text:
    Gerhard Lienemann, Appellant, v. August Costa, Herman Klaus and Charles Hesi, Commissioners of Highways of Leef Township, Appellees.
    1. Torts—when public officers not liable for. Officers of a governmental body can be held personally liable for damages to persons or property, with respect to the performance of their official duties, only when under the guise or pretense of performing a duty they do an unlawful or tortious act, or when they perform some ministerial duty in a wrongful or negligent manner, or where they corruptly, wilfully or negligently fail to perform some mandatory duty.
    Action commenced before justice of the peace. Appeal from the County Court of Madison county; the Hon. Jno E. Hielskotteb, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 13, 1908.
    Brown & Geers, for appellant.
    D. M. Mudgb, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit commenced by appellant against appellees, before a justice of the peace of Madison county, to recover damages to real estate caused by the alleged obstruction of the natural flow of surface water. From the judgment of the justice the case was appealed to the County Court of Madison county, where it was tried de novo by a jury, resulting in a verdict and judgment in favor of appellees.

From the record in this case it appears that the suit was instituted against the Commissioners of Highways in their capacity as a <pt<m-corporate body, but inasmuch as all the individuals named in the processes appeared and the case was tried upon the theory of individual liability of the persons named as Commissioners of Highways, we do not deem the mere form of the summonses and supersedeas of sufficient importance to require discussion here.

Appellant owns and occupies a farm in Leef township in Madison county. North of his farm is a public road extending east and west, and north of this road lies the farm of one Johanntosettle. The public road separates the two farms.

About fifteen years ago a former owner of the Johanntosettle farm erected a fence on his side of the road parallel with the road and planted a row of apple trees inside his fence. About ten or twelve years ago, Johanntosettle, having become the owner of this farm, constructed an embankment about two or three feet high and about a hundred and fifty yards long on the inside of his enclosure, parallel with the road. It is claimed by appellant that the fence, row of apple trees and the embankment are all encroachments upon the road as originally laid out. This, however, is a controverted question of fact.

It is-also claimed by appellant that the embankment obstructs the natural flow of the surface water from a part of his land. This is also a controverted question of fact.

It is conceded that the embankment was constructed years before any of appellees became Commissioners of Highways, but it is shown that during their term of office an unusual freshet made a small breach in it, and that J ohannto settle repaired it. This, however, was without the direction, consent or knowledge of any of appellees.

During the year 1905 a part of appellant’s crop was damaged by water, which he claims was caused by Johanntosettle’s embankment, and he claims that before that time he had complained to appellees that J ohannto settle ’ s “dam” held the water back on his land and that he requested them to have it removed. His suit is to recover damages from appellees for this injury to his crops.

Counsel for appellant, in stating their position, say: “The case for plaintiff was not tried on the theory that the Commissioners constructed the dam or embankment, or that they authorized its construction, but on the theory that it constituted an obstruction on the road, was a direct injury to the plaintiff, and that it was the duty of the defendants to remove it or cause it to be removed and to prevent its reconstruction, so as to avoid interference with the natural flow of the water and consequent injury to plaintiff’s land.”

It is conceded that the gwzs-i-eorporate body or territorial entity called in the record “Leef Township” cannot in any case be held liable for damages to persons or property caused by the tortious acts or omissions of duty on the part of any of its officers. And we understand the law to be that these officers can only be held personally liable for damages to persons or property with respect to the performance of their official duties, when under the guise or pretense of performing a duty they do an unlawful or tortious act, or when they perform some ministerial duty in a wrongful or negligent manner, or where they corruptly, wilfully or negligently fail to perform some mandatory duty.

The emhanlmient complained of was not within the boundary line of the road as the road was maintained and used by the public, and it did not obstruct or endanger public travel, none of appellees had anything to do with either its construction oí its maintenance, and the evidence does not show that any Commissioners of Highways or any other road or town officer had ever entered upon or assumed charge or control of the strip of land on which it is located, and this strip was and for at least fifteen years had been inside the enclosure of an abutting landowner and claimed by him, and it was a controverted question of fact as to whether it was within the boundary line of the road as originally laid out.

Under this state of facts, it was not the imperative duty of the then acting Commissioners to personally assume all responsibility and to take matters into their own hands and break or cause to be broken the close of Johanntosettle and to enter his possessions and level the embankment, at the mere request of another abutting landowner to whom the law would give adequate remedy by proper procedure directly against Johanntosettle, if appellant’s contention as to facts are all true.

We are of opinion that appellant failed to make a prima facie case against appellees or any of them, and that the verdict of the jury and the judgment of the trial court could not in reason have been otherwise than in favor of appellees, under the undisputed facts disclosed by the record in this case.

The judgment of the County Court of Madison county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    Manton Davis, Defendant in Error, v. Michael Munie, Administrator of the Estate of William Pohlman, deceased, Plaintiff in Error.
    1. Appellate courts—when judgment of, linding. The judgment of the Appellate Court rendered in the first appeal of a cause is res judicata in a second appeal as to all persons who were parties to the proceeding at the time of such first appeal, not only as to the questions actually decided, hut as to all questions which might have been decided if properly presented.
    Contested claim in Court of Probate. Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Winkelman & Baer, for plaintiff in error.
    Stanley D. Pearce and Wise & McNulty, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a claim by defendant in error, filed in the Probate Court of St. Clair county, against the estate of plaintiff in error’s intestate, William Pohlman. From the judgment of the Probate Court the cause was appealed to the Circuit Court of St. Clair county, where the case was tried de novo,, resulting in a judgment in favor of the plaintiff in error here, who was defendant in the Circuit Court. Defendant in error, who was plaintiff in the Circuit Court, prosecuted an appeal to this court, where the judgment of the Circuit Court was reversed and the cause remanded. See Manton Davis, appellant, v. Estate of William Pohlman, appellee, 128 Ill. App. 206. In pursuance of our remanding order the cause was reinstated in the Circuit Court and again tried, resulting in a judgment in favor of plaintiff, who is made defendant in error in this proceeding, for the sum of $6,260.26.

This case is returned to us in all material respects the same as on the previous occasion, with the exception only that upon the trial in pursuance of the remanding order, the Circuit Court, as it was bound by law to do, followed the opinion of this court, and rendered judgment in favor of the plaintiff. The same law that bound the Circuit Court to follow our former opinion binds us to adhere to that opinion.

Under the provisions of the Appellate Court Act the previous opinion rendered in a cause is of binding authority in that cause, not only upon the parties and the trial court, but also upon the Appellate Court. “Upon the second appeal of a case to the Appellate Court the judgment of such court rendered in the first appeal is res judicata as to all persons who were parties to the proceeding at the time of such first appeal not only as to questions actually decided but as to all questions which might have been decided if properly presented. ’ ’ Where the parties, the issues and the evidence are substantially the same, “the decision upon one appeal is res judicata upon a second appeal in the same case notwithstanding additional assignments of error may be made raising upon the second appeal questions which were not raised upon the first.” Leeds v. Townsend, 124 Ill. App. 582; Christensen et al. v. The People, 114 Ill. App. 40; Leroy Payne Co. v. Van Evra, 94 Ill. App. 356; Murphy v. Murphy, 93 Ill. App. 671; Wilson v. Carlinville National Bank, 87 Ill. App. 364.

We may say in this case as was said by the learned justice who wrote for the court in the case last above cited: “Under the provisions of the Appellate Court Act the previous opinion filed in this case is of binding authority herein, and however much disposed we might be to reconsider the reasons of the court for its decision expressed in that opinion, we have no right to do so. Such a practice would produce judicial chaos. That opinion and the reasons and judgment of the court, expressed upon the same facts in the same case before us, are binding upon the parties herein and upon this court. It would be as much impertinence for us, as it would have been for the trial court, to disregard our former opinion. The case has been disposed of by the trial court in conformity with the law as we have previously stated it, and independently of the binding authority of the former opinion, we are well satisfied with our view as therein expressed, and we affirm the doctrine contained therein.”

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    U. S. Short, Administrator of the Estate of Mollie Short, Deceased, Appellee, v. City of East St. Louis, Appellant.
    1. Evidence—what not undue restriction of cross-examination. Cross-examination is not unduly restricted by preventing the answering of questions calling for testimony which had been fully given in answer to other questions permitted.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. E. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Maurice V. Joyce, for appellant.
    W. E. Knowles and Keefe & Sullivan, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of St. Clair county, by appellee against appellant, to recover for the death of appellee’s intestate resulting from an injury caused by a defective sidewalk, along one of the public streets of appellant. Trial by jury. Verdict and judgment in favor of appellee for $5,700.

Upon this appeal one ruling of the trial court with respect to the admission of evidence is pointed out and challenged; with that exception, the appeal presents only questions of fact.

Counsel for appellee present a very full statement of the facts of the case, which we find from the evidence to be substantially accurate, and we adopt much of it in the following statement.

The sidewalk in question extends along the westerly side of Third street in the city of East St. Louis, and runs practically north and south. Third street is in the business center of the city, and the walk in question is one of its much frequented sidewalks. The natural surface of the ground where Third street is located is very low, so that in constructing the street a levee of eight feet in height was thrown up, held in place by retaining walls, and on top of this levee the street was built. Along the side of the street is a stone curbing, on which the easterly side of the sidewalk rests. The walk is about twelve feet in width and the space underneath the walk has never been filled, so that from the walk down to the ground beneath it, there is a drop of about six or eight feet. Many years ago a line of telephone poles were placed along this walk inside of the curbing. The walk was built of planks, extending crosswise, and these planks extended over the curb about four inches, and the curb, on which they rested, was from five to six inches wide, so that the "outer edge of the pole was in the neighborhood of ten inches west of or in from the outside edge of the walk. The cyclone that occurred in 1896, blew down one of these poles about 180 feet north of the intersection of Third street with Broadway—a street that crosses Third street at right angles. When this pole blew down, it was broken off about two feet below the sidewalk, leaving a hole in the walk that measured eleven inches the narrow way and fifteen and one-half inches from the curb toward the property line. From the outer edge of the walk to the side of the hole nearest the property line was a distance of two feet, so that this hole extended into the sidewalk about two feet from its outer edge. When the pole in question broke off it left a rotten snag remaining about two feet below the surface of the walk, as above stated, so that a person stepping into the hole, if he should step upon this snag, would go down about two feet, but in case he missed the snag the distance to the ground would be from six to eight feet. Soon after the pole blew down, someone nailed three boards, about' four or five inchés wide and a half inch thick, which had been taken from a dry goods box, over this hole; and the evidence tended to show that there had been no other or further repair made upon this defect from the time the pole blew down in 1896 until after the injury that resulted in the death of Mrs. Short. At the time of her injury, Mrs. Short was twenty-six years old, her normal weight was about 160 pounds, and she was in perfect health. She was the wife of Dr. U. S. Short, the administrator, a practicing physician of the city of East St. Louis. They had been married about two years, and at the time of her injury she was pregnant with an eight months’ child. On account of her pregnancy she was attempting to do her necessary shopping in the evening, and on the evening of the seventeenth of November, 1906, she left her home and started down Third street, a few blocks distant, to do some shopping. It was after dark and drizzling rain at the time, and as she approached the hole in question, the existence of which was unknown to her, she met one or two men who were traveling in the opposite direction on the same walk, carrying an umbrella, held in front of them to protect them from the rain, and in consequence thereof, did not notice the approach of Mrs. Short. As she came near them she stepped toward the outer portion of the walk to let them pass, and in doing so fell into the hole above described. At the time she fell into this hole there were a number of persons standing in front of a labor agency office that fronted this sidewalk a few feet away. These persons saw her fall into the hole, and, hearing her scream, ran to her assistance. When they got to her she was lying on her side with her face on the sidewalk, just as she had fallen. Her left limb was still in the hole and she was crying. Two of the persons first to reach her, lifted her out of the hole. . She was not able to stand and they carried her down to a store in the neighborhood and sent for an ambulance. She was taken to her home immediately and put to bed. Her husband, who is a physician himself, called to his assistance Doctor Culbertson, also a practicing physician of the city of East St. Louis, and gave her immediate attention. Her hip was dislocated, her ankle sprained and she was internally injured. Soon after being removed from the hole, pains denoting premature labor, came -on, and the doctors worked .to fight off a premature birth, which, however, resulted four days later, notwithstanding their efforts. From the time she was taken home, the testimony of the physicians in charge shows that she was very sick and so continued until her death. She was suffering from nervous shock and internal injuries occasioned by her fall, which brought on pernicious vomiting that continued uncontrollable until her death. On the night of November 22, 1906, premature birth occurred, and on account of her extreme weakness and exhaustion from the injuries she had received she was unable to withstand the shock and labor, and died about an hour after giving birth to the child, leaving her husband and infant child surviving.

With respect to the hole in the sidewalk complained of in the declaration and mentioned and described in the foregoing statement, the evidence tends strongly to prove and the jury was warranted in finding that the boards that had been nailed over this hole had been off, so that the hole was entirely uncovered for a period of from two to three weeks prior to the injury. Ten witnesses testify positively to this state of facts.

During the cross-examination of Dr. Culbertson he was asked by counsel for appellant the following question : “ Q. A woman, eight months gone, falling through a hole in the sidewalk, would the mere fact of her falling through that hole produce post-partum hemorrhage ? ” To this question the trial court sustained an objection, and counsel insist this was a material error.

The witness had just previously stated: “The mere fact that she fell into the hole in the sidewalk might not alone produce a post-partum hemorrhage. I could not say whether it would or not; if the lady was pained and disturbed and had premature labor, she might have a post-partum hemorrhage following it; the postpartum hemorrhage would be due indirectly to the accident, it would not be directly due to the birth of the child.” And following the question he stated: “The mere fact that she fell through this hole in the sidewalk seems to be the leading cause of her postpartum hemorrhage, it started the premature labor; the mere fact that there was a premature labor does not always produce post-partum hemorrhage, there can be premature labor without post-partum hemorrhage.” It is quite apparent that all that was of any value in the question was fully answered by the witness’ previous statement and subsequent reply.

We are of opinion that the trial court did not err in refusing to direct a verdict in favor of appellant, also that the ruling of the court in sustaining the objection to the above quoted question was not material error, and that the amount of the damages awarded is not so great as to warrant us in disturbing the judgment on that account.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Elder York and Margaret E. York, Appellees, v. Lyman C. Scott and L. D. Shryock, Appellants.
    1. Appeals and errors—what abstract should, contain. While an abstract need not contain portions of the record upon which no question is raised, those portions on which error is assigned should be so clearly and fully abstracted that there will be no necessity for the court or opposite counsel to inspect the record.
    2. Assignments—when subject to equitable defenses. An instrument not assignable at common law and not assignable by virtue of any statute in this state is taken by an assignee for value without notice, subject to all equitable defenses.
    Bill in chancery. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    J. C. Eagleton, McCarty & Arnold and Parker & Newlin, for appellants.
    Callahan, Jones & Lowe, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in chancery in the Circuit Court of Crawford county. There is set out in the bill an option contract for the leasing of certain oil lands in Crawford county, Illinois, as follows:

“Robinson, III., June 16, 1906.

“For the consideration of twenty dollars ($20) in hand paid and an after consideration of $19,180, nineteen thousand one hundred and eighty dollars, to he paid as soon as lease is accepted, we, Elder York and Margaret E. York, have this day bargained and agreed to lease our land to Lyman C. Scott or his assigns, said land being the north quarter (%.) section eleven, township six (6) north range 13 W., being in Oblong township, Crawford county, Illinois, 160 acres. Said lease to be at Ys royalty. Gas rental to be one hundred dollars, first well to be completed within 60 days from date, or damages of $50 to be paid. This agreement holds good for a term of (3) years from date.

“In witness whereof we have hereunto set hand and seal.

his

Elder X York, [Seal.]

mark

Margaret York. [Seal.]

Witness Ed. S. Baker.”

Attached to this contract was a certificate of acknowledgment, by Edward S. Baker, notary public.

It is fully and aptly stated and alleged in the bill that the above quoted agreement was procured to be executed and delivered by appellees to appellant Scott, by means of fraud and mistake, in this, that the clause: “This agreement holds good for a term of (3) years from date, ’ ’ was as agreed upon by and between the respective parties to be for a term of three days, instead of “(3) years,” as it appears in said agreement. It is alleged that Scott caused the agreement to be recorded, and afterwards assigned it to appellant, Shryock; that appellees were in good faith willing and ready to perform their part of the agreement according to the terms thereof as they were actually agreed upon and understood by them to be, and that appellants wholly made default. The prayer of the bill in substance is: That upon the final hearing the court will grant a decree changing and correcting said agreement or option and the record thereof, so as to conform to and express the agreement as made and intended to be entered into between complainants and said Lyman C. Scott, that it be made to say, “This agreement holds good for a term of three days from date”; that said agreement or option may be decreed to be no longer of any force and effect and that complainants have such other and further relief as their case may require, and as to equity and good conscience may seem meet and proper.

Upon final hearing had upon evidence produced in open court the court granted the prayer of the bill and rendered a decree in accordance therewith. From this decree appellants prosecute their appeal to this court.

While counsel have assigned upon the record many errors, they have only brought forward into their brief and argument three propositions that we deem of controlling importance.

It is insisted that the trial court erred in denying a motion of appellant Shryock to remove the cause to the United States Circuit Court, and as incident thereto, that the court erred in overruling a motion of appellant Scott “to be dismissed out of court.” They say that Scott had no interest in the case and that, Shryock, by filing his petition and bond to remove the cause, arrested the jurisdiction of the state court and removed the whole matter to the jurisdiction of the United States Circuit Court.

It is sufficient reply to these contentions to note that the abstract does not disclose either the contents or substance thereof, of any petition or bond by Shryock for the removal of the cause to the United States Circuit Court, nor of any motion by “Scott to be dismissed out of court.” “The courts should not be required to look into the record for the instruments referred to in the abstracts,” Richey v. Dunham, 50 Ill. App. 246. “The court cannot undertake to prepare proper abstracts or to search through the record for that which because relied upon, should be abstracted,” Klaas v. John Kauffman Brewing Co., 63 Ill. App. 319. While an abstract need not contain portions of the record in which no question is made, the portions on which error is assigned should be so fairly and fully abstracted that there will be no necessity for court or opposite counsel to inspect the record. Martin & Co. v. McMurray, 74 Ill. App. 44; Johnson v. Bantock, 38 Ill. 111; Lake v. Lower, 30 Ill. App. 500.

Counsel insist that appellant, Shryock, purchased the option agreement' from Scott for a valuable consideration and took an assignment of it in good faith, and that the evidence does not prove that he had' any part in the original transaction or any notice or knowledge with respect to the alleged fraud, prior to the time of his purchase; and they invoke the application of the innocent purchaser rule.

Shryock does not testify in his own behalf, and we do not feel called upon to discuss the weight of the evidence as to his guilty knowledge, in as much as in our opinion counsel’s position as to the law is unsound. The instrument in question was not assignable at common law, nor is such instrument made assignable by any statute of this state, nor did the instrument or the assignment of it convey any title to the property described in the instrument. It is an instrument of that class which an assignee must take, subject to any defense that would be valid between the original parties. We are of opinion that Shryock took the assignment of the option agreement from Scott with all its infirmities and subject to all defense that could have been made against it in the hands of Scott.

The only remaining question is as to the sufficiency of the evidence to support the decree. Appellee, Elder York, was an illiterate old man who could neither read nor write. He owned 160 acres of land in the oil belt of Crawford county, upon which he resided with his family. The oil industry was being, developed in his immediate neighborhood and this attracted speculating leasers and optioners from both near and far. One of these was Edward S. Baker, of Bobinson, who had made a number of unsuccessful efforts to secure a lease of this quarter section of land from the old man. On the morning of June 16, 1906, Baker went to the York farm in company with a stranger by the name of Lyman C. Scott, “a leaser of oil and gas lands,” who had been engaged in that business in the states of Pennsylvania, New York, Ohio, Indiana, Kentucky, West Virginia, Michigan, Canada and Illinois for twenty-five years. His first appearance on that business in Crawford county, Illinois, was but a few days before the transaction in question, in this case. He learned from Mr. Baker of old man York’s “160 acres being loose.” Mr. Scott was not a developer of such properties and did not intend to perform any of the terms of the proposed lease. He had no money to pay for a lease, and “that is the reason he took the option on it,” instead of taking the lease at once and paying-down the $20,000 bonus or lease money. He was a mere speculator and expected to sell the option “to Pittsburg or Toledo parties.” When Baker and Scott reached the York farm, they found Mr. York at the wood pile. There the matter was talked over and the terms of a lease agreed upon, the terms being as specified in the option agreement above quoted. Scott said he wanted three days to wire his company, and it was agreed that upon Scott’s paying $25 that day (the $25 was afterwards changed to $20), he should have a three days’ option, and that the balance of the $20,000 for the lease to be executed, was to be paid at the State Bank in Robinson on June 19th, and if the money was not there on that date the option agreement should be null and void.

After the terms of the proposed lease and option agreement had all been agreed upon, the parties went into the house where Scott wrote the option agreement above quoted and read it over to Mr. York in the hearing of Mrs. York, and their two sons, Beryl and Luther York, reading it as they had agreed it should be. ‘ ‘ This agreement holds good for three days. ’ ’ The agreement was then signed. About the time the agreement was being signed, Mr. York wanted his son Beryl to read it, and Beryl commenced to do so, but when he had read about four lines of it, Scott took it out of his hands, saying they were in a hurry. Immediately after the contract was signed, Scott paid Mr*. York $20 and he and Baker left for Robinson, leaving a carbon copy of the agreement with appellees. Upon their arrival at Robinson, Baker attached a certificate of acknowledgment to the agreement and filed it for record.

After Baker and Scott had gone, Beryl read the carbon copy and discovered that it read “ (3) years” instead of three days. Mr. and Mrs. York went immediately, that afternoon, to Robinson to find Scott to have the matter corrected, but failed to find him. They went again on the 19th to the bank where the money was to be paid, prepared to receive the money and execute the lease and found neither Scott nor the money there. Scott left Robinson the next morning after the agreement was signed and at the time of the trial of this case, had not been in that county since. On the twelfth of July Baker sold the option agreement to appellee Shryoek, and the proceeds of that sale were equally divided between Baker and Scott.

We think the evidence fairly establishes the facts above recited and that they are sufficient to warrant and sustain the decree.

The agreement as it was actually made, and as it was read to appellees and as they understood it to be, was reasonable. If the option should be accepted it would bring them almost immediately a considerable sum of money, and the early development of their property with large royalties. If not accepted, they would have the $20 earnest money and be free to lease to others at the end of three days. In the form in which it was fraudulently written, it tied up the land for three years for a mere nominal consideration, at the end of which time the option might not be accepted and by that time the development of surrounding lands might so drain the oil and gas from appelleés’ land as to leave it practically worthless.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    St. Louis & Northeastern Railway Company, Appellant, v. Phillip Sommerland, Appellee.
    1. Negligence—when collision result of. A collision caused by disobedience of orders is a collision caused by negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Terry & Gueltig, for appellant.
    C. H. Burton, for appellee.
   Mr. Justice Creighton

delivered the opinion of

the court.

This was a suit in case, in the Circuit'Court of Madison county, by appellee against appellant, to re- ' cover for an injury sustained by appellee while riding in one of appellant’s cars, as a passenger for hire. Trial by jury. Verdict and judgment in favor of appellee for $200.

Appellee had taken passage on one of appellant’s cars to be carried from Carlinville to Edwardsville, and when the car had progressed to a point about four miles from Edwardsville, one of appellant’s north-bound cars collided with it. The cars came together with such force as to “sweep from the floor” the dash and vestibule of one of them and to break a glass in the front vestibule and drive a trolley pole through the roof of the other, and to move the forward trucks of one of them back, about two feet. Appellee was injured, and claimed to be severely injured: Appellant contended that he was but slightly injured.

It is conceded that the collision was caused by the disobedience of orders by the motorman in charge of one of the cars, in failing to stop his car at a certain siding and wait for the other to pass. The state of the evidence makes a perfect case on behalf of appellee and discloses no defense on the part of appellant, except as to the extent and severity of appellee’s injuries.

It is contended here that the damage given is excessive. We are of opinion that the amount of damages assessed by the jury is clearly within the limit warranted by the evidence, and that no error has intervened that has prejudiced the rights of appellant. This case falls within that class where substantial justice has been done by the verdict and judgment of the trial court. In such cases slight errors neither call for nor warrant a reversal.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Henry Donelson, Jr., a minor, by Henry Donelson, Sr., his next friend, Appellee, v. The East St. Louis & Surburban Railway Company, Appellant.
    1. Instructions—when peremptory instruction should not be given. A peremptory instruction should not be given where the evidence lends to establish all of the averments of the declaration essential to a recovery.
    2. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Schaefer, Farmer & Kruger, for appellant.
    Daft McG-lynn, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in the City Court of East St. Louis, by appellee against appellant, to recover damages for a personal injury. Trial by jury. Verdict and judgment in favor of appellee for $8,541.75.

The declaration consists of three counts, and as disclosed by counsel for appellant in their statement of the case is in substance as follows: “In the first count appellee alleges that: On February 17, 1905, the appellant was engaged in operating street cars in and upon Missouri avenue in the city of East St. Louis, operated by electric power;'that appellee became a passenger on one of the cars at Collinsville and Missouri avenue to be carried eastwardly. That said car stopped at Eighth street and appellee alighted therefrom and was in the act of going north on the crossing made by the intersection of Eighth street and Missouri avenue across another track, which ran parallel, and while in the exercise of due care for his safety, appellant by its servants propelled another street car westwardly, and so carelessly and improperly drove and managed the same at a high and dangerous rate of speed, to wit; ten miles an hour, without any notice or warning of the approach of said street car, as to run the same over the plaintiff, crushing his legs, etc.

Second count alleges that while appellee was attempting to cross the westbound track of appellant on Missouri avenue at the street crossing made by the intersection of Missouri avenue and Eighth street, and while in the exercise of due care, the appellant, by its servants, so carelessly, improperly and negligently drove and managed a car at a high and dangerous rate of speed, to wit: ten miles an hour, as to run same over the appellee, crushing his legs, etc.

Third count alleges that while appellee was attempting to cross the westbound track of appellant on Missouri avenue at the street crossing made by the intersection of Missouri avenue and Eighth street, and while in the exercise of due care, appellant, by its servants in charge of one of its cars, so carelessly, negligently and improperly drove and managed the same without giving warning of its approach to said crossing, by bell or otherwise, as to run over plaintiff, crushing his legs, etc.

No question is raised on this appeal as to any ruling of the trial court with respect to the admission or rejection of evidence, nor as to the giving or refusing of any instructions except the refusing of those directing a verdict for the defendant, nor is it claimed if appellee is entitled to recover at all that the amount of liis judgment is excessive.

At the close of appellee’s evidence in chief and again at the close of all the evidence in the case, appellant moved the court to exclude all the evidence and to instruct the jury to find the defendant not guilty. This motion and instruction were each time presented as to the declaration as a whole, and as to each count separately. The court denied each and all of these motions and refused to give any of these instructions. This action of the court is assigned as error, and is the only error broright forward or noticed by counsel for appellant in either their brief or argument. It raises the sole question of want of evidence to support the verdict, and counsel’s only proposition is, that the judgment shall be reversed “without remanding.” In as much, however, as this error embraces all the evidence, we have examined it not for the purpose alone of ascertaining whether there is in the record any evidence tending to prove all that is requisite to appellee’s right to recover, but also with respect to the state and weight of the evidence.

The evidence is voluminous, the abstract of it covering 140 pages. This renders any detailed recital and discussion of it here impractical. We can only state our conclusions upon it as a whole. There is no fatal want of evidence, for there is evidence disclosed in the record, tending to prove every material allegation in each count of appellee’s declaration. It is clear from an impartial inspection of the record that appellee made a prima facie case. The trial court did not err in refusing to direct a verdict in favor of appellant.

The only remaining question, if we may assume that the state of this record calls for our judgment upon that question, is, whether the verdict of the jury is so manifestly against the weight of the evidence as to make it the duty of the court to set aside the verdict and grant another trial.

The record discloses that appellee’s prima facie case was strongly contested by appellant, both as to negligence on its part and due care on the part of appellee. With respect to these two questions there was great contrariety of evidence. In such state of case the constitution of the state makes the jury the sole judges of the credibility of the witnesses and of the weight of the evidence, and their judgment as to these must stand, unless it is so manifestly against the weight of the evidence as to make it apparent to the court that the verdict was not the result of the impartial and honest judgment of the jury, but that it must have resulted from mistake, or from partiality, prejudice, passion, or some improper motive, or condition. In Calvert v. Carpenter, 96 Ill. 63, the court says: “This court will not reverse the judgment of the trial court where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict. The truth is, the rule could not be otherwise without invading the province of the jury to determine the credibility of witnesses, and to say which of them are to be believed in case of a conflict. To do this would be to dispense with the essential functions of a jury, and thus destroy its utility altogether.”

We find no material error in this record. The judgment of the City Court of East St. Louis is affirmed.

Affirmed.


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    Andrew Trotier, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Schaefer, Farmer & Kruger, for appellant.
    Wise & McNulty, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison county, by appellee against appellant, to recover damages for a personal injury alleged to have been sustained by appellee by reason of negligence on the part of appellant. Trial by jury. Verdict and judgment in favor of appellee for $12,000.

Appellant has assigned many errors upon the record in this case, and counsel have argued a number of questions. As we view the case, we feel justified in stating at this time merely our conclusions upon these questions.

We are of opinion that each count of the declaration, submitted to the jury, states a cause of action. We do not find any instance in which the trial court materially erred in its rulings with respect to the admission or rejection of evidence. And we find no substantial error on the part of the trial court in the giving or refusing of instructions.

To our minds the serious questions in this case arise as to the state and weight of the evidence. Counsel for appellant strenuously insist that the trial court erred in refusing to direct a verdict in favor of appellant. We are not able to say that there is no evidence tending to prove appellee’s case, and while we think the trial court would not have been warranted in directing a verdict, still we are of opinion that as to credibility and weight the state of the evidence is such as made it the duty of that court to have granted appellant’s motion for new trial.

In as much as the judgment will be reversed on the ground that the trial court erred in denying appellant’s motion for a new trial, and as the case may be tried again we do not deem it necessary that we should attempt to detail the evidence, here; neither do we deem it proper to enter into any specific criticisms, or discussion, as to the apparent credibility of witnesses or weight of the evidence.

The judgment of the Circuit Court.is reversed and the cause remanded.

Reversed and remanded.


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    William Mertins, Appellee, v. Southern Coal & Mining Co., Appellant.
    1. Instructions—propriety of copying statute. Held, that an instruction which substantially copied section 18 of the Mines and Miners Act was not erroneous.
    2. Instructions—when upon interest of plaintiff properly modified. Held, that an instruction upon this subject is not improperly modified by adding thereto the following: “and weigh his testimony by the same tests as applied to other witnesses.”
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Schaefer, Farmer & Kruger and L. D. Turner, for appellee.

      Kramer, Kramer & Campbell, for appellant.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in the Circuit Court of St. Clair county, by appellee against appellant, to recover damages for a personal injury sustained by appellee while in the service of appellant as a coal miner in its mine. Trial by jury. Verdict in favor of appellee for $8,000. Remittitur $2,000. Judgment on the verdict for $6,000.

This suit is based on sections 18 and 38 of the Mines and Miners Act. The declaration charges in apt language, that appellee was injured and that appellant wilfully failed to comply with each and every provision of section 18, and that appellee’s injury was occasioned thereby.

The evidence tended to prove that appellee was in the service of appellant as a coal miner, Ms duties being to shoot down and load coal in a certain room in the mine, the room being about thirty-five feet wide and 300 feet long; that the roof in this room was composed of rock and slate “in wMch now and then appeared slips;” that these slips in the roof were dangerous conditions, and where they existed the roof was liable to fall and kill or injure the persons working thereunder; that after the coal was shot down in that room on March 19tli, there was a slip in the roof extending in a diagonal direction across the worMng place in that room; that tMs slip made the roof dangenerous and likely to fall; that on the forenoon of the 20th, about eleven o’clock, appellee went into the room in pursuance of Ms duty, and commenced to work under the slip, loading coal, and continued at that work until about half after one o’clock, when a portion of the roof fell upon Mm and very seriously and permanently injured him.

It is conceded that the mine examiner did not place any mark in or about the room indicating danger; that in his record, he made no mention of any dangerous conditions in that room; that he did not report to the mine manager that dangerous conditions existed in that room, and that appellee was allowed to enter the room to work. It is also admitted that the mine examiner did not inscribe on the walls of appellee’s working place, the month and day of his visit to that place, but it is claimed that he did make this inscription on a piece of board about a foot long and four or five inches wide, and placed it on the gob about eighteen feet back from the face. With respect to the other alleged breaches of duty, appellant claims that the mine examiner did examine the room in question on the morning of the 20th, and that he did not discover any dangerous conditions, and therefore there was no occasion for him to place any mark in or about that room indicating danger, nor to make mention of danger in his record, nor to report dangerous conditions to the mine manager, nor to prevent appellee from going into that room to work.

Appellant had in its service a duly qualified mine examiner who did go into the mine for the purpose of examining it before the men were allowed to enter, on the morning of the day appellee was injured. The controlling question of fact in this case is, did the mine examiner on that occasion in good faith examine appellee’s working place, for the purpose of ascertaining whether there were at that place any “unsafe conditions.” He testifies that he did, but his testimony is not conclusive of the question.

If he did in fact visit the room for the purpose of examining the working place therein and did examine it, the statute requires that he should have evidenced that fact by “inscribing on the walls of such working place, with chalk, the month and day of the month of Ms visit.” TMs he admits he did not do. The inscription he claims to have left on a small piece of board" on the gob eighteen feet back from the working face, is not the evidence the statute requires, and as a circumstance it furnishes no evidence that he actually examined that part of the roof that overhung the working place of the men whose duty it was to work at and near the face of that thirty-five foot wide room. It rather tends to prove that he did not go nearer to any part of the working place than where he left the board, eighteen feet away. Then there was the undisputed fact that there was a slip in the roof and that such slips are known by all experienced persons to be “unsafe conditions,” and there was evidence tending to prove that such slips are easily discernible. All these, together with the fact that he claims to have examined the working places in fifty to sixty other rooms and to have examined seven entries on that same morning all within two hours and fifteen minutes, we think warranted the jury in finding that such examination as may have been made was only a pretense, and was not the good faith examination which the law requires to be made for the safety of persons employed in the mines. We are of opinion the trial court did not err in refusing to direct a verdict in favor of appellant.

We are of opinion the trial court committed no material error in its rulings as to the admission or rejection of evidence, and we do not deem the questions raised with respect thereto of such importance as to demand discussion.

Counsel complain of the action of the trial court in the giving, modifying and refusing of instructions. The given ones complained of are appellee’s first and second. The first is section 18 and one clause of section 33 of the statute upon which the suit is based. The complaint is that the whole of section 18 is embraced in the instruction, and this it is suggested is error. No authority is cited in support of this position and so far as we are advised such an instruction has not been condemned, and we do not perceive any valid reason why it should be.

Appellee’s second instruction is as to the measure of damages, is in approved form, states the law correctly and is supported by the evidence.

Appellant’s fourth and ninth instructions are pertinent and state the law correctly, but all that is of any importance in either or both of them is fully embraced in the following instruction which was given on behalf of appellant.

“The court instructs the jury that if you believe from the evidence that a licensed mine examiner on the day in question, before the plaintiff entered the mine to work, in good faith, made a careful examination of the room in question, then even though you may believe that he made a mistake in passing upon whether or not this piece of slate was dangerous, such mistakes would not show a wilful violation of the statute, and the defendant is not liable for such mistake in this case.”

The court modified appellant’s fourteenth instruction, and it is contended this was material error. As asked, it was: “The jury are further instructed that while the law permits the plaintiff in a case to testify in his own behalf, nevertheless the jury have the right in weighing his evidence to determine how much credence is to be given to it, and to take into consideration the fact that he is the plaintiff, and interested in the result of the suit.” To this the court added “and weigh his testimony by the same tests as applied to other witnesses.” This modification of the instruction was not error. While the instruction has often been given in the form in which it was asked, still, it is not error to modify it by adding the words that were added by the court. That such modification of this identical instruction is proper, is expressly held by the Supreme Court in Henrietta Coal Co. v. Martin, 221 Ill. 460 (470).

Other refused instructions raise certain questions of law that we think are so fully settled by repeated decisions of both this court and the Supreme Court, as to relieve us from any duty to rediscuss them, i$ this case.

We find no substantial error in this record. The judgment of the Circuit Court is affirmed.

Affirmed.


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    John Lamb, Administrator of Estate of Joseph Wesley Lamb, deceased, Appellee, v. Kerrens-Donnewald Coal Company, Appellant.
    1. Master and servant—evidence competent to rebut charge of incompetency. Proof being offered that a complaint had been made to the master indicating a servant’s incompetency, it is error to exclude evidence offered by the master as to the result of an investigation of such complaint.
    2. Evidence—as to what expert testimony incompetent. Expert testimony is incompetent as to the general character' for competency of a mule driver.
    3. Evidence—res gestee; rule defined. Statements to be a part of the res gestee must be a part of the transaction which they explain. Statements or declarations must be so connected with the transaction which they explain that they form one of the characteristics of the transaction or form with it one continuous transaction.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. James E. Dunnesan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Wise & McNulty, for appellant.
    C. H. Burton, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case in the Circuit Court of Madison county by appellee against appellant to recover for the death of appellee’s intestate while engaged in the service of appellant as a track layer in its coal mine. Trial by jury. Verdict and judgment in favor of appellee for $2,500.

The declaration charges that appellant had in its employ an incompetent and unskillful driver, known by it to be such, and that upon the occasion of the injury causing the death of appellee’s intestate, this driver negligently and unskillfully drove a mule hitched to a car so that it collided with rails on a car in use by appellee’s intestate in the performance of his work as a track layer, thereby crushing him against a post and causing his death, and that on the occasion and at the time of his injury he was in the discharge of his duty and in the exercise of due care and caution for his own safety.

Appellant’s counsel urge a reversal of the judgment in this case upon four grounds, viz.: That there is no evidence tending to prove the mule in charge of appellant’s driver was either negligently or unskillfully driven on the occasion of the injury to appellee’s intestate, nor any evidence tending to prove that said intestate was exercising ordinary care and caution for Ms own safety; that the verdict is manifestly against the weight of the evidence; that the damages are excessive, and that the trial court erred in its rulings as to the admission and rejection of evidence.

We are of opinion that counsel’s first ground is untenable. To our minds the state of evidence disclosed is such that a court would not be warranted in holding that the evidence with all reasonable inferences deducible therefrom does not tend to prove the specified allegations of appellee’s declaration. As this case must be reversed for error of law and may be tried again, we will not enter into a detailed discussion of either the substance or the weight of the evidence. And as to counsel’s contention that the damages are excessive, the same reason justifies us in stating only our conclusion, and that is, that under the evidence disclosed, we would not be warranted in reversing the judgment of the trial court upon that ground.

During the progress of the trial testimony was introduced by appellee showing that a complaint had been made to the mine manager of the manner in which tile driver had performed his duties on one particular occasion, as tending to prove notice to appellant of the driver’s unskillfulness and incompetency. In response to this, appellant sought to prove by the mine manager that upon receiving such complaint he made an investigation, and he was asked, “what he found as a result of his investigation as to who was to blame.” The court sustained an objection to this inquiry.

This was error. Appellant was not bound to accept such complaint as true and act upon it without investigation. And if proper investigation was made and the driver found to be without fault or want of skill, with respect to the particular occasion complained of, such fact would have tended to refute all damaging-inferences deducible from that particular complaint.

A witness who had testified as an expert driver, was asked concerning- a particular circumstance, hypothetically stated, “whether or not that character of a driver would be a reasonably safe man to act as a driver in a mine?” The witness answered, “Well, in my judgment, he isn’t a safe driver.” This was error. This question calls for the opinion of the witness as to the general character of the driver with respect to his competency and skill. In such cases the question should be limited to the propriety and skillfulness of Ms conduct on the particular occasion. In tMs case it would be error to permit any hypothetical question based upon this circumstance, for the reason that the circumstance upon wMch the hypothetical question was based related to the moving of a mining maclfine, and we are of opimon that there is not such similarity between the kind of work and -the ordinary work of hauling coal in an entry, as was the case on the occasion of intestate’s injury, to warrant the admission of any answer an expert could make to any question that could be based upon that circumstance.

When the driver’s car collided with the rails on the car in nse by the intestate, the driver fell over the right hand side of the car; got np, saw intestate lying on the left hand side, and the intestate said to him, that “he could not get out of the way soon enough, he got caught between the prop and the rail.” The driver then left the intestate and went to find the assistant mine manager and on his way met James Camp. He found the assistant manager in the room of Charles Albrecht. The driver, Albrecht and Camp then went to the place where the intestate was lying, and the intestate then said to them that the driver “had run into him with his trip,” and that “he hollered at the driver to stop, but that he did not stop.” Appellant produced the driver as a witness and the court permitted appellee to prove the first statement, by him, as a part of the cross-examination, and permitted appellee to prove the second statement, by Camp and Albrecht.

Counsel for appellant insist this was error. As to the first statement, we are of opinion that it was within the limit of proper cross-examination and was clearly res gestae. As to the second statement, we agree with counsel in their contention that it was not res gestae and that the trial court erred in admitting it. Neither Camp nor Albrecht was present when the collision occurred and neither of them saw any part of it. The driver had spoken with the intestate and had left the scene, found the assistant manager and returned to the place of injury, having traveled four or five hundred feet, and found the injured man lying on the gob four or five feet from the track. A statement made by him at that time and under those circumstances was not res gestae; it was narration, and must be treated as a mere self-serving statement. Statements to be res gestae “must be a part of the transaction which they explain. The statements or declarations must be so connected with the transaction which they explain that they form one of the characteristics of the transaction or form with it one continuous transaction.”

Counsel for appellee states that not more than two or three minutes had elapsed between the time of the collision and the time the second statement was made and he cites cases in which statements and declarations have been held to be res gestae, where a longer time had elapsed than in this case. But in those cases the conditions were different. What is res gestae cannot usually be determined alone by counting the number of seconds or minutes that intervened between the physical acts of a transaction and a statement or declaration.

For the errors above noted the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


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    Henry Lauth, Appellee, v. Harrison-Switzer Milling Company, Appellant

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed.
    Opinion filed March 18, 1908.
    C. E. Pope, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case in the Circuit Court of St. Clair county, by appellee against appellant, to recover damages for a personal injury received by appellee while in the service of appellant, as a laborer in and about its mill. Trial by jury. Verdict in favor of appellee for $2,500. Remittitur $1,000. Judgment on the verdict for $1,500.

Appellee was a laborer fifty years old, and for a number of years prior to his injury was subject to epileptic fits. As his sister with whom he lived expresses it, these “falling spells would come on him every month at least and sometimes between.” He was otherwise an able-bodied man and had worked for appellant in and about its mill for ten years; not continuously but frequently, working sometimes for a period of three or four days, sometimes three or four weeks and sometimes three or four months; and he “did his work first class.”

The declaration upon which the case was tried consists of three counts. In each count it is charged, in substance, that on the sixteenth day of February, 1906, appellant negligently directed appellee to go upon the roof of a certain building about thirty feet high and to work near the edge of the roof, there being no railing or other means to prevent him from falling off of the roof and injuring himself, and that while at work there he was suddenly stricken with a fit, causing him to fall off the roof, whereby he was injured. (His right leg was broken and there was a cut or bruise above his left eye.) And in each count it is alleged, in substance: “That on said day and for several years prior thereto, he was a subject of epileptic fits, and by reason thereof his mind and reasoning faculties had become and were so impaired and weakened as to prevent him from knowing and appreciating the dangers of his employment, all of which the defendant well knew.”

It is conceded by counsel for appellee, that to warrant a recovery it was necessary for appellee to prove that his “mind and reasoning faculties had become and were so impaired and weakened as to prevent him from knowing and appreciating the dangers of his employment,” and that appellant knew of this condition or state of his mind and reasoning faculties.

The roof upon which appellee was directed to work was a flat roof, thirty-eight feet square, having a slope from the center towards the north side and the south side respectively of only eight inches. He went upon the roof by means of a stair-way, through the mill; and he xvas not required to go within fifteen feet of either edge of the roof, either in going to the place of his work or in performing it, after he got there. How or why he fell is not clearly disclosed,-—he did not testify in his own behalf, and no one saw him fall; however, in the Anew we take of the case this is not material.

If there were any dangers incident to the place where appellant had directed appellee to perform his Avork, they were perfectly open and apparent to any one in possession of his natural senses and having-sufficient mental capacity to know and appreciate so obvious and simple a situation.

There is no exidence tending to prove that appellee’s sight or any of his natural senses were in the least defective or impaired, and there is no evidence tending to prove that his natural mental capacity was in any respect below the average of persons of his occupation. And it may be here noted, that the declaration is not based upon the theory or claim that he was naturally deficient in any of these respects, but that by reason of his bodily affliction, “his mind and reasoning faculties had become and were so impaired and weakened as to prevent him from knowing and appreciating the dangers of his employment;” and that this “was well known” by appellant.

The only evidence as to his mental condition at the time of his injury or at any time prior thereto, was the • testimony of an expert on mental diseases, who in answer to a hypothetical question said: “In a very large per cent, of those cases the mentality is impaired, I should say 80 or 90 per cent.,” and on cross-examination said: “A person afflicted with epilepsy for a long time usually has his mental faculties impaired, but not always.” This, and the testimony of his sister, who said: “Before the injury he would forget things that I would tell him, his memory was weak; I would have to tell him everything what to do; it seemed to be getting worse on him; when he would meet people that he knew as well as I, he would study first, he would not know right away who they were.”

The foregoing quotations disclose every word of evidence as to his mental condition. The expert’s statement is not made with respect to appellee in particular, nor does he state anything as to the extent of impairment in the cases where it does occur, nor anything with respect to what particular faculties of the mind are or might be impaired in such cases. And the sister states only, that he had grown forgetful. Of all the people who knew him, associated with him and worked with him, not one is produced who says that his powers of perception, understanding and appreciating, or his reasoning faculties and judgment, were in the slightest degree impaired or imperfect. This state of evidence falls far short of placing appellee in the class of “mental incompetents.”

If it can be said that the evidence tends to place him in that class and that it was, at least in the first instance, a question for the jury, still, there is one material requisite lacking. There is no evidence tending to prove that appellant knew that appellee’s “mind and reasoning faculties had become and were so impaired and weakened as to prevent him from knowing and -appreciating the dangers of' his employment.” True appellant had knowledge of the fact that appellee was to some extent subject to epileptic fits, but there is no evidence tending to prove that any one connected with appellant or its business knew that this might “impair his mentality,” only the expert knew that, and he, even, did not know whether it had in fact done so in this case. Much less are we warranted in assuming that appellant must have known that appellee’s mentality was impaired to the extent charged in the declaration. It is also true that appellee’s sister test! fied that he had become forgetful, but there is no evidence tending to prove that any one in any way connected with appellant or its business ever observed, knew or heard of that. So far as the evidence discloses, no one but his sister had ever observed or heard of that.

Appellee failed to make a prima facie case, and the trial court erred in refusing to direct a verdict in favor of appellant. For this error the judgment of the Circuit Court is reversed. And the court finds as ultimate facts to be incorporated in the judgment, that appellant did not know of any lack of mental capacity on the part of appellee to know and appreciate the dangers of his employment; and that appellee was injured as a result of dangers incident to the business in which he was engaged, and that the risks thereof were assumed by him.

Reversed.


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    Fred Ramey et al., Appellees, v. Baltimore and Ohio Southwestern Railroad Company, Appellant.
    Instructions—approved form as to right of recovery for damage to crops resulting from overflow. An instruction upon this subject set forth in hcec verba in the opinion is considered and approved.
    Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Kramer, Kramer & Campbell, for appellant; Eb ward Barton, of counsel.
    Koerner & Koerner, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case in the Circuit Court of St. Clair county, by appellees against appellant, to recover damages to the crops and possessions of appellees, caused by the overflowing and flooding’ of their fields and farm, alleged to have resulted from wrongful and negligent acts of defendant. Trial by jury. Verdict in favor of appellees for $1,900. Remittitur $400. Judgment on the verdict for $1,500.

The declaration consists of two counts. Both counts are based upon the same charge of negligence and wrongful conduct, the first claiming damage for injury to crops for the year 1905, and the second, for the year 1906.

The trial court gave to the jury on behalf of appellees four instructions, one as to the requisites of a right to recovery on the first count and one as to the measure of damages; and like ones as to the second count. The instructions are designated in appellant’s brief and argument as plaintiffs’ instructions Nos. 1, 2, 3 and 4. One and three are the principal ones and are exactly the same, except one applies to the year 1905, and No. 3 applies to the year 1906. The other two simply lay down the rule for the admeasurement of damages, and are also alike, except that they apply to the respective counts.

Instructions numbers one and three are based upon the respective counts of the declaration, and fully and accurately disclose the theory of appellees’ case. No. 1 is as follows:

“The court instructs the jury that if they believe from a preponderance of the evidence that in the year 1905, plaintiffs were the lessees and in the rightful possession of the land described in the declaration and mentioned in the evidence as the eastern portion of the Brooks Farm, and that the waters naturally falling and draining upon said portion of said Brooks Farm, had been accustomed naturally to flow and drain therefrom into a natural depression or watercourse running from north to south and passing through and under a trestle of the Vandalia railroad, and if the jury further believe from a preponderance of the evidence that there is a natural stream or watercourse mentioned in the evidence as Caseyville Creek which has a well defined bed and channel and which prior to 1902 flowed in a southwesterly direction, at a distance of about 1,200 yards, more or less, southeast of the said Brooks Farm, and north of the defendant’s road-bed and track, until it arrived at a trestle of the defendant, at which point it turned to the south and continuing its course in a southwesterly direction emptied into Spring Lake, and if the jury further believe from a preponderance of the evidence that in the year 1902, defendant constructed a ditch along the north side of its road-bed for a distance of about one thousand yards and connected the east end of said ditch with said creek at a point immediately north of defendant’s said trestle, and if the jury further believe from a preponderance of the evidence that the natural course of said Caseyville Creek was thereby changed and the water therein was thereby diverted and flowed into said ditch and that the said defendant did cause, permit or allow said ditch to become clogged or dammed with rock, cinders or other matter, and that by reason of the defendant thus changing the natural course of said Caseyville Creek, if the jury believe from a preponderance of the evidence it was so changed by the defendant, and defendant’s causing or allowing said ditch to become clogged or dammed, if the jury believe from a preponderance of the evidence defendant did cause or allow said ditch to become clog’ged or dammed, the waters flowing in said creek and said ditch were in the spring of 1905 forced and carried in a northwestwardly direction towards, through and under the trestle of the Vandalia first above mentioned, and into the natural watercourse which served as a drain for the said Brooks Farm, and on to and upon the said Brooks Farm, or that the said water, together with the drift and sediment which was carried with it, flowed into and clogged and dammed said above mentioned watercourse and trestle which served as a drain for the said Brooks Farm, and prevented said watercourse from draining said farm in as adequate and sufficient a manner as it would otherwise have done, and if the jury further believe from a preponderance of the evidence that the plaintiffs were thereby damaged as charged in the first count of the declaration, then the jury should find for the plaintiffs on the said first count.”

We are of opinion that the above quoted instruction is free from substantial error in both form and substance; that it discloses all the requisites of a right to recover, and that the evidence tends to prove each and every requisite. And we find the same to be true as to instruction No. 3, based upon the second count of the declaration.

Instructions two and four, as to the measure of damages, are in harmony with the rule laid down by this court in the recent case of Baltimore and Ohio Southwestern Railroad Company v. Robert B. Stewart, 108 Ill. App. 652. And we think these instructions were not such in form and structure as could have misled the jury. And we are of opinion that the trial court did not commit material and prejudicial error in modifying appellant’s seventh instruction, nor in refusing its first, second and third.

Appellees had presented a claim against the receiver of the Terre Haute & Indianapolis Railroad Company, lessees of the St. Louis, Vandalia & Terre Haute Railroad Company, for damages claimed to have accrued to them by overflow of their crops caused by certain wrongful acts of' these companies, prior to the year 1904, and this claim was compromised by appellees accepting $1,250, and signing a release to said receiver and his companies from all claims for damages up to July 8, 1904. Appellant offered this release in evidence, the court sustained appellees’ objection to its admission, appellant’s counsel duly excepted, and here claim that this ruling of the court was material and reversible error; and say: “This release ought to have been received in evidence and to have been held a bar to this suit.”

That release was only “for damages complained of up to this eighth day of July, A. D. 1904.” The damages upon which that claim was based and the release finally signed in settlement of that claim are in no way involved in the case at bar. The damages in that case had all accrued, settlement had been made, the money paid and the release signed, long .before the damages in the case at bar began to accrue, and further, there does not appear to be any connection between the two injuries nor any privity of relation as to the respective parties. We are of opinion the trial court did not err in refusing to admit the release offered in evidence, for the purpose and on the grounds contended for here.

We find no error in this record that in our judgment would warrant us in interfering with the judgment of the trial court.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Emma Clark, Administratrix of the Estate of Dalton Clark, deceased, Appellee, v. O’Gara Coal Company, Appellant.
    1. Abatement—what action survives. An action for personal injuries instituted under the Mines and Miners Act survives the death of the plaintiff.
    2. Witnesses—when widow incompetent. A widow is Incompetent in an action for personal injuries commenced by her husband in his lifetime and carried on after his death by his representatives, as to matters which occurred during the existence of the marriage relation.
    3. Instbxjctions—impropriety of phrase “Tcnowingly negligent” in action charging wilful violation of statute. An instruction in an action for personal injuries instituted under the Mines and Miners Act which employs the phrase “knowingly negligent” is erroneous.
    4. Instbuctions—when upon credibility of witnesses erroneous. An instruction is erroneous which tells the jury that they may disregard the testimony of any witness who has “knowingly testified untruthfully.”
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. W. W. Dxjxoan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    M. S. Whitley and E. E. Denison, for appellant.
    John L. Thompson, James B. Lewis and Choisser, Choisser & Kane, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Saline county, commenced by Dalton Clark, in his lifetime, against appellant to recover damages for a personal injury sustained by him, while engaged in the service of appellant as a “eager” in its mine; after the suit was commenced and before it was tried, he died from causes in no way connected with the injuries upon which his suit was based; his death was suggested; Emma Clark, as administratrix of his estate, was substituted as plaintiff, and was allowed by the court to continue the prosecution of the case. Trial by jury. Verdict and judgment in favor of appellee for $1,000.

The two counts of the declaration upon which the case was submitted to the jury, as abstracted by counsel for appellant in their statement, are as follows: “The first count charges that the defendant was operating a coal mine in Saline county, Illinois, and that Dalton Clark was employed as a eager in said mine; .whose duties were to place cars loaded with coal upon the cages at the bottom of the mine; that the defendant wilfully permitted a large quantity of loose lumps of coal to be and accumulate at and near the edge of the top of its shaft at the lower landing; that by reason of such wilful failure of the defendant to comply with its said duty, the said Dalton Clark, while engaged in placing a certain loaded car upon the cage, was struck upon the left arm by a lump of coal of the weight of four pounds which fell from the said lower landing to the bottom of the shaft, and his arm was thereby broken.”

“The second count charges the same employment of the plaintiff, and that the defendant wilfully failed to keep the lower landing at the top of its shaft securely fenced with automatic or other gates, so as to prevent materials from falling into said shaft; that by reason of said wilful failure, Dalton Clark was struck upon the left arm by a lump of coal which fell from said lower landing and his arm was thereby broken. ’ ’

Counsel for appellant contend that the cause of action did not survive the death of the intestate, and that the trial court erred in allowing the administratrix to be substituted as plaintiff, and in allowing her further to prosecute the suit.

Section 14 of the Miners Act, provides as follows: “For any injury to, person or property occasioned by any wilful violation of this act or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby.” Hurds, 1897, 1901. And section 122, chapter 3. Hurds, 1897, 129, provides: “In addition to tlie actions.which survive by the common law, the following shall also survive: * * * Actions to recover damages for an injury to the person. * * * ’ ’ This was an action commenced by the intestate in his lifetime to recover damages for an injury to his own person,—damages that had accrued to him in his lifetime. We are of opinion that this case clearly comes within the language, meaning and purpose of the statute, and that the trial court did not err in holding that the action survived the death of the intestate.

Counsel further contend that the trial court erred in refusing to direct the jury to find for appellant, for want of evidence to support the declaration. While there is a contrariety of evidence and as to some features of the case, a direct conflict, we are of opinion that the evidence with the reasonable inferences dedncible therefrom tends to prove every material requisite to a recovery under both counts of the declaration, and that the court did not err in refusing to direct a verdict.

The administratrix was the widow of the intestate and the court permitted her, over appellant’s objection, to testify to material facts that occurred during his lifetime, while she was his wife. This was as much his suit within the meaning of the Evidence Act, when it was tried, after his death, as it was when he commenced it. The suit was commenced by the intestate for his own benefit and it survived for the benefit of Ms estate, and not for the. benefit of the widow, or cMldren or next of kin. She would not have been a competent witness to testify to the facts she did testify to, if the case had been tried in Ms lifetime and his death did not render her competent in this character of case. If the husband had died of the injury and she or any other admimstrator had instituted suit under the statute, to recover damages resulting from Ms death to the widow and next of kin, then she would have been a competent witness, for such suit would not be the husband’s suit, nor would it be a suit for the benefit of Ms estate.

Section 5 of the Evidence Act provides: “ No husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution,” except * * * TMs case does not fall under any of the exceptions.

The words above quoted from section 5 of the Evidence Act, merely declare the common law as it was held in this state, before the adoption of section 1 of the act. Waddams v. Humphrey, 22 Ill. 661. “And the principle is further preserved by adhering to the rule even after the marriage tie has been dissolved by the death of one of the parties.” Neubrecht v. Santmeyer, 50 Ill. 74 (76). And the same rule applies where the marriage tie has been dissolved by divorce. Rea v. Tucker, 51 Ill. 110; Griffeth v. Griffeth, 162 Ill. 368. This rule is not limited to the confidential disclosures, but extends to all transactions, occurring during the marriage. Reeves v. Herr, 59 Ill. 81 (85). Where the administrator of an intestate is a party to a suit, the surviving widow of the intestate is, as a general rule, incompetent to testify either to “matters or conversations” occurring during the marriage. Yokem v. Hicks, 93 Ill. App. 667 (670). We are of opinion that the trial court erred in permitting the widow of the intestate to testify to material transactions and matters occurring during the marriage.

The court gave to the jury on behalf of the plaintiff fourteen instructions, and counsel for appellant challenge five of them: The first, second, third, ninth and twelfth. We are of opinion that the challenge is well taken as to the first, third and twelfth.

The first and third instructions tell the jury that if they believe from a preponderance of the evidence “that the defendant was knowingly negligent” as set up in the declaration, and that Dalton Clark was thereby injured, they should find the defendant guilty. Both counts of the declaration are based upon provisions of the statute which impose liability only for wilful violation of its requirements. The language “knowingly negligent,” is to say the least misleading. The declaration is not based upon negligence, nor upon any state or case which does not require more than mere negligence. It is based upon a wilful violation of the statute, and negligence is not “set up in the declaration.” It is argued by counsel for appellee that to be knowingly negligent with respect to the requirements of the statute is to be guilty of its wilful violation. However this may be in any particular case, still, the language used in the instruction would tend to confuse the issue, and mislead the jury.

The twelfth instruction is with respect to the credibility of witnesses, and tells the jury, in effect, that they may disregard the testimony of a witness if they believe from the evidence that he has “knowingly testified untruthfully.” The jury may refuse to believe a witness as to a particular fact testified to by him, if they believe from the evidence that he is either mistaken as to such fact, or has testified untruthfully with respect thereto, but his testimony may not be disregarded to the extent of placing him in the class of impeached or uncreditable witnesses because he may have made an untruthful statement as to some particular fact, unless such untruthful statement was both wilfully and knowingly made, and was with respect to some matter or fact material in the case.

For the errors above noted, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Myers

text:
    R. B. Sinnickson, Appellant, v. William Richter, Appellee.
    1. Contracts—when language of, loill not be construed. If a contract is clear, the language employed will be given its full force and effect.
    2. Negotiable instruments—what essential to establish defense of fraud in execution. Fraud in the execution sufficient to bar recovery upon a note in the hands of an innocent third party, must pertain to the signature and the delivery, and the evidence must go to the extent of showing that the maker did not know or understand the kind of instrument he was executing.
    Attachment. Appeal from the Circuit Court of Effingham county; the Hon. S. L. Dwight, Judge, presiding.
    Heard in this court at the February term, 1907.
    Reversed and remanded.
    Opinion filed September 13, 1907.
    Rehearing denied February 27, 1908.
    W. S. Holmes, for appellant.
    Wright Bros., for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

On November 10, 1896, Sylvester F. Gilmore gave to B. B. Sinniekson, appellant, his promissory note for $20,700, payable in five equal annual installments commencing January 1, 1898, with seven per cent, annual interest from January 1, 1897. Upon the back of the note was written the following guaranty, signed by fifty-eight persons, the appellee, William Biehter, being one of them.

“Effingham, Illinois, Nov. 10. 1896.

In consideration of the acceptance of the within note of S. F. Gilmore bearing even date herewith, by R. R. Sinnickson, we severally agree that if said Gilmore shall fail to pay the same as the installments mature, that we will each pay to the said Sinniekson the amount of three hundred forty-five ($345) dollars, with seven per cent, annual interest from January 1, 1897, the same to be paid only in instalments as they mature, acor ding to the said note of the said Gilmore, and it i's expressly understood that the liability which is several and not joint, of the subscribers hereto, shall in no event exceed the sum of $345 as above stated, and payable in five equal annual installments, commencing January 1, 1898, and it is further understood that if the number of persons executing this agreement shall exceed sixty, then the individual liability of each shall be only the amount of the note of said Gilmore, divided by the number of signatures hereto.”

This suit was brought by appellant in attachment in August, 1901, to recover from appellee the sum guaranteed, $345, and interest. The defendant was duly served and at the October term of the court filed two pleas to the declaration, the first being the general issue and the second setting up fraud "and circumvention by Gilmore, the maker of the note, in procuring defendant’s signature to the guaranty. A demurrer to the second plea was interposed and overruled, after which issues were joined. At a later term the case was tried by a jury, which returned a verdict for the plaintiff. This was set aside, a new trial granted and the case continued from term to term until October, 1906, when it was again tried and a jury returned a verdict for the defendant. A motion for a new trial was overruled, judgment entered on the verdict and the plaintiff appealed to this court. Exceptions were preserved and error duly assigned upon the action of the trial court, in giving and refusing instructions, in ruling upon the admission and exclusion of evidence, in denying the motion for a new trial, and in rendering judgment for the defendant.

At the time the suit was brought nothing had been paid on the Gilmore note of $20,700. At the time of the trial it was admitted that there was still due and unpaid March 1, 1906, the sum of $3,292.92, and with interest at seven per cent, from that date would be the sum due on the day of trial. By the terms of the within guaranty copied into the statement of this case, appellee agrees to pay appellant the sum of $345 with interest at seven per cent, from March 1, 1897, in case Gilmore fails to pay his note of $20,700 according to its terms. The only qualifying provision as to the measure of appellee’s liability is in the statement that if the number of persons executing the agreement exceeds sixty, then the individual liability of each of the guarantors shall be the amount of the note divided by the number of signatures to the guaranty. The number of signatures did not exceed sixty, so that a reduction in the sum to be paid by apportionment is not within the terms of the written obligation.

This is an action at law upon a written contract and in determining the rights and obligations of the parties, the court may not give to the instrument a meaning different from that expressed by the writing. In law the parties are held to the contract they have made and entered into, and the writing, when clear and unambiguous, is conclusive of its terms. In this case there is nothing in the language used or in the terms and provisions embodied that admits of a double or doubtful meaning calling for construction or interpretation. It may not be construed to mean other than what is clearly expressed. Unless the appellee can maintain the defense set up in the second plea, viz., that his execution of the guaranty was procured by fraud and circumvention, he is liable to the payment of $345, with interest according to the expressed terms of the writing.

Upon the issue made by the second plea the verdict is manifestly against the weight of evidence. So far as appears in evidence appellant is an innocent holder of the paper, that is, he is in no way connected with the alleged fraud and circumvention. The writing was signed by appellee and delivered and entered into the consideration upon which Gilmore’s note was accepted by appellant. To release appellee and bar recovery under the pleading it should appear that the fraud or circumvention practiced by Gilmore upon appellee, at the time he signed the guaranty, was such as to deceive appellee to the extent and purpose that he did not know or understand the kind of instrument he was signing, but acted under the belief that it was another and diferent kind of instrument—or to conform with his testimony in this case, he must have acted under the reasonable belief that it was a paper in which there was no obligation, “nothing to pay.” The fraud or circumvention which will avail as a defense to a written instrument in the hands of an innocent party must pertain to the execution of the instrument, that is, must relate to the signature and delivery. It is not sufficient that there were false representations as to matters that entered into the consideration for signing the paper, or that by false and misleading statements the party was induced to execute the writing which otherwise he would not have done. If, by such representations, he has been wronged he must look to the party who wronged him, for in such a case the law will not allow his defense if made against an innocent party, one who had no part in the fraud complained of. Another proposition is to be considered in this connection. It is well settled in this state that to escape liability on a written instrument on the ground that execution of the instrument was procured' by fraud or circumvention, the party who so alleges must show that in executing the instrument he exercised reasonable and ordinary precaution to avoid imposition. Taylor v. Atchison, 54 Ill. 196; Wilcox v. Tetherington, 103 App. 404, and cases there cited. The principle of those decisions is aptly stated in Upton v. Tribilcock, 91 U. S. 45. The court says: “It will not do for a man to enter into a contract and when called upon to respond to its obligations to say that he did not read it when he signed it or did not know what it contained. If this were permitted contracts wonld not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract and if he will not read what he signs he alone is responsible for his omissions.”

In Taylor v. Atchison, supra, the court says, as to the precaution required: “If able to read readily, he should examine the instrument, or procure it to be read by some one in whom he can place confidence. If he is unable to read, or does so with difficulty, then he may avail himself of the usual means of information, by having it read by some person present. He cannot act recklessly, disregard all usual precautions to learn the contents of the instrument and then interpose the defense against an assignee.” As the judgment is to be reversed and the cause remanded, we refrain from further comment upon the evidence, except as may be necessary in discussing other errors to be considered. The testimony of witnesses—signers to the guaranty contract—to conversations with Judge Gilmore in the absence of both plaintiff and defendant in this suit, was inadmissible and highly prejudicial to appellant. The issue on trial was whether or not the signature of appellee had been procured by fraud and circumvention practiced upon him, and it in no way tended to enlighten the jury upon that question to prove conversations between Gilmore and others. The case of Lockwood v. Doane et al., 107 Ill. 225, cited by appellee as authority for the admission of the evidence to which we have alluded has no application in this case. In actions to set aside the sale or purchase df goods in fraud of creditors, in which the intent of the parties to such sale is the gist of the action, it is permitted to prove representations made in other purchases and sales at or about the same time, or to show the manner in which the party charged with fraud recently obtained goods from creditors, and the manner in which he disposed of them. What Gilmore intended or what Gilmore said to any person other than appellee would be wholly outside the question, whether or not appellee’s signature to the guaranty contract was procured by fraud and circumvention. For the same reason the testimony of Eversman and Bergfeldt, after the plaintiff had closed, was incompetent, improper and irrelevant, and should have been excluded. The plaintiff’s second instruction was rightly refused for the reason that it took from the jury the question whether or not the defendant exercised reasonable or proper precaution in signing the guaranty. It was for the jury and not the court to say what he should have done under the circumstances appearing in evidence in order that he may not be held to negligence and lack of proper precaution. Appellant’s third instruction is a correct statement of the law applicable in the case and should have been given. Complaint is made of appellee’s first and fourth given instructions. The first is not in accord with our construction of the contract as herein expressed, and it was error to give it. The fourth instruction is not subject to the criticism made and the proposition of law therein stated is substantially correct. For tlm errors indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.