text:
    Bertha M. Parkin, Administratrix, Appellee, v. Chicago, Peoria & St. Louis Railroad Company, Appellant.
    1. Evidence—effect given to negative. The testimony of witnesses who were occupied with their work to the effect that at such time a locomotive bell was not rung, is entitled to little weight as against positive evidence to the effect that such bell was rung.
    2. Evidence—when habits of care competent. There being no eye-witness to the accident as an entirety, evidence of the careful habits of the plaintiff’s intestate is competent upon the question of the exercise of ordinary care.
    3. Evidence—effect of proof of habits of care. The presumption of care which arises from proof of habits of care is not conclusive.
    4. Contributory negligence—when driving upon railway constitutes. Held, under the evidence in this case that the plaintiff’s intestate in driving upon the railroad crossing in question under the circumstances shown to exist, was guilty of contributory negligence which barred a recovery.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Bellatti & Barnes, for appellant; Wilson, Warren & Child, of counsel.
    Layman & Morrisey, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for wrongfully causing the death of appellee’s intestate, William T. Parkin. The negligence alleged in the declaration is the failure of appellant to sound a whistle or ring a bell upon its locomotive while approaching the crossing of a public highway, as required by statute. A trial by jury in the Circuit Court of Morgan county resulted in a verdict and judgment against appellant for $4,500.

At about 5 o’clock p. m., on November 14, 1905, the deceased left Loami with a horse and buggy to go to his home at Waverly and arrived at the crossing where he was killed, a distance of about eight miles from Loami, about 6 o’clock p. m. The railroad track of appellant runs in a northeasterly and southwesterly direction and the highway upon which the deceased was driving west, runs east and west. Extending for a distance of about 600 feet on the east side of appellant’s right of way and north of the crossing there was an embankment from seven to nine feet in height upon which there was a growth of weeds and grass about two feet in height, and at a point about 1,000 feet north of said crossing appellant had a railroad bridge about 125 feet in length, and still further north was located the whistling post where crossing signals were customarily commenced to be given as the train approached the crossing in question from the northeast. East of appellant’s right of way and north of the highway there was a field of, standing corn about eight feet in height. At a point on the east and west highway about one-fourth of a mile east of the railroad crossing there is a wagon bridge over a creek. Pro-, ceeding west from the bridge on said highway toward the railroad crossing the road rises to an elevation from which a person riding' in a buggy has an unobstructed view of a train running southwest upon appellant’s track for a distance of a mile to a mile and a half north of the point where such track crosses the highway, and such view is not obstructed until at a point about fifty feet east of the railroad track where the highway gradually inclines to said railroad track. The train which struck the deceased at the crossing was going southwest and consisted of a locomotive and two passenger coaches. The evening was dark and cloudy and the lamp in the locomotive headlight and the lamps in the passenger coaches were lighted. It is established by the evidence that the deceased was familiar with the highway and with the railroad crossing, and that he must have been driving at a speed of about eight miles an hour. All of the witnesses testified that as the train approached the crossing from the northeast the usual preliminary crossing signal, consisting of two long and two short blasts of the whistle, was sounded at or near the whistling post north of the crossing, and that shortly thereafter and before the crossing was reached, two long and two short blasts of the whistle were again sounded. The evidence tends to show that the train was then running at a speed of from thirty to thirty-five miles an hour.

William B. Turnbull, a witness called on behalf of appellee, testified that as the train approached the crossing he was milking cows in his barn about sixty rods north of the track; that he heard the rumbling of the train and heard the whistles sounded as heretofore stated; that the wind was blowing hard from the south and west and that he did not hear any bell ring.

Fred Wright and Walter Deatherage, witnesses called on behalf of appellee, testified that they were driving south upon a road about 100 yards west of appellant’s right of way when they heard the train whistle as before mentioned, and that they heard no bell ring; that they were riding in a heavy two-horse wagon equipped with oil and gasoline tanks and buckets in an iron box; that as they drove along they were engaged in conversation.

Edward Nolan, the locomotive engineer, A. B. Boss, the fireman, C. A. Coleman, the brakeman, and George M. Porter, the conductor, were called as witnesses on behalf of appellant.

Nolan testified that immediately after he sounded the first two long and two short blasts of the whistle he pulled the bell rope and that the bell then rung continuously until the crossing was reached; that as he approached the crossing he saw what he supposed to be two horses running away; that he did not notice the train strike anything; that the locomotive was running backwards with the tender in front and the headlight on the tender, and that the headlight was twelve feet above the rail.

Boss testified that when the engineer first sounded the whistle he got down' to fire the engine and that he heard the bell ring; that as he was busy firing he heard nothing more until he heard the air brakes applied.

Coleman testified that he was sitting in the rear car of the train at an open window; that he heard the bell ring from the time the whistle was first sounded until it was sounded the second time; that almost simultaneously with the second sounding of the whistle the air brake was applied.

Porter testified that he heard the bell ring after the whistle was first sounded until the train went on to the bridge, when he was unable to hear it by reason of the rumble of the train on the bridge, and that he heard it again just as soon as the train passed over the bridge.

Upon the question as to whether or not the bell was rung during the interval when the whistle was not sounding, the evidence of the witnesses called on behalf of appellee is negative in its character and entitled to comparatively little weight in view of the fact that they were preoccupied with work and conversation having no relation to the subject-matter of the inquiry, and the further fact that the strong wind then blowing from the south would have a tendency to carry the sound of the bell, if it was ringing, in an opposite direction from the position which they occupied. But waiving a consideration of the weight of the evidence bearing upon that question, it was incumbent upon appellee to show not only that appellant was negligent as alleged but that the deceased was in the exercise of due care and caution for his own safety when he approached the crossing, and that the alleged negligence of appellant was the proximate cause of his death. The deceased was familiar with the road on which he was traveling and with the railroad crossing over which he was required to pass, and being a man of mature years and unimpaired faculties he must be held to have known that such railroad crossing was a place of danger. Upon a careful consideration of the evidence bearing upon the location of the public highway with reference to the track of appellant, and the opportunity which was thus afforded the deceased from his position on such highway to observe the approach of a train with the lamp in the headlight of the locomotive lighted and the passenger coaches illuminated, it is incomprehensible that he should, while in the exercise of due care for his own safety, have driven upon the crossing directly in front of such train. That in his haste to reach his home in Waverly, as the evidence tends to show, he misjudged the proximity of the approaching train to the highway and took the chance of crossing appellant’s track before the train reached the highway, or that absorbed in his own meditations he drove upon the crossing without exercising any precaution to observe whether or not a train was approaching, are much more reasonable solutions of the problem. Upon the issues of proximate cause and the contributory negligence, if any, of the deceased, we are impelled to the conclusion that the verdict of the jury is against the manifest weight of the evidence.

The court did not err in overruling the motion made by appellant to strike from the record the evidence of witnesses who testified on behalf of appellee to the effect that the deceased was a man of careful habits. The motion was predicated upon the ground that Nolan, the engineer, was an eye witness of the accident. Nolan did not see the deceased, or the conveyance in which he was riding, or the accident which resulted in his death. As before stated, he merely testified that as he approached the crossing he saw what he supposed to be two horses running away. In this state of the proof evidence as to the habits of the deceased regarding care and caution for his own safety was proper to be considered by the jury. C. & A. Ry. Co. v. Wilson, 225 Ill. 50.

The eighth instruction given at the instance of appellee is as follows:

“The court further instructs the jury that if you believe from all the facts and circumstances in evidence in this case that there is no direct testimony showing that the deceased was not using due care and diligence for his personal safety at the time he was alleged to have been killed, and if you further believe from all the evidence that the deceased was in possession of all the ordinary and mental faculties of an ordinary person, and that he was a man that used due care and diligence for his personal safety in traveling upon the highways or crossing railroads or other places of danger, then the jury may find by their verdict that the said William T. Parkin, deceased, was at the time he is alleged to have been killed in the exercise of due care and diligence for his personal safety. ’ ’

No witness in the case gave direct testimony as to the conduct of the deceased tending to show that he was not exercising due care and diligence for his personal safety at the time he was killed, but the absence of such testimony did not operate to make the presumption arising from proof as to his habits regarding care and caution and from the natural instincts of self-preservation conclusive. The instruction was calculated to mislead the jury by excluding from their consideration facts and circumstances disclosed by the evidence relating to the manner in which the train was operated and the ability of the deceased to observe the train as he was driving upon the highway, which was not in the nature of direct testimony as to his conduct regarding due care for his own safety.

Objection is made to the instructions given on behalf of appellee regarding the duty of appellant to ring a bell or sound a whistle as required by the statute. Taking all of the instructions upon that subject together the jury were correctly advised as to the statutory duty of appellant in that regard.

The 16th and 18th instructions relating to the assessment of damages given at the instance of appellee are inaccurate in failing to confine the jury to the evidence.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    John C. McMann, Administrator, Appellee, v. Illinois Midland Coal Company, Appellant.
    1. Infants—effect of commencement of suit in name of. The commencement of a suit by an infant in his own name is a mere irregularity which may he cured hy amendment and after his death his administrator may he substituted and the suit then proceed.
    2. Master and servant—what essential to application of doctrine of assumed rish. The doctrine of assumed risk will not preclude a recovery by a young inexperienced servant unless it appears not only that he knew of the defect in the appliances which resulted in the injury, hut likewise that he appreciated the danger arising from the use of such appliances in the particular manner which caused such injury.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Brown, Wheeler, Brown & Hay, for appellant; Mastin & Sherlock, of counsel.
    J. G. Friedmeyer, Robert H. Patton and Lawler & Bernard, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit originally instituted by Edward Lucian against appellant to recover damages for personal injuries. Thereafter, on March 26,1908, the plaintiff died from causes other than the injury sued for, and on. April 29, 1908, John C. McMann was appointed administrator of his estate, following which, the death of the plaintiff was suggested and upon leave given the said McMann, as such administrator, was substituted as the party plaintiff. When it was disclosed upon the trial that at the time of his injuries, and when suit was brought by him to recover damages therefor, the deceased was a minor, counsel for appellant objected upon the ground that it was questionable whether any suit was in existence at the time the administrator was substituted as party plaintiff. The objection was overruled and it is urged that such ruling was erroneous. The suit having been brought in the name of the minor instead of by his next friend was not subject to be abated or dismissed without leave to amend by substituting some person as next friend, by whom the suit might be prosecuted for the benefit of the minor, and the minor having died before his incapacity to bring suit in his own name was brought to the attention of the court, and an administrator having been duly appointed and substituted as party plaintiff, the suit was not thereafter liable to be abated or dismissed. The commencement of the suit by the minor was a mere irregularity which might have been thereafter cured by the appointment of a next friend to prosecute the suit. I. C. R. R. Co. v. Latimer, 128 Ill. 163.

Upon the trial of the case by a jury there was a verdict and judgment against appellant for $250.

At the time of his injury on July 7, 1906, the deceased, then of the age of seventeen or eighteen years, was employed by appellant as a mule driver in its coal mine. The evidence on behalf of appellee tends to show that upon two or three occasions within a few days prior to his injury the deceased complained to Lindsay, the boss-driver employed in the mine, that the hook on the tail chain, by means of which the mule was attached to the coal car, was open and liable to come out, and requested Lindsay to have the same -fixed, and that he also then expressed his intention to quit work unless the hook was fixed; that Lindsay told the deceased upon one occasion to get along with it that day and he would fix it at night, and upon another occasion that he would take it up that night sure and fix it; that as the deceased was on the front end of the first of his trip of loaded cars, having one foot on the tail chain and the other on the car bumper, and while the car with the wheels spragged was going down an incline, the hook came out and caught on a tie in the track, causing the mule to stop and the car to run into the mule, whereby the deceased was jammed between the car and the mule and thereby received the injuries complained of; that the hook in question was constructed of wrought iron and when in use was fastened in a hole in the draw bar with the point of the hook extending down. Lindsay, the boss-driver, when called as a witness on behalf of appellant denied that the deceased had complained to him about the condition of the hook, and said that he knew that the hook was in good condition because it was understood that they (the mule drivers in the mine) would report any defect in that regard to him, and that the deceased made no such report.

There are some apparent inconsistencies in the testimony of William Lotherington, the witness called on behalf of appellee, who claims to have heard the conversation between the deceased and Lindsay and claims to have been present when the deceased was injured, but we are unable to say that the jury were not justified in accepting his version of the transaction as being the more disinterested and reliable.

It is insisted on behalf of appellant that as the hook which is alleged to have been defective was an instrument or tool of simple construction, and as the alleged defect therein was known to the deceased, he must be held to have assumed the risk involved in its use, under the rule announced in Webster Manf. Co. v. Nisbett, 205 Ill. 273, and Gunning System v. LaPointe, 212 Ill. 274. True, the hook was a device of simple construction and the deceased knew of the defect, but it does not appear that he appreciated, or might by the exercise of reasonable care have appreciated, a danger resulting from its use other than that it was liable to pull out of the hole in the draw-bar and thus permit the mule to become detached from the car. It may well be that the deceased did not appreciate a danger arising from the liability of the extended point of the hook to catch upon a slightly projecting tie and thereby cause the mule to- stop and the car to run against the mule. Furthermore, the deceased was young and inexperienced ; it was not a part of his duty to repair any defect in the hook, but as the evidence shows, it was his duty to report any defective condition to the boss-driver, whose duty it was to supply the deceased with another hook or to see that the defect in the hook was repaired. These considerations distinguish the case at bar from the cases above cited and relied upon by appellant.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    H. B. Sinsabaugh, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common carriers—what competent upon question of reasonable time for transportation. Opinion evidence is not competent; the usual and customary time required for transportation between the points in question is the proper way of making the proof.
    2. Common oabbibbs—what does not excuse delay in transportation. A common carrier cannot avoid its responsibility for damages resulting from unreasonable delay in transportation of goods received by it for shipment, upon the ground that its employes refused to perform their usual duties. In such case the delay is held to result from the fault of the employes of the common carrier, for which fault the common carrier is responsible.

      Action on the case. Appeal from the Circuit Court of Coles county; the Hon. Jambs W. Craig, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and Andrews & Vause, of counsel.
    Craig & Kinzel, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action on the case by appellee against appellant to recover damages alleged to have been occasioned by the unreasonable delay of appellant in transporting 49 mules from Mattoon to the National Stockyards at East St. Louis. A trial by jury resulted in a verdict and judgment against appellant for $250.

It appears from the evidence that the mules in question were received by appellant at Mattoon for shipment to destination at about 5:30 p. m., January 27, 1907; that they left Mattoon at about 7:30 p. m., upon a train scheduled to leave Mattoon at 3 p. m., and arrive in East St. Louis at 3 a. m., the following day; that they did not arrive at destination until nearly midnight the following day; that by reason of the delay in transportation the mules upon their arrival at destination were jaded and gaunt in appearance and' had shrunken in weight and were required to be sold upon a declining market; that the loss occasioned appellee by reason of the condition in which the mules arrived at destination and the depreciation in the market was from $2.50 to $7.50 per head.

It is first urged that the court improperly permitted certain witnesses called on behalf of appellee to give opinion evidence as to the reasonable time required for the transportation of live stock over appellant’s railroad from Mattoon to East St. Louis. What constituted a reasonable time in which to transport the shipment from Mattoon to East St. Louis was a question of fact to be determined by the jury upon the consideration of all the competent evidence and circumstances in evidence adduced upon the trial, and the inquiry should have been directed to the usual and customary time required for the transportation of stock from the place of shipment to destination. It was not a proper subject for opinion evidence. Hen-nigh v. C., C., C. & St. L. By. Co., 143 111. App. 283. Appellant, however, is not in a position to raise the question in this case, because the record discloses that as to the witness C. N. Jones the objection interposed was that he had not shipped stock over the road for five or six years, and that as to the witnesses I. N. Gribbs and C. E. Colson, no objection whatever was interposed to their testimony in that regard. Furthermore, if such evidence had been introduced over the proper objection of appellant it could not have been operated to its prejudice because the uncontroverted evidence establishes the fact that there was a delay in the transportation of the shipment of from sixteen to eighteen hours, and there is no competent evidence' in the record excusing or justifying such delay.

The objection on the part of appellant that witnesses called on behalf of appellee were permitted to testify to the amount of depreciation in the value of the mules by reason of their being kept on the cars twenty-eight hours rather than the depreciation in their market value by reason of their having been kept on the cars the length of time, sixteen to eighteen hours, in excess of the time reasonably required to transport them from the place of shipment to destination, is clearly an afterthought. It may be conceded, and we think there is some merit in the contention, that the depreciation in the market value of live stock caused by delay in transportation should be limited to the extent of the delay only, because any confinement of live stock in cars will probably result in some depreciation in its market value, for which depreciation the carrier should not be held responsible. It appears from the record that when the witness C. 1ST. Jones was interrogated as to the effect upon the market value of the mules by reason of their confinement in the cars for twenty-eight hours, the only objection interposed was that the witness had not shown that he had any experience in handling mules which had been confined in cars that length of time, and that when substantially the same questions were propounded to appellee and the witness I. N. Gibbs no objections whatever were interposed to such questions.

Whether or not appellee had knowledge of and assented to the restrictive provisions of the Limited Liability Livestock Contract, signed by him, or on his behalf by his agent Kalb, was a question of fact for the jury. While the trial court might with propriety have permitted greater latitude to counsel for appellant in the cross-examination of appellee as to his knowledge of the terms and provisions of other similar shipping contracts signed by him, we are fully persuaded that the verdict of the jury on that issue would not have been otherwise than it was if the right of cross-examination had been more liberally indulged.

As an excuse for and in justification of the delay in not transporting the mules within a reasonable time, appellant offered to show that a fireman in its employ, suddenly and without notice, refused to perform his duties, whereby appellant was unable to move the train until another fireman could be secured, and that appellant exercised reasonable diligence to secure the services of another fireman, but the court refused to permit appellant to make such proof. In this there was no error. A common carrier cannot avoid its responsibility for damages resulting from unreasonable delay in transportation of goods received by it for shipment, upon the ground that its employes refuses to perform their usual duties. In such case the delay is held to result from the fault of the employes of the common carrier, for which fault the common carrier is responsible. P., Ft. W. & C. R. R. Co. v. Hazen, 84 Ill. 36; I. & St. L. R. R. Co. v. Juntjen, 10 Ill. App. 295; P. C. & St. L. Ry. Co. v. Hollowed, 65 Ind. 188; Geismer v. L. S. & M. S. Ry. Co., 102 N. Y. 563.

The allegation in the additional count of the declaration that by reason of the negligence of the defendant said mules were not delivered to plaintiff in time to get them in condition for the market for which they were intended and that plaintiff was, compelled to sell said mules for a smaller sum than they would have brought if they had been promptly delivered, was sufficient to admit proof of a decline in the market as an element of damage.

Other questions raised by appellant have been considered by us, but are not of sufficient importance to merit discussion. There is no error in the record which requires a reversal of the judgment and the same will therefore be affirmed.

Affirmed.


text:
    Alex. Kedes, Appellee, v. Christian County Coal Company, Appellant.
    1. Mines and- Minees Act—what evidence not competent in action for wilful violation. The conditions existing in a mine long after the accident are not competent without proof that they had remained unchanged in the interim.
    2. Mines and Miners Act—when instruction in action charging wilful violation erroneous. An instruction is erroneous which departs from the provisions of the statute with reference to the purpose for which props, caps and timbers are to he provided.
    3. Mines and Miners Act—what not defense to action charging wilful violation. The contributory negligence of the plaintiff, if any, is not available as a defense in an action brought under the Mines and Miners Act charging a wilful violation thereof.
    Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    J. C. & W. B. McBride, for appellant.
    Hogan & Wallace, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the Circuit Court of Christian county for $1,500, as damages for personal injuries alleged to have resulted from the wilful failure of appellant to comply with certain provisions of the Mines and Miners Act. The declaration contains five counts.

The first count which alleges common law negligence was dismissed by appellee before trial.

The second count alleges the wilful failure of appellant’s mine examiner to inspect and observe appellee’s working place and to inscribe on the walls thereof with chalk the day and date of his visit and to place a conspicuous mark thereat as notice to appellee of the dangerous conditions existing therein, and further that appellant permitted appellee to enter the mine to work therein, not under the direction of the mine manager until all conditions had been made safe, as provided by the provisions of Section 18 of said Act.

The third count alleges the wilful failure of appellant to provide a sufficient supply of props, caps and timbers when demanded for the securing by appellee of the roof of his working place, as provided in clause “A,” section 16 of said act.

The fourth count alleges the wilful failure of appellant’s mine manager to visit and examine the various working places in the mine and to see that all dangerous places above and below were properly marked, and that danger signals were displayed where required, as provided by clauses “A” and “D” of said section 16.

The fifth count alleges the wilful failure of appellant’s mine manager to provide appellee with a reasonably safe place in which to work, which duty is alleged to be imposed upon such mine manager by clause “Gr” of section 34 of said act.

On November 14,1906, appellee, with his buddy, was engaged in mining coal in room 15 off of the south sixth entry on the east side of appellant’s mine. The room was from thirty to thirty-five feet in width and the face of the coal is variously estimated to have been from 220 to 350 feet from the room-neck. Appellee had fired a buster shot and two rib shots about two feet from the rib on the north side of the room, and had undermined the face of the coal about six feet and to the length of eighteen feet and to the height of two and one-half feet, and had set sprays about four and one-half feet long to support the coal while he worked beneath it. While appellee was so at work a large quantity of coal and clod fell upon him from the top, breaking both of his legs. For a distance of from thirty to forty feet east from the face of the coal there were no props supporting the roof. Boom 14 had been driven in advance of room 15, and four crosscuts had been driven through the walls or pillar between said rooms. The usual width or thickness of the pillars between the rooms in appellant’s mine was twenty-five feet, and it is claimed by appellee that the coal in said rooms 14 and 15 had been permitted by appellant to be so improperly mined that the pillars between said rooms were not of sufficient width to properly support the roof, and that this condition resulted in causing a squeeze in the face of the coal in appellee’s room, whereby the coal was crushed and the rock top rendered more liable to fall out. Appellee testified that when he drove the last cross-cut between the two rooms the wall or pillar was only about twenty-four inches in width, but the overwhelming preponderance of the evidence establishes the width of said wall to have been from ten to twelve feet. However this may be, we think the jury were warranted in finding that a dangerous condition existed in appellee’s room by reason of the insufficiency of the pillars separating it from room 14, and that appellant’s mine manager had notice of such condition.

It is conceded by appellant that no conspicuous mark was placed at appellee’s working place, as notice of a dangerous condition, and appellee testified that upon the day of his injury there was no mark apparent of the day and month, as showing that the mine examiner had visited said room upon that day.

It is urged that the court improperly admitted evidence of demands for props by appellee to the drivers, without requiring proof of the existence of a custom in the mine whereby the miners were permitted to make demand for props to the drivers instead of the mine manager, or that the demands for props so made by appellee were communicated by the drivers to the mine manager. While the record discloses some ground for this criticism we think the testimony of Bartoulini, one of the drivers, tends to show the existence of a custom in the mine whereby the miners were authorized to make demand of the drivers for props. Westbrooks, one of the drivers, also testified that he communicated appellee’s demand for props to the mine manager. Appellant, by the ninth instruction given at its instance, recognized the fact that there was evidence in the case tending to show the existence of a custom whereby a miner was authorized to demand props of others than the mine manager.

Among the crucial questions in the case was that relating to the condition and extent of the pillars separating rooms 14 and 15, and the consequent liability of a squeeze occurring at appellee’s working place in room 15. Over the objection of appellant, and without any evidence tending to show that the conditions in that respect were the same, appellee was permitted to prove that a squeeze in fact occurred in room 15, whereby the room fell in, five or six weeks subsequent to the time appellee was injured. The admission of this evidence .was clearly error, and in view of the closely conflicting evidence bearing upon the question of appellant’s liability, such error must be held to have been so prejudicial as to require a reversal of the judgment. Counsel for appellee have not seen fit to attempt any justification of the action of the court in admitting the evidence referred to, and as we are unable to perceive any, it may not improperly be presumed that none exists.

The fifth instruction given at the instance of appellee purports to. state the statutory duty imposed upon the mine manager to provide a sufficient supply of props, caps and timbers. The first clause of the instruction follows the language of the statute and is not objectionable, but the second clause of the instruction is a departure from the provisions of the statute with reference to the purpose for which such props, caps and timbers are to be provided, and in this respect the instruction was misleading.

The seventh instructidn given at the request of appellee confuses the duties imposed by the statute upon the mine manager and mine examiner respectively. The contributory negligence of appellee, if any, was not available as a defense in the case and the eighth instruction offered on behalf of appellee was properly given.

We have considered other objections urged to certain given instructions on behalf of appellee and to the modification of certain instructions tendered by appellant and find nothing therein worthy of notice or discussion.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Rouse, Hazard & Co., Plaintiff in Error, v. Ozias Riley, Defendant in Error.

      Trtat,—when error to proceed. If the plaintiff has not replied to the defendant’s plea it is error to proceed to trial and enter a judgment for costs against him if he does not participate in such, trial.
    Action in debt. Error to the Circuit Court of Champaign county; the Hon. Solon Philbbick, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Charles A. Kimmel, for plaintiff in error.
    Walter B. Riley and Henry I. Green, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This was an action in debt brought by plaintiff in error against defendant in error in the Circuit Court of Champaign county to recover upon a judgment obtained in said court against defendant in error for the sum of $917.79. Plaintiff in error filed its declaration on August 22, 1907, and upon the same day summons was issued and placed in the hands of the sheriff to execute for the appearance of the defendant in error in said court on the first Monday in September, 1907. On August 23, 1907, being the last day of service for the September term of said court, the said summons was returned by the sheriff with the endorsement thereon that the defendant in error was not found in the county. On September 9, 1907, defendant in error filed his plea of the general issue, together with seven special pleas to the declaration. On September 28, 1907, plaintiff in error not having filed its similiter to the general issue nor its replications to said special pleas, and in the absence of plaintiff in error and its attorneys, a jury was impaneled to try the cause, and upon a verdict returned finding the issues for the defendant in error, the court, on October 29, 1907, rendered judgment against plaintiff in error for costs. On the following day the court adjourned for the term.

Plaintiff in error not having voluntarily gone to trial without filing a similiter to the general issue and replications to the special pleas, it was error to proceed with the trial of the cause without issue joined. The proper practice required defendant in error to have taken a rule on plaintiff in error to answer the pleas filed, and upon the failure of plaintiff in error so to do, to move the court to dismiss the cause for want of prosecution. Seavey v. Rogers, 69 Ill. 534; French v. Scobey, 108 Ill. App. 606.

The judgment of the circuit court will he reversed and the cause remanded.

Reversed and remanded.


text:
    William F. Kruger, Appellee, v. M. C. McCaughey et al., Appellants.
    1. Physicians and surgeons—degree of care required of. Persons practicing as physicians and surgeons are required to possess ordinary skill in their profession, and to practice their profession with ordinary skill. Ordinary skill, as applied to physicians and surgeons, is that degree of skill which is ordinarily possessed by physicians and surgeons in practice.
    2. Physicians and surgeons—when not liable for negligence. A physician who gives his patient the benefit of his best judgment is not liable for negligence, even if his judgment is erroneous, unless the error is such- as to be inconsistent with ordinary skill.
    Action on the case. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    L. T. Allen and J. B. Mann, for appellants.

      Dwyer & Dwyer, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellants to recover damages alleged to have been sustained by reason of the failure of appellants to use reasonable skill and care as physicians and surgeons in reducing certain fractures of the bones in appellee’s arm and in the subsequent treatment of such fractures. Upon the trial of thé cause there was a verdict and judgment against appellants for $200.

On June 12, 1905, appellee, who was then employed in a grain elevator at Hoopeston, had his right arm caught between a sprocket wheel and the belt chain, whereby he sustained an oblique fracture of the humerus at about the junction of the lower and middle third and compound comminuted oblique fractures of the ulna and radius on the same level at the lower third, where also the sprockets caused three wounds reaching to the bone and a laceration of the flexor muscles, nerves and interosseous ligament. In the wounds in the fore-arm there was also considerable dirt and grease. Appellants were called to attend the appellee in the office of the elevator immediately after the accident and after binding the injured arm to a board, appellee was removed to his home.

There is no controversy in the evidence as to the methods prescribed and adopted by appellants in the subsequent treatment of the case. About an hour after the injury appellee was put to sleep and the wound was thoroughly disinfected, washed and cleaned, and pieces of bone removed from the fore-arm and the proper methods were employed in an effort to reduce the fractures and to place the bones in apposition. The wounds were sewed up, leaving an opening for drainage and padded wooden splints were applied and properly adjusted, extension and counter-extension being maintained until the arm was fully bandaged. Appellee was put to bed and Ms arm was placed on a long splint. There was a slight increase in swelling on the first and second days following, and' on the fourth day the splints were removed. The wounds which presented some indication of gangrene were washed and cleansed and an effort made by observation and palpation to determine whether the bones were in apposition and the splints and bandages were then reapplied. Later on the same day there were some evidences of suppuration of the wounds, accompanied by fever and medicine was admimstered to relieve pain. Upon the sixth day the dressings were removed, the wounds cleansed and after the splints, except the one which extended the entire length of the arm, were replaced, the arm was bent at a right angle and suspended by a sling across the breast and the sling attached to the clothing of appellee. On the eighth day the arm was again dressed and a felt shoulder cap splint was conformed to the shoulder and extended down nearly to the elbow, a wooden splint was placed on the under side of the arm and the upper arm was bound to the body by bandages running around the body and over the arm. The forearm was then still swollen and the wounds continued to present evidences of suppuration. Thereafter until August 26th appellee’s arm was examined and dressed every second or third day and on August 28th appellee was discharged by appellants as cured, except in so far as he was directed and required to use his arm as much as possible to the end that its proper functions might be restored. Appellee testified that after his discharge by appellants he had considerable pain in his arm, and was unable to use it to any extent and unable to raise it except with the assistance of his other arm and hand. On September 16th, appellee consulted Dr. Brobeck, a local practitioner in Hoopeston, with reference to the condition of his arm, and Dr. Brobeck then examined the arm through a fluoroscope and made an X-ray sMagraph of the fractures. This sMagraph introduced in evidence discloses an over-riding or overlapping of the ends of the humerus in the upper arm, and of the ends of the radius and ulna in the forearm. When the skiagraph was taken appellee’s arm was placed on the plate about on a level with the shoulder joint, midway between supination and pronation with the back of the hand up. Dr. Brobeck testified that a bony growth was then present between the ulna and radius which united those bones. About September 27, 1905, appellee, accompanied by Dr. Brobeck, went to Chicago for the purpose of consulting Dr. J. B. Murphy. At the direction of Dr. Murphy appellee went to Mercy Hospital, where he was put to sleep and the arm forcibly put through extension and extreme movements for the purpose of securing normal flection and rotation. Dr. Murphy testified that appellee then had a limited degree of supination and pronation, and that neither could exist if the ulna and radius were joined by a bony union. In October, 1905, appellee, accompanied by Dr. Brobeck, consulted Dr. Nicholas Senn, in Chicago, where Dr. Senn made an examination of the arm. Dr. Senn testified that he was requested to operate on the arm, but did not do so; that although the rotation was not perfect it was not entirely abolished, and that fact tended to show that there was not a bony union between the ulna and radius. Being dissatisfied with the diagnosis and prognosis made by Dr. Senn, appellee and Dr. Brobeck then consulted Dr. A. J. Ochsner of Chicago. Upon the insistence of appellee and Dr. Brobeck, appellee went to the Augustana Hospital and was operated on by Dr. Ochsner. Dr. Ochsner testified that he made an incision over the seat of the fracture of the forearm in the shape of the capital letter “H,” so as to lay bare the ends of the bones and then carried the incision deeper and found that the ends of the bones were slightly displaced and that scar tissue had formed between the radius and the ulna at the point of the fractures which interfered with the rotary motion of the arm; that he cut away this tissue and put in its place a matting of cat gut to keep the two bones separated and then closed the skin over all. The claim of appellee in this case is based upon certain alleged functional disorders of the lower arm, being lack of supination, pronation and rotation, and we do not understand from the evidence that the incapacity óf appellee in those particulars is attributed to the condition of the upper arm.

The only witness who assumes to state that the arm of appellee was not treated by appellants in an ordinarily skillful manner is Dr. Brobeck, who was confessedly unfriendly to appellants. He testified that better results would have been attained if the wounds of the forearm had been bridged over with a piece of iron in the form of a half circle and fastened into a plaster of Paris cast above and below the wound. It is also in evidence that the ends of a fractured bone may be held in apposition by wiring with a silver wire. But the testimony, of eminent surgeons called as witnesses on behalf of appellants is to the effect that neither of these methods of treatment would have been proper in this case because of the character of the injury and the presence of pus.

Persons practicing as physicians and surgeons are required to possess ordinary skill in their profession, and to practice their profession with ordinary skill. Ordinary skill, as applied to" physicians and surgeons, is that degree of skill which is ordinarily possessed by physicians and surgeons in practice. Barnes v. Means, 82 Ill. 379; Holtzman v. Hoy, 118 Ill. 534.

A physician who gives his patient the benefit of his best judgment is not liable for negligence, even if his judgment is erroneous, unless the error is such as to be inconsistent with ordinary skill. Fisher v. Niccolls, 2 Ill. App. 484.

"While sufficient foundation was laid to permit the X-ray skiagraph of appellee’s arm to be introduced in evidence, such skiagraph is by no means conclusive as to the conditions actually existing in the arm. The skiagraph is not a picture of the object or substance itself, but of the shadow merely which is cast by such object or substance, and the evidence discloses that the picture thus produced is frequently inaccurate and misleading, owing to divergence and distortion. It is easily within the ability of a person operating an X-ray machine to magnify or minimize the appearance of an existing condition.

A careful consideration of the evidence in this case compels us to the conclusion that the verdict of the jury is against the manifest weight of the evidence and should be set aside. David W. Graham, a surgeon of thirty-six years’ experience, and whose time is largely devoted to work in hospitals and in consultation, testified that an oblique fracture surrounded by a large group of strong muscles, as in appellee’s upper arm, as a rule, overlaps in spite of all efforts; that appellee’s upper arm was in very good condition, very nearly normal, and that the treatment by appellants of appellee’s arm was proper.

Dr. L. B. Bussell, a physician and surgeon having twelve years’ practice in Hoopeston, testified that he examined appellee’s arm in the latter part of August, 1905, and that its external appearance was good.

Dr. John B. Murphy of Chicago, a surgeon of wide experience, testified that he examined appellee’s arm and that its general conformation was very good; that in view of the character of the injury, the functional result following the treatment by appellants was good; that appellee’s arm was then in a condition which permitted him to be discharged by his attending physician; that while he found that the edges of the bone could be felt in the arm where the fracture had been, that this was the rule in an enormous per cent of fractures at that point, and that an overlapping of the entire diameter of the bone was not present.

Dr. A. J. Ochsner, a surgeon of twenty-two years’ experience, testified that the condition he found was a good result in such a fracture, and that in the greater number of cases where there is an oblique fracture on the same level of the ulna and radius, there is an overlapping such as he observed in appellee’s arm; that the treatment of the arm by appellants was proper and such as was ordinarily pursued by good practitioners in like cases.

Dr. H. W. Morehouse, a surgeon of thirty-eight years’ experience, testified that the treatment of appellee’s arm by appellants was the proper and ordinary treatment as recognized by the profession as a whole; that where there is a fracture of both bones of the fore-arm at or above the middle it is practically impossible to bring about a correct apposition and alignment of the broken fragments; that in such cases there is more or less overlapping, owing to the muscular contraction, and that the fact of there being a compound comminuted fracture and laceration of the muscles and soft parts covering the bones, would add infinitely to the difficulty of treatment.

Dr. Nicholas Senn, a surgeon of thirty years’ experience, testified that a perfect reduction and retention of all the fragments where there was so much injury to the soft parts and so many fractures was not to be expected; that judging from the number of fractures, the existence of the wounds and the difficulties encountered in such cases, he considered the result in appellee’s arm a fair one.

Dr. Stephen (Hidden, a physician and surgeon of ten years’ practice, about 80 per cent of which had been surgery, testified that the method of treatment employed by appellants was proper; that in cases of oblique fracture of the bones of the fore-arm it was almost impossible to keep the bones from lapping.

It is to be observed that the testimony of nearly all these witnesses was predicated not alone upon hypothesis, but as well upon their personal examination and observation of appellee’s arm.

As against the testimony of these witnesses, together with the testimony of appellants, there stands only the testimony of Dr. Brobeck as to the impropriety of the treatment by appellants and the testimony of appellee as to the functional conditions during and subsequent to his treatment.

The judgment of the Oircuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Elias Cockrell et al., Appellants, v. County Court of Jersey County et al., Appellees.
    1. County courts—jurisdiction to determine contested election. The County Court has by statute final jurisdiction to hear and determine a contested election held upon the proposition as to whether or not particular territory shall be saloon or anti-saloon.
    2. County courts—character of jurisdiction of. A county court, although a court of limited jurisdiction, is not, strictly speaking, a court of inferior jurisdiction.
    3. Prohibition—when Circuit Court without jurisdiction to issue writs of. When the legislature has vested in the County Court exclusive and final jurisdiction of an election contest, the Circuit Court is without authority to prohibit the County Court from exercising such jurisdiction.
    Petition for writ of prohibition. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Hamilton & Hamilton, for appellants.
    Burns M. Potts and Alfred Adams, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

Appellants filed their petition in the Oircuit Court of Jersey county, in vacation, against the County Court of said county, wherein they prayed that a writ of prohibition be issued commanding the said County Court to desist and refrain from exercising any jurisdiction in a proceeding then pending in said court to contest the validity of a certain election theretofore held on April 7, 1908, in the town of Jersey, in said Jersey county, under and by virtue of the statute providing for the creation by popular vote of anti-saloon territory. In accordance with the prayer of said petition a temporary writ of prohibition, was, by one of the judges of said Circuit Court of said Jersey county, ordered to be issued in vacation, and thereafter in term time, upon the motion of the County Court of Jersey county by the presiding judge of said court the said petition for a writ of prohibition was dismissed and the temporary writ of prohibition theretofore issued was dissolved and appellants were adjudged to pay the costs of the proceeding.

We have heretofore held in the case of The People v. Haushalter, ante p. 399, wherein it was sought by quo warranto proceedings to test the jurisdiction of the county court of Jersey county in a proceeding to contest the validity of the same election, that the County Court had final jurisdiction in such proceeding, and it is not necessary to repeat what was said upon that subject in the opinion filed in that case.

In People v. Circuit Court, 173 Ill. 272, it was said: “The writ of prohibition is an extraordinary writ issuing out of a court of superior jurisdiction and directed to an inferior court for the purpose of preventing the latter tribunal from usurping jurisdiction of a matter with which it is not legally vested, and is used to keep inferior courts within limits and bounds prescribed by law. The writ issues upon the ground that it is the remedy provided to prevent an excess of jurisdiction, and this writ cannot take the place of a writ of error, which proceeds upon the ground of error in the exercise of jurisdiction. A writ of prohibition cannot be permitted to bring before the court what may properly be brought before a higher tribunal by a writ of error or certiorari, and can never be used as a process for the correction of errors in inferior tribunals, when such tribunals have jurisdiction of the subject-matter. Mere irregularities in the proceedings of inferior courts, a mistaken ruling on questions before such courts on matters within their jurisdiction, do not constitute a sufficient ground for granting the writ of prohibition, since such action would be the exercise of appellate power, which can only be properly adjudicated or determined on appeal or writ of error and in some cases by certiorari. Whenever an inferior court has jurisdiction of a matter in controversy it is not within the province of a superior court to interfere, by prohibition, to correct errors or mistakes, but a party aggrieved must be left to pursue the ordinary remedies for the correction of errors. In the application of this principle with reference to the writ of prohibition it cannot matter whether the judgment of the inferior tribunal was correct or erroneous, for if its jurisdiction exists, prohibition will not go to prevent an erroneous exercise of the jurisdiction or to prevent or correct a mistake in the action of the inferior tribunal. A very broad distinction exists between the control of the court within the bounds of its jurisdiction by this writ, and controlling its jurisdiction of a subject-matter over which it has a right to proceed. The latter case is not within the bounds of the proper exercise of a writ of prohibition.”

The County Court, although a court of limited jurisdiction, is not, strictly speaking, a court of inferior jurisdiction (Cassell v. Joseph, 184 Ill. 378; Newcomb v. County of Champaign, 145 Ill. App. 561) and when the legislature has, as in this case, vested in the County Court exclusive and final jurisdiction the Circuit Court is without authority to prohibit the County Court from exercising such jurisdiction.

The order of the Circuit Court dismissing the petition for the writ of prohibition and dissolving the temporary writ was right, and its judgment will be affirmed.

Affirmed.


author: Me. Justice Baums

text:
    Illinois Bridge & Iron Company, for use of Merchants & Farmers State Bank, Defendant in Error, v. Town of Sullivan, Plaintiff in Error.
    1. Service of process—when upon town sufficient. Held, that the service of summons upon a town, in form as follows, complies with the statute: “I have served the within writ by delivering a true copy to B. W. Patterson, Supervisor of the Town of Sullivan.”
    2. Appeals and errors—when hill of exceptions essential. Copies of instruments sued on filed with the declaration in an action at law, are not a part of the record unless made so by being embodied in the bill of exceptions.
    3. Appeals and errors—presumptions in support of judgment. In the absence of a bill of exceptions, unless it clearly appears from the common law record that the court was without jurisdiction, every intendment will be indulged in to sustain the judgment of the trial court and it will be presumed that the court heard sufficient competent evidence to sustain the finding and judgment.
    Assumpsit. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    R. M. Peadro, for plaintiff in error.
    John E. Jennings, E. E. Weight and W. K. Whitfield, for defendant in error.
   Me. Justice Baums

delivered the opinion of the court.

This was an action in assumpsit originally instituted against the Town of Sullivan and the highway commissioners of the Town of Sullivan. The declaration consisted of the consolidated common counts to which was attached a copy of the accounts sued on and also copies of. certain orders upon the treasurer of said commissioners of highways, signed by said commissioners and payable to the Illinois Bridge & Iron Co. The summons in the case issued out of the Circuit Court of Moultrie county was in the usual form, commanding the sheriff of said county to summons the Town of Sullivan and the Highway Commissioners of the Town of Sullivan, and was returned by said sheriff as follows: “I have served the within writ by delivering a true copy to B. W. Patterson, supervisor of the Town of Sullivan, Job Evans, Arthur Fletcher and Winfield Murray, Commissioners of Highways of the Town of Sullivan, Illinois.” There was no appearance in the case by the Town of Sullivan. After pleas filed by the commissioners of highways the declaration was amended and the suit was dismissed as to said commissioners of highways. Thereafter, the declaration was again amended by striking out the Commissioners of Highways as parties defendant and the Town of Sullivan was ruled to answer said amended declaration instanter, and upon its failure so to do it was defaulted and the judgment was rendered against it by default, upon the affidavit of merits filed with the amended declaration, for $11,363.22 and costs of suit. The affidavit of merits recites that there is due to the plaintiff from the Town of Sullivan the sum of $11,363.22 on account of certain materials furnished and labor performed in and about certain bridges for the Town of Sullivan, which were accepted by the highway commissioners of said town and that said highway commissioners issued their certain orders upon their treasurer for said labor and materials (which orders were set up in the declaration as copies of the instruments sued on), and that $486.77 of said amount is upon an open account for materials furnished to said Town of Sullivan at the request of the highway commissioners of said town. To reverse the judgment entered against it by default, the Town of Sullivan prosecutes this writ of error.

It is first urged that the court was without jurisdiction of the person of the plaintiff in error because there was no service of process upon it. Section 10 of the Practice Act provides that in suits against a town process may be served by leaving a copy thereof with the supervisor or town clerk. It is insisted that a compliance with this statute required a return upon the summons in substance, as follows: “I have served the within writ on the defendant Town of Sullivan by delivering a true copy to B. W. Patterson, Supervisor of the Town of Sullivan.” The return upon the summons by the sheriff as follows: “I have served the within writ by delivering a true copy to B. W. Patterson, Supervisor of the Town of Sullivan,” was equivalent in all respects to the form of return suggested by counsel for plaintiff in error. A recital by the sheriff in his return that he had served the defendant Town of Sullivan, by etc., would have been merely the statement of a legal conclusion. The return as made recited the simple fact as to the manner of the service which was in compliance with the statute, and taking the summons and return together it constituted a sufficient service of process upon the Town of Sullivan. People v. City of Cairo, 50 Ill. 154.

It is next urged that the several orders or warrants drawn by the commissioners of highways upon their treasurer, copies of which were attached to the declaration and designated as the instruments sued on, were insufficient upon which to predicate a judgment against the plaintiff in error, because the plaintiff in error is not a party to such orders or warrants, and for other reasons. There is no bill of exceptions in this case. Copies of instruments sued on filed with the declaration in an action at law are not a part of the record unless made so by being embodied in a bill of exceptions. Garrity v. Lozano, 83 Ill. 597; Hippach v. First National Bank, 169 Ill. 515. In the absence of a bill of exceptions, unless it clearly appears from the common law record that the court was without jurisdiction, every intendment will be indulged in to sustain the judgment of the trial court, and it will be presumed that the court heard sufficient competent evidence to sustain the finding and judgment. Mullen v. The People, 138 Ill. 606; C., R. I. & P. Ry. Co. v. Town of Calumet, 151 Ill. 512; Pine Tree Lumber Co. v. Central Stock & Grain Exchange, 140 Ill. App. 462.

It is conceded by plaintiff in error that where a contract has been fully performed and it only remains to pay the contract price, recovery may be had therefor under the common counts. Plaintiff in error being in default the material and traversable facts alleged in the declaration were thereby admitted and all that remained for the court to do was to make an assessment of damages. City of Chicago v. English, 198 Ill. 211.

We perceive no error in the record as presented for our consideration and the judgment of the Circuit Court will, accordingly, be affirmed.

firmed.


author: Mr Justice Baume

text:
    Theresa Hickey, Appellee, v. Springfield Coal Mining Company, Appellant.
    Mines and Minees Act—what essential to recovery for wilful violation. In order to recover under the Mines and Miners Act for wilful violation, not only must a wilful violation he shown hut it must he made to appear that the injury or death in question proximately resulted from such wilful violation.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed with finding of fact.
    Opinion filed May 19, 1909.
    Conkling & Irwin and J. C. & W. B. McBride, for appellant.
    Albert Salzenstein and S. H. Cummings, for appellee.
   Mr Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the Circuit Court of Sangamon county for $800, as damages occasioned by the death of her husband, Michael Hickey, who is alleged to. have been killed by reason of the wilful failure of appellant to comply with the provisions of clause “a” of section28 of the Mines and Miners Act, whereby at every shaft operated by steam power the operator is required to station at the top and bottom of such shaft a competent man charged with the duty of attending to signals, preserving order and enforcing the rules governing the carriage of men on cages, said top and bottom man to be at their respective posts of duty at least a half hour before the hoisting of coal begins in the morning, and remain for half an hour after hoisting ceases for the day.

The uncontroverted facts in this case as disclosed by the evidence are substantially as follows: On August 28, 1906, the mine of appellant was not being regularly operated in mining and hoisting coal, but ■several men were engaged during the day in doing necessary repair work, cleaning, sprinkling the roads, and retimbering the passageway at the bottom of the mine, which was used by the men and mules in going around the shaft from one side of the mine to the other. In the forenoon of that day the deceased had been engaged in retimbering such passageway and during that time the cage was swung in the shaft, where it remained stationary until about 3:30 p. m. In the afternoon the deceased was ordered by the superintendent to assist one Hall in cleaning up a fall in an entry, and was engaged at that work until shortly after 3 o ’clock, when he returned to the bottom accompanied by Hall. When they reached the bottom on the west side of the shaft, the deceased, who had some oil in a bottle which he desired to put in another bottle which was on the east side of the shaft, walked directly into the cage seat in the north division of the shaft for the purpose of going through to the east side, and as he stepped into such cage seat he was struck by a descending car then about a foot above his head, and so seriously injured that he died within two or three days thereafter.

At the time the deceased was injured no one was stationed at the bottom of the shaft charged with the duty of attending to signals, preserving order and enforcing the rules governing the carriage of men on cages, as required by the statute. The bell which communicated the required signals for raising, lowering or stopping the cages was located in the center of the shaft and was operated by two levers, one on the west side and one on the east side of the shaft. As the deceased stepped into the cage seat Hall cried out, “Look out, Mike, the cage is there,” and immediately thereafter the lever on the east side of the shaft was operated by one Peorda, who happened to be near the lever at the time. After striking the deceased the cage descended from three to four feet, when it was stopped. Hall and Smith, the latter being the superintendent of the mine and the brother-in-law of the deceased, both of whom saw the deceased walk into the cage seat and who were thoroughly familiar with the situation, the proximity of the descending cage to the deceased and the manner in which the signals were communicated, were the only persons called as witnesses on behalf of appellee. They both testified that from the time the deceased stepped into the cage seat until he was struck by the descending cage there was not sufficient time for a person stationed there charged with the duty, of attending to signals, to have given the necessary signal by ringing the bell, to have stopped the cage before it struck the deceased.

It is urged on behalf of appellant that the statute properly construed only provides for stationing a bottom man charged with the performance of the required duties when coal is to be hoisted, and that such bottom man is not thereby required to be at the bottom of the mine for half an hour before the men go down in the morning and to remain for half an hour after they are hoisted out in the evening on days when no coal is being hoisted; and that as no coal was being hoisted during the day on which the deceased was injured appellant was not required to have a bottom man so stationed. In the view we take of the case we deem it unnecessary to determine this question.

It is incumbent upon appellee to show not only a wilful failure by appellant to comply with the statute requiring a competent bottom man to be stationed in the mine, but also that such wilful failure was the proximate cause of the death of her intestate.

The wilful failure of appellant in the respect charged was not the proximate cause of the injury which occasioned the death of appellee’s intestate, because it appears from the undisputed evidence that the injury would have been inflicted even though appellant had fully complied with the statute by having a bottom man to attend signals stationed in the mine when the deceased stepped into the cage seat. If a competent bottom man had been stationed in the mine on the west side of the shaft, at which the deceased entered, he could not have prevented the deceased from stepping into the cage seat except by a warning addressed to the deceased personally, or by physical force, and if the bottom man had been on the east side of the shaft, as he properly might have been in the performance of his duties, he could not have given a stop signal in time to have prevented the accident.

The finding, therefore, that the wilful failure of appellant as alleged was the proximate cause of the injury complained of, was based upon pure conjecture unsupported by any substantive proof.

The judgment of the Circuit Court will be reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Finding of fact: We find that the wilful failure of appellant as alleged in the declaration was not the proximate cause of the injury which resulted in the death of appellee’s intestate.


text:
    Harry V. Bailey, Administrator, Appellant, v. Archie L. Robison et al., Appellees.
    1. Evidence—what not competent upon question of payment. In order to render checks relating to other transactions than that in issue competent upon the question of payment, all the checks which have passed between the parties in all their business transactions must be produced.
    2. Witnesses—who not incompetent by virtue of interest. An administrator plaintiff is competent, the adverse party not defending in a representative capacity.
    3. Appeals and ebbobs—effect of former opinion. The opinion of the Appellate Court becomes the law of the case and this notwithstanding upon a subsequent appeal the Appellate Court becomes convinced of an erroneous conclusion therein.
    4. Instbuctions—when upon credibility of witnesses not erroneous. Held, that the following language taken in connection with the entire instruction was not erroneous: "You are to believe as jurors what you believe as men and there is no rule of law which requires you to believe as jurors what you would not believe as men.”
    5. Instbuctions—when errors cannot be urged. Errors contained in instructions cannot be urged as grounds for reversal if the same errors are contained in instructions which have been given to the jury at the instance of the complaining party.
    6. Vebdicts—when not disturbed. Notwithstanding the Appellate Court is inclined to the opinion that the evidence in the record would better support a verdict for the other party, the verdict as rendered will not be disturbed unless the Appellate Court is prepared to say that the verdict as returned by the jury is clearly and manifestly against the weight of the evidence.
    Assumpsit. Appeal from the Circuit Court of Tazewell county; the Hon. Nicholas E. Wobthington, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    W. R. Curran and William A. Potts, for appellant.
    George C. Rider and Prettyman, Velde & Pretty-man, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit brought by Harry V. Bailey, as administrator of the estate of Alexander McCoy, deceased, against Archie L. and Lida Eobison to recover the amount claimed to be due upon two promissory notes, each for the sum of $1000, bearing date June 29, 1898, payable one year after date. The defendants admitted their liability on the notes to the extent of $638.90, which amount was tendered to plaintiff, the tender refused and the money paid into court. As to the balance alleged to be due on said notes defendants pleaded set-off and payment, upon which pleas issue was joined. There have been five trials of the cause in the Circuit Court of Tazewell county. Upon the first trial there was a verdict and judgment in favor of the plaintiff for $1,626.70, which judgment was, upon appeal to this court, reversed and the cause remanded. 113 HI. App. 123. The second trial resulted in a verdict for the defendants and a judgment against the plaintiffs for costs, which judgment was reversed upon appeal to this court and the cause remanded. 123 Ill. App. 611. Upon the third trial there was a verdict in favor of the defendants, which verdict was set aside upon the motion for a new trial. At the fourth trial, upon the conclusion of the evidence for the defendants, the court gave the jury a peremptory instruction to find the issues for the plaintiff upon the pleas of payment and set-off, and upon the verdict so returned judgment was entered against defendants for $1,947.70, which judgment was upon appeal to this court affirmed. 137 Ill. App. 470. From the judgment of this court affirming the judgment of the Circuit Court a further appeal was prosecuted by the defendants to the Supreme Court, where the judgments of the Circuit Court and this court were reversed and the cause remanded to the Circuit Court for a new trial. Bailey v. Robison, 233 Ill. 614. The fifth trial of the cause resulted in a verdict in favor of the defendants and a judgment against the plaintiff for costs, from which judgment plaintiff prosecutes this appeal.

As the facts are fully disclosed in the former "opinions of this court and in the opinion of the Supreme Court, we deem it unnecessary to re-state them. It is sufficient to say that the facts adduced upon the last trial of the cause are, in all substantial respects, identical with the facts set forth in the opinions referred to.

It is first urged that the trial court improperly admitted in evidence on behalf of defendants exhibit “D,” being the check for $1,500 which it is claimed by defendants was given to and accepted by the deceased as a payment upon the note sued on, and exhibit “AC,” being the inventory of .the estate of his intestate filed by plaintiff. Upon the former appeals in this court exhibit “D” was held to be properly admitted in evidence, and upon the appeal in the Supreme Court exhibit “AC” was held to be competent evidence. These holdings dispose of the question raised against the contention of plaintiff.

It is next contended that the court erred in refusing to admit in evidence exhibits M, N, K, L, I, O, P and Q, being certain notes and checks relating to long prior closed transactions between the defendants and the deceased, and having no reference to the transaction here involved. It was conceded by counsel for plaintiff that the transactions referred to by these several exhibits did not show all the transactions between the defendants and the deceased. The record of the case in a former appeal in this court discloses that these several exhibits were then offered in evidence on behalf of the defendants and upon the objection of plaintiff they were held incompetent.. In commenting upon the ruling of the trial court in that regard we then said: “Upon the trial appellees offered in evidence a number of other notes and checks between the parties to which objection was made and sustained. There was no evidence of any kind to show that these other notes and checks, together with those already in evidence, constituted all the transactions between deceased and Robison. To make such offers competent as tending to show that exhibit “D” was a payment upon the note sued on, it was essential for appellees to show that such matters embraced the entire transactions between the parties.” Counsel for appellees recognized the force of the objections upon the trial when they said (at the time they were identifying the notes and checks) that “We are trying to show an account of every cent of money that was passed between these parties in all their business transactions.” These matters so offered under the evidence had no relation to the notes and check in controversy- and were properly excluded. Bailey v. Robison, 123 Ill. App. 611. We perceive no reason or ground for holding this evidence to be competent when offered by the plaintiff and incompetent when offered by the defendants. Upon the authority of our former opinion the trial court properly excluded the evidence.

The next assignment of error challenges the ruling of the trial court in refusing to permit the plaintiff to testify to facts within his knowledge acquired during the lifetime of his intestate. The objection to his competency as a witness to testify to such facts was based upon the grounds that he was suing as administrator, and that his wife was the sole heir of his intestate, Alexander McCoy. Upon the first trial the plaintiff was held by the trial court to be incompetent to testify as a witness to any transaction occurring prior to the death of Ms intestate, and he did not offer to testify as a witness on Ms own behalf on the second and fourth trials of the cause. Upon the appeal to this court from the judgment on the first trial plaintiff did not assign any cross-error upon the ruling of the court refusing to permit Mm to testify to facts occurring prior to the death of his intestate, and in the brief and argument then filed on his behalf as appellee it was not contended that he was a competent witness for that purpose. It was then held that he was incompetent to testify to any transaction occurring prior to the death of his intestate, and the judgment was reversed, primarily for the reason that he persisted, notwithstanding the ruling of the trial court, in volunteering statements as to facts within his knowledge prior to the death of his intestate, and as to what his intestate could produce if he was alive.

If this court was in error in holding that the plaintiff was an incompetent witness to testify to transactions occurring prior to the death of his intestate, such holding was induced, not only by the failure of counsel to assign cross-error or to assert the competency of the witness, but by what we then conceived to be a tacit concession on the part of counsel that the plaintiff was an incompetent witness in that regard. Upon a proper presentation of the question to our consideration we are of opinion that the plaintiff does not come within the inhibition of the statute. By the first section of the act relating to Evidence and Depositions, the common law disqualification on account of interest in the suit or proceeding is removed, saving certain limitations prescribed in subsequent sections. By the second section of said act a party to a suit is rendered incompetent to testify as a witness “ of his own motion, or in his own behalf * * * when any adverse party sues or defends as * * * executor, administrator, heir, legatee or devisee of any deceased person * * * unless when called as a witness by such adverse party so suing or defending,” except in certain cases thereinafter specified. The defendants, being the parties adverse to the plaintiff, were not defending in any of the capacities above mentioned and the plaintiff was, therefore, a competent witness. Whether or not, under the circumstances, the plaintiff should be held to be estopped from now asserting or relying upon this assignment of error, it is well settled that the former holding of this court that the plaintiff was an incompetent witness, must be held to be the law of the case binding alike upon the trial court and this court. Leeds v. Townsend, 124 Ill. App. 582; Penn Plate Glass Co. v. Rice Co., 216 Ill. 567.

The second instruction given at the instance of defendants after correctly stating the rule governing the jury in determining the weight to be given to the testimony of the several witnesses, proceeds as follows: “You are to believe as jurors what you believe as men and there is no rule of law which requires you to believe as jurors what you would not believe as men.” It is urged that this portion of the instruction is objectionable as being argumentative and calculated to give the jurors the impression that their oaths were to be but lightly regarded, and that in arriving at their verdict they might be guided by the prejudices and impressions which control their actions as men, and not by the serious, and unbiased consideration of the evidence contemplated by the law and required by their oaths. The language quoted standing alone is subject to criticism, but taken in connection with the remainder' of the instruction as given, we do not think it rendered the instruction misleading. People v. Zajicek, 233 Ill. 198.

It is urged that the sixth instruction given at the instance of plaintiff is erroneous in that it authorized the jury to consider the defense made by defendants’ plea of set-off, in the absence of any evidence in the record upon that issue. The record discloses that by the fifth and sixth instructions given at the instance of plaintiff the same issue was admitted to the jury. Plaintiff is, therefore, in no position to urge the objection made. C. & A. R. R. Co. v. Harrington, 192 Ill. 9.

It is finally urged that the verdict of the jury is against the manifest weight of the evidence, and in this connection counsel direct our special attention to an item of evidence which is claimed to have been adduced upon the last trial bearing upon the question as to whether or not at the time the defendant, Archie L. Bobison, gave to Alexander McCoy the check, exhibit “D,” for $1,500, he owed McCoy anything except the two notes involved in this suit, which evidence was not adduced upon the former trials of the case.

The witness Charles H. Turner, who was cashier of the Farmers National Bank of Pekin during the time of the transactions in question, testified upon his direct examination that he had access to the papers of Dr. McCoy, then kept in the bank, for the purpose of receiving money and indorsing it on the notes, if paid, and placing it to the credit of Dr. McCoy; that he had then seen the two notes involved in this suit and that he had no recollection of seeing any other notes signed by the defendants or either of them except the three notes marked respectively exhibits B, C and Gr. Exhibits B and C are the notes involved in this suit and exhibit Gr is a note for $1,500 bearing date February 14, 1902, signed by the defendants, and which it is admitted was paid by them to the plaintiff after the death of Dr. McCoy. Upon his cross-examination the witness testified that he could not say as to just the number of notes that were in the package on December 28, 1901; that his recollection was that there were three notes in that package signed by A. L. Bobison at that time. December 28, 1901, is the date borne by the check for $1,500 which defendants claim was given to and received by Dr. McCoy as a payment upon the notes here involved. An examination of the record clearly indicates that if the witness in fact testified upon his cross-examination' as is above indicated, the force and effect of his testimony in that regard was either not observed and appreciated by counsel for plaintiff, or' counsel for plaintiff understood the witness to testify that he then only saw two such notes in the package, because the subsequent prolonged and searching cross-examination of the witness by counsel for plaintiff was directed in an effort to test his recollection and to discredit his testimony that he had seen only two such notes at the time referred to.

We are compelled to the conclusion that counsel for plaintiff then understood the witness to testify that he saw only two such notes at the time in question, and that the insistence of counsel, based upon the testimony of the witness upon his cross-examination, as it appears in the record, is an afterthought. An attempt to summarize the evidence bearing upon the issue raised by defendants’ plea of payment would involve a repetition substantially of what was said by Mr. Justice Vickers in 233 Ill. 614, upon the question then before the Supreme Court as to whether or not the defendants had adduced any evidence fairly tending to support said plea. That there is such evidence in the record sufficient as a matter of law to require the submission of the case to a jury is established by the judgment of the Supreme Court. While we are inclined to the opinion that the evidence in the record would better support a verdict for the plaintiff, we are not prepared to say that the verdict returned by the jury is so clearly unwarranted as to justify us in setting it aside.

The judgment of the Circuit Court will, therefore, be affirmed.

Affirmed.


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    William C. Mooberry, Appellee, v. Frank Crotinger, Appellant.

      Contracts—when question of construction not subject to review. If a party cause the court to submit to the jury the question of the construction of a contract in question, he cannot thereafter complain on review of the construction which has been given by the jury.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Rayburn & Buck, for appellant.
    A. M. Hester and Welty, Sterling & Whitmore, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On October 17, 1907, appellant addressed a written communication to appellee wherein he said: “I will offer my 160-farm for a short time at $30,000 net. If you have a buyer for a farm of this size show this farm.” On October 24, 1907, appellee procured one W. J. Ely to enter into a contract with appellant whereby appellant agreed to sell and said Ely agreed to purchase appellant’s farm for the sum of $30,400, to be paid as follows: $1,500 in cash upon the execution of the agreement and the balance, $28,900, in cash on or before March 10,1908, upon receipt of a deed to the premises. The contract further provided that time should be of its essence and that either party thereto who should fail Or refuse to comply with its provisions should forfeit and pay to the other party the sum of $1,500 as liquidated damages. Ely was unable to comply with the terms of the contract and thereby forfeited to appellant his cash payment of $1,500. Immediately upon the execution of the contract appellant voluntarily paid to appellee $200 to apply upon the latter’s commission of $400, being the excess above $30,000 for which appellee was authorized to sell the premises. Thereafter appellee demanded from appellant the sum of $200 as the balance of the commission claimed to be due him, and upon the refusal of appellant to pay the same this suit was instituted by appellee. Appellant interposed the plea of the general issue together with several special pleas, including a plea of set-off, whereby he sought to recover back from appellee the $200 he had theretofore voluntarily paid to appellee. A trial by jury resulted in a verdict and judgment against appellant for $200.

It is insisted on behalf of appellant that by the terms of the proposal of sale, whereby appellee was authorized to procure a purchaser before he became entitled to a commission, appellee was bound to bring about such an actual sale of the premises as would net to appellant the sum of $30,000, and that as the commission to which appellee was entitled was limited to the amount of such sale in excess of $30,000 appellee was not entitled to any commission, because Ely had failed to comply with the terms of the sale without the fault of appellant.

The construction of the written proposal by appelant to appellee to procure a purchaser for the premises, which written proposal constituted the contract of agency under which appellee should become entitled to a commission, was a question of law for the court and not a question of fact to be submitted to the jury. Appellant, however, by all of the instructions tendered on his behalf, submitted the question of the construction of said contract of agency to the jury to be determined as a question of fact and cannot now be heard to urge that the question was one of law for the court, and that said contract, as a matter of law, should have been construed by the court as requiring the payment in cash to appellant of the sum of $30,000 before appellee would be entitled to a commission. In view of the theory upon which the defense of appellant was predicated in the trial of the case in the court below there is no error in the record which warrants a reversal of the judgment. Appellant relies upon the decision of this court in the case of Burnett v. Potts, 143 Ill. App. 160, the judgment in which case was affirmed by the Supreme Court in 236 Ill. 499, as conclusive in his favor of the question involved, but an examination of that case will disclose that the right of the broker to his commission was there determined as a question of law arising out of the construction of the contract for brokerage.

Upon the record as made the judgment of the Circuit Court will be affirmed.

Affirmed.


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    Elias Cockrell et al., Appellants, v. T. H. Rush et al., Appellees.
    1. Certiorari—how petition for construed. The averments of a petition for certiorari are to he construed most strongly against the pleader.
    2. Certiorari—when petition does not sufficiently allege failure to file bond. Held, that the petition for certiorari in question in this case did not sufficiently allege the failure to file the bond required by statute as a preliminary to the consideration of the proceeding sought to be reviewed.
    3. Appeals and errors—what not appealable order. An order granting an alternative writ of certiorari is merely interlocutory and an appeal cannot be taken from an order either granting or denying such alternative writ.
    4. Appeals and errors—what does not operate by way of supersedeas. On the final hearing upon a petition for a writ of certiorari the only final order and judgment from which the petitioners are entitled to pray an appeal, is the order and judgment dismissing their petition, and an appeal from such order and judgment does not operate as a supersedeas to continue the alternative writ of certiorari in force.

      Certiorari. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Hamilton & Hamilton, for appellants.
    Burns M. Potts and Alfred Adams, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Jersey county dismissing the petition of appellants for a writ of certiorari directed to the County Court of said county, for the purpose of bringing before said Circuit Court for inspection the record of a proceeding instituted by appellees to contest the validity of an election which was held on April 7, 1908, in the Town of Jersey, under and by virtue of the statute providing for the creation by popular vote of anti-saloon territory. The petition avers that appellees in their, said petition to contest the validity of said election alleged that 638 votes were cast for the proposition, to wit: “Shall this town become anti-saloon territory,” and 553 votes were cast against said proposition, and that there is no allegation in said petition charging that there was any fraud or that any illegal votes were cast at said election, or that the said election did not ex-. press the full, fair and true expression of the will of the legal voters of said town upon the said proposition; that no bond for costs as required by statute was filed by appellees in their proceeding in the County Court to contest the validity of said election, and that by reason thereof the said County Court acquired no jurisdiction of the subject-matter of said proceeding; that appellants filed their motion in the County Court to strike the paper purporting to be security for costs from the files, and upon the denial of said motion by the County Court appellants moved said court to dismiss said petition to contest the validity of said election for the reason that no bond for costs had been filed by the petitioners, which motion was also denied by the said County Court; that thereupon appellees filed their motion in said court to dismiss said petition for the reason that the County Court had no jurisdiction to adjudicate the matters contained therein, which motion was denied by the court; that appellants then filed their general and special demurrer to said petition, which demurrer was allowed as to all matters in said petition which challenged the constitutionality of the statute under which said election was held, and was denied as to all other causes alleged in said demurrer; that appelllant then fully answered said petition and appellees filed their replication to such answer.

It is further averred by appellants that on May 1, 1908, they presented their petition to one of the judges of the Circuit Court, praying for a writ of prohibition, to be directed to the said County Court and to the judge and clerk of said court and to appellees, prohibiting them from taking any further steps in the proceeding pending in the County Court to contest the validity of said election, and that a temporary writ of prohibition was then ordered as prayed for in said petition, and said petition was set for hearing on May 15, 1908, when a hearing was had thereon and said petition was dismissed and the temporary writ of prohibition was dissolved by the court; that'appellants then and there prayed and were granted an appeal to this court from the order of the Circuit Court dissolving said temporary writ of prohibition and then and there filed their appeal bond therein, whereby the said proceeding was transferred to this court and said appeal operated as a supersedeas to hold the said temporary writ of prohibition and to suspend all proceedings in the County Court until said appeal was determined in this court; that notwithstanding the said appeal to this court the said County Court on May 16, 1908, without having jurisdiction so to do, called the said election contest proceeding for trial and tried the same and entered a final judgment therein declaring the said election to be null and void.

Section 19 of the act which provides for the creation by popular vote of anti-saloon territory, prescribes the manner in which the validity of an election held under the provisions of said act may be contested. Said section provides that “any five legal voters * * * may within ten days after the canvass of the returns of such election and upon filing a bond for costs contest the validity of such election by filing, ’ ’ etc. Assuming for the sake of the argument that the filing of a bond for costs is a necessary prerequisite to the assumption by the County Court of jurisdiction to hear and determine the controversy, the petition for certiorari here involved does not aver facts necessary to show to the court that such bond for costs was not filed by the petitioners in the proceeding to contest the validity of the election. The averments of the petition as the averments of any other pleading are to be construed most strongly against the pleader. The averment in the petition that no bond for costs as required by statute was filed by appellees, coupled with the further averment that appellants filed their motion to strike the paper purporting to be security for costs from the files, amount to an admission by appellants that a paper purporting to be a bond or security for costs was filed by appellees in the said proceeding and, furthermore, such averments construed together merely amount to pleading a conclusion of law.

The contention of appellants that the jurisdiction of the County Court in the proceeding to contest the validity of the election in question is limited to ascertaining and determining how many votes were cast for and against the proposition thereby submitted to the legal voters of the Town of Jersey, was considered by this court in the case of The People v. Haushalter, ante, page 399, wherein it was held that the jurisdiction of the County Court in a proceeding to contest the validity of such an election, as conferred upon that court by section 19 of the act providing for the creation by popular vote of anti-saloon territory, was not limited to the determination of the question as to how many votes were cast for and against the proposition. The jurisdiction of the County Court in a proceeding to contest the validity of such an election is. conferred and defined by the provisions of said section 19, and the further provision in said section that “the procedure in such cases shall be the same as that provided by law for the contesting of an election upon a subject which shall have been submitted to a vote of the people, so far as applicable,” is not operative to limit the jurisdiction so conferred and defined.

The temporary, or, more properly, the alternative, writ of prohibition issued by direction of the Circuit Court was only effective until a hearing was had upon the petition of appellants praying for the issuance of a permanent writ. The order granting the alternative writ was merely interlocutory and not final, and no appeal could have been taken from an order of the court either granting or denying such alternative writ.

On the final hearing upon the petition for a writ of prohibition the only final order and judgment from which appellants were entitled to pray an appeal was the order and judgment dismissing their petition, and their appeal from such order and judgment did not operate as a supersedeas to continue the alternative writ of prohibition in force and effect until such appeal was determined.

"Appellants’ petition for a writ of certiorari was properly dismissed and the judgment of the Circuit Court will be affirmed.

Affirmed.