text:
    Jacob J. Goodhart, Administrator, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 16,066.
    1. Negligence—when ordinance competent. Held, that the averment in the declaration that the plaintiff’s intestate “was undertaking to enter a vacant seat upon the east side of said grip ear,” taken in connection with the other averments of said declaration, was sufficient to warrant the introduction thereunder of an ordinance requiring a street railway corporation to place a wire guard or other suitable device to prevent passengers from “entering” ears from the side of such car which is nearest to any adjoining street railway track.
    2. Negligence—how effect of -violation of ordinance determined. Whether or not the failure of a defendant to comply with the requirements of an ordinance was the proximate cause of an injury, is a question of fact for the jury.
    3. Instructions—when improperly ■ withdraws question of negligence from jury. An instruction which withdraws from the jury the question of the negligence of the defendant as distinguished from the negligence of its employes is erroneous.
    Action in case. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 13, 1912.
    Rehearing denied February 29, 1912.
    Kraus, Alsohuler & Holden, for appellant.
    James Gr. Condon, for appellee; Irvin I. Livingston, of counsel.
   Mr. Justice G-ridley

delivered the opinion of the court.

This is an action to recover damages for personal injuries, resulting in the death of Max Jesselson, brought by Jacob J. Groodhart, administrator of the estate of said Jesselson, deceased, appellant, against the Chicago City Kailway Company, appellee, defendant below, in the Circuit Court of Cook county. The jury returned a verdict finding the defendant not guilty, judgment was entered on the verdict and from that judgment this appeal is prosecuted.

On November 18, 1905, appellee was operating a street railway upop. Wabash avenue in the city of Chicago. There were two parallel tracks, running north and south, whose inner rails were about five feet apart. At this time, and for many years prior thereto, the cars were operated by means of a cable running in a conduit underneath the surface of the ground. The cable was taken hold of and released by means of a mechanism in the front car, called the grip car. The grip car was an open car (to which was coupled one or more closed passenger cars), and had an enclosed alley extending through its length, except for a space at each end of the car, where there was a passageway across the floor of the car. In this enclosed alleyway the gripman-stood, and, by means of levers which could be moved forward or backward, operated the car. On each side of this alleyway, and extending from it to the outside of the car, were six seats, four of which— two in front and two in the rear—were each intended to accommodate two passengers, the remaining two middle seats being intended to accommodate but one passenger. Upon each side of the grip car, running along its length, was a footboard, from eight to ten inches wide, which was the only means provided for entering or leaving said car. Cars going north on Wabash avenue ran on the east track, those going-south on the west track. Persons boarding a south bound grip car from the west side or outside, and desiring to enter a seat on the east side of the car, were obliged, owing to the construction of the car, to cross over the floor of said car at either front or rear, and, descending- to said footboard, pass along upon the same to the seat desired. At each seat there was an upright post running from the floor to the roof of the car. The ends of each seat along- the side of the car extended out over the footboard a distance of four to six inches, so that in passing- along- said footboard it was necessary to swing- the body out past the projecting ends of the seats. Several months before the accident in question, which occurred on November 18,1905, appellee constructed an electric overhead trolley over these Wabash avenue tracks and, in addition to said grip and closed passenger cars, operated on the tracks new electric cars, which were considerably larger and wider than said grip and closed passenger cars. The distance between the extreme parts of a grip car and one of these new electric cars, when passing- each other, was somewhere between fifteen and twenty-three inches. The distance was such that, as testified by one of appellee’s witnesses, a person could, while standing-on the east footboard of a south-bound grip car and pushing- his body closely against the grip car, walk along said footboard, by- taking hold of one of the posts and reaching out for the next one, without being hit by a passing new electric car, but that it was a “pretty risky thing” to do, because there was not “a terrible lot of space there.”

About eight o’clock in the evening of November 18, 1905, the deceased, carrying a bundle, boarded the west side of a south-bound grip car on Wabash avenue at the intersection of Van Burén street, walked in the passageway across the front of the grip car to its east side, and stepped down on the east footboard of said car with the evident intention of entering one of the seats on that side of said car. The witnesses differ as to whether he had already seated himself on the east side of the ear and was attempting to change his seat, or was seeking a seat in the first instance; but, however this may have been, while he was moving along on the east footboard, attempting to reach a seat, and while he was facing toward the rear of the grip car, with his back'to the south and east, one of the new electric cars coming from the south struck him and brushed him off said footboard down between the cars, and one of his feet was severed from his body, and he subsequently died as a result of the accident.

At the time of the accident, there was in force an ordinance of the City of Chicago, as follows:

“1965. Wire G-uards on Inner Side op Car— Penalty. Every person or corporation owning, operating or controlling any street railway within the City shall place or cause to be placed on all open street railway cars, either motor, grip, electric or passenger cars, a wire guard or other suitable device to prevent passengers from entering or leaving cars from the side of such car which is nearest to any street railway track adjoining the track upon which such car is being* operated. Every such person or corporation shall also place a wire guard or other suitable device on the outside of all such cars to protect passengers from falling under the wheels. Any person or corporation violating any of the provisions of this section shall be fined not less than fifty nor more than two hundred dollars for each offense, and each day on which any such person or corporation operates a street railway car in violation of the provisions of this section shall be deemed a separate and distinct offense.”

The declaration consisted of seven counts, to which the defendant pleaded the general issue. During the trial an amended fourth count was filed, and it was ordered that the plea of general issue, theretofore filed by the defendant, stand as a plea to said amended count. The amended count set out the said ordinance in haec verba, and averred in substance that the defendant, not observing its duty under said ordinance, carelessly and negligently failed to comply therewith, in that said grip car had no wire guard or other device to prevent passengers from entering or leaving said car from the side which was nearest to the adjoining track, and that while plaintiff’s intestate, who was then in the exercise of ordinary care for his own safety, was undertaking to enter “a vacant seat” upon the east side of said grip car, he was, by reason of the said negligence of the defendant, permitted and caused to be placed in a position upon the car, wherein he was struck by another passing car, and was so severely injured that he died.

During the trial, plaintiff offered in evidence the said ordinance, hut to its introduction defendant objected on the ground that under the pleadings and the evidence it did not appear that any non-observance of such ordinance in any manner contributed to the accident, and the ordinance by its terms had no application to the deceased or to the situation in which he was at and before the time of the accident. No other objections to its introduction were made. The trial court, in the presence of the jury, sustained the objections, and refused to admit the ordinance in evidence. At the close of plaintiff’s evidence, on motion of defendant, the court instructed the jury to disregard the amended fourth count of plaintiff’s declaration, and the trial proceeded on the remaining counts.

Various errors are urged by appellant as reasons why the judgment should be reversed and the cause remanded. It is claimed that the trial court erred, (a) in instructing the jury to disregard the amended fourth count of the declaration and in refusing to admit in evidence the said ordinance, and (b) in "the giving of certain instructions offered by the defendant.

After a careful review of the record and the briefs of opposing counsel, we have reached the conclusion that the trial court erred in instructing the jury to disregard said amended count and in refusing to admit said ordinance in evidence. The averment in the count that plaintiff’s intestate “was undertaking "to enter a vacant seat upon the east side of said grip car,” taken in connection with the other averments of said count, is sufficient, we think, to warrant the introduction thereunder of an ordinance requiring a street railway corporation to place a wire guard or other suitable device to prevent passengers from “entering” cars from the side of such car which is nearest to any adjoining street railway track. Entering a vacant seat upon that side of the car was, it seems to us, entering the car; and the manifest purpose of the ordinance was to prevent accidents similar to the one in question.

We think the ordinance should have been admitted in evidence, because no question was raised but that said ordinance was a valid and reasonable enactment, and the evidence showed a failure on the part of the defendant to comply therewith. Furthermore, the deceased was undertaking to enter a seat on the side of the car required by said ordinance to be guarded in the manner prescribed, and he was, we think, within the class of persons which the ordinance was designed to protect, and, in all probability, had the provisions of the ordinance been complied with, the accident would not have occurred. But whether or not the failure of appellee to comply with the requirements of the ordinance was the proximate cause of the injury was a question of fact for the jury. Dallemand v. Saalfeldt, 175 Ill. 310; North Chicago St. Ry. Co. v. Dudgeon, 184 Ill. 477; True & True Company v. Woda, 201 Ill. 315; Hayes v. Michigan Central R. R. Co., 111 U. S. 228; Heiting v. Chicago, R. I. & P. Ry. Co., 252 Ill. 466.

Among the instructions given by the court at the request of the defendant was the following instruction:

“The court instructs you that the relation of passenger and carrier does not make the carrier an insurer of the absolute safety of the passenger. The carrier does not guarantee that it will protect passengers against remote, unusual and extraordinary perils not to be foreseen by the exercise of the highest degree of care consistent with the practical operation of the carrier’s railroad. The defendant, the Chicago City Bailway Company, was not required to exercise a degree of care which was not practicable in the operation of its business, and if vou believe from the evidence that the injury, resulting in the death of the plaintiff’s intestate, could only have been prevented bv the exercise of a degree of care and caution on +he part of the street railroad employees not reasonably practicable in the operation of the defendant Company’s street railroad, then the iurv should find the defendant, the Chicago City Bailway Company, not guilty.”

We think the giving of this instruction was erroneous in that it withdrew from the consideration of the jury any of the negligence of the defendant railway company as distinguished from that of its employees in operating the cars.

In Chicago City Ry. Co. v. O’Donnell, 114 Ill. App. 359, this court said (p. 363) :

“It is assigned for error that the court refused to give for the defendant the following instruction: ‘The court instructs the jury, as a matter of law, that the defendant was not required to exercise toward the plaintiff’s intestate the highest degree of care, but the said defendant was only required to exercise toward the said plaintiff’s intestate ordinary care at the time and place of the accident in question, and ordinary care is such as a person of ordinary prudence would exercise under the same or like circumstances. If the jury believe from the evidence that the defendant’s servants exercised, at the time and place in question, ordinary care to avoid injuring the plaintiff’s intestate, hut that nevertheless the deceased was injured, then they should find the defendant not guilty; ’ and also instruction 11, of substantially the same purport and effect. No objection is perceived to these refused instructions, so far as they relate to and state the care the servants of the defendant were bound to exercise in running and operating its cars, but each instruction concluded with the direction to the jury, in case they found that such care had been exercised, to and the evidence tended to prove not only negligence find the defendant not guilty. The declaration charged in the operation of defendant’s car, but also neglis’ence in failing to equip its car with the fender required by the ordinance. An instruction that directs a particular verdict if the jurv find certain facts, must embrace all the facts and conditions essential to such a verdict.”

Because of the views above expressed, it will not be necessary for us to discuss the other points raised by appellant.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice G-ridley

license: Public Domain

text:
    Percy C. Pickrell, Appellant, v. John McNaughton, Appellee.
    Gen. No. 16,080.

      Injunctions—when assessment of damages upon dissolution proper. Held, that the evidence in this case justified the assessement of the damages awarded upon the dissolution of the injunction which had been previously granted.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.
    Percival Steele, for appellant.
    Juliah C. Ryer, for appellee.
   Mr. Justice G-ridley

delivered the opinion of the court.

The sole question involved in this appeal is the correctness of the decree of the Circuit Court of Cook county in assessing damages to the amount of $259 against the complainant, appellant in this court, because of the wrongful issuance of a preliminary injunction.

The Circuit Court found, after a full hearing upon suggestion of damages, that the injunction had been wrongfully issued, that, as a matter of fact, the defendant had sustained damages in the sum of nine dollars, which he had been compelled to pay because of said wrongful issuance, and which said sum was a necessary, reasonable and fair expense, and that, as a matter of fact, the defendant had sustained damages, by reason of said wrongful issuance, for legal services rendered by his solicitor in and about procuring the dissolution of said injunction, in the further sum of $250, that being the usual, customary and reasonable charge for such services by solicitors in Chicago at that time.

The injunction was issued by the court after a recommendation of a master in chancery, and enj oined the defendant, his agents, etc., from selling, encumbering, etc., certain United States patents, from attempting to organize a certain corporation mentioned in the bill, and from selling certain machines without fulfilling the terms of certain contracts mentioned in said bill, or until further order.

It appears from the evidence that the defendant resided at Charlotte, Michigan; that he was served with notice of the issuance of the injunction at London, Ontario, - and shortly thereafter came to Chicago to consult an attorney for the purpose of procuring, if possible, the immediate dissolution of said injunction and arranging for his defense; that he expended the said sum of nine dollars for car fare in reaching Chicago ; that he consulted with an attorney and made an arrangement as to fees to be paid him; that said attorney examined into the case, reviewed various documents and papers relating thereto, filed a general and special demurrer to the bill on October 31, 1908, and, after spending considerable time and labor during the month of November, on his motion the injunction was dissolved on November 27, 1908; and that at that time said attorney prepared a statement of his fees for. work done in procuring the dissolution of said injunction, fixing the amount at $370.

Upon examination of the entire record, we are of the opinion that the decree of the Circuit Court was proper and that it should be affirmed.

Decree affirmed.


author: Mr. Justice Gridley Mr. Justice Kavanagh,

text:
    Julia O’Donoghue, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,109.
    1. Negligence—when evidence does not establish constructive notice of defective condition of sidewalk. Held, under the evidence, that notice of the defective condition of the sidewalk in question had not been established.
    2. Instructions—when upon preponderance of evidence erroneous. Where in determining the question of where the preponderance lies it is apparent that the number of witnesses is a material element it is error by instructions to ignore the question of the number of witnesses as bearing upon the question of preponderance.
    Kavanagh, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 13, 1912.
    Edward J. Brundage and John B. Caverly, for appellant ; Edward C. Fitch, of counsel.
    Quin O’Brien and Lawrence W. Potter, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county against appellant, City of Chicago, defendant below (and hereinafter referred to as defendant), in favor of appellee, Julia O’Donoghue, plaintiff below (and hereinafter referred to as plaintiff), in an action of trespass on the case to recover damages for injuries sustained by her as a result of falling on a wooden sidewalk alleged to have been defective. The accident occurred on the morning of October 7, 1904, and by reason, as it is alleged, of a coal hole cover, in the sidewalk in front of No. 8 Institute Place, Chicago, being’ defectively supported and unfastened, which tipped or turned up when plaintiff stepped upon the same permitting her right foot and leg to go down through the coal hole opening. The jury returned a verdict, December 17, 1908, against defendant for $5,000; and subsequently defendant made a motion for a new trial, and plaintiff remitted $2,500, and, on February 6,1909, judgment was entered for $2,500.

The principal errors assigned are that the verdict is contrary to the weight of the evidence and to the law, that the trial court erred in giving the seventh instruction requested by plaintiff, and in admitting certain testimony relative to plaintiff’s miscarriage, and that the damages awarded are excessive and the result of passion and prejudice.

It appears from the testimony of the plaintiff that on the morning of October 7, 1904, she was returning home from church; that while walking fast on a wooden sidewalk in front of No. 8 Institute Place, and not paying any particular attention to the sidewalk, she stepped on the side of an iron coal hole cover, and it “jumped up” and hit her on the cap of the- knee, and her right leg went down into the coal hole as far as 'her hip; that she did not see the coal hole cover before she came to it, and'does not know whether the cover was half on the coal hole or not; that she screamed and three boys, who were across the street and who had not noticed'her until she called out, came ■over to her and helped her out of the hole to some steps, where she sat a few minutes until a Mrs. McGowan came along and assisted her part way to her home; and that prior to the accident she frequently walked on said sidewalk, and never noticed anything particular about it.

Mrs. McGowan, a witness for plaintiff, testified that on that morning she, also, was coming from church, and when she first saw plaintiff, the latter was sitting cm some steps about three or four feet away from the coal hole; that she saw plaintiff’s knee and it was “all scratched up;” that she assisted her as far as Orleans street and went on home; that the sidewalk was not a new sidewalk, but was “kind of rickety;” that the iron lid of the coal hole was off and was laying a foot or two from the hole; that the walk looked as if it had not been swept up, was “dusty like,” and small chips and pieces of wood were lying around.

The three boys, who were across the street, and who approached plaintiff, when attracted by her calls for assistance, and who helped plaintiff up, were each witnesses for the plaintiff, and were ten, nine and nine years of age respectively at the time of the accident. 0 ’Gfrady, the eldest of the three, testified that Dorgan and he helped plaintiff up, carried her as far as the steps, and then “got a grab on her” and took her to an alley, 50 feet distant, when Mrs. McG-owan came along and walked away with plaintiff; that when he first went over to help plaintiff the coal hole cover “was half on and we lifted it off to one side;” that he “didn’t take any particular notice of the coal hole cover,” (which was about 18 inches in diameter), nor any of the other coal hole covers; that he did not notice any pieces of wood or dust on the sidewalk; that “there were no iron rings around the coal hole;” that the iron of the cover was “kind of turned up;” that the sidewalk was “kind of rotten;” that “around the coal hole a board was loose where the iron laid;” that he had known the condition of the sidewalk, coal hole and cover for three months before the accident; that the boards were loose and most of them rotten; that during said three months the cover “wasn’t exactly down, there were some rusty nails, but those didn’t hold it on,” and that during said time all the boys would play tag around there. Mulcahy testified that he was “not sure” whether or not there was any iron rim around the coal hole; that “he can’t remember where the ' cover was, ’ ’ nor did he notice anything about the cover; that the sidewalk “was not of solid boards,” but that he “didn’t notice much.” Dorgan testified that before that morning he “did not know the condition of the sidewalk;” that when he went over there to pick plaintiff up “the cover was half on and half off” the coal hole; that “we pushed it right back on when we took the lady out;” that “all around the coal hole the.wood was kind of rotten.”

Joseph Schraw, also a witness for the plaintiff, testified he was a carpenter by trade; that he had lived at No. 1 Institute Place for two years prior to the accident; that he frequently walked on the sidewalk in question; that the edge of the wood was “pretty rotten,” and that a majority of the planks were rotten, but that he never took any particular notice of the coal hole.

Seven witnesses who frequently walked over the sidewalk testified for the defendant as to the condition thereof at, and prior to, the time of the accident, and all testified to the effect that it was in good condition and that they never saw anything the matter with it. Four of these witnesses testified that the sidewalk was built with new boards in the year 1900, about four years before the accident. Several testified that there were no rotten boards or holes in the sidewalk, and that the coal hole covers were firm, fitted close and did not move when stepped upon, that tljie public used the sidewalk constantly, and that many children attending a near-by school daily played and romped over the sidewalk and coal hole covers.

It is contended by counsel for appellant that before a city can be held liable for injuries occasioned by a defect in a sidewalk, the city must have had either actual or constructive notice of the existence of such defect in time to remedy it by the exercise of reasonable diligence before the happening of the accident, that in this case it is not claimed that the city had actual notice of any defect in the sidewalk or coal hole cover, and that the manifest weight of the evidence establishes conditions which rebut constructive notice to the city.

After a careful review of the entire record, we are of the opinion that the evidence does not disclose such facts and circumstances as would render the city liable, under the doctrine of constructive notice, and there is no claim of actual notice. Joliet v. Gerber, 21 Ill. App. 622; Sherman v. Chicago, 101 Ill. App. 312; Chicago v. O’Brien, 128 Ill. App. 350; Chicago v. Murphy, 84 Ill. 224; Boender v. Harvey, 251 Ill. 228.

It is further contended that the trial court erred in giving to the jury the seventh instruction on behalf of the plaintiff, which is as follows:

‘ ‘ In determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements in view of all the other evidence, facts and circumstances proven on the trial, and from all the circumstances determine upon which side is the weight or preponderance of the evidence.”

It will be noticed that this instruction makes no reference to the number of witnesses, and in telling the jury what elements they are to consider in determining upon which side the preponderance of the evidence lies it ignores the element of the number of witnesses. And in this case it is apparent to us that the number of witnesses was an important element. We think the giving of this instruction, under the state of the evidence in this case, was prejudicial to the defendant, and erroneous. Chicago Union Traction Company v. Hampe, 228 Ill. 346, 350; Elgin, etc., Ry. Co. v. Lawlor, 229 Ill. 621, 630; Sullivan v. Sullivan, 139 Ill. App. 378, 382; Eidem v. Chicago, etc., Ry. Co., 144 Ill. App. 320, 327; Lyons v. Ryerson, 242 Ill. 409, 417; Thompson v. Dering Coal Co., 158 Ill. App. 289, 291.

In view of what has been said, it will be unnecessary for us to discuss the other points raised by appellant. For the reasons stated the judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Kavanagh,

dissenting. I am unable to concur in the majority opinion upon the question of fact in this case. As shown in the main opinion, the iron cover in question was loose, and the plaintiff stepped on it. Several witnesses testify as to defective conditions surrounding it at the time, which might well count for its being loose; that for three months before, the boards surrounding the hole were rotten; that they would not hold a nail; that there was no iron rim for the cover to rest upon. If this testimony were true, the finding of the jury is absolutely justified.

I am well aware that in some of the Appellate Courts in this State there is a recent tendency of decision which justifies the' main opinion—a tendency on the part of the upper court not to review for error, but, as it seems to me, to supervise the trial of the court below, and often, in a way, belittle the effect of the verdict of the jury. Such a tendency, in my opinion, violates the clear provisions of the established law, and reflects upon the wisest establishment in our judicial system. Under the law it is assumed, and must be assumed, so long as our present system is maintained, that the jury is intelligent, fair and honest; that the result of its collective experience focused upon matters within its province, is better than that of the trial judge and of much greater value than the judgment of the Appellate Court.

In the case under consideration, to discredit the verdict is, in effect, to pass upon the credibility of the witnesses. To disregard the testimony of three or four seemingly disinterested witnesses, in favor of seven or eight opposing them, and to set aside the solemn verdict of the jury, because of giving more weight and credit to the seven or eight opposing witnesses—a verdict sanctioned by the judgment of the trial judge, who also saw and heard the witnesses—is, in my opinion, a dangerous departure from the established rules • of law.

Appellate courts are not organized to say whether the judgment of the court below, in a suit at law, is just; but only to ascertain whether prejudicial error has been committed.

I am unable, therefore, to concur in the majority opinion.


text:
    John Dutkowiak, Appellee, v. Jacob Rodatz, Appellant.
    Gen. No. 16,123.

      Verdicts—when set aside with finding of facts. Where the evidence establishes that the plaintiff who was a servant of the defendant had assumed the risk which resulted in ,.his injury a judgment in Ms favor will be reversed with finding of facts.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Ttjthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed February 13, 1912.
    F. J. Cahty and J. C. M. Clow, for appellant.
    B. M. Thomas, for appellee; A. L. G-ettys, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal, in an action for personal injuries, from a judgment of the Circuit Court of Cook county, against Jacob Eodatz, appellant, in favor of John Dntkowiak, appellee, for $2,000. The jury by verdict assessed the damages at $4,000, appellee remitted $2,-000, and the judgment followed.

Appellant contracted to make excavations in the ground for Pettibone-Mulliken Company on the premises of that company in 'Chicago. The proposed pit was to be excavated immediately south of the south wall of the power house of said company, and was to be about eleven feet square and about ten or eleven feet deep. The location was such that a vestibule, or shanty, about six feet square, which protected a door in the south side of said power house had to be, and was, torn down and removed. The vestibule had rested on stone foundation walls, about four feet deep and sixteen inches thick, said walls being about flush with the top of the ground. The entire east foundation wall of the vestibule, and all of the south foundation wall, except a very small portion at its extreme westerly end, came within the limits of -the proposed pit, and appellant, in carrying out his contract, was to remove said east and south foundation walls, but the west foundation wall of this vestibule, which was six or eight inches west of the west line of the proposed pit, was to remain in the ground. Appellant employed seven men to dig the pit, and appellee was one of the number, as was John Eeimann, who acted as foreman. As the digging progressed, all dirt that was east of said west foundation wall was removed down to a level even with the bottom of said wall, which was about 'four feet from the surface of the ground. When this level was reached the men did not continue to dig further down -on a line perpendicular with the east face of said foundation wall, but they confined themselves' to the real westerly limit of the proposed pit, and thus a ledge or shelf, to the east of the east face of said wall, of about eight inches was left, as the digging progressed downward, the top of which shelf or ledge, was on a level with the bottom of said wall.

On the afternoon of August 18, 1906, and when the excavations had been made to a depth of from eight to eleven feet below the surface of the ground, and while appellee was engaged in digging near the westerly boundary of said pit, the soil below said foundation wall gave way and the wall slid, but did not fall over, into the pit, and struck appellee on his leg, breaking the same. With the exception of about a foot at the surface, the soil consisted of hard, red or yellow clay. All of the men working in the pit had been doing this kind of work in Chicago for many years, were experienced men, and well acquainted with the nature and character of the different kinds of soil.

The declaration consisted of four counts, the various averments of which may be summarized as follows : That plaintiff was engaged as a laborer, together with other co-laborers, in doing excavating work in said pit; that defendant had a foreman in charge of the work and the laborers, including plaintiff, who was not plaintiff’s fellow servant; that when the excavation had reached a depth of about six feet below the level of the bottom of said foundation wall there was great danger of said wall caving in and falling into said excavation, which danger said foreman knew, or by the exercise of ordinary care should have known; that plaintiff called said foreman’s attention to the danger of said wall falling, but said foreman negligently assured plaintiff there was no danger, and ordered plaintiff to continue his work; that plaintiff suggested to said foreman that said wall be braced to prevent its falling, and said foreman promised him that he would take steps to insure the wall not falling, and, if necessary, would prop up said wall, and ordered plaintiff to continue his work, and which promise said foreman negligently failed to keep; that plaintiff, relying on the “superior knowledge and judgment ’ ’ of the foreman, and not appreciating the danger because of his “inexperience,” and by reason of the promise of the foreman to prop up the wall, and by reason of the command of the foreman, continued his work; and that, while plaintiff was so working, and exercising ordinary care for his own safety, said wall caved in and fell, and injured plaintiff, etc.

On the trial, the plaintiff himself was the only witness on his behalf as to the accident, his other three witnesses being physicians who attended him. Plaintiff testified that he was fifty years of age; that he had worked for appellant for fourteen years, doing a lot of shovelling and digging in basements or trenches in Chicago in different kinds of soil; that he commenced digging in the pit on Thursday, and that he, with other laborers, dug continuously during working hours until he was injured on Saturday afternoon; that on said afternoon, just after the men had had lunch and had started to work, about five minutes past one o’clock, the foreman came along, and “we asked him if it was not dangerous with that wall up there, and he said, ‘No, go ahead and work;’ ” that the hole was then about eleven feet deep and the wall rested on clay; that the foreman further said that if he saw that the wall was not able to stay there he would brace it up; that plaintiff continued digging; that ITaak, a fellow laborer, was digging along side of him; that the foreman did not brace up the wall; that about twenty-five minutes after one o’clock the wall “slipped” and fell on plaintiff’s leg and broke it; that when the foreman “told me to go to work after I had told him the wall looked dangerous, I don’t know exactly why I went to work;” that “I didn’t think the wall was going to come down;” that the foreman did not do any digging that afternoon before plaintiff got hurt; that when we started to dig Saturday morning the bottom of the pit was then about on a level with the bottom of this foundation wall; that when plaintiff quit work Thursday night said foreman told him to leave this shelf there at the bottom of this foundation wall, but that when he started to dig on Saturday morning said foreman told him to dig flush with the wall, and that he dug away this shelf and that when he got hurt “all of that shelf had been dug away and the inside of the wall and the clay below it were even.”

At the conclusion of the plaintiff’s case, counsel for appellant moved the court to instruct the jury to find him not guilty, which motion was denied, and at the conclusion of all the evidence this motion was renewed and again denied, to which rulings exceptions were taken.

On behalf of appellant, the foreman, Reimann, testified, as did five laborers working in or about the pit at the time of the accident. From this testimony it appears that at the time of the accident the foreman was in the pit digging along side of plaintiff, and Haak, a co-laborer with plaintiff, was digging on the other side of plaintiff; that two other laborers were in the pit a short distance away throwing the dirt into wheelbarrows, and two other laborers were engaged in wheeling the wheelbarrows. Reimann testified he had been foreman for appellant for many years and was an experienced man as to the nature and character of various soils, that when he and plaintiff were digging, at the time of the accident, the soil all around was hard, red clay, that the said foundation wall was solid, with no cracks in it, that he at no time ordered plaintiff to take down said eight inch shelf or ledge, and that the same had not been taken down, and that it was red clay and looked solid, that he had examined the soil and wall and did not notice anything about either that indicated that the wall would fall, that plaintiff at no time said anything to him, or he to plaintiff, as to danger of the wall falling, or anything about propping up the wall, nor did any.of the other men. The other five laborers all corroborated the foreman as to the said eight inch shelf, or ledge, being there at the time of the accident; all testify that they at no time said anything, nor did they hear plaintiff say anything, to said foreman as to danger- of the said wall falling, and that said wall, and the clay underneath it, were not cracked and appeared solid.

The principal errors assigned are that the trial court erred in not directing a verdict for appellant and in overruling appellant’s motion for a new trial, and that the verdict and judgment is contrary to the manifest weight of the evidence and to the law; and counsel for appellant argues that the evidence clearly shows that appellant was not negligent, and that plaintiff assumed the obvious risk.

According to the testimony of plaintiff, it was five minutes after one o’clock on the afternoon of the accident, when plaintiff, as he says, spoke to Eeimann about the wall, and it was twenty minutes later that the wall slipped down; and in the interim, plaintiff and the cu-laborer, Haak, were continuously digging, side by side, in close proximity to said wall, and other co-laborers were working in the pit. The conditions were constantly being changed, and partially by plaintiff’s own acts, and plaintiff was, himself, in a position to best observe those changing conditions. We think, after a careful review of the record, that under the facts -disclosed, and the law as stated in the cases below cited, the trial court erred in entering the judgment in this case, and that the appellant was not guilty of negligence, and that plaintiff assumed the risk. Village of Montgomery v. Robertson, 229 Ill. 466, 471-3; Elgin, etc., Railway Co. v. Myers, 226 Ill. 358, 365-7; Slagle v. Village of Averyville, 139 Ill. App. 423; Gunszfsky v. Peoples Gas Light & Coke Co., 145 Ill. App. 255, 257-60.

The judgment of the Circuit Court is, accordingly, reversed.

Reversed, with finding of facts.


author: Mr. Justice Kavanagh

text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,033.
    1. Negligence—failure to discover person intending to cross trades. If a gripman fails to discover the situation of a person and his intention to cross the tracks of an approaching train immediately before he is injured and in time to avoid the injury because of lack of attention to the operating of the car the defendant will be held liable.
    2. Damages—effect of verdict of jury. Held, by the writer of the opinion in this ease, that the verdict of the jury as to the amount of the damages was conclusive.
    3. Trial—when arguments of counsel will not reverse. It is not every improper argument which will effect a reversal. Courts are not justified in assuming that the mind of the jury is of such plastic and unreliable material as that any unjustified word of debate will cause the jury to neglect the instructions, abandon the evidence and disregard their oaths.

      4. Pleading—when allegation of ordinary care sufficient after verdict. Held, that after verdict an allegation of due care was sufficient which allegation was to the effect that at the time of the accident the deceased was exercising '' ordinary care for one of his age and intellectual capacity for his own safety.”
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. ChetlaiN, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.

      James Gr. Condon and C. LeRoy Brown, for appellant.
    James C. McSh'ane, for appellee.
   Mr. Justice Kavanagh

delivered the opinion of the court.

On May 17, 1907, at about 3:30 o’clock in the afternoon, Patrick Welsh, a boy eight years old, was struck and killed by a car of appellant on Wentworth avenue, between Fifty-fourth and Fifty-fifth streets, in the city of Chicago. In the court below his administrator obtained a verdict and judgment for $5,000.

It is urged as ground for reversal of this judgment, first, that the verdict is not supported by the evidence. It is the theory of appellee that deceased left the west side of Wentworth avenue in an attempt to cross that street; that during all the time, except for a second or two before he was struck, he was in plain view of the motorman who caused his death. The appellee says that the boy’s passage across the street was intercepted for a moment and his attention absorbed by the approach of a car going south; that he waited until this car had passed and then proceeded east across the north bound track until he reached the east rail, where he was hit by a north bound car, which came up at unusual speed, without bell ringing and without warning of any kind. If this theory be true then the question of appellant’s negligence was clearly for the jury. In Perryman v. Chicago City Railway Company, 242 Ill. 269, it was decided in a case somewhat similar that, ‘ ‘ If the gripman failed to discover the situation of the plaintiff and his intention to cross the tracks of the approaching train immediately before he was injured, and in time to avoid the injury, because of lack of attention to the operating of the cars, the defendant would be liable.” To the same effect is Railway Co. v. Tuohy, 196 Ill. 410, and many other cases.

School had just let out in the neighborhood. It was a time when many children of tender years were upon the streets. Under such circumstances it was the duty of one operating a car in the neighborhood of' a school to be on the lookout for children, who, with the natural heedlessness of tender years might find themselves in places of danger. It was the theory of appellant, however, that instead of being on the west side of the track the deceased, as the car which struck him approached, was standing near the curb-stone on the east side of the street; that when this car came up he ran out into the street with the intention of “flipping” the car, and while attempting to either catch or board the car missed his hold, slipped and rolled under the wheels. Of course if this theory were true there would be no liability.

The evidence of Thomas Harnois, a boy of fourteen, substantiates fully the theory of appellee. The testimony of Mrs. Casper Godfrey, an old lady living nearly opposite the place of the accident, supports the theory of appellant. Four other witnesses who saw the latter part of the tragedy also testified, and while perhaps in most particulars their evidence gives greater weight to the theory of appellant than that of appellee, yet this evidence cannot be said to in all respects negative the testimony of the Harnois boy. On the other hand, in some regards this testimony distinctly corroborates Harnois.

It will serve no useful purpose to enter into a critical analysis of the evidence. It is sufficient for us to point out that there is a sharp conflict in the testimony, and the decision of the case must have depended largely upon the credibility of witnesses. Therefore there would be no justification in our interference upon the first count. Also we believe that the verdict of the jury as to the amount of the damages is conclusive upon us in this case.

As a further objection to the judgment it is argued that because of the misconduct of counsel during the closing argument, the jury were unduly prejudiced. We are aware that there is a recent tendency on the part 'of some courts to unduly censor the arguments of counsel, and it is assumed in these cases that at the first warm and unjustified word thrown out by counsel, in the heat and enthusiasm of the argument, that the jurors will forget the evidence, the instructions of the court and the obligations of their oaths, and follow instead the unguarded and perhaps unjustified statement. However it should be borne in mind that it is the presumption of law that jurors are intelligent, honest, fearless and just. Courts are not justified in assuming that the mind of the jury is of such plastic and unreliable material as to at any unjustified word of debate neglect the instructions, abandon the evidence and disregard their oaths. We find no misconduct of counsel which would justify a reversal of the judgment.

The declaration charges that at the time of the accident the deceased was exercising “ordinary care for one of his age and intellectual capacity for his own safety.”

In order to justify a recovery it is necessary that the injured person should be in the exercise of ordinary care for one of his age, intellectual capacity and experience. Fowler v. C. & E. I. Railroad Co., 234 Ill. 619; Lake Erie & Western Railroad Company v. Klinkrath, 227 Ill. 439.

If the objection made here had been urged to the declaration before plea, such objection would have been well taken, but for appellant to have invited trial upon the allegation, in its present form, and to have remained content with the allegation until after judgment, precludes him from making that objection now. Every reasonable intendment is now in favor of the allegation. Himrod Coal Co. v. Clark, 197 Ill. 514; P. C. C. & St. L. Ry. Co. v. Robson, 204 Ill. 254; Sargent Co. v. Baublis, 215 Ill. 430.

We find no error in the record that would justify a reversal of the judgment of the court below in this case. The judgment will, therefore, be affirmed.

Judgment affirmed.

Freeman, P. J., and Fridley, J. We concur in- the conclusion in this case, but do not agree with that portion of the opinion which reads as follows:

“Also we believe that the verdict of the jury as to the amount of the damages is conclusive upon us in this case. ’ ’


text:
    Michael Shea, Appellee, v. Thomas Elevator Company, Appellant.
    Gen. No. 16,056.
    1. Negligence-—when doctrine res ipsa loquitur does not apply. Held, where the injury resulted from a sudden and unexpected lowering of a hoist such lowering being the result of a signal, that the doctrine res ipsa loquitur did not apply.
    2. Amendments and jeofails—when refusal of leave to file plea denying ownership and operation, proper. Held, that it was not error to refuse leave to file such a plea after three years and five months had elapsed from the time when such a plea might have been interposed.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 13, 1912.
    Eddy, Haley & Wetten, for appellant; Charles H. Pegler, of counsel.
    John C. King and James D. Power, for appellee.
   Mr. Justice Kavanagh

delivered the opinion of the court.

August 11, 1904, appellee, with three other workmen, was engaged on the eighth floor of the Chicago Postoffice, then in process of construction, wheeling- on wheelbarrows from a freight elevator, or hoist, material to be used in the work of construction, and after the barrows had been emptied returning them again to the hoist, where they were lowered to the basement to be again refilled. The hoist was composed of two board platforms, each about 3% feet wide and perhaps 6 feet in length. The platforms were so operated that when one of them was in the basement the other was being delivered at the floor where the material was desired. The hoist was controlled by an electric motor in the basement about twelve feet from the shaft. For notice of when to lower, the engineer in charge, who was stationed at the motor, depended altogether upon a bell located about four feet away from him. When appellee, or any of the men on the upper floors, desired the hoist lowered he pulled a rope in the shaft causing this bell to ring. The hoist responded quickly to its lever, and the descent was rapid.

Upon the day in question Shea returned with an empty barrow to the hoist, and was in the act of placing it upon the platform when, without any signal from him or from his fellow workmen upon the 'eighth floor, the hoist was suddenly and unexpectedly lowered, by reason of which he lost his balance, fell to the platform, where the wheelbarrow coming after dropped upon his head causing injuries.

The charge of the declaration upon which the judgment must stand alleges: “That the defendants, by their agents and servants in that behalf, then and there caused said elevator to be suddenly lowered while the plaintiff was in the act of wheeling said wheelbarrow thereon as aforesaid, by reason whereof,” etc. The default described by this count has reference to no act shown by the evidence, unless it includes the conduct of the engineer in charge of the motor, as he was admittedly the one who caused the hoist to be lowered. If he were careless in lowering the hoist the verdict is justified. On the other hand, if there be no evidence of neglect on his part, the judgment cannot be sustained.

Appellee and three other men, who were with him at the elevator on the eighth floor the time the accident happened, testify positively that no signal was given by either of them for the lowering of the hoist. On the other hand, the engineer and four other men, who were in the immediate vicinity of the signal bell, swear that the moment before the hoist was lowered the signal bell rang plainly. If the bell did actually ring, then there was no fault on the part of the engineer in acting as he did, because it was upon the signal and this signal only that he relied. Nor is his evidence, nor that of the other witnesses who stood near him, in any way contradicted, so it must be taken as proven that the signal bell rang before he acted.

The building was a large one, containing many workmen, and there were many persons who might have rung the signal bell without defendants being to blame, so we conclude there is no evidence whatever of negligence in this regard upon the part of appellant. But it is argued that the doctrine of res ipsa loquitur applies to the facts of this case. We are not of that opinion. There is no controversy here as to what caused the barrow to descend. The engineer himself testified that he, himself, lowered it. When the cause of the accident is not in question, the doctrine of the maxim has no application. The case of Parsons v. Hecla Iron Works, 186 Mass. 221, furnishes an apt illustration. In that case, the plaintiff was injured by the fall of certain staging caused by the giving away of uprights supporting it. “The reason for the uprights falling over was that the braces had been knocked off the staging; and the uprights opposite the second elevator well, which were originally built close to the face of the well, had been moved out by some one other than defendant’s employes. * * * The cause of the fall of the staging was shown by the defendant, and does not seem to have been in dispute. Under these circumstances the rule of res ipsa loquitur is not applicable.”

The case of Illinois Steel Co. v. Zolnowski, 118 Ill. App. 209, is to the same effect, and cites several cases in support of its conclusion.

As the case is to be returned for retrial it is necessary for us to determine the remaining important question raised.

Appellant urges that the lower court erred in refusing it leave to file additional pleas denying ownership. The declaration was filed December 9, 1904. Appellant filed his demurrer to the declaration December 22,1904. It was afterwards demonstrated that the demurrer was not well taken as to several - counts, among which latter was the count upon which the cases finally went to judgment. In other words, it turned out that when appellant filed his demurrer to that count he should instead have filed his plea denying ownership if he desired to take advantage of such defense. However, it was not until May 29, 1908, that appellant asked leave to file this plea of non-ownership. This application then came three years and five months after the date when plaintiff, in strict justice, was entitled to have it filed. To hold that such leave should have been given after such delay, when the facts supporting the plea were at all times peculiarly within the knowledge of appellant, would be to encourage dilatoriness in pleading and delay in the administration of justice. The purpose of a defensive pleading is, first, to make an issue; second, to apprise the opposite party of the facts with which he must contend. To delay to a party this notice for more than three years after it was due, and after means of information perhaps have been lost or witnesses have disappeared, does not commend itself to a speedy and efficient administration of justice.

The permitting of amendments to pleadings and v filing of additional defenses is largely in the discretion of the trial court. Cook v. Miller, 11 Ill. 610; People ex rel. v. Chicago & A. R. Co., 172 Ill. 71.

We, therefore, hold there was no error in refusing-leave to file the additional pleas.

For the other errors pointed out the judgment will he reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Kavauagh

text:
    George A. Kinney, Appellee, v. Calumet Publishing Company, Appellant.
    Gen. No. 16,079.

      Contracts—wliat does not affect employment. A change in the duties required of an employe in nowise affects the validity of his contract prescribing a period of service.
    Appeal from the County Court of Cook county; the Hon. William C. De Wolf, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.
    Rehearing denied February 29, 1912.
    Matthews & Kimbell, for appellant.
    No appearance for appellee.
   Mr. Justice Kavauagh

delivered the opinion of the court.

George A. Kinney entered into a written contract with the Calumet Publishing Company to work for them by the year “as superintendent of its mechanical department,” and among other considerations for this labor the company was to pay him “a salary of $1,300 per annum, payable weekly.” The plaintiff went to work under the contract, and at the end of the first year the contract was renewed for a second year.

At the end of the second year the contract was renewed again for another year, but then after a month, without any justifiable cause so far as the record discloses, appellee was discharged.

The judgment is for loss of wages occasioned by that discharge. The objection to the judgment seems to be that during the second year some of the work of the appellee was changed by mutual agreement. How that could invalidate the entire contract, or at least the contract for the third year, has not been pointed out. It appears that a valid contract for services for the third year was entered into, and the parties entered upon its performance, and continued' the performance of the contract for one month. That the duties of Kinney had been changed the year before in no way affected his right to wages for the third year, and as we must assume that the hiring was by the year, and no justifiable cause being shown for its termination, the plaintiff was entitled to recover. The proof as to the amount of damages sustained by him was not controverted, and the judgment will, therefore, be affirmed.

Judgment affirmed.


text:
    Harry W. Treat et al., Appellants, v. The Merchants Life Association of the United States, Appellee.
    Gen. No. 16,098.
    1. Judgments—what essential to setting aside in equity. In order to set aside in equity a judgment at law it must appear not only that the judgment was entered without authority, but also that the party against whom the judgment ran has been deprived either of a proper defense or a just cause of action.
    2. Laches—when in seeki/ng to set aside judgment at law established. To permit an order dismissing an action at law to remain unchallenged for more than a year and to refrain for nearly three years from seeking to have it set aside establishes laches which will bar relief in equity.
    Bill in equity. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.
    Rehearing denied February 29, 1912.
    E. G-. Lancaster, for appellants.
    Barker, Church & Shepard, for appellee; William T. Church, of counsel.
   Mr. Justice Kavanagh

delivered the opinion of the court.

This appeal questions the correctness of a decree and orders of the Superior. Court sustaining several demurrers to appellants’ hill in equity and amended bills in equity, and which dismiss at last the amended bill for want of equity. It is charged, among other allegations of the bill, that in August, 1897, appellants began an action in assumpsit against appellee in the Superior Court of Cook county. This suit coming on to trial—at what time is not stated—appellants obtained a judgment for $6,174.52. However, on reaching the Appellate Court this judgment was reversed; thereupon the cause was taken to the Supreme Court, where the judgments of both the Superior and Appellate Courts were reversed and the cause remanded for a new trial. This is all the information afforded by the bill as to the nature of the controversy. It is nowhere stated that a just claim existed in favor of the plaintiff against the defendant, or that any claim or right enforceable in law or equity existed in favor of the plaintiff. The subject of controversy is neither stated as to fact nor shadowed by inference.

On December 18, 1902, the mandate of the Supreme Court was filed with the Clerk of the Superior Court, reversing the case, and thereafter the cause rested without anything being done until February, 1905, when, without knowledge of either of the parties, one of the Judges of the Superior Court reached the case during the process of what is known as a first call, at which time the following order was spread upon the records: “This cause being this day called for trial, and neither party appearing, it is ordered that said cause be and the same is hereby dismissed without cost for want of prosecution.”

On May 17, 1906, more than a year and three months after, appellants’ then attorney presented to the Superior Court a stipulation signed by a lawyer, who, as was afterwards proven, never in any way represented the appellee, consenting that such last order be set aside. This want of authority not appearing on the face of the stipulation, the court ordered the case to be reinstated on the docket, where it again reposed until September, 1907, at which time appellee had the order of May 17, 1906, set aside on the ground that the attorney who endeavored to represent it in the stipulation of that date, had no authority to so stipulate or to then appear. The cause was again stricken from the calendar of the court and perhaps again dismissed, although that is not stated. Appellants in their bill now pray that the order of February 8th dismissing the bill may be corrected, changed or amended so that said order will state and show said suit at common law was dismissed upon a preliminary call of the calendar without notice, and was not in fact reached for trial, and that upon the relief last herein prayed for being granted, said order as amended be set aside and that said suit at common law be reinstated upon the common law docket of the Superior Court. He avers that the case never was reached for trial, but was called out of its order without notice to or knowledge of the parties, and so, as a matter of fact, was dismissed wrongfully and without authority.

There seems to us two valid objections, to the sufficiency of the bill: First: It no place alleges that the plaintiff in the suit at law had a valid claim or just cause of action against the defendant. It has been so repeatedly held that the citation of authorities is unnecessary to support the statement, that, to set aside a judgment at law in a proceeding like the present, it must appear not only that the judgment was entered without authority, but also that the party against whom the judgment ran has been deprived either of a proper defense or a just cause of action.

Second: The appellants, it seems to us, were guilty of undoubted laches. For more than a year they permitted the order of dismissal to stand without any effort to have it set aside, and it was nearly three years before they filed this bill.

If any attention had been paid in watching the progress of the litigation in the court below, or if any kind of reasonable diligence had been exercised in an effort to have the order set aside, such effort and such diligence have not been shown.

Because these two defects in the bill go to the complainants’ entire right to recover, it is unnecessary to discuss the other questions raised on this appeal.

The decree of the court below is affirmed.

Decree affirmed.


text:
    John R. McShane, Administrator, Appellee, v. Joseph Hanreddy et al., Appellants.
    Gen. No. 16,119.
    1. Negligence—failure to protect from falling material. Whether or not the leaving of work unguarded and uncovered from falling material constitutes negligence is a question of fact for the jury.
    2. Master and servant—xoliat essential to application of doctrine of assumed rislc. Mere notice of defects is not sufficient to charge a servant with an assumed risk; he must have knowledge of the danger as well.
    Appeal .from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed on remittitur.
    Opinion filed February 13, 1912.
    Remittitur filed February 14, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty, E. E. Gray and J. C. M. Clow, for appellants.
    ' James C. McShane, for appellee.
   Mr. Justice Kavanagh

delivered the opinion of the court.

On January 29, 1906, Thomas Walsh was injured while employed by appellants as a workman—appellants as contractors being at the same time engaged in excavating a large tunnel under Lawrence avenue in the city of Chicago. This tunnel was to be about 20 feet in diameter, and the manner of its excavating was something as follows: A hollow steel cylinder, called a shield, fourteen feet long and of about the same diameter as the proposed tunnel, was divided into nine holes or pockets by means of two horizontal and two vertical iron partitions running through it. In these pockets the men worked, the partitions serving as platforms and walls. The back of the shield was open, but before the night in question, so long as a man stood on the platform, he was covered by the shield. The front edge or cutting edge of the shield was beveled or sharpened, and this front edge, by means of hydraulic “jacks,” was being constantly pressed forward into the earth ahead. As the shield was being thus driven through the ground the dirt rolled down into the pockets, and the men stood in the pockets shoveling it back. The work was being carried on continuously by three shifts of laborers, who worked eight hours each in turn. Usually each shift was able to make about five feet of progress.

Walsh went to work that night about eleven o’clock, and had worked a little over an hour when a round ball of clay, or hard sand, fell out of the roof just ahead of the machine, and rolled into the shield upon Walsh severely injuring him.

Without entering into a discussion of the evidence it seems clear from the entire record, that the reason for the accident lay in the fact that during the day these propelling hydraulic “jacks” had become out of order, so that it was impossible to keep the cutting edge of the cylinder up into the dirt. When the plaintiff begun work there was a considerable uncovered space between the dirt wall in front and the top of the cylinder. The front wall slanted so that the space was greatest at the roof and narrowest at the bottom. During the hour that Walsh worked, this space at the bottom and in the middle was increased by reason of the men’s working with picks, so that at the time of the accident there was an uncovered, unprotected roof in front of the cylinder, which extended forward from four to six feet. It was from this portion of the unprotected roof that the mass of clay fell, first striking the slanting side of the wall, and then precipitating itself upon Walsh. •

Appellants contend, first, that the evidence shows no neglect upon their part. We think the evidence clearly demonstrates the need of some kind of protection for the workmen from falling material. Of necessity on this night the workmen must reach through the space in front to do their picking. Walsh testifies, indeed, that he had one foot on the bank in front when the mass of clay fell. It was clearly a question for the jury to say whether or not, under all the circumstances, leaving the workmen uncovered and unprotected, as they were, in view of all the surroundings, constituted negligence. Ross v. Shanley, 185 Ill. 390; Barnett v. Schlapka, 208 Ill. 426. But it is urged that if danger existed Walsh, himself, was in as good position to know of it as any one else, so that he assumed the risk of the danger. At the time of his hiring the servant agrees to assume the risk of all dangers ordinarily incident to the employment, and of all dangers which he afterwards knows or might have learned by the exercise of ordinary care on his own part. It has béen repeatedly held that mere notice of a defect is not sufficient to charge him with an assumed risk; it must be knowledge of danger. The question upon the facts above presented was squarely one for a jury to decide, and their decision under the law of the state is final. But further than this, before beginning work that night Walsh noticed the space in question, and it is uncontradicted that he called the attention of his foreman, Burke, to it. “Burke and I had a talk,” he says, “Burke looked at the heading and told me to go ahead and take another foot down. ' I asked him if it was safe to do that and he said, ‘Yes, go ahead and take it out.’ ”

In Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, the Supreme Court says: “When an act is' performed by a servant in obedience to a command from one having authority to give it, and the performance of the act is attendant with a degree of danger, yet in such case it is not requisite that such servant shall balance the degree of danger and decide with ah-solute certainty whether he must do the act or refrain from it; and his knowledge of attendant danger will not defeat his right of recovery if in obeying the command he acted with that degree of prudence that an ordinary man would have done under the circumstances. He was not on the same footing with his master. * * * Kelly had superior opportunities of knowing the condition of the bank, and had superior experience, and the servant had the right to assume that the foreman would not misrepresent the probability of danger and order him into a place dangerous to life or limb.” To the same effect is Chenoweth v. Burr, 242 Ill. 312, and Kennedy v. Swift, 234 Ill. 606, and many other cases.

We are also of the opinion, that the instruction number five complained of comes fairly within the doctrine laid down by the Supreme Court in Anderson Pressed Brick Co. v. Sobkowiak, supra, and that the objections to it are not well taken.

Concerning the damages proved, we are of the opinion that they are excessive. In this case in indicating the amount of such excess it is difficult to fix upon a line beyond which we would not be infringing upon the province of the jury, but we feel that the verdict is clearly $3,000 in excess of what it should have been. If appellee shall remit $3,000 from the judgment it will be affirmed, otherwise reversed. We find no error in the record.

Affirmed on remittitur.

Remittitur filed and judgment affirmed Februarv "14, 1912.


author: Mr. Justice Kayanagh

text:
    William H. Schueler, for use of Logan Investment Company, Appellee, v. Chicago, Indianapolis & Louisville Railway Company, Appellant.
    Gen. No. 16,129.

      Corporations—when defense that foreign has not complied with state regulations available. If the foreign corporation suing as usee is charged with having failed to comply with state regulations the defense is available and will bar a recovery if established.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Thomas "G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 13, 1912.
    Rehearing denied February 29, 1912.
    Kretzinger, Rooney & Kretzinger, for appellant.
    Weldon Webster, for appellee.
   Mr. Justice Kayanagh

delivered the opinion of the court.

In the city of Chicago on November 28, 1902, William H. Schueler, while in the employ of appellant, made an assignment in writing of his wages earned and to be earned to the Logan Investment Company, a corporation organized under the laws of the State of Indiana. Of this assignment the appellant Railway Company was at once notified. Schueler continued in his employment until $175 was earned, which sum, notwithstanding the assignment and the notice thereof, appellant paid over to Schueler. Thereupon suit was brought in a justice court by Schueler for the use of the Logan Investment Company against the Railway Company, in which suit a judgment was rendered against the Railway Company, who thereupon appealed to the Circuit Court of Cook county, where another trial was had and a judgment for $175 was again rendered against appellant. Appellant now brings the case here, urging that the judgment should be set aside because of the court below having erred in the refusal to admit certain testimony. This is the only complaint made by appellant, and while appellee has favored us with argument upon several objections to the judgment not raised by the appellee, the decision of this case must depend solely upon the admissibility or inadmissibility of the evidence in question.

The Railway Company attempted to show upon the trial that the Logan Investment Company had not complied with the laws of this state relating to foreign corporations, and that therefore at the time of the taking of the assignment from Sehneler it was acting in violation of the statute of this state. In pursuance of this attempt it called Weldon Webster, a person connected with the management of the corporation of this state, and asked him:

“Q. Now after the Logan Investment Company obtained its charter from the state of Indiana, as you testified upon your cross-examination, what steps, if any, did you take, if you know, to comply with the laws of this state, in order to comply with the laws of this state, in order to do business in this state?
Objected to.
The Court-.. Well, I think this is a prima facie corporation. Dealing with them as such, I would hold that it cannot be questioned by him. For that reason, I think the objection to this line of testimony should be sustained.
Mr. Bombaugh-. But it is the plaintiff in this suit, and is not entitled to maintain this suit unless it had complied with the laws of this state relating to foreign corporations.
The Court: This suit must be considered substantially as a suit by Schueler. The objection is sustained. ’ ’

From the above questions and answers, as well as from the remarks of the court, it sufficiently appears that the purpose of the questions was to show that the Logan Investment Company had not complied with the laws of this state regarding foreign corporations before beginning to transact business here.

It seems to us that the rejection of this evidence was clearly error. Assuming, as we must, that this evidence if admitted would have sustained appellant’s contention that the Logan Investment Company, when making the assignment in question, was acting in violation of the laws of this state, then the contract was not merely an agreement that the parties were not obliged to execute by reason of its infirmity; the vice went further. The very act of the assignment was, by the Logan Investment Company, a wilful violation of a positive prohibitive statute, and an open infraction of the law. It is true that loan companies incorporated in foreign states were authorized to loan money without compliance with the general requirements of the statutes concerning foreign corporations. But not all lpan companies were so favored—only such as were permitted to loan money by virtue of their original charters. No such claim, of -course, was made for the usee in this case. Nor is there anything in the record to justify a finding that it is a loan company. So that, so far as it appears, the assignment which is the basis of the present suit was in open, flagrant violation of law. The statute of 1899, which was in force at the time of the assignment in question, deprived a foreign corporation which failed to comply with its provisions of all right to bring suits in the courts of this state, and in addition imposed a fine of not less than $1,000 for doing business in violation of its terms.

So in this case, as it is disclosed by the record, we have the anomaly of an action brought by a party to an assignment as the beneficial usee, where as a matter of law the assignment was prohibited by positive statute, and the usee was liable to. a fine of not less than $1,000 for being a party to it at all. To hold that the. usee in such a case can take shelter behind the nominal plaintiff, and so reap the benefit of Ms misdeed, is to suppose an impotency in the law, which does not exist, and which never has existed. Long ago Lord Mansfield said in Holman v. Newland, Cowper, 417: “No court will lend its aid to a man who founds his cause of action upon an illegal or criminal act.” That principle is fully adopted in this state. Goodrich v. Tenny, 144 Ill. 430. When the act is a violation of a statute or against public morals, even one in pari delicto may take advantage of its infirmity because, as has often been said, not because he is entitled to relief, but upon principles of public policy and to conserve the public welfare. Shortall v. Fitzsimmons & Connell Co., 93 Ill. App. 231; Critchfield v. Bermudez Asphalt Paving Co., 174 Ill. 466; Peitsch v. Peitsch, 245 Ill. 454.

As was again said by our Supreme Court concerning an instrument executed under similar circumstances, “The contract upon which this suit was brought having been entered into in this state, where appellant was not permitted to transact business in this state, is in violation of the plain provisions of the statute, and is therefore null and void, and no action can be maintained thereon at any time, even if the corporation should at some time after the making of the contract qualify itself to transact business in this state by a compliance with our laws in reference to foreign corporations that desire to engage in business here.” United Lead Co. v. Elevator Co., 222 Ill. 199.

Id Wright v. Cudahy, 168 Ill. 86, it is said: “It is iusisted, however, that as the illegality of the contract was not set up as a defense in the answer, the court could not consider the evidence on that branch of the case. * * * The parties could not, whether by mistake or design, compel.the court to Adjudicate upon their alleged rights growing out of a contract void because against public policy, or in violation of public law, by simple process of narrowing their pleadings. The court itself had the right to know the nature of the contract it was called upon to enforce and to deny all relief when it appeared that such contract was in violation of the law or of public policy of the state, whether alleged in the pleadings or not. To hold otherwise would be to subordinate the courts to the ingenious devices of men engaged in illegal and even criminal transactions, and compel them to carry out in the solemn forms of the law, and by its resistless power, transactions which the same law had pronounced criminal and void.”

Since, then, it appeared that the Logan Investment .Company was a foreign corporation, doing business within this state at the time of the assignment in question, and that the assignment itself was a transaction of the company within this state,.it would have been a meritorious defense to the assignment for appellant to show that at the time of its execution the Investment Company was proceeding in direct violation of our statutes, and incurring its penalties.

The evidence offered was competent and should have been admitted.

For the error pointed out, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Felix M. Chmielewicz, Administrator, Appellee, v. Chicago Heights Terminal Transfer Railroad Company, Appellant.
    Gen. No. 16,140.
    1. Estoppel—when arises to deny ownership. A railroad compan) cannot deny ownership of land where it is asserting the existence of its rights by virtue of the very instruments which establish such ownership.
    2. Dedication—what tends to establish. Entering upon a street and improving the same shows an acknowledgment of a grant and" an intention to avail thereof.
    3. Trespassers—when person upon right of way not. A person is not a trespasser upon the right of way of a railroad company if the evidence fails to establish that the railroad company had superior rights to the general public upon the place where its right of way was located.
    4. Negligence—when method of switching constitutes. Held, that whether under the circumstances of this case it was negligence to turn loose without means of control, a train or ear on a public street, and with no one in front of this moving train to give warning, was a subject to be decided by the jury.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    . Bockhold & Busch and Lindhout & Lindhout, for appellee; Frank A. Bockhold, of counsel.
   Mr. Justice Kavanagh

delivered the opinion of the court.

A little after one o’clock on the afternoon of September 23, 1908, Albert Pawlus, a Polish laborer, who was then about thirty-five years of age, was struck and killed by the cars belonging to appellant on what is known as Seventeenth street in the city of Chicago Heights. After a verdict against appellant for five thousand dollars in the court below, appellee remitted one thousand dollars, and from a judgment for four thousand dollars appellant comes to this court, alleging many errors on the trial below.

The Bailroad Company claims first, that deceased was a trespasser; that the right of way upon which its tracks were being operated was in the sole and exclusive possession of appellant, and while, as a matter of fact, the tracks were upon the premises known as Seventeenth street, the public had no right to either walk along or across these tracks, or, as we construe the language of the argument, to use any portion of the south 99 feet of that street.

■ It appears in evidence that in 1891 the owner of the land under consideration dedicated it to public use by proper plat and certificate, describing streets, alleys and all abutting lots and blocks. Down the center of this plat was a strip of land marked ‘ Seventeenth street,” 132 feet in width and immediately bounded, on either side by regularly numbered blocks, lots or parcels of land. On this plat, in the middle of Seventeenth street, ran a dotted line, above which was lettered in red ink, “Bailway Bights Beserved on all Streets in this Subdivision South of Sixteenth Street in Section 21. ’ ’ This reservation included among other streets the street in question. Ho particular railway was designated, but at and before the time of the dedication appellant was in possession of one main track running down the length of the street, and of several switch tracks that crossed the street on either side. Under what right these tracks were first laid down, by what deed, contract, grant or other conveyance appellant held its interest, or as to the length, extent or nature of that interest, appellant has not seen fit to enlighten the court by proof. It has contented itself with an effort to show that the public made no use of the south 99 feet of the street. In doing so, indeed, it has been also shown that while the city of Chicago Heights curbed, paved and otherwise improved the north 33 feet of this street, it never, at any time, made improvements on the rest of the street nor in any way disturbed such remaining portion. On the other hand neither did the city in any manner ever relinquish its right to the south 99 feet, hut on the contrary, in November, 1909, passed an ordinance giving “permission and authority” to appellant to “lay down, construct, maintain and operate a railroad with one or more tracks and such switches, etc., as said company may deem necessary on and along Seventeenth street, except the north 33 feet of said street;” and while it is thus clear that the city never made use of the south side of Seventeenth street, it is equally clear that neither did the Railroad Company make use of said portion, except for the main track and for the crossing’ of said street with its switch tracks, to enter the factory grounds which lined the south side of the street. It is manifest that the original dedication to the public was of the entire 132 feet in width, subject to any rights which the Railroad Company might have had at the time of the dedication.

The appellant contends that this right reserved was to the exclusive use of the south 99 feet of the street. An exclusive use of two-thirds of the street seems to us, however, utterly inconsistent with an idea of the dedication of the entire 132 feet to the public. Futhermore, in this dedication, as we have seen, lots of ground were laid out on the south side of the street, which could not be reached in the ordinary course without crossing the tracks in question.

Now it must be assumed, for the purpose in this case, that the dedicator at the time of the dedication owned the land upon which the tracks lay. The certificate itself is evidence of that fact. The quiescence of the world in his assertion of title tends to show that, and appellant cannot deny his ownership, because in the case at bar it is asserting the existence of its rights, through the reservation in this very grant. What, then, must have been the intention of the owner of this land at the time of making his grant to the public? To create a street, which no one might cross, with buildings on each side? And this too, with many other streets dedicated by the same instrument leading up into it, and ending in front of these factory sites? To us such construction placed upon the grant would be inconsistent and unwarranted. The city was not obliged, within any given time, to pave or improve the entire width of the street, in order to show its acceptance of the dedication. Its entering upon the street in question and improvement of such portion as at the time suited the general need, so far from resulting in the relinquishment of the remaining portion of Seventeenth street, showed an acknowledgment of the grant and an intention to take advantage of it.

In the case of Fairbury v. Agricultural Board, 169 Ill. 9, the Supreme Court said: “The appeal concerns only the portion obstructed by appellant, and in its behalf it is argued that there is only an acceptance of those parts of the alley where work was done, putting in culvert and tile, and filling the road, which was on another part. The road was a single, direct street, and the public could not be required to make repairs where not needed, for the purpose of accepting the whole. The acceptance cannot be confined to the particular spots where the work was done, and the public be deprived of the remainder.” To the same effect is the decision in McDonald v. Stark, 176 Ill. 456. In the case of the City v. Tichenor, 179 Ill. 97, the court says: “Unless, there is something to show that the acceptance was limited, and some part of the offered land was rejected, it should be deemed as an acceptanee of the whole as offered.” Augusta v. Tyner, 197 Ill. 242; Waugh v. Leech, 28 Ill. 288.

But suppose the evidence fails to show title to this portion of the land in the city, in what manner is appellant relieved from liability under the circumstances of this case? Deceased was a trespasser only in case the Railroad Company had as against him the exclusive use of the land covered by its tracks. As we have said, there is no affirmative direct evidence of the existence of such right, and the circumstances that on the south side of Seventeenth street was situated a line of factories employing hundreds o'f men, and on the north side was a line of dwellings and little business houses, and that it was necessary for the full enjoyment and use of these factories and houses that the occupants might be able to cross the street, and that this could not be done without crossing the railroad tracks, tend strongly against the claim of appellant. Suppose the city failed to accept the dedication of the street through its full width as contended, even this would not deprive the street of its public character through said entire width, according to the terms of the dedication; for, as was said in the case of Earll v. The City of Chicago, 136 Ill. 277, 285: “If the owner of land exhibits a map or plan of a town or addition platted thereon, and on which a street is defined, and sells lots abutting on said street, and with a clear reference to the plat exhibited, then the purchasers of such lots have a right to have that street remain open forever. And such right is not a mere right that the purchaser shall use the street, but it is a right vesting in the purchaser that all persons may use it; * * * that the public street indicated on the plat shall be open forever to the use of the public as a public highway.” In Zearing v. Raber, 74 Ill. 409, it was said, “It is unimportant whether the public have so far accepted the dedication as to be bound to keep the street in repair, since the question involved is simply one of private right.” And it was there held that abutting lot owners were unaffected in their right to have a dedicated highway kept open by any waiver on the part of the municipality. So in this case, if the entire 132 feet were originally dedicated as a street, the public, its claim flowing through the vested right of the abutting lot owners, was justified in treating the street in question as a public highway through its entire width, irrespective of any waiver on the part of the city of Chicago Heights. It is claimed that appellant paid taxes upon the street in question. Conceding this to be true, such a fact is fan from conclusive as to appellant’s right. Concerning the payment of taxes in cases of this character, the Supreme Court in Ottawa v. Yentzer, 160 Ill. 509, says: “It is, however, under most circumstances a matter of but small probative force, and if the land in fact is dedicated to the public as a highway, the fact that it has been taxed will not prevent the public from claiming the use of such land as a public road.” See, also, North Chillicothe v. Barr, 185 Ill. 322.

We are unable therefore to agree with appellant that as a matter of law it has been proven that the Bailroad Company had any right in the street superior to the rights of the general public, and we therefore conclude that the court below would not have been justified in assuming, as a matter of law, that the deceased at the time of the accident was a trespasser.

At a point on the track just opposite the line of a street called Shields avenue which runs into this Seventeenth Street, and on the south side of the railroad track, a switch is located from which, in a broad curve, a side track swung toward the south and east, extending across the street and into the factory property on the south side of the street. About 137 feet east further along this main track, and on the opposite side-from the first switch, was another switch controlling another side track that curved in an opposite direction from the first; that is, it curved away from the north side of the track toward the north and west and across the narrow paved portion of the street. In other words, these tracks ran away from each other in opposite directions; one on the south side of the main track and extending to the south and east, and the other on the north side of the main track extending to the north and west. Upon this curved switch track extending to the south and east, at the time of the accident, it happened that a “string of box cars” stood, shutting off objects on the main track from the view of any one who happened to be approaching Shields avenue from the south. While matters were thus situated a switching crew of appellant was engaged in shifting cars about on the main track. The engine had just pushed eight or nine cars up a slight declivity toward the east, and then detaching itself, ran back, passing through the first switch, turning onto the north switch track to let the detached cars come on down the track and pass the switch. The engine stopped on the said track about opposite Shields avenue, and nearly alongside the first switch, which held this long curved line of standing cars that stretched to the south and east. Meantime, the eight or nine cars which had been thus pushed east up the main track begun of their own momentum to return west, down the main track; in other words the crew was making what is known as a flying switch.' Now these cars thus descending would be in plain view of any one approaching the track fropi the north, but probably would be concealed by this line of standing freight cars from any one approaching the track from the south. All the time these cars were moving, the engine stood by the first switch, its bell ringing and some steam escaping.

There is a conflict in the testimony concerning the make up of the train of cars which was being switched. However, it is conceded that the first car was a gondola or flat car, loaded probably with sand, and that no one was upon that car. Certain witnesses say no one was upon either of these moving cars. Others say the witness Schroeder was upon one of the cars, but disagree as to which one of the cars he was located upon. Schroder himself testifies that as the cars came down, he was sitting upon the rear end of the second car; that he was facing north, his legs hanging over. Concerning this manner of switching cars, it was said by the Supreme Court of this state, in I. C. R. R. Co. v. Hammer, 72 Ill. 347:

“On the other hand all know that a flying switch, passing on a track without an engine attached, or a bell ringing, or a whistle sounding, is and must, from the very nature of things, be more dangerous to life than a switch with engine attached, with the usual signals being sounded. The object of having a bell rung or a whistle sounded at road crossings and places where there is danger of collisions is wholly defeated by the Use of this mode of switching, and, when employed, it necessarily implies negligence on the part of the company.”

Again in the case of C. R. I. & P. Ry. Co. v. Dignan, 56 Ill. 487, the court says:

“We have no doubt as to the negligence of the defendants. Every person who has had frequent occasion to visit the grounds of a railway company where freight trains are made up, must have observed how noiselessly one or. two empty freight cars will move along the track after having been uncoupled from the locomotive or from the main body of the train, and what a distance they will pass over by their own momentum. That it is negligence to set a car or a couple of cars in motion, and, after giving them a momentum that will carry them onward at the rate of three or four miles an hour, to disconnect them of all controlling power, and allow them to move along where workmen are engaged, with their attention absorbed by their employment, and where persons are constantly passing to and fro, with no one on the cars to apply a brake or sound an alarm—that this, we say, is negligence, is a proposition which cannot well be denied. The sense of hearing alone will give warning of the approach of an ordinary train, but one of these cars, thus set in motion, gives to the ear no token of its approach, and it is undoubtedly true that many a life has been destroyed, and many a limb crushed, by agencies substantially like those disclosed by this record. The plaintiff offered in evidence various rules of the company, one of which expressly forbids what are’ called ‘flying switches. ’ The mode of switching adopted in the present case, it appears by the evidence, was not what is technically called a ‘flying switch,’ but it seems to us to possess substantially the same elements of danger. In this case, as in the flying switch, cars are left to pursue their own way along the rail, with no person to control or check their course or to give warning of their approach, and with a speed which, though slow, is the more noiseless for being slow, and is still sufficient to prostrate whatever persons the cars may strike. ’ ’

So we also conclude that, whether under the circumstances of the present case it was negligence to turn loose without means of control a train of cars on a public street, and with no one in front of this moving train to give warning, was clearly a subject to be decided by the jury.

Upon the objection that Pawlus was himself guilty of contributory negligence, there is a sharp conflict in the testimony. If, as we have shown, deceased approached from the south, these moving cars might easily have been hidden from his sight until he was within a few feet of the track, and then directly in front of him stood the engine, ringing its bell and seemingly ready to start moving,—circumstance well calculated to divert and absorb for the moment the attention of one about to pass. In such case the trial court would not have been justified in passing upon the question as a matter of law. If, however, Pawlus approached the tracks from the north, there would have been no obstruction of his view and little excuse for his going upon the track in front of the train in question. Five witnesses, seemingly disinterested, testified to facts proving that Pawlus approached from the south. The evidence of seven witnesses, on the other hand, tend to show that he came from the north side of the street. The decision on that question depended altogether upon the credit that should be accorded the- different witnesses. The matter of the credibility of witnesses, whenever a subject for this court, is only so under extraordinary .circumstances, and never in a case like the present, and upon this, as upon the question of appellant’s negligence we have no right to interfere with the verdict.

The amount of the verdict in this case is also controlled by the decision of the jury. Pawlus left surviving him a mother, to whom he monthly sent remittances, and also a sister. It cannot be said, as a matter of law, that the life of a son, who might be depended upon in an emergency, and who was a constant help, was of pecuniary worth, to a mother and to his estate, less than $4,000.

We have examined with care the other objections to the instructions and to the rejection of evidence, and we find no substantial error in the record. The judgment will therefore be affirmed.

Judgment affirmed.