text:
    Julia Miller and Thomas F. Hunt, Administrators, Appellees, v. Kenwood Bridge Company, Appellant.
    Gen. No. 16,078.
    1. Instructions—when containing abstract proposition of law will not reverse. If an instruction correctly states an abstract proposition of law applicable to the case it will not reverse unless it appears that it was calculated to mislead.
    2. Master and servant—how question as to safe place determined. Held, that under the evidence it was for the jury to determine whether the master had fulfilled his duty, which duty the master could not delegate, to use ordinary care to furnish a reasonably safe place for the plaintiff's intestate to work.

      3. Master and servant—respective duties of. With respect to the place where a servant is required to work the duty of the master is that of inspection, the duty of the servant is that of observation.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Willard M. Mc-Ewen, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Charles C. Arnold, for appellant.
    McCaskill and Son, for appellees.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiffs (appellees) in this cause obtained in the Superior Court a judgment for the benefit of the “next of ldn” under the “Campbell” Act of Illinois, on March 19, 1909, for $4000 against the defendant company (appellant) for causing by its negligent default the death of their intestate, Jacob Miller.

The defendant corporation has a manufacturing plant at G-rand Crossing near Chicago. In its business it manufactures steel and iron girders for bridges. Jacob Miller at the time of his death, February 15, 1907, was employed by it, and was at work with two other men “fitting up” a bridge girder weighing 3000 pounds, sixteen feet long, four and a half feet high, and with a flange six and a half inches wide. He was fifty-three years old and had been a teamster up to about three weeks before his death.

“Fitting up” a girder consisted in assembling the parts of which it was to be constructed, fitting them together and bolting them in place ready to be riveted. The work was done on a skidway consisting of two wooden beams twenty feet long, blocked underneath and having railroad rails on their upper surface. The “fitting up” was done on one end of this skidway and the riveting of the same girders near the other end, The “fitting up" gang handed its completed work over to the riveting gang by moving the girders when fitted up along, to the middle of the skidway, from which place the girders were taken by the riveting gang. The girders in process of fitting up in their removal to the place where they stood until the riveters were ready to work on them, and in their removal therefrom by the riveting gang, were moved by means of a compressed air hoist suspended from an overhead trolley. Each gang used the hoist as it needed it, passing it from one to the other as. occasion demanded.

On February 15th Jacob Miller was at work on one of these girders set up on edge about three feet away from five or six other girders, also set up on edge close to each other and between him and the riveting gang, which had been fitted up ready for the riveters. Suddenly these girders began falling and Miller was caught under the one at which he was working, which had been struck by others as they fell. Another of the gang of three was also thus caught, and both were almost instantly killed.

The plaintiffs’ declaration in some counts complained that the defendant so placed the girders mentioned that they were liable to topple over unless braced, and that it was by reason of the want of bracing that they fell over and killed the plaintiffs’ intestate ; in others, that the defendant so negligently moved a girder that it came into contact with the girders that fell, and by falling caused the death of Miller; and by the final count that the defendant negligently directed Miller to work in an unsafe and dangerous place.

After the accident one girder was found to be suspended from the hoist near the riveters’ end of the skidway and immediately next to the first girder that fell. It is the plaintiffs’ theory of the accident that the riveters in hoisting this girder for transportation to another part of the shop accidentally allowed it to strike against the girders standing on edge and unbraced, and that they fell against each other like cards in a falling card house, until the impact reached the one which fell on and killed Miller and his companion. The evidence showed that it was customary to brace the girders to prevent their falling over when that seemed necessary, and in such case 4 by 4 timbers were used, obtained from a pile in the yard. It showed also that a gang of riveters had been working on the morning of the accident on the other side of the girders that fell and about twelve feet away from them, but failed to show directly whether or not they were at work there at the precise time of the accident.

The gang of fitters consisted of .three men—Miller and the other man who was killed by the accident, and one Michael Lay, who was described as a “fitter up,” the other two men being known as “helpers.” The foreman of the shop at the time,. testifying for the defendant, described the “fitter” as the man who could read the blue prints “and knew how to put up the work” and that “his work was to see that the work was done right and tell the two helpers what to do.” The riveting gang, in which there were four men, was similarly organized, one man—in this case named O’Brien—running the riveting machine and being in charge of the others and telling them what to do.

The main reliance of the appellant in its attempt to reverse this judgment is placed on the contention that it was the duty of the trial judge at the close of the evidence to take the case from the jury by a peremptory instruction to find for the defendant. This is based on the positions that the accident was one the risk of which was assumed by the plaintiffs ’ intestate, and that if it were the result of negligence at all, which it is claimed was not proven, it was the negligence of fellow servants of the deceased, and that both these matters—the application of the assumption of risk doctrine and of the fellow servant doctrine—-were in this case matters of law for the Court, instead of fact for the jury, because the evidence precluded the possibility of reasonable men reaching differing conclusions thereon.

It is, however, suggested by appellant that the damages are in any case excessive. We do not think the verdict one which we should disturb on this ground.

It is also contended that the first instruction given was erroneous. It is as follows:

“The Court instructs the jury that it is the duty of a master to use ordinary care to furnish his servants a reasonably safe place in which to work, and this is a duty which he cannot delegate to another.”

We do not think this instruction was erroneous nor misleading. It states an abstract proposition of law, but it was one applicable to this case and we think might well be controlling in the disposition of it.

It was, in our opinion, a question for the jury whether the place at which Miller was required to work on and about the girder which he was fitting up, was reasonably safe while.the half dozen other girders were standing unbraced on their edges in such juxtaposition and at such spaces from each other that the fall of the farthest one would cause the girder on which he was working also to fall, and while at the same time, according to the usual custom of the work, a distinct gang of other workmen on the other side of the barricade formed by these standing girders, were using from time to time an air hoist, passing back and forth at times from one to the other gang and swinging up from the riveters’ side these ponderous pieces of iron while the “fitter” and his helpers were at work on their side.

It was also, in our opinion, a question for the jury whether the master, in view of the conditions named, fulfilled the duty (which it could not delegate) to use ordinary or reasonable care to furnish a reasonably safe place for its servant to work. The Company must, it seems to us, be held to have undertaken to discharge this duty, so far as it undertook it at all, through the “straw"bosses” of the fitting and riveting gangs and not through their helpers, who were to work where and as their leaders directed. Schilling & Bros. Co. v. Smith, 225 Ill. 74.

The space between the girders standing on edge was an important factor in this matter. Had there been not so much, or more, the accident would not have happened as it did.

Care in placing the surroundings of Miller’s necessary, work and inspection afterward were the duties the master. Observation only was the obligation of the servant. Illinois Steel Company v. Mann, 100 Ill. App. 367.

We do not think that it could be said in this case, as it was in the case of McCormick Co. v. Zakzewski, 220 Ill. 522, relied on by the appellant, that the conditions of danger were shown to be open, apparent and known to the servant. The case is more like Armour v. Golkowska, 202 Ill. 144, where the Supreme Court decided that the question whether there was want of reasonable care on the part of the master in neglecting to place on a platform a barrier which would have prevented an entirely unexpected and apparently unlikely fall of a barrel upon the head of the plaintiff, was of fact for the jury and not of law for the Court (p. 147); and also (p. 147) that if the fall of the barrel was occasioned by the negligence of a fellow servant, combined with a neglect of duty by the master, the master was liable, and, further, (page 150) that “on entering the service of the appellants the appellee had the right to assume that the place provided by them in which she was to do their work was reasonably safe, and that they would exercise reasonable care to maintain that condition of safety;” that “the duty which the master owes to his servant to provide a reasonably safe place wherein the servant is to work is a positive duty devolving upon the master and is not one of the perils or risks assumed by the servant;” and that it was (page 151) “a question of fact, not of law, whether the injury received by the appellee was occasioned by or through a-peril of her employment, the risk of which she had assumed.”

We think that the “fellow servant” doctrine is not really involved in this cause. If it were, it made a question of fact for the jury. In any event the jury, we think, were properly instructed both on that subject and on that of the “ assumption of risk” which was involved, but which was also a question of fact for the jury.

The instruction numbered fifteen, tendered and refused, was properly refused. So far as it was correct it was covered by instructions which were given, and its phrasing seems to us to have rendered it likely to be misleading.

The verdict was not, in our opinion, contrary to the weight of the evidence, and the judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    John H. Engel, Appellee, v. Frank Parmalee Company, Appellant.
    Gen. No. 16,108.
    1. Contributory negligence—effect of violation of ordinance. A person receiving personal injuries while in the act of or about to violate a municipal ordinance is not thereby precluded from recovering against one whose negligence caused his injury if such violation did not contribute to his injury and did not consist of an act or intention directed against the person guilty of the negligent conduct.

      2. Contributory negligence—when effect of violation of ordinance does not present question of law. It must be left to the jury to say in a personal injury suit whether an actual violation of a law or ordinance on the part of the plaintiff is negligence proximately causing or contributing to the injury unless the evidence leaves it .impossible for reasonable men to come to a different conclusion.
    3. Contributory negligence—when custom competent upon question of. A custom may not be competent as bearing upon negligence charged against the defendant, and yet be competent if it tends to show whether the plaintiff at the time of his injury was in the exercise of ordinary care for his own safety.
    4. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    5. Instructions—when upon negligence invades province of jury. An instruction which tells the jury what fact or facts would or would not constitute negligence is improper in that it invades the province of the jury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Lackner, Butz & Miller and Willis G. Shockey, for appellant.
    James C. McShane, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff: in this case, John H. Engel, June 26, 1909, recovered a judgment against the defendant corporation, the Frank Parmalee Company, in the Superior Court of Cook county for $2000. This judgment the defendant corporation seeks to reverse in this appeal. The judgment was obtained on the verdict of a jury in a personal injury case. The appellant maintains as its first contention that the court below erred in not directing the jury, as requested at the close of all the evidence, to return a verdict for the defendant. It asserts that the evidence had clearly shown that the plaintiff was guilty of negligence which proximately contributed to the injury, and also that at the time of the accident he was engaged in a violation of law which contributed to the injury. On each pf these grounds, appellant contends, a peremptory instruction should have been given.

The appellant makes the further contentions that the verdict was manifestly against the weight of the evidence and that the Court erred in instructing the jury and in the admission of evidence.

The injury to the plaintiff, on which the suit was brought, occurred at about ten o’clock in the evening of October 17, 1907. The plaintiff was standing at the edge of the sidewalk in front of the Union Railroad Station on Canal street in Chicago, when an omnibus belonging to and run by the defendant company in its business, backed up to the curb without warning and caught his right foot and ankle between the iron step and cover at the rear end of the omnibus and a stone step on the outer edge of the sidewalk, rising about a foot and a half above the level of the sidewalk and about a foot long.

Both bones of the leg were broken. The plaintiff was taken to a hospital,'where he remained a month and where the leg was set and placed in a plaster cast. After three weeks the first cast was removed and a second substituted, which remained on for several weeks. After this was removed the plaintiff was obliged in walking to use crutches or canes, he says, for about a year, and the flesh wound did not entirely heal until the end of that time. The fracture and the reunion have left a slight permanent deformity and a slight limitation of the motion of the ankle, and the plaintiff complains of discomfort in the joint. No contention is made, nor could well be, that the verdict is excessive for the injury suffered.

Ordinarily, whether such an accident was the result pf negligence for -which the omnibus company, through its driver, was liable, and whether the plaintiff was himself guilty of negligence so proximately contributing to the injury as to prevent his recovery, even if the defendant was guilty also of negligence, would be questions for a jury.

The contention of the defendant that they were not so in this ease is based on the following reasoning. At the time of the accident the plaintiff was acting as a runner for a hotel (called The Golden Star) opposite the station. There was in force an ordinance of the city of Chicago which after defining a “runner” as one who solicited patronage or custom for certain business enterprises (including hotels) “on any railroad train or other place in the City,” provided that no person should be permitted to engage in the business of or act as a runner unless he should have obtained a license to do so. The ordinance further provided that such license could only be issued on application and after a “Board of Inspectors of Public Vehicles” should have found and reported to the Mayor that the applicant was honest, sober and capable and fit to be licensed. Another section provided that a person licensed as a runner should at all times wear a prescribed badge and that not more than one licensed runner should be permitted to ask or solicit business at railroad depots, etc., for any particular person or corporation engaged in any business for which such custom or patronage was being solicited by licensed runners.

The final section of the ordinance provided a penalty for any person who should solicit custom for any hotel (or for any other of the business enterprises mentioned in the first section) without having first secured a license.

For the year 1907 “The Golden Star” had procured a license for a person other than the plaintiff, and that person was at the time of the accident in the employ of The Golden Star and acting as a runner for it. Not only did the plaintiff have no license, bnt he conld Hot have obtained one. He was disqualified because The Golden Star could have but one licensed runner.

The plaintiff, just before his injury, went from "The Golden Star” to the station entrance to solicit patronage for that hotel, stood in the gutter, because runners were not allowed on the sidewalk, and at the time his leg was struck was gazing into the entrance of the station looking for prospective customers to come out of the door. As a runner he was compelled to keep off the sidewalk and stand in the gutter, where omnibuses were likely to back up at any minute. If he had not been violating the law by acting as a runner, he never would have been in'the gutter and therefore never would have been struck. Therefore his violation of the law contributed directly and proximately to the injury, and this prevents his recovery, irrespective of his own negligence or that of the defendant; or at least, from another point of view, his being at the station illegally acting as a runner was in itself conclusive evidence of negligence on his part contributing to the accident.

We think this reasoning more ingenious and plausible than sound. The plaintiff testified indeed that at the time of the injury he had gone from his hotel to the station with the intention of soliciting custom, ■ but he was not soliciting at the time, and his intention to violate the ordinance did not render him a trespasser on the street or in the gutter or on the sidewalk. He had a right as a citizen to be in either place, subject, of course, to such necessary police regulations and supervision as prevent one person from using his ordinary rights in the street to the injury of the equal rights of others. The custom of the police officers on duty at the station to compel persons actually soliciting or known or supposed to intend to solicit, to stand with at least one foot off the sidewalk, may have been necessary, expedient and justifiable. If so, and it was enforced against the plaintiff, any effect on his rights in this case would seem to us to he favorable to him rather than the reverse, in showing that his position, to the extent of not being entirely on the sidewalk out of harm’s way, was not to be attributed to him for negligence. We cannot assent to a theory that he had no right to be near the station at all, nor that his admitted prior violations of the ordinance and his admitted intention to violate it again if he had the opportunity, deprived him at the time of the injury of his civil rights as against a party against whom he was not individually offending even when he was actually in the act of violation.

What the Supreme Judicial Court of Massachusetts said in Moran v. Dickinson, 204 Mass. 559, may be said properly in this case,—the bodily presence of the plain-1¡ tiff at the place of injury was an essential condition of his injury, but it does not follow that it must have been a cause thereof. We do not think it nor his intending to violate an ordinance was a proximate or contributing cause of it. And we do not think that the question of the plaintiff’s negligence in standing in that particular position and location was affected by the fact that it was his intention thereafter at or near that point to do something which, without a license, was illegal, and for doing which he might have been fined. It may have been affected by that customary police regulation—no part of the ordinance involved— that made him and all persons known to be of his class stand off the sidewalk; but if it were, it was so affected favorably to him.

But even if the intended violation of the ordinance might be considered as bearing on his rights as against the defendant, or on his alleged contributory negligence, it would be still a question for the jury. It must be left to them to say in a personal injury suit whether an actual violation of a law or ordinance on the part of plaintiff or defendant is or is not negligence proximately causing or contributing to the injury, unless the evidence leaves it impossible for reasonable men to come to different conclusions. Heiting v. C. R. I. & P. Ry. Co., 252 Ill. 466.

We hold that there was no error in refusing to take the case from the jury by a peremptory instruction.

Both the alleged primary negligence of the defendant’s servant and the alleged contributory negligence of the plaintiff were properly left to the jury.

Nor do we think that the verdict was clearly and manifestly against the weight of the evidence. It would not be useful for us to discuss the testimony in detail. The questions arising on it were simply those which have been so often declared of fact rather than law—as to the amount of care required and that exercised on each side. The jury were, we think, carefully and. fully instructed as to the law relating to these conditions, and their verdict means that under all the circumstances the accident complained of was caused by the negligent default of the driver of the omnibus in the amount of care due from him, and that no want of ordinary care for his own safety or to avoid the accident on the part of the plaintiff contributed to the injury.. We see no reason to disturb that conclusion.

It is maintained, however, by the appellant that the trial Court erred in allowing the introduction of incompetent testimony.

A cab driver named Bell, who was nearby at the time of the accident, testified that he had seen the plaintiff standing at the step immediately before the accident; that after his (the witness’) attention had been distracted for a minute he looked around again and saw that in the meantime the omnibus had backed in against the plaintiff and crushed his leg. He also testified, without objection, that “runners” were accustomed to stand in the street close up to the sidewalk. He was then asked, “What was the custom as long as you were there, whether the Parmalee ’bus men called or did not call out to those men there?” Over objection and a motion to strike out the testimony, the witness’ answer that it was the custom to warn them was allowed to stand.

The plaintiff himself testified: “The custom was that when a ’bus driver was backing up his ’bus he generally hollered ‘Look out there,’ or some other remark, and the runners would get out of the way.” This was in answer in a question which confined the inquiry to “a year prior to the accident.’’

This evidence as to a “custom” under the circumstances might be of doubtful competency (although this is not clear in view of conflicting decisions) if the matter involved had been only on the defendant’s negligence, but it was at least competent on the subjects of the plaintiff’s “ordinary care” and “contributory negligence.” The usual and customary action of the ’bus drivers at that point bore directly on those matters. If defendant wished an instruction limiting the effect of this evidence, he should have asked it. Counsel for defendant in their reply argument say that we are asked by plaintiff to hold “that because certain of defendant’s drivers usually did what it is claimed ordinary care required, therefore plaintiff is relieved of the duty to exercise that care which the law would otherwise require of him.” We do not think so. The plaintiff, we think, had prima facie a right to be standing where he was standing without being charged with want of ordinary care. The practice, of which he knew, for omnibuses to back up there may have taken away that prima facie right. Proof that omnibuses were backing up there frequently was competent evidence tending to show carelessness on his part. But the usual accompaniments of that customary “backing up” were as proper subjects of proof as the “backing up” itself.

Finally, it is maintained that the Court erred in its instructions to the jury. We have examined the instructions together, and think the jury were fairly and fully instructed.

The modification of instruction No. 22 as tendered was proper, and the instructions tendered by the defendant and refused were, in our opinion, so far as they were not covered by those which were given, subject to the objection that they took from the jury what, under the circumstances of this case, were questions for them—namely, what facts would show negligence on the part of the omnibus driver and what facts show contributory negligence on the part of the plaintiff.

“It is for the jury to determine from the evidence whether one or both of the parties may have been negligent in their conduct, and not for the court to take the question from them and declare if certain facts exist negligence is established." Myers v. I. & St. L. Ry. Co., 113 Ill. 386, p. 388.

“What particular facts amounted to an exercise of ordinary care or what particular facts amounted to a want of ordinary care, it was for the jury and not for the Court to determine.” Chicago v. McLean, 133 Ill. 148, p. 155.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Celia McDonnell, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,120.
    3. 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. Instructions—when refusal of correct will not reverse. Refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.

      Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Edward C. Higgins and Ferdinand Goss, for appellant.
    Benjamin F. J. O’Dell and Morse Ives, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

On Sunday evening, January 12, 1908, at about six o ’clock the plaintiff, Celia McDonnell, then fifteen years old, was struck by a car of the defendant Company, the Chicago City Railway Company, on State street in Chicago at its point of junction with Forty-first street. She received a wound in her forehead, which had to be sewed up, was confined to her bed for two weeks, and for several weeks thereafter was unable to go to school. Whether her injuries were the cause of headaches, fainting and dizzy spells occurring afterward at intervals up to the time of the trial is a matter in dispute.

She sued the Railway Company and secured on the verdict of a jury a judgment in the Circuit Court for $1000, and the Company has appealed to this Court, contending that the judgment is unwarranted by the evidence, that the Court erred in giving certain instructions and in refusing others tendered, and that Che verdict was excessive.

In view of the undisputed facts and the variant if not conflicting expert testimony as to the probability that the later ailments of the plaintiff were the result of the accident, we do not think the jury exceeded their proper discretion in the assessment of damages, if the liability existed. We shall therefore dismiss the last of the appellant’s contentions from consideration.

The plaintiff’s declaration, when the case went to the jury, consisted of four counts. In the first the allegation of negligence was general,:—“that the defendant negligently ran said .car with great force and violence to and upon the plaintiff while she was using reasonable care for her own safety.” In the second count the gist of the allegation of negligence was that the defendant “drove and managed said car without ringing any bell, sounding any gong, or giving any other signal or warning in time to warn the plaintiff of the approach and close proximity of said car.” In the third count it was that the defendant “drove, operated and propelled said car at a dangerous, undue and excessive rate of speed;” and in the fifth (the fourth having been withdrawn) that it “drove, operated and propelled said car against the plaintiff rightly crossing the highway without exercising reasonable care to give reasonable and timely signal or warning of the approach of said car to the plaintiff.”

The defendant insists, on the one hand, that there was no evidence sufficient to go to the jury tending to show the negligence specified in the declaration or, indeed, any negligence on the part of the defendant or its servants, and on the other, that there was such evidence showing negligence on the part of the plaintiff wholly causing or materially and proximately contributing to the accident as precluded differing opinions by reasonable men on the subject, and made it the duty of the Court to hold as a matter of law that the plaintiff was guilty of contributory negligence.

Both, therefore, on the ground that there was an entire lack of evidence to show negligence on the part of the defendant, and that there was conclusive evidence to show contributory negligence on the part of the plaintiff, counsel contend that the trial Judge should have taken the cause from the jury by a perr emptory instruction to find for the defendant, or, failing in this, should have set aside the verdict and granted a new trial.

We think, however,- that under the evidence both the question of the defendant’s negligence and that of the plaintiff’s were properly left to the jury, and that there is not such a manifest preponderance against the conclusion to which the jury came as warranted the court below, or would warrant us, in setting it aside.

The circumstances attending the accident, which are undisputed, are these:

On the evening in question, the weather being snowy or sleety and the night dark, the plaintiff with her two brothers, eleven and twelve years old respectively, left their home on Wabash avenue near 41st street to accompany a visitor of about the same age as the plaintiff to a street car running south on State street, one block east. This car the visitor wished to take to carry her home. The four children walked west on the south side of 41st street to State street, crossed over to the west side of State street, remained standing there a few minutes, until one of the south-bound cars (which run on the western track) came to 41st street and stopped near the cross-walk running from the south side of 41st street to the west side of State street (41st street not being cut through west of State street). They then took leave of their visitor, who boarded the south-bound car, which went on. The three children then started behind the departing car to cross State street again in order to go east to Wabash avenue on 41st street. The younger boy, Owen McDonnell, went first and crossed the eastern—the north-bound —tracks in safety; Celia, the plaintiff, followed close behind, but was struck by a north-bound car, knocked over, and rolled along by the fender until the car was stopped and she was picked up by the motorman and a passenger and carried to the curb.

The matters in regard to which there was contradiction or variation in the testimony were the speed at which the car was running’, the ringing of the bell on it and the point, with reference to the north and south lines of 41st street, at which the plaintiff started to cross State street and the point at which she was struck by the car.

Perhaps in forming their opinion on the whole case, the last named matters were considered by the jury as important as any. There were three witnesses as to the accident for the plaintiff and four for the defendant. The three witnesses for the plaintiff were herself and her two brothers. Owen McDonnell was somewhat contradictory in his statements, his answers showing-some confusion in his recollection or in his expression of it. He said quite definitely at first that when he first saw the car he was about half way between the lines of 41st street, but he later testified that when he started to go across the street he started from two or three feet north of the south line of 41st street and in going to the opposite side went a little diagonally to the south, which is manifestly inconsistent with his first statement. Celia, the plaintiff, and Amos, her brother, were both positive that the accident occurred opposite the south line of 41st street, on which line they were crossing the street.

Of the four eye witnesses of the accident who testified for the defendant, the motorman and three passengers, one does not pretend to know the spot at which it occurred, one places it a little north of the center of 41st street and the others at the center.

Despite this variation and conflict we think the jury had a reasonable right to an opinion that the children started to cross and continued practically to cross on the south line of 41st street. It was evident that it was there they had been standing- awaiting the southbound car; the south sidewalk of 41st street was nearer 4131 (not 3141 as the abstract has it) Wabash avenue, where they lived, than the north side of the street, and they would naturally make for it in crossing State street. Of course it is possible that they ran or walked diagonally north to get over ahead of the approaching car; but in the face of their assertions to the contrary and their denial that they saw or heard the car, the jury were the judges whether they were not crossing on the south line of 41st street. The testimony of the defendant’s witnesses to the contrary does not, as a matter of law, outweigh the testimony of Celia and Amos McDonnell, and if we are judging of it as a matter of fact indeed, we must take into account the extreme difficulty in a moment of some excitement for a motorman and passengers on a moving car to tell within 25 feet of where the accident actually occurred. The children were really more apt to observe and remember correctly and, if their interest did not warp them, as likely to state correctly.

If the jury believed that the children (as they testified) were crossing on the south line of 41st street, and did not see the car through the storm and darkness until it was close upon them, they were at liberty to draw inferences as to the speed of the car from that as well as from the testimony that the car stopped opposite to the north line of the street, on the quick application of the brakes. The witnesses for the defendant concurred in statements that the car was going from Boot street north but about three or four miles an hour, and that it stopped after the accident in “five feet;” but in view of the self-evident difficulty of any one determining with accuracy the exact speed of a moving street car jogging along without the purpose of coming to a stop, and of the exact length it moved until it stopped after striking the girl, we do not think the jury were debarred in judging the facts from taking these statements in connection with the testimony of the children, that although looking south they did not see the car until it was right upon them, and finding that the speed was too great for the motorman, under the circumstances of the storm, the darkness, and the car which he had just seen leaving the south line of 41st street, to have allowed to his car at that point, and too great to give him the control of it necessary for a sudden stoppage at the critical moment.

Of course the motorman may not have been careless, and the children may have been reckless, but we think, as we have said, that both questions were for the jury, and that it is a case in which their decision and not ours should govern. • We find no such demonstrable and clear contradiction in their verdict to the manifest preponderance of the evidence as would warrant us in disturbing it.

It is not necessary to discuss the ringing of the bell, for the verdict could find support on the grounds we have indicated, although the jury should have believed that the bell was suitably and continuously rung on approaching 41st street, as the witnesses for the defendant testified it was. The children merely swore 'they did not hear it, although the plaintiff: says she was listening. It may be noted, however, that Nitz, who said that he saw the accident just as he was going to the door of the car, noticed-“a sudden sounding” of the gong as he was getting up, and that the motorman was sounding the gong “as the little boy ran across,” which might suggest that it was not until the motorman was close on the children that he rang his bell. This is not the testimony of the other witnesses for the defendant, however.

The appellant complains of instruction 34 on “a slight preponderance” of evidence being sufficient to ’establish the plaintiff’s case. This instruction, however, has been too often approved by the Supreme Court to justify us in repeating even the mild criticism this Court formerly made of it.

What we have already said about the evidence on the facts makes it evident that we could not consistently with our views reverse the judgment for the refusal to give refused instructions 2 and 6. So far as refused instruction 7 is concerned, the principle expressed, so far as it was applicable to this case, was fully covered and more aptly expressed by given instruction 31 as follows:

“The Court instructs the jury that if they believe from the evidence that the car in question was managed and operated in an ordinarily careful manner at the time and place in question under all the conditions shown by the evidence to exist, and that the plaintiff undertook to cross the street car track in front of said car at a time when said car was at a distance from the plaintiff within which the motorman of said car could not, by the exercise of reasonable and ordinary care, have stopped said car before reaching the plaintiff, then the plaintiff can not recover in this case and your verdict should find the defendant not guilty. ’ ’

By finding as they did the jury disaffirmed their belief in the theory of the defendant set forth in this instruction.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    John D. Casey, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,037.
    1. Master and servant—what risk not assumed. Held, in this case, that there was no evidence that the work of the plaintiff’s intestate required any particular knowledge of electricity or that such intestate had such knowledge and it was a question of fact to be determined by the jury whether such intestate knew and appreciated the danger which resulted in his death and that the verdict of the jury upon that question should not be disturbed.

      2. Negligence—care required in use of electricity. One employing a dangerous agency such as electricity is required to exercise a degree of care commensurate with such danger.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Edward C. Higgins and Watson J. Ferry, for appellant.
    Ossian Cameron and Richard J. Finn, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, hereinafter called plaintiff, obtained a judgment against the appellant, hereinafter called defendant, for the sum of $1800 damages for the death of John Kolb.

The decedent had been employed by the defendant for several years as a boiler washer, or cleaner, at its power plant at Dearborn and 21st streets, Chicago. In its said plan]; were seven boilers, side by side, numbered one to seven, each bricked in and each about twenty feet long and ten feet wide. On the rear end of each boiler was a cleaning chamber extending across the entire width of the boiler and about three feet deep and eight feet high, the sides and back wall of which were brick. On each side of these cleaning chambers, about fifteen inches above the floor, was a small door about two by three feet. Between the rear of the boilers and the partition separating the boiler room from the engine room was an open space about ten feet wide. In this open space suspended from the ceiling were clusters of what is termed in the evidence Edison standard incandescent sockets and lamps, each cluster containing five lamps. One cluster was near the rear end of boiler number seven where the accident occurred. Each cluster carried from five hundred to five hundred and fifty volts of electricity, distributing one hundred to one hundred and ten volts to each lamp.

' In washing the boilers the water was forced through a hose into the front end, and the boiler being slightly lower at the rear than at the front, the water flowed through the boiler and out a't the rear end into the cleaning chamber, from which it ran off through a hole near the bottom of the chamber. In this work water and mud would accumulate in the bottom of the cleaning chamber. If more light was required in working around the rear end of a boiler, the workman took what was termed an extension cord, with a plug on one end and a keyless socket and lamp on the other, detached a lamp from the cluster, screwed the plug at the end of the cord into the socket of the detached lamp and hung the lamp at the end of the cord on spikes driven into the brick walls for that purpose. The system of electricity in use was what was termed a grounded system. If a person took an extension cord into the cleaning chamber with water and mud in it, the current was liable to ground and the person holding the cord or socket with the electricity on would receive a shock.

The decedent was found dead in the cleaning chamber back of boiler seven. No one saw him enter. He was lying on his back across two blow-off pipes, four to six inches in diameter, that passed from the boiler through the chamber about a foot from the ground, with an extension cord under his arm and extending along his body, and badly burned under the arm. A part of the insulation of the extension cord was burned off and at the same point either the feed or return wire was also burned off. The lamps on the cluster to which the extension cord was attached were not lighted. The water in the cleaning chamber was about three inches deep. The evidence is convincing that an electric shock caused the death of decedent.

The defendant urges that it was not guilty of any negligence charged in the many counts of the declaration; hut that if guilty of any negligence so charged, the decedent assumed the risk, for the conditions of the surroundings, the boilers, appliances and all the methods of doing the work and the dangers thereof, were obvious, apparent and understood by the decedent, who was fifty years of age, of ordinary intelligence and so employed for about eight years, and that the death of the decedent was caused by his own negligence.

The testimony was that if a person handling the extension cord received a shock from it while carrying the usual one hundred to one hundred and ten volts, he might be burned some but not fatally injured, and this danger we think from the evidence the decedent knew and appreciated. If, however, according to the testimony, an accident happened to the cluster of lamps, or any one of them, such as the breaking of the small carbon filament of one lamp, whereby the current was interrupted and could not light one or more of the lamps, all the lights of that cluster would go out, and if at such time the extension cord was being used, it would receive the entire five hundred to five hundred and fifty volts, and as it would only carry safely about two hundred and fifty volts, there was great danger in its use, and if at such time a person had a hold on the cord or socket and in a position to ground the current, he would probably be killed.

Even the defendant’s foreman over the decedent did not seem to know and appreciate the situation. He was an engineer and somewhat of an electrician, and in answer to the question, referring to the five hundred to five hundred and fifty voltage, “How would he get that voltage into that lamp?” answered, “Well, I don’t know. I can’t explain that, but he certainly got enough to kill him.” This witness also testified: “I merely warned him not to use that light in there. I told him it was a dangerous thing to handle a wire in a wet place.” The testimony was that the connections in the cluster were covered by a hood and only an expert could trace the current; also there was no fuse to break the current if anything happened causing the ¡entire voltage to be turned into the extension cord. There is, however, no claim that the defendant did not know and understand the situation and the danger thereof. There was testimony that the defendant furnished candles to be used for lighting purposes inside the boilers and the cleaning chambers while being cleaned, and that candles or torches were so used and not the extension cord. On the other hand there was testimony that the candles would blow out and torches would smoke, so that neither could be used, and the extension cord was so used, especially in the cleaning chamber.

We think that the testimony may be fairly considered to show that the decedent knew and appreciated that the usual current on the extension cord, which was one hundred to one hundred and ten volts, might shock and burn him, but the controlling question in the case is: Did he know and appreciate that he might in using the extension cord in the manner he did, under all the circumstances in evidence, receive a shock from the current five times greater than the usual voltage, which would probably kill him? If he did know and appreciate the same, the defendant is not liable. If he did not, or, as an ordinarily prudent man, under all the circumstances, in the exercise of ordinary care, would not have so known and appreciated said danger, then it would seem that it was the duty of the defendant to so warn the decedent, or by a fuse protect the said cord from the entire current passing into it.

The evidence was that the decedent was a careful man, and as a common laborer it seems he had no occasion to use or know anything abont electricity except as he used the extension cord for the purpose of obtaining better light in his work about the boiler. There was no evidence that his work required any particular knowledge of electricity or that he had such knowledge. Electricity is a silent, powerful and deadly force. As was said in Commonwealth Electric Co. v. Melville, 210 Ill. p. 70: “As there is greater danger and hazard in the use of electricity, there must he a corresponding exercise of skill and attention for the purpose of avoiding injury to another to constitute what the law terms ‘ ordinary care ’. The care must be commensurate with the danger.” It was practically admitted there was no fuse or device protecting the extension cord from receiving, in case of certain accidents, the full voltage of electricity carried. Whether the decedent knew and appreciated the danger must be determined by a consideration of the testimony pertaining to the warnings it was claimed were given the decedent and many other circumstances in evidence. The case presents a nice distinction on the facts and is by no means free from doubt; and under such circumstances it is our duty to abide by the verdict of the jury.

We think the damages are not excessive under the evidence, and that the refusal of the Court to give the instruction complained of was proper.

The judgment is affirmed.

Affirmed.


text:
    David Rutter & Co., Appellee, v. Robert J. McLaughlin, Appellant.
    Gen. No. 16,081.
    1. Abatement—when plea of, essential to denial of joint liability. Notwithstanding the pleadings consisted merely of the common counts and the general issue, the defendant in the absence of a plea of abatement is not entitled to introduce evidence to the effect that the liability sought to be imposed is not individual but a joint liability with a co-partner.
    2. Evidence—when failure to require production of books not erroneous. Held, that it was not error for the court to refuse to compel the plaintiff to produce his books pursuant to a motion made during the trial and based on an examination of one of the plaintiff’s witnesses and a subpoena (the record of such subpoena not appearing).
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Rehearing denied and opinion modified April 15, 1912.
    Rosenthal, Kurz & Hirschl, for appellant.
    Paddock, Furness, Clarkson & Rutter, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, hereinafter called plaintiff, brought a suit in the Circuit Court of Cook county against the appellant, hereinafter called defendant, on the common counts, with an affidavit that there was due and owing to the plaintiff from the defendant $709.62 for coal, sold and delivered by the plaintiff to the defendant. The defendant filed a plea of the general issue with an affidavit of merits that he had a good defense to the whole of plaintiff’s demand; and also filed a notice of set-off for $2251 for damages sustained by reason of the plaintiff’s failing to deliver coal as agreed, damages to boilers and heating apparatus caused by plaintiff’s furnishing inferior coal, etc., etc. The issues were submitted to a jury, who returned a verdict for the plaintiff for $490.88 and judgment was entered thereon and the defendant appealed.

The defendant admitted having ordered and received certain deliveries of coal, but claimed that certain other deliveries of coal for which recovery was sought were bought by him apcl A. Edward Frear, co-partners, doing business under the firm name and style of McLaughlin & Company, and offered proof thereof to establish his defense that he was not individually liable for the coal purchased by the copartners. On the plaintiff’s objection this evidence was excluded on the ground the defendant had filed no plea in abatement. The defendant earnestly insists that the Court committed error in said ruling because, as he contends, under the circumstances of this case a plea in abatement was neither proper nor necessary. The defendant in his reply brief says:

“We concede it to be the law that where the defendant is apprised by the declaration, or must from the circumstances of the case have known before the trial, that it was sought to hold him individually upon a partnership obligation, that he must take advantage of the non-joinder by plea in abatement, but we contend that where, as in the case at bar, there are separate demands, one against the defendant individually, and the other against a partnership of which defendant was a member, both being in dispute, and there being nothing in the declaration to apprise the , defendant that he was sued on any other than the demand against him individually, defendant is not to be precluded from showing the facts by his failure to plead in abatement, as he could not be expected to know that it would be necessary for him to do so.”

The proposition is an interesting one and may obviously be the subject of a difference of opinion. However, the precise question here presented was determined in Wilson v. Wilson, 125 Ill. App. 385, and we are not disposed to hold to the contrary. In that case, as in this, the pleadings consisted of the common counts and the general issue; and the defendant there sought to introduce evidence to show a joint liability with a copartner, who was not made a party defendant, and the Court held such evidence not admissible. The Court there said, p. 389: “The rule at common law is that if a person be omitted as defendant who ought to be joined in an action on a contract, advantage of the omission can only be taken by a plea in abatement, unless the joint liability appears from the plaintiff’s own pleading. 1 Chitty’s Pl. 46; 1 Saunder’s Pl. and Ev., 10; Rev. Stat., Chap. 1, Sec. 4; Conley v. Good, Breese, 135; Lurton v. Gilliam, 1 Scam. 577; Puschel v. Hoover, 16 Ill. 340; Thompson v. Strain, 16 Ill. 369; Pearce v. Pearce, 67 Ill. 207; Ross v. Allen, 67 Ill. 317; Sinsheimer v. William Skinner Mfg. Co., 165 Ill. 116. Proof that another is liable with defendant does not tend to show that defendant is not liable, and hence does not tend to establish the general issue. The fact that the joint liability is not claimed to cover all the items of plaintiff’s demand does not abrogate the rule requiring that defense to be set up by a preliminary plea which gives the plaintiff a better writ, if he choose to avail of it. As defendant did not plead this defense in abatement, this proof was properly rejected.”

This view of the law is supported by 1 Chitty, 14 Am. ed. 458; Hill v. White, 6 Bing. N. C. 23 (37 E. C. L. 489); Prunty v. Mitchell, 76 Va. 169; Wilson v. McCormick, 86 Va. 995.

It is argued that the Court erred in not requiring the plaintiff to produce their books under Section 9, chapter 51 of the Revised Statutes, the motion being made during the trial and based on an examination of one of plaintiff’s witnesses and a subpoena, of which there is no record. We do not think any such showing as contemplated by the statute was made that required the Court to enter the order requested.

We are of the opinion that the other errors assigned are unimportant and the judgment is affirmed.

Affirmed.


text:
    James J. Klaub, Appellee, v. Paulina Vokoun and Benjamin Vokoun, Appellants.
    Gen. No. 16,091.
    1. Mechanic’s liens—effect of failure of contract to describe premises. If the evidence is clear that the contract was made in reference to the lot described in the bill and the work was to be performed in the building thereon and that it was so understood by all the parties to the contract the failure of the contract to describe the premises is not material.
    2. Mechanic’s liens—effect of failure to perform contract. If a contractor fail without fault on the part of the owner to perform his contract by omitting a material part of the work contracted to be .performed he is not entitled to a lien.
    3. Contracts—construction where drafted in party’s own handwriting. If there is an ambiguity in such a contract it is to be construed most strongly against the party drafting the same.
    4. Contracts—when and for what purpose custom competent. Evidence of a custom and usage is not admissible to vary the terms of a contract but is admitted on the ground that the custom and usage entered into and became a part of the contract and the contract should be so read and construed. A custom to be competent must be so certain, uniform, general and well known that it must be presumed to have been contemplated by the parties entering into the contract in question.
    Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed April 1, 1912.
    Dewitt C. Jones, for appellants.
    Joseph F. Triska, for appellee; Donald L. Morrill and Robert W. Millar, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee filed a bill in the Circuit Court of Cook county against the appellants, seeking to enforce a mechanic’s lien on certain premises for plumbing work done by the appellee thereon. The cause was referred to a master in chancery who after a hearing reported that the allegations of the bill were sustained by the proof and recommended a decree be entered in accordance with the prayer of the bill. The chancellor entered a decree finding the facts as reported by the master and ordering the payment of the sum found due, $412, and in default thereof the said premises be sold, etc., in the usual form of such decrees, and the defendant appealed.

The work was performed under a written contract drawn by the appellee, accepted by the appellants and introduced in evidence, as follows:

“Tel. Yards 714. Chicago,---19—.

M.--

To James J. Klaub, Dr.,

Practical Plumbing, Gras Fitting and Sewerage.

Repairing neatly done. All work guaranteed.

4709 Western Ave. Blvd.

“This agreement: Between Mr. Vokoun and James J. Klaub, the Plumber, made this 12 day of Mar. ’08, Witnesseth: That the said Jas. J. Klaub agreed to put in plumbing fixtures as. stated below and for the sum of Four Hundred $400.00 Dollars. All connections from the sewer to the roof of the 2 flats to be completed as said this 12 day of Mar. 08.

Following fix. to be put in:

2 5-6 Corona Bath tub.

2 Wash down iron closet, High tank.

2 Iron Lavatories F. 5981 20x24.

2 Roll Rim Sinks.

2 30 gal. boilers.

All work to be guaranteed.

(Seal) Jas. J. Klaub.”

The appellee contended that the work was performed according to the contract and, the appellants refusing to pay therefor, he was entitled to have enforced a mechanic’s lien on the premises. The appellants contended that the contract not describing the premises, there could be no lien. We think the evidence is clear that the contract was made in reference, to the lot described in the bill and the work was to be performed in the building thereon, and that it was so understood by all the parties to the contract. Under the evidence the case of Bastrup v. Prendergast, 179 Ill. 553, is decisive and the contention cannot be sustained.

The appellants next urge that the appellee did not perform the work provided by the contract, in that he failed and refused to put in about forty-eight feet of pipe from the boiler to the stove in the kitchen and make the connections therewith, and also introduced evidence that one of the pipes and the sink leaked, and of other minor troubles not necessary to recite. The controversy was really over the construction of the contract in relation to said pipe from the boilers to the stove and connection therewith and referred to in the evidence as “stove connections.” The appellants insisted that the contract included the stove connections and refused payment unless appellee so completed the contract. The cost of putting in the said connections was $37.50, and the appellee, claiming said connections did not come within the contract, refused to put them in. If he were right in this position he was entitled to a mechanic’s lien. If the connections were included in the contract, the appellee, failing and refusing to put them in without fault on the part of the appellants, was not entitled to a lien.

The plan of the work, which was not offered in evidence, was submitted to the appellee, who figured on the same and then drew the said contract. He takes the position and testified that in “the usual and ordinary course pursued regarding stove connections in connection with the job of plumbing of this kind,” it was not “customary to consider stove connections a part of the general contracts for plumbing work upon a building or apartment of this kind,” and that he put them in only “when it is in the contract and plainly written, and the owner agrees to pay for it extra from other contracts. ’ ’ Two witnesses, for many years engaged in the plumbing business, testified on behalf of the appellee. In answer to a question as to the said custom, the first witness said: “It is rarely done by the plumber,” and in answer to the question, “In what cases is it done by the plumber?” said: “When it is specified. If it is not specified—well you might say the exception. I don’t know as I ever had a contract requiring me to make the connection with the water front—to make the connection of the water front with the stove.” The other witness testified in answer to a similar question, “Well, as a rule in these houses there are none; there are no stoves to connect until the tenant moves in.” The record then shows the following questions and answers:

“Q. Is it any part of the implied duty of the plumber to put in such stove connections in connection with a general contract? A. No it is not. Q. Do you ever put them in? A. I have acted for the owner where the owner would live in the flat, as a matter of doing some carpenter work or something like that. We would in finishing up a house connect stoves; hut not for the tenant as a general rule. Q. You put them in where there is an express agreement to put them in? A. Yes.”

The appellee entered into a contract of his own wording, guaranteeing his work and agreeing to make “all connections from the sewer to the roof.” If there be any ambiguity in this statement it must be construed most strongly against the party making the same—Rankin v. Rankin, 216 Ill. 132, and cases there cited—having regard, of course, to the whole context. It would seem that the clause in the contract providing that the appellee make “all connections from the sewer to the roof” was clear and meant what the ordinary use of the language imports; and if there were any exceptions to so plain and unequivocal statement, the appellee in drawing the contract would have mentioned them. However, in order to maintain this bill and enforce a mechanic’s lien on the premises therein described, the appellee must prove that the custom and usage as indicated entered into this contract, and it is on the rule of law that custom and usage enters into a contract that appellee relies, as we understand it.

Evidence of a custom and usage is not admissible to vary the terms of a contract, but is admitted on the ground that the custom, and usage entered into and became a part of the contract, and under the law the contract should be so read and considered. The custom must be shown to have been known to both contracting parties—Corrigan v. Herrin, 44 Ill. App. 363; First Nat. Bank v. Mackey, 157 Ill. App. 408,— or that it was certain, uniform and so general and well known that both parties would be presumed to have knowledge thereof. Currie v. Syndicate, etc., 104 Ill. App. 165; American Insurance Co. v. France, 111 Ill. App. 310. In Bissell v. Ryan, 23 Ill. 566, the court said: “The proper office of a custom or usage in business is to ascertain and explain the intent of the parties. * * * It ought to be proved to be so general, uniform and frequent as to warrant that the party against whom the right is claimed had knowledge of it and contracted with reference to it. * * * All the authorities concur in saying that if usage is relied upon, it must be shown to be ancient, certain, uniform, reasonable and so general as to furnish this presumption of knowledge by both parties.” Turner v. Dawson, 50 Ill. 85; Packard v. Van Schoick, 58 Ill. 79; Cahn v. Mich. Cent. R. R. Co., 71 Ill. 96; Wilson v. Bauman, 80 Ill. 493; Lyon v. Culbertson et al., 83 Ill. 33; Coffman et al. v. Campbell & Co., 87 Ill. 98; C. C. C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398. To permit a custom to be construed as a part of a contract it seems it must, as expressed in Cahn v. Mich Cent. R. R. Co., supra, and repeated in Lyon v. Culbertson, supra, “be so uniformly acquiesced in, by length of time, that the jury will feel themselves constrained to say that it entered into the minds of the parties and made a part of the contract.”

In Corrigan v. Herrin, 44 Ill. App. 363, wherein a retail milkman recovered from a lumber broker certain commissions on the sale of a bill of lumber, a custom prevailing among lumbermen pertaining to commissions was offered in evidence, and excluded. The ■court said: “The offer did not embrace the further necessary fact that the custom was known to both parties. Proof of a custom among lumbermen would not be binding upon a milkman unless it were shown that he knew of the custom and contracted with reference to it.” In Swern v. Churchill, 155 Ill. App. 505, the court said: “when a trade, business or profession custom is involved, such custom is not considered to have entered into the contracts of others than those in the particlular trade, business or profession, those shown to have had actual knowledge of the custom and those shown to have had previous transactions or a course of dealings of such nature that knowledge, on their part, of the custom may be presumed. Wlien a territorial or local custom is involved it is regarded to have entered into the contracts of those domiciled in the locality and perhaps of those who are permanently engaged in business in the locality where the custom exists. The doctrine that usage and custom affect contracts ‘rests, except in particular instances, solely upon the theory that the parties in entering into the compact had such usage in mind, stipulated with reference to it, and, hence, made it a part of their contract.’ Germ. Am. Ins. Co. v. Commercial F. Ins. Co., 95 Ala. 469, 474. If a usage is special and confined to a particular business or has reference to a particular port only, there is no presumption that both parties had knowledge of it and contracted with reference to it. Isaksson v. Williams, 26 Fed. 642, 645. To the same effect, Van Hoesen v. Cameron, 54 Mich. 609, 614. True, a person who deals in a particular market must be regarded as dealing according to the general and uniform usage and custom of that market, in respect to days of delivery and otherwise, and as having knowledge thereof; but this rule does not apply to one having but a single transaction with a member of a profession, of which he is not himself a member, wherein exists a usage or custom by which it is sought to charge him on the ground it entered into his contract.

“When shown to exist, a particular usage and custom has the force of law within the sphere where established. An established usage and custom enters into the contracts of those within its sphere who are shown to know of its existence. Facts and circumstances may be shown which raise a presumption of knowledge of the existence of the usage and custom. A usage or practice, in order to have a standing in law as a custom, must be uniform within some sphere. It must also be long established and generally acquiesced in. Packer v. Pentecost, 50 Ill. App. 228, and cases there cited. ‘A custom is something which has the force and effect of law; is law by the usage and consent of the people.’ * * * A practice and usage in order to have become an established custom must have been uniformly acquiesced in; for, as customs owe their Origin to common consent, lack of uniform acquiescence shows the want of such consent.”

Other interesting cases.holding to the same effect on. the question under discussion to which we desire to refer, without comment, are Kendall v. Russell, 5 Dana (Ky.), 501; Atkinson et al. v. Allen, 29 Ind. 375; Sawtelle v. Drew, 122 Mass. 228, and Eaton v. Gladwell, 108 Mich. 678.

On a careful reading of the evidence, whether it was intended to prove a territorial custom and usage or a custom and usage existing among plumbers, is not entirely clear. At any rate it is manifest from all the evidence in the case that the appellants had no knowledge of said custom and usage, admitting such a custom and usage proven, and, further, there is no pretense that it was so certain, uniform, general and well known that the appellants would be presumed to have known it and made the said contract with reference thereto. It necessarily follows that the said custom and usage did not enter into said contract and become binding upon the appellants. We therefore conclude that the appellee was not entitled to a mechanic’s lien on the premises in question, and the decree is reversed and the cause remanded with instructions to dismiss the bill at complainant’s costs.

Reversed and remanded with directions.


text:
    Agnes M. Cornell, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,114.
    1. Verdicts—effect of conflict in plaintiff’s testimony given upon successive trials. If the testimony of the plaintiff given upon successive trials is variant and open to criticism a verdict in her favor will not necessarily for that reason alone be set aside.
    2. Verdicts—when not excessive. Held, in a personal injury action that a verdict for $2800 was not excessive where it appeared that the plaintiff at the time of the accident was 25 years of age, suffered as a result thereof a fracture of the patella of the right knee and that an operation was required, etc.

      3. Instructions—when erroneous upon exercise of care by plaintiff in sidewalk injury case will not reverse. Such instructions will not reverse where the jury in other instructions were told clearly what the law was and it was unlikely, upon the simple facts and issue involved, that they were misled.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    William H. Quinlan and Arnott Stubblefield, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, hereinafter called plaintiff, in a suit for damages for personal injuries against the appellant, hereinafter called defendant, obtained a verdict for the sum of $2800; the Court entered judgment thereon and the defendant appealed.

On the west side of 43rd avenue, between Montrose boulevard and Sunnyside avenue, a distance of one block, in Chicago, the plank sidewalk had been condemned and a cement sidewalk built from Sunnyside avenue south to about the middle of the block, and from this point south to Montrose boulevard was the old plank sidewalk, in which there were certain holes where the planks were missing.

The plaintiff was walking north on the said plank sidewalk with a lady friend about eight o’clock on a Sunday morning on their way to church. The plaintiff had been in the habit of crossing a certain large lot, thereby shortening the route to church, and in so doing not passing over the sidewalk in question. On this particular morning the lot was covered with water and she changed her course and thereby used the said sidewalk over which she had not before passed. She testified that she stubbed her toe on a plank at one of the holes, stumbled and fell into another hole at the end of the cement walk, where several planks were missing. She struck her right knee on a two by four at the end of the cement sidewalk.

The defendant urges that the plaintiff was guilty of contributory negligence. The principal ground justifying this argument was some difference in the plaintiff’s testimony from that given by her on a former trial. While there is some basis for criticism of plaintiff’s testimony, we would not be warranted by reason thereof in disturbing the verdict of the jury.

The defendant complains of two instructions given by the Court on behalf of the plaintiff, as follows:

“1. The jury are instructed, as a matter of law, that any person traveling upon a sidewalk of a city, which is in constant use by the public, has a right, when using the same with due diligence and care, to presume, and to act upon the presumption, that it is reasonably safe for ordinary travel, throughout its entire width, and free from all dangerous holes, obstructions or other defects.

‘ 2. The court instructs the jury that a person passing over a sidewalk or street is not bound to exercise more than reasonable care and caution in respect to his own safety. Until he is charged with notice to the contrary, he has a right to presume the same to be in a reasonably safe condition.”

The first of these instructions was held erroneous in Chicago v. Sutton, 136 Ill. App. 221, and substantially the same in Chicago v. Morse, 33 Ill. App. 61, was also there held error. The Court also gave at the request of the defendant, among others, the following instructions :

“1. If you believe from the evidence that at the time and place in question the plaintiff was negligent and that such negligence on her part proximately contributed to cause the alleged accident, then you are instructed that she cannot recover in this case, irrespective of whether you believe that the defendant was or was not negligent.

“2. If the jury believe from the evidence that the plaintiff was negligent and that her negligence, if she was negligent, proximately contributed to cause the injury herein complained of, then you should return a verdict of not guilty; or, if the jury believe from the evidence that the plaintiff failed to exercise ordinary care for her own safety, and that this failure to use such care proximately contributed in any way to bring about the accident which resulted in the injuries complained of, then you should return a verdict of not guilty.

6. The court instructs the jury that the law places upon all persons the duty of exercising ordinary care to avoid injury. Therefore, if you find from a preponderance of the evidence that at the time and place in question the alleged accident could have been avoided by the exercise of ordinary care on the part of said plaintiff, and that the plaintiff at said time and place failed to exercise such ordinary care and that such failure on her part to use such care proximately contributed to cause the alleged accident, then you should find the defendant not guilty. ’ ’

It was error to give the instructions complained of, and they should not have been given. However, should the giving of said instructions in this case be held reversible error? The declaration consisted of one count charging the defendant with negligence in allowing, etc., said holes in the said sidewalk. The negligence charged was so certain that it was not subject to controversy. The only other issue of fact on the question of the defendant’s liability was whether the plaintiff was guilty of contributory negligence. The plaintiff observed the condition of the sidewalk and said, quoting from the abstract: “As I approached the place where I fell I saw the hole and I wondered how I was going to get across without getting muddy. I should think it was about two or three feet from the hole where I fell in, that I tripped. I don’t think that I noticed the hole I stumbled over as much as the larger hole. I saw holes in the sidewalk before I reached the place I fell.” On cross-examination an attempt was made to get her to admit that she had stated on the previous trial she had not seen the hole where she tripped before she fell, and also that she had said that she had caught her toe under the plank. To the series of questions as to the first proposition she answered no to some and to others that she did not remember; and to those in relation to the second proposition her replies were in substance that she thought she did so answer. It was admitted by her counsel that on the previous trial she had answered as contended. We are not able to understand how this cross-examination proved the plaintiff was guilty of contributory negligence, and the defendant in its brief says: “On the question of due care, we do not think it important whether she saw the hole before she stubbed her toe in it or not.” The position of defendant is that if plaintiff saw the hole which caused her to trip, she could have avoided same by the slightest care, and if she did not see it, and their theory is that she was busy talking to her companion and did not see it, she was not exercising ordinary care, and therefore, in either event, was guilty of contributory negligence. Two witnesses testified that they saw the plaintiff fall and corroborated her testimony except as to the exact manner of her falling, of which one of them, her companion, said: “We came to this one place where there was a board or so missing, and she stepped over it and fell forward and struck her knee and she turned, ”'etc. The other said: “As near as I could make out, she was trying to step over that wooden walk over onto that cement walk, or over onto that two by four. I don’t know exactly because I could not see just that much of it; then she slipped and fell.”

The issue of fact as to liability was confined to the one question of plaintiff’s care, and in that respect the jury found, and we believe that the evidence showed, that the plaintiff was exercising ordinary care, and is uncontradicted unless it be held that the testimony pertaining to the said cross-examination, as detailed, showed she was negligent, and we do not think it can be so considered.

The instructions given at the request of the defendant in three different forms clearly stated to the jury the rule of law pertaining to contributory negligence on the part of the plaintiff, and being on an issue so plain and simple and practically uncontroverted, it is difficult to see how the instructions complained of could have misled the jury. In Chicago v. Morse, supra, the Court said: “Such an instruction may or may not be overlooked, as the merits of the case may appear.” On a previous trial there had been a verdict for the plaintiff, and under all the facts and circumstances in this case we have concluded not to hold the giving of said instructions complained of reversible error.

The defendant insists that the damages are excessive. The testimony on behalf of the plaintiff, who was twenty-five years old at the time of the accident, was uncontradicted that the patella of her right knee was fractured into three parts; that an operation was necessary and the parts were wired together; that she was in the hospital as a result of the injury for several weeks, and there suffered, and for a long time after, intense pain. She also testified that" at the time of the trial, four years after the accident, her knee ached a great deal and was weak; that she could not kneel on it and had trouble in walking, etc. The defense introduced the testimony of a doctor, who attended the plaintiff in confinement, and also five neighbors, who testified that they had seen plaintiff walk and had observed nothing unusual in her walk. The doctor also said he had noticed nothing unusual about her knee, but also said his attention had not been called to the condition of her knee. On this evidence we are not inclined to hold the damages excessive.

The other errors complained of are unimportant, and the judgment is affirmed.

Affirmed.


text:
    Labahn Brick Co., Appellee, v. Albert S. Hecht, impleaded with Leafgreen Construction Company, Appellant.
    Gen. No. 16,121.
    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. Judgments—when exceeding ad damnum cured. The entry of a remittitur for the excessive amount cures such irregularity.
    3. Appeals and errors—when maxim de minimis non curat lex applies. Held, where the error merely amounted to an excess of $2 in the amount of the judgment rendered, the maxim de minimis non curat lex applied.
    Appeal from the Municipal Court of Chicago; the Hon. Anthony J. Clarity, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 1, 1912.
    Louis T. Orr, for appellant; Harvey L. Cavender, of counsel.
    Felsenthal, Foreman & Beckwith, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee brought suit against the Leafgreen Construction Co. and Albert S. Hecht in the Municipal Court of Chicago on a note for the sum of $2,000, hearing interest at the rate of six per cent per armum, dated July 27, 1908, payable thirty days after date to the Leafgreen Construction Co., and by it endorsed, signed by Albert S. Hecht. The defendants were duly served. The Leafgreen Construction Co. did not appear and default was entered against it. Mr. Hecht appeared and contested the suit. The issues were submitted to a jury and the jury found for the plaintiff and assessed his damages at the sum of $2,102; judgment was entered on the verdict against both defendants and Mr. Hecht appealed J

In the language of the appellant in his brief: "The defense of Albert S. Hecht, as set up by two special pleas, and by his affidavit of merits, and relied upon at the trial was that the note was given by B. A. Leaf-green as an accommodation note, to be by said Leaf-green cashed by one Mr. Cressman, a banker, and the cash received therefrom to be used by Mr. Leafgreen to meet his pay roll; that if said Mr. Cressman would not cash the note Mr. Leafgreen agreed to return it to Albert S. Hecht, and not negotiate it; that the plaintiff was fully advised that it was an accommodation note and of the restrictions thereon before it received it.” On this issue the cause was vigorously contested. Evidence was introduced tending to prove the defense. On the other hand the appellant admitted that at the time he gave the said note to the Leafgreen Construction Co. he owed the said Company a considerable sum, on account of construction work on certain buildings. Evidence was also introduced tending to prove that the note was not an accommodation note and that the appellee had no notice of the said claim of the appellant, but was a bona fide holder of the note for value before maturity. We see no reason for disturbing the judgment on the ground urged, that the verdict was clearly and manifestly against the weight of the evidence.

Objection is made to the forms of the verdict submitted to the jury. The appellee had a right to ask for ■a. verdict against both parties defendant. The Court properly instructed the jury as to the forms of the verdict and in regard to a verdict in favor of appellant, stated as to the form as follows: “And in case you find for Albert S. Hecht, ‘We, the jury, find the issues for the defendant, Albert S. Hecht. ’ ” The appellant objected to the same, but offered no form of verdict for the Court to submit to the jury. We are unable to see any error in this respect.

It is urged that the ad damnum being for $2,100, it was error to enter judgment for $2,102. It is true that the entering of the judgment for a larger sum than the ad damnum was error, but the appellee having filed a remittitur in this Court of two dollars, it is ordered that the remittitur of the sum in excess of $2,100 be allowed. Winslow v. People, 117 Ill. 152. We also think that the maxim de minimis non curat lex applies to this error. Village of Morgan Park v. Knopf, 210 Ill. 453; Rolsch v. Young, 111 Ill. App. 34; Underwood v. Whiteside Co. Bldg. & Loan Association, 115 Ill. App. 387; Spunner v. Roney, 122 Ill. App. 19.

We are of the opinion that the other errors argued are untenable and need no mention. The judgment is affirmed.

Affirmed.


text:
    Ella A. Brand et al., Executors, Appellants, v. Union Elevated Railroad Company et al., Appellees.
    Gen. No. 16,414.
    Measure op damages—in action for injury to real property. In such a ease the measure of damages is the difference in value of the property before the proposed construction and what it was afterwards.
    Action on the case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the February term, 1910.
    Affirmed.
    Opinion filed April 1, 1912.

      Harry S. Mecartney, for appellants.
    Clarence A. Knight and William G. Adams, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

The appellants, hereinafter called plaintiffs, brought an action on the case against the appellees, hereinafter called defendants, for damages to certain premises described in the declaration, being on the west side of Wabash avenue between Jackson boulevard and VanBuren street, known and described at that time as No. 259 Wabash avenue, in the city of Chicago, caused by the erection of an elevated railroad structure by the defendants on Wabash avenue in front of the said premises, and over which the defendants operated their respective trains. The Court, on a hearing before a jury, at the close of the plaintiff’s case, instructed the jury to find for the defendants, and upon such verdict so returned the Court entered judgment and the plaintiffs appealed.

The plaintiffs introduced evidence showing the location and construction of the said elevated railroad structure and the operation of its trains thereon; also the location, construction and" character of the said premises and improvements thereon, together with the value thereof and rents therefrom. The uncontroverted evidence of the plaintiffs was that the value of the said premises at the time of the completion of the said elevated structure and the beginning of the operation of the trains thereon, and for two or three years thereafter, was the same as the value thereof at, or immediately prior to, the commencement of the erection of said structure.

The trial court instructed the jury, following the rule as to damages announced in West Side Elevated Ry. Co. v. Stickney, 150 Ill. 362, and the subsequent cases adhering thereto—among others, Met. West Side El. R. R. Co. v. White, 166 Ill. 375, Fahnstock v. City of Peoria, 171 Ill. 454, Illinois Cent. R. R. Co. v. Turner, 194 Ill. 575, Peoria B. & C. Traction Co. v. Vance, 225 Ill. 270, Eldorado M. & S. W. R. R. Co. v. Everett, 225 Ill. 529—that the measure of damages is the difference in value of the property before the proposed construction and what it was afterwards. And the rule as to the measure of damages in the said cases brought to condemn property is the same rule to be applied in cases brought to recover damages to property such as the case at bar. Aldis v. Union El. R. R. Co., 203 Ill. 567.

The plaintiffs present the question, in the language of their counsel: “Whether or not upon the trial of such a case only the ‘direct, proximate and physical benefits’ can be set off against ‘direct, proximate and physical damages; ’ that is, in particular, whether or not the ordinary benefits from improved travel facilities accruing to the property involved should not be eliminated from consideration; and as to whether or not the property owner has a constitutional right to such benefits as a property owner of the district specially served by the road and as entitled to the ‘ equal protection’ or ‘benefit’ of the law with other property owners thereof.” We understand that the plaintiffs do not urge other errors assigned, but that they insist upon a review of the rule announced in the Stickney case, supra, confident in their belief that the great weight of authority is not in accord therewith; and upon a full and careful consideration of the constitutional provisions that “private property shall not be taken or damaged for public use without just compensation,” and “no person shall be deprived of life, liberty or property without due process of law,” the principles announced by Mr. Lewis in his work on Eminent Domain, the decisions of the courts in many other jurisdictions and recent decisions by our own Supreme Court, that this Court will conclude that the said rule has been, and should be, so modified that it will be held that the plaintiffs established a cause of action.

In support of their contention the counsel for plaintiffs has presented with force and vigor exhaustive and learned arguments, which have received our careful consideration. It would be interesting and a pleasure to us to discuss and comment upon many of the propositions so clearly stated and analyzed by counsel; but whatever our personal views may be pertaining thereto, such discussion or comment could be of no avail. We are of the opinion that this Court is concluded by the authorities above cited announcing the rule as to. the measure of damages, and that the said rule controls and governs in the case at bar. It follows that the trial Court committed no error in instructing the jury to find for the defendants, and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    The People of the State of Illinois, Defendant in Error, v. Kittie E. Wilson et al., Plaintiffs in Error.
    Gen. No. 16,233.
    1. Bonds—effect given to statutory. A statutory bond is given the effect which, in reason, must have been intended by the statute.
    2. Bonds—liability of sureties upon, given on appeal from refusal of discharge under insolvent debtors act. Held, under the statutory bond in this, case, that upon the dismissal of the appeal in question or upon the affirmance of the judgment, the debtor should either pay the amount of the original judgment rendered against her or surrender her body and if she does neither and if after notice the sureties are unable to produce the body of such debtor, such sureties are liable to pay to the obligees the amount of said original judgment within the limit of the penalty of the bon'd.

      Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    M. H. Hoey, for plaintiff in error.
    White, Mabie & Conkey, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action, commenced in the Municipal Court of Chicago, upon an appeal bond of $1,000, signed by Kittie E. Wilson, as principal, and E. J. Lonergan and Zacharias Campbell, as sureties, plaintiffs in error, resulting in a verdict and judgment for $904.10, damages, in favor of The People of the State of Illinois, for the use of Liston H. Montgomery, defendant in error, to reverse which judgment' this writ of error is prosecuted.

On January 7, 1909, Cora A. Wilson and said Kittie E. Wilson filed their petition in the County Court of Cook County, representing that they had been arrested under a writ of capias ad satisfaciendum, issued by said Municipal Court in favor of Liston H. Montgomery, for the sum of $858.32, that they were in the custody of the bailiff of said court by virtue of said writ and were desirous of releasing their bodies from such arrest or imprisonment by delivering up their property, and prayed that such proceedings to that end be had as were prescribed by the laws relating to insolvent debtors. The County Court, on January 25,1909, ordered and adjudged that said petition be dismissed, from which" order and judgment "the said Kittie E. Wilson prayed for and perfected an appeal to the Appellate Court of this district. The appeal bond executed at that time is the bond on which this present action is based. It is dated January 25,1909, is signed by the parties, and appears to have been approved by the then.judge of said County Court. Upon the filing of said bond in said County Court, the said Kittie E. Wilson was released from the custody of said bailiff. The bond sets forth, in substance, that said Kittie E. Wilson was arrested and imprisoned upon a capias ad satisfaciendum; that, desiring to release her body from such arrest, she applied to the County Court to be discharged under the provisions of an act, entitled “An Act Concerning Insolvent Debtors,” in force July 1, 1872; that her application was dismissed and that she prayed for and obtained an appeal; that “if the said Kittie E. Wilson will prosecute her said appeal with effect, and in case the appeal is dismissed, or the order or judgment of the said County Court is affirmed, in whole or in part, she will perform the same, and will appear before and abide whatever decision the said Appellate Court shall make in the premises, and pay all costs that may be awarded against her, * * * and also that she will not sell or dispose of any of her estate pending such appeal, but that the.same shall be forthcoming and subject to the order of the said County Court, then the above obligation to be void, otherwise to remain in full force and effect.” On March 15, 1909, this Appellate Court ordered that said appeal “be dismissed, and that a procedendo be awarded herein,” and that the said appellee recover costs, to be taxed, and have execution therefor. On the following day a certified copy of said order of this Appellate Court was filed in said County Court. On March 29, 1909, due notice having been given to the sureties on said bond to produce the body of said Kittie E. Wilson in the County Court, and both of said sureties being personally present in said court, and failing to produce the body of said Kittie E. Wilson upon being ordered by the court so to do, the court ordered that said appeal bond be forfeited. In April, 1909, this action was commenced and on November 27, 1909, judgment for $904.10 was entered against said Lonergan and Campbell. The amount of this judgment is made up of the following items: Original judgment of the Municipal Court in favor of Liston H. Montgomery against Cora A. Wilson and Kittie E. Wilson, upon which said capias was issued, $858.32, interest thereon, $12.03, costs of clerk of Municipal Court, $13.00, costs of bailiff of said court, $5.00, Appellate Court costs, $15.75.

On the trial in the Municipal Court, counsel for Lonergan and Campbell moved the court to instruct the jury to find the issues for his clients, except as to the amount of $15.75—the said costs in the Appellate Court—which motion was overruled, and counsel here contends that the judgment of the lower court should be reversed, and judgment should be entered here for only the said sum of $15.75, and for the reason that the sureties on said bond are not liable for anything more than the amount of said Appellate Court costs. We do not believe the contention to be well founded. The appeal bond in question is a statutory bond and as such “has the effect which, in reason, must have been intended by the statute.” Chladek v. Brown, 58 Ill. App. 379; Hibbard v. McKindley, 28 Ill. 240; Rehm v. Halverson, 197 Ill. 378, 385. “While the contract of a surety is to be strictly construed, and will not be extended by implication, courts, in endeavoring to ascertain the precise contract which a surety has made, may resort to the same aids and will invoke the canons of interpretation ■ which apply to other contracts, and when the true intent and meaning of a contract entered into by the surety is thus or otherwise ascertained, effect will be given to it." Ewen v. Wilbor, 99 Ill. App. 132, 140. “It is familiar law that the obligors in an appeal bond are estopped to deny the recitals of the bond.” Harding v. Kuessner, 172 Ill. 125, 126. In view of the provisions of the statute, the recitals in the bond, and the particular wording of the bond that “in case the appeal is dismissed, or the order or judgment of the said County Court is affirmed, in whole or 'in part, she will perform the same,” we think it a reasonable construction to hold that, upon the dismissal of such appeal or the affirmance of such judgment, the, debtor, Kittie E. Wilson, should either pay the amount of the. original judgment rendered against her, together with all proper costs, or surrender herself to the custody of the bailiff, and if she does neither, and if, after due notice to the sureties they are unable to 'produce the body of said Kittie E. Wilson, said sureties are liable to pay to the obligee of said bond the said original judgment, and all proper costs, within the limit of the penalty of the bond. The effect of the filing of said appeal bond, duly signed by the sureties, was absolutely to release Kittie E. Wilson, the debtor, from the custody of the bailiff,- and permitted her to avoid satisfying the writ of capias. If, as a result of the signing of said bond, the sureties were unable to produce her body in satisfaction of the writ of capias, reason and justice suggest that said sureties are liable as aforesaid. The judgment of the Municipal Court must be affirmed.

Judgment affirmed.