text:
    Bank of Montreal, Appellant, v. Mary L. Griffin, Administratrix, Appellee.
    Gen. No. 15,074.
    Negotiable instruments—how defense of gambling consideration must be established.' A defense to cut off the financial rights of a party, unconnected with the immorality alleged to be inherent in the transaction, must be sustained by tangible proof, and not rest in surmise or conjecture.
    Baker, J., dissenting.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed May 2, 1910.
    Rehearing denied May 16, 1910.
    Egbert F. Pettibone and Edward H. Tillson, for appellant; John S. Goodwin, of counsel.

      George W. Plummer and Wharton Plummer for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat and for costs. The trial was before the court without the intervention of a jury. There were originally two suits, one on seven and the other on three promissory notes. By the agreement of the parties the suits were consolidated and tried as one case. Asa Griffin, the maker of the notes, dying while the cases were pending and before trial, his administratrix was substituted as defendant. Seven of the notes, for $2,500, $1,000, $1,500, $2,500, $750, $1,000 and $2,000, were respectively payable to P. B. Weare & Co., who endorsed and delivered them to the Bank of Montreal, and three notes for $800 each and one for $900 were payable to the Bank of Montreal. Some of these notes were given in renewal of like notes which had matured. The declarations consisted of the common money counts and special counts declaring on each note separately. Defendant pleaded non assumpsit and special pleas to each special count, in which latter pleas it is averred that the notes were given to P. B. Weare & Co. for money won by gaming on the market price of grain at a future time, on dealing in “puts and calls” and in attempting to corner the market on July 1903 delivery of oats, and for margins in carrying on a “blind pool.” To these pleas plaintiff replied'by traversing the averment that the consideration of the notes was money won by gaming, etc. On the issues so joined the cause proceeded to trial. Plaintiff, prior to filing replications traversing the gambling pleas, filed other replications setting up as matter of estoppel that Asa Griffin in his lifetime represented to plaintiff that the notes sued on were not given for gambling transactions, but for legitimate business dealings, and that no defenses existed to the notes. Demurrers to these replications were filed by defendant and sustained by the court.

The defense to the notes sued upon and sustained by the court below, was that the notes were given for money won at gambling on the market price of grain at Chicago, in contravention of section 131 of the Criminal Code, Eevised Statute, chapter 38, which notes by section 131 supra are rendered void. Section 136 provides in effect that no assignment of such notes shall cut off the defense of gambling by the maker. As we view this case the solution of the controversy rests in the effect to be given the evidence found in the record, or, in other words, does the preponderating weight of the evidence sustain the defense that the notes in suit were given for money won at gambling on the market price of grain at Chicago and Milwaukee, or in any forms of gambling alleged in any of the special pleas. We take it that there is no serious contention that the plaintiff bank had any interest in the transactions, whatever they may have been, for which the notes in suit were given, or that plaintiff did not in fact pay money for the notes by crediting the Weare account with the amounts payable, according to the custom of banks. The facts are controlling of the rights of the parties. The probative force of the evidence therefore is the important question for our determination. The legal questions are not seriously controverted. We do not think the doctrine of estoppel is involved. If such doctrine could be invoked it certainly could not avail to the extent of defeating the statute supra against gambling. The courts will not permit of any condonation of offenses against the gambling statute by the acts of the parties, as to do so would encourage methods of evasion anu destroy the salutary restraint upon gambling intended by its enactment. The sustaining of the demurrer to the replications seeking to avoid the statute for the reasons alleged as constituting an estoppel, was without error. Still, evidence as to statements made by Griffin to O’Grady, the local manager of plaintiff, were admissible, not as evidence working an estoppel, but as bearing upon the claim of plaintiff that the notes were not involved in any gambling transactions. Such evidence was admissible as part of the res gestee as tending to disclose the attitude of the parties toward each other at the time the notes, were given. It is the law in this State that notes given for money won at gambling are void even in the hands of innocent holders for value before maturity. If the evidence in this case establishes, by a preponderance of its weight, and not beyond a reasonable doubt, as held by the learned trial judge, that the consideration of the notes was, as alleged in the special pleas, money won by P. B. Weare & Co. of Griffin by gambling on the market price of grain, by buying or selling “puts” and “calls” or by wagering or betting upon a contingent and unknown event, viz. the future, price of grain, or for money won by P. B. Weare & Co. from Griffin by gambling on the market price of grain at a future time and buying and selling’ deals, privileges and options for the sale and purchase of grain for future delivery or other dealings of like character and gambling nature set up in the special pleas, then the finding of the trial judge must be sustained. If a preponderance of the evidence does not so establish, then the defense fails. Should the evidence show that any of the notes are tainted with gambling transactions from the fact, if it be a fact, that notes previously given for any of those involved in this suit were for the consideration of money won by gambling in any of the methods or forms set out in the special pleas, then the notes in suit would be subject to the same defense as those originally given. Without deciding any of the objections made by plaintiff to the admissibility of any of the evidence of defendant, we will treat all the proofs as evidence in the case and from it proceed to decide whether it proves, by its preponderating force, that the notes sued upon were connected with gambling transactions. The averment of the special pleas is that the consideration was money won by gambling, etc. This averment must be borne in mind in judging of the weight of the testimony and deciding as to its preponderance. Griffin, the deceased, in his lifetime was a farmer who also engaged in speculating in grain in the Chicago and Milwaukee markets, through the firm of P. B. Weare & Co., who as a firm were not doing business in their own name, but in that of the Weare Commission Company, a corporation, on whose books Griffin’s accounts were kept. These books were offered as evidence by defendant and largely relied upon to sustain defendant’s defense that the notes were given in consideration of transactions which were of a gambling character, and for money won from Griffin by the payees in gambling deals in grain, etc. At the close of all the transactions between Griffin and the Weares a statement rendered to him by the Weare Commission Company showed a balance due Griffin of $21,-951.39. This amount was not paid. Some of the dealings which Griffin had, in fact many of them, were indisputably illegal and contrary to the law of this State and in their nature gambling transactions. “Puts” and “calls” were freely bought and sold for Griffin’s account, as appears from the books of the Weare Commission Company, in evidence. Such deals are made illegal by statute and condemned as gambling by the courts. Were the notes in suit traceable to these deals, the statute would render them void, but they are not so traceable and there is no direct evidence connecting any of them with any of these “put” and “call” deals. The contention that they are rests solely in conjecture and surmise. While several witnesses employed in the Weare concerns testify as to “put and call” deals of Griffin involving several millions of imaginary grain, not one of them give any testimony which by any reasonable construction can be said to connect either of the notes in suit with any one of such illegal deals. That no grain was delivered on any of these “puts and calls” might be assumed. Such deals are not manipulated by delivering the product. Settlements, when made, are in differences as a general custom, and the evidence in the record establishes that in this way most of Griffin’s “put and call” deals were settled. We have searched the record, and particularly the accounts offered by defendant, in vain to find any connection between the notes sued upon and gambling and illegal transactions. True it is that a large number of deals were had in grain for future delivery, and nearly four million bushels of oats were involved in a deal in which Griffin, with more than one hundred other persons, was interested. Yet there is no evidence that these deals, large as they were, were for future delivery to be settled upon differences between the market and the contract price. On the other hand, there is testimony showing not only that the contracts for future delivery were regular, hut that the actual commodity contracted for was in fact delivered to and received by the concerns through which the Weares did business at different times. Furthermore, there is no evidence that either one of the notes in dispute was given as a consideration for any one of such deals. Neither is there any evidence directly connecting any one of them withe any of the deals shown by the accounts in the record. Moreover, no witness has so explained the accounts as to make it possible, even by inference, to connect any of the so-called illegal deals with the notes, by balancing such accounts at any of the dates when any of the notes were given, or at the dates of the notes for which some of the notes in suit were substituted. Whenever balances were so struck they showed that Griffin had considerable sums to his credit. The averment that the consideration of the notes was money won by gaming must be fortified by evidence of the fact alleged before it is available as a defense. A defense operating to cut off the financial rights of a party, unconnected with the immorality alleged to be inherent in the transaction, must be sustained by tangible proof, and not rest in surmise and conjecture. It is not material for us to decide whether the Weares,- or any of their operating companies, were engaged in cornering the oat market in which Griffin was interested. The parties may have contracted to buy all the oats in sight and have failed to complete the purchases for lack of funds. Such fact, if it was a fact, does not tend to prove that the consideration for the notes in suit was money won by P. B. Weare & Co. from Griffin by gambling in oats or any other commodity. The accounts in evidence do not show the deals which are said to constitute the oats corner. Weare’s statement around his office that his concerns were running a corner in oats in no way tended to prove that Griffin’s notes were given in that transaction or for money won at gambling, etc. As illustrating the weakness of defendant’s evidence'on the crucial point that the consideration of the notes was money won by gambling, etc., we refer to the evidence of defendant’s witness Wolfe. He had no actual knowledge in relation to Griffin’s deals except as shown by the books. He was unable to connect any one note with any one transaction or any series of transactions. The utmost he testified along these lines was, that it was the custom to take such notes from customers for margins, but what deals the notes in suit margined, if any, he was unable to say. He finally admits that he had no recollection “regarding any particular transaction”, and. he undoubtedly told the truth. The testimony may leave in doubt what was the real consideration for the notes, but that situation does not warrant the legal conclusion that the consideration was money won by Weare from Griffin by gambling, etc. Following these accounts, introduced by defendant, to their denouement, we find that so far from Weare having won money from Griffin by gambling, that Griffin had a credit of $21,-951.39, which is several thousand dollars more than the aggregate of the notes in suit.

The defense interposed has failed, and the finding of the trial judge is manifestly contrary to the preponderance of the evidence. The judgment of the Circuit Court is reversed and a judgment for the principal and interest of the ten notes sued upon will be entered in this court, which on this day is the sum of $19,295.27, and the same is ordered paid in due course of the administration of the estate of Asa Griffin, deceased.

Reversed and judgment here for $19,295.27.

Mr. Justice Baker, dissenting.


source: Caselaw Access Project

author: Mr., Presiding Justice Holdom

license: Public Domain

text:
    Esther Fitzpatrick, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 15,085.
    1. Master and servant—safe place to work. Regardless of the character of the work which the servant is required to perform, it is the duty of the master to exercise reasonable care to furnish him with a place reasonably safe to perform such work.
    2. Master and servant—what risks not assumed. A servant is not chargeable with knowledge of a peril of which he has had no opportunity to inform himself.
    3. Pleading—when averment of negligence not sustained. The facts being stated from which it can be said1 the law imposes a duty, a failure to perform that duty is negligence, for which damages are assessable for injuries incurred as a result of such negligence.
    Action in case for death'caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 3908.
    Affirmed.
    Opinion filed May 2, 1910.
    Calhoun, Lyeord & Sheean, for appellant; John Gr. Drennan, of counsel.
    John S. Hummer and Charles A. McDonald, forappellee.
   Mr., Presiding Justice Holdom

delivered the opinion of the court.

This action is brought under the statute by the plaintiff for the benefit of the next of kin of her intestate against defendant for negligence resulting in the death of the intestate. Two trials before juries each culminated in verdicts for $5,000, for which judgments have been entered in the trial court. The first judgment was affirmed by this court in an opinion found in 125 Ill. App. 247. The Supreme Court on further review reversed the judgment and ordered a new trial for the sole and only reason that the trial court gave an erroneous instruction defining the doctrine of assumption of risk of deceased in his employment by defendant at the time of sustaining fatal injuries. In all other respects the court of final-review found the record without error. In the opinion of this court, voiced by Mr. Justice Adams, a full statement of the case appears, and we content ourselves by referring to it as a sufficient statement both of the facts and the law of the case, without again repeating them here.

The cause proceeded to trial on the same issues joined as at the first trial, the evidence being substantially the same on both sides, with the exception that at the trial now being reviewed some additional testimony on the question of contributory negligence claimed to be attributable to deceased as the cause of his death, was injected by defendant. The 'Supreme Court in its opinion supra say: “Without entering into any discussion of the evidence, it is manifest from the foregoing statement that the court did not err in refusing to direct a verdict for appellant,” the defendant. The court also said as to the assumption of risk, that “it was a question to be determined by the jury, and appellant was entitled to have the question determined upon proper instructions.”

Whether deceased was chargeable with negligence which contributed to bring about the fatality was also for the jury to determine under appropriate instructions upon the law. We find no reason to disagree with the instructions given to the jury on this branch of the case. Groing between the cars was, as we understand the evidence, not only necessary but customary in making a coupling with a Janney coupler. The fatal injury did not flow from this act, but from the negligent maintenance of a post supporting a leaning embankment so near the track as to cause the injury when deceased emerged from between the cars. Whatever may be argued concerning the ownership of the switch yard in which the accident happened, the duty cast upon defendant by law was to furnish a reasonably safe place for deceased to do his work, a reasonably safe place in which to do the work required of him. The situation of the post made it an unsafe place and menaced deceased with a danger of the existence of which he was ignorant. Its maintenance was negligence. No contributory negligence is imputable to deceased from the evidence. He was in that place for the first and only time. He cannot consistently be chargeable with knowledge of the peril of which he had no opportunity to inform himself. As said by Judge Adams in opinion supra-. “Having been sent by his employer to work in that place, he was not required to' make an examination for defects, but had a right to act on the presumption that (defendant) appellant had exercised reasonable care in making the place where he was required to work safe”. Knowledge of the dangerous condition is imputable to defendant from the fact that it had existed for some time, and those employes of defendant who had at other times worked in the yard knew of the danger. No warning of this danger was given deceased, nor was he made aware in any manner by any person of the peril to be avoided and guarded against. It is contended that there is no averment of negligence in defendant’s failing to warn deceased of the dangerous obstruction, and consequently there can be no recovery because deceased was not warned of the danger. The law does not require an averment of negligence in this regard. The facts being stated from which it can be said the law imposes a duty, a failure to perform that duty is negligence, for which damages are assessable for injuries incurred as a result of such negligence. As applied to this case the duty rested upon defendant not only to furnish deceased with a reasonably safe place in which to do the work for which he was employed, but to warn him of dangers to be encountered in the performance of such work, of which defendant had actual knowledge or knowledge of which was imputable to it. Defendant had actual knowledge of the dangerous condition which was the proximate cause of the death of deceased; it gave no warning or information thereof to deceased; and such in effect is the averment of the declaration. The danger was unknown to deceased, and from no fact in this record is knowledge of it imputable to him. On both of these points is the negligence of defendant established sufficiently to meet the averments of the declaration. The error in the instruction which resulted in reversing the first judgment was avoided upon the last trial. We have with diligence examined the several instructions complained about, and do not announced as to justify a reversal of the judgment, which is in every respect' meritorious. Nor do we find any instruction proposed and refused which contains any vital principle of law not embodied in instructions given, necessary to enable the jury to solve the facts in accord with the law, or that the giving of either of such refused instructions would have authorized the jury in arriving at a different verdict.

The trial was in all respects conformable to legal precedent. The result doing justice between the parties, the judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Anna Horaburda, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,108.
    1. Contributory negligence—when persons using sidewalk known to he out of repair not guilty of, as a matter of law. If the jury believed that the negligent mainteiiance of the sidewalk by the city presented an embarrassment of dangers to plaintiff in going to her residence, and that she was reasonably careful in selecting the better of the boards in the walk in her hurried progress to her dwelling, then they were justified in concluding that she was in the exercise of due care for her own safety.
    2. Instructions—when as to duty of city with respect to its sidewalks improper. Instructions upon such subject should observe the distinction which exists in general parlance and by common understanding between streets and sidewalks. If the sidewalk is meant the instruction should so state and an instruction not observing this distinction is improper.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 2, 1910.
    Edward J. Bbundage and John B. Caverly, for appellant ; Madison B. Harris and Charles C. Gilbert, of counsel.
    George E. Gorman, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff sued to recover from the city of Chicago damages for a personal injury resulting to her from falling on a defective sidewalk negligently maintained by the municipality. On a trial before the Superior Court and a jury plaintiff recovered a verdict and judgment for $2,500 and the city appeals and argues that the judgment should be reversed for errors of a prejudicial nature occurring during the trial.

Counsel for defendant argue that the judgment is not sustained by the evidence, because the evidence demonstrates that plaintiff knew of the defect in the sidewalk, but fails to show that she took any “extra care” to avoid the danger known to lie in her path by reason of such known defect. Also error in the refusal of the trial judge to give instructions numbered 15, 16, 17 and 18, and in admitting incompetent evidence, and that the judgment is contrary to the weight of the evidence and the award of damages excessive.

On June 11, 1903, plaintiff sustained the injury, as compensation for which the jury awarded damages which culminated in the judgment involved in this appeal, by falling upon a sidewalk in front of her residence in Chicago while returning from a marketing errand at the unusually early hour of 4:30 in the morning. This sidewalk had been out of repair for some time and its defective condition was known to plaintiff. Counsel for the city say in their brief that plaintiff “was carrying a basket of groceries on her left arm. ‘She was an awful stout woman, weighed about one hundred and fifty-five to one hundred and sixty pounds.’ The sidewalk where appellee fell was in a very dangerous condition and had been so for over a year. Appellee had known the sidewalk was dangerous for at least eight months before the accident, had passed over it at the place of the accident during that period three or four times a day. The injuries sustained by appellee as the only direct result of' the fall were, right leg skinned, shoulder contused and bruised, fracture of the eighth and ninth ribs and bleeding from the nose.” Without conceding the verity of the foregoing statement, there is sufficient in it, by way of admission, to fasten upon the city negligence in permitting the place where the accident occurred to become and remain dangerous for travel, and to show injuries sustained by plaintiff sufficient to justify an assessment of damages, unless some negligence on the part of plaintiff, or imputable to her as a matter of law, contributed to bring about the injuries which she admittedly sustained at the time and place in question. At the close of the evidence for plaintiff the city requested that the jury be peremptorily instructed to bring in a verdict exonerating it from liability, which was refused.

Plaintiff testified that the board on which she stepped broke under her, causing her to fall, and that while there were many patches on the walk, there was no patch on the plank at the place where she fell. The testimony of the witnesses quoted by counsel for the city in their brief shows that the walk was rotten and most dangerous for travel and had been in such condition for more than eight months. If the board on which plaintiff stepped was apparently safe, being in the condition it was, according to the contention of defendant, as sustained by the proof, surrounded by many rotten and patched boards, then it was for the jury to determine from all the facts whether, under the circumstances and conditions which environed plaintiff at the time, she was in the exercise of due care for her own safety or guilty of negligence contributing to the accident resulting in the injuries for which she was seeking compensation from the city. The court did not err in refusing to give the proffered peremptory instruction. If the jury believed that the negligent maintenance of the sidewalk by the city presented an embarrassment of dangers to plaintiff in going to her residence, and that she was reasonably careful in selecting the better of the boards in the walk in her hurried progress to her dwelling, then they were justified in concluding that she was in the exercise of due care for her own safety, without doing violence to the principle announced in Lovenguth v. City of Bloomington, 71 Ill. 238, or any of the other cases cited'in defendant’s brief on this point.

If knowledge of the condition claimed for the sidewalk by the city in front of plaintiff’s dwelling would inhibit plaintiff from going into or coming out of her dwelling to the street, then, by parity of reasoning, plaintiff and her family would be relegated to the alley and rear entrances, if the doctrine contended for by defendant, that such knowledge of the out of repair condition of the walk bars recovery, is the law. Such contention, when carried to its logical sequence, borders on the absurd. What constitutes the exercise of reasonable care depends to a great extent on environing conditions, and as said in Wallace v. City of Farmington, 231 Ill. 232: 1‘ The use of a defective sidewalk by a person who has knowledge of the defect is not negligence per se, and if while walking upon that sidewalk such person is in the exercise, of ordinary care for his or her safety, there may be a recovery in case of injury.” City of Mattoon v. Faller, 217 ib. 273. Knowledge of the condition of the sidewalk is a circumstance to be considered by the jury in arriving at a conclusion as to whether plaintiff was in the exercise of due care. City of Flora v. Nancy, 136 ib. 45.

Instruction 15 was rightfully refused because it predicated the right of recovery upon the injuries causing the accident, when it is patent the converse of the proposition is the law. Speaking from the record, these are the words referred to: “unless the plaintiff has also proven by a preponderance of the evidence that the injuries and disabilities, if any, sustained by her, were the direct and immediate cause of said accident.” Instruction No. 16 was sufficiently embraced in No. 10 given to the jury. The reference to the duty of the city in the maintenance of its streets was calculated to mislead the jury, as the duty of the city in controversy was limited to sidewalks, and while the walks on either side of a public highway are technically a part of the street, still there is a distinction in general parlance and by common understanding between streets and sidewalks. We think instruction No. 17 was too broad in telling the jury, in effect, that, if plaintiff knew that the sidewalk was dangerous before entering upon it, and with such knowledge proceeded upon it and was injured, then she could not recover for such injuries. To walk upon a sidewalk out of 'repair is not negligence per se. The court having instructed the jury that before plaintiff could recover she must sustain by proof that she was in the exercise of ordinary care to avoid injury, was sufficient. City of Flora v. Nancy supra. Instruction No. 9 given to the jury embodied substantially every material principle comprised in instruction 18 refused. We find no error in the rulings of the court on the instructions.

The ruling of the court on questions asked Dr. Harris and answered over the objection of defendant did not invade the province of the jury to determine the ultimate fact in relation to the ailments from which plaintiff suffered and such as were attributable to her fall on the sidewalk.

The award of compensation for plaintiff’s injuries rested with the jury. We are not able to say, even conceding for the moment that the pleuro-pneumonia which attacked plaintiff after the accident was not traceable to the accident, that the award is excessive. The injuries which she admittedly suffered as the result of the accident were of a sufficiently serious character to warrant the assessment of damages made by the verdict of the jury. We see no cause justifying a belief that the jury were influenced by passion, sympathy or prejudice in their assessment of damages, nor can we say that such award is excessive or contrary to the manifest weight of the evidence.

There is no reversible error in this record, and the judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Cleopatra Wilson, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,069.
    1. Evidence—when improper ansioer will not reverse. An improper answer will not reverse if the fact which the answer tends to show was otherwise established and if no harm appears to have resulted.
    2. Evidence—when irresponsive answer will not reverse. If the question to which an irresponsive answer was given was proper and no motion to strike out such answer is made, a reversal will not be ordered.
    3. Evidence—when as to speed competent. An answer as follows, should not be stricken out because of the use of the words “I suppose: ” “After the application of the brakes I suppose the car was moving about four miles an hour,” inasmuch as the speed of the car is necessarily a matter of opinion. Held, however, that the action of the court in striking out such answer was not reversible error.
    4. Evidence—when erroneous ruling that question was leading will not reverse. The erroneous sustaining of an objection that a question was leading will not reverse if no harm appears to have resulted.
    5. Damages—what not incompetent in action for personal injuries. In an action for personal injuries it is competent for the plaintiff to show previous employment which he had had and what he had earned at such employment.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 2, 1910.
    Rehearing denied May 16, 1910.
    Edward O. Higgins and O. Leboy Bbownt, for appellant.
    O. J. Michelet, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for wrongfully causing the death of Bichard S. Wilson, plaintiff’s intestate, plaintiff had judgment for $10,000 and defendant appealed.

An electric car of defendant going east on the South track in Thirty-first street came in collision with a wagon going north near the middle, or a little east of the middle, of Fifth avenue, and by reason of such collision Wilson, the driver of the wagon, was thrown from the wagon, the forewheel of which ran over his left hand and mangled the thumb and fingers of that hand. Wilson’s face was also cut and bruised and his wounds were covered and filled with the mud and dirt of the street. He was taken to the office of Dr. Hinn, a physician, a block from the place of the accident, and there his wounds were cleansed, the thumb and first three fingers amputated and the wounds on the other two and on the face dressed. Dr. Hinn called at Wilson’s house one or more times a day and dressed his wounds. Some days after the injury the injured hand began to swell and discharge pus and the tenth day symptoms of tetanus appeared. Tetanus anti-toxin was at once administered, without effect, and thirteen days after the injury the patient died of tetanus, leaving a widow and four young children.

A witness called by defendant was asked and answered, in English, several questions and then stated that he could not speak English. The trial judge interrogated the witness and finally permitted the defendant to examine him through an interpreter, and he was so examined. We see nothing improper in the conduct or remarks of the trial judge, but only evidence of a proper effort on his part to ascertain whether the witness’ knowledge of English was so limited as to make it necessary that he be examined through an interpreter.

Witnesses for the plaintiff testified that the fore-wheel of the wagon ran over the hand of Wilson; that his fingers were cut and little pieces were hanging down; that he was taken to Dr. Hinn’s office five minutes after he was hurt. Dr. Hinn testified that when he first saw Wilson his thumb and first two fingers were hanging loose. Defendant offered no evidence tending to contradict the testimony of plaintiff’s witnesses as to the injury sustained by Wilson, or the condition of his hand after the collision. Dr. Hinn in answer to a hypothetical question concluding as follows: “What is your opinion as to whether the condition in which Wilson was when he came to your office was caused by that fall due to the collision ”j and answered over the objection of defendant, “Tes, I don’t see what else could have caused it; it evidently was the case because he stated so”. The last part of the answer was improper, but there was no motion to strike out any part of the answer: We see no substantial objection to the question, but if it be admitted that the question was improper, the defendant was not prejudiced by the question and answer, because. the only conclusion that can justly be drawn from the other evidence in the case is that the injuries from which Wilson was suffering when taken to Hinn’s office were sustained by him in the collision between the car and the wagon.

Hitchcock, a witness called by plaintiff," testified that he had often ridden on the Thirty-first street cars of defendant and was on the car that collided with the wagon. He was asked within what distance he had seen such a car as that on which he rode, going at the speed the car was going when he first saw the wagon, could be stopped under conditions similar to those then existing, and answered, “With all the appliances working properly on that car I should have thought he could have stopped the car within two and a hhlf or three car lengths of that car”. The answer was not responsive, but there was no motion to strike out. We think the question was proper. C. C. Ry. v. McLaughlin, 146 Ill. 353.

The answer of the conductor as to the rate of speed of the car after the brakes had been applied, as the car was approaching the center of Fifth avenue, was; “After the application of the brakes I suppose the car was moving about four miles an hour ’ ’. On motion of plaintiff the answer was struck out. The testimony of a witness as to the speed of a car is necessarily an opinion or estimate, and we think the answer should not have been struck out because of the words, “I suppose.” Hooper v. United Trac. Co., 17 Pa. Superior Ct. 68.

But the witness testified that between Fifth avenue and the next street west the car ran.five or six miles an hour; that as it approached the center of Fifth avenue it was slowing down, and we do not think the striking out of the answer was harmful to the defendant.

The motorman testified that when he first noticed the team and wagon the front of his car was pretty close to the west crossing in Fifth avenue, and that his power was then off; that he threw off the power as he approached the crossing. He was asked by defendant’s counsel how far west of the crossing he was when he threw off the power, and also, where he was with reference to the west crossing where he threw off the power, and the court sustained plaintiff’s objection to both questions, but held that defendant might ask the witness where he was when he threw off the power. We think the questions were proper in form and that the objections thereto should have been overruled; but we are unable to see, if the power was off when the motorman discovered the wagon, as he testified it was, how it was material where the car was when the power was thrown off.

The conductor was asked by defendant’s counsel where he was with reference to the first cross-walk when he discovered Wilson. The question was objected to as leading, and the court sustained the objection. The question was not leading, and we think the objection should have been overruled. But the ruling was not harmful, for the question was repeated in the form suggested by the court and the witness answered that when he first saw Wilson, “I was about ten feet west of the west crossing of Fifth avenue”.

Wilson when injured was employed by a certain teaming company and was paid $14 per week and extra for overtime. He had formerly been employed by the Longwell Teaming Company at $18 per week and extra for overtime, and shortly before his injury was promised re-employment by the Longwell Company. We think the court did not err in refusing to strike out the evidence as to the wages paid Wilson when he was in the employ of the Longwell Company. Knox v. Amer. Rolling M. Co., 236 Ill. 437.

The coroner’s verdict was properly admitted in evidence. U. S. Life Ins. Co. v. Vocke, 129 Ill. 557; Pyle v. Pyle, 158 id. 289; Grand Lodge v. Weiting, 168 id. 408.

We find no reversible error in the rulings of the court on the instructions to the jury. Plaintiff’s instruction 4 was given in C. C. Ry. Co. v. Ryan, 225 Ill. 287, and instruction 5 was given in W. C. St. R. R. Co. v. Foster, 175 id. 396. In each case the instruction was held free from reversible error and the judgment affirmed.

The negligence alleged in the declaration was the negligent operation of the car. We think that from the evidence the jury might properly find that the defendant was guilty of the negligence alleged; that Wilson was not guilty of contributory negligence; that as a direct result of the defendant’s negligence Wilson sustained serious injuries; that the tetanus which caused his death was the direct result of such injuries, and therefore that the contention of áppellant that the verdict is against, or not supported by, the evidence, cannot be sustained.

We think that the record is free from reversible error, and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Perfect Knitting Mills, Appellant, v. M. Obstfeld et al., Appellees.
    Gen. No. 15,076.

      Replevin—effect of special traverse of right of property. The issue made on such a plea of property in defendants does not involve the absolute ownership of the goods. It is sufficient if the plaintiff has a special interest in the property entitling him to the present possession. Under such a plea the plaintiff must recover on the strength of his own title and the burden of proof is on him to establish his right.
    Replevin. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 2, 1910.
    Alfred E. Barr, for appellant.
    Brady & Levy, for appellees; Josiah Burnham, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendants in replevin. The declaration alleged the taking and detaining by defendants of a large number of sweaters and a quantity of yarn, and contained a count in trover for the same property. All of the property was taken on the writ and delivered to plaintiff. The pleas by all of the defendants were, (1) non cepit, (2), non detinet, and (3) not guilty to the count in trover. Defendant, M. Obstfeld, pleaded property in himself and plaintiff replied traversing the plea.

The jury retured the following verdict: “We the jury find the defendants not guilty and that the right to the possession of the property in question is in the defendants and assess the defendants’ damages for the detention of said property at the sum of $250.” Defendants remitted $249.99 of the damages, and the court denied plaintiff’s motion for a new trial and entered judgment that the defendants recover from the plaintiff the property replevied, and the one cent damages by the jury assessed and their costs, and that a writ of retorno habendo issue for the return of said property.

The special plea of M. Obstfeld is in effect a special traverse of the averment in the declaration of right of property in the plaintiff, and the allegation of right of property in said defendants is merely inducement to such traverse and is not even traversable. The issue made on such plea of property in defendants does not involve the absolute ownership of the goods. It is sufficient if the plaintiff has a special interest in the property entitling him to the present possession. Cleaves v. Herbert, 61 Ill. 126. Under such a plea the plaintiff must recover on the strength of his own title and the burden of proof is on him to establish his right. Reynolds v. McCormick, 62 Ill. 412; Grotloff v. Henry, 14 Ill. 384. The verdict finds substantially that the plaintiff had not the right to the possession of the property by finding that the right to the possession was in the defendants.

It is no just ground of complaint of the plaintiff that the finding was that the right of possession was in the defendants, when only M. Obstfeld had pleaded property in himself, or that a return of the property to all of the defendants was ordered by the judgment. Defendant, M. Obstfeld, alone could complain of that. Grotloff v. Henry, supra.

The evidence is conflicting and we cannot say that the jury might not properly find that the plaintiff, was not entitled to the possession of the nroperty Iff controversy.

No material error appearing in the record the judgment is affirmed.

Affirmed.


author: MR. JUSTICE BAKER

text:
    P. F. Haynes, Appellant, v. A. J. Oliver, Appellee.
    Gen. No. 15,087.
    BRoi~m AND ~AoTOns-what essential to recovery of com~missions. If a real estate broker has authority to sell real estate he can only recover for a sale made which his principal refuses to carry out if he makes an absolute contract of sale which conforms in all respects to the authority given to him.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. ARIcOLD HuAP, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 2, 1910.
    SPENOER W~D and WILLIAM A. OoNov~, for appellant.
    JOHN T. RICHARDS, for appellee.
   MR. JUSTICE BAKER

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendant on a directed verdict in an action of assurnpsit. Plaintiff was in October, 1906, a general broker in Chicago, engaged in the business of selling real estate. He entered into the following agreement in writing with the defendant:

"Chicago, Ill., Oct. 19, 1906.
Mit. P. F. ITAYNES,
DEAR SIR: I hereby give you the exclusive right to sell the entire block 4 Oliver's Suk, etc~, that I now own at $85O~OO per 30 foot lot net to me. I agree to furnish a good title and abstract for same. -
A. J. OLrVEIt.
Oct. 19th, 1906.
I hereby accept the terms of the above agreement.
P. F. HAYNES."

The first special count of the declaration sets out said instrument, avers that plaintiff solid said block 4 at prices which would net defendant $850 per 30 foot lot and yield to plaintiff $10,641 in addition thereto; that defendant refused to execute deeds, etc.; that said sum of $10,641 became due to plaintiff from defendant under said contract, and that defendant refused to pay the same, etc.

The second special count avers that defendant was indebted to plaintiff in the sum of $10,641 on account of services as broker under said agreement, sets out the same and repeats in substance the averments of the first count.

The defendant pleaded non assumpsit and a special plea to the second count, that plaintiff had not at the time when, etc., obtained from the city of Chicago a broker’s license, as required by the ordinances of the city of Chicago. To the special plea plaintiff replied that at the time when, etc., he was operating under a license issued by the city of Chicago, etc.

On the trial plaintiff testified that when said contract was made his business was that of a general broker in Chicago, engaged in the business of selling real estate. He put in evidence the contract sued on and a copy of a plat of said block 4, and offered in evidence as exhibits 4 and 5 the following instruments in writing:

“Contract fob Sale of Beal Estate.
Chicago, December 22,1906.
Deceived of Oscar F. Mayer Two Hundred ($200) Dollars, as part payment towards the purchase of the following described real estate: Lot one and the east ten feet of Lot two and Lot forty-four and the east ten feet of Lot forty-three in Block 4 in Oliver’s Subdivision, etc., * * * which is hereby bargained and sold to the said Q. F. Mayer for the sum of forty-two-hundred and forty ($4,240) Dollars, Four thousand & forty ($4,040) Dollars, more to be paid on the delivery of a good and sufficient Warranty Deed of conveyance for the same within sixty days from this date, or as soon thereafter as the deed is ready for delivery, after the title has been examined and found good, and the balance to be paid as follows: Should the title to the property not prove good, then this $200 to be refunded. But should the said O. F Mayer fail to perform this contract on his part promptly at the time and in the manner above specified. (time being of the essence of this contract), then the above two hundred ($200) Dollars shall be forfeited by him as liquidated damages, and the above contract shall be and become null and void.
P. P. Haynes,
Authorized Agt. for A. J. Oliver, Owner.
Oscar P. Mayert”
“Real Estate Contract.

This Memorandum Witnesseth, That P. P. Haynes, Agent for the owner, hereby agrees to sell, and Oscar C. Johnson agrees to purchase, at the price of Two Thousand and no/100 Dollars the following described real estate, situated in the City of Chicago, County of Cook and State of Illinois. Lots twenty-seven (27), Twenty-eight (28) and the West Five (5) feet of Lot Twenty-nine (29), in Block Pour (4) in Oliver’s Subdivision, etc. * * *

Said purchaser has paid Two Hundred and no/100 Dollars as earnest money, to be applied on said purchase when consummated, and agrees to pay, within 5 days after the title has been examined and found good, the further sum of Eight Hundred and no/100 at the office of P. P. Haynes, Chicago, Illinois, provided a conveying to said purchaser a good title to said premises (subject as aforesaid) shall then be ready for delivery. The balance to be paid as follows: One note in the sum of One Thousand and no/100 Dollars one year from the date hereof, to be secured by Trust Deed of even date therewith, with interest at the rate of 6 per cent per annum, payable semi-annually, to be secured by notes and mortgage, or trust deed, of even date herewith, on said premises, in the form ordinarily used by Real Estate Board.

“A complete Abstract of Title, or merchantable copy, to be furnished within a reasonable time, with a continuation thereof brought down to this date. In case the title, upon examination, is found materially defective, within ten days after said Abstract is furnished, then, unless the material defects be cured within sixty days after written notice thereof, the said earnest money shall be refunded and this contract become inoperative.

“Should said purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be forfeited as liquidated damages, including commissions payable by vendor, and this contract shall become null and void. Time is of the essence of this contract, and of all the conditions thereof.

“This contract and earnest money shall be held by Wilson and Hobbs for the mutual benefit of the parties hereto.

“In testimony whereof said parties hereto set their hands, this 22nd day of October, A. D. 1906.

“P. P. Haynes,

“Agt. for Owner.

“Oscab C. Johnson.”

The court, on the objection of defendant, refused to admit said instruments in evidence. Plaintiff also offered in evidence a number of other instruments, which his counsel stated were substantially the same as said exhibits 4 and 5, and the court sustained defendant’s objection to said instruments.

The instruments offered and excluded did not include all the lots in said block 4, and plaintiff offered to prove the sales of the remaining lots by books kept in his office, in which it was stated a record of such sales was kept, but the court excluded the evidence.

We think the court did not err in excluding said instruments and book. The contract of the parties only gave plaintiff the right to sell block 4, not to sell lots or parts of lots in said block. The contracts offered in evidence were for only lots or parts of lots in said block, and therefore were properly excluded.

But if it be conceded that plaintiff was authorized to sell lots.and parts of lots in said block, from time to time, provided that in the end he sold the entire block, the contracts of sale offered in evidence were properly excluded, because they were not such contracts as the plaintiff was authorized to make by the contract sued on; first because the contract only gave plaintiff the right to sell the block for cash, and the contract, exhibit 5, provided that one-half of the purchase money should be paid in cash and the remainder in one year. Oliver v. Sattler, 233 Ill. 536; Monson v. Kill, 144 id. 248; Hoyt v. Shipherd, 70 id. 309. Second, because exhibit 4 is but an option to purchase, for it provides that if Mayer shall fail to perform the contract, the $200 paid by him shall be forfeited and “the contract shall be and become null and void ’ ’. Lawrence v. Rhodes, 188 Ill. 96. Third, exhibit 4 required defendant to furnish an abstract of title to the two lots and part of a third therein mentioned, while hy the contract shall be and become null and void.” Lawrence stract of title to the block.

The books of plaintiff offered in evidence were not admissible to prove the existence of contracts for the sales of lots, and were properly excluded.

On the evidence admitted the plaintiff was not entitled to recover, and a verdict for the defendant was properly directed.

The record is, in our opinion, free from error, and the judgment is affirmed.

Affirmed.


author: Me. Justice Bakee

text:
    August Fank, Appellee, v. Frank R. Crane, Appellant.
    Gen. No. 15,095.
    1. Instructions—when modification as to preponderance of evidence will not reverse. Held, that the modification consisting in the insertion of the italicized words in the following instruction, while subject to criticism, did not constitute ground for reversal.
    “The jury are instructed that the plaintiff must prove his case by a preponderance or greater weight of evidence; therefore, if the evidence in this case on plaintiff’s case preponderates in favor of the defendant, or if the evidence fails to preponderate in favor of the plaintiff, or if you are unable to say on which side is the greater weight of the evidence, you should find the issues for the defendant."
    2. Instructions—when, upon fellow-servant doctrtne, properly refused. Held, that the following instruction was properly refused; that while it was the plaintiff’s duty to conduct himself properly towards his fellow-servants, it was not his absolute duty to “work in harmony” with them no matter what their conduct was.
    “The court instructs the jury that when a person is employed by another he must, in his intercourse with his employer and those having control of his business and with those doing business with such employer, be obedient to the reasonable commands of his employer and those having control of his business and must work in harmony with his fellow-employes; and a failure in any of these requirements would be good ground for discharging such person before his term of employment expires.”
    Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 2, 1910.
    William J. Stapleton, for appellant.
    No appearance by appellee.
   Me. Justice Bakee

delivered the opinion of the court.

This action was brought before a justice of the peace to recover damages for a breach of a contract of employment, and was taken to the Superior Court by appeal. In that court plaintiff had judgment for $200 damages and the defendant appealed.

The contention of plaintiff was that he was hired by defendant to manage defendant’s farm for a year from May 1,1905, at $50 a month, and was to have a house to live in and certain other articles, and that he was discharged October 31, without just cause.

The grounds of reversal urged are that the verdict is against the evidence, that the court erred in modifying defendant’s instruction 3, and in refusing defendant’s instruction 4. The contention of appellant is that the evidence fails to prove the existence of a contract for a year, and that the defendant proved by a preponderance of the evidence that plaintiff was not discharged, but voluntarily left his employment, and that his conduct was such as to justify his discharge.

The evidence is conflicting, but we think that from the evidence the jury might properly find that plaintiff was employed for a year; that he did not voluntarily quit his employment, but was discharged by defendant October 31; that his conduct was not such as to justify defendant in discharging him, and therefore that the verdict cannot be said to be against the evidence. Defendant’s instruction 3 as given is as follows:

“The jury are instructed that the plaintiff must prove his case by a preponderance or greater weight of evidence; therefore, if the evidence in this case on plaintiff’s case preponderates in favor of the defendant, or if the evidence fails to preponderate in favor of the plaintiff, or if you are unable to say on which side is the greater weight of evidence, you should find the issues for the defendant.”

As asked the instruction did not contain the words in italics, bnt they were added by the court.

We think the instruction should have been given as asked, but we think that the meaning of the instruction was not changed or affected by adding the words, “on plaintiff’s case”, and therefore that the modification of the instruction was not harmful to the defendant. I Eefused instruction 4 is as follows:

“The court instructs the jury that when a person is employed by another he must, in his intercourse with his employer and those having control of his business and with those doing business with such employer, be obedient to the reasonable commands of his employer and those having control of his business and must work in harmony with his fellow-employes; and a failure in any of these requirements would be good ground for discharging such person before his term of employment expires.”

We think this instruction was properly refused. It was plaintiff’s duty to conduct himself properly towards his fellow-employes, but the instruction asked made it his absolute duty to “work in harmony” with them, no matter what their conduct was.

We find no error in the record and the judgment is affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    Grace Heise, Appellee, v. Sears, Roebuck & Company, Appellant.
    Gen. No. 15,030.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review where the same is clearly and manifestly against the weight of the evidence.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1908. Reversed and remanded.
    Opinion filed May 2, 1910.
    Rehearing denied May 16, 1910.
    Lackner, Butz & Miller, and W. Gr. Shockey, for appellant.
    Horton & Miller, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

Appellee recovered a judgment of $3,000 against appellant in the Superior Court for personal injuries. The injury- complained of was caused by the fall of a wire basket from a carrier system used to carry mail in defendant’s place of business. Plaintiff was in the defendant’s employ and was sitting at a table addressing mail when the the accident occurred. One of the main wires of the carrier system ran above this table and the basket which fell from this overhead wire struck appellee a glancing blow on the right side of the head about three inches above the ear. The external injury was not apparently severe. She received a “slight cut” on the side of the head when the basket struck her, and says that some blood flowed from the cut, but “not very much”. Others present at the time “did not notice any blood on her head”. Her mother says that “her head was cut a little and the whole side of her head was bruised”. Appellee returned to her work four days after the accident, but she says she could not work, soon went home and did not return to work again for three or four days afterwards. Some weeks later she left defendant’s employ and has been compelled it is claimed to take long vacations owing to nervous and hysterical conditions, which it is claimed in her behalf were caused by this accident. There is evidence tending to show that immediately after the accident plaintiff “ acted rather hysterical, laughed and cried.”

It is contended among other things in defendant’s behalf, that the verdict is against the weight of the evidence, and that the verdict and judgment are excessive. Upon the 24th of January, 1905, about a month prior to this accident of February 20,1905, now in controversy, plaintiff was struck and knocked down by a street car. She was standing on the corner and the rear end of the car swung out in going around a curve and struck her, making a black and blue spot on her arm. The street car company settled with her by paying twenty dollars, as she testifies, for “expenses and medical attendance while I was at home.” She remained at home about a week and a half after the street car accident, and says that during that time she had some dental work done. One of the medical witnesses called in plaintiff’s behalf testified that such prior accident if followed by nervous symptoms could be, as well as the last accident, the causé of the nervous and hysterical conditions which are, it is claimed, more than any direct injury inflicted by the blow, the worst consequences resulting from the accident. This witness stated he “could not say which of the two accidents would cause the nervous condition in a person susceptible to nervousness without going into the case . more fully, because there are other elements than the actual injury, such elements as fear coming into these cases in which a very slight injury will do more than a larger one”, and that in his ‘ 1 opinion, it was the fright and not the injury that caused the nervous conditions. One doesn’t know”, he says, “whether a glancing blow upon the head, leaving no injury that showed more than a couple of days, would produce any nervousness.” There is evidence tending to show that the street car accident was the more severe. An affidavit by plaintiff dated January 12, 1905, was introduced in evidence, in which she stated that the street car which swung around and struck her, “knocked me down and I was rendered unconscious,” and that she “received a sprained right arm.” This affidavit was made more than a month before the accident now in controversy, which, as above stated, occurred February 20,1905. In behalf of defendant there is testimony tending to show that she told a physician whom she called upon and who has made a specialty “of internal medicine and nervous diseases,” that she had trouble with her left ear, not the right ear, before the accident now in question. She now claims that the trouble was in her right ear and occurred since the accident and by reason thereof. This medical witness says that “it always requires time to develop an hysterical and nervous condition. It is usually due to a mental effect upon the patient and the mental effect upon the patient is not carried instantaneously; that is, an accident occurs and then there is a certain period of time during which the patient broods over the accident and during that period of time, which usually lasts from 24 to 28 hours, sometimes gradually becomes more and more pronounced; that when hysterical conditions are manifested immediately upon an injury I would say the hysterical condition was there before the accident, and that the accident probably emphasized the condition. If a person is in an hysterical condition a little fright of any kind will bring on hysteria.” This witness expressed the opinion that “assuming that Miss Heise’s hysterical manifestations were genuine, that she could not have them unless she was hysterical before.”

There is considerable testimony by plaintiff’s fellow employes, who worked with her in the same room, to the effect that she was nervous before the accident in question. One witness states that she “always used to cry when she made an error and the error was brought back to her,” that this occurred “both before and after the basket fell,” and that she exhibited nervousness by “an involuntary twitching of the muscles of her face.” Others noticed her crying before the accident; that she “was odd and nervous and attracted people’s attention in that way,” and state they “did not notice any difference in her appearance after the accident from what it was before the accident.” The evidence tending to show that the nervous symptoms complained of were manifest before the accident complained of and were not the result of it, greatly preponderates. Inasmuch as the issues must be submitted to another trial, we refrain from a more detailed discussion of the evidence, and of other questions presented in the briefs.

For reasons indicated the judgment of the Superior Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Joseph H. Strong, Administrator, Appellee, v. Armour & Company, Appellant.
    Gen. No. 15,045.

      Evidence—competency of prior explosion. In an action for personal injuries arising by virtue of an injury resulting from an explosion, held, competent to show that a prior explosion had occurred, upon the ground that such prior explosion tended to show that there were causes operating in the machines in question which might cause an explosion, of which fact in the exercise of ordinary care the master wag bound to take notice.
    Action in case for death cause by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 2, 1910.
    Rehearing denied May 16, 1910.

      A. R. Urion and A. F. Reichmann, for appellant.
    David K. Tone and Henry M. Ashton, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action by the administrator to recover damages for personal injuries causing the death of one Fred Jackson, an employe of appellant. Judgment against the defendant was entered upon a verdict in favor of plaintiff, and from that judgment defendant appeals.

The declaration charges that defendant operated a refrigerating machine with coils and other appliances and negligently permitted liquid ammonia or some other liquid to accumulate in the cylinder of the compressor and negligently operated the refrigerating machine in that condition; and further that defendant negligently permitted a cylinder head of the compressor to be and remain in a defective, cracked, insecure, spongy and unsafe condition, so that it did not have sufficient strength to withstand the pressure of the gases and piston rod, and that as a result the cylinder head, while the compressor was being operated, was forced out by the pressure of gas- and piston rod, discharging ammonia gas and liquid ammonia upon plaintiff’s intestate, causing his death.

It is urged the evidence is not sufficient to support the verdict. The refrigerating plant forced anhydrous or pure ammonia gas in pipes along the walls of rooms in which defendant handled or kept meat and thus lowered the temperature. The circulation was maintained by a compressor in the power house, having a cylinder in which a piston operated, forcing the gas through a valve in the cylinder head and through the pipes. There is evidence tending to show that ammonia gas when suddenly released into the air, as in this instance, by the breaking of a cylinder head in which the gas is under pressure, causes a concussion in the nature of an explosion; that if this.gas in a dense condition is inhaled it burns or sears the surface of the lungs and will sometimes blister the exterior flesh. The deceased was a member of what is called a “rigging crew”, and was not employed about the power house or its machinery. He had been sent by his foreman to get a rope hanging in the power house a few feet from the compressor in question. He had entered the power house and there is evidence tending to show he was standing near the cylinder reaching for the rope, when suddenly the cylinder head burst out and he was instantly enveloped with ammonia in gas and liquid form, causing his death.

It is urged at considerable length in behalf of defendant that' the evidence does not justify the conclusion that the alleged pounding just before the accident in the cylinder which burst was due to the pressure of liquid ammonia; that it appears from the testimony of two of plaintiff’s witnesses, “that this pounding did not necessarily indicate the presence of liquid in the machine but could be caused also by a saturated condition of the gas as distinguished from the presence of liquid.” There is no question however the pounding did indicate that something was wrong in the cylinder, and in view of the evidence that there had been a former explosion of a cylinder it was a question for the jury whether it was negligence not to shut down until investigation could be made. We attach however less importance to the question as to the presence of liquid ammonia and oil in the cylinder than do counsel.

It is urged the court erred in admitting evidence of a prior breaking out of a cylinder head in the plant in June, 1902. The accident now in controvery occurred December 21, 1903. We do not concur in the contention that the admission of that evidence was erroneous. It did not necessarily tend to prove that the former explosion was caused by negligence. The evidence tended to show the fact that a cylinder head used for the same purpose in the plant had exploded before. .This was we think competent as tending to show there were causes operating in such machines which might cause an explosion of a cylinder, a fact of which in the exercise of ordinary care the defendant was bound to take notice. In Vol. 6, Thompsonon Negligence, sec. 7779 (p. 712) it is said: “Evidence of similar accidents from the same cause though of slight probative value is sometimes admitted as tending to prove the dangerous character of the machine. The better rule allows such evidence on the question of the master’s knowledge of the condition of an appliance and for that purpose only”. In City of Bloomington v. Legg, 151 Ill. 9-13, it was said: “The court has held such evidence competent not for the purpose of showing independent acts of negligence, but as tending to show the common cause of these accidents is a dangerous, unsafe thing. Where an issue is made as to the safety of any machinery or work of man’s construction which is for practical use, the manner in which it has served that purpose when put to that use would be a matter material to the issue, and ordinary experience of that practical use and the effect of such use bear upon such issue. It no more presents a collateral issue than any other evidence that calls for a reply which bears on the main issue. Such evidence is held competent by the weight of authority. (Citing cases.) The frequency of such accidents would create a presumption of knowledge and would be material to the question of diligence used to obviate the cause of injury”. It may be added that a single prior accident such as the one now under consideration may suffice to raise a like question of diligence.

The second count of the declaration charged that defendant negligently permitted one of the heads of the cylinder to be and remain defective so that it could not withsand the pressure of the gases and the piston rod. There is evidence in defendant’s behalf that the broken cylinder head was found after the explosion which caused the death of the plaintiff’s intestate to have been def ective. There is testimony for plaintiff tending to show that there was perceptible external evidence of a defect which could be seen before the accident. If so, it was a question for the jury whether such appearance should have provoked careful examination of the cylinder head. It is testified on the other hand in behalf of defendant that no evidence of any defect could be seen on the outside, that the flaw on the inner side did not go through. There is conflict in the evidence on this point. But disregarding this evidence, it is conceded there was a serious defect in the cylinder head clearly visible on its inner side. This might apparently have been discovered had the head been removed and examined on both sides. Whether externally apparent or not, there is evidence in behalf of defendant tending to show that the defect admitted to exist explains the explosion. The flaw in the head was clearly perceptible on the inside of the cylinder head. As one witness for defendant states, the metal was spongy on the inside and when examined ' closely “it had a different color from the fresh piece broken off. The spongy part was darker than the other. I don’t recollect how long it was; about, I should say, five or six inches anyway. * * * It was not through on the outside of the iron. It was about a thirty-second of an inch deep on the inside”. Another of defendant’s witnesses says: “You could see very plainly the defect in the head of the cylinder after the accident. It was perhaps four or five inches long, a spongy place, discolored. The holes might have been an eighth of an inch, just a spongy sort. Spongy and honeycombed is very similar. That was the defect in the head.” There is other testimony to the same effect. The evidence as to a former cylinder head which broke in June, 1902, tended to show that when it broke there had been no pounding nor unusual noise preceding and that it was found to have become “a bad piece of steel, crystallized; that was what made it break off.” A mechanical engineer called as an expert in defendant’s behalf testified that a casting like the cylinder head in controversy might break out as a result of the ordinary and usual operation of that machine and “the pressure to which it was subjected in that operation and use,” because “being subjected to alternating high and low temperature on one side and being under constant temperature on the other side, the molecules of the iron have to arrange themselves every time the temperature goes though these different changes and in the rearranging so often, it would naturally deteriorate and become fatigued. And after awhile if the material is not strong enough it will break. * * * With this casting coated with ice on the outside continuously * * * that will also tend to increase the chance of breaking. With these unequal temperatures on each side, the molecules of the iron on one side would remain almost dormant and on the other side in very active agitation, consequently the casting would tend to be destroyed and break;” and he adds: “These molecules get fatigued if the casting is good as well as bad. ’ ’ There is other testimony in behalf of defendant to the same effect. The witness Carlton L. Smith testifies that the accident in June, 1902, prior to the accident in controversy was caused because “the valve stem was crystalized and the valve broke off on the stem right at the neck on account of crystalization. The valve being in constant use, the iron crystalized;” and as to the cylinder head now in controversy he says he discovered “a spongy place in the head” after the accident that did not appear on the external surface. He also describes the effect of operation upon this cylinder head: “When the machine is in operation the head breathes, moves;” and he says the variation of pressure and change of temperature have to do with bringing about the weakened condition found in the cylinder head in controversy; that “after the use to which this casting was subjected and the condition in which I found it, a casting in that condition would go out under normal pressure while in ordinary use and operation. ’ ’

It appears therefore that there is evidence tending to show the ordinary use of a cylinder head in the refrigerating, plant of defendant tended to produce a crystalization or spongy condition of the head, such that under normal pressure it would become liable to go out, as it did in the present instance. A prior accident of the same character from similar conditions had shown the possibility and the cause. The evidence tends to show this cause to be a constant source of danger, and in the case of the cylinder head in controversy shows also the existence of an interior flaw which an examination might have disclosed.' Under this evidence the question whether defendant was negligent in not having ascertained the danger in the case of the cylinder head, the explosion of which caused the injury complained of, was we think, clearly for the jury, and there is evidence from which they might properly find against defendant on that issue, as they did.

There are other questions argued at length in the briefs, and it may be, as defendant urges, that there are minor errors in procedure. But we find none that in our opinion are such as to warrant a reversal of the judgment. It will therefore be affirmed.

Affirmed.


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    Rheinhardt Paquet, Appellee, v. Frederick Herhold et al., Appellants.
    Gen. No. 15,066.
    Contributory negligence—effect of. If personal injuries are sustained as a result of the plaintiff’s own negligence, a recovery hy him will not he sustained.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed May 2, 1910.
    F. J. Gantt and B. J. Folonie, for appellants.
    Frank X. Busch and Frank A. Bockhold, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit to recover damages for personal injuries. Plaintiff’s testimony tends to show that an attachment which operated a feeder to the rip-saw by which the plaintiff was hurt was not in good working order; that it was a self-feeding saw and that a chain which operated the self-feeder located in front of the saw and between it and the operator was out of order and fell off the wheel which it moved. Four days before the accident the defendant’s machinist fixed the machine and told plaintiff to go on with his work. A day later plaintiff says he asked the machinist “to make a guard on the saw”. Plaintiff describes the accident substantially as follows: that “the chain fell down from the feed and I stopped the rip-saw and went to put the chain back again, and there lay a pile of waste wood and I had to stand on that pile of wood and fix the rip-saw. I came along and "I stepped on that wood and the wood pushed apart and I fell with my hand onto the saw. * * * When I went around to fix the saw I put the chain back on the wheel. I went to the left. On the right side of the machine between the outside of the machine and the wheel and chains the saw and the entire works were there and the belt ran there and the other chain. I couldn’t reach this chain and wheel from the right side. Just before I reached over to fix this chain on the wheel I stopped the saw. The stopper was above where I stood and I pushed it over to the loose pulley. When the chain had dropped off the wheel and dropped down, the sprocket wheel was not in motion. Near that wheel where I pnt the chain on there were other cog wheels near the saw. The other cog wheels were down a foot below on the saw. They were beyond the point I was reaching to put the chain on. This pile of dirt and pieces of wood that was on the ground there that I stepped on, was about one foot in height and about two feet long and perhaps a foot and a half wide. When I started to put the chain on the wheel I went at it and stopped the saw so I could put the chain back. I didn’t know what was the matter there. The chain was down below and I reached for the chain and just when I reached I fell. During the three weeks that I had worked there I had put the chain on that wheel the same way I was intending to put it on this time. The other times when the chain fell down I stood on the same side of the machine”. He says the foreman had “put the chain on the same as I did and told me I should put the chain on, just so”. Meanwhile although he had “pushed the belt over onto the loose pulley before I went around to the side of the table”, the saw was still revolving. Plaintiff says, “When you stop it, it runs three or four minutes”.

There was more or less waste wood on the floor all the time. “What made this pile of wood and stuff was when the wood had been cut I laid it on the side, and the bad wood I threw on the other side”. In other words, it was the waste material produced by himself in operating the saw in the regular course of his work. Plaintiff himself had placed it on the floor there, and as soon as there was a boxful, he testifies, “there was a man who carried it away from the saw * * * two or three times a day”.

It is contended that defendants were negligent in having the floor about the saw covered with pieces of wood and debris, in permitting the attachments about the saw, i. e. the chain and sprocket wheel operating the feeding attachment, to be defective, in failing to guard the saw in violation of the ordinance, and in negligently ordering plaintiff to put the chain on the sprocket wheel; that plaintiff exercised ordinary care for his own safety; that he did not assume the risk of injury from the condition of the floor; that he was promised a guard within a definite, fixed time and did not assume risk meanwhile, and that defendant’s negligence was the proximate cause of the injury.

If the last of these contentions is not supported by the evidence it will not be necessary to consider the others. Defendants ’ counsel insist that the alleged negligence of defendants was not the proximate cause of the plaintiff’s injury. Plaintiff testifies that he “had to stand on that pile of wood and fix the rip-saw”. There is no evidence tending to support this bare assertion. No reason appears why he could not, and there is evidence tending to show that he could, have reached the chain from other positions. But assuming that this could not have been done so conveniently from other sides of the machine, no reason is given for reaching over a revolving saw when standing in an insecure position upon a loose pile of waste pieces of wood. He says he stepped on that pile and the wood pushed apart and he fell with his hand on the saw. He knew all about this pile of wood, for he had made the loose pile himself. It is not claimed that any one directed him to stand on it to reach over the still revolving saw to get hold of the chain of the sprocket wheel. He says he was told some days before to stand on that left side of the saw where he would have to reach over it in order to replace the chain; but there is no claim that anyone ordered or indicated that he should stand on a pile of waste wood which meanwhile he had created himself and had thrown on that side of the machine. If we assume for the purpose of the argument that defendants might have been negligent in allowing plaintiff to put the waste wood on the floor there, it was nevertheless not the waste material but the act of plaintiff in standing upon it as he did and from such insecure foothold leaning over a still revolving saw, that was the proximate cause of the injury. In Dene v. Arnold Print Works, 181 Mass. 560-561, it is said: “It tvonld be holding parties to a liability altogether too strict to say that the presence of oil on the floor of a mill was itself evidence of negligence. Eegard must be had to what is practicable and reasonable and it would hardly be possible to operate a mill without more or less oil getting on the floor, especially under and around different machines”. The same is true of waste material from a saw. Plaintiff recognized the danger of leaning over the revolving saw. He had taken measures to stop it by throwing off the power. He knew it would run by its own momentum some moments after the power was withdrawn. He had put the chain on the sprocket wheel a number of times before. Plaintiff’s counsel say “he did not start to put the chain on the wheel before the saw stopped”; but plaintiff himself says, “I reached for the chain and just as I reached I fell”. The distinction is without a difference. It is immaterial whether he was in the act of putting the chain on the sprocket or reaching for it. The saw was still revolving fast enough to cut into his arm when he fell against it.

We cannot agree with the contention of plaintiff’s counsel that the proximate cause of the accident was ordering plaintiff to put the chain on “in this particular manner”. If it is meant that plaintiff was told to reach for the chain over the saw while the latter was still in motion, or was told to stand on the pile of debris for such purpose, there is no such evidence. Nor can we concur in the contention that the proximate cause was a failure to guard the saw. The ordinance relied upon provides that “machinery in a factory when so located as to endanger the lives and limbs of those located therein while in the discharge of their duty shall be as far as possible so covered or guarded” as to be reasonably safe and prevent injury to such employes. There is evidence tending to show that while in the discharge of, plaintiff’s duty in operating the saw, the feeding machine between the operator and the saw served as a guard. But there is no evidence that it was possible to guard this saw in a way which might have prevented the injury in this ease and at the same time permit the use of the saw to do the work for which it was intended. Counsel have elaborately argued the constitutionality, validity and construction of the ordinance. These questions we need not consider since its introduction without proof of its applicability was erroneous. As said in C. City Ry. Co. v. Martincic, 138 Ill. App. 575-581, “It tended to confuse the issues before the jury and its admission prejudiced the appellant’s case.”

It appearing from the uncontradicted evidence that the plaintiff’s injury complained of was the result of his own negligence and not of negligence on the part of appellants, the judgment of the Superior Court must be reversed with finding of fact.

Reversed.


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    Thomas H. Pierce, Appellee, v. L. Wolff Manufacturing Company, Appellant.
    Gen. No. 15,078.

      Tbiax—when error to refuse continuance. If counsel in the course of a trial has attempted to give the jury an impression that the plaintiff was without means and dependent upon the bounty of others for his livelihood and persists in such effort notwithstanding the adverse rulings of the court, it is error for the trial court to refuse an application for a continuance made on behalf of the defendant.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagec, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed May 2, 1910.
    Calhoun, Lyford & Sheean, for appellant; Robert J. Slater, of counsel.

      J. Ebb and John P. Klein, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

In this action appellee recovered a judgment of $4,000 for personal injuries alleged to have been caused by the negligence of an elevator operator in defendant’s employ. Defendant appeals.

Plaintiff’s testimony is to the effect that April 16, ■1906, he was in appellee’s employ and had been for thirty-four years. It was his custom at the noon hour to go down to dinner on the elevator from the top floor where he was at work. On this occasion he got on the elevator at 12 o’clock noon to go down to the first floor. When the elevator stopped at the first floor the operator opened the doors as usual to allow his passengers to get off. These elevator doors opened in two parts, the upper part sliding up and the lower part sliding down into the elevator shaft. Plaintiff says the floor of the elevator when it stopped was on a level with the floor of the building, but he states that the lower door of the elevator was about two inches above the level of the floor, and that as he was leaving the elevator after he had gotten his right foot off and “was getting the other foot off, the elevator man began to raise that door up on me and threw me to the ground on my left side. The door slipped up on me. The door raised about seven inches”. He states that his left foot struck against the metal door as he was going over it and that it tripped him and threw him, causing the injuries complained of. It is claimed in plaintiff’s behalf that the accident deprived him of the use of his left leg, so that he cannot stand on it, and that he has been unable to work since.

After stating that at the time of the accident he was receiving two dollars and twenty-five cents a day, the plaintiff was asked: “Are you a man of any means at all?” to which plaintiff answered “No.” Defendant’s counsel at once objected. The court sustained the objection and the answer was stricken out. Later plaintiff’s attorney addressed the court as follows: “If your Honor please I desire to submit this proposition: Wouldn’t it be proper for me to show that this plaintiff is obliged to live upon the bounty of others; that he is a source of expense—” The court interrupted, saying: “No, it not only would not be proper, but the mere statement by you now is prejudicial error”. Defendant’s attorney then said he was “constrained to move for a continuance because of the improper statement”. The court said: “I don’t know but what you are entitled to a continuance. Do you move for a continuance?” Defendant’s attorney answered “Yes, I do”. The court said to plaintiff’s. attorney, “Why isn’t he entitled to a continuance?” Plaintiff’s attorney in reply said: “Well now upon what theory—this statement is made upon the honest belief, as it is shown that being permanently disabled, he is under constant expense to support himself. Now that might be considered an element of damages in a case of this kind”. The Court: “I don’t know what I will do about it. I don’t know what effect it will have on this trial, but you know that that was not a proper question—you know that was not a proper matter to bring up. I will overrule the motion for a continuance of the case. You take your exception”.

The action of the court in overruling this motion for a continuance is assigned for error. It cannot be presumed that plaintiff’s counsel was not aware of the impropriety of his successful attempt to give the jury ah impression that the plaintiff was without means and dependent upon the bounty of others for his livelihood. The result could only be to excite the sympathy of the jury in the plaintiff’s behalf, and thereby influence their verdict. It is true the court sustained defendant’s objection to the first question, whether plaintiff was “a man of any means at all”, and the answer was stricken ont. If it can be assumed that plaintiff’s attorney did not know the question to be improper when he asked it, the court’s ruling should have advised him. Nevertheless he proceeded to accomplish the same result and attracted the jury’s attention more certainly under the guise of a question to the court in which he embodied the improper matter and gave the jury the impression that he was only prevented by a hard rule from introducing the improper evidence. In C. & S. L. Ry. Co. v. Kline, 220 Ill. 334-339, where questions, ruled out as improper were practically repeated “so that the effect was to get before the jury by means of questions assumed facts which the defendants had no right to prove”, the court said: “In such a case the harm is often done before the ruling and a correct ruling is not always a sufficient antidote. When the court has once ruled on the question it ought to have enforced respect for the ruling by not permitting reiterations” in any form. To the same effect is Chicago City Ry. Co. v. Gregory, 221 Ill. 591-599, where it is said: “All courts agree in excluding incompetent testimony and that an error in this respect will be sufficient cause for reversal. This rule would be but slight protection if counsel or witness could be permitted to make a statement, but not under oath, of the incompetent testimony, or counsel state the same fully to the jury in their argument or otherwise”. In McCarthy v. Spring Valley Coal Co., 232 Ill. 473-479, it was said: “The statement to the jury that the appellee had a wife and five children was manifestly improper. Its only object could have been to enhance the damages by getting before the jury in this improper and unprofessional manner facts calculated to arouse their sympathy, which counsel knew could not- in any legitimate way be brought to their attention. To admit evidence of such facts is error”. In Jones & Adams Co. v. George, 227 Ill. 64-70, an action to recover for personal injury, where appellee was allowed to prove that he was a married man and had three children, the court says: “The damages recoverable in this case can only be compensatory. The domestic relations, the standing or circumstances of the parties are therefore irrelevant”. And further says that such evidence “is calculated to arouse a sympathy for appellee which is liable to unconsciously influence a jury in the decisions of other controverted questions of fact in the appellee’s favor”. It would seem after such repeated warnings, that attorneys in this class of cases ought to appreciate the practical wisdom-of refraining from attempts to influence a jury in obviously improper ways, even when not restrained by considerations of professional propriety and higher standards of ethics. We are of opinion the motion to continue should have been granted.

Objection is made to instructions given in plaintiff’s behalf. We are of opinion that in some respects these objections are not lacking in force, especially as to instruction number 4 relating to preponderance of evidence. See Chicago Union Traction Co. v. Hampe, 228 Ill. 346-350. As the case must be submitted to another jury we refrain from discussing the evidence. For the reasons indicated the judgment of the Superior Court will be reversed and the cause remanded.

Reversed and remanded.