author: Mr. Presiding Justice Smith

text:
    John G. Kircher, Plaintiff in Error, v. M. Keating & Sons Company et al., Defendants in Error.
    Gen. No. 12,908.
    1. Appeals and errors—effect of joinder in error. Joining in error waives irregularities in suing out a writ of error.
    2. Appeals and errors—status of “unknown owner.” A party joined in an action not by name but as an “unknown owner” may prosecute a writ of error in Ms own name.
    3. Service by publication—when affidavit as to “unknown owners” insufficient. An affidavit as to “unknown owners” is insufficient which, first, instead of saying that the defendants cannot be found, states that the name or names of said persons cannot be found, and second, instead of saying that the place of residence of the defendants is not known and that upon “diligent inquiry”, as required by statute, “their places of residence cannot be ascertained”, states that on “due inquiry” the place or places of residence cannot be ascertained.
    4. Service by publication—how statutory procedure must be followed. In order to confer jurisdiction upon “unknown owners” by publication the statutory procedure must be observed and followed exactly.
    5. Mechanic’s hens—when do not affect encumbrances. Trust deeds securing loans made and recorded prior to the making of contracts by the owner for the improvement of the property covered by such trust deeds, are not affected or disturbed by the subsequent improvements or betterments made pursuant to such contracts.
    Mechanic’s lien. Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge presiding; Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed December 4, 1908.
    Petition for rehearing dismissed for want of notice.
    Carl R. Chindblom, for plaintiff in error.
    Dunn & Hayes and Charles H. Pease, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This proceeding brings before us the record and decree in the foreclosure of two mechanics’ liens in the Superior Court of Cook county, aggregating $1,330.47 with interest, costs and attorneys’ fees.

It appears from the record that George R. Gott owned the four pieces of property involved on October 15 and 25,1901, when the contracts were made with the Central Lumber Company and M. Keating & Sons Company, defendants in error, to furnish the lumber and mill-work necessary to complete the buildings, and to furnish eight consoles for the same. The lumber and mill-work furnished. amounted to $1,259.28. On this amount $228.81 was paid, leaving a balance due on this claim of $1,030.47 for which a lien is claimed. The contract price with,, M. Keating & Sons Company for the consoles put in was $300, for which a lien is also claimed.

When these contracts were made by the owner with the lienors, the four properties in question were subject to twelve trust deeds or mortgages, three on each lot and building thereon, given to secure a part of the purchase money of the land, and money borrowed by the owner as a building loan to construct the buildings. Eight of these trust deeds, two upon each property, conveyed respectively the properties to defendant in error, Edward G. Pauling, as trustee, to secure the payment of the building loan, and four of the twelve trust deeds, one upon each property, conveyed respectively the properties to defendant in error, Axel Chytraus, as trustee, to secure part of the purchase money of the land. Plaintiff: in error owns a note of $3,500 secured by one of the trust deeds to Edward G. Pauling.

The proceedings were commenced by the filing of a petition by M. Keating & Sons Company, a corporation, on February 6, 1902, to establish and foreclose a mechanic’s lien upon these four adjacent properties for $300, or $75 on each of the premises, and George E. Gott and Ada B. Gott, his wife, Edward G. Pauling, trustee, Axel Chytraus, trustee, and the “unknown owners” of the notes secured by the several trust deeds were made parties defendant. Gott and his wife and Pauling and Chytraus were personally served and answered. Substituted or constructive service only, based on an affidavit, was made on the “unknown owners”, none of whom appeared. The Central Lumber Company was not then a party defendant. It was given leave later, on April 15, 1902, to file its answer instcmter, and it filed an answer setting up its claim for a mechanic’s lien for the amount above mentioned with interest, and praying that its lien be established. The “unknown owners” were all defaulted on May 9, 1902, on publication made from February 11,1902, to March 4, 1902.

Upon a reference the master in chancery reported the testimony taken before him and the exhibits, and his findings; and on February 18,1903, the court entered a decree finding that on and prior to October 25, 1901, George E. Gott was the owner of the premises, and that on that date he made a contract with the petitioner, M. Keating & Sons Company, to furnish and set in place eight consoles, two in each building, and that this work was completed on November 25, 1901, and petitioner was entitled to a lien for a total of $300 with interest thereon from December 21, 1901, and for ten per cent, on that amount for solicitors’ fees for the enforcement of said lien.

The decree also finds that on or about October 15, 1901, the Central Lumber Company contracted with Gott to furnish lumber and mill-work necessary to complete the buildings,' and that the Lumber Company completed its contract on November 20, 1901, and that on February 20, 1902, there was due it a balance of $1,030.47 for which, with interest and like solicitors’ fees, it was entitled to a lien.

The decree also finds that the trust deeds to Pauling as trustee, were executed and delivered on May 14, 1901, each securing the payment of a note for $3,500 bearing interest at six per cent.; and also, that on the same date four other trust deeds to Pauling were executed and delivered, each securing a note of $250 with interest at the same rate; that all these trust deeds were duly filed for record respectively on June 14 and June 17, 1901; that the four trust deeds to Chytraus were executed and delivered on April 17, 1901, one on each of said properties, and each securing the payment of one note of said Gott for $500 with like interest; that the court is unable to determine, because there is no competent evidence, whether said papers represent any present indebtedness or not, but the decree finds that the liens of the trust deeds, if they are liens, are prior and superior to the said mechanics’ liens to the extent of the value of the land at the time of the making of the respective contracts of said lienors; and that the liens of said lienors are prior and superior to the liens of the trust deeds upon the buildings erected upon the land.

These proceedings in error are irregular and without precedent. The plaintiff in error sued out this writ of error, in his own name alone, against his co-defendants below, and the original petitioner. No objection, however, is made to the prosecution of the writ on the ground of such irregularity, and all defendants in error have waived the irregularity by joining-in error. The motion of defendant in error M. Keating & Sons Company to dismiss the writ of error, and reserved to the hearing, is based on other and wholly insufficient grounds, and must be denied.

Plaintiff in error was made a party to the cause, not by name, but as an unknown owner. He may prosecute this writ of error in his own name. Unknown Heirs, etc., v. Rouse, 3 Gilm. 408. He questions by his assignment of errors the jurisdiction of the Superior Court to hear and determine the cause on the ground that the affidavit filed as the foundation of the notice given to “unknown owners” was insufficient. Cross errors are also assigned raising the same question.

Section 12 of chapter 22 of the Revised Statutes provides that upon the filing of an affidavit by any complainant or his attorney, showing that any defendant, * * * “on due inquiry cannot be found”, * * * “and stating the place of residence of such defendant if known, or that upon diligent inquiry his place of residence cannot be ascertained”. Section 7 of the same chapter provides for making unknown owners, who are interested in the lands title to which is sought to be obtained in suits in chancery, parties to said suits or proceedings by the name and description of unknown owners, etc., and for notice by publication as required in the Act.

The affidavit filed in this cause in the attempt to comply with the provisions of the above sections of the statute, after other statements not material in this connection, says: “Affiant further says that on due inquiry the name or names of said persons cannot be found and on due inquiry the place or places of residence of said persons cannot be ascertained.”

This affidavit, in our opinion, does not comply with the provisions of the statute. Instead of saying that the defendants cannot be found, the affidavit states that the name or names of said persons cannot be found. Instead of saying that the place of residence of the defendants is not known, and that upon “diligent inquiry” as required by the statute, “their places of residence cannot be ascertained ’ the affidavit states that on “due inquiry” the place or places of residence of said persons cannot be ascertained. "Where a court is exercising an extraordinary power under a special statute prescribing its course of proceeding, that course must be observed and followed exactly, in order to show that its proceedings are coram judice. Haywood v. Collins, 60 Ill. 328; Galpin v. Page, 18 Wall. 350. The facts which give jurisdiction over the person of the defendant ought to appear of record, and if they do not appear the decree may be questioned in both direct and collateral proceedings. Clark v. Thompson, 47 Ill. 26; Schnell v. City of Chicago, 38 id. 383; Morris v. Hogle, 37 id. 150.

It appears from the record that the four trust deeds executed to Axel Chytraus, trustee, each secured two notes for $500 each, making $1,000. There is no controversy or dispute as to this fact in the record. The decree finds that each of said trust deeds was given to secure one note for the sum of $500. This is a substantive and material error.

At the time the contracts of October 15 and 25, 1901, were made with the lienors, respectively, the several buildings upon which the decree establishes a lien had been nearly completed. The liens of the lienors under the provisions of Section 1 of the Act to revise the law in relation to mechanics’ liens approved June 26, 1895, which governs this proceeding, attached as of the date of the contracts respectively; and the lien extends only to the estate or interest the owner may have in the lot or land at the time of making the contract, or may acquire subsequently. By Section 16 of that Act, it is provided: “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 mortgage and lien-holder shall participate pro rata.”

The trust deeds to Pauling and Chytraus, trustees, were executed and recorded in April, May and June, 1901, long before the lien claimants made their contracts in October, 1901. The status of the property, therefore, with respect to the encumbrances existing on the days when the lien claimants made their contracts is not to be affected or disturbed, under the provisions of the statute, by the subsequent improvements or betterments. This accords also with the principles of equity, for, the lien should not be given such a retroactive effect or force that it would diminish the security of the mortgagees as it existed at the date of the contract. The mortgagees having put their money into the buildings, whereby the buildings had been brought to the point of completion where they were at the dates of the lien claimants’ contracts, are not, by the statute, and should not in equity be disturbed or affected as to their security by the making of new contracts for additional work or materials.

This order of priority, as decreed, is obviously, we think, contrary to the provisions of the mechanics’ lien law and is inequitable.

For the errors indicated the decree is reversed and the cause is remanded for further proceedings in accordance with the views here expressed, the costs of this court to be taxed against the lienors.

Reversed and remanded.

Mr. Justice Chytraus took no part in the consideration of this case.


source: Caselaw Access Project

license: Public Domain

text:
    Gerhard H. Hinrichs, Executor, Appellee, v. Consolidated Adjustment Company, Appellant.
    Gen. No. 13,945.

      Contracts—when consideration does not fail. The consideration for a contract does not fail so that it may be recovered back if the contract in question is in force and may ultimately be fulfilled by the party from whom such consideration is sought to be recovered.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed December 4, 1908.
    Delavan B. Cole, for appellant.
    Rosenthal, Kurz & Hirschl, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

February 23, 1907, a judgment in assumpsit was recovered in the Circuit Court by appellee Alice L. Hinrichs against appellant for $187.97. The action was brought on the following contract:

“Series AA. No. 17400.

Consolidated Adjustment Co. (Incorporated.)

Commission Rates:

On adjustments of over $100.00, 10 per cent.

On adjustments of over $25.00 to $100, inclusive, 15 per cent.

Adjusters of claims of Every Description Everywhere.

On adjustments of $25.00 or less, 25 per cent.

Law Loans and Adjustments, 79 Dearborn St., Chicago.

This certifies that. G. H. Hendricks, Agt. of Los Angeles, California, paid the Consolidated Adjustment Co. $187.97 for a three year servitude from this date, with all benefits and privileges of its business system in its various departments, and The Consolidated Adjustment Co. agrees to promptly and faithfully prosecute any and all claims listed with it for adjustment under terms of this contract.

Guarantee.

This company agrees to recover in cash or secured net settlements from the claims of the above client at least $497.92 within and under the terms of the above contract; or to refund the full initial fee paid, reserving the right to cancel the contract, refund the initial fee and surrender the claims of the above client, at any time after six months from this date; or to continue such service beyond the term first in this instrument mentioned, and until said last mentioned sum shall have been so recovered, without additional cost to the above client, except commissions on adjustments effected, on said claims or any additional claims in favor of said client, which may be forwarded.

Received of G. H. Hendricks ($187.97) One Hundred Eighty-seven 97/100 Dollars as payment in full on a three year $497.92 contract and guarantee from Aug. 8, 1903, to Aug 8, 1906.

Dated August 1, 1903.

Consolidated Adjustment Co.

By J. A. Patten, Agent.

Note. This contract to be valid must have a coupon attached at time of issue which must correspond in every particular with terms of contract and guarantee to be signed by client and mailed direct to Chicago Office.

(The printed terms and conditions of this contract are not subject to any change or modification whatever.)

This company agrees to at all times confine its process within the limits of the law.

This contract to be issued for a period of not less than three years.”

The record shows that some time after the contract was executed, appellant received for collection a memorandum of a note against Frank M. Bradshaw for $9,000. Bradshaw was a brother-in-law of appellee and had borrowed from her that amount of money and had given his note therefor. The original note was retained by appellee and was never given to appellant.

After some effort appellant located Bradshaw in New York, and placed the claim in the hands of its attorneys there for collection. They reported that Bradshaw was of doubtful financial standing, and they had been unable to learn anything definite concerning his business. They advised placing the claim in judgment and asked a remittance of $25 to cover costs. They also advised that it would be necessary to procure a bond in the sum of $250 as security for costs. Appellee was notified of these facts, and that inasmuch as the claim would soon outlaw, it would be advisable to put the same in judgment, and appellant requested appellee to forward costs and send the original note to appellant and arrange for cost bond.

Appellee replied to appellant’s letter that she did not care to place the note in judgment, and refused to forward the original note to appellant. She requested appellant to cancel the contract upon payment for services rendered. Appellant refused to cancel the contract and insisted upon reducing the claim to judgment.

On June 10, 1905, appellant again wrote to appellee, urging her to forward the note and provide for placing the claim in judgment, and that if appellee would assist in that regard it expected ultimately to recover at least the amount of the guaranty, mentioned in the contract. Before anything further could be done Bradshaw left New York and went to Mexico, where appellant succeeded in locating him. A letter from Bradshaw to appellant states that he was located at the city of Juanajuato, and that he expected to realize large profits from a mining deal in which he was interested. No other claims were filed with appellant; and appellant being unable to make any progress in collecting the note during the three year period notified appellee of its election to continue the service under the contract beyond the three year period. Appellant has continued its service since the expiration of three years, and was actively engaged in the prosecution of the claim when this suit was brought to recover the initial fee of $187.97 paid by appellee to appellant.

Upon a consideration of the evidence in the record we are of opinion that it fails to show a breach of the agreement on the part of appellant, and therefore fails to show a right of recovery by appellee. The evidence shows that the appellant exercised' the option “to continue such service beyond the term first in this instrument mentioned, and until said last mentioned sum (497.92) shall have been recovered, without additional cost to the above client, except commissions on adjustments effected”, etc. The contract is therefore in full force and appellee is not entitled to recover the initial fee paid by her to appellant.

The judgment of the Circuit Court is reversed with a finding of facts.

Reversed with finding of facts.


text:
    Richard Yeates, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 14,184.
    1. Customs—how proof of may he made. The usual manner of conducting a business at the place of an accident established by-rule or rules duly promulgated by persons in authority or growing out of the practice of employes long-continued, is competent to be shown as shedding light on the acts and conduct of the parties and has a bearing on the question of negligence.
    2. Negligence—when conduct of switch-tender question for jury. Held, that in view of the specific circumstances of the case shown by the evidence, including a severe snow storm which was prevailing at the time of the accident in question, and the consequent condition of the atmosphere, making it impossible to see but a very short distance, it was a question for the jury to determine whether the defendant’s switch-tender was guilty of negligence or not in throwing switches and signalling the switch crew, of which plaintiff was a member, to proceed in a particular direction upon a particular track.
    3. Negligence—when switch-tender guilty of. Held, under the evidence in this ease, that the jury were justified in finding that it was negligence on the part of a switch-tender not to halt a train but to send it forward ahead of the usual time.
    4. Negligence—when proximate cause of injury. Negligence is the proximate cause of an injury if it appears that but for such negligence the injury would not have happened even though not the nearest cause in the order of time.
    5. Master and servant—who not fellow-servants. A switchman under the orders of a conductor is not a fellow-servant of such conductor.
    6. Torts—what does not discharge joint tort-feasor. A covenant not to sue one of two joint tort-feasors is not a bar to a suit against the other.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed December 4, 1908.
    Statement by the Court. This is an appeal from a judgment of the Circuit Court for $22,500 in favor of Richard Yeates, appellee, and against the Illinois Central Railroad Company, appellant, for damages for personal injuries alleged to have been caused by the negligence of appellant on December 12, 1903.
    The plaintiff, appellee, filed an original declaration consisting of three counts, and later an amended declaration consisting of seven counts. On the trial, the jury were instructed to disregard the third, fifth, sixth and seventh counts of the amended declaration and the case was submitted on the first, second and fourth counts thereof, to which the general issue was pleaded. The negligence alleged in these counts is in substance that on the date above mentioned, Moore, a switch-tender of appellant, threw a switch and signalled and permitted the train in charge of a switching crew of the Michigan Central Railroad Company, of which crew appellee was a member, to run northward along a track leading from tracks used in common by the appellant and the Michigan Central Railroad Company into the yards of the latter company on the lake front in the city of Chicago, at a time when he, Moore, knew that a road engine was liable and likely to be backing southward upon the same track, and that he negligently failed and omitted to notify those in charge of the in-going train that the road engine was liable and likely to be running south upon said track. No question is made on the pleadings, and it is not deemed necessary to set out specifically the averments of these counts of the declaration.
    The evidence in the record shows without any substantial controversy the following facts: The Michigan Central Railroad tracks running into Chicago end at Kensington, and from that point its trains run into the city over the Illinois Central tracks to Harrison street, where they are switched onto tracks known as Nos. 5 and 6. No. 5 track is commonly used for trains going north into the Michigan Central yards, which extend from South Water street south to about Adams street. Between that point and Harrison street the two tracks, Nos. 5 and 6, are held by that company under a lease in perpetuity.' Track No. 6 is commonly used for trains going south out of the yards.
    At Harrison street is a diamond switch, which at the date of the accident was operated by a switch-tender in the employ of appellant, who threw the switches for all trains passing that point. The switch-tender was paid by appellant, but appellant was reimbursed by the Michigan Central company to the extent of one third of his wages.
    While tracks 5 and 6 were commonly used as stated above, whenever track No. 5 was occupied or blocked, track 6 was also used for trains going north; and in addition to being used as a lead track, it was also used as a switching track nearly as far south as Harrison street.

      When trains were delivered on track 5, it was the practice after the train had pulled in, to detach the road engine from the train, take the engine across to track 6 and proceed south with it on that track as soon as possible, out through the Harrison street switch to the engine house. Then a switch engine would come south over track 6 and back in behind the train on track 5 and push it up into the yards. Sometimes the switch engine would go south before the road engine. When delivery was made on track 5, the train was pushed on north into the yards; and when a train went north on track 6 it was the practice to go cautiously and under full control as engines might be expected at any time going south on that track.
    The morning of December 12, 1903, was foggy and stormy, the worst snow storm of the year, according to the weather bureau, being in progress. About 8:30 o’clock that morning a Michigan Central freight train from Michigan City, Indiana, arrived over the track of appellant and stopped a little south of the Harrison street switch, waiting for a signal from Moore, the switch-tender. In a few minutes the switch-tender signalled it to come ahead, and it then ran north over the switch into and along track 5, until the rear end of the train was far enough in to clear track 6. The engine was then uncoupled from the train, and passed north and over to and upon track 6. It then started south on track 6.
    Just after the freight train passed in on track 5 the transfer or switch train, upon which appellee was the forward switchman, came north and stopped a little south of the Harrison street switch and waited for a signal from the switch-tender, Moore. No one of the crew in charge of the transfer or switch train knew that a road train had just pulled in on track 5. After waiting a few minutes, the switch-tender lined up the switches and signalled the switch train to proceed. Upon receiving the signal the switch train with its engine at the north end of the train proceeded north over the switch. All of the members of the crew testified that they did not know they were to be let in on track 6, until they reached the switch which turned them in upon that track. Some of the crew then observed the freight train standing on track 5, but none of them knew that the road engine, which had pulled the freight train in, had not come out on track 6.
    At this point there is a conflict in the evidence. The switch-tender, Moore, testified that as the engine of the switch train was passing him he shouted to them, ‘‘ Go up No. 6. I am letting you up the wrong main; go up easy:” This is denied by all the members of the switch crew.
    The switch train proceeded north very slowly and under full control, as the members of the crew testified that they were expecting to meet an engine coming south on track 6 at any moment. The bell on the switch engine was ringing. When the switch engine reached the Jackson street viaduct it collided with the road engine coming south, and appellee was crushed between the engine and tender, and so injured that it was necessary to amputate both his legs above the knees. The road engine was running south at a rate of speed from six to twelve miles an hour at the time of the accident; and at the Jackson street viaduct, steam from an Illinois Central engine standing to the east was blowing across the track. This, in connection with the snow storm, made it impossible for the crews of the engines to see more than a car length ahead. There is some controversy in the evidence as to whether or not there was a practice or custom in 1902 and 1903 regarding the letting in of trains on track 6 and holding trains at the Harrison street switch when track 5 was blocked, or until the road engine of the preceding train had come out.
    The Michigan Central Company was made a party defendant to this action originally, but later appellee settled with that company and gave to it a covenant not to sue, and this action was dismissed as to it.

      At the completion of the evidence of appellee, and again upon the completion of all the evidence, appellant moved the court for a peremptory instruction and tendered a written instruction with such motion. Both motions were denied and the instructions were refused.
    Calhoun, Lyford & Sheean, for appellant; John G. Drennan, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The theory of the first count of the amended declaration is that the switch-tender wrongfully and negligently threw the switches and signalled the crew in charge of the switch engine and train to run north on track 6 while the road engine was hacking south on that track and before it had passed out of it. This count does not base the right to a recovery upon any failure on the part of the switch-tender to warn the switch crew that the road engine had not passed out. The second and fourth counts of the amended declaration base the right to a recovery on the same negligence alleged in the first count, and in addition thereto these counts aver that the switch-tender negligently failed to notify the switch crew that the road engine had not passed out and was then backing south on track 6, or was likely to be backing south on that track.

Appellant contends that the trial court erred in refusing to sustain its motion for a peremptory instruction made at the close of appellee’s evidence and renewed at the close of all the evidence.

In support of this contention appellant insists that the evidence does not tend to show negligence on the part of the switch-tender, or, if there was negligence on his part, that such negligence was the proximate cause of the accident by which appellee was injured.

The testimony of the members of the switch crew, Fogarty the foreman, Mick the engineer, Collins a switchman, and appellee, shows that they all knew and appreciated the danger they were in when they went upon track 6; that when they saw there were cars standing on track 5 they knew that an engine might at any time come south on track 6; that “just as soon as the yardmaster could get to it there would be an engine come south on No. 6 to push these cars off of No. 5”; and for that reason they proceeded very slowly and cautiously, ringing their bell, and before going under the Jackson street viaduct, where the steam and smoke were the densest, the engineer brought his engine under perfect control and had practically come to a stop.

This evidence offered by appellee to show that the switch engine crew was not guilty of negligence in the operation of its train is cited by appellant as showing that appellee and his fellow-servants knew, when they were running on track 6, that there was a probability they would meet an engine running south on the same track, and knowing this fact, they were not relying upon any supposed assurance of the switch-tender that no engine would be on that track. On the contrary, they proceeded north on that track, expecting to meet another engine and to be able to stop in time to avoid a collision, their action indicating that they fully understood the situation and were conscious of the danger they were running, as fully as if they had heard Moore say to them what he testifies he said: “Go up No. 6. I am letting you up the wrong main, go up there easy. ’ ’

This evidence, however, must be considered in connection with the fact shown by the evidence that the crew of the switch engine did not know that the road engine had not backed out and in all probability was running south on track 6 when the switch-tender signalled them to pass over the switch and ran them on to that track. The jury were justified by the evidence, we think, in finding that Moore knew, or should have known, that the road engine was backing south on track 6. He knew that the road train had passed over his switch and upon track 5, not more than five minutes before he allowed the switch train to pass north over his switch, and that the road engine was due to come out over track 6 at that time, which was about the usual time taken. He knew that the general custom was for road engines and engines of other roads making deliveries to come out as soon as possible. There is little or no contradiction in the evidence as to this uniform custom.

There is much contradictory evidence in the record, also, as to another custom and practice of long duration at this switch, for the switch-tender to hold out in-bound engines or trains until the road engines, which had delivered a train on track 5, had come out on track 6. This custom and practice was testified to by twelve witnesses, including the switch-tender Moore. The latter testified that he had attended to the Harrison street switches for three months at the time of the accident in question; and if track 5 was obstructed with a train and another train was following it in, he held them out until the road engine came out; and that until the morning in question he “never let a train in until after the road engine had come out”.

In contradiction of this evidence, appellant introduced evidence of a number of witnesses to the effect that orders were never issued to this switch-tender, or anyone else, by any officer or employe of appellant having authority over him to hold trains out of these tracks, except in special instances, and that whenever given the order was special and not general, and was to apply only in that particular case. And it is contended that a switch-tender had no authority to establish such custom on his own initiative. But, we think, that if such a custom existed, as a matter of practice, though not by superior authority, the crew of the switch train would have a right to rely upon it, and to believe and assume that when they were admitted through the switches at Harrison street and turned upon track 6, the road engine of the train standing on track 5 had passed out.

Considering the evidence of the custom or practice in view of the particular situation, and the reasonableness or unreasonableness of such a custom or practice under the situation and circumstances shown by the evidence, we think the jury were justified in finding that such custom and practice existed.

It is appellant’s contention, however, that there is no competent evidence of the fact of this custom or practice because it is not shown that the rule was regularly promulgated by appellant or by anyone in authority authorized to make such rule or custom; and authorities are cited from other jurisdictions to support this position. We think, however, it is the settled law of this state that the usual manner of conducting the appellant’s business at the place of the accident, whether it was established by a rule or rules duly promulgated by persons in authority, or it grew out of the practice of employes long continued, is competent to be shown as shedding light on the acts and conduct of the parties, and has a bearing on the question of negligence. St. L., N. S. Y. v. Godfrey, 198 Ill. 288; C., R. I. & P. Ry. Co. v. Rathneau, 225 id. 278, 284; C. & A. R. Co. v. Harrington, 192 id. 9; N. C. St. R. R. v. Kaspers, 186 id. 246; C. C. Ry. Co. v. Lowitz, 218 id. 24; and Franey v. Union Stock Yards Co., 235 id. 522. As said in Luebke v. C., M. & St. P. Ry. Co., 63 Wis. 92: “It was a sort of common law of the company, obligatory upon its employes, and as thoroughly understood by them as though it had been embodied in the printed regulations and read by the officers of the company to them. It thus became a rule or custom of the company, as well as an understanding between its employes”.

It appears clearly from the testimony of Sheehan, the Michigan Central yardmaster, and other evidence in the case, that the effort and practice was to keep track 5 clear and get the road engines out of the yard and off tracks 5 and 6 as quickly as possible; and that as soon as he knew or received word that a train was coming he generally had a switch engine waiting to start out on track 6 and push the train into the yard; and that sometimes the switch engine would follow the road engine out and sometimes the road engine would follow the switch engine, and in the great majority of cases both engines went right out at the same time. If, therefore, in-going trains or engines were held out according to the custom stated above, until the road engine had gone south over the switch at Harrison street there was usually and ordinarily no danger, for an engine or train going north on track 6 when track 5 was blocked, of meeting a south-hound road or transfer engine having the right of way and proceeding rapidly, and correspondingly there was little or no danger for the road engine or switch engine going south of meeting an engine on track 6, unless they were detained in the yard an unusual time; and in that event they knew, as a matter of course, that they did not have the exclusive right of way which the custom otherwise gave them, and that they might expect to meet an engine or train going north on track 6 if track 5 was blocked, and they would govern themselves accordingly.

In view of these considerations and the evidence of the special circumstances of the case, including the severe snow storm which was prevailing at the time, and the consequent condition of the atmosphere, making it impossible to see hut a very short distance, it was a question for the jury to determine whether appellant’s switch-tender was guilty of negligence or not in throwing the switches and signalling the switch crew, of which appellee was a member, to proceed north on track 6. The trial court did not err, therefore, in denying appellant’s motions for a peremptory instruction to the jury.

In our opinion the evidence does not show that either appellee or the crew of which he was a member was guilty of negligence. But if the conductor, or engineer or other member of the crew was guilty of negligence in not flagging the road engine, such negligence cannot he imputed to appellee. He was a switchman, under the orders of the conductor, and did nothing to influence or contribute to their negligence, if any. He was at his post of duty, as the evidence shows, and was crushed without fault or negligence on his part. C. U. T. Co. v. Leach, 215 Ill. 184; Nonn v. C. C. Ry. Co., 232 id. 378; C. & A. R. R. Co. v. Harrington, supra; C. & A. R. R. Co. v. Vipond, 212 id. 199.

The liability of appellant for the injuries sustained by appellee depends, therefore, upon the question whether appellant owed to appellee a duty, under the facts and circumstances shown by the evidence, and whether or not it was guilty of negligence with reference thereto, which caused the injury complained of. In our opinion it was the duty of appellant’s switch-tender to hold the switch train and not send it north on track 6 until the usual time had elapsed for the road engine to deliver its train and back out on track 6 in the usual way, and that this duty was especially imperative under the extraordinary conditions existing on the morning in question. The switch-tender was guilty of negligence in failing to perform that duty.

The further question then remains on this branch of the case, was this negligence the proximate cause of appellee’s injury.

We first notice appellant’s contention on this question, that even admitting that the switch-tender was negligent at the time he let the switch train in and upon track 6, and that the effect of that negligence continued until after appellee knew they might meet an engine on that track, the switch-tender’s act was not the proximate cause of the accident, because the evidence shows that the accident was caused by the negligence of the engineer on the road engine in going at a speed of 6 to 12 miles an hour without ringing his bell, when by reason of the blinding storm and steam he could see hut a short distance ahead. In other words, the contention is that the negligence of the engineer of the road engine was an independent intervening cause which broke the causal connection between the switch-tender’s negligent act and the collision.

As we have in effect said supra, even if the engineer of the road engine was guilty of negligence, and even though the conductor or engineer of the switch train was guilty of negligence, that fact would not relieve appellant from liability if the switch-tender’s negligence was also a proximate or concurrent cause of the accident.

The negligence of the road engine could not have resulted in a collision had it not been for appellant’s negligence in running the switch train north upon track 6. The switch tender was as much responsible, under the evidence, for the presence of the switch train at the point of collision as though he had run the train to that point with his own hands. If the act complained of so operates as to put the person in the way of the new force or independent act, it is a proximate cause. Meyer v. Butterbrodt, 43 Ill. App. 312, 316. Negligence is a proximate cause of the injury, if it appears that but for such negligence the injury would not have happened, even though not the nearest cause in the order of time. Am. Ex. Co. v. Risley, 179 Ill. 295, 299; N. C. St. R. R. Co. v. Dudgeon, 184 id. 477, 488. The cause that placed the servant in the position where he was injured by another cause is a proximate or concurrent cause of the injury. Swift & Co. v. Rutkowski, 82 Ill. App. 108, 113. And where two causes combine to produce an injury, and neither is sufficient in itself, both causes will be regarded as proximate or concurrent causes. C. & A. R. R. Co. v. Wise, 206 Ill. 453; C. & A. R. R. Co. v. Averill, 224 id. 516, 520. In 1st Cooley on Torts (3d Ed.), pages 226, 227, the rule is stated to be:

“When the contributory action of all accomplishes a particular result, it is unimportant to the party injured that one contributed much to the injury, and another little, the one least guilty is liable for all, because he aided in accomplishing all”.

In our opinion, therefore, if it be assumed that the engineer of the road engine was negligent, that fact would not relieve appellant from liability for the collision, because, under the law and the evidence, the jury might find that the negligent act of the switch-tender remained the concurrent cause of appellee’s injury.

Upon a consideration of all the evidence bearing upon the question of liability of appellant for the injuries sustained by appellee, the verdict of the jury, in our judgment, should not be set aside as contrary to the weight and preponderance of the evidence.

The court, we think, did not err in refusing to set aside the verdict and in entering a judgment thereon, for the reason the verdict shows that the jury did not consider the covenant of appellee not to sue the Michigan Central Railroad Company, as running in favor of appellant as the agent and servant of that company in employing and paying Moore, the switch-tender. It is well settled that a covenant not to sue one of two joint tort-feasors is not a bar to a suit against the other. City of Chicago v. Babcock, 143 Ill. 358; C. & A. Ry. Co. v. Averill, supra; W. C. Ry. Co. v. Piper, 165 id. 325, 328. We do not think appellant was an employe of the Michigan Central Railway Company for the purpose indicated within the true meaning and legal effect of the covenant not to sue.

At the request of appellee the court gave the following instruction:

“4. The court instructs the jury, that even if you believe from the evidence that the engineer, or fireman, of the switch-engine, or the conductor of the switching crew in question, were guilty of negligence which contributed towards, or helped to cause, the collision in question, still if you further believe from the evidence that the plaintiff did not in any way induce, cause or contribute to such negligence, if any, upon the part of the said engineer, fireman or conductor, then such negligence, if any, upon the part of said engineer, fireman or conductor, cannot be charged against, or imputed, to the plaintiff in this suit, provided the plaintiff was himself, before and at the time of the collision in question, exercising ordinary care for his own safety.”

It is urged that the court erred in giving the instruction because it directs the jury to return a verdict for appellee, even though they found that the accident was proximately caused by the negligence of appellee’s fellow-servants on the switch engine; and because, it in effect contradicted instruction No. 2 by which the jury were told that appellee could not recover in this case for any negligent act of any employe of the Michigan Central Railway Company.

We perceive no conflict in the instructions. We tin mb it states a proposition of law well settled in this state by the authorities cited supra.

At appellee’s request the court gave the following instruction :

“6. The court instructs the jury, that if you believe from the preponderance of the evidence that the switch-tender in question was the servant of the Illinois Central Railroad Company, and was not under the direction or control of the Michigan Central Railroad Company, and that plaintiff was the servant of the Michigan Central Railroad Company, and was not under the direction and control of the Illinois Central Railroad Company, then the plaintiff and said switch-tender were not fellow-servants, within the legal meaning of that term.”

The criticism made upon this instruction is that it does not inform the jury as to the meaning of the term “fellow-servants”, nor does any other instruction given in the case tell the jury the legal meaning of that term. And it is claimed there was evidence before the jury tending to show that the switch-tender was the servant of the Michigan Central Railroad Company, and the jury were virtually told not to consider such evidence.

We are of opinion that there was no evidence tending to show that appellee was a fellow-servant with the switch-tender. We do not think that the jury were misled by the instruction; nor do we think the giving of the instruction was reversible error.

Finding no material error in the record, the judgment is affirmed.

Affirmed.


text:
    James Kavanaugh, Appellee, v. Morgan & Wright, Appellants.
    Gen. No. 14,189.
    1. Master and servant—basis of liability where servant injured while especially assigned to extra-hazardous work. If a servant is taken from his regular work and ordered to perform more dangerous duties and is injured thereat he can only recover where his declaration alleges a failure to give him proper warning of the attendant danger, such danger not being obvious, or where the declaration shows that the servant was of immature years and was unable to comprehend the dangers of the duties to which he was assigned.
    2. Pleading—when declaration will not support recovery. A declaration which does not contain allegations supporting the negligence shown by the evidence will not support a recovery.
    3. Pleading—what declaration charging negligence must show. A declaration charging negligence and a consequent injury must show the causal connection between such negligence and injury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed December 4, 1908.
    Calhoun, Lyford & Sheean, for appellant; Robert J. Slater, of counsel.

      Walter A. Brendecke and Paul C. Schussman, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of the Superior Court in favor of appellee and against appellant, Morgan & Wright, for $2,488, on account of personal injuries sustained by appellee while in the employ of appellant, on or about June 21, 1905.

The original declaration consisting of two counts, was filed January 19, 1906. The first count thereof alleges: “Whereas, the defendant heretofore, to wit, on or about the 21st day of June, A. D. 1905, in the city of Chicago, in the county of Cook and State of Illinois, was then and there the owner, was possessed and had control of, and was using and operating a certain machine commonly called, to wit, a rubber mixer; that said machine then and there had a certain heavy iron pan used in connection with and as a part of said machine which was then and there situated and placed at and near a certain shafting so that the said pan was apt and likely to be pushed, shoved and thrown toward the front of said machine and against the person operating said machine, unless the said pan was properly fastened and secured so as to limit its motion and prevent from striking upon and against the person operating said machine; that the said pan of said machine was then and there not properly fastened and secured so as to limit and prevent the same from striking upori and against the person operating said machine; all of which facts the defendant then and there knew, or ought to have known; that the plaintiff was then and there in the employ of the defendant; that the defendant then and there carelessly and negligently commanded, ordered, directed and permitted and allowed the plaintiff to work in and about the operating of said machine while the same was so in an unsafe and dangerous condition; by means and in consequence whereof said heavy iron pan then and there, while the plaintiff with the exercise of ordinary care was so engaged in and about said machine, struck upon and against the plaintiff, and then and thereby greatly injured him, both internally and externally, and he became therefrom forever crippled, lame and diseased.”

The theory of this count is that appellant, knowing that the machine was so constructed that the shafting would throw the pan out against the person operating the machine, negligently ordered appellee to work at the machine and he was injured thereby. This count must be considered as basing the right to recover solely on the negligent order, or, as basing the right to recover upon negligence, in constructing the machine in the manner described, and the order to operate the same.

The second count of the original declaration, after averring ownership and operation of the machine by appellant, alleges that appellee “was then and there in the employ of the defendant as a common servant for hire, and as such was then and there pusuant to the commands, orders and directions of the defendant, engaged in and about the operating and running of said machine, that the defendant then and there so carelessly, negligently and improperly constructed, kept and maintained said machine and said revolving shafting that when said machine was in operation and said shafting was revolving, the said pan was apt to and would be pushed, hurled, thrown and would fall against and upon the plaintiff, while he was in the exercise of ordinary care, engaged in and about the operating of said machine, struck upon and against the plaintiff, and then and there greatly injured him both internally and externally, and he became therefrom forever crippled.”

This count bases the right of appellee to recover upon the ground of negligent construction of the machine by which the pan was placed so near a revolving shaft that it would be thrown out against the operator of the machine by the shaft, and that appellee was employed by appellant in and about operating the machine, and the pan struck against him.

Subsequently, on July 10,1906, by leave of .court appellee filed two additional counts. In the first of these counts the same negligent construction is alleged, and that the iron pan was “not properly fastened and secured so as to limit its motion and prevent it from being thrown against the person operating said machine”; and that appellant recklessly and wantonly ordered and directed appellee to work in and about operating said machine.

The second count of these additional counts alleges that appellant recklessly and wantonly constructed, kept and maintained the machine and revolving shaft so that as a direct result thereof, when the machine was in operation and the shafting was revolving, the said pan was pushed and hurled against appellee while he was engaged in operating the machine.

On June 11, 1907, two more additional counts were filed. In the first of these it is alleged that the regular and ordinary duties of appellee did not include the operation of the machine; that such operation by one not acquainted with its construction and inexperienced in operating it was accompanied with danger to the operator, and this fact was known or ought to have been known to appellant; that appellee was not acquainted with the construction of rubber mixers, and did not have sufficient experience to operate said mixer properly and with safety to himself; which fact appellant knew or ought to have known; that appellant negligently and carelessly did not instruct appellee in the proper and safe operation of said machine and warn him of the dangers of said machine, and as a result appellee was injured.

The second of said counts, after alleging the ownership of said machine and the employment of appellee, and that the regular and ordinary duties of appellee did not include the operation of a rubber mixer, avers that it was necessary and proper to feed into such machine not more than a certain usual and proper amount of material; which facts were or ought to have been known to appellant; that appellant furnished and supplied appellee with a too large, unusual and improper amount of material, and as a proximate result appellee was injured.

At the close of the plaintiff’s evidence, and again at the close of all the evidence, appellant moved the court to instruct the jury to find the defendant not guilty, and tendered written instructions to that effect. The court refused to grant the motion and marked the instruction “refused”. Motions for a new trial and in arrest of judgment were overruled.

The undisputed evidence.in the record shows that appellant was engaged in the manufacture of products composed of rubber and other compositions, and that in its business it made use of the machine in question, together with other similar machines, for the purpose of grinding and mixing certain compounds and rubber. This machine was known as No. 5. It consisted of two parallel, horizontal, hollow iron or steel rollers about five feet in length and eighteen inches in diameter, supported by an iron frame attached to each end of the rollers, and the rollers were operated by means of gears at the end of each roller, to which power was communicated through'shafting, which revolved from the operator. The rollers revolved in opposite directions, towards each other at the top. They were adjustable so that the space between them could be increased or diminished by means of screws on the frame of the machine. The bottom of the rollers was about two and one-half feet from the floor. Sixteen or eighteen inches below the bottom of the rollers was a pan about six feet long and four feet wide, which extended beneath the rollers. This pan rested upon two iron rods, eight or ten inches from the floor, extending from side to side of the frame, one being under the side of the pan next to the operator and one on the opposite side. The pan was made of sheet iron. The bottom was flat and smooth and not fastened or attached to the rods by cleats or otherwise than by its weight, which is not shown. Beneath it was the shafting, bolted together with a flange coupling which came within an inch or two of the bottom of the pan.

Appellee testified that on June 20, 1905, the day before the accident, Henderson, appellant’s general foreman, came to him in the basement of appellant’s factory where he was engaged in other work, and told him to go up-stairs and run mill No. 5; that appellee went to the mill and found five boxes of stock between mills 5 and 6; that there were four boxes of one kind, which was light in color, and one box of another which was heavy and dark; that the lighter colored material was composed of about equal parts of compound and chunks of rubber and weighed about 70 or 72 pounds, and the heavier batch was composed of about 100 or 105 pounds of compound and 20 pounds of rubber.

Appellee says he began work on the four lighter batches, and continued working with them until about 11 o’clock the next morning. In doing the work the first operation was to put the chunks or rolls of raw gum or rubber from one of the boxes through the rollers, and permit it to be passed down between the rollers and flattened out. This caused it to fall down into the pan in the form of a sheet and piled it up. It was then placed on the rollers and again passed through them. This operation was repeated until the desired thickness of about one-half inch was obtained, and the rubber had become warm and soft, and adhered to the rollers, entirely covering the same. The compound was then spread on top of the rollers and soft rubber with a small shovel and ground or mixed into the rubber.

All of the five batches were worked by appellee in the same manner. The accident happened while appellee was working on the fifth or heavier batch. He had ground the rubber of this batch through the rollers and warmed it, and while working the compound in, the composition began to loosen or drop away from the rollers and swing down towards the pan in large circles. The more compound he put in, the farther it swung down, until, when he had all the compound worked in, the part swinging down towards the pan became so long that it doubled and piled up on the bottom of the pan, forming a bunch or pile in the pan under the rollers. Appellee permitted this piling up to continue for five or six minutes, during which time the folds of material in the pan increased until when there were five or six folds in the pan one on top of the other, the material in the pan became so heavy that it stuck to the pan, and the rollers continuing to revolve dragged the pan out from under the rollers and against appellee’s leg, breaking it.

This is in effect appellee’s description of the cause and manner of the accident. There is no evidence in the record tending to show that the accident was caused in any other way, or by any other means. If the bottom of the pan had come in contact with the shafting underneath it, as averred in the declaration, the pan would have been thrown away from appellee, for the shafting was revolving from appellee, and the top of the shafting coming in contact with the bottom of the pan would have carried it in the direction in which it was moving. We are forced to the conclusion, therefore, that the negligent construction of the machine alleged in the declaration is not shown by the evidence, and that it did not cause the injury complained of.

It is somewhat difficult to determine whether the gravamen of the first count of the original declaration is the defective and negligent construction of the machine, or the giving of a negligent order to appellee by appellant, with the unsafe and dangerous condition of the machine as a matter of inducement. If it was the negligent construction complained of, the evidence, as we have seen, does not tend to support it. If the gist of this count is the negligent order to appellee by appellant, then, the evidence tends to show simply and only that he was ordered to leave one service and engage in another and more dangerous work. Under such an order the liability, if any, must be predicated upon a failure to give proper warning of the attendant danger, in cases where the danger is not obvious, or where the servant is of immature years or unable to comprehend the danger, and the count does not make the necessary averments. Reed v. Stockmeyer, 74 Fed. 186; Paule v. Florence M. Co., 80 Wis. 350; Cole v. Chicago & N. W. R. R. Co., 71 Wis. 114. Nor does the evidence show a cause of action, if the averments of this count were sufficient. Appellee was a man of fifty-seven years of age at the time of the accident. He consented to do the work ordered without objection on account of his want of knowledge, skill or experience in doing such work. He had worked on this and similiar machines before. No negligence of appellant can be predicated upon such a state of facts as shown by the evidence. Cole v. Chicago & N. W. R. R. Co., supra.

The averment of this count that the pan was not properly fastened and secured must be held to apply to the danger arising from placing the pan “at and near a certain shafting so that said pan was apt and likely to be pushed against the person operating the machine.” The only claim of negligence which this count avers and appraises appellant of, was the failure to provide against the danger arising from the shafting acting upon the pan. It appears clearly from the evidence, and without controversy, that the accident happened because the material which appellee was grinding or passing through the mill dragged the pan out against him. The evidence, therefore, if it be conceded it shows a cause of action, wholly fails to support the averments of the count.

It is familiar law requiring no citation of authorities that “one object of a declaration is to state the facts relied upon for recovery so plain that the defendant may be prepared to meet them. This object in pleading would be entirely defeated if a plaintiff had the right to aver in his declaration one ground of action, and on the trial prove another and different ground.” T. W. & W. Ry. Co. v. Foss, 88 Ill. 551. “The rule is fundamental that a plaintiff must recover, if at all, upon the case made by his declaration, and in the application of this rule to actions for negligence, plaintiff cannot allege a specific act of negligence, and recover upon proof of negligence of a different character. North Chicago Street Railroad Company v. Cotton, 140 Ill. 486; Chicago, Burlington & Quincy Railroad Company v. Bell, 112 id. 360.” C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330, 336; International Packing Co. v. Cichowicz, 107 Ill. App. 234.

The second count of the original declaration attempts to state a cause of action for the negligent construction of the machine in substance as set forth in the first part of the first count, namely: the liability of the pan to be forced out by the action of the revolving shaft. It is incomplete, however, for the reason that it fails to state any causal connection between the negligence set forth and the injury to the plaintiff. But, such omission being supplied, the evidence, as we have seen, shows that the revolving shaft had no connection with the injury, and hence, no recovery can be sustained under this count upon the evidence.

There is no evidence in the record tending to show that the acts alleged in the two. additional counts filed July 10, 1906, were “recklessly and wantonly” committed. In other respects the negligence averred in these counts is the same as in the original declaration, and what we have said in the discussion of the case made under these counts applies with equal force to these counts.

The first additional count filed June 11, 1907, alleges that appellee was not acquainted with the construction of rubber mixers, and did not have sufficient experience to operate said mixer properly and with safety to himself, which fact appellant knew or ought to have known; that appellant negligently and carelessly did not instruct appellee in the safe and proper operation of said machine, and warn him of the dangers of the machine; and as a proximate result, appellee, while exercising ordinary care, was injured.

In order to support a recovery under this count it was necessary for appellee to prove that there was a danger incident to the construction and operation of the machine in question; that the danger was known to appellant but unknown to appellee; that appellee’s lack of knowledge or appreciation of the danger was excusable, and that appellant knew or should have known that appellee was thus excusably ignorant of the hazard and was thereby exposed to a hazard or danger beyond those which he was presumed to contemplate as incident to the employment; that appellant failed to warn or instruct him with reference thereto; and that appellee was in the exercise of ordinary care.

No case can be found, we think, which holds that the mere fact that the employer requested or ordered his employe to perform a temporary work, outside of his ordinary employment, was a violation of any duty which he owed to his employe. Whether such an order be a violation of such duty depends always upon the surrounding circumstances. If the particular work ordered to be done is of a dangerous character, and requires peculiar skill in its performance, and the person directed to perform such work has not the requisite knowledge or skill for doing the work with safety, and such want of skill or knowledge is known, or might be reasonably supposed to be known, to the employer, the direction of the employer to do the work, without giving warning of the danger or instruction, might be held to be a violation of duty which he owes to his employe, even though the employe undertakes to do the work without objection or protest on his part. Cole v. Chicago & N. W. R. Co. supra. But, in order that a master may be properly charged as being thus negligent, and made liable for resulting injury, it must be made to appear that he knew, or by the exercise of reasonable care and observation might have known, of the inexperience, disqualification and immature judgment of the servant.

The evidence in the record shows that appellee was at the time of the accident a man of mature years, large experience and intelligent; that he had for many years been a farmer and for sixteen of those years had conducted a farm for himself, and was necessarily acquainted with machinery, especially of a simple character, such as the machine in question; that for nine or ten years he had been in the employ of appellant, and during at least a large part of that time, had worked near or upon this and other similar machines, and three months upon this particular machine. He knew that pans on machines of the character of the particular machine in question were frequently thrown out, and while he testified that he did not know that he had ever seen it happen, he admitted that he had heard the operators talk about it, and said in his testimony : ‘‘Oh, God, I could not tell you how many times I have heard them talking about it”. He testified he had seen pans move backward and forward on other machines four or five inches, and on some of the larger machines more than that, although he “had never seen them come out with any degree of force to be alarmed at.”

The proof shows, in our opinion, that appellee had large experience with these machines before he was injured, and that this machine and the other similar machines on which he had worked were of the most simple construction, and that all of the parts of the machine in question were open and obvious to the most ordinary observation. Appellee’s description of the machine and its parts, including the dimensions and location of snch parts, the method by which it was operated, and the manner of supporting the pan shows that he was familiar with the machine and its construction and operation. According to the testimony of Henderson, appellant’s general foreman, appellee was a mill man, mixer and lengo maker. He would make lengo for three weeks at a time, or a month and a half or two months, and he was then sent back to number 5 .mill, sometimes to another mill; that he worked on number 5 mill about one-half or two-thirds of the entire time, and the rest of the time he made lengo. He was considered the regular operator of number 5 mill. He never made any complaint of the pan coming out from the mill. To the same effect is the testimony of Redmond and Bagley, assistant foremen of the mill department.

From the testimony and the circumstances of the case as developed in the proof we are of the opinion that the preponderance of the evidence is decidedly against appellee’s right to recover under this count of the declaration.

The second additional count filed on June 11, 1907, predicates liability upon appellee’s inexperience; that for the safe operation of the machine it was necessary to feed into it not more than a certain amount of material, and that appellant “furnished and supplied plaintiff with a too large, unusual and improper amount of material”, and the accident happened as a proximate result thereof.

The only evidence of the order given to appellee was that the foreman “told me to go up and run that mill No. 5.” Appellee does not claim in his testimony that Henderson told him to run any particular batches of stock, or quantities of stock, or that he was told to run such stock as he might find there in the particular quantities in which he might find it at or near the mill. The evidence does not show how the particular batches which appellee mixed came to be at or near the mill. Henderson did not know how much material there was in these particular batches. He testified that the largest batches he ran on mills of the type of Ho. 5 were about 100 pounds. By whom the compounds were actually mixed and whether by the authority and knowledge of appellant was for appellee to show, but it is not shown.

We have stated supra appellee’s evidence as to the manner in which he fed the material into the mill and how it piled up in the pan for five or six minutes before the pan was shoved out. He knew during this time that the action of the rubber was liable to cause trouble and he testifies that at the time he grabbed his knife and was about to cut it off, when the pan was thrust out. His evidence shows, we think, that he had ample warning that he was putting too much material in the machine and yet he continued to feed the mixture into the machine after he knew it was likely to get up between the rollers end stop them and “break something.” This evidence, we think, tends to prove contributory negligence on the part of appellee, and that no recovery under this count can be sustained.

It is our opinion, therefore, that the evidence fails to sustain any count in the declaration, and the judgment must be reversed for that reason.

These questions are raised, we think, by the motion for a peremptory instruction, the motion for a new trial and the motion in arrest of judgment, and appellee’s contention that they are not properly raised cannot be regarded as well founded.

Holding these views upon the merits of the case, we do not find it necessary to consider the other errors assigned and argued.

The judgment of the Superior Court is therefore reversed with a finding of facts.

Reversed with finding of facts.


text:
    John J. Hanrahan, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 14,193.
    1. Negligence—what does not. constitute actionable, against municipality. The failure of a municipality to remove or cause to he removed from a public street a weak and dangerous awning attached to private property and extending over a part of such street but not resting upon or attached thereto, is a failure by such municipality to perform one of its duties which it is empowered to perform as a governing agency but the failure so to do does not render it liable for injuries resulting to an individual.
    2. Evidence—competency of conviction of crime. It is error for the court to refuse to permit cross-examination of the plaintiff as to his previous conviction of a crime against the election laws of the state and as to his confinement in the penitentiary; such evidence in an action for personal injuries is not only competent upon the question of credibility but upon that of damages, as if his confinement had been at hard labor the injuries for which he claimed in the action might have been at least in part induced by such hard labor.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 4, 1908.
    Rehearing denied December 18, 1908.
    Statement by the Court. This action was brought by appellee, Hanrahan, against City of Chicago, Frank Salter, F. Salter & Company, a corporation, and Dave Heyman.
    The original declaration alleges that the defendant, City of Chicago, was on December 12, 1903, a municipal corporation and as such was then and there possessed and in control of a, certain public sidewalk on the west side of Jackson Park avenue, a public highway in said city; and the defendants, F. Salter & Company, a corporation, Frank Salter and Dave Heyman, possessed a certain building abutting on said Jackson Park avenue, at the southwest corner of said Jackson Park avenue and Sixty-seventh street, a public highway also then in the control of the City; that long prior to and at the time aforesaid there was a large and heavy wooden awning extending out from said building and over and above said public sidewalk on the west side of said Jackson Park avenue at the height of ten feet above the sidewalk; that persons traveling on said sidewalk passed under said awning and were thereby exposed to great danger if said awning should fall. By reason of the premises it became and was the duty of the defendants to exercise ordinary and reasonable care toward keeping and maintaining said awning in a reasonably strong and safe condition so that it would not fall, but in disregard thereof, long prior to and at the time aforesaid they permitted and allowed said awning to become and remain in a weak, dilapidated and defective condition, which had existed for a sufficient length of time prior to the injury complained of to have enabled the defendants in the exercise of ordinary care to have discovered said condition; that while plaintiff was walking under said awning and in the exercise of ordinary care for his own safety, said awning, by reason of its said weak and dilapidated condition, fell upon the plaintiff and injured him.
    Subsequently plaintiff filed an additional count, setting up the possession and control of the public street known as Stony Island avenue and a sidewalk upon and along the west side of said street, and that defendants F. Salter & Company, a corporation, and Frank Salter were the owners of and in possession of a certain building situated on the west side of said street immediately south of Sixty-seventh street, the front of which building extended out to said sidewalk, and there was an awning attached to and a part of said building which extended out from said building over and some distance above said sidewalk, and that pedestrians were accustomed to pass under said awning in walking along and upon said sidewalk; that long prior to December 12, 1903, and prior to and at the time of the leasing or letting of said building thereinafter referred to said F. Salter & Company and Frank Salter wrongfully and negligently permitted said awning to be and remain in such defective and insecure condition that it was liable to fall upon pedestrians, and that “said condition of said awning amounted to a nuisance,” all which facts said last named defendants knew or could have known by the use of ordinary care prior to and at the time of the leasing, and that while said awning was in said condition said last named defendants leased said building, including said awning, to the defendant Dave Heyman, who then and there took possession of said building, including said awning, and remained in possession of the same from thence to and including the time of the injury complained of; that said defective and dangerous condition of said awning was known to said Heyman and the City of Chicago, or could have been known by the exercise of ordinary care in that behalf, but each of said defendants wrongfully and negligently permitted said awning to remain in said defective condition long prior to and at the time of the injury complained of; and while plaintiff was walking along and upon said sidewalk and under said awning with ordinary care for his own safety, said awning, as a direct result and in consequence of said defective condition, fell upon plaintiff and injured him.
    To this declaration the defendants interposed pleas of general issue and Frank Salter and Salter & Company filed special pleas denying ownership.
    On the trial plaintiff discontinued the suit as to Frank Salter and Dave Heyman and amended his declaration on its face by striking out the name of Frank Salter and inserting the name of A. G. Hieronimus. The jury returned a verdict for ^$5,000 in favor of the plaintiff and against F. Salter & Company and City of Chicago. Plaintiff remitted $1,500, and after denying a motion for a new trial and in arrest, judgment was entered for $3,500 on the verdict.

      The evidence introduced by the plaintiff tended to show the existence of the awning projecting over one-half way across the sidewalk at the southwest corner of Jackson Park avenue, otherwise known as Stony Island avenue, and Sixty-seventh street along the full length of the building, and attached thereto but not touching the surf ace of the street; that the awning was rotten and decayed prior to August 20,1903, and that on December 12, 1903, a snow storm with a strong northeast wind prevailed and plaintiff while walking south on the sidewalk under the awning was struck and knocked down upon the sidewalk by the awning as it fell from the building.
    Edward J. Brundage, John.R. Caverly and Arnott Stubblefield, for appellants; Edward C. Fitch and Richard W. Donovan, of counsel.
    John C. King and James D. Power, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The record in this case presents the question whether the declaration sets out substantially a cause of action against the City of Chicago.

Upon an examination of the declaration it will be perceived that the gravamen of the charge against the city is its failure to discharge its duty to exercise reasonable care in keeping the sidewalk in question in reasonably safe condition for ordinary travel, in that it did not cause the awning to be removed when it knew it was dangerous. In thus stating the case made by the declaration we take the substantive facts averred and ignore the particular averments of duty as to the city, for it is from the facts averred that the duty, if any, arises under the law. No permission is averred on the part of the city to erect and maintain the awning. The, negligence averred is the failure to remove the unsafe awning. If we are correct in this conclusion, it follows that the cause of action laid in the declaration amounts to this that the agents or police officers of the city were remiss in duty and therefore guilty of negligence in not removing from the public street the weak and dangerous awning attached to private property and extending out over a part of the public street. This presents the question whether such omission or negligence on the part of the police officers or agents of the city constitutes a ground of private action against the city in favor of one injured on account thereof. The solution of this question depends upon the nature of the power and duty invoked.

In Oliver v. Worcester, 102 Mass. 489, Justice Gray, speaking for the court, says: “The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, as the management of property and rights held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public ’ \

This distinction is clearly stated by Mr. Justice Bailey, speaking for the court in Culver v. City of Streator, 130 Ill. 238. The cause'of action declared on in that case was injury caused by the negligent and careless acts of the servants of the city while destroying dogs running at large contrary to a city ordinance. The court said, in discussing the declaration, at page 243: “Merely denominating him a servant or employe does not make him such in a sense calling for an application of the maxim respondeat superior. Whether he was a servant or employe in that sense depends mainly upon whether he was employed to perform acts which the corporation could do in its private or corporate character, or acts which the corporation was empowered to do in its public capacity as a governing agency, and in discharge of duties imposed for the public or general welfare. Acts performed in the exercise of the police power plainly belong to the latter class”.

In the one case there is an implied or common law liability for the negligence of the officers in the discharge of such duties, and in the other no private action lies unless it is expressly given by statute. Oliver v. Worcester, supra; Detroit v. Corey, 9 Mich. 165; Dillon on Municipal Cor., (4th Ed.) Vol. 2, Secs. 974 to 980, inclusive, and cases cited in notes; Town of Odell v. Schroeder, 58 Ill. 353; Wilcox v. City of Chicago, 107 Ill. 334, and cases determined in Massachusetts, New York, Connecticut, Iowa, Missouri and California there cited. In Wilcox v. City of Chicago, supra, the exemption from liability is placed on the ground that " the service is performed by the corporation in obedience to an act of the legislature, is one in which the corporation has no particular interest, and from which it derives no special benefit in its corporate capacity”, and upon the additional ground of public policy.

The ground of liability alleged in the declaration in this case,—the failure to remove from the public street the weak and dangerous awning attached to private property and extending out over a part of the public street, but not resting upon or attached to the street, relates in our opinion to the failure to perform acts which the city is empowered to do as a governing agency and in discharge of duties imposed for the public or general welfare, and the maxim respondeat superior does not apply to such acts, or to an omission or failure to perform them.

We are aware of the conflict of authorities upon this subject, some of which, namely: Bohen v. City of Waseca, 32 Minn. 176; Bieling v. City of Brooklyn, 120 N. Y. 98, are cited by appellee, but we are disposed to follow the general current of the decisions of our Supreme Court as we understand them, and in doing so we are compelled to hold that the declaration in this cause does not state a canse of action against the appellant, City of Chicago.

In our opinion, the trial court erred in refusing to permit appellee, a witness called in his own behalf, to answer the questions put to him on cross-examination in regard to his life and habits prior to the accident, and calculated to draw from him the fact of his conviction of a crime against the election laws of the State, and that he had been confined in the penitentiary. The facts called for by the questions also had a bearing on the question of damages. If on such testimony as he might give the jury might find that appellee had been confined in the penitentiary at hard labor, and from the character of the work which he did while there, and his physical environment, the action of his heart and his kidneys had been thereby affected, there would be a basis for finding that the injuries which he suffered from the falling of the awning were less than they appeared to be from his direct examination.

For the errors indicated the judgment of the Superior Court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Eva Jurkiewicz, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 14,196.
    1. Contributory negligence—when passenger not guilty of. A passenger in seeking to alight from a railroad train has a right to assume that ample time will be afforded for such purpose; held, under the evidence in this case, that a passenger injured while alighting was in the exercise of ordinary care.
    2. Passenger and carrier—duty of latter to permit former to alight. Held, that the following instruction as to when a carrier is not liable for injuries to a passenger suffered while in the act of alighting, was properly refused, in that it left out of consideration the important element that the carrier owed to the passenger the utmost and highest degree of care, skill and diligence for her safety consistent with the mode of conveyance employed, and that the carrier’s servants in charge of the train were required to know, if by the exercise of due care, caution and diligence they could know, that the passenger was attempting to alight from the train before they started it.
    “The court instructs the jury that while railroad companies are required to announce stations approached or reached, and to give passengers a reasonable time in which to leave the train, they are not required to see that passengers do in fact depart from the train upon arriving at their destination. If, therefore, you believe from the evidence in this case that the defendant gave the plaintiff a reasonable time and opportunity to alight from the train in question; and if you further believe from the evidence that when the employes of defendant started said train they did not know that any passengers were alighting therefrom, in such case it is your duty to find the defendant not guilty.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed December 4, 1908.
    Statement by the Court. This appeal is prosecuted from a judgment of the Superior Court, entered in favor of appellee and against appellant for $500.
    The original declaration consisted of two counts. The first count averred the possession and operation of a certain railroad by appellant, on November 23, 1902, extending from Harvey, Illinois, northward to and beyond a station known as Kensington; that appellant received appellee as a passenger upon one of- its trains under the control of its servants; that when the said train arrived at Kensington, appellant did not use reasonable care to give appellee reasonable time and opportunity to alight from the train in safety, hut carelessly and negligently started the train violently in motion while appellee was in the act of alighting therefrom, and appellee, while using due care and caution, was thrown with great force and violence upon the station platform and was injured.
    The second count makes the additional averments that the car on which appellee was riding was provided with iron gates which it was the duty of appellant and its servants to use reasonable, care to close before starting and moving the train, and that they failed and neglected to close the gates when the train started from Kensington.
    Additional counts were subsequently filed which allege in substance the same facts set forth in the first original count.
    The evidence tends to show that appellee was a woman about sixty-one years of age at the time of the accident, and that she resided at Harvey, Illinois. On Sunday, November 23, .1902, she left her home in Harvey to go to South Chicago to attend a meeting. To reach South Chicago she took appellant’s train at Harvey to ride to Kensington, a station in the city of Chicago. She was accompanied by Mrs. Ruczynski, and at the station at Harvey they met two acquaintances, Joseph Zellebuski and his sister. Mrs. Krenicki also boarded the train with them, all entering and riding in the same car. It was a suburban train, consisting of five cars and the engine.
    Before, reaching the station at Kensington, the train stopped at a water tank situated about four or five hundred feet south of the station. The conductor left the train at the water tank and walked north to the through station on the east side of the tracks, registered his train and crossed over to the west side of the tracks and went up to the station platform. During this time the train had taken water, proceeded to the platform, discharged and taken on passengers.
    This station platform is on a level with the car platforms and extends to within an inch or two of the cars. The car platforms are extended by what are termed aprons, covering the steps, thus enabling passengers to step off and onto the station platform without using the steps.
    After the train stopped about fifteen or twenty passengers alighted, Zellebuski, Mrs. Krenicki, Mrs. Ruczynski and appellee being still on the train. It is claimed by appellant that the train remained at the station a minute and a half or two minutes. As the conductor came upon the platform, the collector and the flagman gave him the signal “All right”, and the conductor in time signaled the engineer to start. At this moment appellant claims there was no one on the platform seeking to get on or alight from the train. On the other hand the evidence tends to show that the three people above named with appellee appear to have been the last to leave the car in which they had been riding. Appellee was preceded by Zellebuski, his sister, Mrs. Krenicki and Mrs. Ruczynski in the order named. All the passengers who had preceded Zellebuski had alighted and Zellebuski also had stepped upon the platform of the station. Mrs. Krenicki had also stepped upon the station platform, or was in the act of doing so, when the conductor gave the signal to start, and the train started. Mrs. Ruczynski stepped to the platform directly after Mrs. Krenicki and was thrown upon the platform. After she had fallen, appellee, looking down and not observing that the train was moving, stepped upon the platform and was thrown down upon it. One of the train crew saw these people as they were moving towards the end of the car and gave the signal by means of the bell-rope to stop the train, which was done within a few feet.
    Calhoun, Lyford & Sheean, for appellant; John G. Drennan, of counsel.
    W. D. Munhall, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

At the close of all the evidence the court refused to give a peremptory instruction in favor of appellant, and this is relied upon as error. It is contended that there was no evidence before the jury tending to show appellant guilty of negligence as alleged in the declaration.

The evidence of Zellebuski, Mrs. Krenieki, Mrs. Ruczynski and of appellee tends to show that when the train stopped at the Kensington station quite a large number of people left the car in which appellee had been riding, and that Zellebuski, who was in the lead of the party with appellee, followed closely after people who were leaving the same car, and he was compelled to wait for them; that the rest of the party, including appellee, followed closely after him. After Zellebuski reached the station platform he saw the conductor give the signal to start the train and he looked back to see his sister who was following, and observed that she had alighted before the train started. As Mrs. Ruczynski was stepping off, the train started and threw her to the platform. Appellee was just behind her and was also thrown down. The evidence of these witnesses tended to prove the allegations of the declaration, in our opinion, and the court, therefore, did not err in refusing the peremptory instruction, unless the evidence shows conclusively that appellee was guilty of contributory negligence.

On the question of appellee’s contributory negligence the testimony of all the witnesses above mentioned has a bearing, and might properly be considered by the jury. The testimony of appellee tends to show that without delay she started to leave the car when the train stopped, and that she followed closely the other passengers out of the car. She had a right to assume that ample time would be given for her to safely alight, although many people were leaving the car ahead of her. Her movements were necessarily controlled by those ahead of her, and hence her delay, if any there was, may have been caused wholly by other passengers. She testified that she did not see the car start or feel it start or feel anything to indicate that it was moving.

From a review of all the evidence we think it was a question for the jury, on the evidence in the case, to determine whether appellee, by her negligence, if any, contributed to the injury sustained by her, and that therefore the court did not err in leaving that question to the jury.

In our opinion the verdict of the jury is not so manifestly against the weight of the evidence that we ought to set it aside on that ground.

It is urged that the trial court erred in refusing to give to the jury instructions numbered respectively 15,16,17,18 and 19 requested by appellant.

An examination of the instructions given by the court shows, in our opinion, that the jury were fully instructed upon all the substantial issues in the case. It appears further that refused instructions 15, 16, 17 and 19 were substantially covered by other instructions given.

Refused instruction No. 18, requested by appellant, is as follows:

“18. The court instructs the jury that while railroad companies are required to announce stations approached or reached, and to give passengers a reasonable time in which to leave the train, they are not required to see that passengers do in fact depart from the train upon arriving at their destination. If, therefore, you believe from the evidence in this case that the defendant gave the plaintiff a reasonable time and opportunity to alight from the train in question; and if you further believe from the evidence that when the employes of defendant started said train they did not know that any passengers were alighting therefrom, in such case it is your duty to find the defendant not guilty.”

In our opinion this instruction does not correctly state the law applicable to the facts of this case. It would have told the jury, if given, that under no circumstances would appellant be guilty of negligence in starting its train while appellee was in the act of alighting therefrom, if the train had stopped a sufficient length of time to permit appellee to alight, unless the employes of appellant knew appellee was alighting. It leaves out of consideration the important element that appellant owed to appellee the utmost or highest degree of care, skill and diligence for her safety consistent with the mode of conveyance employed; and that appellant’s servants in charge of the train were required to know, if by the exercise of due care, caution and diligence they could know, that appellee was attempting to alight from the train, before they started it. North Chicago St. R. R. Co. v. Cook, 145 Ill. 557. A carrier of passengers may not relieve itself from liability, in cases like this, by proving that its trainmen did not know passengers were alighting. The instruction was properly refused.

Finding no error in the record the judgment is affirmed.

Affirmed.