text:
    Anna M. Raxworthy and Thomas F. Hunt, Administrators, Appellees, v. C. C. Heisen, Sr., Appellant.
    Gen. No. 19,978.
    1. Master and servant, § 856

      —when relationship of independent contractor to be determined from contract. The question as to whether one contracting to perform certain work in the construction of a building was an independent contractor must be determined as a matter of law from the terms of the contract under which the work was to be performed.
    2. Master and servant, § 856*—when relation of independent contractor established. Contract under which one of the parties agreed to do the stone-setting on a building under construction for a stipulated sum, construed as rendering such party an independent contractor, especially under evidence that he hired, paid, controlled, ^directed and discharged the men employed in stone-setting, and that neither he nor they were under the direction or control of the other party to the contract or his agents.
    3. Master and servant, § 133*—when duty to furnish safe place cannot be delegated to independent contractor. The duty of a master to furnish his employee a safe place to work cannot be delegated to an independent contractor, so as to relieve him from liability.
    4. Master and servant, § 156*—when master liable for injury to servant by defective instrumentality owned by independent con

      tractor. Where the owner of a building in course of construction undertook to do the work of stone-cutting, letting the work of stone-setting to an independent contractor, and an employee of the former was killed by the breaking of a guy wire supporting a derrick owned and operated by the independent contractor, thus permitting the fall of stone being hoisted, it was held that the master was liable, under evidence that he was in possession of the premises, and that he and his superintendent were frequently around the derrick and in a position to observe the character and condition of the guy rope, and that the defects therein were patent.
    5. Evidence, § 396

      —when opinions incompetent. 'Opinions of witnesses having no scientific knowledge on the subject are incompetent as to the tensile strength of a steel cable.
    6. Appeal and ebbob, § 1474*—when admission of opinion evidence harmless. The admission of opinions incompetent because of the lack of scientific knowledge on the subject by the witnesses giving them is harmless where their testimony conformed to that of a competent witness whose testimony was not contradicted or impeached.
    7. Witnesses, § 99*—when administrator may call party as a witness. In an action by an administrator for the wrongful death of an employee of the owner of a building, the plaintiff may call the codefendant of such owner, who was an independent contractor owning the defective instrumentality causing the injury, as his witness.
    8. Tbial, § 246*—when verdict for codefendant not inconsistent. ■Where in an action against the owner of a building under construction and his independent contractor, who owned and operated the defective instrumentality causing the injury, the declaration averred a state of facts showing the duty of both to have inspected the appliance, a verdict in favor of the independent contractor is not inconsistent with a verdict against the owner, independently of whether a verdict alone without judgment thereon could affect a judgment against such owner.
    9. Instructions, § 131*—when not erroneous as omitting essential elements. An instruction directing a verdict for plaintiff which requires the jury to find all facts essential to liability on the part of defendant is not reversibly erroneous because it requires a finding • of other additional facts not essential to the creation of such liability.
    10. Master and servant, § 786*—when instruction does not ignore doctrine of assumed risk. .An instruction in an action for the wrongful death of an employee, which requires the jury to find that the deceased not only did not know but "in the exercise of ordinary care could not have known of the defective condition of the appliance causing injury,” is not erroneous as ignoring the doctrine of assumed risk because it does not also require a finding that deceased did not have equal opportunity of knowing.
    11. Instructions, § 65

      —when not erroneous as assuming facts. An instruction concluding with the words “if you find all the foregoing facts from the evidence,” etc., is not erroneous as assuming the existence of such facts.
    12. Instructions, § 81*—when not erroneous as singling out facts. An instruction which merely recites such facts as were necessary to be proved under the averments of the declaration is not subject to criticism as unduly singling out and giving undue prominence to such facts.
    13. Instructions, § 88*—when not erroneous on preponderance of evidence. An instruction directing a verdict in case the jury found “from a preponderance of the evidence” instead of “by a preponderance of the evidence” is not ground for reversal.
    14. Appeal and error, § 1533*—when instruction harmless. An instruction directing an assessment of damages if the jury found “the defendants or either of them was guilty of the negligence charged against them or either of them” is not ground for reversal.
    15. Instructions, § 151*—when refusal proper. The refusal of an instruction covered by instructions given is not erroneous.
    16. Master and servant, § 802*-—when instruction as to duty to warn properly refused. In an action for the wrongful death of an employee, an instruction that the master was not bound to warn decedent of open and obvious danger is properly refused where the declaration was not predicated upon any claim to the contrary, no such question being involved in the case.
    Appeal from the Circuit Court of Cook county; the Hon. S. C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913. Reversed and remanded on original hearing.
    Affirmed on rehearing.
    Opinion filed February 24, 1915.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    David K. Tone and H. M. Ashton, for appellees.

      See Illinois Notes Digest» Vols. XI to XV» and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This was a suit to recover damages on account of the death of appellee’s intestate, Thomas Raxworthy, occasioned, as alleged in the declaration, by the negligence of. appellant and his codefendant, Alexander Shand, whom the jury found not guilty. The verdict as to Shand was set aside, and the case as to him was then dismissed. This appeal is from a judgment against Heisen.

Raxworthy’s death resulted from the breaking of a cable used as a guy line to the mast of a derrick, thus causing the fall of a stone that was being hoisted in the course of building construction. The derrick was used to raise cut stone into place for setting, and was owned and operated by Shand who had a contract with Heisen, the owner of the building, to do the stone-setting. The stone-cutting was done by Heisen’s employees. Raxworthy was one of his stone-cutters. The stone, when drawn to the building, was unloaded between it and the sidewalk where it was cut, and then hoisted by the derrick operators into place. At the .time of the accident the derrick was on the fourth floor and Raxworthy where the stone was being cut.

The declaration consists of an original and two additional counts. All are predicated on negligence in the use and permitting the use of a defective cable, described as “old, rusty, insecure and imperfect,” the first count also alleging that it was “not strong enough to sustain the strain” it was subjected to. Each avers these undisputed facts: That Heisen was erecting the building; that Raxworthy was in his employ, and that Shand was the" owner of the derrick and appliances, and, together with his men, operated them! The claim of joint liability rests, in the first count, on the averment that Shand and his men were under the supervision and direction of appellant in operating the derrick; in'the first'additional count-, on ■ the averment that they were jointly co-operating in cutting stone, hoistr ing and placing it in said building, and, in the second additional count, on the averments that Shand, for a compensation paid by appellant, was engaged in hoisting and installing stone and that appellant was simultaneously engaged in chiseling and assembling it to be hoisted; that the intestate, appellant’s servant, was working beneath the derrick where he was liable to be killed or injured in case the derrick cable was insufficient to withstand the strain of lifting the stone, and that these facts were known to both appellant and Shand, and not to deceased.

The agreement between Heisen and Shand was in writing and purports to have been entered into by Heisen as owner and party of the first part, and Shand as “stone-setting contractor” and party of the second part. The material parts thereof for determining the relation of the parties read: “That the party of the second part shall furnish all labor, materials, tools, derricks, power, etc., for the setting of the cut stone,on the building * * * also the stone-setting contractor agrees to supply all anchors for all the cut stone set by him f * * It is understood and agreed by the owner that all stone must be fitted for the iron work by the stone-cutter contractor; also the owner agrees to furnish on the mortar boards, ready for use, all necessary mortar for stone-setting. ’ ’

The contract also provides for a stipulated sum for such work, for its prompt dispatch, and that the owner may take possession and complete the work in case said contractor neglects or abandons it. A supplemental written agreement provides that Shand shall set the stone in twenty-five panels on the building providing the panel stones were delivered in front of each opening where they belonged, the cutting of stone and brick to be done by others.

. The relationship between Heisen and Shand was to be determined as a matter of law from the terms of -their contract (Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100; Foster v. City of Chicago, 197 Ill. 264), which hardly admits of any other construction than that Shand was an independent contractor to do the stone-setting, and such construction is borne out by conclusive evidence that Shand hired, paid, controlled, directed and discharged the men employed in the stone-setting, and that neither he nor they were under the direction or control of Heisen or his agents. Pioneer Fireproof Const. Co. v. Hansen, supra.

Shand’s status being that of an independent contractor it is unnecessary to consider questions argued and that might arise if the relationship between Heisen and Shand was that of principal and agent.

Appellees claim, however, that appellant was nevertheless liable under his duty to furnish his employee a reasonably safe place to work, and the suit was tried partly on that theory. Appellant contends that he was relieved from such liability, if the injury was the result of Shand’s negligence, because the latter was an independent contractor, and cites familiar cases where, in view of such a relation, the doctrine of respondeat superior was held not to apply. But none of these cases was a suit by a servant against his master for failure to furnish a safe place to work where both the servant and independent contractor (also alleged to be negligent) were working on a building in the master’s possession and control.

It is a well-recognized principle that the duty of a master to furnish his employee a safe place to work cannot be delegated to an independent contractor, so as to relieve him from liability. 16 Am. & Eng. Encyc. of Law, 197; Bailey on Personal Injuries, vol. 1, sec. 44; Bernheimer Bros. v. Bager, 108 Md. 551-561. A more difficult question is the extent of the master’s liability for defective instrumentalities used by independent contractors that may endanger the safety of his employees. Our attention has not been directed to a case in this State where the question has arisen upon the combination of facts here presented. But the duty of inspection Tby the master has under very similar circumstances been extended in other jurisdictions to such instrumentalities. Jas. Griffith & Sons Co. v. Brooks, 197 Fed. 723; Trainor v. Philadelphia & R. R. Co., 137 Pa. St. 148; Gulf, C. & S. F. Ry. Co. v. Delaney, 22 Tex. Civ. App. 427. In each of the cases referred to, the injury, as here, resulted from the falling of a derrick by reason of its being insecurely fastened, the derrick was controlled and operated by an independent contractor, the premises were in possession of and control of the owner, and the person injured or killed was an employee of the latter engaged about the premises. We are not disposed under such a combination of circumstances to question the existence of such a duty or that the employer may be liable for a breach thereof. In the present case there was evidence of possession by the employer and that his superintendent and himself were frequently around the derrick in a position to observe the character and condition of its guy rope, and thus to know of the dangers attendant upon the use of one that was defective or insufficient. There was also evidence tending to show that the defects complained of were patent.

The theory, therefore, upon which the case was tried being tenable, we will consider certain assignments of error that relate thereto, and first those relating to the admission of improper evidence.

On the question of the insufficiency of the cable to withstand the strain put upon it, appellees called witnesses to prove the tensile properties of a hard steel cable of that size, among them two who from lack of any scientific knowledge of the subject were manifestly disqualified to give an opinion on it. Objections to their testimony and the motion to strike it out as hearsay and incompetent should have been sustained; but, inasmuch as their testimony on the subject conformed to that of a competent witness whose testimony was not eontradicted or impeached, we do not regard the error in snch ruling’s as reversible.

Appellant urges that under the statute plaintiffs suing as administrators could not call defendant Shand ' as a witness. It is enough to say on that point that the statute does not prevent an administrator suing a party from calling the latter as his own witness.

Appellant also urges' that the judgment cannot stand against Heisen because there was a verdict of not guilty as to Shand. Eegardless of the question whether a verdict alone, without a judgment thereon, could" have such effect, the position is nevertheless untenable if, as in the present case, the declaration alleges a state of facts on which each defendant may be independently liable. If it was the duty of both defendants to inspect the derrick and its supports, then there is no room for this contention, nor that negligence by appellant in that respect was not the proximate cause of the injury.

Other matters discussed in the brief, namely, whether the deceased was not guilty of contributory negligence and whether the breaking of the cable was caused by hidden or latent defects, were, under the evidence, questions of fact for the jury, and we cannot say that their verdict was manifestly against the preponderance thereof.

Complaint is also made of the giving and refusing of instructions, which we shall refer to by their respective numbers.

It is urged that instruction No. 1, given at plaintiffs’ request, ignored the doctrine of assumed risk, assumed the existence of facts that were disputed, singled out and gave undue prominence to certain facts, and was ambiguous and confusing.

While it is not free from objection, we do not think it contains reversible error. It directs a verdict against Heisen for plaintiffs upon certain hypotheses, including all that were essential to the issues presented and some that were not. In the latter respect it is objectionable. It enumerates among the hypotheses joint operation by Heisen and Shand in trimming, hoisting and setting stone, and Heisen’s general supervision of such work. There not being sufficient evidence to support either of these facts, they properly had no place in the instruction. . But whether they existed or not, the ground of Heisen’s liability was the same in either event and depended upon neither. It depended wholly on the undisputed facts of Heisen’s possession of the building and the relationship of master and servant between him and deceased, and on the controverted facts whether the cable was defective as alleged and Heisen knew or ought to have known of it, and whether deceased was ignorant of it and without equal means of knowing it, and not upon Heisen’s particular relations to Shand or the latter’s work. We fail to see, therefore, how, inasmuch as the jury was required to find all the facts essential to Heisen’s liability, he could be injured by the requirement that they find additional and unnecessary facts.

Nor do we think the instruction ignores the doctrine of assumed risk. The cases relied upon by appellant relate to an entirely different form of instruction. In this the jury were required to find that the deceased not only did not know but “in the exercise of ordinary care could not have known” of the defective condition or insufficient strength of the guy. The complaint is that it does not also require a finding that deceased did not have equal opportunity of knowing. It is manifest that if deceased had such opportunity, then he could have known of such defects. The expression that “he could not have known” necessarily implies absence of such opportunity. Similar language in declarations has been held to negative the assumption of risk, and in such cases instructions directing a verdict if plaintiff proved bis case as alleged in such a declaration have been held not to ignore the assumption of risk. Spring field Boiler & Manufacturing Co. v. Parks, 222 Ill. 355; James S. Kirk & Co. v. Jajko, 224 Ill. 338; Hagen v. Schleuter, 236 Ill. 467; Lake St. El. R. Co. v. Fitzgerald, 136 Ill. App. 281.

We do not agree with appellees, however, that the question of assumed risk is not in the case, hut it was properly presented to the jury in instruction No. 23, and is not ignored in the instruction under consideration.

The instruction concluded with the words “if you find all the foregoing facts from the evidence,” etc. Appellant contends that the court thus assumed the existence of such facts. We do not think the jury would so understand it. It was a mere summary of the several hypotheses contained in the instruction, each of which was required to be found from the evidence.

Nor do we think the instruction properly subject to the criticism that it singles out and unduly gives prom- - inence to certain facts. It does not come within the decisions cited on that point. With the exception of those above alluded to and held to be inconsequential, it recites only such facts as were necessary to prove under the averments of the declaration.

The objection to given instruction No. 5, which directed a verdict in case the jury found “from a preponderance of the evidence” instead of “by a preponderance of the evidence,” and the objection to the given instruction No. 6, directing an assessment of damages if the jury found “the defendants or either of them was guilty of the negligence charged against them or either of them” are more hypercritical than substantial. In no event would we deem such defective expressions as sufficient ground for a reversal.

As to the refused instructions tendered by Heisen, we think neither No. 8 or 10 embodied anything pertinent to the case that was not included in other given instructions. No. 10 sought to bring before the jury as an element in the case that Heisen was not obligated to warn decedent of open and obvious dangers. But the declaration was not predicated upon any claim to the contrary. No such question was in the case.

Refused instruction No. 13 sought to advise the jury of the obligation of deceased under the law to exercise ordinary care for his own safety and directed a verdict for Heisen if they found from the evidence that “he failed to observe the obvious conditions around him and by reason thereof was injured.” The instruction though correct in theory may properly have been rejected on account of its abstract form, but it was covered by other given instructions, notably 14 and 15.

Having carefully examined the record in the light of the authorities presented on the rehearing in this case that were not before us on the original hearing, we are constrained to believe that there is no reversible error in the case and that the judgment should be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    J. T. Williams and D. H. Williams, trading as Williams & Company, Appellees, v. J. H. Flick Construction Company, Appellant.
    Gen. No. 20,290.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 24, 1915.
    Rehearing denied March 9, 1915.
    Statement of the Case.
    Action by J. T. Williams and D. H. Williams, trading as Williams & Company, against J. H. Flick Construction Company, a corporation, to recover money claimed to be due under the terms of an oral contract between the parties. From a judgment in favor of plaintiffs for $2,368, defendant appeals.
    Defendant having a contract for construction work with a railroad company sublet certain portions of it to a firm, which, for brevity, will be referred to as the Peterson Company, and the latter in turn sublet the work to appellees. Under the contract between appellant and said Peterson Company, entered into August 4,1911, the work was to be finished by October 26,1911. Appellees began work under their contract about September 7th. As it proceeded, appellant complained to appellees of the little progress made and appellees complained to appellant that the conditions under which they had undertaken the work had been changed and that they were incurring losses by reason thereof. The Peterson Company was to pay appellees 17 cents a ■yard for moving dirt and were to receive from appellant 19% cents a yard therefor. After several exchanges of complaints, as aforesaid, between the parties hereto, a conversation was had sometime in November between J. H. Flick, president of appellant, and J. T. Williams, one of the appellees. Testifying to the matter, Williams claimed that his firm was about to abandon its contract with the Peterson Company and that to induce appellees to remain on the job, Flick said his company would make good their losses to the extent of the difference between what they and what the Peterson Company were to be allowed for removing the dirt, namely 2% cents a yard. Flick admitted that he made such an offer but claims that no arrangement therefor was consummated, and it appears that the contractual, relations between the several parties remained unchanged; that appellees continued to work under their contract with the Peterson Company, and while they were paid therefor by appellant, the payments were so made pursuant to the Peterson Company’s'order, and were based upon monthly estimates of the work done prepared by the railroad company’s engineer; Flick claimed that when he made such offer to J. T. Williams, the latter was to see his brother about itp and that on November 17th, about a week afterwards, they came to his office and resumed discussion of the subjects; but that there was no actual agreement made until December 26th; and this suit seems to be predicated upon an agreement made at that time. Appellees’ statement of claim is as follows:
    “Plaintiffs’ claim is for $700 for estimate for dirt work done in filling and grading, and $1500 for the loss sustained under their oral contract entered into shortly prior to December 28, 1911, at which time plaintiffs and defendant agreed that the plaintiffs were sustaining loss by reason of the fact that the work to be done was not as represented and at which time plaintiffs and defendant also agreed on the sum of $1500 as being the loss sustained by reason of misrepresentation of said work, which loss the defendant agreed to pay .the plaintiffs and $370.12 for ten per cent, of estimate held back and $64 for curbing, making a total of $2834.12.”
    At the trial the last item was eliminated' and the actual amount of the first item was shown to be $498. The verdict and judgment were for $2,368, evidently including the claim for losses, the amount held back and the actual sum of the December estimate, viz.,-$498.
    In its affidavit of merits, appellant specifically denied each zand every allegation in said statement of claim, but Flick testified that in the conversation of December 26th, at which the parties to the several contracts were represented, appellees stated that their losses were $1,500, and that he said: “I will make you a proposi.tion.. I will give you $1,500. I will assume all your estimates. You pull off the work. We will complete it-ourselves ”; and at the same time the representative 'of the Peters on' Comp any agreed to give back to appellant-the “margins” (or profits on its contract) that . appellant had paid it. . Explaining what he meant by .assuming estimates, he said they were statements by the railroad company of the amount of work done by the contractor each month and that he mednt that appellant “would take them and keep them.”
    Abstract of the Decision.
    1. Contracts, § 389

      —when Question of entering into not for jury. Where the making of an oral contract between the parties was not denied, its terms only being in dispute it is not error to refuse to submit to the jury the question whether a valid contract was entered into.
    2. Contracts, § 32*—what does not show absence of meeting of minds. Where a contract was oral and hence necessarily rested in the recollections of the parties, the fact that their recollections differed as to its terms, does not necessarily indicate that their minds did not meet.
    3. Instructions, § 114*—when not erroneous as not submitting entire issue. In an action to recover money claimed to be due under a contract where the defendant practically admitted liability for a certain sum, claiming that under the terms of the contract such sum was to be in full of all claims, an instruction that the jury was to determine from the evidence what the agreement actually was, whether such sum was in full of all claims, or merely to cover certain items of plaintiffs’ claims, that if they believed the former the verdict should be limited to that amount, and if they believed the latter their verdict should be accordingly, was not erroneous as permitting the jury to find the entire issue in favor of the defendant.
    4. Instructions, § 82*—when not erroneous as singling out party. An instruction concretely submitting the abstract proposition that one may not defeat his own contract simply by testifying to a different recollection of its terms, held not prejudicially erroneous merely because it contained a specific reference to the defendant.in that Connection.
    5. Contracts, § 385*—when evidence sufficient to show existence. Where defendant sublet its contract for certain work to a subcontractor who in turn sublet it to plaintiffs, who claimed that defendant, upon their complaint as to loss resulting from changes in the conditions under which they had undertaken the work, agreed to pay the amount of such loss and in addition the difference between the amount which they were to receive under their contract with the subcontractor and that which the latter was to receive from the defendant, the evidence was held sufficient to establish the agreement as asserted by plaintiffs.

      Eddy, Wetten & Pegler, for appellant.
    Cannon & Poage, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Edmond Gorman, Administrator, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 20,311.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Edmond Gorman, as administrator, against South Side Elevated Railroad Company to recover damages for the wrongful death of David Airey, a boy sixteen years of age who was killed while a passenger on one of defendant’s cars.
    The train was moving north on elevated tracks, which, near the place of the accident, turn from their northerly course east and then within one-half block suddenly curve again to the north. The boy was standing on the front platform of the second car and had been standing there for many blocks. The sides of the platform were inclosed by iron gates about six feet high. Along its front edge were four upright iron stanchions supporting the canopy, one standing in each corner and the other two between them. The space between the two in the middle was left open for passage from one car to another. From each corner stanchion to the next stanchion towards the middle was a railing about “waist high.” The base of each stanchion was about one and one-half inches from the platform. At the time of the accident the boy stood near the left corner stanchion and railing, fronting towards the rear platform of the first car which was like the other in construction.
    As the train moved around the curves, the relative position of adjoining platforms was, of course, almost constantly changing. As the first curve was taken, the left comer of said rear platform necessarily swung away from the car behind, and, as the next curve was taken, the other corner swung away, bringing said left comer back by a sudden, jerky and irregular movement, in the course-of which the west corner stanchions came within five inches of each other. During that movement the boy’s head was caught and crushed between these two stanchions.
    The case was submitted to the jury on two counts of the declaration, the first charging the defendant with negligence in failing to give Airey any notice or warning of the danger of his position under such circumstances, and the second charging negligence in failure to provide a guard or device so as to protect passengers while thus standing on the platform. From a judgment for plaintiff for two thousand dollars, defendant appeals.
    Addison L. Gardner and Carroll H. Jones, for appellant.
    Edmund S. Cummings, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic aivl section number.

   Mr. Presiding Justice Barnes

delivered, the opinion of the court.

Abstract of the Decision.

1. Carriers, § 353 —when duty to inclose platform question for jury. Where a hoy sixteen years of age, while a passenger on defendant’s train, was killed by his head being crushed between the upright stanchions supporting the canopy over the platform of the car on which he was standing, and similar stanchions on the platform of the car in front as the train rounded a curve, whether it was. the duty of defendant to so inclose its platforms as to prevent an injury of that character was held a question for the jury.

2. Carriers, § 378*—when bound to give notice to passengers on platforms of dangers arising from movement of cars rounding curve. In an action to recover damages for the wrongful death of a passenger whose head was caught between .upright stanchions supporting the canopy' of the platform of the car on which he was Standing and similar stanchions on the car in front," duer to ■ the lateral movement of the ends of the cars as the train rounded a curve, it was held that defendant was chargeable with notice of the danger and that it was its duty to give warning to passengers whom it permitted to ride on the platforms of its cars where they were exposed to such danger.

3. Carriers, § 428*—when contributory negligence question for jury. Whether a passenger on an elevated railroad train whose head was caught between upright stanchions supporting the canopy over the platform of the car on which he was standing and similar stanchions on the car in front, as the result of the lateral movepient of. the ends of the ■ cars as the train rounded a curve, was guilty of contributory negligence, was held a question of fact for the jury.

4. Carriers, § 482*—when instruction properly refused. Where in an action against a carrier for the wrongful death of a passenger, the declaration contained no specific allegation of negligence against defendant’s trainman, claimed to have been at fault, an instruction limiting the consideration of the jury to what was required of such trainman as to specific acts is properly refused.


text:
    John D. Casey, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,323.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 131

      —what evidence insufficient to show speed.' Testimony that a car “was going in a hurry,” “was going fast,” is insufficient to convey any definite idea of its speed when not stated in comparison with the ordinary rate of speed or some definite standard.
    2. Street railroads, § 131*—when evidence insufficient to show excessive speed. In an action to recover damages for the death of a pedestrian who was struck by a car as he stepped upon the track, on passing around the rear of a car standing upon a parallel track, it was held that the evidence was insufficient to show that the car inflicting the injury was being operated at excessive speed, the only witness testifying in favor of plaintiff being a woman who was just behind decedent at the time of the accident and who testified that the car “was going in a hurry,” “was going fast,” her testimony being contradicted by other witnesses in a better position to observe the facts.

      Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate .Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed February 24, 1915.

      Certiorari allowed by Supreme Court.
    Statement of the Case.
    Action by John D. Casey, as administrator, against Chicago City Railway Company to recover damages for the death of Patrick Tracy, whose death was caused by a collision with one of defendant’s cars as he attempted to cross the street from behind a car, stationary upon a parallel track. From a judgment for plaintiff for four thousand dollars, defendant appeals.
    Franklin B. Hussey and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Darrow & Baily, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Street railroads, § 131 —when evidence insufficient to show failure to ring gong. In an action to recover damages for the death of a pedestrian who, on passing around the rear end of a stationary car, was struck by a car proceeding in the opposite direction upon a parallel track, the evidence was held insufficient to show failure on the part of defendant’s servants operating 'the car inflicting the injury to ring the gong.

4. Street railroads, § 98*—when contributory negligence shown., In an action to recover damages for the death of a person who, on passing around the rear end of a stationary car, was struck by a car bound in the opposite direction upon a parallel track, it was held that decedent was guilty of contributory negligence as a matter of law, there being nothing in the circumstances surrounding the accident to excuse him from looking, it being apparent that he did not look until too late.


author: Mr. Justice Gridley

text:
    Hermine Richter, Plaintiff in Error, v. Village of Maywood, Defendant in Error.
    Gen. No. 18,794.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed -and remanded.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Hermine Richter against the Village of Maywood to recover for personal injuries sustained as the result of stepping into an unguarded hole or excavation at a street crossing. From a judgment entered on a verdict for defendant, plaintiff brings error.
    Abstract of the Decision,
    1. Instructions, § 129

      —when erroneous as omitting eie/ments. An instruction directing a verdict which does not contain all of the elements justifying such verdict is erroneous.
    2. Instructions, § 10*—when giving of number on same point improper. The giving of eight instructions directing the jury’s attention to the degree of care required of the plaintiff is improper since it. tended to emphasize plaintiff’s duty in that respect, and to create in the minds of the jury the impression that the .court did not believe that plaintiff was in the exercise of due care at the time of the injury.
    Charles J. Trainor, for plaintiff in error.
    Joseph J. Sullivan, for defendant in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Carrie Killian, Administratrix, Defendant in Error, v. Vaclav Tesar, Plaintiff in Error.
    Gen. No. 19,502.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Rían, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Carrie Killian, administratrix of the estate of her mother, Josephine Novak, deceased, against Vaclav Tesar to recover on- a note executed April 6, 1890, due two years after date and payable to decedent. Letters of administration were issued to plaintiff on September 7, 1912, and on September 13, 1912, the action was commenced. Plaintiff alleged that a “part payment of $150 was made by defendant in 1905, and a new written promise to pay, dated June 29,1912, was made by defendant to plaintiff.”
    Abstract of the Decision.
    1. Limitation of actions, § 117

      —when evidence insufficient to show payments on note. In an action on a note the evidence was
      held insufficient to show a payment thereon within ten years prior to the commencement of the action.

      The instrument relied on as constituting a new promise was as follows:
    “June 29, 1912.
    Dear Niece:
    I am very sorry but I cannot give yon any money just now, as I had taxes to pay and the street. Just as soon as I can I will settle with you.
    V. Tesar.”
    Plaintiff claimed that the promise was in response to a letter she had written defendant demanding the money.
    Defendant denied the sending of the letter, testifying that aside from a few words he was unable to write English. He also claimed that he had paid all sums due from him to the estate and set up the statute of limitations.
    From a judgment for plaintiff for $652, defendant brings error.
    Q. J. Chott, for plaintiff in error.
    James W. Burke, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samp topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

2. Limitation of actions, § 117 —when evidence insufficient to show new promise. In an action upon a note due more than nineteen years prior to the commencement of the action, the evidence was held insufficient to show a new promise by defendant sufficient to-prevent the bar of limitations.


text:
    Edward Levy, Defendant in Error, v. C. O. F. Burkstrom, Plaintiff in Error.
    Gen. No. 19,657.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph. P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Edward Levy against C. 0. F. Burkstrom to recover an amount claimed to be due as rent of demised premises abandoned by the defendant. On February 24, 1910, plaintiff by a written lease rented the premises in question to defendant for a period of one year commencing May 1, 1910, at a monthly rental of fifty dollars. Defendant abandoned the premises September 30, 1910. On October 3, 1910, plaintiff caused judgment by confession to be entered on the lease for the sum of seventy dollars, of this sum fifty dollars being for the October rent and the balance being an attorney’s fee provided for in the lease. This judgment was subsequently paid and satisfied. On Novern-, ber 29, 1910, plaintiff commenced an action against defendant to recover the sum of forty dollars for damages caused the premises, and recovered judgment for five dollars which was paid and satisfied.

      Abstract of the Decision.
    1. Landlobd and tenant, § 284

      —amount of recovery on re-renting of premises after abandonment by lessee. Where owing to the condition in which a lessee abandoning the demised premises before the expiration of the lease left the premises, the lessor on re-renting the same was unable to secure from the new tenant the full amount of the monthly payment stipulated in the original lease for the first month of the new tenancy, the lessor in an action against the defaulting tenant is entitled to recover the difference between the amount paid by the new tenant and that stipulated in the original lease.
    2. Landlobd and tenant, § 487*—when lessor may take possession on abandonment by lessee. Where a tenant abandons the demised premises before the expiration of the period for which they were leased, it becomes the right and duty of the lessor to take charge of the premises, and if p.ossible re-rent them, and thus reduce the amount of the lessee’s liability.
    Thereafter and on December 1,1910, plaintiff caused judgment by confession to be entered against defendant for the sum of forty-five dollars, twenty-five dollars being for rent for half the month of November and the balance being for attorney’s fees.
    The order overruling defendant’s motion to open the judgment was reversed in 174 HI. App. 276. The cause was reinstated in the lower court and on trial without a jury judgment was rendered for plaintiff for twenty-five dollars, from which defendant brings error.
    Plaintiff re-rented the premises November 1, 1910, for the unexpired term of the lease at the same rental, except that but twenty-five dollars was to be paid for the month of November.
    Otto G. Ryden, for plaintiff in error.
    Harry C. Levinson, for defendant in error; Leo W. Hoffman, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Henry F. Norcott, trading as H. F. Norcott & Company, Defendant in Error, v. Mary S. Frankenburger, Plaintiff in Error.
    Gen. No. 20,074.
    (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 51

      —when not procuring cause. In an action by a broker to recover commissions for the sale of land to a person with whom plaintiff had negotiated, hut who refused at that time to purchase at the price fixed, the deal being subsequently consummated through another broker at a lower price, it was held that the evidence was insufficient to show that plaintiff was the procuring cause of the sale.
    Error to the Municipal Court of Chicago; the Hon. John K. Peindiville, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of facts.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Henry F. Norcott, a broker, trading as H. F. Norcott & Company, against Mary S. Frankenburger to recover the sum of one hundred and twenty dollars commissions on a sale of certain property owned by defendant. From a judgment for plaintiff for one hundred and twenty dollars, defendant brings error.
    John Schwender, for plaintiff in error.
    Warren Nichols, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Nellie Albrecht and Moses E. Greenebaum, Trustee, Appellees, v. Sophie Buelow et al., on appeal of Ferdinand Becker, Appellant.
    Gen. No. 20,314.
    1. Mechanics’ liens, § 128

      —apportionment of liens. Mechanics’ Liens Act, 1903, sec. 16 (Hurd’s R. S., ch. 82, sec. 30, J. & A. ¶ 7154), . relative to incumbrances and apportionment of liens, held, not to differ materially from the Statute of 1845, sec. 20.
    2. Mechanics’ liens, § 131*—practice for distribution of proceeds. In a foreclosure proceeding where, after it has been determined that a mechanic has a lien and in what amount, and that his lien is superior to the lien of the mortgage or trust deed as to a portion of the premises as improved, it is not necessary, though proper, for the court to determine before entering a decree of sale what proportion of the proceeds of the sale shall be paid to the lien holder and what to the mortgagee or trustee, since the court may order the proceeds of the sale to be brought in and the proper proportions may be ascertained by taking of evidence after the sale, and the taking of this evidence may be unnecessary where the property sells for enough to satisfy both liens.
    3. Mechanics’ liens, § 128*—distribution in case of prior incumbrances. In foreclosure of a trust deed, where a cross-complainant asked that he be decreed a superior lien for material furnished upon premises subsequent to the execution of the trust deed, and it appeared that such claimant had increased the value of the building in excess of the amount claimed as a lien for materials furnished, a decree, upon the recommendation of the master, entering an order of sale, finding that complainant had a “first and prior lien” on the premises for the amount due under the notes and trust deed and was “first entitled to be paid the same” out of the proceeds of the sale, and a further finding that the cross-complainant had a lien on the premises in a certain sum, subject to the lien of the complainant, and was next entitled to be paid such sum out of the proceeds, held erroneous since the cross-complainant had a lien paramount to that of complainant on the premises to the extent of the additional value given to said premises by improvements or repairs made by him under the Mechanics’ Liens Act, 1903, sec. 16 (Hurd’s R. S. ch. 82, sec. 30, J. & A. ¶ 7154).

      4. Mechanics’ liens, § 130

      —burden of apportionment. Where after a sale of premises under foreclosure it is found that the net proceeds were not sufficient to satisfy both the liens of the complainant under a trust deed and that of a cross-complainant under a mechanic’s lien, and it becomes necessary to take further evidence to ascertain the proper proportionate amount of such proceeds to which each party is entitled, the burden of showing what amount of the proceeds the cross-complainant is first entitled to he paid upon his prior lien is upon cross-complainant, since the complainant’s lien is first in point of time.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foeie, Judge, presiding. Heard in the Branch Appellate Court , at the March term, 1914.
    Reversed and remanded.
    Opinion filed February 24, 1915.
    Statement by the Court. On August 20, 1913, the complainants, Nellie Albrecht and Moses E. Greenebaum, trustee, filed their bill of complaint against Sophie Buelow and others to foreclose a trust deed on certain premises in Cook county owned by Mrs. Buelow, which trust deed was executed and recorded in the year 1909. The defendant, Ferdinand Becker, answered the bill and also filed a cross-bill, in which he claimed a mechanic’s lien for a balance due of $20 for certain roofing materials furnished by him to and upon the dwelling house on said premises in the year 1912, and prayed that he be decreed a lien upon the premises, superior to complainants’ lien. The complainants in their answer to the cross-bill denied that Becker’s alleged lien was superior to the lien of said trust deed. The cause was referred to a master in chancery to take proofs and report the same together with his conclusions thereon.
    On the hearing before the master it was shown that there was due the complainant, Nellie Albrecht, as the legal holder of one principal note and certain interest notes, secured by said trust deed, the sum of $993.69 and also the sum of $75 as reasonable solicitor’s fees. On behalf of the cross-complainant, Becker, it was shown that, in pursuance of a written contract made with the owner of said premises on May 11, 1912, Becker agreed to furnish said roofing materials to and upon the building on the premises for the sum of $42; that he had furnished the same and fully performed his contract on or about May 13,1912, and had been paid thereon the sum of $22, and that there was still due him a balance of $20; and that in apt time he had filed with the clerk of the Circuit Court of Cook county a statement of his claim for a lien and had paid the sum of $1 as a filing fee. One of the witnesses called on behalf of said cross-complainant testified that the putting of said roofing materials on said house enhanced the value of said premises to the extent of $200. No further evidence on this point was offered by either party.
    The master in his report found that there was due and unpaid to the complainant, Nellie Albrecht, the sum of $993.69, and also the sum of $75 for solicitor’s fees. He also found that Becker was entitled to a lien upon the premises for the balance of $20, together with the further sum of $1 for filing said statement of claim for lien, but that “such lien is second and subsequent to the Hen of the complainant, Nellie Albrecht.” As reasons for this last-mentioned finding he stated in his report that “upon the hearing testimony was offered on behalf of said cross-complainant that the roof placed on said house by said cross-complainant improved or increased the value of the premises in question to the extent of $200, but no evidence was offered as to the value of said premises before said roof was applied, nor as to the value of said premises after said roof was applied, so that there is no basis in this record upon which any percentage of increase can be figured. ’ ’ The master further found that all material allegations of complainant’s bill of complaint had been proven and were true, and that she was entitled to the relief prayed therein. He recommended that the usual decree of foreclosure be entered in accordance with the prayer of said bill and his findings.
    The cross-complainant, Becker, filed objections to the report of the master, among which are (a) that the master has found that the lien of the cross-complainant is second and subsequent to the lien of the complainant; (b) that he found that “there is no basis in this record upon which any increase can be figured,” thereby, in connection with his other findings, “placing upon this cross-complainant the burden of proving to what extent the complainant’s lien is a first lien, when as a matter of law the burden of proof thereof was on the complainant, and when such proof may be made after sale and prior to distribution”; and (c) that he failed and refused to find that the lien of this cross-complainant is a first lien on the improvements (superior to the lien of the complainant) “to the extent of the increased value of the improvements, caused by the labor and materials furnished by cross-complainant on said premises.” The objections were overruled by the master, and after the report had been filed in court the objections were ordered to stand as exceptions.
    On December 23, 1913, the court entered a decree of sale, overruling the exceptions and approving the master’s report and finding that there was due the complainant, Nellie Albrecht, upon said notes and under and by virtue of the terms of said trust deed, the sum of $993.69, and also the further sum of $75 for solicit- or’s fees, or the total sum of $1,068.69; that she had “a first and prior lien” for said sum upon said premises, and was “first entitled to he paid the same,” together with interest thereon except as to said solicit- or’s fees, “out of the proceeds of any sale of said' premises”; that there was due said cross-complainant, Becker, the sum of $21; that he had a lien for said sum upon the premises, subject to the lien of said complainant, and was next entitled to be paid said sum, together with interest, out of the proceeds of any sale of the premises; and the court ordered and decreed that unless the defendant, Sophie Buelow, or some of the defendants, within two days pay or cause to be paid the complainant the said sum of $1,068.69, interest and costs, the premises be sold by the master in the usual manner, and that the master, out of the proceeds of the sale, retain his fees, etc., pay the costs, and out of the remainder pay complainant the amount found to be due her, together with interest except as to said solicitor’s fees, and if such remainder be not sufficient to pay said amount and interest that he apply the same to the extent to which it may reach in satisfaction thereof, and report the amount of the deficiency, and if the remainder be more than sufficient to pay said amount and interest that he hold the surplus subject to the further order of the court, etc. To the entry of this decree the cross-complainant, Becker, immediately prayed and was allowed an appeal and the same was subsequently duly perfected.
    P. R. Barnes, for appellant; W. P. Quinby, of counsel.
    Joseph G. Straus, for appellees.

      See Illinois Notes Digest. Vols. XI to XV, and Cumulative Quarterly, same topic and section' number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

The cross-complainant, Becker, seeks by this appeal to reverse the decree and, in substance, assigns as errors that the court erred (1) in overruling the exceptions to and approving the master’s report; (2) in finding that complainant had a first and prior lien for the sum found due her, and was first entitled to be paid out of the proceeds of any sale of the premises, and that Becker’s lien was subject to her lien; (3) in not finding that Becker had a first and superior lien upon the improvements on said premises, for the sum found due him, “to the extent of the increased value of such improvements” caused by the labor and materials furnished by him; (4) in decreeing distribution of the proceeds of sale before the court could ascertain whether or not such proceeds would be sufficient to pay the liens of both complainant and cross-complainant in full; and (5) in not decreeing a sale of the premises without distribution until the further order of the court and directing the master to report the proceeds of the sale to the court. It is contended that upon the coming in of such report, if it was found that such proceeds were sufficient to pay both liens in full, the court should order the proper distribution of the proceeds; that if it was found that such proceeds were not sufficient to pay both of said liens in full, the court should refer the cause back to the master to take proofs as to the value of the land at the time of the making of cross-complainant’s said contract with the owner of the land, and as to the value of the land after the making of the improvements by said cross-complainant thereon, and to report his recommendations as to the proper proportionate amounts of such proceeds to be paid to complainant and cross-complainant respectively.

Section 16 of the present Mechanics’ Liens Act, in force July 1, 1903 (J. & A. ¶ 7154), provides in part as follows:

“No incumbrance upon land, created before or after the making of the contract under the provisions of this act, shall operate upon the building erected, or materials furnished until a lien in favor of the persons having done work or furnished material shall have been satisfied, and upon questions arising between incumbrancers and lien creditors, all previous incumbrances shall be preferred to the extent of the value of the land at the time of making the contract, * and the lien credit- or shall be preferred to the value of the improvements erected on said premises, * and the court shall ascertain by jury or otherwise, as the case may require, what proportion of the proceeds of any sale shall be paid to the several parties in interest.”

The above quoted proportion of section 16 of the present Act is substantially the same as section 20 of the “Liens” Act of 1845, and also substantially the same as section 17 of the “Liens” Act of 1874, with the exception that in both of said sections of the prior acts the words contained in the present section 16, included between the asterisks above shown, do not appear. In the “Mechanics’ Liens” Act of 1895 it was provided in section 16 thereof that the lien creditors should be preferred to the extent that the market value of the land was “enhanced” by reason of the improvements, and further that where, after a trust deed or mortgage has been recorded, contracts shall be made for the improvement of the property, and the owner shall pay for labor or material in such improvement, “the enhanced value thereby given shall be treated as a fund in which the mortgagee and lien-holder shall participate pro rata.” When the present new Act was passed in 1903 the said sections of the Acts of 1845 and 1874 were substantially re-enacted with the addition of the said clause, “and the lien creditor shall be preferred to the value of the improvements erected on said premises.”

In the case of Raymond v. Ewing, 26 Ill. 329, 343, decided in 1861, it is said: ‘ ‘ The deed of trust constituted a first lien upon the premises, and improvements thereon at the time the trust deed was recorded; but the statute gives the mechanics and material men liens, paramount to the trust deed, upon the improvements made by them upon the premises, and the court should have ascertained, by reference or otherwise, the value of these improvements as compared with the whole value of the premises, and given to the petitioners in the lien suit their due proportion of the proceeds of the premises, according to the provisions of the statute.” In the case of Smith v. Moore, 26 Ill. 392, 396, our Supreme Court, speaking of section 20 of the Act of 1845, said that under the section the prior incumbrancer “must look alone to the property as it was, before the mechanic’s or material man’s lien attached, and they must look to the improvement or materials, unless the proceeds of the sale is sufficient to- satisfy both, or there is a surplus of either fund, which, if necessary, may be applied to the satisfaction of the other lien.” See, also, North Presbyterian Church v. Jevne, 32 Ill. 214, 220.

In the case of Croskey v. Northwestern Mfg. Co., 48 Ill. 481, decided in 1868, the above mentioned cases were cited with approval. In this Croslcey case, a petition to establish a mechanic’s lien was filed against Croskey, as the owner of the fee, and certain other parties as mortgagees. A decree was rendered, directing a sale of the premises and establishing the relative order of the liens. The decree provided, inter alia, that the master should take testimony and report to the court the relative value of the land and improvements, and should bring the proceeds of the sale into court, to be distributed according to the respective priorities of the liens, the court first determing the relative value of the lands and the improvements. The court said (p. 483): “By the term ‘land,’ in this section of the statute, must, of course, be meant the land with such improvements as there are upon it at the time of the execution of the mortgage. If, for example, the owner of unencumbered realty, with a building upon it, executes a mortgage thereon, and afterwards has repairs made upon the building, for which a mechanic’s lien is enforced, such lien would take priority over the mortgage only to the extent of the additional value given to the property by the improvements. Thus, if, to a house and lot worth $15,000, and subject to a mortgage, additions or improvements are made by the mortgagor in such mode as to make the premises worth $18,000, the mechanics and material men engaged in making these improvements would have a prior lien to the extent of three-eighteenths of the proceeds of the sale, and the increased marhet value added to the property would measure the extent of the priority of their lien, without reference to the cost of the materials or labor actually furnished.”. The Court goes on to say that the lower court, in the decree of sale, had, probably from inadvertance, given the lien claimants a prior lien upon all the buildings and improvements upon the lot, although it was quite evident from the bill that the materials had been furnished for the improvement of a building already upon the ground. It also appears from the opinion that the decree of sale in said Croshey case, after thus establishing the extent of the lien, directed the master to make the sale, and to take evidence and report to the court the comparative value of the land ánd the improvements at the time of the sale. It further appears that it was contended that this evidence should have been taken before rendering the decree of sale, but the court said (p. 484): “We see no good reason for not allowing the master to take the evidence after the sale, and on some accounts the inquiry at that time would be more satisfactory.” The court further said that the decree of sale was faulty “in not determining the relative priority of the liens, with reference to the improvements, with more precision. The court should have ascertained at what time the improvements were commenced for which the materials of complainants were furnished, and should have given to the prior mortgagees a paramount lien on the property as it stood when such improvements were commenced, and to the complainants a paramount lien on the improvements towards which they furnished materials, and should have directed the master to inquire into the comparative value of the property before and after the improvements were made.” In the case of Howett v. Selby, 54 Ill. 151, decided in 1870, Hall, the owner of certain premises, made improvements thereon, and various mechanics’ liens attached therefor, and proceedings were commenced to enforce these liens, Howett, a prior mortgagee, being made a party defendant. Howett set up his mortgage in a cross-bill. The lower court, after hearing the proofs, found that seven twenty-fifths of the present value of the premises was the increased value on account of the improvements, for which the liens attached, since the execution of the mortgage; and the court decreed that the premises be sold, and that eighteen twenty-fifths- of the proceeds of the sale be first applied in payment of the mortgage, and that seven twenty-fifths of the proceeds be applied in payment of said liens, and that any surplus of said seven twenty-fifths of said proceeds, after discharging said liens, be applied, first, on any balance due on said mortgage, and the remainder, if any, be paid to the owner, Hall. The decree was affirmed.

It thus appears from these cases that, under section 20 of the Act of 1845, where the owner of land improved by a building thereon, which are incumbered by a mortgage, has improvements or repairs made upon the building for which a mechanic’s lien is enforced, such lien is paramount to the lien of the mortgage to the extent of the increased value of the premises by reason of the improvements or repairs. And it also appears from these cases that, after it has been determined that the mechanic has a lien, and in what amount, and that his lien is superior to the lien of the mortgage as to a portion of the premises as improved, it is not necessary, though proper, for the court to determine, before entering a decree of sale, what proportion of the proceeds of the sale shall be paid to the lien holder and what to the prior mortgagee. The proper proportion may be ascertained by the taking of evidence after the sale. And the taking of this evidence may be unnecessary, where the property sells for enough to satisfy the lien of the mortgagee and that of the mechanic in full. Inasmuch as section 16 of the present Act does not differ materially from section 20 of the Act of 1845, we think that these rulings are applicable to the present act.

In the case of Grundeis v. Hartwell, 90 Ill. 324, decided after the Act of 1874 was passed, a petition was filed by Hartwell to enforce a mechanic’s lien for materials furnished for the erection of a building on a lot owned by Albert and Augustus Grundeis. Bose Forrester held a first mortgage for $15,000, and Christiana Grundeis a second mortgage for $20,000, on the lot, and they were made parties. Each of these mortgages was a lien upon the lot before the building was erected and before the materials were furnished by Hartwell. In the decree of sale the lower court found the value of the building, but did not find the value of the lot and failed to determine the proportion of the proceeds of the sale to which the parties were entitled, and decreed that out of the proceeds of the sale the master should pay, first, petitioner the whole amount of his claim, and then pay the claim of Bose Forrester, and lastly, the claim of Christiana Grundeis. The Supreme Court held that this was error and reversed the decree and remanded the cause for further proceedings.

In the present case, it appears from the uncontradicted evidence that the roofing materials, furnished the building by the cross-complainant, Becker, had increased the value of the premises to the extent of $200, and that he was entitled to a mechanic’s lien on said premises for the sum of $21. Yet the court, on the recommendation of the master, entered a decree of sale finrling that complainant had a “first and prior lien” on the premises for the amount found due under the notes and trust deed, and was 11 first entitled to be paid the same” out of the proceeds of the sale, and further finding that said cross-complainant had a lien on the premises for said sum of $21, subject to the lien of complainant, and was next entitled to be paid said sum out of said proceeds. And the court, doubtless through inadvertence, decreed that unless the defendant, Sophie Buelow, or some of the defendants, within two days, paid complainant the sum found due her, together with interest and costs (no mention being made as to paying cross-complainant the sum found due him) the premises be sold in the usual manner, and further decreed that the master out of the proceeds should first retain his fees and pay the costs, and out of the remainder should pay complainant the amount found, due her, or so much thereof as the remainder of the proceeds allowed, and that if said remainder was more than sufficient to pay complainant (no mention being made of cross-complainant) the master should hold the surplus subject to the court’s further order. The effect of this decree was that in case the premises did not sell for more than enough to satisfy the costs, fees and expenses and the sum so found due complainant in full, the cross-complainant would receive nothing, although, as appears from the evidence and by virtue of the provisions of the statute as construed by the courts, he had a paramount lien to thaTt of complainant on the premises to the extent of the additional value given to said premises by the improvements or repairs made by him, and was first entitled to be paid, out of the net proceeds of the sale, a small amount. “The proceeds of the sale represent and stand in the place of the land and 'the building, and the parties have the same proportionate interest in the proceeds that they had in the property before it was sold.” Bradley v. Simpson, 93 Ill. 93, 95.

We are of the opinion that the court erred in entering the decree appealed from. We think that in this case the court should have ordered a sale of the premises by the master and directed the master to bring the proceeds of the sale into court, and that, after this was done, if it appeared that the net proceeds of the sale were not sufficient to satisfy in full the amount found due complainant and cross-complainant, the court should have ascertained, by reference or otherwise, the proper proportionate share of each in said net proceeds, and decreed distribution accordingly.

It is contended, in substance, by counsel for complainant that, because on the hearing before the master cross-complainant, after proving that he was entitled to a lien on the premises in the amount'of $21, and after showing that the improvements or repairs put by him on the building increased the value of the premises to the extent of $200, did not go further and show the value of the premises both before and after the making, of said improvements or repairs, and thereby disclose to the master a basis upon which could be figured the proportionate amount, to which cross-complainant would be entitled, of the proceeds of the sale of the premises, in case said proceeds would not be sufficient to satisfy the liens of both complainant and cross-complainant, the.master was justified in recommending, and the court in decreeing, that complainant was first entitled to have paid to her in full the amount found due her under said notes and trust deed. In view of the opinion in the Croskey case, supra, we do not think there is merit in the contention.

If, after a sale is made of the premises here in question, it is found that the net proceeds thereof are not sufficient to satisfy both the lien of the complainant and that of the cross-complainant, and it becomes necessary to take further evidence to ascertain the proper proportionate amounts of said proceeds to which each party is entitled, we are of the opinion that complainant’s lien being first in point of time, the burden of showing what amount of the proceeds cross-complainant is first entitled to be paid is upon the cross-complainant. See Farson’s Mechanics’ Lien Law 1902, sec. 121, p. 146.

The decree of the Superior Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Greeman Brothers Manufacturing Company for use of National Trust & Credit Company, Appellant, v. The M. L. Nelson Furniture Company, Appellee.
    Gen. No. 20,327.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of facts.
    Opinion filed February 24, 1915.
    Rehearing denied March 9, 1915.
    Statement of the Case.
    Action by Greeman Brothers Manufacturing Company, suing for the use of National Trust & Credit Company, against The M. L. Nelson Furniture Company for money due on an alleged assignment of accounts. From a judgment against the plaintiff in favor of the defendant, plaintiff appeals.
    Plaintiff’s statement of claim filed in the Municipal Court of Chicago in an action of the first class in contract stated that its claim for the use of the beneficial plaintiff was for the total sum of $2,557.77 due and owing for certain consignments of furniture sold and delivered to the defendant by the nominal plaintiff during the months of December, 1911 and January, 1912. An itemized statement showing the dates and the respective amounts of the various consignments was attached to the statement and made a part thereof. Interest was claimed on said total sum from February 1,1912.

      Abstract of the Decision.
    1. Municipal Coubt of Chicago, § 13

      —requirements of Practice Act. Under the Practice Act, ch. 110, sec. 55, (J. & A. If 8592), the defendant in its affidavit of defense is required to specify the nature of its defense, and to limit the issues to be tried to the defense set out in an affidavit.
    2. Payment, § 27*—hurden of proof. The burden of proving payment is upon the party pleading it.
    3. Municipal Coubt of Chicago, § 13*—insufficiency of affidavit of merits to raise issues. Where an affidavit of merits filed in the Municipal Court simply alleges that the defendant is not indebted to the plaintiff or to any one else, to the items and amounts set out in a statement of claim, and that the defendant “has heretofore paid” to the nominal plaintiff all of the various amounts for the merchandise set out in the statement of claim and that for said items neither the nominal plaintiff nor any one else has any claim against the defendant, held that the only defense set forth in the affidavit of merits is that of the payment, since the other allegations were mere conclusions, which did not meet with the requirements of the Practice Act, ch. 110, sec. 55 (J. & A. If 8592).
    4. Assignments, § 36*—evidence requiring recovery on. Where the reviewing court finds as facts that on a certain day defendant became and was indebted in a certain sum to the nominal plaintiff on certain accounts due and owing for furniture sold and delivered by said nominal plaintiff to said defendant, and that on said date said nominal plaintiff sold and assigned said accounts for a valuable consideration to the beneficial plaintiff, and that said defendant received notice of said sale and assignment of said accounts, and that said defendant had not at any time since said date made any payment on said accounts or for said furniture, and that said defendant was still indebted on said accounts and for said furniture to the nominal plaintiff, held that a judgment in favor of defendant would be reversed and judgment entered in the Appellate Court for said sum and interest accrued.

      Defendant’s affidavit of merits alleged that the defendant was not indebted to the nominal plaintiff or to any one else for the items and amounts as set out in said statement of claim, and that the defendant had heretofore paid to the nominal plaintiff all of the various amounts for the merchandise set out in said statement of claim, and that for said items neither the nominal plaintiff nor any one else had any claim against the defendant.
    John W. Creekmur, D. J. DeWolfe and Robert G. Dreffein, for appellant.
    Bunge & Harbour, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Theofila Galewski, Appellee, v. Clover Leaf Casualty Company, Appellant.
    Gen. No. 20,335.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiuey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Theofila Galewski against Clover Leaf Casualty Company upon an accident insurance policy. From a judgment against defendant for one thousand dollars in favor of plaintiff, defendant appeals.
    The insured died on October 21, 1912, and the suit was commenced on February 18, 1913. Paragraph “A” of the policy, entitled “Specific Losses,” was in part as follows:
    “If any of the following specific disabilities shall result solely from such injuries, within 60 days from date of accident, the Association will pay in lieu of all other indemnities under this policy.
    For Loss of Life....................Principal Sum, For Loss of Both Hands by Severance at or above the wrist.............'----Principal Sum, * * * ##### For Loss of Entire Sight of One Eye, if irrecoverably lost................1/5 Principal Sum.
    Abstract of the Decision.
    1. Insurance, § 110

      —effect of insurer’s failure to pay instalment accrued. In an action on an accident insurance policy, the failure or refusal of the insurer to pay the first instalment when it becomes due does not necessarily cause the entire principal sum to accrue.
    2. Insurance, § 502*—when policy not payable in lump sum. Accident policy construed as providing for payment of principal sum, in case of death due to certain causes, in monthly instalments and not in a lump sum.
    3. Insurance, § 667*—evidence insufficient to show death by accidental means. Where it appeared that the insured was driving in a buggy which was struck by a street car, the buggy apparently not being damaged nor the insured injured, and the insured subsequently drove away in the buggy, and after he had worked several days a physician was called who found him unconscious, the patient dying shortly thereafter, and the coroner’s verdict introduced in evidence stated he died from septic meningitis, by extension from septic otitis media, following injuries when his buggy was struck by a street car, the testimony conflicting as to whether his death was the result in whole or in part from the injuries claimed to be due to the collision, held that the evidence was insufficient to support a verdict on the theory that the insured’s death was caused through external, violent and accidental means.

      The payment of all amounts for specific disability in Paragraph ‘A’ shall be made to the insured or to his Beneficiary, if surviving, or in the event of her prior death, to the legal heirs of the insured in installments of Twenty-five Dollars on the first day of each month until the full disability claim is paid, * * *”
    The words “such injuries,” as used in paragraph “A”, apparently had reference to the preceding paragraph of the policy where it appeared that the insurance was “against Bodily Injuries, effected directly and independently of all other causes and solely through external, violent and accidental means (suicide whether sane or insane is not covered).”
    Bradley, Harper & Eheim, for appellant; Samuel A. Harper, of counsel.
    S. P. Douthart and Fred C. Smith, for appellees; Guerin & Barrett, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

4. Pusadotg, § 200 —operation of demurrer to admit facts only well pleaded. Where an accident insurance policy was set out in the declaration in haee verha, and from such policy it appeared that only a portion of the amount claimed could be due under its terms, a demurrer will not admit the amount claimed as a fact, since it does not appear to be a fact on the whole record, apart from the rule that a demurrer does not admit the amount claimed in the declaration.


text:
    Abe Korn, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 20,362.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. W. Fenimobe Coopeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Abe Korn against Chicago Railways Company for damages for personal injuries. • From a judgment for $1,625 against defendant in favor of plaintiff, defendant appeals.

      Abstract of the Decision.
    Damages, § 124

      —amount of verdict for troteen leg and permanent injuries. Where plaintiff sustained a fracture of the fibula of his left leg and other injuries through a fall from a street car which he was attempting to hoard when it started out with a jerk, and his leg was in a cast for two months and it appeared that he suffered great pain, and medical experts testified as to the accident and permanent character of the injuries, to his leg, held, under the evidence, a verdict for $1,625 was not excessive.
    Charles L. Mahony and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams. of counsel.
    Brown, Brown & Brown, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Smith

text:
    Pat Duggan, Plaintiff in Error, v. Wells Brothers Company, Defendant in Error.
    Gen. No. 19,319.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 24, 1915
    Statement of the Case.
    Action by Pat Duggan against Wells Brothers Company for personal injuries received while employed in constructing a building. From a judgment -on the verdict against plaintiff in favor of defendant, plaintiff brings error.

      Defendant was engaged in the construction of a building and at the time of the accident was making a trench or ditch some six or seven feet wide and sixteen feet deep. The sides of the trench were shored with perpendicular planks which were held in place by cross-timbers or drums. The material was hoisted from the trench by means of a bucket attached to a rope suspended from a windlass.
    On the day of the accident and for some days prior thereto, plaintiff had been working on concrete work near thé trench. At the close of the day’s work on concrete he was directed by his foreman to work overtime in the trench, and was told where he could get wading boots. This was the first excavating work he had done on this building. About seven-thirty o’clock, with a fellow-workman, Conroy, plaintiff Duggan came to the trench, and his foremán said: “Boys, let’s go down, and let’s hurry up with the stuff.” Duggan and Conroy thereupon climbed down into the trench on the drums, and Conroy, who was to dig, went into the section next south of the one in which the bucket was let down. As Conroy dug the clay he passed it between the drums to Duggan, who placed it in the bucket. When the bucket was filled Duggan signaled to the men above to hoist it. The section in which Duggan worked contained water a foot in depth, and there was a hole in the bottom where the water was about three feet deep. The bucket stood in the water while it was being filled, and not being watertight, water drained from it as it was hoisted. The easterly side of the section in which Duggan worked was partially covered with the temporary platform, there being a space of two and one-half feet square to let the bucket through, and spaces between the planks of three or four inches. The part near the western bank of the trench was uncovered.
    One bucket had been filled with clay, and as it was being hoisted, Duggan stepped back towards the western bank to escape the water falling from the bucket. While waiting for the bucket to be dumped, Duggan reached for a floating piece of board to put under his feet. At that point of time a hard object from above fell on his head and rendered him temporarily unconscious. Conroy heard his cry, and, with the assistance of the men above, lifted him out of the trench. Blood was flowing down his face from a cut in his head. He was taken to a physician’s office and it was found that his skull was fractured.
    No one saw the object which fell upon Duggan. But while he was in the trench the defendant moved a thirty foot steel girder by means of a derrick over the place where he was working. The girder had laid at the base of a brick wall, and was covered with broken brick and other debris. While the girder was being hoisted and moved over the windlass, one end of it struck an upright column with sufficient force to jar the ground. Loose brick and other debris were scattered along the sloping sides of the trench in a position to be knocked or pushed into the trench. Men handling the derriqk, and others, who were putting electric lights into the trench, were passing along the sides of the trench at the time of the accident.
    The negligence averred in four counts of the declaration in various forms was that the defendant failed to cover or protect the trench properly to prevent the loose stones and brick along the trench and over it from being brushed or shoved or dropped into the trench where plaintiff was working.
    McCaskill & McCaskill, for plaintiff in eror.
    F. J. Canty and P. L. McArdle, for defendant in error; J. C. M. Clow, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Instructions, § 150 -—propriety of limitation of number. The practice of tendering to a trial court a large number of instructions is to be condemned by every sound canon of legal ethics pertaining to the trial of causes, since it tends to mislead the jury and to produce unjust results and to inject errors into the record, imposing an unnecessary burden on trial and reviewing courts.

2. Negligence, § 187*—sufficiency of circumstantial evidence to establish. In an action for a fracture of the skull sustained by plaintiff, where the evidence as to what fell upon and injured him was wholly circumstantial, but there could he no doubt that a brick or some material did fall upon him from above, and from all the facts and circumstances shown by the evidence it was a fair and reasonable inference that the object would not have fallen upon him if there had been some guard around the edge of the trentih to prevent loose material from being knocked or shoved into the trench by other workmen who were at work around the trench in which the plaintiff was working under orders from the defendant, or if the trench had been covered with planks, there being no such guards or covering and plaintiff not being in a position to know how extensive the work might be carried on above him, or whether any work would be carried on while he was in the excavation which would affect his safety or expose him to peril from above, held that a verdict in favor of the defendant was manifestly against the evidence, since defendant knew all the facts and controlled the operations above plaintiff and, if there was danger of obstacles falling upon the plaintiff as result of the operations above, it was the duty of the defendant, in the exercise of ordinary care for the plaintiff, to discontinue such work or to guard plaintiff against such danger, the neglect on the part of the defendant to discharge this duty being shown by the evidence.

3. Master and servant, § 137*—what degree of care required of employer in building construction. In an action by an employee for personal injuries received while working upon the construction of a building, held erroneous to instruct the jury that where a servant works at a particular place under orders from his superior, the master is not bound to take more care of the servant than the servant is bound to take of himself.

4. Master and servant, § 137*—rule as to safe place to work as applied to building construction. In an action for personal injuries by an employee engaged in constructing a building, an instruction that the jury might find for the defendant if they find that the inferences in favor of a pure accident are reasonable and logical, whether such inferences were supported by a preponderance of the evidence or not, held erroneous, since it was the duty of the defendant to exercise reasonable care to provide the plaintiff with a reasonably safe place in which to work, the defendant having ordered the plaintiff to work in the trench and the work which plaintiff was doing in the trench not creating any danger or making any changes in the risk of plaintiff’s work as it progressed.

5. Master and servant, § 137 —when safe place to work rule applies to building construction. An instruction to the jury that the general rule of law which ordinarily obliges the master to exercise ordinary care to furnish a servant with a reasonably safe place in which to work does not apply in cases where the work the servant is employed to do is in connection with construction and demolition of buildings, if of such a nature that the character of the surroundings and situation is continually changing, held misleading as applied to the evidence in the case.

6. Master and servant, § 410*—where negligent order immaterial. In an action to recover for personal injuries received by an employee in connection with the construction of a building, where the negligence averred in certain counts of the declaration was the failure of the defendant to place any covering or protection over an excavation to prevent loose stone and other material being knocked or pushed or dropped into it while the plaintiff was working therein, held that the court erred in instructing the jury that under such counts of the declaration plaintiff must prove a negligent order to entitle him to recover.