text:
    Amelia Barker, Appellee, v. Danville Street Railway & Light Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action on the case brought by Amelia Barker against the Danville Street Railway & Light Company to recover damages for injuries alleged to have been sustained by her while attempting to become a passenger on a street car, through the negligence of the defendant. From a judgment in favor of the plaintiff for five hundred dollars, the defendant appeals.
    The appellee on the morning of the accident crossed a street to take a street car standing on the westerly of two tracks. The car had a door on the west side of the north end and one on the east side of the south end. Appellee testified that the motorman in the front vestibule motioned to her to go around the front end of the car to the door on the east side of the rear end; that when she passed around the north end of the car she saw another car coming on the other track, and that it stopped on the opposite crossing; that she then started towards the rear door of the car, and that the other car then started up without ringing a gong or giving any signal and caught and rolled her between it and the stationary car and injured her. The testimony was conflicting as to whether the gong was sounded on the car which caused the injury. The motorman testified that he did not signal appellee to' go around the car, but that he reached to open the front vestibule door, and that she signaled she did not want that door opened. The evidence bearing on the question of the negligence of the appellant and the due care of the appellee was very conflicting.
    Abstract of the Decision.
    1. Street railroads, § 133

      —when negligence question for jury in personal injury action. In an action against a street railway company for personal injuries sustained "by a woman who, while passing around the front and side of a stationary street car in obedience to a motion from the motorman, in order to enter the car, was struck by another car which approached on a parallel track, the question of the negligence of the defendant, as well as whether the plaintiff was in the exercise of due care, are for the jury, where there was a conflict in the evidence as to whether the motorman directed the plaintiff to pass around the car, and also whether the gong of the approaching car was rung.
    H. M. Steely and H. M. Steely, Jr., for appellant.
    Lewman & Crayton, for appellee; Thomas A. Graham, of counsel.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Street railroads, § 131 —sufficiency of evidence to sustain verdict for plaintiff in personal injury action. A verdict for plaintiff held sustained by the evidence in an action in which the evidence was conflicting, for injuries sustained by a woman who passed around the end of a street car in obedience to the alleged motion of the motorman, in order to enter the car, when she was struck by a car which approached on a parallel track without, as alleged, giving any warning.

3. Street railroads, § 110*—variance in action for personal injuries. There is no variance between evidence, in an action against a street railway company for personal injuries, that the plaintiff was caught, held and rolled between two cars, and a declaration alleging that she was struck and knocked to the pavement,' “and between” said cars and “then and there bruised,” etc.

4. Pleading, § 431*—when variance not material. The plaintiff may recover for a tort where the facts proven constitute a cause of action, notwithstanding other averments of the declaration are not sustained by the evidence.

5. Appeal and error, § 384*—when objection essential to review. The admissibility of evidence to which no objection is interposed, will not be determined on appeal.

6. Street railroads, § 113*—admissibility of evidence in personal injury action. The reason why a physician of a street railway company called another doctor to make an examination of the plaintiff cannot be shown in an action against the company for personal injuries.

7. Street railroads, § 113*—admissibility of evidence in personal injury action. In an action against a street railway company for personal injuries, the fact .that witnesses from another town, who were called by the defendant to impeach the reputation of the plaintiff for truth and veracity, were permitted on cross-examination to state that the defendant furnished them transportation to attend as witnesses a criminal case against the plaintiff’s husband, in which the plaintiff was the prosecuting witness, held harmless error.

8. Street railroads, § 107*-—assumed risk in personal injury action. The doctrine of contributory negligence, and not of assumption of risk is applicable to an action for injuries sustained by a woman who passed around the end and side of a stationary street car, in obedience to a motion of the motorman, in order to enter the car, and who was struck by a car on a parallel track which approached without, as alleged, sounding its gong.

9. Trial, § 123a*—improper argument to jury. An argument of the plaintiff’s counsel to the jury in an action against a street railway company for personal injuries, that the defendant was a corporation, and had means of getting witnesses and investigating cases which the plaintiff did not possess, held harmless error.

10. Trial, § 123a*—improper argument to jury. Counsel may comment in his argument to the jury, in an action against a street railway company for personal injuries, on the fact that many of the defendant’s witnesses were in the employ of the company.

11. Trial, § 123a*-—improper argument to jury. An argument of the plaintiff’s counsel to the jury in an action against a street railway company for personal injuries, that witnesses who attacked the reputation of his client for truth and veracity were “a flying squadron of character destroyers,” held harmless error in view of the amount of damages awarded the plaintiff.

12. Damages, § 115*—when not' excessive for injury to woman. An award of five hundred dollars to a woman earning seven- dollars per week, for personal injuries which confined her to hep bed for five or six weeks, and from which she thereafter suffered down to the time of the trial, held not excessive.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    M. S. Rankin, Administrator, Appellee, v. Frederick A. Delano et al., Receivers, Appellants.
    Railroads, § 779

      —instruction as to presumption of due care from instinct of self-preservation. An instruction in an action against a railway company for the death of a traveler at a highway crossing, where there were no eyewitnesses, that in determining whether the deceased was using due care for his own safety at the time of his- death, the jury might, in connection with other facts, take into' consideration the instinct of self-preservation, held erroneous, since it did not limit the jury to the consideration of the facts in evidence bearing on the question of due care.
    Appeal from the Circuit Court of Piatt county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the October term, 1914. Opinion modified May 26, 1915.
    Reversed and remanded.
    Opinion filed April 16, 1915.
    Crea & Housum, F. M. Shonkwiler and C. F. Mansfield, for appellants; J. L. Minnis and N. S. Brown, of counsel.

      A. L. Phillips and Herrick & Herrick, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by M. S. Rankin, administrator of the estate of Charles N. Gfragg, deceased, against Frederick A. Delano, William K. Bixby and Edward B. Prior, receivers of the Wabash Railroad Company, for wrongfully causing the death of plaintiff’s intestate. The declaration contains four counts. The first avers careless and negligent operation of a train which struck and killed the intestate. The second avers a violation of the statute in failing to ring a bell'or blow a whistle for the crossing where the accident occurred. The third avers that defendant in the village of Osman, maintained a main track and two side tracks on the east side of the main track across a public highway; and negligently maintained or permitted to be maintained, in the operation of said railroad, a scale house on the east side of their right of way within eight feet of the east track and ten feet south of the highway; and negligently permitted to be maintained on their right of way, fifty-five feet south of the scale house and eleven feet east of the east track, an engine house; and negligently permitted to be maintained on their right of way, four feet east of the east track and eight feet south of the engine house, an elevator; and negligently permitted to be maintained on the right of way, ninety feet south of the elevator, certain coal bins four feet east of the east track, all said buildings being within fifteen feet of the main track; and negligently permitted a car to stand on the east track two hundred feet south of the highway, and that there were buildings located south of the highway just east of the said buildings near to said tracks; and avers that the negligence of defendant in maintaining buildings on the right of way east of the railroad track and south of the crossing prevented deceased from seeing, in time to avoid a collision, defendants’ train which approached said crossing at a dangerous and excessive speed, to wit, fifty miles an hour, etc. The fourth count is similar to the third except that it avers that the scale house also is on the right of way. A jury found the defendant guilty and assessed plaintiff’s damages at $10,000. Judgment was rendered on the verdict and the defendants appeal.

Osman is a small unincorporated village containing about thirty dwellings and is located on a' public highway about sixty feet wide which runs east and west. The Wabash railroad runs through the village in a straight line. Its general course towards the north is about halfway between north and northeast, and to the south midway between south and southwest. The right of way south of the public highway is sixty-six feet wide. The main track is in the center of the right of way. There are two side tracks on the east side of the main track. The east side track is called the house track, the east rail of which is three feet from the east line of the right of way and twenty-seven and one-half feet' from the east rail of the main track. Midway between the main track and the house track is the passing track. South of the highway and east of the right of way there is a building about twelve feet square called a scale house. The west side of the scale house is eight and one-half feet from the east rail of the house track and its north side is about twenty feet from the south side of the public highway. About fifty feet south of the scale house is the engine house. It is about the same size as the scale house and the same distance from the tracks. The elevator is a few feet south of the engine house. Its west line is east of the right of way. About fifty feet south of the elevator are some coal sheds which are also east of and close to the right of way. South of the highway and east of the railroad and scale house are a residence and store combined. East of the residence and store is a vacant lot except that there is a bam on the back end of the lot. East of the lot with the bam is a dwelling house and then further east are other buildings. The railroad is on a level with the adjacent land. A church stands a little over a block east of the crossing. There are no buildings on the right of way-south of the highway. A car was standing on the house track about one hundred and seventy-five feet south of the crossing, near the coal sheds. On the night of May 26, 1912. Charles N. Gragg, a farmer, thirty-three years of age, with good eyesight and hearing, who lives southwest of Osman, attended church in Osman with his wife and little daughter. The church services closed about nine o’clock. The night was cloudy but the moon shone occasionally. Gragg and his family after church talked with some of Ms friends, and then got into their single, top buggy with side curtains on, which had been hitched near the church, and drove west towards the crossing. Two young men who had their rig Mtched about fifty feet east of the right of way testified that he drove by them in a kind of sweeping trot; they did not see him after he drove on the right of way.

A freight train consisting of a locomotive and fifty-four cars came from the south on the main track. 'The engineer was in Ms cab on the east side of the engine and did not see the rig until just as it drove in front of the engine and was struck by it. The train was” not stopped until it had passed about two hundred feet beyond the crossing. When the train was stopped Gragg was found dead on the pilot of the engine, which was then about half a mile past the crossing. The daughter was also on the pilot of the engine. His wife was found by the side of the railroad not far from the crossing.

The evidence is very conflicting as to the speed of the train; different witnesses testify the speed was from twenty to fifty miles an hour, the engineer testifies it was twenty-five miles.

Several witnesses testify the bell was ringing’, while several testify they did not hear a, bell, although many of them say they heard the rumble of the train two or three minutes before it reached the crossing. There is also conflicting evidence regarding the whistle. The engine had an oil heád light burning, which had been lighted at Bement.

There was no witness who testified to what the deceased did after passing the two witnesses fifty feet from the right of way. While the engineer saw him the instant he drove in front of the engine, the witness could not know anything as to the actions or care exercised by the deceased. Evidence was introduced showing that the deceased was a sober, industrious man, who did not use tobacco. There was no direct evidence that the deceased habitually exercised ordinary care.

Error is assigned on the following instruction given at the request of appellee:

“The court instructs the jury that the plaintiff is not required to produce direct and positive testimony showing just what the deceased was doing at the time of the accident and immediately prior to the time that he received the injury that caused his death; that the law requires only the highest proof of which the particular case is susceptible, and the jury may take into consideration, with other facts, the instincts which naturally lead men to avoid injury and preserve their own lives, in determining* whether or not the deceased, Charles 1ST. Gragg, was using ordinary care for his own safety at the time, and for a reasonable length of time prior to the time he was injured.”

In Collision v. Illinois Cent. R. Co., 239 Ill. 532, an instruction was given informing the jury: ‘ ‘ That they had the right to take into consideration, with the other facts and circumstances proven in the case, the instinct which naturally leads men to avoid injury and preserve their own lives, in determining whether or not the deceased was using due care for his own safety.” The instruction is not set out verbatim. The court said that “the instruction made no reference to the evidence concerning- the character and habits of the deceased in respect to care, but stated the broad proposition as applying to all men. It' is true that there is an instinct of self-preservation common to all and that such instinct raises a presumption * * * as to the conduct of a person where there is a known danger to be avoided. The presumption is based upon human experience that a man will, in the presence of danger, act in accordance with the instinct of self-preservation, but that instinct is only operative when danger is perceived. The law recognizes that there are persons who are careless, heedless, and inattentive as well as those who are prudent and careful, and that the instinct of self-preservation does not uniformly lead men to exercise care to ascertain whether conditions exist which arc likely to inflict injury. To establish and apply a general presumption in favor of care would obviate the necessity of mailing proof of the fact, which this court has uniformly held must be made. Where there is no eyewitness to the killing of a person, his administrator may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable.” In a preceding part of the opinion, referring to this and another instruction, it is stated: “The instructions might be misleading in some cases and perhaps were not strictly accurate statements of the law.” In the case at bar the instruction complained of is abstract. It neither confines the jury to the evidence nor refers to a known danger, but tells the jury that they may consider the presumption with other facts. It does not limit the jury to a consideration of the facts in evidence or which bear on the question of due care. In the Collision case, supra, there was no question of the negligence of the defendant, the train was running at forty to sixty miles an hour in violation of an ordinance limiting the speed to fifteen miles an hour and the deceased was watching another train approaching.

The nineteenth instruction given for appellants was directly in conflict with the instruction given for appellee. The instruction complained of obviates all necessity of proof from which due care might be inferred. It does not limit the jury to a consideration of facts shown by the evidence and omits the fact that the jury must find from the evidence that the danger was known to the deceased before they can consider the presumption. The giving of it was reversible error, especially when taken in connection with the fourth instruction given at the request of appellee.

■The fourth instruction given for appellee has in it a clause: “Yet in order to find the plaintiff’s intestate guilty of contributory negligence, you must believe from the evidence that the deceased, Charles N. Gragg, failed to -exercise that care which the law requires, and he is only required by law to exercise such care and foresight as an ordinary prudent man possessing ordinary intelligence would exercise under the same or circumstances similar to those-surround‘ing plaintiff’s intestate at both and for a reasonable time previous to the time of the accident. ’ ’ This part of the instruction places the burden of proving the deceased was negligent on the appellants. The rule is, if the evidence is equally balanced so that the jury cannot say on a consideration of it that they believe the deceased was in the exercise of due care the verdict must be for the defendant. The judgment is reversed and the cause remanded because of error in instructions given at the request of appellee.

Reversed and remanded.


text:
    James Hughes, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by James Hughes against the Illinois Central Railroad Company for personal injuries. The plaintiff recovered a judgment for $1,000, from which the defendant appeals.
    The evidence showed that the plaintiff was a trespasser in the nighttime on the tracks of the defendant, and that while trying to avoid one engine he was struck and injured by a backing locomotive on another track.
    Crea & Housum, for appellant; John G. Drennan, of counsel.
    Jacob L. Walden and James W. Montgomery, for appellee.

      Abstract of the Decision.
    Railroads, § 508*—injury to trespasser on trade. The evidence in an action against a railway company, held to show that the plaintiff was not entitled to recover for personal injuries, sustained while a trespasser in the nighttime on the tracks of the defendant, by being struck by a backing engine as he was attempting to avoid a locomotive on another track.
   Mr. Justice Thompson

delivered- the opinion of the court.


author: Mr. Presiding Justice Eldredge

text:
    Charles E. Stewart, Appellee, v. J. M. Clark, James T. R. Rutledge, Abner J. Dodson and George W. Stubblefield, Appellants.
    1. Fraud, § 115

      —sufficiency of evidence in action for misrepresenting financial worth of person. A verdict for .the plaintiff held sustained by the evidence, in an action for fraud and deceit in inducing the plaintiff to sell chattels on credit to a third person, by misrepresenting his financial worth and the value of notes put up by him as collateral security.
    2. Appeal and error, § 1421

      —when technical errors not ground for reversal. Technical errors in admitting evidence or in giving or refusing instructions will not justify the reversal of a judgment which is sustained by the evidence, where the merits are with the appellee.
    3. Appeal and error, § 1186

      —when denial of excessive number of requested instructions not error. -Where an unreasonable number of instructions are requested, a judgment will not be reversed for slight errors in refusing some of them.
    4. Instructions, § 94

      —as to disregarding testimony of witnesses testifying falsely. An instruction that the jury should disregard all of the testimony of a witness who wilfully and knowingly testified falsely to any material fact, except in so far as he was corroborated by other credible evidence or facts and circumstances, held not reversible error, where the facts and circumstances of the case were not close and conflicting on any material question.

      5. Fraud, § 118

      —damages for misrepresenting financial condition of person. In an action for fraud and deceit for inducing the plaintiff to sell chattels to a third person on credit, by misrepresenting his financial condition and the value of notes put up by him as collateral, the plaintiff may recover as damages money paid one of the defendants as a commission for making the sale.
    6. Fraud, § 115

      —damages for misrepresenting person's financial condition. The measure of damages in an action for fraud and deceit in inducing the plaintiff to sell chattels to a third person on credit, by misrepresenting his financial condition and the value of notes put up by him as collateral security, is the difference between the actual value of the notes and what their value would have been had the representations been true.
    7. Fraud, § 135

      —instructions as to damages for misrepresenting person’s financial condition. An instruction in an action for fraud and deceit, in inducing the plaintiff to sell chattels to a third person by misrepresenting his financial condition and the value of notes put up by him as collateral security, to the effect that the measure of damages was the agreed price, together with money paid one of the defendants as a commission for making the sale, held harmless error, where the notes, if of any value, were unavailing to the plaintiff.
    8. Appeal and error, § 1387

      —when error in admission of evidence not reversible error. Errors in fihe admission of evidence will not be considered by the Appellate Court where they are so superficially presented that it is impossible to tell wherein the errors lie.
    9. Appeal and error, § 1160

      —when rehearing not granted on questions not raised on original hearing. A rehearing will not be granted by the Appellate Court for the purpose of reviewing questions not raised on the original hearing.
    10. Fraud, § 59

      —when return of collateral condition precedent to action for misrepresenting person’s financial condition. Before bringing an action for fraud and deceit in inducing the plaintiff to sell chattels to a third person on credit, by misrepresenting his financial condition and the value of notes put up by him as collateral, the plaintiff need not return the notes to the latter, where he was not a party to the action.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed May 26, 1915.

      Certiorari denied by Supreme Court (making opinion final).

      Stead, Woodward & Hibbs, Hart, Fleming & Pratt and S. P. Robinson, for appellants.
    Welty, Sterling & Whitmore, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment against appellants for damages in the sum of $3,489.65 in an action on the case for fraud and deceit, to reverse which this" appeal is prosecuted.

The declaration consists of two counts which are not materially different, and aver, in substance, that on March 24,1911, appellee, a resident of McLean county, was owner and possessed of eight head of percheron and coach horses of the value of $4,000; that appellants, together with J. M. Clark, wickedly contriving and conspiring together to cheat, wrong and defraud appellee, and to obtain possession of the horses without paying him the value of the same, applied to appellee to sell to said Clark the horses upon a credit of four months’ time; that for the purpose of inducing appellee to sell to Clark, who was then unknown to appellee and who was without money or property and wholly worthless financially, appellants falsely and fraudulently represented to appellee that Clark was a man of property and means, an extensive dealer and trader in horses, that he was able to pay for said horses and would put up good collateral security sufficient to secure the payment of the purchase price thereof, and that the securities put- up on behalf of Clark as collateral were valuable and ample security for the purchase price; that on the faith of said representations that Clark was a responsible party finan-' daily and his securities valuable, and relying upon the same and believing the same to be true, appellee sold to Clark the horses for $3,900 upon a credit of four months ’ time; that said representations were each and all utterly false and untrue at the time they were made and that appellants knew them to be untrue; that they were made for the sole purpose of defrauding appellee as aforesaid; that said Clark at the time was wholly insolvent and that said collateral securities were wholly worthless, all of which was known to appellants at the time.

An opinion was rendered by this court at the October term; 1914, affirming the judgment and at said term a rehearing was granted. The errors assigned and relied upon to reverse the judgment are: First, that the verdict is contrary to the manifest weight of the evidence; second, in the giving and refusing of instructions; and third, in the admission of evidence.

Much evidence was taken in the case, making the record very voluminous, and no useful purpose would be served in attempting to discuss it in this opinion. After again carefully considering all the evidence introduced, we are convinced that it fully sustains the verdict of the jury on the facts and that the merits of this case are with appellee. This being true, mere technical errors on the admission of evidence or the giving or refusing of instructions will not justify a reversal of the judgment. Ford v. Ford, 257 Ill. 341; Lehigh Valley Transp. Co. v. Post Sugar Co., 228 Ill. 121; City of Beardstown v. Clark, 204 Ill. 524; Swisher v. Deering, 204 Ill. 203; Town of Wheaton v. Hadley, 131 Ill. 640.

Sixty-nine instructions were offered on behalf of appellants. The court gave sixteen of these, apparently covering every phase of the case. Fifty-three were refused, and the refusal of a large number of these is assigned as error. In reference to the offering of such an unreasonable number of instructions, we quote from the language of the Supreme Court in the case of Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150:

“The attorneys for appellant presented to the court forty-seven instructions, of which the court gave to the jury twenty-three and the rest were refused. It would be impossible to formulate forty-seven different propositions of law relating to the issues in this case, and the instructions were necessarily mere repetitions of the same principles, so far as they stated the law and were applicable to the case. The court gave several instructions on each of the material propositions and would have been justified in refusing many that were given. While attorneys have a right to present to the court as many instructions as they deem necessary, they must, of course, expect that if they present such a number as were offered in this case they will, of necessity, receive but hasty and scant attention. Useless burdens were imposed upon the trial court in the examination of the volume of instructions offered, and in such a case a court of review would be very loath to reverse a judgment if some slight error had been committed by the court.”

The above case is pertinently applicable to the case at bar.

It is most earnestly contended, however, that the giving of two instructions on behalf of appellee constitute reversible error. Instruction No. 2, given, is as follows:

“The court instructs the jury, that if you believe from the evidence in this case, that any witness has wilfully and knowingly testified falsely to any material fact in this case, then you may entirely disregard all of the testimony of such witness, except in so far as the testimony of such witness may be corroborated by other credible evidence or facts and circumstances shown in this case which you do believe.”

The giving of one substantially similar in the case of Chicago & A. R. Co. v. Kelly, 210 Ill. 449, was held to be reversible error. In connection with the giving of the instruction in that case, the court said:

“There was upon the question of the length of time the train stopped at the Braidwood station,—which was a material question,—a sharp conflict in the evidence, and in that state of the record it was important that the jury should have been correctly instructed as to the law of the case, especially as to the rule which should govern them in weighing the evidence of the respective witnesses.”

It is insisted by appellee that under the rules of grammatical construction, the words “which you do believe” qualify the words “facts and circumstances,” not the words “credible evidence,” and for this reason this instruction is distinguishable from that in the Kelly case, supra. Whether this contention be correct or not, we do not think that the facts in this case are so close and conflicting on any material question that the giving of the instruction was so prejudicial as to constitute reversible error.

The seventh instruction given for appellee is as follows :

“The court instructs the jury, that if you find the issues for the plaintiff then in assessing plaintiff’s damages you should allow the plaintiff the amount agreed upon by said parties as the purchase price of said horses, and such money as you find from the evidence, if you do so find, was paid to the defendant Dodson, as commission on the sale of said horses, and interest on such sums at the rate of five per cent, per annum from the date that said horses were sold.”

Appellants claim that this instruction does not announce a correct rule for the measure of damages for two reasons: First, it includes the commission paid by appellee to appellant Dodson; and second, that the true measure of damages is the difference between the fair cash market value of the horses and the value of the notes given in payment therefor.

The evidence shows that appellant Dodson, while pretending to act as agent for appellee, was, in fact, in the conspiracy with the other appellants to defraud appellee out of the horses by palming off on him the worthless notes in question. Appellee paid Dodson $100 as his commission for procuring the sale of the horses. This is an action for fraud and deceit, and the procurement of the payment of this commission by fraud was an element of damage which appellee had a right to recover.

The rule as to the measure of damages, eliminating the question of a commission, presented by the second objection of appellants to the instruction cannot be sustained. The value of the horses was not in question. The price had been fixed by the parties themselves at $3,000. Appellee was entitled to the benefit of his bargain. The gravamen of the action was the fraud and deceit in representing to appellee the value of the notes given in consideration for the horses, and the damage which appellee was entitled to recover was the difference between the actual value of the notes and what their value would have been if the representations made had been true. Schwitters v. Springer, 236 Ill. 271. The declaration alleges that the notes were worthless and of no value. The proof for appellee tended to show that they were worthless, and the contention of appellee throughout the case was that they were of no value. While this instruction does not announce the rule as to the measure of damages as a technical abstract proposition of law, yet it tells the jury that if it should find from the evidence the issues in favor of the plaintiff, that is, the issue, among others, that if these notes were fraudulently represented to appellee to be good when they were in fact worthless, then it should allow the plaintiff the amount agreed upon by the parties as the purchase price of the horses. The principal note given by Clark to appellee for $3,000 representing the purchase price for the horses was beyond any question absolutely worthless. Clark was simply a straw man who owned no property of any kind and as soon as the transaction was consummated left for the State of Oregon. The two collateral notes, secured by a third mortgage on certain residence property for $2,400 each, executed by a man by the name of Allen, a resident of Missouri, payable to Clark and delivered to appellee with Clark’s note, were not indorsed by Clark, and there was no assignment of the mortgage by Clark to appellee. Assuming that these collateral notes, supposedly secured by the third mortgage on the property, represented an equity in the property of some value, then when the principal note executed by Clark, payable to appellee, for $3,000 became due, appellee had as consideration for his horses, (1) the worthless Clark note; and (2) the two collateral notes executed by said Allen, payable to Clark, unindorsed, non-negotiable and not due, supposedly secured by a third mortgage, unassigned, on property, the highest value of which any witness for appellants has placed thereon being $5,000, and on which were two prior mortgages amounting to $3,000 and accumulated interest. There was no contract that the collateral could be sold and the proceeds applied on the Clark note. Clark, the maker of the principal note had fled from the State, and Allen, maker of the collateral notes was a resident of Missouri. Under the above facts, in what way could appellee realize anything from these alleged collateral notes? No method has been suggested by counsel. If there is any it certainly would be an onerous one. It has been held that if the diligence which is necessary to preserve the value of collateral security be onerous or hazardous, its assumption may be declined altogether. Trotter v. Crockett, 2 Port. (Ala.) 401. If these collateral notes did in fact have some value, they were unavailing, and as a matter of law worthless, to appellee. Under these circumstances this instruction could have worked no harm to appellants.

In the original brief and argument of appellants several criticisms in regard to the admission of evidence were made, but are so superficially presented that it is impossible to tell therefrom wherein errors were committed. We illustrate the following instances :

“Dodson had two barns, one a sale barn and the other a feed barn, in Normal. The Hartley horses were put in one barn and the Stewart horses were put in the other. These two lots of horses both belonged to Clark. Dodson was called out of town, and before he went he told Cochrane, a colored barn hand, to lock the barn, so that no one could get the horses. There was a feed bill running against each bunch of horses, and Dodson wanted to protect himself as to this feed bill. Anyone knows that the sheriff could take the horses, lock or no lock, and it was folly to think that Dodson was attempting to keep the horses from the sheriff by that sort of means. Appellants offered to show there was a feed bill against the horses after appellee had insinuated before the jury that the reason the barn was locked was because Dodson was afraid that the deputy sheriff would take away the horses. Appellants contend that the trial court erred in refusing to allow the real facts to be shown by them. ’ ’

Again it is stated in the argument:

“Appellee also introduced evidence in this case over the objection of appellant as to the Hartley transaction in Iowa. Appellant now contends that the trial court grossly erred in allowing this evidence to go to the jury, and if he did not err in allowing appellee to introduce this evidence then the court surely erred in not allowing appellants to go into the whole transaction on cross-examination and show what they proposed to show and made an offer to show.”

This court cannot review and pass upon such abstract propositions of error presented in this way. In the petition for rehearing the argument in regard to these errors is elaborated and an attempt is made to show wherein the admission of this evidence is erroneous. Petitions for rehearing are never granted for the purpose of presenting points not raised on the original hearing.

It is further insisted that appellee should have offered to deliver back the notes received by him in payment for said horses. This was an action for fraud and deceit and not an action for breach of a contract. The contract for the sale of the horses was ostensibly made with Clark, who was not served with summons in this case, is not a party to the judgment herein, and a tender back of the consideration to the other defendants, appellants herein, was not necessary. Siltz v. Springer, 236 Ill. 276; Allin v. Millison, 72 Ill. 201.

The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Justice Scholpield

text:
    Gray Coal Company, Appellee, v. Danville, Urbana & Champaign Railway Company, Appellant.
    (Eot to be reported in full)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed May 26, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action in case by the Gray Coal Company against the Danville, Urbana & Champaign Bailway Company to recover damages to a coal mine and machinery alleged to have been caused by the construction and maintenance of a railroad bridge over a stream about one-half mile below appellee’s property, with' bents and piling so closely together as to make an obstruction, which permitted an ice gorge to form and caused the water to overflow the river’s banks and flood the appellee’s mine. There was a verdict and judgment against appellant for $5,000, from which it appeals.

      The court refused to permit appellant to show a conversation had before the overflow in question with the managers of appellee company in regard to there being no levee across the end of the strip mine to protect it from overflow.
    A witness testified for the appellee as an expert that appellant’s bridge was insufficient to take care of ice and water at a time when ice was going out of the stream. He testified that he was k civil engineer; that upon his graduation from a technical college he became bridge draftsman in the engineering department of the city of Chicago; that he was promoted to engineer in charge of bridges; that he was subsequently advanced to the position of superintendent of bridges in that city, which position he held for ten years; that after he left the employment of the city he entered into the bridge construction business in which he had been engaged for over ten years. He thereafter gave substantially the same answer to a hypothetical question to which no objection was interposed or motion made to exclude the answer.
    The court permitted the appellee to amend its declaration after verdict so as to correspond with the evidence at the trial, which did not change the theory on which the case was tried.
    The reasonableness of the verdict was not questioned in the appellant’s original brief, but was first raised in its reply brief, and also in its petition for a rehearing.
    Charles Troup and H. M. Steely, for appellant; George W. Burton, of counsel.
    Acton & Acton, for appellee.

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

   Mr. Justice Scholpield

delivered the opinion of the court.

Abstract of tlie Decision.

1. Railroads, § 348 —evidence in action for obstructing stream. In an action against a railway company for the flooding of a mine as the result of the piling and bents of a bridge being placed so closely together in a stream as to permit an ice gorge to form, the defendant cannot show a conversation had with the manager of the mine previous to the overflow, with regard to the absence of levees across the end of the mine strip to protect it from the water.

2. Railroads, § 333a —when landowner bound to anticipate overflow of stream from obstruction. A mining company is not obliged to anticipate the flooding of a mine from the negligence of a railway company in placing the piling and bents of a bridge so closely together as to cause an ice gorge to form in a stream.

3. Railroads, § 333a*—when landowner must minimize damages from overflow of stream. After the overflow of a stream as the result of the negligence of a railway company in placing the piling and bents of a bridge so closely together as to permit an ice gorge to form in a stream, it is the duty of a mine owner to make his loss as light as possible from the overflow flooding his mine.

4. Railroads, § 348*—when witness qualified to give opinion as to obstruction of stream. A witness held qualified as an expert to testify as to the sufficiency of a railway bridge to care for ice and water when the ice was going out from a stream.

5. Appeal and error, § 550*—when appellant limited to objections made in trial court. Where the testimony of a witness was admitted over an objection that he had not qualified as an expert, the fact that his testimony was objectionable on other grounds will not be considered on appeal.

6. Appeal and error, § 1618*—when error cured by subsequent admission of evidence without objection. Where the opinion of a witness was admitted over an objection that he had not qualified as an expert, any error therein becomes harmless when the witness afterwards is permitted, without objection or a motion to strike out his answer, to give substantially the same testimony in answer to a hypothetical question.

7. Appeal and error, § 1100*—questions raised in reply brief. The question whether a verdict is excessive will not be considered on appeal when raised for the first time in the appellant’s reply brief.


author: Mr. Presiding Justice McBride

text:
    The People of the State of Illinois, Defendant in Error, v. Henry Tenbrook, Plaintiff in Error
    (Not to he reported in full.)
    Error to the County Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Henry Tenhrook upon an information charging him with the sale of intoxicating liquor in anti-saloon territory. To reverse a judgment of guilty, defendant appeals.
    At the conclusion of the trial the jury retired and it was agreed by and between the parties to the suit: “That should the jury agree upon a verdict before the convening of court at 1:15 p. m., that they might sign and seal their verdict and bring the same into court with them upon the convening of court. ’ ’ When court convened, eleven of the jurors were present and the verdict was open and read in the presence of the eleven jurors, and was in the following form: “We, the jury, find the defendant guilty in manner and form as charged in the information in count 8 of said information,” which was signed by all the jurors. Thereupon the court inquired of the jurors present whether they intended to find the defendant guilty on count 8 of the information or on the eight counts of the information, and the court was then and there informed by the eleven jurors present that they intended to find the defendant guilty on eight counts. The court then directed the eleven jurors to return to the jury room in charge of the officer and place their verdict in the form that the jury intended it to be. While the eleven jurors were retiring, the absent juror, E. D. Dollins, entered the court room, and, after having been instructed by the court to retire to the jury room with the jurors aforesaid, joined the other eleven in the consideration of the verdict; and after being out for a time, the jury returned into open court with the following verdict: “We, the jury, find the defendant guilty in manner and form as charged in the information in count 8 of said information..
    Ac. 1. J. F. Ahlfeld. Ac. 7. S. D. Dunbar.
    Ac. 2. R. A. Browning. Ac. 8. Emery T. Hill.
    Ac. 3. Mint Isaacs. Willis Holman.
    Ac. 4. George Nortz. E. D. Dollins.
    Ac. 5. J. A. Elam. Frank Williams.
    Ac. 6. Oliver Sanders. R. A. Summers.
    And the verdict as rendered was received, published and recorded by the court as the verdict of the jury herein. Motion for new trial was overruled and, thereupon, judgment was rendered upon the verdict, and it was adjudged that the defendant, Henry Tenbrook, on each of the said counts 1, 2, 3, 4, 5, 6, 7 and 8 be imprisoned in the county jail of Franklin county, Illinois, for a period of ten days and that upon the eighth count be fined the sum of fifty dollars, and also be required .to pay the costs of the suit. The defendant by his counsel excepted to the action of the court in inquiring of the jury as to whether or not they intended to find the defendant guilty on count 8 or on the eight counts of the information, and to the oral instruction given by the court to return to the jury room and place their verdict in the form the jury intended it to be. Counsel for defendant also excepted to the receiving and recording of the latter verdict and the entering of judgment thereon, and, by his errors so assigned, questioned the sufficiency of the evidence to sustain the verdict, the action of the court in permitting the amendment and proceedings had thereupon, and the sufficiency of the amended verdict, and also claimed that the court erred in overruling his motion for a new trial and in rendering judgment upon the verdict.
    Abstract of the Decision.
    1. Criminal law, § 331

      —when verdict not ambiguous. A verdict of a jury finding the “defendant guilty in manner and form as charged in the information in count 8 of said information” is not so ambiguous as to warrant the court in inquiring whether they meant the whole of the eight counts or the eighth count.
    2. ■ Criminal law, § 321

      —when error to permit separation of jury. It is eror to permit a jury, after finding and sealing its verdict, in a criminal case, to separate and go home and not be under charge of an officer for two hours before the final amended verdict is finished, although there is an agreement between the parties that the jurors might sign and seal their verdict and bring it into court upon the convening thereof.
    3. Criminal law, § 330

      —when verdict of conviction relates to but one offense. The trial court is not warranted in rendering judgment for eight distinct offenses upon an indefinite verdict in a criminal case, finding the “defendant guilty in count 8 of said information,” the words “Ac. 1, 2, 3, 4, 5, 6, 7, 8, having been inserted before eight respective' names' of jurors below the verdict.
    R. E. Smith and W. P. Seeber, for plaintiff in error.
    W. F. Spiller, for defendant in error.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Josephine Weisguth, Appellee, v. Supreme Tribe of Ben Hur, Appellant.
    (Not to he reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by Josephine Weisguth against Supreme Tribe of Ben Hur upon a life insurance certificate issued in favor of plaintiff as beneficiary upon the life of one Emma Mansfield. From a judgment for plaintiff for $1,115.64, defendant appeals.
    The declaration consisted of one count and alleged that appellant was incorporated under the laws of the State of Indiana and engaged in the business of life insurance as a fraternal benefit society in the State of Illinois; that on September 25,1911, it issued to Emma Mansfield, sister of appellee, its contract of insurance, and that in consideration of certain assessments and charges to be paid by the said Emma Mansfield that upon her death and proof thereof appellant should pay to appellee the amount of $1,000. The declaration further averred the death of Emma Mansfield in November, 1911; that appellee furnished proof of said death and demanded payment of the $1,000, which was refused. To this the defendant filed the general issue with notice that it would make certain defenses. On September 15,1911, Emma Mansfield made application to become a member of the order of appellant and on the same day was examined by Doctor Charles E. Greer of Charleston, Illinois, and recommended as a suitable and proper person to become a member of said order, and on September 25, 1911, a certificate of beneficial membership was issued to the said Emma Mansfield and made payable to the appellee upon the death of Emma Mansfield, conditioned upon the payment of regular assessments therein specified.
    It further appeared from the evidence that Emma Mansfield paid Doctor Greer for the said examination and that the dues and assessments were thereafter paid by appellee until the death of Emma Mansfield, which occurred on November 28, 1911. Thereafter proofs of death were made and appellant refused to pay the certificate on account of false and fraudulent statements claimed to have been made by Emma Mansfield in her application to become a member of this order. It was contended by counsel for appellant that the application contained a clause warranting the statements of the applicant to be true and that the appellee was bound by those statements, whether they were made fraudulently or not, or whether material or not, and that, if untrue in any particular, she would be barred from a recovery. The application signed by Emma Mansfield contained the following clause: “I do hereby agree and warrant as follows: 1. That the statements and answers contained in this application and medical examination to be full, complete and true and were read by me before attaching my signature thereto, and I hereby agree that these statements and warranties together with those hereinafter made to the examining physician in this application and the laws of the Supreme Tribe of Ben Hur, now in force and that may be hereafter adopted, shall form the basis of this contract for beneficial membership.” Then further on and as a part of such application under paragraph 3 it is further provided: “That any untrue or fraudulent answers made by me in this application, or any neglect by me to pay any monthly payment, assessment or per capita tax which shall be made by the Supreme Tribe as provided by the laws of the Order, or by the by-laws of the Court to which I belong, shall vitiate my beneficial certificate and forfeit all payments made thereon.
    Abstract of the Decision.
    1. Insurance, § 120

      —how construed. Insurance policies should be so construed, if possible, as to give the parties the relief intended. at the time of taking out the policy.
    2. Insurance, § 202

      —when statements are representations and not warranties. The statements contained in an application for life insurance, providing that tne applicant agreed and warranted that the statements and answers contained in tne application and medical examination were full, complete and true; further providing that applicant agreed that the statements and warranties together with those made to the examining physician in the application and the laws of the society should form the basis of the contract, and that any “untrue or fraudulent answers” made in the application should vitiate the certificate and forfeit all payments thereon, must be deemed representations and not warranties.
    3. Insurance, § 209

      —when statements on medical examination part of application. The statements in answers to the questions of a medical examiner of an applicant for life insurance are a part of the application, where the application is divided into two parts, part one containing among other things the family history, stipulations or what shall constitute the basis of th^ contract, and what shall constitute a forfeiture; part two being the medical examination, and the whole examination being entitled “application for beneficial certificate.”
    4. Evidence, § 476

      —when verdict not disturbed as against weight of. A verdict for the plaintiff will not be disturbed as manifestly against the weight of evidence and credence given to the testimony of one witness as against two others, where two juries have found for the plaintiff and the verdicts have been approved by the trial judges.
    C. E. Pope, for appellant.
    Dan McGlynn, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

5. Insurance, § 331 —when notice to medical examiner is notice to insurer. Notice to the medical examiner of a life insurance company of the facts concerning the health of insured acquired at time of the examination is notice to the company.

6. Insurance, § 333 —when medical examiner, agent of insurer. A medical examiner of a life insurance company must be deemed the agent of the company although he is paid by the insured for the examination, and the policy contains a provision making him' the agent of the insured.

7. Dismissal, nonsuit- and discontinuance, § 26 —when may he set aside. It is within the discretion of the court to set aside an order of dismissal of a case, obtained at the instance of plaintiff to avoid a nonsuit, and to reinstate the case upon the docket at the same term, especially where it appears to the court that it was done in the interests of justice.

8. Appeal and error, "§ 1296 —when setting aside dismissal presumed proper. It will be presumed that the trial court did not abuse its discretion in setting aside an order of dismissal of a case obtained by plaintiff and reinstating the case upon the docket at the same term, where the facts upon which the trial court based its decision setting aside the order of dismissal are not before the Appellate Court.


text:
    J. P. Borman, Appellant, v. Theo. J. Gebauer and Bess J. Gebauer, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by J. P. Borman against Theo. J. Gebauer and Bess J. Gebauer upon a promissory note. From a judgment for defendants, plaintiff appeals

      On August 5, 1912, A. B. Black purchased a butcher shop in Troy, Illinois, for a consideration of $1,000, and in order to pay for the same borrowed the amount of $600 from the Troy Exchange Bank, giving his father-in-law, Gr. O. Bauer, as surety thereon. This note was payable one year after date, and to complete the payment for such shop said Black executed and delivered to one Ed. Kline a chattel mortgage upon the fixtures, securing a note for $400. A. B. Black continued in the butcher business for about sixty days and then sold the business to his brother-in-law, the defendant Theo. J. Gebauer, for $1,000. A new note and chattel mortgage was executed to Kline and was taken up. The defendants executed and delivered to A. B. Black a note for $600, bearing date of September 21, 1912, due ten months after date for the amount of $600, and payable to the order of A. B. Black. It was claimed by the defendants that this was given as what they termed a security note and that it was understood and agreed that the defendant Theo. J. Gebauer was to pay the note bearing date of August 5, 1912, for $600 heretofore described to the Troy Exchange Bank, take that note up and deliver it to Black, whereupon Black was to return to defendants the $600 note executed to them. It further appeared from the evidence that before the note bearing date of September 21, 1912, became" due, and on July 1, 1913, that A. B. Black sold and delivered this note to Dr. F. W. Braner for a valuable consideration and Braner thereafter transferred said note to the plaintiff for collection, upon which plaintiff instituted this suit.
    It was claimed by defendants that at the maturity of the note executed by Black and others to the Troy Exchange Bank, defendant Theo J. Gebauer paid this note to the bank and claimed that the note bearing date of September 21st and payable to A. B. Black was transferred to F. W. Braner after its maturity, and that by reason of this agreement with Black and the payment of the note bearing date of August 5th, the note sued upon was satisfied and should be surrendered to defendants. Upon the other hand, it was claimed by plaintiff that Dr. Braner purchased the note sued upon before its maturity for a valuable consideration without notice of any defense thereto, and that the defense offered by defendants was not warranted and that he was entitled to recover the full amount of the note. The only evidence offered by defendants for the purpose of showing that the note in question was transferred after maturity was the testimony of the witness H. C. Kersey, who says that at Mr. Gebauer’s request he went on August 30th to see Mr. Black about delivering to Black the note that defendants had paid to the Troy Exchange Bank in exchange for the note in question, and that Mr. Black then stated: “He told me there was some other matters between him and Mr. Gebauer had to be settled before he would give up the noté.” Also the testimony of Mrs. Chawen Gebauer, who says that on or about July 18, 1913, Black said he would turn it over to Theo. Gebauer. She was then asked the question: “Q.—You didn’t know where the note was at the time? A.—It was in his possession I think because he said it was. Q.—I say, do you know whether it was? A.—I don’t know. He told me he had it, that is all I can tell you.” And the further testimony of II. C. Kersey, who says that on Monday September 1,1913, “I went down and notified Dr. Braner, telling him that note had been paid and we demanded the other note, and I says this is security for the other note, and he asked me if the bankers knew it. I said ‘Sure.’ That was all that passed between us. I told him the note I was talking about.” Witness also said this was all that was said by Braner. Constable Kersey testified that he saw Dr. Braner on September 1st and notified him not to purchase the note but did not claim that Dr. Braner said anything. He simply said that he told Braner not to purchase the note, that it had been paid, and he simply asked if the hankers knew it, and said that was all that passed between them.
    Abstract of the Decision.
    1. Bills and notes, § 396

      —presumption of negotiation before maturity. The presumption of law is that except where an indorsement bears date after maturity of the instrument, every negotiation is deemed prima facie to have been effected before maturity.
    2. Evidence, § 201

      —when declarations of prior holder of note inadmissible against transferee. Declarations by the indorser of a promissory note that he had the note at a date after maturity are incompetent, in an action by a subsequent indorsee against the maker, where such indorser was not a party to the action, and there was no proof first made that the note had not been transferred at the time of the making of the declaration.
    3. Bills and notes, § 446

      —when evidence shows transfer before maturity. The presumption of law that every negotiation is deemed prima facie to have been effected before maturity, where no indorsement bears date after maturity, supported by the testimony of two witnesses that the instrument was transferred before maturity, is not overcome by the testimony of one witness that after maturity of the note he went to the subsequent indorsee and told him not to purchase the note, that it had been paid, although the indorsee said nothing, except that he asked “if the hankers knew it.”
    4. Bills and notes, § 321

      —power of indorsee for collection. The indorsee of a promissory note for collection has the legal title thereto, and may sue thereon.
    5. Bills and notes, § 258

      —what defenses improper against second transferee. A second assignee of a note who purchases and receives it after maturity is entitled to the same protection as the first assignee who receives it before maturity, and no defense can be urged against the note in his hands not admissible against the first assignee.
    Early, Hiles & Simpson, for appellant.
    Springer & Buckley, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Max Ehlers, Plaintiff in Error, v. Chicago, Burlington & Quincy Railroad Company, Defendant in Error.
    1. Railroads, § 517

      —what duty owed trespasser. A railroad : company owes no duty to a person walking along its tracks without its invitation, express or implied, except to fefrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril.
    2. Railroads, § 537

      —when trespasser not in position of peril. A trespasser possessed of the faculty of sight who is walking along the tracks of a railroad about five feet from the outside rail while an engine is coming at a rate of eight to ten miles per hour fifty feet ahead, and could have seen a rod projecting two or three feet from the side truck of the engine if he had been observant, is not in a perilous position so as to necessitate the stopping of the engine, especially where he could easily have stepped aside at the time, even though the engineer was on the opposite side of the engine and did not see him but once.
    3. Negligence, § 7

      —what constitutes wilfulness. Wilfulness or wantonness implies a disregard of consequences, or willingness to inflict injury, even though there is no element of ill will towards the party injured.
    4. Railroads, § 537

      —when injury to trespasser not wilful. An engineer who is driving an engine, on the truck of which is a rod projecting two or three feet, at the rate of eight or ten miles per hour does not act wantonly or wilfully in driving his engine forward after having seen a trespasser at a distance of fifty feet walking towards the engine at a distance of five feet from the outside rail, where owing to the fact that he was on the opposite side of the cab he saw the trespasser but once, and the rod was in plain sight and could have been avoided by simply stepping aside.
    Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    L. P. Zerweck and T. M. Webb, for plaintiff in error.
    John L. Flannigan, for defendant in error; W. E. Trautmann, S. W. Baxter, John E. Hamlin and J. A. Connell, of counsel.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The court at the close of plaintiff’s evidence directed a verdict for the defendant and the plaintiff prosecutes this writ of error.

It appears from the record in this case that on August 15,1913, in the county of St. Clair, the servants of the defendant had detached from an engine a certain driving shaft or rod, and placed it on the front end or pilot of the said engine in such manner that it projected from two to three feet beyond the side of the engine, and that the said servants were operating said engine in a westerly direction from the depot situated in the city of O’Fallon, and that the plaintiff was walking along the tracks eastwardly and on the south side thereof and at a distance of about five feet from the rai The engine was being operated at a speed of about eight to ten miles per hour. It further appears that when the plaintiff was within about fifty feet of the engine he saw it and says he saw the engineer on the right-hand side of the engine and on the opposite side from where he was walking. He also says: “I saw the engineer on the right-hand side of the engine and he was looking at me, he saw me. I simply kept on walking and about five feet from the south rail of the track.” He also testified that he did not see this cylinder rod lying across the front of the engine. It further appears from the evidence that three or four other persons near by saw the engine and also the cylinder rod or steel bar lying across the front of it, and extending two or three feet beyond the engine, and some of them say: " The rod was plain enough to be seen, walking in front of the engine.” It further appears that the plaintiff kept on walking eastward in this path until he met the engine and the rod extending over the side struck and injured him.

The declaration charges that the servants in charge of said engine saw and observed the plaintiff and well knew that the said driving shaft or rod so located on the front end of said engine would come in contact with and injure him and that he would be in a perilous position if the said engine continued to move along such track while such driving shaft or rod remained thereon in said position, and that notwithstanding the knowledge of said servants in charge of said engine they wilfully, wantonly and recklessly continued to propel said engine towards and up to the plaintiff without endeavoring to stop said engine, although the same could have been stopped by the servants in charge thereof, and without apprising the plaintiff of the location of said driving shaft or rod, with great force and violence struck the plaintiff and injured him.

It is contended by the plaintiff in error, hereinafter called plaintiff, that the plaintiff in walking along said track and when at a distance of fifty feet from the engine was in a perilous position; that the engineer operating the engine saw plaintiff and knew that he was in a perilous position and that he wilfully, wantonly and recklessly drove said engine and the driving rod against the plaintiff and injured him. It is admitted by counsel for plaintiff that unless it appears from the evidence, with reasonable and proper inference to be drawn therefrom, that the engineer did wilfully and wantonly drive the crossbar against the plaintiff that then the court was not in error in directing a verdict. It is, however, strenuously insisted that the fact of the crossbar extending beyond the sides of the engine being of an unusual character, and the engineer having seen the plaintiff walking at the distance of five feet from the track at a point fifty feet before the engine reached the plaintiff, and the further fact that the plaintiff did not see the projecting rod, are sufficient to show that the plaintiff was in a position of peril, that the engineer knew it and should have stopped his engine.

It clearly appears from the evidence in this case that the plaintiff was unlawfully upon the premises of the defendant, and the law is well settled that: “A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril.” Illinois Cent. R. Co. v. Eicher, 202 Ill. 556. We do not believe that it appears from this evidence that the plaintiff was in a place of peril or even if he was that the engineer knew him to be in such place or peril. So far as disclosed by this evidence, plaintiff was walking along the track in the usual manner, possessed of the faculty of seeing, and the driving rod, although of an unusual character, was such as could be seen by persons in front of the engine, and we believe that the engineer had the right to assume that the plaintiff saw the projecting rod and that at a proper time would step to one side and permit it to pass, and as long as it was apparently within the power of the plaintiff to reasonably avoid coming in contact with any parts of the engine, we can see no reason why the engineer should conclude that he was in a position of peril. He had a right to assume that the plaintiff would at proper time step further to one side and avoid collision with the projecting rod. Counsel for plaintiff have cited in their argument the case of Chicago Terminal Transfer R. Co. v. Kotoski, 199 Ill. 383, and the case of Chicago Terminal Transfer R. Co. v. Gruss, 200 Ill. 195, in support of their contention that it was the duty of the engineer to stop the engine when he saw the plaintiff at the distance of fifty feet ahead. The same cases were relied upon in the case of Bartlett v. Wabash R. Co. 220 Ill. 163, and the Supreme Court in commenting upon these cases say that they “are not like the case at bar. Here it was only necessary for Stampfer to step from the track to avoid injury from the approaching train, while in those cases it was necessary for the persons who were injured to make their escape from the approaching train by passing some distance over a high trestle on which the train was backing towards them, and, although their perilous situation was fully appreciated by the servants of the defendant in charge of the train, no effort was made by them to stop the train. ’ ’ We think this case is wholly unlike the cases cited by counsel for plaintiff, in this, that in such cases the plaintiff was actually in a perilous position, one from which he could not escape, but in the present case all the plaintiff had to do was to step a little further to one side and let the train with the projecting crossbar pass by.

It further appears from the evidence in this case that the engineer was on the opposite side of the engine from where' the plaintiff was walking, and there is no evidence that the engineer saw him any more, and we do not believe it could be reasonably" inferred that he did see him after that.

Wilfulness or wantonness implies a disregard of consequences, or willingness to inflict injury even though there is no element of ill will towards the party injured. Illinois Cent. R. Co. v. Leiner, 202 Ill. 624.

Whether the act of the defendant in placing the rod across the engine was negligent or not is not a question to be considered here, as the act of defendant’s negligence is not in any manner involved, but the sole question involved is: Did the servant of the defendant act wilfully and wantonly in driving the engine forward after having seen the plaintiff at the side of the track? We do not believe that a jury would be reasonably justified in the eye of the law in finding a verdict for the plaintiff upon this evidence, and that the court committed no error in directing a verdict, and the judgment of the lower court is affirmed.

Affirmed.


text:
    Ulysses Hutson, Appellee, v. Charles D. Flatt, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pranklin county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by Ulysses Hutson against Charles D. Flatt for damages for personal injuries sustained as a result of plaintiff’s' horse becoming frightened at defendant’s motorcycle, which was being driven along the highway at a rapid rate, and overturning the buggy. From a judgment for plaintiff, defendant appeals.
    On the morning of August 19,1913, the appellee, with his wife, was traveling on the public road leading north from Christopher in Franklin county, in a top buggy drawn by one horse. The defendant was traveling south on the same road, riding on a motorcycle. They met upon the road at the distance of about one mile from Christopher. The road at this place is narrow, of the width of twelve to fifteen feet, crossed by a stream over which is erected a bridge fifteen or twenty feet wide. At the right of the road is a ditch eighteen or twenty inches deep. At about the time plaintiff crossed the bridge in question going north, the defendant was coming south on his motorcycle and at this point passed plaintiff when plaintiff’s horse became frightened, jumped to the right of the road, ran the buggy into the ditch above described, and threw the plaintiff and his wife from the buggy and injured plaintiff, to recover damages for which injury this suit was brought. It was claimed by plaintiff that at the time defendant passed him that he was driving his motorcycle at a speed of from twenty-five to forty miles an hour, aud that just about the time defendant was opposite the horse of plaintiff defendant sounded his whistle or gong and frightened the horse and caused it to throw the buggy into the ditch. The defendant denied that he was running his motorcycle at an excessive speed or that he blew the whistle when opposite plaintiff’s horse, and denied that he did anything to frighten the horse.
    The declaration consisted of two counts. The first count charged that the defendant operated and drove his motorcycle outside the limits of any incorporated city, village or town at a rate of speed that exceeded twenty-five miles per hour, and which rate of speed was thep and there greater than was then and there reasonable and proper, and so as to endanger the life and limb of the plaintiff, and contrary to the form of the statute in such case made and provided, and in consequence thereof frightened plaintiff’s horse and caused it to jump to the right side of the highway, and by means thereof the buggy was thrown into the ditch, overturned and injured plaintiff, and alleged that plaintiff was at that time in the exercise of due care for his own safety.
    The second count alleged that the defendant carelessly, negligently, improperly and wrongfully operated, used and drove and rode the said motor bicycle or motor vehicle, that the sqid horse became frightened, overturned the buggy and injured plaintiff. To this defendant filed a plea of general issue. The evidence of the plaintiff was that defendant was driving his motorcycle upon the public highway, which was narrow, with a ditch eighteen or twenty inches Seep on one side of it, at a speed from twenty-five to forty miles per hour, and that just as defendant came opposite the head of plaintiff’s horse that he sounded his whistle which made an uncommon noise, scared plaintiff’s horse and caused it to' overturn the buggy and injure plaintiff. He was corroborated to some extent by a witness who said: “It was not long after I heard the whistle, a second or two, until I heard the noise of the buggy turning over. When I looked around the buggy was turned over in the fence.” Defendant said he did not blow the whistle at that time, hut that the last time that he blew it was on top of the hill about the distance of one hundred fifty yards from where the injury occurred. Defendant was corroborated in his statement by the testimony of a witness who said he heard him blow the whistle at the top of the bill, but that he did not blow it any more.
    Abstract of the Decision.
    1. Negligence, § 191

      —when question of fact. Questions of negligence and due care are matters to be determined by the jury under proper instructions of the court.
    2. Automobiles and gabages, § 2

      —when finding as to excessive speed sustained. In an action for damages by the owner of a horse and huggy for personal injuries received as a result of the frightening of the horse hy a motorcycle while on the public highway, evidence held to sustain a finding that the driver of the machine was operating it at a rate greater than was reasonable and proper, having regard to the traffic and the use of the way, and so as to endanger the life and limb of another.
    3. Automobiles and gabages, § 2

      —when liable for frightening horse. The driver of a motorcycle who operates his machine along the public highway at a speed greater than is reasonable and proper when approaching the driver of a restive horse at a narrow part of the highway, and alongside of which is a ditch eighteen or twenty inches deep, and sounds his whistle, making an uncommon noise, is liable for injuries sustained hy the driver of the horse as a result of the horse becoming frightened and overturning the buggy in the ditch, the driver of the horse exercising due care for his own safety.
    Spieler & Miller and Moses Pulverman, for appellant.
    B. W. Pope and G. A. Hickman, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Rudolph Stecher Brewing Company, Appellant, v. John E. Carr, Appellee.
    1. , Evidence, § 472

      —when proof beyond a reasonable doubt required in civil cases. Where the defense of compounding a crime is relied upon to defeat the plaintiff’s claim, the burden of proof is upon the defendant to prove the criminal offense alleged beyond a reasonable doubt.
    2. Compounding felony,—what does not constitute. The mere acceptance of money or property in an amount sufficient to compensate the private injury is not of itself sufficient to constitute the offense of compounding a crime.
    3. Contbacts, § 132

      —when illegality as compounding felony not established. In an action against the maker and indorser of a check given in settlement of two other checks, held that an agreement to compound the crime of “confidence game” was not established beyond a reasonable doubt.
    4. Compounding felony,—what does not constitute. The mere consenting that a defendant go upon his own recognizance does not amount to the compounding of a crime.
    Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Hosea V. Ferrell and William H. Warder, for appellant.
    George W. Sawyer, for appellee.

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

   Mr. Presiding Justice McBride

delivered the' opinion of the court.

Judgment was rendered in the court below against appellant, to reverse which judgment this appeal is prosecuted.

It appears from the record in this case that at some time prior to February 28, 1913, Frank Sarafin was indebted to appellant for beer purchased and had executed to appellant two checks, one for $200 and one for $300, which had not been paid, and at the date aforesaid aggregated $502.32, the amount of the check in question; that prior to said date an attorney by the name of Isaac K. Levy had received from appellant these checks and had determined, as he said, that the said Sarafin was guilty of the crime of confidence game in giving such checks; that after consulting with the State’s Attorney of Williamson county a complaint was filed charging Frank Sarafin with the crime under the statute known as the “Confidence Q-ame.” He was arrested and brought before R. O. Deason, a justice of the peace, for examination on February 28,1913. At that time the said Levy represented the People and John E. Carr represented Mr. Sarafin. At this time Sarafin waived examination, entered into his personal recognizance for appearance at the next term of the Circuit Court of Williamson county and gave the Rudolph Stecher Brewing Company his check for $502.32, which was indorsed by the appellee, John E. Carr. The check was presented in the usual course of business for payment, protested, but such check was not paid by either Sarafin or appellee, and this suit was instituted against the appellee to recover the amount of this check. The case was tried before the judge without a jury and resulted in rendering judgment against the appellant for costs.

The declaration contained a special count declaring upon the check and also the common counts, but before the conclusion of the case the special count was withdrawn and the case proceeded to trial upon the common counts. The defendant filed the general issue and three special pleas. The first special plea denied liability because of failure to give appellee, as indorser, notice of the non-payment of the check as required by statute. The third and fourth pleas aver, in effect, that the check was given for the compounding of a felony, and was therefore void.

It appears from the propositions submitted to the trial court that the issue as disclosed by the first special plea was found in favor of the appellant, and that the cause was determined against the appellant upon the second and third special pleas. The court held that the check in question was given for the compounding of the crime of confidence game and therefore void.

The pleas upon which the court found the issues for the appellee aver a criminal offense, to wit, that of compounding a crime, which, if proven, would subject the offender to a fine of double the value of property received. We think that the law is well settled in this State that where the defense of compounding a crime is relied upon to defeat the plaintiff’s action that then the burden is upon the defendant to prove the criminal offense alleged beyond a reasonable doubt, and that it is not sufficient that it be proven by a preponderance of the evidence. Germania Fire Ins. Co. v. Klewer, 129 Ill. 599; Grimes v. Eilliary, 150 Ill. 146.

The mere acceptance of money or property in an amount sufficient to compensate the private injury is not of itself sufficient to constitute the offense of compounding a crime. It is provided by section 43 of chapter 38 of the Revised Statutes (J. & A. If 3543) that: “Whoever takes money, goods, chattels, lands or other reward, or promise thereof, to compound any criminal offense, shall be fined in double the sum or value of the thing agreed for or taken; but no person shall be debarred from taking his goods or property from the thief or felon, or receiving compensation for the private injury occasioned by the commission of any such criminal offense.”

The evidence in this case discloses, and it is not disputed, that Frank Sarafin was at that time indebted to appellant, as one of the witnesses said, in a greater amount than $502.32. Giving to this law the most favorable construction for the appellee, it must appear from the evidence, beyond a reasonable doubt, that there was an agreement entered into by the agent of appellant not to prosecute the criminal offense and that the check was given in consideration of this promise. Does it appear from the evidence beyond a reasonable doubt that such an agreement was entered into! It was testified by the appellee, John E. Carr, that he, “Mr. Sarafin, and Mr. Levy, walked out to one side of the office and had some talk, and finally it was arranged that Sarafin should sign the check and I would indorse the check, and that he would be released on his own recognizance, and Levy said, ‘that will be the end of it, of course, we will do nothing more to it.’ ” On cross-examination he says: ‘ ‘ This conversation was outside of the railing surrounding the magistrate’s desk. We went out and agreed upon this proposition and came back and I took a check; we didn’t sit down.” This is the only evidence that any such conversation was had or statement made by Mr. Levy. Mr. Levy denies emphatically that he had any such conversation, and denies that he told Carr, “that will be the end of it, of course, we will do nothing more to it”; and denies that he went outside of the railing surrounding the magistrate’s desk in company with Carr or Sarafin; and denies that he had any conversation with them outside of the railing surrounding the magistrate’s desk, and in this he is corroborated by the sheriff, C. E. White, in which he says: “At the time Mr. Carr and Mr. Sarafin were talking on the outside of the railing, Mr. Levy was on the inside of the inclosure. He did not talk with Mr. Sarafin on the outside of the inclosure, nor did he talk with Mr. Sarafin and Mr. Carr on the outside of the railing, nor did he talk with Mr. Carr on the outside of the inelosure.” This witness says that he had Sarafin in charge and that he could see Sarafin and Carr all the time, and further says: “I remember watching Mr. Sarafin when he went to talk with Mr. Carr as that was my business. I could see Sarafin and Carr all the time, and Mr. Levy did not talk with them. Sarafin and Carr came back in the inclosnre together. After they had their conversation and came back I didn’t see Mr. Levy and Mr. Carr have any talk.” This witness further says: “After they (Sarafin and Carr) came back from the conversation something was said about giving a check for $100 and Mr. Levy said, ‘Why not give one check for the whole amount!’ and he said, ‘All right.’ I didn’t pay particular attention to the conversation as to the amount of money that was involved. I understood from their conversation and the check that was given, that Mr. Sarafin was settling a debt for the two checks that were involved in the charge preferred against him for confidence game.” The testimony of the Justice of Peace, E. O. Deason, tends to corroborate the statements of Mr. Levy in this matter. True, he.says that Levy and Carr had a conversation in his office but he did not understand what they said, but he also says that: “It was Mr. Carr and Mr. Sarafin who went around back by the door that leads to the rear room and then they came back in the rail. Mr. Levy was standing just in front of my desk. He talked with Mr. Carr and Mr. Sarafin just before they went outside of the rail, and when they came back they talked again.' I don’t think Mr. Levy went outside of the rail and talked with Mr. Carr and Mr. Sarafin, but they might have stopped by the gate that leads into the office, all three of them, and perhaps the sheriff with them. If they had a conversation about that matter, I don’t know what passed between them.” It appears to us that the preponderance of the evidence as to the conversation and the place where Carr says it occurred is with the appellant, and that it is very far from being proven beyond a reasonable doubt. Carr is an interested witness and the record does not disclose that Levy or White have any financial interest in the result of this suit.

It is further contended that it appears from the evidence that Mr. Levy consented to the defendant going upon liis own recognizance. There is evidence tending to show this fact. He claims, however, that this all occurred after the check was given. It appears at all events that before Sarafin was released the State’s At-' torney was consulted and the justice of the peace concluded that he would in good faith appear at court, and permitted him to go upon his own recognizance; but even if Levy did consent that he might go upon his own recognizance, and did not agree that Sarafin would not be prosecuted further, this would not be sufficient to defeat this action, for the mere consenting for the defendant to go upon his own -recognizance would not be the compounding of a crime. We think it is quite clear from this evidence that the check in question was not given as a reward for not prosecuting, but was rather in payment of the debt, and that if consent was given that he might go upon his own recognizance it was a mere incident and would not of itself be sufficient to warrant a court in saying that it was compounding a crime. It is said by our Supreme Court: “The rule is well settled that such a note is illegal, but here the note was given, not as a reward for not prosecuting, but for a debt due from Ford to Furch, and that being the only and true consideration, it is not like a note given simply to prevent the prosecution for a misdemeanor or felony. That would be a different question; nor is any question before us whether Furch and his attorney incurred any liability by using the criminal process to influence Ford to give the note with security.” Ford v. Cratty, 52 Ill. 313. We have examined the authorities cited by counsel for appellee and find that most of them are either cases where no debt existed and the money paid was given as a reward for not prosecuting, or that the obligations were secured under duress, and as no such questions arise in this case, we do not deem these authorities as applicable.

There were several propositions of law and fact submitted to the court upon the hearing, but all of them except the ones involved in the question here determined were held for the appellant, and as to those not so held this opinion fully disposes of the questions -therein proposed.

We are of the opinion that the court erred in holding under this evidence that the check in question was given for the compounding of a crime and in rendering judgment against the appellant for costs. The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.