text:
    W. F. Hallam & Company, Appellant, v. Harry A. Massey et al., Appellees.
    Gen. No. 22,415.
    1. Municipal Court of Chicago, § 19

       — what is not a valid judgment order of. An abbreviated minute of the clerk of the Municipal Court of Chicago, “Fndg iss vs dft das twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) Judg on fndg vs dft twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) & C.,” is not a valid judgment order.
    2. Municipal Court of Chicago, § 19* — when judgment order in abbreviated form is sufficient. Under the Municipal Court Act, sec. 62 (J. & A. V 3379), providing that the chief justice shall prescribe abbreviated forms for the .entry of orders, which shall be given the same effect as if entered in full, a judgment order in abbreviated form reciting in unequivocal language, in accordance with such forms, that a finding of the issues has been made against the defendant, stating the amount of the damages assessed and that judgment is entered on the finding against the defendant for that amount and costs, is sufficient.
    3. Municipal Court of Chicago, § 19* — what is sufficient certified copy of record of judgment order of. Under the Municipal Court Act, sec. 62 (J. & A. If 3379), providing that if any certified transcript of the record, or any portion thereof, of any suit or proceeding in said court is required, the same shall be written out in full from such abbreviated forms «and duly authenticated according to law, a certified copy of the record of a judgment order, as amplified from its abbreviated form, is sufficient.
    4. Municipal Court of Chicago, § 19* — when error of clerk in preparing transcript of judgment from half-sheet is immaterial. The fact that the clerk of the Municipal Court of Chicago, in preparing a transcript of a judgment, looked at the half-sheet containing his minute of the judgment oráer and not at the judgment order is immaterial where the certified extended record is a full statement of the final record of the judgment.
    5. Municipal Court of Chicago, § 2* — refusal to consider constitutionality of act. The constitutionality of the Municipal Court Act (J. & A. 1T 3313 et seq.) will not be considered, since during the years the court has been in existence, property rights involving a large amount of money and personal and property rights affecting a large number of persons have been litigated and decided under the act.
    6. Municipal Court of Chicago, § 23

       — what constitutes raising of question of constitutionality of act. The question of the constitutionality of the Municipal Court Act (J. & A. U 3313 et seq.) is raised where the contention is made that the provisions of the constitution were not in fact complied with in enacting the act and consequently such' question will not be considered.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Pobll, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    John W. Creekmur and Donald J. DeWolfe, for appellant.
    George F. Borman, for appellee Harry A. Massey.

      See Illinois Notes Digest, Vols. XI to XV,' and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

The appellant seeks to reverse a decree of the Superior Court dismissing its bill for want of equity. The bill sought to restrain the enforcement in another State of a judgment of the Municipal Court of Chicago entered against it at the suit of one Massey, who was made a party defendant to the bill. The clerk of the Municipal Court was joined as a party defendant. The bill alleged, in substance, that a notation was made upon the records of the clerk of the Municipal Court as follows:

“Fndg iss vs dft das twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) Judg on fndg vs dft twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) & C.”

This entry was made December 2,1913, and on February 20, 1914, a clerk wrote out the following entry:

“Finding the issue versus defendant, damages Twenty-two Hundred and Thirty-eight and 88/100 Dollars ($2238.88); judgment on finding versus defendant, twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) and costs.”

When Massey applied for a certified copy of the judgment, a formal document was prepared, in which the proceedings of the Municipal Court and order of judgment were formally and fully set out. The recitation with reference to the judgment was as follows:

“This cause coming on for further proceedings herein, it is considered by the Court that the plaintiff have judgment on the finding herein, and that the plaintiff have and recover of and from the defendant the damages of the plaintiff amounting to the sum of Twenty-two Hundred and Thirty-eight Dollars and Eighty-eight Cents ($2238.88) in form as aforesaid assessed, together with the costs by the plaintiff herein expended, and that execution issue therefor.”

The certificate of the clerk attached to this document declared “the foregoing to be a true extended record of a certain judgment order made and entered of record in said court,”, etc. In its abstract of record, counsel for appellant erroneously state that this certificate recited that the document “was a complete and perfect copy of an original on file in said clerk’s office.” There was, in fact, no judgment entered in the formal language of the certified judgment order just quoted from, and the reason for this will appear later.

While we agree with counsel for appellant that the abbreviated minute beginning “fndg iss vs dft” cannot under the rulings of the Supreme Court be considered a valid judgment order, it clearly appears from the record that it was not intended to be anything more than the minute of the clerk, entered upon what is known as the half-sheet for his guidance in writing up the record.

Counsel further contend that the judgment order written up February 20, 1914, does not constitute a valid record of a judgment. It appears, however, that section 62 of the Municipal Court Act (J. & A. ft 3379) provides that the chief justice shall prescribe abbreviated forms for the entry of orders, which are given the same effect as if entered in full, and that the order in question is in accordance with the forms so prescribed. The judgment order in question recites in unequivocal language that a finding of the issues has been made against the- defendant, states the amount of the damages assessed, and that judgment is entered on the finding against the defendant for that amount and costs. The order is in the English language, and its meaning is plain and unmistakable. We see no reason why judgment entries should not be put in this sensible and business-like form. But it is contended that the judgment order set out, in amplified form and sought to be enforced in another State is not a copy of this or any other judgment of the Municipal Court, as no such order appears in the records. Section 62 of the Municipal Court Act (J. & A. ft 3379), however, provides that: “When any certified transcript of the record, or any portion thereof, of any suit or* proceeding in said court is required, the same shall be written out in full from such abbreviated forms and duly authenticated according to law.” We see no legal objection to this simple provision of the statute which permits the court to make an economical and satisfactory record of its proceedings, and at the same time enables it to furnish for use in other jurisdictions, where it is necessary, transcripts in which the facts stated in the abbreviated record are recited in the usual and amplified form. Counsel, however, lay great stress on their contention that the clerk, in preparing the transcript of the judgment, looked at the half-sheet containing the minute of the clerk, and not at the judgment order. We think this is entirely immaterial ; the only question is as to whether the certified extended record is, in fact, a full statement of the final record of the judgment, and upon comparing the two, we see that it clearly is.

Counsel further contend that the enforcement of the judgment should be enjoined because the Municipal Court has no legal existence, and in support of this contention refers to certain evidence in regard to the manner in which the Municipal Court Act was passed. In passing upon a contention that this act was unconstitutional, our Supreme Court said, in Gifford v. Culver, 261 Ill. 530, at p. 531:

“During the years that the Municipal Court of Chicago has been in existence, property rights involving millions of dollars and personal and property rights affecting thousands of persons have been litigated and decided by the Municipal Court of Chicago under the act the constitutionality of which is here questioned. In Richter v. Burdock, supra, [257 Ill. 410], it was stated that the courts will refuse to consider the constitutionality óf a statute which has long been held by the courts constitutional and on the faith of which the community has acted for a series of years and important rights have accrued thereunder. This rule is supported not only by sound public policy but by the weight of authority in all jurisdictions. In addition to the authorities cited in that case, see, as involving the same principle, Harmon v. Auditor of Public Accounts, 123 Ill. 122; Green County v. Conness, 109 U. S. 104; Gelpcke v. Dubuque, 1 Wall. 175; Allen v. Allen, 16 L. R. A. (Cal.) 646, and note.”

But counsel contend that the question raised here is not as to the constitutionality of the Municipal Court Act, but as to whether the provisions of the Constitution were, in fact, complied with. Admittedly, however, the Legislature did pass the act, and the point insisted upon by counsel is that,, in view of the facts, the act of the Legislature was invalid because it was not done in compliance with certain constitutional provisions. There is no escape from the conclusion that the point raised is in regard to the constitutionality of the Legislature’s action, and under the ruling of the Supreme Court already referred to, we are precluded from considering it. From the record it appears that there is a valid judgment of the Municipal Court against the appellant in a cause in which that court had jurisdiction of the parties and the subject-matter, and that the clerk of that court has furnished the plaintiff in the case with an extended transcript of the judgment, prepared in accordance with the statute. In view of these facts, we see no error in the action of the chancellor in dismissing appellant’s bill. The decree of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Goodwin

license: Public Domain

text:
    Ernest Lange, Executor, Appellee, v. Frederick H. Bartlett, Appellant.
    Gen. No. 22,425.
    1. Mortgages, § 222

       — what language in deed does not show intention of grantee to assume mortgage. Where a deed of property is made subject to an existing mortgage, the words “subject to,” in the absence of anything in the context which would throw a light upon the intention of the parties, do not, in themselves, show an intention on the part of the grantee to assume the mortgage.
    2. Mortgages, § 222* — when question of intention of grantee assuming mortgage is one of fact. Where a deed of property is made subject to an existing mortgage, and nothing in the context throws light upon the intent of the parties as to the grantee assuming the mortgage, the question is one of fact to be established by the evidence.
    3. Mortgages, § 226* — when shown that parties to deed intended that grantee assume mortgage. Evidence held to show that the parties to a deed of property made subject to an existing mortgage intended that the grantee should assume the mortgage, in a suit to foreclose the mortgage.

      4. Mortgages, § 222

       — when deed construed as showing that parties intended that purchaser should assume mortgage. Contract for the sale and purchase of property upon which there was an existing mortgage, subject to which the purchaser was to take the property, construed as showing that the parties intended that the purchaser should assume the mortgage, in a suit to foreclose the mortgage.
    5. Mortgages, § 222* — when no substantial variance exists between bill and proof as to assumption of mortgage. Where the allegations in an amended bill to foreclose a mortgage upon property subsequently conveyed were to the effect that the conveyance was expressly subject to the mortgage and the amount of the indebtedness was included in and formed part of the consideration of the conveyance, and the proof tended to show an express promise to pay or assume the mortgage, held that there was no substantial variance.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Edward P. Vail, John Lyle Vette and Donald P. Vail, for appellant.
    G. A. Bukesh, for appellee; Thomas W. Prindeville, of counsel. >

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

The appellant seeks to reverse a deficiency decree for $3,781.86, against it and one Ida Hoskins, entered in a mortgage foreclosure proceeding. The main facts are not in dispute.

Mrs. Hoskins had been harassed by threats of a mortgage foreclosure; the entire mortgage was due, and she was unable to meet it. In this situation she got in communication with the appellant’s representatives, and after some negotiations they entered into a contract by which she agreed to sell the property “at the price of $4,790 * * * subject to (1) existing leases; (2) all taxes levied after the year of 1907; unpaid special assessments levied for improvements not yet made, and to encumbrance of $4,000 due October, 1911, at 6 per cent, interest; special assessment for paving Calumet avenue, not exceeding $100.” Afterwards, a deed was made which conveyed the property at a stated consideration of $6,000," subject to a mortgage dated October 10, 1905, given to secure a note in the sum of $4,000 and to taxes levied for the year 1907, and all taxes and special assessments levied for improvements not yet made. Before the conveyance was made, Ida Hoskins, at the instance of the appellant, secured an extension of the mortgage for three years by the payment of $90, which he advanced.

The appellant’s agent, at the time of the transaction, prepared the following statement:

11 Chicago, Dec. 7, 1908.
Mrs. Ida Hoskins
a/c 292 E. 38th St.
Fred’k H. Bartlett & Co.
Beal Estate '
Phone Central 4857 100 Washington Street
Equity $790.
Ins. Prem 13.
Deposit . $ 90.
Survey 10.
Costs in suit 264191 • 7.40
Int. on inc 1010 12/6 • 37.67
Spl. asst, excess over $100 27.34
Contn. of Abst. & Bedg. 11.95
Bent to 12/31 20.15
598.49
■ . , ,i____ —„ .
$803.00 $803.00”

The sole point raised is as to whether the appellant assumed the mortgage. We think the law is well settled that where a deed of property is made subject to an existing mortgage, the words, “subject to,” in the absence of anything in the context which would throw a light upon the intention of the parties, do not, in themselves, show an intention on the part qf the grantee to assume the mortgage, and that in such a case the intent of the parties is a question of fact to be established by the evidence. In this case, the testimony of Ida Hoskins is that she told the agent that he would have to take that lien; that the holders of the mortgage notified her that they were to foreclose. The agent testified that he did not recall the details of the transaction; he did not know whether anything was said about the subject-matter, or what was being purchased; nothing was said in the conversation in reference to the assumption of the mortgage by Bartlett that he recalled; that Ida Hoskins was all excited and nervous, and did not know what she was doing, and wanted him to draw up the deed; that was all there was about it.

We think that, in view of this evidence, the master was amply justified in finding that the appellant did assume the mortgage, and that the chancellor properly arrived at the same conclusion. But while we are of the opinion, that the parol evidence fully sustains the finding as to the intent of the parties, we think it is also conclusively supported by a circumstance not referred to by counsel. The meaning of words and phrases in an agreement is largely determined by the context. In the present contract it was agreed that the property should be conveyed “subject to * * * all taxes levied after the year of 1907; unpaid special assessments levied for improvements not yet made, and to encumbrance of $4,000 due October, 1911, at 6 per cent, interest; special assessment for paving Calumet avenue, not exceeding $100.” Obviously, the property would be conveyed to the grantee “subject to” all liens for taxes, all unpaid special assessments, and the entire special assessment for paving Calumet avenue, in a strict legal sense. When, therefore, the parties say “all taxes levied after the year of 1907,” it was obviously intended that the grantor shouldr be liable for the taxes for previous, and the grantee for the taxes for subsequent, years; likewise, that the grantor should be liable for any unpaid special assessments for improvements already made, while the grantee assumed the payment of special assessments levied for improvements not yet made; and similarly, that the grantor agreed to pay the special assessment for paving Calumet avenue, so far as it exceeded $100, while the grantee agreed to pay the assessment to the extent of $100. This last is further corroborated by the item in the statement of December 7, 1908, where Ida Hos-kins is charged $27.34 on account of the special assessment “excess over $100.” When, then, the parties enumerated the liens that the property was “subject to” and included only those tax and special assessment liens that the grantee was to be liable for, and exclud-, ed those that the grantor was to be liable for, they conclusively show that they were enumerating the items which the grantee was to assume. Among these was the mortgage in question. We are, therefore of the opinion that a proper construction of the words of the contract itself places the obligation to discharge the mortgage squarely on the appellant.

Counsel further claim that the allegations in the amended bill were to the effect that the conveyances were expressly subject to the incumbrance, and the amount of said indebtedness was included in and formed a part of the consideration of the conveyance; that it is not sustained by the proofs, but the proofs, in fact, tend to show an express promise to pay or assume the mortgage. We think, however, that there is no substantial want of correspondence between the allegations in the bill, and the proof. For these reasons, the decree of the Superior Court is affirmed.

Affirmed.


text:
    Gustava Anderson, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,436.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 131

       — when evidence shows that death of driver of wagon was due to negligence of railroad company. Evidence held to support a finding that the accident causing the death of plaintiff’s decedent happened as the result of defendant street railway company's negligence in striking one of the rear wheels of decedent’s wagon and frightening the horses, causing them to run and throw out decedent, in an action to recover for such death,

      Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Gustava Anderson, as administratrix of the estate of Henry Anderson, deceased, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for the death of plaintiff’s decedent caused by the wagon he was driving being struck by defendant’s street car, frightening his horses and causing them to run, whereby he was thrown from the wagon and killed. From a judgment for plaintiff for $7,500, defendant appeals.
    Franklin B. Hussey and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    John P. Friedlund, David K. Tone and Amos W. Marston, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. • •

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

2. Street railroads, § 135 — when question for jury whether driver of wagon is guilty of contributory negligence. Where the plaintiff’s decedent, in an action to recover damages for the latter’s death, was driving his wagon on defendant’s street car tracks and, .upon the approach from the rear of the wagon of defendant’s car decedent turned diagonally off the track when the car was fifty to one hundred feet away, and, when the wagon was entirely off the track, turned it parallel to the track to continue forward but so close to the range of the car that the car struck the wagon, resisting in his death, held, that it was a question for the jury whether decedent was contributorily negligent.

3. Appeal and error, § 1506* — when cross-examination of witness is not reversible error. Where an impeaching question was asked a witness on cross-examination as to a fact which examining counsel stated they would prove, to which objection was made and sustained, but the witness answered denying such fact and no proof thereof was made, held that such cross-examination was not reversible error.

4. Appeal and error, § 471* — when impeaching question is not ground for reversal. Where the objection that an impeaching question asked a witness .was improper was not urged at the time the question was asked or when impeaching testimony was attempted to be produced, and no opportunity was given the court to correct the error by a proper instruction, and no request was made for withdrawal of a. juror at any time, such question was not ground for reversal.

5. Death, § 73* — when instruction is not erroneous as assuming facts. An instruction, in an action- to recover damages for death from defendant’s negligence, that the. only care and caution that the decedent was required to exercise at- and before the -time of the accident in question was such care and caution as a reasonably careful and prudent person woufil have exercised under similar- circumstances, and conditions that the evidence in the case showed surrounded the decedent at and before" the time of the accident in question, held not subject to the criticism that it assumed facts in issue. "

6. Appeal and error, § 1531* — when instruction is reversibly erroneous. An instruction cannot be said to be reversibly erroneous unless, when applied to the facts, it tends to mislead the jury in regard to matters actually in controversy or to leave out of consideration a matter actually in issue.

7. Street railroads, § 140 — when instruction referring to declaration in action for death of driver of wagon is not erroneous. An instruction, in an action to recover damages for death due to a wagon driven by decedent being struck by defendant’s street car while decedent was driving the wagon off of defendant’s tracks upon which he had been driving, that plaintiff could recover if she could prove her case “as alleged in her declaration or any count thereof,” held not erroneous, although one count charged only that the decedent then and there drove the wagon to the right and thus commenced and started to drive out of the way of the car, then and there using all due care and caution for his own safety, and while so driving was negligently struck by the car, there being no question as to decedent’s care and caution prior to the time he started to turn off of the track.

8. Street railroads, § 140* — when instruction referring to declaration in action for death of driver of wagon is not erroneous. An instruction, in an action to recover damages for death due to decedent being struck by defendant’s street car, that plaintiff could recover upon proof “as alleged in her declaration or any count thereof,” held not erroneous, although one count charged, after alleging decedent’s due care and caution for his own safety, that it was defendant’s duty not to operate its car at a high and dangerous rate of speed but so that decedent in the exercise of ordinary care and diligence for his own safety would not be injured by the operation of its car, and that defendant, disregarding such duty, had operated its car at such high and dangerous rate of speed that decedent, while so exercising such care and caution for his own safety, was- struck and killed, such allegations being considered in connection with defendant’s proof and instruction that those operating a street car must exercise only ordinary care for the safety of the public in running their cars.


text:
    Henry A. Fowler, Administrator of the Estate of Edward S. Allen, Deceased, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,460.
    1. Appeal and error, § 1691

      - — When objections to evidence are waived. Specific objections to evidence which might have been cured had they been raised at the trial are waived if not specifically made there, and the statement of one waives all other objections.
    2. Appeal and error, § 1803*- — when cause will not be remanded for new trial. A cause will not be remanded for new trial on account of a supposed absence of formal proof of an indisputable fact of common knowledge.
    3. Evidence, § 154* — what constitutes admission that defendant street railroad is bound by ordinance under which it was operating. The words and actions and failure of appellant’s counsel to make specific objections at the trial as to the ordinance offered in evidence under which defendant was operating as a street car company, held to be an admission that defendant was bound by the terms of such ordinance and that it was applicable to the situation before éourt and jury and in force and effect at the time of the accident in question, in an action to recover damages for death of such accident.
    4. Street railroads, § 44* — when verdict in favor of city does not exonerate street railroad from liability for damages for accident due to defective condition of street. Where, by the terms of an ordinance under which a street car company was operating its tracks in the city streets, the company was obligated to keep such portion of the street as was so occupied by it in repair, a verdict in favor of the city in an action to recover damages due to an accident arising from such portion of the street being in bad repair, held not to preclude a verdict against the company.
    5. Street railroads, § 44* — -when contributory negligence of person injured by defect in street which railroad company obligated to keep in repair not shown. The fact that a defect in a portion of a public street occupied by a street car company, and which it was obligated by the terms of the ordinance under which it was occupying the street to keep in repair, was open "and obvious, does not necessarily show that a person injured by reason of such defect was not in the exercise of ordinary care at the time he was injured, as what is notice to a street car company whose employees are constantly passing and repassing a given spot is not necessarily notice to the driver of a wagon, in an action to recover damages against such company by a person injured by reason of such defect.
    6. Evidence, § 476

       — when finding based upon lesser number of witnesses is proper. The jury are entitled to find in favor of a party even if his case is supported by the lesser number of witnesses.
    7. Street railroads, § 44* — when contributory negligence of person driving wagon down grade on street not shoion. The fact that the driver of a wagon was, at the time of an accident resulting in his death, sitting upon a narrow, elevated seat, without a foot rest, while driving down grade, held not to indicate anything so inherently dangerous as to show that the jury’s conclusion that he was in the exercise of ordinary care was contrary to the manifest weight of the evidence, in an action to recover for his death, due to a wheel striking a hole in the portion of the highway which defendant street railroad was obligated to repair.
    8. Street railroads, § 44* — when arrangement of seat on wagon may be considered on question of exercise of ordinary care by driver. In an action to recover damages for the death of a driver of a lumber wagon, having a narrow, elevated seat, while driving down grade, due to a wheel striking a hole in the portion of the street which defendant railroad company was obligated to repair, held that the question whether the seat was arranged in the usual and customary way arranged by haulers of lumber was proper for the jury to consider, in determining whether he was in the exercise of ordinary care for his own safety.
    9. Appeal and error, § 450* — when objection as to immateriality of evidence comes too late. Where a question and answer were objected to as immaterial, but no objection was made at the trial that it was prejudicial and no exception was taken to it on that ground, held that such objection came too late on appeal.
    10. Trial, § 54* — when erroneous question answered affirmatively is not ground for withdrawal of juror. A question whether the minor sister of a decedent, in an action to recover damages for his death, living with the witness, her mother, was a widow, answered affirmatively and withdrawn on objection to its form, held. if erroneous, not to warrant withdrawal of a juror at the close of a long drawn-out trial.
    11. Street railroads, § 44* — what is effect of ordinance requiring repair of portion of street occupied by company on right of action by third persons for injuries. A requirement in an ordinance permitting a street railway company to occupy, a street of the city with its car tracks that the company shall keep such portion of the street in repair is one enacted for the benefit of the public, and an injury or death caused by the company’s failure to keep such portion of the street in repair gives rise to a cause of action against the company. , . : : .
    12. Instructions, $ 81

       — when instruction singling out facts is properly refused. Refusal of an instruction, in an action to recover damages for death of the driver of a wagon due to a wheel of his lumber wagon running into a hole into that portion of the street which a street railroad was obligated to repair, while he was driving down hill, which singled out the fact he was riding on a board or plank extending out in front of the principal part of the lumber and that on the basis of that fact the jury could find he was guilty of negligence, field proper.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch^ Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Thomas J. Symmes and Frank L. Kribte, for appellant; W. W. Gurley and J. B. Guilliams, of counsel.
    Wiley W. Mills, Henrietta Krighel and Morris J. Drezner, for appellee.

      See Illinois Notes Digest, Vols. XI to XVI and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Appellee, "who will he referred to as plaintiff, recovered a judgment for $3,500 on account of the death of his intestate, in an action brought for the benefit of the surviving mother and minor sister. The declaration alleged that the appellant, who will be referred to as the defendant, was in control of a certain portion of a public highway, and operated a street railway over it under the provisions of an ordinance which required it to keep that portion of the highway in safe repair and condition; that it failed to do so, and left certain holes in the pavement; that the intestate, while driving along this portion of the highway, in the exercise of ordinary care for Ms own safety, was killed by reason of a wheel striking one of the holes in defendant’s right of way. In one count, the provisions of the ordinance in regard to repair of defendant’s right of way were set out in full.

The first objection to the judgment is based upon the theory that the evidence fails to show that the defendant was, at the time of the accident, operating the street railway under the terms of the ordinance. It appears, however, that at the opening of the trial, defendant’s counsel admitted that there was no dispute but what the tracks were the tracks of the Chicago Railways Company. He was then asked as to whether there was any dispute about the ordinance, to which he replied, “I don’t know. You will have to introduce it. I don’t think that ordinance applies to viaducts and bridges.” Mr. Mills: “All right. I have here the special ordinances of the City of Chicago published by authority of the City of Chicago in the;year 1915. I desire to read, first, from page 1616, section 1, following the preamble of the ordinance under which the Chicago Railways Company is operated.” Mr. Symrnes: “Just a moment before you read that. I don’t believe that the ordinance is sufficiently pleaded in the declaration.” The Court: “Is it set out in the declaration?” Mr. Mills:- “The section in question is the section wMch we insist applies. Of course this section need not be read in viewjof counsel’s admission that the Chicago Railways Company, the defendant, was operating there at that time and maintaining the tracks.” Counsel for appellee then read the portions of the ordinance reciting that the grant was made in consideration of the acceptance by the company of its ordinance, subject to all the provisions, conditions, reqMrements and limitations thereof, and those relating to filling, grading, paving and keeping in repair the portions of the street occupied by the defendant’s right of way. Counsel now contend that there was no proof that the ordinance published in 1915 was in force at the time of the accident, or that it was bound by its terms. The statements of counsel, apparently made in the presence of the jury at the opening of the case, were for the purpose of getting before it such facts in connection with the physical situation at the place where the injury occurred, and in reference to the rights and duties of the defendant, as were not in dispute. We see that counsel begins by saying that he does not know that there is any dispute about the ordinance, that he does not think it applies to viaducts and bridges. He permits appellee’s counsel to say that he is reading the preamble of the ordinance under which the Chicago Railways Company is operating. The only objection made to the proof was that counsel did not think that the ordinance was sufficiently pleaded in the declaration. -If the ordinance had not been in force and effect at the time of the accident, that would have been a proper ground of objection. If the Chicago Railways Company was not the grantee, and was not operating under the terms of that ordinance, that also would have been a proper ground of objection, and these objections could, of course, have been obviated by the offer of other proof. It is unnecessary to refer at length to the long and unbroken line of authorities in this State which hold that where there are specific objections to evidence which might have been cured, had they been raised at the trial, they are waived if they are not specifically made there, and that the statement of one objection is a waiver of all other objections which could be cured by the introduction of other proof or otherwise. The following cases, however, are quite similar to the one at bar: (Conway v. Case, 22 Ill. 127, 139; Garrick v. Chamberlain, 97 Ill. 620; Chicago & E. I. R. Co. v. People, 120 Ill. 667; Ewen v. Wilbor, 208 Ill. 492; Cleve land, C., C. & St. L. R. Co. v. Bruce, 63 Ill. App. 233; Hinchliff v. Robinson, 118 Ill. App. 450). The settlement ordinances of 1907, under which the defendant was operating at the time of the accident, and of which the paragraphs offered in evidence are a part, were, moreover, passed after a public agitation which extended over a period of twenty years, during which the matter had the repeated attention of the General Assembly and our courts. The ordinances in question, themselves, were passed after years of public negotiations between committees of the city council and the defendant’s predecessors, and were submitted to the voters for approval or rejection under the authority of an act of the General Assembly, after prolonged and vehement public discussion. Is it, then, improper to say that the fact that the ordinance under which the defendant was operating was in force prior to 1913 is one of common knowledge of which the court and jury may properly take cognizance? To send a cause back to the trial court for a new trial on account of a supposed absence of formal proof of an indisputable fact of common knowledge, would, it seems to us, be a grotesque travesty upon the administration of justice. In addition, we think that defendant’s counsel at the trial, by words and actions and failure to make specific objections, admitted that it was bound by the terms of the ordinance offered in evidence, and that that ordinance was applicable to the situation before court and jury, and was in force and effect at the time of the accident.

Counsel next contends that as there was a verdict directed in favor of the City of Chicago in this case, it necessarily follows that no verdict could be sustained against it, since by the terms of the ordinance it merely' took upon itself what was a portion of the city’s duty. To this there seems to be a conclusive answer. In order to constitute a cause of action, the street must not Only be in bad repair, but it must also be shown that the one having the duty to repair knew or should have known of the defective condition of the street. It may well be that facts and circumstances would be sufficient to apprise the street railway company of a defective condition in its right of way, where its cars were constantly passing and repassing, which would not, in themselves, be sufficient notice to the city. It therefore does not follow that the defendant could not be guilty of a breach of duty merely because the city was not. We think, however, that the contention itself is fallacious. If the city were being sued under the principle of respondeat superior on account of the failure of the defendant to keep its portion of the street in proper condition, then, of course, a verdict in favor of the defendant would exonerate the superior, but the proposition that defendant cannot be held for its own negligence merely because there may be circumstances which exonerate the city, seems in no way supported by reason or authority.

It is next claimed that because the testimony showed that the defect was open and obvious, the deceased was necessarily not in the exercise of ordinary care. We are unable to agree that this is a necessary inference. What is notice to a street car company, whose employees are constantly passing and repassing a given spot, is not necessarily notice to the driver of a wagon. There are obviously almost innumerable things which might well prevent a driver from observing a defect in the pavement, even while he was in the exercise of ordinary care for his own safety. Appellant contends that the evidence clearly preponderates in its favor because more witnesses testified on its side than on the appellee’s in connection with the question of whether the accident happened as the result of a defect in the pavement, but the law of this State clearly is that the jury are entitled to find in favor of a party even if his case is supported by the lesser number of witnesses.

For appellant it is also contended that the deceased’s injury resulted from the fact that he was perched upon a narrow, elevated seat, without a footrest, while driving down grade, and that this circumstance shows that he was not in the exercise of ordinary care for his own safety. We are unable to say that there was anything inherently dangerous about the manner in which the deceased was seated and driving at the time of the accident, or that the jury’s conclusion that he was in the exercise of ordinary care was contrary to the manifest weight of the evidence. What was said by our Supreme Court in Chicago, R. I. & P. Ry. Co. v. Steckman, 224 Ill. 500, 504, seems a very direct answer to appellant’s contention.

In examining a team owner, appellee’s counsel asked: ‘1 The way in which the seat for the driver was prepared, was that, if you know, a usual and customary way that haulers of lumber arrange the driver’s seat?” A. “Yes, they always put it on.” Mr. Symmes: “Wait, I object to that.”. Counsel contends that this was prejudicial error, and cites cases in which it has been said that one is bound to use due care, and what others did or were in the habit of doing did not tend to prove that issue, and also that the doing of a thing in the usual way is not evidence that such way is safe, and is no excuse for negligence, and that a thing done in the usual and customary way is not evidence on the question of negligence; the usual and customary way may be a negligent way. We think, however, that these propositions of law, although essentially correct, have no application to the present question. The issue was not as to whether the driver’s seat was properly prepared, but rather as to whether the deceased was, át and immediately before the accident in question, in the exercise of ordinary care for his own safety. The question of whether the seat upon which he was sitting was constructed in the usual and ordinary manner, or not, was a fact which the jury might consider in determining whether he, himself, was in the exercise of ordinary care for his own safety. In this connection, our Supreme Court said, in Campbell v. Chicago, R. I. & P. Ry. Co., 243 Ill. 620, 624:

“It is true that negligent acts do not cease to he negligent because they are frequent, but proof of a customary method of doing an act by those who are frequently and habitually required to, perform it is some evidence as to whether, the method is or is not negligent. ’ ’

See also, Franey v. Union Stock Yard & Transit Co., 235 Ill. 522, at p. 528.

Counsel state that the question put by appellee’s counsel to a witness, asking him what he could say “with regard to Mr. Allen’s experience as a driver and his skill as a driver, or lack of it,” was improper. An examination of the abstract of the record discloses that the question was never answered. The court did ask the witness whether the deceased was a “good driver,” to which the witness answered. “He was a good lumber man. He was well experienced in handling lumber.” Ho objection was made to this question or answer. A witness was asked, “Isn’t it a fact that he (the decedent) worked whenever he could get work?” This was objected to by the appellant, and the objection was, overruled, and this ruling is assigned as error. The question, before answered, was, however, modified by the words, “so far as you know.” We think this modification cured the objection. The witness answered, “I never knew him to lay down when he could get work. He was always willing to work.” This was objected to as not being within the witness’ knowledge. It is very obvious that the answer must be taken in connection with the question, and was really a'statement that the decedent was always willing to work when he could get work, so far as the witness knew, and the record shows that the witness had some knowledge in regard to that matter. Appellant’s counsel inquired of decedent’s mother as to whether she visited him while he was in the hospital. She stated she did when she was able. In this connection, the court said, “You use a crutch, don’t you?” She answered, “Yes, I have walked with a crutch since I was seven years old.” Appellant’s counsel objected to it as immaterial, but no objection was made that it was prejudicial, and no exception was taken to it on that ground. We think that that objection now made comes too late, and, if advantage was to be taken of it, the objection should have been made on the trial. This witness also stated that her daughter, a minor sister of the decedent, was living with her. Counsel then asked, “Is she living with her husband, or is she a widow?” A general objection was made to this question, and the witness answered, ‘ She is a widow. ’ ’ Appellant’s attorney then said, ‘11 take an exception to that question in that form.” Mr. Mills: “I will withdraw it if there is any objection.” Mr. Symmes :• “I ask at this time, on account of that question, that a juror be withdrawn.” We note that the objection made was to the form of the question, and not to its substance. We do not see how the question of whether decedent’s sister was married, unmarried, or a widow, could have any effect upon the jury’s, verdict, and if the admission of the evidence was erroneous, it was not an error of that serious character which would have justified the withdrawal of a juror at the close of a long drawn-out trial. There is nothing in the fact that a minor is a widow that would of necessity arouse the sympathies of a jury and excite prejudice in her favor. The court is not aware that young women in that situation are in general considered in greater need of assistance than their unmarried sisters, and we see no reason why ‘proof of the fact should he held to be uncorrectable error. The statement of the fact was no more than an explanation of why the married daughter was living with the mother. Moreover, the fact subsequently appeared when Mrs. Madera, the sister in question, took the stand, and no objection was made to it then.

For appellant it is contended that its failure to comply with the provisions of the ordinance with reference to keeping its right of way in good condition and repair did not give rise to a liability in favor of an individual injured in consequence thereof. The right of a municipality acting under the authority of its delegated powers to impose upon a street railway a duty to keep a portion of the street in good condition and repair is fully silstained by the authorities (see City of Chicago v. Chicago Union Traction Co., 199 Ill. 259), and that duty is no less binding when the ordinance imposed by it is formally accepted by the street railway company. By the terms of «the provision, the public- authorities seek- to insure the safety of those using the portion of the street specified. The requirement is obviously one enacted for the benefit of the public. Clearly, deceased, as a part of the general public using the public street, was one of those for whose benefit the stipulation was made, and in consequence, as his death resulted from appellant’s failure to comply with the terms of the requirement, that fact gave rise to a cause of action. (See Texas & P. Ry. Co. v. Rigsby, ,241 U. S. 33, at p. 38; Kenna v. Calumet, H. & S. E. R. Co., 206 Ill. App. 17.) The case of Rockford City Ry. Co. v. Blake, 173 Ill. 354, cited on this point on behalf of appellant, is not in point, and is distinguished in United States Brewing Co. v. Stoltenberg, 211 Ill. 531.

Counsel for appellant criticise the instruction which told the jury that they were not bound to regard the weight of the evidence as evenly balanced merely be- ■ cause of numbers; that they had a right to determine from their appearance, manner of testifying, apparent character, fairness, intelligence, opportunity of seeing and knowing the things they were testifying about, which of the witnesses were more worthy of credit. The instruction was not one in regard to determining the preponderance of the evidence, and what is said in criticism of it is fully answered in Nau v. Standard Oil Co., 154 Ill. App. 421, at p. 426. Other instructions were offered which, in substance, would have informed the jury that the defendant could not be held liable unless the city also was liable. These instructions were properly refused for the reasons already given. Nor do we think the court erred in refusing an instruction which singled out the fact that the intestate* was riding on a board or plank extending out in front of the principal part of the lumber, and told them that on the basis of that fact they could find that he was guilty of negligence. Other exceptions were taken to the action of the court in giving and refusing instructions, but we think they are not well grounded, and that it is not necessary to discuss them in detail.

For the reasons indicated, the judgment of the Superior Court is affirmed. o

Affirmed.


author: Mr. Justice O’Connor

text:
    Frank P. Strobot, Appellee, v. William Cordes, Appellant.
    Gen. No. 22,281.
    1. Attachment, § 338

       — what need not he shown to maintain action for wrongfully suing out lorit. Malice or want of probable cause need not be shown to maintain an action on the case to recover damages for the wrongful suing out of a writ of attachment.
    2. Attachment, § 338* — when prohahle cause and want Of malice may he shown in defense to action for wrongfully suing out writ. Good faith and want of probable cause in suing out a writ of attachment are immaterial in an action on the case to recover damages for the wrongful suing out of such writ, when, actual damages only are sought, but probable cause and want of malice may be shown in defense where punitive damages are sought in addition to actual damages.
    3. Attachment, § 338* — when prohahle cause and want of malice in suing out writ of is shown. Evidence held to show that defendant had probable cause in suing out an attachment writ against plaintiff and that he sued out same without malice and after plaintiff had left the State and was concealing himself so that process could not be served upon him, in an action on the case to recover damages for suing out such writ.
    4. Attachment, § 337* — when defendant in attachment action estopped to complain that writ was wrongfully sued out. Where plaintiff, at his own solicitation, after an attachment action was begun against him, voluntarily and understandingly compromised and settled the suit, held that he was estopped to complain that the attachment writ was wrongfully sued out, in an action on the case to recover damages for the wrongful suing out of such writ.
    5. Compromise and settlement, § 16* — -when evidence shows voluntary compromise of attachment action. Evidence held to show that plaintiff voluntarily and understandingly entered into a compromise and settlement with defendant of the matters in controversy in a certain attachment action by defendant against plaintiff, and that such suit was dismissed by reason of said compromise, in an action on the case to recover damages for the wrongful suing out of the writ.
    Appeal from the Circuit Court of Cook county; the Hón. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed October 10, 1917.

      M. D. Dolan and Jacob C. Simon, for appellant; Freeman K. Blake, of counsel.
    Webster & Sherrard, for appellee; Daniel Webster and Arthur A. Sherrard, of counsel.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an action on the case brought to recover damages for the wrongful suing out of a writ of attachment. The case was tried before the court and jury; there was a verdict for $2,350 in favor of appellee, upon which judgment was entered, to reverse which this appeal is prosecuted.

There were several counts in the declaration, but we will not go into a detailed analysis of them as to their sufficiency, for the reason that in no view of the case can the judgment be upheld.

The record discloses that appellant on the 19th of September, 1912, brought suit in attachment in the Municipal Court of Chicago against appellee, seeking to recover $226.99. On the 27th of September, 1912, appellee procured his creditors, including appellant, to enter into a written composition and settlement of their claims against him for twenty-five cents on the dollar. After this agreement was executed, the money therein specified was paid to each of the creditors in settlement in full of their respective claims and on the 8th of October following, appellant dismissed the attachment suit.

Appellant contends that the defendant in an attachment suit cannot maintain an action not based upon the bond given in that suit but sounding in tort as in the instant case, without proof of malice or want of probable cause. This is not the law. First State Bank of Pond Creek v. Clark, 202 Ill. App. 283. Where in such a case actual damages only are sought to be recovered, the good faith and want of probable cause in suing out the writ of attachment is immaterial; But where it is sought to recover in addition to actual damages, punitive damages, then probable cause and want of malice in suing out the writ may be shown as a defense to the element of punitive damages. Talbott v. Great Western Plaster Co., 151 Mo. App. 538; 4 Cyc. 768; McLaughlin v. Davis, 14 Kan. 135.

The declaration avers, inter alia, that appellee was engaged in the pickle business in Chicago; that he was indebted to appellant in the sum of $226.99, which he was able and willing to pay; that appellant, maliciously intending to injure and deprive appellee of his business, sued out a writ of attachment in the Municipal Court of Chicago and levied on “Two barrels of pickles and seventeen crates of bottles ’ ’; that $2Q0 which appellee had on deposit in a Chicago bank was garnished; that the attachment suit was afterwards dismissed by appellant; that appellee was “greatly injured in his good name, reputation, business and trade”; that divers persons who had theretofore' dealt with appellee in his business refused on account of the attachment to continue to do so.

Appellee testified that he had been purchasing supplies from appellant for a number of months prior to the attachment suit and that there was a balance due appellant from him, and that appellant had made repeated demands for payment; that on September 17th he left his place of business and went to St. Paul, Minnesota; that afterwards on the 21st of September he returned and found his place closed by the bailiff of the Municipal Court; that thereafter (the date does not appear) he reopened his place of business and conducted it for a short time and then sold the business. He further testified that he was worth from $3,000 to $4,000.

The evidence also shows that when appellee' went to St. Paul he did not advise any one as to where he was going or when he would return; that while there he wrote a card to one of his employees, who was in charge of his business during his absence, stating: “I am done with pickles and saner kraut forever”; that he also wrote a postal card to appellant saying: “I am leaving town. Don’t worry for money”; and a letter to Mr. Henning, one of his creditors as follows :

“Dear Sir: — Mr. Henning as I owe you long bunch of bills I will say to you that I will pay all in the name of Honor. I send to you all my bills to collect and my driver Charlie knows all the customers, so I wish you would get a collector and collect all you. can and I will pay the rest, as I am disgusted all together. Luck is against me. I have property to meet all my bills, but I do not like to loose it. Now I will take a few weeks off to forget my downfall.”

Each of these cards and the letter was postmarked St. Paul and was written prior to the attachment suit. The evidence further shows that appellant went to his attorney, who had been practicing law for upwards of twenty years in Chicago, laid the facts before him, and the attorney advised that attachment be brought. Before this was done appellant and his attorney examined the records in the recorder’s office and made other investigations to ascertain what property was owned by appellee, etc. Appellant also called at appellee’s home to ascertain his whereabouts, but was informed that they did not know where appellee was nor when he would return. • After the institution of the attachment suit and prior- to the levy, appellant and his attorney, together with the bailiff, went to his place of business and found an employee in charge. Some of the effects appeared to have been removed, but the business was still being conducted by appellee’s representative, who stated that he did not know where appellee was nor when he would return. Thereupon the levy was made upon two barrels of pickles and seventeen crates of bottles, and the money in the hank garnished as above stated. The evidence further shows that an involuntary petition in bankruptcy was filed in the federal court by appellee’s creditor Henning on September 23rd; that after appellee returned to Chicago, at his solicitation he procured his creditors, including appellant, to enter into a composition settlement whereby their claims were settled by appellee ’.s paying twenty-five per cent, thereof; that appellee borrowed $1,000 with which to make this settlement, and a few days afterwards, on October 8th, appellant’s counsel and appellee’s counsel appeared in the Municipal Court, and on motion of appellant the garnishee was discharged and the suit dismissed.

From a careful consideration of the evidence, it is clear that appellee was not ready and able to pay appellant, but on the contrary he was unable to do so; that he was clearly insolvent. We are further of the opinion that the writ in the attachment suit was not maliciously and wrongfully sued out, but on the contrary we think that appellant used the utmost good faith in the matter. He made a careful examination of the facts and acted upon the advice of his counsel. The attachment suit was not tried; no evidence was introduced in that case, but it was abandoned on account of the settlement. However, we think the evidence clearly shows that appellee had left Illinois and was concealing himself, so that process could not be served upon him, and this was legal cause for suing out the writ.

We are also of the opinion that the evidence utterly fails to show that appellee sustained any damages as alleged in his declaration. It is argued that appellee was conducting a fairly successful business, and that on account of the attachment proceeding involuntary bankruptcy proceedings were started against him, and, as a consequence thereof, all of appellee’s creditors insisted upon immediate payment and appellee’s business was thereby destroyed. The difficulty with this contention is that there is not a word of evidence to sustain it. The petition in bankruptcy was filed by appellee’s creditor Henning, and an examination thereof discloses that the only ground of bankruptcy there averred was that appellee did “on the 16th day of September, A. D. 1912, convey, transfer, conceal and remove part of his property with intent to hinder, delay and defraud his creditors. ’ ’ The attachment suit was not begun until September 19th, and while the petition was not filed until a few days after the attachment suit was begun, there is not a scintilla of evidence that the petition in bankruptcy was in any way brought about by the attachment suit. Likewise there is not a word of testimony or evidence of' any kind in the record that appellee’s creditors insisted upon payment of their claims or that any person refused to do business with appellee because of or on account of the attachment suit. Moreover, we think that the evidence demonstrates that appellee’s place of business was not closed by the bailiff. It is true that appellee testified that when he returned from St. Paul he found the place closed by the bailiff; but appellant and his attorney both testified that the place was not closed and that but two barrels of pickles and seventeen crates of bottles were removed and taken to a warehouse. The undisputed evidence shows that there were fifty or .sixty barrels of pickles left in the basement, and appellee’s representative who was in charge of the place testified that he continued to conduct the business until appellee afterwards sold it, and that the same customers continued to do business with appellee as before.

Appellee at his own solicitation after the attachment suit was begun compromised and settled with appellant. The compromise was voluntarily and understandingly made. Under these circumstances, therefore, appellee cannot be heard to say that the writ of attachment was wrongfully sued out. Emery v. Ginnan, 24 Ill. App. 65; Hibbard, Spencer, Bartlett & Co. v. Ryan, 46 Ill. App. 313.

Appellee, however, maintains that the evidence concerning the compromise is conflicting and, therefore, the question should be left to the jury.. Appellant’s attorney testified that at the meeting of the creditors nothing was said about the dismissal of the attachment suit. Appellant testified that at the- creditors’ meeting, at which appellee, the other creditors, attorneys and himself were present, it was agreed that the payment of twenty-five per cent, of appellant’s claim should be in full, and if this were done appellant would be required to release the money garnished and return the pickles and bottles taken under the writ of attachment. This evidence clearly shows that there was a compromise and settlement and is in no way contradicted by the testimony of the attorney, as the dismissal of the. attachment suit was a necessary result following the settlement. That suit could not be prosecuted after the subject-matter thereof had been settled by the parties.

As appellee failed to make out his case in any view of the evidence, the court should have peremptorily instructed the jury to find for appellant. The judgment of the Circuit Court of Cook county will therefore be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact. The court finds that appellee voluntarily and understandingly entered into a compromise and settlement with appellant of the matters in controversy in the attachment suit, and that that suit was dismissed by reason of said compromise. The ■ court further finds that appellee has failed to prove that he has suffered any of the damages which are alleged in his declaration. The court further finds that appellant had probable cause in suing out the attachment writ and that the same was sued out without malice. The court further finds that appellant, defendant in the attachment suit, had left the State and was concealing himself so that process could not be served upon him.


text:
    Cecelia Blanche Quinn, Appellee, v. Irving Park District, Herman A. Ott, Arthur A. Haarstad, Charles E. Mitchell, Andrew L. Tracy and Albert C. Brown, Commissioners of Irving Park District, and Otto Schmidt, Appellants.
    Gen. No. 22,313.
    1. Municipal corporations, § 936

       — when exclusion from park may he enjoined. The right to the use and enjoyment of a park is a valuable right and any one who is wrongfully deprived of its use may maintain a bill to restrain his exclusion therefrom.
    2. Parks and boulevards, § 12*- — what is nature of title of commissioners of Irving Park District. The Irving Park District, organized and established under the provisions of the Act in force July 1, 1895,.Rev. St. ch. 105, If 162 et seq: (J. & A. If 8172 et seq.), is an agency of the State and the title to the park located in the district is held by the commissioners in trust for the people of the State at large.
    3. Municipal corporations, § 936* — when ordinance of park commissioners limiting use of facilities in park is void. Under the Act in force July 1, 1895, Rev. St. ch. 105, <|f. 162 et seq. (J. & A. If 8172 et seq.), organizing and establishing the Irving Park District, an ordinance adopted by the commissioners of said district limiting the use of a swimming pool and gymnasium constructed by them in a park which they established in said district to residents of the district, held null and void.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the February term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.

      Spencer Ward, for appellants.
    Thomas J. O’Hare and T. Bertram McGrath, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal appellants seek to reverse a decree of the Circuit Court of Cook county, making a preliminary injunction perpetual and enjoining them from excluding appellee from the swimming tank and gymnasium located in Independence Park. The appeal was prosecuted direct to the Supreme Court and by that court transferred to this court.

The record discloses that Irving Park District, located in Chicago, was organized and established under the provisions of an Act of the General Assembly, in force July 1, 1895 (chapter 105, par. 162 et seq., Rev. St., J. & A. 1J 8172 et seq.); that commissioners were elected and established in the district a park known as Independence Park; that the commissioners had caused to be constructed in the park a swimming tank and gymnasium; that a great number of persons, both male and female, residents and nonresidents of the park district, made use of the swimming tank and gymnasium; that the park commissioners passed a resolution or ordinance providing that no one except a resident of the park district should be admitted to the swimming tank and gymnasium; that appellee owned certain real estate in the park district and paid taxes thereon, but resided just without the limits of the district; that, prior to the passage of the resolution or ordinance, she had -been admitted to the swimming tank and gymnasium, but afterwards was excluded therefrom. She then filed the bill in this case to restrain the enforcement of the resolution or ordinance and praying that the same be declared null and void and that she be held entitled to the use of the swimming tank and gymnasium. A preliminary injunction was issued and, upon issues joined, the cause was heard before the chancellor, a decree entered making the injunction perpetual and holding that the commissioners were without authority to pass the ordinance or resolution; that the same was therefore null and void, and that no discrimination should be made between the residents and nonresidents of the park district.

Appellants contend that appellee has no standing in a court of equity, for the reason that the injury, if any, which she has suffered is not different from that sustained by all other persons similarly situated, and that she as a taxpayer cannot maintain the bill, unless the acts sought to be enjoined will increase her taxes or will otherwise result in a pecuniary loss to her.

In the case of City of Moline v. Greene, 252 Ill. 475, it was held that the legal title to library property located in the City of Moline was held in trust for the inhabitants of the city, and that a resident of the city could maintain a bill to prevent an illegal appropriation of the property. In that case it was sought to condemn a portion of the library property for the widening of a street. Objections were filed by two residents of the city. It was contended that they had no right to be heard. The court there said (p. 480): “If the appellant has no right to condemn the property of the library for the purpose for which it is here sought to be condemned, and if appellees, as taxpayers and two of the cestuis que trustent for whose benefit the property is held, would have the right, by injunction, to prevent the illegal appropriation of the property, it would seem illogical to hold that they have no such interest as would entitle them to be heard in the proceeding to take the property, but would be entitled to a hearing in another and different forum upon the same question and for the same purpose. In other words, if appellees might have enjoined the taking of the land by application to a court of equity, we see no valid reason for holding that to be their only remedy when the same result might be accomplished by objections in the County Court. As inhabitants and taxpayers of the city, for whose use and benefit the .library was established and the title to it held in trust, they were interested and concerned in the preservation of the property for the purposes to which it was devoted.” To the same effect is Village of Princeville v. Auten, 77 Ill. 325.

The right to the use and enjoyment of a park is a valuable right, and any one who is wrongfully deprived of its use may maintain a bill to restrain his exclusion therefrom. City of Moline v. Greene, supra; City of Alton v. Illinois Transp. Co., 12 Ill. 60; Village of Princeville v. Auten, supra; Davenport v. Buffington, 97 Fed. 234.

Appellants contend that under the provisions of the act under which the park district was created, the commissioners are authorized and empowered to limit by ordinance the use of the swimming tank and gymnasium to residents of the park district. For the purposes of this case we shall assume that the action of the commissioners is shown by an ordinance and not a resolution.

Section 1 of the Act (J. & A. 8172) provides:

That any territory situated in the same county or in two adjoining counties under township organization and so lying as to form one connected area, no portion of which shall be already included in a park district or in a township whose corporate authorities are authorized by law to levy special taxes or special assessments to maintain a public park, may be organized into a park district for the establishment, construction and maintenance of public parks and boulevards in the manner following”:

Section 2 (J. & A. ft 8173) provides that any one hundred legal voters resident within the limits of such proposed park district may petition the county judge of the county in which the territory lies, or, if in two counties, the two county judges, to cause the question to be submitted to the legal voters of such proposed park district, whether they will organize into a park district under the act; that the petition shall define the territory intended to be embraced in the district and state the name of the proposed park; that the county judge or judges shall then order an election to be held within the boundaries of the proposed district.

Section 5 (J. & A. 8176) provides, if the majority of the votes cast shall be in favor of the proposed district, the territory shall be deemed organized into such district, and by the name and style named in the petition it may sue and be sued, contract and be contracted with, acquire and hold the necessary real and personal property, adopt a common seal and shall constitute in law and equity a body corporate and politic and exercise the powers specified.

Section 6'(J- & A. U 8177) provides for the election of commissioners by the legal voters who reside within the district.

Section 11 (J. & A 1Í 8182) provides that the commissioners shall constitute the corporate authorities of the district and have power to pass all necessary rules and regulations for the proper management and conduct of the business for carrying into effect the object for which the park is formed. Power is then given to them to manage and control the property, and by ordinance regulate and restrain the use by the public, or by individuals of the parks, boulevards and driveways, and exclude therefrom funeral processions, etc.

Section 12 (J. & A. ft 8183) provides that the board of commissioners shall keep a regular book of records which shall be open to any person residing in the district at all reasonable times.

Section 14 (J. & A. if 8185) authorizes the commissioners to lay out, establish, construct and maintain parks in the district, with full power to control, manage and govern them.

It is argued that while the statute authorizes the construction and maintenance of public parks, it does not mean the public at large, but refers to the community within the park district, and that this is shown by the act itself, as it provides in the first instance the petitioners seeking to form the proposed park district must be residents thereof; that the vote taken to determine whether the park district shall be formed is likewise limited to the residents of the proposed district; that each of the commissioners elected must be a resident of the district; that the books of record required to be kept can be inspected only by a resident; that if it is sought to sprinkle the streets within the district, the question must be passed upon by the residents and therefore the commissioners, in a proper case, may by ordinance exclude nonresidents from the use of the swimming tank and gymnasium which is constructed in the park; that in the instant case, owing to the great number seeking to use the •tank and gymnasium, to prevent overcrowding, it was a necessary and reasonable exercise of the police power lodged in the board of commissioners to pass the ordinance in question; that the case is analogous to the rules and regulations governing public libraries and public schools, and that in these instances the persons legally in charge of the libraries and schools may respectively exclude therefrom nonresidents of the city in which the library is located, or the school district in which the school is located.

Section 6 of the Library Act (chapter 81, Bev. St., J. & A. ff 7084) provides: “Every library and reading-room, established under this Act, shall be forever free to the use of the inhabitants of the city where located, always subject to such reasonable rules and regulations as the library board may adopt. * * * And said board may extend the privileges and use of such library and reading-room to persons residing outside of such city in this State, upon such terms and conditions as said board may from time to time by its regulations prescribe.”

By paragraph 4, sec. 115, ch. 122, Bev. St. (J. & A. ff 10136) the board of school directors is given power, “To assign pupils to the several schools in the district ; to admit nonresident pupils when it can be done without prejudice to the rights of resident pupils.”

From the foregoing it clearly appears that under the statute a library constructed in any city or town is primarily for the use of the inhabitants of such city or town, but that the board having control of the library may extend the privileges to nonresidents of such city. In the case of assigning pupils to schools, the statute likewise expressly provides that the board of directors shall assign the pupils to the several schools within the district and may also admit nonresidents; while in the instant case no such provision is found in the statute under which the park district was established, but the power of the officials of IT park district is to construct and maintain public parks, and the use of such parks is nowhere in the statute limited to the inhabitants of the district.

In the case of State Public Utilities Commission v. Monarch Refrigerating Co., 267 Ill. 528, in passing on the meaning of the word “public” as used in the act concerning public utilities, the court said (p. 533): “As to what is meant by the word ‘public’ when used in this connection, it is very difficult to define or explain it in any simpler language than by the use of the word ‘public’ itself. The Century Dictionary thus defines the word ‘public’: ‘Of or belonging to the people at large; relating to or affecting the whole people of a State, nation or community; # * * not limited or restricted to any particular class of the community.’ The New International Dictionary defines it: ‘Of or pertaining to the people; relating to or affecting a nation, State or community at large. ’• In 32 Cyc. 748, one of its meanings is given as ‘open to all the people; shared in or to be shared or participated in, or enjoyed by the people at large; not limited or restricted to any particular class of the community.’ ”

In City of Alton v. Illinois Transp. Co., supra, certain lands were subdivided and portions bordering on the Mississippi Biver were designated on the plat as “common or promenade to be used in common”; “ground for use as public landing.” The City of Alton sought to obtain possession of these lands from the Transportation Company. One of the defenses interposed was that the action was barred by the statute of limitations. The court held that the- citizens of Alton did not have the unqualified control and disposition of the property, “but the citizens of the State generally have an equal right with them in the appropriate enjoyment of the dedication,” and therefore the statute of limitations did not apply, as it does not run against the State.

To the same effect is City of Chicago v. Wright, 69 Ill. 327, where it was said: “The city has possession (of certain streets) for the use of the public. The right of use is not limited exclusively to the citizens of Chicago, but the citizens of the State generally have an equal right with them in the appropriate enjoyment of the dedication. This was so held in City of Alton v. Transportation Co., 12 Ill. 60, and is a proposition that none can gainsay.”

The Irving Park District is an agency of the State, and the title to the park located in the district is held by the commissioners in trust for the people of the State at large. McCormick v. South Park Com’rs, 150 Ill. 516; City of Moline v. Greene, supra; City of Alton v. Illinois Transp. Co., supra; City of Chicago v. Wright, supra.

It follows, therefore, that the park, swimming tank and gymnasium located therein are held for the use of the citizens of the State generally and not for the exclusive use of the citizens of the park district, and the ordinance which seeks to limit the use to the citizens of the district is null and void.

The decree of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    John H. Bogert, Appellee, v. Chalmers & Williams, corporation, Appellant.
    Gen. No. 22,324.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Victos P. Arnold, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by John H. Bogert, plaintiff, against Chalmers & Williams, a corporation, defendant, to recover damages under section 1 of the Act to provide for the health, safety and comfort of employees in factories, mercantile establishments, etc., in force July 1,1910 (J. & A. 5386), for personal injuries sustained by plaintiff. From a judgment for plaintiff for $3,000, upon defendant’s motion at the close of plaintiff’s evidence for a directed verdict, defendant appeals.
    Plaintiff was injured while at work in defendant’s machine shop by the falling of a block which was supported from a cable running around a drum on a crane operated on an overhead track by electrical power and. the accident was caused by the power not being shut off when the block reached the carriage of the crane, so that the cable broke and the block fell. Both parties were within the provisions of the Workmen’s Compensation Act of 1911.
    Abstract of the Decision.
    1. Master and servant, § 690

       — when evidence shows that ma-~ chinery is known to he dangerous hy officers of corporation. Evidence held to show that machinery, consisting of a crane operated on an overhead track by electrical power to carry a block for lifting heavy material, was dangerous and so known to the elective officers of defendant corporation, in an-action under the Health and Safety Act, sec. 1 (J. & A. jf 5386), to recover damages for personal injuries sustained by defendant’s employee.
    2. Workmen’s Compensation Act, § 6* — what constitutes intentional failure to safeguard machinery giving right of action at law to employee. Evidence held sufficient to warrant the finding that defendant’s failure to safeguard its machinery was intentional, within the meaning of section 3 of the Workmen’s Compensation Act of 1911 (J. & A. jf 5451), providing that, when an injury is caused by the intentional failure to comply with statutory safety regulations an employee under the act may maintain an action at law, where a violation of section 1 of the Health and Safety Act (J. & A. If 5386) was established and the president of defendant, the immediate superior of the master mechanic,' was in the shop where the machinery was located and near it every day arid sometimes three or four times a day, and one of defendant’s directors was there every day.
    3. Master and servant, § 158* — what constitutes violation of statute relative to safeguarding machinery. Failure to employ upon dangerous machinery a well-known, simple, practical device which could he readily installed, thereby obviating the danger, constitutes a violation of section 1 of the Health and Safety Act (J. & A. 1i 5386).

      Frank M. Cox and B. J. Fellingham, for appellant.
    Bichard J. Finn, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

4. Appeal and error, § 1088* — what points may not be urged in argument. Points not made in the brief on appeal cannot be urged in argument.

5. Appeal and error, § 1088* — necessity of specifically pointing out error in brief. Any error complained of on appeal must be: specifically pointed out in the brief.


text:
    In the Matter of the Petition of Lena Warnke for release from arrest at suit of Thelma Roama under Insolvent Debtors’ Act.
    Gen. No. 22,338.
    1. Appeal and error, § 1088

       — what is effect of failure to argue points. The Appellate Court on appeal may refuse to consider points not argued.
    2. Judgment, § 364* — when may not be collaterally attacked. A judgment of the Circuit Court cannot be collaterally attacked in the County Court in a petition filed under the Insolvent Debtors’ Act.
    3. Execution — when alias capias ad satisfaciendum authorized. The Practice Act, sec. 4 (J. & A. IT 8541), expressly authorizes an alias capias ad satisfaciendum.

    4. Execution, § 293* — when judgment debtor cannot be discharged under Insolvent Debtors’ Act. Where malice is the gist of the action in which a judgment was rendered, the judgment debtor cannot be discharged under the Insolvent Debtors’ Act.
    5. • Execution, § 279* — when judgment for slander is conclusive. A judgment for slander held conclusive of the question of malice where both counts of the declaration charged malice, in a petition for discharge under the Insolvent Debtors’ Act.
    6. Execution — what constitutes sufficient notice by sheriff that unless judgment is paid, debtor will be taken into custody. Where a judgment debtor was taken on an original capias ad satisfacien

      dum, which was quashed and again on an alias writ, held that there was sufficient notice by the sheriff that unless the judgment was paid the debtor would he taken into custody.
    7. Execution, § 279

       — when issuance of writ of capias ad satisfaciendum, is improper. Where the jury were sworn “to try the issues joined herein” in an action for slander, wherein the defendant was defaulted for want of appearance, held, in a proceeding under the Insolvent Debtors’ Act for discharge of the judgment debtor taken on a writ of capias ad satisfaciendum based upon the judgment against him in such action, that there was no proper verdict of the jury finding him guilty to warrant the issuance of such writ, although the judgment might be valid, and it should he quashed by the Circuit Court issuing it.
    Appeal from the County Court of Cook county; the Hon. John H. Wikliams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Ernest Saunders, for appellant.
    Cantwell & Smith, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an appeal by Lena Warnke in which she seeks to reverse a judgment of the County Court dismissing a petition filed by her under the Insolvent Debtors’ Act, and remanding her to the custody of the sheriff:.

No brief has been filed on behalf of appellee. It appears that a judgment for $3,000 was entered on the verdict of a jury against the appellant in the Circuit Court of Cook county in an action for slander. An execution was issued, and after demand was returned no property found and no part satisfied. Subsequently an Order was entered by the Circuit Court awarding a writ of capias ad satisfaciendum. Appellant was taken under this writ by the sheriff and thereupon she filed her petition in the County Court seeking to be discharged under the Insolvent Debtors ’ Act.

The first four points in appellant’s brief question the proceedings in the Circuit Court. None of these points is argued, and we might refuse to consider them, but it is sufficient to say that the judgment of the Circuit Court cannot be collaterally attacked by the proceedings in the County Court.

Appellant next contends that she should have been discharged, for the reason that she was held under an alias capias ad satisfaciendum, and there is no law authorizing such alias writ. In support of this it is argued that the statute is similar to the Attachment Act, and under that act it has been held that there is no warrant.for an alias writ of attachment. We cannot agree with the contention that there is no warrant for the issuance of an alias writ of capias ad satisfaciendum. Section 4 of the Practice Act (J. & A. ¶ 8541) expressly authorizes the issuance of such an alias writ. (See also section 64, ch. 77, Rev. St., J. & A. ¶ 6811.)

Appellant next contends that as she was placed under arrest on the theory that she had refused to surrender her property to satisfy the judgment, the judgment creditor cannot shift her position and hold appellant on the theory that malice was the gist of the action in the Circuit Court. The record discloses no evidence offered by appellant tending to show that she had not refused to turn over all her property towards the satisfaction of the judgment. Furthermore, it appears that the judgment creditor proceeded on both theories.

Where malice is the gist of the action in which the judgment was rendered, the judgment debtor cannot be discharged under the Insolvent Debtors’ Act. Section 2, ch. 72, Rev. St. (J. & A. ¶ 6199); Jernberg v. Mix, 199 Ill. 254; First Nat. Bank of Flora v. Burkett, 101 Ill. 391; People v. Greer, 43 Ill. 213.

The action in the Circuit Court was for slander, and malice is the gist of such action. McKee v. Ingalls, 5 Ill. 30. The judgment of the Circuit Court is conclusive of the question of malice, as both counts of the declaration charge malice. Jernberg v. Mix, supra.

Complaint is also made that when the execution was served on appellant and payment demanded, she was not notified by the sheriff that unless she paid the judgment she might be taken into custody. The record discloses that she was first taken on the original writ, which was afterwards quashed, and again on the alias writ. Obviously she had sufficient notice.

Although the point is not made, we find upon looking into the record that appellant, defendant in the slander suit in the Circuit Court, was 'defaulted for want of appearance. Subsequently a jury was sworn “to try the issues joined herein.” There were no issues joined. Section 1 of the Act of June 17, 1893 (J. & A. 4145), provides that no person shall be imprisoned for nonpayment of a judgment in any civil action, except upon conviction by a jury, unless the defendant in such action waives a jury in writing. There was no proper verdict of a jury in this case finding the defendant in the slander suit guilty, and although the judgment may be valid, an execution against the body could not properly be issued, and, if issued, should be quashed by the Circuit Court. Swan v. Mulherin, 67 Ill. App. 77; People v. Koehler, 146 Ill. App. 541.

The County Court having no jurisdiction to discharge the defendant, the judgment is affirmed.

Affirmed.


text:
    Rubie D. Swartout, Appellee, v. Walter C. Swartout, Appellant.
    Gen. No. 22,350.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1395

       — when finding of chancellor as to defendant’s financial ability to pay alimony not disturbed. Record held insufficient to show that the finding of the chancellor as to defendant’s financial ability to pay certain alimony awarded against him was incorrect, he having seen and heard the witnesses and been in a much better position to determine the facts, under an order upon defendant to show cause why he should not he adjudged in contempt for nonpayment of the alimony.
    2. Appeal and error, § 1238* — when erroneous decision of court may not be complained of. Parties who procure the erroneous decision of a court or who acquiesce therein cannot complain on appeal.
    Appeal from the Circuit Court of Cook county; the Hon. George Kersten, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Bill by Ruble D. Swartout, complainant, against Walter C. Swartout, defendant, for divorce. From an order adjudging defendant to Tie in contempt of court for nonpayment of certain alimony awarded complainant and committing defendant to jail until same be paid, or until he be released by due process of law, commitment not to exceed six months, defendant appeals.
    Benjamin Levering and Elmer H. Heitmann, for appellant.
    Edward R. Hartigan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John A. Kelly, Appellee, v. Chicago City Railway, Company, Appellant.
    Gen. No. 22,379.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 366

       — when no duty exists upon part of motorman of car rounding curve to protect prospective passenger standing near outer rail. Where plaintiff was struck by defendant’s street car while he was standing on a street corner at the south end of a curve waiting to take the car going north which did not stop until after rounding the curve, whereby the rear end of the car extended over the rail of the track so as to strike plaintiff when it turned, held, in the absence of proof that the motorman knew or could have known that plaintiff was in danger of being struck if the car was operated around the curve, there was no duty on the part of the motorman to protect plaintiff from being struck.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Rehearing denied October 25, 1917.
    Statement of the Case.
    Action by John A. Kelly, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $1000, defendant appeals.
    Busby, Weber & Miller, Benjamin F. Richolson and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    Sabath, Stafford & Sabath, for appellee; J. J. Viterna, of counsel. •

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Carriers, § 480 — when question for jury whether motorman had notice that prospective passengers expect car to be stopped before rounding curve. The fact that about forty people were standing on the side of a street just south of a curve of street car tracks and as a car approached they stepped into the roadway near the tracks, held sufficient notice to the motorman of the car that he was expected to stop the car at that point, to require submission of the case to the jury, in an action to recover damages for injuries sustained by reason of the car not stopping until after rounding the curve going north.

3. Carriers, § 486*- — when instruction that overhang of car striking prospective passenger need not be considered is properly refused. An instruction, in an action to recover damages for injuries sustained by plaintiff being struck by defendant's street car while he was standing near a curve in the track, as the car rounded the curve, due to the qyerhang of the car, that the jury were not concerned with the type, width, length, or overhang of the car, held misleading and properly refused, as the overhang of the car in iounding the curve was a vital element to be considered by the jury in determining whether the motorman exercised due care under all the circumstances.

4. Appeal and error, § 1540* — when instruction referring to declaration is not reversibly erroneous. Giving an instruction, in an action to recover damages for personal injuries that plaintiff would be entitled to recover if he proved his case as charged in the declaration, provided he was in the exercise of due care for his own safety, held not reversible error, although actionable negligence was not charged in each and every count.