text:
    Carrie Smith, Appellee, v. Ernest Mammen, Appellant.
    1. Pleading—upon what recovery must he predicatedi A plaintiff in an action for malpractice must recover if at all upon the charges in her declaration and although other wrongful acts or other acts of negligence may be disclosed by the evidence, they cannot be recovered for.
    2. Verdicts—when set aside as against the evidence. While it is ordinarily the province of a 'jury to determine the questions of fact and while the vital point as to the right of recovery may depend wholly upon a question of fact, the jury must determine that fact in accordance with the weight of the evidence, but if they utterly disregard the weight and preponderance of the evidence, it is the duty of the Appellate Court to set the verdict aside.
    Appeal from the Circuit Court of McLean county; the Hon. Oolostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 20, 1911.
    Rehearing denied and opinion slightly modified December 9, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Welty, Sterling & Whitmore, for appellant.
    Stone, Oglevee & Franklin, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

On July 5, 1908, appellee, who resided in Blooming-ton, was suffering from an ailment, and called Dr. Rhodes. Upon his first visit, the doctor was nnable to satisfy himself as to the canse of her condition; a more thorough examination on July 6 convinced him that she was suffering from a case of extra-uterine pregnancy, and this was indicated by a lump or growth in the region of the right Fallopian tube; he also found a lump on the right side near the colon which he concluded indicated an impaction of the bowels. Appellee was placed in charge of Ellen Charles, a graduate nurse, and from that time until July 30, Dr. Rhodes attempted to remove the impaction of the bowel and restore it to its natural condition. For this purpose, appellee was given one hundred and eighteen doses of physic of various medicines calculated to produce the desired results, also twenty-three rectal injections. These produced passages of the bowels, but not adequate and her condition did not improve. On July 30 a consultation was had, Dr. Rhodes, Dr. Smith and Dr. Mammen participating, it having been previously determined between Dr. Rhodes, appellee and her husband that if an operation was necessary Dr. Mammen, appellant, should perform it. The consultation of July 30th resulted in the determination by these physicians that Dr. Rhodes’ diagnosis of the case was correct, and that an immediate operation was necessary. Accordingly, appellee was taken to the Brokaw Hospital in Bloomington and at five-thirty p. m. on July 30 the operation was performed. Before proceeding with the abdominal operation, Dr. Mam-men curetted appellee and after the curettment the vagina, the walls of the uterus and the cul-de-sac between the uterus and the wall of the rectum were packed with hospital sponges for the purpose of taking up and absorbing any secretions that might be caused by reason of the abdominal operation to be performed, and also to hold the womb in place. One of these sponges was left protruding from the vagina. In performing the abdominal operation, Dr. Mammen was assisted by Dr. Rhodes, Dr. Charles Chapin and Dr. E. B. Iiart, and two professional hospital nnrses, Miss Alice Hopping and Miss Marie Bolles. Dr. Chapin administered the anaesthetic, Miss Hopping prepared and handed the instruments to Dr. Mammen, and Miss Bolles, now Mrs. Struhbar, had the care, preparation and handling of the sponges; they were counted by her before the operation was commenced; she alone handed them to Dr. Mammen while he was performing the operation, and received them back from him. After the incision in the abdomen was made by Dr. Mammen, the sponges prepared by Mrs. Struhbar were- used to take up by absorptions the blood and secretions in the abdomen and were also placed in the abdomen for the purpose of holding the intestines and the walls of the abdomen away from the operation. In keeping the intestines and the walls of the abdomen back Dr. Mammen was assisted by Dr. Rhodes and Dr. Hart, who held the instruments attached to the sponges for this purpose. After the incision was made it was discovered that the diagnosis made by Dr. Rhodes was correct and a foetus was found in the right Fallopian tube and the growth or mass of which it was composed was in a friable condition and the foetus dead. Dr. Mammen removed the section of the right Fallopian tube which was so infected. He also found adhesions of the bowels in numerous places, together with an impaction of the colon near the point of pregnancy. The adhesions were broken, the wound was thoroughly dressed and cleansed and closed, with the exception of a tube left in the abdomen for drainage. The sponges which were used for this abdominal operation were counted before the operation by Mrs. Struhbar who had them in charge and also after the operation was performed, and she testifies that no sponges were missing. Appellee was removed to her room in the hospital where she was visited day after day for some time by Dr. Mammen and Dr. Rhodes; she remained in charge of Miss Ellen Charles until she was removed to her home. On the morning after the operation Dr. Mam-men telephoned to Miss Charles, to remove the sponges from the vagina. Miss Charles with a pair of tissue forceps removed the sponge or gauze which had been left protruding from the vagina; she took but one sponge therefrom. If any other sponges were packed in the vagina, the cul-de-sac or the uterus they were not removed by Miss Charles. On the eighth or ninth day after the operation, appellee’s temperature indicated an infection of the wound, and Dr. Rhodes and Dr. Mammen then inserted a glass tube and from this tube was discharged nearly a pint of pus, which showed that the wound had become infected. After the removal of this pus the temperature lowered and the patient thereafter gave no indication of any further trouble from this operation. The wound healed and the drainage tube was removed. Soon after or about the time the appellee left the hospital, she inquired of her physicians if she could go to the State of Massachusetts for a visit; she was advised not to undertake the trip; she then requested, and on August 27, was permitted to go to Fairbury to visit her sister. While there, she ate such food as they prepared for their table. After the first week at Fairbury, appellee began to suffer with pains in the abdomen and was nauseated. On September 8 they became severe and Miss Charles, the nurse, was called to Fairbury to attend her, and appellee returned to Bloomington September 10. Dr. Rhodes was again called and after attending appellee about one week in endeavoring to secure a passage of her bowels and to remove what he considered an impaction produced by constipation. Dr. Chapin was again called in consultation and the trouble was then pronounced by these two physicians to be an impaction of the bowels. On September 23, appellee says, she was comparatively free from pain and was up nearly all day. On that day, after an attempt by Miss Charles to give her a rectal injection, but which was interrupted by appellee by reason of the pain complained of, she was assisted to the closet and placed upon a slop jar where she remained for a few minutes; when she left the jar Miss Charles discovered in it a gauze sponge, introduced in evidence as plaintiff’s exhibit “A.” It is insisted by appellee that the sponge passed from her rectum and that the same had been left in her abdomen by Dr. Mammen at the time of the operation, and this action is brought to recover damages therefor.

This cause has been tried three times; the first trial resulted in a verdict for plaintiff for $1,500; this was set aside by the trial court and a new trial awarded; the second trial resulted in a verdict for plaintiff for $2,500 and on appeal to this court that judgment was reversed for errors of the trial court in admission of evidence (158 Ill. App. 360). The last trial, from which this appeal is prosecuted, resulted in a verdict and judgment against appellant for $1,500.

At the close of all the evidence appellant entered a motion requesting the court to direct a verdict for the defendant; this motion was denied and the instruction refused.

Numerous grounds are urged by appellant why this judgment should be reversed, alleging errors of the trial court in the admission and rejection of evidence, in the giving and refusing of instructions, and in the denial of the motion to direct a verdict. From the conclusions that this court has arrived at, it is unnecessary for us to determine the errors assigned upon the admission and rejection of evidence or the refusal and the giving of instructions, except the one to find the defendant not guilty.

There is virtually no dispute in the evidence as to the condition of appellee before the operation, or that the operation was necessary to save her life. No one was present at the operation but Dr. Mammen, the appellant, Dr. Chapin, Dr. Bhodes, Dr. Hart, Miss Bolles, now Mrs. Struhbar, and Miss Hopping, now Mrs. Diers. The testimony of all these persons is that no sponge of the size or thickness of plaintiff’s exhibit “A” was used in any manner in connection with the abdominal operation upon appellee. The testimony of Mrs. Struhbar is that she counted the sponges both before and after the operation. Mrs. Diers also testified that the sponges were counted both “in” and “out” by Mrs. Struhbar, and that she had entire charge of handling them. These witnesses all testified that after the operation of curettment, the cul-de-sac and the uterus were packed with sponges, that one long sponge was packed in the uterus and was left protruding from the vagina; that this sponge consisted of long, narrow strips of gauze sewed together. Upon the question as to where the sponge found in the slop jar, being plaintiff’s exhibit “A,” came from at the time it dropped into the slop jar, plaintiff is wholly dependent upon her own testimony; and unless it can be said that her sole testimony, together with the circumstances and conditions shown, establishes the allegations of her declaration, that this sponge was left in the abdominal cavity at the time of the operation, and that she passed it from her rectum while on the slop jar, then this judgment cannot be permitted to stand. The testimony of Miss Charles, the nurse, does not disclose where the sponge came from, and all the proper evidence that she could give regarding it was the circumstances and conditions as she'noticed them. Plaintiff offered a great number of physicians and surgeons as expert witnesses for the purpose of showing that a foreign substance such as a sponge if left in the abdominal cavity might, and, under certain conditions, the tendency would be that it would become encyst, slough through the bowels and pass out the rectum. Upon the question as to whether this might or might not happen, there is no dispute in the evidence ; all the doctors who testified upon that question seem to agree that such a condition might be brought about but all testified upon cross examination that with the conditions that this record shows existed, with a tube left in the abdomen by Dr. Mammen for drainage, and after a few days this tube removed, and upon the eighth or ninth day after the operation when the wound began to show indications of infection a tube was inserted and the wound found to be septic and infected, and a glass tube inserted through which nearly a pint of pus was drawn from the appellee’s abdomen, but that thereafter every indication of pus disappeared and the wound healed and there was no further indication of pus or infection,—in their opinion that if such condition existed and the wound healed in the manner described, then no foreign substance could have been left in the abdomen at the time of performing the operation, for the reason that if the wound was septic any foreign substance left in the abdomen would have become infected and there was hardly a possibility that the wound could have healed under such conditions. Some 'ten or twelve physicians as expert witnesses testified on behalf of defendant that the healing of the wound without being followed by fever or temperature and no indication of pus or infection after draining the pus through the glass tube showed a condition that rendered it impossible for any foreign substance to have been enclosed in the abdomen at that time. These facts, taken with the uncontradicted testimony on the part of the four doctors and two nurses, that no such sponge was used in the abdominal operation and that other sponges than the one which was left protruding from the vagina were used in packing the cul-de-sac and between the uterus and the walls of the rectum for the purpose of absorbing any secretions that might be produced and for keeping the womb in position, with the testimony of Miss Charles, the nurse in charge, that when directed to remove the packing from the vagina, she did not remove anything excepting the one sponge which protruded therefrom, forces us to the inevitable conclusion that the sponge found in the slop jar passed from the vagina and not from the rectum of appellee. A careful examination of the testimony of these experts can only lead a reasonable mind to the conclusion that this sponge was not left in appellee’s abdomen by appellant or those who assisted him in this operation.

The declaration filed by appellee contains no charge of negligence other than that in the performance of the abdominal operation appellant negligently and carelessly left this sponge in the abdominal cavity of appellee, and in order to recover upon this declaration it was necessary for the plaintiff to prove this charge of negligence by a preponderance of all the evidence, and even if the sponge was left in the vagina for any undue length of time or any inconvenience or pain was caused to the plaintiff by reason of the sponge in that cavity, there can be no recovery under this declaration. Plaintiff must recover, if at all, upon the charges in her declaration and although other wrongful acts or other acts of negligence might be disclosed by the evidence, they cannot be recovered for in this action. While it is ordinarily the province of a jury to determine the question of fact and while the vital point in this case and the right of recovery depends wholly upon a question of fact, the jury must determine that fact in accordance with the weight of the evidence, and if they utterly disregard the weight and preponderance of the evidence, then it is the duty of the court to set aside the verdict. Without considering the question of the expert evidence in this record, we find that the evidence of the plaintiff is completely refuted and contradicted- by the testimony of the four physicians and two.nurses who saw this operation and there is no reason, so far as this record discloses, why her testimony should be given any more weight than that of the other witnesses who testified in regard to the conditions that are shown to exist, and from the evidence in this record it is more reasonable to arrive at the conclusion that the plaintiff is mistaken in her conclusions as to where this sponge was passed from than it is to arrive at the conclusion that the testimony of these four doctors and two nurses is wilful perjury. The testimony of nearly every physician testifying in this case, either on behalf of plaintiff or defendant, is that pregnancy causes more or less constipation and that it is the natural result of that condition, and that extra uterine pregnancy is more likely to produce that condition and render it more effective on account of the greater pressure produced upon the bowels by reason thereof. The evidence of the four physicians and the two nurses that no such sponge was used in the abdominal cavitv or in the operation connected therewith, in connection with the testimony of the expert physicians that in their opinion if this wound healed after the insertion of the tube and the withdrawing of the pus on the ninth day after the operation without any further infection or indication of a septic condition, then no foreign substance was left in the abdomen, is so clearly against the finding of the jury that we are compelled to hold that the jury did not carefully weigh and consider the whole evidence, and to hold that the verdict and judgment are contrary to the evidence and must be set aside, and the clerk of this court will enter in the judgment herein a finding that the appellant is not guilty of the charge of negligence made against him by appellee in her declaration.

The judgment is reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    John Wohlford, for use of Bruce=Surles Company, Appellee, v. Wabash Coal Company, Appellant.
    1. Exemptions'—how statutes construed. Statutes giving exemptions to a debtor are to be liberally construed in his favor.
    2. Exemptions—when employer entitled to malee deductions from wages. An agreement by a debtor with his employer that such employer might deduct from his wages whatever sum might be due for supplies furnished, is valid and may be enforced by the employer as against a garnishing creditor.
    3. Exemptions—what cannot he deducted from, as allowed hy statute. Amounts which the employer has authority to deduct from the wages due to the debtor should not in turn be deducted from the amount of the exemptions allowed by statute.
    Appeal from the County Court of Sangamon countj; the Hon. J. B. Weaver, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 20, 1911.
    John C. and John P. Snigg, for appellant.
    Alonzo Hoff, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

The Bruce-Surles Company on April 5, 1910, recovered a judgment against John Wohlford, before a justice of the peace in Sangamon county, for $52.10. Execution was issued on this judgment and returned nulla bona. In November and December, 1910, John Wohlford, the judgment debtor, was in the employ of the Wabash Coal Company. Demand was made, under the provisions of the statute, for payment on this judgment of all wages due Wohlford in excess of an exemption of fifteen dollars per week; this demand was made November 29, 1910, garnishment proceedings were instituted, and defendant served as garnishee, December 3,1910; its answer disclosed that settlements were made with Wohlford on the fifteenth and thirtieth of each month; that the last settlement was made on November 15, 1910, and from November 15 to December 3 Wohlford earned $47.50; its answer also disclosed that defendant furnished supplies, groceries, merchandise, etc., from a store kept by it, to John Wohlford to the amount of $19.07, and that in and by the contract of employment between Wohlford and defendant it was agreed that defendant should deduct from the wages earned by Wohlford whatever sum should be due it for supplies so furnished; defendant claimed this amount as a set-off and answered that when summons was served, it was indebted to Wohlford in the sum of $28.43; that Wohlford was the head of a family and was living with his family and claimed for him an exemption of fifteen dollars per week for two weeks.

Upon the facts as above set forth, the trial court, upon motion of the Bruce-Surles Company, for whose use this proceeding was instituted, directed the jury to return a verdict against defendant for $17.50, upon which judgment was rendered.

The abstract does not disclose what the judgment of the court was with reference to costs, and as no complaint is made we presume the only judgment rendered against defendant was for $17.50.

Defendant prosecutes this appeal and insists that the court erred in directing the verdict of the jury, claiming that as against this garnishment proceeding Wohlford was entitled to $30 exemption, and as the answer only showed an indebtedness from defendant to Wohlford of $28.43, defendant should have been discharged. The Bruce-Surles Company, however, insist that the $30 exemption allowed Wohlford by virtue of the statute should include the $19.07 claimed by defendant as a set-off for groceries and supplies, and that Wohlford, as against the $28.43 shown to be due him by the answer, was only entitled to claim as exempt the difference between $19.07 and $30 or $10.93, which left a balance in the hands of the garnishee of $17.50, the amount for which judgment was rendered.

The only question presented is whether the judgment debtor is entitled to the full exemption of $30 as against this garnishment proceeding, or whether the $19.07 should he included in the $30 exemption allowed. We have been cited to no authority, and have been able to find none, wherein this question has been determined, and the solution of the question depends wholly upon the construction of the statute.

The statute is not only for the benefit of the debtor, but the family dependent upon him; and the uniform rule is that statutes of this character must he liberally construed.

That it was the duty of the garnishee to protect the judgment debtor in his claim for exemption is fully established by authorities of this state, and the failure to do so would cause the loss to fall upon the garnishee. C. R. I. & P. R. R. v. Mason, 11 Ill. App. 525; C. & A. R. R. v. Ragland, 84 Ill. App. 375; Welker v. Hinze, 16 Ill. App. 326.

While the law looks with favor upon an equitable distribution of the assets of a debtor among his creditors, the fact cannot he ignored that a debtor may prefer one creditor to another where the right of such creditor to the preference is clearly established; and a preference made in good faith will he protected, Friedman v. Lesher, 198 Ill. 21; Cooper v. McClun, 16 Ill. 435.

The fact that a debtor may not be able to immediately pay all of his just debts does not deprive him of the right to make a preference as to which creditor he will pay from whatever funds may be available to him for that purpose, and the agreement made between Wohlford and defendant, as disclosed by the answer, that whatever groceries, provisions, etc., were purchased from defendant should be deducted from "Wohlford’s wages, was a valid agreement and independent of the statute gave defendant the right to make such deduction from his wages. Section 13, chap. 62, Garnishment (Hurd’s R. S., 1909) is:

“Every garnishee shall be allowed to retain or deduct out of property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-off on a trial or by the set-off of judgments or executions.” Finch v. Alex. County Nat. Bank, 65 Ill. App. 337.

Section 14, same chapter, is:

“The wages for services of a wage earner who is the head of a family and residing with the same, to the amount of fifteen dollars per week, shall be exempt from garnishment. All above the sum of fifteen dollars per week shall be liable to garnishment.
“Every employer shall pay to such wage earner such exempt wages, not to exceed the sum- of fifteen dollars per week of each week’s wages earned by him when due, upon such wage earner making and delivering to his employer his affidavit that he. is such head of a family and residing with the same, notwithstanding the service of any «writ of garnishment upon such employer, and the surplus only above such exempt wages shall he held by such employer to await the event of the garnishment suit. ’ ’

It would neither be within the spirit or the letter of the statute to permit the Bruce-Surles Company to assert that because defendant had the right to deduct $19.07 from the wages due Wohlford that Wohlford must have that amount taken from the exemption allowed him by statute.

Wohlford had the undoubted right to pay from his wages any indebtedness which he saw fit, so long as he committed no fraud and violated no law in so doing, and the fact that he may have preferred to pay a certain indebtedness and retain the balance of his wages under the exemption allowed is no reason why he should be compelled to take the amount which he had paid upon this preferred claim from the exemption permitted him under the statute as against a garnishment proceeding.

Section 13, supra, was evidently intended to give to the judgment debtor the exemption against any garnishment proceeding. Section 14 evidently means that only the wages due him in excess of the exemption, after all proper deductions have been made, can be reached by garnishment, and if no more than the amount of the exemption is due, the debtor can claim that amount against a garnishment proceeding.

A creditor can be placed in no better position than the judgment debtor by reason of the garnishment proceeding, and had this been an action brought by Wohlford as against the Wabash Coal Company for the amount of wages due him he could only recover $28.43, the amount due after allowing to the defendant company its credits and set-offs. We are of the opinion that the judgment debtor was not required to take as a part of his exemption the amount which had been retained by defendant as a set-off; and the trial court erred in holding that as against this garnishment proceeding the judgment debtor was only entitled to the balance of the exemption which would have been due him had not the defendant retained its set-off, and the court erred in directing the jury to return the verdict it did and in rendering judgment thereon.

There being no dispute of the facts in this record, and only a question of law to be determined, the judgment of the trial court is reversed.

Reversed.


author: . Mr. Presiding Justice Philbrick

text:
    Bertha Pfohman, Administratrix, Appellee, v. Chicago & Alton Railroad Company, Appellant.

      Instructions-—what essential where verdict is directed. Where an instruction directs a verdict upon the proof of certain facts it must be accurate and contain all of the essentials necessary to be maintained by the plaintiff in order to entitle a verdict.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. ColostiN D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 20, 1911.
    Rehearing denied November 7, 1911.
    Bracken & Young, for appellants; Silas H. Strawn, of counsel.
    Jacob P. Lindley and De Mange, Gillespie & De Mange, for appellee.
   . Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff* as administratrix to recover damages for the death of her husband who was employed as a switchman by the defendant company. Trial below resulted in a verdict against defendant for $3,500, on which judgment was rendered, and from which this appeal is prosecuted/

The declaration contains five counts, alleging in various forms negligence on the part of the defendant in failing to keep and maintain its yards at the point where the death of plaintiff’s intestate occurred in a reasonably safe condition for the performance of his work. One specific charge is that the defendant did not keep its switch and main tracks ballasted’so that the same was level and free from holes, etc., but, on the contrary, permitted holes to be and remain between the ties and permitted its ties to extend above the surface of the ground and that by reason thereof plaintiff’s intestate, in performing his duties, caught his foot, in attempting to adjust a coupling or replace a coupling pin, and that by reason thereof he was run over and killed. Another specific charge of negligence is that at the point where plaintiff’s intestate was killed, that a switch had been constructed and a stand erected and that at the points where the stand was connected with the switch points by means of brindle bars the ties were placed and permitted to remain such a1 distance apart that the brindle bars did not fill the space between the ties and that this'space between the ties were not filled with ballast or cinders to the level of the ties and that by reason thereof left a space sufficient for plaintiff’s intestate’s foot to be caught between the brindle bars and the ties and in the hole or excavation so permitted to be there.

The declaration avers that plaintiff’s intestate, in the performance of his duties, and in the exercise of due care and caution for his own safety, caught his foot and was thereby held fast and by reason thereof was run over by defendant’s cars and died as a result of the injuries.

Defendant insists upon a reversal of this judgment for the reason that it is contrary to the law and the evidence, that the evidence is not sufficient to support the judgment, that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions.

One of the defenses insisted upon hy defendant and which from the evidence and the circumstances proven by this record is involved in this case is, that of assumed risk of plaintiff’s intestate, and upon this question the defense insists that the giving of the second instruction requested on behalf of plaintiff was such error as to require a reversal of this cause.- The declaration alleges in proper and apt averments the employment of the deceased, the operation of the railroad by the defendant, the exercise of due care and caution on the part of plaintiff’s intestate and the negligence of the defendants in the particulars hereinbefore stated and the death of plaintiff’s intestate, together with proper averments as to recovery. Neither the declaration nor any count thereof in' any manner makes any averments in regard to the assumption of risk hy plaintiff’s intestate. The first instruction given on behalf' of plaintiff informed the jury that if plaintiff had proven her declaration, then it was the duty of the jury to assess the damages; this instruction told the jury that nothing was necessary hut the proof of the allegations of plaintiff’s declaration, and in doing so the instruction wholly ignored the question of assumed risk, which is one of the elements necessarily involved in this case. The court, at the request of the plaintiff, also gave to the jury the following instruction :

“You are instructed that, if hy a preponderance of the evidence and under the instructions of the court the plaintiff has proved her declaration, then she is entitled to recover such an amount of damages as you may believe from the evidence and under the instructions of the court will compensate her and her children for the pecuniary loss, if any, as shown by the evidence, which she and they may have suffered on account of the death of her husband.”

This instruction also ignores the question of assumed risk, and directs a verdict for the plaintiff if the jury believe from a preponderance of the evidence that the plaintiff has proven the averments of her declaration. This instruction violates the rule that where the instruction directs a verdict upon the proof of certain facts, the instruction must be accurate and contain all of the essentials necessary to be maintained by the plaintiff in order to entitle her to a verdict. The error in giving this instruction was not cured, and could not be cured by the giving of any other instruction. Krieger v. A. E. & C. R. R., 242 Ill. 544; Ill. Terra Cotta etc. Co. v. Hanley, 214 Ill. 243; I. C. R. R. v. Smith, 208 Ill. 608; Cromer v. B. C. Co., 246 Ill. 451.

The giving of these instructions was such error as to require a reversal of this cause; and the judgment is reversed and the canse remanded.

Reversed and remanded.


text:
    Harry Kilduff, Appellee, v. Consolidated Coal Company of St. Louis, Appellant.
    1. Mines and minees—when operator liable for failure to marie dangerous places. The statute is imperative that a mining company shall examine the mine each day and mark all dangerous places before permitting a miner to enter the mine for work, and any failure to discover a dangerous place which might be discovered by the exercise of reasonable care and caution on its part, or a failure to mark such condition with a conspicuous chalk mark so that a miner may be given positive knowledge of the dangerous condition, constitutes a wilful violation.
    2. Mines and miners—when operator liable for failure to furnish props. 'While it is the duty of a miner to set all props and to place all braces necessary to keep his room in a safe working condition, it is the duty of the operator to furnish these props, of sufficient number and length, whenever required or called for by the miner; and his failure to do so if injury results is a wilful violation which entitles a recovery.
    3. Mines and minees—what not defense to action charging wilful violation. Contributory negligence is not a defense to an action under the Mines and Miners Act charging wilful violation thereof.
    Action in ease for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed November 1, 1911.
    Brown, Wheeler, Brown & Hay, for appellant; Mastín & Sherlock, of counsel.
    Truman A. Snell and Jesse Peebles, for appellee.
   Mr. Presiding Justice Philbrick

delivered tlie opinion of tbe conrt.

Plaintiff was a miner working for tbe defendant company; bis room in tbe mine was known as Number 31, in tbe second left west entry. Tbis room bad been cut to tbe depth of about one hundred and twenty feet. On tbe day before tbe accident, plaintiff and bis “buddy,” one Kelly, had been working in this room. Four shots were fired in the room the evening before the accident. On the day previous to the accident, the mine examiner examined the mine under the requirements of the statute, and placed upon the face of the room the date, ‘ ‘ 6-2, ’ ’ meaning June 2. At that time, he also marked with a cross, a point where he considered it necessary for the plaintiff and his “buddy” to set a prop for the purpose of sustaining the roof, and this prop was, on that day, set. The shots fired on that evening knocked the prop, with one or more other props in the room, down. The mine was not operated in April and May; work was started about June first; in March before work was suspended, the roof for some distance back from the face of the mine had been marked as dangerous; those marks continued to remain there. On the morning of the accident, plaintiff entered the mine and proceeded to this room in which he had also worked in March; his “buddy,” Kelly, did not appear for work that morning. On entering the room alone, plaintiff discovered that the props had been knocked out, one was lying by the side of the track which was laid in the room for the purpose of hauling out the coal, another was upon a pile of “gob” along the track. Plaintiff made an examination of his room that morning and found upon the face of his room a mark made by the mine examiner at about four o’clock on the morning of June 3; this mark was “6-3.” When the mine examiner examined this room on June 3, and discovered that the props had been knocked out, and the old marks made in March -and also the marks of the previous day were still at the point where he had indicated on June 2 a prop should be placed, he made no further markings in that room on June 3. There had been no marks made on the roof since March. When plaintiff went to work on the morning of June 3, he proceeded to load some coal and “gob” into the car which was then in his room. About an hour after his entering the room he commenced to clean away the “gob” for the purpose of replacing the props which had been knocked out by the firing of the shots on the previous evening, and it was while removing the “gob” from the place where the mine examiner had indicated the props were to be set that a block of slate about five or six feet long and about that width and from twelve to eighteen inches thick fell on the plaintiff, dislocated his hip and ankle and otherwise severely bruised him. He was removed from the mine, sent to his home, and placed under the care of a physician; he was confined to his house some six or eight weeks, and brings this action to recover for those injuries, alleging wilful negligence on the part of the defendant in failing properly to mark a dangerous place in the mine, being the place in the roof from which the slate fell, and that by reason of the failure of the defendant to perform its statutory duty in this regard, plaintiff was injured. Plaintiff recovered a judgment for $1,500, from which defendant appeals.

Defendant insists on a reversal of this judgment upon the contention that the record does not disclose any wilful violation of the statute on the part of the defendant, and that the failure of the mine examiner to mark the roof as dangerous on the morning of June 3 was not the proximate cause of the injury, also upon the ground that the greater weight of the evidence discloses that at the time of the examination by the mine examiner, as required by law, the roof was not in a dangerous condition.

The statute is imperative upon the defendant mining company that it shall examine the mine each day and mark all dangerous places before permitting a miner to enter the mine for work, and any failure to discover a dangerous place which might be discovered by the exercise of reasonable care and caution on its part or a failure to mark such condition with a conspicuous chalk mark so that a miner may be given positive knowledge of the dangerous condition of the roof or place constitutes a wilful violation of the mining act, and while a miner may be guilty of contributory negligence in entering a mine, but for which the injury would not have occurred, such contributory negligence is no defense on the part of the mining company. Kelleyville Coal Co. v. Strine, 217 Ill. 516-28; Mertens v. So. Coal Co., 235 Ill. 540-48.

Where the negligence charged is a wilful failure to perform its duty in compliance with the provisions of the statute, it is incumbent upon the plaintiff to show by a preponderance of the evidence that the wilful failure of the defendant to perform its duty and comply with the statute was the proximate cause of the injury. The only charge of negligence in the declaration which constitutes a wilful violation of the statutes by the defendant is that the defendant failed conspicuously to mark the dangerous place alleged to have existed in the roof of this room, and that by reason of the failure to mark such place plaintiff was injured. If proof in this record is sufficient to sustain the charge that such failure to perform its duty was the proximate cause of the injury, then the plaintiff is entitled to recover. While it is the duty of a miner, under the law of this state, to set all props and to place all braces necessary to keep his room in a safe working condition, it is the duty of the defendant to furnish these props, of sufficient number and length, whenever required or called for by the miner. On June 2, the face of the room was marked by the mine exaipiner as having been examined by him on that date and a point indicated by a cross where plaintiff and his “buddy” should, for their own safety, set a prop, and the prop was set by them at the place indicated by the mine examiner. Although on the morning of the accident, June 3, the mine examiner discovered that this prop had heen removed or knocked out by the firing of the shots the night before, he did not re-mark the position where it was necessary to place props; the fact that plaintiff knew the conditions and testified that he discovered that the slate was loose and liable to fall did not relieve the defendant from its duty of marking the roof at this dangerous place and although plaintiff commenced to clear away the “gob” for the purpose of re-setting the two props which had been knocked out, although such act may have been contributory negligence, this would not bar a recovery if defendant was guilty of wilful violation of the statutory duty to mark a dangerous place and the wilful failure to mark the place was the proximate cause of the injury, and the question of what was the proximate cause was a question of fact to be determined by the jury. Mertens v. So. Coal Co., supra.

It was the duty of the mine examiner to re-mark the place where this loose slate was on the morning of June 3 when he discovered it was still in a dangerous condition, and from the evidence we are satisfied that the jury was warranted in finding the defendant guilty of the negligence charged in the declaration and that this negligence was the proximate cause of the injury.

The question of what was the proximate cause being the only question argued by appellant, all other errors assigned are considered waived.

There being no error in the record, the judgment is affirmed.

Affirmed.


text:
    Ethel M. Foster, Administratrix, Appellee, v. Homer Shepherd, Appellant.
    1. Instructions—when refusal to direct verdict upon particular count will not reverse. Where there is one or more counts in the declaration which are supported by the proof in the case and under which upon proof made plaintiff is entitled to recover it is not reversible error to refuse to instruct the jury to find for the defendant upon counts not supported by the evidence.
    2. Ordinary care—lohen allegations and proof not required. Where the death is caused by the discharge of fire arms in the hands of the defendant, and the declaration charges trespass vi et armis, it is not necessary to either aver or show due care on the part of the person killed.
    3. Pleading—when absence of allegation of due care cured. Failure to allege due care is cured after verdict where the defendant has not demurred to the declaration for that reason.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed November 1, 1911.
    John E. Jennings, Edward C. Craig and Henry I. Green, for appellant.
    W. K. Whitfield, E. E. Wright, Whitley & Fitzgerald and J. L. McLaughlin, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff to recover for the death of her husband who was killed by defendant on August 19, 1909, by a gun shot fired by defendant. The deceased was a cousin of the wife of defendant. The trial resulted in a verdict and judgment for $7,750, from which this appeal is prosecuted.

The declaration contains seven counts; the first count is in trespass and charges an assault and killing of the deceased by the firing of a gun shot by defendant ; the second, fourth, and fifth count's allege that the killing was unlawful, wrongful, wilful and malicious. The third, sixth and seventh counts are in trespass and allege an assault by negligently and carelessly firing a gun by the defendant upon and against the body of the deceased, by means whereof he was killed; the allegation that the shot was negligently and carelessly fired does not change the counts from trespass and is immaterial.

At the close of the evidence of the plaintiff and also at the close of all the evidence, defendant entered a motion to direct a verdict for the defendant, which motion was denied.

Defendant undertakes to justify the killing of deceased upon the ground that three or four nights prior to the 19th of August prowlers had been seen and heard around or near his residence and in the neighborhood in which he resided and who were supposed to be burglars, that deceased had heard of the prowlers and several days prior to the 19th of August had told some friends that they could have some fun frightening defendant by going to his residence and pretend-' ing to act the part of burglars, that defendant was a coward and would not hurt them. Defendant insists-that a few minutes before he fired the shots the shutters on his windows were rattled, and upon going to his bed room window in the second story of his home, he saw some one in his yard in a crouched position approaching the house, and believing it to be a burglar fired three shots from a revolver through the window screen, one of which took effect in deceased’s body.

Defendant urges as causes for reversal that the declaration is insufficient to support a judgment for the reason that it does not allege due care on the part of the deceased; that the court erred in the admission and rejection of evidence, in the giving and refusing of instructions; that the judgment is not warranted by the evidence; that the court erred in refusing to direct a verdict for the defendant; that the judgment is excessive; and also on account of alleged objectionable and prejudicial language by counsel for the plaintiff in his argument to the jury.

There is no direct evidence in this record to justify the charge of the second, fourth and fifth counts of the declaration, that the killing was wilful, wanton and malicious, and the only theory upon which a recovery could be had under either of these counts must be under the rule of law that the killing may be inferred to have been wilful, wanton and malicious where the facts show an utter and reckless disregard for human life, but the facts in this case will not warrant such a conclusion or presumption, and the court should have directed the jury to find the defendant not guilty upon these counts. The refusal of the court, however, to instruct the jury to do so is not such error as to require a reversal of the cause if there is sufficient evidence in the record to support any count in the declaration under which a recovery may be had. Where there is one or more counts in the declaration which are supported by the proof in the case and under which upon proof made, plaintiff is entitled to recover, it is not reversible error to refuse to instruct the jury to find for the defendant, upon counts not supported by the evidence. Scott v. Parlin, 245 Ill. 460.

If a recovery can be had it must be upon either the first, third, sixth or seventh counts of the declaration which allege a trespass vi et armis by the defendant. The proof shows that the deceased was killed by reason of a gun shot fired by defendant, and under this declaration it was not error to refuse to, direct a verdict.

Upon the contention of the defendant that neither the first, third, sixth or seventh counts alleges due care on the part of the deceased at the time he came to his death, we do not understand that where the death is caused by the discharge of fire arms in the hands of defendant, and the declaration charges trespass vi et armis, it is necessary to either aver or show due care on the part of the person killed, but that where the death is shown to have been caused by the discharge of fire arms, the result of which produces death, the burden of proof is then upon the party firing the shot to show justification for his act. Morgan v. Cox, 22 Mo. 373; Bullock v. Babcock, 3 Wend. 391; Atchison v. Dullam, 16 Ill. App. 42; Chiles v. Drake, 2 Met. (Ky.) 146. However, were it necessary in an action of this character to aver due care on the part of the deceased, it is a defect in the pleading; defendant did not demur to the declaration for this reason and stand by his demurrer, and having failed to do so, if the declaration otherwise states a good cause of action, the failure to aver due care, even if it would have been necessary in the first instance, is cured by the verdict. Gerke v. Fancher, 158 Ill. 375; B. & O. S. W. R. v. Then, 159 Ill. 535.

Upon the contention that the court should have sustained the motion of defendant and directed a verdict because there is no evidence in the case to support the allegations of a wanton, wilful and malicious act, and because the proof does not show.the defendant’s guilt beyond a reasonable doubt: Four counts of the declaration, the first, third, sixth, and seventh, do not allege that the act was wilful, wanton or malicious but that deceased was killed by the firing of the gun in the hands of defendant and. as to these counts it was not necessary that the plaintiff should prove her case beyond a reasonable doubt. Grimes v. Hilliary, 150 Ill. 141.

Upon the contention that the court erred-.in the admission and rejection of evidence to the prejudice of the defendant, the evidence that it is seriously contended it was error to admit on the part of the plaintiff is upon the question of the pecuniary loss to the plaintiff by reason of the death of her husband. Witnesses were permitted to prove his ability to work, the character of the work which he performed, and what it was reasonably worth. It is insisted by defendant that because it was developed from these witnesses that deceased was working as a manager for the estate of his deceased father, that he was not working for any salary or under any contract to receive compensation therefor, and because the evidence discloses that his management of the estate was a loss to the estate, that there is no proof of pecuniary loss to the plaintiff and that the damages recovered are excessive. Plaintiff, during the time of the management of this estate by deceased, procured her living and her support therefrom, and it was secured by reason of the work and services done and performed by deceased, and it was proper to admit proof as to what these services were reasonably worth, and the fact that by some act or series of acts or by mismanagement of the estate by deceased loss was occasioned to the estate or that he had not increased the value thereof during the time of his management did not render this evidence incompetent, and it was not error for the trial court to permit this evidence to be considered by the jury.

It is also insisted by defendant that the court erred in permitting witnesses on behalf of the plaintiff to testify to a conversation had between defendant and his father-in-law, Willis Howell, just after the death of the deceased and while neighbors and friends were there at the point where the body was found. The evidence permitted related to what defendant had said in his conversation at that time; this conversation occurred, as disclosed by tlie witnesses, upon the porch at the home of the defendant upon or soon after the arrival of Willis Howell, his father-in-law.' The court permitted the defendant to testify as to his version of this conversation, and he denied that the language attributed to him by the witnesses was used at that time or place and was permitted to relate what that conversation was. The evidence objected to and to which objection was sustained did not relate to this conversation but related to a conversation defendant claims to have been had by him with his father-in-law, Willis Howell, upon the stairs in the home of the defendant not at the time when the conversation was testified by witnesses for the plaintiff to have taken place; the objection was sustained to this conversation and the court did not permit defendant to testify as to the conversation which he insists took place at the stairs in his home. The objection was sustained by the trial court upon the ground that defendant was a party to the suit and that the opposite party sued as administratrix and defendant was therefore incompetent as a witness to this conversation; the court did not err in its ruling upon this question. Defendant was permitted to testify to the conversations had with him, which were offered in evidence by plaintiff; he was not a competent witness for the purpose of relating conversations other than those offered on the part of the plaintiff, although they may have occurred after the death of the deceased.

It is also insisted that the court erred in the admission of evidence relating to a board sidewalk which it is contended by defendant was removed prior to the time plaintiff’s intestate was killed. This sidewalk extended from the south side of the home of the defendant to connect with the sidewalk in the public street upon the north side of State street which runs east and west past defendant’s home. The evidence is conflicting as to when this sidewalk was removed and as to whether or not it was there at the time of the killing. While we do not consider the question of this walk as very material to the issues involved in this case, we find no error of the trial court in permitting witnesses for the plaintiff to testify as to when the walk was removed or whether there was a walk there at the time of the killing. This evidence having been competent and properly admitted, it was not rendered incompetent by evidence of the contractor of the specific time when he removed this walk, and that a record made by him at the time shows it was removed a considerable time prior to the killing. The witnesses for the plaintiff having testified in good faith that it was there at the time of the killing, it was a question of fact to be determined by the jury from all the evidence whether it was there at that time or not. We find no error in the admission of this evidence.

Neither was there any error by the court in permitting plaintiff to show that defendant had upon the porch at the south side of his home electric fixtures; nor was it error to permit the testimony of witnesses as to the condition of the lights in the street on the night in question and whether or not the lights were burning at the time of the killing, from their remembrance of the circumstances at that time.

It is insisted by defendant that the shot was fired from a west window of his home, in the second story of the building, while it is contended on the part of the plaintiff that the shot was fired from a south window. It was a question for the jury to determine from which window this shot was fired, and evidence of all the surrounding circumstances was proper.

Neither did the court commit any error in permitting, the bullet which passed through the body of the deceased to be exhibited to the jury. While it was not necessary that the bullet should have been offered for the purpose of showing how and in what manner deceased was killed, for the reason that defendant admitted that he was killed by this bullet and that the shot was fired by defendant, this admission on the part of defendant did not render this evidence incompetent.

It is also- insisted by defendant that the fact that plaintiff sues as administratrix of her husband’s estate does not render defendant an incompetent witness for the reason that the recovery is not for the benefit of the estate but becomes the sole property of the widow and next of kin. It is sufficient to say in reply to this contention that the statute which renders the defendant an incompetent witness where the plaintiff sues as administrator does not make any distinction as to the competency or incompetency of a witness whether the recovery is for the benefit of the estate or whether the recovery is for the benefit of the next of kin.

It was also insisted by defendant that by reason of the fact that plaintiff’s intestate was either upon the defendant’s premises and pretending to act as a burglar, or was passing across the premises of defendant, that in either event, if defendant honestly believed and thought that deceased was a burglar and was about to enter his home, that is a sufficient justification for the killing. The evidence does not disclose that at the time the shot was fired anybody was endeavoring to enter the home of the defendant or that defendant’s life, or his person, or that of any member of his family was in any immediate or probable danger of being injured or damaged.

The law does not permit the owner of property to kill a person passing over his property or remaining upon the property simply because he is a trespasser. Unless deceased was attempting to enter the premises of the defendant, or was acting as a lookout, for the purpose of protecting or assisting some other person then attempting, or about, to enter the habitation of the defendant, or defendant had just and reasonable grounds, by reason of the circumstances shown, to feai? that he or some member of his family was liable to receive great bodily harm or injury, he was not justified in firing upon the deceased and killing him.

It is also insisted by defendant that the record discloses that deceased went upon his premises for an unlawful purpose, and that he was there for the purpose of undertaking to cause defendant to believe that his home was about to be burglarized. The only evidencé upon the question of the deceased intending to go upon the premises of the defendant is developed from conversations had between the deceased and several parties in which deceased had said that he could scare the wadding out of defendant by making him believe he was a burglar. These conversations occurred two or three days prior to the time of the killing and there is no conversation related and no evidence shown that deceased, upon the day in question or at any other time, had ever said that he was going upon the premises of the defendant for the purpose of playing burglar or frightening him or that he intended in any maner to do any unlawful act. While it is insisted by defendant that plaintiff’s intestate was upon his premises in an unlawful and illegal manner without any right or justification therefor, it is insisted by plaintiff that the evidence discloses that deceased was not upon the premises of the defendant but that after he had closed his store upon the evening in question he went to the village park and listened to an address by Professor Hopkins of the University of Illinois, from there he went to the office of Dr. Hoover and from there back to State street and proceeded west on State street until he reached the home of the defendant and that after reaching the intersection of State street and Washington street, upon the intersection of which streets defendant’s home is located, plaintiff’s intestate then continued west on the north side of State street with the intention of going to the home of his mother, who lived about one block west and north of defendant’s home, for the purpose of staying all night and that he had stopped upon the sidewalk in front of the home of the defendant to urinate, the lower two buttons of the lapel of his trousers having been open when his body was found, and that while in one or the other of these places the defendant fired the fatal shot. The body was found with the shoulders lying off the sidewalk on the north side of State street and south of defendant’s home. The evidence upon these questions is conflicting and there is evidence tending to support either contention, and it was a question of fact for the jury to determine from all the evidence upon proper instructions of the court the conditions or circumstances under which deceased was killed and whether or not the killing was justified or whether defendant in firing the shot in question was guilty of negligence as complained of in the third, fifth and sixth counts of the declaration. The jury by their verdict'have determined these questions against the defendant and in favor of the plaintiff, and we are not able to say that the verdict of the jury is not warranted by the evidence.

We have examined the remarks of plaintiff’s counsel which it is. insisted by defendant are prejudicial, but we do not find that the criticism made of them is justified; the remarks made by counsel were warranted by the evidence.

The instructions given in this case, taken as a whole and considered as a series, state the law with substantial accuracy and defendant has not been prejudiced by the instruction either given or refused.

The arguments of counsel are very voluminous and to take up each and every proposition contended for would unnecessarily extend this opinion. We have given them careful consideration and do not deem it necessary to discuss other questions raised, for the reason that they are not controlling.

We do not consider the damages excessive, and finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Maggie Mikesell, Administratrix, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Master and servant—who not fellow-servants. Held, that a foreman in charge of a switching crew was not a fellow-servant of a member of another switching crew.
    2. Master and servant—extent of care to he exercised hy former. The master is not required to take any better care of a servant than such servant sees fit to take care of himself.
    3. Master and servant—what order of foreman not negligent per se. Held, in this case, that an order of a foreman to switch or shunt a ear, was not negligent per se.

    4. Negligence—how proximate cause determined. The question of proximate cause is ordinarily one of fact. When, however, the evidence is undisputed and the minds of all reasonable men must arrive at the same conclusion therefrom, it becomes a question of law, for the court.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed November 1, 1911.
    Rehearing denied, opinion modified.

      Certiorari denied by Supreme Court (making opinion final).
    Patton & Patton, for appellant; Shas H. Strawn, of counsel.

      T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action by Maggie Mikesell, administratrix, to recover for the death of her husband, alleged to have been caused by negligence of appellant. Trial below resulted in a verdict and judgment for appellee for $5,000 to reverse which this appeal is prosecuted.

The cause was tried upon two counts of the declaration, designated as the first and third additional counts; these counts charge the defendant with using and operating a railroad.in Sangamon county, with certain main tracks and switch tracks, the switch tracks being used for storing and transferring and switching cars from one track to another; that the deceased was a switch-man in appellant’s employ; that his duty required him to aid in handling, switching, and moving cars and to go between cars to adjust the couplings, while the said cars were being switched and handled by the engines, and that the deceased, in pursuance of his duty went between two cars, one of which cars was attached to an engine, and that while so between said cars exercising due care and caution for his own safety, the defendant by one Lantry, the then yard master of appellant and who is alleged to be a vice principal of appellant and not a fellow servant of deceased, and who knew or ought to have known deceased was then between the said cars, negligently gave an order which directed certain other employes of defendant to switch or kick a car on to the track where deceased was then between the said cars and toward the engine so attached to one of said cars, without giving deceased any notice or warning thereof, and that the said car so ordered by Lantry to he switched or kicked on to said track came in contact with and struck the said engine so attacheds to one of the cars which deceased was then between with snch force that the deceased was canght between the two cars and so crushed and injured that he died.

The principal causes urged by appellant for reversal of the judgment are, that the act of Lantry in ordering and directing the said car to be so switched and kicked upon the said track, was not the proximate cause of the injury to appellee’s intestate, but that the injury was caused by reason of negligence of fellow servants of the deceased while handling the car; that the order given by appellant through Lantry was not of itself a negligent order but that the manner of the execution of the order was left wholly with fellow servants of deceased and that it was the negligent execution of the order by these fellow servants that caused the injury; and that deceased was not in the exercise of due care, etc.

Appellant’s counsel devotes considerable of his argument to the fact that the declaration is insufficient in and' that it does not contain a sufficient allegation of due care on the part of the deceased..

A demurrer was interposed to this declaration and overruled by the trial court. Appellant did not abide by its demurrer but pleaded to these counts of the declaration.

The declaration contains averments of due care on the part of the deceased, and appellant, having failed to stand hy its demurrer to the declaration, is not now in position to raise the question of the sufficiency of the averments of due care.

The facts, as disclosed by this record, are that appellant was the owner of a line of railroad, as alleged in the declaration; that the yards at Eidgely consist of numerous tracks located on either side of the main tracks; upon that side of the main tracks where this injury occurred, were located seven switch or side tracks, numbered consecutively from one to seven. The business of appellant in getting tbe ears located upon these various switches into the proper trains for forwarding to their proper destinations required numerous switching crews and switching engines. The entire yards were in charge of Lantry, as yard master, and he had control thereof. Under him were five switching crews, each having an engine with which to work, and each crew consisted of an engineer and .four switchmen, one of the switchmen being known as the switch “foreman,” whose duty it was to see that the orders given by Lantry were executed. This foreman had charge of and directed the work of the crew. These various switching crews had no particular place within the yards, within which they worked, but all worked on the various tracks wherever their work required them to go. The cars were brought into the yards by the various trains running upon the main line, and were placed on the various side tracks. In these trains were cars which it was necessary to send to various destinations. Each morning the yard master was furnished with a list of all cars and their destinations; it was his duty to give to each foreman of the various switching crews the location and the destinations of the various cars which they were respectively to handle; it then became the duty of these crews to separate those cars and place them on the proper tracks for forwarding. The method and manner of executing the orders given by the yard master was left to the judgment and discretion of the foreman of the switching crews. As to what tracks they might temporarily switch any cars on, was left to his discretion'in the performance of these duties. After the work of separating and collecting the various cars and placing them upon their proper tracks for forwarding to their destination, it was then his duty to inform the yard master that this work had been done.

Upon the day of the death of the deceased, the foreman of the switching crew with which deceased was working, was directed by the yard master to take certain cars, which were known and designated as bad order cars, then upon switch track No. 7, to Springfield to the shops. In performing this order the switching crew with which deceased was working proceeded to track No. 7, where the cars designated and known as bad order cars were with other cars. In separating the bad order cars from the others and getting them together, this switching crew placed a portion of the bad order cars upon track No. 6 and while these cars were on track No. 6 the deceased went between two of them for the purpose of chaining or fastening them together so that they could then be taken to Springfield, as directed by Lantry. The engine with which the crew deceased was working at the time was attached to one of the bad order cars on track No. 6. After the giving of the order to take these bad order cars to Springfield, Lantry received what is known as a “rush order,” which directed him to send to Springfield a certain car known as a Mexicana car, and having already given the order that the bad order cars be taken to Springfield, he directed the foreman of another switching crew, then at work in these yards, to take this Mexicana car from the track on which it was then standing and switch or kick it in on the track in front of the engine working with the bad order cars so that the crew working with the bad order cars might take it with them to Springfield. This crew with their engine picked up the Mexicana car and under the direction of the switch foreman it was kicked or shunted in on track No. 6. While it was being so switched the foreman of this switching crew directed one of the crew to get upon the car and ride it down to the engine then on track No. 6 and attached to one of the bad order cars. The foreman of this switching crew was a vice principal, and was not a fellow servant of deceased. Chicago Terminal R. R. Co. v. Reddick, 230 Ill. 105. In placing this Mexicana car upon track No. 6 he should have directed it to be run with such speed and momentum that the switchman on top of the car could have stopped it before it came in contact with the engine, but instead of so doing he caused or permitted it to be shunted or kicked upon this track at such speed that the switchman on top of the car was unable to, and did not succeed in stopping it, before it crashed into 'the engine attached to the bad order cars and the consequence was that the Mexicana car hit this engine with such force, that it forced the two bad order cars together, caught the deceased between the cars and crushed him so that he died.

From the undisputed facts shown by the evidence it is impossible to arrive at any other conclusion than that the deceased by going between the bad order cars without protecting himself in any way and without giving to the other crews at work in these yards any notice that he was in a place of danger was a failure to exercise due care for his own safety.

The contention of appellant that the injury was caused by reason of the negligence of fellow servanta' of the deceased and for that reason there can be no recovery, is not tenable. While the record discloses that the two switching crews were working in the same line of employment, each crew was under the separate charge of a switch foreman, who directed the movements of -the crew and the work of the engine, and it was under his direction and management- that the respective crews did their work, and under the ruling in. Chicago Terminal Railroad Company v. Reddick, supra, the foreman in charge of the switching crew and under whose direction work was done was not a fellow servant of the other members of the crew.

The evidence shows that the various side-tracks were liable to be used by any of the five switching crews at any time when in their judgment it became necessary so to do in the moving and placing of the cars on these tracks; that neither deceased nor those working with him gave or placed any signal to indicate to the other crews that deceased was engaged in his work between the bad order cars, and also that the other crews had no reason to suspect or know that he was so engaged, and having taken no precaution or care to protect himself while there the master was not required to take any better care of him than he saw fit to take of himself. Jones and Adams Coal Company v. George, 227 Ill. 64; Missouri Furnace Co. v. Abend, 107 Ill. 44; E. J. & E. R. R. Co. v. Herath, 230 Ill. 109.

The method and manner of executing the order given by Lantry in this case was under the control of the switch foreman, but the charge of negligence in the declaration is that Lantry was negligent in giving the order to switch or shunt the Mexicana car in on this track at that time. So far as this record discloses, the order was not negligent per se. It is shown that Lantry had no means of knowing that the giving of the order or its proper execution would place any employee in danger and he had the right to assume that his orders would be carried out in a skillful, careful and proper manner.

It might have been safely executed if done in a proper manner, and the manner of executing the order having been left to the judgment and discretion of the switch foreman, if there was any negligence it was the negligence of the switch foreman in the execution of the order, in handling, shunting, or switching the Mexicana car upon the track and there is no complaint or charge in the declaration that he was negligent in the execution of the order given by Lantry.

The only charge of negligence in the declaration being the giving of a negligent order by Lantry at a time when he knew, or hy the exercise of dne care should have known, that Mikesell was or might be under or between the bad order cars, it was necessary before a recovery could be had that plaintiff prove this specific charge of negligence. The order cannot be held to be negligent per se and in order to recover on this declaration it was necessary to show that the giving of the order was the proximate cause of the injury and also that Lantry knew or by the exercise of due caution might have known that Mikesell was between the bad order cars. The evidence not only fails to show this, but does show that Lantry did not know and had no means of knowing and by the exercise of ordinary care, could not have known where the bad order cars then were or whether Mikesell was between them or not. "Where a specific charge of negligence is made and that it was the negligence of a certain vice principal, proof of negligence of another vice principal or of other servants will not sustain the charge. Chicago & Eastern Illinois R. R. Co. v. Driscoll, 176 Ill. 330; Hazen v. Schleuter, 236 Ill. 467-72.

While the question of proximate cause is ordinarily a question of fact for the jury, when the evidence is undisputed and the minds of all reasonable men must arrive at the same conclusion therefrom, it becomes a question of law for the court.

The judgment is so clearly against the weight of the evidence that it must be reversed. The Clerk will enter in the judgment of this court the finding of facts that the deceased was not in the exercise of due care for his own safety and that the giving of the order by Lantry was neither negligence nor the proximate cause of the injury.

The judgment is reversed.

Reversed.


text:
    C. H. Hill et al., Appellees, v. The Supreme Ruling of the Fraternal Mystic Circle, Appellant.
    1. Fraternal benefit societies—what essential to recover upon certificate. In order to recover upon a benefit certificate it must be shown that the defendant in the action issued the same or assumed liability thereunder. The fact that payment of dues may have been made to the society and accepted by it is not in itself sufficient to create liability.
    2. Fraternal benefit societies—effect of failure to file proofs of loss. If proofs of loss are required by the certificate and by-laws of the society a failure to present the same will preclude a recovery.
    Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed November 1, 1911.
    Joseph M. Baker and C. E. Pope, for appellant; F. H. Duckwitz, of counsel.
    Hill & Bullington, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

The declaration is upon a certificate of insurance issued by the Home Forum, a fraternal insurance company. The declaration sets forth by proper averments the issuance of the certificate, the membership of the deceased, and the continuance of membership in good standing from February 6, 1894, the date of the issuing of the certificate, until the death of the insured, December 9, 1909, together with the payments of all assessments due thereon, with proper averments of the death of the insured and the making of proofs of loss required by the certificate issued by the Home Forum, and the failure to pay the amount of said certificate by the defendant. The declaration alleges in general terms that on May 27, 1907, the defendant assumed all the obligations of the benefit certificate issued by the Home Forum, and that after that date all payments which became due by reason of the membership of the deceased in the Home Forum were paid to the defendant order and received by defendant order according to the terms and provisions of the laws and the certificate of membership of the said Home Forum up to the time of the death of the insured. The declaration does not set forth any contract or aver any conditions or circumstances under and by virtue of which the defendant company assumed the liabilities of the certificate issued by the Home Forum or by which defendant became liable to pay to the plaintiffs the amount of the policy issued by the Home Forum, except the- averment that after May 27, 1907, the defendant company received and accepted from the insured all dues required to be paid under the Home Forum certificates up to the time of her death. To this declaration a general and special demurrer was filed, the court overruled the demurrer, ánd the defendant pleaded to the declaration, filing the general issue and one special plea. To this plea a demurrer was filed and the court sustained the demurrer, the defendant elected to abide by its plea, and assigns as error the sustaining of the demurrer to the special plea.

All the matters and things set forth as a defense in and by the special plea could have been shown under the general issue; in order to show the facts averred in this plea it was not necessary that a special plea should have been filed, and where matters set forth in a special plea are proper to be shown under the general issue, it is not error to sustain a demurrer to the special plea, and the court did not err in sustaining the demurrer. Defendant offered no evidence of any of the facts set forth in the special plea, and where the matters set forth in a special plea to which a demurrer is sustained can be shown under the general issue, but no offer to prove such facts under the general issue is made and its offer refused, the sustaining of such demurrer cannot be assigned as error.

Issue was joined upon the general issue and a trial had by the court without a jury, which resulted in a judgment against the defendant for two thousand dollars. No propositions of law were submitted to the trial court, and consequently, the only questions raised upon this record are, first, the action of the court in sustaining the demurrer to the special plea, and the action of the court in refusing to exclude the evidence of the plaintiff, on motion of defendant, and refusing to find for the defendant. This motion raises the question as to whether or not there is sufficient evidence in the record to sustain the judgment of the trial court and whether the proof sustains the allegations of the declaration.

The plaintiffs, to sustain the allegations of their declaration, introduced, first, the policy of insurance issued by the Home Forum, made proof of the death of the insured, together with proof of the payment to the defendant, from May 27, 1907, until the death of the insured, of the amount of dues required under the policy in the Home Forum. This was all the evidence offered by the plaintiffs; defendant offered no evidence. It is insisted by defendant that the record does not show any facts which constitute proof of liability against this defendant, also that the record does not show that proofs of loss averred to have been furnished as were required by the policy issued by the Home Forum were ever made by the plaintiffs.

The benefit certificate issued by the Home Forum offered in evidence of itself creates no liability against, this defendant; it was not issued by it and there is no evidence showing that the defendant by contract ever assumed any liability under that certificate. The general averment in the declaration that the defendant assumed the liability created by that certificate required plaintiffs to show either a contract or such facts and circumstances which created the liability against the defendant before a recovery can be had.

Liability is attempted to be shown by the fact that after May 27,' 1907, the insured, either by herself or agent, paid to the defendant company and defendant company received the dues provided to be paid by the terms of the certificate issued by the Home Forum. Plaintiffs do not claim that any policy of insurance or membership certificate was issued by the defendant order to the insured. The fact that payment of these dues was made to defendant and accepted by it is not sufficient to create liability against the defendant, without proof of the specific facts or circumstances under which the liability against the defendant was created.

The record does not disclose, and there is no contention, that the plaintiffs or anyone for them furnished to the defendant or to the Home Forum any proofs of loss. Before recovery can be had under the declaration it was necessary to show proofs of loss were made as averred, in accordance with the conditions of the policy sued on.

The proof does not support the material averments of the declaration and the judgment must be reversed.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Ptjterbatjgh

text:
    Raphael Rosenthal et al., Executors, Appellees, v. Chicago & Alton Railroad Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the evidence where not clearly and manifestly against its weight.
    2. Negligence—failure to lower crossing gates. Failure by a railroad company to operate the gates provided at a crossing is negligence per se.

    3. Contributory negligence—person crossing trades. A person who may be aged and afflicted with a partial loss of sight is not for that reason precluded from a right to use the public streets. Such a person, like all other persons, has a right to rely upon the performance by a railroad company of its duties prescribed by law and ordinance. Held, under the evidence, that the plaintiff's intestate was not guilty as a matter of law of contributory negligence in attempting to cross the tracks of the defendant company.
    4. Ordinary care—when instinct of self-preservation may be considered. If there is no witness to the occurrence in question whose testimony tends materially to enlighten the jury upon the question of the exercise of ordinary care, the jury have a right to consider the natural instinct of self-preservation.
    5. Ordinances-—when abbreviation of name of railroad company immaterial. Held, that the abbreviation “C. & A. Ry." contained in an ordinance was used as descriptive of the tracks owned and used by the Chicago & Alton Railway Company.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    Blinn & Covey, for appellant; Silas H. Strawn, of counsel.
    Beach & Trapp, for appellees. .
   Mr. Presiding Justice Ptjterbatjgh

delivered the opinion of the court.

This is an appeal hy the defendant from a judgment for $2500 recovered in an action brought by the executors of the will of Silas Rosenthal, deceased, against the Chicago & Alton Railroad Company. The declaration charges that the defendant, on December 7, 1909, drove a certain engine with a tender attached thereto, over Pulaski street in the city of Lincoln, without having given the statutory warning by bell and whistle; that on said day there was in effect in said city a certain ordinance which provided that “at the following crossing of the C. & A. Railway, to-wit: Pulaski street,” gates should be constructed and maintained, under the control of a competent watchman, who should operate the same at all times between the hours of seven A. M. and ten P. M. for the purpose of.warning the traveling public of danger; and further providing that in the event that any railroad company should violate said ordinance, it should be subject to a penalty of $100 for each day; that the defendant had prior to said time installed and operated a certain gate on Pulaski street, which when lowered extended across the sidewalk and served as a bar to prevent people passing over said railroad tracks when an engine and train of cars were approaching, but that the defendant, on the day in question, negligently failed to operate, and lower said gate, and permitted the same to remain up.

The declaration further charges the existence of an ordinance of said city prohibiting the driving of any locomotive engine or train other than a passenger train, within the limits of said city, at a greater speed than six miles an hour; that in violation of said last mentioned ordinance, the defendant drove said engine and tender at a rate of speed of ten miles per hour. The declaration still further charges the violation of a certain other ordinance of said city providing that every locomotive, railroad car or train of cars while in motion in the night time, should have a conspicuous bright light shining in the direction in which the train was moving. Said declaration also charges that said railroad company maintained on the west side of its railroad tracks on Pulaski street, a lumber yard in which were piled large piles of lumber and tile, to the height of ten feet, which obstructed the view of trains approaching along said tracks; that there were on the day in question freight cars standing on one of the side tracks on the west side of said street, which further obstructed the view of the railroad to persons approaching from the west; that it thereby became the duty of the defendant to station a bralceman on the front end of said tender while moving northward toward said crossing, to warn persons about to cross the same, of the approach of said engine and tender, which was backing northward toward said crossing. The declaration further avers that by reason of the foregoing failure to give warning, and violation of the ordinances in question, the said Silas Eosenthal, while crossing over said crossing from the west, and in the exercise of due care and caution for his own safety, was struck by the tender of said engine and that his death was thereby caused.

The evidence discloses that Sangamon street in the city of Lincoln runs north and south parallel with and immediately west of the defendant’s right of way, and that Pulaski street crosses the same running east and west; that the defendant had two main tracks running southwest and northeast across Pulaski street and parallel with Sangamon street; that there were bars or gates on the north and south sides of Pulaski street on each side of the company’s tracks, which were worked by a tower-man in a tower south of Pulaski street, from seven A. M. until six P. M., and when down formed a barrier which prevented persons crossing the tracks; that south of Pulaski street was a yard used for storing lumber, stone and tile. The evidence further discloses that the deceased was at the time he was killed, over seventy-five years of- age, and had a cataract over either eye, the effect of which was to totally obscure the sight of one eye and partially that of the other; that he was a dealer in horses and mules, and lived on Sangamon street west of the right of way of the defendant and about a block south of Pulaski street, and that his place of business was on Pulaski street about two blocks east of the right of way of the defendant. At shortly after six o ’clock on the day in question, the deceased started to go from his home to a store situated a little over a block east of the track of the defendant, on Pulaski street. He left the sidewalk on the south side of Pulaski street, and started diagonally across the tracks of the defendant. When he arrived at the east main track he was struck by an engine with a tender attached, which was backing north on said east main track, receiving injuries from which he subsequently died. No one saw him until just as he was- struck. The evidence shows that the flap of his cap was drawn down over his ears at the time.

There was the usual conflict in the evidence upon such issue, but we cannot say that the finding of the jury that no signals by bell and whistle were given and there was not a white lantern on the rear of the tender, as claimed, was clearly unwarranted. It was not controverted that the gates maintained by the defendant at the crossing in question were not being operated at the time of the accident and that neither of them was lowered so as to prevent the use of the crossing by the public. Such failure to operate the gates was negligence per se. R. R. Co. v. Voelker, 129 Ill. 540; Taylor v. R. Co., 156 Ill. App. 151. It is argued that having lived and transacted business in the vicinity for many years, and being thoroughly familiar with the tracks of the defendant and the movement of its trains, having often crossed the street in question, the deceased must have known that the gates at the crossing were not and never had been operated after six o’clock in the evening, and that he could not rely upon them to warn him of an approaching train; that knowing the crossing as he did, with his defective vision, with his cap pnlled down and his ears muffled, his attempt to cross the tracks, under the circumstances, was not the act of a reasonably prudent man under like or similar circumstances, that he was therefore guilty of such contributory negligence as to bar recovery by the plaintiff, and that the court should have directed a verdict of not guilty at the close of all the evidence.

Notwithstanding he was aged and afflicted with a partial loss of sight, the deceased still had a right to use the public streets. He also had the right to rely upon the performance by the defendant of its duty under the law and the ordinance in question. Schmalfeld v. R. Co., 156 Ill. App. 1. The fact that there was no light or brakeman on the end of the tender, and no signals by bell or whistle, and that the gates were open, all tended to assure him that he could use the crossing with safety. The main purpose of the requirements of the gate ordinance was, doubtless, the protection of aged, infirm and afflicted persons who were compelled by reason of necessity or for convenience, to cross, unaccompanied, over railroad tracks on the principal thoroughfares of cities. Furthermore, there having-been no witness to the occurrence whose testimony tended materially to enlighten the jury upon the question, we think that they had the right to consider the natural instinct of self-preservation in determining the issue. For these reasons, we do not feel warranted in holding, either as a matter of law or of fact, that the conduct of the deceased was not that of a reasonably prudent person.

It is insisted that the court erred in admitting the gate ordinance in evidence, for the reason that no notice of its passage had been given to the defendant company; that it was void because its provisions were unreasonable and the penalty provided harsh and oppressive, and further that the ordinance admitted was not by its terms applicable to the defendant company. The contention that the defendant was not bound by the provisions of the ordinance for the reason that it upon its face applies to the “C. & A. Bailway” and not to the “Chicago & Alton Bailroad Company,” is too technical to warrant extended discussion. It will suffice to say that the words “C. & A. Bailway” were undoubtedly used in the ordinance as descriptive of the railway tracks at the crossing intended to be protected, rather than of the corporation owning and using the same. Furthermore, it may fairly be inferred that by conforming to the provisions of the ordinance the defendant recognized its applicability. The remaining objections to the ordinance are, we think, met adversely to the defendant, by what is said in C. & A. Ry. Co. v. Averill, 127 Ill. App. 275, affirmed 224 Ill. 516, and in Perkins v. R. R. Co., 233 Ill. 458. The ordinance was therefore properly admitted in evidence, and its violation is not denied. It is manifest that had the defendant complied with its provisions, the south arm of the gate would have extended entirely across the sidewalk and made it impossible for Bosenthal to have gotten upon the track.

We find no errors in the rulings of the court upon the instructions, and it is not complained that the verdict is excessive. The judgment of the circuit court is affirmed.

Affirmed.'


author: Mr. Justice Puterbaugh

text:
    John L. Eldred, Appellee, v. Hugh L. McIlheran et al., Appellants.
    Creditor’s bills—what tends to establish conveyance as fraudulent. Inadequacy of consideration is an element which strongly tends to establish the fraudulent character of a conveyance attacked by creditor’s bill.
    Creditor’s bill. Appeal from the Circuit Court of Greene county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    Frank A. Whiteside, for appellant.
    Rainey & Jones, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by Mcllheran from a decree granting relief prayed by a creditor’s hill filed by appellee against him and The Mexican Disinfectant Company. The hill alleges in substance the recovery by complainant of a judgment against said company for $1811, and costs, and the return nulla bona of an execution thereon; that the company had previously owned a valuable patented formula for the manufacture of a certain disinfectant, together with certain machinery, and other property; that prior to the rendition of said judgment it conveyed said property to Mcllheran for a pretended consideration of $300, which, if paid, was grossly inadequate; that said conveyance was made with the intention of hindering, delaying and defrauding complainant; that Mcllheran held said property in trust for said company, to prevent a levy on the same; that he knew at the time of said conveyance that said company was indebted to complainant and that said consideration therefor was grossly inadequate, and with such knowledge he accepted and received such conveyance for the purpose and with the intention of hindering, delaying and defeating complainant in the collection of his judgment. That said Mcllheran was incapable of engaging in manufacturing by reason of lack of knowledge and physical infirmities, and that previous to said conveyance complainant had offered to take all of said property in exchange for his claim, and in addition to pay the other debts of said company, which the president and secretary of the company informed him would not exceed $200 which offer was rejected; and that the property was worth the amount of said offer. The bill called for a discovery from both defendants under oath.

The verified answer of the company denies the averments of the bill, and avers that the complainant offered to take said property in satisfaction of his indebtedness alone, and that his proposition was rejected by the company because it would leave nothing for other creditors. The verified answer of Mcllheran avers that he bought the property in good faith for $300, without knowledge that said company was indebted to the complainant, for the sole purpose of endeavoring to make a profit out of the transaction, and denies each and all of the material allegations of the bill.

We are of opinion that there was ample evidence to warrant the finding of the chancellor that the sale to Mcllheran was mala fides. The character of the property sold, its disposition after the sale, the fact that the purchaser, who never took active possession of the same, was wholly inexperienced and in no way qualified for the conduct and continuation of the business of manufacturing the product of the insolvent concern, all irresistibly tend to such conclusion.

Tbe fact that an offer by tbe complainant to satisfy bis claim and assume tbe legitimate liabilities of tbe company, aggregating tbe sum of $200, in return for tbe property, was refused, tends strongly to show that tbe consideration paid by Mcllheran was grossly inadequate.

Tbe further fact that when such proposition was under consideration, an attempt was made by tbe officers of tbe company to increase tbe liabilities to be assumed, by wrongfully crediting tbe secretary with salary to which be was manifestly not entitled, is most significant in this connection. Tbe fraud charged was thus clearly established and tbe decree of the circuit court is affirmed.

Affirmed.