text:
    Susan E. Reigel, Appellee, v. Des Moines Life Insurance Company, Appellant.
    1. Verdicts—when set aside as against the evidence. A verdict dearly and manifestly against the weight of the evidence will be set aside on review.
    2. Instruction's—when as to effect of introduction of promissory note erroneous. An instruction which tells the jury that the introduction of a promissory note is only prima facie evidence of execution and indebtedness and that unless they find after a full consideration of all the evidence that plaintiff at the time she is alleged to have signed said note knew and understood the nature of the paper she was signing and knowingly signed it and that she was then indebted to the defendant for the account named therein, the said note should not be allowed as a set-off against the demand of the plaintiff on the policy sued on, held, erroneous, first, because such instruction stated the law to be that the note introduced in evidence was only prima facia evidence of the execution and indebtedness and to give it effect in this ease required additional proof that the plaintiff knew the nature of the paper when she signed it and knowingly signed it and second because the instruction as a whole might readily lead the jury to believe that notwithstanding it appeared the plaintiff signed the note in question yet the burden was on the defendant to show that she at the time of signing understood its nature and knowingly signed it.
    Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Casper Schenk and McCarty & Arnold, for appellant.
    Parker & Eagleton and George W. Jones, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought this suit on a life insurance policy issued by appellant, to recover the guaranteed cash surrender value of the same, amounting to $504, together with the accumulated surplus claimed to be $107.10.

Appellant filed a plea of general issue, a tender of $248.26 and general issue as to the balance, a plea of set-off to the amount of a note of $271 with accrued interest and also another plea it denominates “a common count set-off” of $362.84.

Appellee filed replications, which among other defenses denied the execution of the note, under oath, alleged that the same was procured by fraud and circumvention and also that it was without consideration. There was a judgment in favor of appellee for $504, which appellant claims should not be permitted to stand for the reason that the proofs did not sustain the verdict, upon which the same was based, and because the court below- committed prejudicial error in instructing the jury.

On November 21,1894, appellee took out an ordinary life insurance policy, in the Des Moines Life Association for $1000 payable to her husband, Morton T. Reigel. She was then 37 years of age and the annual premium on her policy was $14.40. On February 11, 1903, after appellee had paid nine annual premiums on the policy and also a guaranty note of $10, a total of $139.60, one of appellant’s agents came to her and induced her to exchange her policy for the one sued on, a fifteen year payment life policy, which provided that after fifteen annual payments had been made appellee should have a paid up policy for $1000, payable to her husband at her death, or the policy should have a guaranteed cash surrender value of $504 -at its maturity. The premium on this policy was $42.47 and was based on the age of appellee at the time she took out the first policy above mentioned. The policy sued on contained the following statement:

“This policy is granted in consideration of the surrender of policy No. 11637 bearing date the 21st day of November, 1894 on the life of the assured, issued by the Des Moines Life Association (in exchange for which this policy is issued), and in further consideration of the payment of the premiums on this policy to the 21st day of November, 1904, the receipt whereof is hereby acknowledged and' in further consideration of the payment of subsequent premiums of forty-two and 471100 dollars to be paid on or before noon of the 21st day of November in every year, until the 21st day of November, 1909.”

It was also shown by the proofs that the premium of $42.47 provided to be paid by this policy was the regular premium on policies of this character issued to applicants 37 years of age. The agent who made the exchange, Mr. Skinner, testified it was made on the following basis: Starting with the date of the old policy he charged appellee with ten annual payments, including therein the one next to fall due, at the annual rate to be paid on the new policy of $42.47 amounting in all to $424.70. He then credited her with the nine premiums paid on the old policy and the guaranty note of ten dollars, in all $139.60, leaving a balance due of $285.10. In payment of this balance he took her note for $14.10, which was afterwards paid, and also an acknowledgment of an agreement to pay a policy loan of $271, together with interest thereon at five per cent per annum as follows:

“Des Moines, Iowa, February 11, 1903.

$271 no-100.

I Susan E. Eeigel, hereby acknowledge that the Des Moines Life Insurance Company of Des Moines, Iowa, has loaned me two hundred seventy-one no-100 Dollars, being part premium on policy No. 11637 issued to me by said company on the 14th day of Feb., 1903, for $1000 at age 37 on the 15 payment life plan, which amount with interest annually at five per cent, shall be a lien on said policy until extinguished by the surplus apportioned thereto, or is otherwise paid to the company on or before the 21st day of November, 1909.

Susan E. Reigel,

Address, Hutsonville, Illinois.

Witness H. 0. Skinner.”

At the same time appellee signed an application for an exchange of policies which contained the following: “I hereby apply to said company for a policy loan of $271 no-100 secured by the reserve on said policy to supply premium deficiency. ’ ’ Skinner testified that at the time of the exchange of policies he explained to appellee the nature of the transaction and that she signed the above note or agreement for the payment of $271 in his presence. There was also proof tending to show that a receipt signed by appellant through its agent Skinner, acknowledging the receipt of appellee’s old policy and an application for an exchange of policies, also for a policy loan of $271 and the cash premium note of $14.10, was delivered to the husband of appellee and afterwards appeared among the papers in the hands of her attorney.

It may be here stated that the transactions relating to the exchange of policies with which this suit is concerned, are the same as those referred to in the case of Morton T. Reigel, husband of appellee against this appellant, where a similar exchange of policies was made, in which case an opinion was filed at the October term, 1911, of this court. (165 Ill. App. 448.)

Appellee testified that she signed the note for $14.10 and supposed she signed the application for the exchange but was positive that she did not sign the note for $271. She stated the arrangement with Skinner was that she was to surrender the old policy, get the new one in its place, pay $42.47 a year for five years and get benefits from the date of the original policy; that the understanding was the new policy was to be the same as if it bore the date of the original policy; that she was not asked to give the note in question; that Skinner gave her husband some kind of a receipt for the policies and that she thought, there was just one receipt which covered both policies, but that she never saw the same.

Expert testimony was introduced by appellant, tending to show that what purported to be the signature of appellee to the note or agreement in question, was written by the same person who signed the application for exchange of policy and the note for $14.10 admitted by appellee to have been signed by her. No proof was introduced of fraud, circumvention or misrepresentation used by appellant’s agent in procuring the exchange of policies or appellee’s signature to any of the papers. It will thus appear that the evidence on the question of the execution of the note in question by appellee was extremely close, if indeed the preponderance was not really in favor of appellant. It therefore became necessary that the jury should be accurately instructed as to the law governing this branch of the case.

Instruction No. 7 given for appellee told the jury that the introduction of the note in evidence, was only prima facie evidence of such execution and indebtedness ; that unless they found after a full consideration of all the evidence that plaintiff a-t the time she is alleged to have signed said note, knew and understood the nature of the paper she was signing and knowingly signed it, and that she was then indebted to the defendant for the amount named therein, said note should not be allowed as a set-off against the demand of appellee on the policy sued on. This instruction was erroneous for two reasons. First, because it states the law to be that the note introduced in evidence was only prima facie evidence of the execution and indebtedness, and to give it effect in this case required additional proof that - appellee knew the nature of the paper when she signed it and knowingly signed it. Second, because the instruction as a whole might readily lead the jury to believe that notwithstanding it appeared appellee signed the note in question, yet the burden was on appellant to show that she, at the time of signing, understood its nature and knowingly signed it.

In Hartford Life Ins. Co. v. Gray, 80 Ill. 28, the following language is used: “We are of opinion when the genuineness of a signature to an instrument is established, it affords prima facie evidence that the contents of the instrument were known to the subscriber, and that it is his act, and hence that the burden is upon those who assert the contrary, to make such proof as shall overcome the prima facie evidence.”

In Jones v. Abbott, 235 Ill. 220, it is said: “It is strongly urged by appellants that the receipt or agreement in question was signed by Hampelman without knowledge on his part that it contained the clause as to the distribution of his property after his death, and because it was represented to him that the instrument was merely a receipt for the property turned back to him by the trustees. The genuineness of the signature to the receipt was fully established. The instrument affords therefore prima facie evidence that its contents were known to the subscriber and that it was his act. The burden rests upon appellants to overcome this prima facie showing.”

Instructions Nos. 1, 2, 3, 9, 10 and 11 offered by appellant, were so modified by the court, as to apparently place the burden upon appellant of proving that the note was knowingly signed by appellee. If, as matter of fact, the note was signed by her, then as we have above seen, the law is that the burden of proof ■was upon appellee to overcome the prima facie case so made and show that she did not knowingly execute the instrument.

For the errors in instructions above named, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Shirley

license: Public Domain

text:
    Amanda C. Goodman, Appellant, v. Fruit Growers' Refrigerator and Power Co., Appellee.
    Master and servant—test of liability. The real test of the master’s liability is whether the act which caused the injury was committed by the master’s authority expressly averred or fairly implied from the nature of the employment, and the duties incident to it. Por all acts done under express authority as well as for all acts clone by the servant in the execution of the master’s business within the scope of his employment the master is responsible.
    Action in ease for personal injuries. Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.
    James Lingle, for appellant.
    A. Ney Sessions, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

A jury in this ease found the appellee not guilty and the court rendered judgment on the verdict.

Appellant charged in her declaration that appellee was the owner and possessed of a telephone pole on South street in the city of Anna; that the pole was in close proximity to the sidewalk in front of a lot known as the Peelar property at or near its front gate; that by its servants or agents it removed the pole whereupon it was the duty of appellee to refill the hole made by the removal of the pole or safely cover it within a reasonable time; that it failed in said duty and negligently permitted the hole to remain unfilled, uncovered and unprotected; whereby appellant while in the exercise of reasonable care for her own safety, fell into the hole and was injured.

The errors assigned by appellant and urged in her argument are that the court erred in not granting a motion for new trial on the ground that the verdict was against the weight of the evidence, and in giving instructions asked by appellee and in modifying an instruction asked by appellant.

On the morning of January 30, 1908, appellant left the home of her sisters in the city of Anna to take a train. The dwelling she left was located on the south side of South street. A little west of the center of the property a small gate opened on the sidewalk. Between the sidewalk and the traveled part of the street was a grass covered slope. When appellant passed through the gate she found the sidewalk slippery from a coating of ice and started to walk down the slope in a northwest direction from the gate, when at her first or second step her foot went into an uncovered hole resulting in a severe sprain of her ankle and limb. The ligaments of the ankle were ruptured and the injury was severe and painful.

Appellee in support of its plea of not guilty denied responsibility for the hole complained of; that it had no pole at the place of the hole and removed none from there. The evidence upon the issue so made was in conflict. Several witnesses testify there had been three poles along the block on the south side of the street that had been removed and some of the witnesses locate a pole at the point about where appellant stepped in the hole. No witness testifies to seeing any pole removed from the place where the hole was about in front of the gate in which appellant stepped. It was sought by appellant to prove by a witness Ernest Oliver that he removed that pole. He testified that he and one Mattingly (since dead) took up the poles along the south side of the street in 1907 but says they removed no pole at the place where the hole was, hut that it was between seventeen and nineteen feet east of the gate. This witness testified he and Mattingly were at the time employed by appellee and on being recalled he stated that one Davis, a foreman of appellee, directed Mm to remove the poles on the south side of the street. Several other witnesses testify to the location of the three poles on that side of the street that were removed, and located the pole the removal of which it is charged left the hole in which appellant stepped, in front or very near in front of the gate through which she walked.’

A. A. Fasig testified that the Electric Light Company which was succeeded by appellee never had any poles on the south side of the street and that the poles there belonged to the telephone company and the electric light poles were on the north side of the street.

The evidence was conflicting upon the question whether the hole stepped into by appellant was caused by the removal of a pole by Oliver. Wliile the weight of the testimony tends to show the location of the pole was in front of the gate he testifies he removed no pole from that place, but the pole he removed was seventeen or nineteen feet east of the gate. If he is correct about this the hole appellant stepped in was not occasioned by Oliver removing the pole.

The real test of the master’s liability is whether the act which caused the injury was committed by the master’s authority expressly conferred, or fairly implied from the nature of the employment and the duties incident to it.

For all acts done under express authority as well as for all acts done by the servant in the execution of the master’s business within the scope of his employment the master is responsible.

“The servant’s acts do not bind the master in the absence of express authority where they are such as the master himself could not lawfully do in furtherance of his business; and authority to do an act which the master could not lawfully do himself will not be implied unless such an inference is warranted from the nature of the act itself. * * * But for all acts done within the scope of his authority, whether express or by fair implication, the master is liable however erroneous or mistaken the action of the servant may be.” (Woods Law of Master and Servant, 2nd Ed., sec. 285.)

There was no evidence of any express authority given to Davis by appellee to remove the poles on the south side of the street and in the light of the evidence tending to show that the poles were not the poles of appellee and that appellee could not lawfully remove the poles, we are of the opinion the verdict should be sustained upon the question of the alleged liability of appellee for the act of Davis in directing the removal, as well as upon the question whether Oliver removed a pole at the place where the accident occurred, and there was no error in refusing to grant a new trial on the ground the verdict was against the weight of the evidence.

Appellant’s argument on instructions deals only with the action of the court in giving instruction number 18 asked by appellee, and in modifying number 9 asked by appellant.

Instruction number 18 told the jury that the defendant would not be liable if the servant causing the injury was not acting within the scope of-his employment. It stated a correct rule of law as applicable to the evidence and was not objectionable. The matter complained of as being objectionable in the modification of the 9th instruction was contained in the 8th asked and given for appellant and appellant cannot complain of the action of the court in modifying number 9. While appellant does not discuss the other instructions in her argument which is the proper place for such discussion yet under what she denominates ‘ ‘ Statement of the Case” she has pointed out and criticised alleged defects in other given instructions and criticised the action of the court in the refusal of others. We have examined all of such instructions and rulings and find there was no error in the ruling of the court and the jury was fairly and correctly instructed.

Finding no substantial error the judgment will be affirmed.

Affirmed.


author: Mr. Justice McBride

text:
    Horace J. Eggmann, Appellee, v. Charles B. Nutter et al., Appellants.
    1. Verdicts—ivhen not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Instructions—effect of repetitions. Mere repetitions in instructions of the same principle of law are not ground for reversal.
    3. Instructions—when reversal proper. An instruction which is calculated to mislead is properly refused.
    4. Variance—how objection for should be made. An objection for variance should be specific otherwise it will not avail.
    5. Evidence—what incompetent. Hearsay evidence is not competent and does not tend to establish the fact sought to be shown.
    6. Appeals and errors—when refusal of special interrogatories not subject to review. The record should affirmatively show that special interrogatories were presented to counsel before the commencement of argument, otherwise the action of the court in refusing to submit the same to the jury will not be reviewed.
    Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.
    D. E. Keefe and N. C. Lyrla, for appellants.
    E. W. Eggmann, Kramer, Kramer & Campbell and C. H. G. Heinfelden, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is an action of assumpsit heard in the City Court of East St. Louis; tried before a jury at the August term, 1910; verdict rendered for the plaintiff for $338.03, upon which judgment was rendered, and the defendants have prosecuted this appeal.

The declaration in this case alleges that the defendants on the 11th day of September, 1905, at East St. Louis, Illinois, made their promissory note in writing, bearing date last aforesaid, and then and there delivered the same to the said plaintiff and one John E. Miller, in and by which said note said defendants in the name and style of Charles B. Nutter, C. L. Nutter and John W. Sanders, promised to pay to the order of said plaintiff and said John E. Miller, by the name, style and description of John E. Miller and Horace J.Eggmann, on September 1, 1906, the sum of $250, for value received, with interest at seven per cent per annum from said date until paid, and that afterwards on January 1, 1908, John E. Miller assigned his interest in the said note to the plaintiff.

The declaration also contains the common counts, to which is added an account, and also copy of the note sued upon. The note is as follows:

“East St. Louis, Illinois.

September 11, 1905.

On September 1, 1906, after date we promise to pay to the order of John E. Miller and Horace J. Eggmann, at the First National Bank of East St. Louis, Two Hundred Fifty Dollars,

For value received, with interest at seven per cent per annum from date until paid.

(Signed)

Charles B. Nutter,

C. L. Nutter,

$250.00 John W. Sanders.”

Upon which note is the following endorsement:

“For value received I hereby assign and transfer and set-over unto Horace J. Eggmann my one-half interest in the within note.

(Signed) John E. Miller.”

To this declaration the defendants filed a sworn plea denying the execution of the above note.

. The contention of appellants is, First, that the note sued upon as originally given was payable to John E. Miller only, and that the name of Eggmann was inserted as payee in the said note after the same had been executed and delivered to Miller. The evidence upon this question is quite conflicting. Eggmann testifies that he wrote the note and handed it to Nutter and it was made payable to John E. Miller and Horace J. Eggmann, and then delivered before it was executed, to C. L. Nutter to be taken by him for the signature of other parties, and that when the note was delivered to Nutter the names of both Miller and Eggmann were named therein as payees; that it was taken out by Nutter to obtain security upon it for the rent; that later in the day, and about seven o ’clock in the evening, the note was returned to Eggmann and Miller signed by the three defendants and that at that time the names of Miller and Eggmann were in the note as payees. Miller -says that he saw the note at the time that it was delivered, and on the same evening at his house; that at that time the names of J ohn E. Miller and Horace J. Eggmann were named in the said note as payees thereof, and that there has been no change in the names since that time; that he afterwards assigned his interest in this note to Eggmann. And this was substantially all of the testimony offered by the plaintiff.

The defendant, to maintain the issue of the case, introduced Charles B. Nutter, who says that as the note was originally drawn it was made payable to J ohn E. Miller; that Eggmann gave as his reason that he did not want to have anything to do with the note, and that Miller would give him his part of the consideration. That he took the note home and exhibited the note at the supper table to his father and some other members of the family, and the note was signed by himself, his brother and Mr. Sanders, and that at the time they executed the note the name of Horace J. Eggmann was not contained therein as one of the payees. G. L. Nutter, another defendant, testified to substantially the same facts as his brother, and he too, says that the name of Eggmann was not contained in said note as payee at the time the note was signed. John W. Sanders testified that he signed the note as one of the makers thereof; that the note was first signed by C. B. Nutter, then his brother next and Sanders signed it last, as surety, and that to the best of his knowledge the note was payable to John E. Miller only as payee. The father of the Nutters claims to have seen the note and says that the name of Eggmann was not contained in it just prior to its execution. A receipt given by Horace J. Eggmann bearing date September 12, 1905, in which receipt the name of John E. Miller only appears as payee, was offered in evidence. This was all of the evidence offered on the trial of this case.

It is contended by counsel for appellants that the jury was not warranted in finding for the plaintiff upon this issue, and that the verdict was against the weight of the evidence. It is true that the greater number of witnesses testified in behalf of the defendants upon this issue; this, however, was a matter especially for the determination of the jury; they saw the witnesses upon the stand and no doubt observed their conduct and bearing and they were better calculated to determine who were and who were not testifying truthfully than can be determined by this court upon the record. It is quite clear that some one has testified falsely with reference to the condition of the note in question at the time it was signed, and we think no one would be better calculated to determine that question than the jurors themselves; and unless the verdict of the jury is manifestly against the weight of the evidence this court has no power to disturb the verdict. Chicago & Joliet Elec. Ry. Co. v. Patton, 122 Ill. App. 174, and other cases that may be cited. Indeed, the law is so well settled that a court upon an appeal is not warranted in reversing a judgment unless the verdict is manifestly against the weight of the evidence, that it hardly needs the citation of authorities; and while the evidence may be conflicting, and even if it appears that the weight of the evidence is contrary to' the verdict of the jury, this alone does not justify the Appellate Court in reversing the finding of the jury. The Appellate Court must be able to say that the verdict is manifestly against the weight of the evidence. We are not prepared to say that the verdict in this case is so manifestly against the weight of the evidence as to require a reversal.

Appellants next contend that the court erred in giving instructions one and two as they appear in appellee’s brief, and say that they are objectionable because they are a repetition of each other. We have carefully examined the instructions. While it is true they in part announce the same proposition yet the second instruction is more specific than the first one; but conceding that they do to some extent repeat the same proposition, and to that extent may not be accurate, yet we are not able to hold that this is such error as would authorize a reversal of this judgment.

Again, it is claimed that the court erred in refusing defendants’ first refused instruction. This instruction simply tells the jury that although the evidence may show that Nutters made an oral contract with Miller and Eggmann, and that they are indebted to them, and that if the note was made payable to Miller alone that they would have no right to add the name of Eggmann thereto. There is no question about this being a correct proposition of law but we think it was fully embodied in the first instruction given on behalf of the defendants which told the jury that even if they believed that the note introduced in evidence expressed the oral contract entered into by the Nutters but that if the note was payable to Miller alone the plaintiff would not have any right to change it to conform to said oral agreement.

The second instruction asked by the defendant, which it is claimed the court erred in not giving tells the jury that under the plea filed they must not only determine whether the defendants signed the note but whether the note had been materially altered since it was executed. This instruction was fully covered, as we think, by instruction No. 5 given on behalf of the appellants which told the jury that the plea denying the execution of the note put the plaintiff upon the proof of its execution, and that burden was upon the plaintiff throughout the entire trial, and that unless it was payable to Miller and Eggmann at the time it was signed that they should find for the defendant. This instruction clearly told the jury that the proof of the execution of the note, as well as that the names of the joint payees were inserted therein at the time it was signed, they should find for the defendants; but the defendants could not have been materially injured by the refusal of this instruction as the question was not so much upon the execution of the note as what it contained when executed.

The third refused instruction complained of by the defendants is as follows:

“The court further instructs the jury that if you believe from the evidence that the name Horace J. Eggmann was written in the note without the knowledge, authority or consent of the defendant John W. Sanders after he had signed it, then you should find for the defendant John W. Sanders.”

We think this instruction was misleading. The suit was not only against John W. Sanders but against the Nutters as well, and if it is true that the name Horace J. Eggmann was written in the note after it was signed then it should be the duty of the jury to find a verdict for all of the defendants, and not for John W. Sanders alone.

The other instructions given upon behalf of the defendant very plainly told the jury that if the name of Eggmann was written in as payee of the note after it had been signed that they must then find a verdict for all of the defendants, and this included Sanders as well as the others. We are of the opinion that the court did not err in the refusal of these instructions.

It is next claimed that the original declaration did not aver that the note was payable at any particular place, and that the note, when presented, on its face showed that it was payable at the First National Bank of East St. Louis, Ill. That the defendants made the following objections to the admissibility of the note when introduced: “For the reason of the alteration which appears upon the face of the note, and for the further reason that it is not the note described in the declaration and that it is incompetent at this time.” It is quite clear that the objection so far as it pertained to the alteration which appeared upon the face of the note is concerned, that there could be no objection to that because proof at that time had been made of its execution and this would entitle it to be admitted in evidence; as to the objection that it is not the note described in the declaration, and for that reason incompetent, we think the objection was not sufficiently specific. If the defendants were desirous of taking-advantage of the introduction of this note in evidence because of the variance between the language of the note and the declaration, then they should have stated to the court specifically the objection, called the court’s attention to it so the court could have passed upon that identical question. This, they did not do, and we think the objection as urged was not sufficient upon which to base a reversible error.

Counsel for appellants in their brief say that the specific objection was made that the note offered was not the note described in the declaration. We do not believe that this is a specific objection but is very general in its terms and would not call the court’s attention to the particular thing complained of. It appears, however, that during the trial the attention of counsel was called, to this particular phase of the declaration and they then, by leave of the court, amended the declaration. This, the court had a right to do, and even if there had been an error this would have cured it.

Appellants also claim that the court erred in not permitting them to show that at the time Sanders signed the note that he took a contract or obligation from C. B. and O. L. Nutter to secure him as such surety in the execution of such note, and that such note was described in this contract. This was simply a matter between Sanders and the Nutters, and would have been hearsay evidence so far as the plaintiff in this suit was concerned, and we think the court did right in excluding this evidence.

Some complaints are made, also, of other evidence that was offered but nothing of a serious character, and we cannot see that the court committed any error in either admitting testimony for the plaintiff or refusing it for the defendants.

Again, it is contended by appellants that they submitted special findings to counsel for the plaintiff before the commencement of the argument in this case and requested the court to require the jury to answer such special interrogatories, which the court refused to do. We have examined the record in this case, and the abstract as well, and it does not affirmatively appear that these interrogatories were presented to counsel before the commencement of the argument. In the case of Gronlund v. Forsman, 124 Ill. App. 362, it is ■said: “A bill of exceptions should show that special interrogatories refused by the court were submitted to opposing counsel prior to argument.” Such is not shown by this record. It is true that the record discloses that after judgment had been rendered a motion was made to set aside the judgment and order overruling motion for a new trial and to grant a re-hearing upon the affidavits of Lyrla, Charles B. and C. L. Nutter, which stated that the special interrogatories were tendered to counsel for plaintiff before the argument began, but this motion was overruled by the court. This, however, does not cause the record to show affirmatively that the special interrogatories were offered.

We have given this case careful consideration and we cannot say that the verdict of the jury is manifestly against the weight of the evidence or that the court erred in its rulings therein, and we are of the opinion that the judgment should be aErmed.

Judgment affirmed.


text:
    Charles Carney, Appellee, v. Donk Brothers Coal & Coke Company, Appellant.
    1. Animals—what sufficient to entitle recovery where injuries result from vicious. In order to recover for injuries suffered from the kicking of an animal, it is sufficient to show that the disposition of such animal was to kick, and need not be confined to a particular circumstance of its kicking.
    2. Instructions—confined to issues. An instruction which does not coincide with the issues and is calculated to mislead is properly refused.
    3. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.
    4. Instructions—ignoring counts. An instruction which concludes with a direction to find for the defendant, is properly refused if it is applicable to but two of the counts of the plaintiff’s declaration and not to others.
    Action in ease for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    Terry & Gueltig, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

A trial of this cause was had in the Madison County Circuit Count on May 24, 1910, resulting in a verdict for appellee for $800.

Appellant’s motion for a new trial was overruled and judgment rendered upon the verdict, and from this judgment appellant prosecutes this appeal.

The declaration in this, case consists of five counts. The first count alleges that on January 10, 1910, plaintiff was in the employ of .the defendant, engaged in feeding and talcing care of mules in the defendant’s stable in this mine; that it was the duty of the defendant when an unsafe and vicious mule was placed under the plaintiff’s charge, to inform the plaintiff of such vicious propensities; that the defendant brought to its mine two mules to be placed in charge of the plaintiff, which mules were unsafe and vicious, and would, without provocation, kick and injure persons coming near them, which condition defendant knew or by the exercise of ordinary care should have known, but which condition plaintiff did not know and was not informed by defendant; that while plaintiff was discharging his duties and caring for said mules, exercising due care and caution for his own safety, both of said mules kicked the plaintiff, whereby his left leg was broken and his right side bruised and injured, etc.

The first amended count avers that he was engaged at work for defendant in caring for its mules and that it was the duty of the defendant to exercise reasonable care to furnish plaintiff a reasonably safe place in which to do his work. That defendant negligently furnished to plaintiff a place which was unsafe and dangerous, in this, that defendant caused to be placed in said stable an unsafe mule called Old Stud, which fact plaintiff did not know but which was known to the defendant, or by the exercise of ordinary care should have been known to it; that while plaintiff was engaged in the performance of his duties, exercising due care he was kicked by such mule and his leg broken.

The second amended count was substantially the same as the first, except that it alleges that the defendant caused to be placed in said stable an unsafe mule called New Mule, wlpch plaintiff did not know, and which was known to the defendant, or should have been known to it by the exercise of ordinary care; and while plaintiff was performing his duty, exercising due care, he was kicked by said mule.

The third and fourth amended counts are substantially the same as the first and second amended counts.

The fifth amended count alleges that plaintiff was employed by defendant to feed and care for its mules in this mine; that it was the duty of the' defendant whenever an unsafe and vicious mule was brought into said mine and placed under plaintiff’s charge to inform him of the vicious propensities of said mule; that defendant negligently caused two mules to.be brought into said mine and placed in plaintiff’s charge; that said mules were unsafe and vicious and would, without provocation, kick and injure persons coming near to them; that such conditions were known to the defendant or should have been known to it, and were unknown to the plaintiff ; that while plaintiff was engaged in caring for said mules, exercising due care and caution for his safety, he was kicked by both of said mules and his left leg broken, and otherwise injured.

It appears from the record in this case that for about two years prior to January 10, 1909, the appellee was engaged in caring for the mules of appellant that were-placed in its stable in the mine; that his duties consisted in part in feeding, watering, currying, harnessing and otherwise caring for such mules as were placed in the stable; that on the day of the injury there were three mules in the stable, one called Cute, ’ ’ one called New Mule” and one Old Stud,” together with other mules; that on this day, being Sunday, -appellee went to the mine shortly after dinner to go down and feed the mules but the engineer would not permit him to go down because, as he claimed, appellee was in an intoxicated condition and not fit to go down; that he directed appellee to go and return later, which appellee did, and about six o ’clock, in company with Fred Eembkee, was let down into the mine to feed the mules; that appellee turned the "Cute” mule loose to get water, and led the other mules to water; that after the mules were placed back in the stable he took a bucket of corn to feed them and went in and fed the “Cute” mule and as he started in to the stall of the “New Mule” it kicked his bucket and kicked him up against the side, and at the same time the mule called Old Stud,” which was standing by the “New Mule,” kicked him upon his leg and broke it. The mule called Old Stud” had several months prior to this been in the mine at work but some three or four months prior thereto had been removed from this mine to another of appellant’s mines. It was claimed by appellant that the mule was moved because appellant had put a motor in their mine and had no use for all of the mules, and that several mules at that time were moved out to another mine.

On the other hand, it is claimed by -appellee that this mule "Old Stud” was a kicking mule and that a committee of drivers waited upon the mine manager and demanded that this and other mules be. taken out of the mine. The mine manager claims that the mule that they demanded to "be taken out of the mine was named “Bob,” and that he never heard a complaint about this mule “Old Stud;” but says they had a strike on hands and to settle the strike they had to take three or four away. I know "Bob" was a mule that was taken away, “Old Stud” and “Old Sailor,” and that there were three or five mules objected to after several days. "Witnesses for appellee testified that the mine manager was advised that “Old Stud” was a kicking’ mule. In fact, there was sharp conflict in the testimony upon the question as to whether or not the mine manager had knowledge of the fact that “Old Stud” was a kicking mule, and that he was removed from the mine on that account. The evidence tends to show that several months-after these mules had been removed from the mine, and in about the month of December, 1908, “Old Stud” was brought back to the mine and the “New Mule” placed in the mine at about the same time, and placed in appellee’s care; but appellee denies that he knew that the mule brought back to the mine was “Old Stud; ’ ’ that he had been sheared in part and so changed that he did not know him; that he looked something like him, and he heard some of the drivers say that it was “Old Stud,” and that he inquired of the boss driver if this mule that was brought back to the mine was “Old Stud” and the boss driver told him it was not, but told him it was a mule brought there from the lead works. The testimony upon the question -as to whether or not appellee knew this mule, when he was brought back to the mine, was quite conflicting. While appellee admits that he knew the disposition of “Old Stud” to kick, denies that he knew this was “Old Stud.” If it is true that appellee knew the disposition of “Old Stud” to kick before its removal from defendant’s mine, and appellant also knew of such disposition, and in a few months returned “Old Stud” back to the mine, and when suspicions were aroused among the drivers that it was “Old Stud,’’and the manager assured the men and appellee that it was not the mnle, and that this was a mule brought from the lead works, and thereby deceived the appellee, then we do not think it can be said that he assumed the risk of being kicked by “Old Stud.” We think that all of these matters were questions of fact to be determined by the jury, and we can see nothing in the evidence by which we can say that the verdict of the jury is manifestly against the weight of the evidence.

Counsel for appellant claim that before one can recover on account of the vice of an animal it must be shown that the master knew that the animal had the propensity to commit that particular vice. If he means by that, that the mule must be shown to have the propensity to kick then we agree with him in his proposition, but if he means by it that the mule must be shown to have the propensity to kick while in the stable only, then we think his position is not in harmony with the rule laid down by our Supreme Court. In the case of Manufacturers’ Fuel Co. v. White, 228 Ill. 187, the court says: “Instructions given did not require that the jury find, as a necessary element of plaintiff’s cause of action, that the animal had a vicious and dangerous propensity to kick mankind, and it is urged that a propensity to kick, which was merely an evidence of ill-temper and not the result of a desire to injure a human being, is not sufficient to establish the liability of the master, the owner of the animal, even where he has knowledge of its propensity and where the servant injured has no such knowledge and is not chargeable with such knowledge. * * * On reason we are unable to perceive any distinction between directing the use of an animal that is dangerous on account of its peculiar inclination to kick under certain circumstances, even though its efforts in that regard be not particularly directed against mankind, and directing the use of an instrumentality or appliance of a mechanical nature which is dangerous to the servant.” In other words it is sufficient to show that the disposition of the mule was to kick, and need not be confined to a particular circumstance of its kicking, making the real question whether or not it had a propensity to kick. There was evidence tending to show that the “New Mule” had kicked one time while at work; that the manager was advised of this, and was also advised that this “New Mule” was liable to be a kicking mule; hut the injury in this case seems to have been inflicted by a kick from the mule "Old Stud, ’ ’ and we do not regard it as very material whether the master was advised of the kicking propensity of the “New Mule” or not.

Appellant claims that the court erred in refusing some of its instructions, and the first one complained of is quoted on page 29 of their brief, which states, “The Court instructs the jury that if you believe from the evidence that the plaintiff was kicked by the mule known as Old Stud mule, and that the plaintiff himself before that time knew that this mule had the propensity or inclination to kick, then he assumed whatever risks there were of being kicked in handling or working with this mule and cannot recover in this case under such facts, and you should find the defendant not guilty.” We think this instruction was misleading, in this, appellee did not deny but what he knew of the kicking propensities of the mule called “Old Stud” but he did deny that he knew this was the same mule, and we think the instruction was vicious in not recognizing that feature of appellee’s contention. This instruction also should have been confined to the first and second counts which were directed to the “Old Stud” mule.

Complaint is also made of the refusal of the court to give the following instruction:

‘ ‘ The court instructs the jury that if you believe from the evidence in this case that the plaintiff was a mule feeder in defendant’s mine, and that as such he had charge of all the mules in defendant’s mine, including the mules mentioned in plaintiff’s declaration, and that he had equal opportunity with the defendant to know or learn of any vicious habits of such mules, or their propensities to kick, if they had such propensities, then in law he assumed whatever risks there was on account of its conditions and would not be entitled to recover, if you believe from the evidence he did have such opportunity. ’ ’

The principle involved in this instruction was fully given in defendant’s instruction No. 9, as shown by page 63 of the abstract.

The appellant also complains of the refusal of the court to give the following instruction:

“The court instructs the jury that if you believe from the evidence in this case that the plaintiff at the time the mule called Old Stud was returned into defendant ’s mine in 1908, knew that he was the same mule that had formerly been in said mine or that by the exercise of ordinary care he could have known, or that he had equal opportunity with the defendant of discovering such fact then the plaintiff is not entitled to recover in this case and you should by your verdict find the defendant not guilty.”

We think the court properly refused this instruction as it is applicable to but two counts of the declaration and not to the others. It ignores the plaintiff’s knowledge as to the disposition of this mule to kick and caused the whole case to turn upon the question of the knowledge of the plaintiff as to the return of the mule, eliminating all other questions and yet directs a verdict. We think the court ruled properly upon this instruction.

While it is true that the evidence in this ease in some of its features is not very clear and convincing, as appears from the record, yet the evidence of appellee standing alone would be sufficient to warrant a jury in finding the issues in his favor, and the testimony being quite conflicting as to much of the testimony in the case, they were matters, in our judgment, to be settled by the jury, and we cannot say that the verdict of the jury is manifestly against the weight of the evidence, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Morris L. Smith, Administrator, Appellee, v. East St. Louis Railway Company, Appellant.
    1. Negligence—when motorman guilty of. Held, that the jury were warranted in finding that the child killed was on the track of the defendant traction company or so close to it and between the track and a pile of brick by the side of the track that it imperiled the life of the child and that the motorman ought by reasonable diligence to have observed the child and its peril and avoided the injury.
    2. Negligence—how may he established. The fact of negligence may be established by circumstantial evidence.
    3. Presumptions—tvhen not indulged. A presumption emnot be based upon a presumption of negligence, and the existence of a certain fact cannot be reasonably inferred from the evidence if the existence of another fact, entirely inconsistent with the first, may be inferred as certainty from the evidence.
    4. Instructions—when upon question of negligence proper. Held, that an instruction upon this subject as follows was proper:
    "If you believe from the greater weight of the evidence that no witness or witnesses saw or observed the immediate cause of the injury to the deceased, then in determining the evidence the immediate cause of the injury to deceased, you have a right to consider all of the facts and the circumstances detailed in evidence by the witnesses in the case and you may find the immediate cause of the injury to be proven by, or from any facts or circumstances, if any, from which you may believe the immediate cause of the injury to the deceased may be rightfully and reasonably inferred. ’ ’

      5. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard,. Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.

      Barthel, Farmer & Klingel, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is an action brought by the appellee against the appellant in the City Court of East St. Louis, Illinois. The case was tried before a jury; a verdict was obtained against the appellant for $2,000; motion for a new trial was overruled and a judgment rendered upon the verdict. The appellant brings the case to this court by appeal. The declaration charges that on about the 16th day of October, 1910, the defendant was operating a street railway on and over Louisiana Boulevard, a public street in the city of East St. Louis, and engaged in the carrying of passengers over and along said railway; that one Richard Smith, a child of the age of two years, was passing on and along said railway and street and the appellant was driving a car in the direction of and toward the said child while he was passing over and along said street; that the agents and servants of the defendant in charge of said car negligently and carelessly failed and omitted to observe the presence of said child on said railway and street, in consequence of which the said car ran up to and over said child and crushed and mangled one of its feet, from which injury the said child died, and left the plaintiff, his father, and 'Ada Smith, his mother, and Flossie Smith, his sister, as the only surviving heirs.

The appellant filed a plea of not guilty.

The facts in the case, as appear from the record, are that on the afternoon of October 16, 1910, Ada Smith, the mother of the child in question, had recently moved into rooms in the rear of and connected with the store of a Mr. Burke; there was a door opening from the store back into the rooms; they had dinner about a quarter after two and the child was at home for dinner ; after dinner Mrs. Smith was engaged in cleaning up the dishes and straightening up the furniture, as she had moved there on the day before, and placed the child in the store in the care of Mr. Burke. She observed the child from time to time and had not missed him until about ten minutes before she heard of his injury. It appears from the evidence that the street upon which the child was injured was closed to travel and that they were then engaged in paving the street; that brick had been hauled and piled in a row or ridge on the north side of the railroad track in said street; that the ridge of brick was from three to four feet high, and the brick, came within from six- to eighteen inches of the railroad track, as some of the witnesses expressed it, the steps of the car just cleared the brick. At some time between three and four o’clock one of defendant’s cars in charge of Reaves as motorman was going west on said street, and he observed this little boy playing upon the track and frightened him off; the car that followed this one, in about twelve minutes, was operated by motorman Murray; another car was being operated by motorman Allman and going east; this car stopped and picked up the boy after the car operated by Murray had gone west. After motorman Murray with his car going west had passed the point where the child was found, he was met by witness Gruentzemacher, and this witness says that after this car passed him, “I went east a little farther and saw the child lying close to the track.” The child when found was lying very close to the rail with all of its smaller toes mashed off and hanging to the foot by the skin of the lower portion of the foot; the big toe was still intact, was bruised, and the end of one of the fingers of the left hand was mashed, and bruises and cuts were all over the body but no other bones were broken. The toes were amputated but the child died on about the 27th. of October from the injuries inflicted. A shoe was found upon the foot of the child, apparently worn upon the left foot; there was a cut extending diagonally across the toe of the shoe, and the sole of the shoe on the left side was pressed away from the upper in two places; on the bottom of the shoe was a mark about two inches wide, and the right side of the shoe, from the front back to the heel, was torn or bursted out. No one saw the accident, and no one appears to have seen the child after it was passed by motorman Eeaves until after motorman Murray had passed the same point and the child was found by witness Gruentzemacher.

It is contended by counsel for appellant that the conclusion that the child was killed by the negligence of appellant is but an assumption and a speculation, and that the child was not on the track, and cites the testimony of motorman Murray and the conductor and also that of Edward Gruentzemacher. It is true that the testimony of Murray and Gruentzemacher is to the effect that the child was not on the track but Murray does not state that he was observing the street and track at the time, and the other witness was more particularly watching the car; however, the physical fact is, that the child was badly injured and this fact so confronts counsel for appellant, that they attempt an explanation of the occurrence that would place the injury of the child upon some other party than the defendant and say that it may have been injured by an automobile or wagon that were shown, by some of the witnesses, to have been in the neighborhood, but it nowhere appears that the automobile was close to the child, and the wagon referred to was shown to have been on the other side of this ridge of brick from the child. We are satisfied that the jury was warranted in finding that the child was on the track, or so close to it and between the track and. the brick piled up by the side of the track that it imperiled the life of the child, and was dangerous, and that the motorman ought by reasonable diligence to have observed the child and its peril and avoided the injury. We do not think it material under the allegations of this declaration whether the child was directly on the track in front of the car or so close to the track and hedged in by the pile of brick, that when the car ran up, the child may have become frightened and in attempting to escape placed its foot under the wheel of the car. Had the street on the north side been open north of the track, and the brick had not been piled up to within about twelve inches of the track, then if the child was not on the track but beside it, it might not have been negligence in the motorman to have failed to have observed the child and avoided the injury. The motorman does not say in his testimony that he was on the lookout or that he observed carefully, only that he did not see the child on the track, and that the child was not on the track. The theory of appellant was, that the car could not have passed over the child’s foot in the manner claimed by appellee for the reason that it would have crushed the foot of the child above the impression claimed to have been made by the track on the bottom of the shoe. On an examination of the shoe arid the facts in the case we find that the opposite side of the shoe was torn along its side from the toe back to the heel, and that in all probability the foot was relieved from the crush by the pushing out when the car pressed against the foot; at least this may have been so.

The theory and contention of appellant that the injury may have been caused by an automobile or wagon that were seen in this vicinity near that time we cannot accept, for if the foot had been run over by either it would not have left the impression of the rail on the bottom of the shoe or cut the toe of the shoe in the manner shown by the evidence.

We agree with counsel for appellant in their contention as to the rule of law, that presumption cannot be based upon a presumption of negligence, or that the existence of a certain fact cannot be reasonably inferred from the evidence, if the existence of another fact entirely inconsistent with the first may be inferred as certainty from the same evidence, but in this case the jury were fully warranted in finding from the evidence that the child was injured by the defendant’s car, and that fact being found we cannot say that" under the state of the evidence here that the jury was not warranted in finding that it was due to the negligence of the defendant’s servants. This negligence may be shown by circumstantial evidence, “or as has been some times said, it may be inferred by the jury from circumstances appearing in proof.” U. S. Brewing Co. v. Stoltenberg, 211 Ill. p. 531. It is also a well recognized rule in this state, “That when the facts are established from which presumption may be legitimately drawn, it is the province of the jury to deduce the presumption or inference of fact.” Sontag v. O’Hare, 73 Ill. App. 432; Peoria & P. U. Ry. Co. v. Clayberg, Adm’r, 107 Ill. 644; U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531.

It is again insisted that the court erred in giving to the jury the following instruction:

“If you believe from the greater weight of the evidence that no witness or witnesses saw or observed the immediate cause of the injury to deceased then in determining the evidence the immediate cause of the injury to deceased you have a right to consider all of the facts and circumstances detailed in evidence by the witnesses in the case; and you may find the immediate cause of the injury to be proven by or from any facts or circumstances, if any, from which you may believe the immediate cause of the injury to the deceased may be rightfully and reasonably inferred.”

We do not think the criticism upon this instruction and the second instruction of the same character,- is well taken; whether the accident was caused by appellant and the manner in which the accident happened, are all matters left to the jury to be determined from the facts and circumstances, and we think these instructions are sustained by the case of The North Chicago Street R. R. Co. v. Rodert, 203 Ill. 413, and were proper.

As to the instruction of appellant that was refused, we do not believe that the objection to the refusal of it can be sustained, for the reason that the proposition contained in this instruction was included in the instruction given by the court upon behalf of appellant. It is said this instruction should have been given because it directed the attention of the jury to the particular negligence charged in the declaration, and no other instruction did this. It will be observed that the instruction merely advised the jury that he must prove the particular negligence he has alleged in his declaration, and another instruction given on behalf of appellant contains the proposition, “If you further believe from the evidence that the plaintiff has not proven by a preponderance of the evidence that he was injured by the negligence of the defendant as charged in the declaration, then the plaintiff cannot recover and your verdict must he for the defendant.” We do not see but what the proposition contended for in the refused instruction is included, in the instruction as given. It is true that in the refused instruction the words “particular negligence lie has alleged in the declaration” are used but we do not believe there can be any difference between that, at least in substance, and saying, “the negligence of the defendant as charged in the declaration; ’ ’ they both refer to the charge in the declaration.

We are unable to say that the court erred in the giving and refusing of the instructions complained of.

We have carefully considered the evidence in this case, and it being in its character, especially many features of it, proven or disproven by circumstantial evidence, we think, the circumstances would warrant the jury in finding that the deceased was injured by the defendant’s car and as a result of the negligence of its servants. The evidence was of that character that it was purely a question for the jury to determine and we cannot say but what the verdict is sustained by the evidence, and the judgment of the court should be affirmed.

Judgment affirmed.


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    Joseph Martini, Appellee, v. Donk Brothers Coal & Coke Company, Appellant.
    1. Verdicts—supported Toy plaintiff’s testimony alone. Seld, that a verdict will not necessarily be set aside although supported only by the testimony of the plaintiff contradicted by credible witnesses and other corroborative evidence.
    2. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.
    3. Instructions—ignoring material elements. An instruction which concludes with a direction is properly refused if it ignores material elements or issues in the cause.
    4. Instructions—invading province of jury. An instruction is properly refused which points out a particular thing that would constitute contributory negligence and prevent the plaintiff from recovery.
    Action in case for personal injuries. Appeal from the Oity Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    Dan McGlynn, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action brought by appellee against the appellant in the City Court of Bast St. Louis, Illinois, for damages on account of an injury received by him on November 21,1908. There were two trials, the first resulting in a verdict in favor of the plaintiff for $2,090, which verdict was set aside and a new trial granted. The second trial resulted in a verdict for the plaintiff for $1,000, upon which judgment was rendered and the cause appealed to this court by the defendant.

The declaration alleges in substance, that the defendant was operating a coal mine in Madison county, Illinois, and that in its said mine certain tracks were used for the purpose of handling empty cars thereon which were returned from the pit top after being unloaded; that a certain track, known by defendant as the runaround track, was used for the purpose of storing empty cars and making up trips of the same to be taken therefrom to the various rooms and working places of the miners employed in said mine, by means of an electric motor or engine, which motor and trips of cars were operated and controlled by a motorman of the defendant named Carpenter; that plaintiff was directed by the defendant to assist the said motorman in conveying loaded cars to the bottom for the purpose of being-hoisted to the top, and trips of empty cars when taken from said run-around track to the various working places in said mine; that in performing such duties he was called a trip rider and was under the control of the motorman, and was unfamiliar and inexperienced with the duties of such position, and the dangers arising from uncoupling said cars, and wholly unfamiliar with the manner of handling empty cars on said runaround track; that defendant had a certain endless chain near the bottom of said shaft which it used for the purpose of moving empty cars when returned to the bottom, and the said run-around track on which empties were stored, and defendant permitted empty cars from time to time to be thrown to and against other empty cars standing on said track, all' of which the plaintiff, at the time complained of, was unfamiliar with and was inexperienced and had no notice or knowledge of the method employed by the defendant in handling said empty cars; that on the date aforesaid he was directed by the said Carpenter, motorman in charge of said motor, and whose orders he was bound to obey, to uncouple a certain number of cars in a string of empty cars then standing on said run-around track; that while attempting to make such uncoupling and while in the exercise of due care and caution for his own safety, and while without any notice or knowledge of the dangers of uncoupling such cars, under such conditions, certain other empty ears were run down on said run-around track against the empty cars thereon standing so as to push and shove the same against the cars which the plaintiff was trying to uncouple, whereby the plaintiff’s right hand was bruised, mashed and wounded, and the bone broken, and the leaders and muscles of his wrist and hand were injured and destroyed, and that he was permanently disabled thereby.

The amended declaration is the same as the original except that in the amendment it is alleged that Carpenter carelessly and negligently ordered and directed the plaintiff to uncouple a certain number of cars in a string of empty cars then standing on said runaround track, and without instructing or warning the plaintiff of the dangers and perils ordinarily incident to said work, in the manner it was then being conducted.

Counsel for appellant claim, first, that the appellee did not make out his case by a preponderance of the evidence, as the law required he should do; second, that the court committed reversible error in refusing’ to grant, a new trial; third, that the court erred in refusing certain instructions offered by appellant.

We will consider the first and second of these claims together, as the determination of these matters depends upon a consideration of the evidence. There is not much dispute about the facts in this case, except as to what occurred just prior to and at the time that appellee was attempting to uncouple the cars.

It appears from the record, that the defendant’s method of handling the coal at this mine was, that tracks were maintained at the bottom and on each side of the shaft to correspond with tracks set on the floor of the cage, when the cage was at rest, and would be on a level and constitute a continuous track over the cage; that when an empty car was sent down from the top and the cage was at rest, a loaded car was pushed on to the cage and against the empty car, and caused it to run off on to the tracks on the opposite side. When the car thus pushed off would go upon the tracks it was carried by its own momentum to a given point where a chain became attached to the car, which pulled it up an incline. The machinery was then released and the car continued to run down a decline; this track was partly on a curve so the empty cars which left the cage followed this curved track which would cause the cars to eventually be collected in the opposite direction from which they were started from the cage, and this was called the run-around track, and was where the empties were placed preparatory to distributing these empty cars to the various parts of the mine, as they were needed, to be filled with coal. A motor was in use at this mine which was operated by electricity. The motor would come in to this runaround, or storage track, after the empties and be coupled on to an empty car and this empty car was coupled to a number of other empty cars, in the same manner as freight cars are coupled together to be drawn by an engine. The coupler used to connect these cars was a hook and link. The cars when placed on the run-around were hooked together by men kept there for that purpose, and when the motorman desired to take a trip of empty cars out into the mine he advised the helper how many cars he wished to take and it was his duty to cut off from this run-around track the number of cars the motorman desired. Each end of these cars is provided with a bumper; on one end there is a hook fastened in to this bumper and at the opposite end a link, so as to form a means of coupling the cars. On the day that appellee was injured, he had made six or seven trips with the motorman and uncoupled the cars as the motorman directed. This, however, was not the regular work of the helper but he had been assigned to that duty that day. He had helped in this same work on a former occasion about a half day or a day. It does not appear how long prior to this time that he assisted the motorman. It is claimed by appellee that on the day he was injured the motorman had hooked on to a string of cars and was pulling them out toward the main entry, and directed the appellee to go back and, when lie stopped, to cut off a certain number of cars; that appellee went back for that purpose, and, as he claims, when the motorman stopped the train of cars he went in between two of the cars and pushed them apart a few inches so as to enable him to reach in and uncouple the cars, and that while doing this an empty car came over the run-around track from behind him and struck .the cars in the rear that he was attempting to uncouple, and the bumping of the cars caused his hand to be caught between the bumpers and injured him. He says further, that he had no knowledge that this car was coming around and knew nothing about how the cars were operated from the shaft point to that point, and that he had not been instructed in this matter.

It also appears from the testimony of the motorman that he had not given appellee any instructions, except about uncoupling the cars, and states that appellee was assisting- him and under his charge and directions. It is claimed by appellant that at the time that appellee attempted to uncouple the cars he did not wait until the motorman stopped the cars but ran in while the cars were in motion, and attempted to uncouple them, and that the stopping of the motor caused appellee’s hand to be caught and injured. And the real point of dispute in this case, as appears from the argument of counsel for appellant and appellee, is whether or not the appellee waited until the motor had stopped before attempting to uncouple the cars, or whether he attempted to uncouple them while in motion; and upon this point the testimony is very conflicting. The motorman says that he directed appellee to wait until the motor stopped before attempting to uncouple; the appellee says that he did wait until the motor stopped before endeavoring to uncouple the cars, and that the cars were standing still at the time he attempted to make the uncoupling. The motorman also says that after stopping his train he waited two or three minutes for the signal from appellee to move up but reoeived none, and after waiting a minute longer the appellee came up exhibiting his hand injured. The motorman said that it had been the custom while he was working as motorman to give the trip rider instructions what to do and that he did instruct the appellee about cutting off the cars but did not tell him anything about this endless chain, nor its operation, nor about the other cars being likely to come down. The only instruction given was to cut off the amount of empties needed.

John Mason, a witness for defendant, testified that appellee got hurt about half past twelve, and at that time he was at the end of the empties waiting for the motor to pull them down. That he did not see the motor come down or move the cars; that at the time appellee was hurt the cage was not running; that he saw appellee attempting to uncouple the cars while the cars were in motion; that there were no empties coming down on the run-around track at that time, and that he was about five cars from appellee, and that he was alone at the time. But on cross-examination he was asked the question, “Didn’t you testify on the former trial of this case that you and Ziegler had eaten your dinner out on the main entry, and that you were out there when the whistle blew and that both of you came in to the run-around just before the time Martini was hurt, is that what you said?” A. Yes, sir. (Appellee’s brief, page 11, Rec. page 63.)

Fred Ziegler, a witness for appellant, testified that he and John Mason were engaged at work for appellant at the time appellee was injured, and that their business was to couple the cars as they would come in on the run-around, and says that he stood at the bottom where he could see the empty cars come down and that none came, and that no empty cars ran down around that track that bumped in the car that appellee was attempting to uncouple within a half hour, and that Martini was hurt twenty-five minutes to one. The place at which he was then standing’ was some distance from where appellee was hurt, and he does not claim to have been able to see appellee; that the cage had not been hoisted or moved for five minutes after half past twelve; but on cross-examination he says that there were a number of loads at the bottom to go up; that they had quit at twelve o’clock for the purpose of getting lunch, -and that ordinarily five cages go up every minute; that for five minutes after the whistle blew they did nothing at the cage; that the cage did not move, but later on, as appears from page 67 of the record, he says that the cagers were there and that men were going up, but was unable to tell who they were; and also states that on the former trial he told that men were going up on the cage but after-wards admits that the question was not asked him.

On the cross-examination of appellee, after stating that cars came down and bumped the car that injured him, he says that he did not see the cars. Counsel for appellant and appellee have taken up the criticisms above referred to, of the opposite witnesses, respectively, and each insists that the testimony of the respective witnesses was weakened by the statements, called by each of them contradictions. It is quite apparent that the conduct and bearing of the several witnesses upon the witness stand, and their apparent fairness or want of fairness would have very much to do with determining who was telling the truth about this matter, and while it is true that some of the matters called contradictions are not very material, yet there may have been enough in their conduct to have satisfied the jury. At least we cannot say that the verdict of the jury is manifestly against the weight of the evidence.

Counsel for appellant has referred us to many cases holding that the Appellate Court will not permit a verdict to stand where the case rests upon the testimony of the plaintiff alone, and is contradicted by credible witnesses and other corroborated facts, but on examining these cases we find that in almost every instance there was some fact, either in the weakness of the testimony of the appellee or in some corroborating circumstance or fact in the testimony of appellant that influenced the court in the making of such decisions, but does not change the rule above announced with reference to the disturbing of the verdict of the jury.

It appears from the record that this case has been twice tried before a jury resulting in a verdict for appellee; that the trial court has heard the witnesses and had the opportunity to grant a new trial, if in his opinion the verdict was not supported by the evidence, and under the statements of this record we feel unwilling to disturb the verdict.

The next contention is that the court erred in the refusal of the first and second refused instructions, offered by appellant. The first refused instruction is as follows:

“The court instructs you that you have no right to regard the defendant as negligent in this case simply because plaintiff was injured. The mere accident to the plaintiff in this case is of itself no evidence of negligence on the part of the defendant.”

Barring the use of the word “accident” this instruction would have been proper. We think, however, this instruction was given in better form in the last of appellant’s given instructions, the latter part of which says, “and you are instructed in this case that you have no right to say the defendant company was negligent solely because the plaintiff was injured while working for the defendant, the fact of his injury is not in itself proof of negligence on the part of the defendant, but on the contrary the plaintiff before he can recover must show by the greater weight of the evidence that defendant was guilty of negligence and that he himself was using ordinary care to save himself from injury.” There is no cause for complaint because of the refusal of this instruction, as the exact idea is herein expressed that was sought to be by the refused instruction.

It is claimed that appellant’s second refused instruction should have been given, which is as follows:

‘ ‘ The court instructs you that in his declaration the plaintiff has charged that he was injured by the negligent order of the motorman Angelo Carpenter to uncouple a certain number of cars in a string of empty cars then standing on the run-around track, and that while plaintiff was attempting to make such uncoupling, and in the exercise of due care and caution for his own safety, certain other empty cars were run down on said empty track against said standing empty cars plaintiff was uncoupling so as to push them against the cars plaintiff was then attempting to uncouple. You are instructed that if you believe from the evidence that the injury in this case was not due to the order or that plaintiff had notice or knowledge of the dangers and perils of uncoupling the cars under such circumstances, or if you find that the injury was occasioned by plaintiff attempting to uncouple the cars while in motion, or if you find from the evidence that no empty cars did come down and bump against the cars plaintiff was uncoupling, then in neither of these cases can plaintiff recover in this case then your verdict in that event should be for the defendant.”

The statement in this instruction of what is contained in the declaration is not very accurate as it omits from it some of the important elements of the charge that is made. The declaration not only alleges that the order was given by the motorman, but alleges that the appellee, to whom the order was given, was unfamiliar and inexperienced in the duties of a trip rider, and the dangers arising from the uncoupling of the cars and the manner of handling empty cars on said track, and we think that this instruction in attempting to state the declaration was erroneous in not including that element. Hirsch & Sons Iron Co. v. Coleman, 227 Ill. 149. We think this instruction is erroneous in that it limits a verdict, ignoring other acts of negligence alleged in the declaration and which the evidence tends to prove; and it is further objectionable in that it tells the jury “or if you find that the injury was occasioned by plaintiff attempting to uncouple the cars while in motion” that he could not recover. This part of the instruction is clearly erroneous, in that it points out a particular thing that would constitute contributory negligence and prevent the appellee from recovery. This kind of an instruction has often been condemned by our Supreme Court. That is purely a question of fact to be determined by the jury as to what particular thing, under all the circumstances, would constitute such contributory negligence as to prevent a recovery, and we think the instruction was properly refused. Drainage Commissioners v. I. C. R. R. Co., 158 Ill. 353; West Chicago St. Ry. Co. v. Petters, 196 Ill. 298.

We are of the opinion that there is no reversible error in this record, and the judgment is affirmed.

Judgment affirmed.


text:
    Isham Russell, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Appellants.
    Negligence—what prerequisite to recovery. In order to recover for the negligent conduct of another, a person injured or killed must himself at the time of the accident have been in the exercise of ordinary care for his own safety.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 21, 1912.
    W. F. Scott, for appellants; P. J. Kolb, of counsel.
    J. B. Lewis and Sigel Capel, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

Appellee recovered a judgment against the appellants in the Circuit Court of Saline county for nine hundred dollars, to reverse which judgment this appeal is prosecuted. Carrier Mills is a town of about two thousand inhabitants, situated on the C. C. C. & St. L. Railroad in Saline county. On the morning of March 9, 1909, at about four o’clock, the station house of said railroad at said town was burned, and when the building burned the telegraph wires dropped down on the ground or platform and remained there until about seven o’clock A. M., at which time the section foreman and others tied up said wires. The depot platform was about one hundred feet long and was located on the south side of the railroad which extended practically east and west. While the wires lay upon the platform one of them from some apparently unknown cause became charged with a heavy voltage of electricity which caused sparks to emit from the end of the wire and to burn the coal and such things as might come in contact with it and to cause severe shocks to persons who might happen to touch it. There was a train due to arrive upon defendant’s road at about eight o ’clock in the morning. At about 6:30 or 7 o’clock in the morning the section foreman and others in charge at the depot tied up said wires, including the one so heavily charged with electricity, at a distance from four to seven feet over the platform and at or near the south end of the platform. The depot building was entirely burned up, and from the time of the fire until the deceased was killed quite a number of people were gathered upon this platform. After the wires had been tied up and before the arrival of any train the deceased and his father came to the depot and entered upon the depot platform; the father claimed that the deceased was expecting to take the train that was to arrive at about eight o’clock for Harrisburg. While the deceased was there his friend Milo Motsinger went over to where he was and they got to talking about the wire and the deceased said he believed he would put the ear of Motsinger to it and that they would both get a shock, and then took hold of Motsinger and while they were in the scuffle the deceased reached up his hand and took hold of the live wire and was instantly killed. The right of action is based upon the original count of common law negligence, and the other counts charging that the defendants were wilfully, wantonly and knowingly negligent.

The first, or original count of the declaration charges that the defendants negligently permitted said wire, so charged with electricity, to remain at and above the said platform at the distance of, to-wit, four feet, and that by reason thereof persons lawfully upon said platform were in danger of being injured thereby, and that the deceased while in the exercise of due care for his own safety was killed through the negligence of defendant permitting said live wire to be suspended as aforesaid.

On the first trial of this cause the Water and Light Company was joined as a party defendant but the court directed the jury to find it not guilty, and the succeeding trials proceeded against the other two defendants. Thereafter the plaintiff filed four additional counts, denominated, additional second, third, fourth and fifth, and in these counts and each of them the 'defendants are charged with having wantonly, wilfully and knowingly allowed the said wires, so charged with the currents of electricity, to be and remain above the said platform, and that said wire was so near to said platform as to be dangerous to persons then and there on said platform, and while the deceased, Laurence Bussell, was lawfully upon said platform he came in contact with said live wire and was thereby killed. To each of these counts of the declaration the defendants filed a plea of not guilty, and also a plea of the statute of limitations. The plaintiff filed a demurrer to the plea of the statute of limitations and the court sustained the demurrer as to the plea of the statute of limitations to the second, third and fourth additional counts, and overruled the demurrer, as to the plea of the statute of limitations, to the fifth additional count. No replication was filed to this plea to the fifth count but the cause proceeded to trial upon the original declaration, the second, third and fourth additional counts and the plea of general issue thereto.

The appellants assign as error the ruling of the court in sustaining the demurrer to the several statutes of limitations, the joint liability of the defendants, several rulings of the court upon the admissibility of testimony during the trial of the case, the refusal of the court to direct a verdict and the refusal of the court to set aside the verdict and grant a new trial herein.

After carefully examining the evidence in this case we deem it necessary to consider only one proposition and that is, as to whether or not under the evidence introduced in this case the defendants are liable for damages in causing the death of Laurence Bussell. Under the original count of the declaration it was necessary for the appellee to prove that the defendants were guilty of negligence,'and that the appellee’s intestate was in the exercise of due care and caution for his own safety. The evidence discloses, in this case, that before the appellee’s intestate and his father came on to the platform that the wires, including the one so heavily charged by electricity, had been by the agents of the defendants picked up from off of the platform and tied up at or near the south end of the platform, and at a height of from four to seven feet above the platform, most of the witnesses putting it at five and a half feet, and while the wire was in this position the deceased came upon the platform and after reaching the platform his friend, Milo Motsinger, says, “When I went over there we got to talking about the wire and he said he believed he would put my ear to it and we would both get a shock; he took hold of me and we began to scuffle. When he took hold of the wire it knocked me loose from him and knocked me about fifteen or twenty feet. When he told me that he was going to put my ear against it and give us both a shock I told him not to do it, it might hurt us.” “I told Bussell we might get hurt and he said it was only an ordinary telegraph wire and would not hurt any one.”

William Capel told them when they were scuffling that they had better quit it as one of them might get against the wire and get killed, and he says he saw Russell grab at the wire.

James Lewis says he saw one of Russell’s hands go up three or four times grabbing at the wire before he got hold of it.

"S. T. Barnes says that he spoke to Russell and told him if he took hold of that wire it would kill him; that he did this while they were scuffling.

Dan Altmier says that he saw Russell reaching up with his right hand four or five times before he got hold of it and as soon as he got hold of it, it killed him.

There was an effort made by appellee to rebut some of this testimony by showing that other people who stood around there did not hear the statements testified about but we do not think this- sufficient to rebut the statements of witnesses who claim to have heard and made the declarations themselves. There was at least three witnesses who testified that the deceased was admonished not to take hold of the wire and several who testified that he made several efforts before getting hold of it. We think this evidence together with other evidence in the record conclusively shows that the deceased was not in the exercise of due care and caution for his own safety, and appellee is barred from a recovery under the first count of this declaration. Counsel for appellee says: “The preponderance of the evidence was clearly sufficient to convince the jury that the death of Laurence Russell was occasioned by and resulted from the willful, wanton and gross negligence of both defendants.”

In the case of I. C. R. R. Co. v. Leiner, 202 Ill. 624, willful or wanton negligence is defined as, “An entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness, such as charges the person whose duty it was to exercise care, with the consequences of a willful injury;” and this was approved in the case of Toledo, St. Louis & Western R. R. Co. v. Baker, 138 Ill. App. 83.

It is also said in the case of East St. Louis Connecting Ry. Co. v. Meeker, 119 Ill. App. 27: “It is contended however, that the action of Dwire in giving the signal was so grossly negligent as to import willfulness and wantonness on his part. In I. C. R. R. Co. v. Leiner, 202 Ill. 624, our Supreme Court indorsed an instruction stating, ‘What is meant by willful and wanton misconduct is such conduct as amounts to an intentional wrong or of such a reckless character, as shows that the person or persons guilty of such .misconduct, were at the time acting in such a ¡manner as shows that they had an utter disregard for the safety and lives of other persons.’ ” Indeed many authorities might be quoted to the same effect. If the defendants were acting in utter disregard for the safety and lives of other persons we are unable to understand and appreciate why it was that they caused the wires, including the live wire, to be suspended sufficiently high above the platform that no one need come in contact with it, unless they voluntarily did so. Counsel for appellee argues that because the wires were permitted to lie upon the platform until 6:30 or seven o’clock, and while they were there sputtering and emitting electric sparks, and the people who were then there were unprotected and unguarded, and that Mr. Suttlemore, the agent of the defendant, was present and saw this and laughed because some of the bystanders received a shock from this wire, that this was sufficient to show in Suttlemore, the agent, a wanton and willful negligence. This, however, all occurred sometime before the deceased came upon the platform. At the time deceased came upon the platform the wires had been taken up and suspended at a remote end of the platform and at a height sufficient to prevent injuring all persons who did not voluntarily come in contact with the wire. Even if it be conceded that this willful and wanton purpose existed in the mind of Suttlemore, or those in control at the time the wire .lay upon the platform, his mind was thereafter changed, and he caused the dangerous element to be removed from the platform; the appellee could not take advantage of any purpose that might have existed in the mind of the agent before the deceased came upon the platform, if in the meantime his purposes were changed. It appears clearly from this evidence that the deceased was apprised of the fact that one of these wires was charged with electricity, at least sufficient to shock a person, and out of mere sport he thought to subject his friend, with whom he scuffled, to a shock by this wire and while he perhaps did not appreciate that to touch it would cause instant death, yet he did know that the voltage was of such a character as to produce a shock, and notwithstanding the warning of those standing by he caught the wire and was killed, and as we see it, he himself brought on his death.

There is nothing in this record that shows any purpose or disposition upon the part of the servants of the defendants showing such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness, or a willingness to inflict an injury upon any person.

We think the verdict of this jury was manifestly against the weight of the evidence and the judgment is reversed.

Judgment reversed.

We find as ultimate facts that deceased was guilty of negligence which contributed to cause his death and that appellant was not guilty of willfully or recklessly causing his death.


text:
    The Hall’s Safe Company, for use, etc., Appellant, v. L. L. Emmerson et al., Appellees.
    Appeals and errors—when questions not saved for review. In the absence of the record purporting by the certificate of the judge to contain all the evidence heard, questions involving rulings upon the evidence, upon the instructions and upon the sufficiency of the evidence to sustain the verdict are not saved for review.
    Appeal from the County Court of Jefferson county; the Hon. A. D. Webb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Arthur T. French and Charles H. Holt, for appellant.
    G. Gale Gilbert, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.

In this case the errors assigned and argued by counsel for appellant are, that the court erred in admitting improper evidence on behalf of appellees, in excluding proper evidence offered by appellant, in giving instructions for appellees that were not based upon the evidence but upon incompetent evidence, and in the refusal to give instructions for appellant which fairly present to the jury the law applicable to the evidence tending to support his theory of the case; determination of which necessarily involves a consideration of the evidence in the case.

Counsel for appellees insists that there is no certificate of the judge showing that the record contains all of the evidence in the case, and for that reason the questions here presented cannot be determined by this court. We have examined the record and find that there is a certificate of the reporter incorporated in the record, that the foregoing is all of the evidence but there is no certificate of the judge to that effect; the certificate of the reporter cannot under the law be substituted for a certificate of the judge. It is necessary under the law that there should be embodied in the record a certificate of the judge that it contains all of the evidence in the case. In the case of Lingren v. Swartz, 49 Ill. App. 488, it is said by Judge Lacey: “It lacks entirely the certificate of the judge that the bill of exceptions contained all the evidence in the case. The certificate of the reporter cannot be substituted for that of the judge. In the absence of such a bill of exceptions as the law requires the presumptions are all in favor of the verdict and judgment, and this court will presume that the evidence was sufficient to support the verdict without reference to the instructions.” Herman v. North Chicago St. R. R. Co., 94 Ill. App. 465; Kalish v. City of Chicago, 219 Ill. 133.

We are of the opinion that the errors presented cannot under the law and the record of this case be considered by the court; and that the presumptions are in favor of the verdict and judgment rendered herein, and the judgment is affirmed.

Judgment affirmed.