text:
    George W. Cleveland, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Negligence—running over highway crossings. Railroad companies have the right to regulate the speed of their trains, but it must in such regulation keep in view the safety, not only of passengers, but also the safety of persons who may have occasion to cross the tracks in the public highways.

      2. Negligence—precautions required at railroad crossings. Just what precautions are necessary at railroad crossings is a question of fact, as in some eases greater precautions are required than in others. The facts and circumstances of each case must be considered, and the question of whether negligence has occurred is to be determined by the jury from such facts and circumstances under the instruction of the court.
    3. Contributory negligence—driving upon railroad trades. Whether it is negligence to drive upon railroad tracks in a jog or a trot is a question to be determined by the jury under all the facts and circumstances in evidence.
    Action in ease for personal injuries. Appeal from the Circuit Court of White county; the Hon. Enoch E. Newlin, Judge presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    P. J. Kolb and N. C. Bainum, for appellant.
    Conger, Pearce & Conger and W. A. Mussett, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

In this case the jury returned a verdict for the plaintiff in the amount of $400, upon which judgment was rendered, to reverse which, this appeal is prosecuted by defendant.

The injury occurred at about eight o’clock in the evening of August 26, 1910. The appellee had started from the residence of one Charles Stein, about two miles southwest from the crossing in question, and was intending to go to Grayville, a distance of about ten miles from Stein’s. He was driving a spirited mare. The highway extended north and south and the railroad from the northeast to the southwest and crossed the highway at an acute angle just north of the depot at Calvin. Calvin was a little village of forty to fifty inhabitants, and contained a store, blacksmith shop, warehouse, depot, and several other buildings. These buildings were located on the west side of the highway, which constituted the principal street of the town, and were located mostly between the highway and the railroad. The train of appellant was running at a speed of forty to fifty miles an hour, and was an extra train running about twenty-five minutes ahead of the regular passenger. The evidence tends to show that the light of the engine was dim, and that about twenty or thirty seconds immediately prior to' the injury, the engineer left his seat to shut off the injector, and did not. see the appellee. The evidence further tends to show, that the railroad track passed through a cut until within a short distance of the depot, and that the view of the railroad track or any trains passing from the south was obstructed by the buildings along the road, including the depot and the coal house, and that the view of a train passing to the north would be cut off from a traveler going north, except at intervals, until at least such traveler should reach within a few feet of the railroad track. The appellee was traveling north upon this highway, and when within about one hundred and fifty yards of the crossing he stopped and listened for a train, and not hearing any, proceeded on his journey, and on attempting to cross the railroad track was struck by the engine, his buggy torn to pieces and horse killed, and the appellee was thrown upon the ground and more or less injured. Appellee claims 'that just before going upon the railroad he looked down the track, but saw no train, and thinks that the depot obstructed his view of the train.

The evidence further tends to show, that this crossing was used daily by a great number of people and perhaps more than any other crossing in that vicinity, and was the only road through the village of Calvin.

The verdict of the jury was based upon the third count of the declaration, which charges that the defendant negligently drove the said locomotive engine and cars up to and across the aforesaid crossing at a dangerous and high rate of speed, to wit: At the speed of a mile a minute, which was dangerous to the public under the circumstances, by means whereof the engine then and there struck with great force and violence upon and against the plaintiff and his said horse and buggy.

It is contended by counsel for appellant, that no liability could exist because of the running at a high rate of speed over the crossing in question, and says the law undoubtedly is, that the railroad company can determine the speed at which it will run its trains, consistent with their safety, through sparsely settled communities and over the ordinary public highway crossings in such localities, and it is only when dangerous conditions over a crossing are so congested as to impede progress by those traveling on the highway, or when some extraordinary conditions exist, that any duty rests on the railway company to reduce speed at such crossings, and cites the case of C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576, in support of this contention; also the case of L. S. & M. S. R. R. Co. v. Barnes, 166 Ind. 7, which seem to support the contention of counsel, but we thinli the case of C. B. & Q. R. R. Co. v. Lee has been modified by later decisions of our Supreme Court, and that the true doctrine is, that the railroad companies have the right to regulate the speed of their trains, but it must, in such regulation, keep in view the safety not only of passengers, but also the safety of persons, who may have occasion to cross the track in the public highways.

In the case of St. L. A. & T. H. R. R. Co. v. Odum, 156 Ill. 78, which was an action for negligently running a train at a high and dangerous rate of speed over the crossing of a highway outside of a city or village and near Marion in Williamson county, the court says: “Outside of incorporated towns and cities the speed of trains has not been regulated by law, and in the absence of a law regulating the speed, railroad companies may adopt such rate of speed as they choose, provided the rate of speed adopted does not endanger the safety of passengers or endanger the safety of persons who may have occasion to cross the tracks on the public highway. ’ ’

As we view the law in this case, it is the duty of railroad companies operating their trains, to have due regard to the safety of persons who may have occasion to cross the tracks on the public highway.

In this case, we think that it was within the province of the jury to take into consideration the amount this crossing was used, the local conditions with reference to buildings and their tendency to obstruct the view, with all the other facts and circumstances proven in the case, and determine from these whether or not the train was being operated at a dangerous rate of speed, and while it is not averred in the declaration that the engineer was not on the lookout at the time, yet that is a fact that may be considered by the jury with the other facts in the case, in determining whether or not the rate of speed was dangerous. If the engineer was on the lookout and able to see persons approaching a crossing, he might with safety run at a higher rate of speed than if he was attempting to perform some other duty and not on the lookout. cAs we view the law and the conditions here existing, it became a question of fact pure and simple for the jury to determine as to whether or not the train was being operated at a high and dangerous rate of speed.

Again it is insisted by counsel, that the cause of the injury was the direct result of appellee’s failure to exercise ordinary care at and immediately-prior to the time of his injury.

The evidence tends to show, that appellee when at the distance of about one hundred and fifty yards from the crossing in question stopped his horse and listened for the approach of a train, but not hearing any train, proceeded on his journey to tlie crossing, and that just before attempting to cross the track he looked to see if there was a train approaching and was unable to see any, as he thinks, because his view may have been obstructed by the depot.

We are not able to say as a matter of law, that the appellee should have taken any other or greater precaution than as shown by the evidence that he did. Just what precaution was necessary, is a question of fact, as in some cases greater precaution is required than in others. In the case of C. B. & Q. R. R. Co. v. Lee, 87 Ill. 459, the court says, “As this was not a regular train or on usual time, the same degree of caution would not be required on his part, or such as if it were a regular train and on usual time.”

There was evidence tending to show, that the appellee did use some caution, and the degree of caution used or required of him was purely a question of fact to be determined by the jury under all the facts and circumstances proven in the case.

It is insisted that because appellee drove on the track in a trot, that this necessarily precluded his recovery ; however, the evidence shows that he was only driving in a jog trot, that he had stopped once to listen and then looked just before approaching the track, and the jury were instructed on behalf .of appellant fully and very liberally as to his duties in approaching the track to look and listen for an approaching train, if under the circumstances reasonable care would require him to do so.

On looking back, it perhaps appears clearly that if the appellee instead of attempting to cross the track in a jog trot had come to a full stop, that no injury would have happened to him, but in determining what the appellee should have done at the time from the appearances as they then and there existed, was a question solely for the jury.

The appellant criticises the second instruction given on behalf of the appellee. We have examined the instruction carefully and do not believe that the criticism is well taken, and while it is true that in this particular instruction the special attention of the" jury is not called to the required amount of travel over the crossing that makes the rate of speed dangerous to persons lawfully attempting to cross such highway while in the exercise of due care, but it is in harmony with and framed upon the same theory as appellant’s sixth instruction, which advised the jury that appellant had a right to run its train at any rate of speed it thought proper, consistent with the safety of passengers and persons rightfully upon its right of way upon public crossings, who were exercising ordinary care.

We do not think the criticism is well taken, but the instruction is in harmony with the instruction given in the case of St. L. A. & T. H. R. R. Co. v. Odum, supra.

The errors here complained of relate to questions of fact, which were submitted to the jury, and also to the trial judge upon a motion for a new trial, and we cannot say that the verdict of the jury is manifestly against the weight of the evidence, or that the verdict of the jury was based upon passion or prejudice, as the damages allowed by the jury were very reasonable for the amount of damages that the evidence discloses that the appellee was entitled to, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    George C. Stullken, Adm’r etc., Appellee, v. Donk Bros. Coal & Coke Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will be set aside on review.
    Action in care for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. J. M. Bandy, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    Geers & Geers, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This cause was tried in the Circuit Court of Madison County and resulted in a verdict and judgment for the plaintiff for $1,999.99, to reverse which judgment this appeal is prosecuted.

On the 27th day of January, 1910, Herman Retzloff was engaged in driving a mule in appellant’s mine and during his first trip into room No. 2 was thrown from the car and killed. The deceased had been engaged in the business of driving a mule in other mines in Madison county for some time but had been at work driving a mule in appellant’s mine for about five days, and had been driving in different parts of the mine. On the morning in question he had been sent in to room No. 2 for the first time and during his first trip in such room he was killed. The room had been driven in to a depth of 175 feet and was about thirty feet wide. The track was laid in the center of the room and was constructed of iron rails laid on ties which were placed at intervals of three to five feet apart. The track was about forty-two inches wide. The cars used in appellant’s mine were about seven feet long, five feet wide and three feet deep, equipped with flange wheels about twelve or sixteen inches in diameter, and provided with wooden bumpers projecting from the bottom of the box, about three or four inches wide in the center and rounded off at the corner of the boxes, which bumpers were protected with iron bands or rims. Beneath the center of the bumpers are fastened the links used in coupling the cars. A tail chain is used for hitching the mule to the car and the driver while pulling a load rides with one foot on the bumper of the car and the other on the tail chain, with one. hand on the mule’s rump and one hand upon the car. Just before the deceased met his death he had hitched his mule to a car of coal in room No. 2 and was hauling it out from the room and when he had reached a point claimed by appellee’s witnesses to have been wet and muddy, the deceased, from some cause, fell from the car and was killed. There is a wide difference in the testimony of the witnesses as to the condition of the track and surroundings at the place at which the deceased was killed. It is contended by counsel for appellant that the verdict of the jury was so manifestly against the weight of the evidence that for that reason the judgment should be reversed.

The declaration in this case consists of two counts. The negligence charged in the first count is that the defendant failed and neglected to use reasonable care to provide plaintiff’s intestate with a reasonably safe place to perform his work, and a reasonably safe track over, upon and along which to drive said mule and convey said cars at, to wit, a point in room No. 2 in the first stub entry, but on the contrary caused and permitted the ties and rails of said track at said point to be and remain then and there raised and elevated above the ground at a height of, to wit, eighteen inches, thereby rendering said place and the track at said place extra hazardous and dangerous for plaintiff’s intestate to drive said mule over, upon and along as aforesaid; that deceased was then and there ignorant of the dangerous condition of said track, and while exercising due care and caution for his own safety, and while in the performance of his duties as a driver said mule stepped between the ties of said track which were then and there so raised and elevated above the ground as aforesaid, thereby causing the tail chain upon which deceased was riding to strike against and upon said ties so raised and elevated as aforesaid and thereby plaintiff’s intestate was thrown from off said tail chain and from off said car to and upon the track and said car ran upon him and he was killed.

The second count is the same as the first except that it avers that defendant permitted and allowed said track and the ties and rails thereof to be and remain then and there without sufficient packing or ballasting and insecurely and insufficiently loaded and fastened to the ground thereby rendering said track at said place unsafe, loose and springy and the place and track extra hazardous and dangerous for plaintiff’s intestate to drive said mule along and to ride over as aforesaid, and that while the deceased was hauling the car along said track it was caused to move up and down and the said car was caused to rock, spring, bounce and bound upon said track and said tail chain was caused to jerk suddenly and violently and plaintiff’s intestate was thrown and caused to slip from off said car and tail chain and was run upon by said car and killed.

Counsel for appellant assign as error, that the trial court erred in its ruling on evidence, that it erred in the giving of instructions, that the deceased was killed by a danger incident to his employment and the risk assumed by him, and that the verdict of the jury is manifestly against the weight of the evidence.

We think the verdict of the jury in this case is manifestly against the weight of the evidence and that this is the only error that need be considered. We agree with the contention of counsel for appellee that where there is a mere conflict in the evidence that the verdict will not be disturbed unless it is clearly and manifestly against the weight of the evidence and that the judgment will not be reversed on account of the mere preponderance of the number of witnesses and that the “evidence should be measured by weight and not (alone) by count,” and in determining the facts in this case we have kept these rules clearly before our minds. The Supreme Court has said that where it appears that the verdict of the jury is manifestly against the weight of the evidence it then becomes the duty of the appellate court, regardless of the integrity of the jurors, or as to whether they may or may not have been influenced from prejudice or passion or some improper motive or condition in the making up of their verdict, to reverse the judgment and grant a new trial. Donelson v. E. St. L. & Sub. R. R. Co., 235 Ill. 625.

There were three witnesses for the appellee who testified that the track in question was unsafe and muddy, and there are eleven witnesses for appellant who testified that the track in question was safe, well ballasted and not muddy. The only witness who appears to have any financial interest in the result of this law suit is G-us. Retzloff, a brother of the deceased. One of the witnesses for appellant was the boss driver, one a mine manager, one a civil engineer and the others were miners, persons then engaged at work in the mine. So far as we are able to gather from this record the witnesses for the appellant had equally as good opportunities to observe the condition of the track as did the witnesses for the appellee. The witness Albert Seiberleich says, “The track at that place had been raised from about 16 to 18 inches;” and the ties and rails had both been raised. They had cap pieces under the ties, blocked it up and was raised for about fifteen feet in length. It was right at this place where Eetzloif was killed. Where the track was raised it left holes between the ties and the ties stuck up above the ground and the space in there was open; when the mule walked through there he would step in between the ties and the hollow places; “the ties were about three feet apart at that place.” “Eetzloif was killed at the place where the track is propped up eighteen inches high with three cap pieces on each side where it was muddy.” Gus Eetzloif says, “The track was raised 12 or 15 inches, I think.” “With the track in that condition the mule stepped in between the ties; there was nothing between the ties. The effect is to make the tail chain lower when you would be riding upon it.” “The track was not ballasted between the open spaces, between the ties, nor loaded.” Tony Lynch says, “The track was propped up on one side for a distance of about fifteen feet; it had been propped that way about two weeks before he got killed; there was a little sag on one side of the track and the cars coming down would sag down there, and they just put the cap pieces under one side, and the other side was not propped at all, and when they put these cap pieces under there they made this track level and that is the reason they put it under there.” The other witness for appellee, Cling Gray, says he did not notice the condition of the track; that he rode on the rear end of the bumper and the car bounced a little and zigzagged. This is the total of the evidence for appellee upon this question. Two of these witnesses testified that the whole track was propped up from 15 to 18 inches; the other, Tony Lynch, says it was only propped on one'side and that was to make the track level. Some one or more of these witnesses are evidently mistaken about the condition of the track and it seems to us that if the track had been propped up from 15 to 18 inches and the ties were three feet apart that when the deceased fell he would have dropped far enough below the car to have protected himself, or even if he had fallen.upon the ties the car in all probability would have pushed him off in to the open space that was left there, as according to the testimony of the witnesses there was no ballast between these ties but an open space of fifteen to eighteen inches deep. Some of the witnesses for the appellant saw the deceased under the car, others examined the place shortly afterward but the evidence shows conclusively that the conditions of the place at the time the other witnesses examined it was the same as when the deceased was injured. It is true, Tony Lynch says that he was there on the next morning and that the place had been fixed but he is squarely contradicted in this statement by four or five witnesses who say that the place was the same. Walter Clark, County Mine Inspector, examined the place in about one hour and a half after the accident with a view of ascertaining the conditions and he says that it was not muddy at this place,-that the track was not propped up but that it was well ballasted and the ties covered with dirt, and he noticed it particularly. August Brusatti testifies that he helped to get Retzloff out from under the car and that he paid close attention to it and that it was dry. Alexander Pettigrew, formerly mine manager for appellant but now at work for Middleton Coal Co., Logan county, says that it was dry and the roadbed was solid and that there were no blocks under the ties. Needier, the civil engineer, says that he was in the room about ten or half past ten o’clock; that the conditions were safe; that the ground was dry and the dirt filled up between the rails and the top of the ties. M. W. Jackson, a miner, says that he saw Retzloff under the car; that he crawled under the car to ascertain if he was dead, and was there again in the afternoon as foreman of the coroner’s jury and examined the place particularly; that the roadbed was the same as any ordinary track, ties were covered with dirt, gnd the condition of the track was good. Frank Reznicek says he is a coal miner and that he went as a member of the coroner’s jury, after dinner, and examined this place and for a distance of fifteen or twenty feet from the point where the accident occurred the track was filled in between the ties and that the track was in pretty good condition. J. McCormick was the boss driver and went into the room an hour or an hour and a half after the accident happened; was there the day before and says that it was not muddy and the track was well ballasted. Alex Seeger, a miner, says that he saw the place where the deceased was killed and was there when they took him from under the car; saw no mud; that there was dirt in between the ties that was hard, called clay; that about two weeks before this the track had been raised up on one side five or six inches for a short distance to make it level. That he had been going through this room for about one year. Frank Molosky said he was timberman; that he helped take Retzloff from under the car; says it was a little damp but no mud there, and that some of the ties could be seen above the dirt and some of them were covered up with the dirt; that a week or two before this accident one side of the track had been raised a little. Joe Fencil, a miner, says that he went in to the room where deceased was killed, about nine o’clock that morning, and the car was there blocked up and that he and two others with him examined the place and that the road was filled up with clay or dirt. Wm. Pierce, assistant mine manager, says that he went to the place of the accident in fifteen or twenty minutes after it occurred and took with him Joe Fencil and Frank Beniski. “We found- the car raised up; the track was well ballasted and appeared level and was not springy; was in good condition.”

We have .carefully read the testimony of each and every witness in this case, have considered their relations to the several parties, their opportunities for observing the matters about which they have testified, and are satisfied that appellee’s theory of this case is not sustained by the evidence; that the testimony of his witnesses cannot be taken as the true version of this accident, that the testimony of appellant’s witnesses being apparently creditable and overwhelming in number must be taken as the true theory of this sad affair. We are of the opinion that the verdict of the jury is manifestly against the weight of the evidence and that the Circuit Court erred in not granting a new trial herein, and in rendering judgment against the appellant. It is therefore ordered that the judgment of the Circuit Court be reversed and the cause remanded.

Reversed and remanded.


text:
    Oscar Whetstone, Appellant, v. Ida Whetstone, Appellee.
    1. Appeals and errors—when entire record may he examined. When an appeal is taken from a decree the appellate court has the right to look into the whole of the record and consider the case upon its merits in determining whether or not the decree should be sustained.
    2. Divorce—propriety of decree adjusting property rights, notwithstanding a wife may have been guilty of the act of adultery and notwithstanding a decree properly entered in favor of her husband, it is proper that the court should, in adjusting the property rights of the parties, not deprive such wife of her entire interest in accumulations resulting from the joint labors of herself and her husband.
    3. Costs—when discretion as to taxation not abused. In an action for divorce it is not an abuse of discretion for the court to tax the costs against the husband to whom a decree of divorce is granted where it appears that the wife was practically without means out of which to pay costs.
    Divorce. Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.

      Dillon & Strickland and Thomas J. Layman, for appellant.
    R. E. Hickman and Mooneyham & Seeber, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

The appellant filed a bill at the September term, 1911, of the Circuit Court of Franklin county for a divorce, charging his wife, the appellee, with adultery. The appellee filed an answer to this bill admitting the acts of adultery as charged in complainant’s bill. The appellee then filed a cross-bill charging appellant with cruelty and alleging that he was possessed of valuable real estate and personal property and that appellant had procured the appellee to execute a deed to forty acres of land by fraud and deception, and that the property now owned by appellant was mostly accumulated by the efforts of appellant and appellee, and that all she had received for her share in all of this property was $600, and asked the court to make an equitable division of the property between herself and the appellant. To this cross-bill appellant-filed an answer denying the allegations of appellee’s cross-bill, except that he admits himself to be the owner of the real estate and personal property substantially as set forth in the cross-bill, and avers that the appellee by reason of her conduct has forfeited all the rights she may have had in said property.

The evidence was heard by the chancellor in open court and a decree rendered granting appellant a divorce but required the appellant to pay unto appellee as alimony the amount of $400, in quarterly payments of $40 each, and that the appellant pay the costs of the suit; and it is from that part of the decree requiring appellant to pay $400 and costs of the suit that he prosecutes his appeal.

The sole question to be determined upon this appeal is, did the court err in'granting alimony to the appellee and in requiring the appellant to pay costs?

Counsel for appellant do not deny but what the court had the right under our statute to grant alimony to the wife although the divorce be granted for her fault, and while they admit that this is within the discretion of the court, they insist it is a judicial discretion and that the facts of this case do not warrant the court in granting the relief decreed. Much stress is laid upon the fact that by the decree the allegations of appellant’s original bill are sustained, and that the proof does not sustain the allegations of the cross-bill.

As we view the law, when the appeal is taken from the decree we have a right to look into the whole of the record and consider the case upon its merits in determining whether or not the decree should be sustained. Carter v. Moses, 40 Ill. 55; Pelouze v. Slaughter, 241 Ill. 215.

It is disclosed by this record that the appellant is now possessed of real estate and personal property of the value of about $7000; that at the time they were married or shortly thereafter, he inherited about $700 and she about $160,’ which was invested in real estate. The appellant seems to have made judicious investments, and the appellee by her labors aided very materially in the accumulation of this property, in addition to the investment that she had therein. During a portion of this time she claims to have done considerable work upon the farm by the way of harrowing, plowing, cutting sprouts, mowing hay and all of the time was engaged in the making of butter and the raising of chickens, collecting the eggs and taking them all to the market, and, as she claims, practically supported herself and husband during the time they lived together, and purchased a portion of his clothing and purchased some farming implements, wire fencing, and other things used on the farm and house, from the proceeds realized from, the sale of butter, chickens and eggs, and this is not denied by the husband. It looks to us as if she made very many sacrifices to aid in the accumulation of this property. The husband caused a forty acres purchased by them to be deeded to himself and wife jointly. It is true, as claimed by appellant, that this record discloses that appellee committed a great error, sufficient to authorize the court to grant a divorce to appellant and deprive her of any rights or interest in his future earnings, but we are not able to say that because of the error committed by her, although a grievous one, that she should be required to forfeit all interest and right in and to the property accumulated by their joint earnings.

Prior to the bringing of the suit appellant and his wife consulted with appellant’s attorney about their property rights, and the appellant purchased from his wife for $650 her interest in the forty acres of land owned by them jointly, and it appears from the evidence that this land was worth $1800 and her interest therein $900. It is true that the amount paid by appellant to appellee in this transaction was $650 but she transferred to him store orders to the amount of $58, for which he agreed to allow her $50; and in this transaction she was deprived of at least two or three hundred dollars worth of property that really belonged to her, and we are satisfied that she understood at the time that she was to retain her interest in the balance of the land. Appellant testified, in a conversation had between them and his counsel at the time of the sale of the land, "She wanted to know if she had a dower in that if she was to sell it._ You told her you (the attorney) told her no, her dower would be in the others and none in that.” And she says, “You said it would be best and I could have my part in that place and the other. You told me that right up there in your office at the time we made the deed. ” It is true that appellee probably did at that time still retain her interest in the other land but appellant certainly knew then that he expected to bring a suit for divorce and attempt to forfeit her right in the other property, and we are not fully satisfied that appellee then realized that the $600 was all she would get out of appellant’s property. At all events she- released her interest in the forty acres of land at less than it was really worth. She made many sacrifices and contributed very materially towards the accumulation of this property and we do not believe that it would be equitable or just to deprive her of everything .and turn practically all of their joint earnings over to the husband. The chancellor heard this evidence in open court and we are satisfied that he committed no error in allowing the appellee $400. The appellee had practically no means. with which to pay costs and the taxing of the costs was a matter in the discretion of the chancellor and we cannot say that the discretion was abused in this case. Finding no reversible error in this record the decree of the Circuit Court is affirmed.

Affirmed.


text:
    James Finucane, Appellee, v. Illinois Central Railroad Company et al., Appellants.
    1. Railroads—what attorneys’ fees may be recovered. Notwithstanding attorneys’ fees may have been recovered in an action against a railroad for the killing and injuring of stock for want of proper fencing, yet, additional attorneys’ fees may be recovered in a subsequent action for services in following successive appeals, from the judgment first rendered.
    2. Instructions—when errors will not reverse. Erroneous instructions will not reverse unless it appears that the jury were misled thereby.
    Assumpsit. Appeal from the Circuit Court of Williamson county; the Hon, W. W. Duncan, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    W. W. Clemens and Denison & Spiller, for appellants; W. S. Horton, Blewett Lee, W. W. Barr, E. H. Seneff and H. T. Dick, of counsel.
    W. A. Schwartz and William H. Warder, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action of assumpsit brought by appellee against the appellants in the Circuit Court of Williamson county. The trial of the case resulted in a verdict for the appellee for $500, upon which judgment was rendered, and from the rendition thereof the appellants prosecute this, appeal.

On October 8, 1908, the appellee recovered a judgment in the Circuit Court of Williamson county against the appellants on account of killing and injuring of stock for wánt of proper fencing of the railroad as provided in section 62 of chapter 114 of the Revised Statutes of Illinois. The amount of the judgment rendered as damages for the killing of such stock was $4,600 and $400 attorney fees for the trial of the case in the Circuit Court. The defendants in that suit (appellants here) appealed the case to this court; the case was argued in the Appellate Court and the judgment of the Circuit Court was aErmed, and thereupon the appellants presented a petition for a writ of certiorari to the Supreme Court of the State of Illinois, which petition was refused. This suit is brought by the appellee (who was the plaintiff in the former suit) to recover attorney’s fees paid out by him in the defense of the former suit in the Appellate and Supreme Courts.

The declaration filed herein sets forth substantially the facts above stated, and to this declaration the appellants filed several special pleas, and have, in various other ways, presented the question as to their liability for such fees, and all of these questions having been decided adversely to them they now insist that a proper construction of the statute did not warrant the Circuit Court in rendering judgment against them for the attorney’s fees accruing on account of such appeal.

Section 62, Chapter 114, provides:

“And when such fences or cattle guards are not made as aforesaid, or when such fences or cattle guards are not kept in good repair such railroad corporation shall be liable for all damages which may be done by the agents, engines or cars of such corporation to such cattle, horses, sheep, hogs or other stock thereon, and reasonable attorney’s fees in any court wherein suit is brought for such damages or to which same may be appealed.”

And while the construction of this statute has been presented and discussed from several viewpoints the principal question to be determined is, has the appellee the right to recover attorney’s fees in an independent suit for services rendered in the Appellate and Supreme Courts, where the fees for services rendered in the same case in the Circuit Court were included in the original judgment. A determination of this question will dispose of all of the propositions submitted by counsel for appellants, except as to one or two made upon the instructions, which will be hereafter determined.

It is insisted by counsel for appellants that this question has been settled in the case of Peoria, Decatur & E. R. R. Co. v. Duggan, 109 Ill. 537. As we understand the case referred to an attorney’s fee for the trial in the Circuit Court was included in the judgment and the objection urged was that the fee could not be included in the same judgment, and in discussing this objection the court said: “The liability for attorney’s fees exists at the time the suit is commenced. It arises at the same instant with the suit for damages and although it be that the services for which the attorney’s fee is given are performed during the progress of the suit, the fee may most fitly and conveniently be assessed in the same suit with the damages. There is no substantial reason why the plaintiff should be put to an additional suit for the recovery of an attorney’s fee.” It is true that a liability for an attorney’s fee may exist at the time of the commencement of a suit, and arise at the same instant with the suit for damages but the extent of this liability cannot be determined until the services of the attorney are rendered and their value ascertained. In the case above referred to the only services rendered, and about which there was any question, was the services of the attorney in the Circuit Court, and the value of such services could be determined and proof thereof made before the jury retired to consider their verdict. It would be unreasonable to say that the attorney’s fee for services rendered on an appeal should have been included in the original judgment. The value of such services, or whether it was necessary that any should be rendered, could not be then proven, and certainly judgment could not be rendered for something that was incapable of proof. Stich a construction of this statute would render that part of it as to attorney’s fees in cases of appeal nugatory. The case of C. C. C. & St. L. R. R. Co. v. Hamilton, 200 Ill. 633, was an independent action to recover attorney’s fees rendered in the defense of an appeal in a case similar to the one now on trial, and in that case the judgment of the court was affirmed. It is said, however, by counsel for appellants that this case only determines that this statute is constitutional. It is quite true that that question was decided in the case but the decision arose upon a general and special demurrer to the declaration which claims that the appellant was liable for the attorney’s fee in the defense of the appeals in the former case, and if there had been any question in the mind of the Supreme Court about the liability of the appellant under this statute it could and should have been determined in this case. We think this case recognizes the doctrine that an attorney’s fee for services rendered in the defense of an appeal may be recovered in an independent suit.

Again, it is said that an attorney’s fee in the trial of the Circuit and Appellate Courts is all one cause of action, and to permit a recovery for the services in the Appellate Court in an independent suit would be to split the cause of action. We do not agree with the contention of counsel in this respect. To constitute the splitting of a cause of action all of the demands must be due and collectible at the time the suit is commenced. As we have above stated, the attorney’s fee for services rendered in the Appellate Court was not due and collectible at the time the judgment was rendered in the Circuit Court. Nickerson v. Rockwell, 90 Ill. 460; McDole v. McDole, 106 Ill. 452.

Again, it is contended that the first instruction given at the request of appellee is erroneous in this, that it does not quote the law fully as to the conditions under which appellants were originally liable. Even if this instruction was erroneous in this respect it was harmless error, as that question had been determined in the former trial. It is also insisted that this instruction was erroneous in informing the jury that plaintiff could recover reasonable compensation for the services of Schwartz and Warder, and that the jury would doubtless infer from this instruction that appellee was entitled to recover a larger fee as compensation for the services of two lawyers. This instruction is no't susceptible of such construction when considered in connection with the other instructions given in the case. In the third instruction given upon the part of appellants, the- jury is plainly told that the number of attorneys employed by the plaintiff would not be material and should not be considered by the jury; the statute upon which this suit is brought only provides for a recovery of reasonable attorney’s fees in the court to which plaintiff’s case was appealed, and by reasonable attorney’s fees provided for in this statute is meant reasonable attorney’s fees for the work necessarily involved in trying plaintiff’s cases in the courts to which the same was appealed and this amount would not depend upon the number of attorneys which the plaintiff actually employed to perform such services.

It is insisted that as appellee’s second instruction contained the language, “You should take into consideration the skill and standing of the attorneys employed” it was erroneous; by an examination of this instruction you will find that it adds to the above words the following,. “If the same appears in the evidence.” An examination of this record will disclose that there was no evidence with reference to the particular skill or standing of the attorneys and certainly the jury could not have been misled by this expression. Besides, the first and third instructions given on behalf of appellants are very clear and explicit in informing the jury that only a reasonable fee for the services performed can be allowed. The only effect this phase of the instruction could have had would be to increase the measure of damages, and the jury certainly were not misled by it as they could have found a verdict for $700 and been within the range of' the testimony. Besides, the testimony of the appellants fixed $400 as a reasonable fee for the services rendered and the jury returned a verdict for $500. And even though this instruction was not strictly accurate we do not believe that the jury was misled by it or that their verdict included any damages for any particular skill or standing of the attorneys.

We are of the opinion that there is no reversible error in this case and the judgment of the Circuit Court is affirmed.

Affirmed.


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    Emma Bryan, Appellee, v. Chicago and Alton Railroad Company, Appellant.
    1. Common carriers—when liability ceases. After tender of delivery of merchandise by a carrier to the consignee, the carrier is at liberty to store such merchandise and thereafter its liability ceases and it is only bound to the exercise of ordinary care and diligence in the preservation of the property.
    2. Bailments'—burden of proof to establish exercise of care. If the bailee is bound to the exercise of ordinary care and diligence the burden of proof is upon him to show that he has exercised such care and diligence.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Kramer, Kramer & Campbell and W. H. Hebenstreit, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    No appearance for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

In this case the appellee has failed to file any brief and under the rules of this court the appeal could be dismissed for want of such brief, We have, however, concluded to examine into the record of this case and decide it upon its merits, as provided by such rule may be done.

The appellee brought a suit to recover the value of some potatoes shipped over appellant’s road from Murrayville, Illinois, to the appellee at East St. Louis, Illinois. The potatoes arrived at East St. Louis on October 15, 1910. The appellee was notified of their arrival and her husband, acting as her agent, came to the depot of the appellant and paid the freight Apon the potatoes but did not remove them. The potatoes were on the same day placed in the warehouse of the appellant and remained there until they were destroyed by a fire on the 20th of the month.

It appears from the evidence that the warehouse and contents were burned on the morning of October 20th.

The appellant was not required to give notice of the delivery of the goods but such notice was given, freight paid but the goods were not removed and they were then stored in appellant’s warehouse as it had a right to do, and from the time the potatoes were stored in the warehouse its liability as a common carrier ceased; and the appellant was then liable only for ordinary care and diligence in the preservation of the property. It is said by our Supreme Court in the case of Gratiot St. Warehouse v. Railroad Co., 221 Ill. 418: “It is the settled law of this state that carriers by railroad are not bound to deliver the goods carried to the consignee personally, or to give notice of their arrival, to discharge their liability as carriers; and that, when the goods have reached their destination, if the consignee is not present to receive them, the carrier may store them safely in a suitable warehouse to await the demand of the consignee.” Chicago and Alton R. R. Co. v. Scott, 42 Ill. 132; Gregg v. Illinois Central Railroad Co., 147 Ill. 550.

“When the carrier has brought the goods or the freight to their destination it has the right to place them in a safe and secure warehouse, and its liability then changes from that of a common carrier to that of a warehouseman. When the carrier thus assumes the new duties of warehouseman he is liable only for ordinary care and diligence in the preservation of the property. Chicago and Alton Railroad Co. v. Scott, supra; Illinois Central R. R. Co. v. Carter, 165 Ill. 570.”

The potatoes were stored by the appellant; the fire destroyed the potatoes after they had remained in the warehouse some four or five days. When it appeared from the evidence that the potatoes were destroyed by fire, this was sufficient to relieve the appellant from liability unless it was further made to appear by the evidence that the loss by fire was attributable to the negligence of appellant, and the burden of showing such negligence then passed to the appellee.

The Appellate Court of the First District in the case of C. R. I. & P. Ry. v. Kendall, 72 Ill. App. 105, says: “In Cumins v. Wood, the court say: ‘The only question of law in this record is, as to where lies the burden of proof as to the fact of negligence in an action brought by a bailor against a bailee, in whose hands the goods have suffered injury. The counsel for appellants, while admitting the authorities to be in conflict, insist that the weight of authority would throw the burden on the bailor. We held the opposite rule to be the more reasonable one in Bennett v. O’Brien, 37 Ill. 250, and we are not inclined to depart from that decision. In the present case, perhaps the presumption of negligence was sufficiently rebutted by the evidence in regard to the fire. ’ The qualification suggested by the last sentence is in accord with the rule as laid down in Kent’s Com. Vol. 2, 587 viz.: ‘The bailee when called upon for the article deposited, must deliver it, or account for his default by showing a loss of it by some violence, theft or accident. When the loss is shown, the proof of negligence or want of due care, is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he used reasonable care.’

“In the case under consideration the fact of the fire appearing, and that appellant was in no manner responsible for its origin, the burden was then upon appellee to show affirmatively that appellant was guilty of negligence in order to establish liability. And this results whether the English doctrine be applied or the contra doctrine with the qualification expressed in Cumins v. Wood, supra, and directly applicable to this case. The burden resting upon appellee to show negligence, and no such showing having been made the verdict was unsupported and should have been set aside.”

There is no evidence in this record showing that the fire which destroyed appellee’s potatoes was caused in any manner by the negligence of the appellant; and we think the verdict of the jury was unsupported by the evidence and that it was contrary to the law of the case and that the trial court erred in refusing appellant ’s motion to set aside the verdict, and for the reasons above indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    James M. Miller et al., Appellants, v. Joseph H. Armstrong, Appellee.
    1. Pleading—when answer in chancery considered as evidence. If the answer under oath be not waived and a sworn answer is interposed it is to be considered as evidence and to overcome such answer the testimony of two witnesses or the equivalent is required, but this rule does not apply with respect to conclusions and indirect answers contained in such a pleading. The answer to have the weight above must be squarely responsive to the allegations of the bill.
    2. Mortgages—when absolute deed constructive. -Held, under the evidence that the deed in question in this ease was given as and should be held to be a mortgage.
    Bill in chancery. Appeal from the Circuit Court of Bond county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    J. H. Allio and Albert & Matheny, for appellant.
    C. E. Hoiles, C. E. Cook and D. R. Kinder, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was a bill in chancery filed to redeem from an alleged mortgage upon which a decree was rendered in favor of the complainant and the defendant prosecutes this appeal.

On December 1, 1905, Herschel Donaldson, executed a warranty deed to James M. Miller conveying the east half of the southeast quarter of the southwest quarter of section 2, township five north, range three west of the third principal meridian, except one acre off of the north end thereof, situated in the county of Bond in the State of Illinois, for an express consideration of $1800. On the same day James M. Miller executed and delivered to Donaldson a lease upon said land for a period of three years, providing for a payment as rent therefor the sum of $168, payable $28 on the first day of June, 1906, and $28 on the first day of December, and a like amount on the first days of June and December during the continuance of the lease, and Donaldson was to pay all taxes against said land and keep the same in repair. Said lease also contained the following provision:

“And it is further covenanted and agreed between the parties aforesaid that the above named premises shall not be sublet without written permission of the owner, and that on compliance with all the covenants of this lease and the payment of the further sum of eight hundred dollars by party of the second part to party of the first part during the continuance of this lease party of the first part agrees to make deed conveying all his interest in said real estate to party of the second part at expense of party of second part.”

On July 31, 1906, the said Herschel Donaldson sold and conveyed by deed of warranty the. said land to one John L. Bunch, which deed contains a recital that it is subject to a deed executed by the grantor to James M. Miller that was made to secure a sum of money borrowed by the said Donaldson from the said Miller, which lease and agreement was on the same day duly signed by the said Herschel Donaldson to the said John L. Bunch. On February 11, 1910, the said John L. Bunch and wife executed a' warranty deed for said lands to the complainant Joseph H. Armstrong for an express consideration of $1900; said Armstrong “to assume an indebtedness of eight hundred dollars on said land as shown of record in Book 49 at page 198 of the records of Bond County, Illinois,” wherein reference is made to a certain lease with a purchase clause, and on the back of the said lease was placed the following endorsement, “Assigned to Joseph H. Armstrong,

John L. Bunch.”

Donaldson continued in the possession of this land until 'the sale made by him to Bunch; Bunch then continued in the possession until the sale made by him to Armstrong and Armstrong continued in possession up to the hearing of this cause.

The bill was filed herein on March 11,1910. The bill sets out the several conveyances above mentioned, including the said lease and contract, and then alleges that the said lease and contract given in connection with the said deed was given as security for the payment of $800 and interest then borrowed by the said Donaldson from the said Miller, and the bill contains the following allegation:

“Tour orator further represents that the said deed of conveyance and the said lease although appearing to be absolute on their face were not intended to be such by the said Herschel Donaldson and the said James M. Miller but on the contrary it was expressly agreed and understood between them that the same and the said premises thereby conveyed were to be held by the said James M. Miller merely as security for the payment of the said sum of money and interest as aforesaid; and that upon the payment of that sum and interest to the said James M. Miller the said James M. Miller would re-convey the said premises to the said Herschel Donaldson or his assigns by an absolute deed. ’ ’

The bill further alleges that all the interest due upon the said sum of $800 had been fully paid up to December 1, 1909, and that on the second of March, 1910, the complainant tendered to the said Miller the sum of $814.35, being the principal and interest of said indebtedness, and also the sum of five dollars expense of re-conveying, and demanded of the said Miller a deed re-conveying the said premises but that the said Miller refused to receive the said money and refused to re-convey. The bill not having waived the oath the defendant Miller answered it under oath, and admits that the said Donaldson conveyed the said premises to him in fee “but the defendant denies that the transaction was intended to be a mortgage or to secure a pre-existing debt; the defendant further states that said transaction was intended to be and became a valid purchase and was not intended to secure a debt; ’ ’ and further avers that he leased said premises to the said Donaldson for a term of three years with an option of purchase according to the terms provided in said lease, and avers that the said Donaldson did not execute the said deed of conveyance as security for the repayment of said sum of money with interest, as charged in the bill, but that the $800 was given in consideration of the absolute purchase of the said premises, and that the said deed was not intended as mere security for the said sum of money and interest as mentioned in said bill. To this a replication was filed.

The case was heard and determined upon the issues as above made and a decre.e rendered for the complainant. Counsel for appellant insist that as the answer of the defendant was under oath that to overcome such answer will require the testimony of two witnesses, or the equivalent. There would be much force in this contention if the answer had been squarely responsive in material matters to the allegations of the bill.' The bill alleges, “But on the contrary it was expressly agreed and understood between them that the same and the said premises thereby conveyed were to be held by the said James M. Miller merely as security for the payment of the said sum of money and interest as aforesaid.” It will be noted that by this allegation the bill claims there was an express agreement but the answer nowhere denies that there was-such an agreement except that it denies that it was intended as a mortgage, but the denials are conclusions and not direct answers to the allegations of the bill, and under the authorities, the answer to have the weight sought to be given to it in this case must be squarely responsive to the allegations of the hill. Cummins v. Cummins, 15 Ill. 33; Cissna v. Walters, 100 Ill. 623.

But allowing this question the force and scope contended for by counsel for appellant, we cannot say that the chancellor erred in the conclusion reached by him, as there are many facts and circumstances that clearly sustain his view in this case.

It appears from the evidence that prior to the time Donaldson made the deed to Miller he was seeking a loan of $800 and that when George L. Myers went with Donaldson to Miller’s office that Donaldson then offered the land to Miller for $1900; Miller thought the price was too high. Donaldson then applied for a loan of $800 and Miller at first said he would not make it but said “he would see,” and Myers explained to Donaldson there in Miller’s presence, that he, Donaldson, would have to take a lease from Miller with a purchasing clause in it as that was the way Mr. Miller was loaning money, and the witness Myers on cross-examination stated, “And Miller said he might take a deed and put in a purchasing clause in the lease that would be given back.” While Bunch was the owner of the land he offered to pay Miller the $800 and interest up to that time but Miller wanted the interest up to the end of the term before he would make a deed or release his lien, and then when it was offered to him he insisted that the money must come from Donaldson.

The evidence shows the rental value of this land to have been at that time about four dollars per acre, while the rent provided for in the lease was only fifty-six dollars, or just seven per cent upon the amount of money paid to Donaldson by Miller. It is true that Miller claimed that the land at the time the deed was executed to him was worth only $800 but the evidence is overwhelming that the land at that time was worth from fifteen hundred to eighteen hundred dollars; Bunch purchased it, shortly after, for $1500, and still later on sold it to Armstrong for $1900. It would be remarkable that a man being possessed of land worth at least $1500 would sell it for $800 and then continue in the possession of it, treat it as his own, the grantee in the deed giving it no attention whatever (as Miller failed to do in this case), that such a transaction would be intended as an absolute sale of the property.

Many authorities have been cited by counsel for appellant and appellee in support of their respective positions, and while these authorities are many of them at variance they all leave the question, in a case of this character, to depend upon the intention of the parties at the time of the making of the deed. If it was then understood, agreed or intended to be a mortgage it always remained a mortgage and the right of redemption would exist, and the sole question in this case is, what was the intention of the parties at the time of the transaction, and has been so treated by counsel for appellant and appellee.

We have carefully examined all the testimony in this case and when we come to consider that Donaldson was embarrassed; that Miller stated that he might take a deed and give a contract back; that Miller had made other loans in this manner; that the value of the land was far in excess of the money paid; that Donaldson and his grantees treated this land as their own; that Miller paid no attention to it, and had spoken of his rights as that of a lien holder, we are forced to the conclusion that the instrument in question was intended as a mortgage. We are of the opinion that the Circuit Court in its decision is fully sustained by the cases of Preschbaker v. Freaman et al., 32 Ill. 475; Rubo v. Bennett, 85 Ill. App. 473; Lane v. Beitz et al., 99 Ill. App. 342; Halbert v. Turner, 233 Ill. 531.

Viewing the facts as we do we are of the opinion that the Circuit Court did not err in holding that the $800 given by Miller to Donaldson was in the nature of a loan, and the papers executed were intended by the parties as security in the nature of a mortgage, and the decree of the Circuit Court will be affirmed.

Affirmed.


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    Carl Zinkl, Appellee, v. Aluminum Company of America, Appellant.
    1. Variance—when question not considered. If the rules of the court are ignored and the declaration filed not abstracted a question of variance will • not be considered.
    2. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    3. Master and servant—what essential to application of doctrine of assumed risk. In order that a servant shall be held to have assumed the risk of injury it must appear not only that he had knowledge of the defect which resulted in his injury but also that he appreciated the danger likely to result therefrom.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. Robert T. Cook, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Kraemer, Kraemer & Campbell, and C. H. G. Heinfelden, for appellant.
    Koerner & Koerner and Albert E. Hausman, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

At the January term, 1911, of the Circuit Court of St. Clair county, appellee recovered judgment against appellant for the amount of $1250, to reverse which judgment this appeal is prosecuted.

The stipulation of the parties with reference to the condition of the machinery was:

“The machinery in question in this case was in a house known as the Lime Grinding House of the Aluminum Company, of America; the same is about one hundred feet long. This house contained six lime grinding mills which are run by electric power transmitted to the mills from a transmission shaft which is also contained in the house. This transmission shaft is about seventy-five feet long and runs horizontally about four feet from the ground through the lime grinding house, and through the wall of the same to where it is connected with an electric motor just outside the door of the lime grinding house, in another room but in the same building. On this transmission shaft are a number of pulleys over which runs leather belting which connects with the lime grinding machines or mills. There are also collars fixed to the transmission shaft at various places. These pulleys are eleveij or twelve inches in diameter and about eight and a half inches in width, and the belts which run over these pulleys were about eight and one-half inches wide and one-half inch thick and about thirty-five or thirty-six feet long. At the point between the pulleys which operated machines two and three was affixed a collar or coupling which was about eleven or twelve inches in diameter and was secured on said transmission shaft about eight and one half inches from the nearest pulley. The transmission shaft revolved at the rate of about three hundred and fifty revolutions per minute. There were some concrete pillar blocks there and after the belt had been removed from the pulley over which it ran it was supposed to be placed on these pillar blocks.”

It further appears from the evidence that on the 13th day of June, 1909, appellee was working in appellant’s factory at East St. Louis; that he was 36 years old and had lived in America for four years; that he had been at work in the lime house about two months before he was injured; at first he began sweeping and later on helping do whatever was necessary to be done, and eventually became the head workman in the mill. He had worked around machinery of this character for about three years. On the morning in question Ezra Talbot, who was night foreman and had charge of the machines at the time appellee was hurt, directed the appellee, as he claims, to stop numbers one and two mills and let number three run. Appellee took an iron rod or bar and pried the belts off of numbers one and two mills while the machinery was in operation. The belt from pulley No. 2 fell between the coupling and the pulley and being about the same width, in some manner, became fastened to the pulley and owing to the rapid revolution of the pulley the belt was being-gathered up with great force and struck the foot of appellee and caused the injury complained of.

The first error complained of by the appellant is the refusal of the court at the close of the testimony of appellee to strike out all evidence given by the said appellee with reference to the order given him by Talbot, for the reason there was a variance between the declaration and the testimony. To determine this question it was absolutely necessary that the declaration filed herein should have been abstracted so that the court could have determined as to whether or not there was a variance between the allegations of the declaration and the evidence. Buie 23 of this court requires the party bringing a cause into this court to furnish a complete abstract, or abridgment of the record therein, and unless this rule is complied with the question cannot be considered. It is not sufficient to say that it may have been determined from the record. It will not do to ignore the rules of this and of the supreme court, especially when the question sought to be determined is one of variance. In Staude et al. v. Schumacher, 187 Ill. 187, our' Supreme Court said: ‘ ‘ The party bringing a case to the Supreme Court for review must furnish a complete abstract of the record, properly indexed, such as will fully present the errors relied upon and be sufficient for the examination and determination of the questions involved without resort to the written record.” And Judge Creighton of the Appellate Court of the Fourth District in the case of Johnson v. Hartman, 119 Ill. App. 206, said: “Thepretended abstract does not contain a complete abridgment of the record. Neither the affidavit, the writ, the return, the Justice’s transcript, the instructions to the jury or any of them, the verdict of the jury, the motion for a new trial, the judgment appealed from, nor the substance of them or any of them are set out. And there is no pretensé of an index to it.”

In St. L. A. & T. H. R. R. Co. v. Will, 53 Ill. App. 649, this court said: “It is not the privilege of counsel to ignore the rules of this court, when such rules in their judgment are unnecessary.” Mr. Justice Shepard of the First District,- writing for that court in Douglass v. Miller, 102 Ill. App. 345, said: “We find, upon an examination of the abstract which appellant has filed, that it is defective in almost every particular which appellee has specifically pointed out. We are not at liberty, even were we so disposed, to overlook the defects, and we ought to affirm on that ground alone.”

When counsel desires this court to consider a question they must abstract such portions of the record as are necessary to present the question, otherwise it cannot be considered, and as the abstract in this case fails to disclose such parts of the record as will enable the court to consider the error relied upon, we must decline to consider it.

The next error complained of is, that the trial court erred in not directing a verdict at the close of the evidence, because the appellee was not in the exercise of ordinary care for his own safety immediately before and at the time of his injury. In support of this contention appellant insists that as appellee was 36 years old, had worked with machinery of this kind for some time, was familiar with it and had often shut it down to take off belts, knew the condition of the machinery and had prior to this time called upon Mr. Wilfley for the assistance of men to turn the wheel and had often thrown the belts off after the motors had stopped, and had been told by Mr. Wilfley not to throw the belts when the machinery was in operation, that he was not exercising due care for his own safety.

If this were all of the testimony we would be inclined to agree with counsel for appellant but the record further discloses that shortly after the appellee began work for. appellant that he had been instructed by appellant’s foreman, Mr. Eddy, that when he desired to stop one of the mills to take the iron bar and pry the belt off while, the machinery was in operation, and that other employes had pursued the same course in the work, and that he had repeated this same operation daily from fourteen to twenty-one days, and that he did not know of the dangers incurred by throwing off the belts while the shaft was in motion and did not know that the belt was liable to catch between the collar and the pulley, and that he had never stopped the motor to throw off the belts but had stopped the motor only when all the mills were to be stopped at once. We cannot say as a matter of law that the appellee was guilty of contributory negligence but these were questions of fact to be determined by the jury.

In the case of Pioneer Construction Co. v. Howell, 189 Ill. 123, the court says: “Whether the plaintiff had such knowledge or had knowledge of facts from which it may be inferred he knew of the danger, is a question of fact to be passed upon by the jury.”

It is contended by counsel for appellant that as there were two methods by which these belts may have beern removed, one of which was a safe method and the other a dangerous one, and that in as much as appellee chose the dangerous one that he was then estopped from recovery for damages resulting therefrom. The legal doctrine here announced is undoubtedly true but in the application of the doctrine to this case we are confronted with the statement of appellee that he did not know of the dangers incurred by throwing off the belts .while the shaft was in motion; that he had been instructed by one of the foremen to throw the belts off in the manner he did throw them and that he had frequently done so, and that he had never stopped the motor to throw off the belts unless" he desired to stop all the mills, makes it as we think, a question of fact as to whether he really knew and appreciated the danger that might arise from throwing off the belts in the manner in which he did. Before appellee will be estopped from recovering it must appear thaf he knew and appreciated the danger likely to result therefrom. A servant’s mere knowledge of a defect without knowing it is dangerous does not amount to an assumption of a risk thereby occasioned. Union Show Case Co. v. Blindauer, 175 Ill. 325; Illinois Steel Co. v. Schymanowski, 162 Ill. 447.

While there is testimony in this case that tends to show appellee knew or might have known of the dangers resulting from throwing the belts off in the manner in which he did, there is also evidence tending to show that his knowledge of the machinery was gained as a helper, and that his knowledge was not as extensive with reference to the operation of this machinery as it might have been and that he did not understand and appreciate the dangers of performing the work in the manner in which he did; and having been directed to do the work and having done it as he says, in the way in which he usually proceeded and had been instructed by some of the foremen to perform the work, we cannot say that the verdict of the jury is manifestly against the weight of the evidence, and unless we can so say it is our duty to affirm the judgment, and the judgment will be affirmed.

Judgment affirmed.


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    W. U. Halbert, Adm'r etc., Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Personal injuries—obligation of railroad to trespassers. A railroad owes no duty to a person walking upon its tracks as a trespasser except to avoid wilfully injuring him and to use reasonable care to avoid injuring him after he is discovered to be in peril.
    2. Verdicts—when set aside as against the evidence. A verdict when clearly and manifestly against the evidence will be set aside on review.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Kramer, Kramer & Campbell, for appellant; John G. Drennan, of counsel.
    John S. Leahy and D. J. Sullivan, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action instituted by appellee to recover judgment on account of the death of John Lada, in which the jury returned a verdict in favor of the appellee for $2000 against the appellant, upon which judgment was rendered; to reverse which this appeal is prosecuted.

The facts in this case are, that on or about May 10, 1910, the appellee was possessed of and operating a railroad through the city of Bast St. Louis, Illinois; that in the operation of its road it used three tracks extending practically north and south through the southerly portion of the city of Bast St. Louis,—the easterly track is known as its “inbound main” and the track just west of this one is known as the “outbound main,” and a short distance west of the “outbound main” it operates a switch track known as the ‘ ‘ third rail, ’ ’ with a cross-over leading from this ‘ third rail” to the “out-bound main.” The railroad crosses Trendley avenue and 6th street, and the tracks of . appellant in passing from 6th street to Trendley' avenue are on a curve, the concave side being towards the east. At the time of the injury the deceased was a boy of the age of nine years and lived in the vicinity of the railroad, and just prior to his injury was walking on the third rail and towards the east. There was a switch engine passing along the third rail north of the place of the accident; the engine was backing towards the south, the tank of the engine being in front, and was pulling a cut of twelve or fifteen freight cars and running at the rate of about three miles an hour. At the time this switch engine was about eighty feet north of where the boy was killed, and just as the engine passed from the third rail on to the cross-over, the engineer signalled the boy with the whistle of the engine, and continued to give short blasts of the engine whistle until he came near to where deceased was standing, and during this time the boy passed over the cross-over and over the out-bound main to a point between the inbound and the out-bound main tracks where he stopped, and when Briggs, the engineer, in charge of the switch engine was about 35 or 40 feet north of deceased he discovered a passenger train, No. 202, coming north on the in-bound main in charge of engineer Mulconnery. The engineer was in his position on the right hand side of the engine, which would be the concave side of the curved track, and the opposite side from where the deceased was standing. The engineer Mulconnery first discovered the deceased when about 150 feet south of him, at which time he testifies he sounded the whistle to attract the attention of the boy and that immediately thereafter and when the passenger engine was within about seventy-five feet of the deceased, he says he saw the boy take one step towards the west and away from the track upon which his engine was being operated; this was at the distance of about 75 feet from the deceased, and from that time the engineer was unable, on account of his position and the length of the engine, to see the boy any more; he thinks the boy at that time was about five feet from his track. And according to the testimony of other witnesses the boy afterwards moved to the east and was struck by the passenger engine and killed.

It is claimed by appellee that the deceased was in a dangerous position and that this was known or should have been known to the engineer and fireman operating the passenger engine and that they recklessly and wantonly drove the passenger train upon and against the deceased after his presence on and in dangerous proximity to the said track was known to the engineer and fireman in time to have avoided injuring him. In other words, the engineer who was operating this train is charged with having wantonly and recklessly killed the deceased.

We think the law governing this case is well settled and that the difference, if any exists, is in the application of the law to the facts. In fact there seems to be no real controversy between counsel as to the law governing the case. It is stated by counsel for appellant that the railroad company owes no duty to a person walking upon its tracks as a trespasser, except to avoid wilfully injuring him and to use reasonable care to avoid injuring him, if he is discovered to be in peril. And counsel for appellee says that his declaration is based upon the last clause of this proposition and that the liability charged against the defendant is the reckless conduct of the engineer after becoming aware of the perilous position occupied by the deceased. That the deceased was a trespasser there is no question, and the railroad company owes no duty to a person walking upon its tracks as a trespasser, except to avoid wilfully injuring him and to use reasonable care to avoid injuring him after he is discovered to be in peril. I. C. R. R. Co. v. Leiner, 202 Ill. 624; C. R. I. & P. R. R. Co. v. Hamler, 215 Ill. 525.

This legal proposition is not denied but it is insisted that the boy was in a perilous position and that the engineer on the passenger train was guilty of wanton and reckless conduct in not observing that he was in a perilous position and in not making some effort to stop his train. We have examined the evidence carefully and do not find that it discloses the deceased to have been in a perilous position at the time the engineer on the passenger train saw him, or had an opportunity to see him, and do not think that the jury was warranted by the evidence in saying that the engineer knew that the boy was in a perilous position at any time. The testimony upon this question is confined to three witnesses, Mulconnery, the engineer on the passenger train, Briggs, the engineer upon the switch engine, and Conroy, the assistant yard master. Briggs says, “When I started through the cross-over and I first blew the whistle at him he paused a moment and looked at me and then stepped over going eastward until he got over the cross-over and over the south bound track until he stepped between the two tracks; I was backing up and when I realized that No. 202, the evening passenger train was approaching I realized that the boy was in danger and I blew continuous short blasts of the whistle to attract his attention. If he had stayed there he would have been in the clear. As I got up to him I saw 202 approaching him. I had not stopped blowing continuous blasts of the whistle. As I was right at him almost, I stopped blowing the whistle and hallooed at the boy and pointed my hand that way (illustrating) to try to divert his attention to the approaching train, and he was still in the clear of the north bound track then; but as 202 approached and got within ten or fifteen feet of him he took another step over sideways towards the north bound track and that put him in the way and in a moment 202 struck him.” (Abs. 5). And on cross-examination this witness says, “Afterwards I saw him take a step over towards the engine of the in-coming train; the engine could not have been over seventy-five feet from him when he took that step. He stepped in front of the engine; if he had not taken that step he would not have been hit. Mulconnery was over on the other side of the engine from the place where the boy was standing. At the time he took the step it was not possible for Mulconnery to see him at that time owing to the length of the boiler of his engine and the short curvature of the track.” (Abs. 7).

Conroy testifies, “As our engine came up even with the boy I was just getting on the west side; as our foot board was passing the boy the other car was a car length from him; I just stepped around on the other side; I didn’t want to see him get killed; he looked to me he was in the clear. If he was killed I didn’t want to see it.” (Abs. 9). Again he says, on cross-examination, “I was looking back at my cut of cars to see that we had them all and I turned around the second time; he was over between the two tracks. He was standing still looking at Briggs; I thought he was in the clear; that is the reason I did not halloo anymore ; I thought he was in a safe place. He must have moved or something after we got by.” (Abs. 10). Mulconnery, the engineer on the passenger train, says, “When I first saw Johnny Lada that evening I judge my engine was about 150 feet south of him. At that time he was coming across the track from the south bound in-track towards our track.” And on cross-examination he says, “As he come across the track he dropped something; he stopped to pick it up • he was within about five feet of our track; he stopped when he got there. When I last saw him he turned and started the other way, away from our track. I was then about seventy-five feet from him. I didn’t see him after that. I would judge he was about five feet from our track when he stopped. After he stopped and stooped to pick something up he turned and started the other way when I blew the whistle at him he stepped towards the west from our track. ” (Abs. 11).

This was the testimony of the witnesses for the plaintiff, and if it is to be relied upon, and it must be as it is the only evidence in this case, then we do not believe that the jury was warranted in saying that when Mulconnery last saw the deceased that he was in a place of peril because all of these witnesses say if he had remained where he was he would have been in no danger, and Briggs says that at the time he left his position of safety and moved toward the east track that it was not possible for the engineer Mulconnery to have seen him; besides Mulconnery says he did not see the switch engine at all and did not know of its presence. It devolved upon the plaintiff to show that the deceased was in a perilous position, and that the engineer Mulconnery knew that, or at least by reasonable diligence could have known it, and we are satisfied that the evidence fails to disclose such a condition.

Again, it is claimed that the Court erred in giving appellee’s second instruction which is as follows: “The court instructs the jury that even though the deceased was wrongfully on or along defendant’s tracks, still it was the duty of defendant’s servants to use reasonable care to avoid injuring him after becoming aware of his presence.” We think the criticism upon this instruction is well taken as the instruction requires of the engineer to use the care towards a trespasser that is not required by the law. It is said that he must use care to avoid injuring him “after becoming aware of his presence.” If the .instruction had said, “after becoming aware of his peril,” if he was in peril, then it would have been correct, but the instruction ignores the question of his being in peril. It is true, as contended by counsel for appellee, that under some circumstances the mere presence of people would require care on account of their presence in numbers but such has no application to the facts in this case. Here was a single individual and in between the tracks apparently out of danger, and to instruct the jury that his presence, without reference to his perilous position, required any special care upon the part of the engineer was certainly erroneous, and we think the giving of this instruction was reversible error. Believing that the instruction is erroneous and that the verdict is manifestly against the weight of the evidence, it is the opinion of this court that the judgment rendered herein should be reversed and the cause remanded.

Reversed and remanded.


text:
    Grant Groves, Appellee, v. The Oil Belt Traction Company, Appellant.
    1. Appeals and errors—when sufficiency of evidence presented for review. A motion for a new trial based upon the ground that the verdict of the jury was contrary to the law and the evidence is sufficient, together with an exception to its being overruled, to save for review the question as to whether or not the evidence is sufficient to warrant the verdict rendered.
    2. Brokers and factors—what essential to recovery of commissions. In order to recover commissions it is essential that the broker assume the burden of proof and establish by a preponderance of the evidence that he was the procuring cause of the sale effected.
    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.
    F. G. Viger and Callahan, Jones & Lowe, for appellant.
    Bradbury & Gaines, Parker & Eagleton and George W. Jones, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action brought by the appellee against the appellant to recover commissions upon the sale of stock. Judgment was rendered in favor of the appellee for $1,336.66, from which judgment the appellant prosecuted this appeal.

The principal facts out of which this controversy arose are, that on June 16,1909, the appellant, Oil Belt Traction Company, passed a resolution appointing the appellee sales agent to sell the capital stock of said company, and authorized him to appoint agents to assist in the selling thereof, for which they agreed to pay commissions, five per cent to appellee and five per cent to the person making such sales, and that appellee should make a weekly statement to the secretary of the company; the commissions to he paid five per cent from the money received from the first call of the board of directors, and five per cent when the stock is issued. Appellee immediately entered upon the discharge of his duties, went to Bridgeport and other places and solicited many persons to purchase the stock of this company, and also appointed some agents to co-operate with him in the sale of the stock, and made some sales which were reported to the company. On July 13, 1909, the appellee was discharged from such services by appellant. The appellee now seeks to recover a balance due him upon stock that had been sold by him and his agents, also commissions upon sales to persons who had been solicited to purchase by appellee and sales completed by the appellant after appellee’s discharge. The several counts of the declaration vary somewhat in the details of their recital but are substantially the same, and allege the employment of appellee on June 15, 1909, for a period of six months, and authorize and empower him to make sales of the capital stock of appellant and- to employ such sub-agents as necessary or expedient, and agreed to pay him ten per cent of the par value of all stock that might be sold by him to persons other than the members of the board of directors, and five per cent par value of all stock sold by his sub-agents; that the appellee entered upon the discharge of his duties as such sales agent and was at all times ready and willing to perform the duties of such employment and comply with the terms of his contract; that he went to Bridgeport, in the county of Lawrence, Casey, in the county of Clark, and divers other places, and solicited divers persons to become purchasers of the capital stock, and interested such persons in the purchase of a large number of the shares of such stock, to wit, $135,000 par value.

The declaration then alleges that after the plaintiff had so interested said persons in the purchase of said shares of stock, and prior to such sales of capital stock being completed, and before said shares of" capital stock had been issued to said persons, to wit, on the first day of July, 1909, the plaintiff was wrongfully discharged by the defendant as aforesaid.- That thereafter and prior to the bringing of this suit the defendant completed the sale of said shares of capital stock to the persons who had become interested by means of the plaintiff as aforesaid, and sold and delivered to said persons capital stock of the par value of, to wit, $135,000; by means whereof plaintiff became entitled to commissions on said sales in a large sum of money, to wit, $13,500, by means whereof the defendant became indebted to the plaintiff in the sum of $13,5'00 and promised to pay the same when requested.

Some counts of the declaration also aver that a large number of the" persons so solicited by the plaintiff to become purchasers of the said stock, were ready and willing to conclude the purchase for a large number of the shares, to wit, 13,500 at the par value "of $135,000, but that the defendant refused to permit the plaintiff to complete said sales.

Several assignments of error have been made upon this record but in the view we take of the case it is only necessary to consider the sixth and seventh assignments, wherein it is alleged that the court erred in overruling the motion of the defendant to set aside the verdict of the jury and grant a new trial herein; and in entering judgment in favor of the plaintiff against the defendant. It is insisted by counsel for appellee that no such an assignment of error has been made and argued by appellant as would warrant the court in considering the weight of the evidence. He insists that the only error that can be considered relates to the refusal of the court to grant the peremptory instruction at the close of plaintiff’s evidence and at the close of all the evidence, and that in the granting or refusal of such instructions the trial court cannot consider the weight of the evidence. We concur with counsel in their contention that upon such motion to exclude, the weight of the evidence cannot be considered, but in this case a motion for a new trial was made and one of the grounds of the motion for a new trial was, that the verdict of the jury was contrary to the law and the evidence, and the court having overruled the motion for a new trial and the appellant having assigned error upon such overruling brings before us, as we understand the law, the question as to whether or not the evidence is sufficient to warrant the verdict rendered in favor of the appellee.

Appellant in his brief presents the evidence, and while it is true after making his collation of the facts he alleges that the court erred in not excluding the evidence and directing a verdict, he also states that the jury were fairly and fully instructed as to the law but that the verdict of the jury was plainly contrary to the law as given, and that the evidence presented to the jury was wholly insufficient to sustain the verdict; and we feel that it becomes our duty under the presentation made herein to examine into the facts and determine whether or not the verdict was manifestly against the weight of the evidence.

»It will be observed that appellee, by his declaration, claims, after averring that he held public meetings and solicited divers persons to purchase this stock, that he was wrongfully discharged by appellant, and that after such discharge the appellant proceeded to and did conclude the sales of said capital stock to said persons, not members of the board of directors of the said defendant, and so solicited to become purchasers thereof by the plaintiff, and that by means of said solicitation and by request of the plaintiff to said persons to become purchasers of said capital stock, the defendant was able to and did sell and issue to said* persons a large number of the shares of the capital stock of said defendant, and that by means thereof the plaintiff became entitled to the commissions on said sales. These allegations were material and the burden was upon the appellee to prove them.

It appears from the evidence of appellee, which is brief, that he sold Mr. Krump 10 shares; Mr. King-20 shares; J. Muchmore 5 shares; Mr. Kirk 1 share; Mr. Shirer 5 shares; Wilkin 1 share; Mr. Headley 10 shares; Mr. Randolph 5 shares; Mr. Hollis 5 shares; Mr. Cappas 10 shares; E. J. Irwin 20 shares; Sam Sincel 10 shares. That he handed the report of these sales in to the Board of Directors; and the amount of commissions that accrued to him, not including stock sold to the directors, was $1,110, which was directed by the Board of Directors to be paid to him according to the terms of the resolution employing him, and that he has received thereon $975 (rec. p. 34). Appellee then testified that he solicited the following named persons to purchase stock, with whom he had not, at the time he was discharged, been able to close the deals, to wit: Wm. Finley, Perry King, J. R. King, J. R. Seed, Mr. Ashman, Mr. Johnson, Geo. Ryan and wife, Brown Bros., Mr. Grag, Mr. Griggs, W. H. Rogers, Mr. Bunn, Jennie Seed, Wm. Seed, Orvil Buckham, Ed. Cappas, Wm. Applegate, Doc. Applegate, Mr. Fletcher, Maude Williams, Mr. Johnson, Jack Baker, Sampson Taylor, J. D. Madding, D. P. Kirkland, J. A. Leefever, Wm. Moller, Stanley Dees, O. F. Edwards, Wallace Alton.

Appellee then placed J. B. Muchmore, former secretary, upon the stand and proved by him that after the discharge of appellee the appellant sold stock to the following named persons: D. B. Kirkland 5 shares; J. A. Leefever 2 shares; C. P. Carrollton 5 shares; Moses Dedrieh 1 share; Wm. Henry 5 shares; Stanley Dees 5 shares; Wm. Mouser 5 shares; O. F. Edwards 3 shares; G-rant Clark 5 shares; Wallace D. Allison 1 share; H. M. Bunn 5 shares; Jennie Seed 10 shares; Wm. Seed, Sr., 10 shares; R. O. Buck 50 shares; Ed. Cappas 4 shares.

Many of these persons testified that they never were solicited by appellee to purchase this stock, and others that any solicitations that he may have made had nothing to do with their purchase; but whatever the facts may be about this, it will be observed that only eight persons of those that appellee says he solicited are found among the purchasers of this stock after appellee’s discharge, to wit: D. P. Kirkland, J. A. Leefever, Stanley Dees, O.F. Edwards, Mr. Bunn, Jennie Seed, Wm. Seed and Ed Cappas, and these are the only persons named in this record that we find purchased stock, except Wm. Findlay, about which there seems to be some uncertainty as to whether or not appellee had been paid for the sale to him. An examination of these lists will show that out of the persons solicited by appellee to buy, only eight of them after-wards purchased stock from the appellant, and the purchases made by them amounted to 44 shares of the par value of $4,400, and if appellee was allowed the total commissions thereon it would amount to only $440; allowing appellee the difference between the $1,-110, that he claims was due, and the $975 received by him, which would be $135, and the total commission upon these sales made after his discharge, which would be $400, and then add to that the commission upon the Findlay sale would make a total of only $735, and the verdict and judgment rendered in this case was $1,336.66, which as we view the evidence is largely in excess of any amount that could be due to appellee.

Under the resolution of employment and allegations of the declaration in this case it was necessary for the plaintiff not only to prove the sales but that there had been a call for the payment and money received thereon, and that the stock had been issued.

As we view the evidence as shown by the record in this case, in the most favorable view for appellee, the verdict in this case was at least $601.66 more than appellee could be entitled to and for that reason the judgment of the Circuit Court is reversed and cause remanded.

Reversed and remanded.