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    John M. Wagner, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 18,032.
    1. Railroads—when question of contributory negligence of switchman for fury. Whether plaintiff, a freight conductor, who. was crushed between a post and the car on which he was riding, was contributorily negligent, is for the jury where it appears, that he was standing on a step on the Side of the car in a customary position to watch the track and to signal the engineer, that it was his duty to keep a lookout, that he was looking for signals when he approached the post and did not know and could not have known of its dangerous proximity, that he saw the post when 100 feet away but it was doubtful whether he could have determined the distance of the post from the track until he got very close to it, and that since it was on the inside of a curve and the car was very long any prudent person might have been deceived.
    2. Railroads—duty toward employes of companies using trades. Where a railroad company operates trains over the tracks of another at its invitation and pays a consideration therefor, the latter company owes an employe of the former the duty of exercising ordinary care in maintaining the track and its surroundings in a reasonably safe condition.

      3. Railroads—liability toward employes of companies using tracks. A railroad company which owns and operates a track cannot escape liability to an employe of a company which operates trains over such track by contract, when such employe is crushed between a post and the car on which he is riding, on the ground that it did not place the post where it was and had no control over it.
    4. Railroads—when manner of construction question for jury. "Where an employe of a railroad company who is on the side of a ear, is crushed between a post and the car, the principle that the manner of constructing a railroad is an engineering problem and is not a question to be submitted to the jury is not applicable.
    5. Railroads—when freight conductor employed in interstate commerce. A conductor of freight trains while assisting in transferring cars from one yard to another under orders, which cars are then being used in interstate commerce, is employed in interstate commerce within the Federal Employers’ Liability Act.
    6. Federal Employers’ Liability Act—when benefits paid to employe may be set off under section 5. If a conductor of freight trains who is engaged in interstate commerce is injured by the negligence of his employer, the employer may, under the Federal Employers’ Liability Act, § 5, set off in an action for such injuries any sum it has contributed to any relief benefit that may have been paid to such conductor.
    7. Federal Employers’ Liability Act—when payment of benefits to employe does not release liability. Under the Federal Employers’ Liability Act, § 5, acceptance of benefits from a relief department of a railroad company by an employe injured by such company’s negligence does not release it from liability, though the employe has so agreed.
    8. Railroads—when action against company owning tracks where accident occurred not barred under Federal Employers’ Liability Act, section 5. Where an employe of a railroad company, which operates trains over tracks owned by another company, is injured because of the dangerous proximity of a post to the track, such employe’s right of action against the owner company is not under the Federal Employers’ Liability Act, § 5, barred, though he accepts benefits from the relief department of the employer company.
    9. Railroads—set off for benefits paid under Federal Employers’ Liability Act, section 5. Under the Federal Employers’ Liability Act, § 5, where an employe of a railroad company which operates trains over tracks owned by another company is injured because of the dangerous proximity of a post to the track and accepts benefits from the relief department of the employer company, part of which is contributed by such employer company, the owner company is entitled to set off in an action 'for the injuries, the proportionate share of the benefits received by the employe which was contributed by the employer company.
    10. Damages—when not excessive. A verdict for $15,000 is not excessive where plaintiff was in a hospital for 9% months, was confined to his home for 2y2 months, sustained a fracture of the pelvis which left one side % of an inch higher than the other, a hole was torn in his bladder, he became neurasthenic, and there was evidence that his sexual power was impaired.
    11. Raiukoads—instruction as to credit for benefits paid employe under Federal Employers’ Liability Act. Where an employe of a railroad company brings action for injuries against the company which owns the tracks where the accident occurred, it is error to instruct that if the company is found guilty credit should not he given such Company in assessing damages for any sum which the relief department of the employer company paid, since the jury might thereunder take the view either that no credit should he given for the sum paid, or that no credit should be given for the proportion thereof contributed by the employer company; but the error may he cured by remittitur.
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed May 8, 1913.
    Rehearing denied May 22, 1913.
    Statement by the Court. This is an appeal from a judgment for $15,000, entered in the Superior Court of Cook county, June 3, 1911, upon the verdict of a jury, in favor of appellee, hereinafter called plaintiff, in an action for damages for personal injuries brought against appellant, hereinafter called defendant. Plaintiff was employed by the Chicago, Burlington & Quincy Railroad Company, hereinafter called the C. B. & Q., as a conductor or switchman of freight trains. At the time of the accident, which occurred December 15, 1908, he was engaged in moving a train consisting of five baggage cars loaded with silk. He was caught and crushed between the side of one of said cars and a semaphore post, or pole, standing in close proximity to the track, and suffered severe and permanent injuries. Defendant is sued as the owner of the track on which the train was moving.
    Plaintiff’s original declaration, filed August 20,1909, consisted of one count and charged, substantially, that on December 15, 1908, defendant owned and operated the track in question and was a common carrier engaged in interstate commerce; that the C. B. & Q. owned a certain railroad and was also engaged in interstate commerce; that plaintiff was employed in interstate commerce as a switchman by the C. B. So Q.; that the C. B. & Q. was operating the train in question, upon which plaintiff was employed as switchman, over said track at the invitation and with the knowledge and consent of defendant and for a valuable consideration; that defendant, long prior to the time in question, “negligently caused or permitted” the semaphore pole to be placed alongside of and so close to said track that it was liable to crush switchmen against or knock them from the sides of ears while being operated upon the track past the pole; that defendant “negligently permitted” the post to “remain” in said position from thence until the time of plaintiff’s injuries, whereby switchmen employed upon trains operated over the track were exposed to great danger; that all of which facts the defendant and the C. B. & Q. knew, or should have known, in time to have said conditions remedied; that plaintiff, through no want of ordinary care upon his part, did not know of these conditions or the danger incident thereto; that defendant and C. B. & Q. also knew, or should have known, that plaintiff was so employed upon the train and of his lack of knowledge of the position of the post and the danger, in sufficient time prior to the accident “to have notified or informed” plaintiff of said position of the post and said danger, but that each of them negligently failed so to do; and that, while plaintiff was in the discharge of his duty as switchman and riding upon the side of one of the ears of the train, and while the train was being operated upon said track past said post, and while plaintiff was exercising ordinary care for his own safety, plaintiff was caught and crushed between the post and the side of the car, as a direct result of the dangerous proximity of the post to the track and of his being uninformed of that fact, and was thereby injured, etc. To this declaration the defendant filed the general issue, and a special plea denying ownership or control of the said track, train or semaphore post, and denying that defendant had invited the C. B. & Q. to operate engines and cars upon said track. On May 10, 1911, plaintiff by leave of court filed two additional counts, containing practically the same allegations as those in the original count but omitting all reference to interstate commerce. To these additional counts the defendant filed the general issue, a special plea denying ownership, operation or control of the track, train or semaphore post, and a plea of the Statute of Limitations. Plaintiff demurred to the last mentioned plea and on May 15, 1911, the demurrer was sustained and defendant excepted. The trial was commenced on the same day, and on May 22nd the jury returned a verdict for plaintiff for $15,000, and special findings upon questions submitted to them by the court, as follows:
    “Do you find from the evidence that upon December 15, 1908, the Chicago, Burlington and Quincy Bail-road Company was engaged in interstate commerce between two or more states, and that plaintiff was injured while employed by it in such commerce?”
    Answer “Yes.”
    The material facts as disclosed from the evidence are substantially as follows: The track in question was located in the city of Chicago and was owned by the defendant. It was a curved track, about 250 feet long, known as the “Fort Wayne *Y’,” and connected the Pennsylvania railroad (Fort Wayne branch) with the Chicago & Western Indiana railroad, hereinafter called the C. & W. I., and was part of the “Grove street tracks.” A section foreman and his crew, employed by defendant, made all the repairs on the track for a period of 12 years, and a switchman employed by defendant made a record of the numbers and initials of all engines and cars passing over the track. In January, 1909, the C. B. & Q. received a bill from defendant for “trackage on 2 engines and 5 cars passing over Grove street during the month of December, 1908,” which bill was certified to by an employe of the C. B. & Q. as being correct, and the defendant received the amount of the bill. The semaphore post had been in the same position as on the day of the accident for a period of at least 12 years. It had been put in and was being operated and maintained by the C. & W. I. and was part of the interlocking system of the C. & W. I. It was not used to control the “Y” track on which the train was at the time of the accident, but it was within the segment of the circle formed by the curved “Y” track and the straight track on the opposite side of the post. A witness for plaintiff testified that in August, 1909, after the accident, he took photographs of the tracks, etc., and made measurements of the distance between the semaphore post and the nearest rail of the tracks on either side of the post; that the distance between the nearest edge of the post and the nearest rail of the “Y” track was 4 feet 3 inches; that the distance between the nearest edge of the post and the nearest rail of the track on the other side was 4 feet 11 inches; that the distance at the post between the nearest rails of the two tracks was 10 feet, and at a point five feet north or northeast of the post the distance between the nearest rails of the two tracks was 10 feet 11 inches, that at ten feet the distance was 11 feet 6 inches, that at fifteen feet the distance was 12 feet 2 inches, that at twenty feet the distance was 13 feet, and at thirty feet the distance was 13 feet 6 inches; that the distance from the post south to the frog, where the east rail of the “Y” track came into conjunction with the west rail of the other track above mentioned, was 43 feet. A witness for defendant, employed as a civil engineer by defendant, testified that a day or two previous he measured the distance between the post and the nearest rail of the “Y” track, and that, allowing for the “overhang” of an ordinary baggage car, which would be 2 feet 9 inches when the end of the car was directly opposite the post, the “clearance” between the post and such car is 2 feet 3 inches. This clearance and overhang, as stated by this witness, added together makes the distance between the nearest rail of the “Y” track and the post 5 feet, or 9 inches greater than the distance as given by plaintiff’s witness. Defendant’s witness also testified that the distance from the post south to said frog was 53 feet, or 10 feet greater than the distance as given by plaintiff’s witness. To account for these discrepancies, a witness for plaintiff in rebuttal testified that during the last week in October, 1910, by direction of the signal engineer of the O. & W. I., he moved the semaphore post “north or very near north” about 6 feet. Two witnesses for plaintiff testified that after the accident the train moved about a car length or two before it was stopped, and that when it stopped there was a clearance of from.8 to 10 inches between the post and the middle of one of the baggage cars standing opposite it, and plaintiff testified that the clearance between the post and the car he was riding on was “about 6 inches or so—close enough to crush me.”
    Plaintiff was 35 years of age and unmarried. He had worked for the C. B. & Q. for about 20 years, as number taker, car sealer, car carder, switchman, timekeeper on track elevation, and as conductor of freight trains. He was the conductor in charge of the train at the time of the accident, giving all necessary directions to the engineer. His average earnings as conductor were $110 per month. His general work consisted in going from one yard to another with a “roustabout” engine, handling cars loaded with “through stuff” going by different roads to New York and other points ontside of Chicago, most of the cars having been originally shipped from western and northwestern states. About 7 o’clock on the morning of the accident he first saw three of the five baggage cars standing in the 14th street passenger yard as part of the St. Paul & Minneapolis train that came from Minneapolis. About 9 o’clock he first saw the two other baggage cars going down to the depot as part of another St. Paul & Minneapolis train. These five cars were “Great Northern” baggage cars, having customs seals on them and containing bales of silk, which had been shipped from Seattle, Washington, the port of entry, and were marked as to destination “New York City.” Plaintiff testified that . he coupled the five baggage cars together, that he received an order by telephone from some clerk in the superintendent’s office of the C. B. & Q. to take the cars over to the Erie railroad at the 51st street yard as quickly as possible, that he told the clerk that the quickest way was over the “Port Wayne,” that the clerk said, “Take them that way,” and that the train left Harrison street about 10:45 a. m., and was on its way to the Erie road when the accident happened. The train was moving in a northeasterly direction around the curved track, the post being inside of the curve, at a speed variously estimated at from 4 to 10 miles per hour. The engine was in the rear pushing the cars. The front baggage car had two doors on the side nearest the post as it passed the post. It also had a “blind” door at its front end but no platform at that end to stand upon. Coleman, a switchman, was at the front end of the front car, standing on a grab-iron with his arm through the brake wheel, for the purpose of watching for signals or conditions requiring tire train to be stopped. He could not give any hand signals; the only thing he could do was to signal the engineer, by means of an “air gun” which he was holding, to stop the train-. Plaintiff was riding on the side of the front car nearest the post, looking north in the direction the train was moving. He was standing on a “ladder step” made of iron, which ran the full width of the foremost of the two doors on the side of the car underneath the door sill. He was about 15 feet from the front end of the car, which was about 65 feet in length, opposite said door, and was holding on to the two grab-irons located on either side of the door. The door was not flush with the side of .the car; it “came in 4 or 5 inches.” Plaintiff testified that the door sill was about even with the bottom line of his vest, that there is no fixed rule as to where on a freight train a conductor should ride, but that he makes a choice in view of the nature of the work; that in this case it was his business to look out for obstructions and for signals ahead in order to notify the engineer as.to the movements of the train; that as the train approached the post he was looking in its direction watching for signals; that he saw the post when he was about 100 feet from it; that as he approached it he “judged there was plenty of room for my body to pass in between the car and the post;” that when the post was about 6 feet away “I began to squeeze in my body * * * to be on the safe side,” and even then “it looked to me as if there was plenty of clearance;” that he had never gone over that track before and that he did not know before the accident that there was not clearance enough, no one having told him of the close proximity of the post to the track; that if he had known he was going to be brushed off he certainly would have jumped off the train, as he was accustomed to get off trains moving slowly; that at the time he was passing the post he “was right tight close against the car;” that his head and shoulders were “in the doorway of the car; ’ ’ that his body was crushed between the door sill of the car and the post, and that he fell to the ground and was picked up “about 10 feet or so northeast of the post.” The engineer of the train testified that at the time of the accident he was looking right along the line making observations, watching the men and the movement of the train; that “it appeared as if plaintiff had room enough to go in between the semaphore and the car;” that the semaphore caught plaintiff at the hips and the abdomen and he fell to the ground on the north side of the semaphore; that he (engineer) stopped the train immediately and went to where plaintiff was, and that he was conscious when “we picked him up.”
    Plaintiff was in a hospital for about 9% months, being confined to his bed about 6 months. After leaving the hospital he went to his home where he remained for 2% months. He then went to Denver and southern California, on the advice of his physician, returning to Chicago after a lapse of 5% months. At the time of the accident he suffered a fracture of the pelvis, and it grew together in such a way that at the time of the trial the left side was % of an inch higher than the right, giving him a “kind of wabbling gait,” which is a permanent condition. A hole was torn in his bladder, and while at the time of the last examination it was “performing pretty well its usual functions,” there was still evidence of bladder catarrh. While in the hospital he was operated upon twice. He became very neurasthenic. There was also evidence of impairment of sexual power. He testified at the trial that he still could not walk 7 or 8 blocks without becoming exhausted and dizzy. Certain physicians testified that he can do work not requiring strength or standing for long periods of time. At the time of the trial he had earned no money since the accident.
    When plaintiff had offered and introduced certain evidence, during the making of his case in chief, as to the contents and destination of the baggage cars, defendant objected on the ground that there had been an agreement between counsel, whereby defendant’s attorney had agreed that the court might sustain plaintiff’s demurrer to defendant’s plea of the Statute of Limitations to plaintiff’s additional counts, in consideration of plaintiff’s attorney agreeing that “the question of interstate commerce and the Federal Employers’ Liability Act” should be kept out of the case. What the terms of the agreement, if any, were, does not appear in the record, but the trial judge stated that he had an impression that some such agreement had been made, but was not going to decide that it had been made. Plaintiff’s attorney stated that in his opinion the question was probably not in the case, but if it was in the case and might prove beneficial to his client he desired to prove the facts, and further stated, inasmuch as the original declaration, but not the additional counts, alleged that the defendant and the C. B. & Q. were engaged in interstate commerce and that the plaintiff was employed in interstate commerce, that if the evidence objected to was excluded it might furnish a basis for defendant to claim that those allegations in the original declaration had not been proved. Defendant’s attorney stated that he would agree that lack of proof as to those allegations would not constitute a variance, whereupon the court, with the consent of plaintiff’s attorney, instructed the jury that “everything that has been said by the witness in relation to the contents of the car, how it was stamped and how marked is excluded from your consideration.”
    During the introduction of evidence on behalf of defendant, it was shown that plaintiff had been a member of the “Belief Department” of the C. B. & Q. since 1902; that this was an organization, of which the G. B. & Q. had general charge, created for the purpose of establishing a relief fund; that it was not a separate corporation but only a department of the C. B. & Q.; that the department was in the executive charge of a superintendent; that many of the employes of the C. B. & Q. Railroad and the C. B. & Q. Railway were members of the department; that these employes made monthly contributions for the creation of the relief fund from which sick, injury and death benefits were to be paid; that the C. B. & Q. furnished to the department without charge all necessary floor space,telegraph, telephone and transportation service and the facilities of all its other departments; that no part of the contributions of members was used to pay the operating expenses of the department; that the contributions of members were made by deductions from the pay-rolls; that the C. B. & Q. contributed, without reimbursement, to cover said operating expenses, during the year 1908 about $81,000, during 1909 about $78,000, and during 1910 about $85,000; that the contributions of members amounted in 1908 to about $500,000, in 1909 to about $540,000, and in 1910 to about $585,000; that members were divided into different classes depending upon the amount of their contributions; that plaintiff first made application for membership in the first class, but that in 1903 he changed his membership to the fourth class; that plaintiff thereafter contributed $3 each month, the amount being deducted from his monthly wages; that members of the fourth class, in case of disability, were entitled as benefits to the sum of $2 per day for a period not longer than 52 weeks and at half that rate thereafter during the continuance of the disability, and that bills for necessary surgical treatment were also to be paid; that disability meant “physical inability to work by reason of sickness or accidental injury;” that plaintiff in this application agreed to be bound by the regulations of the Belief Department, and further agreed that, “in consideration of the amounts paid and to be paid by said Company for the maintenance of said Belief Department, and of the guarantee by said Company of the payment of said benefits, the acceptance by me of benefits for injury shall operate as a release and satisfaction of all claims against said Company, and all other companies associated therewith in the administration of their Belief Departments, for damages arising from or growing out of said injury; * * * and further, if any suit shall he brought against said Company * . * * for damages arising from or growing out of injury or death occurring to me, the benefits otherwise payable, and all obligations of said Relief Department, and of said Company, created by my membership in said Relief Fund, shall thereupon be forfeited without any declaration or other act by said Relief Department or said Company;” that plaintiff acknowledged in writing the receipt of certificate of membership, April 28, 1903, together with copy of the regulations; that plaintiff up to the time of the trial had received from said relief department the total sum of $1,231, for benefits, that this amount was paid to him in 29 checks, varying in amounts from $28 to $62, all being dated prior to May 3,1911, that the last check was for period ending April SO, 1911, that the first check was dated January 5, 1909, but was not cashed by plaintiff until June 9, 1909; and that, in addition to this total sum for benefits, the relief department also paid out, on behalf of plaintiff, the sum of $1,349.59 for hospital bills, physician’s services, etc.
    At the commencement of the introduction of evidence on behalf of plaintiff in rebuttal, the attorney for plaintiff stated, out of the jury’s hearing:
    “I want to prove that interstate feature; * * * under my agreement with counsel and the court, I do not seek to recover in this case by virtue of the Employer’s Liability Law; * * * but here, as a matter of defense, they introduce what they claim amounts to a release between this man and his employer. Now, as meeting that defense, and for the purpose of showing that it is invalid and that what they claim as a release is not binding but is illegal, I want to show this: That at the time this man was injured he was engaged in interstate commerce, the point of that being that the Employer’s Liability Law states that a release,- or anything of that kind, is invalid as between the employer and an employe, who is injured while engaged in interstate commerce, the purpose being that if this release is invalid as between this man and his em-. ployer, it surely is not valid as to somebody else * * * I am not claiming the right of action under this Employer’s Liability Law, but * * * under the common law liability. As a defense, they bring in this release. If, for any reason, we can show that release is invalid, I think it proper in rebuttal to show it, and it is invalid if this man was injured while engaged in interstate commerce at the time of the accident.”
    The attorney for defendant strenuously objected to any proof that, at the time plaintiff was injured, he was engaged in interstate commerce, and for the reason that plaintiff’s attorney had several times stated that that feature was out of the case, and had agreed that no such evidence would be introduced, in consideration of defendant’s attorney agreeing that the court might sustain plaintiff’s demurrer to defendant’s plea of the Statute of Limitations to plaintiff’s additional counts; but the court overruled defendant’s objection to such proof and defendant excepted. Defendant then moved that a juror be withdrawn and the case continued and defendant be permitted to argue the demurrer to its said plea of the Statute of Limitations. 'The motion was denied and defendant excepted. The court then permitted plaintiff to reintroduce the evidence (previously introduced during plaintiff’s case in chief and stricken from the record), and other evidence, showing that at the time of the accident plaintiff and the O. B. & Q. were engaged in interstate commerce.
    It was admitted during the trial that plaintiff' is also the plaintiff in a case, pending in the Circuit Court of Cook county, wherein the C. B. & Q„, the C. & W. I., the Illinois Central Railroad and the Atchison, Topeka & Santa Fe Railroad are defendants. The files in the case were introduced in evidence, from which it appeared that in said Circuit Court action plaintiff sought to recover damages for the same injuries as were charged in the present case as having been received.

      Winston, Payne, Strawn & Shaw, for appellant;
    Silas H. Strawn, Edward W. Everett and J. Sidney Condit, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court."

First, It is contended by counsel for defendant that plaintiff was guilty of contributory negligence, which precludes his recovery. Plaintiff was required to exercise that degree of care for his own safety that an ordinarily prudent person would exercise under the same or similar circumstances. Counsel. urge that plaintiff was not exercising ordinary care in riding on the side of the car, standing on the ladder step underneath the door sill, and that he could have ridden on the engine or upon some other part of the train. The engine was in the rear of the train, pushing the five baggage cars around this curved track and towards a net-work of other tracks, where there were many switches and signals. Although the switches were being operated by towermen, plaintiff did not know upon what track his train would be run after leaving the curved track. He was the conductor in charge of the train, and it appears from the evidence that it was his duty to keep a lookout ahead to see where the train was going and to ascertain whether the signals were set for or against his train, and be in a position where he could signal the engineer to stop or go ahead, that neither he nor the engineer had gone over the curved track before, and that as he approached the post he was “looking ahead for signals.” Because of the construction of the front end of the front baggage car, where Coleman was riding, plaintiff could not ride there and at the same time be in a position to be seen by the engineer and be able to signal the engineer. All that Coleman could do was to signal the engineer by means of Ms “air gun” to stop the train; he could neither see nor be seen by the engineer. Plaintiff, when the train started to move around the curved track, probably decided to ride in the position he did because, under the circumstances, it seemed to him to be the most available place to keep a lookout ahead and at the same time be able to quickly signal the engineer. And, in our opinion, except for the dangerous proximity of the post to the track, it was as safe for an experienced switchman as any other place in the forward part of the train. It does not appear that he knew or could have known of the dangerous proximity of the post at the time he took Ms position. Furthermore, the testimony shows that it was customary for switchmen to ride in that position. Under the facts of this ease we cannot say, as a matter of law, that plaintiff was guilty of negligence in tating the position he did upon the train. But counsel further urge that plaintiff had actual knowledge of the presence of the post for a sufficient length of time before his injury to have avoided the accident, and argue that, as he saw the post when 100 feet away from it and contmuously as he approached it, he should have discovered its dangerous proximity to • the track and jumped from the moving train before reacMng the post, and that he was guilty of contributory negligence in not maMng that discovery and so jumping. It is at least doubtful if he could have determined the distance of the post from the track until he got very close to it. The post was on the inside of the curved track and there was no car opposite the post until the car upon which he was riding reached the post. If it had been a foot further away from the track he probably would not have been injured. Owing to the length of the car and the curve of the track, the forward end of the car, when even with the post, probably did not overhang the rail much, if any, but when that part of the car upon which plaintiff was riding had reached the post the “overhang” was probably considerable. Any prudent person might easily be deceived under such conditions, and we cannot say, as a matter of law, that plaintiff was guilty of negligence in not jumping, from the train. It was for the jury to say, under all the facts and circumstances of this case, whether or not plaintiff was guilty of negligence, and it is evident from their verdict that they did not think so. North Chicago St. R. Co. v. Dudgeon, 184 Ill. 477, 486; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, 235; Chicago & A. R. Co. v. Stevens, 189 Ill. 226; Chicago & A. R. Co. v. Johnson, 116 Ill. 206; Whalen v. Illinois & St. L. Railroad & Coal Co., 16 Ill. App. 320; Texas & P. R. Co. v. Swearingen, 196 U. S. 51; Indianapolis Traction & Terminal Co. v. Holtsclaw, 41 Ind. App. 520; Johnston v. Oregon S. L. & U. N. Ry. Co., 23 Ore. 94, 105. And we cannot say that their verdict is manifestly against the weight of the evidence.

Second. It is also contended that the evidence fails to prove that defendant was guilty of any negligence which was the proximate cause of the injury. Defendant by special plea denied the ownership or control of the curved track and also denied that the. C., B. & Q. had been invited by defendant to operate its engines and cars upon the track. We think that the evidence shows that defendant owned, possessed and operated the curved track, and that the O., B. & Q. operated the train in question over said track at the invitation of defendant and for a valuable consideration. Plaintiff’s presence upon the track was therefore contracted for, and we think that defendant owed him the duty of exercising ordinary care in maintaining the track and its surroundings in a reasonably safe condition for the purpose for which it was provided and used. “A railroad company owning a railroad which permits another company to use the road is liable for injuries to persons on the trains of the latter due to the defective condition of the roadbed, track, or bridges, or to the defective condition or negligent management of its switches, although the injured persons were employes of the latter company.” 33 Cyc."711; Chicago Terminal Transfer R. Co. v. Vandenberg, 164 Ind. 470. And we think that the evidence shows that the curved track and the semaphore post were in such dangerous proximity to each other as to warrant the jury in finding the defendant guilty of negligence in that regard. South Side El. R. Co. v. Nesvig, 214 Ill. 463; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226; Chicago I. R. Co. v. Russell, 91 Ill. 298; Illinois Cent. R. Co. v. Welch, 52 Ill. 183; Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272. But counsel for defendant argue that the semaphore post was owned, operated and maintained by the C. & W. I., and was a part of the interlocking system of that company, that defendant did not place the post where it was and had no control over it, and, therefore, defendant was not guilty of negligence because of the dangerous proximity of the post to the track. We cannot agree with counsel’s conclusion.

“It is not essential to the liability of the company in case an injury is occasioned by some object or structure on premises adjoining the right of way, that the company should have itself placed or participated in placing the object or structure on the adjoining premises. If the company has notice of the existence of any such object or structure, or if notice may be presumed from length of time since the object was placed thereon, or if the company is otherwise chargeable with notice, it is negligence on the part of the company to continue to operate its trains in such dangerous proximity to"such objects or structures.” South Side El. R. Co. v. Nesvig, 214 Ill. 463, 470; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, 231.

Third. It is further contended that, inasmuch as “the manner of constructing a railroad is an engineering question * * * and * * not a question for a court to submit to a jury” (Chicago & E. I. R. Co. v. Driscoll, 176 Ill. 330, 334), the trial court erred in allowing the case to go to the jury. We do not think that the principle invoked is applicable to the present case. In several of the earlier Illinois cases, where the poles or other obstructions were placed by the companies upon their own right of way, no suggestion appears to have been made that the companies were not liable upon the ground that the placing of the same involved an engineering problem. In the case of Chicago & A. Ry. Co. v. Howell, 109 Ill. App. 546, affirmed 208 Ill. 155, it is said (p. 549):

“Whatever may be the proper application of this view of the law in this state, and to whatever length it may have been extended and applied elsewhere, our courts have not recognized it as applicable to structures of any kind erected or maintained in connection with the operation of the road, such as a 'mail-catcher,’ telegraph pole, coal shed, flag station, awning post, coal shute, scale-house, switch-stand, or other structure.” See also Chicago W. & V. Coal Co. v. Brooks, 138 Ill. App. 34, 39, affirmed 234 Ill. 372; Texas & P. Ry. Co. v. Swearingen, 196 U. S. 51, 61.

In the case of Illinois Terminal R. Co. v. Thompson, 112 Ill. App. 463, affirmed 210 Ill. 226, where the railroad company had not erected the pole in question, it is said (p. 470): “We have seen no decision that telegraph poles along the track or in the yards, and their proximity to passing trains, may be regarded as part of the railroad construction not to be considered under a charge of negligence.” We cannot agree with counsel’s contention that the court erred in refusing to instruct the jury at the close of all the evidence to find for the defendant upon this theory.

Fourth. It is further contended by counsel for defendant that, under the authority of the case of Eckman v. Chicago, B. & Q. R. Co., 169 Ill. 312, plaintiff’s acceptance of benefits from the Belief Department of the C., B. & Q. released that company from liability to pay damages because of plaintiff’s injuries; that if defendant was guilty of negligence causing plaintiff’s injuries, the C., B. & Q. was also guilty of negligence contributing to plaintiff’s injuries, in that it failed to use reasonable care to furnish plaintiff, its employe, a reasonably safe place to work, and failed to warn him of the dangerous proximity of the post to the track when it sent bim in charge of its train over the track, and that the C., B. & Q. is also liable for said injuries as lessee or licensee of said track; that the O., B. & Q. and defendant were joint tort feasors, and that the release of one of them is a release of the other and that an accord and satisfaction with one of them is a bar to an action against the other; that even though it was not proved that the C., B. & Q. and defendant were joint tort feasors it is sufficient if both were liable for plaintiff’s injuries; that one sustaining a bodily injury by the negligence of one or more persons can have but one satisfaction therefor, and that inasmuch as plaintiff accepted a satisfaction from the C., B. & Q., he cannot recover anything from the defendant.

To these contentions counsel for plaintiff replies, (1) that plaintiff’s acceptance of benefits from the C., B. & Q. Belief Department was not, because of the Federal Employer’s Liability Act, a valid release of the CL, B. & Q., and hence it could not operate as a release to defendant, and (2) assuming the alleged release to the C., B. & Q. to be valid, plaintiff’s acceptance of benefits did not release defendant.

Section 1 of the Federal Act referred to, approved April 22, 1908 (35 U. S. Stat. at Large, part 1, p. 65), provides:

“That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, * * * or between * * * any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

Section 5 of the Act provides:

‘ ‘ That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier nnder or by virtue of any of the provisions of this Act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employe or the person entitled thereto on account of the injury or death for which said action was brought.”

We think that the evidence in this case shows that at the time of the accident, when the C., B. & Q. was moving the baggage cars in question over the curved track, that company was a common carrier engaged in interstate commerce. “Every part of every transportation of articles of commerce in a continuons passage from an inception in one state to a prescribed destination in another is a transaction of interstate commerce.” U. S. v. Colorado & N. W. R. Co., 85 C. C. A. 27; U. S. v. Southern Ry. Co., 187 Fed. Rep. 209. And we think that under the facts of this case plaintiff, while assisting in the moving of the cars at the time of the accident, was employed in interstate commerce within the meaning of the Federal Employer’s Liability Act. Behrens v. Illinois Cent. R. Co., 192 Fed. Rep. 581; Johnson v. Great Northern R. Co., 102 C. C. A. 89. And we are of the opinion that, because of the provisions of said Federal Act, plaintiff’s acceptance of benefits from the C., B. & Q. Belief Department, as disclosed by the evidence in this case, did not release the C., B. & Q. from liability for plaintiff’s personal injuries occasioned by its negligence, in support of which opinion we cite without discussion the following cases: Philadelphia, B. & W. R. Co. v. Schubert, 36 App. Cas. (D. C.) 565, affirmed 224 U. S. 603; Mec Namara v. Washington Terminal Co., 35 App. Cas. (D. C.) 230; Barden v. Atlantic C. L. R. Co., 152 N. C. 318; Washington v. Atlantic C. L. R. Co., 136 Ga. 638. Had the plaintiff in this case brought his action against the C., B. & Q., then under the proviso of Section 5 of the Federal Act the C., B. &; Q. could have “set off therein any sum it had contributed or paid to any * * * relief benefit * * * that may have been paid” to plaintiff. We think it follows that, in the present action where plaintiff seeks to recover damages from the defendant, the alleged release or satisfaction should not be given any greater effect against the defendant than it would have had in an action against the C., B. & Q. And our conclusion is that the fact that plaintiff accepted benefits, in the manner and in the amounts as shown by the evidence, from the Belief Department of the C., B. & Q. is not a bar to plaintiff’s right to recover damages from the defendant in this action for the injuries sustained by him.

But counsel for defendant contend that plaintiff should not be permitted to avail himself of the provisions of the Federal Act because of the alleged agreement claimed to have been made between opposing counsel, at the time the court sustained plaintiff’s demurrer to defendant’s plea of the Statute of Limitations, to the effect that the Federal Act should be kept out of the case. We cannot agree with the contention. If any agreement was made, the terms thereof are not set out in the transcript before us. From the record it appears that on May 15, 1911, the cause came on to be heard upon the demurrer to defendant’s plea of the Statute of Limitations, etc., and “after argument of counsel and due deliberation by the court, said demurrer is sustained, to which the defendant excepts.” We think that under all the facts and circumstances disclosed by the record the trial court did not err in permitting plaintiff in rebuttal to introduce evidence showing that at the time of the accident the C., B. & Q. was engaged and plaintiff was employed in interstate commerce.

Because of the views above expressed it is unnecessary for us to discuss the additional contention of counsel for plaintiff, viz.: assuming that the alleged release to the C., B. & Q. to be a valid one, nevertheless plaintiff’s acceptance of benefits from the Belief Department of the C., B. & Q. did not release defendant.

Fifth. It is further contended by counsel for defendant that the trial court erred in its rulings in admitting and in refusing to admit certain evidence offered. We deem it unnecessary to discuss the several points made. Suffice it to say that we have considered all of them and are of the opinion that no error prejudicial to the defendant was committed as urged by counsel. Complaint is also made of certain remarks of plaintiff’s counsel made during the trial and during his argument to the jury. We cannot say that these remarks were so improper as to warrant a reversal of the judgment. Nor do we think that the verdict of the jury is excessive and the result of passion and prejudice, as counsel contend.

Sixth. It is further contended that the court erred in giving and refusing to give certain instructions. As to the refused instructions we do not think that any error was committed. Plaintiff’s given instruction, No. 1, which is admitted to be a correct statement of law, was not in our opinion misleading, as defendant’s counsel contend. Plaintiff’s given instruction, No. 9, told the jury that, if they found defendant guilty and that plaintiff was entitled to damages, then in the assessment of such damages they “should not credit the defendant with any sum which the Chicago, Burlington & Quincy Railroad Belief Department paid to the plaintiff, or paid to any doctor, or other person, for or on account of the plaintiff.” It appears from the evidence that the Belief Department of the C., B. & Q. paid plaintiff, as benefits, the sum of $1,231, and also expended on plaintiff’s behalf the additional sum of $1,349.59, for hospital bills, physician’s services, etc., or a total of $2,580.59. It further appears that during the years 1908, 1909 and 1910, the C., B. & Q. contributed each year to the Department not to exceed fifteen per cent, of the entire annual receipts of the Department, the remainder of which receipts being contributed by members or employes. In view of these facts the instruction was not strictly accurate. If it was intended that the jury be instructed that neither the said sum of $1,231 nor the said sum of $1,349.59 be allowed as a credit to the defendant, we think it, was correct. But if it was intended to instruct the jury that the defendant should not be credited with any part of said sums, to-wit: the proportionate part thereof contributed by the C., B. & Q., then the instruction was wrong, and for the reason that the O., B. & Q. being entitled to have set off the amount contributed by it as against any claim for damages brought by the plaintiff against it, the defendant is also entitled to. the same credit in a suit brought against it for the same injury. Either view might have been taken by the jury, and the instruction, therefore, was calculated to mislead them. This error, however, can be cured by a remittitur. Fifteen per cent, of $2,580.59 amounts to $387.09. If, therefore, plaintiff within ten days shall file a remittitur of $387.09, the judgment will be affirmed for $14,612.91; otherwise it will be reversed and the cause remanded.

'Affirmed on remittitur; otherwise reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Pitch

license: Public Domain

text:
    Ricks Sheep Company, Appellee v. Oregon Short line Railroad Company, Appellant.
    Gen. No. 17,085.
    1. Cabbiebs—when statement of opinion hy witness not prejudicial. In an action for negligence in the carriage of sheep it is not prejudicial error to permit a witness to give his opinion as to the market value of the sheep in the condition in which they would have arrived if they had been conveyed without negligence where there is evidence tending to prove unusual loss of weight, and of the market price of sheep in good condition and the verdict is justified by such evidence.
    2. Appeals and ebbobs—saving questions. Appellant is not in a position to complain of error in giving instructions where no objections were made and exceptions preserved.
    . 3. Cabbiebs—Interstate Commerce Act. The Interstate Commerce Act, section 20, as amended by the Act of June 29, 1906 (34 U. S. at Large 593), exclusively controls the liability of a receiving carrier for damages in cases of interstate shipments of property and covers the whole subject-matter.
    4. Cabbiebs—Interstate Commerce Act. A right of action may accrue to the shipper under the Interstate Commerce Act as amended June 29, 1906, though he does not receive the bill of lading or receipt which the carrier is required by the act to issue.
    5. Cabbiebs—Interstate Commerce Act. Where a shipper brings action under the Interstate Commerce Act as amended by the act of June 29, 1906, for damages for the negligent conveyance of sheep the declaration states a cause of action though it does not allege that the shipper is the lawful holder of the bill of lading or receipt required by the first part of the act.
    Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 8, 1913.
    Erode B. Davis, for appellant; John M. Rankin, of counsel.
    Charles A. Butler, for appellee.
   Mr. Justice Pitch

delivered the opinion of the court.

Appellee recovered a judgment in the Municipal Court against the Oregon Short Line Railroad Company for $467.55 for damages sustained by the negligence of the railroad company in conveying nine carloads of sheep, belonging to appellee, from Bexburg, Idaho, to Chicago, Illinois, in the fall of 1906.

The suit was brought as a first class case. A declaration of several counts was filed, alleging in substance, that defendant was a common carrier of goods and chattels for hire; that on September 22, 1906, plaintiff delivered to the defendant at Bexburg, Idaho, 2,397 sheep in good condition, to be carried from that place to Chicago, Illinois; that defendant, in consideration of a certain reward to it in that behalf, then and there promised the plaintiff to safely and securely carry said sheep and deliver them to the Knollin Sheep Commission Company, at Chicago, Illinois, in good condition within a reasonable time; that defendant failed to do so, and that by and through the negligence and improper conduct of defendant in that respect, plaintiff sustained a loss of $1,800 on the shipment.

No written contract, receipt or bill of lading was offered in evidence, either by plaintiff or defendant. It appears from the evidence that on the morning of September 22, 1906, plaintiff delivered to defendant’s agent at Bexburg, Idaho, 2,476 sheep in good condition, and they were then loaded into nine cars. Defendant’s agent at that point asked one of the plaintiff’s men, who accompanied the sheep, “which way he wanted to route the sheep,” and was told to route them “over the Short Line, Union Pacific and Northwestern” to Chicago. The sheep had been watered and fed just before they were put on the cars. The federal statute governing shipments of this character (Fed. Stat. Anno. Supp. 1909, p. 43) provides that sheep shall not be confined in railroad cars while in transit longer than twenty-eight hours “without unloading the same in a humane manner into properly equipped pens for rest, water and feed for a period of five consecutive hours,” unless prevented by storm or unavoidable causes, provided, that the time may be extended to thirty-six hours upon the written request of the person in custody of the sheep, and provided further, that sheep need not be unloaded in the night time, if the period of twenty-eight hours expires at night. It appears that for the purpose of complying with this statute, facilities for unloading' sheep and for feeding and watering them, were provided by defendant and the connecting carriers, at ten stations at least along the route. The shipment left Rexburg about ten o’clock on the morning of September 22, 1906. During that day and the next day the train stopped several times (once to allow another stock train to pass) but the sheep were not unloaded until the train arrived at Rawlins, Wyoming, on the line of the Union Pacific. The train arrived there • at seven o’clock p. m., September 23, 1906, but the stock yards at that place were so crowded that the sheep were not unloaded until the next day, after they had been confined at least fifty hours without food or water. There is evidence to the effect that the hay supplied to the sheep at Rawlins was of poor quality, and that the only water accessible was in troughs so high above the ground that the lambs could not drink from them; also that the troughs were surrounded" by mud, which had a tendency to prevent the sheep from approaching the troughs to drink. There is some evidence to the effect that railroad traffic was unusually heavy at this time, resulting in unusual congestion, due in part to conditions following the earthquake at San Francisco. During the forenoon of September 25th, the sheep were again loaded on the cars and proceeded to Julesburg, Colorado, where the train remained for six hours, but the sheep were not unloaded, fed or watered at that place. The train reached North Platte, Nebraska, about eight o’clock in the evening of September 26th. There the sheep remained in the cars all that night and were unloaded soon after daylight September 27th, having been a second time in continuous confinement more than thirty-six hours without food or water. The reason given for not unloading earlier was that the yards were full and that there were two or three other trains of live stock ahead of the plaintiff’s shipment. Plaintiff’s witnesses testified that the pasture at North Platte was short stubble and “salt grass,” which had been eaten over, and that the water supplied to the sheep was from the North Platte river, which one witness described as “alkali” water. The next morning, September 28th, the sheep were again loaded in the cars. The next place at which they were unloaded was at Valley, Nebraska, about five o’clock the same day. There the pasture and water were good and the sheep remained there about twelve hours. The next stop was at Bochelle, Illinois, where they arrived on September 30th, and were again fed and watered. The sheep did not arrive in Chicago until October 4, 1906, having remained at Bochelle about twenty-four hours. When they arrived at Chicago they were shrunken and “rough looking” and those who survived had lost at least eight pounds each. Ninety-nine of them died in transit. There is evidence to the effect that the usual time for such a journey from Bexburg to Chicago was eight days, and that under ordinary circumstances sheep may be expected to lose three or four pounds in weight on such a trip.

It is first contended that the trial court erred in permitting a witness to give his opinion as to the market value of the sheep “in the condition in which they would have arrived at the end of the usual and customary transit of eight days.” To a question put in that form the witness testified that if the sheep on arrival had been “good, fat sheep,” they would have sold on October first for twenty-five cents per hundred weight more than the sum actually realized from their sale in Chicago. If this were the only evidence as to damages, we would be inclined to hold that the ruling of the trial court was prejudicial error. But as above stated, there was evidence tending to prove an actual loss in weight of the sheep amounting to approximately four pounds per head more than the usual loss upon an ordinary shipment of that character; and the evidence shows that on both October 1, and October 4, 1906, the market price of sheep in good condition was at least five cents a pound. Upon this basis, a verdict fixing the damages at $479.40 would have been justified, even if all other elements of damage were excluded. The verdict was less than that amount. The ruling complained of, therefore, evidently resulted in no injury to the appellant.

It is next claimed that the court erred in giving' certain instructions on behalf of appellee. As to this point, we have searched the abstract of the record and the record itself, and we are unable to find any statement to the effect that any objection was made to the giving of any of the instructions, or that any exception thereto was preserved. Under these circumstances, appellant is not in a position to complain of any alleged error in the instructions. We have nevertheless considered the arguments as to the instructions and may properly say that while several of the instructions are open to criticism and perhaps are erroneous, yet in our opinion the jury could not have done otherwise than find the issues for the plaintiff upon any reasonable view of the evidence, nor, having so found, could the jury have awarded any less amount as damages than the amount of the verdict.

It is also urged that the declaration does not state a cause of action. It is contended that section 20 of the Interstate Commerce Act, as amended by the Act of June 29, 1906, commonly known as the Carmack amendment to the Hepburn Act (34 U. S. Stat. at Large, 595), has superseded all state laws upon the subject of interstate shipments of goods and chattels; that under the first part of that section, no cause of action exists except in favor of the “lawful holder of a hill of lading, or receipt” for the shipment; and that in the absence of any allegation in the declaration that the plaintiff is the lawful holder of such a receipt or bill of lading, issued by the defendant, plaintiff has not brought itself within the main part of that act, but must recover if at all, under the proviso which preserves the common-law remedies.* The portion of the section which is pertinent to this case reads as follows: “That any common carrier, railroad or transportation company, receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” This section came before the Supreme Court of this state in Fry v. Southern Pac. Co., 247 Ill. 564, and it was there held that the section quoted is paramount to the state law in cases of interstate shipment. In Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, the section in question was sustained as a valid exercise of federal power, and it was said (p. 198) that by that section Congress “has declared, in substance, that the act of receiving property for transportation to a point in another state, and beyond the line of the receiving carrier, shall impose on such receiving carrier the obligation of through transportation, with carrier liability throughout;” also (p. 201) that: “It must be conceded that the effect of the act in respect of carriers receiving packages in one state for a point in another, and beyond its own lines, is to deny to such an initial carrier the former right to make a contract limiting liability to its own line.” In Adams Exp. Co. v. Croninger, 226 U. S. 491, the same court again had before it the same section of the act, and it was there said: “That the legislation supersedes all the regulations and policies of a particular state on the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all state regulation with reference to it.” In the case last cited, it was urged that the proviso above quoted preserves the right of action as it existed in the several states prior to the passage of the Carmack amendment; but the court held that the proviso has reference only to remedies existing at that time in the Federal courts, saying (p. 152): “To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing Federal law at the time of his action gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would cause the proviso to destroy the act itself.” These decisions clearly establish the rule that the liability of a receiving carrier for damages in cases of interstate shipments of property is now exclusively controlled by the provisions of the Carmack amendment, which was intended to, and does, cover the whole subject-matter, not only in suits brought to enforce the statutory liability created by the first clause of the amendment, but also in suits brought to enforce any common-law right of action, which latter right must be determined according to the principles recognized and enforced in the Federal courts prior to the enactment of that amendment.

As to the contention that no right of action accrues under the body of the amendment except to the “lawful holder of a receipt or bill of lading,” it is to be noted that the “remedy or right of action” which is preserved by the proviso, as well as the right of action given by the main part of the amendment, is the right of action which accrues to a “lawful holder” of a “bill of lading or receipt.” From this, it would seem to follow that if it is necessary, in a suit brought to enforce the statutory liability created by the main portion of the section, to allege and prove that the plaintiff is the “lawful holder” of a receipt or bill of lading, the language of the proviso (which preserves existing rights and remedies to the same person, i. e., to the “holder of such receipt or bill of lading”) makes such an* allegation quite as essential to the maintenance of a suit brought to enforce the common-law right of action thus preserved. And as the amendment covers the whole subject-matter, it would follow, if appellant’s contention in this respect is -sound, that the carrier could escape liability altogether by the simple expedient of refusing or neglecting to issue any receipt or bill of lading. But the first clause of the section imperatively makes it the duty of the carrier to issue such a receipt or bill of lading in all cases in which it receives property for -transportation from a point in one state to a point in another state; and the second clause expressly provides that “no contract, receipt, rule or regulation shall exempt such common carrier * * * from the liability hereby imposed.” Since, therefore, the receiving carrier is hound to issue a receipt or bill of lading, and is forbidden to make any contract, rule or regulation which exempts it from the liability imposed by the Carmack amendment, we think it is obvious that the statutory liability is imposed upon, and assumed by, the carrier, not by virtue of the issuance of any receipt or bill of lading, but by the act of receiving property from a shipper for interstate transportation. In our opinion, this is the effect of the construction placed upon the Carmack amendment by the Supreme Court of the United States in Atlantic Coast Line R. Co. v. Riverside Mills, supra. Under this interpretation of the amendment, whether the shipper actually receives a bill of lading or receipt from the carrier becomes a matter of no importance whatever, so far as the liability of the carrier to the shipper is concerned. To sustain the contention that the declaration must allege and the shipper must prove that the defendant has performed its statutory duty to issue a receipt or bill of lading, would enable the carrier to bring about by indirection and wilful violation of the statute, an exemption from liability which it could not otherwise be heard to assert, and thus to take advantage of its own wrong. It may be that the possession of such a receipt or bill of lading would be necessary if the suit were brought by some person other than the shipper, but that question is not before us, and we do not decide it. In International Watch Co. v. Delaware, L. & W. R. Co., 80 N. J. Law 553, a similar contention was made and the Supreme Court of New Jersey said: “The words, ‘lawful holder’ in the clause which provides that a common carrier shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, etc., were used to include not only the shipper but any assignee of the bill of lading; and where no bill of lading is given, the shipper himself stands in the same position as if he was the lawful holder of such bill of lading, and the liability of the company to such shipper is the same liability as is imposed in favor of the lawful holder of a receipt or bill of lading.” We agree with this reasoning and are of the opinion that the declaration• states a good cause of action under the Carmack amendment. If any bill of lading was in fact issued in this case and such bill of lading is held by any person other than the plaintiff, the facts in that regard might easily have been shown upon cross-examination of plaintiff’s witnesses, or otherwise. No attempt was made by appellant to show any such facts.

For the reasons indicated, the judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    Harry Mumaugh, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 17,764.
    1. Cabbiebs—disregarding counts. Counts of plaintiff’s declaration alleging that it was the duty of defendant to furnish a sufficient number of cars so that they should not become unreasonably crowded, and to furnish plaintiff a seat and that defendant failed to do so whereby plaintiff was obliged to sit upon a fender and by reason of defendant’s negligence was thrown off and injured are properly withdrawn from the jury where the evidence does not support them.
    2. Negligence—due care. In an action for personal injuries to plaintiff, a 14 year old boy, an instruction that the allegation in the declaration “that the plaintiff at the time and place in question, was in the exercise of due care for his own safety and protection” is a material allegation and unless the jury believe from the evidence that he was then and there “exercising such due and reasonable care for his own safety and protection as a person of his age, experience and intelligence would exercise under similar circumstances and conditions” he cannot recover, while not technically accurate is not harmful in a case where no other verdict than one of not guilty could reasonably be sustained.
    3. Cabbiebs—permitting log to ride on fender of street car. Where a street car conductor collects the fare of a boy riding a fender at the rear end of the car, though it be held that the carrier thereby permits the boy to ride on the fender as a passenger, such permission is not negligence per se.

    4. Cabbiebs—passenger in dangerous position. Where a carrier permits a passenger to ride on the fender of the car it assumes the duty of exercising the care demanded by the circumstances.

      5. Carriebs—negligence. Where there is no evidence that the defendant carrier was guilty of negligence when the car on which plaintiff, a boy of 14 years old, was riding on the rear fender, gave a jolt or lurch, causing him to fall off, a verdict of not guilty will be sustained.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 8, 1913.
    John C. King and James D. Power, for plaintiff in error.
    B. F. Richolson and C. LeRoy Brown, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiff in error sued the defendant railway company for damages for personal injuries alleged to have been sustained by being jolted from the rear fender of a street car upon which plaintiff was riding at the time of the accident. A verdict of not guilty was returned, and from a judgment entered upon that verdict the plaintiff appeals.

At the close of all the evidence the court instructed the jury to find the defendant not guilty as to the second and third counts of the declaration, and this ruling is assigned as error. The second count alleges, in substance, that it was the duty of defendant to furnish and provide a sufficient number of cars so that the same should not become unreasonably crowded; that defendant neglected so to do, whereby the car upon which plaintiff became a passenger was so unreasonably crowded, that “by reason of the crowded condition” thereof, plaintiff “was obliged to, and did, sit upon the fender upon the rear end of said car;” that he exercised due care for his own safety, but that “by reason of the premises and of said defendant’s negligence he was thrown and fell from and off the place where he was thus sitting on said car and upon the ground,” and was struck by another of defendant’s cars and severely injured. The third count alleges, in substance, that it was the duty of defendant to furnish the plaintiff with a seat, and defendant negligently failed to do so, and by reason thereof he was compelled to, and did, necessarily sit upon the fender; and that “by reason of the premises and of said defendant’s negligence he was thrown and fell from and off the place where he was thus sitting on said car to and upon the ground,” etc.

It is contended by appellee’s counsel that neither of these counts states a good cause of action; that there is no duty, as a matter of law, resting upon a street railway company either to provide a sufficient number of cars so that they shall not become “unreasonably crowded,” or to furnish every passenger with a seat; and that what is said in that respect in the case of Hickey v. Chicago City Ry. Co., 148 Ill. App. 197, namely, that the furnishing of cars which become unreasonably overcrowded “is in itself, prima facie evidence of a breach of duty by a common carrier of passengers” is not the law.

We do not find it necessary to affirm or disaffirm the doctrine stated in the Hickey case, supra, for the reason that this case is essentially different in its facts. In the Hickey case, it was not claimed that the injury resulted merely from the overcrowding of the car upon which Hickey was riding, or from the fact that because of the overcrowding, he was obliged to ride upon the angle-bar in front of the car, but it was claimed that the injury resulted from the negligent manner in which the car was operated, whereby a collision occurred. The abstract of the record in that case, on file in this court, shows that no count in the declaration alleged that the injury was caused by overcrowding or any insufficiency in the number of seats or cars. In the counts in question in this case, it is not averred that the injury resulted from any negligent operation of the car while overcrowded, but it is alleged that the injury to the plaintiff resulted solely from the failure of the defendant to furnish a sufficient number of cars and seats. There is no evidence whatever in the record as to what number of cars was being operated on Clark street at the time of the accident, nor is there any evidence fairly tending to prove that the mere" failure to provide the plaintiff with a Seat inside the car necessarily obliged him to take a seat on the fender, as charged in those counts. Furthermore, there is no evidence from which it can be legitimately inferred that the plaintiff’s injury was proximately caused by any failure on defendant’s part to provide more cars or more seats. Therefore, even if it be assumed that a recovery might be had under the second and third counts if supported by evidence tending" to prove the averments of those counts, we think that under the facts shown in this record the court did not err in instructing the jury to disregard them.

It is next urged that several of the instructions given by the court on behalf of the defendant were erroneous. Instructions 29 and 30 were unobjectionable, in our opinion. They conformed to the theory of the defendant and there was evidence tending to support that theory. The sixth instruction was intended to state the rule that the evidence of defendant’s employes should not be disregarded merely because they were employes of the defendant. It is evident, however, that in copying this instruction from some approved precedent, the line “simply because such witness was or is an employe of the defendant” was overlooked. The meaning, of course, is essentially different on account of this omission. Instruction 24 told the jury that the allegation in the declaration “that the plaintiff, at the time and place in question, was in the exercise of due care for his own safety and protection” is a material allegation, and unless the jury believe from the evidence “and under the instructions of the court” that he was then and there “exercising such due and reasonable care for his own safety and protection as a person of Ms age, experience and intelligence would exercise under similar circumstances and conditions,” he cannot recover and the jury should find the defendant not guilty. It may be conceded that neither of these instructions was technically accurate and perhaps, in a close case, it might be considered prejudicial error to give them without modification. In this case, however, a careful study of the evidence has convinced us that no other verdict than one of not guilty could reasonably have been sustained. It appears from the evidence that at the time of the accident plaintiff was fourteen years of age; that he had been looking for work and was returning home about 5:30 in the afternoon. The car in question was a Halsted street car, running on Clark street south from Washington street. According to the plaintiff’s testimony, he waited for the car at the corner of Harrison and Clark streets. When the car stopped at that corner, he testified that he noticed that the car was crowded, and thereupon, without making any effort to get inside the car or upon the platform or the step of the car, and without any apparent necessity for such action, he voluntarily took a seat upon the rear fender, where two other boys were then riding. The fender was folded up against the back end of the car and he sat with his back to the car, upon a small iron pipe which formed the end of the fender. Obviously, this position was a very insecure and unsafe one, and this fact was perfectly apparent to any one, even a boy of his age and understanding. The plaintiff and two other witnesses testified that while he was riding in that position, the conductor reached down from the rear platform, through a window which he opened for that purpose, and collected the plaintiff’s fare; also that after he had ridden on the fender from Harrison street to a point beyond Eighteenth street, the car “jolted or lurched,” and he was thereby thrown from the fender to the ground, falling to one side of the track in such a position that he was immediately struck on the head by another car which just at that moment came up on the other track. On the other hand, the conductor denied that he collected any fare from the plaintiff and testified that he did not see the boy at any time prior to the accident; and one of the passengers, who stood on the rear platform, testified that plaintiff was not riding on the fender, but was on the step on the “blind side” of the car, outside the closed doors of the vestibule. The manner in which the plaintiff received his injury tends to corroborate the defendant’s witnesses. But if the version of the plaintiff be accepted, the only facts upon which any negligence on defendant’s part can be predicated are the facts that the car “lurched or jolted” and that the conductor collected fare from the plaintiff while he was riding upon the fender. If the latter act be considered as an implied permission to the plaintiff to ride on the fender as a passenger, it has been held that such a permission is not negligence, per se/on the carrier’s part. If “the carrier permits a passenger to ride in that way, the carrier assumes the duty of exercising the care demanded by the circumstances.” North Chicago St. R. Co. v. Polkey, 203 Ill. 225, 232. It may be doubted whether a breach of any such duty is included in the general allegations of negligent operation made in the first count of the declaration; but if it be conceded that the allegations of that count are broad enough to admit proof of such a breach of duty, the only evidence tending to prove any failure on defendant’s part to exercise such cake as the circumstances demanded, is the evidence that the car “jolted and lurched.”

There is no evidence tending to prove that the car was going any faster at the time of the alleged jolt or lurch than it had been going from Harrison street to Eighteenth street. During all that distance, the plaintiff claims that he rode in safety on the fender. There is no proof that any act or omission of any servant of the defendant caused the car to jolt or lurch. There is no evidence or claim that the track or the car was defective. While a street railway company, as a carrier of passengers, is bound to do all that human care, vigilance and foresight can reasonably do, consistent with the mode of conveyance adopted, the practical operation of its railroad and the exercise of its business as a carrier, yet it is not an insurer of the absolute safety of passengers. So far as the evidence shows, the jolt or lurch was one of those inevitable incidents which are inseparable from the practical operation of street cars in public streets. It may also be said, as was intimated in Chicago City Ry. Co. v. Schmidt, 217 Ill. 396, 400, that since the plaintiff voluntarily took the unusual position he was in when the car jolted “he might doubtless have been held guilty of contributory negligence per se.”

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Barney Benson, Appellee, v. Chicago Hallways Company, Appellant.
    Gen. No. 18,033.
    1. Evidence—impeachment of witness. Plaintiff cannot he asked on cross-examination whether he had been convicted of the crime of manslaughter.
    2. Damages—when excessive. Where plaintiff, a man fifty-four years old, weighing 313 pounds, is injured by being thrown from a buggy in a collision with a street car, and though the evidence shows he was bruised on the head and four ribs were broken there is no evidence to show that his earning capacity is decreased and the only evidence as to whether the injuries are permanent is based on hypothetical questions stating that the subsequent symptoms “did not seem to improve,” a judgment for $3,500 is excessive and a remittitur of $1,500 is ordered.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stouqh, Judge, presiding. Heard in the Branch Appellate Couri at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed May 8, 1913.
    Frank L. Kriete, Joseph D. Ryan and William H. Symmes, for appellant; John B. Guilliams, of counsel.
    John C. King and James D. Power, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

On April 26, 1910, about midnight, plaintiff and another man were going north on Sangamon street near Grand avenue in a single top buggy. There is a double street car track in Grand avenue, and as they came up to the crossing, plaintiff, who was driving, said he looked in both directions and saw nothing. A little further along, before the horse reached the first track, plaintiff looked again and saw a car, nearly a block east, coming towards him rapidly on the north track. His horse was trotting and he judged that he had plenty of time to cross ahead of the car. As the horse passed over the south track, however, plaintiff noticed that the street car was very close to him, and he struck the horse with the reins. The horse jumped forward and cleared the tracks, but the car struck the hind wheel of the buggy, overturned it, and plaintiff and his companion were thrown to the ground. Plaintiff was a large man, weighing over 300 pounds. He was unconscious when picked up, and was taken to a hospital. He was cut and bruised on the head and shoulders and four ribs were broken. From a judgment in his favor for $3,500, the defendant railway company appeals.

It is insisted by appellant’s counsel that plaintiff was guilty of a want of ordinary care and of contributory negligence, in attempting to cross ahead of the street car, under the circumstances. Ordinarily, these are questions of fact for the jury to determine, and this court is not authorized to reverse the finding of the jury as to such facts unless, from a careful review of the evidence, the court is of opinion that the verdict is clearly and manifestly against the weight of the evidence. We have studied the abstract and carefully noted the argument of counsel regarding the alleged want of care and alleged contributory negligence of plaintiff, and find ourselves unable to say that the verdict is manifestly against the weight of the evidence. As frequently happens in such cases, the evidence shows exaggeration in some respects on both sides. In weighing the evidence, however, due allowance must be made for the admitted fact that it was a dark and rainy night, when any witness might easily be deceived as to exact distances and rates of speed. Bearing this in mind, we think there is nothing unreasonable or improbable in the story of plaintiff’s witnesses, which, in its main features, is contradicted only by the evidence of the motorman. The version of the accident given by the motorman is contrary to that given by two passengers who stood beside him upon the front platform of the street car. The trial court and the jury saw these witnesses and heard them testify, and were in a better position to judge of their credibility than we are.

It is next urged that the court erred in refusing to allow plaintiff to be asked on cross-examination whether he had been convicted of the crime of man, slaughter. In Bartholomew v. People, 104 Ill. 601, in construing section 6 of division XIII, of the Criminal Code, which permits a conviction to be shown for the purpose of affecting the credibility of a witness in a criminal case, the court held that the kind of conviction which might be shown under that section of the statute, is a conviction of an infamous crime, and said that manslaughter was not deemed infamous either at common law or under the statutes of this state. In People v. Russell, 245 Ill. 268, the court said (p. 275): “Whether or not a crime is infamous in this state depends not upon the common law but upon the statute.” That case.also includes manslaughter as among the crimes not classed as infamous (Ibid 278). In Burke v. Stewart, 81 Ill. App. 506, the Appellate Court of the Second District held that the rule announced in the Bartholomew case, supra, is also applicable to section 1 of chapter 51 of the Revised Statutes, which prescribes the rule in civil cases. See also Clifford v. Pioneer Fireproofing Co., 232 Ill. 150. We do not regard the case of McLain v. City of Chicago, 127 Ill. App. 489, as opposed to this view, for the reason that the conviction which it was there held could be shown to affect the credibility of a witness was a conviction for petit larceny, which was an infamous offense, both at common law and under the statute in force at that time. See People v. Russell, supra. In our opinion, there was no error in the ruling of the trial court in this respect. Other minor errors in the admission or exclusion of evidence are alleged, but we see no reversible error among those assigned and discussed in the briefs of counsel.

It is urged that the fifth instruction given on behalf of plaintiff, relative to damages, is erroneous. Since the briefs in this case were written, the Supreme Court has approved this identical instruction in Thompson v. Northern Hotel Co., 256 Ill. 77, upon facts similar to those here involved. Upon the authority of that case, we think there was no error in giving the instruction. As to the two refused instructions concerning which complaint is made, we think they were substantially covered by the instructions given.

It is further claimed that the verdict is excessive. We are inclined to agree with this contention. There is no evidence in the record as to plaintiff’s earning capacity, beyond the mere fact that he testified that he was a contractor, and no evidence to show whether he is earning more or less now than before the accident. Appellee’s counsel, without describing the physical injuries sustained by plaintiff, refer us to the hypothetical question put to Dr. Cox, as containing a fair statement of such injuries. That question, in substance, directed the doctor to assume that a man fifty-four years old, weighing 313 pounds, was riding in a buggy across a street car track, that the rear wheel of the buggy was struck by a street car going 18 or 20 miles an hour, the buggy overturned and the man thrown to the ground, that he became unconscious and regained consciousness eight hours later, that he had a wound on the left side of his head, and bruises on his back and side, that four ribs on his right side were broken, that he suffered pain in the head, in the side, and in the ear, and had a “whistling sensation” and pain in his left ear, which continued up to the time of the trial, that the pain in the back is along the spinal column, and is constant, that his back, is stiff and “does not seem to improve,” that the hearing in his left ear has been impaired, and that prior to the accident he had none of these symptoms. Dr. Cox testified that in his opinion the injuries described in the hypothetical question were permanent. But he said that he based this opinion upon the statement in the hypothetical question that the symptoms described “did not seem to improve.” Upon the trial plaintiff himself ascribed certain other injuries, from which he was suffering, to this accident, but his counsel distinctly repudiated any such claim, and we think properly so, as it appeared that such other injuries existed before the accident happened. It also appeared that he previously suffered from rheumatism. Under the circumstances, we cannot but feel that the amount of the verdict is considerably more than' plaintiff is entitled to upon any theory of fair compensation for injuries actually sustained. If, therefore, the plaintiff will file a remittitur of $1,500 in this court within ten days, the judgment will be affirmed; otherwise it will be reversed and the cause remanded for a new trial.

Affirmed on remittitur; otherwise reversed and remanded.


author: Mr. Justice McSurely

text:
    Steve Novak, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 17,128.
    Master and servant—when instruction erroneous as assuming controverted points. In an action for personal injuries, where the evidence is sharply conflicting whether an alleged “straw boss” of defendant was present and directing the work at the time of the accident, it is prejudicial error to instruct that where an act is performed by a servant in obedience to a command of one having authority to give it, and the act is attended with danger, the servant need not balance the danger and decide with certainty whether he must do the act; and his knowledge of attendant danger will not defeat his right of recovery if, in obeying, he acts as an ordinarily prudent man would under the circumstances, provided these facts are warranted by the evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed May 8, 1913.
    Kretzinger, Rooney and Kretzinger, for appellant.
    Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment obtained by-Steve Novak, hereinafter called plaintiff, against the Grand Trunk Western Railway Company, hereinafter called defendant, in a suit to recover damages for personal injuries received by him while employed as a laborer in the repair shops of the defendant.

It was claimed by the plaintiff that one Frank Mudra was a “straw boss,” acting for the defendant, to whom the plaintiff owed the duty of obedience, and that while obeying orders of Mudra the accident in question happened. There was much testimony touching the position of Mudra, and it is earnestly argued by the defendant that he was not a “straw boss” but only a fellow-servant with plaintiff.

The plaintiff testified, in substance, that Mudra was bossing a job of repairing a car in the repair shop of defendant; that he gave detailed instructions to the workmen as the work progressed; that the crew working on this car was composed of the plaintiff, Ms brother Pete Novak, Steve Fabian, and the “straw boss,” Frank Mudra; that Mudra ordered Pete to go under the car, and then ordered Fabian and the plaintiff to raise it up from the trucks with a crowbar; that this was done and that Mudra then ordered Fabian to let go of the bar and to drive in a “bolster;’’ that plaintiff protested that he could not hold up the car alone as it was too heavy, but Mudra, insisting that plaintiff could hold it, ordered Fabian to let go; that as soon as Fabian let go the bar the weight of the car was too great for plaintiff to hold alone, and the car suddenly pushing down the end of the crowbar under it caused the other end, which plaintiff was attempting to hold, to fly up, and it struck him in the eye, inflicting the injuries complained of.

This story of the occurrence is corroborated by «the plaintiff’s brother, Pete. These were the only witnesses testifying to the occurrence on behalf of the plaintiff.

Opposed to this was the testimony of four witnesses, to the effect that Mudra was not present at the scene of this occurrence, and at the time was not in the yard at all. Mudra himself testified that he was not in the yard at the time but was about one-half mile away. The testimony of Steve Fabian supports the claim of defendant that Mudra had nothing to do with the accident. Fabian says that Mudra was not working on the car in question, and gave no orders concerning the same, as testified to by plaintiff. Fabian, who both parties say was one of the crew working with plaintiff at the time of the accident, flatly contradicts the story of the plaintiff and his brother with reference to Mndra’s connection with it. Other witnesses testified as to Mndra being outside of the yard at the time.

It was therefore necessary that the instructions should not tend to mislead the jury, especially upon the vital questions of fact involved. Under these conditions the following instruction was given:

“The court instructs you on the law in this case, that where an act is performed by a servant, in obedience to a command by one having authority to give it, and the performance of the act is attended with a degree of danger, yet, in such case, it is not requisite that such servant shall balance the degree of danger, if any, and decide with absolute certainty whether he must do the act or refrain from doing it; and his knowledge of attendant danger will not defeat his right of recovery, if in obeying the command he acted with the degree of prudence that an ordinarily prudent man would have done under the circumstances, provided these facts are warranted by the evidence.”

It is manifest that this instruction proceeded upon the assumption that plaintiff had performed the act in question in obedience to a command from Mndra, and also that Mndra had authority to give such commands, both of which points were the principal controverted issues in the case. The instruction does not require the jury to believe anything from the evidence as to these controverted points. It assumed the plaintiff’s theory to be true and the defendant’s to be untrue. It would almost necessarily work injuriously to the defendant. The words “provided these facts are warranted by the evidence” are not equivalent to requiring the jury to believe facts from the evidence, and do not cure the harm in the instructions.

For the error indicated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice McSurelt

text:
    S. Goldberg, Defendant in Error, v. Joseph Cohen and L. Bernstein, Defendants. L. Bernstein, Plaintiff in Error.
    Gen. No. 17,801.
    Appeals and errors—delay. Writ of error held sued out for purposes of delay and statutory damages awarded.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 8, 1913.
    Louis Greenberg, for plaintiff in error.
    William R. Brand, for defendant in error.
   Mr. Justice McSurelt

delivered the opinion of the court.

This is a suit on an appeal bond. The defendant, Louis Bernstein, claimed that he did not sign the bond in question. Whether he did or not was submitted to a jury, which found the issues for the plaintiff, and judgment was entered against the defendant, Bernstein.

It is assigned as error that the verdict of the jury is against the weight of the evidence. Upon which side was the greater weight of evidence depended upon the judgment of the jury as to the credibility of the witnesses. We cannot say from anything appearing in the record before us that the jury was in error in attaching greater weight to the testimony on behalf of the plaintiff than to that for the defendant. This court necessarily must be influenced largely by the conclusion of the jury and trial court as to the credibility of witnesses.

Defendant in error claims that this writ of error has been sued out for purposes of delay, and asks that the judgment herein be affirmed with statutory damages. The original judgment, to secure which the bond in question was given, was entered on February 15, 1906, and the bond itself was dated March 7, 1906. The history of this matter, which it is needless to narrate, convinces us that the contention of the defendant in error is well founded. The judgment will therefore be affirmed and the defendant in error will be awarded statutory damages to the amount of twenty dollars.

'Affirmed.