text:
    J. W. Nordhaus, Administrator, Appellee, v. Vandalia Railroad Company, Appellant.
    1. Appeals and ebbobs—when overruling demurrer waived. If a party does not stand by his demurrer but pleads over to the declaration, he thereby waives the right to assign error upon the action of the court in overruling such demurrer.
    2. Appeals and ebbobs—what not subject to review. The action of the trial court in improperly refusing peremptorily to instruct for a defendant upon the first trial of a cause is not subject to review upon a second appeal from a judgment rendered upon a second trial of such cause if the trial court repaired its error upon the first trial by awarding a new trial.
    3. Appeals and ebbobs-—when assignment of error deemed waived. Assignments of error not argued are deemed waived.
    4. Pleading—when sufficiency of declaration cannot be urged. In an action for the death of a servant caused by the alleged wrongful act of his master, the absence of an averment that such death was not caused by the negligence of a fellow-servant cannot be taken advantage of on appeal where no motion in arrest was made.
    5. Masteb and sebvant—what duties non-delegable. It is the duty of a master to use reasonable care to provide a reasonably safe place for his employes to work and to inform immature, ignorant or unskilled servants of the dangers of their situation, if there are any; and these are duties which cannot be delegated by the master.
    6. Costs—abide final determination of cause. The costs of a mistrial, under the practice in this state, abide the final disposition of the controversy.
    7. Vebdiots—power of court to sustain as to one defendant and set aside as to another. In an action ex delicto charging joint negligence, after a verdict finding joint liability, the plaintiff may dismiss his suit as to one defendant and take judgment against the other.
    8. Damages—what competent to show pecuniary loss. In an action for death caused by alleged wrongful act, where the relation between the intestate and next of kin is that of son and mother, it is competent to show the purchase and the sending of money orders by the former to the latter.
    9. Damages—when pecuniary loss presumed. In an action for death caused by alleged wrongful act where the relation existing between the intestate and next of kin is that of son and mother, the law presumes a pecuniary loss.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    S. W. Fordyce, Jr., and L. D. Turner, for appellant.
    McHale & Summer and D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee, as administrator, to recover damages for the benefit of the next of kin of Frank Zehak, whose death was occasioned through the alleged negligence of appellant. The suit was originally brought against appellant and the St. Louis National Stock Yards. Both defendants filed a plea of general issue to the amended declaration and a verdict was returned against both. A motion for a new trial was entered by defendants and granted by the court. Upon a second trial a verdict was again returned in favor of the plaintiff, against both defendants. A motion for a new trial having been entered by both defendants, appellee dismissed his suit as to the St. Louis National Stock Yards and judgment was entered against appellee in favor of the Stock Yards, for all costs made by the Stock Yards or made by appellee in making it a party, and execution awarded for the same. The court then overruled appellant’s motion, for a new trial and entered judgment against it for $1,500. There was no motion by appellant in arrest of judgment.

The proofs in the case show that Frank Zehak’s death occurred under the following circumstances: The St. Louis National Stock Yards have large yards at East St. Louis, equipped with stock pens' and also with railroad tracks and switch engines. About four or five blocks east of the stock yards appellant had switch yards called the “Willow Yards” and leading to and in said yards the stock yards had a track called the stock yards connection track over which it delivered cars of stock to several railroads. The delivery of stock by the stock yards over this track usually took place about 2:30 o ’clock each afternoon. On the afternoon of October 23,- 1907, Zehak was one of ten foreigners working as a section gang for appellant under a foreman named Brunkhurst, who were engaged in distributing cinders along the stock yards connection track. In doing this work the train crew had for convenience, backed out on said track with two cars of cinders and five refrigerator cars, all coupled together. The track ran east and west and the refrigerator cars were on the west end of the string of cars. The cinder cars were about four feet high and had a door on the bottom to let the cinders through. At the time of the injury Zehak and other members of the section gang, were shoveling cinders through the bottom of one of the cars. The refrigerator cars west of them and some box cars stored on the track just north of the connection track, made it impossible for the laborers in the cinder cars to see a train approaching from the stock yards. It was then past the usual time for the cars to be delivered for distribution from the stock yards and the conductor had sent a flagman down the track west of the refrigerator cars to flag the stock yards train, but he went only from three to five car lengths west of the refrigerator-cars to a point where he could see the cars coming from the stock yards. Soon afterwards the stock yards delivery of the day which consisted of forty-five loaded cars, pushed by an engine at the west end of the string, came towards the flagman. This train was running fast and' for some reason the flagman did not see it until the same was within ten or twelve car lengths from him. He immediately gave a slow or steady signal and shortly afterwards a stop signal, which was repeated to the crew of the incoming train by the switchman on the car at the east end of the train. The stock yards train could not, or at any rate did not, stop in time to prevent a collision hut struck the cars standing on the connection track a heavy blow moving them forward a distance of some three car lengths and causing Zehak to be thrown through the hole onto the track below, where he was run over by the cars and killed.

The evidence taken at the first trial was preserved by the bill of exceptions in this case, for the purpose, as stated by counsel for appellant, of assigning as error, the action of the court at the first trial in refusing to instruct the jury to find a verdict for the Vandalia Railroad Company, appellant here, on the testimony then produced. That company however made and caused to be argued a motion for a new trial at the close of the first trial, which was granted by the court. If the court below in fact erred at the first trial in refusing to instruct the jury to find a verdict on the evidence, for appellant, all it could do by way of remedy, was to award appellant a new trial. This relief was granted and the case then stood, so far as previous errors were concerned, as though it had never been tried.

Appellant further insists that its demurrer to the second amended declaration, which was overruled by the court, should have been sustained. Appellant, however, did not stand by its demurrer but pleaded over to the declaration and it is a well-recognized rule of law that where a party does not abide by his demurrer, but pleads over, he waives the right to assign error upon the action of the court in overruling it., Phoenix Ins. Co. v. Belt Ry. Co., 182 Ill. 33; Jacobs v. Marks, 183 id. 533; Geary v. Bangs, 138 id. 77.

Counsel for appellant say the omission to allege-in the second amended declaration that the death was not caused by the negligence of a fellow-servant, was fatal and can be taken advantage of at any time. As we have already seen, appellant has debarred itself by pleading over from taking advantage of any defect in the declaration which might be raised by demurrer. This question might however have been raised by motion in arrest of judgment, but no such motion was made and the sufficiency of the declaration therefore cannot be here questioned.

Appellant claims that appellee should not be permitted to recover for the reason, if the death of Zehak was caused by negligence, it was the negligence of fellow-servants, for which appellant was not liable. As we view the evidence, Zehak’s death was caused by the negligence of the train crew in charge of the cars where he and his fellow laborers were engaged in shoveling the cinders. It is the duty of a master to use reasonable care to provide a reasonably safe place for his employes to work and to inform immature, ignorant or unskilled servants of the dangers of their situation, if any there are. These are duties which the master cannot delegate to others and if he attempts to perform them through another, that other stands in the relation of a vice-principal and the master is responsible whether the vice-principal is a foreman, a common laborer or whatever his position may be. Baier v. Selke, 211 Ill. 512; Libby, McNeill & Libby v. Scherman, 146 Ill. 540; Himrod Coal Co. v. Clark, 197 Ill. 514.

Upon the general facts in the case involving the questions whether appellant was guilty of negligence in causing Zehak’s death, and whether he was at the time in the exercise of ordinary care for his own safety, the proofs show conclusively, that Zehak was working in the line of the business for which he was employed under circumstances where he could not see the approaching train or anticipate the imminence of danger; that he on his part was guilty of no negligence contributing to the injury; and that the train crew in charge of the cars where he and his fellow laborers were at work, were guilty of inexcusable neglect in permitting the collision to occur as it did.

Appellant made a motion in the eoiirt below to tax the costs of the retrial against appellee for the reason that the new trial was granted at appellee’s request, on account of faulty instructions. The record however only shows, that appellant, after the first verdict, made the motion for a new trial, which was argued by its counsel and not argued by counsel for appellee and that the motion was thereupon granted. It is the general rule of practice in this state that the cost in the first trial shall abide the final result of the suit, but even if this were not the rule, the record in this case does not sustain plaintiff’s claim.

It is again insisted, that as the verdict in this case was a joint one, the judgment should also be joint and that the court below had no right to set aside the joint verdict as to one party and enforce it as to the other. In the late case of Postal Telegraph Cable Co. v. Likes, 225 Ill. 249, it was held by our Supreme Court under a declaration in an action ex delicto charging joint negligence and after a verdict finding joint liability, the plaintiff might dismiss his suit as to one defendant and take judgment against the other; that the action of the plaintiff in moving for judgment against the one defendant and the action of the court in entering judgment against that one, amounted to a dismissal of the case against the other and if there was any irregularity in the proceedings, it was one of which the party against whom judgment was entered could not complain.

In I. C. R. R. Co. v. Foulks, 191 Ill. 57, it was held, that there was no error in granting a new trial to two defendants and permitting suit to be dismissed as to them and entering judgment against a third defendant alone, when a verdict was against all three defendants; and in Davis v. Taylor, 41 Ill. 405, approved in Postal Telegraph-Cable Co. v. Likes, supra, it is said, “Taking a judgment against a portion of the defendants amounts to a dismissal of the case as to the residue and in actions ex delicto this may he done.”

Under the well-recognized rule stated in the above cases, the court below committed no error in permitting appellee to dismiss the suit as to the St. Louis Stock Yards Company and entering judgment against appellant.

Appellant complains that the court erred in permitting evidence of the purchase by Zehak of post-office money orders to be sent to Theresa Zehak in Hungary to be introduced, on the ground this did not tend to prove that Theresa Zehak was his mother or the money sent was contributed to her support. It appeared however from the evidence of two of Zehak’s brothers that their mother, a widow, was living in Hungary and that Frank had sent her money a number of times. The evidence as to the purchase of money orders was therefore competent to be considered in connection with the evidence of the two brothers. It is also to be considered that where the relation of parent and child exists, the law presumes a pecuniary loss from the death of the child. Chicago v. Keefe, 114 Ill. 222; Economy L. & P. Co. v. Sheridan, 103 Ill. App. 145; McKechney v. Redmond, 94 Ill. App. 470.

Further complaint is made by appellant in its brief, that the court refused one of its instructions and improperly gave another for its co-defendant the National Stock Yards. The questions are not discussed however in appellant’s argument and upon examination of the instructions referred to we find that the court did not err in its ruling in reference to the same.

The judgment of the court below in this case will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbbe

license: Public Domain

text:
    James E. Broughton, Appellee, v. E. B. Mitchell, Appellant.

      Evidence—when rule that specialty cannot he varied hy parol does not apply. The rule that a sealed executory lease cannot he altered, changed or modified by parol agreement applies as between a lessor and the lessee and sub-lessees under the lessee, but that rule cannot be invoked here for the reason appellee does not claim as a lessee or sub-lesssee under said written lease, his claim being that he is an independent lessee under an oral lease from appellant.
    Distress for rent. Appeal from the Circuit Court of Fayette county; the Hon. Tkuman E. Ames, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Arthur Bob, for appellant.
    John A. Bingham and F. M. Guinn, for appellee.
   Mr. Justice Higbbe

delivered the opinion of the court.

On November 28, 1906, I. 0. Brown rented by written lease under seal, some 200 acres of land in Fayette county, Illinois, for a term expiring March 1, 1908, to W. B. Broughton and C. S. Broughton, for which they agreed to pay as rent the sum of $1,000 for the term. One covenant of the lease provided, that if any grain raised on the premises should be removed or attempted to be removed by any person or persons, before the payment of rent or if the parties of the second part should sell or attempt to sell any grain or produce, or if said grain or produce be claimed by any other person or persons before the rent should be fully paid, the rent should immediately become due and payable and the lessor should have the right to enter upon said premises or wherever else said grain might be found and take possession of the same and sell it or any part thereof. Another covenant provided that in case the lessee should assign or underlet the premises or any part thereof, the lessor might at his election declare the lease mill and void. The premises were afterwards sold by Brown to appellant E. B. Mitchell who on the 30th day of December, 1907, issued a distress warrant which was levied on two lots of corn, one of which, amounting to 450 bushels and stored in a house not located on said leased premises, had been raised on said premises by -appellee, James E. Broughton, who was the son of the said W. B. Broughton and nephew of C. S. Broughton. Afterwards appellee filed an interpleader, claiming the ownership of said 450 bushels of corn and an issue having been joined, there was a trial, resulting in a verdict finding the issues in favor of appellee and that the property in question was his property. The verdict of the jury was subsequently confirmed by the court and appellee adjudged to be the owner and entitled to the possession of the corn in question.

The only question upon the facts presented to us is, did appellee raise the com in question as tenant of appellant or as sub-tenant of the lessees in the written lease. Appellee, who was a single man living on the farm in question with his father, testified he had a conversation with Mitchell after the latter purchased the premises, in which he rented 30 acres of the land in question for corn, for which he was to pay one-third of the crop; that Mitchell told him to deliver the rent corn to his (appellee’s) father at the crib; that he raised about 600 bushels, delivered one-third of it to his father according to the agreement and that the corn levied on and in question here, was the balance of the corn raised by him and belonged to him under the contract. That appellee raised the corn and delivered one-third of it to his father, is not controverted by the evidence and the testimony of appellee concerning the renting by him from appellant, was corroborated by his father and his brother George Broughton. On the other hand, appellant testified he never rented the land on which the corn in question was raised to appellee, and that no such conversation as that testified to by appellee, his father and his brother, occurred. It was for the jury to determine whether they should believe the testimony of appellee and the two witnesses who corroborated him or that of appellant, and as they decided in favor of appellee, we are not at liberty to disturb their verdict.

Appellant complains of the second and third instructions given for appellee on the ground that they were “based on the facts of appellee being a tenant of appellant, which was not possible under the proof.”

The two instructions referred to told the jury in effect, that if appellee was the tenant of appellant and not a sub-tenant of W. E. and O. S. Broughton, and that he had paid all the rent due appellant as a tenant, their verdict should be for appellee. These instructions fairly submitted the questions of fact to the jury and were in no way objectionable.

Counsel for appellant states as applicable to this case that a sealed executory contract cannot be altered, changed or modified by its terms by parol agreement and that so long as the contract contained in the lease under seal, remained executory, appellant had a right to repudiate the parol agreement and claim the full amount of rent contracted for.

The proposition of law so laid down was correctly stated, but it could affect only the relations between appellant and the original lessees or a sub-lessee under the original lessees, but could not. apply to the relations existing between appellant and an independent lessee from him, such as appellee claimed to be. It was immaterial so far as any contract between appellant and appellee was concerned, whether there was or was not a written lease, under seal or not under seal, from appellant or his grantor to other persons. If appellee did in fact lease the premises, as found by the jury, by a parol lease from appellant and complied with Ms part of the lease, he was entitled to retain the two-tMrds of the crop remaining, as provided for by his lease, irrespective of the question whether the lessees in the original lease paid their rent or not.

Appellant also complains that two of his instructions were refused by the court. They were however based upon appellant’s theory of the law as above stated and while they would have been proper in a suit between appellant and the original lessees in the written lease, they were for the reasons above given, wholly inapplicable in this suit.

What is above said also answers objection to the modification of appellant’s instruction No. 4, which as modified by the court, correctly confined the rule of law above stated as applicable to the original contract, to the parties named therein.

The judgment of the court below will be affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    Fred Grese, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.

      Insteuctions—when non-referenee to “preponderance of evidence” not error. The mere fact that two instructions given in a cause employ the expression “if you believe from the evidence” instead of the phrase "if you believe from a preponderance of the evidence,” will not reverse where the instructions as a series cure such omis- ■» O. sions.
    Action on the case. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Warnock, Williamsoh & Burroughs, H. L. Browning and L. 0. Whitnel, for appellant.
    Terry & Guelting, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit to recover damages for injuries to fifty acres of land owned by him, alleged to have occurred by reason of the improper mining of the underlying coal by appellant.

The several counts of the declaration of appellee, charged that appellant mined and removed said coal from under said fifty acres and adjoining land, without leaving sufficient support to hold up the surface of the ground, and failed to supply sufficient props or other artificial supports to sustain the same whereby the surface of the land owned by appellee above said mine, cracked, subsided, caved, fell in and was greatly and permanently injured. Appellee recovered a verdict and judgment for $600. •

Appellant complains in his argument here that the amount of the verdict was excessive and not sustained by the evidence and that the court erred in regard to three of the instructions given for appellee and in refusing one offered for appellant.

It was stipulated on the trial that appellee if he recovered at all might recover for all damages to his said premises, future as well as past. The proofs in this case show beyond controversy that the surface of appellee’s fifty acres of land had suffered permanent injury and that such injury was caused by appellant’s improper method of mining the coal under it. The real controversy was as to the extent of the injuries to the land and upon this question ten witnesses testified on behalf of appellee and nine on behalf of appellant. On motion of appellant the jury were also permitted to view the premises. While there was a marked difference of opinion between the two sets of witnesses as to the value of appellee’s premises both before and after the injury, yet it was the province of the jury to determine the true amount of the damages from all the evidence in the case and in ascertaining the proper amount they were assisted by the fact that they, as members of the jury, also viewed the premises at the direction of the court. In view of the fact that the jury were called upon to determine the amount of the permanent injury to the land we cannot say they were not justified in fixing the damages at the amount found by them.

Appellant complains that instructions one and three did not require appellee to prove his case by a preponderance of the evidence, to entitle him to a recovery. Other instructions given for appellee however required him to prove his case by a preponderance of the evidence and numerous instructions given for appellant told the jury that plaintiff was not entitled to recover unless he had proved his case by a preponderance of the evidence. The mere fact that two of the instructions given for appellee used the expression “if you believe from the evidence” instead of the words “if you believe from a preponderance of the evidence” will not be sufficient to constitute a cause for reversal, as' the instructions as a series, both those for appellee and those for appellant, plainly stated the rule that appellee to entitle him to a recovery must prove his case by a preponderance of the evidence and it is clear that the jury could not have been misled by the omission in the two instructions named. O. C. Ry. Co. v. Mead, 206 Ill. 174; 5 Ill. Cyc. Digest, page 1009 (cases cited).

Appellee’s fifth instruction did not state with technical accuracy the rule of damages applicable to ordinary cases, such as this, but as it appears to us to have been directly based on the stipulation concerning damages entered into by the parties, appellant cannot properly complain even if the instruction could be considered really objectionable.

The insistence of appellant that the court erred in refusing to give its instruction No. 7, stating appellant’s theory as to the rule governing the measure of damages, is not well founded for the reason that the court gave an instruction stating the measure of damages in identically the same language as that of the refused instruction and appears to have stated substantially the same rule in other instructions given for appellant.

No-good reason appears to us from the record why the judgment in this case should be reversed and the same will therefore be affirmed.

Affirmed.


text:
    Louis P. Tebow, by his next friend, Appellee, v. Wiggins Ferry Company et al., Appellants.
    1. Negligence—liability for concurring. If a defendant is guilty of acts of negligence which of themselves or in connection with an act of negligence of another party cause the injuries complained of, it is liable.
    2. Negligence—what modification of instruction proper. Held, that the insertion of the word “sole” before the word “cause” was a proper modification of an instruction upon the subject of liability for negligence.
    Action in case for personal injuries. Appeal from the Circuit ' Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Kramer, Kramer & Campbell, for appellants.
    H. E. Schaumleffel and D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee against appellants to recover damages for personal injuries, received by him under substantially the following state of facts:

On August 28,1905, appellants controlled and jointly operated switch yards in East St. Louis, Illinois. A short distance from the switch yards was the plant of the Republic Iron and Steel Company. The railroad tracks in the yards of the latter connected with appellants’ switch yards tracks and there was .an arrangement made whereby appellants were to use their engines and crew to move cars used by the Republic Iron and Steel Company to, from and about the yards at its plant. Appellee was at that time 16 years old and had been working for the Republic Iron and Steel Company for about six weeks, being engaged most of the time in picking up angle irons. On the date above mentioned he and another boy and an old man were engaged under the direction of their boss in shoveling cinders from a car on one of the iron and steel company’s tracks for the purpose of making a cinder platform, and their instructions were to shovel out the half of the car next to the proposed platform first. The track on which this car stood was connected with what is known as the scale track, by a switch about 200 yards long and on this switch there was a sharp curve, where the outside rail of the track was considerably higher than the rail on the inside, and where there was also on the inside a ditch some five or six feet deep. When the cinders in the half of the car next to the proposed platform were about all out, the old man left the car for some purpose, while the two boys remained at work. About the same time appellant’s crew with an engine backed several cars down against the car the boys were on, coupled onto it and then backed up and coupled on to two other cars. The crew then started with the engine and cars attached to it, to the scale track. When the cinder car was at the sharpest part of the curve with its unloaded side towards the inside, the engine which was pulling the cars at the rate of four or five miles an hour, suddenly stopped or slackened speed and the bed of the cinder car turned over on the inside of the curve and down the embankment. Appellee was thrown ont, into the ditch, and received injuries to his leg and knee, which required the subsequent removal of the knee cap and caused the leg to become stiff at the knee and bent, so that he is compelled to walk with a crutch.

There have been two trials of this case in the court below, both of which resulted in a verdict in favor of appellee, the last one being for the sum of $3,000, for which judgment was entered.

The negligence charged in the declaration against appellants ‘was that they negligently and carelessly and without notice to appellee, coupled onto the car upon which appellee was at work without giving him time to descend therefrom; that said car was hauled at a high rate of speed around a sharp curve and negligently and carelessly brought to a sudden and abrupt stop upon the curve, whereby the car was thrown from the track and turned over and appellee injured.

Appellants ask a reversal of the case for the reason, as alleged, that the evidence did not show facts sufficient to sustain the verdict and the court erred in regard to the instructions. The evidence in the case is not voluminous nor was there any great amount of controversy in it. It does not appear clearly whether the train crew gave any warning or not when they backed against the cinder car but if they did the warning was given so near to the time the cars came in contact that the boys in the cinder car did not have time to quit their work and descend therefrom before the shock. The cars, which coupled automatically, were almost immediately moved on and it does not appear that the boys could have alighted therefrom in safety. In fact there is no evidence which appears to us to tend to show negligence on the part of appellee. Whether appellants were guilty of negligence in pulling the train around a sharp curve at the speed it was shown to have been going, and in suddenly stopping it or slackening its speed, while the half-loaded cinder car was in the abrupt portion of the curve, were questions of fact for the jury and the evidence concerning those questions was such that we do not feel disposed to disturb the verdict.

Appellants complain of instruction No. 19 given for appellee, which told the jury that if they found from a preponderance of the evidence, appellants were guilty of the negligence charged in the declaration or either count thereof and that such negligence caused the plaintiff’s injuries, then the fact, if it was a fact, that the Eepublic Iron and Steel Company was also guilty of negligence in ordering plaintiff to unload the car in the manner it was unloaded, if it did so order him to unload it, was no defense in the case. The claim is, that the instruction must have been understood by the jury as meaning if the manner in which the car was unloaded was the cause of the tipping of the car, that condition of the car was no defense. We do not think the instruction is subject to the objection made, nor that the jury could possibly have been misled by it. If appellants were guilty of acts of negligence which of themselves, or in connection with an act of negligence on the part of the Eepublic Iron and Steel Company, caused appellee’s injuries, in such event they would be liable and, under those circumstances, it was in fact no defense for them that the Eepublic Iron and Steel Company was also guilty of negligence which contributed to the injury.

Appellants’ ninth instruction as offered was as follows :

“The court instructs the jury that if you believe from the evidence that nearly all of the cinders remaining in the car in question were on one side of the car and that the cinders so being nearly on one side of the car, was the cause of the car’s turning over, that then the plaintiff cannot recover in this case and you should find the defendants not guilty.”

The court modified this instruction by inserting the word “sole” before the word “cause,” thereby re< qniring the location of the cinders in the car to be the sole cause of the disaster, to authorize a finding of not guilty for the defendants. The modification was correct and in accordance with the law governing such cases, for if the manner in which the cinders were located in the ear was not the sole cause of the car’s turning over, and the negligence of appellants contributed to bringing about the disaster, then appellants were not relieved from their responsibility. Parmelee v. Wheelock, 224 Ill. 194; City of Flora v. Pruett, 81 Ill. App. 161; C. C. Ry. v. Wall, 98 Ill. App. 411.

Appellants’ instruction No. 14 was properly refused by the court, because it contained substantially the same statement of the law as that advanced in their instruction No. 9 above referred to, before the same was modified by the court.

There appears 0to us to be no error in the record in this case calling for a reversal of the judgment of the court below, and the same is therefore affirmed.

:Affirmed.


text:
    Hiram Cummins, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Instructions—when upon preponderance of evidence erroneous. It is not correct to state as an inflexible rule having no exceptions that the preponderance of evidence in a cause is not alone determined by the number of witnesses testifying to a particular fact or state of facts, as conditions might exist under which the number of witnesses testifying on one side or the other might properly be the controlling influence in determining where the preponderance or greater weight of the evidence lies.
    2. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous which undertakes to tell the jury what they shall take into consideration in determining upon which side the preponderance of the evidence lies, excluding altogether the question of the number of witnesses testifying on the respective sides.
    3. Instructions—when upon credibility of witnesses erroneous. An instruction which authorizes the jury to disregard the testimony of witnesses who have knowingly testified untruthfully is erroneous if it does not limit the untruthfulness of • such witnesses to facts or questions material to the issue.
    4. Instructions—when upon contributory negligence erroneous. An instruction is erroneous which authorizes a recovery if plaintiff’s negligence did not “materially” contribute to the injury.
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    W. F. Scott and Conger & Conger, for appellant.
    M. S. Whitley, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this action for personal injuries received by him, caused by his being struck by a moving train of cars on appellant’s track at Harrisburg, Illinois, on February 15, 1907. The two counts of the declaration, which were substantially the same, charged that at the time named appellant was in the ■habit of coaling its engines at O’G-ara Coal Mine No. 3, located within fifty feet of its line of railway; that in the process of loading the engines, large quantities of coal would fall from the tender upon the ground near the coal chute along and near to the railroad, tending to obstruct the passage of engines and cars; that at said time appellee was in the employ of the O’G-ara Coal Company, which was operating said mine, as a laborer, and it was a part of his duty to remove said coal that had so accumulated near and upon the railroad; that while he was so engaged, appellant carelessly and negligently backed one of its trains along its said railroad without giving any signal or warning before or while doing so, against appellee, knocking him down and causing the injuries complained of. There was a verdict and judgment in favor of appellee for $1,450.

It was the custom of the O ’Gara Coal Company, as the proofs showed, to cause the coal which had fallen near the tracks from the coal chute while engines were being coaled, to be shoveled by its employes into a small car which was operated over a narrow guage track running from the coal company’s furnace to appellant’s track. The coal loaded into this coal car after being conveyed back to the furnace room was used in the O’Gara Company’s furnace.

Appellee while engaged with others on the date named in the declaration in shoveling coal from the tracks, was knocked down and injured by one of a string of cars which was being pushed back down the track by one of appellant’s engines.

The principal controversy in regard to the facts, was whether or not the bell of the engine was rung, its whistle blown or any other signal given to notify appellee and those working with him of the approach of the train.

As the judgment must be reversed and the cause remanded for other reasons, we will not discuss the facts further than to say that the question whether appellant was guilty of the negligence charged, was an exceedingly close one. Under such circumstances it is a universally recognized rule of law that the instructions given in the case must be carefully guarded and state the law correctly. •

Instruction No. 1 given for .appellee told the jury that the preponderance of evidence in the case was not alone determined by the number of witnesses testifying to a particular fact or state of facts and then proceeded to state what they should take into consideration in determining the preponderance of the evidence, wholly leaving out of this summary the question of the number of witnesses testifying. It is not correct to state as an inflexible rule having no exceptions that the preponderance of the evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts, as conditions might exist under which the number of witnesses testifying on one side or the other might properly be of controlling influence in determining where the preponderance or greater weight of the evidence lay. The latter part of the instruction was even more objectionable if possible, for the reason that it undertook to tell the jury what they should take into consideration in determining upon which side the preponderance of the evidence was, excluding altogether the question of the number of witnesses testifying on the respective sides, and that too after the first portion of the instruction had tended to nullify any advantage either party might under • some circumstances have had by reason of the favorable testimony of the greater number of witnesses. Hays vs. Johnson, 92 Ill. App. 80; Tripoli Savings Bank v. Schnadt, 135 Ill. App. 373.

The fifth instruction given for appellee undertook to state the conditions under which the testimony- of one credible witness might be entitled to more weight than the testimony of many others, concluding, “If as to those other witnesses you have reason to believe and do believe, from the evidence and all the facts before you, that such other witnesses have knowingly testified untruthfully and are not corroborated by other credible witnesses or by circumstances proved in the case.” This instruction was faulty because it did not limit the untruthfulness of the many witnesses to facts or questions material to the issue. Keller v. Hansen, 14 Ill. App. 640; West Chicago St. R. R. Co. v. Raftery, 85 Ill. App. 319.

The seventh instruction given for appellee told the jury that as a matter of law “a railroad company is liable for injury to persons lawfully upon its track where such injury results from the want of ordinary care and caution in the running of its trains, and the plaintiff’s own negligence does not materially contribute to the injury.” The vice of this instruction was that it permitted a recovery in the case mentioned provided the plaintiff’s own negligence did not materially contribute to the injury. The correct rule of law as laid down by our courts is that “the injury must be attributable to the defendant’s own negligence and to that alone in order to justify- recovery against him. If occasioned in any degree by the plaintiff’s negligence he or she is without redress.” Martin v. Surman, 116 Ill. App. 282, and cases cited.

In C. & P. St. R. R. Co. v. Snider, 72 Ill. App. 300, where an instruction authorized a recovery in case “the plaintiff was not guilty of negligence on his own part materially contributing to the injury,” it was said: “The proposition of law embodied in this instruction is, at least inferentially bad. It says by inference that if the negligence of plaintiff contributed to the injury in a degree which might be regarded by the jury as not ‘material’ the plaintiff might, notwithstanding, recover. Such is not the law. If plaintiff’s negligence contributed in any degree whatever, it barred a recovery.” To the same effect is the case of C. C. Ry. Co. v. Canevin, 72 id. 81.

For the reasons above indicated the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    The People, ex rel. George Higgins, Appellee, v. J. S. Freeman, Appellant.
    1. Quo wabramto—what allegations of information sufficient. An information in quo warranto to oust the respondent from the office of city supervisor, held, sufficiently to allege (1) the incorporation of the city in question, (2) the division of such city into wards, (3) that the day of the election in question was the day fixed hy law for the holding thereof, (4) that the city council had jurisdiction of the contest of the election in question and (5) that the respondent was usurping said office of supervisor, etc.
    2. Townships—when question of repeal of special charter not raised. In a proceeding by information in quo warranto to oust the respondent from the office of supervisor, held, that the demurrer to such information did not raise the question as to whether the special charter had been superseded by the general act of 1874 revising the law in relation to township organization.
    3. Townships—what not repealed by general act. Held, that the general law in relation to the election of township supervisors as it now stands does not indicate an intention to supersede any special act relating to the election of supervisors in any particular locality.
    Quo warranto. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    John A. MacNeil and H. G. Morris, for appellant.
    B. S. Rowland, B. B. Witcher and H. T. Dewhirst, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On April 10, 1908, the state’s attorney of Bichland county by leave of court filed an information in the nature of a quo warranto, in the name of the People of the State of Hlinois upon the relation of George Higgins against J. S. Freeman. To this information a demurrer was sustained by the court and afterwards on May 14, 1908, an amended information was filed, charging that for the space of eleven months prior thereto, appellant, the said J. S. Freeman, had unlawfully held without any warrant or right, the office of supervisor of the second ward of the city of Olney in said county and state; that said city was incorporated under a special charter granted it in 1867, which had been adopted by the people thereof, at an election held for that purpose'; that Article 8 of said charter provides for the annual election of one supervisor in each ward of said city in addition to the township supervisors of the township of Olney and that said ward supervisors when elected, should possess and enjoy the rights and powers which were then or might thereafter be possessed and enjoyed by the several township supervisors of the county; that said charter is still operative and said city of Olney has for many years exercised the right so conferred upon it there, by electing ward supervisors in each of its wards; that at an election held on April 9, 1907, for the purpose of electing supervisors from each of said wards said George Higgins was duly elected as supervisor for the second ward of said city, received a certificate of election, took the oath of office and would have entered into the enjoyment of said office and its emoluments thereof, but was prevented therefrom by the fact that appellant had usurped and unlawfully withheld, as he still does, said office, from said relator, Higgins; that the judges at said election-declared that said Higgins received 112 votes and appellant 113 votes for said office; that Higgins contested the election before the city council on April 15, 1907, as is provided by law, but that the council dismissed the same for the want of jurisdiction; that afterwards on petition of Higgins the Circuit Court of said county of Bichland, rendered a decree directing said city council to proceed to hear said contest and upon a recount of the ballots, it was determined by the council that Higgins had received 111 votes and appellant 107 votes for said office of supervisor and that said Higgins was duly declared to have been elected supervisor of the second ward of said city, a certificate of election issued to him and the oath of office taken by him; but that appellant had usurped and unlawfully withheld said office as he still does.

On May 16, 1908, appellant filed a general and special demurrer to the information.

The special causes of demurrer set out various alleged technical informalities and insufficiencies of the information and in addition stated that said information “does not aver or show any legal office created by any public or private • law of the State of Illinois, which the defendant is now usurping or to which the relator was or could have been elected;” that “there is no such office known to the state of Illinois as supervisor of the second ward of the city of Olney, but said office is wholly fictitious and without legal existence.” The court overruled the demurrer to the amended information, and appellant having refused to plead, elected to stand by his demurrer. Thereupon judgment pro confesso was rendered against appellant. He was ordered to surrender the office of supervisor of the second ward of the city of Olney to said Higgins, a writ of ouster was ordered to be issued by the clerk of the court against him and judgment was entered against him for the costs.

Appellant here complains that the court below erred in overruling his general and special demurrer to the amended information, in rendering judgment pro confesso against him, in ordering him to deliver up said office of supervisor to said Higgins, in decreeing a writ of ouster against him and rendering a judgment against him for costs.

Among the reasons stated in the special demurrer why the information was insufficient, was that it • wholly failed to show the legal incorporation of the city of Olney under said special law or the legal adoption of the charter of the city according to law. But this objection, even if it could be properly raised in this manner, appears to fis to be without force as the information stated that the city of Olney was incorporated under and by virtue of said special act or charter; that proclamation was issued by the former trustees of the town of Olney; that an election was held by the inhabitants of said town on the 30th day of March, 1867; that said charter was then and there adopted and that the town of Olney in said county of Richland then and there became the city of Olney. We think this allegation was a sufficient statement to show on its face the incorporation of the city. The charge that the information failed to show when the city was divided into four wards or in what manner said division was made or that there was a division known as the second ward, is fully covered by the statement therein that by virtue of said charter, the city of OIney was on April 9, 1907, and for several years prior thereto, divided into four wards, designated as the first ward, second ward, third ward and fourth ward, and that the city of OIney by virtue of the law. was entitled on said date to one ward supervisor from each of said four wards. It was not necessary to state the exact day upon which the city was divided into said wards if such division existed at the time the election in question was held. The statement in the demurrer that the information does not show that said 9th day of April, 1907, was the day fixed by law for holding the election for supervisor aforesaid, is covered by the statement therein, that in conformity to the law and in accordance with said charter due and legal notices were given at least ten days prior to said election, of the election to be held at OIney, Illinois, on the 9th day of April, A. D. 1907, for the purpose of electing supervisors from each of said wards according to law. And this statement also answers the objection that the information does not allege on what date the election of city officers was fixed by law to be held. The statement in the demurrer that the information did not show that the city council had jurisdiction of the contest of said election or the recount of the ballots or that the council recounted said ballots under any authority of law, vested in them, is met by the statement therein that the recount of the ballots was made by the city council under a decree of the Circuit Court of Richland county, commanding them to do so. Another statement of the demurrer was that the information did not show in what manner appellant was usurping said office or by what mepns he was depriving the relator from holding the same.

The allegation in the information that appellant had for the space of eleven months unlawfully held and' executed and still does hold and execute without any warrant or right whatsoever, said office of supervisor for said ward, and the further statement that said Higgins was prevented from exercising his authority to such office, or of enjoying the rights and emoluments thereof, for the reason that appellant had usurped and unlawfully withheld the same, together with a history of the circumstances attending the election, and the contest thereof, were fully sufficient to show how appellant was usurping the office and depriving the relator thereof. What is above said disposes of all the special causes of demurrer assigned by appellant except only those which relate to the question whether there was in fact such an office in law as supervisor of the second ward of Olney.

Article 8 of the special charter of the city of Olney, provided there should be annually elected one supervisor in each ward of said city, but it is claimed by appellant that the act of 1874 revising the law in relation to township organization (Eev. Stat. 1874, chap. 139) which was general in its terms, repealed all special laws in conflict with it and provided a uniform system of representation on the county board of supervisors, applicable alike to townships in which cities like Olney were situated and to all other townships in the state; that by this law representation on the county board was changed from a territorial basis to a numerical basis.

Section 1 of Article 7 of said act, as amended in 1901, provides that at the annual town meeting in each town, there shall be elected by ballot one supervisor who shall hold his office" for one year and until his successor is elected and qualified “Provided that in any town or city not included within the limits of. any town (except in Cook county) having 4,000 inhabitants, there shall.be elected one additional supervisor to be styled assistant supervisor; in towns having 6,500 inhabitants there shall be elected two assistant supervisors; and so for every additional 2,500 inhabitants there shall be elected one additional supervisor.”

Appellant states his position to be that this general law repealed and abrogated that part of the charter of the city of Olney authorizing the election of supervisors from the various wards in said city and that there is now no such office or officer as supervisor of the second ward of the city of Olney. To sustain this position appellant cites and relies upon the case of Allen v. The People, 84 Ill. 502. This case was an information in the nature of a quo ivarranto to test the right of appellant to hold the office of supervisor of the city of Aurora, where a judgment of ouster was rendered. By an act amending the act incorporating the city of Aurora, passed in 1865, it was provided that at all future elections for the city of Aurora, one supervisor should be elected by the legal voters of the city in addition to the township supervisor and assistant supervisor, who should be a member of the board of supervisors of Kane county and have all the powers of a township supervisor. The question there presented was, whether or not that special provision had been impliedly repealed by section 1 article 7 of the township organization law above referred to.

At that time, which was prior to the amendment of 1901, the section above referred to contained a proviso that nothing in the act should “be so construed as to diminish the representation that any city or town may be entitled to by law. But in case such city or town is now entitled to a greater representation than is given by this section, it shall not be entitled to additional representation under this section and the members of the board of supervisors from such city or town, now provided for by law, shall continue to be elected as now required by law. And provided further, that whenever the representation of any city or town is or shall become less than is given by this section, no increased representation under any special act shall be had by such city or town but its representation shall be as provided for in this section.”

It was held in that case that the facts made out such a case as was contemplated by the last proviso of said section and that therefore any special act giving representation was expressly superseded and made to cease to operate and it was further said, that as by the special act, the representation of the town of Aurora including that of the city was less than that which was given by the section of the general act of 1874 above referred to, the latter act must, by virtue of the last proviso contained in it, prevail. The provisos above referred to were not contained in said section as amended in 1901, but if said provisos were applicable here, as they might be for some purpose, we hold that while they might entitle appellant to show by way of defense that the representation of the township in which the city of Olney is situated would be more under the general act than under the special, and that therefore the general act should be held to apply, yet that was a matter to be set out by way of answer as a defense and would not render the information subject to demurrer.

In the section of the general law relating to the election of supervisors, as it now stands, there is nothing to indicate an intention to supersede any special act relating to the election of supervisors in any particular locality, and the information on its face shows no conditions which would warrant the court in holding the special law did not apply. In our opinion the court below properly overruled the demurrer to the information and its subsequent judgment is hereby affirmed.

Affirmed.


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    Ressa-Nell Mining & Milling Company, Appellant, v. H. H. Pilander et al., Appellees.

      Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review.
    Forcible entry and detainer. Appeal from the Circuit Court of ■Hardin county; the Hon. Exoch E. Newlih, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    W. H. Moore and D. Gr. Thompson, for appellant.
    R. F. Taylor and John C. Oxford, for appellee; H. Robert Fowler, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an action of forcible entry and detainer brought by appellant against appellees, to recover possession of 40 acres of land, including the mineral estate and the mine and buildings located thereon in Hardin county, Illinois.

The facts in the case as they appear of record are substantially as follows: On December 15, 1899, Lewis Hamp owned the 40 acres of land in question and on that day he and his wife by a written instrument executed by them, granted, bargained, sold and con- • veyed to F. H. Haley, his successors or assigns, all the coal, iron ore, clay, oil, gas, and all other minerals which might be found on said premises and taken and removed therefrom within fifty years, for a consideration of one dollar in cash paid and 1/20 of all products of the land of the nature above mentioned. It was provided by said instrument that in case no work of development was done within three years from its date, the lease should be void, and also that for every acre of surface used by Haley he should pay $40, except for right of way for railroads and other roads necessary, in caring for and conveying the minerals produced to market.

On March 19, 1900, Haley assigned the lease to the Hardin Mineral Company. On November 17, 1902, the Hardin Mineral Company assigned its right, title and interest in this and all other leases held by it of mineral lands in Hardin and Pope counties, Illinois, to Nevin McConnell, who in turn on September 18, 1905, assigned his interest in this lease to E. C. Rose and J. W. Waggoner. No work was done under the lease until December 5, 1902, a few days before the expiration of the three years, when Nevin McConnell caused some men to go upon the premises to do work of development. These men were driven off by Lewis Hamp by threats of violence, but returned on December 9th or 10th and made several excavations, from one of which five or six hundred pounds of flúor spar was taken. Nothing further was done until the next spring when parties representing the McConnell interest again commenced work. A powder house, a shed over the mine and possibly other buildings were erected, the mine was dug down and timbered and about 200 tons of flúor spar were brought to the surface. The work which was continued until fall appears to have been carried on with the knowledge, and certainly without any actual resistance on the part of Lewis Hamp. Hamp refused to receive money preferred him as royalty but did accept a check for $40 from an agent of McConnell for an acre of ground, which was fenced off around the mining plant, being the amount agreed to be paid for every acre of the surface used, according to the terms of the original lease to Haley. In October, 1903, the,work ceased and Sullivan, the superintendent, locked the tools in the tool house and turned the key of the shaft house over to a daughter of Lewis Hamp, who lived with him. A part of the tools were afterward taken away. There was evidence tending to show that one Stell, acting as agent for McConnell, tried to get a new lease of the property but that Hamp refused to make one. Nothing further appears to have been done at the mine until June 17, 1904, when Hamp and his wife leased the same premises for mining purposes to F. A. McClelland, who took possession of the mining premises, and was let into the structure around the mine shaft by a son of Lewis Hamp, with one of the keys left by Sullivan. McClelland appears to have been in possession of the mining premises for several months and during that time disposed of the spar at the top of the mine which had been mined and brought to the surface by parties representing the McConnell interest, as above set forth, and paid a royalty thereon to Hamp. Active mining operations seem to have been suspended in the fall of 1904 and after that time by another agreement, McClelland and those claiming under him appear to have paid a rental of $5.00 a month to Hamp which was continued until this suit was brought. On September 14, 1904, McClelland assigned his lease to appellant, the Ressa-Nell Mining and Milling Company. Shortly after September 18, 1905, at which time McConnell assigned his lease to Ro.se and Waggoner as aforesaid, Richard F. Taylor, acting as their agent, went to the mine, gathered up the tools and locked the doors of the building. Soon afterwards appellant placed George Boos and his son Charles in possession of the premises as its agents and about ten days later appellees caused the arrest of Boos and son for breaking a lock on one of the buildings. As soon as they were taken away Waggoner and Rose placed appellee H. H. Pilander in possession of the mines as their agent and on February 8, 1906, this suit was brought by appellant.

Appellant claims that possession of the premises was abandoned or given up by McConnell in the fall of 1903 and afterwards delivered by Hamp to McClelland, when the new lease was made in July, 1904. That after operations Were suspended in the latter part of 1904, the Hamps held possession as agents of appellant until Boos and his son were put in possession; that the putting of locks on the doors by Taylor was a trespass; that the arrest of Boos and son was a mere subterfuge to get them off of the premises; that the subsequent occupancy of the premises was also an act of trespass and did not give legal possession thereof to the principals Waggoner and Rose. On the other hand it is claimed by appellees that McConnell’s tools and machinery were continually on the premises from the time they were first placed there and that he delivered possession of the premises to Rose and Wag-goner who collected the tools in one of the houses and secured them by a lock; that Lewis Hamp was on the premises at the time this was done and aided the agent of Rose and Waggoner in securing the tools and assuming possession; that Boos and son were mere trespassers whose temporary occupancy did not suspend the lawful possession of the premises by Rose and Waggoner.

Upon the trial in the court below this and another suit entitled Nevin McConnell v. Lewis Hamp et al., which was a suit for trespass upon the same premises, and is also here on appeal, were by agreement heard together by the court, without a jury. In this case the court below found the issues for appellee and entered judgment against appellant for costs. There is no controversy concerning the rules of law applicable to the issues presented in this case and while appellant claims the court was too liberal in admitting evidence on the part of appellee in two of three instances, yet we do not think the objections to such evidence well founded.

Practically the only question presented to this court is, whether the evidence was sufficient to sustain the finding of the court below in favor of appellees. That the lease from Hamp and wife to F. H. Haley was in • form sufficient to vest Haley with an interest in the mineral specified and the right to remove the same, subject only to the condition that developments in mining be made within three years, and that the lease was assignable under the statute, were determined in effect by this court in the case of McConnell v. Pierce, 116 Ill. App. 103, where a similar lease by one Jesse A. Crab to said F. H. Haley and by the latter assigned to the Hardin Mineral Company and by that company to said Nevin McConnell, was under consideration. Whether McConnell commenced the work of development under the lease before the expiration of the three years provided for and if not whether the right of forfeiture was waived by Hamp before making the lease to McClelland; whether McConnell was ever really out of possession by himself and his agents or his assignees and their agents after the first work of development was done; whether appellant or its agents ever had any actual possession of the premises and whether Pilander as agent of Bose and Waggoner was in peaceable possession of the premises at the time suit was brought, were all questions of fact for the determination of the court below and as the evidence in the case appears to us to justify the findings of that court, its judgment must be affirmed.

Affirmed.


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    Dora Deel, Appellee, v. Gus Heiligenstein, Appellant.
    1. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review.
    2. Appeals and ebbobs—when overruling demurrer not subject to review. The action of the court in overruling a demurrer to a declaration is not subject to review where the demurrant does not abide by his demurrer but pleads over.
    3. Dram-shops—what does not affect amount of widow’s recovery. In an action to recover damages for death brought under the Dram-shop Act, the right of the widow to recover and the amount of her recovery cannot he affected by the fact that her husband at the time of his death had a policy of insurance in force upon his life payable to her in the event of his death.
    Trespass on the .case. Appeal from the Circuit Court of Effing-ham county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Wood Bros. & Richelmah, Rufus M. Potts and Alfred Adame, for appellant.
    Wright Bros., for appellee; T. H. Righter and S. F. Gilmore, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee to recover damages under the Dram-Shop Act for the death of her husband, William J. Deel, who was killed by a passing train while he was walking down the railroad track near his home, about two o’clock in the morning of July 5, 1906. The trial resulted in a verdict and judgment for appellee for $1,000.

It is here complained that the verdict was not sustained by the evidence, that the court improperly instructed the jury, that in the course of the trial certain things were improperly done by appellee and said by her attorneys which had the effect of prejudicing appellant’s rights before the jury; that the court erred in not sustaining a special demurrer to an amended declaration and in not sustaining appellant’s challenge of a juror for cause.

Deel, as it appeared from the proofs, lived with his father-in-law, Daniel Phillips, about twelve miles from Shumway in Effingham county, and on the morning of July 4, 1906, the two went together in Phillips’ buggy to that place, where there was to be a celebration; there were two sáloons in the place, one kept by a man named Steineman, the other by appellant. After their arrival both parties started to drinking at Steineman’s. Deel was shown to have become intoxicated early in the day and to have continued his drinking at intervals throughout the day and night until he started for home. He did most of his drinking at Steineman’s but wandered from one saloon to the other and drank beer a number of times. At about nine o’clock in the evening he was maudlin drunk and went to sleep in Steineman’s saloon. About twenty minutes before midnight, he went to appellant’s saloon for whiskey which was refused him. He was then under the influence of liquor, appellant himself testifying “he seemed to be drinking but I could not say he was drunk.” Shortly afterwards, his father-in-law having gone home, Deel got in a buggy with Henry Hubbard, who lived in the same direction from town and started home. At about two o’clock in the morning they reached a railroad crossing which was about a mile down the track from the house of Deel’s father-in-law or two miles around by the road. Deel got out the buggy and started down the track towards home, although Hubbard offered to drive him around the road. Between the crossing and the house the railroad passed through a deep cut with steep banks close to the track, through which Deel had traveled many times. That morning at about seven o’clock Deel’s dead body was found at the cut, he having been struck and killed by a train. Hubbard was not a witness at the trial but an affidavit presented upon a motion for a continuance, made by appellant on account of Hubbard’s absence, was read in evidence stating, that if present he would testify Deel was sober and not intoxicated when he left the buggy and started down the track. There was evidence tending to show that Hubbard himself had been drinking that night. Appellant claims that the evidence fails to show that Deel was under the influence of liquor at the time he was killed and also that even if it could be inferred that he was intoxicated at such time, yet the evidence wholly failed to show that intoxicating liquor sold hi-m at appellant’s saloon contributed to cause Ms intoxication at that time. It is certain that the undertaking of Deel to walk down the track through the narrow cut at that time of night and under the conditions existing,, was a negligent if not reckless act on his part. The proofs show that he had been intoxicated to a greater or less extent during the whole of the day after his arrival in town and up to the time he left for home, and it is not to be reasonably supposed that he was -in a condition physically or mentally to undertake with safety a trip in the night time along the track through the cut. There was abundant evidence to sustain a finding by the jury that the proximate cause of Deel’s death was the use of intoxicating liquors by him during the day and night and it was also for the jury to say whether intoxicating liquors procured by him at appellant’s saloon contributed to bring about the calamity which overtook him.

Appellant’s complaint that the court erred in refusing to sustain his special demurrer to the amended declaration, is not before us for the reason that appellant did not abide his demurrer, but abandoned it and filed his plea to the amended declaration which consisted of only one count.

Appellant claims that certain instructions given for appellee were erroneous because they in effect stated, that it was sufficient proof- of the sale of intoxicating liquors to deceased by appellant, if it was proved that the same was sold “either by himself or agent or agents,” upon the ground there was no proof of any sale made by any agent or agents of appellant.

The testimony of one witness was that he saw deceased get a drink at appellant’s saloon but that he could not tell" whether it was furnished by appellant or his barkeeper. This was sufficient to warrant the giving of the instruction.

Instruction No. 12 given for appellee is complained of for the reason it told the jury the fact that appellee received money upon a policy of insurance on her husband’s life, was not to be considered by them at all and could have no effect upon the result of their verdict.

The statute pertaining to dram-shops provides, that every wife who shall be injured in person or property, or means of support, in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action, etc. Under this statute, we are of opinion that where a widow proves she has been deprived of her means of support by the death of her husband and that such death occurred by reason of his intoxication, caused in whole or in part by intoxicating liquors sold by a dram-shop keeper, the right of such widow to recover, and the amount of the recovery, cannot be affected by the fact that her husband at the time of his death, had a policy of insurance in force upon his life, payable to her in the event of his death.

We have carefully considered the other objections raised by appellant and while there is some foundation for them all, yet we do not consider them individually or collectively as of sufficient importance to warrant a reversal of the cause.

The judgment of the court will accordingly be affirmed.

Affirmed.


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    J. E. Lockerby, Appellee, v. O’Gara Coal Company, Appellant.
    1. Assignments—when wages do not pass. Held, that the evidence in this case did not show a valid assignment of a minor’s wages who had been employed in a coal mine.
    2. Pabent and child—what does not show manumission. Held, that the evidence in this case did not show the manumission of the minor so as to authorize full control by him of wages earned.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    M. S. Whitley, for appellant.
    Choisser, Choisser & Kaete, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit instituted before a justice of the peace by appellee, to recover wages due for labor performed by a son of his in appellant’s coal mine. ' On appeal to the Circuit Court there was a jury trial and after the evidence was closed, the court, on appellee’s motion, instructed the jury to return a verdict for $10.06 the amount of the claim, which was done and judgment entered against appellant for that amount. ■

The proof showed that in October, 1906, Ado Lockerby, the sixteen year son of appellee, was in the employ of appellant and had been working in its mine between three and four months. He at that time and prior thereto lived with his father who boarded and clothed him. He was paid by appellant every two weeks and had received and signed for his wages and spent the amounts- received, as he saw fit. It was the custom at appellant’s mine to make out and deliver to each coal miner, a few days before pay day, a statement of the amount and kind of coal mined by him, what was due therefor, what was charged against him and the balance due the miner if anything. On pay day this statement was presented, signed by the miner and paid by the company. On October 27, 1906, which was pay day, there was due for Ado Lockerby’s work, after deducting charges against. him, a balance of $10.06 and he had previously received a statement showing the condition of his account. ' Early on that day Ado delivered his statement to a man named Henderson, who paid him $9.50 for it. With this money the boy took the train and went to Alton. About noon of the same day appellee discovered what his son had done and notified appellant’s pay master not to pay his son’s wages to any one else. A day or so later, however, the amount was paid by appellant to Henderson.

Upon the trial Henderson testified, “I bought this boy’s statement, and he signed it over and I gave him $9.50.” The original statement was not in evidence but a copy was offered which bore upon its face the words “not transferable” and bore no endorsement or signature whatever of Ado Lockerby. The court below very properly sustained appellee’s objection to the statement and refused to admit it in evidence.

Appellant complains that technical proof was not made of the marriage between the boy’s father and mother. The evidence however was amply sufficient to establish as a prima facie fact that Ado Lockerby was a legitimate son of appellee, in a case like this where no at-' tempt was made to controvert that showing in the proofs.

The most important question raised by appellant is whether or not there were facts tending "to show the manumission of Ado by his father, which should have been submitted to the jury.

The proofs showed without contradiction that the son was a minor living with and supported by his father; that there was no legal assignment of his wages; that appellant was duly notified that the father claimed control of his wages in question; that the father had done nothing to estop himself from revoking the license to the son to receive his own wages, if indeed there was any such license, and from claiming the wages himself; and that before the money was paid by appellant to Henderson, the company had been notified by the father not to pay the money to any one else and that the “pay boss” had said all right.

We are therefore of opinion the court below properly instructed the jury to return a verdict in favor of appellee and the judgment rendered thereon will be affirmed.

Affirmed.


text:
    The People, ex rel. R. R. Pate, Appellant, v. Arnold Saxer, Appellee.
    Appeals akd erbors—what not final judgment. An order sustaining a demurrer to an information not accompanied by a dismissal of the action is not final and therefore not subject to appeal or review.
    Quo warranto. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Appeal dismissed.
    Opinion filed March 4, 1909.
    June C. Smith, for appellant.
    W. F. Bundy and Frank F. Noleman, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was an information in the nature of a quo warranto, filed in the Circuit Court of Marion county at the April term, 1906, in the name of the People of the State of Illinois, on the relation of B. B. Pate, to test the validity of a dram-shop license, issued by the city of Centralia to appellee.

The information stated that appellee had for sixty days and more preceding the filing thereof, claimed and attempted to exercise the right to keep a dram-shop, under a license issued to him by the mayor and city council of said city of Centralia, contrary to the ordinance of said city and the statute in such case made and provided. A plea was filed by appellee setting out the license is sued to him and the or dinance of the city in pursuance of which it was issued and alleging that he had filed his petition accompanied by a bond according to law and the ordinance of said city, with the city council; that said bond had been properly approved, a dram-shop license issued and the fee therefor paid, and referring to the several ordinances under which the proceedings were had, which ordinances were at-tabbed to the information and made a part thereof. To this, plea appellee filed a special demurrer which was, upon hearing, overruled by the court and the following order entered:

“July 1st, 1908, And now on this day comes the state’s attorney, June C. Smith, and files herein his petition for leave to file information, and the court being fully advised in the premises grants the prayer of the petition and it is ordered that information be filed and process issue, returnable July 20th, 1908, and now on this day comes the defendant by his counsel and moves the court to dismiss the information for want of petition, and the court after hearing the argument of counsel and being fully informed, denies the motion, whereupon the defendant excepts; Whereupon comes the defendant and files herein his plea, and thereupon comes the state’s attorney and files herein his demurrer to the defendant’s plea, and the court after hearing the argument of counsel overrules the demurrer, to which ruling of the court the plaintiff excepts and elects to stand by the demurrer and prays an appeal to the Appellate Court within and for the 4th district of the State of Illinois, which appeal is granted. ’ ’

It is to be observed that- there is no final judgment entered in this case, that an appeal was attempted to be taken from an order of the court below, overruling a demurrer to a plea. It is said by counsel for appellant in his brief, that the case was dismissed and the additional abstract filed by him states that page 15 of the record shows among other things “suit dismissed.” An examination of the page of the record above referred to, however, shows only the order above set out and neither on that page nor at any other place in the record is it shown that the suit was dismissed. Section 91 of our Practice Act provides for appeals to review only final judgments, orders or decrees of the trial courts..

The order overruling the demurrer was not an appealable order; and there is therefore nothing presented which this court can consider and the appeal must Tbe dismissed. Gage v. Chapman, 56 Ill. 311; Gage v. Rohrbach, ib. 262; People v. Board of Education, 236 Ill. 154.

Appeal dismissed.


text:
    W. U. Halbert, Administrator, Appellee, v. St. Louis & Northeastern Railway Company, Appellant.
    Contributory negligence—standing in proximity to railroad tracks. A person standing in close proximity to railroad tracks and in consequence being struck and injured, is guilty of contributory negligence when there was a platform upon which he might have stood in safety.
    Action in case for death caused' by alleged wrongful act. Appeal from the City Court of Bast St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    Louden & Crow, for appellant.
    Maurice V. Joyce and Jesse M. Freels, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee sues in this case to recover damages for the death of his intestate, Frank E. Swinhart, resulting from injuries caused by his being struck by a car of appellant at a small station called Stallings, in Madison county. There was very little controversy in the evidence and none as to the main facts, which were substantially as follows:

Appellant operated an electric railroad from Springfield, Illinois, to East St. Louis. Along its line was said station of Stallings, where what were" known as limited cars stopped only on signal. Appellant provided a platform at that station, thirty-eight feet long and fifteen feet wide, alongside the track, composed of a wooden frame filled in with cinders. There was also a railing around a portion of it and a wooden bench for waiting passengers to sit on. Steps led down from the platform to a hotel and saloon back of it. On the morning of July 1, 1907, Mr. Swinhart and two companions crossed the river from their home in St. Louis, Missouri, and took one of appellant’s cars to Stallings to spend the day in fishing. Shortly before eight o’clock in the evening the party went to the station to take a par back to East St. Louis. For some reason they did not go upon the platform but stood on the right of way near the track a short distance west of the platform and from that place signalled one of appellant’s limited cars apro aching from the east at the rate of about forty or forty-five miles an hour. This car was fifty-three and a half feet long and fifteen feet wide, extended two feet ten inches beyond the rail, had a door at the rear for passengers to enter and was equipped with a head light, which was burning. The three men stood in a row nearly together but Swinhart was a little west of' the other two, which made lfim furthest from the platform and approaching car. At the time they first observed the car, it was coming around a curve about a 1000 feet east of the platform and they at once commenced to signal it, Swinhart by waving his hand and the other two by waving articles of apparel. When the car reached a point from 300 to 350 feet from them, the motorman saw the signal, applied the brakes and sounded the whistle for the usual stop signal. When it was some forty or fifty feet from the men, as it was apparent the car was not going to stop at the platform the motorman applied the emergency brake, but the car failed to stop until it had run some 300 feet west of the platform. As the car approached, Swinhart leaned towards the track, reaching his head forward and said “I believe she is going to stop,” when the front end of the car struck him on the head knocking him down the embankment some twenty-five or thirty feet away from the railroad track and inflicting the injuries from which he shortly afterwards died.

Appellee in his declaration charged appellant with negligence in running its electric car at a high and dangerous rate of speed past a station where deceased was waiting to get on, in not stopping the car at the station, and in not having' a good and sufficient platform where deceased and other passengers could stand in safety while waiting for a car. The jury gave appellee a verdict for $8,000, but $5,000 of this amount was remitted and judgment entered by the court below for $3,000.

Appellant took proper steps to raise the question of the sufficiency of the evidence to sustain the verdict and while other questions are also raised, it will be unnecessary for us to consider any but those which concern the facts.

It appears to us that appellee failed to show by a preponderance of the evidence that appellant was guilty of negligence at the time Swinhart received his injuries, as the evidence was that the speed at which the car was running was not a dangerous one, that the company had provided a sufficient and safe platform for its passengers and that the car was stopped by the motorman as soon as he could do so with safety after he saw the signals. But waiving that question, we are of opinion appellee cannot recover in this case, for the reason, the uncontroverted evidence in the case shows, that at the time Swinhart was struck by the car he was not in the exercise of ordinary care for his own safety, and that his negligence contributed to bring about the unfortunate result. It appears from the evidence that there was ample room for him and his companions to stand upon the platform prepared by appellant for its passengers, where he could have remained in safety. No reason whatever appears why he and his companions chose to stand beside the track in the dusk of the evening beyond the platform, in a place which might readily become, as it did, dangerous to one who did not nse care to protect himself from a passing car. Mr. Swinhart saw the car coming and was fully advised of the situation, but evidently misjudged the speed at which it was running. The fact that deceased may have thought the car was going to stop at the platform gave him no more right to stand in dangerous proximity to the track beyond the platform than it would have given him to stand in the middle of the track.

As in our view of the case the undisputed facts cannot warrant a recovery, the judgment of the court below will be reversed but the case will not be remanded.

Reversed.

Finding of facts, to be incorporated in the judgment:

The court finds that at the time appellee’s intestate, Frank E. Swinhart, was struck by appellant’s car and received the injuries from which he subsequently died, he was not in the exercise of ordinary care for his own safety, but was guilty of negligence which contributed to cause his injuries.


author: Me. Justice Higbee

text:
    Roy Kean, by his next friend, Appellee, v. Jones Bros. Coal & Mining Company, Appellant.
    Mines and Miners—what not violation of section 18. A chunk of coal lying beside the track in a mine, held, under the evidence, not an obstruction and not to constitute such a danger as is contemplated by section 18 of the Mines and Miners Act so as to require the examiner to mark the place as unsafe and to make a special report with respect thereto.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.

      Webb & Webb, for appellee.
   Me. Justice Higbee

delivered the opinion of the court.

On February 20, 1908, appellant was operating a coal mine in which there was a room known as room No. 2 of the fourth west entry, which had been driven in about one hundred feet. There was a track laid in the room from the main entry to the face of the mine over which the coal cars ran. The coal, when shot down by the shot-firers, after the other work had ceased for the day and the rooms were clear of men, would be blown back from the face for a considerable distance, falling close to and on the track, as well as elsewhere. The next morning the miner would push in his empty coal car and load its box, commencing with the coal on the track and close to it and when the box was full, a driver would come with a mule and haul the car away. On the evening previous to the date above mentioned, a large block of coal about three and a half feet long,, somewhat less in width and height, and weighing from three to five hundred pounds was blown from the face by shots placed by the shot-firers and fell some thirty feet back from the face, about nine inches outside of the car tracks, where in the due course of business it would be loaded into the cars, along with the other coal which had been blown down by the shots, upon the return of the miners to work the next morning.

On the morning of the' day in question appellee, who was nineteen years old and had been a mule driver in the mines for over two years, and had been driving in this room for about four months, came into the room as usual with his mule to haul out the loaded cars. He hauled out five loads, all or nearly all of which must have passed along side the piece of coal in question. Coming out on the sixth trip he walked backward in front of the car, steadying the same with his hands, with one foot on each side of the tail chain by which the mule was attached to the car. As he came to the place where the chunk of coal was lying the car wobbled to one side, a corner of the box struck the piece of coal and his leg was caught between the box and the coal and was bruised and broken. The track was made of wooden rails, nailed to the ties and was in bad condition at that point. The box extended over the rail about six inches and therefore in passing came within about three inches of said piece of coal.

He brought suit for damages, charging appellant with a violation of section 18 of the act in regard to mines and miners, the particular breaches of duty being, as alleged, that the mine examiner in making his examination, discovered the chunk of coal in question and that the same formed an obstruction to the track and was an unsafe condition, and wilfully failed and omitted to place a conspicuous mark thereat and wilfully failed and omitted to report his finding to the' mine manager; that he also wilfully failed and omitted to make a daily record of the condition of said room No. 2 as he found it, in a book kept for that purpose.

Appellee obtained a judgment in his favor in the court below and appellant here advances several substantial reasons, which appear to us to be well founded, why that judgment should not be permitted to stand. The most important of these is the claim made by appellant, that the Miners statute under which the suit was brought, does not apply to the conditions shown to exist in this case, the contention being that the piece of coal lying beside the track, in room No. 2 as above described, was not an obstruction to the roadway or an unsafe condition within the meaning of section 18 of said act. That section provides that, (a) the mine examiner shall “inspect all places where men are expected to pass or to work and observe whether there are any recent falls or obstructions in rooms or roadways or accumulations of gas of other unsafe conditions.” (b) “When working places are discovered in which accumulations of gas or recent falls or any dangerous conditions exist he (the mine examiner) shall place a conspicuous mark thereat as notice to all men to keep out and at once report his finding to the mine manager. No one shall be allowed to remain in any part of the mine through which gas is being carried into the ventilating current, nor to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe.”

(c) “The mine examiner shall make a daily record of the conditions of the mine as he has found it in a book kept for that purpose,” etc.

It is uncontroverted that the mine examiner made an examination of appellant’s mine, including said room No. 2, on the day in question before the men were permitted to enter; that he observed the conditions in said room, including said chunk of coal, but did not place any conspicuous mark there as a notice to all men to keep out, nor report his finding to the mine manager; that the examiner did make a record of the condition of the mine on said day in a book kept for that purpose, stating .that all the conditions were safe for beginning work, but containing no reference to the block of coal above referred to in room No. 2. The mine examiner stated in his testimony that he would not mark a chunk of coal as a dangerous obstruction to a road, whether it cleared the car or not, as when-a shot was fired the coal would be scattered to a certain extent over the bottom and the clearing up of this coal was a matter for the loaders.

The real question presented, therefore, by this phase of the case is, was the chunk of coal lying beside the track, as above described, an obstruction in the room or roadway or did it constitute an unsafe condition, within the meaning of the statute? We are of opinion that it did not constitute such an obstruction or unsafe condition and that therefore it was not necessary for the examiner either to conspicuously mark it as unsafe or to make special report of it in his record. The shooting down of the coal, the gathering of it up by the loaders and loading it in cars and the hauling of these loaded cars away by the mules, under charge of their drivers, are all consecutive parts of the ordinary work of mining coal, which the makers of the law must have had in view when the same was framed; and they cannot reasonably be held to have intended that the examiner should be required to mark as an-obstruction or unsafe, all pieces of coal of any considerable size blown out by the shot-firers in the course of mining and lying on or near to the tracks. It might be that pieces of coal lying on or near a track where blown out by the shot-firers, taken in connection with negligence of a coal mining company in the furnishing of defective cars or some other negligent act, could create' a condition of affairs which would render the company liable for damages to a person injured thereby, under the injuries act, but this suit is brought to recover under the provisions of the act in relation to mines and miners and must be governed by that law.

Entertaining the views above expressed, we must reverse the judgment of the court below and as in our opinion the law under which this suit is brought does not apply to the facts agreed by the parties to exist in this case, the cause will not be remanded.

Reversed.

We find as facts to be incorporated in the judgment that appellant’s mine examiner duly made a daily record of the condition of the mine as he found it in a book kept for that purpose by appellant; and we further find that he did not wilfully fail and omit to place a conspicuous mark, as a notice to all men to keep out, at a place in said room No. 2, where there was an obstruction and an unsafe condition as charged in appellee’s declaration, and that he did not wilfully fail and omit to report the finding of an obstruction and unsafe condition to appellant’s mine manager.