text:
    Roy E. Phillips, Appellee, v. A. Stone et al., Appellants.
    Gen. No. 6,360.
    1. Justices oe the peace, § 185

      -—what is effect of appearance in Circuit Court on appeal. The entry of appearance in the Circuit Court hy one of two defendants on appeal hy the other defendant^ only, from a justice of the peace gives the Circuit Court complete jurisdiction over both defendants for all purposes of the litigation, although the first defendant has not been served with process, but has entered his appearance before the justice.
    2. Mechanics’ mens, § 196*—when evidence shows contract. Evidence held sufficient to show a contract between one defendant as contractor and the other defendant as owner for the construction by the former of a certain silo, in a suit to establish a subcontractor’s lien.
    3. Mechanics’ hens, § 72*—what is effect of default of contractor on right of subcontractor to lien. A subcontractor is entitled to a lien, even though the original contractor by misconduct in carrying out his contract has devested or deprived himself of a right to obtain a lien.
    4. Mechanics’ liens, § 199

      —when instruction on what is not defense available against subcontractor is correct. An instruction to the effect that if the evidence shows that the original contractor of the silo in question in a suit to establish a subcontractor’s lien failed to construct the silo in the manner required by the contract hut if the jury find from the evidence that the owner defendant waived such default on the contractor’s part, then the defect so waived would not be a defense to the subcontractor’s claim, held to be correct.
    5. Instructions, § 137*—when properly refused. An instruction asked by a party which is inconsistent with one already asked by him and given is properly refused.
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed August 7, 1917.
    E. D. Reynolds, for appellants.
    George P. Gallaher, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

This suit was brought by Roy E. Phillips, the appellee, before a justice of the peace, against A. Stone and J. B. Atwood, defendants in the suit, under section 28 of the Mechanics’ Liens Law of 1903 (J. & A. 7166), to recover money claimed to be due for work performed by him for the defendant A. Stone, a contractor, with whom the appellant J. B. Atwood had made an agreement for the building of a concrete silo, on a farm owned by Atwood. The appellant J. B. Atwood was duly served with process, and the defendant Stone, though not served with process, entered his appearance in writing before the justice. The justice rendered a judgment against both defendants, from which an appeal was taken by Atwood to -the Circuit Court of Winnebago county, where a trial by jury' was had, and a verdict returned against the defendants for $70, upon which the court entered judgment, and from this judgment an appeal is prosecuted by the appellant Atwood. After the appeal and before the trial, the defendant Stone again entered his appearance in the Circuit Court as joint defendant in the case. Appellant contends that the court had no jurisdiction of the defendant Stone, because he was not regularly served with process as provided by the statute; and that the original contract between the defendant A. Stone and appellant Atwood was not proven at the trial. It is also contended that contractor Stone was not entitled to a lien because he did not properly perform his contract in the building of the silo in question; and that the appellant was damaged by such improper construction; and that his damages amounted to more than the price fixed for the building of the silo; and that therefore the contractor had no legal right to a lien against the appellant as original contractor; and that the appellee as a subcontractor on that account is also barred from enforcing a lien as subcontractor. Concerning the first question raised by appellant, that the court had no jurisdiction of the contractor, A. Stone, we are of opinion that regardless of whether or not the justice of the peace could- legally acquire jurisdiction of the defendant by the entry of Ms appearance in writing, there is no doubt about the jurisdiction of the Circuit Court for the purpose of a trial de novo. Wasson v. Cone, 86 Ill. 46; Hohmann v. Eiterman, 83 Ill. 92; McMurray v. Thede, 86 Ill. App. 555. The en-. try of appearance in writing filed by the defendant Stone in the Circuit Court, after the appeal, waived all defects that might have been urged concerning the jurisdiction of the justice. It was held in Wasson v. Cone, supra, that although a justice of the peace may fail to acquire jurisdiction of the person of the defendant yet if the latter perfects an appeal to the Circuit Court this will give the latter court jurisdiction; and in the Circuit Court the defendant cannot then be heard to insist that the justice had no jurisdiction of the person. And in the case of Hohmann v. Eiterman, supra, it was said: "There was no service on appellee, in the court below, and it is claimed that without such service or the entry of an appearance in writing * * * the court had no jurisdiction of. the person of defendant. * * * Independent of statutory provisions, we have no doubt this was a full appearance and submission to the jurisdiction of the court by the plaintiff; and, having entered a full appearance, no possible reason is perceived why he should be served with process. Its only office is to bring parties before the court who are not subject to its jurisdiction. A voluntary appearance, then, dispenses with the necessity of process or service.” It is clear, therefore, that the defendant Stone, by entering his appearance in the Circuit Court after the appeal, submitted himself to the jurisdiction of the court for the purposes of a readjudication of the rights of the parties, and that the Circuit Court had complete jurisdiction of both defendants for all the. purposes of the pending litigation.

Concerning the question of proof of contract, we think the evidence sufficiently shows that an arrangement was entered into between Atwood "and Stone for the construction by Stone of the silo in question in June, 1913, by which arrangement Stone was to furnish the labor and material for such construction. The appellant’s own proof shows the reasonable cost price for the construction of a silo of the size and character of the one in question at the time of its construction was in excess of $300. Moreover, the case was tried by the parties on the assumption that an original contract existed between the parties; that Stone was the original contractor; and the defense by appellant was made on the same assumption. In addition to this, appellant asked an instruction which was given by the court, which assumes and concedes, in effect, that an original contract existed between the parties. Appellant is not in position therefore to raise any question on appeal, as to the sufficiency of the proof of the original contract. Section 21 of the Mechanics’ Liens Act of 1903 (J. & A. j[ 7159) as in force at the time of the making of the contract for, the construction of the silo in question, gave the appellee a lien for the labor for which he performed for the original contractor; and he had the right to sue the original contractor and owner and recover the amount due him therefor before a justice of the peace. The total amount claimed and recovered by the subcontractor must not exceed the contract price of the improvement. And the subcontractors are entitled to their liens, even though the original contractor by misconduct in carrying out his contract has devested or deprived himself - of the right to obtain a lien. Hurd’s Eev. St. 1911, ch. 82, sec. 35 (J. & A. j[ 7159). The appellant himself proved the usual and customary price paid for the construction of a silo of the character and dimensions of the one in question, and the price so proved greatly exceeds the amount claimed by the appellee; and there is no proof that there are any other lien claims which would reduce the appellee’s claim from the full amount due ,him to a pro rata amount. We are of opinion that the defense of improper construction by the contractor was not available to appellant, as against the rights of appellee, to a lien, and to recover for the labor performed by him as subcontractor. Under the statute as then in force, subcontractors are entitled to enforce liens regardless of the faults and delinquencies of the contractor in the performance of the original contract with the owner. While this feature of the Mechanics’ Liens Statute of 1903 does not appear to have heen construed by the courts of review in our own State, in other jurisdictions similar provisions in statutes concerning the liens of subcontractors have been held to have the legal effect indicated above. Rieger v. Schulte & Eicher, 151 Ky. 129; Wisconsin Trust Co. v. Robinson & Cary Co., 68 Fed. 778; Hydraulic Press Brick Co. v. Green, 177 Mo. App. 308. We are of opinion, therefore, that the defense made by the appellant did not constitute a bar to appellee’s right to recover.

Appellant also contends that instruction number 3 given for the appellee is erroneous. This instruction is to the effect that if the evidence shows that the contractor failed to construct the silo in the manner required by the contract, but the jury further find from the evidence that the appellant waived such default on the part of the contractor, then the defect so waived would not be a defense to the appellee’s claim. This instruction is a substantially correct statement of the law concerning the point involved, and the court did not err in giving it. The refusal of the instruction marked 1, requested by the appellant, is also assigned as error. But the refusal was proper because the instruction was inconsistent with instruction number 2, which appellant requested and which was given, and which assumes that the defendant Stone was an original contractor, and that there was a contract between said Stone and the appellant for the construction of the silo in question. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Finley Barrell, Appellant, v. Lake Forest Water Company, Appellee.
    Gen. No. 6,399.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Waters and watercourses—when not shown that water meter is defective. Evidence held sufficient to warrant the finding that allegations of a hill that defendant’s meter was a “fast meter” and registered more water than was used hy complainant were not proved, in a suit by a water user against a water company to enjoin-it from shutting off water from complainant’s premises.
    2. Appeal and error, § 1394

      —when decree of chancellor not disturbed. Where the proof warrants the conclusion reached hy the chancellor on the facts, the decree based thereon should not be-disturbed.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Bill by Finley Barrell, complainant, against Lake Forest Water Company, defendant, for injunction to restrain defendant from shutting off water from complainant’s premises for his refusal to pay defendant’s bill demanded for water theretofore furnished complainant by defendant during the months of July, August and September, 1913. From a decree dismissing the bill for want of equity, complainant appeals.
    Frederick Sass and A. F. Beaubien, for appellant.
    Cooke, Pope & Pope, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Pleading, § 453 —when replication is waived. When a case proceeds to trial upon the pleadings and proofs without a replication being filed, replication is waived and a sworn answer has no probative force.


text:
    Lena O’Brien, Appellant, v. Luther Crawford, Appellee.
    Gen. No. 6,416.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 3

      —when declaration in action against automobile owner for personal injuries -is sufficient. A count in a declaration alleging that defendant so carelessly and negligently ran and operated his automobile upon a certain public highway, contrary to and in violation of his duty in that behalf, at-a certain time, and that by means thereof, while plaintiff in the exercise of due care was riding along the highway in a buggy-drawn by a horse driven by her husband, the defendant then and there drove and ran his automobile into the horse then and there causing it to become frightened and run away, by means whereof plaintiff was violently thrown from the buggy and injured, etc., held good on demurrer.

      Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed August 7, 1917.
    Rehearing denied October 3, 1917.
    Statement of the Case.
    Action Tby Lena O’Brien, plaintiff, against Luther Crawford, defendant, to recover damages for personal injuries due to defendant’s alleged negligence in driving his automobile. From a judgment for defendant in bar on demurrer to the third and fourth amended counts of the declaration, plaintiff appeals.
    F. F. Riely and Barnes, Magoon & Black, for appellant.
    Thomas Kennedy, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

2. Automobiles and gabages, § 3 —when declaration in action for personal injuries against owner of automobile colliding with buggy is sufficient. A count in a declaration alleging that defendant at a certain time was running and operating his automobile along two certain public highways in a city, and that it was then and there his duty to use due and reasonable care in driving same and to so operate it as to comply with’the general usage and customs in vogue in the city of keeping and driving it to the right of the center of the highway and to pass all conveyances he should meet by turning to the right and by leaving space enough between his machine and the left side of any streets on which he was then driving to permit other vehicles meeting him to turn to the right in passing his automobile, and to so operate it as to use reasonable care to prevent it from coming into contact with or running into any other conveyance on the highway, yet the defendant not regarding his duty in that behalf so negligently, carelessly and improperly operated his automobile upon said highways and in going around said corner that there was not room for any vehicle meeting-his automobile to pass by turning to the right between it and the northeast corner of the intersection of said two highways, and carelessly, negligently and improperly drove his automobile into the horse and buggy in which plaintiff was then and there riding, etc., "and so near to the northeast corner of the highways as to crowd the horse and buggy off from the northeast part of one highway onto the northeast corner of the intersection, etc., and into the horse, whereby it became frightened and ran away, upsetting the buggy and throwing plaintiff out, injuring her, etc., while she was in the exercise of due care, etc., held good on demurrer. ,


text:
    Henry F. C. Harmening, Defendant in Error, v. Frank O. Hawley, Plaintiif in Error.
    Gen. No. 6,418.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Records, § 7

      —conclusiveness of court record. The record of a court imports verity and cannot be contradicted by other evidence, but is conclusive upon the parties to the suit as well as all others whose interests may be affected thereby.
    2. Records, § 7*—what does not constitute contradiction of court record. The validity of a decree shown by the record to have been regularly entered in open court on a certain day is not impaired by evidence of indorsement of a file mark of a different date on the back of apparently the same decree by the clerk oFcourt, and such indorsement or the fact they are apparently the same decree cannot be regarded as contradiction of such record.
    Error to the Circuit Court of Du Page county; the Hon. Mazzoti Sltjsseb, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Bill by Henry F. C. Harmening, complainant, against Frank 0. Hawley and others, defendants, to have a certain contract for the purchase of real estate entered into between the complainants and the defendants declared forfeited, and for other relief. From a decree against defendants, upon answer of defendant Hawley and default of the other defendants, defendant Hawley brings error.
    Charles H. Darling, for plaintiff in error.
    S. L. Rathje, for defendant in error; Raymond & Newhall, of counsel.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Walter J. McMurray, Appellee, v. Peoria Railway Terminal Company, Appellant.
    Gen. No. 6,463.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads,. § 599*—when evidence shows giving of signal by crossing flagman to proceed, causing collision. Evidence held sufficient to warrant the finding that defendant's crossing flagman signaled the train of another railroad on which plaintiff was employed as bralceman to come on, as a result of which a collision occurred at the crossing and plaintiff was injured.
    2. Appeal akd error, •§ 1000*—when question of admissibility of evidence will not be reviewed. Where neither the abstract nor the record showed an offer of evidence urged on appeal as having been made and refused or that the matter was brought to the attention of the court by question or otherwise or that the court ruled upon it, held that the question involved in such evidence was not presented for review.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Greek, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Walter J. McMurray, plaintiff, against Peoria Railway Terminal Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $1,500, on remittitur, defendant appeals.
    Jack, Irwin & Jack, for appellant.
    Weil & Bartley, for appellee.

      See Illinois Notes Digest, Yois. XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Railroads—when instruction on right of recovery for negligence of railroad company colliding with train of another is correct? In an action by a brakeman of one railroad company against another railroad company to recover for injuries received in a collision at a railroad crossing, an instruction to the effect that if the jury believed from the evidence that plaintiff was exercising due care for his own safety and defendant was negligent, plaintiff would have a right to recover damages to the extent sustained, held to be proper notwithstanding it did not include also the statement that defendant Would not be liable if plaintiff’s employer at the time was negligent, or equally negligent, or contributed to the accident, as that was matter of defense.

4. Damages, § 211 —when instruction on prospective is correct. An instruction concerning prospective damages, held proper as given where there was evidence of consequences following plaintiff’s injuries, of weakness of sight of an injured eye, of continued trouble with one wrist following the injury, and of intermittent headaches continuing after injury.


author: Mr. Presiding Justice Carnes

text:
    Peter Edwall, Plaintiff in Error, v. Chicago, Rock Island & Pacific Railway Company, Defendant in Error.
    Gen. No. 6,417.
    1. Trial, § 199

      —when refusal to direct verdict is not error. It is not error in a trial court to refuse to direct a verdict of not guilty even though the court would not permit a verdict of guilty to stand, where there is a sharp conflict of evidence.
    2. Appeal and error, § 1389*—what is duty of Appellate Court in weighing evidence. The Appellate Court has a broader duty in weighing evidence than that imposed on trial courts, and is only called on to consider whether a verdict is so manifestly against the weight of the evidence that no judgment could be maintained on it after the verdict is obtained, on a record free from material, substantial error prejudicing the defeated party.
    3. Railroads, § 709*—when admission of evidence of third persons as to comments on occurrence of accident is prejudicial error.
      The admission o£ the testimony of the engineer, fireman and brake' • man of a certain freight train not involved in the injury to plaintiff caused by his being struck by defendant’s switch, engine at a crossing, who witnessed some of the occurrences, as to what was said between them at the time, was prejudicial error.
    4. Railboads, § 777

      —when instructions on liability of railroad company for negligence in injuring a pedestrian at a crossing are erroneous. In ait action by a pedestrian to recover damages for personal injuries received as the result of being struck by a switch engine at a crossing, instructions based upon several counts of the declaration setting up several acts of negligence as producing the injury complained of in effect that if the jury believed each of the charges proved and that the injury was caused by the several acts of negligence charged or some two or three of them, but they were unable to find from the evidence that any one of them was the immediate cause or to say that the accident would not have occurred if the defendant had not been guilty of some particular one of the charges, the verdict must be not guilty, held to be erroneous .where one count charged the violation of a speed ordinance.
    5. Railboads, § 622*—what is prima facie negligence in operation of a train. The violation of statutory regulations in operating a train is prima facie negligence, but there must be further proof that the negligence caused the injury complained of, in an action to recover damages for such injury.
    6. Railboads, § 774*—when instruction on liability, of railroad violating speed ordinance and injuring pedestrian is erroneous. . In an action by a pedestrian to recover damages for personal injuries received as the result of being struck by á switch engine, an instruction based upon a count of the declaration charging violation of a municipal speed ordinance, and informing the jury that the plaintiff must prove the connection between such negligence and the injuries complained of, instead of requiring the defendant to rebut the prima facie case made by proof of violation of such ordinance, was erroneous.
    7. Negligence, § 223*—when instruction on is erroneous. An instruction to the effect that the negligence must be the sole and immediate cause of the injury, held to be erroneous.
    8. Instructions, § 12*—when should not be given. An instruction technically correct but which a layman would probably misunderstand should not be given.
    9. Instructions, § 12*—necessity of clearness and accuracy. Upon a vital or controlling question instructions should be clear, fair and accurate.

      10. Negligence, § 205

      —when instructions are of doubtful value. It is not erroneous but of doubtful value, in an instruction upon questions of negligence and care, to advise a jury further as matter of law on that issue after advising them that such questions are to he determined by comparing the conduct of the party with that of reasonably prudent men under like conditions and circumstances.
    11. Negligence, § 188*—what preponderance of evidence . required. Only slight preponderance of the evidence is sufficient to establish plaintiff’s due care, in an action to recover damages for personal injuries.
    12. Railroads, § 779*—when instructions on contributory negligence of pedestrian are misleading. Instructions directing attention specially to the question whether plaintiff, in an action to recover damages for personal injuries, received at a railroad crossing, should have looked and listened before going upon the defendant’s railroad track, held misleading and calculated to draw the jury’s attention from the simple question whether plaintiff at that time and place was conducting himself as would an ordinarily prudent person under the same or similar circumstances and particularly mischievous in twice directing attention to the admitted fact that-plaintiff did not look east before going on the track.
    13. Instructions—when writing of instructions on paper of . party’s attorney is not prejudicial 'error. The writing of instructions on paper bearing in watermark the card of the party’s attorney is improper but not prejudicial error, where done inadvertently, and the mark would probably not be noticed by the jury if they read the instructions.
    14. Appeal and error, § 980*—when rules of trial court not considered. Rules of the trial court not in the record cannot be considered.
    15. Appeal and error, § 1502*—when acceptance of brother-in-law of one of firm of attorneys trying case as juror is harmless error. Where a brother-in-law of one of the firm of defendant’s attorneys, but not the one who tried the case, was accepted on the jury without plaintiff’s knowledge of the relation, defendant's attorneys should have advised plaintiff of the relation, but reversible error was not committed. e
    16. Appeal and error, § 951*—when additional record stricken to complete case. A motion to strike from the files an additional record filed to correct an alleged clerical error in copying a given instruction by the improper use of the word “as” for “is” whereby material error in the instruction as shown in the original record existed, was denied, to complete the record, without consideration of the question in determining the case.

      Error to the Circuit Court of Rock Island county; the Hon. William T. Chtjegh, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 16, 1917.
    J. T. & S. R. Kenworthy, for plaintiff in error.
    Stafford, Schoede & Stafford, for defendant in error; M. L. Bell and A. B. Enoch, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Peter Edwall, the plaintiff in error, a man 75 years old, in good health and physical condition for his age, was in February, 1914, going north on the west sidewalk of 45th street in the City of Rock Island attempting to cross the four east and west tracks of the defendant railway. A through freight train was coming from the west on the south track and a switch engine was backing from the east on the third track. It was a cold, windy day. He wore an overcoat with a collar turned up and a cap drawn down over his. ears. He saw the through freight train approaching and crossed the south track a safe distance ahead of that engine. There was no obstacle to prevent his seeing the switch engine approaching from the east, and no reason why he did not see it except that his mind was directed to and engrossed by the approaching freight train, and there was smoke and steam that perhaps somewhat obstructed his view. When he reached the third track he was struck by the switch engine and very seriously injured. This action was brought to recover for that injury. At the close of the evidence the trial court refused defendant’s motion for a directed verdict. The jury found for the defendant and judgment' was entered on that finding, from which this writ of error is prosecuted. Plaintiff’s main contention is that there was error in admitting improper evidence and giving improper instructions for the defendant. Cross error is assigned that the court erred in refusing the defendant’s motion for a directed verdict, and it is insisted that the evidence fails to show due care by the plaintiff or negligence of the defendant, and therefore the judgment should be affirmed even if error is found in the record.

The declaration filed was of 5 counts to which the general issue was pleaded. The first count charged negligence in the operation of the through freight train, which the court, on the defendant’s motion, withdrew from the attention of the jury on the gr.ound that there was no evidence to maintain that charge. No error is assigned on that action of the court. The second charged in general terms negligence in driving • and managing the switch engine. The third, violation of the statute in failure to ring a bell or sound a whistle on the switch engine. The fourth, violation of an ordinance of the City of R-ock Island limiting the speed to 6 miles an hour. The fifth averred the existence of gates at the crossing and charged that they were not lowered a sufficient length of time before the locomotive arrived to serve as a warning. Each count contained an allegation of plaintiff’s due care, and other appropriate averments.

The facts so far stated are uncontroverted except there is conflict in the evidence whether the plaintiff crossed before or behind the freight train, and if before, how far. He says he passed before that engine, and appellant in its argument assumes that as the fact. There is some evidence to sustain the charge of negligence in each of the 4 counts, enough we think to require a weighing of the evidence to reach a conclusion as to any one of them whether the negligence there charged was proven. The question of plaintiff’s care depends upon the credit given conflicting testimony and conclusions to be drawn from facts so found. Plaintiff testified that he did not look to the east because he was watching the freight train from the west, and thaf the gates were not lowered when he went upon the crossing. Some of the other witnesses say that he ducked under the gates and ran across the tracks. The evidence is conflicting whether the switch engine was approaching at a rate of more or less than 6 miles. an hour, and what, if any, signal it was giving of its approach. Thé speed at which it was backing over the crossing might be partly estimated by the distance the plaintiff was thrown when he was struck. There is a sharp conflict of evidence on that question. Defendant’s counsel say “the preponderance of the evidence on the question of negligence (of plaintiff) is against the plaintiff.” The trial court was not re- • quired or permitted to direct a verdict for that reason. The Illinois authorities are collected in Libby, McNeill & Libby v. Cook, 222 Ill. 206, and the court says: “When a motion for a peremptory instruction is made by the defendant, if the court is of the opinion that in case a verdict is returned for the plaintiff it must be set aside for want of any evidence in the record to sustain it, a verdict should be directed. If the court is of the opinion that there is evidence in the record, which, standing alone, is sufficient to sustain such a verdict, but that such a verdict, if returned, must be set aside because against the manifest weight of all the evidence, then the motion should be denied. (Citing authorities.) To hold otherwise is to deny to plaintiff the right of trial by jury.”

The Supreme Court has since repeatedly cited and approved that case. In Devine v. Delano, 272 Ill. 166, 179, the court quoted with approval from McGregor v. Reid, Murdoch & Co., 178 Ill. 464: “All that the evidence tends to prove and all just inferences to be drawn from it in appellant’s favor must be conceded to him. * * * Under the rule the evidence most favorable to appellant must be taken as true. * * # The credibility of the witnesses, the weight of the testimony, the drawing of the inferences of fact from facts proved, were all questions of fact fbr the jury to pass upon and not for the court to decide.” And said on the authority of the Go oh case, supra: “If there is in the record any evidence from which, if it stood alone, the jury could, ‘without acting unreasonably in the eye of the. law,’ find that all the material averments of the declaration have been proven, then the cause should be submitted to the jury.”

It is said in Bailey v. Robison, 233 Ill. 614, 616: “It is not enough, to justify the granting of such motion, that the court may be of the opinion that upon weighing the evidence a verdict against the party making the motion would have to be set aside.” (Citing authorities.) And in City of Chicago v. Jarvis, 226 Ill. 614, 616, where it was assigned as error that the trial court refused to direct a verdict of not guilty that the assignment “presents the question whether .there was evidence from which, if it stood alone, the jury could reasonably have found that the material averments of the declaration had been proved.”

It follows that the controverted evidence of negligence of the defendant and care of the plaintiff, and inferences to be drawn from facts fairly found by the jury bearing on those questions, were for their consideration (Johnson v. City of St. Charles, 200 Ill. App. 184, and authorities there cited), and that the trial court did not err m refusing to direct a verdict of not guilty, even though it may be true that he should not have permitted a verdict of guilty to stand. We are charged in the final disposition of a case with a broader duty in weighing evidence than that imposed upon trial courts. Cases may arise of erroneous records in which it is so clear that we would be compelled to reverse a judgment with a finding of facts if it was contrary to the one appealed from that we ought to affirm the judgment, but, if so, that practice is an exception to the general rule of law and procedure which only calls'on this court to consider whether a verdict is so manifestly against the weight of the evidence that no judgment can be maintained on it after the verdict is obtained on a record free from material, substantial error prejudicing the defeated party.

The engineer, fireman and brakeman of the freight train were called as witnesses for the defendant. Bach of them saw and testified to several but not all of the occurrences. They were asked what was said between them at the time and permitted, over plaintiff’s objection, to answer that question. The objection should have been sustained. They occupied the position of disinterested men witnessing a transaction. Bemarks of such bystanders might be very prejudicial to one party or the other. It happened here that what they said was of little importance except to dramatize the situation and emphasize the defendant’s theory that the plaintiff was acting recklessly. We think the admission of the testimony prejudicial error.

When the declaration was filed, five acts of negligence were alleged in five counts as each causing the injury complained of. We suppose that is the general practice in the absence of a statute controlling the matter. (31 Cyc. 119.) The first count failed of proof and was withdrawn, leaving the charges in the second, third, fourth and fifth counts for the jury’s consideration. They were told in defendant’s sixth instruction that there could be no recovery under the second count charging careless and improper management of the switch engine, if proven, unless that negligence was the proximate and immediate cause of the injury. In its fourth, that there could be no recovery under .the third count, if proven, unless the ■ nonringing of the bell or the nonblowing of the whistle was the immediate and proximate cause of the injury. In its third, that before they could find for the plaintiff under the fourth count charging violation of the ordinance, excessive speed must be proven, as charged, and they must further find that the accident was the direct and proximate result of excessive speed, and would not have occurred if the switch engine had been running at a rate not exceeding 6 miles per hour. In its seventh, that there could be no recovery under that count unless such excessive speed was proven and was the immediate and proximate cause of the injury. In its thirteenth, that the verdict must be not guilty under that count unless they found from the evidence that the accident was the direct and proximate result of the excessive speed, as charged, and would not have occurred but for such excessive speed. In its ninth, that it must appear that the defendant was guilty of the negligence charged in some one count of plaintiff’s declaration, which was the direct, immediate and proximate cause of his injury; and unless it does so appear from the preponderance of all the evidence their verdict must be for the defendant company. These instructions directing the jury’s attention to proof required to connect the injury with the negligence charged cover the whole declaration, and amount to a direction to find the defendant not guilty if the jury are unable to say any one charge of negligence was the direct and immediate cause of the injury. They were told, in substance, if they believed each of the four charges proven, and that the injury was caused by those four acts of negligence, or some two or three of them, but were unable to find from the evidence that any one of them was the immediate cause, or to say that the accident would not have occurred if the defendant had not been guilty of some particular one of the charges, the verdict must be not guilty. The court erred in so instructing the jury. The fourth count charged violation of a municipal speed ordinance. We presume the general rule is, as contended by appellant’s counsel, that the violation of statutory regulations in operating a train is to he held prima facie negligence, but there must he further proof that the negligence caused the injury complained of. This court applied that principle in passing upon a charge of negligence in operating an automobile in violation of the Motor Vehicle Law in Latham v. Cleveland, C., C. & St. L. Ry. Co., 179 Ill. App. 324. It is clear in Chicago & R. I. R. Co. v. McKean, 40 Ill. 218, under a statute making the offending party liable “for all damages which shall be sustained by any person by reason of such neglect,” that the judgment for the plaintiff must be sustained by proof that the act in violation of the statute resulted in the plaintiff sustaining damages, and the court so held. But the statute under which the fourth count was drawn, section 24 of our Railroad Act (J. & A. j[ 8836), provides that in case of such violation of municipal speed ordinances: “Such corporation shall be liable to the person' aggrieved for all damages done to the person or property by such train, locomotive engine or car; and the same shall be presumed to have been done by the negligence of said corporation, or their agents.” The statute creates a prima facie liability. In Chicago & E. I. R. Co. v. Crose, 113 Ill. App. 547, the court said in passing on this statute that the presumption that the negligence in violating the statute caused the injury is not conclusive “and before recovery can be had on that account it must appear that the speed of the train was the proximate cause of the injury.” But on appeal of the case the Supreme Court said in 214 Ill. 602, on page 606: “It is undisputed that the train which caused the injury in this case was- running at a greater rate of speed than ten miles per hour, in violation of the village ordinance, and this being so, a prima facie case of negligence was established against the appellant (Illi nois Cent. R. Co. v. Ashline, 171 Ill. 313), and the injury must be presumed to have been inflicted by the negligence of the appellant company or its agents operating such train, and in such case it would be liable for all damages occasioned thereby. Such presumption' may be rebutted, but the question whether the appellant’s evidence was sufficient, under all the circumstances, to overcome the prima facie proof of negligence was a question for the jury.” The court erred in the three instructions directed to the fourth count of the declaration informing the jury, in substance, that the plaintiff must prove the connection between the negligence and the injury instead of requiring the defendant to rebut the prima facie case made by proof of the violation of the ordinance. When a prima facie case is made- the burden shifts to the other party. (Cleveland, C., C. & St. L. Ry. Co. v. Hornsby, 202 Ill. 140.)

We know of no authority for the statement that the negligence must be the sole or immediate cause of the injury. It is said in American Exp. Co. v. Risley, 179 Ill. 295, 298, quoting from Sherman & Redfield on Negligence (3rd Ed.), sec. 10: “Negligence may, however, be the proximate cause of the injury of which it is not the sole or immediate cause.” The court also quoted from Pullman Palace Car Co. v. Laack, 143 Ill. 242, page 261: “It is well settled that where the injury is the result of the negligence of the defendant and that of a third person; or of the defendant, and an inevitable accident; or an inanimate thing has contributed with the negligence of the defendant, to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury.” See also Armour v. Golkowska, 202 Ill. 144. In Illinois Cent. R. Co. v. Siler, 229 Ill 390, 397, the court said,-citing authorities: “The law is well settled in this State that a defendant is liable' for an injury caused to one using due care for his personal safety by the defendant’s negligence concurring with an accident without which the injury would not have occurred.” Concurring acts of the defendant should not be held a better defense than such acts of a stranger. The instructions were misleading, calculated to impress the jury that they must consider each of the four charges of negligence separated from the other one, two or three that they might find proven, when, as a matter of common sense as well as of law, the whole transaction was to be considered together, and if the jury found the injury resulted from two or more acts of negligence charged in the declaration they were not precluded from finding for the plaintiff because they could not tell which of the acts was the immediate or direct cause. Defendant says the jury might have" considered all the charges under the allegation of general negligence in the second count. This may be true, but the jury would not so understand the instructions. Some other objectionable features of the instructions may be justified by applying technical rules that the jury would not understand. An instruction technically correct which a layman would probably misunderstand should not be given. (Funk v. Babbitt, 156 Ill. 415.)

. Whether the plaintiff was in the exercise of due care for his own safety at and before the time he was injured was a vital question, perhaps the controlling one. It was therefore unusually important that the instructions on the degree of care required of him should be clear, fair and accurate. There has been little excuse for attempting to divide either care or negligence into three classes since the decision in Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, where it is said on page 536: “It is clear that negligence cannot be divided into slight, ordinary, and gross by definite lines, so that a jury may understand the limits of each and assign each case to its own department.” And on page 534: “If a plaintiff has exercised ordinary care and the defendant has failed to exercise due care, i. e., the care demanded under the circumstances, the rights of the parties are thereby fixed and determined and there is an end of controversy. If those conditions exist there is actionable or culpable negligence, which will justify a recovery of damages resulting therefrom, and it makes no difference in the liability or the damages by what name the negligence is designated. ’ ’ It may well be doubted whether, after advising the jury that the questions of negligence and care are to be determined by comparing the conduct of the party with that of reasonably prudent men under like conditions and circumstances, any further effort to advise them, as matter of law on that issue, is likely to aid them in reaching a proper conclusion; still, it is not error to make such attempts, and there is great temptation to counsel to in that way argue the question and impress the jury with their theory of the case.

Plaintiff’s due care could be established by a preponderance of the evidence, and under late holdings a slight preponderance would suffice. Defendant’s ninth instruction informed the jury that to entitle the plaintiff to a verdict it must appear from a preponderance of the evidence that in attempting to cross defendant’s railway track he was using due and ordinary care for his own safety. Its tenth, that if it appears from a preponderance of the evidence that the want of due or ordinary care on the part of the plaintiff at the time he approached and was crossing the tracks, if such want of care is shown by a preponderance of the evidence, was the cause in whole or in part of his injuries, then the verdict must be not guilty. By its twelfth, that if the jury believe from the evidence that ordinary care required plaintiff to look for the purpose of ascertaining whether the switch engine was approaching and not to advance upon the track without so looking, and that he was struck and injured because of failure to look, then the verdict should be not guilty. By its fourteenth, that if he did not prove by the greater weight of the evidence that he was free from negligence which contributed to the collision, he could not recover. And the fifteenth was a substantial repetition of the twelfth directing the jury’s attention specially to the question whether he should have looked and listened before going upon the track. We think these instructions misleading and calculated to draw the jury’s attention from the simple question whether the plaintiff, at that time and place, was conducting himself as would an ordinarily prudent person under the same or similar circumstances, and particularly mischievous in twice directing the jury’s attention to the admitted fact that the plaintiff did not look east before he went upon the track. It is said in Chicago, W. & V. Coal Co. v. Moran, 210 Ill. 9, 14: “It is not a proper practice to give instructions creating the impression that particular evidence or a particular fact is of prime importance in the view of the court, and laying special stress upon it.” See also, Eckels v. Muttschall, 230 Ill. 462, and Fisher v. City of Geneseo, 154 Ill. App. 288.

Defendant’s instructions were all written on.paper bearing its attorney’s card in watermark. The plaintiff vigorously urges that as error, charging that they were written on paper bearing the business card of defendant’s attorneys that tried the case, thereby ad- ■ vising, the jury that the court agreed with the defendant in its contentions. Defendant answers that it was an inadvertence which should be excused on the ground that the mark would probably not be noticed by the jury if they read' the instruction, which is probably true. And while it should not have occurred, still that cannot be presumed to have much influence on the verdict.

Defendant attempts to avoid some of the errors by stating rules of the trial court which are not in the record and therefore cannot be considered.

A brother-in-law of one of the firm of defendant’s attorneys (not the one that tried the case) was accepted on the jury without plaintiff’s knowledge of that relation. Affidavits are filed here tending to show that the juror evaded questions put to him on his voir dire that ought to have developed the fact, and defendant’s attorneys differ from the plaintiff’s counsel as to what did occur, but admit that the brother-in-law sat on the jury. We do not regard this reversible error, but are of the opinion that plaintiff’s attorneys should have been advised by counsel of the relation.

There was material error in defendant’s tenth given instruction occasioned by the use of the word “as” instead of “is.” Defendant claims the proper word was used in the instruction read to the jury, and that .the error arises from a mistake in copying the instruction into the record, and has filed an additional record corrected in that respect. Plaintiff moved to strike that record from the files, and we took the motion with the case. We have not considered or discussed that error in deciding the case. In our opinion the result does not depend upon that question, but to complete our record we deny that motion of the plaintiff.

We conclude that the record shows errors so prejudicial to the plaintiff that he is entitled to another trial of the issues involved; therefore the judgment is reversed and the cause remanded.

Reversed and remanded;


text:
    Alma Schlatter, Appellee, v. Albert Triebel, Administrator, Appellant.
    Gen. No. 6,439.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Akpeax amd ebbob, § 1238

      —when party may not complain of error as to capacity in which sued: Where appellant was equally responsible with appellee in assuming, in the trial of the case that he was sued therein as administrator instead of as an individual, held that he is not in the position to complain on appeal of the error, and that the jury were misled to his prejudice thereby.
    2. Pleading, § 32*—what .may 6e treated as surplusage. Where action was brought against two defendants upon a declaration containing several counts, some of which charged a joint liability and one of which charged an individual liability of one defendant and also a joint promise of the two to pay the debt, and at the close of plaintiff’s evidence the action was dismissed as to the one not so charged with individual liability and continued to judgment against the other so charged, and there was no evidence showing or tending to show a joint liability, held, that the charge of a joint promise in the count charging such individual liability might be rejected as surplusage and recovery be had under such count on such liability.

      Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.
    Rehearing denied November 22, 1917.
    Statement of the Case.
    Action by Alma Schlatter, plaintiff, against Albert Triebel, administrator of the estate of Henry Gr. Triehel, deceased, defendant, to recover $2,200 as part consideration for the purchase by defendant of plaintiff’s father of the latter’s laundry assets and business. From a judgment for plaintiff for $2,200, defendant appeals.
    Leaton McC. Boggess and Weil & Bartley, for appellant.
    Scholes & Pratt and A. M. Otman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

3. Appeal and ebrob, § 1458 —when fact that there is no proof of hill of particulars is immaterial. Where a bill of particulars showing joint liability was filed with a declaration, some counts of which charged joint liability and one count of which charged individual liability of one defendant, under which count no bill of particulars was required, and upon which count only, issue was joined, trial had and judgment entered, the fact that there was no proof of such bill of particulars was not ground for reversal.

4. Instructions, § 114*—when instruction is applicable to issue of consideration for promise. An instruction in effect that if the jury believed from the evidence that defendant purchased a certain business from plaintiff’s father who owed her a certain amount of money and thereupon promised and agreed to pay said amount they should find the issues joined for plaintiff, was not erroneous as ignoring the question of consideration under the issue tried, as, if defendant made the promise, he made it as part of the transaction in which he acquired the business, and that furnished the consideration.

5. Appeal and error, § 1535*—when instruction on preponderance of evidence is not reversibly erroneous. An instruction as to preponderance of evidence, stating various elements to be considered by the jury in determining same without including that of the number of witnesses, held not reversibly erroneous where it tended rather to prejudice the party offering same, who had two witnesses to the opposite party’s one, on a material issue.

6. Appeal and error, § 1410*—when judgment is not against weight of evidence. A judgment was not against the weight of the evidence where the situation particularly required a view of the witnesses and hearing their spoken words to aid in a proper conclusion in considering certain letters also introduced in evidence.


author: Mr. Presiding Justice Carnes Per Curiam

text:
    Ruby M. Rich, Appellee, v. Hartford Accident & Indemnity Company, Appellant.
    Gen. No. 6,440.
    1. Insurance, § 601

      —what constitutes prima .facie case as to accidental injury. In an action to recover on an accident insur-' anee policy, held that the presumption of law that all men are animated by the instincts of self-preservation, and the natural desire to avoid personal injury was sufficient to make out a prima facie case that a cut on the finger of decedent which became infected with streptococcus germs so as to result in his death was accidental, where there was no ground for suspicion that the wound was intentionally inflicted.
    2. Insurance, § 686*-—when directed verdict for defendant in action on accident insurance policy is improper.. Evidence held sufficient to forbid a directed verdict for defendant, in an action to recover on' an accident insurance policy, where instructions were given at the instance of both parties that defendant was only liable if the insured inoculated himself with streptococcus germs in a cut on his finger, resulting in his death, at the same time and as a part of the same cut, and that if the germs entered his system through the cut at a later time there was no liability.
    3. Insurance, § 421*—immateriality of when ■ streptococcus germs enter wound causing death. As a matter of law it is immaterial when streptococcus germs entered a wound, whether at the time of the wound or later, resulting in blood poisoning which caused the person’s death, in an action to recover on his accident insurance policy.
    4. Insurance, § 693*—when instruction on waiver of notices required by accident is erroneous. An instruction, given at plaintiff’s instance, that if, after the death of the insured under an accident insurance polidy, the defendant insurer by its agent denied liability on the policy, then such denial was a waiver of all notices required by the policy, was erroneous, where the policy required that immediate notice of accidental death must be given.
    5. Insurance, § 683*—when question of giving notice of death within reasonable time should be submitted to jury. Where an accident insurance policy required that in the event of accidental death immediate notice must be given to the insurer, and that failure to give such notice should not invalidate any claim if notice was given as soon as was reasonably possible, the question of giving notice of death within a reasonable time should be submitted to the jury.
    6. Insurance, § 666

      —when evidence is insufficient to show that notice of accidental death was not given as soon as reasonably possible. Where plaintiff 2 days after the death of the insured under an accident insurance policy placed her claim as beneficiary in the hands of her attorney, who 5 days thereafter advised the insurer of the death and asked for blanks for proof of loss, held that a finding against the plaintiff on the question of notice, under a provision of the policy requiring that in the event of accidental death of the insured immediate notice must be given to the insurer and that failure to give such notice should not invalidate any claim if notice should be given as soon as was reasonably possible, would be so manifestly against the facts that it could not be permitted to stand.
    7. Insurance, § 651*—when whole of coroner’s verdict as to cause of death is admissible in action on accident policy. The whole verdict of a coroner’s jury finding that streptococcus infection “received in a manner to this jury unknown” was the cause of death of the insured under an accident insurance policy, was competent evidence, including the part quoted, in an action to recover on the policy.
    8. Appeal and error, § 1505*—when hypothetical questions are not reversibly erroneous. It cannot be harmful error to recite in hypothetical questions uncontroverted facts.
    9. Evidence, § 399*—what is not proper expert testimony. In an action to recover on an accident policy for the death of insured, held that questions and answers as to how streptococcus germs, an infection of which produced blood poisoning which caused the person’s death, were communicated to him, were violative of the rules of evidence governing expert testimony, if there was any reasonable doubt that death was caused by a disease germ entering the person’s system through a certain cut on his finger to which the witnesses referred as the means of such communication.
    10. Evidence, § 454*—when expert opinions are entitled to little weight as to existence of wound. Evidence that there was a wound on the finger of decedent, from an infection of which it was claimed he died, held so conclusive that the expert opinions of witnesses who examined him at an inquest or autopsy are, of little weight, in an action to recover on his accident insurance policy.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at th% April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.
    Rehearing denied October 22, 1917.

      Page, Hunter & Page, for appellant.
    Keithley & Keithley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is an appeal by the defendant company from a judgment on a verdict for $7,776 in favor of the appellee, Buby M. Bich, the beneficiary named in an accident insurance policy issued to her husband, Charles A. Bich, indemnifying “against loss caused directly and exclusively by bodily injury sustained solely and independently of all other causes through accid’ental means”; and providing that “blood poisoning resulting directly and exclusively from such injury shall be deemed a bodily injury.”

It appears from admittedly competent evidence that April 21, 1916, the insured was a man 35 years old in good health. His wife, the appellee, had then been sick 10 days with erysipelas of the head and face. He took care of her—washed her eyes and face. Qn that day there was a slight wound on the fore finger of his right hand, which bled freely. He treated it with home remedies and did not regard it of much importance. Pour days later he was suffering with a temperature and pain and swelling of that arm, and was ordered to bed and properly treated by a physician from that time until his death from streptococcic toxemia, or blood poisoning, May 4, 1916, 13 days after the injury. • The fatal germ entered his system through the cut on his finger either at the time of the scratch or afterwards. The evidence leaves the time of the infection uncertain, and from the nature of the case we presume no evidence could be obtained showing clearly whether the germ entered at the time of the cutting or some minutes, hours, or perhaps 2 or 3 days thereafter. Appellee testified on the trial that her husband cut his finger opening a bottle of pop, but on her cross-examination • it appeared that her eyes were swollen shut at that time, and we agree with appellant that her statement as to how the finger was injured should be disregarded. Appellant says that leaves no evidence of an accidental injury and therefore the case fails. The presumption of law that all men are animated by the instincts of self-preservation and the natural desire to avoid personal injury is sufficient' to make a prima facie case that the cut was accidental. (Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496; Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205.) There is no ground for suspicion that the wound was intentionally inflicted. We have, therefore, a case on the merits of a slight accidental wound resulting in death from the introduction of a noxious germ at the time, or at some unknown and unascertainable time within 2 or 3 days thereafter. The court, at the instance of each party, instructed the jury that the defendant was only liable if the insured inoculated himself with the virus at the same time and as a part of the same cut; that.if the germs entered his system through said cut at a later time there was no liability; therefore the verdiet of the jury involves a finding that the germ entered at the time of the cutting. Appellant argues that there is no evidence that it entered at that time and for that reason the court erred in refusing its motion for a directed verdict. We think there was evidence from which the jury might fairly infer that the germ was introduced by the instrument which made the wound, perhaps from the presence of the germ on the finger or on the instrument, sufficient to forbid a directed verdict; but if, as matter of law, appellee’s right of recovery rests on the finding of that fact, the question is so doubtful that errors in ruling on evidence and instructions might be held ground for reversal which should not be so considered if it is immaterial when the germ entered.

Appellant relies on Central Accident Ins. Co. v. Rembe, 220 Ill. 151, and particularly on the quotation on page 159 from Niblack: “If the inoculation occurred at the time the wound was made and was a part of the accident, the accident was the sole and proximate cause of the death, though blood poisoning ensued,” to sustain its contention that there was no liability if the inoculation did not then occur. The Rembe case when it reached the Supreme Court was not treated as presenting that question. It is said on page 159 of the opinion that there was no evidence that the inoculation was caused after the infliction of the wound; and on page 160, in substance, that the affirmance of the judgment by the Appellate Court had disposed of that contention. But in the Appellate Court it was presented and discussed in the -opinion by Mr. Justice Puterbaugh (122 Ill. App. 507). It is there said the evidence tended to prove that the infection entered some time after the wound was made, and “be that as it may, if the prime cause of the death can be said to have been septicemia, and not the wound itself, there would be some force in appellant’s contention that there can be no recovery under the first count of the declaration. It is manifest, however, that the insured would not have contracted septicemia had he not received the wound. Otherwise the poisonous germs with which he came in contact would have been harmless,” citing Martin v. Manufacturers’ Accident Indemnity Co., 151 N. Y. 94, 45 N. E. 379; Western Commercial Travelers’ Ass’n v. Smith, 40 L. R. A. 653, 85 Fed. 401; Omberg v. United States Mut. Acc. Ass’n, 101 Ky. 303, 40 S. W. 909; Freeman v. Mercantile Mut. Acc. Ass’n, 156 Mass. 351, 17 L. R. A. 753; and Delaney v. Modern Accident Club, 121 Iowa 528, 63 L. R. A. 605. The Supreme Court in its opinion also cites and quotes with approval from Delaney v. Modern Accident Club. In that ease counsel, as in the present case, conceded that if the bacilli were introduced by the instrument at the time the cut was received the defendant would be liable, but contended that “the bacilli causing the diseased condition of the hand, and the subsequent death, may have been and probably were introduced into the blood of the hand through the cut, but after it was received,” and pointed out testimony sustaining that conclusion. The court said: “It seems to us, however, that it is wholly immaterial when or how the specific bacilli which caused the disease known as ‘blood poisoning, ’ which resulted in the death of Delaney, were introduced into the wound, whether at the time it was inflicted or subsequently. Blood poisoning is a disease, -just as many other pathological conditions of the human system, resulting from the introduction therein of other specific bacilli, are diseases. It occurs to us that it is, indeed, wholly immaterial whether the pathological condition which results in death is due to bacilli or not. The simple question is whether the death of Delaney resulted, through natural causes, without the interp&sition of a new and independent cause, from the cut on his finger. Disease brought about as the result of a wound, even though not the necessary or probable result, yet if it is the natural result of the wound, and not of an independent cause, is properly attributed to the wound; and death resulting from the .disease is a death resulting from the wound, even though the wound was not, in its nature, mortal or even dangerous.”- In Ballagh v. Interstate Business Men’s Acc. Ass’n, 176 Iowa 110, L. R. A. 1917A 1050, the court was asked to overrule its decision in the Delaney case that it was immaterial when or how the specific bacilli which caused the disease were introduced into the wound, whether at the time it was inflicted or subsequently, which it refused to do after reviewing the cases cited in the Delaney opinion and subsequent eases, and said there is nothing intrinsically unjust in the doctrine and that it has the support of the weight of authority, and to hold otherwise would deny liability except where the death is the instant result of the accident, for if the injured party survives any substantial length of time, there are numerous diseases of traumatic origin, some one of which is practically certain to make its appearance, lay its hand upon the injured body and thus become the method or instrument through which the injury effects its fatal results. The court cites many authorities in support of its position, among them Cary v. Preferred Acc. Ins. Co. of New York, 127 Wis. 67, 5 L. R. A. (N. S.) 926. In that case there was a slight abrasion and blood poisoning followed, probably from the introduction of the fatal germ some time after the accident. Counsel there urged that a distinction must be recognized between an introduction or injection of poison or bacteria coincident with the injury and an invasion of bacteria after an injury. The court refused to so hold, and said: ‘ ‘ The evidence also shows that the abrasion of the skin furnished the portal of entrance through which bacterial infection entered Mr. Cary’s system and caused the septicemia which was the immediate cause of his death. It is urged that unless the evidence establishes the fact that the bacterial infection occurred at the time of the bodily injury by the fall, it cannot be found that his death was proximately and solely caused by the accident. As above stated, responsible causation, as applied in the law, is not dependent on time, distance or a mere succession of events. If an injury is inflicted by an event, and it is found that ithas set in motion all the succeeding agencies sharing in the- result, then such event, as the efficient producing cause of the injury, is held to be the proximate cause of the injury. * * * 1STo such bacterial infection would in all probability have occurred had there been no abrasion of the skin. * * * The bacterial infection and the resultant septicemia were in the natural course of events dependent upon and set in motion by the abrasion of the skin caused by the fall. The entry of bacteria into the system cannot be considered as an independent cause and as having intervened between the accidental fall and the death, because of the fact that it was conditioned on the existence of the abrasion of the skin and was wholly incidental to and set in motion by it, thus making it one of the events in the chain of causation.” The court in French v. Fidelity & Casualty Co. of New York, 135 Wis. 259, 17 L. R. A. (N. S.) 1011, discusses the question of liability where the poison germ enters the wound after the time of the accident, and says: “It must be apparent, however, that but for the accidental injury there would have been no cause for infection; that but for the abrasion the disease germs could not have entered and produced the fatal result. The wound produced by the accident was therefore the proximate and sole cause of death,” citing the Cary case, supra, and other Wisconsin cases; also the Delaney case, supra, and other authorities. In Western Commercial Travelers’ Ass’n v. Smith, supra, there was an accidental injury to the toe of the insured. Blood poisoning followed, causing death. ,The court held that the blood poisoning was not an intervening and independent cause that would prevent liability, and said: “If the death was caused by a disease which was not the result of any bodily infirmity or disease in existence at the time of the accident, but which was itself caused by the external, violent and accidental means which produced the bodily injury, the association was equally liable to pay the indemnity. In such a case, the disease is an effect of the accident, the incidental means produced and used by the original moving cause to bring about its fatal effect, a mere link in the chain of causation between the accident and the death, and the death is attributable, not to the disease, but to the causa causans, to the accident alone.” Authorities are there cited and discussed, and the reasoning is in line with the Delaney case. Some cases discuss the accident as causing the death if blood poisoning followed without noticing the question whether the germ entered at the time or after. In some cases as in Central Acc. Ins. Co. v. Rembe, supra, the evidence made it highly probable that the fatal germ was introduced with the instrument causing the wound. In others, as in the present case, it was incapable of proof when it entered. We do not know that our Supreme Court has discussed the law applicable to a case where the germ might be presumed or found to have entered some appreciable time after the accident occurred. There was at one time considerable question whether there was liability if the germ entered at the same time because both accident and disease contributed to the death, and it was argued that death did not result from the accident alone. The law on that subject we think is as announced in Western Commercial Travelers’ Ass’n v. Smith, supra, and by this court in Crandall v. Continental Casualty Co., 179 Ill. App. 330, that when an accident causes a diseased condition, which, together with the accident, results in the injury or death complained of, the accident alone is to be considered the cause of the injury or death. Some cases cited in this connection are discussing the principles underlying that proposition of law; and where the germ entered the system concurrent with the accident that fact is emphasized in the opinion without undertaking to say what the rule would be if the germ entered afterwards.

In the present case it is not denied that if the accident caused the diseased condition it is to be considered the cause of the death. The question is whether it did cause the diseased condition, and that is the question discussed and decided in Delaney v. Modern Accident Club, supra, and other cases above referred to holding the same rule, many of which cite and follow the Delaney case. An extended note and discussion of authorities is found in L. R. A. 1917A 1056, following the report of Ballagh v. Interstate Business Men’s Acc. Ass’n, supra. There is much in the cases there noted, most of them citing the Delaney case, supporting the conclusion in that case that it matters not when the germs got into the wound, nor where they came from, if it be a fact that they did actually enter through the wound as a portal, then the wound is the proximate cause and blood poisoning an intervening cause.

The only cases cited by appellant on this point are Martin v. Equitable Acc. Ass’n, 61 Hun 467, 16 N. Y. Supp. 279, and Martin v. Manufacturers’ Accident Indemnity Co., 151 N. Y. 94, 45 N. E. 377. Both cases arise from the same accident, the insure'd carrying policies in different companies. The facts as stated by the Court of Appeals were that the insured' accidentally punched out a piece of the skin and flesh from the inside of his finger. Ten or twelve hours afterwards the finger was swollen and inflamed. Other symptoms followed, proving it to he a violent and unusual case of blood poisoning, of which he died 13 days after the injury. He had at the time of the accident a wound on the thumb which had not healed, and one theory of the defense was that the fatal germ had entered the wound on the finger from that source some time after the accidental injury, and therefore the death was not the result alone of the injury to the finger. The question whether the poisoning was coincident with the wound was litigated on the trial, and the court instructed the jury if it was, the defendant was liable. The verdict and judgment were for the plaintiff, and the reviewing court held not that the instruction was correct, but that it did not prejudice the defendant, and that the jury, having found the fact in favor of the plaintiff, the finding could not be disturbed.

In the other Martin case, supra, the Supreme Court said if the inoculation occurred at the time the wound was made, the death might be attributed to the accident as the sole and proximate cause, although blood poisoning ensued. In each of these cases the court is discussing the law applicable when the injury and poisoning occurred at the same time. It may be inferred that the court considered it material and necessary to plaintiff’s case that the poisoning should be coincident with the wound; but in neither case was that question clearly before the court and considered, discussed and decided as it was in the Delaney case and other cases hereinbefore mentioned in which a contrary conclusion was reached.

To analyze and discuss all of the numerous cases above cited and referred to in those cited cases would unduly extend this opinion. We have found no case in which a reviewing court held that a jury should be instructed, as matter of law, that the infection must be coincident with the wound to warrant recovery. There are cases where the jury have been so instructed and have found for the plaintiff and the reviewing court has refused to disturb their verdict where the evidence, as in the present case, made it clear that it was a mere matter of conjecture whether the germ entered the wound at the time of its infliction or soon afterwards, and some expressions indicating that even if the germ entered afterwards it was still a question of fact for the jury whether the accidental wound in permitting the introduction of the germ into the blood was the sole cause of death. If the question in the present case should be treated as one of fact-’ and submitted to a jury, the issue would be presented under instructions much less favorable to the defendant than in this record. Their verdict here that the germ entered coincident with the accident affirmatively answers such issue; and while it is very doubtful whether the germ did enter at the time of the accident, and may reasonably be presumed that another jury might not so find, we see no ground for a presumption that a jury should or would find that the wound was not the portal through which the fatal germ entered either at or after the time of the accident. If it is to be treated as a question of law, we think the decided weight of authority is with the Delaney case that it is immaterial when the germ entered the wound. In either view, whether a question of law or fact, we regard the verdict abundantly justified by uncontradicted and competent evidence. Cases have arisen where it is 'extremely doubtful whether the accident caused the disease; as for instance, typhoid fever, which was claimed to have been fatal because the accident had resulted in reducing the vitality of the patient, but it might have been contracted had the patient been in perfect health. In cases of this class there is much room for controversy both on the law and the fact, but in the present case the -poisonous germ could only enter through an abrasion of the skin. There is, therefore, no room for suggestion that the germ might have entered the blood had the accident not occurred.

The policy provided that “in event of accidental death immediate nótice thereof must be given to the company,” and that it might be given by the beneficiary to the company at Hartford, Connecticut, or to any authorized agent, and that failure to give such notice should not invalidate any claim if notice was given as soon as was reasonably possible. Two days after Mr. Rich’s death, appellee placed her claim in the hands of her attorney, and 5 days thereafter the attorney wrote a letter to appellant advising it of the death and asking for blanks to make proof of loss. One of. appellant’s representatives came to Peoria 9 days after the death, and asked for an autopsy on the body of the deceased, which was granted. After-wards, 16 days after the death, appellant’s ■ representative advised appellee’s attorney that he considered there was no liability on the policy. The court, at the instance of the plaintiff, instructed the jury if after the death of said Eich the defendant, by its agent, denied liability on the policy, then such denial was a waiver of the provision of the policy requiring proofs of death, and also waived all other notices required by said policy. Appellant claims that while the provision for notice only required notice within a reasonable time after the loss, yet it was a question for the jury whether, under the above facts, notice was given in a reasonable time, and that the court by that instruction withdrew that question from the jury and that the denial of liability, as above recited, was not a waiver of notice or of proof of loss if the requirement of notice within a reasonable time had not been complied with. Assuming that to be the law, can it be fairly presumed that the jury would or should have defeated the plaintiff on the ground of unreasonable delay in giving notice of death? . This court in Sun Accident Ass’n v. Olson, 59 Ill. App. 217, in an opinion by Mr. Justice Cartwright, had under consideration a case where death occurred November 13th, and it was claimed notice was not given until December 1st (18 days). The contract of insurance there provided for immediate notice, and the court held the notice sufficient under the circumstances of that case. We are inclined to the opinion that the court should have submitted that question to the jury, but we also assume that the jury, or any other jury, impaneled to try that issue, would find it for the plaintiff, and that a contrary finding would be so manifestly against the facts that it could not be permitted to stand.

There was a coroner’s inquest and the jury returned a verdict finding streptococcus infection “received in a manner to this jury unknown” the cause of death. The defendant offered the verdict in evidence, and the court refused to admit that part of it above inclosed in quotation marks. This is argued as error. We do not see why the whole verdict was not competent evidence, but we cannot see that it would have been of any material benefit to appellant to have the jury informed that the coroner’s jury did not know in what manner the injury was inflicted.

Appellant urges that the court erred in permitting hypothetical questions that stated facts and called for opinions of the witnesses as to what did cause instead of what might have caused death. The questions were incorrect in form and all, or some of them, recited as facts that a woman was afflicted with erysipelas and was waited upon by a. man, and that during the care and attention given the woman the man suffered a cut upon his right index finger; that 5 days after that he suffered a chill and prostration, and was confined to his bed with a swelling in the arm and variable temperature, and died 13 days after the wound of streptococcic toxemia. It cannot be harmful error to recite uncontroverted facts. Appellant says it was harmful to assume that the man sustained a cut on his finger during the time he was treating his wife, the erysipelas patient. That, and the other recited facts we regard established beyond dispute. We do not see hów the error could have harmed appellant. Appellee’s expert witnesses were also asked how, in their judgment, those germs were communicated to Mr. Rich, through what medium, and the witnesses answered through an abrasion of the skin. Witnesses were asked how the poison of which Mr. Rich died was communicated to 'him, and answered that having waited upon his wife, who was suffering from an infectious disease, the man, having suffered from an injury to the sldn whereby it was possible for a germ to obtain access to bis general circulation, that is the most plausible theory. Other witnesses answered that they thought the germs entered the wound through the index finger; that the most probable source of infection was the injury received to the finger, and that they considered the erysipelas from the patient the cause of death, and that the finger was the source of infection. These questions and answers violated the rules of evidence governing expert testimony. If 'there was any reasonable doubt that the insured’s death was caused by a disease germ entering his system through the cut on his finger the contention that the judgment should be reversed because of that error would deserve careful consideration, but the. facts are free from doubt. All a layman needed to learn from experts was that a germ from the head of an erysipelas patient entering a wound on the finger of the attendant might cause blood poisoning and death. The rest of the problem was easily solved without expert testimony.

Appellant complains of remarks of appellee’s conn-. sel in his address to the jury. The matter is not shown in the bill of exceptions but in the record proper. We do not understand counsel to seriously contend that we can consider the question so presented.

We conclude that the record does not disclose any reversible error, therefore the judgment is affirmed.

Affirmed.

Per Curiam

.on rehearing:

It is urged there was a sharp conflict of evidence on the question whether the infection entered through the wound at any time. This claim is mainly based on the testimony of experts that examined the déceased at the inquest or autopsy and testified on the assumption that there was no wound on the finger, admitting if there was one it was the probable port of entry or at least might have been. The evidence that there was a wound is so conclusive that those expert opinions are of little weight.


text:
    Katheryn M. Cameron, Appellee, v. Thomas P. Feely, Appellant.
    Gen. No. 6,448.
    (Not to be reported in full.)
    Abstract of the Decision.
    Landlord and tenant, § 226

      —when lessor is not liable to wife of lessee for personal injuries received in using basement. Where plaintiff was permitted by defendant’s janitor of the apartment building in which she occupied an apartment leased from defendant by her husband, with the use also of a certain storeroom and of laundry tubs in the basement, to use a certain water faucet in another part of the basement not embraced in such lease, which was not provided for general use of tenants, but was' used for wetting down coal, held that plaintiff’s use of the faucet was a mere permissive use and defendant would not be liable for injuries sustained by her in going to use the faucet, due to falling over a metal basket of ashes, in the absence of wilful or wanton conduct on the part of defendant.
    Appeal from the Circuit Court of Will county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed with finding of facts.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action by Katheryn M. Cameron, plaintiff, against Thomas P. Feely, defendant, to recover damages for personal injuries sustained by plaintiff falling over a basket of ashes in the furnace room of a flat building in which plaintiff’s husband rented under verbal lease from defendant an apartment occupied by her. From a judgment for plaintiff for $2,500, defendant appeals.
    O’Donnell, Donovan & Bray, for appellant.
    Snapp, Heise & Snapp, for appellee.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic a»<I ssetion number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Ellen O’Rourke, Appellee, v. City of Minonk, Appellant.
    Gen. No. 6,450.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 1098

      —when evidence sustains finding as to depression in sidewallc and locality of accident. Evidence held sufficient to warrant a finding that a depression in defendant’s sidewalk where plaintiff claimed to have been injured was from 3 to 5 inches deep and that she was injured there and not several feet away, in an action against a city to recover damages for personal injuries.
    2. Municipal corporations, § 1111*—when instruction in action against city referring to notice of injuries is not reversibly erroneous. An instruction requiring the jury to find all controverted facts essential to a 'verdict before referring to a certain exhibit consisting of a notice given defendant city, stating plaintiff’s residence, fact of certain injuries sustained by her by reason of a defect in defendant’s sidewalk at a certain time and place, the name of the doctor attending her, and his office location and address, held not prejudicial by reason of such reference to the exhibit or by reason of also requiring plaintiff to prove the facts stated in such exhibit, in an action against a city to recover damages for such injuries.

      Appeal from the Circuit Court of Woodford county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1917.
    Rehearing denied November 22, 1917.
    Statement of the Case.
    Action by Ellen 0 ’Rourke, plaintiff, against City of Minonk, defendant, to recover damages for personal injuries sustained by-.plaintiff falling on a sidewalk in the defendant city, fracturing her hip, wrist and one rib. From a judgment for plaintiff for $4,00Q, defendant appeals.
    Ernest J. Henderson, Thomas Kennedy and McDougall & Chapman, for appellant.
    Edward F. Riely and Barnes, Magoon & Black, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. c

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

'• 3. Municipal corporations, § 1111 —when instruction on contributory negligence is not prejudicially erroneous. In an action against a city to recover for personal injuries sustained by falling on a defective sidewalk, an instruction that plaintiff was entitled to damages on proving that she was in the exercise of due care at the time of and just prior to the time she received the injuries, held not prejudicially erroneous.

4. Appeal and error, § 1096*—what are improper statements in brief and argument. Statements in brief and argument of facts not supported by the record are improper.

5. Appeal and error, § 1514*—when improper statements of counsel do not constitute prejudicial error. Improper statements by counsel to- the jury, objection to which was sustained by the court with force and decision, were not prejudicially erroneous.

6. Municipal corporations, § 1107*—when reasonably safe condition of sidewalk is question for jury. Whether a city sidewalk is in a reasonably safe condition is a question of fact to be determined by the jury unless the uncontradicted evidence is of such a character that all reasonable minds might be presumed to reach the same conclusion from its consideration.

7. Municipal corporations, § 1107*—when question for jury whether sidewalk is in reasonably safe condition. Whether a sidewalk with a trench extending its entire width and about a foot wide and from 3 to 5 inches deep and filled with water is in a reasonably safe condition so as to exempt the city from liability for injuries thereby incurred, held to be a question for the jury, in an action to recover damages for such injuries.


text:
    John Linn, Appellee, v. Lucy Moore, Appellant.
    Gen. No. 6,456.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1040

      —when duty of appellant to point out error. Where error was assigned in the admission of testimony without pointing out same and there was a statement in the brief that sufficient grounds were not laid for introduction of a certain judgment and that it was not valid, it was appellant’s duty to point out the error, the record of the judgment being without defect on its face.

      Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917. .
    Statement of the Case.
    Action in forcible entry and detainer by John Linn, plaintiff, against Lucy Moore, defendant. From a judgment for plaintiff, defendant appeals.
    The premises were sold under foreclosure against the owner and mortgagor, Eobert Krieger, others including this defendant being made parties, and were purchased by the complainant in foreclosure. On the last day of the 15 months following the sale this plaintiff obtained judgment against Krieger, sued out execution, paid redemption money to the sheriff, who levied on the premises and sold and conveyed same to plaintiff, who later made demand upon defendant for possession, and upon her refusal brought this action.
    John B. King and Leo G. Hana, for appellant.
    Dailey & Miller and McRoberts, Morgan & Zimmerman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Forcible entry and detainer, § 46 —what is effect of deed to redeeming creditor on right to bring. Where plaintiff in an action of forcible entry and detainer became owner of the premises by purchase and deed from a sheriff as a redemption creditor under his judgment obtained on the last day of the 15 months from the foreclosure sale from which he redeemed, a conveyance by the debtor on the same day to plaintiff did not prejudice plaintiff’s rights in such action under his deed from the sheriff.

3. Appeal and error, § 1488*—when admission of incompetent evidence in trial by court is harmless error. Where trial was before the court without a jury, and competent and uncontradicted evidence supported the finding and judgment, it was not material error if other evidence not technically competent was heard.


text:
    Alfred M. Swengel, Administrator, Plaintiff in Error, v. Chicago, Ottawa & Peoria Railway Company, Defendant in Error.
    Gen. No. 6,460.
    (Not to he reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action by Alfred M. Swengel, administrator of the estate of Anton Voitnar, deceased, alias Anton Bevrage, plaintiff, against Chicago, Ottawa & Peoria Railway Company, a corporation, defendant, to recover ¡damages for death of decedent. From a judgment for plaintiff for $100, plaintiff brings error.
    Robert Carr and Butters & Clark, for plaintiff in error.

      Abstract of the Decision.
    1. Death, § 50b

      —when evidence sustains findings in action by parent. In an action to recover for the wrongful death of plaintiff’s son, a passenger on defendant’s train, evidence held sufficient to warrant a finding for plaintiff %n the controverted allegations of defendant’s negligence, death of plaintiff’s decedent, and survivorship of his father as heir.
    2. New trial, § 59*—when awarded because of inadequacy of damages in action for death. A motion by plaintiff for a new trial after verdict in his favor for $100, in an action for damages for death of plaintiff's decedent, was erroneously denied, where the main question presented was the wrongful death of a boy 17 years old leaving a nonresident father surviving with such expectation of pecuniary benefit from his, son’s continued life as might reasonably be entertained by a nonresident parent under similar circumstances, plaintiff being entitled on the finding of negligence causing the death of the son and survivorship of the father to a substantial verdict.
    3. Death, § 73*—when instruction on right to consider testimony of witness before coroner’s fury is erroneous. An instruction that the testimony of a witness before a coroner’s jury might be considered, in an action to recover damages for the death of the decedent for other purposes than that of impeaching the testimony of the same witness in such action, was erroneous, where it was not claimed that the evidence was admissible for other purposes.
    Duncan & O’Conor, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.