such quantities, but would know nothing of the market price when the same kind of lumber was sold in large quantities of one hundred thousand or a million feet. It is a matter of common knowledge, of which courts must necessarily take judicial notice, that there is probably no article of merchandise bought and sold in the market in both large quantities and small quan7 titles but that the price is less when purchased in larger quantities. The line of demarcation, however, between the lesser and the higher prices, is not a matter of common knowledge.

The erroneous theory upon which plaintiffs, with the approval of the court, tried the case this time is well illustrated in the instance of the first witness called by plaintiffs, George E. White. The lumber contracted for was designated as three inch 1st and 2nd white oak, 10, 12, 14, and 16 foot lengths. There is a question whether the witness qualified as having knowledge of the price of the lumber involved when sold in such large quantities as in the sale we are now concerned with, but we shall waive that question.

Plaintiffs’ attorney asked the witness White the question, substantially: What was the market value of three inch 1st and 2nd white oak, 10, 12, 14 and 16 foot lengths, in Chicago, in November 1903? To this question defendants’ attorney interposed an objection, .stating, in substance, that as the quantity in the sale in question was 100,000 feet the question should include, as an element, that large quantity of oak lumber. The trial judge at first seemed inclined to sustain the objection and asked, of plaintiffs’ attorney: “Isn’t that objection well taken?” But when plaintiffs’ attorney replied: “I don’t think the size of the order would make any difference, at all; we were to have the lumber, ’ ’ and explained that plaintiffs bought the lumber for use in their own business, the court overruled the objection. We regard this ruling as erroneous.

There is evidence in the record which tends to show that when this lumber was sold in small quantities the price was higher than when it was sold in large quantities.

The rule as to the measure of damages, where the question of quantity is involved as in the case at bar, is well stated in Grand Tower Company v. Phillips, 90 U. S. (23 How.) 471. It is there said: “The true rule would seem to be, to allow the plaintiffs to show the price they would have had to pay for coal in the quantities which they were entitled to receive it under the contract. * * * The difference between such price and the price stipulated for by their contract, with the addition of the increased expense of transportation and hauling (if any), would be the true measure of damages. ” In Bagley v. Findlay, 82 Ill. 524, onr Supreme Court, in the same connection, held: “If goods are bought in large quantities the market price at retail is not the standard, but the market price in large quantities.” James H. Rice Co. v. Penn Plate Glass Co., 117 Ill. App. 356, 362, is to the same effect. It is, of course, unnecessary to use either of the terms “wholesale” or “retail” in questioning witnesses on the subject of price. Indeed the use of either of these terms may lead to misunderstanding; for the quantity the examiner may have in mind, as being wholesale quantity, may not be a wholesale quantity in the mind of the witness.

The fact that in cross-examination of one of plaintiffs’ witnesses defendants’. attorney asked for the price of the lumber in quantities of 100,000 feet and was answered that the value would be about $50 does not fully obviate the error. The case was tried upon plaintiffs’ theory that the quantity bought or sold made no difference in the price and all of plaintiffs’ evidence was adduced by questions asked accordingly. This rendered the trial unfair to the defendants, who had the correct theory as to the measure of damages.

For the error indicated the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Mester Coal Company, Appellant, v. Charles Pope, Appellee.
    Gen. No. 14,991.
    1. New trial—when failure to comprehend issues will not reverse. Notwithstanding the defendant has admitted by his plead-_ ings and in open court that he is indebted to the plaintiff in a specific sum, the failure of the jury to award to the plaintiff any sum does not require a new trial if the court under the statute awards a judgment for the amount so admitted by the defendant.

      2. Judgment—when court without order to satisfy. The court over protest of the plaintiff cannot order its clerk to receive the amount of a judgment rendered in full payment thereof and to satisfy the same of record.
    3. Appeal—when a party has not obtained precise relief sought. A party may appeal from and have reversed a judgment or decree, although in his favor, unless he has obtained the precise relief sought.
    4. Practice—affidavit of defense to a portion only of plaintiff’s ■claim. The amendment of July 1, 1907, to section 65 of the Practice Act authorizes the rendition of two judgments in one action, when defendant files an affidavit of a defense to a portion only of the plaintiff’s demand.
    Assumpsit. Appeal from Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 3, 1910.
    Statement by the Court. This is an action of assumpsit, for coal sold and delivered by plaintiff to the defendant. The amount claimed was $907.96. Plaintiff, under the statute, filed an affidavit of its claim for that amount, with its declaration. The defendant, also under the statute, filed an affidavit of merits with its plea of general issue. The affidavit of merits contains the statement that “the defendant has a good defense to this suit, upon the merits, to the whole of the plaintiff’s demand, except as to the sum' of one hundred six and 6-100 dollars ($106.06), which is admitted by the defendant to be due to the plaintiff.”
    The case was tried before a jury and a verdict finding the issues for the defendant was returned. A motion for a new trial was interposed by the plaintiff. This motion the court overruled and the plaintiff excepted to the ruling. The court thereupon rendered its judgment and the judgment order appearing of record is in part, that is, so far as material for present purposes, as follows:
    “And, it appearing to the court that the. defendant, in and by his plea, filed herein on the 5th day of June, A. D. 1906, admitted, and now here in open court, ad- ' mits that there is due to the plaintiff from the defendant a part of the sum for which suit was brought, namely," the sum of one hundred and six dollars and six cents ($106.06), with interest thereon in amount of $12.37, whereby .the plaintiff became entitled, under the statute in such case made and provided to recover judgment against the defendant for the amount admitted to be due to the plaintiff, namely, the said sum of one hundred and eighteen 43-100 dollars and costs.
    “It is therefore ordered that the plaintiff take nothing under and by virtue of the verdict rendered herein, but it is considered by the court that the plaintiff have and recover of and from the said defendant the amount admitted by the plea of the defendant to be due to the plaintiff, namely, the sum of one hundred and six dollars and six cents ($106.06), together with interest thereupon in amount of $12.37, together with the plaintiff’s costs in this suit, to the entering of which judgment the plaintiff excepts, and the defendant, now in open court, here tenders to the plaintiff the sum of one hundred and thirty dollars and three cents ($130.03) in payment of said judgment, interest and costs, which tender the plaintiff refuses, whereupon the defendant, by leave of court, pays the said sum of $130.03 into court to the "clerk thereof, for the use and subject to the order of the plaintiff, and thereupon moves that the said judgment be satisfied of record in open court, which motion is allowed by the court and said judgment is accordingly satisfied in open court and discharged of record, to which action of the court, last aforesaid, the plaintiff excepts.”
    The plaintiff now prosecutes this appeal from that judgment of $118.43 in its favor.
    James Todd, for appellant.
    Mather & Hutson, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

At the conclusion of plaintiff’s brief and argument, the following frank statement of plaintiff’s position appears, with reference to the precise question which plaintiff raises by this appeal:

“In abstracting the testimony of this case no attempt was made to give all the testimony heard by the jury, and a reversal is now urged upon the principle that, regardless of whether the evidence outside this admission would have warranted a reversal, the error of the jury is so clearly shown by the admission that a new trial must be granted.”

Consistently with this statement, plaintiff’s argument in this court is confined to an effort to demonstrate that the trial court erred in overruling plaintiff’s motion for a new trial, when it appeared that the jury returned a verdict for the defendant notwithstanding defendant admitted, both in his affidavit of merits and in open court before the jury, that there was due and owing from him to the plaintiff the sum of $106.06. That is, as plaintiff puts it, substantially, the action of the court in that regard could not be proper because “the jury had, through inability to comprehend the case, or through indisposition to consider it carefully, found that the defendant owed plaintiff nothing, when defendant himself was contending that he owed plaintiff $106.06 ’ ’. Plaintiff, by his argu.ment here, places his claim to a reversal of the judgment rendered solely upon the ground of error by the trial court in this respect. The abstract of record which is presented prevents inquiry whether the verdict rendered was otherwise against the preponderance of the evidence. We are obliged to assume that in every other respect the verdict is sustained by the evidence.

The law is well settled that a plaintiff may appeal from and have reversed a judgment or a decree in his favor, if erroneous. Teal v. Bussell, 2 Scam. 319; Jones v. Wight, 4 Scam. 338; Thayer v. Finley, 36 Ill. 262; Carr v. Miner, 40 Ill. 33; Commissioners v. Commissioners, 87 Ill. App. 93, 105; Frost v. Howard, 81 Ill. 602. Unless complainant has obtained the precise relief sought, i. e., “If he is able to assign any error or has not obtained all that he deems himself entitled to, he may appeal.” “If one who instituted a suit or proceeding does not obtain what he asks for in full, he •can undoubtedly prosecute an appeal. ’ ’ Gray v. Jones, 178 Ill. 169, 171-2; Williams v. Breitung, 216 Ill. 299. We see no reason, however, for reversing the judgment rendered. We fail to see that any harm was done plaintiff by the procedure in the court below, assuming, as we have said we must assume, that the evidence sustained the verdict, otherwise than as to the $106.06. Judgment was rendered in plaintiff’s favor for that $106.06 so that in that regard plaintiff has nothing to complain of.

The amendment to section 55 of the Practice Act, chapter 110, Revised Statutes, in force July 1, 1907, changes in some actions ex contractu the procedure that previously prevailed. That amendment authorizes, when the defendant, by an affidavit of merits or ■defense, admits to be due and owing a part of the -amount which the plaintiff claims, the rendition of a .judgment for the part admitted to be due and owing. That is the amendment authorizes two judgments in •one action where but one was before permissible. . So far as material for present purposes the amendment is as follows: “If the affidavit of defense is to only ,a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand and the suit shall thereafter proceed as to the portion of the-plaintiff’s demand in dispute as if the suit had been brought therefor.” When defendant herein filed his affidavit of defense and thereby admitted $106.06 of the plaintiff’s demand to be due and •owing to the plaintiff, that portion of the plaintiff’s ■demand immediately ceased to be in dispute or in issue in the suit. This was equally true, whether plaintiff immediately took judgment for the amount admitted or not. After that admission plaintiff was entitled to take judgment for the amount admitted to be due, at any time. The plaintiff, however, did not choose to take the judgment he was entitled to and it was not rendered until after the trial upon the portion of the plaintiff’s demand which was in dispute. As to the admitted portion of the demand there was, nevertheless, no issue to be tried by the court or jury after the defendant’s affidavit was filed. "When the jury returned a verdict finding the issues for the defendant that verdict related solely to “the portion of the plaintiff’s demand in dispute,” as to which, according to the statute, the suit shall, after the admission, proceed “as if the suit had been brought therefor” and for nothing more. Upon the record, as presented to us, we see no error in that the court overruled the-motion for a new trial as to the part of plaintiff’s demand in dispute; and as to the part of his demand not in dispute plaintiff is in no position to complain for not only was judgment rendered in his favor therefor but he was tendered the amount in open court.

It is true that the learned trial judge did err in granting defendant leave to pay the amount of said judgment to the clerk of the court “for the use and subject to the order of plaintiff,” in allowing defendant’s motion, upon such payment being made, that the judgment be satisfied of record in open court and in-satisfying and discharging the said judgment of record, in open court, all of which was done despite plaintiff’s objection and to the action of the court in which respect plaintiff excepted. There is no warrant in the law for a court, upon rendering a judgment in a party’s favor, compelling that party to receive or accept the money or upon his failure to receive or accept the money to appoint the clerk of the court, or any one else, custodian of the party’s money and then satisfying the judgment upon payment of the amount of the judgment to the custodian appointed by the court. The action of the court in this respect was coram non judice, without validity and of no effect. However, so far as this record discloses, no harm was done plaintiff thereby and he is entitled to have the satisfaction and discharge of the judgment set aside upon motion.

There being no reversible error in the record, the judgment must be affirmed.

'Affirmed.