text:
    Albert Kujawa, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 5,659.
    1. Railroads—death at crossing. Where it is alleged that deceased was struck at a certain street crossing by defendant’s engine and killed, plaintiff to recover must show that deceased, while using due care, came to her death at such crossing because of at least one of the negligent acts charged.
    2. Railroads—crossing accident. A verdict for plaintiff in an action for death alleged to have resulted from injuries at a railroad street crossing cannot be sustained where none of plaintiff’s witnesses saw decedent struck, two women who had been picking up coal testified that the ■ accident happened at the crossing, and defendant’s fireman and engineer testify that they struck decedent some distance away from the crossing and are corroborated by the circumstances proved.
    3. Railroads—crossing accident. In an action against a railway company for death caused by its alleged negligence at a crossing, an instruction as to the result in case “defendant failed and neglected to ring a hell or blow the whistle as charged in one count” is not misleading although a count charges failure to ring a crossing bell, for though it may he construed as applying to the crossing bell such construction is improbable, and neither is it misleading as requiring the defendant to both ring a hell and sound a whistle.
    Action in case for death by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    J. L. O’Donnell, T. F. Donovan and J. A. Bray, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Ban, McNaughton & Ban, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee’s intestate was killed in the city of Joliet on the twenty-fourth day of January, 1911, by a pas-. senger train, on the tracks of appellant, and this snit is brought to recover damages therefor, for the benefit of the next of kin.

The declaration consists of seven counts, each of which alleges that deceased was killed while attempting to go across the tracks of appellant at a street crossing on Ohio street in the city of Joliet. The negligence alleged in the first count of the declaration is negligent and careless driving and management of the engine and cars; by the second count, failure to ring a bell, ór sound a whistle; by the third count, running at a high rate of speed without giving warning, and when the view of the tracks was obstructed by appellant’s cars, negligently permitted to stand on appellant’s tracks near the crossing; by the fourth count, a violation of a city ordinance with reference to gates and flagman; by the fifth count, violation of a city ordinance limiting the speed to twenty miles an hour; by the sixth count, that there were gates and a gate-man, and that appellant had a gateman, and that the gateman failed to lower his gates when the engine and train were approaching the crossing; and by the seventh count, that appellant had a crossing bell at the crossing of Ohio street, which could be rung when a train was approaching the crossing; that deceased relied thereon; that the gateman in charge of the gates at the crossing was in charge of the crossing bell, and that he failed to ring it, $o as to warn persons of the approach of the train, and that in consequence of such failure deceased was struck and killed. Issue was joined, and a trial had. Motions were made at the close of the plaintiff’s case and at the close of all the evidence, respectively, to exclude all evidence, and instruct a verdict of not guilty. The motions were overruled, to which exceptions were duly taken. The jury returned a verdict finding the defendant guilty, and assessing the plaintiff’s damages at $3,000. A motion for a new trial was interposed and overruled, and judgment was entered on the verdict, and the case comes here on appeal.

In order for appellee to recover, it was necessary for Trim to prove (1) that deceased came to her death at the crossing in Ohio street; (2) by reason of some one at least of the acts of negligence charged; (3) while she was in the exercise of due care for her own safety. It becomes the duty of this court to review the evidence, and if we find that upon any one of those three things essential to have been shown by appellee, the finding of the jury is manifestly against the weight of the evidence, then it becomes our duty to reverse the judgment. Trybula v. Plamondon Mfg. Co., 153 Ill. App. 298; Chicago & A. R. Co. v. Heinrich, 157 Ill. 388; Chicago & E. R. Co. v. Meech, 163 Ill. 305; Chicago City Ry. Co. v. Mead, 206 Ill. 174.

Upon a careful consideration of the evidence, we are of the opinion that there is a clear preponderance of the evidence, showing that deceased came to her death, not on Ohio street, but at from fifty to two hundred feet south thereof, and that she was at the latter place, picking up coal, when she was struck, and that her body was carried on the pilot of the engine until after the engine reached Ohio street. No witness for appellee saw deceased struck. The witnesses, Helen Furmankevicz and Mary Zorosta, each testified they did not see the engine strike deceased. These two witnesses were going south, down the Elgin, Joliet & Eastern Eailway tracks which lie some seventy-two feet to the east of appellant’s tracks. It was cold that morning, and rather dark. These women were clad for cold weather, each with some wrap about the head, one with a fascinator over her head, the other with a shawl on her head. They were talking with each other, paying no attention to anything but their own conversation, and while thus walking south on the Elgin, Joliet & Eastern tracks, deceased passed in front of and close to them, at right angles going west. They heard and saw nothing more of her until they heard a scream, and then found deceased had been struck by a train, which they did not see until after they heard the scream.

Appellant’s fireman testified tliat the engine struck the woman one hundred and eighty feet south of Ohio street; that as soon as deceased was struck, they knew they had hit her, and that afterwards he found a hag of coal on the engine pilot. He also testified to finding marks on the ties where something, or somebody, had been dragged over them, and that the marks commenced six rail lengths south of Ohio street, and extended north to the planking in the street, and there stopped. Appellant’s engineer testified that deceased was struck about one hundred and eighty feet south of Ohio street, and that when the engine struck her, she laid back on the pilot, and rode there until they got to Ohio street and that the planks in the street tore her off from the pilot, and she fell on the tracks. Before he struck deceased he saw the coal sack, and saw the woman, and then knew it was a woman. He also testified to the marks on the ties. When the body was found no shoes were on it. Several witnesses, at least two, testified to finding the shoes, one shoe south of the track, the other at the planking. The engineer picked up one shoe that was south of Ohio street, looked at it, probably carried it a little ways while looking at it, and then threw it down.

The engineer testified that when he first saw the woman, the train was going between twelve and fifteen miles an hour, and that at the rate of fifteen miles an hour it would take two seconds to go about fifty feet. Both the engineer and fireman testify that the bell was ringing, and both testify to the sharp blasts of the whistle.' Several other witnesses testify also to the whistle sounding. The gateman testified that he lowered the east gate before the train came to the crossing. When it is borne in mind that the east gates are east of the Elgin, Joliet & Eastern tracks, the* two women first called by appellee might well have been mistaken about the gates being up. It is seventy-two feet from the west rail of the Elgin, Joliet & Eastern tracks to appellant’s east rail. The two women were walking south on the Elgin, Joliet & Eastern tracks. Deceased passed in front of them going west and they proceeded south. It would be just as consistent to believe deceased turned south after passing these women, and before reaching appellant’s tracks, as to believe she kept on west across appellant’s tracks. The engineer and the fireman testified positively to striking deceased south of Ohio street, and carrying her on the pilot of the' engine to the street. They were in a better position to know where she was struck than these two women, who did not see her struck, and who did not notice anything out of the ordinary until they heard the scream. The distance was very short; the time it would take the train to travel that distance was very brief; the women interested only in their own conversation and walking south after they had passed the deceased; these are all circumstances indicating that these women were mistaken as to the place where deceased was struck, and that more time had elapsed, and that they had walked further south than they supposed, when they heard the scream and turned about. There is some evidence, indeed all of appellant’s witnesses who testify to being on the ground so state, that one of the train crew was the first one at the spot where the injured woman was found, and that no women were there until later. In this, however, either the women or appellant’s witnesses might have been mistaken in the excitement of the moment. In our opinion the testimony of the engineer and fireman, corroborated, by the circumstances proven, as it is, is the more reliable evidence as to where deceased was struck. We think the proof shows by a strong preponderance that deceased was not struck by appellant’s engine on Ohio street, but was struck south thereof, and carried north to Ohio street on the engine pilot. Therefore we must reverse the judgment of the court below. Considering the instructions as a series, we find no reversible error in them, although it would have been more technically accurate for the third instruction given for appellee to have stated, “from all the other surrounding circumstances appearing in evidence,” than “from all the other surrounding circumstances appearing on the trial.” Illinois Commercial Men’s Ass’n v. Perrin, 139 Ill. App. 543; Ames v. Thren, 136 Ill. App. 568.

The ninth instruction given for appellee is criticised at quite a length in appellant’s argument. If that instruction means that all appellee was required to prove was that the deceased was exercising due care for her own safety at the time she was actually struck, it would he subject to the ruling in Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, reversing this court in case of the same title, 148 Ill. App. 613. That instruction uses this language, however, “was crossing the railroad track of the defendant on Ohio street at the time she was struck,” and we are disposed to hold that the language used brings the instruction within Hornung v. Decatur Railway & Light Co., 241 Ill. 128, which holds good an instruction similar in that. regard. A very little change of the language, however, would make the instruction clearly include the necessary requirement that she should have been in the exercise of due care as she approached the railroad track. It is also contended this instruction required appellant to both ring a bell and sound a whistle. The language used in that regard is such that lawyers might put different constructions on it, but when you look carefully at it, it is found that it includes this language, “and that the defendant failed and neglected to ring a bell, or blow the whistle as charged in one count of the declaration,” which it seems to us, renders the instruction free from that criticism. There was one count charging failure to ring a crossing bell, and the duty of appellant to ring it. To support that count, it would have required proof of more than the mere failure to ring the crossing bell before appellee could have recovered. It is possible for the language used in this instruction as to a bell to be construed so as to apply to the crossing hell, but in view of the fact that used in the same connection was the language, “as charged in one count of the declaration, ’ ’ such a construction would have been highly improbable, and we do not think the jury were misled in that regard.

If the instruction should be given again, however, it would be better to so modify it as not to lead to the same or similar criticism.

The judgment is reversed and the cause remanded.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Whitney

license: Public Domain

text:
    William P. Coffey, Appellee, v. William G. Sutton et al., Appellants.
    Gen. No. 5,660.
    1. Master and servant—right to assume usual custom will he followed. One employed as a blacksmith about a mine, when directed to repair a stall in connection with a jumbo car, has a right to assume that the usual custom will be followed and that the car will not be pulled without warning.
    2. Evidence—jury to decide controversies of fact. Where a declaration states a cause of action and a prima facie case is made out, it is for the jury to decide the controversies of fact and whether the prima facie case thus made was rebutted.
    3. Appeals and errors—error must he raised in lower court. An alleged error in permitting a juror to question witnesses cannot be first raised in the appellate court.
    4. Master and servant—instructions. Where the declaration excludes the defense of assumed risk, plaintiff has a right to have instructions on that theory.
    5. Master and servant—ignoring defense of assumed rislc. Instructions ignoring the defense of assumed risk are not erroneous where the declaration excludes such a defense.
    6. Damages—cost of X-ray picture. In a personal injury action it is error to admit testimony as to cost of an X-ray picture where it was unnecessary or not ordered by a’physician.
    7. Damages—remittitur of hospital hill. In a personal injury action where the lower courts admits testimony of a hospital bill including an unnecessary X-ray picture, a remittitur is ordered.

      8. Evidence—proof of usual and customary charge. A physician cannot testify to the amount of his hill in a personal injury action where there is no proof of the usual and customary charge.
    Appeal from the Circuit Court of Woodford county; the Hon. Ge'obge W. Patton, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1912.
    Affirmed on remittitur.
    Opinion filed October 15, 1912.
    Thomas Kennedy, R. M. Barnes and McDougall & Chapman, for appellants.
    James A. Reily and McMahon & Rogers, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This case was brought in the court below to recover damages for injuries received by appellee on October 30, 1909, while working as an employee of appellants, at their coal mine in Minonk. The case was tried on two amended counts and one additional count of the declaration. The first amended count of the declaration charges that appellants were possessed of and conducting a coal mine, and were possessed of various buildings, run-ways, tracks and cars used in connection with the mine, and located at, around or near the opening of the mine; and were possessed of a certain track or run-way, made of rails and ties, and other material, upon which track, in the course of their business they operated a certain vehicle known as a “jumbo ear,” used for the purpose of conveying from a point near the shaft of the mine, upon an inclined plane, certain waste material from the mine, for the purpose of dumping and depositing the same in a pile of waste material, which jumbo car was when in motion controlled and handled by means of a cable attached to machinery driven by steam power; and that appellants possessed a certain contrivance called a “stall” located at the lower end of said track, in which stall the jumbo car was loaded with waste materials from time to time; that on the thirtieth day of October, 1909, said stall and a certain post of said stall were out of repair, and that then, and for several months prior thereto, appellee was in the employ of appellants as a blacksmith, wood-worker and repairer; and that on said last mentioned day, appellants ordered appellee to repair said stall and post, and that in obedience to such order, appellee went upon the track, with necessary tools to make such repairs, and then with all due caution for his own safety proceeded to repair the post, and that in making such repairs to said post, it was necessary for appellee to go upon and into said track, in front of said jumbo car; that it became and was the duty of appellants to use reasonable care, and not to unnecessarily expose appellee to danger, and not to cause or allow said jumbo car to be moved or drawn along said track, over the place where appellee was at work, that appellee might safely work in making such repairs; that appellants did not regard their duty in that behalf, neither of whom was a fellow-servant of appellee, but negligently, carelessly, wilfully and wantonly, while appellee was using all due care and caution for his own safety, without cautioning or warning; appellee in any way, and while appellee was at work repairing such post, and while in said track, and in front of said jumbo car, negligently put the machinery in operation, to which said cable was attached, and thereby caused the jumbo car to start up the inclined track, upon and over appellee. «

The second count alleges the same possession of the mine track, jumbo car and stall, and the employment of appellee as a blacksmith, etc., and that said stall was out of repair and that appellants directed appellee to repair the stall, and to force back into place a certain upright or post, which was a part of said stall. Said count further alleges the same necessity of going on the track, and the same duty of appellants, and that it was the custom of appellants, and had been for more than a year prior thereto, not to move said jumbo car out of the stall, over the track, until the blowing or sounding of a certain steam whistle, used by appellants, and that such had been the custom continuously for more than a year, with all of which appellee was conversant, and all of which was known to, and understood by all the other employees of appellants; that appellants had full knowledge that appellee knew all of said rules, and that when he started in obedience to said order to make said repairs he relied upon the enforcement of said rule, or custom; that it was the duty of appellants not to permit or cause said jumbo car to pass over said track without causing one blast, or sound of said whistle, to warn appellee or without first notifying him that said car was about to move in order that appellee might get out of and off from the' track; yet, appellants not regarding their duty in that behalf, but while appellee was so at work making said repairs appellant Webber went from the place where he started to put appellee to work to a steam engine, used by appellants in carrying on their business, and without any warning, and without the whistle being sounded, negligently, carelessly, wilfully and wantonly turned on the steam of said engine, causing said jumbo car to start over said track at a rapid rate of speed, against and over appellee, while he was at work, and in the exercise of all due care and caution for his own safety, and thereby appellee was injured. The additional count alleges possession by appellants of the same mine, track, jumbo car, stall, machinery, etc., and that on the 30th day of October, 1909, the northwest post of said stall was out of repair; that appellants ordered appellee to repair said post, and that in obedience to said order, appellee went upon the track, with all due care and caution, with the necessary tools and apparatus to make such repairs, and proceeded to repair the same, and in so doing it was necessary for appellee to go upon the track in front of said jumbo car, and remain between the rails, and between the ties and track, and to stand upon a certain pile of waste material deposited underneath the track; that it became the duty of appellants to use reasonable care not to unnecessarily expose appellee to danger of injury, and not to cause or allow said jumbo car to be moved over and across the point or place where appellee was at work, that appellee might safely make such repairs; yet appellants not regarding their duty in that behalf, nor using care or diligence, they negligently, without any warning to appellee in any way, while he was at work, and while in front of said jumbo car, put the machinery in operation, and caused the jumbo car to start up the inclined track and over appellee, whereby appellee sustained injuries, which are the subject-matter of this suit. The different counts state the same negligence in different forms, to meet what might occur in evidence. A trial was had, resulting in a verdict and a judgment for $8,000, against appellants, from which they have appealed to this court.

In their brief and argument, appellants take up certain errors assigned, stating at the conclusion of their argument that, “other errors appear in the record we think, but which are not of vital importance, and we have not therefore discussed them.” The errors assigned that are argued, are (1) the verdict is contrary to the weight of the evidence; (2) error in giving* appellants’ instructions; (3) error in modifying appellants’ instructions; (4) error in refusing appellants’ instructions; (5) error in admitting incompetent evidence for appellee; (6) error in excluding proper evidence offered by appellants; (7) error in permitting a juror to question one of appellants; (8) error in permitting prejudicial remarks of appellee’s attorney in the argument of the case.

In order to have a better understanding of the evidence it will be necessary to make a statement at considerable length of the matters involved in the suit.

Appellants were operating a coal mine. Appellee was employed by them as a blacksmith, horseshoer and repairer. To dispose of the waste from the mine, appellants had a kind of railway, or tramway track running up from near the mine shaft, at an angle of about forty-five, degrees, a distance of about seventy-five feet. The track at its lower end was built on a trestle for a few feet, and then was laid on ties embedded in a pile of waste that had accumulated. The car called a “jumbo car” ran on this track, from its lower, end to the top, operated by cable and engine, to carry the waste and dump it near the top. At the lower end of the track there was a frame or rack called a “stall” into which the jumbo car entered to be loaded. The stall was made of posts about six feet apart, three on each side of the track, running in a northerly and southerly direction, mortised into ties, planking or timbers at the bottom, with rods or planking across, and on the top. There was a plank fastened to the posts on each side. The lines of the posts did not run exactly parallel, but the opening at the northerly or upper end of them was a little wider than at the southerly, or lower end, making the stall a little flaring at the northerly end. The jumbo car had doors that operated and locked automatically as the car started to enter the stall. When the car reached and had entered the stall, it was loaded usually with two pit car loads of the waste rock dumped from above through a chute, and then a signal was given by a blast from a steam whistle, which gave warning that the jumbo car was about to be pulled up the inclined track with its load. The use of this warning signal had existed so many years that all of the employees seemed to know what it meant. In the testimony of the witnesses for both sides this practically was alluded to as a custom. The stall and car occasionally required repairs. On the morning of October 30, 1909, the stall was noticed to be in need of repairs, and appellant Webber directed appellee to go and fix it. While appellee was engaged in fixing the stall, appellant Webber pulled the jumbo car, without giving the warning whistle, up the track, and over appellee, who thereby suffered the injuries complained of. It is well to settle some matters of fact about which there is no controversy before taking up other questions that arise on this appeal, namely: Appellants were operating a coal mine with certain machinery including the jumbo car and stall above mentioned; appellee was, and had been for about a year appellants’ employee as a blacksmith; appellee was injured by having the jumbo car run over him; the stall was in need of repairs; appellee was directed by appellants to fix the stall. The custom of sounding the whistle when the jumbo car was about to start with its load is testified to by both sides. Appellee and his witnesses, Gfrescoviak, Schiminski, Spires and Willis testify to it. Appellant Webber, and appellants’ witnesses, Cox, Wadley, Kruse and W. Gf. Sutton, Sutherland, Joe Williams, John Lynch, Shepard, Boy B. Sutton and Kelly testify to it.

The witnesses for both sides speak of the blasts of the whistle as a custom, so it may be considered an established fact that such custom existed, and that appellee and appellants knew of its existence. It is equally clear from the proofs that no whistle was blown when the jumbo car was pulled at the time appellee was hurt. Appellants claim in defense that the custom also existed that when repairs were needed, and were being made on the stall or jumbo car, the custom of giving that warning signal was suspended, and that the repair men took charge, and when the repairs were completed the jumbo car was turned back for operation. Substantially the same witnesses for appellants testify to this custom also. If we are to be governed by appellants’ proofs, we can arrive at no other conclusion than that the jumbo car was never moved at such times. The witness Cox for appellant, testified, “don’t think during the five years that I worked there in the engine room, I ever pulled jumbo, or whistled the signal while the repair men were at work on jumbo, or the stall, or the track, nor did I ever know of anybody else signaling.” Joe Willis for appellants testified, “when the car, stall or track were out of repair, there were no signals given with the whistle at that time. The men who were in charge of the work, always gave orders to the tower men, when they were working on the car, or the stall, not to dump any more rock. Of course, when the rock wasn’t dumped, the whistle was not blown. The tower men knew when the rock was dumped, and had no occasion to blow the whistle. After it was ready for use again, all completed, it was put back in charge of the tower men. No one except those who were repairing the car, stall or track had any control over it during the time repair work was being done.” The witness John Lynch, for appellants, testified, “When the car, stall or track were out of order, and men were repairing it, or about to repair it, the man who was pulling the car, was notified, and the tower men were told not to dump any more rock, or to blow the whistle, until it was repaired. I worked in the engine room six years, the 4th of April next. During that time I never knew -of the jumbo car being pulled, or the whistle signal given from the tower, when the men were engaged in repair work, either on jumbo, the stall, or track.” So that the only logical conclusion is that the jumbo car was never pulled unless the whistle signal was given, whether repairs were going on or not.

Appellee was directed to go from the blacksmith shop and repair the stall, and when he commenced working thereon, he must have understood the custom of doing work around it. He had been employed there in the same line of work for a year before he was hurt, and the stall was occasionally out of repair. He had the right to assume that the usual customs would be followed, and that the jumbo car would not be pulled without warning, no matter where he stood in doing the work, whether on the track, or on the ground. Illinois Steel Co. v. Ziemkowski, 220 Ill. 324; Graham v. Mattoon City Ry. Co., 234 Ill. 483. So the case revolves itself into one which depends very largely on whether he was told by appellant Webber that the jumbo car would have to be pulled, that is, whether he was warned in any way that the car was about to be pulled. Webber says he told appellee “We will have to pull this car and fix it,” to which appellee replied ‘all right, ’ ’ and that he then went away and called to the tower men two or three times before they heard, and told them “don’t dump any more rock into jumbo; I want to pull and fix it. ’ ’ This is denied by appellee. We think the declaration negatives the question of assumed risk. It alleges among other things, that appellants ordered appellee to do the work in question, and acting under those orders, appellee proceeded to do the work, and that appellants, without any warning ran th.e jumbo car over him. There is nothing in appellees proofs that shows appellee was proceeding to make the repairs in question in a careless or negligent manner. There is no question of fellow-servant in this case. We hold that each count of the declaration stated a cause of action, and that appellee made a prima facie case. Corn Product Refining Co. v. Cherry, 140 Ill. App. 1. Whether appellants rebutted the prima facie case thus made by the evidence offered by them, and controversies over the question of fact, were all questions to be passed upon by the jury, who saw and heard the witnesses. There is a controversy as to what was said by appellant Webber to appellee when they first arrived at the place where the repairs were to be made, Webber testifying he said to appellee, “We will have to pull this car and fix it,” and then going to the tower and calling to the tower men not to dump any more rock into jumbo, that he wanted to fix it. One of appellants witnesses testifies substantially to the same thing; while appellee denies that Webber said to him “we will have to pull jumbo and fix it.” A witness for appellee testified that what Webber said to the tower men was, “Don’t dump any more rock into jumbo until it is fixed.” The evidence shows that at that time the machinery was in motion, and making a great deal of noise. Webber testifies he had to call two or three times before he made himself heard. There is also a dispute as to which post on the stall was to be repaired; appellee testifying it was the northwest post, in which he was corroborated by one of his witnesses, who testified that he saw him working at the northwest post; while appellant Webber, and several of appellants witnesses say it was the middle post on the west side. There is a further, controversy as to where was the proper place to stand while making repairs, whether on the track, or on the ground west of the track; appellee’s witnesses saying it was the northwest post, and that if appellee stood on the ground opposite the post, the bottom of it would be as high as his head; while appellant Webber, and some of appellants’ witnesses testify it was the middle post, and that it could not be repaired without moving the jumbo car, and that the proper place to stand while fixing it would have been, not on the track, but on the ground to the west. There is also evidence given for appellee by the witness Grescoviak that Webber. said, when he was informed that appellee had been run over, “My God, what have I done,” and by the witness Dixon, that he was at work for appellants and saw appellee immediately after he was hurt, and that he saw appellant Webber walking past, and then heard him make a remark; that- he must have made the remark to himself, but that witness overheard it; that Webber was looking toward the ground, and that he snapped his fingers and said, “Doggone it, but I forgot he was there,” all of which is denied by Webber, who testified that he said “My God, Coffey, how did you get hurt?” Impeaching evidence of two witnesses was offered as to the witness Dixon, to the effect that Dixon said he hoped Sutton and Webber of the Minonk Coal Company would get stuck for fifty thousand dollars, and that he would do all he could to help stick them. There was also evidence introduced by appellants that appellee said he did not know how he got hurt, and that no one was to blame, and this is sharply denied on the other side. The evidence as to all these controverted points was sharply conflicting, and it was all for the jury to determine where the truth was. They had the advantage of seeing the witnesses, and hearing their testimony. Many of the witnesses were employees of appellants. The jury undoubtedly weighed the testimony of each witness as it was given, and it was their privilege and duty so to do. We are unable to say where the truth is from this record, and therefore cannot say that the verdict is not supported by the weight of the evidence.

It is argued that the damages are excessive. Under the evidence we do not think the verdict should be disturbed on that account. . The rulings upon evidence in the trial court are not seriously objectionable, and we see no reversible error therein, except in the following instances. Dr. Morrison was permitted to testify to the amount of his bill for services for attendance on appellee, after he had testified he did not know the usual and customary charges of surgeons in such cases, and that his bill was seventy-five dollars. No other proof appears that the charge was the usual and customary charge for such services as were rendered by Dr. Morrison. The evidence allowed the jury to take the amount of seventy-five dollars into consideration in making up their verdict. The admission of this evidence was error. Moore v. Aurora, E. & C. R. Co., 150 Ill. App. 484.

Appellee was permitted to testify over appellants’ objection that he paid $104.00 for an X-ray picture, and hospital fees to St. Anthony’s hospital in Chicago. There is no proof that the X-ray picture paid for was ordered by a physician or surgeon, or that it was necessary to appellee’s treatment in any way, and although Dr. Clancey testified to having taken an X-ray picture of appellee’s arm there is no proof that it was the same one paid for to the hospital. Indeed the testimony of Dr. Clancey is that more than one X-ray picture was taken. Appellee paid for one, but which one, cannot be determined from the evidence. There is no evidence of how much the X-ray picture- came to, or how much the hospital fees were. If the hospital fees could be determined, that would be competent evidence. We think the admission of this evidence was also error.

Appellee must remit the amount of $179 or the judgment must be reversed on account of the admission of this incompetent evidence.

The error alleged in permitting a juror to interrogate the witness Webber is not based on any objection made at the trial. It was not specifically mentioned in the motion for a new trial, and cannot now be urged here for the first time. The arguments of counsel are largely within- the control and discretion of the trial court. We cannot see that the trial court abused the discretion it had in that regard. Complaint is made of many of the instructions given, modified, or refused. We cannot refrain from condemning the unusual number thereof. More than sixty instructions, many of them of great length, were handed up ,to the court for him to pass on, presumably at the usual time, at the close of all the evidence, requiring the court to pass upon them during the argument of counsel. The thing to be wondered at is, that they were passed upon with so little error, if any. In the main, the instructions as given, are substantial statements of the law as applied to the evidence given on the trial. Certain of appellee’s instructions directed a verdict without a statement of the law of assumed risk, and it is contended that such are erroneous because of that omission. Each count of the declaration excludes the defense of assumed risk as we have herein above held, and that being so, appellee had the right to have the jury instructed on that theory. Hagen v. Schleuter, 236 Ill. 467. In many respects the criticised instructions have been ruled upon favorably by the Supreme Court. A number of the refused instructions are general propositions of law, not applied to the case, which it is never error to refuse, although frequently not error to give. Many of the refused instructions are embodied in those given; others contain some erroneous element, or some assumption of a different state of the evidence from that shown by the record. The jury was instructed by the 10th of appellee’s instructions that the instructions given constitute one connected body or series, and should be so regarded by them. If they so looked at them, they would not have been misled as to the law of the case. We have gone over the instructions given, modified and given, and refused seriatim, with more than ordinary care, and have read with great care the somewhat voluminous arguments of both parties, and it is thought we have a thorough understanding of them. Appellants had given, and modified and given for them, some twenty-eight or twenty-nine instructions, which with appellee’s instructions, when considered as a series, cover nearly every phase and angle of the law applicable to the case and we believe the jury were fully and fairly instructed. We do not see how the refusal of instructions operated to the prejudice of appellants’ rights. It may be said that the substance of each and all of the refused instructions was embodied in those given, either for appellee or appellants. We think the first instruction is not subject to the criticism that it did not limit the negligence to that alleged in the declaration. The first instruction is not objectionable because it ignores the defense of assumed risk. As is said in the case of Hagen v. Schleuter, 236 Ill. 467: “A party to a suit is entitled to have instructions given presenting his theory of the case, based upon the pleadings and proof. If the opposite party relies upon a different theory repugnant to that of his adversary, it is for him to ask for instructions presenting Ms theory of the case.” And again, in Devaney v. Otis Elevator Co., 251 Ill. 28, the Supreme Court says “that the objection that the instructions for plaintiff did not negative assumed risk, is only available where some affirmative defense is not negatived by the averments of the declaration.” We think under the evidence, the second instruction was properly given. That instruction does not state any assumption of negligence, nor for the reasons above stated is the criticism proper that it ignores the question of assumed risk. Under the evidence, it was proper to instruct the jury as was done by plaintiff’s third Mstruction concerning the employment of doctors and surgeons. The fourth instruction required the plaintiff not only to be in the exercise of due care for his own safety at the time he was working between the rails, but it required him to be in the exercise of ordinary care at the time he was injured. We think that instruction was properly given. The words “due care,” in that instruction, and ordinary care mean one and the same thing. The fifth, sixth and eighth instructions we deem were properly given. The doctrine stated in the 13th instruction was approved by the Supreme Court in the case of South Chicago City Ry. Co. v. McDonald, 196 Ill. 203. That instruction told the jury they were the sole judges of the questions of fact in the case, and that the court did not, by any instruction given to the jury in the case, intend to instruct the jury as to what conclusion they should arrive at, as to any question, or questions of fact in the case. It seems to be taken almost literally from South Chicago City Ry. Co. v. McDonald, supra.

The 15th instruction as is stated in appellee’s brief was approved verbatim in the Supreme Court in the case of Eblin v. American Car & Foundry Co., 238 Ill. 176. The 18th instruction is not as strong as it might have been and still be the law. Appellants’ modified instruction No. 40 was a correct statement of the law. as applied to the declaration in the case. In Mitchell v. Libby, McNeill & Libby, 149 Ill. App. 201, the court decided that “due care,” “ordinary care,” and “reasonable care," are convertible terms; therefore we see no error in the modification of the 43rd instruction. The 49th instruction given of the court’s own motion, is substantially the same as the 54th instruction which was refused, and there was no error in the court giving that or in refusing the 54th. The modification of the 46th instruction is also criticised, and we agree with appellee it should not have been given at all. It was not based on the evidence, or any fair theory of the evidence. The 47th instruction was modified the same as the 46th, and what is said in regard to the 46th instruction applies with equal force to the 47th. Appellants’ instruction No. 50, which was refused, is an abstract proposition of law, not applied to the case, and could properly be refused for that reason, but the substance of it is embodied in the instructions given for appellants, Nos. 47, 48 and 32, as were also appellants instructions Nos. 51 and 52, which were refused. The 53rd instruction was properly refused because only the additional count of the declaration referred to the northwest post of the stall. By instruction No. 37 given, appellants had the benefit of all they were entitled to. The 55th instruction refused was a mere abstract proposition of law. The substance of the 56th instruction refused was contained in the 24th, 33rd, 34th, 35th, 36th, 42nd and 43rd instructions given. The 57th and 58th instructions were embodied in substance in the 32nd, 47th and 48th instructions, which were given. We do not regard the record as showing evidence on which to base the 59th refused instruction. The 60th instruction refused was embodied in the 27th, which was given. The 61st instruction was practically embodied in the 46th, 47th and 48th instructions given.

Upon the filing of a remittitur, within five days, in the sum of $179.00 the judgment of the lower court will be affirmed in the snm of $7,821.00 at appellee’s costs. If said remittitur is not filed within said five days, the judgment of the court below will be reversed.

Affirmed upon remittitur.

Appellee having filed a remittitur herein in the sum of $179.00 the judgment is therefore affirmed in the sum of $7,821.00 at the costs of appellee.


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    D. I. Bauer, Appellee, v. The Illinois Central Railroad Company, Appellant.
    Gen. No. 5,663.
    1. Bill op lading—not necessary to recovery. The loss of a bill of lading is not a bar to recovery for value of goods where it is shown to have been issued by the agent of the carrier.
    2. Agency—carriers. Where a clerk, apparently in charge of a freight office, receives an order for reshipment and enters it upon the books, his authority is sufficiently shown to bind the company.
    3. Carriers—responsible for shipment to destination. A common carrier, receiving goods for shipment to a certain point and issuing a bill of lading, under the law of this state becomes responsible for shipment to such point regardless of whether it can do so directly or by contract with other lines.
    4. Carriers—right of stoppage in transitu. The right of a consignor to stoppage in transitu remains so long as the goods are in possession of the carrier.
    5. Carriers—prepayment of freight charges. Under R. S. § 22, of the act in relation to fencing and operating railroads, a shipper is not bound to prepay the charges unless they are demanded.
    6. Bill op lading—sufficiently accounted for. Where the last trace of a bill of lading shows it was in the hands of the chief clerk at the freight house, it is sufficiently accounted for to defeat the contention of carrier, in an action by consignor, that it may be liable to consignee.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.

      Hunter & Schneider, for appellant; John Gr. Drennan, of counsel.
    Cooper & Hobbie, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This suit was brought by appellee against appellant before a justice of the peace, and tried in the Circuit Court on appeal, where appellee obtained a judgment for $113.80 full amount of claim.

Appellee received a shipment of goods from Slater & Morrill, Inc., whose salesrooms are at Boston, and who wrote letters from South Braintree, Massachusetts. Appellee received the goods at his store in Kankakee, and was dissatisfied with them, and boxed them up, and took them to appellant’s freight house in Kankakee, and shipped them to Boston. Afterward, appellee received a letter from Slater & Morrill to the effect that they would not take back the goods, and advised appellee to recall the goods.

It would appear that after after this suit was probably begun, at any rate long after the goods were shipped back to Slater & Morrill, Slater & Morrill sued appellee for the price of the goods and he paid the bill. When appellee’s clerk ordered the goods returned, the chief clerk of appellant at Kankakee entered a notation upon the books of appellant that the goods were ordered returned. Appellant did not return the goods, and thereafter appellee brought this suit to recover the value. The judgment is for what the goods cost appellee. The defendant in the court below appeals.

Appellant contends that the bill of lading is not properly accounted for, and that appellant may be liable to Slater & Morrill, but not to appellee. Appellee testified he did not send the bill of lading to Slater & Morrill, but a copy of it. Afterwards, on cross-examination, he was less certain about that, and finally said he supposed he must have sent it, but did not remember doing so. That is not all the evidence on the subject however. Appellee testified when he sent the bos back to appellant, he gave the bill of lading to one of his clerks, and sent him to the railroad company with directions to order the goods returned. The clerk is not a witness, but Newberger, a clerk for appellee, testified that appellee told him to go to the Illinois Central Eailroad Company, and get a duplicate of the entry on their books, which he did. Brown, who was then the chief clerk in the freight house of appellant, and a witness for appellee on the trial in the court below, testified that either appellee, or someone from his place of business, came to him and requested that this shipment be returned to Kankakee, and that he wrote the notation on the books, said notation below the headings of different columns, giving the name of the shipper, consignee, etc., was as follows, “Ordered returned to K. K. K. D. W. Gr. B-4-19.”

“D. W. Gr.” were the initials of appellant’s agent at Kankakee. “B.” was the initial of Brown, and “4-19” the date when this entry was made. Brown further testified that he had in his hands the original bill of lading at that time, and that he did not know what became of it, but that he did not deliver it to appellee. It was also proven that the goods when originally returned by appellee were delivered to appellant’s freight house, marked, “Slater & Morrill, Boston, Mass.” and that the goods were there accepted by the agent of appellant, and bill of lading issued and delivered to the drayman, and by the dray-man returned to appellee.

There is testimony by Brown that when this order for the return of the goods was entered by him on the books of appellant, he had in his hands the original bill of lading, but it is not fully contained in the abstract of the testimony, but is found in the transcript on page 51. This puts the original bill of lading in the possession of the chief clerk of appellant, at its freight house at Kankakee, with orders to have the goods returned and the original consignees of the goods, Slater & Morrill, had, on April 2nd, written to appellee that they felt appellee should recall these goods and use them according to the terms óf his contract, in which letter they also stated that they did not see how they could accept the goods. The last that is shown of the bill of lading is that it was in the hands of the chief clerk at the freight house in Kankakee ; and it does not appear by the evidence that this bill of lading was ever in the hands of Slater & Morrill; and under the circumstances, with that bill of lading so fully accounted for, its existence should be no bar to a recovery by appellee for the value of these goods. Appellant contends it is not shown that Brown, the chief clerk of appellant, had any authority to agree that the goods should be returned. Brown testified he was chief clerk, and if the agent and assistant agent were both out of the freight house, he had full authority. We are of the opinion that that, and the fact he did receive the order and the goods, and made the entry upon the books, and that he was then in the freight office, is sufficient to show his authority to bind the company. We do not believe it is incumbent upon business men coming to a freight office, to take action in reference to the shipment of goods, to inquire what rank the man in apparent charge holds and to inquire specially where the agent, or assistant agent is, and make sure they are not somewhere on the premises, before he can safely give his orders to the man in apparent charge. We think the appellant was bound by the action of its clerk, Brown, the name of whose office implies he can perform such duties. There can be no doubt, by accepting the order for the reshipment of the goods, making the entry on the book, then having the goods in its possession, the company agreed to have the goods sent back. . There is no evidence that appellant ever notified appellee that it would not perform that order. Appellant also urges that its line does not run to Boston, and that the goods must have passed into the hands of some connecting carrier. There is no such proof in the record. The proof is that appellant received the goods for shipment to Boston, and issued the hill of lading and under the law of this state it became responsible for the shipment, whether it had by contract, or otherwise, power to deliver the goods in Boston, either over its own line or other lines with which it had a contract. If it had any lack of ability to ship these goods to Boston, because Boston was not on its own line, it should have notified appellee, when he ordered the goods shipped back there, and that it could not take the order. When the goods were delivered to it, and it received them, it became a common carrier, and that relation continues until the contrary is shown; and there is no showing in this record but that the goods were still in appellant’s possession as a common carrier, when the order to return the goods was received, and the right of stoppage in transitu existed while they still were in the hands of appellant as a common carrier. Peoria & P. U. R. Co. v. U. S. Rolling-Stock Co., 136 Ill. 643; Lewis v. Galena & C. U. R. Co., 40 Ill. 281; Howell v. Morlan, 78 Ill. 162; Adams Exp. Co. v. Stettaners, 61 Ill. 184. Appellant argues that the goods must have reached Boston, and must have gone into the warehouse, but that was for the appellant to prove, and it did not prove that.

Appellant contended that appellee should pay the charges for the return of the goods. Under our statute a shipper is not bound to prepay the charges unless prepayment is demanded, and there is no proof any prepayment was demanded. (Section 22 of the act in relation to fencing and operating railroads.)

Appellant argues as if the proof showed the goods had reached South Braintree. There is no such proof. The only reference to South Braintree is in the letters of Slater & Morrill, one offered by appellee, and one by appellant, but neither of these letters say that the goods were in South Braintree; and if they were, that is not Boston, to which they were shipped.

We are of opinion that a sufficient case was made to call upon the appellant to show something which would relieve it from liability. It received these goods for shipment to Boston; the shipment was countermanded, and the original bill of lading was put into appellant’s hands; it accepted the order for re shipment, and accepted the original bill of lading, and made no objection of any kind, and no request for prepayment of freight, and it did not return the goods. It shows no excuse for not returning the goods. So far as the proof shows, it has the goods at the present time, therefore appellant must be held liable.

We see no reversible error in the record. Judgment affirmed.

Affirmed.


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    Eleanor M. Truman, Appellee, v. C. G. Reiss, Appellant.
    Gen. No. 5,679.
    1. Landlord and tenant—what may not be offset against claim for rent. It would seem, that as long as a tenant remains in the use and occupation of premises, he cannot offset any damages because of inconvenience to him in such use as against rent, hence no contract of the landlord tending merely to diminish the enjoyment of the premises can be offset.
    2. Landlord and tenant—when complaints by tenant waived. Past complaints are waived by a tenant who pays all the rent for the months in which occasion for complaint existed.
    3. Landlord and tenant—measure of damages when tenant seeks to recoup against claim for rent. Where a tenant seeks to recoup against a claim for rent, the measure of damages is the difference between the contract price agreed on as rent and the rental value of the premises in the condition they were placed by the landlord’s action.
    4. Landlord and tenant—what evidence properly excluded, where tendant seeks to recoup in action for rent.. In an action for rent, where defendant seeks to recoup for failure to properly heat the premises, it is not error to exclude testimony as to failure to heat for a period during which the rent was paid.
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fabband, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Wingert & Wingert, for appellant.
    H. A. Brooks and Henry C. Warner, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This is an action to recover rent, brought by appellee against appellant, who was the guarantor on a lease given by appellee to one B. A. Bodesch. The lease was for five years from September 1, 1907, at sixty dollars per month, and it contained a covenant that appellee would comfortably heat the leased premises between the hours of seven o’clock a. m. and ten thirty o’clock p. m. The period for which rent was-sought to be recovered by appellee was for the months of February, March, April and May, 1911. Appellant does not dispute the fact that the rent was actually due for those months, but claims certain damages, or the right to recoup certain damages, which the tenant is alleged to have sustained by reason of the failure of appellee to comfortably heat the building.

It is claimed to have been error for the trial court to exclude testimony offered by appellant to show failure to heat the building for a period during which the rent had been paid. The court, however, allowed proof of damages, which the tenant is alleged to have suffered during the months for which the rent is sought to be recovered. The trial in the court below resulted in a verdict and judgment' in favor of appellee for the full amount of rent claimed, namely, $240.

Error of the trial court is also alleged in instructing the jury, or rather in refusing to instruct the jury, or not instructing the jury in relation to the measure of damages, it being claimed by appellant that he could claim whatever damages, proceeding from any cause, he might have sustained at all times during the term of the lease. The trial court, however, had in mind that the true measure of damages was the difference between the contract price agreed to be paid for the rent, and the actual rental value of the premises, as shown by the evidence, during the time for which the rent was sought to be recovered. The lease contained an independent covenant to pay rent on the part of the tenant, and an independent covenant to heat the building on the part of the landlord. The real question involved in the case is, under the lease, could damages be recouped which had accrued prior to the first day of February, 1911, as well as afterward. The law seems to be clearly laid down in Garrett v. Conner, 155 Ill. App. 161, which case refers to the rule laid down by the Supreme Court in the following cases, Rubens v. Hill, 213 Ill. 541; Keating v. Springer, 146 Ill. 495; Chicago Legal News Co. v. Browne, 103 Ill. 317. In Garrett v. Conner, supra, it is held that the measure of damages, where a tenant seeks to recoup against a-claim for rent, is the difference between the rental value for which the premises were contracted at the time of the lease, and the rental value in the condition in which they were placed by the action of the landlord. It is also held in the last mentioned case that as long as the tenant continues in the use and occupation of the premises, he cannot offset as against the rent contracted to be paid any damages by reason of inconvenience to him in such use and occupation, and any conduct of the landlord which merely tends to diminish the beneficial enjoyment of the premises cannot be offset as against the rent contracted to be paid. In Orcutt v. Isham, 70 Ill. App. 102, it is held that all complaints that may have existed in the past, are waived by the tenant paying all the rent for the months in which occasion for complaint existed.

The ruling of the trial court excluding evidence, and in the giving of the instructions seem to be based on this theory of the law.

No error is found in the rulings of the trial court on questions of evidence, or in instructions given or refused, or modifications of instructions. Judgment affirmed.

Affirmed.


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    Sarah E. Smith, Administratrix, Appellee, v. Kewanee Light & Power Company, Appellant.
    Gen. No. 5,682.
    1. Death—when evidence of careful habits of deceased admissible. It is proper to admit evidence of the careful habits of deceased in an action for his death, where he was repairing certain telephone wires which passed above high potential wires of defendant and a witness looking up, on hearing a crackling sound, saw him on a cross-arm of defendant’s pole, waving back and .forth, and saw him fall and catch on a feed wire, from which he was taken dead, the evidence being conflicting whether it was reasonably necessary under the circumstances to come in contact with the wire or to go on the cross-arm.
    2. Witnesses—who not qualified as expert. A witness who has never seen the insulation on wires, the imperfection of which it is alleged caused the death for which action is brought, is not qualified to testify as an expert concerning said insulation.
    3. Electricity—care required of users. One using electricity must use care commensurate with the danger.
    4. Electricity—duty of light company towards workman on wires above. An instruction ignores the element as to whether defendant owed deceased a duty to insulate its wires at the point where he was killed, and does not accurately state the law where it states that defendant, whose wires were below those of the telephone company which employed deceased, owed deceased a duty to insulate its wires where he might be called upon to work, whether he was rightfully or wrongfully, reasonably or unreasonably, on the pole of defendant at the place of the accident, or whether defendant knew, or by ordinary care might have known, that deceased, in the line of his duty, might or would get on such pole or come in contact with its wires and whether contact at such point might result injuriously.
    Action in case for death by alleged wrongful act. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Morse & Demerath, for appellant.
    Thomas J. Welch, N. F. Anderson and James H. Andrews, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This is an action on the case brought by appellee to recover damages for the benefit of next of kin, occasioned by her intestate losing his life while engaged in working as a lineman for the Home Telephone Company, repairing its line, whose poles and wires ran parallel with, in proximity to, and a few feet above the poles and wires of appellant, in the city of Kewanee.

The declaration alleges negligence, in substance that appellant knew, or by the exercise of ordinary care, might have known the relative location of the wires of the two companies, and that in the necessary repairing of the lines of the telephone company, its employees would have to pass along its wires, suspended from certain straps hanging down therefrom some eighteen inches, and that said employees were, without any negligence on their part, liable to come in contact with the wires of appellant at the intersection of Tremont and Fifth streets; that appellee’s intestate, on the 27th day of May, 1908, was necessarily engaged in making repairs on the telephone lines, and was seated suspended in a strap or saddle on the wires of the telephone company, using all due care for his own safety, and came in contact with appellant’s wires, which were not insulated, or were defectively insulated, which the deceased did not know, and all of which appellant knew, or by the exercise of ordinary care might have known, and that appellee’s intestate was thereby electrocuted; that appellant’s rights to maintain a line in the streets of the city were defined in a certain ordinance, which provided among other things that appellant’s lines should be so constructed, and of such a kind and character as to be as safe as could be made by the best known method of construction, and that they were not so constructed and maintained; that appellant’s wires were permitted to be without proper or sufficient insulation to protect persons coming in contact with them; and that deceased, while working at his duties, necessarily came in contact with the wires of appellant.

We have stated in substance sufficient of the several counts in the declaration for the purpose of considering this appeal.

Issue was made up, and a trial had, appellant offering no evidence, resulting in a verdict and judgment for appellee of eight thousand dollars, and the case is brought here by appeal.

The evidence shows that after the lines of both companies had been erected (the telephone lines above those of appellant), appellant established several high potential wires about two feet below the telephone wires, and above the other potential wires of appellant. The poles of the two companies were about equidistant apart, near the intersection of said Tremont and Fifth streets, and so located that the posts of appellant came about midway between the poles of the. teléphone company. The poles of appellant had cross-arms on them to hold up the wires. The accident occurred near or at appellant’s pole, standing-near the said street intersection. Appellee’s intestate was working at his duties as a lineman for the telephone company, passing along a wire called a messenger wire of the telephone company in a saddle or looped strap suspended from the messenger wire. This saddle was a looped strap with a hook at each end, and the lineman at work hooked each end of the strap to the messenger wire, and seating himself in the loop which hung down about eighteen inches moved himself along from time to time as he wished, and as the necessity of his work required. The messenger wire sagged some with the weight of the lineman. When he reached the pole of appellant, near said street intersection, he was about one-half way between the poles of the telephone company, and naturally at the point of the greatest sag of the messenger wire. The weight of the lineman, seated in the saddle, brought him down toward said high potential wires at least eighteen inches, and as much more as his weight caused the messenger wire to sag. It is safe to say that it cannot be determined from the evidence whether or not the lineman, when he reached appellant’s pole, had to pass over the high potential wires of appellant. Deceased was seen by the witness Doye standing on one of the cross-arms of appellant’s pole. His attention was directed by a crackling like sound, a noise something like a person stepping on a match head, before he saw the deceased. The deceased stood on the cross-arm, facing east, stooping over to the east, with his hands extended, not having hold of anything, waving back and forth. He fell backward, and his climber caught on a feed wire, and he then hung suspended head downward in mid-air, and was soon after taken down dead. Whether he was compelled to get out of his saddle and climb over these high potential wires at said pole by getting onto one of the cross-arms of appellant’s pole, is one of the vital points in this case rendering the case a very close one, and one of the very things that might show liability, or the reverse, of appellant. A small spot, at or near the point where deceased was seen standing on the cross-arm, in the insulation of one of these high potential wires, which usually carried two thousand volts of electricity, was discovered soon after the death of the lineman—a charred spot of about one half inch in diameter. While it is undoubtedly beyond dispute that two thousand volts of electricity would kill, still it is not very clear from the proofs whether electricity escaped from this charred spot and killed the lineman. We can only judge from the circumstances showing that there was a charred spot in the insulation at, or very near, to the place where he was first seen before he fell; and just before he was seen by the witness Doye, witness heard the crackling sound; that he then fell, and was taken dead from the wire where he hung suspended after he fell and caught on that wire. We are of the opinion that he was killed by electricity from appellant’s high potential wire. In order for appellee to recover, however, it was necessary for her to show that the location of the messenger wire and other wires of the telephone company, with relation to appellant’s wire, was such that it might reasonably be necessary for a lineman of the telephone company to go onto ■appellant’s said pole, or to come in contact with appellant’s wires; and that appellant knew, or might by reasonable foresight have known, that contact of an employee with its wires would be likely to result, or might result, fatally, and that the insulation of these high potential wires was imperfect, and had been so long before; that appellant should have known of and remedied their imperfect condition; and that appellee’s intestate did in fact come in contact with these high potential wires, where not sufficiently insulated, and thereby suffered death.

The proof is sufficient to justify the jury in believing that death was not caused by electricity from the telephone company’s wires. There was evidence offered on general lines of the kind and character of "the insulation of appellant’s wires, to show that appellant had not constructed its lines and maintained them, according to the provision of the ordinance, under which it was occupying the streets; that is that it was not so constructed and of such a kind and character as to be as safe as could be made by the best known method of construction. We are not satisfied, from the character of the proof offered for that purpose, that it was not properly constructed and maintained. The witnesses offered for that purpose did not, as it appears to us, come up to the proper standard of experts to pass on that question.

The vital question of facts as to this, and the location of each company’s wires with reference to each other, and whether a lineman of the telephone company would naturally, or reasonably, have occasion to come in contact with appellant’s high potential wires, are supported, if at all, by evidence of a very unsatisfactory character. It is an exceedingly close case on the questions of fact, to say the least, and while we would be loathe to disturb the finding of a jury on questions of fact, where they had been accurately instructed as to the law of the case, we feel they were not as accurately instructed as appellant had a right to expect, and that the judgment ought to be reversed. The court permitted evidence to be offered of the careful habits of deceased. This was proper, if there were no eyewitness to the death. If deceased was electrocuted, it was when the crackling noise was heard before he was seen by the witness Doye.

We are of the opinion that under the circumstances the evidence was properly admitted as tending to show the exercise of due care on the part of deceased.

The witness Shields, who had not seen the insulation upon appellants wire at the place in question, was permitted to testify for appellee as an expert concerning said insulation, and to state its imperfections and what would have been a proper insulation. This was admitted over repeated objections that the witness had not qualified to testify as an expert. We are of opinion that it was not shown that Shields was qualified to testify as an expert, and that these objections should have been sustained.

The first instruction given for appellee was as follows :

“You are instructed that the defendant owed the duty to the plaintiff’s son, to insulate its high tension wires, if the preponderance of the evidence shows the said defendant’s wires were high tension wires, at such places as said plaintiff’s son might be called upon to work, if he, exercising ordinary care for his own safety, might come in contact with such wires in the discharge of his duties, and that the defendant was bound to exercise ordinary care in the making of such insulation; and ordinary care is such care as is commensurate with the dangers of such high tension wires, if any, and such care as an ordinarily cautious person would exercise in like circumstances if his own matters and concerns were under consideration; and in this case, if you find from the preponderance of the evidence, that the defendant failed to exercise such care and caution for the safety of the plaintiff’s son, then the defendant has been shown to have been negligent in the matter of the insulation of its high tension wires, and in passing on this question, it is your duty to so find.”

The law is that a person using electricity is bound to use such care as is commensurate with the danger. This instruction, in effect, told the jury that, at such places as plaintiff’s son might be called upon to work, the defendant owed him the duty to insulate its wires, whether or not deceased was rightfully or wrongfully, reasonably or unreasonably on appellant’s pole at the place in question, or whether or not appellant knew, or by the exercise of ordinary care might have known, that deceased, in the line of his duty, might, or would get on its pole, or come in contact with its wires at that point, and whether or not contact with its wires at that point might result injuriously.

The deceased might have been using due care for his own safety in the discharge of his duties at a place where appellant owed him no duty, and if it owed him no duty, it was not negligent. Whether or not appellant owed him a duty to insulate its wires at the place where he was killed, was one of the questions necessarily involved in the trial and the instruction ignores that element. The instruction does not accurately state the law, and as we have above stated, in that regard this case is a close one on the vital question of fact involved, and, therefore, one in which appellant was entitled to have the jury accurately instructed.

For this and other errors above stated, the judgment of the court below is reversed and the cause remanded.

jReversed and remanded.


author: Mr. Justice McSurely

text:
    Frank Chambers, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,389.
    1. Damages—testimony as to possible future consequences of injuries is reversible error. Testimony as to what will he the termination or result of injuries, “ it is very likely epilepsy,” and “epilepsy may result from the continuation of irritation,” is as to possible future consequences and is error so serious as to require a reversal.
    2. Damages-—future consequences of injury. Inquiries as to the future consequences of injuries received must be confined to those which are reasonably certain to occur.
    3. Street railroads—when instruction on due care is erroneous. Where a person riding in a buggy is injured in a collision with a street car, an instruction for the plaintiff defining ordinary care as the care which a person of ordinary prudence “would usually exercise under the same or similar circumstances,” is improper in dis: regarding a material inquiry as to whether a person of ordinary prudence would have permitted himself to be in a situation plaintiff was in and he surrounded by the same or similar circumstances.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.

      Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 29, 1912.
    John E. Kehoe, C. Le Boy Brown and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Bice & O’Neil and Caswell & Healy, for appellee; Daniel M. Healy, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Frank Chambers, appellee, having obtained a judgment against the Chicago City Bailway Company in an action on the case for personal injuries, appellant has brought the case to this court for review. Chambers received the injuries as the result of a collision between a street car belonging to appellant, and a buggy in which appellee was riding. The street car was going north on State street; the buggy was going south on the same street, but was turned eastward at Congress street, and while crossing the east or northbound track on State street was struck by the northbound car in question.

As we shall reverse this case for errors committed upon the trial, we do not now state or discuss the evidence concerning the happening of the accident.

Dr. Donlon, testifying for" the plaintiff upon the trial touching the injuries received, was asked “as to what would be the termination of such a case”, and over objection answered, “It is very likely epilepsy.” Dr. Murdock, testifying on the same matter on behalf of plaintiff, when asked as to what may result, replied, “Epilepsy may result from the continuation of this character of irritation.” It has repeatedly been held that to permit testimony as to possible future consequences of injuries received in error so. serious as to require a reversal. Inquiries as to future consequences must be confined to those which are reasonably certain to occur. Chicago Union Traction Co. v Lauth, 216 Ill. 176; Lauth v. Chicago Union Traction Co., 244 Ill. 244; Chicago & E. I. R. Co. v. Donworth, 203 Ill. 192; Chicago City R. Co. v. Henry, 218 Ill. 92; Shaughnessy v. Holt, 236 Ill. 485; Pittsburgh, Ft. W. & C. R. Co. v. Moore, 110 Ill. App. 304, and many other cases. These decisions are so well known to the bar that no quotations from them are necessary; they are conclusive- upon this question.

We are also of the opinion that instruction No. 3 given at plaintiff’s request should not have been given in this case. Its definition of ordinary care as the care which a person of ordinary-prudence “would usually exercise under the same or similar circumstances,” disregards the material inquiry as to whether a person of ordinary prudence would have permitted himself to be in the situation plaintiff was in and be surrounded by the same or similar circumstances. For this reason the giving of a similar instruction was strongly criticised in North Chicago St. R. Co. v. Cossar, 203 Ill. 608.

As to the point that the trial court should have permitted the witness Cronin to testify we express no opinion, as upon the next trial his testimony may be available.

For the reasons given the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Peter Gary, a minor, by Peter Gary, Sr. his next friend, Appellee, v. Clara P. C. Arnold, Administratrix, Appellant.
    Gen. No. 17,399.
    1. Animals—when vicious disposition need not he shown. Where a driver delivering coal unfastens the trace of a horse, whereby a boy is kicked, and the action is founded on negligence in placing the wagon and horses upon the sidewalk and in violating an ordinance, it is not necessary to allege and prove that the horse was a vicious horse, of which the owner had knowledge.
    2. Animals—when coal driver unhitching horse is negligent. Where a driver delivering coal backed the wagon up to the sidewalk and unhitched the trace of a horse, whereby the horse swung around with its hind feet upon the sidewalk and kicked a boy passing 'by while the driver was in a coal hole leveling off the coal, and there is evidence that the boy had not disturbed the horse, a verdict for the boy will be sustained.
    3. Animals—when negligence of boy passing by horse is for the jury. Where a coal driver unhitched a horse, whereby it swung around with its hind feet upon a pavement and kicked a boy passing by, whether it was contributory negligence for the boy to walk near the horse is for the jury.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    William Street, for appellant.
    Cruice & Langille, for appellee; Daniel L. Critics, A. S. Langille and O. J. C. Wray, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Peter Gary, hereinafter called plaintiff, in July, 1905, then eleven years of age, was injured by a kick from a horse belonging to E. B. Arnold, hereinafter called defendant. Suit was brought and the case tried by a jury, which returned a verdict for the plaintiff and assessed the damages at $1,000, upon which judgment was entered from which defendant has appealed.

Briefly stated, the evidence tended to prove that the defendant’s driver had three horses hitched to a coal wagon, all belonging to the defendant; that the driver was delivering coal to a business place on Ontario street and that he backed the wagon up to the sidewalk opposite a coal hole in the walk and swung the horses around so that they stood parallel with the sidewalk. He unhitched the trace of the horse nearest the sidewalk and thereupon this horse swung around with its hind feet on the sidewalk, and was permitted to stand in this position while the coal was unloaded. While the driver was down in the coal hole leveling off the coal, which had been unloaded from the rear end of his wagon, the plaintiff, who lived nearby, with.,a boy companion came along on the sidewalk, and as plaintiff passed by about three feet from the horse on the sidewalk it kicked him. There was testimony that the boys had done nothing to the horse to cause bfm to kick. As the result of the kick plaintiff suffered a compound fracture of the right thigh bone, the effects of which still existed at the time of the trial, which was about five years after the occurrence.

It is urged as ground for a reversal that the court erred in permitting evidence to be submitted to the jury under the declaration; that it was necessary to allege and prove that the horse was a vicious horse, of which the owner had knowledge. But the negligence alleged in the declaration is not based upon the temper or disposition of the horse, but upon the conduct of the owner in so placing his wagon and horses upon the sidewalk, and that this was in violation of the city ordinance. The evidence admitted was proper under the declaration.

It is also urged that the trial court erred in failing to instruct the jury to find the defendant not guilty, and it is argued that upon the facts appearing in evidence this court should reverse without remanding. We are not of this opinion. The facts clearly support the allegations of negligence contained in one or more counts of the declaration, and the jury was justified in finding the defendant guilty.

The claim that the plaintiff was guilty of contributory negligence is not supported by any evidence. The question as to whether or not it was contributory negligence for the plaintiff to walk as near to the horse as he did was for the jury to determine, and their verdict in this regard will not be disturbed.

Complaint is made of the court’s action in giving and refusing certain instructions, hut such complaints are without merit.

The judgment will be affirmed.

Affirmed.


text:
    Rebecca H. Quimby, v. Walter Reynolds Quimby et al. On Appeal of Illinois Manual Training School Farm, v. The Legal Representatives of Mary A. Hall, deceased, et al., Appellees.
    Gen. No. 17,424.
    1. Chabities—test in determining whether will evidences a general charitable intent. In construing a bequest, where a devisee has ceased to exist, to determine whether the will evidenced a general charitable intent in order to determine whether the doctrine of cy pres can be invoked, the test is, whether the bequest is to a cause or for a purpose, or to aid and further a plan or scheme of public benefit.
    2. Chabities—when doctrine of cy pres cannot be invoked. Where at the time of the vesting of a bequest a devisee has ceased to carry on charitable work, in construing the bequest to determine whether it evidences a general charitable intent, the fact that the devisee was engaged in charitable work for needy boys and girls and that the gift was for a charitable purpose does not evidence a general charitable intent, and the doctrine of cy pres cannot be invoked.

      3. Charities—gifts are favored. Gifts to charity are especially favored, in law, and courts will be keen-sighted to discover an intention to make a gift to charity.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Thomas E. D. Bradley and Elmer A. Boat, for appellant.
    Charles Lane, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Jane E. Reynolds by her will dated September 4, 1889, devised and bequeathed her entire estate to Benjamin F. Quimby, upon certain trusts therein mentioned, “giving to him as such trustee such power and authority over the property * * * as may be necessary to carry my intentions into effect in the execution of my will.”

The controversy before us arises over the bequest of the remainder of her estate, which is as follows:

“I further direct my said executor to give and convey all the remainder of my estate, goods and chattels to my beloved grandson Walter Reynolds Quimby, whenever he may appear and make claim to or for the same. If, however, at the expiration of five years from the date of my said decease, my said grandson does not so appear and at the end of such period of five years it is not known that my said grandson is living, I hereby direct that all that may remain of the money and amounts due me which may be collected by my said executor or trustee, with the accumulated interest, shall be paid to the Chicago Waif’s Mission and Training School.”

The grandson, Walter Quimby, never appeared. He had disappeared in 1880, some nine years prior to the making of the will, and was never found. It is alleged in the answer filed by the heirs claiming the fund that he is dead, that he died before the death of Jane E. Reynolds, and the decree entered by the chancellor so finds.

The Chicago Waif’s Mission and Training School was a voluntary association conducting a Sunday School for neglected children in the city of Chicago, and afterwards in addition to religious services began looking after the temporal welfare of dependent boys. It was organized as a corporation not for profit on January 22, 1889, the objects, as stated in its articles of incorporation, being “to provide suitable homes for the homeless and the dependent and needy boys and girls- in the State of Illinois, wherein they may be properly cared for while they are being educated and taught some useful trade or occupation, and aid them in various other ways.”

Mrs. Reynolds, the testatrix, having died on November 17, 1894, the five years within which her grandson, Walter Quimby, could claim the bequest to him expired on November 17, 1899. At that time the Chicago Waif’s Mission and Training School had wholly ceased to carry on the work for which it was organized, or any other work, having about a year prior to that time turned over to thé Illinois Industrial Training School for Boys, at Glenwood, Illinois, all of its property and boys. The Illinois Industrial Training School for Boys afterwards changed its name to the Illinois Manual Training School Farm, and is the appellant here. On July 1,1902, an order of cancellation of the charter of the Chicago Waif’s Mission and Training School was entered in the office of the Secretary of State, and it has never been reinstated.

Benjamin F. Quimby, the trustee named in the will, having died July 17 1897, the Title Guaranty & Trust Company was appointed trustee to succeed him on May 4, 1898. The Chicago Title & Trust Company (which by consolidation had succeeded the Title Guaranty & Trust Company as trustee) on November 4, 1908, filed its petition in the chancery court representing that distribution could not be made to the Chicago Waif’s Mission and Training School as it had ceased to carry on the charitable work for which it was organized, and set up the claim of the heirs and of others and asked for an order of court in the premises. The bill made as parties defendant the heirs of Walter Reynolds Quimby and “unknown owners”. To this bill certain collateral.heirs at law of the testatrix filed their answer, as did the Attorney General, who was made a defendant. The Illinois Manual Training School Farm filed its answer as one of the unknown owners made parties defendant to the petition, and claimed the fund under the equitable doctrine of cy pres, by reason" of the similarity of the work carried on by it to that carried on by the Chicago Waif’s Mission and Training School. This training school farm is a corporation not for pecuniary benefit. Its object is stated in its articles of incorporation thus: “To provide a home and proper training school for destitute and dependent boys who may be committed to its charge.” Upon hearing, a decree wa,s entered by the chancellor finding the facts as above set forth, and also determining the heirs at law and next of kin of Jane Reynolds, and further that inasmuch as the Chicago Waif’s Mission and Training School, ceased to carry on the charitable work for which if was organized on July 14, 1898, “and has not since said last mentioned date done or performed any. of the work for which it was organized, and has discontinued the exercise of its corporate functions'and abandoned its corporate franchises, it is not now entitled to said trust estate or any part thereof. ’ ’ The decree further found “that there is nothing in said will of Jane E. Reynolds, deceased, showing a general charitable intention, and showing that the said testatrix intended to devote said trust estate to- charitable purposes in the event that the gift over to the Chicago Waif’s Mission and Training School failed, and that therefore the said trust estate ought not to he applied cy pres by the court to other charitable purposes.” From this decree the Illinois Manual Training School Farm, hereinafter called appellant, has appealed to this court.

Counsel for appellant correctly say that: “The sole question presented is: Does the record make out a case for the application of the cy pres doctrine ? ’ ’ The usual definition of the equitable rule of cy pres has been stated thus: “When a definite function or duty is to be performed, and it cannot be done in exact conformity with the scheme of the person or persons who have provided for it, the duty may be performed with as close approximation to that scheme as reasonably practicable.” 12 Cyc. 1191. And in White v. Fisk, 22 Conn. 30, the cy pres doctrine is thus described: “It seems to be this, that if it can be seen that a charity was intended, by a testator, but the object specified cannot be accomplished, the funds may be applied to other charitable purposes, or that the chancellor may seize them as a sort of waif, and apply them as his, or the king’s good conscience, shall direct. * * * In this way the chancellor substitutes himself in the donor’s place,, and really makes the will himself.” If this broad statement of the rule comprehended all the elements involved, the application of it would be comparatively free from difficulty. Courts would determine only whether the organization named by will as the beneficiary was. capable of taking, and if it were incapable what other organization nearest approached it in its purposes and work. In undertaking to carry out the intentions of persons making charitable bequests, courts early were met with the question of whether or not the testator had intended to aid a general class needing charitable assistance, or only the particular and specific organization named in the will. Almost without exception, therefore, the cases in which the application of the rule of cy pres is sought turn upon the conclusion of the court as to whether or not the will evidenced a general charitable intent. This is the controlling inquiry before us. From an inspection of the clause of the will under consideration it is seen that the testatrix used no special words indicating an intention to benefit needy boys and girls generally; so that the critical question arises, can a general charitable intent to benefit a particular class of dependents be deduced from the sole fact that the organization named in the will was engaged in charitable work for that particular class of dependents ? Or applying the question to the facts before us, can a general charitable intent to benefit needy boys and girls generally, be deduced from the sole fact that the Chicago Waif’s Mission and Training School was engaged in charitable work for needy boys and girls ? Many cases have been cited by counsel for both parties, but none exactly in point as touching this particular question.

The general rule stated in Pomeroy’s Equity Jurisprudence, vol. 3, page 1964, is: “A limitation upon the generality of the doctrine seems to be settled by the recent decisions, that where the donor has not expressed his charitable intention generally, but only by providing for one specific particular object, and this object cannot be carried out, or the charity provided for ceases to exist before the gift takes effect, then the court will not execute the trust; it wholly fails.” And in Underhill on Wills, vol. 2, page 1230, the statement is made: “If, however, the testator has not used language from which a general charitable intent may be implied, or if he has pointed out some particular institution or mode of application by which the charity is to be carried out, the court will not decree an execution cy pres, when, for any reason, the carrying into effect of the particular charitable intent of the testator becomes impracticable.” It would serve no useful purpose to cite the many cases in which is discussed this limitation upon the general rule of cy pres, but from a study of these cases it will be seen that the test seems to be this, that if the bequest is to a cause or for a purpose or to aid and further a plan or scheme of public benefit, there is evidence of a general charitable intent. This is illustrated in Richardson v. Mullery, 200 Mass. 247, a case which appellant’s counsel urge as sustaining their contention. In this case the gift was “to the life-saving station to be built and established”, and it was held not to be a gift to any specific organization, but to which ever life-saving station might be engaged in the usual work of such a station in that locality. A similar case is Mason v. Bloomington Library Ass’n, 237 Ill. 442, where the bequest was to “an art studio or art gallery and studio, meaning thereby a suitable place wherein works of art will be collected, kept, preserved or exhibited for the advancement of education in art.” Applying this test to the clause of the will before us, it will be seen at once that the gift is not to any cause, plan or scheme of charity, but to a specific and particular organization. We therefore must hold that the better reasoning favors the conclusion that no general charitable intent was indicated by the testatrix in her will. To hold otherwise would so extend the application of the rule of cy pres as to compel courts to administer charitable bequests in every case where the particular object named in the will is incapable of taking, unless apt words negativing such a course should be used in the will. The true rule is that the court will not act for the testator in this regard unless some words are used in the will showing an intention which only the chancery court can carry out.

Counsel for appellant urge that the gift to the Chicago Waif’s Mission and Training School being for a charitable purpose, therefore the gift was a charitable gift or a gift to charity. This may be true in a certain sense, but it does not follow from this fact alone that it was a gift to charity generally.

We have reached the foregoing conclusion not forgetting that gifts to charity are especially favored in law, and that courts should be “keen-sighted” to discover an intention to make a gift to charity.

For the reasons above indicated the decree of the chancellor will be affirmed.

Affirmed.