text:
    Edgar W. Hayes et al. v. William M. Cooper, use, etc.
    I. Set-off — Principal and sureties. — While it is a general rule that demands can not be set off unless they are mutual and between the parties to the action, that is, that a joint debt can not be set off against a separate debt nor a separate debt against a joint debt, yet an exception is made in a,n action against the principal and his sureties, when a claim of the principal debtor against the plaintiff may be set off.
    2. Action against sureties and principal on appeal bond — Plea of set-off. — An action of debt brought by appellee for the use of Lynch, against appellants and Lewis on an appeal bond, Lewis being the principal and appellants the 'sureties. A plea of set-off was filed, alleging in substance that §90 was due on the bond; that plaintiff was indebted to defendant, Lewis, ;in the sum of §145.60 on a judgment recovered against him, which sum defendants offer to set off and allow against the sum due on the bond; that Lynch and appellee had notice of the claim at the time Lynch claimed to obtain an interest in said judgment. To this plea a general demurrer was filed. Held, that the court erred in sustaining such demurrer.
    Appeal from the Circuit Court of' Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. Krome & Hadley, for appellants;
    that whatever would he matter of defense for the principal debtor were he sued alone, should be admitted as a defense in favor of the principal and surety when they are sued together, cited Himrod v. Baugh, 85 Ill. 435; Engs v. Matson, 11 Bradwell, 640.
    A judgment is a chose in action and can only he assigned in equity, and is subject to the same defenses in the hands of the assignee as it would have been in the hands of the assignor at the time of the assignment: Olds v. Cummings 31 Ill. 190; Peck v. Bligh, 37 Ill. 317: Kleeman v. Frisbie, 63 Ill. 482.
    Messrs. Irwin & Springer, for appellee.
   Casey, J.

This was an action of debt, brought by appellee against appellants and one Denny Lewis, on an appeal bond, in the Circuit Court of Madison county. The amended declaration is as follows:

“Wm. M. Cooper, the plaintiff in this suit, who sues for the use of Clay H. Lynch, complains of Deuny Lewis, E. W. Hayes and John C. Hayes, of a plea that they render unto the plaintiff, who sues for the use of Olay H. Lynch, the sum of one hundred and eighty-three dollars, which they owe to and unjustly retain from him. For that, whereas, the said defendants, Denny Lewis, E. W. Hayes and John 0. Hayes, on the 18th day of April, 1881, at the city of Butalto, county of Madison, and State of Illinois, made their certain writing obligatory, sealed with their seals, and here in court to be produced, and then and there delivered the same to said plaintiff, whereby the said Denny Lewis, as principal, and the said E. "W. Hayes and Jno. 0. Hayes, as security, acknowledge themselves to be held and firmly bound unto the plaintiff in the penal sum of one hundred and eighty-three dollars, lawful money of the Hnited States, for the payment of which they bound themselves jointly, severally and firmly, to be paid to the said plaintiff; which writing obligatory was subject to a condition thereunder written, whereby it was provided that said plaintiff did on the second day of April, 1881, before 0. H. Flick, a justice of the peace for the said county of Madison in the State of Illinois, recover a judgment against the above bounden, Denny Lewis, for the sum of eighty dollars and the costs of suit, from which said judgment the said Denny Lewis took -an appeal to the Circuit Court of the county of Madison aforesaid; and, whereas, it was provided that if the said Denny Lewis should prosecute his appeal with effect, and should pay the said judgment, damages, interest and costs, in case the judgment should be affirmed, then the said writing obligatory was to be void, and the plaintiff avers that afterward, to wit, on the 26th day of October, 1881, the trial of said cause was had on said appeal in said circuit court, which resulted in a judgment in favor of the plaintiff and against the said Denny Lewis, for the sum of eighty dollars and costs, which said judgment remains in full force unreversed and unsatisfied, in whole or in part, as by the records of said circuit court will more fully appear. Yet the plaintiff in fact says that the said Denny Lewis hath not paid the amount of the judgment rendered against him by said circuit court on the trial of said appeal, nor the costs of said appeal, nor any part of said judgment or costs, according to the tenor and effect of the said writing obligatory, and said judgment is still in full force and effect, in no wise satisfied, vacated or discharged, whereby, etc.”

To the amended declaration, the defendants, Edgar W. Hayes and John C. Hayes, file three pleas: 1. nil debit; 2, nul tiel record,; 3, set-off. A demurrer was sustained to each of these pleas, when all three of the defendants by leave of the court file the plea as non est factum, and an amended special plea of set-off. The plea of set-off is as follows:

And the said defendants, by their said attorneys, for a further plea in this behalf say, that the plaintiff ought not to have his aforesaid action against them, because they say that at the time of the commencement of this suit there was due from these defendants to the plaintiff, upon the said writing obligatory, by the said condition thereof, for the principal and interest in the said condition mentioned, the sum of ninety dollars.

And these defendants further say that the plaintiff was before and at the time of the commencement of this suit, and still is, indebted to this defendant, Denny Lewis, in a much larger sum of money than the said sum so due from the defendants upon the said writing obligatory, that is to say, in the sum of one hundred and forty-five dollars and sixty cents, upon a judgment recovered by the said Denny Lewis, in the name and by the style of Denny Lewis against the said plaintiff, by the name and style of William Cooper, for the said sum of one hundred and forty-five dollars and sixty cents, and costs of said suit, amounting to the sum of five dollars and thirty-five cents, which judgment was obtained before Edward Phillips, a justice of the peace in and for Madison county, Illinois, on the 19tli day of November, 1881; and the defendants aver that said judgment remains in full force, has not been appealed from, nor has the same been paid in whole or in part; which said sum of money so due from the plaintiff to this defendant, Lewis, as aforesaid, or so much thereof as shall be necessary in this behalf, these defendants are ready and willing and offer to set off and allow against the said sum of money so remaining due, by the said condition of the said writing obligatory.

And these defendants further say that the said writing obligatory, in the said declaration mentioned, was signed by this defendant Lewis, as principal, and by the defendants Edgar W. Hayes and John 0. Hayes, as sureties; which fact was known to the plaintiff and the said Clay H. Lynch at the time of the recovery of the judgment in the Madison county Circuit Court, in said declaration mentioned, and that neither of these defendants had any notice that the said Clay H. Lynch had or claimed any interest in the judgment mentioned in the writing obligatory, in the said declaration described, until the commencement of this suit. These defendants also aver that at the time the said Clay H. Lynch claims to have acquired an interest in the judgment in the said declaration mentioned, he and the plaintiff had notice of the claims of this defendant, Lewis, against the plaintiff; that the said Clay H. Lynch has no interest in said judgment, but that such alleged fact is claimed "by said Lynch and the said plaintiff for the purpose of preventing these defendants from setting off the claim of defendant Lewis against the claim of the plaintiff tinder the condition of the said writing obligatory in the said declaration mentioned, and this the defendants are ready to verify, etc. Copy of judgment sought to be set-off.

A general demurrer was sustained to this plea and the defendants elected to stand by their pleas of set-off and nul tiel reeord. Upon the trial in the circuit court, judgment was rendered in favor of appellee, and E. W. and John C. Hayes bring the case to this court by appeal. The errors assigned are that the court erred in sustaining the demurrer to the pleas of set-off and nul tiel reeord.

It must be admitted, as a general rule, that demands can not be set off unless they are mutual and between the parties to the action; that is, that a joint debt can not be set off against a separate debt nor a separate debt against a joint debt. To this rule, however, there are exceptions in a number of the States, and notably so in this State. The case of Himrod et al. v. Baugh, for use, etc., 85 Ill. 435, is very like the case now before us.

In that case the suit was on an appeal bond executed by George Himrod, John B. Lovingston and Mortimer Millard to Thos. Baugh, on the 31st day of October, 1872, upon an appeal to the Circuit Court of St. Clair county from a judgment recovered bv said Baugh against Himrod and A. E. Ellithorpe, on the 30th day of October, 1872, in tbe City Court of East St. Louis, for the sum of $338.95 and costs of suit..

¡¡The declaration avers that the judgment was affirmed and the appeal dismissed for want of prosecution on the 20th of April, 1874. The suit was brought on the appealbond in the name of Tilomas Baugh for the use of Levi Baugh, to whom it was alleged the judgment had been assigned. The defendants filed a plea of set-off, which was in substance, that one Heidenfeld obtained two judgments against the said Thomas Baugh on the 4th of March, 1874, one for $181.32 and the other for $76.25; that there was a garnishee proceeding instituted upon the judgments against the said Himrod and Ellithorpe, as garnishees of Thomas Baugh and that on the 11th of June, 1874, judgment was rendered against them as such garnishees for the sum of $189.67 and $3.60 costs of suit, and that afterward on the 5th of September, 1874, upon another like garnishee proceeding, judgment was entered against them as the garnishees of the said Thomas Baugh and in favor of Heidenfeld for the sura of $86.90and $3.60 costs; that Him-rod and Ellithorpe have paid the same judgments to Heidenfeld; and further that at the April term, 1874, of the circuit court, Himrod and Ellithorpe recovered a judgment against the said Thomas Baugh for the sum of $52 and costs, which is still unpaid and unsatisfied.

That the amount paid on the garnishee judgment and the judgment obtained against Thomas Baugh they propose to set off against the amount claimed in the suit on the appeal bond. The plea further shows that Millard and Lovingston were mere sureties for Himrod and Ellithorpe on the appeal bond. To this plea in the circuit court a demurrer was interposed by the plaintiff which was sustained by the court. The error assigned is in sustaining a demurrer to the special plea of set-off.

"We have given this full statement of the case because of its striking similarity to the one now before us for consideration. The Supreme Court, in discussing the plea of set-off in the Himrod case, say: Himrod and Ellithorpe are here the principal debtors, and Millard and Lovingston are only their sureties, and such a circumstance has been admitted by some courts of respectable authority as creating an exception to the general rule, they holding that a claim of the principal debtor against the plaintiff may be set off in an action against the principal and his sureties. Mahevrin v. Pearson, 8 N. H. 539; Concord v. Pillsbury, 33 Id. 310; Brundridge v. Whitcomb, 1 Chipman, 180. We are inclined to accept the rnle of these authorities. It seems to be in consonance with the equitable principles which so largely govern the relation of principal and surety, and we are struck with the fitness of allowing whatever, not merely personal, would be matter of defense for the principal debtor were he sued alone, to be admitted as a defense in favor of the principal and surety when they are sued together. The principal debtor is the real debtor, and the surety but the security for the payment of the principal’s separate debts; and off-setting a demand in favor of the principal debtor alone, when sued with his surety, is setting off against each other what may be regarded as essentially mutual debts. See 2 Waterman on Set-offs, 239; Brunn v. Beingett et al., 4 Bing. 423. In ex parte Hansen, 18 Vesey, 232, it was observed by Lord El den, in reference to the indebtedness of principal and surety on a joint bond, that the joint debt !jwas nothing more than a security for a separate debt. The judgment of the circuit court in sustaining the demurrer to the plea was reversed and the cause remanded. In the case of Mahevrin v. Pearson, supra, the suit was on a promissory note, and in that case the Supreme Court of Hew Hampshire held that in an action on a promissory note against the principal and surety, a demand due from the plaintiff to the principal may be set off.

In the case of the City of Concord v. Pillsbury, supra, the suit was on a bond given by Pillsbury for the faithful performance of the duties of the office of city marshal of the city of Concord to which office he had been appointed by the authorities of the said city. In that case it was held that in debt against principal and sureties a debt due from the plaintiff may be set off.

In the case of Brundridge v. Whitcomb et al., supra, the Supreme Court of Vermont say: “In an action by the assignee of a gaol bond against A as principal and B as surety the defendants may plead a separate demand of A, the principal, in off-set to the plaintiff’s demand. In the case of Engs et al. v. Matson, 11 Bradwell, 639, it is, we think, properly said that the doctrine may be considered as settled in this State that the right of set-off is not limited to cases of demands between all the parties to the suit, but it exists in cases of debt or demands between the real parties in interest, and by statute, demands upon simple contracts may be set off against demands upon sealed instruments.

This was a suit upon a replevin bond, and the court in that case further says: “The principal obligor on the bond is the real debtor, and the surety only security, as whatever would discharge the principal would also discharge the surety. We can see no good reason why, when sued with his surety, the principal ought not to be admitted to the same defense as he would be if sued alone. Setting off a demand against the principal debtor is what may be regarded as a mutual debt.” Coules v. Coules, 9 How. Pr. R. 361. The plea in the case before us shows that Lynch, at the time he claims to have acquired an interest in the judgment, had notice of the claims of the defendant, Lewis, against the plaintiff, Cooper. In view of these authorities we think that the court erred in sustaining the demurrer to the plea of set-off. The declaration contains an averment to this effect that there was a trial of the cause on the appeal to the circuit court, which resulted in a judgment in favor of the plaintiff and against the said Denny Lewis, for the sum of eighty dollars and costs, which said judgment remains in full force unreversed and unsatisfied as by the record of said circuit court will more fully appear. This was a necessary and material averment in the declaration.

The plea of nul tiel record put that averment in issue, and we think that the demurrer was improperly sustained to the plea.

For these reasons the judgment of the circuit court is reversed and the cause remanded.

Eeversed and remanded.


source: Caselaw Access Project

author: Casey J.

license: Public Domain

text:
    John Whittaker v. James Coombs.
    1. Master and'' servant. — The relation of master and servant can never imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take of himself.
    2. Negligence. — Where the evidence showed that appellee was not employed for any special purpose but performed different kinds of labor doing whatever he was told to do, and the superintendent telling him to couple cars, he did not inform the superintendent that he was unskilled and ignorant of the mode of coupling cars but went to work coupling the cars from the inside instead of the outside of the curve, which was far more dangerous, and was injured. Held, that appellee did not use the care which a reasonably prudent and discreet man would.
    Appeal from the City Court of East St. Louis; the Hon. William; P. Launtz, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. John B. Bowman, for appellant;
    that appellee did not use due care and caution, cited Penn. Co. v. Lynch, 90 Ill. 333; Hopkins v. I. & St. L. R. R. Co., 78 Ill. 32.
    Mr. M. Millard, for appellee;
    cited Lalor v. C. B. & Q. R. R. Co., 52 Ill. 401; C. & A. R. R. Co. v. Murphy, 53 Ill. 339; C & A. R. R. Co. v. May, 108 Ill. 288.
   Casey J.

This was an action on the case instituted hy appellee against appellant in the City Court of East St. Louis. The material averments in the declaration are: That appellee was in the employ of appellant and engaged to assist the servants of appellant in unloading cars and filling an ice house, as a common laborer and for no other purpose. That while so regarded the superintendent of appellant directed him to couple cars, which were being carelessly pushed together by other servants of appellant, well knowing that appellee was unskillful and unable to perforin such service without incurring danger of personal injury. That while he was attempting to couple said cars with due care and diligence, his right hand was unavoidably caught between said cars and crushed, whereby he lost two of his fingers. That he paid out $250 for medical attention, etc. The question for consideration is as to the sufficiency of the testimony to sustain the averments in the declaration. As to the employment of appellee, he states in his testimony that he went to the place of business of appellant in search of work, and was asked if he wanted to go to work. Appellee replied that he did, and was told “ to get a hook and go to work. ” Appellee did whatever he was directed to do. Afterward he was instructed to work at the elevator, and he did so. Appellee considered it his duty under his employment to do whatever he was told to do. When he was directed to make the coupling he did not inform the superintendent that he had never made a coupling before, or that he was unskillful or inexperienced in that business.

This is substantially the statement of appellee as to the character of his employment. We have carefully examined the record and have been wholly unable to find any evidence tending to show that the cars were being carelessly pushed together; and there is no evidence whatever in the record tending to show that the superintendent of appellant knew that appellee was unskillful or inexperienced in the mode of coupling cars. As to the averment of care or diligence in the declaration, appellee in his testimony states that there was a very bad curve in the railroad at the point next the platform on which the cars were unloaded. That he went there by direction of Superintendent Hamilton to couple the cars; that he went in on the wrong side; that he went in on the inside of the curve; and in another place in his testimony he states in substance: “If I had not got in on the wrong side I would not have got hurt. If I had gone in on the other side I would not have got my fingers hurt; the outside of the curve went straight by the platform; there was ample room to stand between the platform and the cars; the coupling could have been made from the outside and if it had been made from there I would not have got hurt.”

It seems clear from this and other testimony in the record, that appellee was employed especially to aid in filling the ice house of appellant.

The ice was brought to the platform adjoining the ice house on the cars; the cars were left there by the engine. As they were unloaded the empty cars were pushed down the track and loaded cars pushed up to the platform. Tor the purpose of facilitating the work, when the cars were unloaded and the ice put in the house, the superintendent had the men clean up the platform and couple the empty cars together. Opposite the platform there was a considerable curve on the railroad track. The outside of the curve being against the platform the iron deadwoods of the cars would come together on the inside sooner than on the outside of the* curve, and sooner than the drawheads, making the inside a much more dangerous place from which to couple the cars, as stated by appellee. At the time of the injury to appellee he had been several days in the employ of appellant; was two or three days managing the elevator. The cars had been unloaded, the ice put in the house. Some of the men were pushing the cars together, and appellee, who had been shoveling ice off of the platform, was told, as he states, to couple the cars. Ho objection was made to this part of the work by appellee, or as to that by any of the men. Considering all this taken in connection with the sworn statement of appellee, that he performed different kinds of work there, that he did whatever he was told to do, and that he was not employed for any special purpose, we are not prepared to say but that pushing and coupling the empty cars may not have been a part of the employment of appellee. However that may be, it is perfectly clear that there is no evidence in the record that the superintendent of appellant knew that appellee was unskilled or ignorant of the mode of coupling cars. If that was true, it was the duty of appellee to advise the superintendent of that fact. This is surely not more than might be and ought to be expected of a reasonably prudent man — one who would take ordinary care of his own safety. If he failed and neglected to do so, and was injured as charged in the declaration, whose fault was it? The fact that he was inexperienced in that business, so far as the record shows, was known only to himself, and that important fact he concealed, or at least failed to make known.

It is fair to presume that if he had made the facts known to the superintendent, some other and more competent one of the laborers would have been selected to couple the cars together.

But whether that'is a fair presumption or not, it would have shown an effort on his part to take proper care of himself— such care as an ordinarily prudent and discreet man would exercise. If, after informing the superintendent of his want of experience, he had still been directed to couple the cars, and in doing so at the same time’he was using proper care, he was injured, there would have been but little question of his right to recover. If, while appellee was engaged at the elevator of appellant, he had discovered that the machinery was defective or dangerous, it would clearly have been his duty to notify appellant of the defect, and for the same reason it was his duty to notify appellant of his ignorance as to the proper and safe mode of coupling cars. Was appellee using proper care and diligence at the time of the injury, that is, such care as a reasonably prudent and discreet man would use for the safety of his person ? If not, there can be no recovery in, this case. As above stated, appellee, in his testimony, shows that he did not inform the superintendent of his unskillfulness. He further states that he went between the cars on the inside of the curve to couple them; that the inside was much the more dangerous place; and he states that he would not have been injured if he had done the coupling from the outside of the curve. Thus it is seen that appellee exposed himself to unnecessary danger and peril. He was not directed to couple the cars from inside the curve. In fact the testimony of several witnesses shows that he was advised by one of the foremen of appellant that it was dangerous on the inside. Appellee says that he did not hear the warning, though it was heard by persons in his immediate vicinity. Apart from tliaf we can not think that appellee at the time of the injury was using such care as a reasonably prudent man would use under like circumstances. Certainly it does not require much skill or practice to advise an ordinarily intelligent man that there was more danger in coupling the cars from the inside than from the outside of the curve. It would not require any great amount of experience, if any at all, to learn that fact. The relation of master and servant can never imply an obligation on the part of the master to take more care of the servant than he may be reasonably expected to take of himself. Priestig v. Fowler, 3 M. & W. 1.

Taking the statement of appellee as true, if he recovers a judgment in this action it would seem to be rewarding him for his own negligence rather than compensating him for a loss sustained by the negligence of another. Penn. Co. v. Lynch, 90 Ill. 333; Camp Point Mfg. Co. v. Ballon, adm’r, 71 Ill. 417; Lansing v. N. Y. C. R. R. Co., 49 N. Y. 534; Gibson v. E. R. R. Co., 63 E. Y. 453.

It is insisted by the learned counsel for appellee that the case of Lalor v. C., B. & Q. R. R. Co., 52 Ill. 401, is “ directly in point.” We can not agree to that proposition. In Lalor’s case, it was averred in. the declaration that the deceased was employed for a special purpose, that is, to load and unload cars; that while so engaged he was ordered by the foreman to couple and connect a freight car with other cars attached to a locomotive, contrary to the special agreement; that the deceased was unused and inexperienced in coupling cars, which fact was well known to the foreman; that while coupling the cars, the engine was so carelessly managed as to bring the cars together with great force, and he was crushed to death.

To this declaration a demurrer was sustained in the circuit court. The demurrer admitted each of these allegations to be true, and, as remarked by the Supreme Court, “they make a strong case”; the law would be lamentably deficient if it did not afford a remedy in such a case. It is somewhat difficult to see how this case is “ in point,” when these strong allegations in the declaration were admitted to be true, and when in the case before us the averments are not so strong, where they are all denied, and in our judgment not sustained by the evidence. "We have carefully examined the cases of the C. & A. R. R. Co. v. Murphy, 58 Ill. 339, and C. & A. R. R. Co. v. May, adm’r, 108 Ill. 288, to which we have been referred by counsel for appellee, and find that, in our judgment, they do not conflict with the views herein expressed.

For the reasons given, the judgment of the City Court of East St. Louis is reversed and the cause remanded.

Eeversed and remanded.


author: Casey, J.

text:
    St. Louis & Cairo Railroad Co. v. Isaac D. Blackwood.
    Statute against extortion — Publishing oe schedule.— Under section 19 of chapter 114 Underwood’s Statute, entitled Railroads, which provides for the railroad and warehouse commissioners making for each railroad corporation doing business in the State a schedule of maximum rates of charges for transportation of passengers, freights and cars, and makes it the duty of the commissioners to cause such schedules to be published for three successive weeks in some public newspaper published in Springfield in this State, the classification of freights made by the commissioners is a part of the schedule, and to be operative must he published the same as the schedule.
    Appeal from the Circuit Court of Jackson county; the Hon. David J. Baker, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. Judd & Wiiitehouse, for appellant.
    Mr. John H. Bain, for appellee.
   Casey, J.

This suit is based on section 19 of chapter 114 Underwood’s Statute, entitled Eailroads.

Appellee charges appellant with extortion; the section referred to provides for a recovery from the railroad corporation, in any form of action, of three times the amount of damages sustained by the party aggrieved, together with the costs of suit, and a reasonable attorney’s fee to be fixed by the court when the same is heard, on appeal or otherwise, and taxed as a part of the costs in the cause.

Section 93, in substance, provides that the railroad and warehouse commissioners shall make for each railroad corporation doing business in this State, a schedule of reasonable maximum rates of charges for the transportation of passengers and freights and ears on each of said railroads; that said schedule shall in all suits brought against any such railroad corporation for the transportation of any passenger or freight or cars * * * * foe deemed and taken in all the courts of this State as prima facie evidence that the rules therein fixed are reasonable maximum rates of charges for the transportation of passengers and freight and cars, upon the railroads for which said schedules may have been respectively made. The commissioners shall, as often as circumstances may require, change and revise said schedule.

When any schedule shall have been made or revised as aforesaid, it shall be the duty of said commissioners to cause publication thereof to be made for three successive weeks in some public newspaper published in the city of Springfield, in this State. The first shipment made by appellee and on account of which extortion is charged, was made on the 13th of April, 1882, and the shipments continued at intervals to September 30, 1882. Seven of the shipments were made before the 10th day of August, 1882, and five were made after that time. On the 10th day of August, 1882, a revised classification and schedule of reasonable maximum rates of charges for the transportation of passengers and freight took effect.

This schedule superseded all schedules prepared before that time.

Shipments made by appellee prior to that time must be regulated by the classification and schedules in force when such shipments were made. The record shows a revised classification to have been published October 27th, November 3d and November 10th, 1881, and that a revised schedule was published November 17th, November 21st and December 1st, 1881.

In the certificate of railroad and warehouse commissioners, showing publication, the classification is referred to as “ explanatory and forming a part of the schedule prepared and revised by said commissioners for the governing of class B, railroad companies. Between the classification and schedule just referred to is what purports to be another revised classification of freight, adopted by the railroad and warehouse commissioners, and forming a part of each of the schedules prepared for railroads, owned or operated in the State of Illinois, which was in force after December 1,1881. This classification is to supersede all others, and take effect and be in force on and after April 10, 1882. It is signed by two of the railroad and warehouse commissioners.

We have carefully examined the record and been unable to find any certificate or other evidence showing that it was published in a public newspaper for three successive weeks, as required by the statute. The classification is “ explanatory ” and made a part of the schedule.” Without a reference to the classification the schedule would be meaningless. The requirement of the statute, that the schedules should be published, was as well for the people as the railroad corporation, and neither party would have even an indistinct idea of their rights or duties by an examination of what is termed a schedule alone. The classification is the key to what would otherwise be the hidden mysteries of the schedule, and is certainly a part of the schedule. So that if the commissioners have the power to make this classification separate and apart from the schedule, and make it explanatory of or a part of the schedule, it is clear that it must be published the same as the schedule. Then in this case we find that the schedule was revised by the classification taking effect the 10th of April, 1882. As we have seen, this revision was not published and was improperly allowed to go in evidence. It could not be operative or take effect until it was published.

The claim of appellee is, that the extortion by appellant was in charging more than the maximum rate allowed by this classification and schedule, which was supposed to take effect the 10th of April, 1882, when, in fact, the classification of December 1, 1881, was in force until the 10th day of Au: gust, 1882.

The latter schedule contains this provision: “ Freight will be billed at the actual weight, unless otherwise directed in the classification. 20,000 pounds will be considered a car load except in cases of light and bulky articles, when the car load shall be limited by the capacity of the car.”

The shipments made prior to August 10, 1882, were each for less than a car load of 20,000 pounds; that is, they were each 16,000 pounds except one, on the 17th of April, 1882, which was for 24,000 pounds. So that there was nothing in the maximujn rates fixed at the time, to prevent appellant from charging the rate fixed for less than car loads on six ol the shipments.

In other words, appellant might have charged at the rate of fourteen cents per hundred pounds (that being the rate fixed at less than car loads of that character of freight) and not been liable to the charge of extortion, because it would have been a compliance with the schedule and classification in force at the time. For the first shipment of 16,000 pounds appellant might have been.charged $22.40 instead of $13.30. The rates charged may be most unreasonably high, but it can never be called extortion, unless they exceed the maximum rates fixed by the railroad and warehouse commissioners. Counsel for appellee, to avoid this position, says, that “ it is provided in the classification that in all cases where rates are fixed for articles of freight for less than car loads, the aggregate amount charged shall not exceed the car load rate for such articles.”

This paragraph is not a part of the classification and schedule of December, 1881, under which these charges were made, but it is a part of the classification that was supposed to take effect April 10, 1882, and, as we have seen, the latter schedule was not published as required by the statute, and never did become operative as maximum rates in whole or in part. The mere fact that' appellant’s railroad is what is termed a narrow gaugé railroad, and that 16,000 pounds is the ordinary capacity of its freight cars, would make no difference. The commissioners, in the performance of their duty, say that a car load shall be 20,000 pounds. This may be a somewhat arbitrary rule and made without actual regard to the state of facts surrounding each railroad company. Still, it is a rule established by the commissioners in the interest of the people and the corporations. This rule is made to apply to what is in the classification called “ Class B,” which includes appellant and about forty other railroads in the State, the greater part of them being what is termed “standard gauge roads,” but a number of them being narrow gauge roads. We are not prepared to say that the commissioners exceeded their authority in establishing this rule, but it would seem to indicate a necessity for a schedule for “ each road.”

Other questions are presented by the record in this case, but we do not deem it necessary to discuss them. We think the circuit court erred in holding that appellant was liable to the charge of extortion on the six shipments made prior to the 10th of August, 1882; therefore the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Wabash, St. Louis and Pacific Railway Co. v. Lewis E. Stephens.
    Jurisdiction — Validity on statute involved. — Where the validity of a statute is involved, the appeal must go directly to the Supreme Court. The court therefore dismisses the appeal and leave is given to withdraw record, abstracts and briefs.

      Appeal from the Circuit Court of Crawford county; the Hon. Thos. S. Casey, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. Samuel P. Wheeler, for appellant.
    Messrs. Parker & Crowley, for appellee.
   Per Curiam.

The appellant raises the point that Sec. 52, Ch. 114 is in violation- of Sec. 13, Art. 4, of the Constitution and therefore void. By the Practice Act as amended in 1879, when the validity of a statute is involved the appeal must go directly to the Supreme Court. See Act of 1879, Sess. Laws, page 222.

We must therefore dismiss the appeal of our own motion as we have no jurisdiction to consider the question involved. Leave will be given to withdraw record, abstracts and briefs. St. L. T. Co. v. Canty, 103 Ill. 423; Marion Co. v. Lear, 108 Ill. 343; Wright v. People, etc., 92 Ill. 596.

Appeal dismissed.


text:
    Illinois Central Railroad Co. v. Henry Willenborg et al.
    Jurisdiction. — Where the question of the validity of a statute is involved, this court has no jurisdiction, and when the point is made in apparent good faith and must he disposed of in order to decide the case, the court will upon its own motion decline to consider it. 1
    Appeal from the Circuit Court of Effingham county; the Hon. Thos. S. Casey, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. Green & Gilbert, for appellant.
    Mr. John C. White and Mr. S. E. Gilmore, for appellees.
   Per Curiam.

The point is made by appellant that Secs. 40 and 41, Ch. 114, R. S., are invalid because repugnant to the constitution.

Such a question must be presented to the Supreme Court and we have no jurisdiction to pass upon it. When the point is made in apparent good faith and must be disposed of in order to decide the case, we must upon our own motion decline to consider it. Practice Act, Sec. 89, as amended in 1879; St. L. T. Co. v. Canty, 103 Ill. 423; Marion Co. v. Lear, 108 Ill. 343; Wright v. People, 92 Ill. 596.

The appeal will be dismissed with leave to withdraw record, abstracts and briefs.

■ Appeal dismissed.


author: Pee Cubiam.

text:
    Thomas Ratcliff v. Cincinnati Type Foundry et al.
    The court is of opinion that the court properly sustained the demurrer to the bill, but as the evidence upon which the damages were assessed is not preserved in the record, the case is affirmed -in part, reversed in part and remanded.
    Appeal from the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. J. C. Allen, for appellant.
    Messrs. Wilson & Hutchinson, for appellees.
   Pee Cubiam.

We are of opinion the court properly sustained the demurrer to the bill, but that the case must be reversed because the evidence upon which the damages were assessed is not preserved in the record.

So much of the decree as relates to the sustaining of the demurrer will therefore be affirmed, and so much of it as relates to the assessment of damages upon the dissolution of the injunction, will be reversed.

Affirmed in part, reversed in part and remanded.


author: Wall, P. J.

text:
    St. Louis Coal Railroad Co. v. Ben. W. Moore.
    1. Instructions. — "Where the evidence is conflicting, it is essential that the law he expounded accurately and clearly. As the instructions in this case were conflicting, inaccurate and liable to mislead the jury, the judgment is reversed.
    2. Duty on railroad company — Liability.—It is the duty of a railroad company to do all that human care, vigilance and foresight reasonably can, consistently with the mode of conveyance aud the practical operation of the road, to pi-ovide safe coaches, machinery’, track and road-bed, and to keep the same in repair, but the carrier does not absolutely insure the passenger against injury; and while responsible for an injury resulting from negligence, is not responsible for an accident resulting from a hidden defect in materials used for ties, rails, etc., if such defect could not, by the exercise of such care, vigilance and foresight, be detected.
    3. Practice — Objection too late. — Where a specific objection to certain evidence, as varying from the allegations in the declaration, was not made in the trial court, it can not be made for the first time in this court.
    Appeal from the Circuit Court of Williamson county; the Hon. O. A. Harker, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. W. J. Allen and Mr. George W. Young, for appellant;
    as to damages, cited Peoria Bridge Asso’n v. Loomis, 20 Ill. 235; Penn. R. R. Co. v. Books, 8 Am. L. R. 528; Laing v. Colder, 8 Barr, 481.
    Messrs. Barr & Lemma and Messrs. Olemens & Burton, for appellee;
    as to time to make objections to evidence, cited I. & St. L. R. R. Co. v. Estes, 96 Ill. 473; Sargeant v. Kellogg, 5 Gilm. 281; Gillespie v. Smith, 29 Ill. 478; King v. C. D. & V. R. R. Co., 98 Ill. 377; City of Elgin v. Kimball, 90 Ill. 356; Driver v. Ford, 90 Ill. 599; Driggers v. Bell, 94 Ill. 225; Stone v. G. W. Oil Co., 41 Ill. 91; Roberts v. Graham, 6 Wal. 578.
    Carriers of passengers are bound to use the utmost care and skill in the performance of such duty: Huelsenkamp v. Citizens R. R. Co., 37 Mo. 537; Johnson v. W. & St. Peter R. R. Co., 11 Minn. 296; Taylor v. Grand Trunk R. R. Co., 48 N. H. 304; Union Pacific R. R. Co. v. Hand, 7 Kan. 380; Brown v. N. Y. Cent. R. R. Co., 34 N. Y. 404; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 228.
   Wall, P. J.

This was an action on the case to recover for injuries sustained by appellee while riding as a passenger upon appellant’s railroad. The car in which appellee was seated, was overturned, and the injuries complained of were thereby occasioned. There was evidence tending to prove that at the point where the accident occurred the ties upon which the track was laid were old and rotten, and that the track was insecurely attached thereto. There was evidence on the other hand tending to prove that the ties were in good condition, the track properly fastened, and that the accident resulted from a flaw in the rail which could not have been perceived or guarded against.

There was a substantial conflict in the testimony as to these points, and it was the province of the jury under the instruction of the court as to the law of the case to determine which was the true theory. We shall express no opinion as to this matter and shall only add that the evidence was so conflicting as to render it essential that the law should be expounded accurately and clearly. Where the instructions are conflicting or lacking in harmony, it is to be expected that the jury will adopt one set and exclude the other, or disregard both and apply their own views of the law to the facts as they find them.

The general rules of law applicable to the case are neither numerous nor abstruse, and counsel differ but little in their statement of them.

When- the plaintiff showed that his injuries were caused by the overturning of the car, without fault upon his own part, he made out against the defendant company a prima facie case of negligence and placed upon them the burden of rebutting that presumption by proving that the accident resulted from a cause for which they were not responsible.

It is the duty of a railway company in transporting passengers to do all that human care, vigilance and foresight reasonably can consistently with the mode of conveyance and the practical operation of the road, in the matter of providing safe eoaches, machinery, tracks and road-bed, and to keep the same in repair, but the carrier does not absolutely insure the passenger against injury, and “while responsible for all injuries resulting from negligence, is not responsible for an accident resulting from a hidden defect in materials used for ties, rails, etc., if such defect could not by the exercise- of such care, vigilance and foresight be detected. The foundation of liability is negligence, and where negligence is wanting, there is no liability, except of course where is there willful wrong. Shearman and Bedfield on Negligence, Chapter XY. Fuller v. Talbot, 23 Ill. 357; P. C. & St. L. Ry. Co. v. Thompson, 56 Ill. 138.

At the instance of the plaintiff the court gave the following instruction:

“ 3. Bailroad companies who carry passengers for compensation or hire are bound to keep themselves informed as to the condition of their tracks, and to know whether they are in a fit condition for the safe passage of their trains over them; and if they neglect to do so they are answerable for all damages resulting from such neglects.”

We think the rule is here stated too broadly, and that the jury would naturally regard it as tantamount to the proposition that the carrier is an insurer of the safety of his passenger. If the carrier is bound to keep informed and to know that his tracks are safe, then he is responsible for any failure in so doing. It is true in the latter clause his responsibility is based upon “neglect,” but this does not obviate the objection. The jury might well understand from the proposition as a whole that the carrier is bound in all cases, regardless of the amount of diligence exercised or the nature of the defect.

The court also gave the following instruction at the instance of the plaintiff:

4. “Although a railroad company may use wooden ties, such ties should be absolutely sound and roadworthy.”

It is urged that this is a quotation from the opinion of the Supreme Court in the case last cited. We do not understand the court to lay down the rule that the carrier is more strictly bound in reference to the matter of ties,, than any other, such as rails, wheels, etc. The expression referred to, if taken literally, would be quite inconsistent with the general rule that the carrier is only held for negligence, and is not bound for failing to discover a defect which could not be detected by the use of the highest care and vigilance. The expression should be considered and construed in connection with the context, and if so, there will be no want of harmony in the whole opinion. We do not, however, regard this fourth instruction, in view of the evidence, as so objectionable as to warrant a reversal for that cause alone, for the reason that it is apparent from the evidence, conflicting as it is, if the jury found the ties were rotten and worn out as urged by one set of witnesses, the defect was so plain and patent that the company would certainly be chargeable with it; and if they believed the other set of witnesses, there was no defect in this respect and the accident must have had some other cause. There was no pretense that there was any hidden weakness in the ties. This instruction, though technically imperfect, did no harm.

The third instruction, however, must have exercised an important influence upon the jury, and if they gave it the natural construction and followed it there was nothing for them to do but to assess the plaintiff’s damages.

It is true that the instructions given at the instance of defendant laid down the law as favorably as could have been desired upon this point, but as we have already said instructions should not be conflicting.

Where an instruction on one side omits some necessary qualification, it is sometimes held that the defect is cured by an instruction on the otherhide, so drawn as to supplement the first, and if it can be seen that the instructions as a series are harmonious in a substantial degree and taken as a whole present the law fairly, the judgment should not be disturbed for that cause; but after a careful consideration of the instructions in this case, in view of the evidence, we are constrained to say that tire defendant must have been prejudiced unduly in this respect.

It is urged by appellant that the court erred in allowing plaintiff to testify to the loss of professional earnings, there being no allegation in the declaration under which such proof was relevant.

It is a sufficient answer to this point to say that the specific objection was not urged at the trial. Had it been, the court would doubtless have allowed an amendment, if necessary. 1. & St. L. Ry. Co. v. Estes, 96 Ill. 473. Such an objection can not be made for the first time in this court.

It is also urged that the damages are excessive. The plaintiff by remitting a large part of the verdict conceded that the original finding was excessive. As the case'must be reversed for another reason, and in view of the conflicting evidence as to the permanent nature'of the injuries, we forbear to express an opinion on this point. The interval that will have elapsed before another trial may throw further light upon the subject, and the jury may have other proof before them; and any opinion we might entertain upon the record, as now made up, would be of but little value to the court and of none to the jury when the case is again tried.

There-are other objections urged by appellant which we have attentively considered, but deem it not necessary to refer to them at this time.

Eor the error in giving the third instruction for plaintiff, the judgment is reversed and cause remanded.

Reversed and remanded.


text:
    Charles Ferriman v. John Shepherd et al.
    Practice — When an appellate court will reverse. — While an appellate court will not reverse a case to allow a plaintiff to recover merely nominal or vindictive damages and will hesitate to reverse on the facts merely, where several juries have found the same way, yet where there is a clear right to recover some damages, and the verdict is wholly in violation of the plaintiff’s legal rights, the judgment will be reversed.
    Error to the Circuit Court of Richland county; the Hon. Thos. S. Casey, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. "Wilson, Hutchinson and Mr. E. JB. Green, for plaintiff in error.
    Messrs. Allen & Eritchey, for defendants in error;
    cited Chittenden v. Evans, 48 Ill. 52; Johnson v. Weedman, 4 Scam. 495; Fish v. Roseberry, 22 Ill. 288.
   Wall, P. J.

This was an action of trespass by plaintiff in error against defendants in error for breaking and entering the plaintiff’s dwelling house. The jury found for defendants. Indeed, this is the third verdict to that effect. The evidence shows that the defendants were guilty of the trespass, but no defense whatever is shown. The only plea was not guilty.

It is conceded that an appellate court will not reversé a case to allow a plaintiff to recover nominal or vindictive damages merely, but the point is made that here the plaintiff sustained substantial damages and that the rule is not applicable to this case. After a careful reading of the evidence we are inclined to the same view, and while we can not say the damages should be very large, they should be more than merely nominal; and though courts hesitate to reverse on the facts merely,- when several juries have found the same way, yet we think this case is exceptional; that there was a clear right to recover some damages and that the verdict is wholly in violation of the plaintiff’s legal rights.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Louisville, Evansville & St. Louis Railway Co. v. James Chalcraft.
    1. Compensation for. damage to land not taken. — Where a railroad crosses a farm, the inconvenience in operating a farm thus divided is proper to he considered in fixing the damages to the land not taken.
    2. Necessary farm crossings — Circumstances to be considered. —In considering whether a proposed crossing is a necessary farm crossing within the meaning of the statute, it is not enough to show that the crossing contended for would add somewhat to the convenience of the land owner, but the safety and convenience of the corporation in the operation of its trains and in the care and use of its right of way, should be regarded and the final rights of both parties kept in view, so as to furnish reasonable safety and security to each without the imposition of an unreasonable burden or duty upon either. Considering the special circumstances of this case, the courtis of opinion that the proposed bridge -is not a necessary farm crossing within the meaning of the statute.
    Appeal from the Circuit Court of Edwards county; the Hon. C. S. Congee, Judge, presiding.
    Opinion filed April 18, 1884.
    This was a bill in chancery filed by the appellant against the appellee in the Circuit Court of Edwards county. The bill alleged that the complainant therein was a railroad corporation organized under the laws of Illinois; that in constructing its railroad it passed over the S. Sec. 17, T. 2 S., R. 10 E., in Edwards county, Owned by James Chalcraft, appellee; that appellant condemned the right of way through said land and paid $260 for the land actually taken, and $1,300 for damages to remainder, and took possession and located the railroad across the northwest corner of said land, so as to leave seven acres on the north side of the railroad (which runs in a general east and west course but curves to tbe south where it crosses said land); said seven acres are bounded on the north and west by public highways and have situate thereon the barn, etc., of appellee, and that directly across the railroad in a southeast course from the barn is the dwelling of Chaleraft, with the yards, garden, etc., surrounding the same and abutting upon “ the right of way” of appellant, while the orchard lies east of the house and the bach of the farm south and west of the house with a lane running north and south on the west side of the house, extending from a good, safe, private farm crossing over' said railroad track south into said farm, as shown by plat thereof; that said railroad extends a distance of 2,300 feet upon said land and passes between the house and barn of Chaleraft; that it was necessary to make a cut for 1,000 feet through said land, varying from two to ten feet deep, and which cut extends between the house and barn; that after constructing said railroad, appellant put in all necessary farm crossings for the use of said Chaleraft, in addition to two public crossings over said railroad at the eastern and western extremities of the crossings into and out of said lands by said railroad. And to be more explicit, there are within the 2,300 feet, nine crossings, two public ones, two foot crossings (one at level grade and one with steps on the sides of the cut) directly between the house and barn, and five safe, convenient "private farm crossings for teams, all for the convenience of ^aid Chaleraft, and are more particularly described as follows, to wit:
    The bill then sets out a particular description in detail of ea’ch crossing, alleging that they are all in good condition and that no other crossings are necessary; but that the defendant not being satisfied with the provision thus made for him, has demanded that a bridge be built for his own use over the cut opposite his house; and that complainant having declined to comply, the defendant has begun the construction of the bridge, intending to compel complainant to pay twice the value thereof, under the statute; that the proposed bridge, if built of the height indicated by the embankment already made by defendant, will be so low as to endanger lives of persons employed upon the trains of complainant, and that it will unreasonably interfere with the view of engineers and others in the service upon such trains, endangering the lives of passengers, etc, and prays for an injunction to prevent the construction of said bridge.
    The cause was heard upon bill, answer (denying the material allegations of the bill as to the character and sufficiency of the crossings already built, and of the proposed bridge, etc.), replication and proofs; and a decree was entered finding:
    That a farm crossing was necessary across the railroad at the point designated in complainant’s bill, over the curve cut on defendant’s land, where embankments have been thrown up by defendant. The court finds that the most practical method is an over-head crossing or bridge; but to insure safety, that it must be 194 feet high in the clear, and that a bi’idge 164 feet high is unsafe.
    It was therefore ordered that the injunction be modified so as to allow the building of a bridge 194 feet high, but made perpetual as to one 164 feet high, as proposed to be made by the defendant, and each party pay one half the cost.
    To which the complainant excepted and prayed.an appeal, etc.
    Mr. H. J. Strawn, and Messrs. Patton & Watson, for appellant;
    cited Ellsworth v. Central R. R. Co., 34 N. J. Law, 93; C. & I. R. R. Co. v. Hopkins, 90 Ill. 316.
    Mr. W. F. Foster and Mr. J. M. Campbell, for appellee.
   Wall, P. J.

The only question to be considered is one of fact, or perhaps more accurately speaking, it is a mixed question of law and fact as to whether the proposed bridge is a necessary farm crossing within the meaning of the statute, which provides that railroad corporations shall construct farm crossings when and where the same may be necessary for the use of-the proprietors of the adjoining lands. This statute also provides that when the railroad corporation refuses to make such' necessary crossings the owner of the lands may, after giving proper notice to the corporation, build the same, and recover twice the value thereof from the corporation, with interest at the rate of one per cent, per month from the time the same was built, with costs, in any court of competent jurisdiction. K. S., Oh. 114, §§ 48-51-52.

The building and operations of a railroad across a tract of land may, and necessarily does, damage the owner in respect to the land actually taken as well as in respect to that not taken. The latter element is often more considerable than the former, and of course must vary according to the circumstances of the case.

Before the corporation can appropriate the property, these damages must be ascertained and paid in the manner proposed by law.

Perhaps the most important feature of damage to land not taken is the inconvenience and danger of operating a farm where it is divided by the railroad, as shown in the present ease. Here, as appears by the bill and answer, the right of way was duly condemned and the value of the land taken estimated at $260, while the damages to the land not taken were estimated at $1,300, the latter item being five times that of the former.

notwithstanding this allowance, which, w'e are to presume, was ample, as it has been so adjudged in the mode provided by law, it is still incumbent upon the railroad corporation to build and maintain farm crossings for the use of the land owner when and where the same may become necessary. It is shown that the corporation did build seven crossings within a distance of less than half a mile, and that, in addition to these, there are two crossings over the public highway, which pass along the north and west sides of the land. Two of these seven crossings are under grade, thus furnishing the safest possible way for the passage of stock from one part of the farm to the other.

It is, however, insisted that the company must build a bridge between the dwelling house and the barn, and by the decree of the circuit court the height of this bridge was fixed at 19£ feet, involving an approach 13 feet high on either side, and sloping clear across and beyond the right of way, the estimated cost of which will be about one thousand dollars.

By this decree the appellee is allowed to erect this structure, charging the company twice the value thereof with interest, and the cost of maintaining it must, in the same way, be borne by the company. This seems to be a very heavy burden, and, unless clearly within the purview of the statute, must be regarded as unreasonably oppressive and not in keeping with the equitable character of relief administered by a court o.f chancery. As the statute has furnished no measure or standard by which it can be ascertained when the crossings contemplated are necessary, courts must regard even- case upon its own facts, having due care to protect the rights of both parties; and in the first place, as the inconvenience of operating a farm thus divided is proper to be considered in fixing the damage to the land not taken (C. & I. R. R. Co. v. Hopkins, 90 Ill. 316), and presumably has been allowed and paid for, it is not enough to show that the crossing contended for would add somewhat to the convenience of the land owner.

Perhaps this might be true yet no necessity exist. Again the safety of the traveling public and the safety and convenience of the corporation in the operation of its trains and in the care and use of its right of way should be regarded. And finally the relative rights of both parties should be kept in view so as to furnish reasonable safety and security to each without the imposition of an unreasonable burden or duty upon either, considering all the special circumstances of the case. The proposed bridge will not materially shorten the distance between the dwelling and the barn. Prom the diagram contained in the record it is apparent that so far as the mere distance between these two points is concerned crossing Ho. é answers the purpose well enough.

It is objected that this is unsafe because on the north side the cut is six feet deep at the track and that there is great danger in crossing from the north to the south. It appears from the evidence, however, that approaching this crossing from the north a train can be seen east 1,500 feet, more than a quarter of a mile, and west two miles; approaching from the south one can see west two miles and east three miles. If this be so, and the evidence is not contradicted, then in the exercise of ordinary care the crossing can be passed with safety.

The law does not intend, for it would be unreasonable, that the crossing should be so arranged as to preclude all possible danger and relieve persons about to pass over from the exercise of any additional care by reason of the presence of a railway track over which it is the right and duty of the company to move its trains for the accommodation of the public as well as for its own profit. Every one must take heed, observe the situation and use due care for his own safety, the degree of care to be dependent upon the necessity and to be measured by the peculiar conditions of things.

It is not to be expected that one, when about to cross a railroad, should be absolved from this duty of caring for his own welfare, and the law never intended this when it provided that the corporation should make these crossings, when and where necessary. Suppose the proposed bridge were built, with the extensive approach that would be necessary to reach it, it can hardly be supposed that a prudent person would undertake to cross it with a spirited or even a gentle team when a train was passing below, and therefore the practical use of the bridge would be limited to such times as trains were not passing, this to-be ascertained by an observation for the purpose. And it is not necessary to remark that with such a degree of caution, the use'-of crossing No. 4 might be considered perfectly safe. On the other hand should be considered the effect of the bridge and its approaches in shutting off the view, and thereby increasing the hazard of operating this part of the road, thus involving extra danger to the property of the corporation as well as to the lives of the employes and those who ride upon its trains. We do not care to pursue the matter further, as we think it must be apparent that when the merits of the whole case, and the relative rights of both parties and the public are duly considered, the demand for this elevated crossing is unwarranted and unreasonable.

It is hardly necessary to say, that for all other purposes of communication, from one part of the farm to the other, the other crossings referred to arc ample and sufficient. It is possible that subsequent experience may show it -would be rather more convenient to have some of them located a little differently, but this is not a substantial matter of complaint. The land owner having received a fair and just compensation for the damages sustained by reason of the location of the road, must make some effort to accommodate himself to the present situation and he will doubtless find that the peril and inconvenience are less than he had expected. The law must be practical in its operation, and can not undertake to do more than provide substantial amends for every loss or injury sustained, leaving the party affected to use his good judgment and common sense in obviating such annoyance as may result from these insignificant or exceptional circumstances which can not he foreseen or provided against by any system of jurisprudence that has ever been devised.

It follows that we are unable to approve the decree of the circuit court, and we therefore reverse the same with directions to make the injunction perpetual as prayed in the bill.

Reversed and remanded.


text:
    St. Louis & Cairo Railroad Co. v. Noah Vanover.
    Negligence — Evidence of. — Where the only ground upon which appellee could recover for an injury to an- animal was negligence in the management of the train at the time of the accident, and the only evidence upon this point was the testimony of the train men, who testified that there was no negligence in such management, and they were uncontradicted and not discredited in anywise, a judgment for appellee could not be sustained.
    Appeal from the Circuit Court of Jackson county; the Hon. J. B. Mayham, Judge, presiding.
    Opinion filed April 18, 1884.

      Messrs. Albright A Habber, for appellant.
    Messrs. Hill & Martin and Mr. S. W. Treesh, for appellee.
   Wall, P. J.

This suit was brought by the appellee to recover the value of a mule killed by the train of appellant. The plaintiff was successful in the court below, and we are asked to review that judgment. The animal was killed within the village of Ava, a point about 400 yards south of the depot, by the passenger train going south at about 9 o’clock, p. m. The only persons who had any positive knowledge of the circumstances so far as shown by the record, were the men in charge of the train.

The engineer says he was looking forward, and had his attention attracted by a mule standing near the track on the west side which he was watching for fear it might come on the track. When he glanced ahead he saw the mule in question, it then being “cross-wise of one side of the track” and not over thirty feet in front of the engine; that he made every effort to stop, but could not, and struck the mule. He fixes the rate of speed at eight or nine miles per hour. The fireman says he did not see the mule at all; that for a moment or two just before the engineer made the effort to stop, he was engaged putting in coal; that he had been ringing the bell from the time they left the depot until the last crossing was passed, when he began to “ fire up;” that if the mule had been on the track while he was ringing the bell he must have seen it, as the headlight was burning, and would throw a light 100 yards or more; that it must have got on the track while he was throwing in coal. He fixes the speed at eight or ten miles an hour. The baggageman did not see .the mule but noticed a sudden slacking of the train, though he did not know the cause until next morning. He fixed the speed at not exceeding ten miles per hour.

Other witnesses who were not on the train fix the speed at fifteen to twenty miles per hour. The animal was found the next morning, and it appeared that it had been pushed or dragged 100 to 150 feet. Ho tracks were noticed along the road bed. The point where the animal was struck was in a cut, the embankments on either side being four or five feet high.

This, in substance, is the whole case as presented by the record. It will be seen that at this point the defendant company was not bound to fence, nor is it shown that any other statutory duty was neglected, and it follows as a necessary consequence that there can be no recovery unless there was negligence in the management of the train at the time. We are unable to perceive anything in the proof upon which to base such an allegation. The rate of speed was not unusual or dangerous; the train men were attending to their duties, and after the animal was discovered every effort was made to avoid the collision.

At least, we must so regard the case if the testimony of these men who are uncontradicted is to be accepted. They are not discredited in anywise. They are not opposed by other witnesses, and the only way to sustain this verdict is to assume that'thev have not sworn the truth, and that there was negligence of some sort, not proved, upon which liability may be predicated.

If this testimony is rejected there is no evidence as to the circumstances, and as negligence must be proved, and is not to be presumed without proof, there would be absolutely nothing to support the finding of the jury.

It is probable the fireman is correct in supposing the mule stepped on the track while he was throwing in the coal.

It may be that these witnesses have not given a true version of the matter, but their version is all we have, and taking the case as it appears from their testimony, negligence has not been shown.

The judgment must be reversed, and the cause remanded.

Reversed and remanded.


text:
    Wabash, St. Louis & Pacific Railway Co. v. Maria Weisbeck, Adm’x, etc.
    1. Negligence — Speed op train. — 'Under the circumstances of this case, the court is of opinion that although the train was running at a higher rate of speed than was allowed by the ordinance of the town, yet the deceased was guilty of such great negligence directly contributing to the result as ought to preclude a recovery.
    2. When one mat rely upon presumption that railroad company will observe ordinance. — Ordinarily one may presume that another will observe the law regulating his conduct and may act accordingly, and there may he eases where a person crossing a railroad track when he knows a train is coming, may rely upon the presumption and be guilty of no, or only slight, negligence; hut this must depend upon circumstances, and such a rule can not apply when the calculation must necessarily he made with such nicety that the variation of a few seconds or the mistake of a few feet would inevitably he attended with fatal results, nor when it was evident that the train was, in fact, going much faster than allowed by ordinance. The law does not permit one to thus speculate with his own life.
    3. Running train paster than allowed by ordinance — Negligence. — The mere fact of running a train faster than allowed by ordinance would ordinarily be regarded simply as negligence, and when the injured party is himself at fault the doctrine of comparative negligence must he applied; and if the plaintiff did not exercise ordinary care, he can not recover unless under the circumstances the negligence of the defendant is willful or wanton in its character. The speed of the train alone can not be regarded as furnishing a sufficient reason for holding that the injury was willful or wanton.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. C. B. Burnett, for appellant;
    that under the facts in this case, the negligence of deceased was such as to preclude a recovery even if the negligence of defendant was gross, cited C. & R. I. R. R. Co. v. Still, 19 Ill. 499; I. C. R. R. Co. v. Buckner, 28 Ill. 299; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; Gretzner’s case, 46 Ill. 74; T. P. & W. Ry. Co. v. Riley, 47 Ill. 514; C. & N. W. Ry. Co. v. Sweeney, 52 Ill. 326; Manly’s case, 58 Ill. 300; C., B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; C., B. & Q. R. R. Co. v. Notzki, 66 Ill.455; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Bell’s case, 70 Ill. 102; I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hall, 72 Ill. 222; Ill. Cent. R. R. Co. v. Goddard, 72 Ill. 567; C., B. & Q. R. R. v. Van Patton, 74 Ill. 91; T. W. & W. R. R. v. Jones, 76 Ill. 312; C. & N. W. Ry. Co. v. Hatch, 79 Ill. 137; R. R. I. & St. L. R. R. Co. v. Byam, 80 Ill. 528; C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C., B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; L. S. &. M. S. Ry. v. Hart, 87 Ill. 529; I. & St. L. R. R. Co. v. Evans, 88 Ill. 63; C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; C. & N. W. Ry. Co. v. Dimick, 96 Ill. 42.
    Messrs. Happt & Tbavous, for appellee;
    that a person about to cross a track has a right to suppose the railroad company will conform the speed of trains to the ordinance, cited Correll v. B., C. R. & M. R. R. Co., 38 Ia. 120; St. L., V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; P. C. & St. L. Ry. Co. v. Knutson, 69 Ill. 103; C. & A. R. R. Co. v. Engle; 84 Ill. 397; Wabash Ry. Co. v. Henks, 91 Ill. 412.
    It is for the jury to determine whether the intoxication contributed to the injury, and if it did not it is of no importance and should have no weight in the case: Camp v. Wood, 76 N. T. 72; Ridley v. Lamb, 10 U. C. Q .B. 354; Ohagan v. Dillon, 42 N. Y. 456; Frazier v. Reinler, 2 Hun, 514; Ditchett v. R. R. Co., 5 Hun, 165; Healy v. Mayor, 3 Hun, 708; Stuart v. Machias Post, 48 Me. 477; Maguire v. R. R. Co., 115 Mass. 239.
   Wall, P. J.

The assignment of errors presents a number of questions as to the ruling of the court in admitting evidence, giving, refusing and modifying instructions, as well as to the merits of the case. After a careful examination we have thought it best only to determine whether there is a cause of action, and as there is no substantial conflict upon the main essential features of the case, we find no difficulty in reaching a conclusion. The train was running through the village of Venice faster than was allowed by the ordinance, which was ten miles per hour. The rate of speed being variously estimated from twelve to twenty-five miles per hour. The proper signal by sounding the whistle was given, and the bell was rung continuously for half a mile before reaching the crossing where the collision occurred.

A person going west along the rock road using ordinary care, could have seen and heard the train a considerable distance before reaching this crossing, though at a point quite near the track the view south is obstructed by buildings.

This condition of things - and the fact that must have been known to deceased, that at this hour through trains on this and two other roads were in the habit of passing at the full rate of speed allowed by ordinance, made it especially incumbent upon him to exercise care when about to cross the track. It is apparent, however, he did not discover the train until he had passed these buildings and was within 25 feet of the track, the train being 125 feet from the crossing. At this moment the engineer, perceiving the deceased, gave two sharp sounds of the whistle, whereupon the deceased, who was then moving slowly, began whipping his horses,passed rapidly upon the track, was struck by the engine and killed.

It is urged by counsel for appellee that the deceased was supposed to know the rate of speed which the train might lawfully use, and that he had a right to presume it would go no faster, and that he might calculate the distance, and if he saw that the train was at such a distance from the crossing that going at the proper rate of speed it would not get there before he could, and acting upon such calculation he attempted to drive over, and by reason of the unlawful speed at which the train was going he was caught, then the defendant company would be liable.

Ordinarily one may presume that another will observe the law regulating his conduct and may act accordingly, and there may be cases where a person crossing a railroad track when he knows a train is coming may. rely upon the presumption and be guilty of no, or only slight negligence, but this must depend upon circumstances and can not be permitted when the calculation must necessarily be made with such nicety that the variation of a few seconds or the mistake of a few feet would inevitably be attended with fatal results, norwhen it was evident that the train was in fact going much faster than allowed by ordinance.

The law does not permit one to speculate in this way even with his own life, and if he does so and loses, the loss is his own. In the present instance, the train being 125 feet from the crossing would reach it in about eight seconds if going at the lawful rate, and if we assume the deceased to have calculated that by suddenly increasing his speed he could reach the track in five or six seconds, thus having two or three seconds to spare, yet if he calculated at all in this way he must have seen that the slightest error as to the distance, the speed of the train, or the nerve and speed of his team would certainly cost him his life. This theory of counsel permits him to ignore the palpable fact, and the main fact on which reliance is had for a recovery that the train was going faster than the assumed rate of speed. If one in such a situation can see that the speed is greater than lawful, he must act accordingly, and may not blindly calculate upon a fact which in the exercise of ordinary care he can perceive does not exist. We learn the rate of speed in this instance from the opinions of persons who were observing the train; how can we permit him to omit the duty of making the same observation when he was so near it, and had so much at stake?

It seems to us that it must be regarded as gross negligence to attempt to cross a track in front of a train under the circumstances as disclosed by the uncontradicted evidence in this case. We have no hesitation in saying that it is so hazardous and perilous as to make a recovery impossible, unless the action of the engineer in charge of the train was willful and wanton. ’ This is not to be inferred from the proof, as it is clear that he could not have stopped in time to save the deceased, and the sole and only ground of negligence upon the part of the defendant company must be predicated upon the fact that the rate of speed was faster than prescribed by the ordinance.

Another and somewhat more plausible theory is advanced by the second instruction asked for plaintiff which is, that, in a sudden emergency, when confronted by great danger, men may be excused for not exercising the deliberate judgment that might be expected in other and less exciting situations, and therefore the act of deceased in driving in front of the train was not so negligent as to forbid recovery. Had the deceased been brought into such a situation of sudden peril without fault of his own, perhaps such a consideration would be applicable; but as we read the evidence he was plainly wanting in ordinary care in not having discovered the approach of the train until he was so near the track He must have known that trains were likely to pass at this time at a rapid rate of speed; and though the proof is-clear that the whistle and bell gave the proper signals, he did not hear them nor discover the train.

It is in evidence that he had been drinking considerably that afternoon, and, in the opinion of some of the witnesses, was quite drunk. His failure to observe the train was from mere inattention, which may fairly be attributed to his intoxication, and this would account for his rashness and recklessness in driving in front of the train, thereby voluntarily incurring a danger such as would bring a shudder to the bravest man when in the possession of his sober senses. But does this absolve him from the exercise of care? Intoxication will •not excuse a man for taking the life of another, nor should it excuse him for [throwing away his own. The natural impulse of man in his normal condition would have been to stop.

Had he done so, or had he not urged his horses forward, he would have been safe. These two theories of counsel proceed upon opposite hypotheses, based on the same evidence: one implying a most deliberate and material calculation of chances; the other implying an utter absence of all deliberation and a complete loss of all reason and judgment.

"We are unable to see how either can be tenable. The railroad company did violate the ordinance regulating the speed of trains, and by the provision of the statute, Sec. 87, Oh. 114, Hurd’s Ed., 1S83, a presumption of negligence is thereby created which may be the foundation of recovery for loss, or injury occasioned by the train while engaged in such violation. The character or degree and the legal consequences of such negligence must depend upon circumstances, such as the nature of the locality, the crowded condition, of the street, etc., but it was not intended by this legislative provision to absolve persons crossing the track from the duty of caring . for their own safety. In some cases it has been said by the Supreme Court that the circumstances were such that a disregard of the ordinance would manifest a degree of willful' and wanton negligence sufficient to render the company liable unless the person injured was himself guilty of gross or willful negligence.

But ordinarily the mere fact of running faster than allowed by ordinance would be regarded as negligence merely, and when the injured party is himself at fault, the doctrine of comparative negligence must be applied; and if the plaintiff did not exercise ordinary care he could not recover unless under the circumstances the negligence 'of the defendant is willful or wanton in its character.

In the case of I. C. R. R. Co. v. Hetherington, 83 Ill. 516, it is said that “ While it is true the railroad company was running its train at a greater rate of speed than allowed by the ordinance of the city of Chicago, yet that fault did not relieve the deceased from the exercise of ordinary care, nor can the speed of the train alone be regarded as furnishing a sufficient reason for holding that the injury was willful or wanton.”

See also Schmidt v. C. & N. W. Ry. Co., 83 Ill. 410, and Wabash Ry. Co. v. Henks, 91 Ill. 413, where it is assumed that the rule of comparative negligence should be applied to cases like the present. Indeed this rule was by the instructions given for plaintiff, recognized as applicable in this case, and it is evident the case was put to the jury as subject to the rule and to be governed by it. We are not disposed to overlook the violation of ordinances regulating the speed of trains within the limits of cities, towns and villages, nor do we questiou the wisdom and sound policy of tlie statute on that subject above referred to; but giving due force to these considerations, we are of opinion that the deceased was guilty of such great negligence directly contributing to the result as ought to preclude a recovery in this suit. We therefore reverse the judgment of the circuit court.

Judgment reversed.


text:
    John D. Pope v. W. U. Telegraph Co.
    1. Evidence — Res gest.®. — Where plaintiff offered evidence to prove that at the time he sent a telegraphic message he explained to the person receiving it and to the manager of the local office the importance of the message and the necessity of promptness in its transmission and delivery, such evidence would be admissible as constituting a part of the res gestee.

    5. Notice to agent, notice to pbincipal — application op bule. —The general rule that notice to the agent is notice to the principal in regard to the transaction in which the agent is engaged should have a reasonable and just application, and when the principal is a corporation whose functions must all be performed by agents who are mainly independent of each othei, it would seem necessary that the notice should reach the agent whose act is the subject of complaint or his official superior who may control or direct him.
    3. Notice to telegbaph agents. — Independent agents. — The local agent at the office where a telegraphic message is received has no authority or control over the agent at the other end of the line, and notice to the former should affect his principal only so far as his acts are concerned, and he is so far separate and disconnected from the agent at the other end of the line that as to the acts of the latter, the notice to the former has no legal effect.
    4. Question op pact. — The question whether a message is on its face such as to disclose the nature of the business and notify the defendant that its prompt delivery is necessary, is purely a question of fact and should be submitted to the jury, uninfluenced by the former opinion of this or the circuit court.
    5. Liability op telegbaph company pobdelay, etc. — A telegraph company should be held strictly accountable for negligence in delaying the delivery of a message, and responsible for all damages necessarily and directly caused by such neglect in all cases where it knows or may be fairly presumed to know that important interests are involved and that prompt service is therefore necessary.
    6. Delay op party sending message. — The question whether a party was negligent in not sending a message sooner can not be raised in an action against the telegraph company by such party for delay in delivering the message. There is no ground for the applicatiqn of the doctrine of contributory negligence.
    Appeal from tlie Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. Happy & Teayous, for appellant;
    that notice to an agent in charge of a particular business of a corporation is, as to such business, notice to the corporation, and it is not incumbent on plaintiff to show that he gave notice to each agent of the company, employed in any way about such business, cited Wade on Notice, §§ 672, 673, 681, 687, 983; U. S. Life Ins. Co. v. Advance Co., 80 Ill. 549; St. Paul F. & M. Ins. Co. v. Wells, 89 Ill. 82; U. S. Tel. Co. v. Gildersleve, 23 Md. 251; Bryant v. Am. Tel. Co., 1 Daly, 575; Rittenhouse v. Independent Line Tel. Co., 44 N. Y., 265; W. U. Tel. Co. v. Ward, 23 Ind. 377.
    It was error for the court to refuse to instruct the jury that the message in this case was such as to disclose the nature of the business, and to notify defendant that its prompt delivery was necessary: Pope v. W. U. Tel. Co., 9 Bradwell, 283; Parks, v. Alta, Cal., Tel. Co., 13 Cal. 122; Sprague v. W. U. Tel. Co., 6 Daly, 200; Bryant v. W. U. Tel. Co., 1 Daly, 575; W. U. Tel. Co. v. Ward, 23 Ind. 377.
    Messrs. Iewin & Springer, for appellee;
    that an instruction which assumes a controverted fact to be true, is erroneous, cited Wallace v. DeYoung, 98 Ill. 638; Morehouse v. Moulding, 74 Ill. 323; Russel v. Minteer, 83 Ill. 150; Chicago v. Bixby, 81 Ill. 82; C. W. D. Ry. Co. v. Mills, 91 Ill. 38.
    The company should not be held for ulterior and remote conseque'nces unless the character and object of the message appear upon its face, or the nature of the risk assumed by the company is made known to it by the sender: 3 Sutherland on Damages, 313, 314; Beaupri v. P. & Tel. Co., 21 Minn. 155; W. U. Tel. Co. v. Martin, 9 Bradwell, 592; Stevens v. Montreal Tel. Co., 16 U. C. Q. B. 530; Baldwin v. U. S. Tel. Co., 45 N. Y. 744; Candee v. W. U. Tel. Co., 34 Wis. 471; Shields v. Wash. Tel. Co., 9 West. L. J. 283; Sanders v. Stuart,1 C. P. D. 326; Behm v. W. U. Tel. Co., 8 Cent. L. J. 455; Hadley v. Baxendale, 9 Exch. 341; McCall v. W. U. Tel. Co. 7 Abb. (N. C.) 151; Barnsville Bk. v. W. U. Tel. Co., 30 Ohio St.; Dorgan v. Tel. Co., 1 Am. L. T. 407; Hord v. W. U. Tel. Co., Law Bulletin, 3 (Cin.), 147; Lane v. Montreal Tel. Co., U. C. C. P. 23.
   Wall, P. J.

This case was before us at the August term, 1881, and was then reversed for the reasons stated in the opinion, 9 Bradwell, 283.

It has been again tried, resulting in a judgment for defendant below, and the l’ecord is again presented for our consideration.

Pour points are made by the appellant in his brief, and we will consider them in their order.

It is urged that the circuit court erred in refusing to permit the plaintiff to prove that at the time he sent the message he explained to the person receiving it, and to the manager of the local office in St. Louis, the importance of the message, and the necessity of promptness in its transmission and delivery.

What was said by the parties' on that occasion was a part of the res gestae, and was admissible for that reason, if for no other; and if the cause of action depended upon the 'omission to send the message correctly and promptly, we should regard this as. a vital point. But the failure complained of was in respect to the delivery of the message by the agent at Atlanta. It is a general rule that notice to the agent is notice to the principal in regard to the transaction in which the agent is engaged; but the rule must have a reasonable and just application, and when the principal is a corporation whose functions must all be performed by agents who are mainly independent of each other, it would seem necessary that the notice should reach the agent whose act is the subject of complaint, or his official superior who may control or direct him. The local agent at the office whence the message is-sent has no authority or control over the agents at the other end of the line, whose duty it is to take the message from the wire and promptly deliver to the person to whom it was addressed, nor are we aware of any consideration that would make it his duty to forward by telegraph to him any information he may possess as to the special importance of the message, and the necessity of its prompt delivery.

The agent is, for the time being and in respect to the act he is performing, to be treated as the principal whose place he fills, and therefore any notice given to him in that connection must be regarded as equivalent to notice to the principal, but it would be unjust and oppressive to charge the principal with notice given to some one of his numerous agents, unless that agent was in charge of that matter to which it relates and from which the controversy arises, or was in some way-responsible in respect to it. Unless the agent at St. Louis had some authority over the agent at Atlanta, or in the discharge of his duty was authorized and required to transmit the notice received by him to the Atlanta agent, it would follow that for all practical purposes the notice might as well have been given to some agent in New York or Chicago, so far as it should affect the corporation in respect to the act of the agent at Atlanta.

While the part performed by the St. Louis agent was of course an essential and necessary feature of the whole transaction, yet we think that there is sound reason for saying that notice to him should affect his principal only so far as his acts were concerned, and that he is so far separate and disconnected from the agent at Atlanta that as to the acts of the latter the notice to the former has no legal effect. Story on Agency, § 140 et seq.; Angelí and Ames on Corporations, § 305; Shearman and Nedfield on Negligence, § 605; 1 Parsons on Contracts, 77. We are inclined to hold, therefore, that while the evidence should have been admitted because it was a part of the res gestee, yet as it appears the injury complained of was not through the default of the St. Louis agent, the ruling of the court did no special harm, and the case should not be reversed for this cause alone.

The second point urged is that the circuit court erred in not instructing the jury, as asked by the plaintiff, that the message in question was on its face such as to disclose the nature of the business and notify the defendant that its prompt delivery was necessary. It is true that in the opinion of this court when this case was here before, an expression to that effect was employed, but this was merely a conclusion of fact drawn by the court, and it was not intended that the jury should be so instructed as a matter of law. In considering the case as then before us we had necessarily to examine the questions of fact presented by the evidence, and while we reached the conclusion stated upon that question, it is purely a question of fact, not of law, which this court might determine for itself in the consideration of the whole record, but which the jury should be permitted to pass upon, when the case is submitted to them uninfluenced by the opinion of this or the circuit court.

We do not care to enter upon the wide field of inquiry to which we are invited by the briefs of counsel as to the rulings of various courts of last resort upon questions of liability of telegraph companies for failing to transmit correctly and deliver promptly the messages involved in those cases and the damages to be recovered for such neglect.

There is some apparent conflict in the cases, but they are quite dissimilar in their facts, and we find no occasion now to attempt their discussion for the purpose of ascertaining the limits and boundaries of duty and liability in kindred cases.

It may not, however, be amiss to refer to Tyler v. Ulman, 60 Ill. 421, as settling some of these questions and to add that as the prime object of the telegraph is to send intelligence quickly, it is to be presumed that any message of a business nature should be transmitted and delivered as promptly as the circumstances will permit. Such is the scope of the undertaking, otherwise it might as well be sent by another and a cheaper agency.

In the present condition of society it is not only convenient but indispensable to transact a large portion of most important business matters through this medium.

The telegraph company holds itself out to the public as ready and able to perform such a service, and accepts the money of its patrons therefor. It is but reasonable to hold it strictly accountable for negligence and responsible for all damages necessarily and directly caused by such neglect in all cases .where it knows or may be fairly presumed to know that important interests are involved and that prompt service is therefore necessary.

The third point urged is as to the ruling of the circuit court in giving and refusing instructions. At the instance of the defendant the court gave the following:

8. “Although the jury may believe from the evidence that the defendant was guilty of negligence in failing to deliver the message in time to prevent the sale, yet, if the jury further believe from the evidence that the plaintiff was guilty of negligence in delaying the sending of the message from St. Loui.s until 9:35 a. m. of the day of the sale, and that the negligence of the defendant in failing to deliver said message as aforesaid was slight in comparison with the negligence of plaintiff in delaying the sending of said message as aforesaid, then the law is that the plaintiff can not recover; and the jury most find for the defendant,” and refused the following, asked by plaintiff:

10. “ The jury are not called upon to determine whether or not plaintiff could have prevented the sale of the property in question by sending his message sooner. The question on this' branch of the case is whether defendant forwarded and delivered said message with due diligence and speed (under the circumstances of this case), after the message had been furnished for transmission. The liability of defendant depends on whether it performed its duty according to law, and if it failed in this respect and damages resulted to plaintiff, then defendant is liable.”

It will be seen that the court thus advised the jury that the delay of the plaintiff in sending the message might be regarded as such negligence as would constitute a defense if the negligence of the defendant was slight in comparison. We are unable to see upon what legal ground the defendant can raise a question of this sort.

The relation of the parties to this suit had its inception in the contract by which the defendant undertook, for the price paid, to transmit this message. The defendant had no interest in the previous conduct of the plaintiff, nor had the plaintiff been under any duty or obligation to the defendant; nor was his previous negligence in attending to his own affairs a matter of which defendant could complain. His necessities, no matter how produced, led him to apply, at the time stated, to the defendant to transmit this message, and for the price paid, the defendant agreed to do so, and bound itself by the undertaking to use due diligence therein. It did not undertake that the plaintiff should derive any particular advantage by reason of the proper performance of its duty; all it need to do is to show that it did use the measure of diligence called for by the nature of the undertaking.

If it has done this it is not liable.

How, in settling the question as to whether the obligation has been performed, how is it possible that the previous negligence and carelessness of the plaintiff, his delay in sending the message, can be involved? How has that contributed in any way to produce the negligent act of defendant which is complained of?

Had he made a mistake in the name or direction or in the language of the message which, by any fair process of reasoning, could be said to have produced or tended to produce the alleged default, then the doctrine of contributory negligence might be applied. But there is no case for its application here. As well might the defendant set up the negligence or misfortune of plaintiff in not paying the debt when due, thus obviating all ■ necessity for the sale. Had not this misfortune or negligence existed he would have had no occasion whatever to employ the services of defendants. He might have sent the funds in due season, and conducted the correspondence by mail without invoking the aid of the telegraph.

~We are of opinion the circuit court erred, in giving the third instruction asked by defendant, and in refusing the tenth asked by plaintiff. The fourth point raised by the appellant relates merely to the questions of fact involved in the case. These we do not desire to decide at this time. They are to be passed upon by another jury, and we shall not now express any opinion thereon. For the error above indicated the judgment will be reversed and the cause remanded.

Beversed and remanded.