text:
    Alvin DeFrates, Appellee, v. Central Union Telephone Company, Appellant.
    1. Variances—when objection comes too late. An objection of variance which is not raised until the close of the plaintiff’s evidence, comes too late and is thereby waived.
    2. Master and servant—when Knowledge of defective appliances need not be established. If the defect was one of construction rather than ensuing disrepair, the knowledge thereof in the master need not be affirmatively proved.
    3. Master and servant—when doctrine of assumed risK does not apply. A servant is not chargeable with knowledge of latent defects not discernible by. tests applied by him; the servant is not required to search for latent defects and dangers arising from the original condition of the place to which he is sent to work and he does not assume the risk of defects of -which he has no knowledge or which he could not discover by the use of ordinary care and of which the master has or ought to have had knowledge.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 2, 1909.
    W. B. Mann, Conkling & Irwin and David K. Tone, for appellant.
    T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action in case, appellee, DeFrates, recovered a judgment for $1,500 against the Central Union Telephone Company, appellant. The first count of the declaration charges that the defendant was the owner of and operating a telephone line near Peoria, Illinois; that the plaintiff was an employe of the defendant, and engaged in stringing, taking off and repairing wires on the defendant’s lines; that on August 6, 1907, the plaintiff was ordered to and went on one of the defendant’s poles for the purpose of taking off certain wires; that it became and was the duty of the defendant to use reasonable care to have furnished the plaintiff a reasonably safe pole upon which to stand and do said work, but that the defendant, neglecting its duty in that behalf, sent the plaintiff on a pole which was rotten and defective, of which condition the plaintiff did not know and in the exercise of ordinary care could not have known; that the plaintiff climbed said defective pole, and while removing said wires and in the exercise of ordinary care for his own safety, said pole broke and fell, by reason of which plaintiff was injured. The second count is substantially the same as the first count, except that it charges in addition that the defect in said pole “should have been known to the defendant in the exercise of reasonable care.”

At the close of the plaintiff’s evidence, counsel for the defendant requested the court to instruct the jury to find the defendant not guilty, because the declaration varied from the proof, in that it was therein charged that the plaintiff was directed by the defendant to climb the pole in question, whereas the proof showed that the plaintiff was merely directed to remove the wires from certain poles. This motion was denied; whereupon the defendant moved the court to direct a verdict for the defendant, which motion was also denied. Said motions were renewed at the close of all the evidence and again denied.

The evidence shows that during January, 1906, the defendant company for the purpose of furnishing telephone communication and service to one Keene, a farmer whose dwelling house was about two hundred and fifty yards south of the road upon which the defendant’s main lead ran, caused three poles strung with wires to be set at intervals between said points. A short time thereafter for the purpose of raising the wires a fourth pole was placed between the one nearest the house and the house itself. In August, 1907, at the request of Keene, the defendant started to remove said poles and wires to another part of the premises so as to connect with another line of the defendant which ran along the east boundary of the farm. The plaintiff was at the time in the employ of the defendant, under the direction of the defendant’s foreman, Woods. He testified in substance that he was directed by Woods to go to Keene’s farm and take the wires off the original poles, whereupon he went to the place and first tested the fourth pole by shaking and jerking it, and then climbed it and untied the wires; that he then went to the third pole and after testing it in like manner climbed to the top, untied the wires,, and then walked around on the pole to the other side, to which was attached a guy wire extending from the pole to a rail fence about twenty feet away, and that as he was about to cut the guy wire the pole broke, throwing him to the ground, whereby the bone of his leg was fractured. The evidence as to whether the pole was defective as charged was conflicting. The jury doubtless found that it was, and we are not at liberty to disturb such finding, as there was sufficient evidence which, if credible, warranted the same. There was no evidence tending to show that the plaintiff was directed by the foreman to climb the particular pole in question, and it is insisted that the court erred in refusing to direct a verdict on the ground of variance. We are of the opinion that the question of variance, if any, was not so raised by appellant as to permit it to take advantage of the same. Had the specific objections been raised at the time the evidence as to what, in the way of direction, was said to appellee by the foreman, was. introduced, appellee would have been afforded an opportunity to amend his declaration by striking out the allegation as to specific directions. The question was not raised until at the close of the plaintiff’s evidence and must therefore be regarded as waived. City of Joliet v. Johnson, 177 Ill. 178; C. C. Ry. Co. v. McClain, 211 Ill. 589.

The evidence tends to show that the bottom of the pole in question was decayed and rotten, that such condition was latent, not patent, and that it was an old pole at the time it was planted upon Keene’s premises by the employes of appellant; that appellee had never seen it prior to the time he climbed it, and that he shook the pole before climbing it and failed to discover its condition; that this was the usual method of testing poles, and that he had no other means at hand with which to investigate and determine its soundness. It further appears from the evidence that an inspector in the employ of appellant whose duty it was to inspect poles and make repairs, was at the Keene farm where the poles were, and that although the subject of removing them was under consideration he failed to examine the same.

It is insisted that the court erred in giving to the jury plaintiff’s first instruction which authorized them to return a verdict for the plaintiff without proof that the defendant knew, or, in the exercise of ordinary care, could have known of the defective condition of the pole in question. This is not a case where proof of such fact was essential. The jury was warranted in finding that the pole was defective when planted on the Keene farm, and the defendant, in law, mnst be held to have known of such condition. Had the pole been in reasonably good condition in the first place and became rotten and decayed from use and the ravages of time, a different rule would apply. The instruction required proof of the material allegations which included the negation of the assumption of risk by the plaintiff, and the court did not commit error in giving the same.

It is contended that the risk of injury from the defective pole was assumed by the plaintiff by virtue of his employment. It was the duty of the defendant to use reasonable care to furnish the plaintiff with a reasonably safe pole upon which to climb in the performance of his duties. Such implied duty arose from the contract of employment and existed without regard to custom. The pole, as has been said, was originally defective, and the defect was a latent one, not discoverable by the test applied by the plaintiff, which the jury was justified in finding was the only one which he, in the exercise of ordinary care, was required to make. He was not required to search for latent defects, and dangers arising from the original condition of the pole, and did not assume the risk of defects of which he had no knowledge or which he could not discover by the use of ordinary care, and of which the defendant had or ought to have had knowledge (C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492), and had the right to assume that the defendant had exercised reasonable care to see that the pole was reasonably safe for the use which the plaintiff in the regular line of his employment was expected and required to make of it. Ehlen v. O’Donnell, 205 Ill. 38. The plaintiff therefore did not assume the risk of injury from the defective pole. Mann v. I. C. T. Co., 236 Ill. 30.

It is urged that the general rule that a master must exercise reasonable care to furnish a reasonably safe place for his servant to work does not apply, because the plaintiff was engaged in dismantling and removing the poles and wires. The facts in the case do not bring the same within the exception to the rule. It is well known to all that in the maintenance of telegraph, telephone and similar systems, it is necessary for employes frequently to climb the poles upon which wires are strung for the purpose of repairing, adjusting and changing the position of the wires. It is obvious that the fact that it was ultimately intended in the present instance to remove the pole to another location, did not take the case without the general rule as to the rights and duties of the parties.

The foregoing views are, we think, decisive of the remaining questions raised and argued by the defendant. The record is free of prejudicial error and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    Elisha Adams, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Negligence—practice of kicking cars. The practice of kicking or dropping cars and running switch engines and cars in railroad yards without giving adequate warning of their approach to employes engaged in the performance of their duties, clearly constitutes negligence.
    3. Instructions—when refusal to withdraw count not error. Notwithstanding there may have been no evidence to support a charge of wilfulness contained in a particular count, it is not error for the court to refuse to withdraw such count from the jury if there were other counts in the declaration sufficient to sustain the verdict.
    Action ini case for personal injuries. Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 14, 1909.
    George B. Gillespie and A. M. Fitzgerald, for appellant ; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and Andrews & Vause, of counsel.
    Craig & Kinzel, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by which appellee seeks to recover from appellant damages for personal injuries sustained by him through the negligence of its servants while he was in its employ. The jury returned a verdict finding appellant guilty and assessing appellee’s damages at $2,000. To reverse the judgment rendered upon such verdict this appeal is prosecuted.

Three counts of the declaration allege, substantially, that on the 10th of April, 1906, while the plaintiff was employed by the defendant in and about its roundhouse in the city of Mattoon as a supply man, he was directed by the foreman of the roundhouse under whom he worked, to place a globe upon the cab of engine No. 728, which was located somewhere in the yards; that after he had placed the globe on such engine and was endeavoring to return to the roundhouse, and while on track No. 8 in said yards, a caboose was being negligently driven by the servants of the defendant, not fellow-servants of the plaintiff, along the ladder track at a great speed without a light or any person being upon the end of said caboose, by means whereof and because of said negligence of such servants of the defendant, and while he was in the exercise of due care, he was struck by said caboose and injured. The third count charges that the servants of the defendant were engaged in running cars attached to a switch engine and that while the plaintiff was in the exercise of due care, said cars were by said servants wilfully and negligently uncoupled and detached from said engines, whereby and as the result of the wilful and wanton negligence of the servants of the defendant, the plaintiff was struck and injured.

The evidence discloses the following facts: Prior to the day he was injured appellee Adams had been employed by appellant in its yards at Mattoon for some fifteen years, and for the last two and one-half years of that period as a supply man. His duties were to furnish all locomotive engines coming into and going out of the yards with waste, tools, oil and such other supplies as were needed. At the point where he was struck and injured, which was west of the roundhouse, there were from twenty to twenty-five tracks upon which for over fourteen years, switching had constantly been done both day and night. Shortly before nine o’clock on the evening he was injured, Adams was directed by Taylor, the foreman of the roundhouse, to put a globe in the cab of engine No. 728, which was to haul train No. 99 out of the yards on that night, and was located some where in the yards.

The east and west tracks in the yards were numbered from 4 to 11, inclusive, and ran parallel to each .other. What was known as the “ladder” track ran diagonally across tracks five, six, seven, eight, nine and ten, beginning and connecting with track four and running to track eleven, and was so arranged that from it, cars could be placed upon either of the tracks numbered four to eleven, inclusive. In accordance with the directions of the foreman, Adams, carrying a lantern, left the roundhouse with the globe, but failed to find the engine, and returned to the roundhouse. After making inquiries as to its whereabouts he went east from the roundhouse to a point opposite the engine in question, which was standing on track seven, about 250 feet east of the yard office, and crossing several tracks reached the engine and placed the globe upon it. He then started to retrace his steps in coming. He proceeded about twenty feet, and while attempting to cross track No. 8, at the point where it connected with the ladder track, was struck by a caboose which was being “kicked” from track No. 4 to track No. 10, and so injured as to necessitate amputation of both his legs. Although the evidence relative thereto was in conflict, we think the jury was warranted in finding that through the momentum acquired from the engine, and because of a decline in the yards towards the east, the caboose was running at a comparatively high rate of speed at the time, and that there was no light or person stationed upon the east end of the caboose.

We are unable to say as a matter of law that the servants of appellant were not guilty of negligence under these circumstances, nor that contributory negligence on the part of appellee was so clearly shown that a verdict should have been directed, nor that all reasonable minds would agree without hesitation that appellee, as an incident to his employment, assumed the risk of being injured in the manner shown by the evidence. These issues of fact were therefore properly submitted to the jury for determination; and unless we are satisfied that their conclusions thereon were clearly and manifestly contrary to the weight of the evidence, we, as a court of review, are bound thereby. Notwithstanding the evidence is in close conflict, we are not prepared to so hold. The practice of kicking or dropping cars and running switch engines and cars in railroad yards without giving adequate warning of their approach to employes engaged in the performance of their duties, clearly constitutes negligence. C. J. Ry. Co. v. McGrath, 203 Ill. 511; P. C. C. & St. L. Ry. Co. v. Bovard, 223 Ill. 176. The jury was not unwarranted in finding that appellee followed the safest route in going to and returning from the engine at which he was directed to leave the globe, and that notwithstanding he looked and listened he was unable to see the approaching caboose and was unaware of its proximity until he was struck by it. The evidence tends to show that appellee was unfamiliar with the part of the yard into which he was required to go, and was unaware that it was the custom to switch engines and cars from one track to another in the manner followed, without giving warning to those who might lawfully be upon such tracks. The jury therefore properly found that the increased hazard thereby created was not one which appellee assumed.

There was no evidence tending to sustain the charge of wilfulness and wantonness contained in the third count, and appellant offered an instruction telling the jury that it was their duty to disregard such count. It is insisted that the refusal of the court to give this instruction constituted prejudicial error. While the proper practice would have been to withdraw the count in question from the jury, the refusal so to do was not reversible error, there being other counts sufficient to sustain the verdict. Klofski v. Railroad Supply Co., 235 Ill. 146. No complaint is made as to the rulings of the court upon other instructions or the evidence, nor is it claimed that the verdict is excessive.

Applying the law applicable to the facts as found By the jury, a clear right of recovery was established, and the judgment will Be affirmed.

Affirmed.


text:
    Daisy T. Baker, Appellant, v. Wilbert H. Wheeler et al., Appellees.
    1. Deceit—what will not sustain action of. Statements though false and morally wrong do not constitute fraud in legal contemplation and will not sustain an action of deceit if there is no relation of trust or confidence between the parties creating a duty to speak the truth.
    2. Deceit—what not false representation of material fact. Held, that a statement that a party having land for sale would not take less than a particular sum is not the statement of a material fact and if false will not support an action for deceit.
    Action on the case. Appeal from the Circuit Court of De Witt county; the Hon. Solon Philbbick, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 19, 1909.
    Ingham & Ingham, for appellant.
    John Fuller and Lemon & Lemon, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case to recover damages resulting from fraud and deceit alleged to have been practiced by the appellees upon the appellant. At the close of the plaintiff’s evidence by direction of the court the jury returned a verdict for the defendants. To reverse the judgment rendered thereon this appeal is prosecuted by the plaintiff.

The declaration consists of two counts to which de-. murrers were interposed and overruled.

The declaration charges in substance, that the plaintiff resided in McLean county, Illinois, during March, 1906; that she wrote to the defendants at Nevada, Missouri, with reference to the character and price of certain Missouri lands which they, the defendants, had for sale as agents for the owners; that the defendants thereupon called upon her with reference thereto, and that later one Baker, at the request of the plaintiff and upon the invitation of the defendants, went with the defendants to Missouri to inspect the lands in question; that after examining the land, Baker advised the defendants that none of it was satisfactory, whereupon the defendants represented to him that as they had no land that suited him, they would, representing the plaintiff, try to find a farm that would be satisfactory to him, Baker, and that in so doing they would represent the plaintiff, and act in her behalf and interest; that afterward Baker and the defendants visited one Buford in Vernon county, Missouri, and immediately thereafter the defendants represented to Baker that they had for and on behalf of the plaintiff induced Buford to sell his farm of 194 acres to the plaintiff for $9,700, which representations he, Baker, communicated to the plaintiff; that thereafter the defendants called upon the plaintiff and represented to her that they had, acting on her behalf, induced Buford to enter into a contract with her that would be greatly to her benefit; that Buford asked $55 an acre for the farm, but that, on her behalf, they had persuaded him to accept $50 per acre, and further that Buford had refused to let her have the said lands for less than $50 per acre. That said representations thus made by the defendants to the plaintiff, as well as those made to Baker and by him communicated to the plaintiff, were false and fraudulent and were all known by the defendants to be false and fraudulent at the time they were made, and were made for the purpose of defrauding the plaintiff and to procure from her $1,940 more for the land than was asked therefor by Buford. That the plaintiff replying upon said representations, bought said land and paid Buford part of the purchase price of $9,700, and to the defendants for Buford the remainder, for the land in question, and received conveyance and possession of the same. That after having made said representations to Baker and the plaintiff, the defendants fraudulently and without the knowledge of the plaintiff entered into a contract with Buford whereby they agreed to furnish a purchaser for said lands in consideration that they should have and retain for their services all they could obtain therefor over and above $40 an acre. That at the time aforesaid Buford only asked $40 an acre for the said land and told the defendants that the plaintiff could have the same for $40 an acre or a total of $7,760, and that the excess paid by plaintiff over that sum was fraudulently obtained by the defendants from the plaintiff and by them retained for their own use and benefit, whereby the plaintiff had been fraudulently deprived of the same.

There is evidence tending to prove the following facts, which, in determining whether or not a verdict was properly directed, must be taken as true: The appellant, Daisy T. Baker, who was unmarried and lived at Normal, Illinois, having seen the advertisement of appellees, Wheeler and Harrison, as agents for the sale of Missouri lands, wrote to them asking information relative to the character and price of such lands. In response thereto they called upon her and had an interview, as the result of which one Baker, who was engaged to and afterward did'marry appellant, went to Missouri with appellees and inspected all of the lands they had for sale, none of which suited Baker. On their return, as they were passing a farm owned by one Buford, appellee Wheeler stopped the team and leaving Baker and appellee Harrison in the vehicle, went to Buford’s house and inquired of him whether his farm was for sale. Buford replied that it was, and that the price was $40 per acre net to him. Wheeler and Buford then joined Baker and Harrison, and they together drove over and examined the farm. Afterward and out of the presence of Buford, Baker asked Wheeler what Buford wanted for the farm. Wheeler replied that he asked $55, but added “we will say $50.” Baker and appellees then returned to Illinois, and shortly thereafter Wheeler called at the home of Mrs. Troxel, the mother of appellant, with whom she resided, and found her absent. In a conversation with Mrs. Troxel and Baker relative to the Buford farm, Wheeler told them that “$50 was the lowest that' he could get it for from Mr. Buford.” Some time thereafter Harrison called upon appellant and told her that Buford had offered to take $50 per acre, and that “he couldn’t get him down another cent”; that while Buford wanted $55, he had succeeded after hard work in getting him down to $50. Appellant then signed a contract with Buford by the terms of which she purchased the farm for $50 an acre, Buford agreeing to accept on account of the purchase price, certain property of appellant in Normal at a valuation of $1,700-. When the time for performance of the contract arrived, appellant, her mother, and appellee Harrison met at the office of one Mitchell, an attorney at Clinton, who had prepared the deeds of exchange, and closed the transaction. Appellant paid to Mitchell for Buford $1,740 in cash, the balance of the purchase being represented by a deed to the Normal property and a mortgage back on the farm. In accordance with a written order from Buford the deed to the Normal property was made to appellee Harrison, for the reason, as assigned by Harrison, that such course would save time and inconvenience in case they found a purchaser for the property.

After the parties had left Mitchell’s office Harrison returned and informed Mitchell that $240 of the cash payment of $1,740 was due to appellees for commissions, and upon Harrison’s agreeing to save bim harmless, Mitchell paid that sum to him and sent the balance to Buford. Harrison afterward admitted to Mitchell that he and Wheeler received the Normal property and the $240 in question as their commissions. It is obvious that the representation to appellant’s agent Baker, that Buford would not take less than $50 per acre for the land, which statement is not disputed, was false, and that by reason thereof appellant paid $1,940 more for the property than she would otherwise have had to pay. The vital question, therefore, is whether appellant had a right to rely upon it. It is conceded by her counsel in argument that the averments of the declaration with reference to the existing relations of agency between the parties were not all proved. They contend, however, that it is immaterial whether appellees were the agents of Buford or of appellants; that in either event they are liable to appellant for the fraud practiced upon her; that it is not always necessary to allege or prove fiduciary relations to exist to enable one person to recover from another for false representations; that even when parties are dealing at arms’ length if one of them makes to the other a positive statement upon which the other acts, with the knowledge of the party making such statement, in confidence of its truth, and such statement is known by the party making it to be false, such conduct is fraudulent and from it the guilty party can reap no benefit.

We are unable to agree with such contentions. The statement, though false and morally wrong, did not constitute fraud in legal contemplation, there being no relation of trust or confidence between the parties creating a duty resting upon appellants to state the truth. Banta v. Palmer, 47 Ill. 99; Tuck v. Downing, 76 Ill. 71. On the contrary the evidence discloses that appellees were the agents of Buford. The legal status of Buford and appellees so far as appellant was concerned was as one. The interests of appellant on the one side and Buford and appellees his agents, on the other, were manifestly antagonistic. Appellees were but the mouth-piece of Buford in the transaction and their statements as to what sum Buford would take for the land must be taken as though made by Buford himself. In this view the representation complained of amounted to but a false statement by Buford that he would not take less than $50 per acre for the land. Under the circumstances such statement though untrue was clearly not the false representation of a material fact. We do not attach much weight to the case of Kice v. Porter, (Ky.) 61 S. W. 266 (not officially reported), cited by counsel for appellant in support of their contention. No authorities are cited in the opinion to sustain the conclusions reached and we are not impressed with the reasoning by which it is sought to support the same. The case of Tate v. Watts, 42 Ill. App. 103, also cited by counsel for appellant, is not in conflict with the foregoing views. In that case a recovery was had against an agent for the sale of land. The wilful fraudulent representation on the part of the agent related to the proximity of the land to a certain village. The land in fact was in an entirely different location from that stated by the agent. The vendee who was a nonresident and knew nothing of the land or its location, relied upon the statements of the agent and paid much more for the land than he would have, had it been situated as represented. There was thus an untrue representation of a material fact, knowingly made, and relied upon by the purchaser, by reason of which the agent became liable to the vendee for the resultant damages.

We are of opinion that the judgment of the Circuit Court was warranted and it is accordingly affirmed.

Affirmed.


text:
    George Preble, Administrator, Appellee, v. Wabash Railroad Company, Appellant.
    1. Damages—what incompetent in action for death caused by •wrongful act. In such an action it is improper to permit the widow of the deceased to testify that she was dependent upon him for support; held, however, that the admission of such evidence in this case was not ground for reversal inasmuch as it was not argued that the verdict was excessive.
    2. Damages—what incompetent in action for death caused by •wrongful act. In such an action it is improper to permit the widow of the deceased to testify to the birth of a still-born child; held, however, that such evidence was not prejudicially erroneous.
    3. Master and servant—habitual violation of rules. Held, that it was competent to permit the introduction of evidence tending to show the habitual violation of a rule prohibiting brakemen from riding upon the pilots of engines, prior to the time the plaintiff’s intestate entered into the employ of the defendant.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 19, 1909.
    Anderson & Matthews, for appellant; J. L. Minnis, of counsel.
    W. E. Williams and A. Clay Williams, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action for the recovery of damages on account of the death of John E. Aiten, which it is alleged was occasioned by the negligence of appellant, appellee, as administrator, recovered a judgment against appellant for $4,000. To obtain a reversal of the same this appeal is prosecuted.

The first count of the declaration charges in substance that the defendant negligently deposited and maintained a pile of cinders between its side and main tracks at Island Grove; that the deceased was a brakeman in the employ of the defendant, and that on August 26, 1907, while engaged in such duty and while in the exercise of due care for his own safety, and while of necessity he was passing to and from the engine of the train while in motion, and attempting to board the engine at and near and along said pile of cinders, he was thrown by the same upon the tracks, and was caught in the wheels and gearing of said train, thereby receiving injuries from which he died.

The second count charges that while the deceased was of necessity boarding said engine while in motion, his feet were caught in and by the said pile of cinders, and he was dragged and thrown hy said cinders to and upon the ground and thereby injured.

The third count charges that while said engine was being switched in connection with picking up and setting out cars, and while the deceased was standing and riding upon the pilot of said engine and while the said engine was passing along over and through said pile of cinders, the feet of the deceased were caught in and by said cinders, and he was thereby dragged and thrown from said engine, etc.

The evidence discloses the following facts: Appellant operates a railroad which runs through Sangamon county, Illinois, in an easterly and westerly direction. Appellee’s intestate Aiken was employed as a brakeman on one of its local freight trains. At the station Island Grove upon its line, appellant maintained a side track about one-half mile in length located immediately north of the main track and parallel therewith. East of the west end of the side track was a derail. On the day Aiten was injured there was a pile of cinders between the main and side tracks, from one to three feet high, said cinders having been placed there by appellant for ballasting purposes. When the train reached Island Grove about dusk on that day, the train crew of which Aiten was a member proceeded to switch several cars of the train from the main to the side track. The evidence tended to show that in the performance of his duties as brakeman it became necessary for him to quickly change his position from one place between the tracks to another, and for that purpose he attempted to mount a step upon the pilot of the engine, while the train was moving, and was either thrown hy or dragged in the pile of cinders in question, whereby Ms legs were caught beneath the train, occasioning injuries from which he shortly thereafter died. That appellant was negligent in permitting the cinders to remain between the tracks and that such negligence was the proximate cause of the injuries to the deceased, cannot he successfully questioned.

The defenses chiefly relied upon were that the deceased assumed the risk of injury, and that he was guilty of contributory negligence. We are unable to say after considering the evidence, that as a matter of law either of said defenses was conclusively established. The trial court therefore did not err in submitting the issues of fact to the jury, nor in refusing to set aside the verdict as contrary to the evidence.

It was, however, error to permit the widow of the deceased to testify that she was dependent upon him for support. Such evidence by necessary inference tended to show that she was without any means of her own. While evidence as to the amount of wages earned by the deceased and that he contributed to the support of his wife, was competent, the evidence admitted was not. L. & M. Ry. Co. v. Shuler, 134 Ill. App. 615; C. P. & St. L. R. R. Co. v. Woolridge, 174 Ill. 330. We do not, however, regard the error as prejudicial, as it could only have affected the amount of damages awarded, and it is not argued that the verdict is excessive.

At the time the declaration was filed the widow of Aiten was pregnant with child, and it was alleged therein that the deceased left a widow and unborn child as his next of kin, etc. Shortly prior to the time of the trial, the child was still-born. Appellee failed to amend his declaration, but was allowed to prove the foregoing facts on the trial, and it is insisted that this was error. Such evidence is ordinarily calculated to arouse the sympathy of the jury and bias their judgment upon the merits of the case, but we do not think that in the present case the error was so prejudicial as to necessitate a new trial of the cause. Zetsche v. C., P. & St. L. R. Co., 238 Ill. 240.

The complaint that the court erred also in permitting the introduction of evidence tending to show habitual violation of the rule prohibiting brakemen from riding upon the pilots of engines prior to the time the deceased entered into the employment of appellant, is unwarranted. Hampton v. C. & A. R. R. Co., 236 Ill. 249. We find no prejudicial error in the rulings of the court upon the evidence. While the remarks of counsel complained of were improper, we do not think the jury was influenced thereby.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Ida L. Casper, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Contributory negligence—crossing railroad tracks. Held, that under the evidence it was not negligence per se for the plaintiff’s intestate to go upon the railroad track in question at the time and in the manner in which he did.
    2. Instructions—when upon ordinary care erroneous. An instruction upon the subject of ordinary care which permits the jury to take into consideration instincts of self-preservation is erroneous where there was an eye witness to the accident in question.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed June 28, 1909.
    Cloud & Thompson, for appellant; John G. Drennan, of counsel.
    Schneider & Schneider and Ray & Dobbins, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case for the recovery of damages resulting from the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the defendant. A trial by jury resulted in a judgment against the defendant for the sum of $2,500, to reverse which this appeal is prosecuted.'

The declaration contains four counts, in each of which it is averred that while Marion Gasper, on October 6,1906, was, with due care, driving a wagon drawn by mules across the railroad track at Randolph street in the city of Champaign, a train of cars of the defendant struck the wagon, whereby the deceased was killed. The negligence charged in the first count was that the defendant well knowing that the crossing in question was frequented by a large number of persons hourly, and subject to heavy traffic, failed to ring a bell or blow a whistle on the engine while it was approaching the said crossing. The second count charged the failure to ring a bell or sound a whistle for a distance of eighty rods before reaching the crossing, contrary to the statute; the third count, the running of the train at a speed prohibited by an ordinance of the city of Champaign, and the fourth count, the failure to maintain gates at Randolph street as required by ordinance. At the close of the evidence the court withdrew from the jury the evidence given under the fourth count, because of the absence of proof that defendant had been notified to erect and maintain gates.

The evidence discloses that the defendant’s railroad entered Champaign from the west. As it approached and crossed Randolph street it used one of the tracks of the Wabash Railroad Company, which crossed Randolph street in a southeasterly direction. Some sixteen trains used such crossing daily, a number passing in the early evening. For about a year prior to his death Casper had been employed in driving a delivery wagon, during which time he had used the crossing, with his team, from four to six times daily. On the evening of October 6, 1906, while he was crossing Randolph street, he was struck by one of the defendant’s east-bound passenger trains, and instantly killed. There was the usual conflict in the evidence relative to the speed of the train, and upon the question as to whether or not the statutory signals were given. The jury found with the plaintiff upon these issues, and such finding was not unwarranted by the evidence. It is contended by counsel that there is an entire absence of proof showing or tending to show due care on the part of Casper; that on the contrary it was shown by full and competent proof that he was grossly negligent in approaching and going upon the track in the way the evidence shows he did, and that the court therefore erred in refusing to direct a verdict in favor of the defendant.

Schudder, a witness called by the defendant, testified in substance that shortly before the train arrived at the Randolph street crossing, he was walking north near the track and heard the train coming; that he stopped near the track and waited there until the train struck the wagon in which Casper was riding; that as the train approached him he heard a wagon approaching from the south; that the team was traveling at a fast trot and the striking of the mules’ hoofs and the rattle of the steel-tired wagon upon the new pavement made a great deal of noise; that when he' first saw the team it was from 60 to 100 feet from the track; that as the train approached the street crossing the team was moving faster than the train; that it was trotting as fast as it could; that upon discovering the team, witness ran back from the track toward it and waved his hat and cried “Whoa” a number of times as loud as he could, but that the team paid no attention to him'; that when it got nearly to the track the mules broke into a run and veered suddenly to the east sidewalk and then north again across the track; that the team crossed over, but the wagon was struck at about the front wheels; that he watched the team from the time he first saw it until it was struck; that the wagon was a heavy delivery wagon having a top that extended as far as the dash-board; that he, witness, was on the east side of the wagon, and did not see Casper, probably because the curtain on the side was down. Isbell, the engineer of the train, a witness for the defendant, testified that when he got within 30 feet of the street he saw the team approaching the track in a fast trot, and saw Casper in the wagon; that he did not have hold of the lines, which were hanging from the top as if tied there; that he was sitting on the seat with his head down apparently paying no attention to his surroundings, and mating no effort to check the team; that as soon as he saw the team approaching the track" he applied the emergency brake but too late to avoid the collision.

We are not prepared to say as a matter of law, that the conduct of Casper under the circumstances was negligence per se. The issue was therefore one of fact and was properly submitted to the jury. Winn v. C., C., C. & St. L. Ry. Co., 239 Ill. 132. It is obvious, however, from the evidence detailed, that the question was a close one, and the jury should have been accurately instructed as to the rules of evidence applicable in determining such issue.

The court by instruction number 7 given at the instance of the plaintiff, told the jury that the law did not require the plaintiff to produce direct and positive testimony showing just what the deceased was doing at the time in question; that the law required only the highest proof of which the case was susceptible, and that the jury might take into consideration, with all the facts and circumstances in evidence, if any, the instincts which naturally lead men to avoid injury and preserve their own lives, in determining whether or not Casper was using ordinary care for his own safety at the time in question. The instruction correctly stated thé law applicable to cases where there is no eye witness to the killing of a person, but where, as in the present case, there were eye witnesses, no presumption exists as to the conduct of the person where there is a known danger to be avoided. Collison v. I. C. R. R. Co., 239 Ill. 532. The witness Seudder saw the occurrence and described it in all its details. His testimony was corroborated by that of the engineer, and the plaintiff offered no evidence to the contrary, nor were there any circumstances arising out of the evidence which tended to contradict them. The instruction was therefore improper and giving the same constituted prejudicial error.

Other grounds for reversal are urged and argued, but inasmuch as the cause must be remanded for another trial it is not necessary for us now to determine whether or not the same are meritorious. For the error indicated, the judgment will be reversed and' the cause remanded.

Reversed and remanded.

Mr. Justice Philbrick took no part in the consideration of this case.


author: Per Curiam.

text:
    W. N. Kettenring, Administrator, Defendant in Error, v. E. C. McCarthy et al., Plaintiffs in Error.
    Appeals and errors—when writ dismissed. If the bill of exceptions as abstracted fails to show either a finding or judgment in the cause, the writ will be 'dismissed.
    Assumpsit. Error to the County Court of Schuyler county; the Hon. William H. Dieterich, Judge, presiding.
    Heard in this court at the November term, 1908.
    Dismissed.
    Opinion filed May 19, 1909.
    G. B. Steele and Glass & Bottenberg, for plaintiffs in error.
    B. O. Willard, for defendant in error.
   Per Curiam.

The plaintiff in error seeks to have this court reverse a judgment which he claims was rendered against him upon a trial by the court without a jury. The bill of exceptions as abstracted fails to show either a finding or judgment in the cause. In this condition of the record no question is presented to this court for determination.

The writ of error is accordingly dismissed.

Writ dismissed.


text:
    John Scarbrough, Appellee, v. Central Illinois Construction Company, Appellant.
    1. Instructions—when should he accurate. If the case is close upon the facts and the evidence is conflicting, the instructions should be accurate.
    2. Instructions—must not assume facts in dispute. An instruction is erroneous if it assumes the existence of material and controverted matters of fact.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed June 2, 1909.
    Sigmund Livingston and William R. Bach, for appellant.
    Hart & Fleming, for appellee.
   Per Curiam.

John Scarbrough brought suit in the Circuit Court of McLean county against the Central Illinois Construction Company to recover for injuries sustained by him, alleged to have been occasioned by the negligence of, the servants of the construction company in the manipulation of its gravel track, car, steam shovel, etc., in a gravel pit near Heyworth, Illinois. Upon the trial a peremptory instruction was asked by the construction company to take the case from the jury, which was overruled by the court. There was a verdict in favor of Scarbrough in the sum of $3,500 upon which the trial court rendered judgment, from which the Construction Company has appealed.

Appellee claimed upon the trial that at the time of his injury he was in the employ of appellant as a common laborer, in a gravel pit; that the gravel track on which a car was operated in the excavation of gravel had been moved by appellant, without appellant’s knowledge, from a point about 17 or 18 feet from the bank at the side of the gravel pit to a point very close to the side of the pit; that appellee’s duties in and about the manipulation of the car required him to work between the side of the car and the side of the pit; that the place was one of danger to those working between the car and the side of the pit; that when he began his work on the morning of the day on which he was injured he was directed to go along the side of a moving car, on which the steam shovel was located, and be ready at any time to block the wheels of the car, if the car started to climb the track; that while he was engaged in this work, going at a rapid pace between the side of the pit and the car, and watching the wheels of the moving car, giving his whole attention to his work, and being ignorant of the narrowed space between the moving car and the side of the pit, he was caught between a brace rod on one side and the bank on the other side and seriously injured.

Every material matter of averment asserted by appellee in support of his claim so far as the alleged negligence of appellant was concerned, was positively denied by witnesses for appellant. Several witnesses testified upon each side as to the surroundings of appellee at the time of his injury and as to the speed of the car, some of those for appellant saying that the car was not going at a rate of over two miles per hour. The case was very close upon the facts, and the evidence so conflicting that it was of the utmost importance that the instructions given should be accurate upon the question of appellant’s alleged negligence.

Among the instructions given for appellee were the following:

“1. The court instructs the jury that if you believe from the evidence that the plaintiff was in the employ of the defendant, Central Illinois Construction Company, and was using ordinary care for his own personal safety before and at the time of his injury, and was without knowledge or notice that said track had been moved, and was not in a reasonably safe condition for use as alleged in the second or third count of plaintiff’s declaration, and if you further believe from the evidence that plaintiff was without knowledge or notice that said steam shovel car and the attachments thereto were not in a reasonably safe condition for moving as alleged in the Second or Third Count of the amended declaration, and could not have known such condition by the exercise of reasonable care for his own safety, then it was the duty of the defendant, Central Illinois Construction Company, to use reasonable care to have its said railroad track and said steam shovel car and the attachments thereto in a reasonably safe condition for moving.
“2. The court instructs the jury that if you believe from the evidence that plaintiff was in the employ of the defendant. Central Illinois Construction Company, and was using ordinary care for his own personal safety before and at the time of his injury, and was without knowledge or notice of any hazard or danger in the place in which he was working, as alleged in the Second or Third count of plaintiff’s amended declaration, then it was the duty of the defendant, Central Illinois Construction Company, to use reasonable care to furnish the plaintiff a reasonably safe place in which to perform his, the plaintiff’s, duties.”

These instructions both assumed material and controverted matters; the first that the steam shovel car and the attachments thereto were not in a reasonably safe condition and the second that there was a hazard or danger in the place in which appellee was working.

Whether or not the appliances employed by appellant were in a reasonably safe condition, and whether the place itself was hazardous or dangerous, were questions of fact for the jury under all the evidence, and while the court was not in error in refusing to take the case from the jury upon the motion of appellant, the giving of the instructions above quoted was error so prejudicial in character as to make a reversal necessary.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Margaret W. Smith, Appellee, v. O’Bannon Smith, Appellant.
    1. Divoboe—how adultery may be established. Adultery may be inferred from circumstances that lead to it by fair inferences as a necessary conclusion, or from such circumstances as would lead the guarded discretion of a reasonable man to the conclusion.
    2. Divoboe—what evidence competent upon issue of drunlcenness. Evidence of intoxication since the filing of the suit is competent not to show the substantive cause but to show a continuing habit.
    Divorce. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 14, 1908.
    James A. Connolly and James Y. Kelly, for appellant.
    Graham & Graham and Patton & Patton, for appellee.
   Per Curiam.

This is a bill for divorce by appellee against appellant charging him with habitual drunkenness for the space of two years, extreme and repeated cruelty and with having committed adultery. The defendant answered denying each and all of said charges. Upon a trial of the issues thus joined the jury returned a verdict finding the defendant guilty of habitual drunkenness and extreme and repeated cruelty and, by special findings, of adultery with certain women at specified times and places. The court thereupon entered a decree in accordance with the verdict and granting a divorce.

The evidence shows that the parties were married January 10, 1895, and lived together as husband and wife until July 1906. The testimony of the witnesses called by appellee tended to show that about the year 1893, appellant began using intoxicating liquor to excess and finally acquired and had ever since continued to have the fixed habit of so doing. The evidence of a number of witnesses called in his behalf, and who were more or less intimately associated with him, testified that while he occasionally drank intoxicating liquor, they had never seen him do so to excess. There was also evidence adduced by him which tended to show that in the year 1898, as the result of an accident to appellant, it became necessary to amputate one of his legs; that from the use of morphine in connection with such surgical operation he acquired what is known as the morphine habit, with which he continued to be afflicted, until the date of the filing of the bill, and that on several of the occasions whereon the witnesses for appellee testified that he was drunk, he was merely in a condition of stupor caused by the use of morphine or head-ache powders. Upon this issue it will suffice to say that we are fully satisfied after a thorough and careful examination of the evidence, which it will serve no useful purpose to rehearse or discuss, that the jury were fully justified in finding that appellant had acquired and for the period of over two years prior to the filing of the bill, continued to have the habit of frequently becoming intoxicated, and was an habitual drunkard within the meaning and intendment of the statute.

The evidence further discloses that on several occasions prior to the filing of the bill, appellant was in the company of lewd women at times and places which afforded the opportunity for indulgence in sexual intercourse with them, and further that both he and they had an intent or disposition in that direction. We do not feel that we would be justified in holding that such disposition, his association with lewd persons, and visits to disreputable resorts were manifestly insufficient to warrant the inference of guilt drawn therefrom by the jury, particularly in view of the fact that the chancellor who had a like advantage with the jury in hearing and seeing the witnesses, has approved of their finding upon that issue. Adultery may be inferred from circumstances that lead to it by fair inference as a necessary conclusion, or from such circumstances as would lead the guarded discretion of a reasonable and just man to the conclusion. Stiles v. Stiles, 167 Ill. 576; Heyman v. Heyman, 210 Ill. 524. A majority of the court are of the further opinion that the evidence relative to extreme and repeated cruelty toward appellee warranted the jury in finding appellant guilty of that offense substantially as charged in the bill.

The evidence as to the episode at the so-called theatre in Springfield after the bill was filed, was competent as tending to prove the charges of habitual drunkenness. It is fair to presume that a married man possessing the education and business and social standing of appellant would not knowingly have visited a place of that character while in a normal condition of sobriety.. Evidence of intemperance since the filing of the suit is competent, not to prove a substantive cause, but to show a continuing habit. 3 Elliott on Evidence § 2037.

The given instructions when considered together fully and fairly presented the law applicable to the facts.

The decree of the Circuit Court is affirmed.

Affirmed.


author: Peb Curiam.

text:
    Peoria, Bloomington & Champaign Traction Company, Appellant, v. Patrick O’Connor, Appellee.
    1. Negligence—when defense of independent contractor applies in favor of one exercising license in public street. While the grantee of a license in a public street ordinarily is not protected by the doctrine of independent contractor, yet if the injury is one which bears no causal connection with the license, the defense of independent contractor may be successfully interposed.
    2. Negligence—when issue of independent contractor should be submitted to fury. Held, that the evidence in this case was such as to tend to show that the owner and the alleged independent contractor were one and the same concern although separately organized; that therefore the issue as to whether or not such construction company was an independent contractor should have been submitted to the jury under proper instructions.
    3. Instructions—must not submit questions of law. Instructions are improper which leave to the jury the determination of Questions of law.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed June 22, 1909.
    Sigmund Livingston and William R. Bach, for appellant.
    Hart & Fleming, for appellee.
   Peb Curiam.

This is an appeal from a judgment awarding appellee $3,000 damages for injuries to his person resulting from the alleged negligence of appellant. The first count of the declaration charges substantially that on December 20, 1906, the defendant was engaged in lifting, moving and working with a certain heavy iron pole with a mass of concrete attached thereto, by means of a derrick and ropes; that the plaintiff was in the service of the defendant as a laborer and was working at the windlass under the foreman of the defendant; that the defendant negligently used an old, weak and insufficient rope with which to lift and move said pole, and failed to use guide ropes with which to control, guide and manage said pole; that by reason thereof the said rope broke and caused the pole to fall against the plaintiff, thereby injuring him.

The evidence discloses the following facts: That the appellant company was by an ordinance of the city of Bloomington given permission to construct, maintain and operate a railway along certain streets and public places in that city. On December 20, 1906, the Central Illinois Construction Company, which had been employed by appellant to construct its railroad, was engaged in lifting an iron pole from the ground at the intersection of Centre and Monroe streets. The pole in question was about thirty feet long, set about six feet' in the ground, and weighed about 1,350 pounds. Attached to its base was a mass of concrete weighing about 5,600 pounds. The machinery used in raising the pole consisted of a derrick and pulleys in connection with which was a tripod and chain blocks. The rope used on the derrick was wrapped around the drum of the windlass and ran through the pulley at the top of the derrick and then extended downward and was fastened around the pole close to the ground. No guy ropes were used to hold or support the pole.

The gang with which appellee was working by the direction of the foreman made several turns of the windlass and with the assistance of those working at the chain blocks had raised the pole together with the mass of concrete to the surface of the street, when the rope on the derrick suddenly broke, causing the pole and tripod to fall. The pole caught appellee, pinned him to the ground and badly injured him. The evidence adduced by appellee tended to show that the rope in question was -weak and insufficient and that the accident was the result of such condition, while that introduced by appellant tended to show that the rope was in good condition at the time and that the breaking of the same was due to the fact that the windlass was negligently being worked faster than the chain block, thus throwing a greater strain upon the rope than it was intended to bear, and causing it to break.

Whether the rope in question was defective as charged and whether its condition or the absence of guy ropes were the proximate cause of appellee’s injuries, were questions of fact for the jury. There was evidence fairly tending to establish the averments of the declaration and the court therefore did not err in refusing to direct a verdict in favor of appellant. We are unable to say after thoroughly examining the record that the findings of the jury upon the issues as to the negligence of the appellant, and dne care upon the part of the appellee, were manifestly contrary to the evidence, or that the evidence failed to justify the further findings that the risk of injury he received was not assumed by him, as one incident to his employment, and that the same was not occasioned solely by the negligence of a fellow servant or servants.

Counsel for appellant insist that the negligence, if any, was that of the construction company; that such company was an independent contractor, and the rule of respondeat superior therefore does not apply. They concede that as the work in question was being done by the construction company upon the public grounds of the city, under a license granted to appellant by the city, and without which the construction company would not have been permitted to do the work, appellant would be liable for any negligence of the construction company which might result from an injury to a citizen using the street. They insist, however, that appellee being a servant of the construction company, cannot invoke such rule, for the reason that the same only applies where the contractor has, by a wrongful act or negligence, occasioned damages to a member of the public.

It is well settled that where work is being done in the public streets of a city, there is an implied condition that the grantee of the license or permission will see to it that those using the streets are protected from unnecessary danger on account of the work. In such case a duty is assumed by the grantee, and it can never relieve itself from the performance of the same by committing the work to a contractor. Where work to be done in a street necessarily obstructs and renders it dangerous, the one for whom the work is done cannot avert liability for negligence in doing it by proving that he let the work to a contractor. Boyd v. C. & N. W. Ry. Co., 217 Ill. 332. There was doubtless a duty resting upon appellant growing out of the privilege conferred upon it, to keep the public streets and grounds in a safe condition for the passage of travelers and others having occasion to use the same. If appellee had been injured while using such public street or ground as a passerby thereon, appellant could not have relieved itself of liability for its negligence in creating such condition merely because the construction company had failed to do its duty. Appellee when injured was not in the exercise of his right as a citizen to use the public street. There was no causal connection between the negligence and the accident, and the particular place where the same occurred. We are therefore of opinion that the rule in question is inapplicable in the present case.

The cases of Gas Co. v. Myers, 168 Ill. 139, and N. C. St. R. R. Co. v. Dudgeon, 184 Ill. 477, relied upon by counsel for appellee, do not support their contention. In the first case the gas company had control over the gas mains while the contractor whose servant was injured was doing certain work thereon. In the latter, the person injured was not a servant of the contractor but a servant of the corporation hiring the said contractor, and which said servant was employed by said corporation in another distinct branch of work.

It was therefore essential to recovery in the case at bar that appellee should have established the fact that the construction company was not an independent contractor. The evidence relative to this issue shows that the construction company had since its formation done work for appellant only; that both companies occupied the same offices, and that their funds were deposited in the same bank, although under separate and distinct accounts; that the checks given to appellee in payment of his wages had printed upon the face thereof the words ‘ ‘ For Peoria, Bloomington & Champaign Traction Company, No. N 15,” and that McComb, the auditor of the construction company, afterward occupied a similar position with the appellant company. This evidence, while not conclusive, we think warranted the court in submitting to the jury, under proper instructions, the question as to whether or not the two companies were identical in fact, although apparently separate and distinct organizations, or whether the relation of the construction company was that of an independent contractor.

By the second instruction given at the request of appellee, the jury was told that “even though the injury, if any, was caused by a contractor or the servants of a contractor, then the contractor or the servants of the contractor will be regarded as the servant or servants of the defendant for which the contractor or the servants of the contractor were doing the work, if the contractor or its servants was or were exercising some charter privilege or power of the defendant with its assent which the contractor or servants could not have exercised independently of the charter or power granted to the defendant.” The instruction not only submitted to the jury a question of law, but it further announced a rule which for the reasons heretofore stated was inapplicable to the evidence.

The judgment of the Circuit Court must therefore be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Emily Young, Appellee, v. Grand Lodge of A. O. U. W. of Illinois, Appellant.

      Evidence—what essential to render declarations of agent competent. To make the declarations of an agent admissible so as to bind the principal, it is essential that at the very time of the making of such declarations such agent be transacting or doing the business of the principal so that the statements of the agent become a part of the res gestae.

    Assumpsit. Appeal from the Circuit Court of Pike county; the Hon. Habry Higbee, Judge, presiding.
    Heard in. this court at the November term, 1908.
    Reversed with finding of facts.
    Opinion filed June 28, 1909.
    Alfred Orendorff, Robert H. Patton, Williams & Williams and Paul F. Grote, for appellant.

      William Mumford, for appellee.
   Per Curiam.

Appellee, Emily Young, formerly Emily Graham, recovered a verdict and judgment against appellant, The Grand Lodge of A. O. IT. W. of Illinois, for the sum of $2,000 upon a benefit certificate issued to W. J. Graham, payable upon his death to his wife, the appellee. The case was before this court upon appeal at the May term, 1905, when a former judgment against appellant was reversed and the cause remanded. 123 Ill. App. 628. Since such reversal the case has been again tried with the result above stated.

The defense interposed by appellant upon both trials of the cause was that the insured had failed to make payment to the beneficiary fund of certain assessments due April 28, 1897, and was thereupon declared to be in default as shown by the official reports and records kept by appellant. Appellee claimed that the insured had paid the assessments for April and May, 1897, to the local financier of appellant at Roodhouse,. Illinois, and in support of this claim offered in evidence two receipts identified in the record as Exhibits 3 and 4, purporting to be for assessments paid by the insured on April 28, 1897, and May 25, 1897.

It was and is insisted by appellant that these two receipts were materially altered by changing the dates thereof from the dates they formerly bore to the dates they now appear to bear, and that the dates of other receipts which were given prior to those in question had likewise been changed so as to fill the gaps necessarily made in the line of previous receipts by changing the dates of the two principal receipts designated as Exhibits 3 and 4. All of the receipts offered in evidence have been certified to this court for inspection and upon a careful examination of such receipts we have no hesitancy in concluding that they have been materially altered as claimed by appellant. The receipt, Exhibit 3, appears to have been originally dated Mar. or March 27, 1897, instead of May 25, being the date it now bears, and while it is not clear what date Exhibit 4 originally bore, it is apparent that the word “April” now written thereon is written in a different ink from the body of the receipt and in the handwriting of some person other than the one who wrote the body of the receipt.

It is first urged that Exhibits 3 and 4 were improperly admitted in evidence because of the failure of appellee to satisfactorily explain the apparent alterations in the dates of said receipts. The evidence bearing upon this question at the last trial was substantially the same as that offered by appellee upon the first trial, and upon the former appeal it was held that the trial court did not err in admitting said receipts in evidence. The particulars in which the testimony of appellee upon the last trial differed from her testimony on the first trial is not of sufficient importance to affect the question, and we adhere to our former holding that the receipts were properly admitted in evidence.

The testimony of the witness Mary Edmonson to the effect that in the course of a conversation in June, 1897, between appellee and E. S. Bundy, since deceased, and who was then the local financier of appellant, Bundy said in response to the offer of appellee to pay the June assessments upon the certificate, that Graham “had paid” or “was paid up” referring to the April and May assessments, was incompetent. It is apparent from the record that at the time of such alleged conversation Bundy expressly refused to transact any business on behalf of appellant with respect to the certificate in question and that what he is alleged to have said with reference to the payment by Graham of the April and May assessments did not relate to any business or transaction he was then conducting on behalf of appellant with appellee, but related solely to transactions alleged to have taken place in April and May prior to the time of the conversation. To make the declarations of an agent admissible, so as to bind the principal, it is essential that at the very time of making such declarations, such agent be transacting or doing the business of the principal, so that the statements of the agent become a part of the res gestae. Jenks v. Burr, 56 Ill. 450; Cleveland, C., C. & St. L. Ry. Co. v. Jenkins, 75 Ill. App. 17; Summers v. Hibbard, 153 Ill. 102; Pennsylvania Co. v. Bridge Co., 170 Ill. 645.

A most careful examination of the evidence in the record compels us to the conclusion that W. J. Graham never in fact paid the assessments for April and May, 1897, upon the certificate in question, and that the manifestly cunningly contrived but carelessly executed plan of appellee or of some one on her behalf to make Exhibits 3 and 4 operate as receipts for the payment of such assessments must fail because of the many inherent infirmities apparent upon the record relating to the palpable alteration and substitution of the receipts relied upon together with other receipts in evidence, the enumeration and consideration of which in detail would unduly extend this opinion.

The judgment of the circuit court will be reversed with a finding of facts to be incorporated in the judg- • ment of this court.

Reversed with finding of facts.

Finding of facts: We find that W. J. Graham did not pay the assessments on the certificate sued on for April and May, 1897, and that said assessments were not paid prior to the death of said Graham.


text:
    Joseph Eslick, Appellee, v. Illinois Collieries Company, Appellant.
    Mines and Miners Act—what evidence competent upon lack of knowledge of danger. Where it appears that the mine owner had kept a book which showed the conditions in the mine from time to time and had without notifying the plaintiff that he had ceased to use such book opened a new book, it is competent for the plaintiff to show that prior to entering the mine upon the day of the accident he had consulted such old book.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    Brown, Wheeler, Brown & Hay, for appellant.
    T. J. Condon and Albert Salzenstein, for appellee.
   Per Curiam.

Appellee brought suit in the Circuit Court of Sangamon county against appellant to recover damages for an injury alleged to have been sustained by him, while working in appellant’s coal mine, through the wilful failure of appellant to report an unsafe condition in that part of its mine where appellee was at work, to make a conspicuous mark at such place and to make a daily record of an examination showing such condition. . There was a trial had before a jury, which resulted in a verdict in appellee’s favor for $300, upon which the court rendered judgment and this appeal was prosecuted. ¡

The evidence tends to show that appellee, who was a miner in appellant’s service, having no direct connection with any other character of employment for it, while working in an entry that was apparently safe, suffered injuries alleged to have resulted from unsafe conditions in said entry and that the roof thereof was in fact unsafe.

Appellant first contends that appellee was, at the time of his injury, engaged in the work of making the alleged dangerous place safe, under the directions of the mine manager; that he had previously done that character of work for appellant, in addition to his work as miner, and looked to the company for extra remuneration for such extra labor and therefore appellee came within that provision of paragraph B of section 18 of Chapter 93, of the Revised Statutes, which in effect provides that no one may be allowed to remain in any part of the mine, or to enter the mine to work therein except under the direction of the mine manager, before all conditions shall have been made safe.

A fair review of the whole evidence does not, in our judgment, support this claim. Appellee was engaged in the ordinary work of a coal miner and only cleaned up falls as they took place from time to time in his own place of labor. This labor he did to facilitate his own work as a miner, but he did not do it under the express or direct instructions of the mine manager for the purpose of rendering a dangerous place safe, nor was it his duty to remove a fall of slate, unless he did it in connection with and in furtherance of his work as a coal digger.

Appellant cites the case of Kellyville Coal Co. v. Bruzas, 223 Ill. 595, in support of the claim that if appellee was at work under the direction of the mine manager at the time of his injury he cannot recover, even though the mine manager had given a general direction to appellee what to do to render the dangerous place safe and was himself not present, over-seeing the work. This case can have no controlling influence here for the reason that appellee was not set to work by appellant’s mine manager to render a dangerous place safe, but was expressly told by such manager that he, the manager, would send timber and men to do that work and make the place safe.

Appellant next contends that it was error for the trial court to admit in evidence a book called “the old record,” showing the entries by the mine examiner of appellant as to the condition of the mine prior to July 16, 1907. It was developed by the evidence that this “old book” had been in constant use for many months prior and up to July 16, 1907, and that in such old book the mine examiner had made his entries as to the conditions in said mine for the use and inspection of the miners employed in said mine; that no work had been done in said mine from July 17 to July 22, upon which latter date appellee returned to work in said mine; that in the interim a new book had been substituted for such old book which the miners were expected to consult in its stead. Appellee testified, however, that he had no knowledge that any change of books had been made; that he found and examined the “old book,” as he had done for months prior to that time, on the morning of July 22, before he went to work, and upon such examination found no entry made by the examiner after July 16, and found nothing to show that his place of labor was in any way dangerous or unsafe. Under such circumstances the admission of the old book in evidence was not error.

Appellant next insists that the fall in appellee’s place of work was not the proximate cause of the injury to appellee. This question was one for the jury under the instructions of the court, and the verdict in this respect does not seem to be unwarranted by the evidence.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.


author: Mr. Justice Ramsay

text:
    Jesse O’Dell, Appellee, v. Vandalia Railroad Company, Appellant.

      Negligence—when evidence of custom to support charge of, incompetent. "Wlhere a charge of negligence is made, proof of a custom upon which the plaintiff had no right to rely is incompetent.
    Action in case for personal injuries. Appeal from the Circuit Court of Coles county; the Hon. Mokton W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed November 17, 1908.
    Rehearing denied May 20, 1909.
    H. A. Neal, for appellant; Outten, Robby, Ewing & M’Cullough, of counsel.
    Bryan H. Tivnen, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Jesse O’Dell brought suit in the Circuit Court of Coles county against the Vandalia Bailroad Company to recover damages alleged to have been sustained by him through the negligence of a foreman of the said railroad company, under whom O’Dell was at work as one of a bridge gang. There was a verdict in favor of O’Dell upon which the court rendered judgment in the sum of $3,000. The railroad company appealed.

The facts upon which O’Dell bases his right of recovery are substantially these: Appellee was employed as one of a gang of men in the construction of a bridge for appellant and as such was under the order and supervision of a foreman of appellant, who managed the work and directed the men; while the gang of men was engaged in such work, in which work a pile driver and engine were employed, the foreman ordered appellee to untie or release a line, called a snub line, and go with it to the railroad track of the Big Four Bail-road Company, about fifty feet away from where appellee was then at work for the Vandalia Bailroad Company, and fasten it to a tie of the Big Four Bail-road; that appellee went with the line to the Big Four Railroad track and there attempted to pass his snub line under the rail and over the tie inside the rail in order to fasten the end of the line securely, and while at work, in a stooping posture, a train passing on the tracks of the Big Four struck appellee, knocked him down and inflicted the injuries for which he seeks to recover.

Appellee claimed upon the trial that there was a custom prevailing in the service of appellant that the foreman of a gang of men when a man was put to work upon a track at any point, would watch for the approach of trains and warn the men of any danger, and considerable testimony along this line was admitted over the objection of appellant. If the evidence admitted tended to show anything it was to the effect that where men work in gangs in the repair of tracks or bridges over which trains are likely to pass at any moment, it is usual and customary to employ a watchman to keep a lookout and warn those so employed of approaching trains; but this was not a custom upon which appellee could have relied nor was there any evidence whatever, offered or given, even tending to show any custom to watch and give notice under the circumstances of the case here presented. In the case at bar appellee was not acting as one of a gang employed in a service requiring the watchfulness above mentioned. He was directed to go to a point fifty feet away from the track on which he had been at work and there fasten his line to a railroad tie, with nothing to obstruct his view and nothing whatever either in the character of the work he was doing or his surroundings, to distract his attention from the danger of passing trains. He was thoroughly familiar with the work he was doing and had been engaged in like labor about a railroad for a considerable time before he was hurt, and the danger, if any, was an obvious one. The testimony as to custom was incompetent and inapplicable to the circumstances of the case and the evidence was so conclusive as to appellee’s want of due care as to preclude any right to recovery upon his part.

The judgment is reversed, but the cause is not remanded.

Reversed.

Finding of facts, to be incorporated in the judgment : We find that appellee was not in the exercise of due care and caution for his own safety at the time of the injury complained of.


text:
    Elizabeth M. Douglas, Administratrix, Appellee, v. Wabash Railroad Company, Appellant.
    1. Contributory negligence—sudden danger. If a person suffers am injury and prior thereto was confronted with a sudden danger which required quick thought and action, it is a question for the jury to determine as to whether or not such plaintiff was guilty of contributory negligence which barred the right of recovery.
    2. Contributory negligence—failure to look and listen. While the failure to look and listen may tend to establish contributory negligence, it is not of itself sufficient to establish contributory negligence as a matter of law but it is for the jury to say under all the surrounding circumstances whether or not the party was in the exercise of due care.
    3. Ordinances—when sufficiently established. Held, under the evidence in this case that the ordinance in question was sufficiently proved by the book of ordinances offered in evidence.
    4. Instructions—effect óf argumentative modification. If an instruction is already argumentative, an argumentative addition thereto will not constitute ground for reversal.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. •Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    D. D. Evans and Charles G. Taylor, for appellant; J. L. Minnis, of counsel.

      O. M. Jokes, W. J. Bookwalter and Rearick & Meeks, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Suit was brought in the Circuit Court of Vermilion county by the representative of the estate of Carroll O. Douglas against the Wabash Railroad Company to recover damages alleged to have been occasioned by the negligence of appellant, which caused the death of said Carroll O. Douglas. There was a verdict and judgment in the sum of $1,995 against the railroad company and this appeal followed.

Carroll O. Douglas, deceased, was, on the 16th day of April, 1907, riding in a top buggy, to which he had a single horse hitched, going north on Sandusky street in the village of Gatlin, Illinois, and while crossing the railroad of appellant in such village, was struck by a fast passenger train and killed.

Appellant first contends that the evidence does not show that at the time of the accident deceased was in the exercise of due care for his own safety, but upon the contrary that he was guilty of contributory negligence and for that reason the verdict should have been set aside. We have carefully considered all the evidence upon this subject and are of the opinion that the verdict was not unwarranted in this respect. It appeared from the evidence that the train of appellant which killed Douglas ran in a northeasterly direction through Gatlin and that deceased was driving nearly, if not quite, due north at the time of the accident; that the approaching train was to the left and at the rear of deceased and was going at the rate of about fifty miles per hour, contrary to an ordinance of said village; that Douglas’s view to the left was obscured by an elevator, an approach thereto and a coal car; that before reaching the track upon which he was killed he had to cross a side or house track, and that in going north upon Sandusky street he could not see a train approaching from the southwest until he got within a few feet of the house track; that the elevator stood only about six feet south of the house track and almost immediately west of Sandusky street. The engineer upon the locomotive in question testified that when he first saw deceased he, the engineer, was about 150 feet southwest of the crossing and that deceased was twenty-five or thirty feet south from the main track, which testimony, if uncontradicted, would put deceased upon the south or house track spoken of. It would seem from a consideration of all the evidence that deceased was north of the switch track before he was aware of the approach of the train in question, and that in the excitement of the moment he had to determine whether he would attempt to turn his horse to the right in a parallel course with the train or attempt to cross the track ahead of the train. Under such circumstances it was peculiarly a question of fact for the jury to say whether or not the deceased was in the exercise of due care. Dukeman v. C., C., C. & St. L. Ry. Co., 237 Ill. 104.

In this connection appellant argues that the absence of evidence to show that deceased looked and listened for an approaching train before attempting to cross the railroad was in itself sufficient to establish want of due care upon the part of deceased and therefore the judgment cannot be sustained.

While the failure to look and listen may tend to establish contributory negligence, it is not of itself sufficient to establish contributory negligence as a matter of law, but it is for the jury to say under all the surrounding circumstances whether or not a party was in the exercise of due care. Dukeman v. C., C., C. & St. L. Ry. Co., supra.

It is next contended by appellant that there was no competent evidence to show that the ordinance of the village of Catlin, limiting the speed of all trains within the corporate limits to ten miles per hour was properly posted.

The ordinance was offered in book form as ordinance No. 75. It limited the speed of all trains to ten miles per hour and was passed and approved January 3, 1898. The posting thereof was shown by an entry in the ordinance book accompanying the order of approval, which stated that three notices thereof were posted on January 4, 1898, as attested by the president and clerk of the village board. Appellant argues in this connection that the trial court permitted a memorandum endorsed on the ordinance to be offered in proof of posting, to be read to the jury. This contention, even if a material one, is not borne out by the proof as abstracted, for a careful consideration of that part of the abstract shows that the ordinance, its attestation, approval and proof of posting were all made to appear from the record book of said ordinance No. 75.

Some criticism is made upon the action of the trial court in modifying appellant’s instruction No. 12, and in refusing to give its thirteenth, fourteenth, fifteenth and sixteenth instructions as offered. Appellant’s twelfth instruction, as offered, was argumentative in the extreme, and should have been refused. The modification made by the court could not have been prejudicial to appellant as the modification did not tend to make the instruction any more argumentative than it was before it was modified. If it was error to modify the instruction, it was equally erroneous to offer it.

Instructions Nos. 13, 14, 15 and 16, as offered by appellant, were also clearly argumentative and for that reason were properly refused.

There is no prejudicial error in this record and the judgment is affirmed.

Affirmed.