text:
    E. B. Sipes, Appellee, v. John Barlow, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Carl E. Sheldon, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by E. B. Sipes, plaintiff, against John Barlow, defendant, in the Circuit Court of Williamson county, to recover on a verbal contract whereby plaintiff agreed to move certain houses for defendant. From a judgment for plaintiff for two hundred dollars and costs, defendant appeals.
    Plaintiff’s declaration averred a contract with defendant made May 29, 1914, whereby plaintiff agreed to move two frame houses for two hundred and fifty dollars, defendant agreeing to place a foundation under the larger house within one week after the house was placed in position by plaintiff, and not to require plaintiff to keep moving tools under the house after such time. Plaintiff alleged that he moved the houses within a reasonable time, but owing to the failure of defendant to place the foundation as agreed, plaintiff could not secure his moving tools until July 27, 1914, and that defendant refused to pay the two hundred and fifty dollars. Plaintiff also alleged special damages to the amount of seven hundred and fifty dollars by reason of profits lost on another contract by reason of not having the tools. Defendant pleaded not guilty, with a special plea averring unskilful and negligent work by plaintiff, damaging one of the houses to the extent of one hundred dollars, and that defendant was damaged to the extent of fifteen dollars by plaintiff’s failure to perform certain labor in excavating a basement as agreed.

      Plaintiff’s evidence established that defendant and plaintiff entered into an oral contract to move two frame houses owned by defendant. Plaintiff agreed to move the houses as they then stood for the sum of two hundred and fifty dollars. It also appeared that it was desirable that a room be taken off of the large house to facilitate moving, and it was agreed that if defendant would detach the room plaintiff would move the buildings for two hundred dollars; but if plaintiff had to detach and remove it, or move the building with the room attached the price would be two hundred and fifty dollars. It was stipulated that plaintiff would not be liable for any damage to the building, and that under the contract defendant was to build a foundation under the large house within ten days from the time plaintiff had placed it in position so that plaintiff could remove his house moving tools from under the building. The houses were moved and the latter of the two houses placed in position on May 29, 1914. Repeated demands were made by plaintiff for the tools but they were not obtained until about the 27th of July following. It further appeared that at that time plaintiff had a contract with one Davis to move a house for five hundred dollars and that because of defendant’s failure to release the moving tools plaintiff had to procure the assistance of another house mover, with his tools, in the moving of the Davis house, and that by-reason of this he lost profits to the amount of one hundred and twenty-five dollars or more.
    Defendant’s evidence tended to prove that plaintiff agreed to move the houses for two hundred dollars if the room was detached but if not detached he was to have two hundred and fifty dollars for moving it. Plaintiff agreed to detach the room or ell himself if permitted so to do, and move the house for two hundred dollars. Defendant denied agreeing to place a foundation under the second house moved and denied that the stipulation that plaintiff was to be exempt from liability for. damages caused by the moving of the houses but said that plaintiff agreed to move the houses without damage and leave them in as good condition as he found them. The evidence of defendant tended to prove that the houses were damaged, the plastering cracked, chimney injured, and that one of the houses was otherwise twisted and damaged to the amount of seventy-five dollars. It also appeared that plaintiff agreed to assist in digging the basement under the house as part of the consideration under this agreement, which he failed to do; and further tended to show that defendant incurred additional expense amounting to about seventeen dollars in procuring materials to remedy the injury caused by plaintiff’s failure to properly care for and support the houses in the removal.
    It appeared from the testimony of the plaintiff that some time in the month of July he had a conversation with defendant in which he says- defendant offered to pay him two hundred dollars, by check, for that amount. This is denied but the defendant testified that in this conversation: “He claimed that I owed him two hundred and fifty dollars. I claimed that I owed him two hundred dollars. ’ ’ This declaration was made prior to the commencement of the suit and before either of them had figured upon any extras that they might demand of each other.
    Denison & Spiller, for appellant.
    Pillow & Stone, for appellee; J. L. Harmon, of counsel.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Trial, § 155 —when province of jury to determine facts. Where the evidence is conflicting it is for the jury to determine what facts are proved thereby.

2. Contracts, § 61 —when evidence of loss of profits inadmissible. In an action to recover on a contract for moving houses, where it appeared that defendant breached the contract by failing to build a foundation under the houses as agreed so that plaintiff could remove his moving tools, evidence of profits lost by plaintiff on another contract as a result of not having his tools held erroneously admitted, the evidence admitted not being competent, as the damages sought to be proved thereby were speculative and not proper elements of damages in the action.

3. Damages, § 66 —what is measure of damages for breach of contract to move houses. In an action to recover for breach of a contract for moving houses where it appeared that defendant breached the contract by failing to build a foundation under the houses as agreed so that plaintiff could remove his moving tools, the measure of plaintiff’s damages is the value of the use of the tools for the time during which plaintiff was deprived of such use.

4. Damages, § 61 —when prospective profits not recoverable. Prospective profits are too remote and speculative to be the measure of damages in actions for breach of contract, such damages being conjectural and misleading, and their realization being subject to many uncertain contingencies.

5. Evidence, § 154 —when declaration constitutes admission of liability. In an action to recover for breach of a contract for moving houses, a declaration made by defendant prior to any controversy arising from the contract that “he claimed that owed him two hundred and fifty dollars; I, claimed that I owed him two hundred dollars,” held to be a clear admission by defendant that he.owed plaintiff two hundred dollars.

6. Evidence, § 160 —when declaration not statement in effort to compromise. In an action to recover for breach of a contract for moving houses, a declaration made by defendant prior to any controversy arising from the contract that “he claimed that I owed him two hundred and fifty dollars; I claimed that I owed him two hundred dollars,” held to be an admission of an independent fact and not a statement made in an effort to compromise, although such statement was made when plaintiff visited defendant to obtain a settlement, it appearing that the differences between the parties were not sought to be adjusted at such time, nor was any effort then made by either party to compromise.

7. Evidence, § 160 —when offer of compromise not competent. Offers by way of compromise are not competent against the party making the offers.

8. Evidence, § 160 —when evidence of admission of independent fact competent. Evidence tending to prove the admission of an independent fact is competent although the admission is made in an effort to compromise or settle differences, unless expressly stated to be made without prejudice or in confidence.

9. New trial, § 5 —when refused because of admission of liar bility. A new trial will not be granted although there was error in the proceedings of the trial court where the record shows that defendant admitted that he owed plaintiff a sum exactly equal to the amount of the damages assessed by the verdict.

10. Appeal and error, § 1401 —when verdict not disturbed on review. Where substantial justice has been done by a verdict, the Appellate Court has no right to disturb the verdict on review, although there was error in the proceedings in the trial court


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Fred Kleet, Appellee, v. Southern Illinois Coal & Coke Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Carl, E. Sheldon, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Fred Kleet, plaintiff, against the Southern Illinois Coal & Coke Company, defendant, in the Circuit Court of Williamson county, to recover for personal injuries. From a judgment for plaintiff for five hundred dollars and costs, defendant appeals.
    The first- count of the declaration charg’ed that it was the duty of the defendant to exercise ordinary care to provide plaintiff with a reasonably safe mule to drive, and that the defendant negligently provided him with an unruly, ungovernable and dangerous mule, in this, that the mule could not be safely handled by the driver on account of his disposition, and was likely to injure plaintiff by suddenly turning into rooms or crosscuts along said entry; that the defendant knew or by the exercise of ordinary care for plaintiff’s safety could have known of the disposition of the mule, and would also have known of the danger to plaintiff of driving said mule by reason thereof. That defendant prior to the 28th day of May had elected not to provide and pay compensation under the Compensation Act, which is set forth in substance in the declaration; and had prior to said date filed notice of such election with the Industrial Board of the State of Illinois, and had not on said date withdrawn said notice. And then alleged in consequence of such election that defendant was deprived of the defenses specified in the statute.
    The second count of the declaration alleged the same conditions as the first, and the same disposition of the mule, and then charged that the foreman of the defendant approached the mule with a large stick in his hand and began beating and striking the mule over the head with the stick and in consequence of the disposition of the mule, combined with the assault made on him by the foreman, said mule jammed plaintiff between the car and said mule, thereby breaking three ribs, etc.
    The first additional count charged the furnishing of the same character of mule as set forth in the former counts, and then alleged that while plaintiff was driving the mule the foreman negligently stepped from one of said rooms and with a large stick in his hands frightened the mule, and, on account of its disposition that plaintiff was unable to control the mule and that its disposition, combined with the frightening by the foreman, caused the plaintiff to fall from his position on the car, and he was thereby injured. This count also made substantially the same allegation as the other counts as to the defendant having elected not to operate under the Compensation Act.
    It appeared that plaintiff had for several years been engaged in driving mules in coal mines and had been at work for the defendant as a driver for several months prior to his injury. On May 21, 1914, he was given a mule to drive in what was known as the first west entry off the third south entry. He drove the mule from about 8 a. m. until about 4 p. m., when he was injured. This mule was ungovernable and had a habit of turning off of the regular line and of pulling into rooms if he saw a light in the rooms, or frequently did so. The plaintiff knew nothing about this mule or of such habits, and it was the first day he had driven it. When the mule attempted to leave the track it frequently caused the car to be derailed, and drivers were unable to restrain him by the use of lines, claiming the mule would catch the bit in his teeth so that the lines would not check or guide him. During the day plaintiff drove the mule, he had turned out several times and derailed the car, and the last time was about twenty or thirty minutes ■ before plaintiff was hurt. Mr. Dixon, assistant mine manager, was there present, and it is undisputed that plaintiff said to him: “Joe, this mule ought to be taken off of this run, if he ain’t he is going to kill or hurt some driver.” After the plaintiff had described to Dixon the actions of the mule, Dixon said that he would stand at the room and keep the mule from turning into it. Plaintiff said that he ought not do that as it would cause the mule to hurt him. Later the mule again attempted to turn into a room and Dixon undertook to keep him out, and plaintiff claimed that Dixon came towards the mule with a stick when he turned in, but the mule turned out slackening the tail chain and pushing plaintiff off of the car, and in falling he grabbed at the spreader strap but missed it and swung under the car which ran upon him and broke three ribs and otherwise injured him. Dixon denied that he stood hi the room and frightened or struck the mule, or that the mule by reason of such fright turned and knocked plaintiff under the car. He claimed that plaintiff was looking back and fell off the tail chain and was hurt.
    It further appeared in this case that at the time of and prior to the day of the injury the defendant had elected not to operate its mine under the Compensation Act.
    The court gave the following instruction:
    “The court instructs the jury that when a coal company employs an assistant mine manager and puts him to work to assist in managing its mine, that-such assistant mine manager then becomes the vice-principal of such coal company, and his acts, in the scope of his authority as such assistant mine manager, bind the company; and you are further instructed that knowledge on the part of such assistant mine manager, received by him in his capacity as such assistant mine manager, in the scope of his duties as such, is the knowledge of the company; and if you believe, from the weight of the evidence, in this case that Joe Dixon, at and before the time plaintiff received his alleged injuries, was the assistant mine manager of the defendant, and further that the mule which plaintiff was driving at the time of his injuries, was dangerous for him to drive as alleged in plaintiff’s declaration, and that the said Joe Dixon knew of the dangerous disposition of said mule which plaintiff was driving, if he was dangerous, then, and in that case, such knowledge would be the knowledge of the defendant.”
    Denison & Spiller, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.

      Abstract of the Decision.
    1. Workmen’s Compensation Act, § 12

      —when declaration at common Jaw for personal injuries sufficient after verdict. In an action at common law to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, a declaration alleging that prior to the accident defendant had elected not to provide and pay compensation as provided by the statute, held sufficient after verdict without averment that the employer filed the notices required by the statute to he given of such election. ,
    2. Workmen’s Compensation Act, § 12

      —what is ultimate fact to be proved in action by servant for personal injuries at common law. In order to maintain an action at common law to recover for injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, the ultimate fact to he proved is that defendant elected not to provide and pay compensation as provided by the statute.
    3. Pleading, § 466—when declaration sufficient after verdict. A declaration alleging the ultimate fact to he proved is good after verdict without other averments.
    4. Pleading, § 28

      —when should not contain evidentiary matter. Circumstances tending to prove the ultimate fact alleged have no place in the pleadings hut are to he used for the purpose of evidence.
    5. Workmen’s Compensation Act, § 12

      —when averments as to election not to come under Workmen’s Compensation Act insufficient. In an action at common law to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, an allegation in the declaration that defendant filed with the Industrial Board the notice required by the statute of its election not to provide and pay compensation as provided by the statute without also alleging the posting of such notice, also required by the statute, if a necessary averment, must be regarded as an averment improperly or incompletely made.
    6. Pleading, § 466

      —when defects or omission cured by verdict. Defects, imperfections or omissions in any pleading, whether in substance or form, which would have been fatal on demurrer, are cured by verdict where the issue joined is that necessarily required, and where proof is made of the facts defectively or imperfectly stated or omitted, without which it is to he presumed that the verdict would not have been directed or given.

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

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

7. Pleading, § 466 —when not presumed every essential fact alleged in declaration was proved. After verdict the intendment is that every essential fact alleged in the declaration, or fairly implied from its allegations, were established on the trial, but where the declaration does not show a good cause of action there is no room for intendment or presumption.

8. Master and servant, § 550 —when declaration at common law for personal injuries sufficient after verdict. In an action at common law to recover for injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, where the declaration alleged in general terms the election of defendant not to provide and pay compensation as provided by the statute, and where the evidence showed that defendant had performed the acts necessary to effectuate its election as required by the statute, held that the declaration was good after verdict although it nowhere alleged that defendant posted notice of its election as required by the statute.

9. Workmen’s Compensation Act, § 2 —how filing of notice with Industrial Board may he proved. Proof of the filing of a notice with the Industrial Board in compliance with the Workmen’s Compensation Act of 1913 is sufficiently made by proving a copy of the notice filed, certified by the secretary of the board and under its seal.

10. Evidence, § 122 —how contents of posted notice may he proved. The contents of an inscription on a wall or of a notice posted thereon may be proved by the testimony of those who read such inscription or notice.

11. Workmen’s Compensation Act, § 2 —how election not to come under act may he proved. In an action at common law to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, where the declaration alleged that defendant elected not to provide and pay compensation as provided by the apt, held competent to prove such election by a copy of the notice filed by defendant with the Industrial Board, certified by its secretary and under the seal of the board, and by the testimony of those who saw the notice posted as required by the statute and by a copy of the notice made by one who saw it.

12. Trial, § 213 —when instruction takes count from consideration of jury. Where a declaration contains several counts, one of which is not supported by evidence, an instruction that there could be no recovery under the unsupported count has the effect of taking such count away from the consideration of the jury.

13. Trial, § 213 —when refusal of instruction that there can he no recovery on unsupported count not reversible error. Where a declaration contains several counts, one of which is not supported by evidence, it is not reversible error to refuse an instruction that no recovery- can be had on the unsupported count although such refusal may be erroneous, defendant not being prejudiced thereby, since in such case the presumption is that if a verdict is found for plaintiff, it is based on the counts which are supported by evidence.

14. Trial, § 247 —when verdict on one sufficient count good. Where one sufficient count in a declaration is sustained by evidence the verdict is good.

15. Trial, § 247 —when verdict on one good and one poor count sustained. A verdict finding defendant guilty on two counts, one sufficient and the other insufficient, will not be reversed although the court gave an instruction authorizing recovery on the insufficient count.

16. Appeal and error, § 1563 —when refusal of instruction to disregard count not reversible error. In an action to recover for personal injuries sustained by a miner as the result of the alleged negligence of defendant’s assistant mine manager in frightening the mule which plaintiff was driving at the time of the accident, causing the mule to turn, slackening the tail chain on which plaintiff was standing, and throwing plaintiff under the car, where the declaration contained several counts, one of which alleged that defendant’s foreman struck the mule, which count was not supported by evidence, the refusal of an instruction that plaintiff could not recover under the unsupported count held not reversible error, although erroneous.

17. Instructions, § 11 —when meaning of terms need not be explained. In an action for personal injuries, the terms “proximate cause” and “accident” are not so technical as to make the failure to explain in instructions the meaning of the terms necessarily error.

18. Mines and minerals, § 191 -when instruction as to Knowledge of disposition of mule not erroneous. In an action to recover for injuries sustained by a miner as the result of the vicious disposition of a mule given him to drive, an instruction relating to defendant’s knowledge of the disposition of the mule examined and held not objectionable, it appearing that the instruction did not direct a verdict, and that defendant’s boss driver had notice of the disposition of such mule.

19. Master and servant—when plaintiff entitled to instruction as to effect of defendant’s failure to accept compensation act. In an action at common law to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, where it appears that defendant elected not to provide and pay compensation as provided by the statute, plaintiff is entitled to an instruction advising the jury as to the defenses of which defendant was deprived by the statute as a result of its election.

20. Instructions, § 135 —when necessary that instruction he requested. A party desiring that the jury he instructed as to the evidence required to prove any disputed question of fact must ask for an instruction, and if he fails to do so cannot complain that none was given.

21. Instructions, § 154 —when requested instruction may he modified. It is not error to modify a requested instruction by making it more specific although the same general principle was covered by the instruction without the specific modification.

22. Instructions, § 151 —when may he refused. A party cannot complain of the refusal of instructions substantially given in other instructions.

23. ' Mines and minerals, § 180 —when question whether assistant mine manager frightened mule for jury. In an action for personal injury sustained by a miner as the result of the alleged negligence of defendant’s assistant mine manager in frightening the mule which plaintiff was driving at the time of the accident, the question whether the assistant manager did frighten the mule as alleged is a question of fact to be determined by the jury.

24. Mines and minerals, § 173 —when evidence sufficient to sustain verdict. In an action to recover for personal injuries sustained by a miner as a result of the alleged negligence of defendant’s mine manager in frightening the mule which plaintiff was driving at the time of the accident, causing the mule to turn, thereby slackening the tail chain on which plaintiff was standing, and throwing him under the car, a verdict for plaintiff held not manifestly against the weight of the evidence.

25. Appeal and error, § 1410 —when verdict sustained on appeal. On appeal it is the duty of the Appellate Court to sustain the verdict and judgment appealed from unless it can be said that such verdict and judgment are manifestly against the weight of the evidence.


text:
    Louis Bednar, Jr., by Louis Bednar, Sr., Appellee, v. Mt. Olive & Staunton Coal Company, Appellant.
    1. Workmen’s Compensation Act, § 2

      —what defenses not available as result of refusal to come under act. The common-law defenses of assumed risk, negligence of a fellow-servant and contributory negligence are not available to an employer who has elected not to accept the provisions of the Workmen’s Compensation Act of 1913.
    2. Workmen’s Compensation Act, § 2

      —when evidence tending to show contributory negligence admissible in mitigation of damages. In an action to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, evidence tending to show contributory negligence of plaintiff is competent in mitigation of damages where the employer has elected not to provide and pay compensation as provided by the statute.
    3. Master and servant, § 126

      —what is duty of master to furnish safe place to work. An employer who has elected not to provide and pay compensation as provided by the Workmen’s Compensation Act of 1913 owes to his employees the duty of furnishing a reasonably safe place in which to work.

      4. Mines and minerals, § 100a

      -^what is duty of owner of mine to keep tracks unobstructed. The owner or operator of a mine who has elected not to provide and pay compensation as provided by the Workmen’s Compensation Act of 1913 owes to his employees the duty of exercising reasonable care and diligence to keep the tracks in the mine entries free from dangerous obstructions or conditions, and for breach of such duty the employer will be liable in damages.
    5. Master and servant, § 206

      —when master Viable for negligence of other servants. The negligence of the employee is the negligence of the employer, and if injury to another employee is caused by such negligence, the employer must respond in damages, where he has elected not to come under the Workmen’s Compensation Act.
    6. Mines and minerals, § 182

      —when negligence of master question for jury. In an action to recover for personal injuries sustained by a mine employee since the enactment of the Workmen’s Compensation Act of 1913, where the employer has^ elected not to provide and pay compensation as provided by the statute, and where it was alleged that the injuries sustained were the result of defendant’s negligence, the question whether defendant was negligent under the evidence is a question of fact for the jury.

      7. Mines and minerals, § 173

      —when evidence sufficient to sustain ver.dict in action for negligent injuries. In an action to recover for personal injuries sustained by an employee since the enactment of the Workmen’s Compensation Act of 1913, where the employer had elected not to provide and pay compensation as provided by the statute, and where is appeared that plaintiff was injured as a result of a collision between a car which he was driving in a mine and another car driven by other employees of defendant who were alleged to have disregarded a warning from the trapper not to enter on the track where the accident occurred until plaintiff’s car had passed, evidence held sufficient to sustain the verdict.
    8. Mines and minerals, § 177

      —when evidence sufficient to :prove negligence of fellow-servants. In an action to recover for personal injuries sustained by a miner since the enactment of the Workmen’s Compensation Act of 1913 where the employer had elected not to provide and pay compensation as provided by the statute, and where it was alleged that plaintiff’s injuries were the result of defendant’s negligence, and it appeared that plaintiff was a driver in defendant’s mine and was ¡using the track where the accident occurred in the performance of his duties, that other employees desiring to move a car on which they had loaded their tools proceeded to a trap door where the trapper informed them that plaintiff was in the entry into which such employees intended to go and requested them to wait until plaintiff came out, and that they proceeded on their way without regard to the request and collided with plaintiff’s car a few feet from the do'or, evidence held to tend to prove negligence on the part of such other employees.
    9. Mines and minerals, § 126

      —when miner not bound to guard against unusual use of tracks. A driver in a mine is not bound in the exercise of ordinary care to anticipate and guard against an unusual use of the track on which he is driving his car.
    10. Mines and minerals, § 135

      —when disregarding custom constitutes contributory negligence. In an action to recover for personal injuries sustained by a miner since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, the fact that plaintiff disregarded an established custom of the mine amounts merely to contributory negligence, which in such case is not available as a defense.
    11. Instructions, § 105*—when instruction as to form of verdict not erroneous. An instruction as to the form of verdict is not objectionable because the words “here state the amount, if any, you find” were underscored, it being presumed that ordinary men would understand that the blank space in the form submitted was to he filled in by the jury in case they found for plaintiff.
    12. Mines and minerals, § 196

      —when instruction as to right of employees to use track erroneous. In an action to recover for personal injuries sustained by a miner since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, and where plaintiff’s injuries were sustained in a collision between a car which plaintiff was driving and a car driven by other employees, an instruction as to the relative rights of plaintiff and such other employees to the use of such track examined and held properly refused, there being no evidence to support the first part of the instruction, and the instruction claiming for such other employee’s rights to use such track which were doubtful as a matter of law, as well as ignoring the duty of such other employees in using such track to exercise due care and caution not to expose plaintiff to unnecessary danger.
    13. Mines and minerals—what are comparativé rights of miners using tracks. A miner, whose chief and main duty is to- haul empties to and loaded cars from the rooms of miners, has a right to the use of the track superior to those using the track occasionally or incidentally, as for example, the hauling of miner’s tools.
    14. Mines and minerals, § 126

      —when miners using tracks required to use care not to injure others. Miners using the tracks of the mine for incidental and occasional purposes are hound to exercise due care and caution in such use, so as not to expose to unreasonable danger other miners having a right to use the track.
    15. Damages, § 110

      —when verdict not excessive. In an action to recover for personal injuries sustained by a miner since the enactment of the Workmen’s Compensation Act, where the employer elected not to provide and pay compensation as provided by the statute, and where plaintiff’s injuries were sustained in a collision between cars in defendant’s mine, a verdict for plaintiff for $4,500 held not so excessive as to indicate passion or prejudice on the part of the jury.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Warnock, Williamson & Burroughs and Gillespie & Fitzgerald, for appellant.
    D. H. Mudge, for appellee.

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

Appellee sued appellant to recover damages on account of personal injuries sustained by him while employed in its coal mine, and recovered a judgment for $4,500, to reverse which this appeal is prosecuted.

Appellee, at the time of the injury, was employed as a driver in appellant’s mine. The declaration consisted of five counts and charged a failure on the part of appellant to furnish appellee with a reasonably safe place in which to work. That appellant failed to keep the track used by appellee reasonably free of dangerous obstructions; that it permitted said track to be obstructed by a pit car standing upon said track with which appellee collided. That appellant failed to warn appellee of the obstruction standing upon said track and with which he collided. The declaration charges that appellant had elected not to accept the provisions of the Workmen’s Compensation Act of Illinois, in force July 1, 1913. Appellant pleaded the general issue.

The evidence tends to show that appellee was injured on the 30th day of September, 1913; that at the time of the injury he was employed as a driver, working from a parting in what is known as the “Second Left North Parallel Entry” of appellant’s mine, north to the ninth and tenth north entries, and thence to the west through the entries last named, to the face of said entries. ' His duties consisted in getting empty cars at the parting, located at the point of intersection of the parallel with the main entry, and hauling them to the rooms of the loaders, working in the ninth and tenth* north entries, and hauling loaded cars from the rooms to the parting. This parting was about three-hundred feet south of the point where the ninth and tenth north entries intersect the parallel. The ninth and tenth north entries are fifty feet apart and extend about three hundred feet west of the parallel.

A trap door was located in this parallel entry, same being about fifteen feet north of the point of intersection of the ninth north entry with the parallel, and thirty-five féet south of the point of intersection of the tenth north entry with the parallel. A trapper was stationed at this door to open and close the same.

In the tenth north entry, being one of the entries in which appellee worked, beginning at room 19, there was a down grade, towards the parallel, and the evidence tends to show that when the car or cars of a trip passed on to this grade it was impossible to stop them until the trap door was reached. At the time of the accident appellee was hauling a trip from room 21 on the tenth north, and when he came from the room on to the entry track he was, about two hundred feet from the trap door.

The evidence further tends to show that on the day of the accident two other servant's of appellant, Vandy and Raysheck, who had been mining in the ninth north entry, were moving to a new working place in the tenth north entry. They had loaded their tools into an empty car and requested appellee to haul it to their new working place, and he promised to do so after making another trip, but it seems that they were not disposed to wait, and started to move the car themselves. They proceeded with their car out of the ninth north into the parallel, and turned north on their way to the tenth north. At the trap door, the trapper directed them to wait, informing them that appellee was in the tenth north and would be out immediately. The evidence tends to show that these men disregarded the notice given them by the trapper, and passed on with their car through the trap door, and wh¿n a few feet to the north of said door, appellee, who was coming with the trip from room 21 on the tenth north, collided with their car in the parallel, and sustained the injuries complained of.

As grounds for a reversal it is urged that the evidence fails to disclose any negligence for which appellant can be held liable, error in giving and refusing instructions, improper argument by counsel for appellee ; and that the damages awarded are excessive.

Appellant having elected not to accept the provisions of the Workmen’s Compensation Act, it has forfeited its right to interpose in this case the common-law defenses of assumed risk, fellow-servant, and contributory negligence, except that the latter may be shown for the purpose of reducing the damages. (Deibeikis v. Link-Belt Co., 261 Ill. 454, 5 N. C. C. A. 401; Crooks v. Tazewell Coal Co., 263 Ill. 343, 5 N. C. C. A. 410.)

Appellant owed to appellee the duty of furnishing him a reasonably safe place in which to work. It was required to exercise reasonable care and diligence to keep the track in the entries in which he worked free from dangerous obstructions or other dangerous conditions which would expose him to danger, and for any breach of this duty it is liable in damages. It remains to be determined, therefore, whether Yandy and Eaysheck were guilty of negligence in moving their car of tools in the maner they did, and if so was appellant chargeable with this negligence.

It is conceded that Yandy and Eaysheck were servants of appellant, and it has been urged herein that they were acting within their rights in undertaking to move the car with their tools, at the time, and under the circumstances, then existing, and hence the rule of respondeat superior applies. If they were guilty of negligence at the time, their negligence was the negligence of appellant, and if in consequence of that negligence appellee was injured, it follows that appellant is liable to respond in damages for the injuries sustained. (Thompson on Negligence, vol. 1, secs. 518, 519, 520 and 521; Barker v. Chicago, P. & St. L. Ry. Co., 243 Ill. 482; North Chicago City Ry. Co. v. Gastka, 128 Ill. 613; Noble v. Cunningham, 74 Ill. 51.)

Whether or not Yandy and Raysheck were guilty of negligence, in attempting to move their car with their tools from the ninth to the tenth north, under the circumstances then existing, was a question of fact for the jury, and we cannot say that in finding that it was, the jury disregarded, or found contrary to, the weight of the evidence. These men knew that appellee was driving in these entries, and the parallel, and that his duties required him to use the tracks therein constantly. They had requested him to haul the car for them, and he had promised to do so after his next trip, and he had no reason to suppose that they would not wait for him for that purpose. The evidence tends to show that when they came to the trap door the trapper requested them to wait, and informed them that appellee was in the tenth north entry and would be out immediately. Notwithstanding this request and this notice, they proceeded on their way, and the collision resulted a few feet beyond the trap door in the parallel. This evidence tended to establish negligence on the part of these men. Their use of the track, under the circumstances and for the purposes disclosed, was an unusual one, which appellee was not bound to anticipate and guard against.

It has been urged by appellant that appellee disregarded a custom in force in this mine which required the driver, when coming down a grade, to stop at the top of the grade and signal his approach, and remain there until he received a signal from the trapper that the way was clear.

It may be remarked here that we find no satisfactory evidence of any such custom, nor did the officers and agents of appellant testify to any certain set of signals, which were in use, or which were followed, or which appellant sought to enforce in the operation of its mine. Nor do we perceive how appellee, if waiting at the top of the grade in the tenth north, some fifty or a hundred feet west of the parallel, could see a ‘'high-ball,” given by a trapper from his station in the parallel thirty-five feet south of the tenth north.- But even if such custom had been clearly established and its violation clearly shown, this would have amounted to contributory negligence only, and as indicated by the authorities cited, that defense is not now available in actions of this character.

We have examined the given instructions for appellee of which complaint is made, and find nothing objectionable therein. We do not regard the underscoring of the words, “here state the amount, if any, you find,” in the instruction as to form of verdict, objectionable. It is apparent that what is claimed to be an “underscoring” of th'e words, indicated nothing more than the blank space 'in the verdict to be filled in by the jury in case they found for appellee, and it is not to be presumed that ordinary men would understand it in any other light. The authorities cited by appellant do not sustain its criticism of this instruction. /

We do not think the court erred in refusing appellant’s instruction of which complaint is made. There is no evidence in this record on which to base the first portion of the instruction, and we are not prepared to say that the rights therein claimed to exist do exist as a matter of law. It would seem, in fact, that a driver whose chief and main duty is to haul empties to and loaded cars from the rooms of the miners would have a superior right to the trade as against an incidental and occasional use such as Yandy and Baysheck were making of the track at the time. There, is no evidence tending to show that appellee knew of such use, and even if it be conceded that the rights of Yandy ánd Baysheck to use the tracks were equal to the rights of appellee, they were still bound to exercise those rights with due care and caution, and so as not to expose other servants of appellant having a like right, to unnecessary or unreasonable danger, and this instruction entirely ignores this principle of law.

We cannot say that the argument of appellee’s counsel, of which complaint is made, is of such a character as to require a reversal of the judgment herein, nor do we regard the size of the verdict, in view of the injuries sustained, as indicating passion or prejudice on the part of the jury.

Finding no reversible error in the record herein, the judgment of the Circuit Court is hereby affirmed.

Affirmed.


text:
    Marie Hughes, Administratrix, Appellee, v. Eldorado Coal & Mining Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Marie Hughes, administratrix of the estate of James Hughes, plaintiff, against the Eldorado Coal & Mining Company, in the Circuit Court of Saline county, to recover for injuries resulting in the death of plaintiff’s intestate, which injuries were sustained as a result of an explosion in defendant’s mine where deceased was employed as a shot firer. From a judgment for plaintiff for $2,500, defendant appeals. Deceased left a widow who prosecuted this action as administratrix for the benefit of the next of kin.
    The first count charged that the third and fourth entries were dry and dusty and that the defendant wilfully failed and neglected to have the entries and' roadways thoroughly sprinkled or cleaned, by reason of which and while Hughes was following his duty, and while the air in the entry and crosscut was so charged with dust, and by reason of the firing of the shots the dust became ignited, causing a violent explosion in the entries and crosscut, injuring the deceased Hughes.
    The second count charged that defendant wilfully failed and neglected to conduct into the working place of Hughes an amount of air sufficient to render the working place reasonably free from deleterious air, etc., and that the air being charged with gas and dust became ignited causing a violent explosion, injuring deceased.
    The fifth count charged that it was the duty of the defendant to use reasonable care to furnish a reasonably safe place in which to work and that the entries and crosscuts were in a dangerous condition, in that there had been a squeeze in the mine and the air passages partially closed to such an extent that sufficient quantities of fresh air could not be forced through the passages to prevent the air in the third arid fourth entries and crosscuts from becoming deleterious. Also that the blast from the shots caused the gas, dust and other inflammable substances with which the air in the entries and crosscuts was charged and of which defendant had knowledge, to become ignited causing a violent explosion, injuring Hughes.
    The original declaration then concluded with proferí of letters of administration, etc.
    The sixth.or additional count was filed within one year of the time of the injury, and charged a storage of one hundred pounds of powder in the fourth west entry, and that the fire from the shots caused the powder to become ignited and to explode, injuring the deceased Hughes. This count then averred death, survivorship, and concluded with damages to the amount of $3,000, and made profert of letters of administration, and then followed this averment: Plaintiff further avers that the said defendant had elected not to he bound by an Act of the General Assembly of the State of Illinois, commonly known as the Compensation Act, and that the plaintiff’s intestate was bound by the terms of said act.
    It appeared that James Hughes and his buddy, John Dunn, were employed by defendant as shot firers in its mine, and while so engaged on November 25, 1913, an explosion occurred by which the said James Hughes and John Dunn received fatal injuries. The explosion occurred in the third and fourth west entries off of the second north entry in the mine. The entries are the first and second north extending north and south, and the first, second, third and fourth west entries, which are turned to the west off of the second north. The north entries extended some distance north of the third and fourth west entries. Air was circulated by a fan, producing a downcast of air, passing into the first north entry and after going some distance beyond the fourth west it was returned through the second north to the fourth west entry, and thence west through the fourth west entry and at the end of this returned by the third west to the second north and thence south to the second west entry, thence west, returning by the first west to the second north entry, and thence passing into the shaft. There was evidence tending to show that a squeeze in the first and second west entries causing the top to fall and to some extent to stop up these entries so that the passage for the air in returning to the shaft was very much smaller in these entries than in the third and fourth entries. Room No. 9 was located about two-thirds of the distance west on the fourth west entry and north of the second north entry. Ten shots had been placed in these entries to be fired by Hughes and Dunn. Room No. 9 had two shots placed in it. There was one shot in the face of the fourth west entry, one in the crosscut being opened near the face of that entry, two in the face of the third west entry and two in each of the two stub entries off the third west and opposite the crosscut marked 12 on the plat. On the afternoon of the 25th of November, Hughes and Dunn went into these entries and fired the shots located and while being fired an explosion occurred injuring both these shot firers. It was disputed where the shot firers commenced firing. It was claimed by plaintiff that the evidence showed they commenced firing in the third west entry, and by defendant that they commenced in the fourth west entry.and fired with the air current, and defendant contended that the evidence showed that the cause of Hughes’ death was firing his shots in too rapid succession and with the air, carrying the powder smoke or carbon monoxid from one shot to the other, resulting in an explosion, and claimed to be sustained by the fact that a portion of the skin of a burned hand, a portion of a little finger, cap, lamp and other things were found in the third west entry. It was contended by plaintiff that the roadway in these entries was very dusty, and that the circulation of air being very poor, the dust mingled with the powder smoke and firing the shots in succession, the standing powder smoke combined with the dust ignited and produced the fatal effect; and also claimed that there was evidence of charred dust upon the roof and props of the entry and that the dust had been burned and coked and stuck to the timbers and roof of the entry, and that the dust in the air was one of the causes of the explosion.
    Hughes and Dunn were fonnd in the fourth west entry and at the distance of about forty feet from the second north entry.
    Defendant pleaded the statute of limitations to the first, second and fifth counts, and plaintiff’s demurrer to the plea was sustained. The cause was tried by jury. At the conclusion of plaintiff’s evidence, the court excluded the evidence and directed a verdict as to the third, fourth and sixth counts, but refused the motion as to the first, second and fifth counts. The motion was renewed at the close of all the evidence and again refused. After verdict plaintiff was permitted to amend by inserting in each count the allegation that defendant had elected not to be bound by the act commonly known as the Compensation Act. The jury found for plaintiff.
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 12

      —when not necessary to allege in all counts that employer had elected not to come under Compensation Act. In an action at common law to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, a general averment in one of several counts that the employer had elected not to provide and pay compensation as provided by the statute is sufficient although other counts contain no such averment, such averment being of a general character not peculiar to any count but pertaining to all counts.
    2. Death, § 36

      —when not necessary to allege in all counts that deceased left next of hin. Although it is usual in practice in actions to recover for death to aver in all counts of the declaration that deceased left next of kin, it is not necessary to do so, and the statutory requirement is met if such allegation appear in one count.
    3. Limitation of actions, § 69

      —when use of additional counts alleging survivorship does not constitute new cause of action. In an action to recover for death, where the declaration contains hut one count which alleges that deceased left next of kin, additional counts or an amended declaration averring survivorship in each count is not the statement of a new cause of action, but a restatement in amplified form of the original cause of action.

      William E. Wheeler and Whitley & Combe, for appellant.
    Somers & Miley and Hartwell & White, for appellee.

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

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

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

4. Pleading, § 56 —when count preserved as part of declaration after direction of verdict. Where the evidence as to a count is stricken and a verdict directed as to the count, the count is not thereby stricken but remains part of the declaration for reference purposes and may furnish a sufficient basis for additional counts setting forth the cause of action in a manner more accurate and legal than in the disapproved count.

5. Workmen’s Compensation Act, § 12 —when declaration in action for death sufficient. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, declaration examined and held as a whole to state a complete cause of action.

6. Workmen’s Compensation Act, § 12 —when declaration sustained by one good count. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where defendant pleaded the statute of limitations to three counts not alleging that the employer had elected not to provide and pay compensation as provided by the statute, a demurrer to the plea held not erroneously sustained where a count to which the statute was not pleaded sufficiently alleged such election.

7. Workmen’s Compensation Act—what is liability of employer under act. An employer operating under the Workmen’s Compensation Act is liable for all injuries sustained by his employees acting within the scope of their employment, regardless of questions of negligence, proximate cause or accident.

8. Workmen’s Compensation Act, § 2 —when presumed that employer decided not to come under Workmen’s Compensation Act. In an action at common law to recover for personal injuries sustained by an employee since the enactment of the Workmen’s Compensation Act of 1913, it will be assumed as a fact that defendant had elected not to pay compensation in accordance with the act, where counsel conceded in argument that defendant was not operating under the act at the time of the injury and never had been so operating, although there was no evidence of such fact.

9. Workmen’s Compensation Act, § 2 —when action of counsel constitutes declaration that employer not operating under statute. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, the action of counsel for defendant in offering evidence tending to show that negligence of defendant was not the proximate cause of the injury sought to be recovered for is equivalent to a declaration that defendant was not operating under the statute.

10. Trial, § 34 —when courts reluctant to sustain objections. Courts are reluctant to sustain objections where a party has lost no rights by reason of the matters objected to and where nothing is to be gained by sustaining the objections.

11. Evidence, § 206 —what constitutes a declaration against interest of deceased person. In an action to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the act, and where plaintiff’s injuries were the result of an explosion occurring immediately after deceased fired certain shots, and where defendant’s theory of the accident was that the shots were fired with the air, causing the powder smoke or carbon monoxid to be carried from one shot to another, causing the explosion, a statement of deceased’s buddy tending to confirm defendant’s theory is a statement against the interest of the declarant, it appearing that declarant was injured by the same explosion.

12. Evidence, § 205 —when declarations of deceased person admissible. Declarations made by a deceased person against his interest are competent.

13. Evidence, § 143 —what constitutes secondary evidence. Declarations made by a deceased person against his interest, when competent, are secondary evidence.

14. Evidence, § 206*-—what constitute declarations by deceased person against interest. Declarations by a deceased person against his interest constitute a class of evidence embracing not only entries in books but all other declarations or statements of fact, verbal or written, whether made at the time of the fact declared or at a subsequent date.

15. Evidence, § 205 —when declarations of deceased person competent. In order to render the declarations of a deceased person competent it must appear that the declarant is dead, and that while alive he possessed competent knowledge of the facts or that it was his duty to have such knowledge, and that the declarations sought to be proved were at variance with his interest.

16. Evidence, § 464 —how weight and value of declarations against interest of deceased person determined. The weight and value as evidence of declarations of a deceased person against his interest is to be determined by other evidence in the case.

17. Evidence, § 204 —when declarations against interest of deceased person competent. Declarations by a deceased person against Ms interest are competent to prove collateral or independent facts embodied in such declarations.

18. Evidence, § 204 —when declarations against interest of deceased person competent. Declarations by a deceased person against his interest are competent in a suit between strangers.

19. Evidence, § 177 —competency of declarations by third party. Declarations by a third party are not generally competent.

20. Evidence, § 204 —when declarations of deceased person competent. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, and where defendant’s theory of the explosion causing the injuries was that deceased fired shots in the air, causing the powder smoke ór carbon monoxid to be carried from one shot to another, resulting in the explosion, the exclusion of a declaration by deceased’s buddy, also injured by the explosion, tending to confirm defendant’s theory held erroneous, it appearing that the declarant was dead, and that the statement was against interest.

21. Instructions, § 28 —when giving of erroneous oral instruction not cured. An erroneous oral instruction involving the statement of the opinion of the trial judge as to the sufficiency of the evidence to prove a contested fact is not cured by directing the jury to’ disregard such instruction.

22. Instructions, § 28 —when no right to instruct orally. An oral instruction to a jury is in violation of section 73 of the Practice Act (J. & A. j[ 8610), providing that no judge shall instruct the jury in a civil or criminal case unless such instructions are reduced to writing. ,

23. Appeal and error, § 590 —when exception to instruction timely as basis for error. An assignment of error in instructions is warranted where the exception to the instruction objected to as erroneous was taken immediately after the instruction was given. .

24. Instructions, § 71 —when instruction assuming disputed facts erroneous. In an action at common law to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s' Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, such injuries being caused by an explosion in defendant’s mine where deceased was employed as a shot firer, an instruction assuming that a dangerous condition existed in the mine at the time of the accident held erroneous where the facts assumed were contested, and where an erroneous oral instruction had previously been given on the same count.

25. Mines and minerals, § 191 —when instruction as to duty of operator to sprinkle and clean roadways erroneous as being too broad. In an action to recover for injuries sustained resulting in the death of plaintiff’s intestate, a miner, since the enactment of the Workmen’s Compensation Act of 1913, where the employer had elected not to provide and pay compensation as provided by the statute, where two counts in the declaration alleged “that the defendant wilfully failed and neglected to have the entries and roadways thoroughly sprinkled or cleaned,” an instruction to find defendant guilty if the jury found that defendant committed the wilful violation charged in such counts, held erroneous as being broader than clause m of section 14 of the Miners’ Act (J. & A. If 7488), providing that “the operator of such mine must have such roadways regularly and thoroughly sprayed, sprinkled or cleaned."

26. Mines and minerals, § 41 —what constitutes wilfulness within Mining Act. To constitute wilfulness within the meaning of the Miners’ Act (J. & A. j[ 7475 et seq.), the act charged to be wilful must be an act prohibited by the statute.

27. Appeal and error, § 1391 —when evidence not discussed. Where a judgment is reversed for errors of law, the Appellate Court is not warranted in expressing views on the evidence.


text:
    Thomas J. Osborn, Appellee, v. City of Mt. Vernon, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Thomas J. Osborn, plaintiff, against the City of Mt. Vernon, defendant, in the Circuit Court of Jefferson county, to recover for injury to a horse. From a judgment for plaintiff for one hundred dollars, defendant appeals. The action was commenced before a justice of the peace and appealed to the Circuit Court.
    It appeared that plaintiff owned a horse which he hired to John Griggs to be used in delivering goods, which on May 20, 1914, was driven by Alva Thomas, a boy of the ag-e of seventeen years. He had driven up Cherry street and had just passed on to 12th street and while driving in the center of the street the horse slid to the side of the street and fell into a catch-basin and was badly injured. The boy testified that at the time he passed on to 12th street he was driving at the rate of about seven or eight miles an hour.
    It was stipulated that the street occupied and controlled by the city was of the width of sixty feet, and had been paved to a width of twenty-four feet.
    The tracks made by the horse in sliding extended from about the center of the street east to the catch-basin. The catch-basin was at the outside of and adjacent to the paved portion of the street and was described by the mayor as being- of the depth of twenty-four inches at the side next to the pavement, extending-back to curb line thirty inches, and that north and south it was twenty-seven inches. The mayor knew of this catch-basin and at times it was covered over with a rock which lay at one side but had been removed so as to permit the water from the street to drain into the catch-basin. An ordinance was introduced in evidence providing- that no horse should be driven faster than six miles per hour upon any street or alley in the city, nor faster, than four miles per hour in turning a comer.
    Frank G. Thompson, for appellant.
    Joel F. Watson and Conrad Schul, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of 'the court.

Abstract of the Decision.

1. Trial, § 195 —when verdict should not be directed. In an action against a city to recover for injury to a horse as a result of the defective condition of a catch-basin in a public street, the refusal of a motion by defendant for a peremptory instruction in its favor held not erroneous, there being evidence which with reasonable intendments tended to show negligence of defendant, and there being no evidence from which it could be said as a matter of law that the driver of the horse was not in the exercise of due care and caution.

2. Appeal and error, § 1391 —when evidence will not be discussed. Where a judgment is reversed for errors of law, the Appellate Court will not commend on the weight of the evidence.

3. Municipal corporations, § 970 —what is duty as to care of streets. A municipal corporation is bound to use reasonable care to keep its streets in a reasonably safe condition, and the duty includes keeping such streets reasonably free from obstructions throughout their entire width.

4. Municipal corporations, § 1048 —what care persons using street must exercise. Persons traveling on a public street are bound to exercise due care and caution for their own safety while so traveling.

5. Municipal corporations, § 1057 —what constitutes want of due care in driving on street. It is not necessarily a want of due care and caution to drive a horse on a public street at a speed prohibited by a city ordinance, as, for example, where without the fault of the driver the horse runs away and cannot be restrained by the exercise of due care on the part of the driver.

6. Municipal corporations, § 1107 —when contributory negligence of driver of team question for jury. In an action against a city to recover for injury to a horse as a result of a defective catch-basin in a public street, where it appears that at the time of the accident the horse was being driven along such street at a speed in violation of a city ordinance, the question of the contributory negligence of the driver is to be determined by the jury under all the evidence.

7. Municipal corporations, § 1100 —when instruction on care of streets erroneous. An instruction that a city is bound to keep its streets in a reasonably safe condition is bad as requiring a greater degree of care than required by law.

8. Instructions, § 81 —when instruction emphasizing particular facts erroneous. An instruction pointing out particular facts as constituting negligence, if omitted, is bad.

9. Negligence, § 191 —when question for jury. It is for the jury to determine what facts constitute negligence in a particular case.

10. Negligence, § 115 —doctrine of comparative negligence not prevailing. The doctrine of comparative negligence is not law in this State.

11. Municipal corporations, § 1104 —when instruction erronéous as directing facts constituting negligence and as assuming facts. In an action against a city to recover for injury to a horse as a result of the defective condition of a catch-basin in a public street, an instruction that plaintiff could recover if the jury “believe from the evidence that the defendant was guilty of gross negligence in allowing the hole in the public street to remain open and unprotected, if proven, and in a dangerous condition, so that persons or animals passing along, across and over said street might fall in and be injured,” held erroneous as directing the acts constituting negligence, and as assuming facts to be proved.

12. Appeal and error, § 1565 —when modification of requested instruction prejudicial error. It is prejudicial error to modify a' •requested instruction ending “then you should find for defendant” by substituting the word “may” for the word “should,” since the instruction as modified leaves a discretion to the jury to find for plaintiff, although they find the facts to be as stated in the instruction.

13. Instructions, § 154 —when requested instructions should not he modified. Requested instructions making it mandatory for the jury to find for such party under named conditions should not be modified by substituting words, leaving the jury discretion to find for the other party, even though the named conditions are found to exist.


text:
    Silas Williams, Administrator, Appellee, v. Mt. Vernon Car Manufacturing Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 221

      —when instruction not confining jury to negligence alleged erroneous. In an action to recover for personal injuries caused by the negligence of the defendant, an instruction which fails to confine the jury to the particular negligence alleged in the declaration as the cause of the injury sustained, but allows them to base their finding upon any character of negligence shown by the evidence, is erroneous.

      Appeal from the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Silas Williams, administrator of the estate of Willie Williams, plaintiff, against the Mt. Vernon Car Manufacturing Company, defendant, for causing the death of the plaintiff’s intestate. From a judgment for plaintiff, defendant appeals.
    As alleged, the death was caused by the negligence of the defendant in shifting cars upon the tracks in its manufacturing plant without giving proper warnings, whereby the deceased, an employee, was crushed between the cars.
    G. Gale Gilbert, for appellant.
    Hart & Williams, Conrad Sohul and Moses Pulverman, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Negligence, § 216*-—when instruction on negligence as modified invades province of jury. In a personal injury action based on the defendant’s negligence, it is erroneous for the court to substitute the word “may” for “should” in the defendant’s instruction, reciting the negligence charged in the declaration, seeking to confine the negligence to that alleged and charging the jury that unless the negligence was of the character so described and alleged in the declaration they should find "the defendant not guilty, inasmuch as by such modification the discretion of the jury was substituted for their duty.

3. Death, § 73*—when instruction erroneous as not limiting damages to pecuniary damages resulting from death. An instruction in an action for causing the death of the plaintiff’s intestate, that the plaintiff is entitled to recover “for the exclusive benefit of the widow and next of kin of the deceased, such damages as the jury may believe from the evidence the said widow and next of kin have sustained by reason of said death, not to exceed in all, however, the sum of ten thousand dollars,” is erroneous in not limiting the damages to the pecuniary damages resulting from the death.


text:
    L. D. Reese, Appellant, v. O. L. Bartlett, Appellee.
    1. Workmen’s Compensation Act, § 2

      —when Workmen’s Compensation Act becomes part of contract of employment. When an employer elects to operate its plant and an employee to perform work for the employer under the Workmen’s Compensation Act, such act becomes a part of the contract of employment.
    2. Workmen’s Compensation Act, § 12

      —when declaration in action of assumpsit by servant against master sufficient. A declaration in an action of assumpsit by an employee against his employer to recover compensation for injuries sustained in the course of the employment, alleging that the parties were working and operating under the Workmen’s Compensation Act, and, among other proper allegations, that, though requested to do so by the plaintiff, the defendant refused to appoint an arbitrator in accordance with the provisions of the act, is not subject to demurrer.

      3. Workmen’s Compensation Act, § 5

      —when assumpsit and not mandamus lies in action t>y servant against master. Where an employer and employee are operating and working under the Workmen’s Compensation Act and the employee, having sustained injuries in the course of his employment, requests his employer to name an arbitrator in accordance with the provisions of the act, which request is not complied with, the employee may sue in assumpsit, for breach of contract and will not be compelled to resort to an action of mandamus, as that remedy would not give the plaintiff such speedy relief as he is entitled to.
    Appeal from the Circuit Court of Pulaski county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed December 1, 1915.
    Charles L. Rice and Fred Hood, for appellant.
    Wall & Martin, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

The defendant in the court below filed a demurrer to plaintiff’s declaration, which was sustained by the court, and the plaintiff having elected to stand by his declaration judgment was thereupon rendered ag-ainst him for costs, and he now seeks a reversal of this judgment.

The declaration contained two counts, the first of which alleges that the plaintiff was employed by the defendant in the manufacturing plant .owned and operated by the defendant, and that on the 24th of February, 1913, while engaged at work for the defendant in removing the back from a dust conveyor near a circular saw which was operated by steam power, he was injured. That such injury consisted of the severing of three fingers and the thumb from his left hand and that such injury arose out of and in the course of plaintiff’s employment with the defendant as fireman and factotum in and about and for the said plant. That his average annual earnings were $624, and that by reason of such injury he became totally disabled for a period of three months. That since his recovery he had only been able to secure casual employment at a much less wage than he was accustomed to receive and was unable to secure regular employment. The declaration further alleges that at the time of the said injury the plaintiff and the defendant were working and operating under the provisions of the Compensation Act of 1911. That on March 1, 1913, plaintiff demanded and requested of the defendant the amount of compensation to which plaintiff was then entitled by virtue of said statute, on account of the injury so received, and that the defendant then and there refused to pay the plaintiff any sum of money as compensation under said act or otherwise. And denied that plaintiff was entitled to compensation under the act because the accident or injury to the plaintiff did not arise out of or in the course of his employment with the defendant, and that a dispute then and there arose between the plaintiff and the defendant of both matters of law and fact. That the defendant refused to agree with plaintiff with reference thereto. It is further alleged that after the plaintiff and defendant had failed to reach an agreement upon the said disputed questions of law and fact, the plaintiff on April 1, 1913, selected a disinterested party to act as arbitrator and then and there requested the defendant to select a disinterested party to act as such arbitrator, in accordance with said statute, which the defendant then and there refused and still does refuse to appoint such arbitrator.' That the defendant also refused to pay the said sum of money there mentioned or any part thereof to the plaintiff. The second count of the declaration is substantially the same as the first. To this was also added the common counts which concluded in the usual form in alleging the damages sustained by the plaintiff in the amount of one thousand dollars. The demurrer to this declaration was sustained. The question presented by this demurrer and argued by counsel for appellant and appellee is, Can the appellant sue in assumpsit and recover compensation for an injury received after he had selected an arbitrator, as provided by the statute, and the appellee had refused to select an arbitrator upon request so to do by the appellant, and while the plaintiff and the defendant were operating under the Compensation Act of 1911? It is very clear from the language of this statute that when a dispute arose between the appellant and appellee as to the facts and law involved in the case that it became their duty to submit the matters so in dispute to arbitrators, in the manner required by statute.

It further appears from the allegations of this declaration that there were questions of law and fact in dispute between these parties. That the appellant selected an arbitrator and demanded that appellee also select one for the purpose of settling such dispute. This the appellee refused to do and by such refusal no arbitration could be had of the differences between them, as the statute provided no means of selecting such arbitrator when either of the parties refused to so select.

The declaration alleges, and it is admitted by this demurrer, that the injury was sustained while plaintiff was engaged at work for the defendant, and that such injury did arise out of and in the course of the employment. When the defendant elected to operate its plant and the plaintiff to perform work for the defendant under the compensation act aforesaid, then such act became a part of the contract entered into between these parties for the performance of this work. It is said by the Supreme Court, in commenting upon this particular statute, that: " Having once elected to come within the provisions of the act, as long as such election remains in force the act is effective as to the party or parties making the election, and in case an employer and employee both elect to come within the provisions of the act, the act itself then becomes a part of the contract of employment and can be enforced as between the parties as such.” Deibeikis v. Link-Belt Co., 261 Ill. 465 (5 N. C. C. A. 401). If it be true that the election to come under the provisions of this act made the act itself a part of the contract between the parties, then each party was bound to perform whatever was required by such contract, and a failure upon the part of either to do the things required of such party, by such statute, would constitute a breach of such contract. In this case the appellee refused to select an arbitrator when demanded so to do, and under such circumstances, as appears from the averments of this declaration, he was bound to make such selection, and having failed and refused to make the selection, it appears to us that such failure constituted a breach of the contract existing between these parties. Such failure and refusal upon the part of the appellee did exist, and we can see no reason why appellant should not have a right of action against the appellee in assumpsit for the breach of this contract. If such conditions existed as to warrant the appellee in refusing to select an arbitrator, then there could be no breach of the contract in that respect, but this is a matter that should be determined by the court upon a hearing. It is said by counsel for appellant that: “We have an action based upon the act itself, reciting its very terms and alleging that employer and employee were operating under its provisions, and for a jury to render a verdict under it, they must make the computations according to its provisions, etc. ’ ’ He also says: “Both the plaintiff and defendant contracted and agreed with each other that the defendant was relieved from any liability to pay damages, except as provided in the act, according to section 1 thereof,” and that no common law or statutory right to recover damages for the injury other than the compensation in such statute provided was available to an employee operating under this act. It may be that if it appears upon a trial that there has been a breach of this contract and that as the parties have made a specified contract with reference to the compensation, that in assessing damages this contract should be taken into consideration in determining the amount of damages, but that question is not before us and is not necessary to be determined, for if the appellant had a contract with the appellee and there was a breach of the contract, then he was entitled to sue for this breach, and the question of the amount of damages could be determined upon the trial. It is said by counsel for appellee that if the appellee refused to select an arbitrator that then the appellant’s remedy would he to resort to a mandamus. Waiving the question of the right to an action of mandamus in such cases this, in our judgment, would not be giving appellant such speedy relief as he is entitled to receive, if there was in fact a breach of his contract. The contract and the breach are set out in this declaration and we cannot see why such declaration should not be sustained. We are of the opinion that the. declaration sets out a good cause of action in assumpsit' and that the, lower court erred in sustaining the demurrer thereto, and the judgment of the lower court is reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Charles Rushing, Appellant, v. O. L. Bartlett, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Pulaski county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Charles Rushing, plaintiff, against O. L. Bartlett, defendant. From a judgment sustaining the defendant’s demurrer to the declaration, the plaintiff appeals.
    The declaration and demurrer being substantially the same as those in the case of Reese v. Bartlett, ante, p. 272, and the questions made and argued the same, the opinion filed therein was adopted herein.
    Charles L. Rice and Fred Hood, for appellant.
    Wall & Martin, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.


text:
    Jacob C. Schmidt, Appellee, v. Marine Milk Condensing Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Jacob C. Schmidt, plaintiff, against the Marine Mi Hr Condensing Company, defendant, to recover the balance of the price of milk sold the defendant. From a judgment for plaintiff, defendant appeals.
    The defendant was engaged in the business of purchasing milk and the plaintiff had been delivering milk to the defendant, the delivery for each month being settled and paid for on or about the 15th of the succeeding month. During the month of October, 1913, the plaintiff had delivered to the defendant 6,563 pounds of milk, and on or about the 11th or 12tli of November the plaintiff visited the office of the defendant and there met the president. The purpose of his-visit was to make prices for milk for six months from October 1st, and he then had a conversation with the president of the defendant company who told him that $1.85 per hundred would be paid him for six months beginning October 1, 1913, the milk to be delivered at Marine. Shortly thereafter the defendant caused to be published in the Marine Telegram the following notice: “Notice is hereby given that the Marine Milk Condensing Company guarantees an average price of $1.85 per hundred for milk for the six months beginning October 1st and ending April 1st. Henry Bieke, Manager.” The plaintiff saw and read this notice about the time of its insertion and continued to deliver milk to the defendant until April 1st. At the end of each month a statement was sent from the main office of the defendant to their agent at Marine, together with a check for the amount of milk delivered during that month. It appears that for the month of October the check was $1.75 per hundred, February $1.80 per hundred, and March $1.75 per hundred, and the other months was $1.85 per hundred. Each time the check was below $1.85 the plaintiff complained to the agent that it was not enough but accepted the check and cashed it, and upon the payment of the last check he told the agent of the defendant at Marine that unless they paid the balance to make up the $1.85 he would sue them. The balance was not paid and this suit was brought to recover the same.
    Abstract of the Decision.
    1. Sales, § 309

      —when seller receiving less than contract price for goods may maintain action for balance. Where under a contract for the sale of goods, deliveries to extend over a stated period, the buyer agrees to pay therefor at stated intervals at a specified average rate per pound, and the seller accepts, under protest, checks in payment thereof at a rate less than that agreed upon, he may, at the expiration of such period, recover the difference between the total amount of such payments and the stipulated total price so agreed to be paid, as such payments will be considered as having been accepted as part payment only. •
    Dan McGlynn and Williamson, Burroughs & Ryder, for appellant.
    Springer & Buckley, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

2. Sales, § 15 —when doctrine of mutuality inapplicable. Where, in accordance with an offer to accept and pay for certain goods at a stipulated price, the delivery thereof is made and accepted, the offer becomes a binding promise to pay therefor, even though the seller was not bound to deliver, the doctrine of mutuality having no application in such case.

3. Sales—what constitutes offer to purchase goods acceptable before revocation. A notice inserted in a publication stating that the signer thereof guaranties to pay a stated price for certain goods," to be delivered during a designated period in the future, eis not a mere invitation to trade but an offer, the acceptance of which, in accordance with its terms and before revocation, constitutes a sufficient compliance to ripen the offer into a binding promise to pay.

4. Gaming, § 16 —when offer to receive and pay for goods for future delivery not option. Where actual acceptance is intended, an offer to receive and pay for goods to be delivered in the future, though the offeree is not bound to malee such delivery, is not the giving of an option in violation of section 130 of the Criminal Code (J. & A. H 3733).

5. Sales, § 330 —when instruction as to necessity of compliance with terms' of offer correct. An instruction that unless the plaintiff, in an action for the price of goods sold and delivered, complied with the terms of the offer of purchase he cannot recover is correct.

6. Sales, § 331 —what is measure of damages for failure to pay balance due for goods sold by the pound. In an action to recover the balance due under a contract to pay for goods sold at certain intervals at a stated average price per pound, the measure of damages is the product of the number of pounds delivered and £he difference between the stipulated average price and average price paid.