text:
    Josie Newell, Administratrix, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Evidence—when coroner’s verdict is admissible. In an action for wrongful death, the verdict of the coroner’s jury, finding that deceased came to his death by being run over by defendant’s switch engine, is properly admitted when there is proof that it was filed in the office of the circuit clerk.
    2. Instructions—as to presumption in favor of care for self-preservation. In an action for wrongful death, an instruction to the effect that if no one saw the accident, the jury are warranted in finding from the instinct of self-preservation that deceased was in the exercise of ordinary care for his own safety, unless the jury believe deceased was under the influence of liquor so as to make him incapable of exercising ordinary care, or to make him reckless, or that there were other circumstances indicating want of ordinary care, may be given.
    3. Appeals and errors—remarles of counsel. In an action for the death of plaintiff’s intestate, killed by defendant’s switch engine, a remark by plaintiff’s counsel in his closing argument that, “I have my ideas about this case, notwithstanding what the employes of the defendant might have, who had to swear this to hold their job with the company,” though improper, Is not reversible error when promptly withdrawn on objection of opposing counsel and the jury are instructed to disregard it
    4. Appeal and error—when judgment is sustained. In an action for wrongful death, where deceased was killed by defendant’s switch engine, a judgment for $1,300.00 is sustained where it appears from a consideration of the whole case that substantial justice was done.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Rehearing denied May 28, 1913.
    P. J. Kolb and W. F. Scott, for appellant; Egbert J. Cart, of counsel.
    Siegel Capel and Dorris & Lewis, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

George Newell was run over and killed by a freight engine or car on the tracks of appellant, in the city of Harrisburg, Illinois, October 2, 1910. Appellee, Josie Newell, his widow, was appointed administratrix of his estate and as such brought suit to recover damages for his death. The declaration which consisted of three counts charged first, that while Newell, with due care was attempting to cross appellant’s railroad on a street of said city, the servants of appellant so carelessly and improperly propelled and ran a locomotive engine on said railroad, upon and against him, that he was thereby killed; second, that appellant failed to comply with the statutory duty to ring the bell or sound a whistle before reaching the crossing; and third, that appellant failed to ring a bell or sound a whistle a reasonable time before starting the engine within the corporate limits of said city.

Appellant seeks by this appeal to reverse the judgment of the court below in favor of appellee for $1,300. One of the grounds relied on by appellant, is that the facts in the case did not warrant a recovery by appellee because they failed to show either. negligence on the part of appellant or due care on the part of appellee. As disclosed by the proofs, appellant’s right of way and tracks run nearly north and south across Walnut street, a street running east and west in said city of Harrisburg. Walnut street was crossed by the main track of appellant’s railroad and some four switches, one of which ran to a flouring mill, located a short distance south of the street and east of a switch track, that led off to a coal mine. North of the street some 200 feet, another switch left the flouring mill track on the south and extended in a southerly direction to a coal mine, known as O’Gara Mine No. 2. Harrisburg is a county seat with a population of some 7,000 inhabitants. The business part of the city was located and the greater number of the inhabitants resided, west of the railroad, but there were quite a large number of people living east of the tracks, who together with people residing in neighboring towns in that direction, crossed over the tracks at Walnut street in going to and coming from the city. Walnut street was 66 feet wide and the center of it west of the track, was paved for the width of 25 feet. There were no sidewalks across the railroad tracks and pedestrians were accustomed to cross over the tracks in the middle of the street where the teams traveled.

Deceased was a coal miner, living at Gaskins City, one mile east of Harrisburg and worked in a mine located within the city limits. He was 48 years of age and earned from $2.49 to $2.70 a day, when the mine was running, which was about half the time. He was seen in Harrisburg during the afternoon, where he appears to have taken one or more drinks of whiskey. About 3 p. m. he left the city and went home upon an errand but afterwards came back again. Where he went and what he did after his return to the city, is not clearly shown by the evidence. At about 6:30 p. m. he was seen near a restaurant, in the neighborhood of appellant’s depot about a block south of the street crossing in question, and was later seen going along the railroad tracks towards Walnut street. At about 7:30 p. m. he was seen east of. the railroad track on Walnut street some 50 or 60 feet from the crossing, where he met and spoke to some friends, and then proceeded towards the crossing. Shortly afterwards his body was found between the rails of the track leading to the mill a little south of the center of Walnut street, while the head, which had been severed from the body, "was found at a point west of the track and further north, but within the limits of the city. There was evidence tending to show that his hat was found still further north beyond the limits of the city, and also further evidence that it was found within some 18 inches of his head. No one saw Newell at the time he was killed, and the exact manner in which he was struck and run over, cannot be ascertained.

A yard engine of appellant in charge of a switching crew, left the round house about three quarters of a mile north of the Walnut street crossing at 7 o’clock in the evening and came south towards the crossing. The crew proceeded with their work and in the course of it, switched a car from a track west of the main track to the flouring mill track, which was the second track east of the main track. The engine was coupled to the south end of the car, with the head of the engine towards the car and the tender towards the south. In this position the car was hauled south across Walnut street on to the main track and stopped a short distance south of the street. It was then pushed north again, over what was known as a cross-over, to a team track, south of the main track, recrossing Walnut street in its course and proceeding to a point north of a switch, leading off of that track to the mill track further east. In order to place the car where the crew wanted it, it was desired to shift the engine from the south to the north end of it and this was done by making what is called a running switch. After the engine and car had gotten in motion, the car was cut loose and the engine proceeded south down the mill track ahead of the car, a switch was then thrown behind the engine, allowing the car to pass on the track leading to O’G-ara Mine No. 2.

There is some controversy as to whether the engine stopped before it reached the Walnut street crossing and later proceeded at a slower rate of speed to the south side of the street, or whether it crossed over the street as a part of its running switch without making any stop before reaching it. In any event, almost immediately after it stopped south of the street, an alarm was given that a man had been killed and the crew, upon going back to the street, found the body and head of deceased as above described.

If the engine in fact stopped north of Walnut street after cutting loose from the car and then again went south preceded by the conductor and the brakeman at the rate of from three to four miles an hour as claimed by some of the witnesses for appellant, it seems remarkable that no one connected with the crew saw deceased before or at the time he was struck. But it is evident beyond controversy, from all the surroundings that he was struck and run over by the tender and engine and the plain inference, from the evidence, is that he was struck while he was on the street crossing. There was evidence tending to show that deceased was intoxicated or was under the influence of liquor shortly prior to his death, and there was an odor of whiskey at the place where the body lay.

On the trial the last witness, who saw him alive, and only a short time before he was struck, testified that he was sober. The evidence as to the speed at which the engine was running, whether the bell was ringing or whistle sounding and whether there was a light on the south end of the tender, was conflicting and irreconcilable, but upon the whole appears to us sufficient to sustain the verdict in favor of appellee.

Appellant complains that the verdict of the coroner’s inquest upon the deceased, was improperly admitted in evidence, both because the verdict offered in evidence did not contain the file mark of. the circuit clerk signed by said clerk and because it contained statements beyond the province of the jury. The proofs in the case plainly show that the verdict was filed in the office of the circuit clerk, and the finding of the jury, which was the deceased came to his death by being run over by an engine of appellant while it was “in the act of making a running switch on the back track at Walnut street crossing in the city of Harrisburg, county of Saline, state of Illinois,” does not appear to us to contain matter rendering it inadmissible as evidence in this case. It does not attempt to charge appellant with negligence in causing the death of New-ell but simply states the occurrence without seeking to fix legal responsibility for the injuries inflicted. Under these circumstances the verdict was properly admitted.

The complaint is made by appellee of instruction No. 10 given for appellee. That instruction was as follows: “Upon the question of whether George Newell was in the exercise of ordinary care for his own safety, when he lost his life, the court instructs you that if you believe from the evidence, that he was killed while attempting to cross the railroad track on Walnut street, and that no one saw the accident, then you are warranted in finding from the well known instinct, which men ordinarily have to try to preserve their lives and not destroy them, that he was in the exercise of ordinary care for his own safety; unless you further believe from the evidence that said George Newell was under the influence of intoxicating liquor to such an extent as to render him incapable of exercising such ordinary care or as to make him reckless or that there were other circumstances indicating a want of such ordinary care. ’ ’

In Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, it was held that where no one saw the killing, direct testimony as to care was not necessary, but might be inferred from the circumstances of the case as shown by the evidence.

In Collison v. Illinois Cent. R. Co., 239 Ill. 532, it is stated in the opinion: “It is true that there is an instinct of self-preservation common to all and that such instinct raises a presumption against an affirmative act tending to destroy life, such as suicide, and raise a presumption as to the conduct of a person where there is a known danger to be avoided.” And further “where there is no eye-witness to the killing of a person, his administrator may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable.”

The court in Chicago Terminal Transfer R. Co. v. Reddick, 131 Ill. App. 515, lays down the rule to be that “the presumption of law must be where the fact is not susceptible of direct proof that a person ‘does not voluntarily incur danger or the risk of death,’ and that in view of the known conditions he was exercising due care for his own safety.” To the same effect is the language of the court in Chicago & E. I. R. Co. v. Heerey, 203 Ill. 492, where the court, speaking by Mr. Justice Cartwright says: “It is true that where the fact is not susceptible of direct proof it may be inferred from the circumstances, and the plaintiff may be aided by the presumption that a person does not voluntarily incur danger or the risk of death. But that does not effect the question where the burden of proof rests. In a case where a person is killed and there are no. eye-witnesses to the accident, there is no dispute that the burden of proof rests on the plaintiff to show due care on the part of the deceased, but if there are no eye-witnesses and no direct proof he is entitled to the benefit of the presumption.”

We think the instruction falls within the general rule laid down in the above cases and that the court did not err in giving it.

The criticism of other instructions given for appellee have been considered by us but we do not think they are well founded, nor are they of sufficient importance to necessitate discussion here.

The principles declared in appellant’s refused instructions appear so far as they are correct, to have been fully covered by the instructions given for it.

Complaint is made by appellant of the following language used by one of the attorneys for appellee in his closing argument to the jury: “I have my ideas about this case, notwithstanding what the employes of the defendant might have, who had to swear this to hold their job with the company.” Appellant objected to this remark and thereupon the counsel who made it, stated to the court “I withdraw the remark.” Counsel for appellant then said to the court, “I desire a ruling upon this question” and the court replied, “1 understand the remark is withdrawn.” This remark was improper and stated as a fact, something that was not in proof. It could only have been made for the purpose of improperly influencing the jury. Counsel for appellee recognized this fact and to avoid the effect of the imprudent remark, offered an instruction which was given by the court telling the jury that they should not' consider any statement made by counsel in argument of the cause, not based on the testimony, and that any statement made by counsel in argument of the cause, which had been withdrawn, should not be considered by them in arriving at a verdict. It has become more and more the custom of courts of appeal to take notice of improper remarks of attorneys, in a case, uttered for the purpose of gaining undue advantage over their opponents, and in many cases their clients have been made to suffer by the reversal of a judgment on that account. We believe the general effect of such decisions has been to elevate the practice aiid to further the cause of justice. But while we have given the words used in this case, careful attention, we do not think in view of the fact that they were promptly withdrawn by the counsel uttering them, when his attention was called to them, and the further fact that the same counsel caused an instruction to be given, telling the jury to disregard them, that the conditions are such as to warrant us in causing the client to suffer for the improper remarks of her attorney. We are especially inclined to this conclusion for the reason that the verdict in this case is, under all the circumstances, so small as to warrant the belief that the jury could not have been seriously influenced by the remarks referred to.

A consideration of the whole case leads us to the belief that substantial justice has been done and the judgment of the court below will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Harry Cunningham, Appellee, v. Illinois Central Railroad Company et al., Appellants.
    1. New tbial—newly-discovered evidence. A motion for new trial on the ground of newly-discovered evidence is properly denied where the evidence is merely cumulative and furnishes no additional light on the questions at issue.
    2. Raileoads—use of other crossings in the locality of the accident. In a personal injury action where - plaintiff, crossing the tracks at a private crossing, is injured hy defendant’s engine, testimony as to the use made of such crossings in that locality is admissible to show acquiescence of the company.
    3. Raileoads—question of fact. Where plaintiff is injured while crossing defendant’s tracks, the nature of the crossing is a question to he determined hy the jury from all the facts and circumstances in evidence.
    4. Raileoads—care toward licensee. In a personal injury action, an instruction that, if “plaintiff was on the railroad right of way where he was injured, simply by the acquiescence of the railroad company, he was a mere licensee and the defendants would owe him no other or greater duty as to his safety than if he were a trespasser” is properly refused where deceased was struck while on a crossing.
    5. Raileoads—duty of care to persons walking along tracks. A railroad owes no duty to a person walking along its tracks without its invitation, either express or implied, except to refrain from wantonly or wilfully injuring him and to use reasonable care to avoid injury to him after he is discovered in peril; and it makes no difference in that respect whether he is a trespasser,. a mere licensee, or one who is on the tracks hy mere sufferance without objection by the company.

      6. Railroads—duty to persons crossing tracks. Where plaintiff is injured while crossing defendant’s tracks, his right to be there and the duty owed him by the railroad company depend in a large degree upon the circumstances surrounding the maintenance of the crossing at that point by the company.
    7. Instructions—as to preponderance of evidence. In a personal injury action an instruction that the jury should take into consideration the number of witnesses testifying on any particular point or issue in the case, and if they found a greater number had testified to certain facts on behalf of one party than had testified to the contrary on behalf of the other party, and they believed the credibility of the greater number equal to that of the lesser number, then they should find the preponderance of the evidence upon the side of the greater number, is properly refused, since it ignores the probative force of circumstances appearing in evidence apart from the testimony of witnesses.
    8. Damages—when not excessive. A judgment for $8,000 for injuries to plaintiff, a boy of eight years old, resulting in the loss of a foot is not so excessive as to call for a reversal.
    Appeal from the Circuit Court .of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Webb & Webb, for appellee.
    Burroughs & Ryder and C. E. Pope, for appellants; Charles A. Schmettau, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

On September 30, 1906, appellee, Harry Cunningham, who was then eight years of age, suffered the loss of his right foot, which was run over and cut off by one of the front wheels of a locomotive engine belonging to the Toledo, St. Louis & Western Railroad Company, while said engine, attached to a passenger train was running over the track of the Illinois Central Railroad Company, near a coal washer located about a quarter of a mile east of the village of G-len Carbon in Madison county, Illinois. He brought suit, by Joseph Flannery his next friend, to the March Term, 1910, of the Circuit Court of said county against both of said railroad companies to recover damages for his injuries.

The first trial does not appear to have proceeded to a verdict but subsequently there was another trial, which resulted in a judgment in favor of appellee for $10,548 against both defendants, from which an appeal was taken by them to this court. At the October Term, 1911, this court reversed the judgment and remanded the cause. Thereafter another trial was had, resulting in a verdict for appellee for $8,000, and a judgment for a like amount. The defendants below have again brought the cause to this court for review, insisting that the last judgment should be reversed for the reason that the verdict is contrary to the law and the evidence and the court committed errors in the trial of the cause. No change appears to have been made in the declaration at the last trial of the cause, the purport of which and the statement of the case, are so clearly set forth in the former opinion of this court, that it is unnecessary to repeat the same here. At the close of all the evidence on the last trial, appellants each requested the court to peremptorily instruct the jury to find it not guilty and they claim that under the evidence produced, these instructions should have been given, assigning as reasons therefor, that the evidence showed appellee was not on the crossing when he was injured, that in any event he was a trespasser, that he was not using the crossing for highway purposes, that he was not exercising care for his own safety and that neither railroad company was negligent. The crossing upon which appellee claims to have been at the time he was struck by the engine, was not a public highway, but had been "constructed some six months prior to the time appellee was injured, by the Illinois Central Railroad Company, one of the appellants, near a coal washer of the Madison coal corporation. Planks had been placed between the rails of the tracks and approaches built from a street in Grlen Carbon, running parallel with and near to the railroad tracks. The crossing appears from the evidence, to have been used with the knowledge and consent of the railroad company, by the public generally in passing between the main part of the village on the north of the tracks and the coal washer and dwelling houses located near there on the south side of the tracks. '

The claim of appellant that appellee was a trespasser, even if he was on the crossing at the time he was' struck, involving as it does, the right of the public generally to use the crossing by invitation or otherwise, was fully considered when the case was here before and decided adversely to the contention of appellants. Whether appellee had a right to the use of the crossing, was mixed question of fact and law and we find nothing arising from the last trial, which leads us to change our views, as announced in our former opinion, “that there was no error in refusing to direct a verdict on the ground appellee, if on the crossing, was a mere trespasser or licensee.

One of the main questions of fact, if not the principal one, is that which concerns the location of appellee at the time he was struck. He asserts that he was on the crossing at the time, while appellants contend that he was injured some 24 feet east of. the east end of the planking ^on the crossing, and it is upon this question that there is the greatest conflict in the evidence and to its discussion the greater portion of the arguments of the respective parties are devoted. When the case was here before we arrived at the conclusion and so stated “that by the greater weight of the evidence appellee was not on the crossing when injured.” Upon the last trial in the Circuit Court, the same witnesses testified in behalf of appellee upon this question as at the preceding trial, while two additional ones testified in relation to the facts bearing upon the same question for appellant.

Appellee and his brother Willie, who was with him at the time and was then six years old, stated that he was on the crossing at the time he was struck. His mother who says she was watching from the front porch of their home, a short distance away, stated that she went out to see if the hoys were going to he home for supper; that appellee was 15 or 20 feet from the crossing when she first saw him; that she stood there until she saw he was alright on the crossing and was not going to venture across the tracks; that while she stood there Harry was standing waiting for the train to pass; that he had just got to the crossing when the freight train got even with the crossing and she could see him between the cars as they passed. The freight train referred to was the train going east on the north or main track while the passenger train, which injured appellee, was going west on the south or passing track.

Opposite to this testimony was that of a number of employes of the two defendants, consisting of the conductor and two brakemen on the freight train and the engineer, fireman, baggageman, brakeman and conductor of the passenger train, all of whom testified either that the hoys were north of the crossing at the time of the injury or stated circumstances tending to show that such was their location. There were no other witnesses to the occurrence. Of all these witnesses the two boys, were in the best position to determine where appellee was at the time he was injured. They must have positively known where he was at the time and the solution of this question depends largely on whether their evidence is worthy of belief. The crossing appears to have been only of ordinary width to conveniently accommodate vehicles passing over, and, if we may judge from photographs introduced in evidence, was not easy to be distinguished at any distance from its surroundings. As a circumstance bearing upon the question of the location of appellee at the time of his injury, appellant introduced evidence tending to show the existence of blood stains either on or near the south rail of the passing track at distances variously estimated at from 20 to 30 feet east of the crossing and that there was no evidence of blood upon the crossing. To meet this testimony, appellee introduced evidence tending to show that blood was discovered upon the crossing immediately after the injury. Two witnesses, appellee’s step-father, Flannery, and William Jacobs testified for appellee that they saw blood upon the crossing soon after appellee was injured. Appellee testified that after he was injured, he crawled to a little scale house which appears to have been located about 40 feet southeast of the crossing; that from there he was carried by the conductor to one of" the coaches and placed on a stool on the platform; that he was afterwards taken off of the platform on the north side and carried home. Both Flannery and Jacobs swore to tracing blood from the crossing to the scale house and from thence to the track. Appellee’s brother, Willie, swore that Harry was on the crossing about in the middle where the horses walked, on the sidewalk, when he was struck and that he crawled from there to the scale house on his hands and knees; that the conductor picked him up at the scale house and put him on the platform of the coach and that he was after-wards taken off of the north side of the coach. Some six witnesses on behalf of appellant testified to having seen blood or blood spots or what was pointed out to them as such, at a distance of from 20 to 30 feet north of the crossing, a majority of them fixing the distance at 24 feet. These witnesses swore either that there were no signs of blood on the crossing or that they did not notice any. Some of them, however, did not visit the place until the day after appellee was injured. Appellee does not claim that there was no blood on or near the track from 20 to 30 feet north of the crossing, but insists that this blood dropped from appellee’s wound when he was carried on and off the train. In our former opinion we stated that the testimony of Jacobs was marked with statements inconsi stent with the manifest weight of the evidence and we called particular attention to the fact that in his evidence on the first trial, which did not proceed to a verdict, he had said nothing about seeing blood on the crossing. On the last trial he again admitted that he had said nothing about having seen blood marks on the crossing the first time he testified, but stated that the reason he did not was because he was not asked about it. In this connection it is proper to refer to the fact that Anton Daenzer, one of the principal witnesses for appellant, who had been a witness at a former trial, stated “I did not testify about any blood at the former trial because it was not asked me.” It also appeared that Mrs. Berry, wife of the station agent of one of appellants at Glen Carbon, who testified as to seeing blood stains 24 feet east of the crossing further, said, “I testified on the former trial and I did not testify on the former trial that I went down to the blood spot; Did not say anything in my testimony on the former trial about seeing any blood stain. ’ ’ In fact there were discrepancies, inaccuracies, and to some extent, contradiction on the part of witnesses on both sides of the case in reference to the question of the existence or absence of blood or blood stains at the crossing, and as to the exact location of the same above the crossing and it was for the jury to determine what the real facts in regard to the matter were.

There was also a conflict in the evidence of the respective parties as to whether appellee, if upon the crossing, was using it for highway purposes at the time he was struck, whether appellee, under all the circumstances of the case, including his own age, was in the exercise of ordinary care and whether the employes on the train of the Toledo, St. Louis & Western Bailroad Company, which struck him, were guilty of negligence in not warning appellee of its approach, which we have fully examined, but deem unnecessary for us to discuss in detail here. We consider it sufficient to say that the facts in this case, as presented and developed on the last trial, were such that we do not feel authorized in disturbing the verdict of the jury based upon them, in favor of appellee.

Appellant supported its motion for a new trial by an affidavit setting up newly-discovered evidence and insists that by reason thereof, the court below should have granted a new trial. This evidence, however, was merely cumulative in reference to the existence of blood stains east of the crossing, and the affidavit shows that the persons named do not all agree as to the exact location of the same. Counsel for appellee do not deny that there were blood stains on or near the track east of the crossing but it was not agreed as to how they got there and upon this question the new evidence seemed to throw no additional light. There was no error in the refusal of the court below to grant a new trial upon the facts set up in the affidavit.

Complaint is made by appellant that appellee on the trial was permitted over its objection to show by witnesses, the use that had been made of a crossing which existed east of the present crossing near the coal washer, before that latter was constructed and also the existence of a trestle on the railroad right of way between the depot and the washer, and the use made of it. It appeared from the proofs that before or at the time the new crossing was made near the coal washer, the old one beyond had been removed, and the people who used the old one continued to make use of the new crossing. All the proof referred to in reference to the use of the old crossing and the trestle was competent as tending to show the use of it made by the public, including persons connected with the washer, and the acquiescence of the interested railroad company, in the use of the crossing over its tracks in that locality. Appellant also complains that objections were sustained to questions put by it to one of' its witnesses asking whether the crossing was a public or private crossing. Under the facts in proof in this case the question as to whether the crossing was considered by the witnesses as a public or private crossing, was not important, but the nature of the crossing so far as it was involved, was a question to be determined by the jury from all the facts and circumstances in evidence.

The instruction given on the last trial by appellee, in regard to the degree of care and diligence to be used by appellee, under the circumstances surrounding him at the time of the injury, and which this court held to be misleading and prejudicial, was eliminated on the last trial and no complaint is made by appellant of the instructions given for appellee in the record before us. Appellant insists that its refused instruction No. 19 which told the jury that if “plaintiff was on the railroad right of way where he was injured, simply by the acquiescence of the railroad company, he was a mere licensee and the defendants would owe him no other or greater duty as to his safety than if he were a trespasser,” should have been given on the ground it is a correct instruction under the rule of law laid down in the case of Illinois Cent. R. Co. v. Eicher, 202 Ill. 556. In that case our Supreme Court held that “a railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee or one who is on the tracks by mere sufferance, without objection of the company.” The law laid down in that case, however, is not applicable to the facts in this case. If appellee at the time he was injured, was not on the crossing but was walking along or standing on the tracks north of the crossing, he was a mere trespasser and the rule laid down in the Eieher case, as applicable to1 a person walking along the tracks of a railroad would apply. But if at the time he was injured he was on the crossing, then, although he was on the railroad right of way and was there, in one sense, by the acquiescence of the railroad company, yet that fact did not necessarily constitute him a mere licensee, but his right to be there and the duty owed him by the railroad company, would depend in a larg*e degree, upon the circumstances surrounding the maintenance of the crossing at that point by such company.

"What is here said disposes also of the contention that the court erred in refusing appellants’ instruction No. 16. Appellant further insists that the court should have given its refused instruction No. 27. This instruction told the jury they should take into consideration the number of witnesses testifying on any particular point or issue, in the case, and if they found that a greater number of witnesses had testified to a certain state of facts on behalf of one party than had testified to the contrary on behalf of the other party, and they believed that the credibility of the greater number of witnesses is equal to the credibility of the lesser number, then they should find the preponderance of the evidence upon the side of the greater number of witnesses. We think this instruction was properly refused for a number of reasons, but it is only necessary to mention one, which is that it wholly ignores the probative force of circumstances appearing in evidence apart from the mere testimony of witnesses, upon a point in issue, which was an important matter to be considered in this case. The other questions raised upon the refusal of instructions offered for appellant, have been considered by us, but they do not appear to involve any error. When the case was here before we stated that the damages awarded appellee, which amounted to $10,548 were, in our opinion, excessive. Upon the last trial, however, the amount recovered was reduced to $8,000; and while that amount would seem to be large, under the circumstances of this case, yet we cannot say it is so excessive as to call for a reversal of the judgment. The judgment of the court below will be affirmed. '

Affirmed.


text:
    Lincoln Harlow, Appellee, v. Western Cartridge Company, Appellant.
    1. Evidence—when little weight can he attached to statements hy one injured. If plaintiff, who was injured by an explosion of powder while filling primers does not remember when he signed a release from liability and did not read it nor understand it because his head hurt him, little weight can be attached to it or to statements made shortly after the injury.
    2. Evidence—when question as to statement hy employe as to his age not material. In an action for injuries caused by an explosion of powder while plaintiff, who was 19 or 20 years old, was filling primers, a question as to whether plaintiff stated to defendant’s time keeper, when he applied for work, that he was 23 years old, is not material.
    3. Evidence—when statement necessary to malee a reply plain properly admitted. Where plaintiff was injured by an explosion of powder while filling primers, it is not error to refuse to exclude a statement made by a witness for plaintiff, that he said to the foreman that plaintiff was unlucky and should not work on the job, where such statement is necessary to make plain a reply of the foreman as testified tó by such witness.
    4. Damages—when not excessive. A verdict for $1,500 is not excessive where plaintiff’s skull was fractured, his face and eyes were powder-burned and his hearing and mental condition affected.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    John J. Brenholt, for appellant.
    D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment of $1,500 obtained in the Circuit Court of Madison county, by Lincoln Harlow, a minor, who sued by his next friend Mary E. Hughes, his mother. Appellant seeks a reversal of the judgment on the ground that it is not sustained by a preponderance of the evidence and that the court erred in excluding certain evidence, and instructing the jury.

As it appeared from the proofs, appellee, a young man 19 or 20 years of age, on October 19, 1911, went to work for appellant at its plant in Madison county, Illinois, where it is engaged in the manufacture of cartridges. He was inexperienced and for the first month was employed at an anvil press. He was then put to work filling primers or caps used for the explosion of cartridges. The appliances by which the primers were filled or charged were called primer plates, and consisted of two plates supported by a stand at convenient height for the workmen. Each plate contained 500 holes which were about the size of the primers. The primer shells are cylindrical in form, a little over an eighth of an inch deep and one-sixteenth of an inch in diameter and they were placed in the holes in the lower plate which is stationary. The upper plate, which rested on the lower could be moved or turned so that when the holes in it did not correspond with the ones in the lower plate, they would form cups of a capacity sufficient to hold the proper amount of powder to fill the priming caps in the lower plate. The upper plate had a rim around the border to keep the powder from falling off and there were pockets or depressions in the comers into which the excess powder, remaining after filling the holes, was brushed by the operator. Appellee’s duty consisted in placing on the upper plate a sufficient amount of powder in his judgment to fill the holes and then to brush the powder into the holes by means of a paddle, which consisted of a wooden handle about 15 inches in length with a flexible piece of rubber about four inches square. attached at the end like a flag. After the powder was raked into the holes in the upper plate by means of the rubber paddle the excess would be brushed in the pockets in the corners, and the upper plate would then be turned on the lower until the holes in the two plates corresponded, when the powder would drop from the upper plate into the primers or caps placed in the holes in the lower one. When this had been done it was the duty of the operator to tap on the rim with a small rubber mallet with a wooden handle to jar any powder that might be adhering to the sides of the holes, down in the caps. The powder used for this purpose was sensitive and to avoid explosion by jar or concussion it was necessary that the operator should cause only the rubber part of the mallet to strike the rim and that the strokes should be light. On January 5, 1912, while appellee was engaged in this work, the powder on the plate exploded causing injuries for which he brought this suit. The proofs showed that the priming plate was blown off and a portion struck appellee in the forehead, causing a fracture of the skull, that his face and eyes were powder burned and injured and his hearing and mental condition affected. He was in the hospital nearly three weeks and was confined to his bed at home for more than a week after-wards.

There were two counts in the declaration, the first of which charged that appellant negligently and carelessly directed appellee to fill said primers without informing him of the dangers attending the process and the second that appellant • negligently and carelessly used powder that was negligently and carelessly prepared and which, by reason of its improper preparation was liable to explode while being raked into the primers, and that appellee did not know of the danger to which he was thereby exposed; that while appellee, in the exercise of due care and caution for Ms own safety, was raking the powder from said plates into said primers, said powder, by reason of its improper preparation, exploded.

The proof on the part of appellee tended to show that two days before appellee was injured, there had been two slight explosions or “puff ups” of the powder on his priming plate, which had burned his face; that at the time he was worMng with what was known as No. 3 powder raking it into the holes, that the foreman told him the powder was too sensitive and said, “I will have to change the powder tomorrow,” and instructed him to go to the magazine where he would find No. 1% powder and to use that powder the next day, which appellee did; that on the evening of the last mentioned day, the foreman came to him and told him to go to work again on No. 3 powder in the morning; that it was all right now; that appellee said, “Will it blow up?” and the foreman said, “No it is perfectly safe; ’ ’ that in accordance with such instructions, he on the next day again went to work on No. 3 powder and at about half past four o ’clock in the afternoon, while he was raking the powder slowly into the corner, using the rubber paddle, it blew up, causing the injuries complained of.

Appellant introduced evidence tending to show that appellee had been carefully instructed by the foreman and his assistant in regard tti the work in which he was engaged and cautioned to be careful and not to tap too hard or hit the rim of the priming plate with the wooden handle of the paddle or mallet; that there was a conspicuous notice reminding appellee of the dangers of his work, posted up near him. This notice, which was introduced in evidence, however, does not appear to call attention to the danger of the work, but simply instructs employes not to place more powder upon the plate at one time, than is necessary to fill all the holes properly. Appellant claimed that appellee must have caused the explosion by striking the rim of the plate with the wooden handle of the mallet and to support that claim, introduced, testimony, showing that appellee had the broken handle of the mallet in his hand after the explosion. It was also shown by appellant, that shortly after appellee was injured, while he was in the hospital, he stated in answer to an interrogatory put to him by appellant’s foreman, as to how the injury occurred, “I think it was my fault, I think I missed the plate with the mallet;” that he said, possibly he was in a hurry to get through and clean up; that he wanted to get through and caused the explosion. Appellant also introduced in evidence a release of damages signed by appellee, upon the agreement by appellant to pay him half his regular wages, while he should be incapacitated by his injuries and also to pay his hospital and doctors bills.

This agreement bears date at a time when appellee was still in the hospital and while appellee admitted his signature to it, he stated that he did not remember when he signed it; that he never read it; that he did not understand it, his head' hurt him so badly.

If appellee’s statements as to the effect of the injury upon his mental faculties are true then it would follow that little weight could be attached to statements made by him or instruments signed by him shortly after he received such injuries. The proofs as a whole appear to us to have sustained the finding of facts by the jury in favor of appellee.

Appellant complains that the court sustained objection to the question asked appellee as to whether he did not tell Megowan, the time keeper, when he applied for work, that he was 23 years of age, for the reason that it would tend to impeach his testimony or lessen the weight to be given to it by the jury. We do not think the question was material here or that the court erred in sustaining an objection to it, but the record and the abstract both show that this question was put to appellee and that he answered, no sir, and that objection was not made until after the next question was put.

Appellant further states that the court erred in refusing the offered testimony of Megowan, its timekeeper, but we fail to find in the record where the testimony of any such witness was offered. Another complaint of appellant is that when a witness for appellee, in detailing a conversation with appellant’s foreman, stated that he said to the foreman “Link surely must be unlucky on that job, if I was him I would not work on it at all,” the court refused to sustain an objection thereto. The exclusion of this answer was properly refused for the reason that it was necessary to make plain the reply or explanatory statement of the foreman which followed as testified to by said witness.

Four instructions were given on behalf of appellee, all of which .are criticised by appellant. A careful examination of these instructions reveals that they are neither intricate nor misleading and that they correctly state ordinary rules of law applicable to the case. Some complaint is made by appellant, as to the amount of the damages awarded appellee, but when his injuries are considered, the damages do not appear to us to be excessive. The judgment of the court below will be affirmed.

Affirmed.


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    Marley Harrison, Appellant, v. William Allen, Appellee.
    1. Weapons—negligent discharge. Where it is alleged that defendant, while hunting, negligently injured plaintiff by discharging his gun in plaintiff’s direction, it is reversible error to instruct that the burden of proof throughout the case is on plaintiff and to refuse instructions correctly stating the law as to the burden on defendant to prove that the gun was not negligently discharged by him.
    2. Weapons—negligent discharge. Where plaintiff was injured when defendant discharged his gun in plaintiff’s direction when hunting, instructions are erroneous which place the burden on plaintiff throughout the case of proving that he was using due care and that defendant was negligent.
    3. Weapons—burden of proof. When defendant discharges his gun in plaintiff’s direction while hunting and injures plaintiff, the burden is on defendant to prove that the gun was not fired negligently.

      Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Hiles & Simpson, George W. Jones and Bradbury & Gaines, for appellant.
    Parker & Crowley and Parker & Eagleton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellant, Marley Harrison, a minor, who sued by Jacob Harrison his next friend, against appellee William Allen, to recover damages occasioned by the discharge of a gun in the hands of appellee while these parties, together with others, were hunting on November 24, 1910.

The declaration on which the case was tried, contained three counts in case, each stating the conditions under which appellant was injured as claimed by him, alleging due care on the part of appellant, negligence on the part of appellee, and charging that appellant was in view of and near to appellee at the time the former was shot.

The circumstances preceding and bringing about the injury, were shown by the proofs to be in substance as follows: On Thanksgiving day, 1910, appellant who was a college student, nineteen years of age was at home, on his father’s farm in Crawford county. On that day appellee, a farmer some years older, went with two other persons, Bollo Gill and Clarence Leggett, to appellant’s home, for the purpose of engaging in hunting, they having previously on that day hunted for a while over the neighboring farm of said Leggett. Appellant, his father, being absent, gave them permission to hunt on the place and soon afterwards joined them as did also two of his acquaintances, Blaco and Bussell. The pasture in which they hunted was a quarter of a mile long from north to south and about twenty rods wide and there were in it a few scattering- trees, some brush and blackberry bushes. There was also a creek running through it from north to south, and east of it was a field of broom corn. At the suggestion of Grill they “lined up” for safety and in this manner hunted up and down the creek for about half an hour, when it was further suggested by one of them, that on account of the danger they had better all go to dinner and afterwards separate. With this in view, and after appellant had refused invitations to dinner from Leggett and Blaco, appellee with his two companions, started to the northeast of the pasture, where they had hung their coats on a post. Appellant went west across the creek about twenty yards and got a rabbit which he had killed while hunting and hung it in a tree. Bussell and Blaco started south to their home. Appellant’s home was southeast of where they were hunting. Appellee and his companions afterwards crossed the fence to the east into the broom corn and hunted south. After appellant got his rabbit he started southeast and south following a path towards his home. When appellant had come within about twenty-five yards of appellee, some quails flew up and appellee shot at them three times, first at one flying south, then at one flying southwest and then turned and fired almost directly west. The last shot struck appellant in the face and chest, some forty shot lodging in each. As a result of the shot, appellant suffered great pain and has totally lost the sight of his left eye.

We will not discuss the evidence, for the reason that the cause must be remanded for another trial, on account of errors in regard to the instructions occurring upon the trial in the court below, but the above statement of the facts is deemed by us to be necessary for a proper presentation of the law applicable to the case. Upon the trial, appellant took the position that after he had shown that appellee had control of the gun and shot it in such a manner as to inflict the injury upon appellant, the burden was then cast upon appellee to show by the proof there was no negligence on his part. On the other hand the position taken by appellee was that the burden was on appellant throughout the whole case to show, not only that he was without fault, but that the injury was caused by the negligence of appellee.

While some instructions laying down conflicting rules of law, were given, yet upon the whole the court below appears to have adopted appellee’s theory of the law as being applicable to the case.

The third instruction given for appellee was- as follows: “When an accident occurs and it becomes a subject of inquiry as to the question of liability therefor, these facts must be shown by the evidence, and the evidence alone: First, was the party injured at the time using due care for his own personal safety. Second, was the party who caused the injury negligent? And unless the jury can say that on each point that the party injured has shown by the preponderance of the evidence that he was using due care for his own personal safety at the time of the injury, and that the party injuring him was negligent or not then using due care to prevent the injury, there would be no liability and the injured party could not recover in an action to recover damages for such injury.” Other instructions given for appellee appear to place the burden of proof throughout the whole case, upon appellant. These instructions do not state the law correctly as applicable to the facts in this case. “As firearms are extraordinarily dangerous, a persoif who handles such a weapon is bound to use extraordinary care to prevent injury to others and is held to a strict accountability for want of such care. When an injury occurs from the discharge of a gun or other firearm, he, by whom it was discharged, in order to excuse himself from liability for the injury, must show that the discharge was absolutely without his fault and that it happened by inevitable accident.” 12 Am. & Eng. Ency. of Law (2nd Ed.) 518, and cases cited.

In the case of Atchison v. Dullam, 16 Ill. App. 42, there is a review of a number of cases upon this subject and the law as determined by them, is stated to be that “if a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at him either intentionally or negligently, but the result was inevitable and without the least fault upon his part. ” It is there also said,6 ‘ Firearms are not usually discharged without the intervention of some human agency. A presumption, therefore, almost conclusive in its character, is raised, that when such weapons are discharged while in the possession and control of another, the firing is caused either by design, carelessness or inadvertence upon his part.”

Appellant’s third refused instruction stated the law upon this subject correctly and' should have been given. It is true that two of the instructions given on behalf of appellant, as modified by the court, recognized the correct rule of law, but where directly opposite statements of the law, applicable to the case are laid down in the instructions of the respective parties, it leaves it to the jury to determine which rule they should follow, and therefore improperly permits them to determine the law, applicable to a civil case, as well as the question of fact. ,

For the errors in the instructions above indicated, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    Thomas Tustin, Appellee, v. Majestic Coal & Coke Company, Appellant.
    1. Mines and miners—assumed risk. A shot firer in a coal mine, who fails in his duty or makes a mistake in judgment in the performance of such duty, in examining shots in order to determine whether or not they are prepared in a practical and workmanlike manner, and is injured in consequence, will be held' to have been injured by the ordinary risks and hazards of his employment which he assumes.
    2. Mines and miners—assumed risk. Where a pillar in a coal mine was permitted to slant and become thin and such fact is apparent, the doctrine of assumed risk applies where a shot firer is injured by the explosion of a blast of powder, intended for the purpose of making a cross cut.
    Appeal from the City Court of DuQuoin; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with statement of facts.
    Opinion filed March 10, 1913.
    C. E. Pope, for appellant.
    George W. Dowell and M. C. Cook, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit to recover damages for personal injuries received by him, while employed in the mine of appellant. The two counts of the declaration, charged appellant with negligence in permitting the pillar of coal between rooms four and five driven off of the sixth north entry of the main west entry of appellant’s mine, to become so thin as to endanger the safety of appellee, who was a shot firer in said mine; that by reason of such negligence on the part of appellant, appellee, while in the exercise of his duty as a shot firer, was injured by the explosion of a blast of powder, which broke through the wall between the two rooms, throwing coal against him, and knocking him down.

There, was a verdict in favor of appellee for $400, followed by a judgment for a like amount.

The following facts appeared from the proofs on the trial: Appellant, on December 29,1911, was operating a coal mine near DuQuoin, Illinois, in which appellee had been employed for some time as a shot firer and was earning at this work about $6.00 a day. Booms four and five, which extended west from the sixth north entry, had at this time been driven in about 230 feet. The pillar of coal between the rooms was intended to average about 22 feet in thickness. The line of this pillar was practically straight in room five but in room four, which was located south of room five, it slanted or turned towards the north, lessening the distance between the two rooms to such an extent that near the face, the pillar was but seven feet thick. What was known as sight lines or sight wires, were used in this mine to run the rooms straight and keep the pillars between them of uniform thickness. These lines were properly placed by means of a compass and could be sighted along by the miner extending the room for his assistance or by others who had occasion to do so. The slant or bend in room No. 4 however, was so great that it could be discovered without the aid of sight lines. There were two cross cnts through the pillar, connecting the two rooms and from the last cross cut to the face of the coal in room 4 it was 66 feet, while in room 3 it was 65 feet. The rooms had therefore reached a point where the law required another cross -cut between them and the mine manager had instructed the miner in room No. 4 to make one several days before appellee was injured.

On the day of the injury two shots had been placed in the pillar in room 5 and opposite one of them, which was near the face, a slant shot was also placed in the pillar in room No. 4. Had the drill holes for these shots continued a little further, they would have met forming lines shaped somewhat like the letter V, but as it was, the bottom of the two holes were 15 inches apart. The miner in room 4, while testifying that he had been told to put in a cross cut, stated in answer to the question, what the shot in the rib was for, that, “it was just for to make coal.”

There was some evidence that it was the custom in that mine for the mine manager or some one else in authority, to cause conspicuous chalk marks to be placed at a point where a cross cut was to be made. No such marks had been made at the place where appellee was injured. The object of these chalk marks appeared to be simply to indicate to the men at work in the rooms where the cross cut should be made and not as a warning of danger. On the day of the injury appellee and his assistant Hartley, proceeded to examine all the shots they were to fire, to determine whether or not they were prepared in a practical workmanlike manner and after the miners had left, they commenced firing the shots. In the course of their work they entered room 5 and each lighted one of the shots placed there. It was their intention to next fire the shots in room 4 and for that purpose, they went to the nearest cross cut to cross over to that room. When appellee had reached the shot on the rib, or pillar, in room 4 and was preparing to fire it and while Hartley was in the cross cut, the shot in room 5 opposite the one in room 4, where appellee was at work, exploded, blowing through the wall of coal and igniting the shot in room 4, thereby causing it to explode. As a result' of these explosions, appellee was knocked down and received the injuries of which he complained.

While a number of reasons are insisted upon by appellant for the reversal of the judgment in this case, it is necessary for us to consider only those which relate to the facts. It was the duty of appellee and his associate, under the statute, to examine shots before they were fired and ascertain whether they had been prepared in a practical workmanlike manner. There was some conflict in the evidence as to whether the shot in room 5, which broke through the wall was a practical shot, but whether it was or not, was a question which the law made it the duty of appellee, who says he examined and fired it, to decide. If appellee failed in his duty or made a mistake in judgment, appellant could not be charged with negligence towards him resulting therefrom. But appellee relies upon the alleged negligence of appellant in permitting room 4 to be turned out of the straight line towards the north and thereby causing the pillar of coal between the two rooms to become thinner than it otherwise would have been. It appears from the proofs, however, that the fact that the room turned to the north, was plainly apparent to those who entered it and went towards the face and that appellee, in the ordinary course of events, must have known it. The proof also shows that the blasts in question were located at a point-where a cross cut should have been, and was in fact ordered to be made; also that the shots were placed in the rib in the manner in which 'shots should be located for the purpose of making a cross cut. This should have indicated to a man of experience like appellee, who testified that he had worked in mines for twenty-one years, that the shots were intended to blow out the coal from the pillar for the purpose of making, a cross, cut.

The facts in the case, as disclosed by the proofs, fail to show any negligence on the part of appellant, which tended to bring about the injuries to appellee. But on the contrary the proofs show that he was injured in the ordinary course of his work by one of the risks or hazards of his occupation, which he must be presumed to have assumed. The judgment of the court below will therefore be reversed.

Judgment reversed with statement of facts.

Statement of facts to be incorporated in the judgment: We hold as facts in this case that appellant was not guilty of negligence tending to cause the injuries complained of by appellee; also that his injuries were occasioned by one of the ordinary risks or hazards of his employment, which he must be held to have assumed.


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    Mollie Hodshire, Appellee, v. Corn Products Refining Company, Appellant.
    1. Master and servant—contributory negligence. Plaintiff was injured in operating a stamping machine through her fingers being caught in the dies, while she was removing some mashed plugs, and charged defects in the machine. She had been instructed not to put her fingers under the dies. Held, that her exercise of ordinary care for her own safety not being shown, judgment in her favor would be reversed.
    2. Master and servant—violation of rules. Where operators of stamping machines are constantly warned from dangerous practices, and the employer honestly endeavors to enforce a rule for their safety, and disobedience to such rule is not necessary for the performance of the work of the employe, the violation of such regulation will not be held to have been acquiesced in by the employer, nor will such rule be treated as inoperative.
    Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Dah McGlyhr, for appellant.
    M. B. Sullivah", for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellant operates a plant in Granite City, Illinois, in which it manufactures corn products of various kinds. The plant was divided into departments, one of which was devoted to the manufacture of tin cans, in which the corn products were placed for shipment. In this department, there were some thirty-five stamping machines used for making different parts of the cans, which were operated by girls. On February 9, 1912, appellee was employed in operating one of these stamping machines, which was used for making tin plugs for two pound cans. This machine had two stationary dies on the bench in front of the operator, one of which was somewhat lower and directly back of the other. There were also two upper dies which, as the machine was operated, came down on the lower ones. The front dies cut a plug and as the upper dies raised the plug slipped back on the lower die in the rear. When the upper dies lowered again, they not only cut a plug on the front side, but also curled the edges of the plug on the back one, and as they again raised, a “flipper” working with a spring, cast the finished plug from the back die into a box. The stamping machines were operated by means of a line shaft and pulleys and the operator in change of the machine sat on a stool in front of it and caused the upper dies to lower and rise by means of a treadle, worked by the foot. The main shaft was continuously in motion but the crank shaft thereon operating the machine did not turn unless the treadle was pressed down, when a clutch pin was released and caught in a groove in the fly wheel and caused the crank shaft to turn for one revolution, after which, if the machine worked properly, the clutch pin would slip back and the crank shaft would again become stationary. During each of these revolutions, the upper dies would go down onto the lower dies and then ascend to their former position where they remained until the operator again pressed the treadle. Sometimes the tin plugs would not slip entirely from the front die to the one back of it, so that when the upper die came down, it would catch and mash it and if several of them became mashed together, the machine was clogged and they were hard to remove. Bach operator was therefore furnished with a wire hook to take out the mashed plugs and when they could not be so removed, it was the duty of the operator to call the foreman to remove them. Some, possibly all of the operators, were shown, however, to have been at times in the habit of removing the mashed plugs with their fingers, and to prevent this appellant had the following notice posted in the room: “Any person putting fingers under punches will be discharged; to remove scraps from under die use a small stick.” It appeared that one employe had been discharged for disobeying the notice and that the foreman, when he saw them disregarding this rule, told them they must not put their fingers under the dies. This instruction he gave appellee a number of times.

Shortly after noon on the day in question, appellee was endeavoring to take out three plugs that were mashed together in the back die, using her fingers for that purpose and while she was so engaged, the upper die came down, catching and cutting off the ends of her two index fingers.

Appellee brought suit to recover damages for her injuries which she charged,- in the three counts of the declaration, were caused by the defective condition of the machine which she was operating. The defect alleged in the first count was that the apparatus supporting the upper dies was so out of repair that the dies would descend without being caused to do so by the operator. The second was substantially the same as the first, while the third charged in addition that the lower back die and the automatic device connected therewith were so defective that they would not remove the tin plugs, thereby making it necessary for appellee to remove them with her hands. Appellee obtained a verdict and judgment in her favor for $1,566.17.

Appellant asserts that the facts in this case, do not warrant a recovery in favor of appellee and it is to this claim that our review of the case has been mainly directed. Appellee testified that the machine repeated a number of times on the day of the injury and had done so previous thereto; that repeating meant that when she had pressed down on the treadle and the dies had come down in response thereto and returned to their place they would again come.down without the treadle being pressed; that in each instance when the machine repeated, she had called the foreman’s attention to it and he had fixed it but that she did not know what he did to correct the defect; that shortly before noon on the day in question, it repeated and she told the foreman who worked on it, and he told her to go ahead; that shortly after noon it again repeated and she was injured as stated. She also stated that she was furnished with a wire to take out the mashed plugs; that she had been told by the foreman not to put her fingers under the dies and that she knew they would be cut off if they were caught. While the operator on each side of her saw the die come down and catch her fingers, there was no testimony but her own that the die repeated. The girl who operated the machine before her and the one taking it afterwards, both testified that it did not repeat with them, and the foreman also stated that he tested it immediately after-wards and it was found to be all right.

The crucial question presented to us for determination, however, is whether or not under all the circumstances appellee was in the exercise of ordinary care for her own safety at the time of the injury. Her counsel insisted that as it was shown to have been a common practice among the operators to remove the mashed plugs with their fingers, the rule against it must be considered as abrogated and not in force as against appellee. But it further appeared from the proofs that the custom of the operators to remove the plugs with the fingers was a dangerous one and that appellee knew it was dangerous; that it was not only forbidden by written instructions posted in the room, but also that it was the duty of the operators to remove the mashed plugs with the wire hooks, and if they could not do so, to call upon the foreman who was there for the purpose to remove them; that whenever the foreman caught them putting their fingers under the dies, he warned them not to do so; also that it was' the duty of the foreman to enforce this rule and that he had no authority to abolish it had he wished to do so. As showing appellee’s disregard for her instructions in that regard the foreman, Malone, stated that on the day before appellee was injured, he saw her with her fingers under the press and told her not to do it; that he stopped and looked around and “she had her tongue sticking out” at him.

It is plain that appellee was guilty of negligence on her part which either caused or contributed to bring about her injuries; nor can the disregard of herself and the other employes of the rule sought to he enforced against them for their protection, excuse her negligence. While it is true as a general rule that if a regulation is habitually violated with the knowledge and acquiescence of the employer, it is to be treated as inoperative against the employe. Kenny v. Marquette Cement Mfg. Co., 243 Ill. 396; Hampton v. Chicago & A. R. Co., 236 Ill. 249. Yet we do not understand this rule to apply where disobedience to the rule is not necessary to carry on the business in which the employe is engaged and there is an honest endeavor on the part of the employer to keep the rule in force by constant warning to the employe to desist from a dangerous practice, as the proofs show to have been the case here. Thomas v. Houston, Stanwood & Gamble Co., (146 Ky. 156), 37 L. R. A. (N. S.) 950.

For the reasons above given the judgment in this case will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice IIigbee

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    Alois Schmidt, Appellee, v. Litchfield & Madison Railway Company, Appellant.
    1. Master and servant—negligent driving of motor. Plaintiff, a railroad employe, was injured by being thrown from a gas motor car which had been derailed by a dog on a trestle, and he charged negligence on the part of defendant’s train dispatcher who was driving. Held, that the manifest weight of the evidence was against the contention.
    2. Damages—state of health previous to an accident. The admissibility of evidence that a person injured had complained of ill health and consulted physicians previously to the accident, is a. matter which must necessarily be left largely to the discretion of the trial court.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Cbow, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Warnock, Wixliam:son & Burroughs, for appellant.
    Geers & Geers, for appellee.
   Mr. Justice IIigbee

delivered the opinion of the court.

Appellee, Alois Schmidt, claims to have been injured in his back while he was in the employ -of appellant, by being thrown from a motorcar, driven by appellant’s train dispatcher, G. E. Bickel, on his return from work. He brought suit, charging in his declaration negligence, carelessness and improper conduct on the part of Bickel in driving the car, so that it ran against a dog that was upon the track near a bridge or trestle on the railroad, whereby the motorcar was derailed and appellee thrown therefrom with great force. There was a plea of the general issue and on the trial, the jury gave a verdict and the court entered judgment in favor of appellee for $2,750.

Appellee offered no instruction and the court gave all those offered by appellant, but appellant assigns as reasons why the judgment should be reversed, that the verdict was against the manifest weight of the evidence and the court erred in its rulings in regard to certain testimony which appellant sought to elicit from some of the witnesses in regard to appellee’s past condition of health.

As to the evidence in the case, it appeared that on May 23, 1910, appellant was operating a railroad running through Madison county, Illinois. At that time and for some time prior thereto, said Bickel, a train dispatcher of appellant at Edwardsville, had operated over the tracks of the company, an uncovered gas motorcar, about 7 feet wide and 8 feet long, on which were two seats running crosswise of the car, each holding three persons. He used the car for one or more trips nearly every day, carrying officers or employes over the track. On said date George Bandy, bridge foreman, assisted by appellee, his brother William, and James Taylor, all of whom lived in Edwardsville, were engaged in repairing a bridge some miles south of there, near the village of Edwardsville. Bickel had taken them to the bridge in the motorcar in the morning and at 5:30 that evening returned for them to take them home. On the return trip Bickel was sitting on the right hand side in the front seat and with him at his left, was William Schmidt and on the back seat from right to left, were Taylor, Bandy and appellee. A few miles north of Madison, appellant’s track crosses a trestle over a small stream. As the car approached the trestle a hound dog that had been with three persons, who had stopped near the trestle, ran upon the track in front of the car and started to go in the same direction, but was struck and killed by the car at about the ninth railroad tie out on the trestle. At the same time the ear was thrown from the rails but it continued to run over the trestle some 72 ties further, when the front wheel broke or was torn off, the ear turned across the track and its occupants thrown out. Appellee and his brother fell from the trestle tfpon which they had been thrown, to the water below, and in falling appellee claims he struck the end of one of the timbers of the bridge and received the injuries to his back of which he here complains. Bandy was rendered unconscious and so remained until the following day and at the trial could remember nothing whatever about the occurrence or seeing the dog. William Schmidt was out of the state at the time of the trial and the only witnesses present at the time of the occurrence, who testified concerning it, were appellee, Bickel and Taylor who had heen on the car, "William and Bonnie Bussell, who were fishing near the trestle and William Bowen and Edward Meyer, two of the persons who had been with the dog. Joseph Hennen an eyewitness was ill at the time of the trial, but an affidavit setting up what he would swear to if present and contained in a motion for a continuance, was read on behalf of appellant.

Appellee testified that when he first saw the dog, the motor car was 200 to 300 yards from it; that when the dog got into the center of the track, appellee was a few feet away from the bridge and Bickel said, “Watch me knock that dog;” that appellee told him to stop the car but that he did not do so but raised its speed and the car ran over the dog; that the dog was about 9 ties out on the bridge when the car struck it. Again he testified that the motorcar was about 100 feet from the dog when Mr. Bickel made the statement, “Watch me knock that dog.” On cross-examination he said that when he first saw the dog it was next the track on the outside of the rail on the right hand side, some 8 or 9 feet from the trestle and that when he jumped into the center of the track, the car was 100 yards away from him; that when he first saw the dog, it was walking towards the bridge; that he could not swear how far the dog went before it got over into the track, but thought about 30 feet and it was then about 9 feet from the trestle; that he did not call BickePs attention to the dog when he first saw it and did not know how far the car was from the dog when Bickel saw it; that he told Bickel to stop the car because they were in danger; that Bickel never said anything only, “watch me knock that dog” and reached back and put the car on as high speed as he could put her.

The claim of appellant was that the dog was not seen by Bickel until the car was right upon him when Bickel immediately applied the brake but was unable to stop the car in time to avoid striking the dog1; that the occurrence was merely an unavoidable accident.

William Russell stated that he saw the dog with three persons coming along the track, about 75 yards from the trestle some four or five minutes before the car came, but did not see the dog again until after it was killed. Bonnie Russell swore that he saw Bowen come down the track with the dog; that the dog was about 30 feet from the trestle at the side of the track when he first saw him; that when he got to the trestle he stopped and then walked onward. Witness said he then turned to look at his fishing line and did not see the car strike the dog. Edward Meyer, a boy 16 years old, who was one of the parties with the dog, stated that just before the accident, Mr. Bowen was emptying strawberries out of his hat into a bucket and witness was standing at his side; that the dog was sitting by him; that he next saw the dog when it was struck on the trestle; that Mr. Bowen was emptying strawberries when the car passed; that he could not tell how long it was from the time he saw the dog lying at his side until he saw him running to the trestle; that he could not say whether it was four or five minutes or five seconds; that he could give no idea of the time. These are all the witnesses on behalf of appellee as to the occurrence.

On the other hand Bickel swore that when he first saw the dog, the car was five or six feet from it; that he applied the hand brake of the car which was all he had time to do and that the car struck the dog at the same time; that he could not see where the dog came from; that he did not make the remark to Schmidt, “Watch me knock that dog,” or to any one else; that Schmidt did not tell him to watch out or slow up or that in substance ; that he could not have stopped the car from the time he first saw the dog until he struck it. Taylor who was with him on the car, testified he first noticed the dog about six feet from the bridge and the car was then probably four or five feet from the dog; that the dog was then just outside of the track; that he never heard Bickel make the statement in reference to the dog testified to by Schmidt; that he was in position to have heard it and is positive he would have heard it had it been made; that there were no statements made there by either of them; that if Schmidt told Bickel to look out or slow up he did not hear him. Bowen the owner of the dog, testified that he was emptying strawberries into a bucket and the dog was along side of him a second or two before the car came along; that as the car went by he looked up and saw the dog on the trestle under the car; that the dog had been lying by him 10 or 15 minutes before the car came; that he saw the dog go from where he was to the trestle; that he was only a second or two emptying the strawberries into the bucket. The affidavit of Hennen read in evidence, stated that he was 14 years of age and was with Bowen and Meyer at the time of the accident; that he was wátching Bowen and Meyers empty the strawberries; that the dog was lying on the ground where they were, until two or three seconds before it was struck by the car; that as the motorcar passed, he looked up and saw the dog was near the trestle; that he seemed to be running in a straight line from where witness "and his companions were towards the trestle; that when the dog got to the trestle the car was only about ten feet away from it; that he seemed to start across the trestle and his front feet fell down between the ties.

In addition to the above testimony, Dr. Ferguson, a physician of Edwardsville, who examined appellee on the night he was injured, swore that appellee at that time, told him that as they a'pproached the bridge, there were several men holding the dog to keep him from running out on the track, that the dog evidently got loose and jumped out ahead of the car and they ran over it and the car jumped the track; that he did not think anyone was to blame for the accident, that it was purely an accident. The making of this statement however, is denied by appellee.

We have gone somewhat at length into the facts shown by the record as the question whether those facts will sustain a recovery is the controlling one in the case. The burden of proof to sustain the charges made by him in his declaration and make out his case' was upon appellee, but in doing this he has to depend almost wholly upon his own testimony. He was contradieated by a number of witnesses whose statements appear reasonable. When we consider this in connection with the testimony of the physician, as to the statement made to him by appellee, concerning the manner in which the injury occurred, we are led to the conclusion that plaintiff has not only failed to establish his right of action by a preponderance of the evidence, but that the manifest weight of the evidence was in favor of the appellant.

Appellee testified that before the accident he was in good health and worked every day. To meet this statement, appellant sought to show that appellee had complained of ill health and had consulted with physicians from time to time for a number of years past. The court permitted appellant to interrogate witnesses along these lines to a considerable extent, but it complains that objections were sustained to some of its interrogatories which sought to elicit information concerning appellee’s complaints of ill health or ailments at remote periods. The admissibility of such evidence is a matter which must necessarily be largely left to the discretion of the trial court and while some of the questions, to which objections were sustained, might properly have been answered by the witnesses, yet upon the whole, the court below does not appear to us to have abused its discretion in this regard.

For the reason that the verdict of the jury was manifestly against the weight of the evidence, the judgment of the court below based on it will be reversed and the cause remanded.

Reversed and remanded.


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    Adolph Piazzi, Appellee, v. Kerens-Donnewald Coal Company, Appellant.
    1. Mines and miners—liability under statute regulating. Plaintiff charged defendant with having permitted a dangerous condition to exist in a cross-cut in its coal mine, owing to a loose rock in the roof, and with wilful failure to fix a conspicuous mark there as warning. While engaged in cleaning out the cross-cut and after attempting to pry the rock out with a pick, plaintiff was struck by the falling rock. Held, that the questions as to such danger and violation of statutory duty were for the jury.
    2. Mines and miners—liability under statute. It is the duty of the owner of a mine to have it examined and to have dangerous places therein designated by statutory marks, and he cannot excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous.
    3. Mines and miners—liability under statute regulating. The question of the condition of a coal mine, where an accident occurs, is one of fact, to he determined by the jury and not by the mine examiner.
    4. Mines and miners—nature of employment. Whether a company man, employed in a coal mine, is employed in making a dangerous place safe, or merely directed to clean up a cross-cut, are questions of fact for the jury.
    5. Mines and miners—marking places of danger. An instruction, the effect of which is to ignore the duty of the operator of a coal mine to mark a working place in the mine known to he dangerous, is erroneous.
    6. Mines and miners—instructions. An instruction that even though the jury should find that a coal mine had not been properly examined, yet if they should find that an examination would have disclosed the fact that a rock in the roof of a cross-cut was not loose, and further that plaintiff made it loose by prying it, and was injured by its falling upon him, the owner of the mine would not he liable, may properly he given.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Rehearing denied May 29, 1913.
    Wise, Keeps & Wheeler and B. B. Hendricks, for appellantMastín & Sherlock, of counsel.
    D. H. Mudge, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee, while in the employ of appellant in a coal mine in Madison county, Illinois, as a “company man,” was injured by the fall of a clod from the roof of a cross-cut and brought this suit for the injuries so received.

The declaration averred that appellant permitted a dangerous condition to exist in a certain cross-cut in its mine, caused by loose, insecure and dangerous rock or clod attached to the roof at appellee’s working-place; that it wilfully failed to cause said working place to be marked by its mine examiner with the month and day of his visit on the 16th day of July, 1910; that through its mine examiner, it wilfully failed to fix a conspicuous mark at appellee’s working place as notice to the appellee to keep out; and, that it allowed appellee to enter said working place, not under the direction of the mine manager, before said dangerous condition existing therein had been made safe. A verdict in favor of appellee for $1,500 was followed by a judgment for a like amount.

The proof showed appellee to be a man of 50 years of age and that he had been engaged in coal mines in different capacities for some 28 years. For about a year and a half he had been employed in appellant’s mine and for some two months just prior to his injury he had been doing company work, which required him to do whatever the mine manager directed him. He was earning from $2.50 to $3.00 a day. At said date coal was not being mined and hoisted from appellant’s mine at this shaft, neither had the mine been so worked for several months prior thereto. There had been a fall from the roof of a cross-cut between the third and fourth entry on the east side of the mine prior to this, so that it could not be used. Men, among whom was appellee, were employed in the mine, cleaning up this cross-cut and other places, so that the mine could be again put in operation for producing coal. These men were working under the direction of the mine manager and were divided into a night shift and a day shift, appellee belonging to the former. About ten days before the injury occurred, the mine manager, at the bottom of the shaft, about 2,000 feet from the cross-cut, directed appellee and his “buddy” John Tweedy, to go to work in the cross-cut, which they proceeded at once to do and were so employed until appellee was hurt.

Upon the trial there was a conflict in the evidence of the parties as to whether appellee and his companion were employed simply to clean out the fall and restore the cross-cut to its former condition, so that it could be used as a passageway between the two entries, or whether they were employed and instructed to make the place safe. The testimony on behalf of appellee tended to show they were instructed by the manager to “clean up” the cross-cut. The manager, however, testified that he gave them no directions but that they were in charge of the night boss who gave directions as to the duties of the men, and the night boss swore that he told appellee and Tweedy to “clean up, take down and make safe the cross-cut. To take down anything and make safe.” When the men went to work that night they had reached a place where a clod hung from the roof of the cross-cut some 8 or 10 feet above the floor. It was three or four feet long, two or three feet wide and eight to twelve inches thick and unsupported by timbering or other artificial means. It however adhered to the rock above it and one end next to the “gob” was supported by the coal. Their work had progressed past the clod and the mine examiner had seen it a few days before. Appellee and Tweedy, jn the progress of their work, would load dirt, rock and other material, obstructing the cross-cut into the miner’s car and when it was full, a driver would come and take it to the bottom of the shaft. After loading the box that night they attempted to get the clod down. They had already taken some dirt from around it the night before and on this occasion, appellee got on the dirt box, dug a hole in behind the clod and attempted to pry it out with a pick. The attempt to take it down was finally abandoned. The loaded car was hauled out and the two men went to work under the clod, loading another box, when suddenly the clod fell striking appellee inflicting the injuries complained of. Both bones of one of his legs were broken between the ankle and the knee, one of which protruded through the wound in the leg. He was in the hospital for eleven weeks and on crutches for about six months. His surgeon’s charges were $100, and hospital charges $8 a week, in addition to an extra charge of $5 for the use of a dressing room.

Appellant’s mine examiner stated that on the night in question and a few hours before appellee was hurt, he, in the performance of his duties, got on the box and examined around the clod with his light and sounded with his rod; that he found it solid and did not mark it as dangerous. In fact the proofs sustain the allegation of appellee’s declaration, that there were no marks to show that the examiner had visited the place or to serve as danger signals and that appellee was not warned of any danger there might be from the hanging clod. If the place where appellee was at work was dangerous and appellant owed appellee the duty prescribed by law, for the protection of mine workers and the wilful failure of appellant to comply with the statute was the proximate cause of the injury, then appellee was entitled to recover. Whether the place was dangerous and whether appellant wilfully failed to comply with the statute, were questions of fact for the jury. Smith v. Illinois Collieries Co., 155 Ill. App. 148; Aetitus v. Spring Valley Coal Co., 246 Ill. 32.

In the last mentioned cause, which in some respects' is similar to the one .before us, as the appellee there appears to have been a workman who was injured by a fall of rock while he and his companion were engaged in preparing a place where the coal company desired to build a stable and where the workmen had tested the roof above them with their picks and pulled down some loose rocks, but the place had not been marked as dangerous by the mine examiner, it was said: “It has been repeatedly held by this court that it is the duty of the owner or operator of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails in either particular, with knowledge of its dangerous condition or with knowledge of facts, from which he ought to know of its dangerous condition, he is liable to a person in the mine under his employ who is injured as a result of his wilful failure to obey the mandates of the statute. If the mine is in a dangerous condition, and the owner or operator has failed, with knowledge of its condition to comply with the statute, he is liable, and he cannot excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous. * * * The question of the condition of the entry at the point where the accident occurred was one of fact to be determined by the jury, and not by the mine examiner..”

Appellant contends however, that appellee was engaged in making a dangerous place safe and therefore appellant owed him no duty under the statute, to cause the place of danger to be marked. Whether or not appellee was engaged in the work of making a dangerous place safe or was only employed and directed to clean up the cross-cut, were questions of fact for the jury. Upon all these questions of fact there was evidence to support a finding in favor of appellee and no reason appears to us from the proofs, why their verdict should be disturbed.

It is further contended by appellant however, That the court erred in refusing two of the instructions offered by it. The first of these instructions told the jury that even though they should find that the mine examiner was not in the cross-cut and made no examination of the same, yet if they found an examination would have disclosed the fact that the clod was not loose, and if they should further find that appellee made it loose by striking and pulling it with his pick and that he pulled it with his pick after the usual time for the mine examiner’s examination, and the clod thereafter fell and injured him, that appellant would not be liable. It is said by appellee that this instruction presents the question of contributory negligence on his part, which is not a defense in suits of this character. We are inclined to the opinion that while the instruction might properly have been more carefully guarded along the line upon which the criticism is made, yet the court might well have given it. The principle enunciated in it however, was fully covered by other instructions given on behalf of appellant and therefore the court did not err in refusing this one. The other instruction, the refusal of which is complained of by appellant, did not state the law correctly as the effect of it was to ignore the duty of appellant to mark a working place in the mine known to be dangerous.

Counsel for appellant also complain that objections were sustained by the court to several questions asked by them of appellee, on cross-examination. We are inclined to the belief that the questions referred to were improper as asked, but at any rate the substance of them was covered by other questions asked of appellee on cross-examination and answered by him.

The judgment of the court below will be affirmed.

Affirmed.