text:
    Pittsburgh & Indiana Coal Company, Appellant, v. Harder’s Fireproof Storage & Van Company, Appellee.
    Gen. No. 15,090.
    1. Appeals and erbobs—when MU of exceptions not part of record. A bill of exceptions though signed and sealed is not part of the record unless filed with the clerk.
    2. Appeals and errors—within what time transcript from Municipal Court must he filed. The transcript upon an appeal from a judgment of the Municipal Court must be filed in the Appellate Court within forty days, after the date of the judgment unless an order has been entered by the Municipal Court within such forty days granting further time for the filing of such record.
    Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Record stricken and appeal dismissed.
    Opinion filed November 6, 1908.
    Winkler, Baker & Holder, for appellant.
    Dunn & Hayes, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Motions are made by the appellee that the hill of exceptions purporting to be a part of the record be stricken from the files; second, that the record of the Municipal Court filed in this cause be stricken from the files; and third, that the judgment of the Municipal Court be affirmed.

It appears from the record that on June 6, 1908, final judgment was entered in the Municipal Court against appellant, Pittsburgh & Indiana Coal Company, in favor of appellee, Harder’s Fireproof Storage & Van Company. On June 30, 1908, an appeal bond was approved by the trial court.. July 14, 1908, the trial court entered an order extending the time for filing a bill of exceptions “thirty days from date of statutory period, to wit, July 16, 1908”. On August 12, 1908, the court ordered that time to file bill of exceptions be extended twenty days from Aug’ust 16, 1908. September 4,1908, a bill of exceptions was presented to and signed by the trial judge; and on September 18, 1908, it was filed with the clerk of the Municipal Court. The record was filed in this court October 7, 1908.

In Hall v. Royal Neighbors, 231 Ill. 185, it is held that a bill of exceptions, though signed and sealed by the judge, does not become a part of the record unless it is filed. Under this ruling the bill of exceptions did not become a part of the record of the Municipal Court within the time fixed by the court by the order of August 12, 1908, for it was not filed with the clerk until September 18, 1908. It is possible (though the question is not before us, and we express no opinion thereon), that this defect in the record might be cured by a nunc pro tunc order directing the bill of exceptions to be filed as of September 4, 1908, but even though such an order should be procured and the bill of exceptions were to be filed as of that date, there is an insuperable objection to the jurisdiction of this; court to hear and determine this appeal, because of the fact that the record of the Municipal Court was not filed in this court within forty days after the date of the judgment as provided by section 22 of the Municipal Court Act, and no order was entered within the forty days granting further time for filing the record. Arthur v. Doyle, 141 Ill. App. 432.

The motion to affirm the judgment of the Municipal Court is denied. The motion to strike the record from the files is allowed and the appeal is dismissed.

Record stricken and appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Anna Van Cleef, Appellee, v. City of Chicago, Appellant.
    Gen. No. 13,671.
    1. Streets—when municipality liable for injury occurring upon. A person injured while attending a street fair by being pushed from the steps leading from a platform, which steps led from the entrance to a tent to the open street, is entitled to recover,from the municipality which has authorized the holding of such fair in such manner, notwithstanding the person so injured was not using the street in question for purposes of travel.
    2. Nuisance—when authorization of use of street illegal. A municipality is without power to authorize the holding of a street fair upon a public street and to do so is to authorize the creation of a public nuisance, rendering it liable to persons injured thereby while in the exercise of ordinary care, the liability of the municipality in such case attaching even where the parties holding such fair have been guilty of negligent • construction from which the injury results.
    Smith, P. X, dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge,presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed November 6, 1908.
    Rehearing denied November 20, 1908.
    John R. Caverly, for appellant; Sigmund Zeisler, of counsel.
    Darrow, Masters & Wilson, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an. appeal by the defendant, the City of Chicago, from a judgment for $15,000 recovered in an action on the case for personal injuries.

The amended declaration contains three counts. The first count avers that the city, being on July 24, 1903, a municipal corporation and in the control of its streets, did, in violation of its duty, “to so manage and control its said streets as not to injure the plaintiff”, knowingly authorize and permit a certain building to be erected at and in the intersection of Ninety-second street and Exchange avenue; that '‘ said building was erected in an unsafe and dangerous manner, particularly in that a certain stairway in and about said building was unguarded by guard-rails, so that by reason thereof plaintiff, while coming out of said building, together with a large number of other persons, and in the exercise of all due care and caution for her own safety, was pushed and crowded off of and from said stairway, and by reason thereof, fell to and upon the ground”, as a result of which fall she suffered a fracture of the right leg and other injuries and permanent disability.

The second count repeats the allegations of the first as to the stairway mentioned in that count; avers that the city council of the defendant city duly passed, June 15,1903, an order whereby permission was given to use certain enumerated streets, including those where the building in question was erected, for a “merchants’ carnival and open street fair, to be held from July 20 to July 25,1903, with all necessary authority and permission to regulate and conduct a street carnival and necessary shows, stands and attractions in the business center of South Chicago; ’ ’ that by virtue and in pursuance of this permission “a certain building was erected upon and in said streets of said city as aforesaid, which said building was for the purpose of giving entertainments and performances”; that said building was “in direct violation of” section 1882 of the city ordinances, which provides that “no person' shall erect or place any building, in whole or in part, upon any street, alley, sidewalk or other public ground within this city, under a penalty of not more than fifty dollars”; and that on the day of the accident the plaintiff was in said building and “was in the act of coming out of and from said building after a certain entertainment or performance”, when she was crowded off said stairway, which was “unprotected or guarded by any guard-rail or protection”.

The third count is substantially the same as the first count, except that it avers that the city knowingly permitted said building to be erected and to remain “for a considerable space of time” in said street intersection prior to the accident; that by reason thereof “said building became and was a nuisance, and concerning which the. city knew or should have known, and which said building was in an unsafe and unstable condition in this, to wit, that the said stairs leading to and from said building were unprotected and without a guard-rail and concerning which the city knew or should have known”.

June 15, 1903, the city council of the City of Chicago passed the following order:

“Ordered that permission be and is hereby given to use the following streets in the City of Chicago for the Merchants Carnival and open street fair to be held from July 20th to July 26th, 1903, with all necessary ■ authority and permission to regulate and conduct a street carnival and necessary shows, stands and attractions in the business center of South Chicago. Said street fair being given by the business men of the Eighth Ward; 90th street, from South Chicago avenue to the strand; 91st street, from South Chicago to the foot of Green Bay avenue; 92nd street, from South Chicago to Harbor avenue ; 93rd street, from South Chicago avenue to Harbor avenue; Muskegon avenue, from South Chicago avenue to 90th street; Waukenbaugh avenue, from 91st to 90th street; Exchange, from Lake Shore and Michigan Southern Bailroad to 90th street; Huston, from 93rd to 90th, Erie, from South Chicago to 90th street, Ontario, from South Chicago avenue to 90th; Superior, from Harbor to 90th; Buffalo, from 92nd to 90th; Mackinaw, from Harbor to 90th street; Green Bay, from Harbor to 90th street; Strand, from Harbor to 90th street; South Chicago, from 90th to Erie.”

Ninety-second street crosses Exchange avenue “between Ninetieth street and the Lake Shore and Michigan Southern Bailroad”, and the intersection of said street and avenue was therefore a portion of the streets mentioned in said order. In said streets, at their intersection during the time limited by said order three shows were conducted; an animal show, Lilliputians, and Enoch the Waterman, each in a tent set up for that purpose. The tent in which the show of “Enoch” was conducted was large enough to hold three hundred people. In front of it was a platform six feet wide, fifteen or twenty feet long, and four or five feet above the street. From this platform a stairway, five or six feet wide, led down to the level of the . street. There was no guard-rail or other protection at either end of this stairway. To go into the show people passed up said stairway and across said platform, and in coming out they recrossed the platform and went down said stairway to the open street. The show of “Enoch” lasted about fifteen minutes. It was repeated from time to time, and at the close of each exhibition those in attendance left the tent. A charge was made for admission to the show, but the city received no part of such admission fees. Plaintiff went with her husband to said show. When the show was over they, with the other people in attendance, two or three hundred in number, started to go out. Plaintiff crossed the platform and began to go down the stairs. As she was stepping from the first step from the top of the stairway to the next lower step, she was pushed or crowded by the people alongside of and behind her, from the end of the step, and fell to the ground. In her fall her right thigh bone was broken a few inches below the hip, and her right arm a few inches below the shoulder. Before she had fully recovered, while in the act of sitting down in a chair her thigh was again broken at the point of the first fracture. Before she had fully recovered she slipped from a wheel chair to the floor, and again her thigh bone was broken at the same point.

Up to the time of her first injury, plaintiff’s health had been good and she had done the housework for her family. Since that time she has not been able to walk, even with the aid of crutches.

Appellant does not question that plaintiff’s present condition of almost total disability is permanent, but insists that at the time of her first injury she was suffering from a disease of the bone, ' called osteomalicia.

Prom the evidence, the jury might properly find that said stairway was not reasonably safe for the purpose for which it was used, but was unsafe and dangerous, and also that the plaintiff was not guilty of contributory negligence.

The legislature has given to city councils in this state power, “to open streets; to regulate the use of the same; to prevent or remove obstructions or encroachments upon the same, and to license, suppress and prohibit * * * theatrical and other exhibitions, shows and amusements.” It has not given to city councils any authority to grant permission to hold a street fair or conduct a show in a street. Permission to conduct a “show” in a street carries with it permission to erect in such street a tent or other structure in which to conduct such show. The council of defendant therefore, in passing the order in question, attempted to authorize the setting up of the tent in question in a public stret for the purpose of conducting a show therein.

The general duty of the city in respect to its streets is to use reasonable care to keep its streets reasonably safe and convenient for travel. It owes that duty only to those who use the street as a street or highway. Plaintiff when she was injured was not using the street as a street or highway. She had left that part of the street which remained open and unobstructed, gone into the tent to see the show and on her way out, in going down the stars which led from the entrance to the tent to the open street, was pushed or crowded from the stairway and thereby injured. We think that the defendant cannot be held liable to the plaintiff for the injuries so sustained by her, on the ground of a breach of its duty to use care to keep its streets reasonably safe for travel, for the reason that the plaintiff was not, when injured, using the street as a street or for the purpose of travel.

The question remains, however, whether the defendant is not liable to the plaintiff on another ground. The criminal code declares that it is a public nuisance “to obstruct or encroach upon public streets”. The council of defendant in the attempted exercise of the power given by the legislature, “to regulate the use of streets and to license shows”, exceeded its authority and passed an order which in terms gave permission to obstruct and encroach upon certain of its streets for a purpose not authorized by law, to place an unlawful structure, a public nuisance, in said streets.

In Schultz v. Milwaukee, 49 Wis. 254,260, it was said by Mr. Justice Lyon: “If a municipal corporation, in the attempted exercise of any power conferred upon it by law, as to license shows, amusements and the like, exceeds its authority and licenses the placing of a public nuisance in the street, or the unlawful and dangerous use of a street for any purpose, and an injury results therefrom, without negligence on the part of the person injured, the municipality is liable to respond in damages for such injury.”

In Johnson v. New York, 186 N. Y. 139, the board of aldermen, by special ordinance, granted a certain club permission to conduct speed trials for automobiles in a certain boulevard on a certain day. The ordinance provided that at such trials a greater speed than eight miles per hour might be allowed. The statute then in force made it a misdemeanor to drive an automobile at a greater speed than eight miles an hour in any city, except where a greater speed was permitted by ordinance. Plaintiff went to see the speed contest and was in a field adjoining said boulevard when an automobile was deflected from the road, ran into the field where plaintiff was and struck and injured her. In the opinion it was said at page 145: ‘ ‘ That this ordinance, which did not assume to authorize the operation of automobiles generally at a greater rate of speed than that prescribed in the statute, and permitted only certain specified persons to use the highway as a race course on a particular occasion, was not only invalid as a regulation of the speed of automobiles, but also operated as a participation by the defendant in an unlawful act, is settled by the recent decision of this court in Landau v. City of New York, 180 N. Y. 48.”

In Cohen v. Mayor, etc., of New York, 113 N. Y. 533, the City of New York granted to M. permission to store his wagon in the street in front of his store. He negligently tied up the thills. Another wagon struck said wagon, turned it around, the string which held up the thills broke and the thills fell, striking plaintiff’s intestate, who was passing by on the sidewalk, and inflicted on him injuries from which he died. It was held that the license was issued without authority, that the storing of the wagon in the street was a public nuisance; that the defendant by licensing it made itself liable for any damages resulting therefrom, the same as if it had itself maintained the nuisance.

In the opinion in that case it was said, p. 537: “But assuming that the city had no right to issue the permit, it is urged that such license did not authorize the negligence which caused Cohen’s death, and that the act of the defendant was too remote to be regarded as the proximate cause of the damage herein. We do not think so. The act of the defendant was wrongful, it consisted in setting up an obstruction in the public highway, and the accident happened because of the presence of the obstruction at the point in question. It was there by the act of the defendant, and being there it has caused the injury. To he sure it may be said that if the thills had not been negligently tied, they would not have fallen. But that was simply the way in which, by reason of the presence of the obstruction, the accident occurred. There is always reasonable ground for apprehending accidents from obstructions in a public highway, and any person who wrongfully places them or aids in so doing, must be held responsible for such accidents as occur by reason of their presence. The obstruction in such case must be regarded, within the meaning of the law on the subject, as the proximate cause of the damage.”

In Wheeler v. Fort Dodge, 131 Iowa, 566, the council of the defendant granted a certain club “the privilege of the streets for a Fourth of July celebration * * * , the privilege of selling privileges for booths and entertainment,” etc. The club arranged with a certain person to give an exhibition called a “Slide for Life”. A wire was strung across the street down which the performer was expected to slide in some sort of harness. The harness gave way and the performer fell, striking and injuring the plaintiff, and it was held that the city was a participant in the maintenance of a public nuisance, and that the breaking of the harness was a concurrent and not an independent cause of plaintiff’s injury.

In this ease there is no controversy as to the evidentiary facts. From the evidence the jury might properly find that the stairway was not reasonably safe for the purpose for which it was provided and used. In the attempted exercise of the power to regulate the use of streets and to license shows, the council of defendant by affirmative act authorized the erection and continuance of a public nuisance in its streets. The defendant thereby became a participant in creating and maintaining such nuisance. The negligent construction of the stairway was a concurrent and not an independent cause of plaintiff’s injury.

In the opinion of the majority of the court the de~ fendant is liable to the plaintiff for her injuries, although sustained when she was not using the street as a street.

Whether the subsequent fractures of plaintiff’s thigh at the point where it was fractured in her fall from, the stairway resulted from and were the direct consequence of such fall was, we think, on the evidence in this record a question for the jury. If such subsequent fractures and her disabled and crippled condition resulted from and were the consequence of the first fracture and injury, the damages awarded cannot be held excessive.

The judgment of the Superior Court will be affirmed.

Affirmed.

Mr. Justice Chyteaus concurring in the conclusion, but not in all of the reasoning of the opinion.

Mr. Presiding Justice Smith dissenting.


text:
    Charles E. Everett, Appellant, v. David D. DeLong, Appellee.
    Gen. No. 14,094.
    1. Slander—what not essential to defense of privilege. The defense of privilege to an action of slander may be introduced under the general issue.
    2. Slander—what essential to establish defense of privilege. The burden is upon the defendant to show that the occasion of his speaking the alleged slanderous words was privileged and that such words were spoken from a sense of duty and with an honest belief in their truth. An occasion of privilege is where such defendant has an interest in the subject-matter of the communication and the person to whom the communication is made has a corresponding interest.
    3. Slander—when privilege arises. A clergyman who employs words alleged to be slanderous in the belief of their truth and from a sense of duty in order to aid the members of his church in determining whether the resignation of one of its trustees shall he accepted is entitled to interpose the defense of privilege.
    4. Slander—what words not actionable per se. It is not actionable per se for a clergyman to say of a trustee of his church, “That man is a dangerous man to have around little girls; I understand he has little girls from the Sabbath school stay in his office. I fear for the little ones.”
    Baker, J., dissenting.
    Action in the case for slander. Appeal from the Superior Court of Cook county; the Hon. Albert C. Babnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Rehearing denied October 27, 1908.
    James C. Hood and J. B. Hutchinson, for appellant.
    Charles A. Warren and James K. Lambert, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for slander, brought by appellant against appellee, the trial resulted in a verdict of not guilty. A motion for a new trial was denied and judgment entered on the verdict, to reverse which the plaintiff prosecutes this appeal.

The defendant, at the time he is alleged to have spoken the slanderous words, was the pastor of the Fellowship Congregational Church, a church in that part of Chicago known as the South Side, and had been such pastor for several years. In January and February, 1905, the question of erecting a new church edifice was under consideration. The trustees favored building the new church on the lot on which the old church stood. The pastor and some of the members favored buying another lot for the new church. To obtain aid from the Congregational Church Building-Society, a certificate of the pastor was required, that in his opinion the building of the new church at the place proposed was for the best interest of the chnrch. This certificate the defendant refused to give, and the trustees tendered their resignations. Plaintiff was not a member of the church, but was a trustee, chairman of the finance committee of the board, a teacher in the Sunday School, superintendent of the Junior Society of Christian Endeavor, a member of the Senior Society of Christian Endeavor of the church, and a member of the Evangelistic Committee which was appointed to arrange for holding revival services in the South Side Congregational Churches.

The right to elect trustees and to accept the resignation of trustees was in the members of the church. The right to accept the resignation of the superintendent of the Junior Endeavor Society was in the official board of the Senior Endeavor Society.

Plaintiff tendered his resignation as a trustee early in February, and it was accepted at a meeting of the members of the church held February 22, 1905. He tendered his resignation as superintendent of the Junior Endeavor Society February 23, and it was accepted by the official board of the Senior Society March 27, 1905.

Four witnesses testified that defendant spoke cer- - tain words of and concerning the plaintiff, Hr. Proctor, Mrs. Hohnberg, Linn and Elder. As to certain of said words the contention of appellee is, that they were not spoken by him; as to other of said words, his contention is that they were spoken on occasions that were privileged, that such privilege was not absolute hut qualified, and that there could be no recovery for the speaking of such words without proof of express malice, and that other of said words are not actionable.

The contention of appellant that the defense that the occasion was privileged cannot be made under the plea of not guilty but must be specially pleaded, is against the great weight of authority, both in this country and in England. In 6 Robinson’s Prac. 885, the general rule, “that under the general issue it may be shown that the words were spoken or published on an occasion which justified the speech or publication”, is stated, and it is said: “Since if not before Delaney v. Jones, 4 Esp. 191, the principle has been well understood; * * * Best, C. J. (Sims v. Kinder, 1 C. & P., 271,11 Eng. C. L.) ‘was clearly of opinion, that any fact which goes to show that the defendant spoke bona fide and without malice, is admissible in evidence; and that it is admissible, on the general issue; * * * Parke B., in Wright v. Wood-gate, 2 C. M. & K., 156, says, ‘the proper meaning of a privileged communication is only this: that" the occasion, on which the communication was made, rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that the defendant was actuated by mbfivés of personal spite or ill will, independent of the occasion on which the communication was made’; * * * Wilde, C. J., in Hoare v. Silverlock, 9 Man. G. & S., 26, 67 Eng. C. L., says: ‘The inference of malice arising from the publication of libelous matter is rebutted by showing that it was published on a lawful occasion. Not guilty puts in issue the tendency of the alleged libel and also the lawfulness of the occasion on which it was published. It does not follow that a defense may not be given under not guilty, because it might form the subject of a special plea'.”

As to the words, the speaking of which the defendant denied, the question whether the occasion was privileged does not arise. In order to entitle his words, prima facie, to the protection that attaches to communications made in good faith in the fulfilment of a duty, the burden was on the defendant to show that the occasion was privileged, that the words were spoken from a sense of duty and with an honest belief in their truth. The defendant as to certain words, the speaking of which he admitted, gave evidence tending to prove such facts, but offered no such evidence as to the words which he denied that he had spoken.

One of the occasions where a communication is privileged is, “where defendant has an interest in the subject-matter of the communication and the person to whom the communication is made has a corresponding’ interest. In such a case, every communication honestly made in order to protect such common interest is privileged by reason of the occasion”. Odgers Slander & Libel, 234. In Bradley v. Heath, 12 Pick., 163, Chief Justice Shaw said, pp. 164, 5: “Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith, to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words; and therefore no action can be maintained in such cases, without proof of express malice. If the occasion is used merely as a means of enabling the party uttering the slander' to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse.”

Whether the occasion was privileged is a question of law. When the words testified to by Dr. Proctor and Mrs. Holmberg were spoken, plaintiff’s resignation as a trustee had been tendered, but not accepted; the witnesses were members of the church and defendant was its pastor. The fact that plaintiff was not a member of the church is not material. The question to be decided by the members of the church was, whether the resignation of the plaintiff of his office of trustee of the church should be accepted. In that question the witnesses as members of the church"" and the defendant as its pastor had an interest. To aid the members of his church in coming to a right conclusion on that subject the defendant owed to them a duty. We think the court did not err in holding the occasion of the speaking of said words to each of said witnesses privileged.

The witness Linn was a member of the board whose duty it was to act on plaintiff’s resignation of his office of superintendent of the Junior Christian Endeavor Society of the church, a society the members of which were young people, some of them members of the church, others only of the congregation. The words were spoken the day that said board was to act on such resignation and before the board had met. Defendant testified that he called on Linn to ask that plaintiff’s resignation be accepted, and in the conversation that ensued the words in question were spoken. We think that for the same reasons that the occasion of the conversations with Dr. Proctor and Mrs. Holmberg were privileged the occasion of the conversation with Linn was privileged.

We are unable to perceive any ground on which the occasion of the conversation with Elder can be held privileged. It occurred after plaintiff’s resignation as trustee and superintendent of the Endeavor Society had been accepted. If he was then a member of the Senior Endeavor Society and of the Evangelistic Committee, no action was pending or contemplated in respect to the plaintiff -or his relation to said society or committee before any board or organization to which Elder belonged. The only question then as to the actionable words testified to by" Elder was whether they were spoken by the defendant. The words testified to by Elder: “That man (the plaintiff) is a dangerous man to have around little girls; I understand he has little girls from the Sabbath school stay in his office. I fear for the little ones”, do not in their common acceptation amount to a charge that plaintiff “had been guilty of fornication or adultery”, and are not actionable under the statute of this state.

We find no error in the rulings of the court on questions of evidence. It was competent for the plaintiff to give any evidence tending to prove express malice, or colorable pretence on the part of the defendant in the speaking of words spoken .on occasions which were privileged. It was competent for the defendant to give any evidence which tended to prove that the defendant in speaking such words acted from a sense of duty and with an honest belief in the truth of the words so spoken. It was therefore competent for the defendant to give evidence tending to prove that certain statements in relation to plaintiff were made to him, and that he believed such statements to be true.

In the opinion of the majority of the court there is no reversible error in the rulings of the trial court on instructions. In this opinion the writer is unable to concur. Among the instructions given for the defendant are the following:

“25. The court instructs the jury that if they believe from the evidence, and under the instructions of the court, that the defendant uttered and published the words, or one or more sets of the words, or substantially the same words, at the times and in the presence of the persons as charged in the declaration, and if the jury also believe from the evidence that the defendant was at said times a clergyman and pastor of a church, and that the plaintiff was at said times connected with said church or its work in some capacity or that it was proposed to have him so connected, and that said words were uttered and published by the defendant only with relation to plaintiff’s connection or proposed connection with the same to persons who were then members of said church or who were in some way connected with or related to said church or its congregation, Sunday School or one or more of its auxiliary societies, and that if the jury also find that the defendant so uttered and published the words in question in his capacity of such pastor, believing them to be true, and without malice, and with a good purpose and with belief that he was performing his duty as said pastor, and intending that such action on his part should be for.the interest and good of said church, that then said words would be of the kind known as qualified privileged communications, and not actionable and as having’ been stated underprivileged circumstances, and the jury should find the defendant not guilty.”
“26. The court instructs the jury as a question of law, that malice is the gist of an action of the character of this case, and that, if they believe from the evidence and under the instructions of the court that the defendant uttered and published the words, or any one or more set or sets of the words, at the times as charged in the declaration, but without malice and only in the capacity of a clergyman and to persons and in relation to matters in some manner connected with the church of which he was at such times pastor, or its Sunday School or auxiliary societies, and if the jury also find that the defendant believed said words to be true and thereby intended to promote the welfare of said church, that then there can be no recovery by the plaintiff, and the jury should find the defendant not guilty.”

The defendant testified that he did not speak certain slanderous words of the plaintiff which Dr. Proctor, Mrs. Holmberg and Linn testified that he spoke. As to those words the only question was, whether the words were spoken, for the defendant gave no evidence tending to show that such words were spoken under the circumstances stated in either of said instructions. Said instructions should, in the opinion of the writer, have been limited and restricted to words spoken under the circumstances therein stated.

Appellant further contends that the verdict is so manifestly against the evidence that for that reason the judgment should be reversed. We will consider first the slanderous words the speaking of which was denied by the defendant. As to those words, as has been said, the only question for the jury was, whether they were spoken. Each set of such words was, according to the testimony for the plaintiff, spoken in the hearing of only the plaintiff and one witness, and their testimony was conflicting. We cannot say that the finding of the jury, implied by the verdict, that such words were not spoken is against the evidence.

As to the slanderous words, spoken on occasions which were privileged, which the defendant admitted ■ that he spoke and gave evidence tending to show that they were spoken in the fulfilment of a duty, in good faith, and with an honest belief in their truth, the question for the jury was, whether they were so spoken, or were spoken with and from express malice, and on that question, under the evidence, the verdict of the jury must be held conclusive.

In the opinion of the majority of the court the record is free from reversible error, and the judgment will be affirmed.

Affirmed.

Mr. Justice Baker dissenting.


text:
    Adelbert Sebastian, Appellee, v. Chicago Coated Board Company, Appellant.
    Gen. No. 14,154.
    , 1. Measure oe damages—approved form, in action for personal injuries. An instruction upon this subject, as follows, approved:
    “The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damages; in determining the amount of damage the plaintiff is entitled to recover in this case, if any, the jury have a right and they should take into consideration all the evidence pertaining to plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and mind, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries; his loss of time and inability to work and transact business, if any, on account of said injuries, after he has attained the age of 21 years, and such future loss of time and inability to work, if any, which the jury may believe from the evidence he will sustain on account of such injuries (all moneys necessarily expended or become liable for, for doctor’s bills, if any, while being treated for such injuries), and may find for him such sum as in the judgment of the jury will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages are claimed and alleged in the declaration.”
    2. Measure of damages—approved form in action for personal injuries. An instruction upon this subject, as follows, approved:
    “The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damage; in determining the amount of damage the plaintiff is entitled to recover in this case, if any, the jury have a right and they should take into consideration all the evidence pertaining to plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and mind, if any, resulting from such physical injuries and such future sufferings and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries; his loss of time and inability to work and transact business, if any, on account of said injuries, after he has attained the age of twenty-one years, and such future loss of time and ability to work, if any, which the jury may believe from the evidence he will sustain on account of such injuries, and may find for him such sum as in the judgment of the jury will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages are claimed and alleged in the declaration.”
    3. Instructions—iohen appropriate to authorize recovery for future pain, etc. An instruction authorizing the allowance to the plaintiff in an action for personal injuries for future pain and suffering is proper where there is evidence tending to show that such plaintiff has not fully recovered from his injuries.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John L. Healt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907,
    Affirmed.
    Opinion filed November 6, 1908.
    Horton, Brown & Miller, for appellant.
    Albert W. May and Johnson, Belasco & McCabe, for appellee; Joel Baker, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries, alleged to have been sustained by the plaintiff through the negligence of the defendant, plaintiff had judgment and the defendant appealed. The injuries were such as made it necessary to amputate the fingers and thumb of plaintiff’s right hand between the first and second joints. As a result of the amputation there are neuromas, nerve tumors, at the points of amputation which, up to the time of the trial, were tender and painful.

The only ground for reversal stated in appellant’s brief is that: “The appellee’s third and eighth instructions were each of them erroneous and did not correctly present the law to the jury”. Said instructions are as follows:

“3. The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damages; in determining the amount of damage the plaintiff is entitled to recover in this case, if any, the jury have a right and they should take into consideration all the evidence pertaining to plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and mind, if any, resulting from such physical injuries, and such future suffering and loss of health, if any) as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries ; his loss of time and inability to work and transact business, if any, on account of said injuries, after he has attained the age of twenty-one years, and such future loss of time and inability to work, if any, which the jury may believe from the evidence he will sustain on account of such injuries (all moneys necessarily expended or become liable for, for doctor’s bills, if any, while being treated for such injuries), and may find for him such sum as in the judgment of the jury will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages are claimed and alleged in the declaration.”
“8. The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damage; in determining the amount of damage the plaintiff is entitled to recover in this case, if any, the jury have a right and they should take into consideration all the evidence pertaining to plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and mind, if any, resulting from such physical injuries and such future sufferings and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries; his loss of time and inability to work and transact business, if any, on account of said injuries, after he has attained the age of twenty-one years, and such future loss of time and ability to work, if any, which the jury may believe from the evidence he will sustain on account of such injuries, and may find for him such sum as in the judgment of the jury will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages are claimed and alleged in the declaration.”

The objections urged to these instructions are that they do not require that the assessment of dainages be based on the evidence, and that they permit the jury, in assessing plaintiff’s damages, to take into consideration future suffering, loss of health and ability to work.

In support of the first objection, counsel cite Muren Coal and Ice Co. v. Howell, 204 Ill. 515. The action in that case was by an administrator for wrongfully causing the death of his intestate. The conclusion of the instruction which was held erroneous was as follows:

“And if you believe and from the evidence find the defendant guilty, then it will be the duty of the jury to assess the plaintiff’s damages and in doing so you may take into consideration the pecuniary injuries resulting to the widow and next of kin, if from the evidence you believe there is a widow and next of kin, and that they have suffered pecuniary injury or loss on account of the death of said August Schmidt, and give to the plaintiff such a sum as in your judgment will fairly compensate the widow and next of kin for such pecuniary injury or loss, not to exceed, however, the amount sued for in this case.”

In so much of said instruction as related to the assessment of damages there was no reference to the evidence; the jury were told that they might give the plaintiff such sum as in their “judgment will fairly compensate the widow and next of kin for such pecuniary injury or loss, not to exceed, however, the amount sued for in this case.” The instructions in question relate only to the assessment of damages; each contains references to the evidence; and there is in neither any reference to the amount sued for.

In the sixth instruction given for the plaintiff the jury were “instructed that the amount of damages, if any, is a.fact you are to determine from the evidence in this case and under the instructions of the court.” We think that, taking the instructions relating to the assessment of damages together, the objection that they do not require that the assessment of damages be based on the evidence cannot be sustained.

We think that so much of said instructions as authorized the jury to take into consideration in assessing plaintiff’s damages, his future sufferings from his injury and his future inability to labor as a result thereof, was proper under the evidence in the case. Such an instruction is not proper where the plaintiff has fully recovered from his injury and no permanent disability has resulted therefrom (Ill. Iron & Met. Co. v. Weber, 196 Ill. 526); but is proper where there is a permanent impairment of plaintiff’s ability to labor, and where the evidence tends to show that he had not recovered from his injuries but was suffering pain by reason thereof at the time of the trial. Chicago & Mil. Elec. Ry. Co. v. Ullrich, 213 Ill. 170.

In this case there was a permanent impairment of plaintiff’s ability to labor, and evidence that the stub ends of his thumb and fingers were at the time of the trial tender and painful, and we think there was evidence on which to base the instructions.

In our opinion the instructions complained of are free from reversible error, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Alfred Molway, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,161.
    1. Streets—what ordinary travel. A person riding a bicycle upon a public street is using it for the purposes of ordinary travel and to such a person a municipality owes the duty to use ordinary care to keep the street in reasonably safe condition.
    2. Streets—how question of exercise of care by municipality determined. Whether the street in question, with a hole in the roadway a foot or fifteen inches deep, with sloping sides, was or was not reasonably safe for ordinary travel thereon, is a question of fact to be determined by the jury.
    3. Verdict—when not excessive. A verdict for $6,000 in an action for personal injuries is not excessive where it appears that as a result of the accident the plaintiff, whose left leg had theretofore been amputated below the knee, sustained a permanent dislocation to the hip of his right leg.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed November 6, 1908.
    Statement Tb>y the Court. In an action on the case for personal injuries plaintiff had judgment for $6,000 and the defendant appealed.
    In Wells street, Chicago, was an asphalt pavement. In this pavement there was at the time plaintiff was injured a hole twelve or fifteen inches deep, eighteen inches wide and three feet long. Plaintiff at the time of his injury was fifteen years old. Six years before his left leg had been amputated, three inches below the knee. Not knowing that there was such a hole in the pavement, he rode his bicycle into it, when it was quite dark, was thrown from his bicycle and in his fall sustained the injuries complained of. The hole into which he rode had been in the pavement two or three months before the accident.
    Edward J. Brundage and John R. Caverly, for appellant; George L. Reker and Edward C. Fitch, of counsel.

      Horton, Brown & Miller, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The defendant asked the court to instruct the jury, “that ordinary travel does not include the use of a street by one riding a bicycle thereon, * * * that a person when riding’ a bicycle on a street is not using said street for the purpose of ordinary travel thereon”, and the court refused to so instruct the jury.

_ Plaintiff had a right to ride his bicycle in a public street, and a bicycle is a vehicle. N. C. S. R. R. Co. v. Cossar, 203 Ill. 608. It is a matter of common knowledge that bicycles have for many years been in common use on the streets of Chicago and other cities. We think the court did not err in refusing to give said instruction.

The court also refused to give for the defendant the following instruction:

“If you believe from the evidence that the street in question at the time and place of the alleged accident was reasonably safe for ordinary travel thereon by persons riding in vehicles, such as wagons, carriages and other similar vehicles, then you are instructed that you should find the defendant, City of Chicago, not guilty, whether you believe that said street at said time and place was or was not reasonably safe for travel by a person riding a bicycle thereon. ’’

The duty of the city to use reasonable care to keep its streets in a reasonably safe condition for use as a street as a highway, is a general duty owing to all who use the street as a street, as a highway, for travel in ordinary modes. Bicycles are in common use, and th® rider of a bicycle in a public street must, we think, be held to use the street as a street for travel in an ordinary mode. It follows that, in our opinion, the instruction was properly refused.

The court for the defendant instructed the jury that the plaintiff could not recover unless they believed that it had been proven by the preponderance of the evidence, “that the street in question, at the time and place of the alleged accident, was not reasonably safe for ordinary travel thereon by persons exercising due care and caution for their safety”, and also that: “A city is not bound under the law to keep its streets absolutely safe, nor is it bound under the law to keep them in reasonably safe condition; it is only bound to use reasonable care to keep its streets reasonably safe for ordinary travel thereon by persons using due care and caution for their own safety.” The jury must under these instructions find, in order to find the defendant guilty, that the street in question was not “reasonably safe for ordinary travel thereon by persons exercising due care and caution for their safety.”

Whether the street in question, with a hole in the roadway a foot or fifteen inches deep, with sloping sides, was or was not reasonably safe for ordinary travel thereon, was a question of fact for the jury on which their verdict must be held conclusive on us.

It is further contended that the damages are excessive. In his fall from the bicycle, plaintiff’s left hip was injured. His left leg had before that time been amputated below the knee. The injuries to his hip consisted of a fracture of the back lip of the acetabulum, the cavity in the hip bone which receives the head, of the thigh bone, and a dislocation of the hip joint. As a result the hip joint is fixed, rigid; the thigh bone is shortened one inch, the muscles of the thigh are somewhat atrophied, so that his left thigh is now five inches smaller than his right, and his condition cannot be remedied.

We cannot say that for such injuries, followed by such consequences, the damages are excessive.

The record is, we think, free from error, and the judgment of the Superior Court will be affirmed.

Affirmed.


author: Mb. Justice Bakes

text:
    Lena Schmidt, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,177.
    1. Verdict—effect of silence as to one defendant. A verdict finding one defendant guilty is in effect a verdict in favor of another defendant not mentioned. The defendant so found guilty has no right to have the issues so determined again submitted to the jury, even though such jury has not been discharged.
    2. Custom—how question of existence of, determined,. Whether there was a rule, practice or custom giving to the cars of one traction company a superior right of way over the cars of another traction company at a particular crossing, is a question of fact, where the evidence is conflicting, to he determined by the jury.
    3. Negligence—care required at street crossings. If the cars of one traction company have no superior right of way to the cars of another traction company at track crossings, the jury is justified in finding that such traction company having no superior right of way was guilty of negligence if its motorman when approaching such crossing saw the car of the other company at a stop and proceeded forward without keeping his car in such Control as to enable him to avoid a collision with such other car so standing still if it should suddenly be started up.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed November 6, 1908.
    Statement by the Court. In an action on the case brought by appellee against appellant and the Chicago Union Traction Company for personal injuries, plaintiff had judgment against appellant alone, to reverse which this appeal is prosecuted.
    Appellant operated a double track electric street railroad in Clark street, and its south-bound cars ran on the west track. There was a viaduct at Twelfth street, about twelve feet high, and a grade or incline from that viaduct to the north, up which the southbound cars of appellant ran. The Traction Company operated a double track electric street railway in Twelfth, street, crossing appellant’s road, at grade, on the viaduct.
    Plaintiff was a passenger in a south-hound car of appellant, which came in collision with a west-bound car of the Traction Company at said crossing, and in such collision the plaintiff received the injuries complained of.
    William J. Hynes, Samuel S. Page and Watson J. Ferry, for appellant.
    Kruse & Peden, for appellee.
   Mb. Justice Bakes

delivered the opinion of the court.

We find no error in the rulings of the court on questions of evidence, nor in the refusal of the court to give for the appellant either of the two instructions asked by appellant and refused.

The parties agreed, and the court ordered, that the jury might return a sealed verdict, and the jury separated after signing and sealing a verdict. The envelope was opened at the next session of the court, in the presence of the jury, and found to contain only a verdict signed by the jury finding appellant guilty, and assessing plaintiff’s damages at $3,500. When this verdict was read the court said orally to the jury that they, “would have to do something in regard to the other defendant”. Appellant’s counsel objected to receiving the paper so returned by the jury as a verdict against appellant; and the court Overruled the objection. The court then gave to the jury the following instruction in writing: “You must retire to

your jury room and determine from the evidence and instruction of the court as to whether or not the defendant the Chicago Union Traction Company is guilty or not guilty, and return a verdict as you may so determine”, to which action of the court the appellant objected and excepted. The jury retired and returned a second verdict, signed by the jury, finding the Traction Company not guilty. Objections were duly made by appellant to the acceptance of said verdict or either of said verdicts, and its objections were overruled and exception taken.

The verdict first returned was in effect a verdict in favor of the Traction Company. Wabash R. R. v. Keeler, 127 Ill. App. 265. The first verdict disposed of the issues between plaintiff and appellant. We do not think that appellant had the right to have those issues again submitted to the jury, or that it was prejudiced by the action of the court in requiring the jury to retire and find a verdict as to the other defendant only.

Plaintiff remitted $875 and a judgment was entered for $2,625 and costs. We do not think that on the evidence the judgment should be reversed on the ground that the damages are excessive.

Appellant contends that at and before the time of the collision there was a' rule, custom and practice by which the motormen of the Traction Company stopped its Twelfth street cars on the east side of Clark street going west,- and on the west side going east, until any car of appellant that was within 150 or 200 feet of Twelfth street had passed over the crossing; that just before the collision a west-bound car of said Traction Company stopped ori the east side of Clark street; that the south-bound car of appellant was then about 150 feet north of Twelfth street; that the motorman in charge of said car had the right to believe and to act on the belief that the motorman in charge of said west-bound car would observe and follow such rule, practice and custom, and not start his car forward until after appellant’s south-bound car had passed over the crossing; that so believing, and acting on such belief, appellant’s motorman proceeded towards said crossing without attempting to reduce the speed of his car, which was from eight to ten miles per hour, until he saw the Traction Company car start forward; that his car was about seventy-five feet north of the north track in Twelfth street when said car started forward; that so soon as said car started forward he set the air brakes on his car, but was unable to stop it before it reached the track in Twelfth street, and struck the Traction Company’s car.

Twenty-one witnesses called by appellant testified to the existence and observance of such rule, practice and custom, at and for a long time before said collision. Fifteen witnesses called by said Traction Company, most of them motormen in its service, testified that there was no such rule, practice or custom,- but that the practice and custom had been and then w-as for each motorman, for himself, to determine in each case whether it was safe for him to pass over the crossing; that usually a motorman would by a nod or other signal indicate to the motorman of the other company when to proceed.

Whether there was any rule, practice or custom giving to the cars of appellant a superior right of way over the cars of the Traction Company at said crossing was, in our opinion, on the evidence, a question of fact for the jury which must be regarded as settled by their verdict. This conclusion practically disposes of the contention of appellant that the verdict is so manifestly against the weight of the evidence that the judgment should be reversed.

If appellant’s cars had no superior right of way at the Twelfth street crossing over the cars of the Traction Company, the jury might, we think, properly find that the motorman of the appellant, when he saw the Traction Company’s car stop on the east side of Clark street, ought, in the exercise of that high degree of care, appellant and its servants were bound to exercise for the safety of passengers, reasonably to have anticipated that the Traction Company’s car might start forward, -and ought, if he attempted to cross in front of that car, to have so regulated the speed of his car, and placed it under such control, that he could have avoided the collision when that car started forward with his car seventy-five feet or further away from the crossing. We cannot say that on the evidence the jury might not properly find that appellant was guilty of negligence.

The record is, we think, free from error, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Antonia Karczenska, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,181.
    1. Variances—essential to constitute fatal. A variance can only he fatal where there is a clear discrepancy between averment and proof.
    2. Negligence—non-liability of municipality for latent defects of sidewalk. The following instruction upon this subject approved:
    “You are instructed that the defendant, city of Chicago, is not liable for latent or unseen defects in its sidewalks not discoverable by the exercise of ordinary care; and if you believe from the evidence that the sidewalk in question was, at the time and place of the alleged accident, in a ’ reasonably safe condition for ordinary travel thereon by persons using such degree of care and caution as reasonably prudent persons would use for their safety, under all the circumstances shown by the evidence, so far as was discoverable by the defendant by the use of ordinary care, then you should find the defendant, city of Chicago, not guilty.”
    But held, that its substance was contained in other instructions given and that therefore a reversal should not follow because of its refusal.
    3. Verdict—when not excessive. A verdict for $5,000 in an action on the case for personal injuries is not excessive, where it appears that the plaintiff at the time of her injury was a woman of about the age of thirty-five years and had prior to that time been in good health, attending to her domestic duties and keeping hoarders, and who as the result of the accident was bed-ridden for fourteen months, after getting up had again to learn to walk and had up to the time of the trial, several years after the accident, been unable to do any work; had her seventh and eighth ribs fractured and the pleura and lung injured and sustained other serious injuries.

      Action in case for personal injuries. Appeal from the Superior court of Cook county; the Hon. Homes Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed November 6, 1908.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    Brandt & Hoffmann, for appellee; Oscar C. Miller, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case brought by appellee against appellant for personal injuries alleged to have been suffered by her in consequence of the negligence of the defendant in respect to one of its sidewalks, plaintiff had judgment for $5,000, and the defendant appealed.

When plaintiff rested her case defendant moved, “to dismiss the case on the ground that there was a variance between the place described by the witnesses as the place of the injury and accident and that described and designated in the declaration”. The court denied the motion and the defendant excepted. The first count of the declaration was abandoned on the trial. The second count alleged that the defendant, on etc., at etc., “was possessed and'had control of a certain public sidewalk on, to wit, Elston avenue, near, to wit, Webster avenue in said city”; that defendant negligently, etc., then and for a long time theretofore had kept said sidewalk out of reasonable repair, full of holes, weak, insecure and insufficient; that while plaintiff was “then and there” with all due care on her part, lawfully passing over and upon said sidewalk, a plank flew up, gave way and tripped the plaintiff, whereby she fell into a certain hole “then and there” in said sidewalk, and fell through and upon the sidewalk, whereby appellee was greatly and permanently injured, etc.

Elston avenue runs nearly northwest and southeast. Webster avenue, an east and west street, runs from some distance west of Elston avenue, east to Lincoln Park, crossing Elston avenue. About 400 feet northwesterly from Webster avenue, measured on the west line of Elston avenue, is Gloy place; and beyond Gloy place is Binzo street, both running southwesterly from, but not crossing Elston avenue. The accident occurred on the sidewalk on the westerly side of Elston avenue, between Gloy place and Binzo street, at a point about 650 feet from Webster avenue, measured on the west line of Elston avenue. There is no street running from the easterly side of Elston avenue between a point opposite to the place where the accident occurred and Webster avenue.

A variance can only be made where there is a clear discrepancy between averment and proof. Here the averment as to the location of the sidewalk alleged to be out of repair is ambiguous, uncertain and indefinite. The difference between the averment and the proof is not clear. In one sense it is true that the sidewalk through which plaintiff fell was “near” Webster avenue. We think that the motion to dismiss on the ground of variance was properly overruled.

The trial court refused to give to the jury for the defendant the following instruction:

“You are instructed that the defendant, City of Chicago, is not liable for latent or unseen defects in its sidewalks not discoverable by the exercise of ordinary care; and if you believe from the evidence that the sidewalk in question was, at the time and place of the alleged accident, in a reasonably safe condition for ordinary travel thereon by persons using such degree of care and caution as reasonably prudent persons would use for their safety, under all the circumstances shown by the evidence, so far as was discoverable by the defendant by the use of ordinary care, then you should find the defendant, City of Chicago, not guilty.”
For the defendant the jury were instructed that before the plaintiff could recover, “they must believe each and all of the following requirements to have been proven by a preponderance or greater weight of the evidence; * * *
“4. That the alleged defective condition of said sidewalk existed before the time of said accident, and that the city either bad actual notice of such defective condition in time to have enabled it to repair the same, by the exercise of ordinary care, before the time of said accident, or that such alleged defective condition existed for so long a period prior to the time of said accident as to charge the city with constructive notice thereof — that is to say, that such condition existed for so long a period prior to the time of said accident that the city by the use of ordinary care would have discovered such condition in time to have enabled it to repair the same, by the use of ordinary care, before the time when said accident is alleged to have occurred.
“5. That the city failed to exercise reasonable care to have said sidewalk at the time and place in question in a reasonably safe condition for ordinary travel thereon by persons using due care and caution for their safety, after said city had either actual or constructive notice of such unsafe condition, if you believe from a preponderance of the evidence that such unsafe condition existed and that the city had either actual or constructive notice thereof in time to have enabled it to repair the same, by the exercise of ordinary care, before the time of said accident.
“6. That the plaintiff was injured, as alleged, as a proximate result of negligence on the part of the defendant, as charged if you believe from a preponderance of the evidence that it was so negligent.
“If the plaintiff has failed to establish any one of these requirements by a preponderance or greater weight of the evidence, then you should find the defendant, City of Chicago, not guilty.”

We think that the instruction refused should have been given, but that the substance of that instruction is contained in the instruction given, and that the judgment should not he reversed for the refusal to give said instruction.

The sidewalk in question was some distance above the ground. It was made of boards or plank laid crosswise on stringers running parallel with the walk. Four witnesses for the plaintiff testified that many of the planks or boards of said walk had for months before that time been loose, rotten and some of them out of place. Plaintiff, in passing over said walk when it was dark, stepped on a board which either tipped up or broke and she fell, her legs going through the hole in the walk and astride a stringer. The accident occurred June 24, 1903. A carpenter called by defendant testified that for the defendant early in May, 1903, he repaired the sidewalk on the westerly side of Elston avenue, between Binzo street and Webster avenue; that he put in some new plank and nailed down some old ones that were loose; that he looked to see if there were any more loose planks and saw none. Two entries from the book of the ward superintendent were introduced by defendant, showing that repairs to the sidewalk were made near Binzo street May 7 and 8, 1903. We cannot, on the evidence in this record, say that the finding of the jury, implied by their verdict, that the defendant was guilty of the negligence averred in the declaration, is against the evidence.

Appellant further contends that the damages are excessive. The trial took place four years after the accident. Plaintiff when injured was about thirty-five years old, and up to that time her health had been good. She had lived with her husband and children and had a number of boarders. She had done the housework, including the washing. She was pregnant when injured. She was taken home in a police patrol wagon and was not able to leave her bed for fourteen months. When she got up she had to learn to walk, and up to the time of the trial had not been able to do any work. In the fall her seventh and eighth ribs on the left side were fractured and the pleura and lung on that side injured. Four days after her injury she had a miscarriage, and afterwards her menses were irregular and she had a falling of the womb. Two or three months after her injury tuberculosis of the left lung was discovered and continued up to the time of the trial, Not long after her injury a hernia was discovered. In her fall one of her legs was injured, and afterwards varicose veins appeared in that part of the leg.

Whether the injury caused or brought on the tuberculosis and hernia was one of the controverted questions on the trial on which the testimony of the physicians called by the respective parties was conflicting. We do not think that on the evidence in the case the damages awarded by the jury can properly be held excessive.

Finding in the record no reversible error, the judgment of the Superior Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Adams

text:
    Annie Fuhry, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 13,960.
    1. NEGLIanIcox-'what establishes prima facie case. Proof of status as a passenger and an Injury resulting from a collisicrn establishes negligence prima facie against the carrier and casts upon it the burden of showing that the collision occurred under such circumstances as to exclude its liability; held, that the evidence of the carrier as to the "slippery, greasy and muddy condition of the track" did not justify its exoneration from responsibility.
    2. EVIDENcE-hOW rate of speed may be shown. The rate of speed at which a car was traveling at or about the time of an accident may be shown by the approximation of witnesses qualified from observation.
    3. Evoaucx-what, of attending physician, competent. The tes- timony of an attending physician as to the physical condition of the plaintiff in an action for personal injuries based upon what he observed and ascertained by the application of tests, is not incompetent by reason of the conclusion being given in part upon the statements of the plaintiff.
    4. Evidence—appropriate form, of hypothetical question as to causes of physical condition. A physical condition prima facie established it should be inquired not as to what might have produced it but as to what did produce the condition disclosed.
    5. Verdict—when not excessive. A verdict of $2,500 rendered in an action for personal injuries is not excessive where it appears that before the accident the plaintiff was a strong, healthy, hardworking woman, earning nine to ten dollars per week by washing, that after the accident she became practically an invalid, and that no favorable prospect of recovery from the injuries sustained appears.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 12, 1908.
    William J. Hynes, John E. Kehoe and Watson J. Ferry, for appellant.
    John S. Hummer and Charles A. McDonald, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The appellant is a street railway company, and operates street railway cars by electric power in South Halsted street, a street lying north and south in the city of Chicago. Between seven and eight o ’clock in the morning of May 7, 1903, Annie Fuhry, the plaintiff, became a passenger at Thirty-third and Wallace streets on one of appellant’s cars, to be carried south to Forty-seventh street, an east and west street. As the car in which she was riding was approaching Forty-third street, a Mrs. Flynn, who was a passenger on the car, signaled the conductor to stop the car. The conductor gave the signal to stop, and the ear slowed and stopped on the south side of Forty-third street to permit Mrs. Flynn to alight; hut before she could do so another of appellant’s ears, which was running south in the same track as the ear in which plaintiff was riding, and behind that car, crashed into the rear end of that car. The evidence tends to prove that the car in which the plaintiff was riding, and which had stopped, as stated, on the south side of Forty-third street, was driven forward by the force of the collision between fifty and one hundred feet, and that the head of the motorman of the rear car was driven through the front window of his ear. The plaintiff at the time of the accident was sitting on the east side of the car, at its rear end, near the rear door. The conductor of the ear testified that he saw the plaintiff immediately after the collision lying on the floor unconscious and her face bleeding, and that, with the assistance of another person, he carried her into a shoe store, called a doctor to attend her, and then returned to his car. The evidence tends to prove that the plaintiff was seriously injured. It was nearly eight o’clock a. m. when the collision occurred, and it was proved and admitted on the trial that the day was bright and sunshiny. Anthony Vogt, one of appellant’s conductors, testified that he was riding on the front platform of the rear car, and that he saw the car on which plaintiff was stop on the south side of Forty-third street, and that then the front end of the car on which he was riding was about opposite the second door north of Forty-third street and about seventy-five to one hundred feet from the car with which it subsequently collided, and was running at the rate of from eight to ten miles per hour. The evidence for the plaintiff makes a prima facie case for her, casting on the defendant the burden of showing that the collision occurred under such circumstances as to exclude its liability. North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486; W. Chicago St. R. R. Co. v. Martin, 154 ib. 523, 529, and cases cited.

Appellant’s counsel contend that the collision was caused by the “slippery, greasy and muddy condition of the track”, for which the defendant was in no wise responsible, and which “conld not have been discovered by any management, however skillful”.

Yogt, called by defendant, testified that there was mud on the rail, caused by wagons passing over it, and that the rail was sweaty and the day damp and the rail was as slick as glass, and when the motorman shut off. the power and applied the brake, about seventy-five feet from the car which had stopped, the brake had no effect, and the car kept sliding. This witness, on being asked to expláin how the condition of the track testified to by him would prevent the wheels from taking hold, answered: “That is owing to the condition of the weather. Some mornings the weather will be fine and the next morning the sun won’t come out, you know, until late, and it will come and kind of—I don’t know what, kind of an atmosphere, kind of dampness, and wagons going over it will make a kind of mud form on it; when this mud is formed on it cars keep continually going over it without stopping, and the mud will become like glass, and the next man comes along and he tries to make a stop there and applies sand, but the sand won’t hold, the wheels will lock and gradually push the sand off, and you can’t stop sometimes with a block”.

First, as to the weather: It was admitted on the trial by defendant’s counsel, after being proved, that the 6th and 7th days of May, 1903, were bright and sunshiny, and that the night between those days was a clear moonlight night. Second, as to the alleged muddy condition of the track: C. A. Halsted, a motorman in defendant’s employ, but not operator of either of the cars in question, called by defendant, testified in chief: “I was familiar with the tracks of the Chicago City Eailway Company on Halsted street and Forty-third as they existed in 1903; that was a level street along there; the rails of the track were about level with the street; the wagon traffic on that street at that point is pretty heavy; it is right in front of the Union Stock Yards; the traffic at that time was merely store and meat wagons. Those wagons drove in the tracks of the street car company and crossed them”. On cross he testified: “I say there was considerable traffic on thé street at that crossing, and that was stock yards traffic. The way that would affect the rail there is in droppings from the wagons, and .carrying dirt into the tracks from the outside”. This witness further testified: “As a motorman I know

that those slippery conditions are apt to be along the track and met with any time. We are usually on guard more or less to avoid collisions, in case of a slippery rail; I mean we are watching, taking observations of every thing around. We run slower and farther apart”.

John B. Shirley, a conductor in defendant’s employ, called by defendant, testified that the track at the crossing of Halsted and Forty-third streets was slippery; that the motorman on the rear car was an extra man, and that, even if the condition of the track at the crossing, at the time in question was permanent, it would be impossible for him to remember it. He says an extra man is one who works on various lines, one today, another tomorrow, and perhaps still another the next day, and is not as familiar with any particular track as is the motorman running constantly over it. Shirley further testified that the rail was what he called a greasy rail, and came from sweating. Asked what would remove the condition produced by sweating, he said, “The effect of the sun; you see if the sun was shining it would dry it up;” and that he was not sufficiently versed in the matter to answer as to how long it would take to dry it up.

The rear car, which was being operated by an extra motorman, was following the ear in which the plaintiff was riding as the latter car was approaching the intersection of Halsted and Forty-third streets, and he was bound to consider that the car in front of him might stop on the south side of the intersection, in case any passenger wanted to alight from or board it; that it was the duty of those operating it to so stop it, in the event of any one desiring to get on or off it, and it seems clear that it was his duty to keep such a distance behind it as to be able to stop his oar in time to prevent a collision, even though his car should run onto a slippery rail, which defendant’s witnesses say is liable to happen anywhere along the line, and in respect to which Halsted says, “We are usually on guard more or less to avoid collisions in case of a slippery rail. ’ ’

In the present case the rear car was moving at the rate of 8 to 10 miles per hour, and when the motorman of the rear car attempted to stop it, it was only, as Vogt testified, about 75 feet from the car with which it collided.

The verdict of the jury in favor of the plaintiff necessarily includes the finding that the collision has not been so explained as to exonerate the defendant from liability. We think the verdict sustained by the evidence.

Defendant’s counsel object to certain rulings of the trial court on evidence, and also claim that the damages are excessive. The ruling on the evidence of Koerber, plaintiff’s witness, in respect to the speed of the rear car, is objected to. He testified that, according to his best judgment, it was running about ten miles per hour. In the course of his cross-examination he also testified that he did not know how fast it was running. Defendant’s counsel moved to strike out the evidence, that in his best judgment the car was running ten miles per hour, which motion the court overruled. We think that the witness, in saying he did not know, merely intended that he could not state exactly. But even though the court’s ruling on defendant’s motion was incorrect, we do not think defendant could have been prejudiced by it, because Vogt, defendant’s witness, testified that the speed of the car was from 8 to 10 miles-per horn.

Dr. Charles McDonald was the plaintiff’s attending physician. He was called to attend her the day of the accident and attended her continuously from that time. He visited her one hundred times or more, and examined her for the last time about a week before the trial. He was called to attend the plaintiff on the recommendation of Dr. Meehan, defendant’s witness, who testified that Dr. McDonald is a good man and all right. Dr. McDonald testified that, in his last examination of the plaintiff he had her squeeze his hands with both of hers as hard as she could, and found that his left -hand, which she held in her right hand, was squeezed with a less degree of pressure than his right hand; also that he stuck a pin in her right arm till it bled, and she evinced no resistance whatever, whereas the left arm responded promptly to the pin pricks; also that he, using a tongue depressor, examined the posterior part of her throat, touching that part, and she did not gag, although the tendency of all patients is to gag under such circumstances. He based certain conclusions on these circumstances.

Counsel for appellant object to this evidence on the ground that it is based on subjective symptoms and self-serving actions of the plaintiff. We think the cases of City of Chicago v. McNally, 227 Ill. 14, and Eckels v. Muttschall, 230 ib. 462, a sufficient answer to the objection. In the last case the court say: “Dr. Ide had treated the plaintiff from the time of his injury and had examined him a few days before the trial. He testified fully to the physical conditions he found in the plaintiff immediately after the injury, also just prior to the trial. He stated that the plaintiff was lame, that he had curvature of the spine and degeneration of the spinal cord. The fact that the doctor, in arriving at his conclusions, was guided somewhat by what the plaintiff said to him, did not make his evidence incompetent and subject to be stricken out on the motion of the defendants.”

The following question and answer occurred in the examination of the witness:

“Q. To what do you attribute the condition of nervous hysteria that this woman is suffering from, in view of your treatment and what you have learned of her case; to what physical condition do you attribute it?” “A. Due to the injury that she received in her head and the concussion and nervous shock at that time.”

It was objected that this evidence was incompetent, on the ground that it was for the jury to decide whether the accident produced the condition described. The same objection to similar evidence was made in City of Chicago v. Didier, 227 Ill. 571, and this case is like that in that the manner of the injury is undis- _ puted. The court say: “The reason given for permitting a properly qualified witness to give his opinion as to what did produce certain results or consequences, and not what might have produced them, is, that the fact to be established is what did cause the conditions found to exist. Where the determination of that question involves scientific knowledge or skill which is possessed only by those who have given the matter special study and with which the jurors and others engaged in the ordinary avocations of life are unfamiliar, a witness possessing the necessary qualifications may be asked for his opinion as to what did cause the conditions described. ’ ’

It is contended that the sum awarded by the jury as damages, $2,500, is excessive. The evidence tends to prove that before the accident the plaintiff was a strong, healthy, hard-working woman, and that she earned nine to ten dollars per week by washing, and that ever since the accident she has been practically an invalid, and Dr. McDonald testified that the prospect or chance of her recovery from her ailments is very unfavorable. In view of the evidence as to the injury and the consequences of it to the plaintiff, we cannot sustain the contention that the damages are excessive.

The judgment will be affirmed.

Affirmed.


text:
    Frideborg A. Anderson, Appellant, v. Nels O. Hultberg et al., Appellees.
    Gen. No. 14,710.

      Ihuukctions—when appeal does not lie. An appeal does not lie from an order granting an injunction upon compliance with a condition specified in the order.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1908.
    Appeal dismissed.
    Opinion filed November 12, 1908.
    Rehearing denied November 30, 1908.
    E. Allen Frost, for appellant; John J. Healy, of counsel.
    Winston, Payne, Strawn & Shaw and Harris F. Williams, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from an interlocutory order granting an injunction. Appellant is defendant to a creditor’s bill, which she answered, and filed a cross-bill, praying, among other things, that the appellees be restrained and enjoined from further prosecuting a bill in equity in the Circuit Court of the United States for the District of Kansas, until after the hearing of the original bill filed in the Circuit Court of Cook county. The motion of the appellant for a temporary injunction, as prayed, was referred to a master, who states, in his report, substantially correctly, as we find from the pleadings, the alleged facts on which the motion is based, which statement is as follows:

“The original hill herein, which was filed July 1, 1904, is a creditor’s hill based on a money decree recovered by the original complainants against Peter H. Anderson, while indebted to the complainant. Among other things, it charges that said Peter H. Anderson, while indebted to the complainants, and with moneys which in equity belonged to them, purchased and caused to be conveyed to his wife certain specifically described lands situate in Dickinson county, Kansas, which conveyance was made to hinder and delay said Anderson’s creditors. The bill seeks to have said land in Dickinson county, Kansas, subjected to the payment of said decree. Upon said bill an injunction was issued, restraining Mrs. Anderson from selling, assigning and conveying said Kansas land or any portion thereof.
“During the month of September, 1907, and during the pendency of the original bill filed in this court, Neis O. Hultberg, one of the original complainants herein, having meanwhile as trustee for said Covenant, obtained a judgment in a state court in Kansas upon the basis of said decree against Peter H. Anderson, filed a creditors’ bill in the Circuit Court of the United States for the District of Kansas, First Division. This bill named Mrs. Anderson, the cross-complainant here, as a defendant, and made substantially the same allegations and prayers regarding said land in Dickinson county. Neither Mrs. Anderson nor her husband has been served with process in said creditors’ bill pending in Kansas, nor has either of them entered an appearance therein, but notice has been published re-, quiring Mrs. Anderson to appear in said cause, in default of which a decree pro confesso would be entered against her in said cause on the first Monday in March, 1908.
“Mrs. Anderson’s cross-bill further alleges that her defenses to said bill pending in Kansas are the same as her defenses to the original bill in this cause, and that to defend both suits would subject her to double expense.”

The court, in accordance with the recommendation of the master, entered an order in reference to the prayer for a temporary injunction as follows:

“And further, in accordance with the recommend ations of said master’s report, it is hereby ordered that the motion of the cross-complainant, Frideborg A. Anderson, for a temporary injunction as prayed in her cross-bill be and the same is hereby conditionally granted, to the extent only that the defendants in said cross-bill be and they are hereby conditionally enjoined from further prosecuting only so much of that certain bill in equity pending in the United States Circuit Court in Kansas more particularly described in said cross-bill, as involves the lands in Dickinson county, Kansas, described in said cross-bill; provided, however, that the injunction hereby granted shall be vacated, annulled and wholly for naught esteemed unless said Frideborg A. Anderson shall at or before 10 o’clock a. m. of Wednesday, March 18, 1908, deliver to Chicago Title and Trust Company, an Illinois corporation, a deed properly executed and acknowledged by herself and Peter H. Anderson, her husband, conveying to said Chicago Title and Trust Company, as trustee, said lands situate in Dickinson county, Kansas, and specifically described in said cross-bill, in trust, to hold the title to said lands subject to such disposition thereof as may be made by the final decree of this court upon the original bill herein; such deed also to contain the further provision that in case such final decree upon the original bill herein should direct said Chicago Title and Trust Company to convey said lands to the complainants in the original bill herein or their assigns, such conveyance shall stand in satisfaction of so much of the money decree on which the original bill herein is founded as this court by its said final decree may determine the then value of said lands to be.”

This is the order appealed from. The appellees moved to dismiss the appeal, on the ground that the order is not appealable, which motion was reserved till the hearing.

Appeals from interlocutory orders granting injunctions can only be taken by virtue of the statute entitled “An act to provide for appeals from interlocutory orders granting injunctions or appointing receivers”, in force July 1,1887. Section 1 of that act provides, “That whenever an interlocutory order or decree is entered in any suit pending in any court in this State* granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction orde'r, or appointing a receiver, or giving-other or further powers or property to a receiver already appointed, an appeal may be taken from such interlocutory order or decree to the Appellate Court of the district wherein is situated the court granting-such interlocutory order or decree.”

Appellant’s complaint is that the court did not grant an absolute order as prayed, but only on the conditions specified in the order. It is manifest from the language of the statute, quoted supra, that no appeal is allowed or can be taken from an order refusing an injunction. If an appeal is not allowed from an order refusing altogether an injunction as prayed, it necessarily follows that an order refusing in part an injunction as prayed, as is the case here, is not appealable. Appellant prayed an absolute preliminary injunction, which the court refused, in effect, but granted the injunction in part and on the conditions prescribed in the injunction order. The statute, section 1, also provides: “The force and effect of such order or decree, and the proceedings in the court below, shall not be stayed during the pendency of the appeal”. This provision is in favor of the party on whose motion the injunction order is granted, and clearly contemplates only an appeal by the party against whom' the order runs. We are of opinion that the appeal from the injunction order by appellant is not within the statute and does not lie.

By the conditional part of the appeal bond, the appeal purports to be not only from the injunction order, but also from an order taxing against appellant the sum of $200 as the master’s fees. No appeal was prayed or allowed from this order. Assuming the order as to the master’s fees to be a final order and appealable, in respect to which any expression of opinion is unnecessary, an appeal could only be taken from it on an allowance of an appeal by the court, and the filing of an appeal bond in such penalty and within such time as the court should, by order, prescribe, and with security approved by the court, or by the clerk, if the court should so order, which the court did not. This course was not pursued. The only appeal bond in the transcript of the record, which is certified to be complete, is a bond approved by the clerk, as provided by the statute in case of an appeal from an interlocutory order. Therefore, no question as to the order that appellant should pay $200 as master’s fees is before us.

Appellees’ motion to dismiss the appeal is sustained, and the appeal will be dismissed.

Appeal dismissed.