text:
    Margaretha Schulz, Administratrix of the Estate of Frederick Schulz, Deceased, Appellee, v. National Brewing Company, Appellant.
    Gen. No. 23,250.
    Master and servant, § 687

      —when death of employee hy explosion of dust in grain elevator shown not result of negligence. Where defendant, a brewing company, maintained in its brewery building a certain grain elevator, a standard appliance in use for 14 years without an explosion, at the top of which was a fan used to prevent an accumulation of dust in co-ordination with the elevator, according to a system which had been in use in other countries for over 50 years and in parts of the United States for some years, the operation of which removed most but not all of the dust, which was of an explosive nature, but the cause of which explosions was not certainly known, and all of which appliances were in good working order and regularly inspected, held that defendant had taken care commensurate with the danger, and, assuming the application of the principle of res ipsa loquitur to make out a prima facie case of negligence, was affirmatively proven not guilty of negligence, in an action to recover for the death of plaintiff’s intestate, one of its employees, who died from blood poisoning resulting from an injury caused by an explosion in defendant’s elevator.
    Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed March 13, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Landon & Holt, for appellant; Benson Landon, of counsel.
    Juul & Juul, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the National Brewing Company, appellant, from a judgment in the sum of $5,000, recovered by appellee, for negligently causing the death of one Frederick Schulz. His death was the result of a dust or gas explosion upon the premises of the National Brewing Company, appellant. The case has been tried twice. On the first trial, at the close of the plaintiff’s evidence, a verdict was directed for the defendant (appellant here), and, on a writ of error to this court [195 Ill. App. 385], the judgment entered on that verdict was reversed and the cause remanded for a new trial, on the ground that “there was evidence tending to show the presence in the elevator of quantities of grain dust and the proximity of lighted gas jets; that such dust is of a highly explosive nature and, on contact with flame or spark, will explode; * * * that the device used by defendant to remove the dust is not effective for the purpose, and that other methods, which a witness described in detail, would prevent such an explosion”; that the evidence fairly tended to support the plaintiff’s ease and should have been submitted to the jury. Upon the second trial the jury returned a verdict for appellee, and judgment being entered thereon, this appeal was taken.

The accident happened on May 19, 1910, a little before eight o’clock in the morning, at the defendant’s brewery, a five-story building situated on the north side of 18th street, at the corner of that street and Lincoln street.

There was a gangway about 16 feet wide and 125 feet long, which extended north through the building to an alley. In the gangway there was a loading platform which commenced at a point 12 or 14 feet north of 18th street and extended 18 or 20 feet towards the alley. The platform was about 18 feet long and about 7 or 8 feet wide, and was on the west side of the gangway. On the west side of the gangway, at the comer of 18th street, there was a small office about 12 by 12 feet. On the top, or fifth floor of the building, there was a malt room, about 20 by 40 feet in dimensions, and from that room a large storage, bin extended down to within a few feet of the basement floor. The grain elevator, in and about which the explosion took place, ran from the basement into the fifth .floor, a distance of about 60 feet. A feed pipe or chute, about 6 inches in diameter, ran from the bottom of the bin, and another from the loading platform into the foot of the elevator. The bottom of the elevator, called a “boot,” rested on the basement floor and from that there extended upwards two circular galvanized iron pipes or “legs,” about 12 inches in diameter and about 3 feet apart.. In the “legs” there ran a continuous rubber belt going upward in one and down in the other. To that belt, at intervals of about 15 inches, there were attached buckets or scoops. Between them and the sides of the elevator there was a clearance of about half an inch all around. The buckets scooped up the grain in the boot and carried it to the top of the elevator where it was discharged into conveyers. The grain was let into the bottom of the boot in a regulated amount so that it would not accumulate and stop the machinery. The elevator was usually operated for a short time in the neighborhood of eight o’clock each morning and stood idle for the rest of the day. The basement in which the boot of the elevator stood was about 4 feet below the level of the driveway. It was usually damp and wet down there, owing to the fact that kegs and barrels were washed in the basement. About 3 feet from the boot of the elevator there was a toilet room, which, with the thickness of its wall, occupied about 5 feet in width. There were gas fixtures in the basement but at the time of the explosion, it being broad daylight, none of them was lighted. The evidence shows that after the elevator was used there always remained a small quantity of malt or some cereal in and about the bottom of the boot. The elevator in question was installed in 1896 and was a standard appliance for that kind of work. It had been in use 14 years and, in that "time, had suffered no explosion. It was inspected sometimes once a month and sometimes once in 3 months. At the time of the explosion whole malt, that is, barley after it had gone through the malting process, was being elevated from one of the bins into the malting room on the fifth floor. The evidence is conflicting, however, as to the quantity of dust existing in the nature of a deposit upon the sides and walls and in the head and boot of the elevator. It must be assumed that there was some, although the evidence, of course, does not show any measurable quantity.

' At the top of the elevator there was a fan, about 3 feet in diameter and 10 inches wide, which ran at about 1,500 revolutions per minute. It was used to suck the air out of the elevator and in doing so to draw out the dust of the grain and prevent accumulation. The fan operated whenever the elevator was run; the running of the fan co-ordinating with the running of the belt, as the same machinery ran both. The fan, according to its power, sucked the air from the elevator but did not, according to the testimony of Hecht, actually remove all the dust from the “legs” of the elevator. It was installed in May, 1910, and the system of air suction which it represented has been in use in other countries for over 50 years, and in different parts of the United States for some years.

Schulz had been working for the brewery a number of years. He was barn boss and it was his business to see that "the alley and the gangway and platform were kept in order. He could clean them himself or have other men do it who were under him.

At the time of the accident, a little before eight o’clock in the morning, May 19, 1910, there was a loud noise, some flame and considerable smoke. Schulz was found immediately afterwards, something over 18 feet from the loading platform. No one saw him injured. When found he had some government stamps in his hands which showed signs of having been partially scorched, and his mustache was singed. He suffered a compound comminuted fracture of the tibia of his right leg, and, as a result, blood poisoning set in and caused his death.

Suess, the defendant’s brew master, who was on the fifth floor at the time of the explosion, was blown out onto the roof, through an open window. After the explosion it was found that the elevator boot was broken—had blown out—and the head of the elevator, which was of cast iron—although the pieces were yet in place—was pressed out.

It is contended by the appellee that this is a case of res ipsa loquitur and that to avoid liability the appellant must prove that it was not guilty of negligence. On the other hand, it is contended by appellant (1) that it is not a case of “res ipsa loquitur the deceased being an employee of appellant at the time of the explosion, and (2) that the evidence fails to prove negligence. The explosion was evidently a dust, or, as called by Dr. Wesener, a gas explosion, but what was. the actual cause, we do not know. The evidence does not disclose whether it was the result of artificial light or a spark caused by friction, or the result of spontaneous combustion. The question then arises whether the defendant was justified in using the particular appliances and methods which were used, whether they were standard and in good working order and the premises reasonably safe. An expert, Gfudeman, called by the plaintiff, was of the opinion that a safer method could have been used to prevent the accumulation of dust; that the “legs,” boot and head of the elevator could have been tapped and steam injected or blown in so as to produce some dampness. On the other hand, four witnesses for the defendant were of the opinion that the elevator system which was used was a standard system and that the method involving the use of steam would be deleterious to the g’rain, and, therefore, impracticable. On the theory that the evidence shows that the appliances used were of a standard character and that they were in good working order and of the proper and normal kind to do the work in question, and were inspected from time to time, and that the amount of dust which was present in the elevator was a small and uncertain quantity, it would be difficult to perceive any breach of duty on the part of appellant. Such an explosion, according to the evidence, is still something of an unsolved mystery, and, in the elevation of malt and grains, by the use of conventional standard apparatus, seems never to be completely provided against. Of course, it cannot be claimed that the appellant was an insurer. It was bound, as far as the appliances used are concerned, to provide, as the evidence shows it did, that which is considered in the trade and by experts a satisfactory standard machine in good working order. As to the presence of dust in the elevator, there undoubtedly was some, though in what quantity, of course, it is impossible to say. The fan which was used was the appropriate appliance for the purpose, and, as far as the evidence shows, was in good working order at the time of the accident.

■ In the opinion - of this court, when this cause was here before, it was stated that “there was evidence tending to show the presence in the elevator of quantities of grain dust and the proximity of lighted gas jets.” In the present record there is no evidence— Kwatkowski does not so testify—that there were lighted gas jets in the basement or in the vicinity of the boot of the elevator. In that same opinion it was said, further, that there was evidence tending to show “that the device used by defendant to remove the dust is not effective for the purpose and that other methods, which a witness described in detail, would prevent such an explosion.” The evidence in this record, al-

though it does not prove that the fan did remove every ^article of dust from the elevator, proves that it was the proper appliance to he used for the particular purpose and that it was in good working order. As to other methods of prevention, the evidence of Grudeman is entirely outweighed by that of the witnesses for the defendant. It was not shown that appellant in “the exercise of reasonable care in providing a reasonably safe place for the deceased to work,” should have used some other method to avoid explosions. Although the elevator had been used for 14 years without an explosion, nevertheless, bearing in mind that it was known that dust and gas explosions do sometimes, though infrequently, under similar circumstances, occur, it was, of course, the duty of appellant to exercise greater precaution than if conducting an entirely innocuous business. In Commonwealth Elec. Co. v. Melville, 210 Ill. 70, it was held that a “failure to use some device to guard its wires * * * so that no person could inadvertently touch the cable tended to show a lack of ordinary care.” In the instant case, however, there was no known convenient, practical and standard safeguard; and the explosion, therefore, occurred without, at least as far as the evidence shows, any negligence of any kind on the part of appellant. With the knowledge of the art as it is, the care taken by the appellant in providing the mechanism as it existed was, in our opinion, commensurate with the danger. Assuming, therefore, as is contended by the appellee, that the principle of res ipsa loquitur applies, that the evidence of injury by explosion made a prima facie case of negligence, yet, as a consideration of all the evidence induces the conclusion that not only was the prima facie case overcome, but affirmatively proves that the appellant was not guilty of negligence, it follows that the appellee has failed in the ultimate to establish a right of action. Omaha Packing Co. v. Murray, 112 Ill. App. 233; Huff v. Austin,

46 Ohio St. 386. It was an unfortunate tragedy, and it is to be deplored that there has not been devised for common use some entirely safe and practical mechanism which would render such an explosion impossible. Inasmuch, therefore, as the evidence did not prove negligence, as alleged, the judgment will be reversed.

Reversed with a finding of fact.

Finding of fact. We find as a fact that the negligence as alleged in the declaration was not proved.


source: Caselaw Access Project

author: Mr. Presiding Justice Taylor

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Anna Jenkins, Plaintiff in Error.
    Gen. No. 23,331.
    1. Labceny, § 35

      —when not shown. Where defendant, accused of stealing a certain dollar bill placed on the floor by a police officer to ascertain if she would take it, as suspected, when she swept the floor, when charged by the officer with taking it, upon its disappearance after she had swept the floor, said she would get It, and it was found neatly folded in a garbage box on the' porch of the house, but defendant denied ever seeing the money before it was taken out of the box, held, that even if felonious intent existed and defendant’s purpose was to steal the bill when she left the premises that day, larceny of the bill was not shown, as there must be a taking from the actual or constructive possession of the owner.
    2. Labceny, § 35*—when felonious intention not shown. Evidence held insufficient to show beyond a reasonable doubt that defendant took a certain dollar bill, placed on the floor to ascertain if she would steal it, with felonious intention.
    Error to the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed March 13, 1918.
    Beauregard Moseley, for plaintiff in error.

      Maclay Hoyne, for defendant in error; John F. Cashen, Jr., of eonnsel.

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

   Mr. Presiding Justice Taylor

delivered'the opiiiion of the court.

The plaintiff in error, Anna Jenkins, was charged by information in the Municipal Court with stealing one dollar frompne Max Desky. Jury trial was waived and a plea of not guilty was entered. The court, after hearing all the" testimony, found plaintiff in error guilty and sentenced her to confinement at hard labor in the house of correction for one month, with a fine of one dollar and costs.

The record shows that the police officer, a witness for the State, testified that after having been called to the house of the prosecuting witness on one or two occasions in regard to missing articles of value, and, suspecting plaintiff in error, suggested that a dollar bill be placed on the floor of the dining room, in order to ascertain whether she would take it when she swept the floor. That was done and the dollar disappeared. Plaintiff in error was charged by the police officer with taking it. She denied any knowledge of the money. He then suggested that she should be arrested, and she immediately said, “I will get the dollar for you,” and went out on the porch where the dollar, folded neatly in a box containing some frozen garbage, was found.

Mrs. Desky corroborated that testimony. She testified that plaintiff in error said, “Don’t let them take me. I will tell where the dollar is,” and started out to get the box where the money was found. The number on the bill she was charged with taking was taken and the bill crumpled up before being placed on the floor. The bill found in the box was identified as the one missing, but, evidently, it had been straightened out and folded carefully. Plaintiff in error denies ever seeing the money prior to the time it was taken out of the box. The errors assigned are, that "plaintiff in error was entrapped- by the prosecuting witness into the commission of the crime; that the evidence was insufficient to warrant a verdict of guilty; that the information is bad.

The information charges that the plaintiff in error “did then and there unlawfully, feloniously steal, take and carry away,” etc.

Section 167 of chapter 38 of the Criminal Code (J. & A. ¶ 3792). defines larceny as follows: “Larceny is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another. Larceny shall embrace every theft which deprives another of his money or other personal property * * *. Private stealing from the person of another, and from a house in the daytime, shall be deemed larceny. ’ ’ In the instant case, even if we assume the extremest claim on the part of the People, the one dollar bill was merely taken by the plaintiff in error from the floor and placed in the box where it was subsequently found. At no time was it taken from the premises' and, therefore, out of the possession of the owner. Even if felonious intent existed and the purpose of the plaintiff in error to steal the bill when she left the premises that day, it does not follow that because it was shown that the bill was taken from the floor of the room and put into the box standing in some other part of the premises, as it was shown, the plaintiff in error was guilty of larceny. There must be a taking from the actual or constructive possession of the owner. Minter v. State, 26 Tex. App. 217.

We are further of the opinion that the evidence did not show, beyond a reasonable doubt, that the property was taken by the plaintiff in error from the floor and placed in a box where it was subsequently found, with a felonious intention.

As neither tailing, within the meaning of the law, nor a felonious intent was shown, the judgment will be reversed.

Reversed.


author: Mb. Pbesiding Justice Taylob

text:
    Joseph F. Griswold, Defendant in Error, v. H. Paulman & Company and James W. Dunlap. James W. Dunlap, Plaintiff in Error.
    Gen. No. 23,537.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Statement of the Case.
    Action by Joseph F. Griswold, plaintiff, against H. Paulman & Company, a corporation, and James W. Dunlap, defendants, to recover for a breach of contract in the sale of an automobile. From a judgment for plaintiff for $550, on trial by the court without a jury, against defendant Dunlap, the case being dismissed as to the other defendant on plaintiff’s motion, defendant Dunlap brings error.
    Both defendants were served with summons. Defendant Dunlap defaulted for want of appearance, and seven months after judgment filed, a motion to vacate same, which was overruled.
    William A. Jennings, for plaintiff in error.
    Haight, Brown, Haight & Harris, for defendant in error.

      Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —when statement of claim sufficient after judgment. A statement of claim in an action for breach of contract in the sale of an automobile was sufficient after judgment entered where it set up an express oral warranty by defendants to plaintiff of a certain automobile purchased by plaintiff of defendants that it was a certain model in first-class condition, that it was not such model nor in such condition, that it had certain defects, -that plaintiff expended a certain amount for repairs, and that it was wholly worthless.
    2. Municipal Court op Chicago, § 13*—when use of word defendant in plural in statement of claim without amendment not error. The fact that the word defendant appeared in the plural in a statement of claim, in an action against two defendants, did not prevent the trial judge from properly concluding that the statement of claim without amendment would support a judgment against one defendant after his default where the other defendant was dismissed out of the case.
    3. Municipal Court op Chicago, § 13*—what constitutes sufficient Verification of statement of claim. An affidavit, attached to a statement of claim, reciting that the cause is an action upon contract for the payment of money, and that the nature of plaintiff’s demand is upon a contract “as above stated,” constituted a sufficient verification to comply with rule 16 of the Municipal Court, requiring a plaintiff to file with his statement of claim an affidavit sworn to by him stating he has knowledge of the facts, showing the nature of his demand or verifying the statement of claim.

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

   Mb. Pbesiding Justice Taylob

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Henry Le Beau, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 23,259.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Railroads, § 738

      —when evidence shows contributory negligence of person crossing tracks. Evidence held to show plaintiff, a child 10 years of age, was guilty of contributory negligence which was the proximate cause of the accident and his resulting injuries, in an action to recover damages for such injuries, due to the negligent operation of a freight train while plaintiff was crossing over defendant’s tracks.
    2. Negligence, § 97*—when child capable of being guilty of contributory. A boy a little over 10 years of age is capable of being guilty of contributory negligence.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with a finding of fact.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Henry Le Beau, plaintiff, against the Chicago & Alton Bailroad Company, a corporation, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $3,000, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Harold Beacom, of counsel.
    Litzinger, Healy & Beid, for appellee.

      See Illinois Notts Digest, Vols, XI to XV, and Cumulative Quarterly, same tt>i>i« and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Rachael Goldstein, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,266.
    1. Pleading, § 284*—when within discretion of court to overrule motion to file additional pleas. Where a motion to file additional pleas is not made until long after the time for filing pleas has expired, and no showing is made or attempted to be made why the additional pleas were not filed long before, it is discretionary wit-h the court whether leave will be granted to file such pleas, with the exercise of which discretion the reviewing court will not interfere.
    2. Street railroads, § 131*—when negligence in striking boy at street crossing and lack of contributory negligence shown. In an action against a street railroad company to recover for the wrongful death of a boy who was killed by a northbound car near the middle of a street intersection while a car was passing on the southbound track, where it appeared that there was a large crowd of boyg in the street south of the street intersection; that deceased was traveling at a “dog trot” in a northwesterly direction when he perceived his peril, but was unable to step back in time to avoid injury, and the evidence was conflicting as to whether the speed of the car was excessive, as to the sounding of the gong, as to the number of boys in the street and as to the distance the car was from the boy when he reached the track, evidence held to sustain findings that defendant was negligent and decedent was not guilty of contributory negligence.
    3. Witnesses, § 279*—when admission of evidence of testimony of reporter from notes to impeach improper. The admission in evidence of the testimony of a shorthand reporter from his notes taken at a coroner’s inquest of the testimony of certain witnesses at the inquest, for the purposes of impeachment of witnesses who testified at the inquest and at the trial of an action to recover damages for the death of the deceased, held to be erroneous, but not reversible error.
    4. Instructions, § 88

      —when instruction on determination of preponderance of evidence not erroneous. An instruction that in determining the question of the preponderance of the evidence the jury should take into consideration, among other things, the interest or lack of interest of the witnesses in the result of the suit was not erroneous for the reason that no witnesses having an interest testified on behalf of one of the parties.

      5. Street railroads, § 144

      —when instruction limiting time for exercise of due, care not erroneous. In an action against a street railroad company for the negligent death of a child at a crossing, an instruction held not erroneous in limiting the time in which deceased was required to exercise due care for his own safety to the time and place he received his injuries.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Busby, Weber & Miller, John E. Kehoe and Arthur J. Donovan, for appellant; John R. Guil-LiIams, of counsel.
    Frank P. Sablee, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Rachael Goldstein, as administratrix of the estate of Alexander Goldstein, her deceased son, brought suit under chapter 70, Rev. St. (J. & A. ¶ 6185), against the Chicago City Railway Company to recover damages for the wrongful death of the deceased. The jury returned a verdict in favor of plaintiff for $3,750, upon which judgment was entered, to reverse which defendant prosecutes this appeal.

The record discloses that this case has been tried three times. The first trial before Judge Cooper resulted in a verdict in favor of plaintiff for $2,000, and a new trial was granted. On the second trial, before Judge Brentano, the verdict was in favor of the defendant, and a new trial was again granted. The third trial resulted in the judgment now sought to he reversed by this appeal. Alexander Goldstein, the deceased, was injured on October 17, 1907, by being run over by one of defendant’s cars and died the day following. Plaintiff began suit October 26, 1908, the summons being returnable to the January term, 1909. No summons appears to have been issued or served, but defendant on March 12, 1909, filed its appearance. May 17, 1909, a declaration consisting of' one count was filed. To this defendant interposed a general and special demurrer. On October 18, 1910, an amended declaration which consisted of one count was filed. October 28th the defendant filed a general and special demurrer. On February 10, 1913, plaintiff filed a second amended declaration consisting of two counts. February 14th following, defendant again filed a general and special demurrer. March 8, 1913, defendant filed a plea of the general issue to the second amended declaration. There was also filed at the same time two pleas setting up the statute of limitations as a bar. The first averred that the cause of action did not accrue within one year next preceding the filing of the second amended declaration; the second that the cause of action did not accrue to the plaintiff within one year next preceding the appearance of the defendant. March 18, 1913, plaintiff filed a similiter to the plea of the general issue and demurred to the other two pleas. Two days later, March 20th, the demurrers were sustained and defendant elected to stand by its pleas of the statute of limitations. On April 28, 1913, upon stipulation of the parties, the cause, which was on the trial call of that day, was set for trial May 12th. The record as to subsequent events is very incomplete and unsatisfactory, but it seems to be agreed that the case was- on Judge Cooper’s trial call in March, 1914, and on the day it was set for trial the defendant moved for leave to file a plea of the statute of limitations, which was denied. The case was then tried and after verdict a new trial was granted. Thereafter April 8,1914, the defendant made a motion in writing before Judge Goodwin, asking leave to file “an additional plea” of the statute of limitations. The proffered plea was submitted and it set up that the cause of action did not accrue within one year next preceding the commencement of the suit. The motion for leave to file the plea was denied. Thereupon defendant moved for leave “To amend the second plea of the defendant heretofore filed” and tendered what was said to be such amended plea.. An examination, however, discloses that the so-called amended plea was identical with the plea tendered which the court had just previously denied defendant leave to file. This second motion was also denied. Some months afterwards the case came on for trial before Judge Brentano, and on the morning of the trial the defendant again moved the court for leave to file a plea of the statute of limitations, which was denied. There was a trial and afterwards a new trial was granted, and on November 13, 1916, the trial of the case was commenced before Judge Kavanagh, and again on the morning of the trial defendant moved for leave to file an additional plea of the statute of limitations, which was denied.

No complaint is made of the ruling of Judges Cooper, Brentano or Kavanagh, denying defendant’s motions for leave to file the pleas of the statute of limitations, for the reason that the motions before these judges were not made until the case was reached on the trial call; but complaint is made of the ruling of Judge Goodwin, on the ground that when this motion was made the case was not on the trial call, and was not tried for some months afterwards. At the time the motion was made before Judge Goodwin, a new trial had been granted, and therefore the case was subject to trial at any time. No showing was made at that time that the case would not be tried for several months, and for aught that appears it might be called for trial at any time. Furthermore, the ease had been pending in court for years and no showing was made or attempted to be made as to why the pleas had not been filed long before, and where such motion is made long after the time for pleading has expired, it is discretionary with the court whether leave will be granted to file additional pleas, and in the absence of any showing why pleas had not been filed, we cannot say that the court abused its discretion. Wilson v. Wilson, 125 Ill. App. 385, and cases there cited. In any event the complaint now made was waived on two occasions: First, when defendant learned the case was on Judge Brentano’s calendar; and, second, when it subsequently learned it was on the calendar of Judge Kavanagh. We must assume, in the absence of any showing to the contrary, that on each of these occasions the defendant knew for some time prior to the actual commencement of the trial that the case would be called by the two judges last mentioned, and, as soon as this knowledge was brought home to defendant, the motion for leave to -file the plea should have been made, and not deferred as it was until the case was actually called for trial. It was the duty of Judge Brentano and Judge Kavanagh to correct the error, if any, made by Judge Goodwin (Fort Dearborn Lodge v. Klein, 115 Ill. 177; Campbell v. Powers, 139 Ill. 128), and if the motion for leave to file the plea had been presented in apt time, and a proper showing made, such leave would undoubtedly have been granted. But if the court had denied the motion, the point would have been saved for our consideration.

The defendant contends that the verdict is against the manifest weight of the evidence, in that "the deceased was guilty of contributory negligence, and that the defendant was not guilty of the negligence which proximately caused his death. The evidence- shows that defendant operated a double track railway in Wentworth avenue, Chicago. This street runs north and south and is intersected at right angles by West Sixtieth street. The roadway of Wentworth avenue is 51 feet and 9 inches in width, and Sixtieth street is 37 feet wide. On the east side of Wentworth avenue about 75 feet south, of Sixtieth street there was a vacant piece of ground, where a number of small boys were playing football. The number is variously given by the witnesses from 35 to 150. The game seems to have ended in an argument and some of the boys had come out into Wentworth avenue and some had crossed over. They were from 10 to 15 years old. The deceased went northward to the southeast comer of the street intersection, and "then proceeded on a “dog trot” in a northwesterly direction. A northbound ear was approaching from the south and a southbound car from the north. The cars passed each other about the middle of Sixtieth street. The deceased, when he reached the east rail of the northbound track, suddenly discovered his peril and tried to throw himself backward or to the east, but the car passed over his legs, and from the effects of the injury he died the next day.

The theory of the plaintiff was that the northbound car was being operated at a high and dangerous rate of speed, and that no gong or bell was sounded. The theory of- the defendant was that the car was under proper control; that the gong was sounded, but the deceased unexpectedly ran in front of the car and so close to it- that it was impossible to have stopped the car in time to avoid the injury. The evidence tends to show that a great many of the boys who were playing or watching the game had gone out into Wentworth avenue, and were in the vicinity of the street crossing at the time the car was approaching from the south, and that the car was going at the rate of 12 to 18 miles per hour. The motorman testified that he sounded the gong. On the other hand, a number of witnesses testified, who were near the place of the accident, that they heard no gong. There was a conflict in the testimony as to the distance the car was from the boy when he reached the track. There was also a conflict as to the number of boys and as to how many were in the street. There is no dispute that the two cars passed about the middle of Sixtieth street, approximately the point where deceased was injured. We have carefully considered all the evidence in the record, and when all the surrounding circumstances, are considered, we think the verdict of the jury should not be disturbed.

Complaint is made of the ruling of the court in permitting witnesses to testify as to the speed of the car, and in permitting counsel for plaintiff to cross-examine his own witnesses. We have examined these questions, and think the objections are hypercritical and without merit.

It is also urged that it was error to permit a shorthand reporter, who was present at the coroner’s inquest and took down the testimony of the witnesses,' to testify from his notes, for the purpose of impeach-, ing the motorman who testified before the coroner and on the trial, and it was sought to show that the motorman’s testimony given on the trial was different from that given before the coroner. It is argued that the office of coroner is a public office, created by law; that the law- requires the coroner to keep official records of the testimony of witnesses taken at inquests and file the same in his office, and that these records are the best evidence of what the witnesses testified at the inquest. In support of this the case of Overtoom v. Chicago & E. I. R. Co., 181 Ill. 323, is cited. In that case it was held error to permit a stenographer who took shorthand notes at the coroner’s inquest to read from his notes the testimony of a witness given before the coroner to impeach the testimony of the same witnéss given on the trial, and in passing on the point now under consideration the court said (329): “The testimony of Silverman was taken by the coroner, and, as the statute required it, we will presume it was written out and signed by the witness and filed and preserved in the office of the coroner. (Rev. St. ch. 3.1, sec. 18, J. & A. ¶ 2409.) Had his deposition thus taken been produced and Silverman’s attention properly directed to it, it could have been used to contradict him.” Section 18, eh. 31, Rev. St. (J. & A. ¶ 2409), provides: “The coroner shall cause the testimony of each witness who may be sworn and examined at any inquest to be written out and signed by said witness. * * * Provided the coroner may cause the testimony of such witnesses to be taken in shorthand minutes and transcribed by a competent person, who shall certify that the transcript of the evidence so taken and transcribed by him is a true and correct copy of the original minutes taken at said inquest and is a true and correct statement of the testimony of each of the several witnesses who have testified at said inquest. Which said transcript shall be filed and carefully preserved in the office of the coroner.” In 2 Wigmore on Evidence, sec. 329, the author says that where the law imposes on the coroner the duty of making a written report of the testimony given before him, this report is preferred testimony to be used in preference to any other, unless the report is lost, or otherwise inaccessible; and in section 1349 the same author says that while the evidence taken before the coroner is preferred testimony, it is not conclusive. We think the. Overtoom case is in point, although a contrary rule seems to have been stated in the case of Briggs v. People, 219 Ill. 330, and Brunhild v. Chicago Union Traction Co., 144 Ill. App. 198. See also, Chicago City Ry. Co. v. McLaughlin, 146 Ill. 353. But in any view of the case, we think the error, if any, is not of sufficient gravity to warrant a reversal of the case.

Objection is made to the giving of instructions Nos. 4, 6, 7 and 8, submitted by plaintiff. Instruction No. 4 told the jury that if the deceased, while in the exercise of ordinary care, lost his life through the negligence of the defendant as alleged in the declaration, or any count thereof, and left him surviving next of kin, they should find for the plaintiff. It is argued that this instruction was wrong unless a recovery could be sustained under each count of the declaration, and the defendant’s position is that no recovery could be had “for the negligence charged in the second count of the second amended declaration,” because “the cause of action laid in that count was barred by the statute of limitations,” since it set up a new cause of action from that originally declared upon. As heretofore stated, the court had sustained a demurrer to the plea of the statute of limitations, so that the plea was out of the case. The argument is beside the question —a plain non sequitur. On page 6 of defendant’s brief the' points which it relies upon for a reversal are set out; also this same point is set out in its brief, but nowhere is it urged that the court erred in sustaining the demurrer to defendant’s plea of the statute of limitations. What we have said disposes of the contention in reference to instruction No. 6.

Instruction No. 7 told the jury, in determining the question of the preponderance of the evidence, they should take into consideration, among other things, the interest or lack of interest of the witnesses in the result of the suit. It is said that this was erroneous, for the reason that as no witnesses having any interest testified on behalf of the plaintiff, the instruction could only apply to the employees who testified on behalf of the defendant. The instruction is not limited to the testimony of the witnesses as to how the accident happened, but is general, and it might as well apply to the witnesses who testified for the plaintiff as to thobe who testified on behalf of the defendant. Furthermore, the court gave an instruction submitted by defendant which told the jury that they were the judges of the credibility of the witnesses, but that they had no right to disregard the testimony of an unimpeached witness sworn on behalf of the defendant, simply because he was an employee of the defendant. We think there was no error in the instruction. It is argued that instruction No.. 8 is erroneous in that it limited the time in which the deceased was required to exercise due care for his own safety to the time and place he received the injuries. We think the instruction was not misleading (Chicago & A. R. Co. v. Corson, 198 Ill. 98) and is not subject to the objection made. The facts in the case at bar are not at all similar to the facts in Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544.

We have considered the other points made by the defendant, but think none of them have substantial merit.

The judgment of the Superior Court of Cook county is affirmed.

Affirmed.


text:
    Verne A. Wright, sole surviving Trustee under the last will of George L. Thatcher, Deceased, Appellant, v. Jasiburo H. Takito, Tatsuo G. Ogawa and Kishiro S. Kodama, copartners, trading as Takito, Ogawa & Company, Appellees.
    Gen. No. 23,285.
    1. Words and phrases—“settle” defined. The word “settle” has no fixed meaning in law.
    2. Landlord and tenant, § 209

      —when repairs required to he made within certain time after adjustment of insurance loss. Where a lease provided that in ease the leased premises should be rendered untenantable by fire or other casualty, the lessor might, at his option, terminate the lease or repair the premises within 30 days after the insurance losses on the premises had been “settled,” held that the lease should be construed most strongly against the lessor as to the meaning of the word “settled,” and that it should be held to mean that repairs should have been completed within 30 days after the insurance losses were adjusted and not after payment of the adjustment.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Bradley, Harper & Eheim, for appellant; Samuel A. Harper, of counsel.
    Frederick A. Brown, for appellees; Claude 0. Netherton and Jesse J. Herr, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to recover rent for 7 months at $275 per month, making a total of $1,925. The case was tried before the court upon a stipulation of facts. There was a finding and judgment in favor of defendants, to reverse which plaintiff prosecutes this appeal.

The record discloses that plaintiff was the owner of certain premises in Chicago, which he rented to defendants for a period of 5 years, beginning May 1, 1911. The defendants occupied the premises and paid rent pursuant to the terms of the lease until the 4th day of February, 1913, on which date a fire occurred in the premises which rendered them temporarily untenantable. It is agreed that the only question before us for decision is the meaning of the following provision, in the lease: “In case said premises shall be rendered untenantable by fire or other casualty, the lessor may, at his option, terminate this lease, or repair said premises within 30 days after the insurance losses on said premises have been settled, and failing so to do, or upon the destruction of said premises by fire, the term hereby created shall cease and determine.” The stipulation of facts further shows that after the fire, negotiations were had between plaintiff and the insurance company with a view to adjusting the losses; that an agreement was reached on March 1, 1915, and afterwards on March 23rd and March 26, 1915, the losses were paid to plaintiff by the insurance company, and thereafter plaintiff set about making the repairs which were completed on April 10, 1915.

Plaintiff contends that under the terms of the lease above quoted he was authorized to make the necessary repairs within 30 days after the insurance losses were actually paid to him, and that as the losses were paid March 23rd and March 26, 1915, and the repairs completed April 10th following, they were made in apt time. On the other hand, the defendants contend that the true meaning of the provision quoted is that the repairs should be completed within 30 days after the amount -of the losses had been agreed upon between plaintiff and the insurance company; that as this agreement was reached March 1, 1915, and the repairs not completed until April 10th, which was more than 30 days, the term reserved by the lease terminated 30 days after the amount of the insurance to he paid was agreed upon, which was March 31st.

A great many authorities are cited defining the word “settled,” some of which hold that the word “settle” or “settlement”-is synonymous with “payment”; while others hold that the word means to adjust ; to reach an agreement. We have examined all the authorities cited, and are clearly of the opinion that the word has no fixed meaning. Under these circumstances it must be construed most strongly against the plaintiff. In the case of Schmohl v. Fiddick, 34 Ill. App. 190, it is said (198). “It is a familiar canon of construction that all grants, contracts, deeds and leases of every description shall be most strongly construed against the grantor, and if there be any doubt or uncertainty as to the meaning of any such grant, deed or lease, it shall be construed most strongly in favor of the grantee. Or if the contract may be given two constructions, either of which is reasonable, the one most favorable to the grantee shall be adopted.” If the plaintiff had intended that he should have 30 days in which to make the repairs from the time he collected his insurance money, he should have plainly said so in the' lease. Under the rule of construction stated, as there is an ambiguity in the lease, it will be construed most strongly against the plaintiff. The repairs should therefore have been completed within 30 days after the insurance losses were adjusted. As this was not done, the lease by its terms terminated, and plaintiff cannot recover.

The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    Patrick C. Kelly, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,297.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 131

      —when findings as to negligence and contributory negligence not disturbed. Evidence held insufficient to warrant disturbing findings as to defendant’s negligence and plain tie’s contributory negligence, in an action to recover damages for personal injuries sustained by a collision between plaintiffs wagon and defendant’s street car.
    2. Appeal and error, § 1631*—when remarks of counsel are harmless error. An improper remark of counsel for plaintie in a personal injury case, which was withdrawn on objection thereto, did not constitute reversible error under the circumstances.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Patrick C. Kelly, plaintiff, against Chicago City Railway Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $2,000, defendant appeals.
    Joseph D. Ryan and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    James C. Me Shane and Richard J. Finn, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Roy Woolton, Defendant in Error, v. R. C. Crist, Inc., Plaintiff in Error.
    Gen. No. 23,335.
    (Not to The reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim sufficient. A statement of claim showing the nature of the demand and giving sufficient information to inform the defendant of the nature of the case is sufficient.
    2. Sales, § 282*-—when roritten guaranty does not exclude oral. A written guaranty as to replacing defective parts of a machine does not exclude an oral guaranty by the seller that the machine is in good workable condition.
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Boy Woolton, plaintiff, against B. C. Crist, Inc., a corporation, defendant, to recover money paid on the purchase price of motorcycle,' $113.95. From a judgment for plaintiff for $76, on trial before the court without a jury, defendant brings error.
    M. E. Gallion, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Universal Floor Company, Appellee, v. George W. Stiles Construction Company, Appellant.
    Gen. No. 23,337.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 5

      —what is part of contract between subcontractor and contractor. The plans and specifications for a building were part of the contract between a contractor and, a subcontractor which stated the subcontractor’s work should be done as per plans and specifications, where the subsequent conduct of the parties showed they considered the plans and specifications a part of the contract.
    2. Building and construction contracts, § 93*—when evidence tending to excuse failure to obtain architect’s certificate inadmis

      sible under declaration. Where the declaration in an action by a subcontractor against a building contractor alleged that the work had been done in accordance with the terms of the contract between them, and the plans and specifications, and that the work had been completed and tendered to defendant and an architect’s certificate issued to plaintiff calling for payment, and the proof showed that the work was not done in accordance with the plans and specifications and was rejected by the architect and building committee and no certificate was issued to plaintiff, evidence offered by plaintiff' tending to excuse his failure to obtain the architect’s certificate was improperly admitted.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Statement of the Case.
    Action by Universal Floor Company, a corporation, plaintiff, a subcontractor, against George W. Stiles Construction Company, a corporation, defendant, the contractor, to recover a balance claimed due under a contract between them amounting to $2,126.54. From a judgment for plaintiff for the amount of the claim, defendant appeals.
    Dent, Dobyns & Freeman, for appellant.
    Sibber, Isaacs, Sibber & Woley, for appellee; Frederick D. Sibber, of counsel.

      See Illinois Noten Digest, Vols. XI to XV, and Cumulative Quarterly, same ..opic and section number.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

3. Building and construction contracts, § 84 —when subcontractor may not recover under common counts against contractor. No recovery lies under the common counts for money claimed to be due a subcontractor from the general contractor under their contract, where the subcontractor fails to obtain the architect’s certificate and the approval of the building committee, which was required under the contract.


text:
    Katherine Connors, Appellee, v. National Council, Knights and Ladies of Security, Appellant.
    Gen. No. 23,351.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance—when evidence that applicant stated that he had no dead brother is erroneously stricken out. Evidence that in sured stated in his application for insurance that he had no dead brother was material to -the issue and was erroneously stricken out, in an action to recover on the benefit certificate, where the evidence tended to show that he had at the time he applied for the insurance a deceased brother, as, if he fraudulently made false answers to questions in his application that he had no brother dead for the purpose of inducing the defendant to issue to Mm the certificate, there could he no recovery thereon, whether his answer be considered a warranty or a representation.

      Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Katherine Connors, plaintiff, against National Council, Knights and Ladies of Security, a corporation, defendant, to recover on a benefit certificate issued by defendant to plaintiff’s brother, Joseph M. Maher, deceased, for $1,200. From a judgment for plaintiff for $1,200 and interest, defendant appeals.
    A. W. Foi/eor, for appellant.
    Barrhardt & Stafford, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Insurance, § 752*—what considered in determining fraud in answer in application. As bearing on the question whether an untruthful answér to a question asked of an applicant for benefit insurance in his application was fraudulently made, the question of the materiality of the answer should be considered.

3. Insurance, § 897 —when materiality of answers to questions in application question of law. The question of the materiality of answers to questions asked of an insurance applicant in his application is generally one of fact, but may become one of law when all reasonable minds would arrive at the conclusion that the answers were material.

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


text:
    Mary E. Miller, Defendant in Error, v. Edward S. Miller, Plaintiff in Error.
    Gen. No. 23,450.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Statement of the Case.
    Bill by Mary E. Miller, complainant, against Edward S. Miller, defendant, for divorce, charging extreme and repeated cruelty. From a decree granting complainant a divorce and finding that there was due and unpaid $780.65 on account of a settlement between the parties, which defendant was required by the decree to pay within 20 days and to release his interest in an insurance policy on complainant’s life, and, on his default in so releasing, that a master in chancery should execute such release, and that all such should be in lieu of all alimony and a settlement of all property rights between the parties, defendant brings error. See also, Miller v. Miller, Gen. No. 23,782, post, p. 76, relating to contempt proceedings upon failure to pay alimony.
    Egbert A.- J. Shaw and James G. Cotter, for plaintiff in error.
    Albert B. George, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Divorce, § 106 —when decree awarding alimony proper under hill. Evidence as to a settlement of the property rights of the parties to a divorce suit was properly admitted and a decree awarding alimony properly entered, notwithstanding no such relief was sought by the bill, under section 18, ch. 40, Rev. St. (J. & A. ¶ 4233), providing that when a divorce is decreed the court may make such order touching the alimony and maintenance of the wife as may be fit, reasonable and just.

2.. Equity, § 489*—what relief granted under prayer for special and general relief. Where there is a prayer in a bill for special and general relief, the court may grant such relief under the general prayer as the allegations and proof permit, though the specific relief is denied.

3. Divorce, § 106*—right of court under chancery powers to award amount of settlement and interest in insurance policy. Where the parties to a suit for divorce enter into an agreement for settlement of their property rights, the court in decreeing a divorce may award the amount of the settlement entered into by them and defendant’s interest in an insurance policy, notwithstanding there may be an adequate remedy at law, under its general chancery powers, as well as under section 17, ch. 40, Rev. St. (J. & A. ¶ 4232).

4. Equity, § 295*—when replication deemed waived. Where an equity case is heard upon the pleadings and evidence without a replication having been filed, a replication must be deemed to have been waived.

5. Equity, § 550*—when assumed that replication was filed. Where a praecipe in a record in an equity case called for certain pleadings and other matters, only, and not for all of the pleadings and matters, and the clerk’s certificate attached to the record stated it was a correct transcript of the record “as per praecipe,” held that a replication would be assumed to have been filed.


text:
    Isaiah R. Clark and Henry B. Cram, Executors, Appellants, v. Frank R. Chandler et al., Appellees.
    Gen. No. 23,476.
    Equity, § 42

      —when will not correct errors made in court of law. Where a hill set up five judgments obtained by complainants against defendants, an appeal in each case and a reversal on appeal to the Appellate Court, denial of a petition for rehearing in each case, filing in one case of a petition for certiorari in the Supreme Court and denial of a motion in each of the cases for a stay of issuance of a mandate until disposition of the petition for certiorari, award of certiorari, denial again of a motion in each of the other cases for a.stay of mandate, subsequent reversal by the Supreme Court of the judgment in the case involved in the petition for certiorari, which was after expiration of the term of the Appellate Court at which the judgments in the cases were entered by that court, and complainants prayed that the amounts due them on four of the judgments be ascertained and the defendants required to pay them, that the enforcement of the Appellate Court’s judgments be enjoined, that they be declared void and be removed as clouds upon the title to complainants’ property; held that the bill would not lie, as the judgments of the Appellate Court in the four cases were final after expiration of the term at which they were entered, and a court of equity will not sit as a court for the correction of errors made in a court of law.
    Taylob, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Chaeles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Henry W. Leman, for appellants; Frank H. Culver, of counsel.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for appellees.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Isaiah R Clark and Henry B. Cram, surviving executors of the last will and testament of Charles F. Wright, deceased, filed a bill of complaint in the Superior Court of Cook county against Frank B. Chandler, Anna S. Chandler, Buckingham Chandler and Bosalie A. Selfridge. The defendants filed a demurrer, which was sustained and the bill dismissed at complainants’ costs. They prayed for and were allowed an appeal to the Supreme Court. Afterwards the Supreme Court rendered an opinion, holding that there was no question involved that permitted an appeal direct to that court and transferred the cause here. Clark v. Chandler, 279 Ill. 23.

It appears from the bill that complainants had obtained five judgments against the defendants, from which appeals were prosecuted to this court, and upon consideration of the cases by another division of this court, the five judgments were reversed. The amounts involved in each of the five judgments were respectively $1,500, $1,033.01, $587.06, $600.44 and $190.14. After the reversal by this court, a petition for rehearing was filed in each case and denied, and in the case where the amount of the judgment was $1,500 a petition for certiorari was filed in the Supreme Court. Thereupon motions were made in this court in each of the five cases' to stay the issuance of the mandates until the disposition by the Supreme Court of the petition for certiorari. The motions were denied. The Supreme Court awarded a certiorari, and motions were again made in this court to stay the. mandate in the four other cases, which motions were also denied. Afterwards the Supreme Court reversed the judgment of this court in the case involving $1,500, and as the term of this court had expired at which the judgments of reversal in the other four cases were entered, complainants filed their bill in the instant case praying that the amounts due them upon each of the four judgments be ascertained and the,defendants required to pay them; that the defendants be restrained and enjoined from enforcing the judgments of this court and that said judgments be decreed to be null and void, and to be clouds upon the real estate of the complainants and removed therefrom.

The bill further alleges that the facts involved in the five judgments reversed by this court were identical; that they were submitted and heard in this court on one set of abstracts, briefs and arguments, and since the Supreme Court in deciding the case involving $1,500 (Clark v. Self ridge, 274 Ill. 275) held that this court erred in reversing the judgments, complainants are entitled to recover from the defendants the amounts of such judgments. It is stated by counsel for complainants that this bill is an original one in the nature of a bill of review for new trials in the four suits at law; that courts of equity have power to grant new trials in suits at law where the facts show that the judgments are unconscionable and it is inequitable to permit them to remain in force; that complainants could not recover in an action at law, for the reason that the judgments of this court would be a bar, and therefore they have a right to come into equity.

It is conceded by both sides that they have been unable to find any authority in point. Counsel for complainants, among other cases, cite Weaver v. Foyer, 79 Ill. 417 and Chapman v. American Surety Co., 261 Ill. 594, as sustaining their contention that a court of equity has jurisdiction in the instant case. We think these cases are not in point. In each of them it was held that where the defense was purely equitable and therefore not cognizable in a court of law, equity would take jurisdiction and grant relief. It is unfortunate that this court made a mistake as to the law in deciding the five cases, but no court is infallible. A court of equity will not sit as a court for the correction of errors made in a court of law. Gibbons v. Bressler, 61 Ill. 110; Hoffmann v. Burris, 210 Ill. 587. This court had jurisdiction of the five cases, and the judgments entered in the four cases, after the expiration of the term at which they were entered, are final. Indeed, if complainants ’ contention were sustained, no judgment entered by any court of competent jurisdiction, not excepting the Supreme courts of the State and Nation, would be final, if it subsequently developed that the judgment was wrong. The defeated party could then apply to a court of equity, have the judgment set aside and relitigate the entire matter. We are clearly of the opinion that the chancellor correctly sustained the demurrer and dismissed the bill.

The decree" of the Superior Court of Cook county is affirmed.

Affirmed.

Mr. Presiding Justice Taylor dissents.


text:
    Julius Limbach, Plaintiff in Error, v. Jacob Vihon, Defendant in Error.
    Gen. No. 23,511.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Attorney and client, § 149a

      —what constitutes sufficient notice of attorney's lien. ■ A notice of an attorney’s lien sent by plaintiff to defendant by registered mail, and admittedly received by defendant, constitutes a sufficient compliance with the Act of July 1, 1909, Laws 1909, p. 97 (J. & A. ¶ 611).
    2. Champerty and maintenance, § 7*—when contract as to settlement of claim is void. A contract between an attorney and his client providing that the client shall not settle or compromise his claim without the attorney’s consent is void, notwithstanding the contract further provides that if the client should violate any of its provisions he should pay the attorney a certain amount, as such an agreement tends to foster and encourage litigation.
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch' Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Julius Limbach, plaintiff, against Jacob Vihon, defendant, to recover $200 for legal services. From a judgment for defendant, plaintiff brings error.
    Julius Limbach, pro se; George F. Ort, of counsel.
    William B. O’Brieu and Jacob J. Schwartz, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Charles H. Leinert, Appellee, v. David K. Jeffris, Surviving Partner of Frederick J. Jeffris, trading as D. K. Jeffris & Company, Appellant.
    Gen. No. 23,531.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 27

      —when hill of exceptions insufficient for review of ease. A purported bill of exceptions which was not dated or signed or filed in the Municipal or in the Appellate Court was insufficient for review of the case.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Charles H. Leinert, plaintiff, against David K. Jeffris, surviving partner of Frederick J. Jeffris, aforesaid parties trading as D. K. Jeffris & Company, defendant, to recover $614.28 for services rendered and money advanced. From a judgment for plaintiff for $581, defendant appeals.
    Montgomery, Hast, Smith & Steers, for appellant.
    Hoyne, O’Connor & Irwin, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Earle Stark, Plaintiff in Error.
    Gen. No. 23,553.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 409

      —what objection cannot be raised for first time on writ of error. An objection that a motion for increase of an award of support to a wife and child, on an information charging defendant with their nonsupport, that the motion was not accompanied by any petition, cannot be raised for the first time on a writ of error.

      Error to the Municipal Court of Chicago;' the Hon. John Stelk, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Earle Stark, defendant, for without reasonable canse neglecting and refusing to maintain and provide for his wife and minor child, 2 years- old. From an order requiring defendant to pay $10 a week towards the support of his wife and child, defendant brings error.
    Defendant on trial was found guilty and put on probation for a year, on condition that he pay his wife and child $6 a week. The amount was afterwards increased to $7 a week March 7, 1917, and on April 11, 1917, motion was made for further increase, which was allowed at $10 a week on April 17, 1917, defendant being present with counsel.
    Johnson & Herr, for plaintiff in error.
    Maclay Boyne, for defendant in error; Edward E. Wilson, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Husband and wine, § 243 —when award for support of wife and child not excessive. Ten dollars a week was not excessive as an award to a wife for the support of herself and a minor child, upon abandonment by the husband, where her husband was earning $85 a month and required $12.50 a week for his own expenses, notwithstanding the wife was also earning $12 a week.


text:
    Mary E. Miller, Appellee, v. Edward S. Miller, Appellant.
    Gen. No. 23,782.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Statement of the Case.
    Bill by Mary E. Miller, complainant, against Edward S. Miller, defendant, for divorce. From an order committing defendant to jail for wilful refusal to pay certain alimony theretofore ordered to be paid by him to complainant, defendant appeals.
    Decree of divorce was entered, with award to complainant in lieu of alimony of $780.65 and an interest in a certain life insurance policy. Complainant thereafter filed a petition asking for a rule on defendant to show cause why he should not be adjudged in contempt for failure to pay alimony, to which defendant filed his verified answer, and a few days later filed a record in the Appellate Court seeking reversal of the decree as to alimony. The answer was held insufficient and an. order entered finding defendant guilty of contempt and ordering him committed until the decree should he complied with, not exceeding 6 months. Opinion on defendant’s writ of error was filed the same day as present opinion. See Miller v. Miller, Gen. No. 23,450, ante, p. 67.
    Abstract of the Decision.
    Divorce, § 121

      —when answer in contempt proceedings for failure to pay alimony is insufficient. Answer of defendant to complainant’s petition to show cause why he should not be adjudged in contempt for nonpayment of alimony decreed her, held insufficient where it showed he was a practicing physician earning and receiving from $150 to $180 a month, with expenses of $117, including $20 for an automobile.
    Egbert A. J. Shaw and James G. Cotter, for appellant.
    Albert B. George, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Thomson

text:
    James F. Lyons, Appellee, v. Harry L. Kanter and Norton E. Ruderman, Appellants.
    Gen. No. 23,216.
    1. Municipal Court of Chicago, § 13

      —when statement of claim in action of fourth class in tort is sufficient. A statement of claim in an action of the fourth class in the Municipal Court does not necessarily have to set forth a legal cause of action, provided, being in tort, it discloses the nature of the tort complained of and gives such further information as will reasonably inform the defendants of the nature of the case that they are called upon to defend.
    2. Municipal Court of Chicago, § 13*—when statement in action of fourth class for malicious prosecution is sufficient. A statement of claim in an action of the fourth class in the Municipal Court of Chicago for malicious prosecution was sufficient although omitting to state defendants acted without" probable cause, where it was otherwise sufficient, and defendants in their affidavit of merits set up probable cause, and evidence for and against that issue was presented.
    3. Malicious prosecution, § 13*—when advice of counsel is no defense. If a criminal prosecution is instituted for the mere purpose of coercing one into the payment of a debt or the surrender of some right claimed, and not in the cause of public justice, the fact that the one instituting suqh prosecution procures the advice of counsel will not shield him from the consequences of his wrongful act.
    4. Malicious prosecution, § 83*—when probable cause question for jury. The question of the presence or absence of probable cause, in an action for malicious prosecution, is a question of fact for the jury, notwithstanding the fact an examining magistrate had found plaintiff probably guilty of the charge against him and had bound him over to the grand jury.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 26, 1918.
    Blum, Wolfsohn & Blum, for appellants.

      Litzinger, Healt & Reid, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This was a suit brought by James F. Lyons, appellee, hereinafter referred to as the plaintiff, against Harry L. Kanter and Norton E. Ruderman, appellants, hereinafter referred to as the defendants, alleging false arrest and malicious prosecution. In his statement of claim, the plaintiff alleges that he was in the employ of the defendants for a time, and, after leaving their employ, the defendants executed a complaint, charging him with larceny and embezzlement, on which he was arrested and taken into custody; that, upon the preliminary hearing, he was bound over to the grand jury where a no bill was returned after the plaintiff had been obliged to remain some days in jail by reason of his failure to procure a bond. The plaintiff further avers in his' statement of claim that his reputation for honesty was good; that he had never been accused of crime before; that he was not guilty of the crime charged against him; and that defendants wilfully and maliciously prosecuted the proceedings against him whereby he was injured in his good name and reputation. But the statement of claim does not allege that the defendants were without probable cause in the transaction complained of. The defendants filed their affidavit of merits, alleging, among other things, that they had probable cause. Upon the trial of the case, the jury found the issues for the plaintiff and assessed his damages at $1,000 and judgment was entered on the verdict. The defendants contend in this court that the judgment must be reversed for the reason that the statement of claim filed by the plaintiff does not state a cause of action.

This is an action of the fourth class in the Munici-

pal Court in which no formal written pleadings are required. In a court of record where common-law pleadings are required, a declaration in a suit for damages caused by an alleged malicious prosecution which contains no averment that the' defendant was without probable cause in instituting or prosecuting the alleged prosecution does not state a cause of action, for a common-law declaration must allege all the material averments necessary to be proved to maintain the action. The defendants here contend that in such a suit of the fourth class, in the Municipal Court, the statement of claim must state a cause of action substantially as is required of a declaration in common law in other courts of record, although not with the same particularity. We quote the last expression of our Supreme Court in passing upon that precise point when we say: “We cannot give our consent to such an interpretation of the Municipal Court Act.” Enberg v. City of Chicago, 271 Ill. 404. In that decision the court made an exhaustive review of the various provisions of the Municipal Court Act and said, on pages 408 and 409:

“A careful consideration of the foregoing sections and other sections of the Municipal Court Act leads us to the conclusion that common-law pleadings are expressly permitted in actions of the first and second classes and that the use thereof is abolished as to fourth-class actions. The issues, in actions of the fourth-class, so far as pleadings are concerned, are to be indicated by the mere filing of a statement of claim * * * which shall merely state * * * if in tort # * * a brief statement of the nature of the tort and such further information as will reasonably inform the defendant of the nature of the case. * * * Neither does the statement in tort required by such act rise to the dignity of a common-law declaration, in our judgment, requiring all the material * * * facts of the case to be stated or pleaded.” We hold that a statement of claim in an action of the fourth class in the Municipal Court does not necessarily have to set forth a legal, cause of action, provided, being in tort, it discloses the nature of the tort complained of and gives such further information as will reasonably inform the defendant of the nature of the case that he is called upon to defend. Kuzmierczyk v. Joseph Schlitz Brewing Co., 201 Ill. App. 479; Chicago, I. & L. Ry. Co. v. Monarch Lumber Co., 202 Ill. App. 20; Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Schultz v. Henry Ericsson Co., 264 Ill. 157; Enberg v. City of Chicago, supra; Kappes v. Bacon, 209 Ill. App. 290; American Hard Rubber Co. v. Howe, 280 Ill. 431. The holding in each of these cases is in accordance with both the letter and the spirit of the Municipal Court Act and is decisive of the objections made against the statement of claim filed in this case.

That defendants were fully informed of the nature of the case they were called upon to defend and that the case included the very element which they now complain of as having been omitted from the statement of claim, namely, the want of probable cause, is shown by the affidavit which they filed in which they alleged that they did have probable cause. As the Supreme Court said in the Enberg case, supra, shall we, against the express provisions of section 40 of the Municipal Court Act (J. & A. ¶ 3352), add the further requirement that the statement of claim shall aver, in such a case as this, that the alleged malicious prosecution was indulged in by the defendants without probable cause on their part, when such an averment would in Ino way add to the information of the defendants as to the nature of the tort or of the case they were called upon to defend?

In the case at bar, the subject-matter of the allegation, the omission of which the defendants now allege makes the statement of claim fatally defective, was squarely raised and evidence for and against that issue was presented to the jury and passed upon by them. In this re'spect this case differs from the case of Rutkowski v. Marcowska, 203 Ill. App. 204, where the defendant’s affidavit of merits was stricken from the files and the cause tried in the absence of the defendant or his attorney. The defendants also rely on the case of Gillman v. Chicago Rys. Co., 268 Ill. 305. We do not consider that case in point for there the statement of claim filed by the plaintiff did not disclose whether the relationship which was claimed to exist was that of carrier and passenger, or of master and servant, or of merely bystander and street railroad company; nor did it allege or in any way indicate the nature of the alleged negligence complained of. In short, as stated by the Supreme Court in its opinion on page 309: “It does not show the nature of the tort complained of.” It cannot be successfully contended that the statement of claim in the case at bar does not show the nature of the tort complained of.

The defendants further complain of certain remarks indulged in by counsel for the plaintiff in his closing argument to the jury. While the remarks in question might better have been omitted, we do not consider them as reversible error.

The last "point urged by the defendants, in contending that the judgment of the trial court should be reversed, is that the verdict is against the manifest weight of the evidence in that it discloses that the defendants did have probable cause for the institution of their prosecution of the plaintiff, and this for two reasons, as shown by the evidence: First, that they in good faith consulted with experienced and competent counsel, who, upon full disclosure, advised arrest; and, second, that one of the judges of the Municipal Court, sitting as an examining magistrate, upon a full hearing in which the plaintiff testified, reached the conclusion that the plaintiff was probably guilty of the charge which had been brought against him and therefore bound him over to the grand jury.

As to the first of these contentions, it appears from the evidence as disclosed by the record in this case that the defendants conferred with an attorney, as he testified, “for the purpose of getting this money.” After being consulted by the defendants, the attorney talked with the plaintiff and subsequently had several conferences with his clients. It appears from the evidence that he not only did not advise them that, in view of all the facts disclosed to him, they would be justified in having plaintiff arrested, but that the sum and substance of his advice was that they should be very sure they were right before going ahead and taking such a serious step. There seems to be some dispute as to whether or not some of the items had been collected, and, among other things, the attorney told the defendants that if they were absolutely certain in their own minds that the plaintiff had made the collections, they would be justified in swearing out a warrant, but it appears that the attorney wrote his clients to the effect that he would not assume any responsibility himself. The real purpose of the defendants in seeking the advice of their counsel at this time seems to be indicated further by the testimony of Mr. Ruderman in which he says that after he had had a number of talks with the plaintiff and with the lawyer he told the plaintiff they were going to have him arrested. There had been efforts to induce the plaintiff to settle and after all efforts failed, Mr. Ruderman testified: “I went over to see our lawyer and told him about it and he said if we could not get the money any other way, have him arrested.” The rule that, when a party consults with counsel of good standing and lays the facts before him fully and then acts in good faith and in the honest belief that the party charged is probably guilty of the criminal offense, he will.not be held responsible for his act if it should turn out that the party is not guilty, implies always, that the party seeking counsel does so in good faith. If a criminal prosecution is instituted for the mere purpose of coercing one into the payment of a debt or the surrender of some right claimed, and not in the cause of public justice, the fact that the one instituting such a prosecution procures the advice of counsel will not shield him from the consequences of his wrongful act. Neufeld v. Rodeminski, 144 Ill. 83.

As to the second point urged by the defendants in this connection, it does not appear from the record that there was a full hearing before the judge of the Municipal Court who bound the plaintiff over to the grand jury. Plaintiff seems to have had little or no opportunity to present his case and was in court without counsel. In the case of Schoonover v. Myers, 28 Ill. 308, the plaintiff, in an action for malicious prosecution, when arrested under a warrant sworn out by defendant, waived examination and voluntarily gave bail for his appearance in the Circuit Court. It was urged that this action on his part was an admission of at least such a probability of guilt as to preclude him from ever after alleging that the prosecution was maliciously instituted. The court held not, and said: “This course should have no more influence than would the finding of a magistrate, upon a hearing of the evidence, that there was probable cause, and binding the person over for his appearance, or committing him.”

The question of the presence of absence of probable cause is a question of fact for the jury to pass upon, and, notwithstanding the action of the magistrate in holding the plaintiff over to the grand jury, it may well be that the jury would properly find, on the whole of the testimony submitted to it, that the one who had instituted the prosecution had done so without probable cause unless the evidence, submitted to the jury in the suit for malicious prosecution, on the question of probable cause, was the same evidence as that submitted to the examining magistrate upon which he bound the plaintiff over to the grand jury, and, in the latter case, the one instituting the prosecution should be held to have had probable cause the same as though he had acted on the advice of counsel. Glenn v. Lawrence, 280 Ill. 581. But even though the defendants, in the case at bar, were in that situation, there would still remain the question of their good faith, and, as we have already indicated, we believe the evidence in this record was sufficient to warrant the jury in concluding that the defendants were not actuated by good faith in bringing the prosecution in question, but rather for the purpose of compelling the payment of the amount they claimed was due from the plaintiff.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    William J. Murray, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,230.
    (Not to he reported in full.)
    Abstract of the Decision.
    Street railroads, § 131

      —when shown that driver of motorcycle contribv.torily negligent. Evidence held to conclusively establish that plaintiff was guilty of contributory negligence which proximately contributed to his injury, in a collision between his motorcycle and defendant’s street car at a street intersection.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Beentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed March 13, 1918.
    Rehearing denied April 6, 1918. „
    Statement of the Case.
    Action by William J. Murray, plaintiff, against Chicago Railways Company, defendant, to recover damages for personal injuries sustained in a collision between plaintiff’s motorcycle and defendant’s street car. From a judgment for plaintiff for $10,000, defendant appeals.
    P. L. McArdle and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Jeremiah B. O’Connell and Irving Wesley Baker, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Hugh K. MacDonald, Appellee, v. Chicago Railways Company et al., on appeal of Chicago Railways Company, Appellant.
    Gen. No. 23,236.
    (Not to he reported in full.)
    Abstract of the Decision.
    L Negligence, § 213

      —when instruction not misleading. An Instruction, in an action against two defendants to recover damages for personal injuries, that one defendant had rested his case at the close of plaintiff’s evidence and that in considering a verdict the jury should not take into consideration any evidence introduced by the other defendant but must only consider such evidence as was introduced by the plaintiff, held to lay down a correct statement of the law as to the first defendant, and in view of all the instructions given not misleading as to the other defendant, although ambiguous in itself.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Hugh K.' MacDonald, plaintiff, against Chicago Railways Company and others, defendants, to recover damages for personal injuries. From a judgment for plaintiff for $7,000, against Chicago Railways Company, the other defendants being found not guilty, Chicago Railways Company appeals.
    Weymouth Kirkland and Charles LeRoy Brown, for appellant; John R. Cuilliams, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice Thomson

delivered the opinion of the court

2. Negligence, § 222 —when instructions are not conflicting. An instruction in a negligence case that the court did not" presume to tell the jury what facts were established by the evidence, that being a matter which was their sole province, did not conflict with an instruction that, there being no evidence of any negligence of defendant before a certain point, the jury were only called upon to decide whether the facts following that point, as shown by the evidence, established negligence, or with an instruction putting the subject-matter of the latter instruction in another form, defining the law as applied to the situation therein presented.

3. Carriers, § 484*—when instruction on care required to guard against injuries to passengers is proper. An instruction “that it is the duty of common carriers to do all that human care, vigilance and foresight can reasonably do, in view of the character and mode of conveyance adopted, and consistently with the practical operation of the road, reasonably to guard against accidents and consequential injuries to their passengers, and if they neglect to do so, they are to be held strictly responsible for all consequences which directly flow from such neglect; while the carrier is not an insurer of the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of practicable care to secure the safety of the passenger and is responsible for the slightest neglect to exercise such care directly resulting in injury to the passenger, if the passenger is, before and at the time of the injury, exercising ordinary care for his or her own safety,” held to be proper.

4. Instructions, § 88*—determination of preponderance of evidence. An instruction that in: determining the preponderance of evidence the jury are not to consider alone the number of witnesses for the respective parties, is proper.

5. Cabbiebs, § 456*—what is immaterial variance in action hy passenger for personal injuries. Where a declaration, in an action by a passenger against a street railroad for personal injuries sustained in a collision with a wagon, alleged and the proof showed that the accident occurred at a certain point where the railroad crossed a certain street, it was immaterial that the declaration and the proof differed as to the location of the point as between certain other streets.

6. Cabbiebs, § 476*—when negligence of motorman shown. In an action by a passenger against a street railroad for personal injuries, evidence held to sustain the finding that defendant street railroad’s motorman was negligent in the operation of its street car after he became aware of the danger presented by the actions of the horse of another defendant, at such a time as to enable him to avoid the collision of the car with the wagon.