text:
    Mary Owsianny, Administratrix, Appellee, v. Saline County Coal Company, Appellant.
    1. Mines and minerals, § 121

      —when defect is patent. Where a miner, killed by a tub tipping over on striking the edge of an opening in a platform, was a man of mature years and experience and had numerous opportunities in passing up and down the shaft to observe the closeness of the tub to the platform in passing through the hole, such defect is a patent one that the deceased was presumed to know.
    2. Mines and minerals, § 119

      —when servants know of improper order. Where a miner was killed by a descending tub tipping over on striking the edge of a platform at a time when a safety link preventing a hook from slipping from the bail of the tub was not in place, the fact that a workman giving the order to “hoist away” was in the act of taking hold of the hook does not indicate an intention not to hoist until sufficient slack was received to adjust the hook.
    3. Master and servant, § 304

      —when risk of master’s negligence is assumed. The doctrine that a servant does not assume the risk of the master’s negligence may apply if the servant was working under an imperative order of the master with assurance of safety, or if the servant had no knowledge of the conditions, but cannot be invoked where the servant had knowledge of the defects.
    4. Mines and minerals, § 131

      —when contributory negligence not excused by breach of nondelegable duty. That a workman in a mine was a vice principal and has been directed never to send a tub down until it had been fastened properly to a hook and the duty could not be delegated, does not relieve a miner in the tub of contributory negligence in not seeing that a safety link was properly adjusted.
    5. Mines and minerals, § 114

      —who not a vice principal. Where the death of a miner, killed by a descending tub, was caused by a failure to adjust a safety link, generally adjusted at the bottom of the shaft, to prevent a hook from slipping from the bail of the bucket, an employe, having duties to assist in unloading tubs and to do relative work in connection therewith, is not a vice principal when adjusting the hook at the top of the shaft in accordance with directions.
    6. Mines and minerals, § 135

      —when contributory negligence not to adjust hook. A miner killed by a descending tub striking on edge of the opening in a platform, who knew that a safety link, preventing a hook from slipping from a bail of the tub was not in place and of the proximity of the tub to the hole, and that it was a violation of the master’s orders for the men to descend when the link was not adjusted is guilty of contributory negligence where he fails to adjust the link or to make any protest.
    7. Mines and minerals, § 131

      —when risk is assumed. A miner killed by a tub striking a hole in a platform, knowing that a safety link preventing a hook from slipping from bail of the bucket was not in place, and having opportunity to know of the close proximity of the tub to the hole, assumed the risk.
    8. Master and servant, § 572

      —matters servant has burden to prove. Before a servant can recover against his master for injuries sustained from an appliance, the burden is upon him to show that the appliance was defective, that the master had actual or constructive knowledge thereof and that the servant did not know of the defect and had not equal means of knowing with the master.
    Appeal from the City Court of Harrisburg; the Hon. Albert E. Somers, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed with finding of facts.
    Opinion filed October 9, 1913.
    M. S. Whitley and E. E. Denisoh, for appellant.
    Choisser, Choisser & Kahe, Clark & Hutton, and George E. Donn, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, samo topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The plaintiff recovered a judgment in the City Court of Harrisburg against the defendant for eighteen hundred dollars and costs, and the defendent prosecuted this appeal.

About September 15, 1910, the appellant commenced the sinking of a shaft with a view of opening up a coal mine near Harrisburg, in Saline county, Illinois. They had sunk the shaft to a depth of about two hundred and sixty-five feet at the time of this accident, which happened at about seven o’clock in the evening of February 13, 1911. In the prosecution of this work the appellant had erected a tipple upon which it had placed a sheave wheel at a distance of about eighteen feet from the surface of the ground, and at a distance of about ten feet from the ground a heavy platform had been constructed to be used in receiving the buckets and as a place from which the material brought up from the shaft was dumped. About -the center of this platform an opening was cut four and a half feet square. This platform was reached by steps and was used as the place from which men were sent down into the mine and on which they were landed on coming out of the mine. There were two tubs used by the men in the performing of this work. The tub out of which deceased fell is claimed by appellee to have been about three feet and one inch in diameter, with two to two and a half inches on each side for a bail. When in operation a cable that extended from the engine, over a sheave wheel, was connected with these buckets by a hook. When the bucket would be brought to the top, a truck wider than the opening in the platform would be pushed over the opening and the bucket allowed to rest upon this truck, and when the bucket was ready to descend into the mine the truck would be pulled away. Between the hook and the cable there were three links of the length of about six or eight inches and attached to these was a safety link used for the purpose of preventing the hook from slipping off of the bail of the bucket. The end of the hook was in the shape of a T. and the safety link would be placed over this T. and when the chain was straightened and the safety link over the end of the hook there was no chance for the hook to slip- off of the bail of the bucket. There were three shifts engaged at work in the sinking of this shaft. The one with which deceased was connected began work about three o ’clock p. m. and worked until eleven o’clock and the usual custom was to come to the top to eat their dinner at about seven o ’clock. On the evening in question the men had come up from the shaft and eaten their supper, some of them had returned to their work and the bucket had been sent up for the remainder of the men. It had been set upon the truck and the deceased, John Owsianny, Matthew A. Holcomb and the third man, whose name is not given, got into the bucket preparatory to going down into the mine. After getting into the bucket and, after the cable had been straightened up by the engineer, George Parish, the man who attended to the pushing of the truck to and from over the opening in the platform, together with other duties required of him, discovered that the safety link was not over the end of the hook and called the attention of the men in the tub to this fact, whereupon Holcomb threw his hand on to the hook and said “hoist away.” The signal was then given to the engineer and he raised the tub high enough to permit the truck to be moved, which Parish did, and they started to lower the men into the mine, when the tub by some means caught upon the edge of the platform, tipped and threw the men into the mine below, and the deceased fell upon some braces at the distance of about sixty feet from the top, the bucket fell upon him and he was crushed and killed. It was a stormy evening and the place was lighted by two lanterns and the lights in the men’s caps.

The evidence under the first, second and third counts of the plaintiff’s declaration was excluded from the consideration of the jury as to these counts and a trial was had upon the fourth and fifth counts of the declaration. The fourth count charges that it was the duty of the defendant to use reasonably safe means to lower the plaintiff’s intestate through the platform into the shaft to his working place, and that the defendant carelessly and negligently disregarded its duty in that the opening provided in the platform was not sufficiently large to permit the tub in which the plaintiff was required to be, to pass through said platform, with reasonable safety, and that by reason of such insufficient opening through said platform the tub caught on the edge of the platform or scaffold and careened over and caused the plaintiff to fall to his death.

The fifth count charges that it was the duty of the defendant to use reasonable diligence to see that the safety link was attached before attempting to lower the plaintiff’s intestate into the hole to his working place, and that the defendant carelessly and negligently omitted its duty in this regard, and that in consequence thereof when the tub caught on the edge of the platform the hook came off from the bail of the tub and allowed the same to fall into the shaft and cause the death of the plaintiff’s intestate.

While many errors have been assigned by counsel for appellant, the ones insisted upon and argued before this court are that the evidence was not sufficient to warrant a verdict for plaintiff; that the deceased was guilty of contributory negligence, also that he knew or by the exercise of reasonable care should have known the conditions and circumstances surrounding and causing his death, and that it is a case of an assumption of risk.

It appears from evidence in this record that the opening in the platform was fifty-two inches in width, and that the bucket, including the bails, was forty-two inches in width; that shortly after they commenced sinking the shaft the bucket caught frequently upon the sides of the platform and to prevent this a follower extending from one side of the shaft to the other and running in the slides was placed just above the links holding the hook, so as to prevent oscillation of the cable. Some of the witnesses say, however, that after this follower was placed on that the bucket caught upon the edge of the platform a few times; others say it did not. There is no complaint that the appliances furnished by appellant were not reasonably safe, except as to the width of the opening in the platform. The deceased had been at work in this shaft almost from the commencement of the sinking and passed up and down the shaft through the opening in this platform from six to eight times a day, and we are convinced from the facts and circumstances proved in the case- that the deceased was familiar with the conditions and knew that if the tub caught upon the platform when the safety link was not attached to the hook that it was liable to careen and throw the men out. It further appears from this evidence that while the tub was upon the platform and before the trucks were removed, the attention of the deceased and- his associates was called to the fact that the safety link was not over the end of the hook, and knowing that fact Holcomb told the top man to hoist away, in the presence and hearing of deceased, and he made no protest or objections to it. Upon another occasion, prior to this, he started to ascend out of the mine in company with other persons without the safety link being adjusted and the superintendent required them to stop and adjust the link before being hoisted out, and the deceased as well as other men had been frequently warned not to go in and out of that shaft in the bucket without this safety link being adjusted upon the hook, and the deceased certainly knew the purpose for which the safety link was placed there and the dangers liable to result from not adjusting it. It has been repeatedly held that before the plaintiff can recover it must appear from the evidence, and the burden is upon the plaintiff to show: First, that the appliance

was defective; second, that the master had notice thereof or knowledge or ought to have had; and third, that the servant did not know of the defect and had not equal means of knowing with the master. Swift & Co. v. Gaylord, 229 Ill. 338; Goldie v. Werner, 151 Ill. 551.

In the case of Swift & Co. v. Gaylord, supra, it is said: “And in Armour v. Brazeau, 191 Ill. 117, the judgment was reversed, and it was held error to refuse an instruction imposing upon the plaintiff the burden of proving the existence of the defect and that it caused the injury, defendant’s knowledge, plaintiff’s lack of knowledge and of means of knowledge equal to the defendant’s, and that plaintiff was in the exercise of ordinary care. The same rule is announced or recognized in other cases.”' The deceased was a man of mature years and experience and we can see no reason why he could not have discovered, in passing up and down the shaft so frequently, the closeness of the tub to the platform, and we think that under the evidence in this record he not only had the opportunity to observe the closeness of the tub to the platform in passing through the hole but that in law he is presumed to have known it and is chargeable with knowledge. It is said in the case of Elgin, J. & E. Ry. Co. v. Myers, 226 Ill. 365: “It is also the rule that employee of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the business is conducted and its ordinary risks and hazards, and will be presumed to have notice of and to have assumed all such risks ’ and hazards which to a person of his experience and understanding are, or ought to be, patent and obvious. If a defect is so plain and obvious to the senses that in the exercise of ordinary care the employee would discover it, and he continues in the employment without complaint and without any assurance by the master that the defect will be repaired or the danger removed, he assumes the risk arising from it.” This doctrine is conceded practically by counsel for appellee but he insists that this was a'latent defect. We cannot agree with him in this contention. While it may be true as suggested, that the opening was covered by the truck, at times while the bucket was upon the truck, yet when the truck was removed from the hole and he passed iqq and down the shaft so frequently and as it was open to the men for inspection at all times with nothing to prevent them from seeing it, we certainly do not believe that it was a latent defect, and one that he is not presumed to know.

It is said by counsel for appellee: “That Holcomb was in the act of taking hold of the hook evidently for the pupose of adjusting the safety catch at the time he (Parish) ordered the tub to be hoisted away, what he says himself to be true, even if Holcomb did say, ‘Hoist away,’ the very fact that he took hold of the hook would indicate to any reasonable man that it was his intention not to hoist away until after he had received the slack sufficient to adjust the hook.” We do not understand this to be the testimony of Parish or that such a meaning can be drawn therefrom. Holcomb knew that at the time the rope was straightened that the safety link could not be adjusted without slacking the cable and if he had meant what counsel claims he did, instead of saying “hoist away” he would have given an order to slack the cable. Parish says: “I said a minute ago that Holcomb said “hoist away;” that meant to hoist the bucket, to signal the engineer to hoist the bucket up. You had to hoist it up to roll the truck out. The custom was when they would be ready they would tell me they were ready and some times they would say, hoist up. When they did that I signalled the engineer to hoist up by hallooing to the engineer Harry Wills: ”

Counsel for appellee further contend that the servant does not assume the risks of the master’s negligence, and refers to the_ case of City of Lasalle v. Kostka, 190 Ill. 135. We do not understand this decisión to go to the extent claimed for it by appellee. The doctrine contended for might apply if the servant was working under an imperative order from the master, with assurance of safety, or if the servant had no knowledge of the conditions, but where the servant had knowledge of the defects, then such rule cannot be invoked. In the case of the Republic Iron & Steel Co. v. Lee, 227 Ill. 259, where this very doctrine was being contended for, the Supreme Court says: “ Appellee urges, however, that the servant never assumes the risk of defects arising from the master’s negligence. In Browne v. Siegel, Cooper & Co., 191 Ill. 226, it is said that even if the master fails in his duty to furnish the servant a place ordinarily safe in which to work, and there are to the knowledge of the servant defects which render the place unsafe, the servant is held to have assumed the hazard, for he cannot go on, with knowledge of the danger, without complaint until he is injured and then hold the master liable. ’ ’

It is further urged by counsel for appellee that George Parish was a vice principal and had been directed by John Dowell never to send the tub down unless it was fastened; that this became a personal duty of the master and could not be delegated to a servant so as to excuse the master from its performance. We are not able to see how this doctrine would relieve the deceased from his duty to care for himself, in the manner he had been directed to do many times. The master is not required to take greater care of a servant than a servant cares for himself. And even if the superintendent himself had been present and called the attention of the deceased to the fact that the link was not fastened and the deceased then chose to go on in the performance of the work without fastening the link, we do not see how he is thereby relieved from his contributory negligence in not adjusting the link. It is as essential to prove that he was not guilty of contributory negligence and did not assume the risk as it was to prove that the master was guilty of negligence. We do not believe, however, that Parish was a vice principal. It is claimed that the order of John Dowell for Mm to adjust this hook constituted him a vice principal. John Dowell was only a boss of the shift and directed its workings; he was not clothed with such power or authority as would authorize him to constitute Parish a vice principal. Parish was employed by the superintednent and received his orders the same as the other men that worked in the shift; his duties were to assist in unloading- the tubs, to push the trucks over the hole m the platform, to receive the tubs, to pull away the trucks and allow the men to descend, to adjust the safety link if it was off, to wait upon the several men working- in the shaft; bring them tools or whatever they needed or do whatever they directed him to do. It also appears from the evidence that the adjusting of the safety link most always took place at the bottom of the shaft and that the hook was very seldom unhooked from the bail when unloading at the top. The Supreme Court in defining the duties of a vice principal says that he is, “One who performs personal duties of the master which cannot be delegated, such as the duty to provide reasonably safe machinery and appliances and a reasonably safe place in which to work; to provide for inspection and repairing of premises and appliances, and to inform immature, ignorant or unskilled servants of the dangers of the situation. These are obligations for which the law holds the master personally responsible.” Baier v. Selke, 211 Ill. 517. It is also said in the case of Mobile & O. R. Co. v. Godfrey, 155 Ill. 78, after stating the duties of a vice principal substantially as above set forth that, “Almost all other duties are assignable and where the master has complied with the non-assignable duty of using- ordinary care in selecting of a servant to whom such duties are intrusted, for an injury occurring through such servant’s neglect to another servant the master is not responsible.” The appliance, the safety link, was furnished by the appellant; the deceased, together with other members of the crew engaged in the sinking of this shaft, had been instructed as to its use. The appellee, as well as Parish and the other servants, had been warned to adjust the link when the tubs were in use. The difficulty was not with the appliance but in a failure to adjust it, and we can see no reason why the appellant should be held liable for failure in the performance of this duty, in this respect, any more than a failure to perform any other duty required to be performed by its servants, and do not think the duties required of Parish come within the duties of a vice principal. We are not prepared to hold that under this evidence Parish was constituted a vice principal.

The deceased and his associates in attempting to descend into the shaft without adjusting the safety link were doing so in positive violation of the orders given to them by the master, and it can make no difference what may have been their motives, they had no right to proceed in violation of such orders. Illinois Steel Co. v. Kinnare, 100 Ill. App. 208.

It seems to us from a close examination of this record, and the law applicable thereto, that the appellee was guilty of contributory negligence and that the risk incurred by him in going down in the shaft, with his knowledge of the facts and conditions that existed, was clearly an assumed risk and that the appellant is not liable. There are other questions argued by counsel for appellant and appellee, but we deem it unnecessary to prolong this opinion as it appears to us the verdict of the jury is manifestly against the weight of the evidence and that judgment ought not to have been rendered against appellant. The judgment of the lower court is reversed.

Judgment reversed, with finding of facts.

We submit herewith a statement of the finding of facts as follows: The deceased was not in the exercise of due care and caution for his own safety, in that he failed to adjust the safety link, or offered to do so, and failed to make any protest against being sent down in the mine without the link being properly adjusted. The evidence shows that he knew or ought to have known, and could by the exercise of reasonable care have known, of the defects complained of in the plaintiff’s declaration, and that in the performance of the work in the manner and under the circumstances it was performed, the deceased assumed the risk.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride,

license: Public Domain

text:
    Elsie Holcomb, Administratrix, Appellee, v. Saline County Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed with finding of facts.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Elsie Holcomb, administratrix of the estate of Matthew A. Holcomb, deceased, against the Saline County Coal Company, a corporation, for damages sustained by a death from negligence or wrongful act. From a judgment for plaintiff, defendant appeals. The opinion in Mary Owsianny, Administratrix v. Saline County Coal Company, arising out of the same accident is reported ante, p. 518.
    M. S. Whitley and E. E. Denison, for appellant.
    Choisser, Choisser & Kane, Clark & Hutton, and George E. Dodd, for appellee.
   Mr. Presiding Justice McBride,

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1813*—when opinion in former decision- is adopted. Where the facts, pleadings and arguments of counsel in an action to recover for a death were substantially the same as in another case arising from the same accident in which an opinion was rendered by the Appellate Court, such court adopted the opinion as its opinion in the case at bar.


author: Mr. Presiding Justice McBride

text:
    Mark L. Tilton, Appellee, v. Joseph L. Trapp, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Alteration of instruments, § 22

      —when burden is on plaintiff to prove execution. Where it is claimed that certain provisions were inserted in a contract after being signed and the defendant denies under oath the execution of the entire agreement, the burden of proving it to be defendant’s agreement is upon the plaintiff.

      Appeal from the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Mark L. Tilton, against Joseph L. Trapp, based upon the common counts to which was attached a bill of particulars, and there was filed with the declaration the contract upon which plaintiff seeks to recover rent. From a judgment for plaintiff for four hundred dollars, defendant appeals.
    P. J. Kolb and M. J. White, for appellant.
    E. B. Green and S. J. Gee, for appellee; Theo. G. Risley, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Alteration of instruments, § 20*—evidence sufficient to show part of contract was inserted. Defendant in an action for rent denied the execution of a contract in the form in which it was presented to the jury. The contract appeared as if two separate agreements written on separate sheets of paper had been pasted together, and only the part admitted to have been signed was first filed when the suit was begun. Continuous efforts of plaintiff to rent the property to different persons and other circumstances corroborated defendant’s testimony that a part of the contract was not executed by him. Held, a verdict for plaintiff was against the evidence.


text:
    John T. Perkins, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Carriers, § 96

      —liability for delay in transportation and delivery. A common carrier is not necessarily liable for damages by reason of failure to deliver goods upon schedule or within a reasonable time, unless such failure or delay is caused by the negligence of the carrier.
    2. Carriers, § 234

      —when not liable for delay in carriage of live stoclc. In an action for damages for delay in the transportation and delivery of live stock, an excuse offered that the delay was caused by a heavy snow, held a good defense in the absence of proof that carrier was negligent.
    3. Carriers, § 96

      —duty to deliver within a reasonable time. The duty to deliver within a reasonable time is merely a term engrafted by legal implications upon the promise or duty to deliver generally.
    4. Carriers, § 96

      —excuse for delay. Where the duty to deliver within a reasonable time arises by legal implication, the common carrier stands upon the same ground with other bailees, and may excuse the delay in the delivery of the goods by accident or misfortune, although not inevitable or produced by the act of God. In such emergency the carrier is only required to exercise due care and diligence to guard against delay, and if it occurs without its fault or negligence to omit no reasonable effort to secure the safety of the goods.

      5. Carriers, § 247

      —burden of proving excuse for delay. When unreasonable delay is proved, the burden of proof to excuse the delay is upon the carrier.
    6. Carriers, § 249

      —when question whether facts excuse delay is for the court. As a rule the question whether the delay was excusable is for the jury, but where there is no conflict in the evidence, and no evidence to rebut the excuse for delay .and the excuse offered is sufficient in law, the question whether the facts excuse the delay becomes a question of law for the court.
    7. Carriers, § 250

      —when instructions ignoring excuse for delay erroneous. In an action for delay in the carriage of live stock, instructions not taking into account any legitimate excuse for the delay, held vicious.
    Appeal from the Circuit Court of White county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    N. O. Bainum and P. J. Kolb, for appellant.
    J. M. Endicott, for appellee; Conger, Pearce & Conger, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was an action commenced before a justice of the peace appealed to the Circuit Court of White County, in which court judgment was rendered against the defendant for $103.61, to reverse which the defendant prosecutes this appeal.

It appears from the evidence that on January 11, 1912, appellee had purchased two car loads of stock consisting of twenty-one head of cattle and one hundred and forty-nine hogs and some calves, which were placed in the stock pens of appellant at or near Cross-ville, ready for shipment. Appellant furnished appellee two cars in which to load this stock preparatory to shipment and was to be taken out by a train which was expected to pass through Crossville at about 1:30 of the morning of January 12th. Appellee loaded his stock in the cars and had it ready for shipment but the train did not arrive until about 5:30 in the morning. It grew very cold and a heavy snow fell during the night; the wind blew and caused the snow to drift badly in places. Upon the arrival of the train the engine was cut loose to go in on the siding, or switch, for the two cars of stock. There were, however, standing between the engine and the two cars of stock, two box cars which it was necessary to pull out before they could reach the cars of stock. The engine passed down upon the side track and was coupled to the two box ears and started with them and had not gone more than a car length or so when by some means one of the box cars was thrown off the track, which created an obstruction between the engine and the cars loaded with stock. This was the only track by which the engine could obtain access to the cars loaded with the stock. It appears from the evidence that the snow had drifted upon this side track and. was in places very deep, and the witnesses say that on account of this heavy snowdrift the truck of one of the box cars came off the center of the truck so that the car could not be moved by the train crew and formed an obstruction so that they could not take out the cars of stock. The train crew was thereupon obliged to leave the stock and proceed to their destination with their train. The agent and officers of the road were notified of the switch being blocked and appellee was directed to unload his stock in the pens and hold it for another train. There were no freight trains over appellant’s line during the day but along in the afternoon about five or six o’clock the wrecker came down and removed the box car, whereupon appellee was again directed to load his stock to be taken out about 1:30 in the morning of January 13th. This train was late and the stock was not taken out until late in the forenoon of the 13th, whereupon it was taken to Indianapolis, arriving there on the 14th of January, and in the regular course of shipment it would have arrived there on the 13th of January. The evidence discloses that between the times that appellee loaded his stock upon the cars first, and the second loading, that there was considerable shrinkage. The evidence shows it to have amounted to about one thousand three hundred and seventy-five pounds upon the cattle and seven hundred and twenty pounds upon the hogs and that the shrinkage upon the cattle was five and one-fourth cents and upon the hogs six and oné-fourth cents a pound, and appellee claims he was otherwise damaged by purchasing extra corn and care for his stock.

There is not much dispute about the facts in this case. The witnesses for plaintiff and defendant agree that it was a very cold night, a heavy snow storm and that the snow had drifted pretty badly; that the track at this place was all right and appellee in his testimony says, ‘ ‘ There was nothing wrong with the track there, only that a snow had fallen. There were places where the' snow had drifted and places where it had not.” The testimony of appellant’s witnesses shows the heavy snow; that the track was all right and that in attempting to remove the box cars so as to attach the engine to the stock cars that on.account of the heavy snowdrift one of the box cars was partly derailed and that a crew was unable to get it upon the track and had to abandon it and had to leave the stock loaded in the cars at the stock pen. It also appears that on acocunt of the stormy weather no freight trains were run upon this road during the next day, nothing but the wrecker and some passenger trains; that the stock was delayed in shipment at least one day and that the appellee was damaged by loss and shrinkage of his stock and in expenses incurred by him in caring for the stock, and it is not disputed but what the appellee was damaged to the extent claimed by him, but appellant insists that the delay in the shipment of the stock in question was unavoidable, due to a heavy snowstorm, and was not due to . any negligence of appellant and that appellant is not liable for the damages sustained.

As we understand the law, a common carrier is not necessarily liable for damages by reason of a failure to deliver goods upon schedule or within a reasonable time, unless such failure or delay is caused by the negligence of said carrier. “His duty is to deliver the goods within^ a reasonable time, which is a term implied by the law in the contract to deliver; as Tindal, 0. J. puts it, when he says, ‘the duty to deliver within a reasonable time being merely a term engrafted by legal implications upon the promise or duty to deliver generally. ’ In this respect, therefore, the common carrier stands upon the same ground with other bailees, and may excuse delay in the delivery of the goods by accident or misfortune, although not inevitable or produced by the act of God. All that can be required of him in such an emergency is, that he shall exercise due care and diligence to guard against the delay, and that if it occurred without his fault or negligence, he shall omit no reasonable efforts to secure the safety of the goods.” Hutchinson on Carriers, sec. 330. And the same author in section 331 says: “Accordingly, it has been held that when the carrier’s canal-boat was run into by a scowl, which made it necessary for him to stop for repairs, the delay thereby occasioned was excusable; or when he was delayed by deep snow, which made the road temporarily impassable; or the washing away of a bridge over a stream which it was necessary for the carrier to cross.”

In the case of Bacon v. Cleveland, C., C. & St. L. Ry. Co., 155 Ill. App. 40, it is said: “A common carrier is bound to deliver goods without "unreasonable delay, but the failure of a common carrier to deliver goods within a reasonable time involves the consideration of the question of negligence by the carrier, and a delay however long cannot be said to be unreasonable if the carrier can show that it was free from any negligence which contributed to such delay.” In the case of Chicago & A. R. Co. v. Simms, 18 Ill. App. 68, the fact that, “It was a fearful cold night, as cold as I ever saw it,” was said by the Court to excuse a delay in the shipment by a common carrier. We agree with counsel for appellee that a common carrier is liable for damages caused by unreasonable delay in the carriage of live stock when caused by their own negligence, and when unreasonable delay is proved that the burden of proof to excuse such delay is on the carrier. While as a rule the jury is .to determine the question as to whether or not the delay is excusable, yet when there is no conflict in the evidence and no evidence introduced to rebut the excuse for delay, and the excuse as offered is sufficient in law, then in our opinion it becomes a question of law for the court to determine as to whether or not such facts excuse the delay. We are, however, of the opinion that the evidence in this case shows such a state of facts as excuses the defendant for the delay complained of, and no effort having been made by the appellee to dispute the facts by which appellant sought to excuse the delay, we do not think that the jury were warranted in finding a verdict for the plaintiff. The evidence discloses that the track was all right; that the engine and appliances for hooking on to the box cars were in good condition and that the box cars would have been moved had it not been for heavy snow that had fallen, and this sufficiently accounted for the failure to take the stock out with the train on the morning of January 12th; that the stock was taken out by the next stock train that passed after the box cars were removed out of the way. The evidence being of this character it was at least necessary that the jury should have been correctly instructed with reference to the law, and as' we view it, this was not done.

Counsel for appellant complains of appellee’s third and fifth instructions. The third instruction is as follows: “The Court instructs the jury that where stock is placed in cars provided for them by the railroad company for transportation in time for the next regular stock train, the station agent of the Company at the place of shipment having knowledge of the fact, it is the duty of the company to carry the stock by the next regular stock train, and by their neglect to do so they will be liable for whatever damages, if any, may result by reason of the delay,” and the fifth instruction is: “You are instructed that a common-carrier cannot escape liability for loss occasioned by delay in transportation of goods by showing the delay to have been caused by the ordinary accident of railroad traffic.” These instructions are vicious and are not in harmony with the views expressed in this opinion, and do not take into account any legitimate excuse that may exist to cause the delay in shipment, and no instructions were given that in our judgment would correct the error in the giving of these. We are also of the opinion that the court erred in refusing defendant’s instructions, which were to the effect that if the defendant exercised reasonable care in attempting to get the stock out from the pens, and that the derailment of the car was without any fault or negligence upon the part of the defendant and that the defendant was reasonably dili-' gent in the removal of the obstruction, there would be no liability.

It may be that appellee upon another trial will be able to overcome the facts set up by the defendant as an excuse for delay, and for that reason we remand the case to give him an opportunity. As the record stands we are of the opinion that the Court erred in the giving and refusing of instructions and that the verdict of the jury was not warranted by the evidence, and the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Joseph C. Reynolds, Appellee, v. Alton, Granite City & St. Louis Traction Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 121

      —when instruction must include all ele'ments necessary to be proved. An instruction directing a verdict for plaintiff and assuming to be a complete statement of the case must include all the elements necessary to be proved by plaintiff.
    2. Carriers, § 482

      —when instruction ignoring essential elements is erroneous. In an action for personal injuries alleged to have been caused by the sudden start of a street car while plaintiff was attempting to board it, there being conflicting evidence as to the time and place where the injury occurred, an instruction which directs a verdict for plaintiff without reference to the time and place of injury, held reversible error.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Rehearing denied November 5, 1913.
    Statement of the Case.
    Action by Joseph C. Reynolds against Alton, Granite City & St. Louis Traction Company, a corporation, to recover damages for injuries sustained by plaintiff, alleged to have been caused by defendant suddenly starting its car while plaintiff was attempting to board it at a street intersection. From a judgment in favor of plaintiff for six thousand dollars, defendant appeals.
    Williamson, Burroughs & Ryder, for appellant.
    C. H. Burton, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.


author: Mr. Justice Higbee

text:
    The W. T. Rawleigh Medical Company, Appellant, v. T. B. Mount et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Guaranty, § 37

      —when instruction as to probative force of contract and signature misleading. In an action against guarantors, an instruction that the contract and the names of the defendants thereon are no evidence of the fact that defendants signed the same, held misleading as tending to wholly deprive plaintiff of the use of the contract, guaranty and names attached thereto as a probative force in establishing that the signatures were genuine.
    2. Witnesses, § 42

      —when wife incompetent.. In a suit against guarantors, the wife of a guarantor held incompetent to testify to matters In which she contradicted her husband and in relation to which she was not properly acting as his agent.

      Appeal from the Circuit Court of Johnson county; the Hon. Albert E. Somers, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by the W. T. Rawleigh Medical Company, against T. B. Mount and Dick Morgan, as guarantors of a contract entered into by plaintiff with W. E. Vaughn. From a judgment against plaintiff for costs, plaintiff appeals.
    Appellant claims that the verdict was not sustained by the proofs, that incompetent evidence was admitted on behalf of appellees and that the court erred in giving certain of appellees’ instructions.
    Cowan & Huffman and Mansfield, Cowan & Boulware, for appellant.
    O. R. Morgan and Spann & Spann, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

   Mr. Justice Higbee

delivered the opinion of the court.

3. Evidence, § 450 —when jury may compare signatures. When other writings or signatures admitted to be genuine are already in the case, comparisons may be made by the jury, either with or without experts of such signatures, with, the signature or signatures in question, to assist in determining the genuineness of the latter.


text:
    Milton Brown, Appellee, v. Royal Casualty Company of St. Louis, Missouri, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Alexander county; the Hon. William S. Dewey, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Milton Brown against Royalty Casualty Company of St. Louis, Missouri, to recover on an insurance policy payable to plaintiff as beneficiary. Default judgment for two hundred and five dollars was entered against defendant for want of appearance. From an order of court overruling defendants ’ motion to set aside the default and to grant a hearing on the merits, defendant appeals.
    Harry Hood, for appellant.
    M. J. O’Shea, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

Abstract of the Decision. .

1. Judgment, § 150 —grounds for setting aside default, motion to set aside a default judgment properly overruled -sphere the application fails to show what steps were taken hy the defendant in the case, and also omits to state he has a meritorious defense to the action and makes no showing of the-same.

2. Judgment, § 132 —discretion of court in setting aside default. An application to set aside a default is addressed to the sound legal discretion of the court.

3. Judgment, § 132 —when denial of leave to file amended affidavit to set aside default not an abuse of discretion. Denial of motion for leave to file an amended affidavit in support of a motion to set aside a default and to supply affidavits of merits, held not an abuse of trial court’s discretion.


text:
    Frances Kalinski, Administratrix, Appellee, v. Williamson County Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Albert E. Somers, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Frances Kalinski, administratrix of the estate of Peter Kalinski, deceased, against Williamson County Coal Company, a corporation, to recover damages occasioned by the death of deceased, alleged to have been caused by the negligence of defendant while deceased was employed as a timberman in defendants’ coal mine. From a judgment in favor of plaintiff for two thousand dollars, defendant appeals.
    Denison & Spiller, for appellant; Mastín & Sherlock, of counsel.
    Neeley, Galimore, Cook & Potter, Sharper & Kruger and T. R. Mould, for appellee.

      Abstract of the Decision.
    1. Master and servant, § 191

      —duty of master to warn servant. A master is not bound to warn a servant of dangers which are necessarily attendant upon the work he is about to do and of which he is warned by the very nature oí his employment, nor is he obliged to instruct a servant as to dangers which are obvious or known or ought to be known to him.
    2. Mines and minerals, § 176

      —when evidence sufficient to show negligence in not warning servant. In an action for damages resulting from the death of a timberman employed in defendant’s mine, a verdict for plaintiff held sustained by evidence showing that the deceased was inexperienced and that the manager was guilty of negligence in directing deceased to work in a dangerous place without warning him of the danger.
    3. Mines and minerals, § 168

      —admissibility of evidence. In an action for injuries resulting from failure of master to warn an inexperienced servant of dangers, evidence offered by defendant to show that the servant had submitted proofs to the union, of which he was a member, showing that he was a “practical miner,” held properly excluded as immaterial.
    4. Mines and minerals, § 172

      —when cross-examination of mine manager not prejudicial error. In an action for injury to servant in a mine, alleged to have resulted from the negligence of the mine manager in ordering an inexperienced servant to work in a dangerous place, the action of court in requiring the mine manager on cross-examination to answer a question whether he was well and healthy and able to walk over the mine so as to see the conditions of the place where he ordered servant to work, held not prejudicial error.
    B, Mines and minerals, § 182

      —questions for jury. Whether an order of a mine manager was, from its nature, wilful or whether there was a wilful failure to warn servant of his danger, held a question for the jury.
    6. Mines and minerals, § 181

      —when proximate cause of injury a question for jury. Whether failure of a mine manager to warn servant of dangers was the proximate cause of the injury, held a question for the jury.
    7. Mines and minerals, § 191

      —when instruction not misleading for failure to define promixate cause. Instruction referring the question whether defendant’s wilfulness was the proximate cause of the injury without defining the term “proximate cause” held not misleading where the jury were accurately informed as to what they must find from the proofs.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

8. Instructions, § 95*—when instruction as to credibility of witnesses not objectionable as allowing unlimited latitude. Instruction telling the jury to give the testimony of witnesses “such weight and credit as they think the same justly entitled to receive,” held not objectionable as allowing jury unlimited latitude in judging of credibility of witnesses and not requiring them to base their judgment on the evidence, where the instruction distinctly tells them that they must fairly and impartially weigh and consider all the evidence and circumstances in proof.

9. Negligence, § 213*—when instruction not misleading. Instruction that question of negligence of defendant and due care on part of deceased are to be determined from the evidence, held not misleading because it does not inform the jury of the law applicable to the case where the theories of the law applicable are given in other instructions.


text:
    Eva Wood, Appellee, v. Louisville and Nashville Railroad Company, Appellant.
    1. Carriers, § 476

      —sufficiency of the evidence. In an action for injuries sustained by plaintiff as a passenger at the time of a collision between defendant’s trains, evidence held sufficient to warrant jury in finding that plaintiff was injured at the time and in the manner claimed.
    2. Carriers, § 473

      —when opinion as to extent of injuries not rendered inadmissible. Opinions of physicians that plaintiff’s stunted growth was caused by the injuries found upon her, held not inadmissible because they infer that plaintiff was really injured as claimed.
    3. Carriers, § 474

      —when statement of conductor inadmissible. In an action for injuries to a passenger resulting from a collision, failure to exclude evidence of what the conductor said after the collision held not material error.
    4. Pleading, § 253

      —when declaration may be amended. Where the case is tried as though damages for stunted growth of plaintiff were included in the claim for damages, declaration may be amended after verdict to include such damages.
    5. Damages, § 213

      —when instruction on right to recover for loss of ability to perform usual duties not improper. In an action by a married woman for personal injuries sustained by her .at the time she was under age, an instruction that she may recover for loss of ability to perforin her usual duties held not objectionable for not excluding loss of earnings prior to plaintiff’s majority and since her marriage.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    James M. Hamill and Charles P. Hamill, for appellant.
    D. J. Sullivan, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit to recover damages on account of severe personal injuries alleged to have been received by her on July 7, 1907, while she was- riding on one of appellant’s passenger trains near Poindexter, Kentucky. There is but one count in the declaration and it charges that appellant so negligently managed certain of its trains running in opposite directions, on the same track, that they collided and ran together whereby appellee, while being carried as a passenger upon one of said trains, was thrown with great force and -violence on the floor of the car, in which she was being carried, and some heavy object was thrown upon her, seriously injuring her back, stomach, limbs and nervous system. There was a plea of the general issue, a verdict for two thousand five hundred dollars, a motion for a new trial, which was overruled, and a judgment for the amount of the verdict.

Appellant urges as reasons why this judgment should be reversed, that the verdict is against the weight of the evidence and that the court below erred in its rulings upon the evidence and in instructing the jury. Appellant does not deny that the collision, in which appellee claims to have been injured, really occurred, but insists that it was of so slight a nature that appellee could not have been seriously injured by reason thereof, and that all the facts and circumstances in evidence show it to be unreasonable that appellee could have been injured at the time and in the manner she claims.

It appeared from the testimony of appellee and other witnesses introduced in her behalf, that on the afternoon of the day in question, she and her mother left Cincinnati on one of appellant’s passenger trains to go to Jeffersonville, Kentucky. Shortly after leaving Poindexter, and while yet moving slowly, a train on which she was riding collided with one coming in the opposite direction. Appellee, who was then thirteen years of age, had left her home in Granite City, Illinois, on the day before, with her mother to visit relatives near Jeffersonville. At the time of the collision, she was attempting to raise the car window and was, by the impact, thrown violently to the floor and the back of one of the car seats fell over on her, bending her forward,so that she could not get up. A passenger or train man came to her assistance and extricated her from the position she was in. Some one bathed her head and face and she was then taken out of the car to the roadside. After a wait of some two or three hours she was led back to the train which proceeded on its way with the same engine, which though injured was able to pull the train. Appellee and her mother testified that windows were broken out and a lamp broken at the time of the collision and that other persons besides appellee and her mother were hurt. A number of witnesses who were passengers on the train at the time, and whose depositions were taken by appellant, testified the impact of the trains at the time of the collision was but slight and that they did not know of glass or the lamp being broken or any one being injured. It was not shown, however, that these witnesses were in the same car with appellee. She and her mother left the train at Mt. Sterling, where they stayed all night and the next day they obtained a conveyance and drove some five miles in the country, to the home of appellee’s aunt, Mrs. Curtis, where they remained visiting about two weeks. During their visit there they made two trips in a buggy to the home of a cousin named Wilson, some two and a half miles distant. Appellee claims that in the collision she received a rupture of the umbilicus and an injury to her spine and that while at her aunt’s she suffered from these injuries and was part of the time confined to her bed. On their way home at the end of the two weeks, appellee and her mother spent two days in Cincinnati, where appellee was confined to her bed and her mother procured medicine for her. Upon her return home she continued to grow worse and a physician who made an examination of her early in September, 1907, found bruises over her back, soreness through the abdominal regions and a rupture of the umbilicus. This physician testified that up to the the time she received these injuries, she was in good health and of normal size but that since then she had been in poor health and that nearly five years later, at the time of the trial, she had not grown any larger and he attributed her stunted condition to the injuries he found. In the fall of 1907 she attended school at home.and while the teacher’s record shows a fairly good attendance, her testimony was that she would go in the morning and the teachers would have to excuse her on account of being sick and send her home, and she said, in explanation of the record, that the teacher often permitted her to go home during the day after the school register had shown she was present. As to whether she was able to be up and about or was really confined to her bed most of the time during the first few months of school there was quite a controversy, but it appears that about Christmas time she was unable to attend school longer and was then confined to her bed for some nine weeks after which, on the advice of her physician, she was sent to Colorado for her health where she remained about three months. When she returned the next fall, her mother sent her to a boarding school in Alton but her health was so poor she was unable to continue her studies so she soon returned home. At the time of the trial she weighed but seventy-two pounds and could wear the same clothes she did at the time of the injury, more than five years before, when she was but thirteen years of age, and during that time she had not been able to attend to her household duties.

The evidence further showed that in October, 1911, appellee was married and that she was living with her husband at the time of the trial. Appellant claims the fact that no physician was called to attend to appellee from the time of the injury in July until the following September, tends to discredit the testimony of appellee and her mother as to the happening of the injury, or that, if it did happen, it was of a serious nature. Depositions of four of the Wilsons, relatives of appellee, visited by her and her mother on two different days while they were in Kentucky, were taken. Two of them testified that they never heard appellee mention being in a railroad wreck while she was at their house. Another testified that appellee never spoke to her of being in a wreck but she heard her speak to another relative of being in a wreck; that witness never heard her complain of being ill. The fourth Wilson testified that she heard appellee say something one evening about being “shook up” but did not hear her say she was hurt.

Appellee and her mother testified that they did talk to the Wilsons about the wreck and about their injuries and that they told them to bring suit against the railroad company and they would help. Appellee’s mother further testified that when she went back the last time, the Wilsons told her they had seen the railroad agent, and they would not help her at all.

It was clearly shown by the proofs that appellee was in a normal physical condition just prior to the time she claims to have been injured by the collision, and that shortly thereafter she became sickly, emaciated and ceased to grow; that her back and spine have been in some way injured, her umbilicus ruptured and that, at the time of the trial, nearly five years later, she was stunted and had not reached her natural growth; and that she had been for a long time, to a greater or less extent, under the care of physicians. It also appeared from the testimony of witnesses on both sides of the case that a collision of the trains on appellant’s road occurred at the time claimed by appellee, but whether the impact of the trains was of sufficient violence to cause any serious disturbance or annoyance to the passengers, and whether appellee was seriously injured at that time, were mooted questions. No one of the train crew having charge of the train on which appellee was riding was called as a witness by either side, to show the extent of the collision, but the evidence upon the whole was sufficient to warrant a jury in finding that appellee was injured at the time and in the manner claimed by her.

The declaration, as originally filed, claimed no damages for stunted growth of appellee, but evidence on this subject, having appeared, the cáse was tried as though such damages were included and, under the circumstances, the court properly permitted the declaration to be amended to conform to the evidence, although such amendment was not made until after verdict.

In regard to the evidence appellant complains that physicians were permitted to state as their opinion, that appellee’s arrested growth was caused by the injuries they found on her, it being contended that the inference from the answers was that she was really injured as she claimed, by a collision of appellee’s trains at the time in question. We do not thiuk the objections of appellant to this evidence were well founded. None of the physicians claim to know on what occasion appellee was injured or what caused the injuries to her but they testified simply as to the nature and extent of the injuries which they found upon her person, and such testimony was pertinent and proper to determine the amount of damages sustained by her.

Appellant also complains that appellee was permitted to testify as to a conversation with the conductor of her train after the collision, in which he said “the other train was going a good deal faster than our train.” We think this was not part of the res gestae and the answer might well have been excluded, but the failure to exclude was not of sufficient importance in this case to constitute material error. We have examined other objections to the rulings of the court in regard to the evidence but find they are of minor importance and that they do not call for further discussion.

The fourth instruction for appellee was upon the question of the measure of damages and, after mentioning other elements of damage, told the jury they could consider the effect the injuries suffered by plaintiff, if any, have had upon her ability to perform her usual duties since she became eighteen years of age and the effect the same will have upon her ability to labor and perform her usual duties, so far as such effect, if any, is shown by the evidence. One criticism of this instruction made by appellant is that it did not exclude from the consideration of the jury any loss of earning power which she may have suffered during her minority. We think this hypercritical, as, while the instruction does not in words exclude loss of earnings prior to appellee’s majority, yet the whole purport and one of the objects of the instruction is plainly to inform the jury that they can only consider the effect of such injuries upon appellee’s ability to perform her usual duties, after she had become eighteen years of age and not before. A further criticism of such instruction made by appellant is that it included a right to recover for injuries to her ability to perform her usual duties since her marriage, the claim being that the husband had the right to her services since that time and that he alone eonld recover for their loss.

Appellant cites some authorities to sustain the doctrine that a wife cannot recover damages for those services to which her husband alone is entitled. The right of the husband to recover for injuries received by the wife, which impair her ability to perform those duties of which he receives the benefit, to the exclusion of the right of the wife to recover for the same, is one which is not looked upon with favor by the courts at the present time, and the wife’s right of recovery for such injuries is being recognized to a greater and greater extent; but even if that doctrine should be fully recognized it cannot apply as an objection here, for the reason that the words of the instruction do not confine the same to injuries to her ability to perform duties to which her husband could be said to be entitled, but duties which are personal to herself and do not constitute a claim for loss of time.

In City of Joliet v. Conway, 119 Ill. 489, the plaintiff in the suit was a married woman, residing with her husband, who had done housework continuously from her marriage until she was injured, as charged, by the failure of said city to maintain in suitable repair a certain sidewalk. In that case the Court held the law to be that the damages to be recovered for must be such as the plaintiff has herself sustained, and the fact that she had a family to care for and maintain formed no proper elements for the consideration of the jury, but the Court further said: “It became of the first importance that the jury, in estimating the damages plaintiff had sustained from the permanent character of her injuries, and her disability to labor in consequence, should know her previous physical condition and ability to labor or follow the avocation in which she was engaged.”

In Chicago & M. Elec. Ry. Co. v. Krempel, 103 Ill. App. 1, an instruction was approved, which authorized the jury to consider what effect the injuries received by a married woman might have upon her in the future in respect to her ability to perform ordinary labor. We are of the opinion there was no error in giving this instruction nor in refusing appellant’s fifth, sixth, seventh and eighth instructions, all of which embodied the theory contended for by appellant in this respect. The judgment of the court below should be and acordingly is affirmed.

Affirmed.


text:
    W. H. Krome, Administrator, Appellee, v. William U. Halbert, Public Administrator, Appellant.
    1. Wills, § 211

      —effect of recording foreign will. By the filing and admission to record of the will of a nonresident in the Probate Court of a county of Illinois, the will becomes by virtue of R. S. c. 148, § 10, J. & A. 1f 11551, good and available in law, in like manner as wills proved in such court.
    2. Executors and administrators, § 569—when public administrator is entitled to administer. The administration of the estates of nonresident intestates shall be granted the public administrator only in cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of the decedent is a bona fide resident of Illinois, and desires to administer or to nominate some one else to administer upon the estate.
    3. Executors and administrators, § 569

      —when public administrator not entitled to administer. Where a nonresident of Illinois dies leaving a will appointing a nonresident as executor and leaves two brothers as the only heirs at law, one of them who is a beneficiary under the will and a resident has the right to name an administrator with the will annexed, as against the right of a public administrator to such appointment.
    4. Executors and administrators, § 566

      —how statute as to appointment construed. By virtue of the Administration Act, § 1, J. & A. If 49, the Probate Court must, in case of a nonresident executor, commit the administration unto the widow, surviving husband, next of kin or creditor, or some one nominated by the one entitled to administer, and the words “the same as if the testate had died intestate” do not authorize appointment of a public administrator in any case where one of the persons designated in the statute is living in Illinois and desires either to administer or to nominate an administrator with the will annexed.
    Appeal from the Circuit Count of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    J. M. Hamill and C. P. Hamill, for appellant.
    Daw McGlynn and Springer & Buckley, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

   Mr. Justice Higbee

delivered the opinion of the court.

On April 20, 1912, Anna Zwingmann, a resident of the city of St. Louis, Missouri, departed this life, leaving a last will and testament, appointing Frank J. Lutz, a resident of said city of St. Louis, her executor. Her only heirs at law were two brothers, John William Brauel, a resident of Madison county, Illinois, and Paul Brauel, a resident of St. Louis. At the time of her death she was the owner of personal property in St. Clair county, Illinois, amounting to about $33,000, and also certain real estate located in said St. Clair county. Her will was admitted to probate by the Probate Court of St. Louis, Missouri, on April 23,1912, and on May 3 following, her brother, John W. Brauel, filed a petition in the Probate Court of St. Clair county, praying for the appointment of William H. Krome, a resident of Edwardsville, Illinois, as administrator, with the will annexed. Later, on May- 6, 1912, William U. Halbert, public administrator of St. Clair county, filed his petitioin in the Probate Court of said county, stating that said Anna Zwingmann died testate, leaving personal estate in said St. Clair county; that the executor named by her in the will was a nonresident of the State of Illinois and therefore disqualified from acting as executor, and praying that said public administrator be appointed as administrator of her estate with the will annexed. The two petitions were heard together in the Probate Court of St. Clair county and that court, on May 25, 1912, appointed the public administrator as administrator with the will annexed of the estate of said Anna Zwingmann. Upon appeal the Circuit Court reversed the decision of the Probate Court, revoked the letters of administration granted to the public administrator, and caused letters of administration to be issued to said William H. Krome on the petition filed by John W. Brauel, brother of the deceased. The public administrator has appealed to this court and the record presents the question whether, under the facts in this case, concerning which there is no controversy, the brother of the deceased, a beneficiary under the will and a resident of this State, has the right to name the administrator with the will annexed, or whether the public administrator of St. Clair county, Illinois, where the personal property belonging to the testate in this State is located, has the right to such appointment.

By the filing an admission to record of the last will of Anna Zwingmann, deceased, in the Probate Court of St. Clair county, Illinois, the same, by virtue of our Statute of Wills, became good and available in law, the same as wills proved in such court. B. S. c. 148, § 10. (J. & A. IT 11551.)

Section 1 of our act on administration of estates (J. & A. IT 49) provides: That when a will has been duly proved and allowed, the county court shall issue letters testamentary thereon to the executor named in such will, if he is legally competent and accepts the trust and gives bond to discharge the same; and when there is no executor named in such will or the executor named therein dies, refuses to act or is otherwise disqualified, the court shall commit the administration of the estate unto the widow, surviving husband, next of kin or creditor, the same as if the testate had died intestate.”

Appellee contends that the sections of our statute above referred to authorized his nomination as administrator of the estate in question by John W. Brauel, brother of the deceased, as next of kin. On the other hand, appellant insists that section 18 of the act in reference to the administration of estates (J. & A. ft 66) should be read together with section 1 and by so doing the public administrator must be held entitled to administer on said estate. That section provides that the ‘ ‘ administration of the estate of all persons dying intestate shall be granted to some one or more of the persons hereinafter mentioned and they are respectively entitled to preference thereto in the following order: First. To the surviving husband or wife, or any competent person nominated by him or her. * * * Fifth. To the brothers or any competent person nominated by them. * * * Eighth. To the next of kin or any competent person nominated by them. * * * Ninth. To the public administrator or to any creditor who shall apply for the same * * * in all cases where the intestate is a non-resident, and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent is a bona fide resident of this State, administration shall be granted to the public administrator.”

It is the claim of appellant that the executor of the will in question, being disqualified, an administrator with the will annexed must be appointed according to the same rules which would govern the appointment of an administrator were the deceased intestate, and that said section 18 expressly provides that in all cases where the intestate is a nonresident, administration shall be granted to the public administrator. Appellant, in support of the construction given by him to section 18, calls attention in his brief to the history of that part of the act relied upon. Section 51 of the Statute of Wills of 1829, provided that if the intestate was a nonresident or without a widow, next of kin or creditors in this State, but having-property within the State, administration should be granted to the public administrator. Section 18 of the Act of 1872 on the administration of estates, which was carried into the Eevised Statutes of 1874, and is identical with the Statute of Wills of 1845, contained the following provision, “in all cases where the intestate is a non-resident or without a widow, next of kin or creditors in this State, but leaves property within the State, administration shall be granted to the public administrator of the proper county.” This section was again amended in 1905 to provide that, “in all cases where the intestate is a non-resident and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent, is a bona fide resident of this State, administration shall be granted to the public administrator,” and that provision as hereinbefore set forth, is now in force.

In the case of Rosenthal v. Prussing, 108 Ill. 128, in an opinion filed in 1883, it was held that the word “or” in the Act of 1872, as above referred to, should have been “and” and that the section should be so interpreted. It was therefore held that an Illinois creditor of a nonresident intestate was entitled to administer in preference to the public administrator. The Court also said in that case: “If the principle is to obtain at all of giving to the next of kin and creditors living in this State a preference over the public administrator in administering, we do not perceive why it should not be given to them as well in the case of a non-resident as of a resident intestate.”

Later in Re Estate of McWhirter, 235 Ill. 607, in an opinion filed in 1908, it was held that under the provision of said section 18 of the Administration Act, the public administrator in that case was entitled to administer, but his right appears to have been based upon the ground that there was no widow or next of Mn entitled to share in the estate, who was a bona fide resident of Illinois, and in the course of the opinion it was said by the Court: “The right to administer is not a natural right in any one, hut resides first in the State, and the State may in certain cases, as where no relatives are within its jurisdiction, place the administration in the hands of its own officer, the public administrator.”

We are of opinion it is the policy of this State, to be drawn from the provisions of the statute and the authorities above referred to, that the administration of the estates of nonresident intestates shall be granted to the public administrator only in cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of the decedent is a bona fide resident of this State and desires to administer or nominate some one else to administer upon the estate. It follows that if the same rule is to apply to the appointment of an administrator with the will annexed when an executor is disqualified by being a nonresident, that the court below properly allowed the brother of the testate to name such administrator.

We are further of opinion that by the direct wording of section 1 of the Administration Act (J. & A. jf 49) above referred to, the Probate Court must, in case of a non-resident executor, commit the administration unto the widow, surviving husband, next of kin or creditor or some one nominated by the one entitled to administer and that the words “the same as if the testate had died intestate ’ ’ do not enlarge the scope of the statute so as to authorize appointment of a public administrator, in any case where one of the persons designated in the statute is living in this State and desires either to administer or nominate an administrator with the will annexed. The judgment of the court below appointing appellee administrator, with the will annexed, of said estate will accordingly be affirmed.

Judgment affirmed.


text:
    St. Louis Wholesale Clothing & Manufacturing Company, Appellee, v. Joseph Lonie, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bankruptcy, § 71

      —when failure to schedule debt not a defense. Abraham Rosenberg obtained a judgment against a debtor for $29.60 and instituted garnishment proceedings, wherein it appeared the debtor had scheduled in prior bankruptcy proceedings a debt due “Nathan Rosenberg, judgment $35.” PlaintifE testified that he had no notice of the bankruptcy proceedings and that his son Nathan was not a manager of his business. The son corroborated this evidence and also testified he had not received a copy of the notice of the bankruptcy proceedings. The debtor testified his creditor had notice of the proceedings from a conversation. Meld, a finding that the debt had not been scheduled, that the creditor had no notice or knowledge of the proceedings and that the discharge in bankruptcy was no protection, would be sustained.
    Appeal from the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    A. Rosenberg,, trading as the St. Louis Wholesale Clothing & Manufacturing Company, obtained a judgment against Joseph Lonie, instituted garnishment proceedings and obtained a judgment therein. From the latter judgment, Joseph Lonie appeals.
    John J. Brenholt, for appellant.
    J. V. E. Marsh, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Adolph Hitz, Appellant, v. Illinois Central Railroad Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 919

      —when presumption of negligence from fire is overcome. Proof that a fire causing damage was communicated by the locomotive of a railroad company’s engine raises a prima facie inference of negligence on the part of the company, which can be overcome by proof that the locomotive was equipped with one of the best and most approved spark arresters, that the arrester was, at the time the fire was communicated, in good order and repair, and that the locomotive was being carefully managed at the time by a competent and careful engineer.
    2. Appeal and error, § 998

      —when admission of plat is not presented for review. Error in the admission in evidence of a plat having certain marks and statements thereon cannot be determined where the plat does not appear in the record.
    3. Railroads, § 921

      —when sparh arrester is sufficiently identified. A spark arrester is sufficiently identified to be introduced in evidence in an action for damages caused by fire set by a railroad locomotive, where the engineer and supervisor of appliances testified that no changes had been made in the arrester before examination, and it is also shown that it was the same one brought into court and was in good condition when examined.

      Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied November 5, 1913.
    Statement of the Case.
    Action by Adolph Hitz against the Illinois Central Railroad Company, a corporation, to recover damages caused by fire set by one of the company’s engines. From a judgment for the defendant, plaintiff appeals.
    Springer & Buckley, for appellant.
    C. H. Burton, for appellee; John G. Brennan, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

4. Tbial, § 78*—when rebuttal evidence may be excluded. Testimony offered in rebuttal by a plaintiff in an action for damages caused by fire set by a railroad locomotive, as to the burning, may be refused where the subject matter of the testimony was fully gone into in the case in chief.

5. Appeal and ebbob, § 1639*—when omission in instruction is cured. An instruction omitting to state that proof must be made by a preponderance of evidence will -not reverse where the omission could not have misled when all the instructions were considered together.


text:
    Warren Watson, Appellee, v. Alice E. Vollentine, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Warren Watson against Alice E. Vollentine to recover money claimed to be due to plaintiff for selling real estate owned by defendant under a written instrument giving plaintiff authority to make the sale. From a judgment in favor of plaintiff for six hundred and ninety dollars, defendant appeals.
    Appellant claims that the contract relied on was unilateral and void for want of mutuality; that the court erred in excluding certain evidence offered by appellant and in the rulings in regard to the instructions; and that the proofs did not entitle appellee to recover.

      Abstract of the Decision.
    1. Contracts, § 13*—when not void for want of mutuality. A written instrument giving a person authority to sell real estate and to pay compensation for finding a purchaser, held not unilateral and void where one party has procured a purchaser and the other has received the purchase money.
    2. Brokers, § 84*—when evidence of amount expended hy principal incompetent. In an action to recover compensation for procuring a purchaser of real estate for defendant, evidence offered by defendant as to amount she had expended to perfect the title and to pay interest on mortgage held incompetent where the written agreement between the parties provided that defendant should bear this expense.
    3. Brokers, § 95*—when instruction on effect of revocation of contract, properly modified. In an action on a contract to recover compensation for selling real estate for defendant, defendant’s instruction telling the jury that defendant had a right to revoke the contract and thereby deprive plaintiff of compensation, held properly modified so as to require such revocation to have taken place prior to the execution of the sale.
    C. H. Burton, for appellant.
    P. H. Hiles and J. L. Simpson, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    John J. Bundy, Public Administrator, Appellant, v. Roy Wilkins et al., Appellees.
    Executors and administrators, § 28

      —when nominee of next of Mn entitled to appointment as administrator. Where an intestate dies leaving only nephews and nieces and grandnephews and grandnieces as next of kin, a nominee of a majority of all the resident next of kin who are competent to administer, held entitled to appointment as administrator as against the right of the public administrator to administer, where the nomination is made within sixty days after the death of the intestate.

      Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Bundy & Wham, Holt & Wilson and E. D. Telford, for appellant.
    Kagy & Vandervort, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

This suit involves the appointment of an administrator of the estate of Sea Bird Wilkins, a former resident of Marion county, Illinois, who died intestate on June 4, 1908. At the time of his death he was possessed of a large estate of real and personal property. He had never been married and his heirs at law consisted of a number of nephews and nieces, grandnephews and grandnieces, residing in this and other States. Shortly after his death, on June 6, 1908, S. Catherine Justice, a niece, residing in this State and therefore competent to administer on his estate, waived her right so to do, naming Demalian Justice, her son, as administrator of said estate. The County Court made the appointment and about an hour later a number of others, next of kin, competent to administer, filed a petition waiving their rig*ht, and asking the appointment of Boy Wilkins, the appellee herein. This petition the County Court refused to entertain, and the petitioners appealed from the order appointing Demalian Justice administrator to the Circuit Court of Marion county, where the appointment was sustained and on appeal to this court the order of the County Court was affirmed. Wilkins v. Justice, 158 Ill. App. 504. The case was then appealed to the Supreme Court, where the judgment of the Appellate and Circuit courts were reversed. (251 Ill. 13.) That court in discussing the case said: “If no qualified heir of the class (that is the class entitled to the appointment) desires to be appointed, then the fair and reasonable method, when there is no unanimous nomination, is, everything else being equal, for the court to appoint the nominee of the majority of the class.” Under that decision the majority, which would have the right to nominate the administrator, would be a majority of the resident next of kin competent to administer. A motion for a rehearing was denied by the Supreme Court on October 4, 1911, and on February 26, 1912, John J. Bundy, public administrator of Marion county, filed a petition on his own behalf asking that letters of administration be granted to him as such public administrator. The petition set out the names of fifty-three resident and seventy-three nonresident next of kin and heirs at law of Sea Bird Wilkins, and alleged that no petition had been filed by the next of kin or majority of them for appointment, as administrator of said estate, within sixty days from the death of said intestate. On March 16,1912, Boy Wilkins filed his petition stating that he was the choice of a majority of the next of kin for administrator of said estate. “That within sixty days from the death of the said Sea Bird Wilkins, a majority of the nearest of kin petitioned for the appointment of your petitioner as such administrator, and that the majority of all the other next of kin within the next sixty days, petitioned for the appointment of your petitioner as such administrator, who learned of the death of the said Sea Bird Wilkins, deceased, and that as soon thereafter as other distributees residing in the State of Illinois, learned of the death of said Sea Bird Wilkins, deceased, and learned that they were such distributees, they also petitioned for the appointment of your petitioner as such administrator. ’ ’ The petition also stated that a majority of the next of kin and distributees, who lived outside of the State of Illinois, had also petitioned and expressed a desire for the appointment of said petitioner as such administrator.

The Supreme Court in the opinion above referred to stated that, “any one of the nephews and nieces residing in this State, and otherwise qualified, was entitled to be appointed as administrator, and the court might have granted letters to any one or more of them.” From this statement appellees draw the conclusion and insist here that the phrase “next of kin,” as applied to this case, does not include all the distributees of the estate but only the nephews and nieces, this class being the nearest “next of kin;” that therefore the persons having the right to administer or to appoint an administrator for this estate are the nephews and nieces of the deceased, residing in this State. If this view of the law be correct, the case is easy of determination, as it appeared from the proofs there were only seventeen resident nephews and nieces, fifteen of whom, within sixty days, waived their right to administer and nominate Boy Wilkins administrator, which would establish his right to have letters of administration on said estate granted to him. Appellant, however, insists grandnephews and grandnieces, being distributees of the estate, must also be treated as next of kin within the meaning of the statute entitling them to administer; that there were forty-eight of this class residing in the State of Illinois, competent to administer, and that only twenty-three of them had signed the petition for Boy Wilkins within sixty days after Sea Bird Wilkins’ death; that therefore a majority of the next of kin of legal age residing in Illinois had failed to petition for the appointment of Boy Wilkins within said sixty days and consequently administration should be conferred upon the public administrator.

Appellees meet this contention by the claim that the proof shows there wére only forty persons residents of the estate qualified to nominate, even if all the distributees be considered next of kin, and that of this number twenty-three had petitioned for his appointment within the sixty days and three more before appellant had filed his petition. In appellant’s list of resident next of kin was the name of Ora D.enton Beeves but she died, leaving an infant son as her only heir at law, shortly after the death of Sea Bird Wilkins, though whether it was before or after the expiration of the sixty days is not shown.

Appellees insist that the name given in appellant’s list as “Lettie Beed” should really have been “Lottie Beeves, ’ ’ shown by the proofs to have been one of the daughters of Joseph Wilkins, who was of unsound mind and did not die until after the sixty days had expired. They further claim that the name of “Millie Wilkins,” which appears upon the list, should have been “Mary Wilkins,” who was a minor and not capable of making a selection. An examination of the several petitions filed for appellee fails to show the names of Lottie Beeves, Lettie Beed, Millie Wilkins or Mary Wilkins as distributees of the estate.

Luther Holt, whose mother was a niece of Sea Bird Wilkins, testified on the part of appellees. In his testimony he gave a list of the heirs of Sea Bird Wilkins, nephews and nieces, grandnephews and grandnieces, who were of age and residents of the State of Illinois and in this list none of the above names were given. This must be taken as proof tending to show that neither Lettie Beed nor Millie Wilkins were competent to nominate an administrator and these were included in the list of forty-eight claimed by appellant to be competent. Under these circumstances, we think the court below would have been warranted in excluding the names of Ora Denton Beeves, Millie Wilkins and Lettie Beed from among those competent to nominate an administrator, and with these names eliminated, the list of those asking for the appointment of appellee Boy Wilkins will contain a majority of those competent to nominate the administrator.

It is worthy of comment that prior to the time appellant, as public administrator, filed his petition, three more of those claimed by him to be entitled to nominate, namely, Mary Sloan, Elijah J. Aultman and Polly Helm, filed their petitions asking for the appointment of Boy Wilkins as administrator.

In the case of Savage v. Luther, 165 Ill. App. 1, in a case involving a controversy between the public administrator and the heirs at law, as to the right to administer upon the estate of an intestate, the Court says: “The public administrator has no right to enter into a controversy with the heirs at law of an intestate to prevent their securing their preference to administer or to nominate, nor should he be permitted to resort to any technicality to prevent a resident heir from obtaining administration or nominating an administrator during the sixty days succeeding the death of the intestate. It was not intended by the statute to give the public administrator a foothold from which to wrest the administration from the heirs at law. His only proper function is to accept administration when administration is necessary and the specified heirs and distributees have failed to exercise their preference to administer or to nominate within the time given them therefor.” We agree with the sentiment above expressed by the Appellate Court of the Second District and having this in view, we are of opinion that in this case where appellant was seeking to establish his right to administer as against that of one who was next of kin, the judgment of the court below sustaining the right of appellee Boy Wilkins as next of kin to administer upon the estate should be sustained.

Judgment affirmed.


text:
    Sarah E. Long, Appellee, v. Hugh H. Long, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Husband and wife, § 219

      —when wife entitled to separate maintenance. In an action for separate maintenance where the bill alleges that the husband left his wife and went to a soldiers’ home and failed to make provision so as to enable her to secure the necessaries of life, evidence held sufficient to show that she was entitled to separate maintenance.
    2. Husband and wife, § 243

      —when allowance in separate maintenance not unreasonable. In an action for separate maintenance where husband left the wife and lived at a soldiers’ home, having property valued at five thousand dollars, an allowance of twenty-five dollars a month held reasonable.
    3. Appeal and error, § 998

      —when record must preserve documentary evidence denied admission. In a separate maintenance proceeding, the question whether the contents of a bill for divorce was admissible in evidence is not preserved for review when bill is not preserved in the record.
    Appeal from the Circuit Court of Perry county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Bill by Sarah E. Long against Hugh H. Long for' separate maintenance. From a decree awarding complainant twenty-five dollars a month, defendant appeals.
    Nelson B. Layman, for appellant.
    B. W. Pope, for appellee; R. J. McElvain, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court'.