text:
    Catherine Maxey, Appellee, v. City of East St. Louis, Appellant.
    1. Streets and alleys—duty of city as to maintenance in safe condition. A city is only required to maintain the respective portions of its streets in reasonably safe condition for the purposes for which they are respectively devoted by the intention and sanction of the city, and while a city may not be obligated to keep the driveway of a street longitudinally in a fit and safe condition for pedestrians, yet if the city has impliedly designated a particular portion of such driveway for the use of pedestrians, it is under the legal duty to exercise reasonable care to keep such portion in a reasonably safe condition for use by pedestrians.
    2. Streets and alleys—when city negligent. Held, under the evidence, that the city was guilty of negligence in allowing the continuance of a considerable depression after constructive notice to it, which depression was at a point in the driveway of the street used by passengers to alight from street cars.
    3. Evidence—to what attending physician competent. In an action for personal injuries the attending physician may testify to subjective symptoms received when treating his patient and not examining her for the purpose of giving testimony.
    4. Notices—what compliance with act requiring notice to city. The statute requiring notice of an injury to be given to a city, stating the name and address of the attending physician, etc., was not intended as a requirement to give the 'city the names of all the physicians who might testify; if the name and address of the physician who treated the person injured is given, the statute is complied with and other physicians will be permitted to testify.

      Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. B. W. Pope, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    W. P. Launtz and C. E. Pope, for appellant.
    Webb & Webb and Kramer, Kramer & Campbell, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellee recovered against the appellant city a judgment of $1,800 for personal injuries received by her near the crossing of Missouri and Collinsville avenues in front of Kresse’s book-store in said city, August 29, 1908. The declaration charges that appellant negligently permitted a hole six inches deep, ten inches wide and thirty-six inches long to be and remain at said point on the north side of, and adjoining, the north rail of the north track of the East St. Louis Railway Company located on said street. The evidence shows that plaintiff was visiting relatives in said city and had never seen that part of the street prior to her said injury, and resided at Mattoon, Illinois; that she and her husband and a number of her relatives were returning from Lansdowne Park in said city about 10:30 p. m. on a street car- which came south on Collinsville avenue arid turned west on Missouri avenue and stopped on that corner, and being apprised that that was the point for them to leave the car, she attempted to alight from it on the north side thereof; that she stepped her left foot first from the floor of the car down on the running board, extending the length of the car as a step, and then stepped her left foot forward again to the street, following the left each time with the right foot, all the while holding to the hand-hold; that when her foot struck the pavement it slipped into said hole or depression, throwing her and breaking both bones of her left leg and producing a compound fracture; that she suffered very severely therefrom and was in bed and in an invalid chair and on crutches for more than a year. The evidence further shows that this car was a summer car and stopped at the usual place there for passengers to alight at that crossing, and that appellee got off about midway of the length of the car and stepped straight down into this hole which was from three to five inches deep, eight to fourteen inches wide and thirty to sixty inches long, extending out north of the north, rail. The only evidence introduced by the defendant making any showing in the way of a denial of the existence of such a hole at that place, is the testimony of several witnesses in substance stating that they did not find or see, “any depression at that place in August, 1908, four or five or six inches deep, and twelve or fourteen inches wide and two or three feet long.” Just what they did 'find there in the way of a depression they do not further particularize.

It is insisted by the appellant that there is no liability against the city in this case because the hole or depression was not in any sidewalk or crossing of the city, and that it is under no legal obligation to keep the driveway of its street longitudinally in a fit and safe condition for pedestrians. It was said in substance in City of Aurora v. Hillman, 90 Ill. 61, and in The Pres, and B’d. of Trustees of Harvard v. Senger, 34 Ill. App. 223, that a city is not bound to keep its whole street fit and safe.for foot passengers. If this must be accepted as the general rule of laAv, still we think that under the holding of our courts that there are exceptions to the rule. A city may reserve portions of a street for pedestrians and portions thereof for the use of vehicles, only, and portions thereof for both pedestrians and vehicles. Sidewalks are usually made for pedestrians only, and street crossings, for both pedestrians and vehicles. Cities are required to use reasonable care to keep street crossings in reasonably safe condition for pedestrians while in the exercise of reasonable care and caution. This is not denied by appellant. The true rule in all cases, we think, is that a city is only required to maintain the respective portions of its streets in reasonably safe condition for the purposes to which they are respectively devoted by the intention and sanction of the city. Kohlhof v. The City of Chicago, 192 Ill. 249; Town of Normal v. Bright, 223 Ill. 99; City of Beardstown v. Smith, 150 Ill. 169.

It is clearly shown that this car stopped at the usual place that street cars had been stopping for passengers to get on and off for five months or more previous to the time in question. Street cars are not permitted usually, and should not be permitted, to stop in a street crossing to permit passengers to get on and off. To do so would constantly and unnecessarily cause the blocking of streets. This was a summer car with the seats running crosswise and the plaintiff had necessarily to alight from the center of the north side of the car from her seat there, some forty or more feet from the crossing. To do this she and all persons riding on the cars had necessarily to travel in the longitudinal part of the street to regain the sidewalk or the street crossing. The city knew this and by granting the street railway company its franchise and street privileges, as it must be presumed to have done, had devoted such places at which passengers must necessarily alight to their use as pedestrians until they could regain the crossing or sidewalk. To hold otherwise would deprive the public of the use of street cars or compel them to alight and walk on the street at such places at their own risk without regard to whether or not they were reasonably safe for such use.

It is also insisted that the evidence shows that the place in question was reasonably safe, and that the plaintiff was injured by reason of the long step of twenty-one inches from the running board of the car to the brick pavement when she was hurt. We think the evidence clearly shows that the appellant was using reasonable care for her own safety and that she was injured by reason of this hole or depression into which she stepped her foot, and that it was a question for the jury to finally settle as to whether or not appellant was guilty of the negligence charged. Such a depression though in a brick pavement and safe for the travel-of vehicles, would be plainly visible to persons accustomed to pass there; and being right at the place under and out from the running board and at a point where passengers were liable to step directly into from the car, it could, in our judgment, have been easily foreseen that injury might occur to passengers alighting from cars there. The appellant had constructive notice of this defect as it had existed for about five months prior to the accident.

What we have already said fully answers the contention of appellant that the court erred in refusing appellant’s instruction No. 9. Appellant’s instructions Nos. 3 and 20 were erroneous as offered. No. 3 was properly modified by the court and No. 20 was not based on the evidence; and therefore the court did not err in refusing them as offered, and the appellant cannot be heard to complain of their modification by the court. Swift & Co. v. Rennard, 119 Ill. App. 173.

There was no reversible error in the court’s rulings on the evidence. The attending physician may testify from subjective symptoms received when treating his patient and not examining her for the purpose of giving testimony. Greinke v. Chicago City Ry. Co., 234 Ill. 564. There was no evidence excluded by the court that was material and pertinent to the issues that the defendant did not afterwards get the full benefit of by further examination. The notices to the .city were properly admitted in evidence, as was also the evidence of Dr, Freeman. The statute requiring notice of the injury to be given to the city and the name and address of the attending physician, etc., was not intended as a requirement to give the city the names of all the physicians who might testify! She gave in her notice the name and address of the physician who treated her for this injury, and that was all the statute required in that particular. Graham v. The City of Rockford, 238 Ill. 214.

Finding no reversible error in this record the judgment of the lower court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Frank H. Walls, Executor, Appellant, v. Lillian Chessen, Appellee.
    Administration of estates—when debts pro rated among legatees and devisees. Where the bequests of personal estate and the devises of real estate are both specific, both legatees and devisees must contribute pro rata to the payment of the debts of the deceased.
    Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Wise, Keefe & Wheeler, for appellant.
    John J. Brenholt, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The matters in dispute on this appeal arise in the final settlement of the estate of George W. Walls, deceased. The deceased made a will in which he devised to his son, Edward Walls, thirty acres of his land, describing it; and the remainder of his land, ten acres, by proper description he devised to his son, Frank H. Walls, the executor named in the will. By the third clause of his will he bequeathed to his daughter, Lillian Chessen, all of his “personal estate of money, goods, and chattels of whatsoever nature.” No mention is made in the will in any way of his debts, funeral expenses, or costs of administration. The real estate is proven to be worth $150 per acre, all of it. The personal property consisted of $686.42, cash in the bank, household goods appraised at $206, and a $70 note given by said daughter for borrowed money, making a total value of $962.42. The executor, after adding to the personal estate $60, paid by the Odd Fellows for funeral expenses, sought to charge the personal property with $346.75, funeral expenses; $35, doctor’s bill; $17, to laborer as farm hand; $17.65, court and other costs; $1.7, coroner’s charges for inquest on body of testator who suicided; $50, legal services about estate matters; and $44.76, executor’s commissions on personalty, making a total of $578.86. Of this personal property the daughter has received $50 in money from the executor. She sold the household goods to her other brother for $90 to keep him from renting them with the house to a stranger, and as pay he gave her $20 in money and her said note for $70 which was her own property under the will, thus only realizing $20 for $206 worth of property by the appraisement. The executor stated that the household goods and the note never came into his hands, but she receipted him for the household goods. The evidence further shows that the deceased left a team and some other stock and feed on the farm which was allowed to be taken by Ed. Walls (the same brother who paid $70 of his debt to his sister in her note willed to her, for the household goods) on his claim that he had bought the stock and feed from his father before his death. The executor claimed that there was only a balance due her of $167.56 which was tendered to, and refused, by her. Adding to this sum the $70 already received from her two brothers, the net amount she would realize in the estate by accepting this sum, is $237.56. The order of the court appealed from is in substance that the three legatees pay the $30 of the funeral expenses charged for flowers, equally among them; and that after applying the $60 donated by the Odd Fellows to the funeral expenses, that the remainder of said funeral expenses and said debts, costs and expenses of administration as above set forth, be paid by said legatees in proportion to the values of the property respectively devised and bequeathed to them by said testator. The court also found that said charges were not extravagant as claimed by said exceptor, Mrs. Chessen, but were proper charges against said estate.

The executor in this appeal contends that the real estate should not bear any part of these charges, and that the personal estate should bear the whole burden. The court apparently found that the devises were all specific devises, and that each part of the real estate devised and the personal property bequeathed should all bear the burden in proportion to their several values. The court was right in its holdings, if the bequest of the personal property was a specific, as distinguished from a general, legacy, or if by the provisions of the will it clearly appears that the testator intended that the two devises of the real estate should bear their proportion of the said debts and expenses. The real estate devises are specific without question. Where the bequest of the personal estate and the devises of the real estate are both specific both must contribute to the payment of debts pro rata. North’s Probate Prac., secs. 559 and 560; Cox v. Johnson, 242 Ill. 159.

We think that the clear intention of the testator in his will is that the real estate should bear its proportion of the funeral expenses of the deceased, or more accurately speaking, that Mrs. Chessen was to have the personalty free of such burden. From the evidence as to debts he evidently calculated that he would have none when he died, and by making no provision for the payment of funeral expenses he evidently intended that his children should all bury him and bear the expenses together. “All the personal property, of every description is given to the wife (daughter) without limitation or qualification. How could an intention to exonerate this property be more clearly expressed than by the language here used? While it is true that a bequest of all the personal estate is ordinarily treated as a general legacy, yet when an intention to give it discharged of its primary liability for debts and general legacies clearly appears, it must be treated as a special bequest, and exonerated accordingly.” Reid v. Corrigan, 143 Ill. 402. The testator considered his estate as consisting of two tilings, land and personalty; and his intention was, and is clearly so expressed, that it should be divided into three parts; and that each of his children should take a part without special burdens. The court ruled correctly on the law, and it is a most inequitable contention for either of these sons to insist on their sister paying the enormous funeral and other expenses charged up against her including such charges as $30 for flowers, $5 for the preacher, $10 for embalming, $150 for casket, $60 for grave vault, $15 for embalming and setting vault, $6 for grave lining, etc., all of which are proper and right when all are willing to bear their part of the expense as she is. The evidence shows that the flowers were bought with the intention that all should pay for them equally. The evidence indicates that this was the idea they had in mind when the funeral expenses were made. It is no part of this case but the evidence shows that her brother, Ed, justly owes this appellee $70 on the household goods if her story is correct as to how she was paid for them; and we do not think this evidence shows any just cause for appellant to feel aggrieved that this appellee finally sought the courts in the endeavor to receive °what justly belonged to her.

The evidence so clearly shows without' dispute the value of the personal property to be $962.42, and the real estate devises to be of the value of $1,500 and $4,500, respectively; that we do not think the court’s order is void for uncertainty; and that the respective amounts ordered to be paid by each devisee can be made clearly certain by mere calculation. The order is clear in other particulars that the flowers are to be paid for by all of them equally acording to their agreement; and that the $60 donation by the Odd Fellows must be applied to the payment of the funeral expenses, and not considered as a part of the personal property of the estate.

The order and judgment of the lower court is affirmed in toto.

Affirmed.


text:
    Martin Enema, Appellee, v. MacGowan-Finnegan Foundry and Machine Company, Appellant.
    1. Master and servant—when doctrine of assumed risk applies. Where the dangers which resulted in the injury to the servant were obvious and open and well known to him and not known to the master nor shown to have existed for a sufficient length of time to raise a presumption of knowledge, a recovery by the servant will not be sustained.
    2. Instructions—upon what theories cause should not he submitted. A case should not be submitted to the jury upon a theory not supported by evidence in the case.
    3. Instructions—approved form where servant continues at employment notwithstanding master’s failure to repair after promise made. An instruction upon this subject as follows, is approved:
    “Even though you may believe from the evidence that the defendant did have a windlass which was used in conveying iron to the cupola and you believe from the evidence that this windlass was out of order so that it could not be used, and that the defendant promised the plaintiff to rep'air the windlass so that he could use the same in hauling iron to the cupola, and if you further believe from the evidence that after this promise was made to the plaintiff, if you believe it was made, that the defendant had ample and sufficient and reasonable time to repair said windlass and did not put it in working order and neglected or refused to do so, within a reasonable time after said promise to repair, then you are instructed that if you believe from the evidence that after this time had elapsed, and plaintiff knew or by the exercise of ordinary care might have known that the windlass was not repaired and had not been put in' such a condition that he could use the same, then there cannot be a recovery and your verdict as to it should be for the defendant.”
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. B. W. Pope, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Wise, Keefe and Wheeler, for appellant.
    F. O. Smith, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The appellant is operating a foundry in East St. Louis. Part of its machinery is an incline fifty feet long and three and one-half feet wide running from the ground to the cupola on the second story to the height of about twelve feet. On this incline was a track two and one-half feet wide on which was drawn a four wheel truck by a crab or windlass and a wire cable attached to a loop in the truck. The appellee’s employment was to turn this windlass and haul this truck up the incline loaded with heavy iron, small scrap iron, coke and lime rock and unload it at the cupola. He recovered a judgment against appellant for $1,800 for personal injuries received by him.' The charge in the first and fourth counts of the declaration is in substance that the defendant negligently permitted the crab to be out of repair and negligently allowed the incline to be in a defective, worn, greasy and unsuitable condition for the use made of it. In the second and fifth counts the same defects and dangerous conditions are charged, and it is also averred that the defendant negligently ordered him to wheel with a wheelbarrow the scrap iron on the incline without any guards or strips thereon to protect him. The same defects are charged in the third count and, also, that the defendant negligently ordered him to wheel the scrap iron up the incline in a wheelbarrow until the crab could-be repaired, and promised the plaintiff to repair the same within a reasonable time upon which he relied. The declaration further charges that he was injured, etc., by reason of the said negligence.

The evidence for the plaintiff tends to show that the crab was out of repair and could not be used by him; that he notified the defendant’s foreman that it was out of repair and dangerous, and that the foreman promised to repair it as soon as he could, and told him to go ahead and wheel the stuff up with a wheelbarrow, and that such promise and request were repeated every one of the six or seven days appellee worked there; that the plaintiff was injured by slipping and falling off the incline while wheeling scrap iron, and that it would only have required about two hours to repair the crab. The defendant’s evidence tended to show that appellee’s employment required him only to use the crab when heavy iron was hauled, and that he was to haul the light scrap iron he was hauling when injured, and the coke and the rock, with the wheelbarrow.

Appellant insists that appellee cannot recover because he assumed the risk, as the defects were open and obvious and well known to appellee. Appellee denied that he knew the dangers of using the wheelbarrow on the incline, and said he did not know that it was slippery by reason of grease and slag balls that had fallen onto the incline from the furnace. It does not appear from the evidence that there was any compulsory order from the foreman to 'use the wheelbarrow. It was more of the nature of a promise to repair, if he would use the wheelbarrow until the crab was repaired. It does not clearly appear whether the notice to-the foreman was that it was dangerous to use the crab because out of repair, or that it was dangerous to use the wheelbarrow on the incline. The defective crab was in no way responsible for appellee’s injury unless upon the theory that he was compelled thereby to use the wheelbarrow instead of the crab, as appellee was not using the defective crab when injured. All the dangers of wheeling the iron on the incline were obvious and open and well known to appellee except possibly the slippery condition of it hv reason of the grease and slag balls thereon, and the presence of grease on the incline was neither known to defendant, nor was it proven to be there long enough to have been known by it. It is not clearly proven just what caused him to slip on the incline. About the only theory upon which appellee was entitled to have his case considered by the jury under the condition of the evidence was under the third count of the declaration wherein he charges in substance a promise to repair the crab so that he could do the work with it in a safe way: All other counts, at least on the theory of a compulsory order, should have been taken from the jury, under the evidence. Appellant asked the court to give the jury this instruction:

“Even though you may believe from the evidence that the defendant did have a windlass which was used in conveying iron to the cupola and you believe from the evidence that this windlass was out of order so that it could not be used, and that the defendant promised the plaintiff to repair the windlass so that he could use the same in hauling iron to the cupola, and if you further believe from the evidence that after this promise was made to the plaintiff, if you believe it was made, that the defendant had ample and sufficient and reasonable time to repair said windlass and did not put it in working order and neglected or refused to do so, within a reasonable time after said promise to repair, then you are instructed that if you believe from the evidence that after this time had elapsed, and plaintiff knew or by the exercise of ordinary care might have known that the windlass was not repaired and had not been put in such a condition that he could use the same, then there cannot be a recovery and your verdict as to it should be for the defendant.”

This instruction states the law applicable to the third count of the declaration. Illinois Steel Co. v. Mann, 170 Ill. 200. No other instruction of similar import was given. It was very material to the defendant’s defense, and the jury should have been allowed to consider it with reference to this count. It is true that it was not limited to the third count, but it should have been so modified by the court and given, and the two counts not proven taken from the jury. Upon no other count in our judgment, under the doubtful state of the evidence, could there be any show for a recovery. In the present unsatisfactory condition of the evidence, and with the two counts relying on compulsory orders not proven and not taken from the consideration of the jury, we are left to doubt very seriously whether or not the jury really considered the case upon its true merits. We think under the circumstances the court erred in not taking said two counts from the consideration of the jury; and in not giving said instruction to the jury properly modified and limited to the first count of the declaration. The judgment of the lower court is therefore reversed, and the cause remanded.

Reversed and remanded.


text:
    Howard K. James, Appellee, v. Conklin & Hill, Appellants.
    1. Evidence—what incompetent to establish indebtedness. In an action to recover an alleged indebtedness a postal card written by the cashier of a bank reporting upon a draft, containing the statement, “Parties promise adjustment of matter in a few days,” is incompetent, such postal card being written without the authority, direction or knowledge of the party sought to be charged with the debt.
    2. Evidence—ichat competent by way of impeachment. Held, that a hotel register and an expense account of a witness were competent as tending to show that such witness was not at a particular place on a certain day as claimed by the opposite party.
    3. Evidence—what competent upon question of title. In an action brought upon an account bought from a bankrupt’s estate, the records of the United States District Court are competent to prove title.
    4. Instructions—when upon question of agency erroneous. An instruction on the question of the authority of a representative of the owner of a debt to collect the same, is erroneous if it ignores the evidence which tends to show the apparent or implied authority of such representative to make the 'collection, and is calculated to lead the jury to believe that they must look solely to a written contract to determine the extent of the authority of such representative.
    5. Instructions—abstract propositions of law. It is not error to refuse an instruction abstract in form notwithstanding it contains the statement of a correct proposition of law.
    ’6. Agency—when payments to agent binding upon principal. Payments made to an agent are good and obligatory upon the principal in all cases where the agent is authorized to receive payment, either by express authority, or by that resulting from the usage of trade, or from the particular dealings between the parties.
    Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    H. G. Morris, for appellants.
    McGaughey & Tohill, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Judgment was rendered in this case in favor of appellee against appellants in the sum of $512.75 for a balance of an account alleged to have been due from appellants to the James & Mayer. Buggy Company of Lawrenceburg, Indiana, and which account was bought by appellee at the trustee’s sale of the company’s accounts, after it had been adjudged a bankrupt. The company made ¿n assignment of all its property and accounts for the benefit of creditors on September 2, 1905; and on October 3, 1905, it was adjudged an involuntary bankrupt, and Thomas S. Cravens was appointed trustee. On October 3, 1907, the trustee sold all the accounts of the company to the plaintiff, as he claims, by order of the U. S. District Court for the District of Indiana. The evidence tends to support this claim of the plaintiff, and he received a bill of sale of said accounts, including the one in suit, from the trustee in bankruptcy. It is admitted by the defendants that they purchased the bills of buggies and other items named in said account of the company during the year 1905. Their defense was that they paid this account in full August 28, 1905, to A. L. Kurtz, a traveling salesman of the James & Mayer Buggy Company. The defense is supported by the evidence of A. E. Hill, one of the defendants, who testified that on that date he paid the bill to Kurtz without knowledge of the failing condition of the company; and he is corroborated fully by Kurtz, who also receipted the bills as paid to him on that date. The plaintiff contended that the payment was not made to Kurtz on that date; but that it was made after the assignment of the company, if made at all, at a time when his agency for the company had ceased. Plaintiff also contended that Kurtz had no authority as agent of the company to collect money for it at any time, except in special instances when expressly authorized by it.

It is insisted here by the appellants that the court erred in admitting in evidence a postal card written by John T. Ratcliff, assistant cashier of the First National Bank of Olney, to the Citizens National Bank of Lawrenceburg, Indiana, in reply to a letter from the latter to the former bank enclosing a draft for collection on appellants for $307.50 in favor of the buggy company, and which was drawn for the collection of a portion of the account sued on in this case. The card reads thus:

‘ ‘ Olney, Ill. 9-5,1905,

Dear Sir: We have received your favor of 2 with enclosure as stated. We credit; accepted; Entered for collection. Parties promise adjustment of matter in a few days. Shall we hold.

Very respectfully,

R. N. Stotlar, Cashier.”

This card was incompetent evidence, and was very damaging to defendants’ case. It is a card written to the plaintiff by a third party, in no way connected with the defendants as agent or otherwise, and the card was not written by the authority or direction or knowledge of the appellants. It is said by appellee’s counsel that the error in admitting this evidence, if error, is harmless. The question of whether or not the appellants paid this bill to Kurtz, August 28, 1905, or after the assignment, September 2, 1905, was the principal point of contention between the parties to this suit. This exhibit is damaging evidence to the effect that the bank at Olney got this account for collection after September 2, 1905, and was informed by appellants that they would adjust it, although in the trial they claimed they had already paid it to Kurtz several days before that. Besides, it tended to corroborate Ratcliff, who testified that he presented the claim to Conklin and Hill on the evening of September 4th, or during the day of September 5th of that year, and that they promised to adjust it.

We do not t.biuk the court erred in admitting in evidence the hotel register and the expense account of Kurtz. They were competent as bearing upon the contention of appellee that Kurtz was not in Olney on August 28, 1905; and that for that reason he could not have been at appellants’ place of business on that day, the date of his receipt to the bills in question. The records of the U. S. District Court were, also, all competent to prove title to plaintiff to the account sued on and they made a prima facie case in that particular.

The court also erred in its instructions to the jury. Nos. 1, 2, 5, 8 and 9 of appellee’s instructions are all faulty because they state in substance to the jury that payment of this account to Kurtz on August 28, 1905, would not discharge appellants from liability on this account unless they believed from the evidence that he had authority from the James & Mayer Buggy Company to collect the account, or unless they afterwards ratified such payment. By these instructions the apparent authority of Kurtz to collect this account, as shown by the facts, put in evidence that Kurtz had collected accounts from the appellants before without objections, and that he had collected accounts from other like debtors in southern Illinois without objections, was not to be considered by the jury in determining the question of whether or not appellants were warranted in treating him as an agent authorized to make collections. The further fact that it was proven that his written contract only gave him the express right to sell merchandise for them, would necessarily lead the jury to conclude that they must look to this contract solely for his authority. Payments made to an agent are good and obligatory upon the principal, in all cases where the agent is authorized to receive payment, either by express authority, or by that resulting from the usage of trade, qr from the particular dealings between the parties. Noble v. Nugent, 89 Ill. 522, citing Story on Agency. The principal is equally bound by the authority which he actually gives, and by that which by his own acts he appears to give. The principal is responsible for the appearance of authority. Smith v. Peoria County, 59 Ill. 412; Phoenix Ins. Co. v. Stocks, 149 Ill. 319.

For the same reasons the modification of appellants ’ instruction No.‘ 1 was misleading to the jury. Appellants’ refused instruction No. 7 states a correct proposition of law in the abstract, but should be applied to the facts of this particular case, and for failing so to do it was not error to refuse it. The same objection applies to refused instruction No. 8. It is the dealings with appellants by this company or dealings by the company known to appellants, that are to determine the apparent authority of the agent, Kurtz, in this case. Therefore, refused instruction No. 9 is inaccurate and properly refused. Appellee’s instruction No. 3 is admitted by his counsel to be inaccurate, and discussion thereof is not necessary. The evidence in this case was close and very conflicting. In such case the rulings of the court on the evidence and the instructions should be accurate or the verdict ought not to be sustained.

For the errors indicated the judgment of the court is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Cohen-Schwartz Rail and Steel Company, Appellant, v. The East St. Louis Locomotive and Machine Shop Company, Appellee.
    1. Instructions—when peremptory for defendant erroneous. If the evidence fairly tends to establish the plaintiffs right to recover, it is error to instruct the jury to find for the defendant. In such case it is for the jury to say what weight the evidence is entitled to and whether sufficient to sustain the action.
    2. Evidence—when exclusion error. If a party claims to have been seeking to fulfill its contract, evidence which tends to refute the bona fides of such claim is improperly excluded.
    3. Evidence—when declarations of deceased agent incompetent. The declarations of a deceased agent of a party are properly excluded if not made in the presence of the opposite party or its agent.
    4. Corporations—when foreign not doing business in this state. Held, under the evidence, that the foreign corporation, plaintiff in this suit, although unlicensed, was not doing business in this state within the meaning of the statute.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    William P. Launtz, for appellant.

      L. O. Whitnel and H. L. Browning, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This suit was originally brought before a. justice of the peace and on appeal and trial before the city court and a jury, after the evidence was introduced for the plaintiff, the court, on motion of the defendant, instructed the jury to return a verdict for the defendant, and entered judgment against the plaintiff in bar and for costs. .Plaintiff appealed. The plaintiff claims that it purchased of the defendant’s agent in St. Louis, Missouri, a carload of fifty second-hand car wheels weighing about 29,000 pounds, at $20 per ton, F. O. B. cars at defendant’s shops in East St. Louis; and that the defendant refused to comply with the contract to plaintiff’s damage. It was agreed on the trial that the plaintiff was entitled to recover $82.50 as damages, if it was entitled to recover at all. The defendant denies that any such contract was ever made, and insisted that the evidence in this record did not sustain it. We think the evidence in this record tends strongly to prove that the contract was made, and that the court erred in taking the case from the jury. Several letters from plaintiff to defendant and from defendant to plaintiff were introduced in evidence and their genuineness is unquestioned. The first letter from the plaintiff to defendant reads thus: “We beg to confirm purchase of your Mr. Huff over phone, of a carload of standard and narrow gauge wheels free of steel locomotive tires, at $20 per gross tons, F. O. B. cars your works. We are giving you 60 days time in which to make shipment of this material. We understand that you now have 50 of those wheels on hand, which will be satisfactory if yoii can load same to 15 gross tons which is the minimum weight of cars going eastward.” To this letter defendant replied as follows: “In reply to yours of the 27th inst. in regard to wheels and cast iron sold you, would say will load this as soon as we can get a car and send it forward. ’ ’ - When again written to and pressed by the plaintiff to send the wheels, it is true that the defendant replied that it would not have altogether more than 25,000 or 30,000 pounds and gave as an excuse that the plaintiff did not want less than a minimum car load of about 33,600 pounds, and therefore had not shipped the wheels. However, the plaintiff afterwards wrote the defendant: “In the event you have not accumulated any car wheels since, you may ship the 30,000 lbs.,” etc; and to which defendant never replied until it was notified that the claim was in hands of a collection agency some twenty days afterwards. The testimony further shows that the wheels were never delivered, that the price of them rose on the market to $25.50 per ton, at which price defendant had to pay for others. “If the evidence fairly tends to establish plaintiff’s right to recover, it is error to instruct the jury to find for the defendant. In such case it is for the jury to say what weight the evidence is entitled to, and whether sufficient to sustain the action.” The People v. People’s Ins. Exch., 126 Ill. 466.

It was error in the court also to exclude the testimony of the witness, Schwartz, to the effect that the defendant sold a lot of car wheels, provided the sale occurred since this trade between these parties. It would have had considerable bearing along with the further fact that prices of the wheels had advanced, in refuting the bona fides of the defendant’s claim that it was trying to fill its contract; but was prevented for want of a car, etc. The court excluded it without regard to when the sale occurred, apparently. It was not error, however, for the court to exclude the evidence of the declarations of the deceased agent of appellee, Mr. Huff, as to the making of the trade in regard to the wheels, that were not made in the presence of another agent of the defendant. Hurd’s R. S. Ill., chap. 54, sec. 4; Rothstein v. Siegel Cooper & Co., 102 Ill. App. 600; Trunkey v. Hedstrom, 131 Ill. 204.

The evidence tends strongly to show that this contract was made in Missouri; and, although the plaintiff is a foreign corporation not licensed to do business in this state, we do not think the plaintiff was “transacting business in this state” within the meaning of the statute requiring foreign corporations to be licensed, etc.

For the errors indicated the judgment of the lower court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


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    Benjamin Haumesser, Appellee, v. Central Brewing Company, Appellant.
    1. Torts—when violation of ordinance will not prevent recovery. In an action for the negligent killing of a horse, held, that the failure of the plaintiff to observe an ordinance requiring the hitching of his horse, did not preclude a recovery.
    2. Torts—when violation of law precludes recovery; when not. If in order to make out a case the plaintiff must show his own violation of law no recovery will be permitted, but if such plaintiff can and does make out a case without reference to any violation of law by him, a recovery will be sustained.
    Action in case. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Wise, Keefe & Wheeler, for appellant.
    John L. Flannigan and S. W. Baxter, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

•Plaintiff sued the defendant brewing company in case for damages for the alleged negligent killing of his horse, and recovered a judgment against it for the sum of $150. The company appealed. The negligence charged in the declaration is that the defendant so carelessly and improperly drove its wagon and team that they ran and struck plaintiff’s horse with great force and thereby injured and killed it.

The evidence discloses that plaintiff was a retail grocer doing business on Broadway street in the city of East St. Louis, and on May 6,1907, had his delivery wagon and his horse hitched thereto and standing at the curb-stone facing east in front of his place of business ready to be loaded with groceries for delivery to his customers. The defendant, Central Brewing Company, was engaged in making and delivering beer in said city; and on the morning of. said day one of its drivers was passing Haumesser’s place of business from the east on said street with one of its large wagons heavily loaded with beer and drawn by four horses. The wagon was passing between the street car track on Broadway and the curb-stone where Haumesser’s horse stood unhitched to any post or weight of any kind, except to the delivery wagon, and was unguarded by any one. While so standing the horse, for some reason not very satisfactorily explained, shook its head from side to side, pitched forward and fell in front of the approaching wagon of the defendant, angling toward the street car track. While thus lying flat on the street the fore-wheel of the defendant’s wagon ran upon the horse’s jaw and neck and so crushed its jaws and tongue that it had to be killed.

The defendant introduced an ordinance of said city reading as follows: “Whoever shall have any horse or mule, or any team attached to any vehicle, in any street, alley or other unenclosed place, within said city, without the same being securely fastened or guarded, shall be subject to a penalty of not less than three dollars nor more than twenty-five dollars.”

Appellant claims that a verdict should have been, directed for it for two reasons, the first being because' of the alleged failure of appellee to prove that appellant was guilty of the negligence charged in the declaration. We think the jury were clearly warranted in finding for appellee on this question. Neal Comley, a motorman on a street -car standing there, testified that he saw the horse fall on the street, and saw the defendant’s wagon coming, and seeing that there was not room for the wagon to pass between the car and the horse, he was waiting for the wagon to pass the horse before going by the horse with his car; that the wagon was about thirty to fifty feet from the horse when it fell, and that he got out of his car and walked towards the wagon, signaling the driver to stop; that the driver continued to drive on and ran on to the horse without stopping until the wheel was on its head; that when he signaled the driver the wagon was twenty or thirty feet from the horse and that his lead horses were not then up to the horse. George Lewis corroborates the motorman as to those distances and says that he shouted to the driver to stop when his lead team was even with the horse, the wheel being eighteen or twenty feet from the horse at that time. The only other witness testifying on this point and who saw the wagon run onto the horse, was the defendant’s driver who testified that when the horse reared and fell the horse’s head struck the footboard on the front of his wagon and dropped down in front of the wheel and behind his wheel horses and that before he could possibly stop his teams, the wheel was on the horse’s head.

Appellant also insists that appellee cannot recover, because he was violating the city’s ordinance in failing to in any way hitch the horse, or to be with it in person or by another guarding it. He bases this claim on the ground that the plaintiff is obliged to lay the foundation of his action in his own violation of law, and therefore cannot recover. A number of authorities are cited as sustaining this proposition, including Cooley on Torts, 2nd Ed. 151; Gilmore v. Fuller, 198 Ill. 130; Harris v. Hatfield, 71 Ill. 298; Devor v. Knauer, 84 Ill. App. 184.

We do not think the foregoing authorities in point here. The plaintiffs in those cases were engaged in the unlawful acts that brought about their injury, and it was not possible to make out their cases without relating the evidence that showed they were violating the law, and that the violations of the law were necessarily proximate causes of their injuries. That is not necessarily so in the case in hand. The correct rule, we think, is stated in the case of Steele v. Burkhart, 104 Mass. 59, to wit: “But it is further contended that these plaintiffs are compelled to prove their own violations of law in order to establish their case, and therefore the action can not be maintained. The substance of the ordinance referred to is, that, for loading and unloading packages weighing less than five hundred pounds, wagons shall stand lengthwise of streets, and not crosswise, under a prescribed penalty. * * * In this case, if the packages had weighed more than five hundred pounds, the position of the team would have been the same. In Spofford v. Harlow, 3 Allen 176, it was held that, though the plaintiff’s sleigh was on the wrong side of the street, in violation of law, the defendant was liable, if his servant ran into the plaintiff carelessly and recklessly, the plaintiff’s negligence not contributing to the injury. And it is true generally, that, while no person can maintain an action to which he must trace his title through his own breach of the law, yet the fact that he is breaking the law does not leave him remediless for injuries wilfully or carelessly done to him, and to which his own conduct has not contributed.” To the same effect are the following cases: Ewing v. C. & A. R. R. Co., 72 Ill. 25; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370.

In the last case cited, page 374, our Supreme Court said: “In a suit against a railroad company for stock killed or injured in consequence of the neglect of the company to fence its road, where it appears such stock was permitted to run at large in violation of law, the question whether the owner has been guilty of contributory negligence in permitting them to run at large, is one of fact, to be determined by the jury from the circumstances of the case, and that it is not sufficient to charge a plaintiff with contributory negligence, in a suit against a railroad company for injury to stock, to simply show that the owner permitted the stock to run at large in violation of law; but it must appear that he did so under such circumstances, that the natural and probable consequences of doing so was, that the stock would go upon the railroad track and be injured. The burden of showing such contributory negligence in such cases, where it does not appear otherwise, is upon the railroad company.”

The burden was upon the defendant in this case to show contributory negligence. It submitted that question to the jury in an instruction closing with these words: ‘ ‘ and if you further believe from the evidence that if the horse had been securely fastened or guarded he would not have received the injuries he did receive, then there can not be a recovery in this case,” etc. The defendant had a right to submit others on the same subject if not fully covered by the above instruction. We think the jury were warranted in their finding for the plaintiff. Suppose plaintiff had been by his horse or in his buggy guarding him, as he might do under the ordinance without securely hitching it, it in no way is made to appear how he would or could have averted the injury when those present could not. If he had been securely hitched the same is true. Hitching or guarding the horse would not prevent its falling, and it does not necessarily appear that the natural and .probable consequences of failing to do either would result in injury to the horse, and certainly not that hitching or guarding him would have prevented the injury to it that did occur.

Finding no reversible error in this record the judgment is affirmed.

Affirmed.


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    Cicero Lane et al. v. Elias M. Davis et al., Consolidated with George W. Owings, Appellee, v. Herman C. Schwulst et al., Appellants.
    1. Mortgages—when grantee not personally liable. Taking a deed subject to outstanding mortgages, creates no personal liability on the grantee to pay off the encumbrances, unless he has by contract, expressed or clearly implied, specially agreed to do so.
    2. Mortgages—when grantee not personally liable. Held, that a grantee was not personally liable for a debt secured by mortgage under the following circumstances: A contract of purchase and sale was entered into by which such grantee agreed to assume the mortgage debt; subsequently, a deed being tendered pursuant to the terms of such contract, it was refused by such grantee, and thereupon a subsequent deed merely making the conveyance subject to the mortgage debt was tendered to and accepted by such grantee, with the distinct understanding that he would not assume and agree to pay the mortgage debt.
    Foreclosure. Appeal from the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Statement by the Court. Elias M. Davis executed a mortgage on the east half of the southwest quarter of section 3, township No. 1 south, range No. 5 west of third P. M. for $1,500. The notes given for said sum were assigned by Cox to Cicero Lane who filed the original bill in this cause and then re-assigned the notes to Cox who with Lane filed the amended bill to foreclose said mortgage. Davis after giving the mortgage sold the premises to J. P. Aydelott who then executed a second note and mortgage to George W. Owings for $1,055 on said premises. Aydelott afterwards entered into a written contract with Herman Schwulst to exchange this land for a tract of land owned by Schwulst in the state of Georgia, containing 125 acres, subject to ten leases and all taxes after the year 1906, purchaser to have the rent of 1907. In this agreement the land in Georgia was priced at $2,100 while the property in this suit was priced at $4,800. This agreement which bore date of March 2,1907, provided among other things that Aydelott should deed his tract of land to Sehwulst subject to all taxes levied after the year 1906, and to a total mortgage encumbrance of $2,700 which Sehwulst assumed, and was to have the rents of the land after delivery of the deed. Before the deed to this tract was delivered to Sehwulst he made the claim to Aydelott that it was not his understanding that he was to assume the payment of this mortgage encumbrance of $2,700, but that the land should be simply deeded to him subject to said encumbrance, and he refused to accept a deed tendered to him providing that he assumed the mortgage encumbrance. Aydelott then agreed verbally that Sehwulst was not to assume said encumbrance, and made and delivered Sehwulst another deed by which the land was conveyed to Sehwulst subject to the mortgages. Owings then filed an original bill to foreclose his mortgage against the above named parties, praying among other thing's for a personal judgment against Sehwulst in case the proceeds of the land be insufficient to pay the mortgages and expenses, and by order of the Circuit Court the two foreclosure suits were consolidated and tried together. The causes being referred to the master in chancery for proofs and findings he reported in substance to the court that there was due to Cox on the notes and m'ortgages the sum of $1,906.21, and to Owings on the second mortgage and note the sum of $1,-314.73; that they were entitled to decrees for said sums as first and second liens respectively against said premises; that in case of a deficiency the decree in favor of Cox should be a personal one against Aydelott and Davis; and that the decree in favor of Owings should be personal against Aydelott, but that there was no personal liability against the defendant, Schwulst. Objections were filed by Owings to that part of the master’s report that there was no personal liability against Sehwulst, and being overruled by the master, exceptions to said ruling were filed and argued before the court. On final hearing the court sustained Owings’ exceptions, and decreed among other things that Schwulst was personally liable to Aydelott for any deficiency as to the Owings’ lien after the proceeds of the lands mortgaged had been applied on both decrees and costs and expenses. From this decree Schwulst prosecutes this appeal.
    John G. Bolker, for appellant; John E. Pollock, of counsel.
    H. G. C. Beckemeyer and Haynie & Haley, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

The only question presented for our decision is whether or not Herman C. Schwulst is liable for any deficiency decree. It is conceded by all the parties interested in this question, that the land will not more than pay the first mortgage lien, and. that after sale thereof there will be a large deficiency. It is insisted by appellee that by the original contract between Aydelott and Schwulst, the latter was to take said land subject to said mortgages amounting then to about $2,700 and was to assume said mortgage debt; that said contract was the only, written contract between them, and that for that reason the written contract was not and could not be varied or changed by any subsequent verbal contract because it would be within the statute of frauds and void. The statute of frauds is not made a question in this case by any of the written pleadings, and if it was we are unable to see how it can be applicable to the facts proven. It is also claimed by appellee that by said written contract $2,700 was to be deducted by Schwulst from the purchase price of the land when he accepted the deed; and that he promised to pay said sum to Owings and Cox as part of the purchase price for the land, and by reason thereof he is liable to appellee for the amount due on his note and mortgage. According to the tenor of the orginal contract to convey the land, Schwulst assumed the mortgage debt of $2,700; and if that contract had remained unchanged he would be liable for the deficiency decree. But it is clearly proven, and it is not denied, that Schwulst after this contract was handed to bim claimed to Aydelott that he did not understand that he was to assume this debt and that he would not do so. Pie refused to accept the first deed tendered to him because in that deed it provided that he assumed this debt. Schwulst swears positively that he met Aydelott at a lumber yard in Bloomington in July,. 1907; and that when told that the deed would not be accepted because of the clause providing that Schwulst assumed the mortgage, Aydelott said he would make and send him a new deed subject to the mortgages; and that he further said he did not intend for him, Schwulst, to assume those mortgages, and that Aydelott sent the second deed as agreed. This testimony is not denied by Aydelott and is corroborated by John F. Welch. Frederick F. Bell, the representative of Aydelott in this transaction, also swears that Schwulst refused to accept the first deed because of the clause binding him to assume the mortgages; and that then a second deed was made and delivered to Schwulst, simply providing that the land was conveyed subject to these mortgages. The deed so delivered and offered in evidence merely provides that the land is conveyed subject to the mortgages without any contract or agreement to assume or pay the mortgages. Schwulst also swears he never promised Owings to pay his mortgage. The appellees’ counsel claims that Aydelott denied making any other contract with Schwulst except the original contract in writing; but what Aydelott does swear, as a matter of fact, is that there was no other written contract. The parties had a right to rescind the original contract or any part of it, and the evidence shows clearly that they did so by simply changing a part of the consideration. By the new contract there was no agreement to assume the mortgage. On the other hand there was a positive understanding or agreement that he was not to assume it, and the deed itself expresses the full contract of the parties. Taking a deed subject to outstanding mortgages, creates no personal liability on the grantee to pay off the encumbrances, unless he has by contract, expressed or clearly implied, specially agreed to do so. Rapp v. Stoner, 104 Ill. 618; Crawford v. Nimmons, 180 Ill. 143; Harrison v. Polar Star Lodge, 116 Ill. 279; Farrar & Wheeler v. Toliver, 88 Ill. 408; Cooke v. Murphy, 70 Ill. 96.

The lower court erred in sustaining the exceptions to the master’s report, and in decreeing that the appellant was personally liable to appellee for any part of his mortgage debt, and in decreeing that he pay thé same. The decree of the lower court is therefore reversed and the cause is remanded with directions that the court overrule the exceptions to the master’s report and enter a decree therein in conformity with the views herein expressed by this court.

Reversed and remanded with directions.


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    Mary Lusch, Appellee, v. The Village of Odin, Appellant.
    1. Streets and alleys—when alleged negligence of city question for jury. If an obstruction in a public street is dangerous and has existed for some period of time, it is a question for the jury as to whether or not a reasonable inspection would have relieved the dangerous condition.
    2. Streets and alleys—when city liable for condition of walk. If a sidewalk is constructed by a private individual by permission of a city, by adoption and by contract it becomes the city’s sidewalk and it is chargeable with'notice of all defects in construction as well as those that could be discovered by reasonable inspection.

      3. Stbeets and alleys—what constitutes sidewalk. A sidewalk is none the less a sidewalk within the meaning of the law if constructed of cinders. A sidewalk is a sidewalk whether constructed of cinders, plank, stone, concrete, or of any or all of them combined, if built in a public street.
    4. Streets and alleys—duty of city with respect to. It is the duty.of a city or village to use reasonable care to keep a sidewalk in reasonably safe repair for the use of pedestrians using ordinary care for their safety, although in the extreme limits of the city or village, whether built by residents of the street or otherwise.
    Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Kagy & Vanderyort, for appellant.
    Noleman & Smith and W. F. Bundy, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Judgment was rendered below in favor of appellee against appellant in the sum of $1,100 for personal injuries received by her on a sidewalk on one of its public streets, as the result of a fall June 19, 1908. The declaration charges that appellant negligently permitted said walk on the north side of Kirkwood street in said village, to be constructed of cinders, rubbish, tin cans and metal buckets, so that the cans, metal buckets, etc., were exposed and extended above the surface of said walk when the cinders settled; and that they so continued for six months and thereby became and continued to be dangerous to pedestrians traveling the same, etc., whereby the plaintiff was tripped while traveling thereon with all due care, etc. Two verdicts were rendered in favor of appellee, the first being for $1,000. The evidence discloses that this walk is in the outskirts of Odin, a small village, and that it was built by the resident's on the north side of this street by excavating the dirt in the walk-way down to the hard-pan, and then filling in with cinders and rubbish maleing a walk about four or four and one-half feet wide, using the dirt so taken to fill their front yards. The village had never improved this street by their own work, except to grade it in the center, and leave a space on each side of about seven feet for walk-ways for pedestrians; but some of the aldermen of the city knew the street was being so improved; and the city had ample constructive notice of it, as it had been built six months or a year or more prior to this injury. The Baltimore & Ohio B. B. Company’s right of way joins this street on the south and runs parallel with it,; and therefore there are no houses on the south side of this street there, but there were some four or five houses on the north side close to the place of the injury. The walk from the point of the defect complained of runs east about sixty feet over some loose plank used by pedestrians and then a short distance further as a cinder walk, and thence it extends still eastward to the center of the village as a stone or concrete sidewalk. The plaintiff was injured just west of the ends of the loose plank where a furrow had been plowed from the lots south across this walk. One Smith, the owner of the lot at the point complained of, constructed this walk as aforesaid and filled up the furrow and excavation for the walk with tin cans, a coal scuttle and other rubbish, covering them with cinders. The rains and the settling and washing of the cinders had bared the old scuttle and other rubbish thus buried and the bail or handle of the scuttle, for six weeks or more, had been protruding from two to four inches above the surface of the walk near the center and to the south side of the walk there. The evidence further shows that the plaintiff had passed west there from her home to a neighbor’s on this street; and that, as she returned walking pretty rapidly but with reasonable care, she caught her foot in the handle of the scuttle; and, as the scuttle was firmly buried in the walk, she was thereby thrown violently on the ground and her left wrist thereby broken, and she was otherwise bruised and injured.

The appellant contends that the defect or danger in the street was a latent one, and that the city had no actual notice of it, and would not have discovered the same by an ordinary and reasonable inspection. It is not contended that such an inspection was made by it. In fact the evidence discloses that no attention at all had ever been given to this street at the point in question by the village. It is even insisted by the appellant that there was no duty on it to care for such a place as they did not make the sidewalk, and because it was in the extreme limits of the city where few people traveled. We think Under the evidence that'it was a question for the jury to determine as to whether or not a reasonable inspection would have revealed the defect. It was certainly a dangerous obstruction and was made prominent by its position in the walk in the midst of tin cans and other such rubbish bared and making a very rugged surface; and one that, if discovered, would have caused any reasonable person to foresee that injury would most probably result from it. Mary Tadlock and Thomas Stader both testify that some six weeks prior to this injury they were tripped by this same obstacle while walking by there; and Mrs. Tadlock testifies that she would have fallen if her daughter had not had hold of her, in which she is, corroborated by her daughter. Mr. Smith, "one of the parties who built this walk, says he got permission to use the dirt from the village board on the condition that he would fill in with cinders and make the cinder walk; and he is the party who buried the- scuttle there that caused the injury, and knew it was there and saw it afterwards when the bail protruded. If this is true then by adoption and by contract it was. the village’s walk and they were chargeable with notice of all defects in construction, as well as those that could be discovered by reasonable inspection. Neither is there anything sound, we think, in the claim that it was not a sidewalk because constructed of cinders. It was a sidewalk no matter whether constructed of cinders, plank, stone, concrete, or of any or all of them combined. It was built on the side of the street, the proper place for a sidewalk, was built for a sidewalk and was a sidewalk. . And in any even it was the duty of the village to use reasonable care to keep it in reasonably safe repair for the use of pedestrians using ordinary care for their safety, although in the extreme limits of. the village, whether built by residents of the street or otherwise. Graham v. City of Rockford, 238 Ill. 214; City of Centralia v. Ayers, 133 Ill. App. 290; City of Flora v. Naney, 136 Ill. 45; Town of Normal v. Bright, 223 Ill. 99.

While a city or village is not an insurer of safety to pedestrians on its sidewalks and is not liable for slight defects trivial in their nature, or for hidden or latent dangers of which it has no actual notice and not discoverable by reasonable care, yet we think the jury were warranted in finding the defendant guilty of the negligence charged, and that the appellee was injured while exercising reasonable care for her own safety. We have examined all the other errors assigned, and find that they are not tenable. The notice to the village was properly admitted in evidence and the court did not err in charging the jury in the instructions complained of, modified and given, or in refusing the one not given for appellant. The question of the amount of damages recoverable was one for the jury also, and the evidence supports them in their findings.

Finding no reversible error in this record’ the judgment of the lower court is affirmed.

Affirmed.


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    William J. McDavid, Executor, Appellee, v. John Russell Miller, Appellee, and The Presbytery of Alton of The Presbyterian Church in the United States, Appellant.
    1. Wills—effect of codicil. The publication o£ a codicil is the repuhlication o£ the will in the form in which it was at the time of the execution of the codicil, and proof of the execution of the codicil establishes the will.
    2. Wills—effect of codicil. A clear gift cannot be cut down by any subsequent codicil unless it shows a clear intention so to do. Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be disturbed only so far as is absolutely necessary to give effect to the provisions of the codicil, and in other respects the will and codicil are to be construed together.
    3. Wills—when second legacy cumulative. When two legacies of quantity are given simpliciter to the same person by different testamentary documents, the presumption is that the second legacy is cumulative without regard to the matter of equality or inequality in amount. And an expressed intention to make the alteration in a will in one particular, negatives, by implication, an intention to alter it in any other respect.
    4. Wills—when devises cumulative. The will in question in this case is construed and the devises made by codicil held cumulative and additional rather than substitutes for and in lieu of a devise contained in the original will.
    Bill to construe will. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Statement by the Court. This is an appeal from a decree of the Circuit Court construing the. will and two ¡codicils of John R Newman, deceased. The will was 'made January 12,1886; the first codicil, April 20,1886; and the second codicil, March 27, 1895. All were duly probated, and the devisory clauses in the will that are specially material here are as follows:

      ‘ ‘ Third. After the death of my said wife, it is my will, and I order and direct that a trust fund of two thousand dollars shall be raised out of my estate and invested at interest, the income of which trust fund I give unto my adopted daughter, Carrie Miller, during her natural life. And at the decease of the said Carrie Miller, the interest or income of said trust fund shall be paid to her oldest son, John Bussell Miller, until he, the said John Bussell Miller, shall attain the age of twenty-one years, and then the principal sum or trust fund shall be paid to the said John Bussell Miller. If, however, the said John Bussell Miller shall have attained the age of twenty-one years at the time of the death of the said Carrie Miller, then the said principal or trust fund of two thousand dollars shall be paid to him at once, and in case the said John Bus-sell Miller shall die without issue before he shall come into the possession of the said principal or trust fund, then said principal or trust fund to be given to the heirs of the body of the said Carrie Miller, share and share alike.
    “Fourth. Whereas, I have made a bequest of five thousand dollars to the endowment fund of Lincoln University, of Lincoln, Illinois, payable two years after the death of myself and my wife or the survivor of either, it is my will, and I direct my executor to pay the said sum of five thousand dollars to the proper officers of the said Lincoln University, within two years after the death of the survivor of myself or my wife, which sum is to be used as a part of the endowment fund of said university.
    “Seventh. All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto Eev. William J. McDavid, of Irving, Montgomery County, Illinois, his heirs and assigns forever; but in trust, nevertheless, for the performance of this my will concerning the same. That is to say:
    “1st. To take care, management and control of all my said estate upon the death of my said wife if she shall survive me, but if I shall survive her then upon my death, and manage the same to the best advantage as he, the said William J. McDavid, may think best.
    “2nd. It is my wish that within five years after my said trustee shall take the care and control of my said estate, he shall convert the same into money, and if he shall make sales of any portion or all of my said estate before the expiration of the said five years, it is my will, and I so direct, that my said trustee shall loan the proceeds thereof at interest upon good securities, for a term not to exceed the period of five years from the time my said trustee shall come into the control and possession of my said estate.
    “3rd. After the expiration of the said five years I direct my said trustee to pay over to the Vandalia Presbytery of the Cumberland Presbyterian Church of Illinois all of the rest, residue and remainder of my said estate, to it and to its successors and assigns forever, the principal sum of which shall be held by the said Presbytery as a permanent fund and the same to be loaned at interest or invested in good interest-bearing securities, and the interest arising from said principal sum to be applied by the said Presbytery to the support of a missionary within the bounds of the said Vandalia Presbytery, said missionary to be under the control of the said Presbytery.”
    The first clause in the will provided for the payment of the deceased’s debts, and by the second clause the deceased devised all of his property, real, personal and mixed to his wife, Elizabeth Newman, for life with power to manage the same and to use so much thereof as she deemed necessary for her support and comfort. The fifth clause thereof made a specific devise of a lot of ground to the Liberty Prairie Church Society of the Cumberland Presbyterian Church, and the sixth was a specific devise of one thousand dollars to Rev. William J. McDavid, the executor named, in lieu of all commissions allowed him by law. The devisory part of the first codicil contains two specific devises of scholarships in the Lincoln University, one each to the said William J. McDavid and Mrs. Fannie Starkey, daughter of Samuel Miller, Sr. The particularly material parts of the second codicil are in these words:
    “Second. I give, devise and bequeath to Carrie Miller the interest on fifteen hundred dollars, and at her death said sum of fifteen hundred dollars shall go to her three children.
    “Third. I give, devise and bequeath to John Russell Miller the sum of fifteen hundred dollars, to be paid to him within two years after the death of my wife.
    “Tenth. Having heretofore, by the fourth clause of my will, devised the sum of five thousand dollars to the Lincoln University, of Lincoln, Illinois, to be used as part of the endowment fund of said university, I hereby give, devise and bequeath an additional sum of five thousand dollars to said Lincoln University, of Lincoln, Illinois, said bequest to be upon the terms and conditions as set forth in the said fourth clause of my will as aforesaid, making in all a bequest of the sum of ten thousand dollars to said university endowment fund.
    “Twelfth. It is my will that after the foregoing bequests herein have been met and fulfilled as herein set forth, and the bequests, as set forth in my former codicil have also been fulfilled, then the seventh clause in my will shall take effect and the rest, residue and remainder of my estate, real, personal and mixed, shall go as set forth in the said seventh clause of my will aforesaid.”
    First, fourth, fifth and seventh clauses of the second codicil contained specific devises of $500 a piece to Fanny Starkey, Lizzie Lauterman and Ella Arbuthnot; the sixth, one of $600 to Belle Ellis; the eighth, one of $200 to Mollie Bratton; and by the ninth clause thereof he willed his watch to Edwin Ray Hunter.

      The other facts were agreed on as follows \ that the testator died March 31, 1895, leaving his said widow who took and enjoyed his property after his death until she died, November 22, 1907; that on her death the executor took charge of said property except the church lot and has in his possession the proceeds thereof, $20,688.85, enough to pay all specific legacies and leave a balance for the residuary legatee; that said John Bussell Miller was named for the testator, John Bussell Newman, and lived and made his home with said testator from the time he was four years old to the death of the testator and was schooled and clothed by the testator during that time and is now thirty-four years of age; that said Carrie Miller was living at date of the second codicil and was his adopted daughter and had then four living children including said John Bussell Miller, and that she died May 25, 1904, leaving John Bussell Miller and Margaret A. Miller as her only children and heirs; that the appellant is successor to Vandalia Presbytery of the Cumberland Presbyterian Church and entitled to all its predecessor’s rights under said will; that said testator in his lifetime gave his note for $5,000 to Lincoln "University payable two years after death of himself and wife which is still held by the payee and the same has never been filed as a claim against said estate.
    Warnock, Williamson & Burroughs, for appellant.
    Early & Williamson, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

The sole question for our decision is whether the second and third clauses of the second codicil were intended to be cumulative and additional devises, or substitutes for and in lieu of, the devise in the third clause of the original will. The lower court held that they were cumulative and that John Russell Miller was entitled to $2,000 by the original will and $1,500 by the third clause of the second codicil. “The publication of the codicil was a republication of the will in the form it was at the time of the execution of the codicil, and proof of the execution of the codicil establishes the will.” “A clear gift cannot be cut down by any subsequent words (or codicil) unless they show an equally clear intention. * * * Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be disturbed only as far as is absolutely necessary to give effect to the provisions of the codicil, and in other respects the will and codicil are to be construed together.” Hubbard v. Hubbard, 198 Ill. 621; Vestal v. Garrett, 197 Ill. 398; Jenks v. Jackson, 127 Ill. 341; Phayer v. Kennedy, 169 Ill. 360; 30 Am. & Eng. Ency. 665.

When two legacies of quantity are given simpliciter to the same person by different testamentary instruments, the presumption is that the second legacy is cumulative without regard to the matter of equality or inequality in amount. And an expressed intention to make the alteration in a will in one particular, negatives, by implication, an intention to alter it in any other respect. 18 Am. & Eng. Ency. 729; 3 Am. & Eng. Ency. 296 (1st Ed.); Vestal v. Garrett, 197 Ill. 398.

‘Examining the will and codicils carefully and applying the well established principles of construction to them we think it clearly appears that the lower court gave the proper interpretation of said will. Great stress is laid by appellant on the twelfth clause of the second codicil as showing a clear intent in the testator to abrogate the third clause of the original will. We see no more reason why this clause should be thus abrogated from the will than any other clauses of the original will with the exception of the second and fourth. It is practically conceded by appellant that the whole of the original will is in full force except the third clause. It seems to us clear that what the testator meant by the words in said twelfth clause “after the foregoing bequests herein have been met and fulfilled as herein set forth, and the bequests, as set forth in my former codicil have also been fulfilled, then the seventh clause of my will shall take effect,” etc., is that the two codicils in his will are to take effect and be complied with before the taking effect of the residuary legacy spoken of in the third provision of said seventh clause, and without any notion of abrogating the other clauses in his original will. In other words the testator simply meant that we were to insert the first and second codicils in his original will as part and parcels thereof and between the sixth and seventh clauses thereof. He clearly did not intend that the two codicils and the seventh clause of the original will should constitute the whole of his will, and we therefore conclude that the clear intent of said twelfth clause when fully expressed is that the first six clauses of the will are to be first met and then the clauses of the codicils and then the seventh clause of the original will shall take effect, etc. The payment of .the devises in the codicil necessarily reduced his whole estate previously willed the amounts thereof, and the language in the said twelfth clause is a clear and explicit direction that the whole amounts are to be paid in reduction of the residuary devise. It is also insisted that the tenth clause of the second codicil furnishes a sufficient reason by the use of the words “an additional sum” to show that the devise in the third clause thereof is not additional or it would have been so expressed. Such words when connected with other circumstances have been held sufficient for such a conclusion, but standing alone we see no more reason why it should be an argument against a cumulative devise than in favor of it. To our minds it is only an argument that the testator knew how to make himself very definite, and that he realized some necessity for it in the tenth clause; but it does not clearly explain to our minds why he did not use explicit words of revocation as to the third clause of his original will if that was his intention. The devises in the second and third clauses of the second codicil are entirely different from the third of the original will as will be seen by comparison. Carrie Miller was his adopted daughter and John Eussell Miller was her son and his namesake and had lived with the deceased and had been schooled and clothed by him. The presumption is in favor of the validity of the devise and more strongly so when the devisee has sustained intimate and affectionate relations with the testator during his life and we see nothing in the will and codicils to overcome this presumption. Waters v. Waters, 222 Ill. 26.

The decree of the Circuit Court will therefore be and is affirmed.

Affirmed.


text:
    John Bisel, Appellee, v. Kerens-Donnewald Coal Company, Appellant.
    1. Mines and miners—when negligence not established. Held, that the use of the latch and switch complained of in this case did not show negligence, the evidence showing that such latch and switch were the same in construction as all other latches and switches used in the mine and were operated in the sajne way as in other mines and railroads, the evidence not showing that the latch and switch in question were out of repair.
    2. Appeals and errors—duty of court to submit case to jury. If there is any evidence tending to prove the plaintiff’s case, the court should submit it to the jury. After verdict, if it is manifestly against the weight of the evidence, it is the duty of the court to set the same aside.
    3. Trial—when remarles of counsel ground for reversal. In an action for personal injuries remarks of counsel are improper and constitute ground for reversal where their purpose is to have the jury treat the defendant corporation other than as an individual would be treated.
    4. Teial—when remarles of counsel ground for reversal. In a close case unfair remarks of counsel calculated unduly to arouse the prejudice of jurors constitute ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Wise, Keefe & Wheeler, for appellant.
    D. H. Mudge, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The plaintiff, John Bisel, alleged in a two count declaration in substance, that the defendant, Kerens-Donnewald Coal Company, neglected to furnish the plaintiff, as driver in its mine, a reasonably safe place in which to work and reasonably safe appliances with which to work; that the road and track of defendant at the junction of the fifth and sixth north entries off the first west entry in said mine were dangerous; that the outer or east rail of said track there was not sufficiently elevated above the inner rail, and that the sixth entry entered said fifth entry on a down grade curve; that the latch or point of the switch there was constructed and maintained with sufficient space between the latch and the rail to catch and hold the foot of one walking when the coal cars passed over same; that props, timber and gob and dirt were permitted to remain within one to two feet of the east rail there so as to obstruct the walkway for the driver; all of which the defendant ought to have known by the exercise of due care and have warned the plaintiff thereof, but failed to do so; that the same was unknown to plaintiff and while performing his duty as driver for defendant down said decline and around said curve over said latch his foot was caught thereby and his trip-cars ran upon and crushed his foot while he was trying to keep the said cars on said track. Two trials have been had in the lower court and the first verdict for $1,500 was set aside on motion for new trial. This appeal is by the Kerens-Donnewald Coal Company from the second verdict and judgment for $1,000. The appellant insists here that it was not guilty of the negligence charged; that the appellee knew of the conditions at the place where he was injured and was himself guilty of contributory negligence; and that the verdict was the result of prejudice of the jury caused by improper remarks of appellee’s counsel to the jury.

The evidence shows that the latch and switch complained of are the same in construction as all other switches and latches, and were operated in the same way as in other mines and railroads. The evidence does not in any way show that the latch or switch was out of repair. “A railroad company cannot be required to adopt any particular method of construction, or any particular contrivance or device, in order to be in the exercise of ordinary care. * * * The only question proper to submit to a jury in such eases is, whether the premises as they existed at the time of the injury were reasonably safe.” C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330.

The claim of the plaintiff was that the roof over this switch was about five feet high and that the driver had to stoop over as he walked through there; that the curve there was very sharp and the east rail lower than the other and that it was a down grade, which caused the cars to hang eastward as they rounded the curve; that by reason thereof the cars had to be shoved westward as he walked in front of them and while doing this got his foot caught between the rail and the latch and that the car ran on it and crushed it. He also claims that the props were so close to the rail there that he could not safely walk outside the rail, and that between the rails in front of the ear is the proper place to walk. It is in evidence, too, that the driver usually had to run the mule at this point to keep the cars from running on to him. This was the first trip that plaintiff had made through this place as a driver, and he claims he did not know of the down grade and dangerous condition there and was not warned of it. If there is any evidence tending to prove the plaintiff’s case, the court should submit it to the jury. After verdict if it is. manifestly against the weight of the evidence it is the duty of the court to set aside the verdict. Donelson v. E. St. L. Ry. Co., 235 Ill. 625.

We do not desire to express any opinion as to the evidence in this ease on the merits further than to say that it was an exceedingly close question as to whether or not any verdict should be allowed to stand without error of any character to contend with in the case. In his closing arguments to the jury plaintiff’s counsel was permitted by the court over the objection of the defendant to say to the jury:

“There comes a time when the parties don’t ask for special privileges, and this is the time when they are not asking for privileges. There is a time, and that time has come to-day, right now, in this very suit when this company wants to be treated the same as an individual; that time is when they are sued for the injury an employe has sustained. That is in this case when this plaintiff has been hurt, as we allege in count two of our declaration, by the negligence of this coal company, while the plaintiff was doing his duty, conducting that trip of cars around the curve, and it is when he has sued this company, and is before a jury, when they come and say treat us the same as an individual ; give us the same privilege you would give an individual.”

We consider it reversible error for the court to overrule the defendant’s objection to these remarks. Such remarks were very unfair and while it is not possible for us to say that the defendant suffered by them, yet their usual and probable effect is well known. There can at least be no mistake as to the intention with which they were made. No party or attorney should be allowed to profit by such unfair means, and this court has often given warning that in a close case unfair remarks of the above character calculated unduly to arouse the prejudices of jurors will be sufficient cause when considered alone to reverse the judgment. Had the court sustained the defendant’s objection to said remarks we would then be unwilling to affirm this judgment because they are of such character that their effect cannot well be thus avoided.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Sadie Finkelstein, Appellee, v. Samuel Lyon, Appellant.
    Gen. No. 17,151.
    1. Jurisdiction—to vacate order approving appeal bond. Where a motion to vacate an order approving the appeal bond is .made at the judgment term and continued, the jurisdiction to pass upon such motion is retained.
    2. Appeals and ebrobs—what essential to review. A final appeal-able order must be shown of record before a review of the proceedings of the lower court can be had.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1909.
    Motion denied.
    Opinion filed November 14, 1910.
    Statement by the Court. July 15, 1910, the motion of the defendant in the Superior Court for a new trial was denied and a judgment entered against him for $15,000, from which he prayed and was allowed an appeal to this court on filing an appeal bond. July 16 defendant filed his appeal bond, which was approved. July 28, at the judgment term, defendant entered his motions to vacate the order approving the appeal bond, to vacate the judgment, to vacate the order denying his motion for a new trial, and for a new trial. The motions were continued from term to term, until September 24, when said motions were granted-, the order approving the appeal bond vacated, the judgment set aside and a new trial ordered. The plaintiff in the judgment filed in this court a transcript of the record and moved that the appeal be dismissed with damages. The court of its own motion struck the transcript from the files and this is a motion to vacate that order and dismiss the appeal with damages.
    Brown & Navigato, for appellant.
    McGilvray, Eames & Maclean, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The contention of the plaintiff in the judgment is, that after the appeal was perfected by the filing and approval of the appeal bond, the Superior Court had no jurisdiction to vacate the order approving the appeal- bond or to vacate the judgment, or to grant a new trial; that all orders made in the cause after the approval of' the appeal bond must be held void and the judgment of July 15 held to be a final judgment.

In this contention we are unable to concur. Conceding that so long as the order approving the appeal bond remained in force, the Superior Court was without jurisdiction to vacate the judgment and grant a new trial, the question remains whether, where a motion to vacate the order approving the appeal bond was made at the judgment term and continued, that court ha.d authority to vacate the order approving the bond. That it had such jurisdiction was held in Briggs v. Dunne, 163 Ill. 36. In the opinion in that case it was said: “If the court has the power to vacate a judgment or decree during the term, it is plain that the order vacating the judgment approving the bond was one within the jurisdiction of the court, and after that order was entered appellant’s appeal was at an end.” But it is not necessary in this case to decide that the decision of the Superior Court that it had authority to vacate the order approving the appeal bond was correct. It is enough that it had jurisdiction to decide that question.

Whether its conclusion that it had such jurisdiction is erroneous is a question not brought before us for review on the transcript now before us, for the reason that the record shows no final judgment from which an appeal or writ of error will lie. Domitski v. Amer. Linseed Co., 221 Ill. 161; Walker v. Oliver, 63 Ill. 199 ; Roseland Manfg. Co. v. Arcan, 55 Ill. App. 336.

The motion to vacate the order, striking the transcript from the files and to dismiss the appeal with damages, will be denied.

Motion denied.