text:
    Toledo Bridge and Crane Co., Plaintiff in Error, v. Oil Belt Traction Co., Defendant in Error.
    1. Guaranty—release. Where plaintiff enters into a contract with a broker to build certain bridges, on behalf of defendant, a railroad company, which guaranties the payment therefor, the fact that payment was made to the broker by defendant does not operate as a release from the contract of guaranty.
    2. Agency—when obligor is not agent for obligee. Where a broker is instrumental in securing for plaintiff the work of constructing certain bridges for defendant and at the request of defendant the contract is made between plaintiff and the broker on defendant becoming guarantor for the payment, the' broker is not the agent of plaintiff in the receipt of money from defendant, as payment in satisfaction of its guarantee and the fact that the secretary of the defendant company stated that they considered the broker as plaintiff’s agent, is immaterial.
    3. Guaranty—extent of liability. A guarantor for the payment of an amount named in a contract is not liable beyond that amount as for demurrage or damages that may accrue.
    Error to the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.
    Benjamtn & Roodhouse, for plaintiff in error.
    Callahan, Jones & Lowe, for defendant in error.
   Mr. Justice McBride

delivered the opinion of the court.

In this case the jury was waived and trial had by the judge of the Circuit Court of Crawford county, by consent, which resulted in a finding and judgment in favor of the plaintiff for $303.67, from which judgment the plaintiff prosecutes his appeal and insists that the judgment should have been for $1,831.33.

During the fall of 1900, the defendant in error, hereinafter called the defendant, was engaged in building a railroad near Oblong, Illinois, and was contemplating the building of three bridges along this railroad. The plaintiff in error, hereinafter called the plaintiff, had submitted to the defendant on September • 18th a bid with certain specifications for the building of these bridges and on September 28th, submitted to it a revised proposition. The Empire Railway Supply Company, hereinafter called the Supply Company, was a broker having its office in Chicago, and was instrumental in having the plaintiff bid upon the building of these bridges, for which the plaintiff had prior to that time agreed to pay the Supply Company two hundred dollars. After receiving the bid, or proposition, of September 28th, Mr. Murran and Mr. Upson, president, secretary and general manager of the defendant went to Chicago for the purpose of seeing W. W. Curtis, representative of the plaintiff, and through a communication from a Mr. Kadish, a representative of the Supply Company, met Curtis at a hotel in Chicago and talked over the proposition that had been made by the plaintiff to the defendant for the building of these bridges, and in that conversation the president and secretary of the defendant told Mr. Curtis that the proposition made by the plaintiff was satisfactory but they preferred to have the plaintiff make the contract with the Supply Company, without explaining why, and Mr. Curtis told them that this would be satisfactory to him if they would guarantee the payment, that he did not think the Supply Company financially responsible. On October 4, 1909, the plaintiff submitted to the Supply Company a proposition for the building of these three bridges, giving the specifications and the details with reference to the work to be done by the plaintiff, for which the Supply Company was to pay plaintiff eighty-six hundred dollars ($8,600.00), fifty per cent of the contract price of each span to be paid on the delivery of the material at Oblong, Illinois, and the balance on the completion of the work, and this proposition contained this clause: “We are to be given satisfactory assurance of your ability to pay for this work in accordance with the contract.” On October 15, 1909, the Supply Company forwarded to plaintiff an acceptance of its proposition, which acceptance contained the following clause, among others, “We take pleasure in handing you herewith the guaranty of the Oil Belt Traction Company of Oblong, Illinois, for the payments as provided in the agreement above referred to.” “Payments for this work will be made direct from this office upon advice of the Oil Belt Traction Company that such material has been delivered at Oblong, Illinois;” and this acceptance was signed Empire Railway Supply Company, J. W. Kadish, treasurer; and in this acceptance of the Supply Company was inclosed the following letter:

“Oblong, Ill., Oct. 6, 1909.
The Toledo-Massillon Bridge Co.,
Chicago, Ill..
Gentlemen :—With reference to the contract for the one 78½ ft. through plate girder bridge and the two 80 ft. through plate girder spans, made between your Company and the Empire Railway Supply Company, and in conformity with our verbal agreement with your Mr. Curtis a few days since in Chicago, we beg to advise that the Oil Belt Traction Company hereby guarantees the payment for the same. We understand this to be fifty per cent upon delivery of material at this point and the remaining fifty per cent upon completion of the work.
Trusting this will be satisfactory and that you will proceed at once with the work, we beg to remain,
Very truly yours,
Geo. P. Murrin,
President.
N. L. Upson,
Secretary.
Oil Belt Traction Company Seal.”

It also appears from the evidence that afterward the name of the Toledo-Massillon Bridge Company was changed to Toledo Bridge and Crane Company. This contract was accepted by the plaintiff in Toledo, Ohio, and in pursuance thereof the plaintiff proceeded to. furnish the material and deliver it at Oblong, in accordance with the contract and actually constructed one of the bridges. The plaintiff employed the Ferro Construction Company to erect these bridges at a cost of $1,640.00. After the erection of the first bridge there was much difficulty encountered in putting up the other two bridges, in consequence of the "defendant not being ready to have them constructed. Repeated demands were made by the plaintiff to build the bridges which resulted in a proposition to deduct two-thirds of the $1,640 from the contract price and allow the Supply Company, or defendant, to build the other two bridges. This, however, is not very clear from the testimony but has been treated by counsel for appellant and appellee in their argument, statements and computations as having been agreed to, and in their statements the amount of $1,093.33 is presented as having been deducted from the contract price. The defendant also demands $77.00 as demurrage that it claims to have paid for the plaintiff and should be deducted. There was also $58.00 that plaintiff claims as extra work in unloading cars on account of the fault of the defendant. Counsel for defendant in his argument insists that the court allowed plaintiff this $58.00 and that was all that it could ask for.

It further appears from the evidence that the defendant entered into a contract with the Supply Company for the building of these bridges at the price of $10,500.00. Counsel for defendant in his brief states the account as follows:

For three bridges as per contract...........$8,600.00

For unloading two bridges (extra).......... 58.00

Total ................................$8,658.00

Cash paid for bridges..............$7,183.34

Demurrage....................... 77.00

Relief from erecting two bridges... 1,093.33

Total........................$8,353.67 $8,658.00

8,353.67

$ 304.33

This includes a payment made by defendant to the plaintiff of $1,383.34 and the remainder of it was paid by the defendant to the Supply Company but the Supply Company has not paid the plaintiff the amount due it upon this contract by about fourteen hundred dollars. The defense in this case was that in as much as this money had been paid by the defendant to the Supply Company that the Supply Company was the agent of the plaintiff, and that defendant was thereby relieved from paying this amount under its guaranty contract; and this is the principal contention and in fact the only question necessary to be determined in the view we take of this case. There were other questions sought to be made by the pleadings but they have not been presented or argued in the briefs of counsel and have not been considered by this court.

The suit was brought by the plaintiff against the defendant upon its guaranty contract above set forth and a special count filed setting forth the terms of the contract with the Supply Company, and the terms of the guaranty of the defendant, and asking that the defendant be required to make payment of the balance due from the Supply Company to the plaintiff under such guaranty.

We will first determine whether or not the Supply Company was the agent of the plaintiff in the building of these bridges and authorized by it to receive the money and give acquittances to the defendant for the plaintiff. It is- true, "as stated by counsel for defendant, that the undertaking of the guarantor is to be strictly construed and that he is bound to the extent mentioned in his obligation and no further, and this principle is well stated in the case of Tolman Co. v. Rice, 164 Ill. 255. It is also true that if the Supply Company was the agent of the plaintiff and authorized •to receive this money and discharge the debt, that the payment to such agent would be good.

The contract of guarantee offered in evidence seems to us to be very plain and specific. It refers to the contract made by plaintiff with the Empire Railway Supply Company for the three bridges, describing them in a general way and then says, “And in conformity with our verbal agreement with your Mr. Curtis a few days since in Chicago, we beg to advise that the Oil Belt Traction Company hereby guarantees the payment for the same. We understand this to be fifty per cent upon the delivery of material at this point and the remaining fifty per cent upon the completion of the work.” To our mind this undertaking is clearly a guarantee of the payment of the price contracted by the Supply Company with the plaintiff for the three bridges mentioned in the guarantee and in the contract, and if the Supply Company failed to pay for these bridges according to contract then it became the duty of the defendant as guarantor to pay for the same unless in some manner released from the obligation. It is insisted by counsel for defendant that in as much as the contract between the plaintiff and the Supply Company contained the provision that, “Payments for this work will be made direct from this office upon advice of the Oil Belt Traction Company that such material has been delivered at Oblong, Illinois,” effected a release of the guarantor when it paid the money to the Supply Company as it had agreed with the Supply Company to do; we are unable to see how this can in any manner be construed as a release or discharge of the guarantee. The contract between plaintiff and the Supply Company was that payments were to be made direct from the office and upon the advice of the defendant that the material had been delivered as contracted for, and the effect of the guarantee was that if these payments were not made the defendant would make them. The guarantee was not as to the manner of payment but was broader and extended to the payment for the bridges; in our judgment it can make, no difference that one payment of this money was made direct by the defendant to the plaintiff. The guarantee called for the payment of the money for the bridges and it was immaterial in what manner it was paid so that the payment was made to the plaintiff.

Again, it is insisted by defendant that the Supply Company was the agent of the plaintiff. We fail to find any evidence in this record warranting such a conclusion. It is true, Mr. Muchmore, the secretary of the defendant stated that they made the payments to the Supply Company, “because we considered them the agents, the men we were dealing with.” The fact that the defendant’s secretary may have considered it so, could not make it the agent.

Again, it is claimed that the plaintiff recognized the Supply Company as its agent by a letter written by it on June 30, 1910, to the defendant in which it is stated, “It was understood and had been so understood that the Empire Railway Supply Company were acting as our agents and we agreed to pay them a two hundred dollar commission for securing the work for us.” This quotation does not correctly set forth the merits of that letter. The quotation was only a part of a history, of the case that was being given by the plaintiff to the defendant, after the plaintiff had learned that the officers of the defendant had contracted with the Supply Company for these bridges at the advance price of $10,500.00, and in this history it was explaining the attitude that the Supply Company had sustained to the plaintiff prior to the making of the contract. The relation of the Supply Company and the plaintiff, prior to the execution of the contract and guarantee, was well understood by the then managing officers of the defendant, and the Supply Company never would have sustained any other relation to the plaintiff had it not been for the request of the defendant, in which the defendant was unwilling to make the contract but wanted the plaintiff to contract with this broker, the Supply Company. The Supply Company had accomplished what it undertook to do for the plaintiff and as soon as the Supply Company, at the request of the defendant, made a contract with the plaintiff for the plaintiff to furnish it the bridges, in our judgment the agency ceased and from that on the plaintiff and the Supply Company sustained the relation of contractor and contractee. There is nothing in this record to warrant this court in finding that the Supply Company was the agent of the plaintiff in the receipt of this money. "When the defendant paid the Supply Company the several amounts it did, upon these bridges, it did no more than it had agreed with the Supply Company it would do, and if the defendant wanted to protect itself under its guarantee it should have seen to it that the plaintiff received its part of the payments, and it was so understood by the defendant and its officers, for in a letter written by F. Gr. Viger, attorney of defendant, to the plaintiff dated July 6, 1910, and at the time when plaintiff was demanding the payment of the amounts due it, he informed the plaintiff that he had advised the board of directors of the defendant that they were responsible for the entire amount and was asking the indulgence of the plaintiff for a few days, and that they would see that the plaintiff did not lose anything. A. Mr. Murrian in a letter of July 7, admits that everything claimed by plaintiff was in accordance with his understanding and that the defendant would still stand by the guarantee and also expressed a regret that they did not make the payment of the guarantee, as, “I see now we should have done,” but did not do so because they thought the Supply Company were honorable gentlemen. These and many other matters show very clearly that the officers of the defendant understood that the defendant was liable to the plaintiff for the balance unpaid to the plaintiff upon these bridges.

Counsel in their briefs, also argue the question of demurrage and damages accruing to plaintiff by reason of having to unnecessarily unload the bridges. It is not necessary to go into the details of these matters but it is sufficient to say that the contract of guarantee cannot be extended beyond the amount contracted by the Supply Company with the plaintiff to be paid for these bridges, and cannot be made, in our judgment, to include matters that are not part of such payments.

We are of the opinion that the court erred in charging the plaintiff with moneys paid by the defendant to the Supply Company that did not reach the plaintiff, and in holding that such payments were in satisfaction of the defendant’s guarantee.

The judgment of the Circuit Court is reversed and cause remanded for further proceedings, in conformity with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Road District Number 5, Plaintiff in Error, v. The County of Wabash, Defendant in Error.

      Mandamus—to compel construction of bridges over drainage ditches. A petition for writ of mandamus to compel a county board in a county not under township organization to reconstruct two bridges over drainage ditches destroyed by a flood, is sufficient to require the defendants to answer thereto, where it avers that such drainage ditches were constructed along a natural water channel, even though the petition is not very specific as to the increased necessity, if any, for the bridges by reason of the construction of the drainage ditches.

      Mandamus. Error to the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 27, 1912.
    P. J. Kolb and George P. Ramsey, for plaintiff in error.
    H. M. Phipps, for defendant in error.
   Mr. Justice McBride

delivered the opinion of the court.

This is a petition for writ of mandamus filed by plaintiff in error against the defendant in error to require it to construct two bridges over drainage ditches that were constructed along a natural channel, or water course, in said county; and averring that such drainage ditch carried along through said natural water course water which naturally passed in that direction and through said natural channel and water course. That plaintiff and defendant in the years'1909 and 1910 constructed bridges across said drainage district at that point and that one of said bridges was of about the length of twenty-eight feet and cost three hundred fifty dollars, and the other was the length of about thirty-two feet and cost four hundred fifty dollars; that said bridges were" located upon and within the limits of the public highway in said road district and were used by the public, and that both of said bridges during the month of September, 1910, were washed out and destroyed by a flood of water passing down and through said drainage ditches; that at this time there is no bridge across said drainage ditches within the line of said highway and that a public necessity exists for the construction of bridges along said highway and over said drainage ditches; that each of said bridges will cost to exceed one hundred dollars; that the county of Wabash is not .under township organization and that plaintiff has demanded of it that it build said bridges, which it refused and neglected to do, and asks that a writ of mandamus directed to said county and to the Board of County Commissioners of said county commanding them to forthwith construct the said bridges, and each of them. To this petition the defendant in error filed a demurrer. The demurrer was sustained by the Circuit Court and the petition dismissed and the plaintiff in error brings the record of this case to this court and assigns as error, the ruling of the court in sustaining the demurrer to the petition.

The language of this petition, as to the construction of the drainage district in and along the natural channel or water course, is not as specific as it might have been, in as much as it does not show how much, if any, the necessities for a bridge were increased by reason of the construction of the drainage ditch but we think it sufficiently appears, at least to require an answer, to the petition, that the ditch was constructed in a natural water course. By section 177 of chapter 121, it provides, “That County Boards in counties not under township organization shall have charge and control of all bridges, the construction of which costs exceeding one hundred dollars, and the County Board shall, when the interest of the public requires it, build such new bridges as cost exceeding that sum.”

It is insisted that in as much as this ditch constitutes an outlet to the waters °of the drainage ditches that it is the duty of the drainage commissioners to construct these bridges and that this statute does not require a county of this class to construct bridges over ditches made by drainage districts regardless of whether the ditch wholly artificial or whether the ditch is constructed in and along a natural water course. In the case of Drainage Commissioners v. Highway Commissioners, 220 Ill. 179, it is said, “There are material and important distinctions between that action of trespass for the alleged wrongful removal by drainage commissioners of a bridge over a natural water course on or near a county line between two counties not under township organization, which were under a duty of maintaining a bridge over such water course and where the object of removing the bridge was to provide for an increased flow of water in such water course, and this action of debt for the recovery of the cost of a purely artificial ditch where no natural water course ever existed and where there had been no bridge nor any duty to maintain one, and the ditch was for the sole and exclusive benefit of a drainage district constituting not more than three-eighths of the territory of the two towns, which is presumed by law to have been all the lands benefited by the ditch.” Again in the case of Heffner v. Cass & Morgan Counties, 193 Ill. 453, the court says: “Counsel make the further point that the drainage amendment to the constitution expressly provides that the cost of the drainage work shall be paid for by special taxation upon the property benefited thereby, and that it is a necessary implication that a county or a town cannot be compelled to levy a general tax to pay for the building of a bridge on a public highway, rendered necessary by the work of the drainage commissioners. We do not understand, that by effect of this statute any part of the cost of the drainage work is imposed on the county, nor is any part of its revenues disposed of for the benefit of the drainage district. The cost of removing the bridge was a part of the cost of the drainage work, and that was paid by such district out of its fund derived from special assessment on the lands benefited. But it does not appear that the building of a new bridge was of any special benefit in draining the lands of the district. It was of general benefit to the public, and the cost of it might well be required to be paid out of the public revenues of the county.” The case last above cited was an action brought to recover from the drainage district the value of a new bridge which it was necessary to build after the drainage district had enlarged the channel, and in enlarging the channel they had removed and destroyed the old bridge.

It is obvious from these decisions that a distinction is made as to the construction of a bridge over a drainage ditch that is purely artificial, and over one that is constructed in and along a water course; and this is borne out by the case of the People v. F. & T. R. R. Co., 252 Ill. 374. Counsel for defendant in error insists that the case of the Highway Commissioners v. Drainage Commissioners, 246 Ill. 388, is conclusive of this question. We do not so regard this opinion for it is said, on page 393: “The question here, therefore, is not whether the Commissioners of Highways could have been originally, by a writ of mandamus, required to widen said drain and rebuild said bridge on the ground that said bridge spanned a natural waterway and the outlet across said highway and through said bridge was insufficient to carry the waters of said district, as was the case in C. B. & Q. Railway Co. v. People, 212 Ill. 103, but the question here is to be decided is, the drainage commissioners having gone upon a public highway which was properly bridged and removed the bridge and enlarged and repaired the drains of the district, could such drainage commissioners be required, by mandamus, to reconstruct said bridge and repair said highway? The drainage commissioners having undertaken to make a change in the highway at the point where the drains of the district cross the highway, by widening and deepening the drains of the district, it was the duty of the drainage commissioners, when the repairs were completed, to restore the bridge and highway to a condition which would make the highway fit for public use as a highway.”

The petition in this case shows that the bridges were destroyed by a flood and that the drainage commissioners are not in the least to blame for their destruction, and we think there is sufficient in the petition to require the defendant to answer it and it can then be determined whether or not the drainage ditch was an artificial ditch or a natural water course. The judgment will be reversed with directions to the Circuit Court to overrule the demurrer and require the defendant to answer the petition.

Reversed and remanded with directions.


text:
    Nancy A. Young, Administratrix, Appellee, v. City of Fairfield, Appellant.
    1. Bill of exceptions—setting out documentary evidence. Where the bill of exceptions does not show what the contents of a document offered in evidence were, a court of review cannot say there was error in refusing to admit it.
    2. Appeals and errors—presumptions as to evidence. Where there is no certificate of the trial judge, that the bill of exceptions contains all of the evidence introduced upon the trial of the cause, the appellate court will presume that the evidence was sufficient to support the verdict.
    3. Appeals and errors—certificate as to evidence. The certificate of the reporter that the transcript contains all the evidence, cannot he taken as a substitute for the certificate by the judge.
    4. Appeals and errors—certificate as to evidence. The making of a certificate to show that the bill of exceptions contains all the evidence is a judicial act and cannot be delegated by the judge.
    5. Appeals and errors—instructions. The giving of an instruction that “deceased must have exercised due care and caution for his own safety, and if the plaintiff failed to prove by a preponderance of the evidence that deceased did exercise good care and caution for his own safety, you must find in favor of the defendant” incorrectly modified by inserting "not” between the words “did” and “exercise” is not reversible error where the instruction in connection with the other instructions was not misleading.
    6. Instructions—ambiguity. Whether or not an instruction is misleading, error depends, not on what the ingenuity of counsel can at leisure work out the instruction to mean, but how and in what sense, under the evidence and the circumstances of the trial, ordinary men would understand it.
    7. Instructions—repetition. Repetition of instructions is not reversible error where it is not shown that harm has been done.
    8. Instructions—reference to ad damnum. The fact that an instruction contains a clause referring to the ad damnum is not in itself reversible error.
    9. Instruction—preponderance ■ of evidence. The use of the words “That if the evidence preponderates but slightly,” does not constitute error.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Wayne county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.

      L. A. McLain, for appellant.
    Boggs, Boggs & Herdinger and Cooper & Burgess, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is an appeal from the Circuit Court of Wayne county to reverse a judgment of nine hundred dollars rendered against the appellant.

The declaration in this ease alleges that the appellant was operating an electric light plant within its corporate limits for the purpose of lighting the public streets of said city, and that in the operation of its said plant it was possessed of and using certain poles, wires, cables, metal rings, hooks, electric arc lamps and appliances in and along its streets and alleys, and that it was the duty of the appellant to keep its said wires properly insulated and other appliances in proper repair so that when its said wires were charged with electricity persons might pass along and upon its public streets without danger of injury therefrom. That it negligently permitted a certain arc lamp and its appliances charged with electricity and suspended over Main street at or near the Baltimore and Ohio South-Western Railroad to become uninsulated, broken, defective, unsafe and out of repair and negligently permitted one of its wire cables attached to said arc lamp to be and remain uninsulated and in such condition to extend to and downward along a certain pole used to support said lamp, to a certain metal hook within about five feet of the ground and to be attached to said hook by means of a metal wire and had knowingly permitted the same to remain.there for a long space of time. That the said wire, cable, metal ring and metal hook became and were then and there charged with electricity and that while Tobe Young, the deceased, in the exercise of due care and caution for Ms own safety was upon the said street and near the said pole, his hand and body came in contact with said cable, hook and ring, charged with electricity as aforesaid, and he was then and there instantly killed. To this declaration appellant filed the general issue.

It appears from the evidence, transmitted to this court, that the appellant was engaged in the business of operating an electric light plant within its corporate limits; that the streets were lighted by electricity through or by means of arc lamps suspended across the streets and that one of said lamps was located over Main street at or near the intersection of said street with the Baltimore & Ohio South-Western Railroad and that the lamp was held in position by poles erected at opposite sides of the street, and that for the purpose of raising and lowering said lamp, when necessary to be cleaned or replemshed, a wire cable was attached to said lamp, and as described by the city engineer, “One pole stands east of railroad and north of wagon road, and the other on west side of railroad and south side of wagon road; they are connected at the top by a span wire; in the center of span wire is a pulley and at thes top of the southwest pole of the span wire is another pulley; a metal cable runs through the center pulley then parallel with the span wire to the southwest pole, thence down the pole to a ring which hooks over a screw in the pole. The electric lamp hangs below the center pulley of this cable. The lamp is supported by a hood. From the light to the pole where it is fastened there is no insulation. The light is fed by electricity from copper wires. These I have described are iron. The copper wires are attached to porcelain insulators on each end of a cross-arm about twenty-three to twenty-six inches in length on the hood above the lamp. The voltage of the current used varies according to the number of lights in use, usually about twenty-five hundred to twenty-six hundred volts. The lamp hood was metal. The wires after leaving the cross-arm come down under the hood, clear of the metal and up in to the hanger board, which is wood, connected into that, and the lamp is lamp from the hanger board by means of two hooks on each board * * *. Strain insulators are used in connecting any line in circuits placed in arc lights, where you want to break the circuits used in guy lines in protection from grounds or in any way you want to protect a machine from grounds. They are used on metal cables for raising and lowering lights to keep the electricity from coming down the wire. They consist of two pieces of metal, each having an eye and separated and insulated by mica. When they are in good repair they are non-conductors. There was none of these insulators on this wire at that time. Wood is not a conductor of electricity; wet wood is. * * * There was not one of those on that wire at that time. It rained on the fourth of July a good hard rain. This light had been hanging there in the street since November, 1888. I placed the metal cable on it some time in 1902 or 1903, maybe. There had not been any of these insulators on there any of this time, to my knowing. I took charge of the plant in April 1910, and plaintiff’s intestate was found dead July 5th, in the morning. During that time there were none of these insulators on that wire.”

It appears from the evidence that the deceased was last seen alive about eleven o’clock on the night of July 4th, and on the morning of July 5th he was found dead, at a distance of from two to four feet from the pole south of the depot; the pole was in the street and about forty feet from the sidewalk where people usually traveled upon this street. The evidence tends to show that when last seen alive the deceased had the appearance of having been drinking some, but not of being intoxicated, and that when found dead his hand had the appearance of having been burned by electricity. This, however, was disputed and several physicians were called and testified that in their opinion he was not killed by a shock from electricity. It appears, however, from cross-examination that there is a difference of opinion in the text-books as to the effect that death by electricity has upon the flesh of the body. Other witnesses testified that from the appearance of the hand and the body, in their opinion he was killed by a shock of electricity, and that they had seen electricity burns before. It further appears that the deceased usually passed along the street in question when going to his home, but on the opposite side and about forty feet from the place where he was found dead. The evidence as to how he came to his death is not of a conclusive character.

Counsel for appellant insists that the court erred in refusing to admit the coroner’s verdict in evidence. The record shows that while the coroner was upon the witness stand appellant asked him if he had the verdict of the jury and he said he did, but it was not with him, and the verdict was offered, (and so far as this record shows, without being present) to which appellee objected and the objection was sustained. It was not made an exhibit and does not appear in this record and this court cannot tell what the proffered verdict contained, and in order to have the question reviewed it is necessary that it be preserved in the bill of exceptions. It is said in the case of Chicago Trust Co. v. Goldsmith, 173 Ill. 328, “But we cannot determine this question from the record. It is not shown by the bill of exceptions what the contents of this alleged proof of claim were. It is nowhere set out and in the absence of any knowledge, from the record, of the contents of the paper offered, if it was offered, a court of review cannot say there was error in refusing to admit it in evidence.” Unless the verdict is in the record it is impossible for this court to determine whether or not appellee was prejudiced by the refusal, or whether it was even proper to be received in evidence. In the case of Ring v. Lawless, 190 Ill. 527, the court says, “The record does not contain the official transcript, and aside from all other questions as to the admissibility of that item of evidence, the complaint must, be overruled for the reason we cannot, in the absence of the transcript, determine whether it was proper to be received in evidence.” We do not think this assignment of error well taken.

It is strongly urged by counsel for appellant that it does not appear from this record that the appellant was negligent in the maintaining of its electric wires and cables, or that the deceased was killed by coming in contact with the wire, or that the deceased was in the exercise of due care and caution for his own safety; and very properly insists that the law is, that before the appellee can recover it is necessary to prove all of these facts. Counsel for appellee meet this objection by saying, first, these were questions of fact to be determined by the jury, and second, that there is no certificate of the trial judge that the bill of exceptions contains all of the evidence introduced upon the trial of the cause and that in the absence of such a bill of exceptions as the law requires the presumptions are all in favor of the verdict and judgment, and the Appellate Court will presume that the evidence was sufficient to support the verdict. In the absence of such a certificate the Appellate Court will not examine to see if that which appears in the record does sustain the verdict. Lindgren v. Swartz, 40 Ill. App. 488; Culliner v. Nash, 76 Ill. 515.

The appellant insists that it appears by the certificate of the reporter, and the announcement of the plaintiff and the defendant that they have no further evidence to offer, is sufficient to warrant this court in considering the evidence. We cannot agree with counsel for appellant in this contention as our courts have held that even where the reporter who reported the evidence on the trial, adds a certificate at the foot of the testimony that the foregoing is all of the evidence in the case, but the judge before whom the cause was tried does not state that the bill of exceptions contains all of the evidence or that the certificate of the reporter is even a part of the record, that it cannot be taken as a substitute of the certificate by the judge. Cogshall v. Beesley, 76 Ill. 445; Pointon v. St. L. A. & T. H. R. R. Co., 90 Ill. App. 623. The making of this certificate is a judicial act and must be performed by the judge. The authority cannot be delegated to the reporter and cannot even be delegated to the parties to make a bill of exceptions by agreement. Mallers v. Whittier Machine Co., 170 Ill. 434; Pointon v. St. L. A. & T. H. R. R. Co., supra. The law is well settled that where such a certificate from the judge is not incorporated in the bill of exceptions that the Appellate Court must presume that the jury and the court were warranted in finding the verdict and judgment rendered, and we cannot interfere with such verdict on an appeal.

Appellant contends that the court erred in modifying its instruction No. 2, which is as follows:

“The court instructs you that the deceased must have exercised due care and caution for his own safety, and if the plaintiff failed to prove by a preponderance of the evidence that the deceased did not exercise due care and caution for his own safety you must find in favor of defendant City of Fairfield.”

This instruction was modified by inserting the word “not” therein, which we have underscored. It is said by counsel for appellant that the instruction as modified does not state the law correctly and renders the instruction ambiguous, uncertain and misleading. We think the trial judge should have given the instruction as offered and that it was an oversight by him in inserting the word “not” therein but we are not prepared to say that the insertion of this word was of such a serious character as to be reversible error. The instructions both for the plaintiff and the defendant must be taken and considered as a series, and many of the instructions told the jury plainly that before the plaintiff could recover it must appear from the evidence that the deceased was using due care and caution for his own safety; and a casual reading of this instruction would, as we think, have impressed the mind, under the circumstances connected with the other instructions, of an ordinary man as directing the jury that unless the deceased was in the exercise of due care for his own safety they must find in favor of the city; while ingenious counsel at its leisure has been able to point out the criticism offered, we cannot believe that it impressed the jury in the same manner that it did him. The true test for determining such matters is laid down in the case of Funk v. Babbitt, 156 Ill. 408, and repeated in the case of Union Traction Co. v. Lowenrosen, 222 Ill. 509, “The test then, is, not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them and the circumstances of the trial, would ordinary men and jurors understand the instructions.” "We are satisfied that when this instruction is tested by this rule that the jury could not have been misled by it, and that it was not reversible error.

Instruction No. 2 of appellee is criticised because it mentions the ad damnum. And Nos. 10 and 11 because they are a repetition; and because No. 12 used the words, “That if the evidence preponderates slightly.” It is true that our courts have criticised instructions that are a repetition, and containing a clause referring to the amount of damages but we cannot see for what reason, or upon what principle this could be taken as reversible error, and we are not referred to any authority showing it to be such. Instruction No. 12 is also criticised because it says, “If the plaintiff’s evidence preponderates but slightly it would be sufficient, etc.” This instruction was approved by the Supreme Court in the case of Hanchett v. Haas, 219 Ill. 548, and in other cases.

From a careful consideration of this case we do not see that any such error has been committed as to warrant this court in interfering with -the verdict and judgment of the trial court, and the judgment is affirmed.

Affirmed.


text:
    Adam Keck, Plaintiff in Error, v. George Pfeil, Defendant in Error.
    1. Contracts—failure to perform. "Where plaintiff is discharged because of his refusal to continue with a contract unless an advance is given to which he is not entitled, he can only claim the money earned and not profits for the work to be performed.
    2. Evidence—profits. In action by. one who alleges that he was wrongfully prevented from performing a contract to sink a shaft, testimony of the person who completed the shaft as to the expense of completing it, and as to the profit which would have accrued to plaintiff should be admitted for the defendant, where it is doubtful whether the plaintiff is entitled to any profits, and where such plaintiff introduced evidence of the expense of completing the shaft, and as to the profits therefrom.
    3. Instructions—summarising case. Where in an action for money alleged to be due under a contract for sinking a shaft, there is evidence tending to show that plaintiff was discharged from performance because of refusal to continue unless advances were made, and that plaintiff was unable to complete the work, an instruction is vicious which attempts to summarize the elements essential to recovery but omits the elements of refusal to continue and the inability to complete the work.

      Assumpsit. Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 27, 1912.
    James O. Miller, for plaintiff in error.
    H. E. Schaumleffel and Louis P. Zerwick, for defendant in error.
   Mr. Justice McBride

delivered the opinion of the court.

Upon the trial of this case in the court below judgment was rendered against plaintiff in error for $950.00, and costs of suit, and he seeks by this appeal to reverse the judgment. This suit arose out of a written contract entered into between defendant in error and plaintiff in error, whereby it was provided, among other things, that defendant in error was to furnish engine, tools, drums, ropes, explosives and all other articles and instruments and labor necessary, and to sink in a faithful and workman-like manner a vertióle mining shaft on the premises of plaintiff in error and to develop such shaft to a vein of coal at approximately one hundred sixty feet from the surface and to be walled, lined and timbered with such character and kind of timber, and in the manner and style as plaintiff in error should direct, as the shaft was being sunk. Defendant in error further agreeing not to remove from such shaft or premises any material, tools, engine, instruments, appliances or articles of any kind used in the sinking of the shaft until the timbering had been entirely completed and accepted by plaintiff in error; for the faithful performance of such work plaintiff in error agreed to pay defendant in error $1,760.00, more or less, depending upon the actual number of feet the said shaft is sunk, to be determined by actual measurement, and was to pay defendant in error $5.25 per foot until the shaft had been sunk and lined to the underlying stratum of rock and after reaching the rock he was to be paid $9.00 per foot, payments to be made each Saturday night during the progress of the work, and the remainder to be paid when the shaft was entirely completed and accepted, it being understood that the plaintiff in error was to pay no more than eleven dollars per foot for the total number of feet of said shaft; the plaintiff in error was to furnish all necessary lumber for timbering the shaft.

The declaration consists of two special counts, and the common counts, to which the defendant filed the general issue and gave notice thereunder that he would set-off certain claims therein specified against the plaintiff’s demand. The declaration after setting out the agreement, alleges that the plaintiff on April 20, 1910, began the work of sinking a shaft under said agreement and furnished the tools, etc., required by him to be furnished, and sank the shaft to the depth of one hundred two feet, and that he performed the work in a faithful and workman-like manner in pursuance of said agreement and has always been ready and willing to complete the whole of said work but that the defendant did not nor would not make the payment or payments by the said agreement required, and would not permit the plaintiff to further proceed with or complete said work but refused wholly so to do, and on the 6th of July wrongfully and absolutely discharged, hindered and prevented the plaintiff from performing the residue of the work, and that by reason thereof the plaintiff has lost and been deprived of great gains and profits which would have accrued to him from the completion of the work and the price and value of the work performed by him.

The evidence in this case discloses that defendant in error entered upon the work of sinking the shaft in question and caused the shaft to be sunk to a depth of about one hundred two feet and that plaintiff in error made the weekly payments as provided in the contract, up to the week ending July 2nd, at which time plaintiff in error refused to pay the defendant in error for that week for the reason, as he claimed, that the shaft was not plumb, and that he would not pay until it had been straightened according to contract. There was no dispute between them as to the shaft not being straight and out of plumb for about the distance of fourteen or fifteen feet from the bottom, but defendant in error claimed that he sank it straight but it became out of plumb because of the weak and insufficient lumber that plaintiff in error had furnished to line the shaft with; that defendant in error undertook to straighten the shaft and removed two rings for that purpose and claims that there was so much clay and sand mixed with the water that the “whole business was on a move from water and sand.” Plaintiff in error brought a Mr. Jacques to look at the shaft and defendant in error says he was willing to employ Jacques to see that the work of straightening the shaft was properly done but defendant in error said he needed some money to pay the men and claimed that plaintiff in error was in arrears forty-two dollars but plaintiff in error refused to pay him any more money until the shaft was straightened. At this point a dispute arose about the payment of the sum of money. Defendant in error was claiming that there was forty-two dollars due him and that he wanted one hundred twenty-two dollars to pay his men and says that when he demanded one hundred twenty-two dollars and plaintiff in error refused to pay it defendant in error claims he then said to plaintiff in error, “What shall I do, I cannot get the money.” Plaintiff in error told him to borrow some money and defendant in error replied that he could not do that, and plaintiff in error said, “You can quit.” And "again, he says that he said to plaintiff in error, “What shall I do, I cannot get the money,” and plaintiff in error says, “You can quit;” “so I threw up the sponge.” Plaintiff in error in his examination says that on June 30th he.told defendant in error, “You are out of line, you are digging the shaft crooked;” “he said he could fix it, he could straighten it;” that he worked on July 5th and 6th trying to straighten it and then went away. That on the morning of July 7th defendant in error came out and stood around the shaft and said he wanted $122.00 to pay his hands if he didn’t get that he won’t work any more;” and then he went and got his battery, boxes and went away. Adam Keck, a son of plaintiff in error, also testified, that when defendant in error requested $122.00 plaintiff in error said he would not pay it until the shaft was straightened and that defendant in error then said, “Well I cannot work any more if I don’t get any money any more to pay my laborers,” and that he, defendant in error, then left. John Pfeil, son of defendant in error, also says that when they were having trouble about the planks breaking plaintiff in error says, “You have to fix that right; father said he didn’t have no more money; father could not fix it because he had used up all his money and Keck had refused to pay the Saturday night before. I heard him tell father to quit.” Wm. Glen also testified that “he heard defendant in error on the 6th or 7th say he wanted $120.00 or $122.00, something along there. Keck told him he would not pay him until he straightened the shaft. Pfeil said he would not go on unless he had that amount of money.” Joe Ehrstein also testified that he was there on July 7th, “heard Mr. Pfeil ask Mr. Keck for some money, said he could not go any further unless he got some money; Mr. Keck said the shaft was not the way the contract reads. I heard Mr. Pfeil ask Mr. Keck for $120.00; Keck said he would pay if the shaft was straightened out. Pfeil said if he got $120.00 he would straighten it as he must have the money to pay his men.” This was substantially all of the testimony upon this question.

It is apparent from the testimony in this record that the principal thing which led up to defendant’s in error quitting was the refusal of plaintiff in error to pay the money out before the shaft was straightened and to advance the $122.00. At all events this question was of such prominence, and apparently had so much to do with defendant’s in error quitting that in the instructions it should not have been ignored. It may be true that from this language it would appear that plaintiff in error discharged the defendant in error, but why? It was because defendant in error had said that he would not go on with the work unless plaintiff in error would pay this money, and plaintiff in error then told him that he could quit. Certainly this would be a discharge but on account of defendant in error exacting of plaintiff in error more than his contract provided for; if the discharge was brought about in this manner or for this reason then all that defendant in error could claim would be the money that he had earned and could not claim the profits upon the work that he had not performed, and as this evidence would indicate, was not able to perform.

The third instruction given for defendant in error is as follows: “The court instructs the jury that if you believe from the preponderance of the evidence in this case that the plaintiff and the defendant executed the contract read in evidence in this case, and that the plaintiff began work under the same and completed a part of the work provided to be done under it, and that the same was done in a workman-like manner and in compliance with the provisions of said contract, and that the said work was accepted by the defendant and that the defendant refused to make the payments required by the terms of *said contract and that he discharged the plaintiff and hindered and prevented him from completing the balance of the work; and if you further believe from a preponderance of the evidence that the plaintiff would have derived a profit from the completion of such contract, then the plaintiff is entitled to recover of the defendant for loss of such profits, if any such are shown by the evidence.”' Even if the plaintiff had performed the work in compliance with the contract and defendant refused to make payments, still if plaintiff in error discharged defendant in error because defendant in error refused to go on with the contract unless he would advance him more money, then defendant in error would not be entitled to profits. This instruction also eliminates the question of the ability of defendant in error to complete the contract, and the evidence at best certainly indicates his inability to complete the work; if he was not able to complete the work according to the terms of the contract then he was not entitled to the profits of the uncompleted work. This instruction is vicious because it attempts to summarize the facts or elements essential to a recovery and omits the important matters above referred to. City of Chicago v. Schmidt, 107 Ill. 186; Terre Haute So Ind. R. R. v. Eggmann, 159 Ill. 550.

The declaration charges that he was ready to complete the contract according to its terms. We think in view of the fact that the preponderance of the evidence shows that the principal cause of defendant’s in error failure to proceed with the work was on account of plaintiff’s in error refusal to advance the money as requested, that it was error to give this instruction in the form it was given, especially as it directed a verdict for profits without in a proper manner recognizing the points above suggested.

Again, defendant in error in his testimony in chief, stated that he could have finished the work in twenty-six days at an expense of $10.35 per day and this statement was made for the purpose of showing that the profit of defendant in error in the uncompleted work would amount to about $391.90. Plaintiff in error in his testimony offered to show by Ellis Taylor, the man who completed the shaft, the amount of profit that plaintiff could have derived from the completion of the shaft and asked the following questions of Taylor:

“Q. What do you say as to the profit to be made down to 102 feet or lower than that? Where is the most profit?
Q. Which is the less expensive to sink, down 102 feet or from 102 feet on down to 160 feet?
Q. What would you say as to that expense of $10.45 a day for sinking the shaft from 102 feet to 160 feet?”

To all of which questions objections were made and sustained by the court. We think that the witness should have been permitted to answer these questions for the purpose of obtaining plaintiff’s in error version of any profits that might have been obtained by plaintiff. The verdict in this case included profits to the amount of $363.50 and in view of the fact that it is exceedingly doubtful if defendant in error is entitled to recover profits at all under the evidence contained in this record, it was at least highly important that the instructions should have been accurate so far as they bore upon this question, and plaintiff in error should have been permitted to introduce his testimony in reduction of such profits.

For the reasons above indicated we think the court should have granted a new trial in this case, and the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas Seymour, Appellee, v. Illinois Southern Railway Company, Appellant.
    1. Railroads—to whom, company owes duty to sound hell or whistle. There is no duty toward one at the side of a railroad track to load a wagon from a car, to sound the whistle or bell on an approaching engine since the statute requiring signals before reaching crossings is intended merely to protect passengers and persons on the public highway about to cross or enter on a crossing.
    2. Railroads-—when person is lawfully on premises. One who is at the side of a railroad track to load a wagon from a car is lawfully upon the company’s premises and the company owes him the duty not to injure him, either wantonly, wilfully, or negligently.
    3. Railroads—wanton or reckless injury. Failure to sound a bell or whistle on an approaching engine is of no weight in determining whether a person lawfully beside a railroad track to load a wagon was wantonly injured by servants of the company, since the statute requiring such warnings, does not extend to such a case.
    4. Railroads—wanton or reckless injury. A finding that the servants of a railway company were guilty of wanton recklessness in operating an engine which struck the plaintiff’s horse and knocked him against the plaintiff, is unwarranted, where from the evidence it seems that the speed of the engine was ten to fifteen miles an hour, that plaintiff was beside the track to load a wagon, and that his team and wagon were sufficiently distant to be out of danger when seen by the defendant’s servants, but that the horse turned toward the engine after the pilot beam passed him, causing the tender beam to strike him.
    Action in case for personal injuries. Appeal from the Circuit Court of Washington county; the Hon. A. D. Rodenbers, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 27, 1912.
    Rehearing denied, October 23, 1915

      R. J. Goddard and Louis E. Hart, for appellant.
    G. C. Borders and Webb & Webb, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

Judgment was rendered in the Circuit Court of Washington county against the appellant for $750.00, and this appeal is prosecuted to reverse said judgment. It appears from this record that in April 1910, appellant was operating its railroad which passed east and west through the north limits of the'city of Nashville. Depot street extends north from the public square of said city, upon or near which appellant’s depot is located. East of this street one block, and running parallel with it, is Mill street. Defendant’s road intersects these streets, the former at or near its depot. On the south side of its road is a spur or switch extending from west of Depot street east across Mill street and to the Hughey mills located five or six hundred feet east of Mill street. The track at some point between Depot street and the mills, curves to the northeast; this side track was used by persons transacting business with the defendant, as a place for loading and unloading freight into and out of wagons. On April 1st, appellee was engaged in unloading stone from a car standing upon this side track, and in connection with such unloading he was using a team and had in his employ a man by the name of Jones who assisted him in unloading the stone from the car on to the wagon; appellee was using two wagons and one team of horses. While Jones loaded one wagon appellee would take the other wagon loaded with stone and deliver it, come hack and leave the empty wagon and change his team of horses to the loaded wagon. At about five o’clock in the afternoon, and while plaintiff was away with one of the wagons, a freight train of appellant came in on its main line, unhooked the engine from the train and run on to the switch and pushed the car of stone back to the mill, some six or seven hundred feet distant from where appellee and his assistant had been engaged in the unloading of stone from the car on appellant’s road. That while appellee was gone with this wagon Jones, the assistant, had loaded the wagon that had remained, and about the time that he had completed the loading of this wagon the engine pushed the car back to the mill above referred to. That while the engine was at or near the mill and around a curve appellee returned with his empty wagon and finding the other loaded unhooked' his team and drove the horses over the tongue of the loaded wagon and after driving his horses across the tongue he was at their heads attempting to fasten the neck-yoke upon the horse nearest to the track; his assistant at the same time was engaged in hooking the horses up to the double-trees, and at this time the engine approached from the mill and, as it passed by, the tank beam struck the horse nearest the switch upon the rump and threw the horse forward several feet, and in moving forward the horse struck plaintiff and injured him. The wagon stood some two or three feet away from appellant’s track and far enough to clear the cars as they passed by.

The evidence discloses that the pilot beam on the engine extended out over the tracks the same distance as the tender beam, and was of the same height from the ground. The pilot beam passed the horse without' striking him, and the fireman says that between the time the pilot beam passed the horse and the tender beam reached it that the horse turned his rump toward the engine, and that caused the tender beam to strike him. The horse was a grey one and grey hairs were afterward found upon the tender beam'. There is a conflict in the evidence as to the speed at which the engine was running at that time. The witness Jones fixed it at twenty miles an hour, while other witnesses fixed it from five to eight miles, and others from ten to fifteen miles an hour. There is also a conflict as to whether or not the employes of appellant blew the whistle or rang the bell.

The declaration consists of three counts. The first count charges that the servants of appellant in charge of the locomotive engine negligently operated the same without warning or any signal, over and along said “teaming track” where the plaintiff was engaged at work and in consequence of such negligence ran into plaintiff’s horse and knocked it against the plaintiff.

The second count charges that appellant negligently drove its said engine at a dangerous rate of speed over and along the said track and by reason thereof collided with the horse.

The third count alleges that the servants of appellant, wantonly, recklessly and negligently run, operated and managed said train at an unlawful and dangerous rate of speed, to-wit, twenty miles per hour, and failed to ring the bell or blow the whistle or give any other signal or warning of its approach, and avers that in consequence of such wanton negligence the engine ran with great force and violence against plaintiff’s horse.

Appellant filed the plea of general issue.

Two of the errors assigned by counsel for appellant are that the court erred in overruling appellant’s motion for a new trial, and in rendering judgment upon the verdict. We think the whole case can be determined from these errors as a decision of the case necessarily involves a discussion of the facts. Much of the evidence and the discussion of counsel is devoted to the question as to whether or not appellant’s servants sounded the bell or blew the whistle as it approached the place where appellee was engaged at his work. As we understand the law, the appellant did not under the statute owe the appellee, situated where he was, the duty of sounding the bell or blowing the whistle. The statute requiring the appellant to ring the bell and blow the whistle, for the distance of eighty rods before reaching a highway crossing, was not intended as a duty towards people who were at the side of the railroad, whether lawful or unlawful. We think that appellee was lawfully at the place where he was engaged at work and had a right to be there but this statute was enacted for the protection of persons upon the public highway that were about to cross the railroad or enter upon its crossing, and for passengers. It is said in the case of Williams v. Chicago Railroad Company, 135 Ill. 491, “That unless the injured person was upon a public highway or was a passenger upon the train, the railroad company owed him no duty to ring a bell or sound a whistle as required by statute, and he could not hold the railroad company liable for the failure to perform the statutory duty because the company had violated no duty which it owed him. ’ ’ And this same doctrine was announced in the case of Illinois Central Railroad Company v. Eicher, 202 Ill. 556, and in the case of Thompson v. C. C. C. & St. L. R. R. Co., 226 Ill. 542. The appellee was not upon the public highway, he was not about to enter the public highway for the purpose of crossing the railroad, and as we view the law had no right to invoke the duties enjoined upon the appellant by this statute.

It is insisted by counsel for appellee that the acts of the defendant were not only negligent but were wanton and wilful, and that by reason of said defendant’s servants’ wanton, reckless and negligent operation of said train at a dangerous rate of speed and failing to ring the bell and blow the whistle the appellee was injured. The witnesses were at considerable variance in their estimation of the speed at which the engine was being operated. Mr. Jones, who saw the engine but for an instant, and, as we think, was not in a very good position to say how fast it was running, estimated the speed at twenty miles per hour, while Brandhorst, another witness of appellee fixes the speed at from ten to fifteen miles per hour, and these were the only witnesses of plaintiff that claimed to be able to fix the speed, while the fireman McKelvey, fixes it at five miles per hour and Burgoyne, five or six miles per hour and Lynn and Henderson each fix it at about five miles per hour. They were connected with the operating of the train. Believing as we do, that Jones was not able from his observation, as he says, “the whole thing was done in a dash,” to determine with any degree of accuracy the rate of speed at which the train was being operated, we are satisfied that it could not under this testimony have been running to exceed ten or fifteen miles per hour, as estimated by plaintiff’s witness Burgoyne. It also appears to us that the rate of speed could not have had very much to do with the knocking of the horse against the plaintiff, for whether the train was running eight miles an hour or ten miles an hour and struck the horse as it did it would have the effect to knock him forward, and the thing that caused the engine to strike the horse was the fact that between the time the pilot beam passed him and the tender beam reached him he turned his rump towards the engine and this caused the trouble. We agree with the contention of counsel for appellee that he was lawfully upon the premises of appellant, and appellant owed him the duty not to wantonly or wilfully or even negligently injure him and if it did a liability would then accrue. It is said by appellee in his brief, “At any rate the failure to apprise the appellee of the approach of the engine by sounding a bell or blowing a whistle is nothing short of recklessness or wantonness, and words are inadequate to properly characterize such conduct on the part of appellant’s servants in view of the public nature of the place and the business connected thereat.” By this it will be seen that in arriving at their wantonness and recklessness, great reliance is placed upon the failure to give warning of the approach of the engine, but as we have stated above, this was not a duty enjoined by statute upon the part of the appellant towards the appellee and hence could have no weight in determining the question of wantonness. It is said by the Supreme Court of Illinois, in the case of Illinois Central Railroad Co. v. O’Connor, 189 Ill. 566, “While it is true the Eailroad Company was running its train at a greater rate of speed than allowed by the ordinance of the City of Chicago, yet that fact did not relieve the deceased from the exercise of ordinary care, nor can the speed of the train alone be regarded as furnishing a sufficient reason for holding that the injury was wilful or wanton.” In the case of L. S. & M. S. R. R. Co. v. Bodemer, 139 Ill. 606, the Supreme Court says, “What is meant by ‘such gross negligence as evidences wilfulness’? It is ‘such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness’ (2nd Thompson on Negligence, 1264, Sec. 52); it is such gross negligence as to imply a disregard of consequences or a willingness to inflict injury.” Also see I. C. R. R. v. Leiner, 202 Ill. 624.

It is said in the case of C. C. C. & St. L. R. R. Co. v. Cline, 111 Ill. App. 422, ‘ ‘ The acts so characterized must be the result of more than slight or ordinary negligence, (L. S. & M. S. Ry. v. Bodemer, supra); wilful negligence is a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another which duty the person owing it has assumed by contract or which is imposed upon the person by operation of law. It is an entire absence of care, for the life of the person or property of others such as exhibits a conscious; indifference of consequences.” When this test is applied to the facts as disclosed by the record what is there in it to show a conscious indifference to the life or property of appellee? It is very clear that those operating the train did not see that the horse or the appellee were in danger, did not realize- that anything was liable to happen by passing by the team as the wagon and horses when seen by the servants of appellant were sufficiently distant from the railroad track to be out of danger, and as before stated, there was no danger and no accident could have happened had the horse not moved from the position he was in when first seen. This case is entirely different from that class of cases where a person is seen in peril or where a train is operated through a crowd of people at a high and reckless rate of speed.

We are of the opinion that there is nothing in this record that warranted the jury in finding that appellant’s servants were guilty of wanton recklessness in the operation of this engine, and that it would be manifestly against the weight of the evidence to permit this verdict and judgment to stand; the judgment is therefore reversed and the cause remanded.

- Reversed and remanded.


text:
    Fred Fowley, Appellant, v. R. B. Thompson, Appellee.
    1. Judgments—when not final. Where in action on an account due, defendant admits part of the amount and tenders it in court, with costs, hut contests the remainder, and the court orders that the sum and costs he paid over, hut orders that defendant recover costs for the term and continues the case, the judgment for costs is not a final judgment.
    2. Accord and satisfaction—what constitutes. Where in an action for an account due, defendant admits part thereof and tenders it in court, hut denies the remainder and plaintiff accepts the tender as part satisfaction, the court’s order so reciting, he is not precluded from recovering the remainder of his claim.
    3. Accord and satisfaction—when question for jury. Where a tender of part of a sum alleged to he due is made in court and accepted, it is a question of fact, in what sense and with what intent the money was received, and if any dispute exists, it is a question for the jury whether it was received in full satisfaction.

      Assumpsit. Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.

      J. S. Kendall, for appellant.
    A. S. Caldwell and Roscoe Tygett, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

The court at the conclusion of plaintiff’s evidence directed the jury to find a verdict for the defendant, upon which judgment was rendered against plaintiff for costs and he prosecutes this appeal.

In this case the appellant brought suit against the appellee upon an account for boxes and merchandise furnished by appellant to appellee. The declaration consisted of the common counts to which an affidavit of merits was attached showing $377.71 to be due to the plaintiff; to this the defendant filed a plea of general issue, except as to $275.71; also a plea of tender admitting the sum of $275.71, parcel of the amount claimed to be due, which amount he tendered the plaintiff and paid the same to the clerk of the court, and attached to said pleas an affidavit of merits except as to the sum of $275.71, and averring that as to the remainder of the claim the articles charged to him were not received or used by him or delivered to any one by his direction; to which plaintiff filed a replication, and as to the plea of tender the plaintiff replied that he could not deny the tender of the said sum of $275.71, etc., and costs of suit up to time of tender, in manner and form as defendant has above in his second plea alleged freely takes the same out of the courts here; therefore, as to the said sum of $275.71 and costs to time of tender, the plaintiff is satisfied.

At the January Term, 1911, of the Circuit Court of Jackson county, the court ordered, after reciting the acceptance of the tender in satisfaction in part of the debt, that the clerk pay to the plaintiff the amount of the tender and costs, which was accordingly done; and ordered that the defendant recover of the plaintiff the costs of the suit for this term, and continued the case. At the April Term, 1911, the case proceeded to trial upon the issues as heretofore made. Plaintiff introduced his evidence showing the delivery of the boxes and other material to the amount of $377.71 and rested his case, whereupon a peremptory instruction was allowed and given directing the jury to find a verdict for the defendant.

One of the errors assigned by appellant is that the court erred in sustaining the motion for peremptory instruction offered by appellant, and instructing the jury to find the issues for the defendant, and this is the principal error argued by counsel for appellant and appellee. In the argument made by counsel for appellant the suggestion is made that the judgment for costs rendered at the January Term is not a final judgment, as it does not dispose of all of the pleas nor all of the questions in dispute between the parties. In the case of Wenom v. Fossick, 213 Ill. 70, where a similar question was before the court, it is said, “It will be observed that this judgment did not dispose of the plea of the general issue, and did not in terms dispose of the rights of the parties. To make it a final judgment it should, according to the authorities, have contained a statement that ‘it is considered by the court that the plaintiff take nothing by her writ, and that the defendants go hence without day,’ or other words of similar import, disposing of the entire subject matter of the litigation.” Citing Freeman on Judgments, Sec. 16; Black on Judgments, Sec. 31, and other cases. We do not think it can be successfully contended that this was a final judgment. Counsel for appellee have not in their brief insisted that it was a final judgment.

The next question to determine was the effect of the acceptance of the tender offered into court. It will be observed that the plaintiff in filing his acceptance of said tender referred to is as parcel, etc., of the amount claimed, and the order of court directing it to be turned over to the plaintiff recited that it was received as an acceptance of the tender and satisfaction of part of the debt. So far as the record discloses, the acceptance was in part only of the debt, and having been received in that way it ought not, and as we think, does not preclude the plaintiff from recovering a further sum if it is justly due him, especially under the pleadings as made in this case. In the case of Higgins v. Halligan, 46 Ill. 176, it is said, “The acceptance by the plaintiff of one hundred twenty five dollars, tendered by the defendant, is urged by him as a concession that this amount was all that was due, and entitled the defendant to a judgment for costs, is the second point made by appellant. There is no authority cited on this point, and there can be none, for the doctrine is well established, that accepting a sum tendered, if not accepted in full of all demands, does not conclude the party from proceeding for more. In Ryal v. Rich, 10 East 47, which was action for double rent, and for use and occupation, the defendant pleaded tender of the single rent before action brought and paid the money into court, which the plaintiff took out before the trial, and still proceeded. It was held that the .acceptance of the single rent was no waiver of the plaintiff’s right to proceed for the double rent, and that the plaintiff’s going on with the action after taking the single rent' out of court, was evidence to show that he did not mean to waive his claim for the double value but to take it pro tanto. To the same effect is the case of Sleght v. Rhinelander, 1 Johns. 192.” This decision is quoted approvingly in the case of Alexander v. Loeb, 230 Ill. 458, and there again declares this to be the rule of law in force in this state. Counsel for appellee refer to the case of Monroe v. Chaldeck, 78 Ill. 429. This case, as we read it, was where a tender had been made of $150.00, and the plaintiff released any other damages and accepted the tender and asked for judgment of the amount, and some question then seemed to arise as to whether or not the plaintiff could recover judgment at all in . .the case, the decision holds that the defendant having made the tender is concluded hy it; we do not believe that this case is in point. While other decisions were also cited by counsel for appellee, we are of the opinion that the cases above cited are conclusive upon the question here presented. It seems to be that where a tender is made and accepted after the action is brought, that it becomes a question of fact in what sense the plaintiff received the money tendered and paid into court, and with what intent the money was received, and if any dispute existed as to the intent with which money was paid by the defendant and received by the plaintiff, this would then become a fact to be determined by the jury as to whether or not it was received in full satisfaction of the debt.

We think the court erred in this case in directing the jury to find a verdict for the defendant, and in rendering judgment against the plaintiff for costs, and the judgment will he reversed and the cause remanded with directions to proceed in conformity with this opinion.

jReversed and remanded.