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    August Boehne, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Contributory negligence—when servant guilty of. A servant who undertakes to do work which he knows is beset with danger, and neglects to avail himself of ready means, with which he is also acquainted, by which he may remove the danger, is guilty of contributory negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed.
    Opinion filed March 18, 1908.
    W. A. Barr, for appellant; J. M. Dickinson, of counsel.
    W. F. Bundy and Frank F. Node man, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee lost his hand while operating a wood planer in appellant’s machine shop, and, having brought suit, obtained a judgment against appellant for $2,550, from which this appeal is prosecuted.

At the time of the injury appellee was twenty-six years old and had worked for appellant about two years, the first year as a car repairer and afterwards as an assistant in the shops, where it was his duty to oil and help run the machines, of which there were some seven or eight. One of these Avas a wood planer used in planing down car sills and other timbers of like character, and at the time of the injury he was helping at this machine.

This planer was some three feet wide and eight feet long. There were knives in a frame in the middle of the bed, and also other knives above these, in- another frame, and the timbers passed between, being-carried through by means of an endless chain. The frames holding the knives were circular and when in motion the knives revolved at a speed of 2,000 times a minute. These lmives were set in motion by means of a lever, extending down from pulleys above, that shifted the belt from a loose pulley onto a tight one, connecting Avith the steam power provided to operate the machinery, and Avere stopped by shifting it back to the loose pulley. This lever reached doivn, so it could be easily operated by a person standing at the east side of the planer. The endless chain that carried the timbers over the planer bed between the lmives was moved by another and entirely different set of pulleys than those revolving the knives, and were set in motion by means of a large iron lever, one end of Avhich was attached to the side of the planer, the other end coming up like a handle. It Avas so arranged that when the handle was up, the belt moving the endless chain would be loose on the pulleys and would not run, but when it was pressed down it would move one of the pulleys, thereby tightening the belt and starting the chain in motion. This same lever, when moved up or down, also moved the frame that held the upper set of planing knives up or down, and when a hard or uneven stick of timber was put in, the operator would stand on the east side of the bed and as the harder or thicker places in the timber were reached he would bear down on the lever, which would have the effect of making the belt tighter, the knives run faster and press tighter against the timber. The lever could also be set so that the chain would run without the operator holding it down by hand; this was done by means of a semi-circular iron strap, which was fastened by a bolt to the side of the planer bed, and had notches or clutches in it that caught a lug on the inside of the lever. This strap hung down loose from the side of the bed, so it could easily be moved forward to catch and hold the lug on the lever or pushed back and disengaged therefrom. The upper end of the iron strap extended above the bolt that held it to the planer bed some four or five inches, and near the end a bolt some four inches long passed through it. At one time there had been a wooden handle on this bolt, extending out from the planer bed above the lever, and the operator could grasp the handle and, by moving it backwards or forwards, could catch or disengage the lug on the lever from the clutch in the strap. At the time of the injury this wooden handle was off and the bolt on which it had been played back and forth loosely in the hole, sometimes extending in over the bed, at others out over the lever. It is claimed by appellee that when the handle was on, it extended out over the lever, and if the lever let loose from the strap and flew out it would catch on the handle and would be prevented ‘.from going further over. The planer was set lengthways north and south, and the timbers were fed in from the north through the planer, brought back again on a truck and run through again until smooth. The lever, strap, handle, etc., were all north of the planing knives, on the east side of the bed, and almost under but a little west of the other lever that came down and set in motion the pulleys which moved the knives. These two levers were so placed that a man could start or stop both sets of machinery while standing on the east side oT the planer bed, north of the knife frame. On the upper frame north of the knives were two rollers to help pass the timbers through, and also a chip breaker, while south of the upper knives was a shavings shield.

At the túne of the accident two employes had brought in a car sill and, with appellee’s assistance, were running it through the planer. They had rim the sill through once, and while one of the men was waiting Tor another to come and help him load it on the truck to take it around to the north end and run it through again, appellee got the oil can, stepped over to the machine right by the lever, and while the knives and carrier were in full motion leanpd forward towards the middle of the machine with oil can in hand, and was in the act, as he says, of oiling the slats on the inside of the machine, at the place where the top knives worked up and down, when his hand was caught in the knives and cut off at the wrist.

The particular negligence complained of, and on which the suit is based, is that the machine was old and out of repair; that the handle was off the bolt on the upper part o'f the iron strap, so that the bolt did not always extend out over the lever to catch the same in case it became loose from the clutch on the strap below; that the lever had too much play on the bolt fastening it to the planer, and that the lug on the lever and the clutches on the strap had become worn so that the jar of the running machine would cause the lever to become loose at the clutch and fly up past the bolt.

Appellee’s theory of the case is that by reason of the defects, when he stood at the side of the machine and leaned over and reached in the machine with the oil can in his right hand, the lever jarred loose and flew np past the place where the handle should have extended out, and struck his right arm and knocked his hand into the knives, where it was cut off; that if either the handle had been on, or the lug, clutch and lever in such condition as not to let the lever fly up, the injury would not have occurred. It did not appear that the wooden handle was intended to extend out over the lever to stop it in ease it flew up, but was simply a handle more easily to work the strap below, and it was a question whether it would stop the lever if on there.

A full- statement of the facts and the claim of appellee in regard to the same has been made, for the reason that the case must be disposed of on the facts. Whether appellant was guilty of the negligence charged against it was a controverted question, upon which there was considerable evidence introduced in support of the claims of the respective parties.

We are of opinion, however, that the uncontroverted facts of the case, in fact appellee’s own story of the manner in which he was hurt, shows that he was himself at the time guilty of negligence which very largely contributed to cause his injury.

It clearly appears that appellee was familiar with the planer in question and its operation; that from where he stood he could have easily reached up and taken hold of the lever almost above him, and shifted the belt on the pulleys above, thereby stopping the knives, and that to have so stopped the knives would have taken only about eighteen seconds; that he could have also readily raised the lever at the side of the machine right where he stood and stopped the chain. Appellee testifies: "I certainly knew that these machines run fast. Everybody knows that they are dangerous, but a fellow does not think about it. * * * I knew it was a dangerous place. * * * It does not take very long after pulling the lever to stop the machine when it is in motion. If a fellow had just thought of it, he could have reached up there to the place that lever ivas without moving his body and pulled the lever and stopped the machine.” It thus clearly appears that appellee undertook to do a work which he knew to be beset with dangers, and neglected to avail himself of the ready means, with which he was also acquainted, of removing the danger before commencing the work. It was a most unfortunate occurrence and appellee has suffered a great affliction, but as it appears that he was guilty of negligence which contributed to bring it about, he cannot recover damages from appellant for Ms loss.

The judgment of the court below will be reversed.

Reversed.

Finding of facts, to be incorporated in the judgment:

We find that at the time of the occurrence of the injury for which appellee has brought suit in this case, he was himself guilty of negligence contributing to bring about the result complained of.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Calvin Ragsdale, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Verdict—when not excessive. A verdict for $6,000 rendered in an action for personal injuries is not excessive where it appears that the injuries were distressing, that the ensuing pain was acute, that the plaintiff, previously a strong man twenty-three years of age, was, by reason of the injury, not only disfigured for life but rendered, to a large extent, incapable of further manual labor.
    2. Master and servant—who not fellow-servants as matter of law. The members of a crew engaged in removing one boiler and installing another are not fellow-servants as a matter of law, where such crew were in the charge and control of a foreman.
    3. Master and servant—when doctrine of assumed risk does not apply. A member of a crew engaged in removing one boiler and installing another who is injured by escaping steam cannot be «aid as a matter of law, to have been injured by one of the ordinary hazards of his employment.
    4. Master and servant—duty to furnish safe place to work. The master is only required to exercise ordinary and reasonable care to see that the machinery, tools and appliances furnished to his servant are reasonably safe.
    Action in case for personal injuries. Appeal from the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    W. W. Barr, F. M. Youngblood and R. J. Stephens, for appellant; J. M. Dickinson, of counsel.
    James Dingle, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit by appellee to recover damages for personal injuries occasioned him while in the employ of appellant, by the escape of steam caused by the breaking of a flang’e upon a stationary engine owned by appellant.

The proofs in the record disclose that on January 2, 1907, Fred Penwell, the foreman of appellant’s waterworks department, sent Willianl Harmon in charge of a crew of men, appellee being one of them, from Carbondale to Gale, a station on appellant’s line, to take out a boiler used by appellant for its pump at that station, and put another boiler in its place. Harmon, as stated in appellant’s brief, went as foreman to direct the men while at work and see that the same was properly advanced in accordance with Penwell’s direction. The boiler to be installed was called an “emergency boiler,” as it was moved from place to place along appellant’s road temporarily to take the place of other boilers needing overhauling and repairs. In May of the previous year it had been shipped to the repair shop at Centraba, where it was repaired, inspected and tested and sent out as being in good condition. After that time, before being sent to Gale, it had been used at two other places. When the crew arrived at Gale, the men went to work under Harmon’s direction and removed from the boiler house the boiler which was then there and set up the emergency boiler in its place. The boiler house was a small building fourteen feet wide by eighteen feet long, located by the side of appellant’s track. The old boiler was connected with a steam pump used to pump water into a tank above it. The-pump stood at the right of the boiler and steam was brought to it from the boiler through a wrought iron pipe which extended straight up from the steam dome of thé boiler some five or six inches, then turned with an elbow toward the pump, and when directly over it turned down with another elbow and made a connection with it. At the boiler it was connected by means of a cast iron flange three-fourths of an inch thick, bolted to the head of the dome which stood on the boiler, and between the dome head and the flange was a gasket. After the emergency boiler was put in place it was found the pipe leading down to the pump was some five inches too long. As the crew had no dies to cut new threads, it was suggested the boiler be raised, thereby raising the pipe so the connection could be made without cutting it. This being agreed to, Harmon said, “If you are going to jack it up, get at it,” and thereupon the boiler was raised under Harmon’s direction and the connections made. A fire was then started and steam raised, but for some reason the pump would not start and the piston appeared to have been “hung on center.” Two of the crew then attempted to pry the piston off the center with wood or iron pries placed against the arm or rocker of the pump. After the men had used the pries for some minutes and put considerable force upon them, a call was made for the steam to be turned on, either by Harmon or one of the men in his presence. Accordingly, the steam was turned on and immediately an explosion took place which filled the boiler house with steam and hot water. All the men appear to have escaped from the boiler house but appellee. After the others had gotten out they heard his cries and went back and took him out. He was badly scalded about the head, body and arms. He has to a large extent lost the use of his hands, which permanently disables him for manual labor, and is disfigured for life. His suffering was intense and of long duration. After the explosion it was discovered that the flange in question on top of the dome had been broken in pieces. Three of these were exhibited at the trial, and several witnesses testified there were old cracks in them.

Appellee charged in his declaration that the flange above referred to was unsound and improperly and insecurely fastened, and that appellant knew, or by reasonable diligence could have known, of these conditions; also that the steam pipe connecting the boiler with the pump was carelessly, negligently, improperly, unsafely and insecurely fastened to and connected with said boiler and pump, and negligently, improperly and unsafely adjusted, placed and arranged. There was a verdict in favor of appellee for $6,000. A judgment for that amount was entered and appellant has brought the record to this court for review.

The preponderance of the evidence appears to us to have shown that the flange was imperfect and insecure; that it had old cracks in it and was not inspected; and that the test of the boiler did not include a careful, if indeed any, inspection of the flange.

The complaint made of the pipe connections between the boiler and the pump was that the pipe and connections were rigid and would not give at any place, so that the settling or moving out of line of the boiler or pump would cause a strain on the connections; and it is claimed that the proper method of making the connections would be by what was called a swinging line, with expansion joints, which would relieve the strain. What was the proper and approved method of malting the connections and whether the connections in the manner in which they were made were in fact unsafe and insecure under the circumstances, were controverted questions of fact, difficult of solution, and the verdict of the jury in regard, to them must therefore prevail.

Appellant claims that even if the injuries to appellee were caused by negligence, it was the negligence of his fellow-servants in the same line of employment with him, for which appellant was not liable. The crew at work in setting up the boiler and making the connection was shown conclusively to have been in charge of Harmon, who had served the company as foreman of waterworks and in other capacities some sixteen years, a part of which time he had been employed in equipping boilers, engines and pumps. He had charge and control of the men and was directing the manner in which the work should be done. Under these circumstances it could not properly be held, as a matter of law, that the injury was caused by the negligence of a fellow-servant; but that was a question of fact, and upon it the evidence appeared to be in favor of appellee and against the contention of appellant. Nor can we hold, against the verdict of the jury, that appellee was injured by one of the ordinary hazards of the business in which he was engaged and which he must assume.

Ten instructions were given by appellee, to seven of which appellant makes objection. An examination of these instructions, however, discloses that all of them, except the third, correctly state propositions of law applicable to the case. The objection to appellee’s third instruction is, the first part of it states that “under the law it is the duty of the master to furnish and provide reasonably safe machinery, tools and appliances in and about the work to be performed by the servant,” whereas the correct rule only requires the exercise of ordinary and reasonable care to see that such machinery, tools and appliances are reasonably safe. While that part of the instruction referred to was not strictly correct, yet words were used toward the close of it which in a measure modified the strictness of the rule above laid down, so as to tend to make the instruction conform in substance to the correct rule. As a whole the instruction was somewhat obscure and slightly contradictory. We do not think, however, appellant’s case could have been prejudiced by this instruction, for the reason that appellee’s instruction No. 2 and appellant’s instructions Nos. 10 and 21 correctly stated the rule as contended for by appellant, in plain language which could not be misunderstood.

Appellant complains of the action of the court in refusing- four of the instructions offered by it. An inspection of the record shows that two of these instructions were fully covered by other instructions given for appellant. The other two refused instructions incorrectly stated the law in regard to fellow-servants, the rule being correctly stated in other instructions given for appellant. Fourteen instructions were given for appellant, which presented the law applicable to his side of the case fairly and fully. While the damages assessed by the jury were large, yet in view of the fact that his injuries were so distressing and the pain suffered by him so acute, and as he was previously a strong man, twenty-three years of age, and is not only disfigured for life but rendered to a very large extent incapable of further manual labor, we do not feel justified in holding that the damages are so excessive as to warrant a reversal of the judgment on that account.

The judgment of the court below will be affirmed.

Affirmed.


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    James Tygett, Appellee, v. Sunnyside Coal Company, Appellant.
    1. Master and servant—when doctrine of assumed risk does not apply. A servant who is taken from his regular employment and directed to perform hazardous duties, the risk of which he does not know and of which he is not informed, is not, if injured, subject to the application of the doctrine of assumed risk, and this notwithstanding he may have been what is known as a “company man” and may have belonged to a labor organization and through it had agreed “to perform whatever day labor” his foreman might direct.
    2. Instructions—must not ignore contentions of parties. An instruction in a personal injury case which directs a verdict of “not guilty” upon the finding of particular facts must not ignore any theory supported by the evidence which would preclude such a verdict.
    Action in case for personal injuries. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Denison & Spiller, for appellant.
    W. A. Schwartz, Hosea V. Farrell and J. S. Kendall, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee was injured through the falling of a portion of the roof of appellant’s coal mine, where he was working, and brought suit against appellant for damages. The declaration contained four counts, the first of which alleged negligence on the part of appellant in taking appellee from his employment as a track layer and requiring him to help the timbermen of the mine do certain work of timbering in appellant’s mine, which work was very dangerous and hazardous; that the dangers and hazards of the work were unknown to appellee but known or by the exercise of ordinary care could have been known by appellant; that while he was so at work with the timbermen in said entry, under the orders of appellant, using ordinary care for his own safety, certain slate, coal and other hard substances fell from the roof of said entry upon him, causing the injury complained of.

The second count charged that appellee was employed as a track layer in appellant’s mine and while so engaged, appellant required him to help certain timbermen to timber the roof of said entry, which work appellee had never performed and the dangers incident thereto he did not know, but appellant did or might by the exercise of reasonable diligence have known; that defendant negligently required him to work in a dangerous place in performing the work of helping the timbermen in said entry.

The third count charges that appellee was employed by appellant as a laborer in its mine; that it was the duty of appellant to provide him a safe place in which to work, which appellant did not do, but negligently required him to work in said entry under a roof that was loose, unsafe and liable to fall at any time.

The fourth count charged a wilful violation of section 18 of the Mining Statute, but the court at the close of plaintiff’s evidence gave a peremptory instruction directing the jury to find the defendant not guilty, under that count, so it need not be considered. The general issue was filed and the trial resulted in a verdict and judgment for $999.

The proofs show that appellee was at the time he was injured some thirty years of age; that he had worked in coal mines about five and one-half years, two years and a half of which were spent by him in appellant’s mine; that for a year and a half he worked for appellant as a miner digging coal, then took up the work of a track layer. As a track layer it was his duty to clear away the dirt from the bottom of floors of the entries and rooms and lay railroad tracks connecting the working places with the bottom of the shaft, for the coal cars to run on. The mine had suspended work during April and May, 1906, and when the work was resumed it was found the fifth southwest entry was in bad repair. During the day and night of June 17th, appellant sent workmen into the entry to clean up the timbers, rock and slate which had fallen, and retimber the entry. When appellee reached the mine the next morning, he was told by Mr. Eeed, the assistant manager of the mine, to go over in the fifth southwest entry and help the men who were there at work. When he got there he found two timbermen, Jack Haney and Barney Neill, putting up cross bars in the entry. ' Mr. LeGrand, who says he was head timberman, had just put Haney and Neill to work and gone to the other side of the “fall” of slate and rock to direct other men in the work.

The cross bars were put up by cutting a notch called a “hitch” on one side of the entry to hold one end of the bar, while the other end was placed upon a prop on the other side of the entry. At the time appellee arrived Haney and Neill had raised a bar up and found that the hitch in the coal was too small, so they took the bar down, and Haney gave appellee a pick and told him to cut the notch larger. Appellee took the pick and enlarged the hitch as directed. Just as he completed his work a large body of slate fell from the top upon him, inflicting severe and permanent injuries.

Previous to this time appellee had not worked as a timberman. Haney had inspected the roof before appellee came and found that the slate was loose and liable to fall, but, as he says, he did not think it was likely to fall right then. The position held by Haney with the company was a matter of controversy. Appellee swore that he was the head timberman, while evidence introduced by appellant tended to show that he was simply one of the- ordinary timbermen.

Appellant seeks to reverse the judgment in this case solely on account of alleged errors of the court below in giving and refusing certain instructions. The given instructions complained of are appellee’s instructions Nos. 7 and 8. No. 7 told the jury if they found plaintiff was in the employ of defendant as a track layer, and that defendant by its assistant mine manager, ordered him to leave his said employment and help timbermen do certain work of timbering in the fifth southwest entry, and that said timbering was dangerous and hazardous, and that the defendant knew or would have known by the use of ordinary care of such dangers and hazards to plaintiff, “then you are instructed that plaintiff was not required by law to disobey said Reed; or by obeying to assume the hazards of such obedience, or the dangers and hazards of such timbering work, if any are shown by the evidence, although he may have himself known it was dangerous, unless such dangers and hazards were so imminent that a man of ordinary prudence would not have incurred them.”

The eighth instruction stated in different language substantially the same rule of law. Appellant objects to these instructions for the reason that the evidence shows as claimed by appellant that while appellee was working at the time as a track layer, yet he was what was known as a “company man” and as such it was his duty also to do timbering work or whatever day labor the foreman might direct.

It appeared from the evidence that appellee was a member of the local organization of the United Mine Workers of America and that appellant belonged to the State Coal Operators’ Association; also that there was in force an agreement between the United Mine Workers of America and the Coal Operators’ Association of Illinois, defining the relations of the two bodies and fixing the rules of employment to be observed by them.

Section 24 of the seventh subdivision of the Illinois agreement was offered in evidence by appellant, and admitted by the court. It provided among other things, “all company men shall perform whatever day labor the foreman may direct.” Appellant’s mine manager testified that company men are the men who work for the company by the hour or by the day, such as track layers, timbermen, drivers and eagers.

The theory of appellant is that appellee was bound by the agreement above referred to and that therefore he became a timberman when ordered to do that work by appellant’s foreman; that the rule requiring the master to use reasonable care to furnish a reasonably safe place for the servant to work, does not apply to the work of timbermen which is of necessity hazardous; that the assistant mine manager did not change appellee from his regular employment but only directed him to do that which he had agreed was to be a part of his employment. Admitting for the sake of the argument, what is not by any means conclusively shown, that appellee was bound by the terms of employment above referred to, yet it does not follow that he himself assumed all the hazards of the work he was ordered to do. The fact remains that he was really engaged in the business of track laying for appellant, and when directed to help do timbering he was required to do something outside and different from his regular employment. He was directed to do this work by the assistant foreman, who told him to go down there and help the men who were there at work. When he got there Haney directed him what to do. It mattered not whether Haney was head timberman or not so far as the responsibility of appellant is concerned, because the foreman had directed appellee to help these men and as appellee, not having been engaged in the work then being prosecuted, was ignorant of what was required, some one had to tell him what to do, it was therefore proper that one of the men whom the assistant mine manager had told him to assist, should direct him, and when Haney did so, he for the time being represented appellant. Appellee who was ignorant of the surroundings had a right to rely on Haney who was familiar with the dangers and to assume that he would not be sent into a-place of known danger, unwarned.

In I. C. R. R. Co. v. Swift, 213 Ill. 307 (316), it is said: “Where the servant is specifically directed by his superior to do the work in a dangerous manner, and injury results, he may recover, unless, indeed, the danger was so imminent that a reasonably prudent man would not have incurred it.”

In this case we are of opinion the evidence shows that appellee was acting under the specific directions of appellant and those authorized by it to give him directions both in going to the place where he did and in doing the work done by him in the manner he did, and that therefore the above instructions given for appellee, were not erroneous. Fourteen of the instructions offered by appellant were refused by the court and counsel for appellant insist that all of the refused instructions, except the seventeenth, should have been given.

Defendant’s refused instructions Nos. 1, 4, 5 and 8 were all properly refused upon technical grounds, at least, for the reason they stated that certain rules of law would apply in case the jury found the appellee was employed by the defendant to go into the fifth southwest entry in its mine for the purpose of helping to timber up said entry, etc., when as a matter of fact there was strictly speaking no evidence that appellee was employed to go into the fifth southwest entry of the mine for the purpose of helping timber up the same. Appellant however gets the benefit of the substance of the objections made to these instructions by the objections to the others which were free from the fault above named. Several of the refused instructions contained in effect the statement made in the third that “if you believe from the evidence that plaintiff was working for the defendant in helping to timber up the fifth southwest entry in defendant’s mine at the time he was injured, and that the danger of being injured by falling slate or roof was one of the risks which was usual and ordinary and incidental to the work of timbering and helping timber in coal mines, then you are instructed the plaintiff cannot recover under the second or third counts of the declaration.” The vice of this instruction and the others containing the same theory is that they entirely ignored appellee’s defense, that he was at the time he was injured acting under specific directions from appellant or its authorized agent.

Refused instruction 9 attempted to lay down the law in a case where the employe was left to his own discretion as to how he should do his work, but in this case the uncontroverted evidence shows that appellee was specifically directed where to go, what to do and how to do it, and what is here said will furnish the reason why several other of the refused instructions were objectionable. Some of the refused instructions stated that the rule requiring an employer to use reasonable care to provide a reasonably safe place for his employe to work in had no application to a case where an employe is sent to make an unsafe place safe and has knowledge of the purpose for which he is sent. The general rule of law upon this subject is laid down in Kelleyville Coal Co. v. Bruzas, 223 Ill. 595, where it is said: “The rule which requires the master to use reasonable diligence to furnish a reasonably safe place for his employes to work has no application to those whose duty it is to make dangerous places safe. Such employes assume the additional hazards of their employment and necessarily so.” In the same case it is also said: “If the mine manager or his assistant, had recklessly ordered the deceased into the place of danger without proper warning, the defendant could have been properly held liable.”

In the case before us the action of Haney, who, we think, under the uncontradicted evidence, must be held to have represented and stood in the place of appellant, in ordering appellee to go into a place known to Haney to be extremely dangerous, was very reckless and appellant should properly be held liable for sueh action.

Upon a careful examination of appellant’s refused instructions, we are of opinion the court did not err in refusing to give them to the jury. As appellant’s counsel does not claim in his argument that any error was committed than those relating to the instructions and as none appears to us from an examination of the record, the judgment of the court below will be affirmed.

Affirmed.


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    James Hagen, Appellee, v. Charles A. Schlueter, Appellant.
    1. Vebdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Verdict—when not excessive. A verdict of $2,000 rendered in an action for personal injuries is not excessive where it appears that the plaintiff at the time of his injury was forty-four years old, was thrown from near the top of a three-story building and brick and debris fell on top of him, that he was taken from under such debris in an unconscious condition, removed to a hospital, remained there six days; was then taken to his home and confined to his bed for about four months, was prevented from pursuing his usual occupation for seventeen or eighteen months, was at the time of his injury a strong man earning from six to seven dollars a day, and was at the time of the trial—more than two years after the injury—not fully recovered.
    3. Statute limitations—when amended declaration does not state new cause of action. Where the original and amended declaraations complain of the same act or acts, namely, the construction by the defendant of an imperfect and insecure stone cellar wall and the procuring of the plaintiff to work upon the brick wall constructed upon such improper and insecure foundation (with resulting injury), the amended declaration does not state a new cause of action, which differs from the original merely in alleging the capacity in which the plaintiff was working at the time of his injury.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.

      Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Alexander W. Hope and B. H. Canby, for appellant.
    John J. Brenholt, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was brought by appellee against appellant to recover damages for personal injuries sustained by him while engaged in the construction of the walls of a brick building, upon the latter’s premises.

On March 1, 1904, when the injury occurred, appellee, a briekmason and contractor, was laying brick on the front wall of a brick building, which appellant was causing to be erected on a lot owned by him in the city of Alton, Illinois. Previous to that time, on December 16, 1903, appellee and Edward Dawes, who designated themselves as the “contracting firm of Dawes & Hagen,” entered into a contract with appellant by which they agreed “to do all the brick work, set all stone sills that come in or on said brick work, and furnish all tools, scaffold and labor to do the same, as may be required in the erection of two, three-story-brick buildings, to be built on the south side of Second street,” in the city of Alton, Illinois.

It appears to have been the intention of the parties, although nothing was said about it in the contract, that the foundation of the building in question was to be constructed of stone by appellant and that the firm with which appellee was connected was to have nothing to do with the erection of the same, but was to commence with the brick work of the walls to be placed on the foundation. Appellee testified that when he commenced upon the brick work, the foundation was completed, and the ashlers, which were above the sidewalk, placed on it ready for the work to begin on the walls. When the brick work was about completed and appellant was engaged in laying the top row at the front of the building, the wall suddenly collapsed, appellee was thrown to the ground, covered with brick and debris and severely injured in the back, one leg and ankle.

He brought suit against appellant for the injuries received by him and recovered a verdict and judgment for $2,000.

Appellee’s theory of the case is that the collapse of the wall on which he was working, was caused by the giving away of the stone foundation upon which it was placed; while appellant contends that the wall fell by reason of the improper construction of one of the brick pillars in the front of the building erected by appellee. Appellee also insists that the cellar wall was constructed under the supervision of appellant, who caused defective and improper material to be placed in it after being warned by the workmen that such material ought not to be used and that the manner of construction was improper and against the directions of the architect.

Appellant on the other hand contended that the cellar wall was properly constructed and even if it were not, appellee had an opportunity to examine it and in undertaking to build the brick walls upon it, he did so at his own risk.

The record in this case is voluminous and while there was great conflict in the evidence both as to facts and opinions expressed by the witnesses, yet we think it was shown by the evidence as a whole with substantial certainty, that the cellar wall was constructed of stone, was eighteen inches thick and was laid by a contractor under the personal observation and direction of appellant ; that while the plans for the foundation were furnished by an architect, he did not furnish specifications for the same nor direct or superintend the construction of the wall, further than to tell appellant as he was passing, that he ought to put good new rock in the wall; that a building had before that time been upon the lot and had burned down:, leaving a stone cellar wall; that the old wall on the front side of the lot was taken down and a portion of the old mortar thrown into the trench upon which the new wall was built; tha1¡ appellant used the old rock which had passed through the fire in the new wall and also caused a portion of the old mortar to be mixed with the new; that the rock by reason of having been heated or burned by the fire, broke easily and was not of sufficient strength to be safely used in a wall of that character; that the mortar used, by reason of having been mixed with the old mortar, was of inferior quality; that much of the rock used was in small pieces which were so placed in the wall that they did not tie or bond the same; that appellant when asked by one of the workmen for some broken sills to bond the wall, refused to furnish them and when told the mortar could not be made firm so as to hold together, told the workman who spoke to him, to do the best he could; that when told the rock pier in the wall should be made of good stone, he made no reply and when informed by workmen that a rock had fallen out of the wall, told the man he talked too much and did not know what he was talking about; that when appellee went to work, the wall was pointed up, the joists and sills put on and covered with boards; that while appellee necessarily saw the top and some other portions of the wall, yet he made no examination of it as a whole and did not know its true condition.

Appellant introduced evidence in considerable amount, tending to show that the brick pier in the front of the building above the cellar wall was out of plumb and not properly constructed by appellee and too light to carry the weight imposed upon it; that the collapse of the building was caused by the fall of the pier and an “I- beam” of the building in falling, knocked a hole through the cellar wall.

On the other hand appellee introduced evidence, tending to show that the pier in question was not out of plumb, was properly constructed, that appellant himself directed the kind of brick to be used in it, and the fall of the building was caused by the giving away of the stone cellar wall and not of the brick pier above it.

The questions of fact above referred to were presented to a jury which found the issues in favor of appellee and under the conditions presented by this record we are not at liberty, if so disposed, to disturb their finding. It is said by appellant that the damages found by the jury are excessive.

Appellee was forty-four years old when he was injured. He was thrown from near the top of a three-story building and brick and debris fell on top of him. He was taken up from under this material in an unconscious condition and removed to a hospital where he remained six days, and was taken to his home where he was confined to his bed for about four months, and was prevented from pursuing his occupation for seventeen or eighteen months. At the time he was, injured, he was a strong man, and was earning from $6 to $7 a day. At the time of the trial, more than two years after he was injured, he had not fully recovered. Under these circumstances, the verdict of $2,000 found by the jury, does not appear to us to be so large as to warrant a reversal of the case on that account.

Appellant asserts that instructions 1 and 2 given for appellee, which state well-known and approved rules of law, are erroneous because there is a substantial defect in the declaration to which they refer. Appellant, however, does not point out the particular defect of the declaration relied on by him, and as an examination of the same fails to disclose it, the contention cannot be sustained. Some complaint is made by appellant of the action of the court in refusing four of his instructions. The questions involved in these instructions were, however, fully covered so far as they were proper by seventeen instructions given by the court for appellant, which, as a whole, stated the law in a manner extremely favorable to Ms theory of the case.

Objection is made by appellant that the court erred in admitting certain evidence on behalf of appellee, while objections might well have been sustamed to some of the evidence complained of, yet most of it was properly admitted and the objections to the rest were not serious enough to constitute substantial error.

This case was tried in the court below three times. After the second trial, the court sustained a demurrer to plaintiff’s declaration and gave him leave to amend by September 3, 1906. Appellant insists that this declaration, which was filed August 24, 1906," stated a new cause of action to which the Statute of Limitations applied and took proper steps in the court below to raise that question in this conrt. He says that the original declaration and amendments thereof, prior to the last, stated that the relation of master and servant existed between appellant and appellee and relied upon the common law duty the master owed the servant to furnish him a reasonably safe place in which to work, while the amended declaration stated appellee was an independent contractor employed by appellant to construct a brick wall upon a foundation wall which had been erected by appellant and which proved to be improperly constructed and insufficient to support the brick wall.

In the case of Swift v. Madden, 165 Ill. 41, it is said: “The cause of action may be regarded as the act or thing done or to be done by one which confers the right upon another to sue. In other words the act or wrong of the defendant, towards the plaintiff which causes a grievance for which the law gives a remedy. ’ ’

An examination pf the declaration and the various amendments shows that the acts or things complained of by appellee were the construction by appellant of the insecure and imperfect stone cellar wall and procuring appellee to do the work upon a brick wall, constructed upon such improper and insecure foundation and the giving away of the cellar wall. It was immaterial, under the facts, as disclosed in this case, whether appellant was working upon the wall as a brick layer under the direct supervision of appellant, or as a contractor engaged to lay the brick as shown by the contract, at so much per thousand and therefore the amendments to the declaration did not state a new cause of action.

Objection is also made by appellant that the declaration as amended, does not state a cause of action. We do not deem it necessary to set out the amended declaration, but it suffices to say that we have examined it and it appears to us to state a good cause of action, and the court below properly overruled the demurrer to it.

Appellant assigns eighteen errors upon the record in this case all of which have received our consideration, and nearly all of those which were argued have been reviewed in this opinion. We are of opinion from a careful examination of the case, that it was fairly tried in the court below and that no satisfactory reason is shown why it should be submitted for another trial.

The judgment of the court below is accordingly affirmed.

Affirmed.


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    H. Tompkins, Appellant, v. Henry C. Diamond et al., Appellees.
    1. Amendments and jeofails—what does not constitute amendment. Upon obtaining leave to add new parties, the declaration should be so amended as to connect such new parties with the cause of action relied upon.
    2. Abatement Act—section 11 construed. If an heir or devisee is joined in lieu of the original defendant, it is necessary to connect him with the cause or action by suitable averments in the delaration, which averments must be as full as if such heir or devisee had been the original defendant.

      Assumpsit. Appeal from the Circuit Court of Wayne county; the Hon. P. A. Peabce, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    J. R. Holt and Creighton & Thomas, for appellant.
    Bonham & McLin, for appellees; Holmes & Yankee, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in assumpsit originally commenced by appellant against Sarah C. D. Putnam, at the October term, 1899, of the Wayne Circuit Court. An attachment in aid was issued and levied upon real estate in Wayne county. A demurrer to the declaration was filed, which was sustained by the court, and the declaration amended from time to time, until the January term, 1904, when an amended declaration containing five counts was filed.

The first count declared upon a contract alleged to have been made between appellant and one Douglas Putnam, concerning the control of and sale of certain lands in Wayne county, Illinois, owned by said Putnam, and alleges that said Putnam died testate December 24, 1894; that some three weeks later Sarah C. D. Putnam duly qualified as executrix, and undertook and promised appellant to faithfully perform all and singular the obligations of said testate with him; that certain sales of said lands had been made by appellant in the lifetime of said Douglas Putnam, for which there was due appellant $500, and that said Sarah C. D. Putnam afterwards refused to pay said sum. The second count sets up substantially the same matters relied upon for recovery in the first, but in an abbreviated form. The third and fourth counts allege that said Sarah C. D. Putnam, then being executrix as aforesaid, did on August 21, 1895, agree to sell appellant 2,000 acres of said land in consideration of certain things which appellant had theretofore done under .his contract with Douglas Putnam, and certain other things which he undertook to do in the future; that afterwards, on May 9, 1896, said Sarah C. D. Putnam wilfully and wrongfully sold and conveyed by deed the same lands to one H. S. Putnam, which rendered it impracticable for appellant further to continue to carry out his undertaking and deprived him of divers gains and profits which would otherwise have inured to him, and caused the consideration received by said Sarah C. D. Putnam from appellant to be wholly lost to him. The fifth count contained the consolidated common counts, and recited an individual indebtedness from said Sarah C. D. Putnam to appellant. There was also a statement of account of the amount due from Sarah C. D. Putnam to appellant “on his option of purchase of two thousand acres” of said lands.

At the October term, 1904, a demurrer was filed to the amended declaration, which was overruled as to the second, third, fourth and fifth counts thereof. Afterwards, at the January term, 1907, of said court, the death of Sarah C. D. Putnam was suggested and leave given to appellant to amend the declaration by making new parties defendant. Later, at the March term of said year, appellees filed a demurrer to the declaration, which was sustained by the court. Appellant excepted and elected to stand by his declaration, and judgment was entered against him for costs.

The errors assigned are that the court erred in sustaining the demurrer to the declaration and in rendering judgment against appellant. We have examined the declaration carefully and are of opinion that the court might have sustained the demurrer to all the counts except the fifth, which contained only the consolidated common counts, upon the ground that the matters therein set forth were not stated in a manner to show a legal cause of action. It is not necessary to discuss this question, however, as the demurrer to the whole declaration must be sustained for another reason.

While appellant obtained leave to amend his declaration by making new parties, he never appears to have made the amendment so as properly to connect appellees with the suit. The only attempt at amendment appears to have been made by inserting after the name of the original defendant, in the caption of the declaration, the following words: “Amended making heirs etc. deft. Henry 0. Diamond, Mary B. Diamond, J. Morrison, Lizzie McCandish, H. E. Diamond, Mary P. Boswell, unknown heirs and legatees of Sarah C. D. Putnam.”

The declaration itself did not state whether Sarah C. D. Putnam died testate or intestate, nor is the fact whether she left a will or not said to be unknown, but it proceeded, as formerly, without any change, to assert claims against her, without alleging the relation of appellees to her or connecting them with the land attached or making any further mention of them. The words “unknown heirs and legatees,” used after the names of appellees in the amendment to the caption, are meaningless as they there occur. If we may assume that the word “and” should be inserted after the names of appellees and before the word “unknown,” as was done in the affidavit of non-residence filed by appellant, the notice of publication given by the circuit clerk, and the summons issued by him, which appear in the record, then there is nothing at all to show what relation, if any, appellees bore to the said Sarah G. D. Putnam, and the fact that they were mentioned as the known heirs of said deceased in the motion for leave to amend would not help the matter.

Appellant relied on section 11 of the Abatement Act, which provides that in case of the death of. a sole defendant the suit “shall not on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant, but the plaintiff, petitioner or complainant may suggest such death on the record and shall by order of court have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had been originally commenced against him.” This statute provides simply for bringing the heir, devisee, etc., into court in place of the original defendant, but after such heir or devisee is brought into court his connection with the deceased or with the property attached, if it is an attachment suit, must be set forth in the declaration as fully as though the suit had been originally commenced against him. The declaration in this case, however, did not attempt to show the relation of appellees to said Sarah C. D. Putnam, deceased, except by the imperfect addition to the caption, nor did it state in any place their interest in the land attached. The demurrer to the declaration was properly sustained, and the judgment of the court will be affirmed.

Affirmed.


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    Newton M. Champlin, Appellee, v. Baltimore and Ohio Southwestern Railroad Company, Appellant.
    1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Damages—what evidence competent upon question of, in action for injury to land by fire. The value of manure may be shown, not as an independent element of damage, but as tending to show the value of the land in question before the fire.
    3. Instructions—when refusal of correct instruction as to interest of plaintiff not ground for reversal. Where the evidence is not seriously conflicting, the refusal of the court to give the following instruction is not reversible error:
    “The jury are further instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing his evidence, to determine how much credence is to be given to it, and to take into consideration that he is the plaintiff and interested in the result of the suit.”

      Action on the case. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Kramer, Kramer & Campbell and Kagy & Vandervort, for appellant; Edward Barton, of counsel.
    Charles H. Holt, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee owned forty acres of land in Marion county, some twelve and one-half acres of which lay along appellant’s right of way and was set to timothy. After the hay crop was cut off on August 5, 1906, a fire, claimed to have been started by sparks from one of appellant’s locomotive engines, burned over the meadow and appellee brought suit against appellant for damages.

The declaration was in the usual form, and charged the destruction of twelve acres of meadow grass and meadow sod, two and one-half tons of hay in the stack on the premises, sixteen loads of manure, sixteen fence posts and thirty fence rails. The jury gave a verdict in favor of plaintiff for $130 damages and $25 attorney’s fees, and judgment was entered for the total, amounting to $155.

That the property named in the declaration was burned is not questioned, and appellant’s attorneys do not contest the liability of appellant to pay damages, but that the verdict is excessive, that the court erred in the admission and rejection of evidence and in instructing the jury, and for these reasons seek a reversal of the judgment.

The value of the property destroyed was a controverted question, upon which considerable evidence was introduced on both sides. The evidence on behalf of plaintiff would have justified a much larger verdict than was returned by the jury, while that introduced by defendant, tended to show that a less amount would have been full compensation for the loss. Upon the whole, the jury appears to have arrived at a conservative verdict, the amount of which shows no evidence of passion or prejudice on their part.

Appellant complains that appellee was permitted to testify as to the value of sixteen loads of manure, twelve loads of which had been scattered over the land some three months before and four loads only a short time before the fire occurred. This manure, when spread upon the ground, became part of the realty, and it is agreed by both parties that the measure of damages to realty in a case like this is the difference in value of the same before and after the fire. While appellee was not entitled to recover for the value of the manure spread upon the land as a separate item, yet we think the evidence was proper, as it appeared that the manure was on the land at the time of the fire and was burned and lost to the land, and therefore the value of it would have some bearing upon the question of the value of the land before and after the fire; nor could the jury have been misled upon the subject, as the court, in the fourth instruction given for appellant, instructed the jury directly that in determining the question of damages they could not take into consideration any damages to the manure as separate and distinct from the depreciation in the value of the land caused by the fire. Other objections to the admission of testimony related to the manner in which certain witnesses arrived at the value of certain of the property burned and the elements entering into their estimate. This testimony was of minor importance and entirely proper.

Henry Flannigan, a witness for appellee, testified that he saw the fire on the right of Avay, and on cross-examination said he Avas between twenty-five and forty rods from it, when he saw a spot burning, about the size of a table. Counsel for appellant then asked him, “Do you mean to say you was only thirty rods away and saw as little a spot of fire as that only that far away, and did not go and protect your neighbor’s property when you could have gone and stamped it out at that time?” Objection was made to this ques tion by appellee and sustained by the court. Appellant very earnestly complains of the action of the court upon this matter. A number of reasons will readily appear why the question was objectionable, but it is sufficient to say that it was not proper, for the reason that it assumed that the witness could have reached the fire in the dry weeds, where he says it started, in time to have stamped it out.

Appellant also claims that the court erred in refusing the first instruction offered by it, which was: "The jury are further instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing his evidence, to determine how much credence is to be given to it, and to take into consideration that he is the plaintiff and interested in the result of the suit,” and relies on C. & E. I. R. R. Co. v. Burridge, 211 Ill. 9, where the refusal of an instruction identical in language was held to be error.

The refusal of this instruction for appellant presents a serious question, as it stated a correct principle of law, and should have been given by the court. However, in North Chicago St. R. R. Co. v. Dudgeon, 184 Ill. 477, where the trial court refused the same instruction, the Supreme Court held that as there was no substantial conflict in the testimony given by the appellee and that of any other witness upon any matter material to the issue, the refusal of the instruction was not error for which a reversal should be had. In this case the burning of the property mentioned in the declaration by fire from an engine of appellant is not contested, and the only question was as to the amount of damages.

Upon this question the witnesses for the respective parties merely expressed their opinions, not testifying as to positive facts, and we are of opinion that had the testimony of appellee heen entirely excluded, there was remaining sufficient evidence to justify the verdict for the amount found by the jury. Under these circumstances we are not willing to hold that the refusal of the instruction was in this case reversible error.

Appellant objects to instructions 1, 2 and 3 given for appellee, upon the ground that they improperly gave the jury the idea that in computing damages the value of the sixteen loads of manure was to be considered, in addition to the damage to the land itself. It appears, however, from an examination of these instructions that they are not subject to this objection and that such inference could not properly be drawn from them. It is also to be noted that instruction No. 5 given for appellee plainly told the jury that in determining the amount of plaintiff’s damages, if any, they had a right to consider the difference in the fair cash value of the meadow land with the stand of meadow sod and manure thereon immediately before the fire and the fair cash value of the land immediately after the fire, and instruction No. 4 given for appellant, as above noted, told the jury in plain language that they could not take into consideration any damages as to the manure as separate and distinct from the depreciation in value of the land.

We find no reversible error in this record, and the judgment of the court below will accordingly be affirmed.

Affirmed.


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    The First National Bank of Litchfield, Illinois, Appellant, v. S. H. Cox, et al., Appellees.
    1. Corporations—statute prohibiting unauthorized assumption of corporate name construed. A promissory note taken in a corporate name is not void merely because the assumption of such corporate name is unauthorized and in violation of statute.

      2. Negotiable instruments—rights of assignee before maturity. A person who takes an assignment of a promissory note before due in good faith, for a valuable consideration, even though he may be guilty of gross negligence, will hold it by a title valid against the world, and it will not in his hands he subject to a defense of failure of consideration.
    Assumpsit. Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Miles Frederick Gilbert, for appellant; Amos Miller, of counsel.
    Lansden & Leek, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is a suit in assumpsit by appellant against appellees on a promissory note, dated March 10, 1903, due July 1, 1904, payable to the order of The Telling & Whitehead Co. for the sum of $833, at First State Bank of Thebes, with interest payable annually at the rate of six per cent, per annum. The note had a credit dated March 14, 1903, of $100 and bore the following indorsements: “Pay to the Bank of Broadlands or order, without recourse on us, The Telling & Whitehead Co.” “Pay to the order of First National Bank of Litchfield, Ill. without recourse on us. Bank of Broadlands. Geo. W. Telling, cas.”

The circumstances under which this note was given appear from the evidence to be about as follows: In the spring of 1903 one W. C. Woods appeared in the neighborhood where ° appellees lived in Alexander county, Illinois, having with him a stallion which he was trying to sell. The plan used by him in selling the horse was to organize a stock company with a capital stock of $2,500, the proposed price of the horse, the shares of which were to be $100 each. It was proposed that the purchasers give notes for the amount of $2,500, and that each signer of the notes should have one share of the stock for each $100 he was to pay upon the note. Woods professed to represent The Telling & Whitehead Co. and gave out cards with that name upon them. He succeeded in interesting appellees, who were farmers, in the matter and they signed three promissory notes amounting in all to the price asked for the horse, and the horse was turned over to Frank J. Zoellner, one of the signers of the notes. At the time the notes were signed, each of appellees received a certificate for one share of stock of $100 face value “in the registered Percheron stallion named Artrust 44087,” and it is claimed by appellees that Zoellner who had assisted Woods in making the sale received a present from him of eleven shares of said stock. The horse was kept by Zoellner for sometime, when as it proved to be a poor breeder and as debts had accumulated for his keeping, he was sold for a feed bill and taken away. On March 26,1903, appellees caused a notice to be published in “The Citizen” a daily and weekly newspaper printed, published and circulated in Alexander county, Illinois, as follows : “To whom it may concern. All persons are hereby warned against purchasing or in any wise dealing in three (3) certain notes of $833.33 each dated March 10, 1903, .payable to Telling & Whitehead Co., which notes may bear our names.” This notice was published in eight issues of the daily and two of the weekly paper. The note not being paid when due, suit was brought by appellant on one of the notes, of which it was the assignee, and an ordinary declaration in assumpsit filed.

The defenses to the note made by appellees and raised by suitable pleas, were, first, that the note was made payable to a corporation when in fact the proof showed there was no such corporation in existence and the note was therefore void; second, that neither appellant nor the first indorsee was a bom fide purchaser of the note for value before maturity, and third, that there was a failure of consideration.

The first defense is based on the fact that the note was made payable to The Telling & Whitehead Co. and was indorsed by the payee under that name, and that Woods, the agent of Telling & Whitehead, had distributed cards bearing the name of the Telling & Whitehead Co.

Appellees base their theory as to this question upon the fact that section 220 of our Criminal Code, provides that “if any company, association or person, puts forth any sign or advertisement and therein assumes for the purpose of soliciting business, a corporate name” such company, association or person shall be subject to a fine; and they argue that appellant had violated the Criminal Code and therefore the promissory note obtained in consequence thereof was null and void. We think that question has been fully disjiosed of by the decisions of the courts of appellate jurisdiction in our state.

In Edgerton v. Preston, 15 Ill. App. 23, it is said: “but it is claimed that appellants were doing business under an assumed corporate name, without being incorporated in violation of section 220 of the Criminal Code. What the statute denounces is not merely the assuming of a corporate name, but the putting forth a sign or advertisement, and therein assuming a corporate name for a particular purpose, namely, for the purpose of soliciting business. The mere assumption of a name appropriate for a corporation would be no violation of the statute; nor would the putting forth of a sign or advertisement in which a corporate name is assumed, if not done for the purpose of soliciting business, constitute such violation. What the legislature had in view in enacting this section of the Criminal Code manifestly was to prevent persons from obtaining a fictitious credit by advertising themselves as being a corporation when they were not incorporated.”

In People v. Rose, 219 Ill. 46, where the effect of the same section of the criminal statute was under consideration, it is said: “It is furthermore to be observed that this criminal statute does not make contracts made by persons guilty of the offense prohibited, invalid, but merely provides that such persons shall be liable to pay a certain fine. It would appear therefore that a violation of the statute can be attended with no other consequences than merely the infliction of the penalty therein prescribed.”

We are therefore of opinion that even if the name in question was intended to represent a corporate name, that fact would not render the note upon which this suit is brought, invalid.

It was clearly shown by the proof introduced by appellant that it purchased the note in question before maturity, of the bank of Broadlands, paying therefor $755.87, which was the full amount of the balance due for principal and interest; that neither the president, cashier nor discount committee of appellant, saw the notice published by appellees in the Cairo paper and that its cashier made inquiry concerning the note of the First State Bank of Thebes, Illinois, where it was payable. To meet this evidence appellees relied upon circumstances only, the principal ones being that they published the notice above referred to in the Cairo paper and the fact that the note was indorsed both by the payee and the first indorsee, without recourse. The publisher of the newspaper, which published the notice introduced in evidence, sworn that it circulated throughout the county where it was published, which, the court will take judicial knowledge, is many miles from the county in which Litchfield is located, and no proof was made that the paper had any circulation outside of its own county. There was absolutely no positive evidence that appellant knew of any claimed defense to the note and the meager circumstances relied- on by appellees, were wholly insufficient to overcome the direct and positive proof offered by appellant, showing that it had no such notice. Under these circumstances, the question of a failure of consideration, sought to be raised by appellees, was of no avail and offered no defense. It is elementary that the defense of want of consideration cannot be set up against an innocent purchaser for value before maturity.

Where a person takes an assignment of a promissory note before due in good faith, for a valuable consideration, even though he may be guilty of gross negligence, he will hold it by a title valid against the world, it will not in his hands be subject to a defense of failure of consideration. Shreeves v. Allen, 79 Ill. 553; Comstock v. Hannah, 76 Ill. 530; Matson v. Alley, 141 Ill. 284.

The evidence so greatly preponderated in favor of appellant in its claim that it was an innocent purchaser for value before maturity of the note in question, that we cannot think the verdict represents the unprejudiced and well-considered opinion of the jury upon that subject, and to let it stand would be manifest injustice to appellant.

The judgment of the court below will therefore be reversed and the cause remanded.

Reversed and remanded.


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    Swift & Company, Appellant, v. Katie Stolze, Administratrix, etc., Appellee.
    1. Contributory negligence—when servant guilty of. Held, that the plaintiff in this case, injured by falling in an elevator shaft, was guilty of contributory negligence.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed with finding of fact.
    Opinion filed March 18, 1908.
    C. E. Pope, for appellant.

      Charles A. Karch and L. D. Turner, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought suit as administratrix of the estate of her husband, John H. Stolze, deceased, to recover damages for the benefit of herself and child, the next of kin, resulting from his death, which occurred while he was in the employ of appellant at its plant in Bast St. Louis, on November 10, 1906. The six counts of the declaration upon which the case was tried allege that said John H. Stolze was employed by appellant in its hide cellar and that he received the injuries which resulted in his death from falling-down an elevator shaft, at the place where he was at work in appellant’s plant; that appellant was guilty of negligence in not having a person in its employ in charge of the elevator to operate the same and guard employes and others from dangers incident to its construction and erection; that it negligently and knowingly failed to provide reasonably safe and suitable machinery and appliances for persons in its employ; that it failed to provide doors to the elevator opening and closing automatically; that it negligently failed to supply such means as would cause a door or gate or bar to close off the elevator shaft, whenever the cage within it had passed the respective floors of the building, so as to prevent entrance to the shaft at such times. The general issue was filed by defendant and there was a trial by jury resulting in a verdict and judgment for $5,800.

The facts concerning which there seems to be no controversy of moment, appear from the record to be substantially as follows: On the day he was injured John H. Stolze, a man twenty-eight years of age, was working for appellant as foreman of the hide department in a building where hides were salted, cleaned and prepared for shipment. He had worked in this department for five years, and had acted as foreman for more than two years immediately previous to the day in question. He worked under the general direction of the superintendent of the hide department, but he, himself, had immediate charge of the laborers in the hide cellar with authority to employ and discharge them. The building called the hide cellar had three floors or stories. The floors were nine feet apart and there were stairways between them. There was also an elevator cage running up and down by friction and a shaft in which the same operated. At each landing or floor there was a pair of doors inclosing the shaft which opened outward and were fastened by means of a wooden bar operated from the inside of the shaft, which fitted into two iron hooks on the door so that when closed the doors could only be opened by a person on the elevator. A man had formerly been employed to operate the elevator and there was evidence tending to show that this man had been discharged by Stolze, and that thereafter for about a year prior to the time he was injured, Stolze and some of the men working under him, operated it. Appellant’s superintendent testified that Stolze had the authority to employ a person solely for this purpose had he chosen to do so. On the day of the injury Stolze brought some men up on the elevator from the first floor to the second to spread hides. The men went on into the room while Stolze either stopped at the doors of the elevator or went up to the third floor and returned again to the second. After he stepped from the elevator and was holding the door, one of his men, Bay Canter, came to the elevator and Stolze asked him where he was going; he said he was going to see Wiggins below or on the first floor. Stolze told him Wiggins was on the third floor and Canter got on the elevator and went up, leaving Stolze still leaning on the elevator door. After a few minutes Canter returned to the second floor where he stopped to take on another workman, and then took the elevator on down to the first floor. When they neared the first floor the man discovered Stolze crawling out of the shaft from under the cage.

It was shown by the proofs that Stolze had left the elevator- doors and gone into the room some forty or forty-five feet, and then went back to it apparently for the purpose of going below; that the doors then stood open about a foot with a lever or bar sticking out; that he took hold of the lever, swung around backward, not noticing that the elevator was not there and fell down the shaft. He was removed to a hospital, but his injuries were so severe that he died the same day.

Appellant urges a number of reasons why the judgment in this case should be reversed, but it is only necessary for us to consider that one which relates to the charge in each count of the declaration that deceased, at the time he was injured, was in the exercise of due care and caution for his own safety. Stolze was familiar with the manner in which the elevator was operated and had been so for years. Part of the time he operated it himself and had been doing so just immediately previous to the time he was injured. When he was not running it himself, the men under his charge were doing so; the man who took the elevator from the second floor did so with the full knowledge and consent of Stolze who directed him where to go to find the person he was looking for, and permitted him to take the elevator away without closing the doors. Afterwards Mr. Stolze without looking to see whether the elevator was there or not, pulled the door open, turned around backward and stepped into the shaft. We think the uncontroverted facts clearly show that Mr. Stolze was not exercising due care and caution for his own safety, in stepping into the shaft in the manner in which he did, and that his injuries resulted from an act of negligence on his part.

The judgment of the court below will be reversed.

Reversed.

Finding of facts, to be incorporated in the judgment:

We find that at the time plaintiff’s intestate, John H. Stolze, received the injuries which resulted in his death, he was not in the exercise of due care and caution for his own safety.


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    William J. Orthwein and Henry C. Haarstick, Trustees, Appellants, v. Joseph Davis, Appellee.
    1. Landlord and tenant—estoppel to dispute title. A tenant cannot dispute his landlord’s title, nor can a sub-tenant dispute such landlord’s title; nor can such tenant, even though holding under two landlords, dispute the title of either of such landlords.
    Forcible detainer. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed.
    Opinion filed March 18, 1908.
    Daniel McGlynn and H. L. Browning, for appellants.
    L. D. Turner, Jr., and L. D. Turner, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in forcible detainer brought to the last'April term of the St. Clair Circuit Court, by appellants, to recover from appellee the possession of lot 472 block 40 in Brooklyn, Illinois. There was a trial by jury, a verdict of not guilty and a judgment against appellants for costs.

Some nine years prior to the commencement of this suit, as it appeared from the evidence, the lot in question was claimed by C. F. Orthwein, and at that time John Evans was acting as his agent. About the same time Andrew Seits went into actual possession of the lot and remained in possession for two years, leasing the property of Orthwein through the latter’s agent, Evans. In 1900 Seits surrendered the property to Evans, who took possession of it for Orthwein, and on July 2, 1900, appellants, who had succeeded to the interest of O. F. Orthwein, through their agent, said Evans, leased the lot for a term of one year to W. D. Anderson, who entered into possession of the premises, and erected a house thereon. The lease to Anderson was renewed from time to time, the last one having been executed on April 1, 1906, for a term of one year.

In July, 1906, some time prior to the expiration of this lease Anderson leased the premises to appellee, who immediately went into possession of the same. The lease to Anderson provided that it should not be assigned nor any part of the premises sublet by him without the written consent of appellants first obtained, and that in case of any failure by the lessee to perform any of the covenants of the lease, appellants might declare the lease at an end and recover possession as though the same was held by forcible entry and detainer. On January 25, 1907, appellants caused a notice in writing to be served upon Anderson stating that in consequence of his default in the terms of that part of the lease, which declared that the same should not be assigned or sublet by the lessee, without the written consent of the lessor, they had elected to determine the lease and notified him to quit and deliver up possession of the same to them within ten days; and on March 18th they made a written demand upon appellee for the immediate possession of the premises. Possession not having been surrendered to appellants, this suit followed.

Upon the trial appellee introduced evidence tending to show that Anderson, prior to the time he leased the premises of appellants, had taken a lease from one Barth S. Griffith, who claimed title through some legal proceedings with which appellants were not connected. The court permitted a portion of the papers pertaining to said legal proceeding to be introduced in evidence, as well as certain deeds covering the premises in question, but even if they had been competent there was nothing in them that appeared to connect said Barth S. Griffith with the premises. The witness Evans swore that while at one time said Griffith claimed to own the land, yet when witness took charge of it he told Griffith to move his fence away, which the latter did and witness then took possession of the premises. No written lease from Griffith to Anderson was introduced in evidence and the proof that there was a lease at all was very vague and unsatisfactory. Whether Griffith had any legal. claim to the premises or whether Anderson at any time had taken a lease from -him are not, however, questions which concern us here. It was shown without dispute by the evidence, that Anderson for more than six years had leased the premises from appellants and attorned to them as his landlords, and that appellee had received possession of the premises from Anderson as a sub-lessee.

The second section of the statute relating to forcible entry and detainer provides that the person entitled to the possession of lands or tenements, may be restored thereto in the following, among other cases. “When any lessee of the lands or tenements or any person holding under him holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms or by notice to quit or otherwise. ’ ’

In C. & St. L. R. R. Co. v. Wiggins Ferry Co., 82 Ill. 230, it is said: “In an action of forcible entry and detainer, as has been held in Thompson v. Sornberger, 59 Ill. 326, and other cases in this court, it is necessary to aver and prove that the plaintiff was in possession of the premises, and that the possession was invaded by the defendant; but in an action of forcible detainer, it is sufficient if the complaint shows the relation of landlord and tenant to have existed; that the time for which the premises were let has expired, and that the tenant persists in holding the premises after demand made in writing for the possession thereof.”

The case of Aurner v. Pierce, 106 Ill. App. 206, referred to by appellee, as sustaining his position that forcible entry and detainer is not maintainable where the plaintiff has never been in rightful possession of the premises sued for, is not in point as that suit was brought under a different provision of the forcible entry and detainer act and the relation of landlord and tenant did not exist.

In the case of Carter v. Marshall, 72 Ill. 609, it was insisted by appellant, who claimed to be the assignee of a lease made by appellee, that there could be no recovery unless it was shown that appellee or his lessee, who had assigned to appellant, had possession of the premises at the date of the alleged assignment of the lease and that such possession was transmitted to appellant. It was however said there by the court: “It is an undeniable proposition that where a party in possession of premises accepts a lease and occupies under it, he is estopped to deny his landlord’s title. No dispute as to the title will be tolerated, until the parties are placed in their original positions. The exception to the general rule, is, where the tenant had been induced by fraud, artifice or mistake to accept the lease. In such case, he may show better title in himself or in any third party under whom he claims. He will be permitted to avoid the lease by proof of such facts as would warrant relief in equity from any other obligation created by deed. It makes no difference, the party may have been in possession as the tenant of a former landlord—he is precluded from denying the title of either. ’ ’

In the case of Barkman v. Barkman, 107 Ill. App. 332, it is said: “While the tenant is in possession under a lease, he cannot dispute the landlord’s title by setting up a title, he, the tenant had of the date of the creation of the tenancy, or one that he has since acquired. Nor does it make any legal difference that the tenant was in possession at the time the lease was executed, and did not then actually move out and give possession to the landlord; for the legal effect of joining in and accepting the lease is the same as if that had been done.”

In this ease the relation of landlord and tenant existed between appellants and Anderson and had existed a number of years, and there is no evidence that the lease was acquired by fraud, artifice or mistake. Anderson, therefore, was estopped to deny appellants’ title or show that he was at the time the first or subsequent leases were made, holding the premises under a lease from another. He could not rightfully deny the title of either landlord, even if it were satisfactorily shown, which is not the case here, that he was holding under two landlords. If Anderson could not dispute the title of appellants, appellee who was his subtenant was also estopped from doing so. “It is a well established rule that an undertenant or other person let into the possession by the tenant, must yield possession to the landlord; that a person claiming to have acquired possession from the tenant only acquires the tenant’s rights and nothing more.” Doty v. Burdick, 83 Ill. 473; Brown v. Keller, 32 Ill. 151; McCartney v. Hunt, 16 Ill. 76.

Under the views of law above expressed appellants clearly made out such a ease as entitled them to a recovery against appellee.

The judgment of the court below must therefore be reversed and as the facts which are controlling in this case are undisputed, the case will not be remanded.

Reversed.

Statement of facts to be incorporated in the judgment.

We find that appellee was at the time of the commencement of this suit a sub-tenant of William D. Anderson, who was the lessee of the premises in question, under a written lease made to Mm by appellants; that said Anderson was not induced to accept said lease by fraud, artifice or mistake; that said lease was terminated by appellants on account of a breach of its conditions of which proper notice was given to said Anderson by them, and that appellant also in apt time made a demand for possession of the premises upon appellee, which was refused.


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    George Elvis, a minor, by Charles Elvis, his next friend, Appellee, v. Lumaghi Coal Company, Appellant.
    1. Negligence—when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur applies where the injury results from an unassignable cause and the servant was at the time thereof in the exercise of ordinary care for Ms own safety.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holdeb, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Daniel McGlynn and C. E. Pope, for appellant.
    Webb & Webb, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, George Elvis, a minor, by his next friend, brought suit against appellant in the Circuit Court of St. Clair county, to recover damages for injuries sustained by him on February 22, 1907, while employed as a mule driver in appellant’s coal mine, by reason of the explosion of a certain air receiver or tank at the bottom of the shaft in said mine.

The declaration filed by appellee contained a number of counts, all of which were withdrawn from the jury at the close of appellee’s evidence by the court, except two. One of the remaining counts charged that appellant at its mine maintained an air compressor by steam power, and had a certain air receiver or tank at the bottom of the shaft of said mine; that appellant so negligently maintained and operated said compressor and the pipes leading to said receiver or tank, as to allow oil used in and around said compressor to run and seep through said pipes into said receiver, causing the oil to accumulate in large quantities, to mingle with the air in the receiver, and thereby generate dangerous gases and explosives, rendering said tank or receiver liable to be blown up by an explosion and injure appellant’s servants working near by, which appellant well knew or might by the exercise of due care have known; that while appellant was working in close proximity to said receiver or tank in the exercise of due care, the tank exploded and he was severely injured. The other of said counts, charged that appellant so carelessly and negligently maintained, kept, handled, operated, managed and controlled said receiver and compressed air, as to allow the same to explode and injure the plaintiff. The general issue was filed and the trial resulted in a verdict and judgment in favor of appellee for $3,000.

It' appeared from' the evidence in the case that appellant was at the time in question engaged in operating a coal mine in Madison county and in doing so used mining machines or drills operated by compressed air, supplied from compressors at the top of the mine,

The air after being compressed in a tank at the top of the mine was carried through a six inch pipe to the bottom of the shaft, a distance of some 200 feet into another receiver or tank. The receiver at the bottom was a round tank about twelve feet long and forty-eight inches in diameter at the bottom of which there was a stop cock or valve for the purpose of letting out water, oil and other substances accumulating in it. From the side of this tank a five inch pipe extended through the main entries of the mine and from it smaller pipes distributed the compressed air through the different rooms for use in the machines. On the day above named, a little before noon, there was an explosion which tore the tank open from one end to the other and entirely blew away one end of it. The five-inch supply pipe was also burst open at short intervals for a distance of nearly 800 feet. At the time of the explosion appellee was driving from the south towards the shaft, and was about seventy feet distant from it. He was knocked down and received injuries which, it is not denied by appellant," were severe and permanent in character.

The compressor cylinders were lubricated by oil fed automatically at the rate of four or five drops a minute, while the machine was in operation. So much of this oil as was not consumed together with water formed by condensation, escaped through the pipes and accumulated in the tanks or receivers at the top and bottom of the mine. Each of these receivers had a valve at the bottom which was usually opened each day when the mine was running, to let out the accumulation of oil and water. The compressing machinery and tanks were shown to have been in charge of a competent engineer and to have been made of strong and proper materials. The compressors had not been run for two days previous to the time of the injury to appellee. During those two days the stop cock in the bottom of the receiver which exploded, was not turned, nor was it turned on the day of the explosion, although there appears to have been an employe whose duty it was to attend to this matter. It was shown that on the morning of the explosion this employe sat down near the receiver to dry his clothing and found that the pipe and receiver were warmer than usual. On the third day previous to the accident, the valve had been opened and the surplus oil and water blown out. After the explosion the men who had been working in the vicinity of the tank and pipes, which were blown open, found themselves covered with a thick, black, sticky oil, which had evidently come from the tank and pipes. There was no defect shown in the machinery or negligence on the part of those operating it, other than that the tanks had not been scrubbed out since the machine was installed some six years before, and the valve had not been opened in the bottom to let out the oil and water for nearly three days.

Appellee insists that the accident was caused by the explosion of gas, generated by an accumulation of oil in the tanks and pipes; that to let the oil and water accumulate as was done, was negligence; that when appellant’s employe, whose duty it was to open the valve, found that the receiver and pipes were warmer than usual, this was notice to him and to appellant that a dangerous condition existed and that the facts were such that the doctrine of res ipsa loquitur applies.

Appellant contends the facts in the case were not sufficient to sustain the verdict and that the trial court erred in giving certain instructions for appellee, and in its rulings in regard to the evidence. In this case appellee was admittedly in the exercise of due care for his own safety, and was injured by circumstances with which he had nothing to do, while following the business for which he was employed by appellant. The machinery which caused the injury was under the control of appellant and we are of opinion that the doctrine of res ipsa loquitur applies, that the occasion itself imports prima facie negligence on the part of appellant.

The case of I. C. R. R. Co. v. Phillips, 55 Ill. 194, was one where the appellee had been injured by the explosion of a boiler of the appellant railroad company in the Union Depot at Chicago. The case had been up to the Supreme Court before, where it was reversed and remanded. The court says in its first opinion, in 49 Ill. 234: “Every day’s experience teaches, that where the proper quality of iron has been selected under the usual tests, with reasonable care by skillful and experienced persons, they (steam boilers) are safe in their use for practical purposes. Knowing this, when an explosion has occurred, it is natural to conclude that there has been negligence in selecting, testing, or putting the materials together, when constructed into a boiler, or that it has been negligently used, by subjecting it to too high a degree of pressure by steam. It would, therefore, be improper to say that an explosion is not prima facie evidence of negligence.” When the case was again before them the court said: “This court held in this case in 49 Ill. supra, that the mere fact that the boiler exploded, was prima facie evidence of negligence and that the burden of disproving the negligence, was thrown upon the company.” The court then states, as it had formerly, how the prima facie case might be overcome by evidence and further says, “we have again carefully considered the question and the arguments adduced and adhere to the former opinion, as to the inference from the explosion.”

We cannot find that the doctrine above enunciated has ever been repudiated by our Supreme Court.

In I. C. R. R. Co. v. Prickett, 109 Ill. App. 468, this court discusses the above case and others upon the same subject in a case where an engineer had been killed by the explosion of a locomotive engine and said: “We think that the rule may be thus stated: An explosion. of a locomotive boiler, whereby passengers or others, to whom the company owes the duty of care, such others not being charged with the management of the engine, is prima facie evidence of negligence on the part of the railroad company.”

It is claimed by appellant that the doctrine of res ipsa loquitur is inapplicable in an action between master and servant. We are of opinion, however, that the true rule is laid down in Goddard v. Enzler, 123 Ill. App. 108, where, in the opinion written by Mr. Justice Vickers, it is said, after a discussion of the subject: “Most of the cases where the maxim of res ipsa loquitur is applied, grow out of the relation of passenger and carrier, but it applies in a proper case between master and servant.” In this case, appellee, while in the employ of appellant, had nothing to do with the management of the machinery used for compressing air, but was engaged in an entirely different line of business, and no reason appears to us arising out of the law or facts why the rule should not apply in his case. Nor do we find that the prima facie case made out by appellee has been overcome by other proof in the case.

Objections are made by appellant to several of the instructions given for appellee, but they are technical in character and do not appear to us to be of substantial merit, while eighteen instructions given for appellant appear to have fully stated its theory of the law applicable to the case.

Appellant contends that the court erred in permitting the witness Jeckstadt to testify as to how he was affected by the explosion, because it was not his case which was being tried, and it was immaterial how the explosion affected him; also that other witnesses were permitted to testify to what happened at the time of the explosion some 300 feet away from the tank. This evidence was proper as showing the extent and force of the explosion. Other objections were made in regard to the evidence but upon the whole we find that the court committed no error in respect to the same.

The verdict of the jury appears to us to be warranted by the evidence and as no substantial error was committed by the court in the trial of the cause, the judgment of the court below will be affirmed.

Affirmed.