text:
    Cheboygan Paper Company v. Swigart Paper Company.
    Gen. No. 13,807.
    1. Contracts—what not acceptance of proposition. Held, that a letter referred to in this opinion did not constitute an acceptance of an order in question, and that no contract of bargain and sale was consummated between the parties.
    2. Contracts—formal acceptance of proposition essential to complete. An acceptance of a proposition must be unconditional in order to constitute a contract.
    Smith, J., dissenting.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed, with finding of facts.
    Opinion filed March 20, 1908.
    Statement by the Court. In the Municipal Court the plaintiff recovered a judgment against the defendant for $59.86, as damages for the breach of an alleged contract for the sale of paper by the defendant to the plaintiff, to reverse which judgment the defendant prosecutes this writ of error. The defendant was a manufacturer of paper at Cheboygan, Michigan, had as its sales agent in Chicago F. K. Moody, and plaintiff was a dealer in paper in Chicago. February 25, 1907, plaintiff sent to Moody, by mail, the following order addressed to defendant:
    ‘ ‘ Gertlemer:—
    Please enter our order as follows:
    365 reams yellow print paper, per sample attached. 43x56-82. Paper to be flat and packed soft fold Long-way.
    This paper to be in Chgo. on or before March 20th. Price f. o. b. Chicago 2%c—terms 3% 30 days.
    Tours truly,
    Swigart Paper Co.”
    February 26, Moody wrote plaintiff as follows:
    ‘' GeRTLEMER :-
    I am in receipt of your order, A-1754, for 365 reams of 43x56-82 yellow print at $2.75 Chicago. Same has gone forward to the mill for their attention. It may be possible to get it here on the date specified, but everything coming in at the present time is taken in turn and will be filled as quickly as the orders now placed with the mill are out the way. I had hoped that you could make this $2.80 as we talked.
    Tours very truly,
    F. K. Moody, Sales Agent.”
    No further communications passed between plaintiff and either Moody or the defendant until March 8, when Moody wrote the plaintiff as follows:

      ‘ ‘ Gentlemen :—
    Taking np order 1754, I regret that the mill are obliged to return this order, for the reason that the situation is becoming so desperate regarding wood, that, in the first place, they could not make delivery on time. In the second place, they are not certain when they will be able to get their supplies in sufficient quantities to complete orders which are already entered and should have been filled weeks ago. This condition of affairs developed seriously within the past week, and they request me to notify you to this effect, and give you the following state of facts. If it was possible for them to get it out in time, they would be glad to do so, or if they could name any date when they would get out of their present condition, they would be glad to enter the order.
    Very truly yours,
    F. K. Moody, Sales Agent. ’ ’
    Alden, Latham & Young, for plaintiff in error; Chables Martin, of counsel.
    Brode B. Davis, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The statement in Moody’s letter of February 26, is not that ‘ ‘ Your offer' is accepted, ’ ’ but "Your order has gone forward to the mill for their attention.” This language cannot, in the opinion of a majority of the court, be held in acceptance of or an assent to plaintiff’s order, nor more than a statement that the writer had sent the order to the defendant for its attention. But if the first sentence of the letter, standing alone, could be held an acceptance of assent to the order, the entire letter cannot be so held because of the second sentence. “A mere proposal by one man obviously constitutes no bargain of itself. It must be accepted by another, and this acceptance must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer he requested, this constitutes in law a rejection of the offer, and a new proposal, equally ineffectual to complete the contract until assented to by the first proposer.” Benjamin on Sales, Sec. 39. Here the offer was to buy “paper to be in Chicago on or before March 20.” Moody in reply wrote: “It may be possible to get it here on the date specified, but everything coming in at the present time is taken in turn and will be filled just as quickly as the orders now placed with the mill are out of the way.” The answer changed the time of delivery stated in the offer, and for that reason was not an unconditional acceptance of the offer, and consequently no contract was by such letter and answer effected. Johnson v. Stevenson, 26 Mich. 62.

In the opinion of the majority of the court, the evidence fails to prove that any contract of sale was made between the parties and the judgment will therefore be reversed with a finding of facts and the cause will not be remanded.

Reversed, with finding of facts.

Mr. Justice Smith dissenting.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Arnold Holinger et al. v. W. C. Phillips.
    Gen. No. 13,860.

      Evidence—effect of recitals of deed. In an action for real estate commissions the recitals of the deed as to the consideration are mere hearsay and do not tend to establish the purchase price paid by the vendor to the vendee.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 20, 1908.
    Chester Firebaugh, for appellants.

      Benjamin Levering, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendants from a judgment for $1,562.50 recovered against them by appellee in an action of assumpsit. The cause of action set up in the special count of the declaration and sought to be proved by the plaintiff on the trial was that the defendants, having for sale as brokers certain property in Chicago belonging to Braun and Fitts, promised the plaintiff that if he would find a purchaser for the same, they would pay him one-half of two and a half per cent, of “the consideration paid by the purchaser,” and that he did procure a purchaser for said property who paid therefor a consideration of $125,000.

The amount of the recovery was two and a half per cent, of $125,000, and to sustain the judgment the evidence must therefore be sufficient to warrant a finding by the jury that the plaintiff did procure a purchaser for said property, and that the purchaser paid therefor $125,000.

The only evidence for the plaintiff was his own testimony and a certified copy of a deed of the property from Braun and Fitts to Eliza A. Ware, reciting a consideration of $125,000. Plaintiff testified that he introduced Mr. E. C. Ware to one of the defendants, and in answer to a juror testified that Eliza A. Ware, the grantee, was the wife of a brother of Mr. E. 0. Ware. The evidence, we think, fails to show that plaintiff procured a purchaser for the property.

It also fails to show the amount of the consideration paid for the property by Eliza A. Ware. The recitals in the deed of the consideration are but hearsay when offered, as in this case, against a stranger to the deed, O’Hare v. C., M. & N. R. R. Co., 139 Ill. 151.

There is in the record no competent evidence tending to show the consideration paid by the purchaser for the property.

For the reasons indicated the judgment will be reversed and the cause remanded.

Reversed and, remanded.


author: Mr. Justice Freeman

text:
    Heywood & Morrill Rattan Company v. John N. Jacobson, Conservator.
    Gen. No. 13,447.
    1. Practice—restoration of lost files. If the order restoring lost files is sufficient on its face, in order to question its propriety a bill of exceptions should be made up showing the evidence upon which the court acted.
    2. Appeals and errors—effect of stipulation authorising use of original MU of exceptions. Such a stipulation applies as well to a restored bill of exceptions as to the original one.
    3. Master and servant—who not fellow-servants. Held, that a chief engineer was not a fellow-servant of the plaintiff who was working under the orders of such chief engineer.
    4. Master and servant—when doctrine of assumed risls does not apply. The doctrine of assumed risk does not apply as against a servant who is injured while obeying the direct instructions of his superior in charge of the work, it not appearing that the servant acted recklessly in obeying such instruction.
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. M. F. Foley, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed March 20, 1908.
    F. J. Canty and White, Mabie & Conkey, for plaintiff in error.
    Richberg & Richberg, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Defendant in error recovered a judgment in the Circuit Court in an action for personal injuries. From this judgment plaintiff in error was allowed an appeal to the Circuit Court, which apparently was not prosecuted. Meanwhile it would appear that the bill of exceptions was lost or destroyed, since in February, 1907, nearly five years after the judgment was rendered, a petition was filed to restore the bill of exceptions.

Attorneys for defendant in error interposed a motion to affirm the judgment, on the ground that the transcript of the record contains no bill of exceptions. The original transcript of record filed in this court February 6, 1907, was certified by the clerk of the Circuit Court to be.a complete transcript “except the bill of exceptions, the original of which has been lost or misplaced” after it had been duly filed in the clerk’s office. There is a supplemental transcript of record which purports to contain a copy of the original bill of exceptions, which transcript was filed March 1, 1907. In this supplemental transcript there is an order of the Circuit Court wherein it is made to appear that upon application of plaintiff in error for an order authorizing the original bill of exceptions to be supplied by a certified copy of the original, it appearing that the original had been lost or destroyed without fault or neglect of the applicant, that said original had been duly filed in the office of the clerk of said court on the twenty-sixth of February, 1902, and that the copy of said original attached to the petition of the applicant is a true and correct copy of the said original bill of exceptions, the court certifies the copy attached to the petition of the applicant to be a true and correct copy of said original bill of exceptions; and it is ordered and the court authorizes the loss of the original bill of exceptions to be supplied and it “is hereby supplied by said copy of said original bill of exceptions. ” It is further ordered that said copy shall have the same effect as the original would have had in all respects.

It is claimed in behalf of plaintiff in error—hereinafter called defendant—that the order restoring a lost part of the record is in accordance with section 1, chapter 116 R. S., which provides for an order of court “authorizing such defect tobe supplied by a duly certified copy of such original record where the same can be obtained.” It is apparent from inspection of the supplemental transcript of record that no such “duly certified copy” was presented to the court, and that the so called “true and correct copy” was at most a reproduction of the lost original bill of exceptions. We are of opinion, however, that the order of restoration is in substantial compliance with the provisions of section 2 of chapter 116 R. S., which provides “for the restoration of court records lost or destroyed.” While plaintiff’s counsel contend that the restoration was not in compliance with the statute, the evidence upon which the Circuit Court acted in supplying the substance of the lost record has not been preserved by bill of exceptions, and as said in McCabe v. Porter, 73 Ill. 244-245, if in the opinion of counsel “the evidence was insufficient to warrant the making of an order, he should have preserved it by bill of exceptions and thus brought it before us.” While it is true the application to the Circuit Court was apparently intended to be based upon section 1 of the Act referred to, but does not meet its requirements, and while there are manifest irregularities in the petition and in the clerk’s certificate, we are of opinion nevertheless that the order of court upon its face sufficiently meets the requirements of section 2 of the Act. We are of opinion also that the stipulation to incorporate the original bill of exceptions in the transcript was still applicable to the bill when restored.

It is urged that the supplemental transcript of record containing the restored bill of exceptions was filed without suggestion of diminution of record and without leave of court to supply. It appears, however, that both the original transcript and the supplemental transcript of record were filed before the beginning of the March term of court to which the writ of error was prosecuted. The two documents together purported to contain a complete transcript of the record and were filed on or before the second day of the term, as the statute prescribes. No application therefore for leave to file was required.

It is urged in behalf of the defendant that the verdict was against the weight of the evidence. There is evidence tending to show the defendant company was at the time of the accident receiving a new boiler about eleven feet in length and weighing about four thousand pounds. It had been brought to defendant’s premises upon a truck which was backed up to a platform upon which the boiler was to be unloaded. The plaintiff was engaged in handling lumber in the yard of the defendant and was ordered by the foreman to go to the help of the chief engineer under whose direction, as there is evidence tending to show, the boiler was to be unloaded. He was told by the engineer that the boiler was to be taken to the engine room and was set to work helping to unload it. The boiler was so far unloaded at the time of the accident that one end was resting on the platform, the other still resting on the truck. The engineer, according to plaintiff’s testimony, told plaintiff and a fellow workman who was helping to unload the boiler that they would “have to put another roller down,” and added “You fellows raise it high up with the crowbar.” Plaintiff testifies that the yard foreman came up and brought plaintiff a block and put it down by plaintiff’s crowbar, saying “You got a good chance, yon can raise it good.” The foreman then went away and the engineer said “Everything is ready, go ahead.” Plaintiff bore down on his crowbar, and while so doing the boiler when it moved rolled over against plaintiff, knocking him down. As he fell he reached out with his right hand to the wagon toward which he was falling, and as his hand came upon the wagon the boiler rolled against it, cutting off one finger and injuring others. In the main features of this testimony the plaintiff is corroborated by the workman who was engaged with him in helping to unload the boiler. There is conflict in the evidence. In behalf of defendant there is testimony to the effect that Robinson, the chief engineer, was not near the boiler at the time of the accident and gave no order to plaintiff. The chief engineer himself states that he sent for some men “and called these two men over to unload the heater,” but that “at the precise moment Timm was hurt I did not say anything to him,” and that he “was talking to the yard foreman " * * about twenty-five feet away.” One witness for the defendant testifies that the yard foreman, the chief engineer, an assistant engineer and three others beside plaintiff “were there in and about moving that boiler.” There is therefore evidence tending to show that plaintiff was obeying an order of his superior at the time the boiler rolled over on him and that no sufficient precautions had been taken to guard against an accident such as occurred. Whatever of conflict there is in the evidence was proper matter for consideration by the jury. We are of opinion that no reason is apparent why we should interfere with their conclusion on the questions of fact, and we cannot concur in the contention that the verdict is against the weight of the evidence.

It is contended that the chief engineer was a fellow-servant of the plaintiff. It must suffice to say that in our opinion there is no evidence tending to support this contention. The chief engineer was in charge of the unloading and was apparently recognized as having authority by the yard foreman and others. The yard foreman, plaintiff’s immediate superior, sent plaintiff to the chief engineer and, as there is evidence tending to show,, placed him under said engineer’s orders, the foreman himself as such, taking some part apparently in the work then in hand.

Nor do we concur in the contention that plaintiff assumed the risk of the boiler rolling. He was acting apparently under the direct orders of his superior. It is true that “a servant assumes the risk of known dangers such as are so obvious that knowledge of their existence may be fairly presumed.” Pittsburg Bridge Co. v. Walker, 170 Ill. 550. In this case where plaintiff was obeying direct instructions of the superior in charge of the work, the doctrine of assumed risk is not applicable. The servant had a right to rely upon the superior whose orders he was obeying not to give an order involving sudden danger to the employe without having taken measures to obviate the danger or at least called attention to the danger before execution of the order. The servant “cannot be charged with negligence in obeying an order of the master unless he acts recklessly in so obeying,” and whether he so acted is a question of fact for the jury. Gundlach v. Schott, 192 Ill. 509-512, and cases there cited.

Complaint is made of instructions given and refused, but consideration of the objections urged discloses no material error in this respect. We are of opinion the record is free from reversible error and the judgment of the Circuit Court will therefore be affirmed.

Affirmed.


text:
    Wells, Fargo & Company v. Henry W. K. Cutter et al.
    Gen. No. 13,765.
    Common carriers—what limitations of liability not effective.' Held, that the limitations contained in a receipt for merchandise undertaken to be carried by an express company were not, under the evidence, assented to by the shipper; also, held, that there was no attempt on the part of the shipper to deceive the company as to the value of such merchandise.
    Assumpsit, Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 20, 1908.

      Statement iby the Oomrt. Material facts in this case are that on April 26, 1906, defendants in error— hereinafter referred to as plaintiffs—delivered to plaintiff in error—hereinafter referred to as defendant—five eases of merchandise to be forwarded by the defendant express company to a consignee at San Francisco, California. One of these cases was never delivered nor accounted for. The missing case of merchandise is valued at $207.50 and plaintiffs sued to recover that amount.
    Our attention is called to the fact that on the eighteenth of April, 1906, eight days before the merchandise in question was delivered to defendant for shipment, an earthquake occurred at San Francisco, by reason of which and the fire following a portion of that city was destroyed. It does not appear, however, that this fact had anything to do with the loss of the merchandise in controversy or its failure to reach the consignee. It is apparently undisputed, and there is evidence tending to show, that the five eases constituting the shipment weighed over a thousand pounds and contained merchandise valued, it is said, at $728. The plaintiffs prepaid to the defendant the express charges on the whole shipment, amounting to $98. The defendant gave a receipt for the goods which contained the following: “Nor in any event shall said company be held liable beyond the sum of $50, at not exceeding which sum the said property is hereby valued, unless a different value is hereinabove stated. ’ ’
    It appears undisputed that the plaintiff made no representations as to the value of the goods and that nothing was said about it at the time the shipment was made by either party. Plaintiffs’ shipping clerk was aware of the above quoted provision in the receipt, but no attention seems to have been paid to it by either of the parties in their ordinary business transactions. The consignment in controversy was accepted without question. The defendant conceded at the trial its liability to the plaintiffs to the extent of $50, but contended that notwithstanding the loss of one case of the goods through its negligence, which negligence it concedes must be presumed from its inability to account for it, the plaintiffs were not entitled to recover a greater sum than the $50 which it is said they had, by acceptance of the receipt containing said provision, represented to the defendant as the true value of the goods for purposes of the shipment, upon which valuation it is claimed the express charges were based. It is said that under the regular rules of the defendant express company a higher rate of charges would have been imposed had plaintiffs declared the true value of the lost case to be $207.50 as now claimed, and that in such case the plaintiffs would have been charged sixty cents more per hundred pounds than they in fact paid for carriage of the case in question. It appears from the testimony of plaintiffs’ credit man that when the defendant’s collector brought the receipt to plaintiffs’ office, the credit man figured the charges to see if they were correct and found them lower than the tariff rate. He called the attention of defendant’s collector to this, and was told that the particular rate in this case was made because the five cases constituting the shipment weighed more than a thousand pounds.
    The jury returned a verdict in favor of the plaintiffs for $207.50, the value of the goods as claimed, and judgment was entered accordingly
    Holt, Wheeler & Sidley, for plaintiff in error.
    Musgrave, Vroman & Lee, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

The defendant contends that the judgment of the lower court is erroneous; that a carrier may lawfully agree with a shipper that its liability in case of loss, even though resulting from its own negligence, shall not be greater than the value placed upon the goods by- the shipper upon which the carrier’s charges are based; that such an agreement does not operate as a waiver or limitation of any common law duty of the carrier, and that it may be effected by a notice contained in the carrier’s receipt to the shipper that it will not be liable beyond a stated amount unless a higher, value is disclosed by the shipper, if such notice is brought home to the knowledge of the shipper and no fraud, deceit or coercion is exercised by the carrier in connection with the shipment. It is argued that in the case at bar the plaintiffs’ shipping clerk admitted knowledge of the $50 valuation provision of the receipt and knew that there was a blank column in the receipt headed “Value asked and given as,” which was there to afford opportunity for inserting the value of the shipment if the parties" were so disposed. It is urged that such knowledge by the shippers was sufficient without any assent on their part, to bind plaintiffs to the terms of that provision. In support of these contentions defendant’s counsel cites among others the case of Oppenheimer v. U. S. Express Co., 69 Ill. 62-66. In that case it was urged in behalf of appellants “that it is incumbent upon the express company to show, not only that the consignors had knowledge of the contents of the receipt but also that they assented to the same and consented to be bound thereby.” The court says: “A distinction exists between the effect of those notices by a carrier which seek to discharge him from duties which the law has annexed to his employment, and those like the one in question, designed simply to insure good faith and fair dealing on the part of his employer; in the former case notice alone not being effectual without an assent to the attempted restriction; while in the latter case, notice alone, if brought home to the knowledge of the owner of the property delivered for carriage, will be sufficient.” In support of the views so expressed the court quotes from Orange Co. Bank v. Brown, 9 Wend. 115, in which it is said that where the notice is “designed simply to insure good faith and fair dealing” on the part of the shipper, if it is “brought home to the knowledge of the owner (and courts and juries are liberal in inferring such knowledge from the publication of the notice), is as effectual in qualifying the acceptance of the goods as a special agreement, and the owner at his peril must disclose the value and pay the premium. The carrier in such case is not bound to make the inquiry and if the owner omits to make known the value and does not therefore pay the premium at the time of delivery it is considered as dealing unfairly with the carrier, and he is liable only to the amount mentioned in his notice or not at all, according to the terms of his notice.” In the Oppenheim case the court “independent of the qualifying provision contained in the receipt” sustained the defendant’s claim of exemption from liability on the ground of a want of good faith in not disclosing the value of the goods. The court finds the value was not disclosed in order to avoid “the enhanced charges that would have been made had the value of the package been disclosed.” and that there was “a designed suppression of the value of the goods.”

In the case at bar we find no evidence of a want of good faith on the part of the shipper, nor was there any designed suppression of the value. There is evidence tending to show that the express company was in the habit of using a stamp reading “Value asked and not given,” when it desired to limit its liability where the value was not given. The shipping agent of the plaintiffs testifies he did not know “that the price we were paying for the carriage of a shipment was regulated to some extent by the value of the goods. I didn’t know that the price paid for sending packages would be greater if it was a valuable package than if it was simply a cheap package. I didn’t know that the rate would be regulated by the value of the package I was shipping. I knew that jewelry and such things as that had a higher rate for shipment, because jewelry did not go with the regular express, as I understood it. I went by the weight of our goods. We did not have any costly things. They gave the rate, so much a hundred pounds, as the rate for merchandise, and I shipped by that value.” This evidence is undisputed. There is evidence likewise undisputed to the effect that when the collector for the defendant brought the receipt in question to the plaintiff’s office to collect the express charges, which were $98.10, the plaintiffs’ credit man “figured * * * to see if the charges were correct.” He found the charges “lower than the tariff rate” and called the attention of defendant’s collector to that fact. He was told by the collector “that particular rate was made owing to the fact that five cases weigh more than a thousand pounds.” This evidence clearly tends to show not only that there was no attempt on plaintiffs’ part to suppress the value of the merchandise in order to secure a lower rate, but that plaintiffs’ shipping agent did not even know that charges were based on value of merchandise so shipped, that as a matter of fact they probably were not so based on merchandise of this character and that instead of trying to save a few dollars by suppressing the actual value of the shipment, plaintiffs’ credit man called defendant’s attention to what he thought was an error in plaintiffs’ favor, and thereupon defendant’s agent explained that a reduced rate was granted by defendant because of the weight of the shipment. Apparently there was good faith on both sides in giving and accepting the shipment, at the rates paid, and it is difficult to believe that defendant when fixing and collecting express charges of $98.10 on the shipment had any question whatever that its value must have exceeded $50, and it appears that it was accepted with that understanding and without inquiry. We are of opinion that so far as the notice under consideration is concerned defendant waived it as a limitation upon the value of the shipment in this case, and it was not assented to by plaintiffs. In Adams Express Co. v. Haynes, 42 Ill. 89-93-4, it was held that “the jury should be satisfied from the evidence that the person to whom it was given had full knowledge of the restrictions when the receipt was given; and to show that he was not so informed all of the circumstances attending the giving of the receipt may be admitted in evidence.” It was further said that the shipper’s assent to the limitation is necessary “and that is a question of fact for the jury.” The shipper’s agreement to the limitation “is not to be implied from the posting of notices or the simple delivery of one to the consignor, as this would be no more than limitation of his liability by ex parte action. Some evidence of assent to the terms of the notice is necessary from which a contract may be implied.” If, as said in Adams Exp. Co. v. Haynes, supra, the plaintiffs in the case at bar had received the “receipt with full knowledge of its terms and conditions and intended to assent to the restrictions it contained, then it undoubtedly” would have become their contract as fully as if they had signed it. But, as we have indicated, we think the jury were justified by the evidence in concluding that neither party intended the notice in question to be applicable when the receipt was given. In Boscowitz v. Adams Exp. Co., 93 Ill. 523-531, reference is made to Oppenheiruer v. United States Exp. Co., supra, the doctrine of that case is approved and it is said there is in that case “no departure from the uniform decisions of this court, that a carrier cannot be released from the duties and liabilities annexed to its employment unless the shipper assents to the attempted restrictions;” that “in respect to those duties designed simply to enjoin good faith and fair dealing, a notice alone if brought home to the knowledge of the owner of the property delivered for carriage will be sufficient, ’ ’ but it is permissible to introduce “evidence tending to show why no valuation was stated.” It is further said in that case: “Unless the limitation clause was assented to by the shippers with a view to release defendant from that liability which the law annexes to its employment, defendant cannot avail of it, and that which counsel maintain as a conclusion of the law is nothing more than the effect to be produced by the testimony offered to establish the fact insisted upon.” In C. & N. W. Ry. Co. v. Chapman, 133 Ill., 96-108, it is said that while the carrier may by special contract exempt himself from strict liability imposed by the common law, “the law does not authorize common carriers to fix arbitrarily the value of goods delivered to them for transportation and thereby limit their liability in case of loss.” In C. & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9-12, it was held that a bill of lading which limited the carrier’s liability and was both a receipt and a contract was not binding upon the appellee for two reasons, “first, there is no evidence in the record that the appellee assented thereto; and secondly, appellant cannot relieve itself by contract for an injury caused by its gross negligence; ’ ’ and it is said that the questions of assent and negligence are questions of fact that “the onus is on the carrier to show the restrictions of the common law liability were assented to by the consignor.” To the same effect are C., C., C. & St. L. Ry. Co. v. Patton, 203 Ill. 376-380; The Wabash Railroad Company v. F. E. Thomas, 222 Ill. 337-343. Whatever may be the rule in other jurisdictions, it is settled in this state that the question of the shipper’s assent to the limitation is a question of fact. We are of opinion the evidence supports the conclusion that the limitation clause in the receipt was not assented to by the shipper in the case at bar and not binding upon the consignor.

It being conceded that the presumption is that the case of goods in controversy was lost through the negligence of the defendant, the notice could not avail to discharge the defendant as carrier from duties which the law has annexed to its employment. In Hart v. Pa. R. R. Co., 112 U. S. 331, cited by defendant’s counsel, it is said that “the limitation as to value has no tendency to exempt from liability for negligence.” In Express Co. v. Caldwell, 21 Wallace, 264-272, the court said that a not dissimilar provision in a receipt “purported to relieve the defendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity and care as they would have been required to exercise if no such agreement had been made.” See also Black v. W. St. L. & P. Ry. Co., 111 Ill. 351-357. It is well settled that the law from considerations of public policy will not permit a carrier to contract for exemption from liability for losses occasioned by his own negligence. Adams Exp. Co. v. Haynes, supra, p. 94; Boscowitz v. Adams Exp. Co., 93 Ill. 523-529. In Boscowitz v. Adams Exp. Co., supra, it is held that ‘ admitting the conditions in the receipt were understandingly assented to by the shippers and became a binding contract between the parties, still defendant would be liable for the full value of the goods if the loss was owing to negligence on the part of the railroad company.” The statute provides: “That whenever any property is received by a common carrier to be transported from one place to another within or without this state, it shall not be lawful for such carrier to limit his common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property.” R. S., chap. 27, sec. 1. In C. & N. W. Ry. Co. v. Chapman, supra (133 Ill. 96-107). the court reviews former decisions in this state and says: “Whatever may be the rule elsewhere, in this state the common carrier cannot contract for exemption from responsibility for a failure on its part or that of its servants to exercise ordinary care in the transaction of its business.”

The judgment of the Municipal Court must be affirmed. Affirmed.


text:
    Joy Morton v. Bruce B. Barney et al.
    Gen. No. 13,819.
    1. Contracts—what does not constitute employment of real estate broker. Held, that the evidence in this case did not show the employment of the brokers by the owner and that such brokers were not entitled to compensation.
    2. Brokers and factors—what essential to recover compensation. In order that a real estate broker may recover commissions he must show a contract of employment and an effectuation of a sale upon the terms proposed by the owner.
    3. Brokers and factors—when not entitled to compensation. A real estate broker employed to make a sale or lease is not entitled to compensation where he was not the efficient cause in the effectuation of the transaction for which recovery of compensation is sought.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed March 20, 1908.
    Statement by tie Court. This is an appeal from a judgment of the Circuit Court awarding appellees a commission of $3,950 as brokers for alleged services in procuring a tenant on a nineteen-year lease of property in Chicago.
    Material facts are that in June, 1901, appellant, one Rockwell King, since deceased, and the Western Storage Company, in which said first named parties were interested, purchased at a partition sale the north half of what is known as the Dock Strip, being Block N in the original Town of Chicago, on the west bank of the Chicago River between West Lake and West Randolph streets. At this sale the real estate firm of Dunlap Smith & Co. represented the purchasers, and the property was immediately afterward placed by the new owners in the hands of said real estate agents for sale. Failing either to sell or lease the property, an arrangement was made through Dunlap Smith & Co. by which appellant purchased from one Butler the. South half of the dock strip and sold to third parties another portion of the original purchase, thus becoming owner of the entire dock strip, subject to the interest of said King and the Storage Company. Finding no sale for the land, which for practical purposes was vacant, appellant decided to erect a new building thereon, provided a tenant could be found who would lease the premises upon satisfactory terms, when so improved. Negotiations were undertaken through the same real estate agents with Kelley, Maus & Company, to whom finally, December 12, 1901, after somewhat lengthy negotiations a formal written proposition was submitted by said real estate agents, Dunlap Smith & Co. acting for appellant. Some time in January or February following an understanding seems to have been reached between appellant and Kelley, Maus & Co., but the latter insisted that as a condition of making any contract, a driveway must be constructed from Lake to Randolph streets which would extend out over West Water street. To do this an ordinance from the city council was necessary and said real estate firm of Dunlap Smith & Co. undertook the task of obtaining such ordinance, which was finally accomplished. Thereafter plans for a building were agreed upon and in October, 1902, Kelley, Maus & Co. executed a contract binding themselves to take a nineteén-year lease of the premises when the building should be constructed. Thereupon appellant paid commisions to said real estate firm of Dunlap Smith & Co. apparently as agreed upon. The active representative of the real estate firm of Dunlap Smith & Co. was one Bauman, who conducted the negotiations with Kelley, Maus & Co. which resulted as above stated. It appears that he first approached Kelley, Maus & Co. on the subject in May, and again in August, 1901.
    In July, 1901, appellee Barney, a real estate broker, hearing that Kelley, Maus & Co. were in the market for a new location, called at their office, where he is said to have discussed their requirements and agreed to hunt up a location. With his associates, the other appellees herein, he began looking up such location. In August following he was returning from the west side of Chicago in company with Mans, the party having been engaged in looking over certain properties on the west side, when Mans stopped on the Lake street bridge and pointing to the dock strip said in substance that would be a good location for his company, that his firm had missed it in not getting that property before it passed into other hands. This suggestion was enough to put appellee Barney on inquiry, and he offered to investigate. He called on Butler, then the owner of the south half of the dock strip, which appellant afterward bought of Butler before the lease in controversy was executed. Barney called also on Rockwell King, then interested with appellant in the north half of said dock strip. Having seen Butler and King—the latter since deceased—appellee Barney offered to Kelley, Mans & Co. the entire dock strip for sale or ninety-nine year lease, the south half on the part of Butler and the north half on the part of King. His proposition to Kelley, Maus & Co. was embodied in a letter to them dated August 16, 1901, the material part of which is as follows:
    “In confirmation of verbal offering I write to say that I am authorized by Mr. Rockwell King, owner of the N. 3/2 of said property, consisting of lots 1, 2 and the N. % of 3, to sell you the same, together with improvements thereon, for $158,000 or to lease you the same for ninety-nine years at an annual rental of 4y2 per- cent, on a valuation of $160,000 and taxes.
    I am authorized by Mr. E. B. Butler, owner of the south half of said tract, consisting of the South half of Lot 3 and all of 4 and 5, to- sell you the same for $150,000 or to lease you the same for ninety-nine years at an annual rental of 4% per cent, on a valuation of $150,000 and taxes.
    In case you desire to purchase the property after having taken a ninety-nine year lease, both owners agree to give you the preferance of purchase over any other purchaser. ’ ’
    Shortly afterward, upon August 27, 1901, appellee Barney wrote to King as follows:
    “(Letterhead of Bruce B. Barney.)
    Chicago, August, 27, 1901.
    Mb. Bockwell King,

      39 N. State street.
    Deae Sib :—
    I beg to advise you that Kelley, Maus & Co. are favorably considering your proposition on the dock property Lots 1, 2 and the N. y2 of 3, which I submitted to them. I made them two propositions, namely, to sell the property for $158,000 or lease to them for ninety-nine years at an annual rental of 4% per cent, on a valuation of $160,000, and taxes.
    Kelley, Maus & Co. are in negotiations now seeking to dispose of their present building’, and will soon be ready to act upon your proposition.
    Tours truly,
    BbTJCE B. BABNEY.”
    To this letter no answer was returned. Subsequently appellee Barney submitted a number of pieces of property to Kelley, Maus & Co. for their consideration and he appears to have been engaged in continuous efforts to find something satisfactory to them. He states that he wore a path between his office and theirs. It appears that Barney never saw Bockwell King again about the matter and never had but the one interview with him. He never had any communication with appellant Morton concerning the property in controversy.
    The following correspondence between King and appellees was introduced in evidence:
    “January 25, 1902.
    Rockwell King, Esq.,
    39 North State street.
    Dear Sir:—
    By the reports of the press and other sources of information we learn that Kelley, Maus & Company are negotiating directly for a lease of yonr dock property, which was submitted to them by us with authority from yourself and Mr. Morton concurring. Should the deal be closed, we beg to remind you of the fact that Kelley, Maus & Company are our customers.
    Tours truly,
    Bruce B. Barney,
    Walter Mills
    of S. B. Mills & Co.”
    “January, 27, 1902.
    Dear Sir :—
    Replying to yours of January 25th, signed by yourself and others, I beg to say that when you have lived a few years longer, you will not be disturbed with regard to your commissions by reports of the press, as you seem to be to-day.
    If I remember correctly, I gave Mr. Barney a price at which he would sell certain property on the West side, which we own. If you have any further commission from me, I shall be pleased to be advised of it immediately.
    Tours truly,
    Rockwell King.”
    “February 1, 1902.
    Mr. Rockwell King,
    39 North State Street, City.
    Dear Sir :—
    We beg to acknowledge receipt of your favor of the 27th ult. In reply thereto allow us to call your attention to -the letter written by us to Messrs. Kelley, Maus & Company of date August 16, 1901, a copy of which is enclosed herein. We desire also to call your attention to our letter to you of August 27th, 1901, informing you of the fact that we had submitted the property in question to Kelley, Maus- & Company, either for purchase or lease. In view, therefore, of these negotiations and our understanding with you, we again wish to call your attention to the fact that Kelley, Maus & Co. are our customers.
    Tours truly,
    Bruce B. Barney,
    S. B. Mills & Co.”

      The jury returned a verdict in. favor of appellees awarding 2% per cent, upon the value of the land as stated in the contract with Kelley, Maus & Co. of October, 1902. Upon motion for a new trial the court was of the opinon that in no event could appellees be entitled to commissions on the south half of the dock strip which at the time Barney offered it to Kelley, Maus & Co. was owned by Butler, and judgment was entered for 2% per cent, on $158,000, the price for which appellee Barney offered to sell the north half of the dock strip in August, 1901. From this judgment the appeal is prosecuted.
    Runnells, Burry & Johnstone, for appellant; William Burry and F. B. Johnstone, of counsel.
    Charles C. Gilbert and William H. Barnum, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of appellant that appellees failed to prove their employment as brokers; that in any event the judgment is erroneous because based not on the value of the north half of the dock strip, but on the price for which appellee Barney offered it to Kelley, Maus & Co.; that appellees were not the procuring cause of the lease to Kelley, Maus & Co.; that said lease was made by appellant through his own real estate agents, Dunlap Smith & Co., and not through appellees or any of them, and that certain instructions were erroneous.

As to the first of these contentions, that appellees failed to prove any employment as brokers by appellant or by Boekwell King in his lifetime, the only evidence relating to such employment is, first the fact that appellee Barney called on King and that thereafter, August 16, 1901, he submitted to Kelley, Maus & Co. an offer which he stated he was authorized by King to make, viz., to sell to said Kelley, Mans & Co. the north half of the dock strip which appellant and King then owned, for $158,000, or to lease the same for ninety-nine years at a stated annual rental; second, the fact that Barney wrote King August 27, 1901, that he had submitted said propositions to Kelley, Mans & Co., to which letter no reply was made; third, that January 25, 1902, Barney wrote King that he learned Kelley, Mans & Co. were “negotiating direct for a lease of your dock property” and stating that Kelley, Mans & Co. were appellees’ customers; fourth, a letter from King to Barney in which King states that he gave Barney “a price at which we would sell certain property on the west side which we own” and added “If you have any further commission from me I shall be pleased to be advised of it immediately;” fifth, appellees’ reply to that letter in which he calls attention to his own letter of August 16,1901, to Kelley Mans & Co., a copy of which he enclosed, and to his letter of August 27, 1901, to King “informing you of the fact that we had submitted the property in question to Kelley, Mans, either for purchase or lease.” It is apparent, we think, that this evidence fails to present any actual proof that King ever employed appellees or either of them as his broker. He himself in liis lifetime denied over his own signature that he did more than to give “Mr. Barney a price at which we would sell,” and tells Barney that if he has “any further commission from me I shall be pleased to be advised of it immediately.” He made such denial as soon as he had any intimation that appellees were inclined to claim that he might owe them a commission. In Barney’s reply to King’s request he does not claim to have been employed by King. He merely encloses a copy of his own letter to Kelley, Mans & Co. and calls attention to his own letter to King of August 27, 1901, in which he states that he made two propositions to Kelley, Maus & Co which the latter were favorably considering. Barney’s own letters could furnish no evidence against King, and if they could do so they contain no suggestion that King had ever employed him in any capacity whatever. Nor does King’s letter furnish any such evidence. In Rees v. Spruance, 45 Ill. 308-311, it was said that where an owner told a broker he might have all he could get for the property over a certain stun, it did not amount to an employment of the services of the broker. The court says: “We cannot hold that a mere proposition of this sort made upon the street in reply to a question asked by a broker about the price of a certain property understood to be for sale, amounts to an employment of the broker so as to entitle him to commissions on whatever price the property might bring. The defendant, it is true, found a purchaser through information furnished by the broker and would seem to be under a moral obligation to give him a reasonable compensation for the services thus rendered; but as he had never employed him the obligation is of that imperfect character which the law cannot enforce.” In the case at bar not only is there no evidence of employment of appellees, no sufficient evidence of any moral obligation even, but the letter of King expressly repudiates any employment of Barney. There is no warrant for the claim that where a broker goes to an owner asking and receiving the price of apiece of property he thereby becomes the agent of the owner entitled to commissions, if the owner subsequently disposes of the property. Nor can a broker by letters of his own addressed to a possible purchaser or by writing an owner that he has offered the property to such proposed purchaser make a contract of employment for himself entitling bhn to commissions. It takes two to make a contract of that kind, and an owner is under no obligation to respond to every letter he may receive from a real estate broker whom he has not employed. King, so far as the evidence tends to show, would have been under no obligation to sell or lease the property to Kelley, Mans & Co. had they chosen to accept the proposition submitted to them by Barney in his letter of August 16, 1901. The lease finally consummated between appellant and Kelley, Maus & Co. was in no respect the proposition made by appellees nor like it. It was neither a sale nor a ninety-nine year lease of vacant property. The terms and the whole situation were entirely different. What was actually done by appellant was to lease for a term of nineteen years the land appellant owned when appellee Barney inquired the price, together with other land subsequently acquired, appellant having meanwhile erected at his own expense, a large building on such land. In this transaction appellees had no part and apparently do not claim to have had.

Appellant urges that appellees were not the procuring cause of the lease made with Kelley, Maus & Co., and, as above indicated, the contention is, we think, clearly sustained by the evidence. There is evidence tending to show that in May, 1901, appellant’s real estate agents, Dunlap Smith & Co., before appellee Barney called on Bockwell King, had spoken to Maus with reference to changing their location. In June, 1901, and again in August of the same year, the same agents appear to have offered the dock property to Kelley, Maus & Co. It was on the 16th of August, 1901, that appellee Barney wrote Kelley, Maus & Co., claiming to be authorized to sell or lease them the same property. It is undisputed, however, that the transaction as finally consummated was carried through by the same real estate brokers, Dunlap Smith & Co., originally employed by appellant and King in the purchase of part of the property leased, subsequently employed in the purchase of the rest of it and in the sale of some of the land originally purchased at the partition sale, employed in the entire course of negotiation with Kelley, Maus & Co., and employed in procuring the ordinance for a driveway which made the property available to Kelley, Maus & Co., and seems to have removed the last obstacle to the lease as finally agreed upon. It is said in Whitcomb v. Bacon, 170 Mass. 479, 482: “Where several brokers have each endeavored to bring about a sale which finally is consummated, it may happen that each has contributed something’ without which the result would not have been reached; one may have found the customer who otherwise would not have been found, and yet the customer may refuse to conclude the bargain through his agency; and another broker may succeed where the first has failed. In such a case, in the absence of any express contract, that one only is entitled to a commission who can show that his services were the really effective means of bringing about the sale; or * * * the predominating efficient cause.” As was said in Sibbald v. Bethlehem Co., 83 N. Y. 378, 383: “A broker is never entitled to commissions for unsuccessful efforts. ” It is not pretended in the case at bar that appellees made more than an unsuccessful effort to sell or lease a part of the property. In Wilson v. Mason, 158 Ill. 304, 309, the court says: "The duty of a broker who is employed to sell real estate is to find and produce to the vendor a purchaser who is ready, willing and able to complete the purchase proposed. This he must do before he is entitled to commissions;” and the purchaser must be “willing, ready and able to perform the contract according to the proposed terms.” It cannot be contended in the case at bar, in view of the evidence, that Kelley, Mans & Co. were ever willing to buy or lease the premises offered to them by appellees in August, 1901, according to the terms which appellee proposed. There is no evidence, so far as we discover, tending to show that the nineteen-year lease as finally consummated was made through the instrumentality of appellees, through means by them employed, or through information derived from them. It is evident that appellees themselves had in view an entirely different transaction from that ultimately effected with Kelley, Maus & Co. for which they are now claiming to be entitled to commissions. If we assume for the sake of the argument that appellees were authorized by King to make the proposition stated in their letter of August 16,1901, nevertheless, as said in Close v. Browne, 230 Ill. 228, 241, “it cannot be presumed that the parties intend that the contract shall apply to a transaction wholly different from the one which they have in view when they enter into the contract.” See, also, Vreeland v. Vetterlein, 33 N. J. Law, 247; Davis v. Cassette, 30 Ill. App. 41, 45; McGuire v. Carlson, 61 Ill. App. 295, 300.

It is singular if appellees or either of them regarded themselves as employed to represent appellant and King they should have failed to go to them afterward in such capacity and to make further efforts to consummate some kind of a deal between such alleged employers and Kelley, Mans & Co. They appear to have submitted a number of other pieces of property to Kelley, Mans & Co., but seem to have abandoned any effort to induce Kelley, Mans & Co. either to purchase or lease the property in question after the failure of the first and only effort made by Barney. It is clear, we think, from the uncontroverted evidence that appellees fail to prove any contract of employment by appellant or King, that the lease as finally entered into was not procured by or through their instrumentality, that if we could assume the existence of an express or implied contract of employment of appellees as brokers, they yet failed to effect either a sale or lease on the terms they proposed, and no such sale or lease has been effected since.

Other errors are assigned and argued in the briefs, but in view of the conclusions stated, we deem it unnecessary to consider them.

The judgment of the Circuit Court must be reversed, with a finding of facts.

Reversed, with finding of facts.


author: Mr. Justice Smith

text:
    City of Chicago v. The J. Burton Company.
    Gen. No. 13,785.
    1. Equity pleading—when allegations of Mil of complaint sufficient to sustain injunction. Held, that the allegations of threatened trespass contained in the bill of complaint in this case were positive and sufficiently certain upon general demurrer to sustain the injunction granted upon the bill.
    2. Steeets and alleys—ordinance with respect to private use of, construed. Held, that the ordinance in question in this opinion clearly contemplated the right of the city to permit the private use of space under a public alley.
    3. Injunction—when lies to restrain interference with use of alley. An injunction lies to restrain a city from interfering with the use by’a private party of space beneath a public alley where the right to use such space has been lawfully obtained.
    Bill in equity. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 20, 1908.
    Edwin H. Cassels, William D. Barge and George W Miller, for plaintiff in error; Edward J. Brundage, of counsel.
    Fred A. Bangs, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The J. Burton Company, defendant in error, filed its bill in equity in the Circuit Court against the city of Chicago and others to enjoin the defendants therein from interfering with the work of excavating, for and building a vault under an alley in the city of Chicago. The bill was dismissed as to the other defendants. The city filed a general demurrer to the bill, and on arguments of counsel the demurrer was overruled. Thereupon counsel for the city of Chicago in open court stated that the city would stand and abide by its demurrer. The Circuit Court thereupon took said bill of complaint as confessed and entered a decree enjoining the city as prayed in the bill. This writ of error is prosecuted to reverse the decree.

The bill represents that The J. Burton Company is a corporation duly organized under the laws of Illinois; that its principal office and place of business is at Nos. 673, 675 and 677 South Centre avenue, Chicago; that it there conducts and carries on a business of manufacturing and selling cotton felt and mattress bats; that it is the owner in fee simple of the premises occupied by it in conducting said business, described as follows, to wit: Lots twenty-one (21), twenty-two (22) and twenty-three (23) in Stewart’s subdivision of block nine (9) in Johnson & Lee’s subdivision of the southwest quarter of section twenty (20) township thirty-nine (39) north, range fourteen (14) east of the third principal meridian, in the said city of Chicago, in the rear of which premises is a public alley, over and upon which said city has jurisdiction and control.

That on or about the fifth day. of February, 1906, the city council of said city duly passed, and the mayor of said city duly signed and the same thereupon became an ordinance or law of said city, an ordinance which is now and from thence hitherto has been in full force and effect, and is in words and figures following, to wit:

“An ordinance concerning the use of Streets and Alleys and the space under sidewalks by private persons.

“Be it Ordained by the City Council of the City of 'Chicago:

“Section 1. No person shall use any space underJaeatli the surface of any street or other public ground fin this city, or construct or maintain any structure thereunder without first obtaining a permit so to do from the Commissioner of Public Works of the city. No such permit shall be issued except as hereinafter provided, and no such permit shall be transferred or assigned, nor shall any right or privilege thereunder he transferred or assigned without the written consent of the Commissioner of Public Works.

“Sec. 2. Applications for such permits shall be in writing, stating specifically the space desired, its length, breadth and depth, the use intended to be made thereof, and the structure to be built therein. No permit shall be issued hereunder for the use of any space under the surface of the roadway of any street or other public ground.

“'Sec. 3. Every applicant for such permit shall file with his application his bond in the penal sum of ten thousand dollars, with surety or sureties, to be approved by said Commissioner of Public Works; and such bonds' shall be conditioned that the person to whom siicli permit shall be issued, his heirs, successors and assigns, will save and keep the city free and harmless from any and all loss or damage or claim of damage arising from or out of the use of the space or structure therein mentioned, and for the maintenance of the street, alley or other public way, or the sidewalk over such space, as the case may be, in such condition that said street, alley or public way or the sidewalk shall at all times, after such structure is completed, or such space is covered, be safe for public use, and for the full and complete protection of the city against any and all litigation growing out of the granting of such permit, and for the prompt and full payment of the compensation hereunder required during his ownership of said property so long as said permit shall be outstanding, and for the faithful performance and observance of all the terms and conditions of this ordinance.

“Sec. 4. When the space so used does not extend more than fifteen feet below the surface of the street, alley, way or ground over the same, the person, firm or corporation making, using or maintaining any such structure, or using space underneath the surface of any street, alley, public way or public ground, shall render to the city, as the annual compensation for such use, whenever the adjoining property is subject to general taxation, a sum equal to 4 per cent, of the amount, and provides how this shall be determined.

“Sec. 5. No person shall ever use the space under any such sidewalk in such manner as to interfere with any sewer or water pipe, or any other work lawfully in said street, alley or public way, unless by the consent of the said Commissioner of Public Works, especially granted therefor, and no such permit shall ever be granted until the applicant therefor has paid to said Commissioner of Public Works a sum of money sufficient in his judgment to defray the cost and expense of renewing or rebuilding or relaying such sewer or water pipe or public work and making the necessary connections therewith.

‘ ‘ See. 6. If any person now using any space underneath any street, public alley, sidewalk or public way shall fail to take out a permit for such use as herein provided within ninety (90) days after this ordinance is in effect, then the Commissioner of Public Works shall proceed to remove every such structure and close the space therein.

“Sec. 7. Every person using the space under any sidewalk in this city shall at all times keep such sidewalk clear and free from all snow, ice, dirt, filth or other obstructions or incumbrances.

“Sec. 8. Whenever the Commissioner of Public Works shall be of the opinion that the sureties on any bond given for any permit issued thereunder have become insufficient a new bond for such permit shall thereupon be filed with sureties to be approved by the Commissioner of Public Works.

“Sec. 9. If any person obtaining a permit hereunder shall at any time fail or neglect to comply with the terms of this ordinance, then such permit may be revoked by said Commissioner of Public Works.

“Sec. 10. Every person convicted of a violation of this ordinance shall be fined not less than five nor more than twenty-five dollars for each offense.

“Sec. 11. Nothing in this ordinance contained shall be held or construed to apply to any person now using any such space underneath the surface of any street or other public ground according to the terms of any ordinance heretofore passed which requires the payment of compensation for such use if such person is making such payments, nor so long as such payments are made according to the terms of such ordinances. Nothing in this ordinance contained shall preclude the city from revoking any permit issued hereunder when the space described in such permit is needed for public use.

“Sec. 12. The Sections 2096, 2098, 2099, 2102 and 2103 of the Revised Municipal Code of Chicago, 1905, be and the same are hereby repealed.

“Sec. 13. This ordinance shall be in full force and effect from and after its passage and due publication. ’ ’

Orator represents that being desirous of constructing a building upon a portion of the real estate above designated to be used to transact the business of your orator in and upon and in connection therewith, and being desirous of using the space underneath said alley, applied to said city and obtained from said city a contract for the use thereof, in words and figures following, to-wit:

“Permit for Vault Under Sidewalk.

“Department of Public Works,

“Chicago, April 12th, 1906.

“In pursuance of the ordinances of the City of Chicago, permission is hereby granted by the Commissioner of Public Works of the City of Chicago to The J. Burton Company to excavate for, construct and maintain a vault underneath the surface of the alley in the street abutting upon the premises Imown as 673, 675 and 677 South Centre avenue, said vault to be not more than 72 1/6 feet in length, nor more than 16 feet in width, nor more than 15 feet in depth below the grade of the street there, said vault to be used in connection with any building erected or to be. erected on lot 21, 22 and 23, Stewart’s Sub. of Block 9 in Johnson & Lees Sub. S. W. % Sec. 20, 39-14.

“This permit is given upon express condition that said vault shall be constructed of the best brick and stone masonry, with a covering of incumbustible material, the same to be supported by iron girders and either iron or brick columns or brick arches; the same to be done in a manner and time required by the Commissioner of Public Works and in accordance with the plans prepared for said work and approved by said Commissioner.

“It is a further condition that said The J. Burton Company, his agents, executors, administrators and assigns, shall keep and maintain said vault and the space occupied by the same, and the approaches thereto, in good and thorough repairs at all time during the life of this permit, without special notice so to do from the said Commissioner, or any other City officers. The construction, maintenance and repair of said vault shall at all times be at the expense of said The J. Burton Company and without cost to the City. He shall at all times, at his own expense, keep the roadway over said vault in good repair and free from snow, ice and dirt.

“Should the Commissioner of Public Works, for any legal cause, revoke this permit, the said The J. Burton Company, his agents, executors or assigns, shall immediately upon receiving notice of such revocation, vacate said vault and place the same in such condition, by filling, paving or otherwise, as shall be ordered by the said Commissioner.

"Should said The J. Burton Company, or his agents, executors or assigns, fail or neglect to carry out such orders in the time and manner required in such notice, then said Commissioner shall cause the same to be done at the expense of said The J. Burton Company, and any and all expenses incurred or damages paid by the City of Chicago on account thereof shall be borne by the said The J. Burton Company and paid to said City upon demand.

“In construction, maintenance and use of said vault there shall be, at no time, any interference with or damage or obstruction to water pipes, sewers or gas pipes, or any other underground work which is located or which may hereafter be located by said City or authorized by said City in or about said vault, and all persons owning any such underground work or thing for the purpose of doing all necessary work or repair to such underground work or thing.

“The said vault shall not be used at any time for storing or using, in any manner, any combustible material or any machinery or device of a character hazardous or dangerous to life or property.

“In consideration of the issuing of this permit the said The J. Burton Company shall pay to the City Collector of the City of Chicago a compensation of the rate of Ten and no/100 dollars ($10.00) per year, the first payment to be made as of the date of this permit, and subsequent payments to be made semiannuahy on the first of May and November of each year.

“This permit is issued in pursuance of a bond executed by said The J, Burton Company of even date herewith on file in the office of the Commissioner of Public Works, and is subject to all its conditions and the further conditions and restrictions of the ordinances and orders of the City Council which have passed or shall hereafter pass, and also the orders, rules and regulations of the Department of Public Works.

"This permit may be revoked by the Commissioner of Public Works at any time when the said The J. Burton Company or his heirs or assigns shall have failed to comply with the conditions of this permit or with the ordinances of said City. This permit is good for ten (10) years from date.

“Wm. L. O’Connell, City,

“Commissioner of Public "Works.

“The conditions of this permit are hereby accepted and I agree to all the terms and conditions of the same.”

And thereupon paid to said city the sum of five dollars as provided by the ordinance and by said contract as compensation from the first day of May, 1906, to the thirty-first of October, 1906, and entered into as principal, with sureties, with said city, pursuant to said contract, a bond in words and figures following, which said bond was duly accepted and approved by said city in full compliance with the terms and conditions of said contract requiring said bond, to-wit:

“Bond bob 'Space Undebneath Sidewalk.

“Know all Men by These Pbesentss

"That we, The J. Burton Company as principal, and O. M. Burton, and Charles F„ Pearce, and Peter Sellan, as sureties, are held and firmly bound unto the City of Chicago in the penal sum of ten thousand ($10,000) dollars, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents.

“Witness our hands and seals this 12th day of April, A. D. 1906.

“The condition of the foregoing obligation is such that whereas the said The J. Burton Company has obtained from the City of Chicago a permit authorizing him to construct, maintain and use a vault underneath the alley in rear in South Centre Avenue, abutting upon the building known as 673, 675 and 677 South, Centre Avenue. Now if the said The J. Burton Company shall well and truly pay or cause to be paid to said City of Chicago the compensation required by said permit for the use or occupation of said vault, and shall indemnify, save and keep harmless said City from any and all loss, cost, damage, expense or liability of any kind, whatsoever, which the said City may suffer or be put to, or which may accrue against, be charged to, or be recovered from said City by reason of or on account of the use or occupation of such vault, or from or by reason of any act or thing done by said The J. Burton Company in or about or by the use or occupation of said vault, and shall keep the sidewalk over such vault in such condition and repair that it will be safe for use by the public, and in a manner satisfactory to and approved by the Commissioner of Public Works of said City, and shall at all times comply with the ordinances of said City regulating the use of space underneath sidewalks in the streets of said City; then and in that case this obligation shall be null and void; otherwise to be and remain in full force and effect.”

That said alleyway runs north and south by and abutting upon the premises of your orator; that your orator’s premises are on the east side thereof, and that on the west side of said alley and abutting thereon is certain property and certain buildings owned respectively by Frank Kupka, F. Bocek and J. Peklo.

That it has now in process of construction a building upon said property, and has commenced to excavate in accordance with said contract, and that said Kupka, Bocek and Peklo have complained to one of the aldermen of said city, and requested that said alderman see to it that the said city stop and prevent your orator from proceeding with said excavation and such work, and prevent your orator from using said space described in said contract; and that said Kupka, Bocek and Peklo have and are now endeavoring to secure the co-operation of said city in and about preventing and deterring your orator from doing such work, and that said Kupka, Bocek and Peklo have threatened by force, if necessary, to prevent your orator from doing such work and using such space in accordance with the terms of said contract; and your orator believes that unless prevented from so doing said Kupka, Bocek and Peklo will stop such work and prevent your orator from doing such work, and from occupying such space, and influence the said authorities of the said city to prevent your orator from doing such work and occupying said space under the terms of said contract.

That since the execution of said contract, it has caused plans to be prepared looking to the construction of said building and occupancy of said space underneath said alleyway in connection with said building, at a great expense, and has in the course of the construction of such building erected a boiler room and boiler in such position, and in such place, that if your orator is unable to occupy and have such space underneath such alley, your orator will be obliged to move and change the said room and boiler and other portions of said building at a great expense, to-wit: more than twenty-five hundred dollars ($2,500), and that your orator has let all of its contracts for the construction, having in contemplation the space underneath said alleyway, and in consequence thereof all the building material necessary for the construction in such manner has been ordered, including the iron and steel, at an expense of about twelve hundred dollars ($1,200).

That it is willing to and will protect the buildings of said Kupka, Bocek and Peklo, from any and all injury by reason of said excavation.

That upon information and belief said Kupka, Bocek and Peklo have at divers times endeavored to intimidate the workmen employed by your orator on said excavation and about said work, threatening them with violence and with bodily injury if they proceeded with the work of excavating and of building in and under said alley, and that said city, in consequence of the activity of said Kupka, Bocek and Peklo, has threatened to and has taken some steps towards stopping the work of your orator in and under said alley under the terms of said contract; but said city recognizes and states that the said contract of your orator is in full force and effect.

That it is afraid that unless said city, said Kupka, Bocek and Peklo are enjoined by this Honorable Court from carrying out their threats and from interfering with the said work, and from permitting your orator to occupy the said space under and by virtue of the terms of said contract with said city, and that if said injunction is not granted as hereinafter prayed for, they, the said defendants, said city, Kupka, Bocek and Peklo, will carry out their said threats and prevent your orator from so doing such work, occupying such space and having the benefit of said contract.

Your orator further represents that it has in all respects fully and completely complied with all the terms and conditions of said contract on its part to be complied with.

Forasmuch, therefore, as your orator is without remedy in the premises except in a court of equity, and to the end that said city, Kupka, Bocek and Peklo, who are made parties defendant to this bill, may be required to make answer thereto, but not under oath (their and each of their respective answers under oath being hereby expressly waived) and that they, and each of them, be enjoined from in any manner interfering with or preventing, either by threats or actions, your orator from excavating in said alley, and constructing therein a vault or room, or from using and occupying the said space underneath said alley, as contemplated under and by the terms of said contract, and the said city of Chicago from in an manner revoking, or attempting to revoke, the said contract, and that your orator may have such other and further relief in the premises as to equity may seem meet.

Prayer for injunction against the city, Kupka, Bocek and Peklo, restraining them, and each of them, their and each of their attorneys and agents, from in any manner interfering with or preventing, either by threats or actions, your orator from excavating in said alley, as contemplated under and by the terms of said contract, and said city from in any manner revoking, or attempting to revoke, the said contract until the further order of this court.

It is urged that the only allegations of the bill of complaint in which the defendant in error attempts to show its right to an injunction against the city of Chicago is indefinite and uncertain, and is merely upon information and belief, and that this is entirely insufficient as a basis for the relief prayed.

We think upon general demurrer the allegation of the bill must be regarded as sufficient. The averment is a statement of fact, together with a statement of the sources of information from which a knowledge of the fact is derived, so that the demurrer admits not only that the complainant has been so informed and believes, but that it. admits the fact directly charged that the “city, in consequence of the activity of said Kupka, Bocek and Peklo, has threatened to and has taken some steps toward stopping the work of your orator in and under said alley under the terms of said contract.” Coryell v. Klehm, 157 Ill. 462. As said in that case, where a trust was averred upon information and belief, at page 476 of the opinion: “We are inclined to limit, rather than either • extend or strictly adhere to, the technical rules of pleading, and especially so in the absence of a special demurrer. If answer had been filed to the bill and issues formed, there can be no question but that complainant might properly have introduced in evidence, under the frame of her bill, a written acknowledgment of trust signed by Bucher prior to his bankruptcy.”

In Campbell et al. v. The Paris & D. R. R. Co. et al., 71 Ill. 611, the bill was for an injunction to restrain the supervisor of a township from issuing and the railroad company from receiving bonds of the town. The bill averred “on information and belief that said company will soon demand of the supervisor * * * the bonds * * * and that there is danger, unless said supervisor is enjoined from issuing said bonds, and the said company is restrained from receiving the same, that said bonds will be issued and registered.” In response to the argument of counsel that the bill was defective because the allegation that the railroad company intended to demand and the supervisor intended to issue the bonds was made on information and belief, the court said, quoting from Storey on Equity Pleadings, the claims of a defendant may be stated in general terms, “and if matter essential to the determination of the claims of the plaintiff is charged to rest in the knowledge of the defendant, or must, of necessity, be within the knowledge of the defendant, and is consequently a part of the discovery sought by the bill, a precise allegation thereof is not required.” The court held that the averment clearly entitled the complainants to an answer.

The allegation of the bill is positive, we think, that the city of Chicago has' threatened to and has taken steps towards stopping the work of complainant in and under said alley being done under the terms of the contract. This presents sufficient grounds for relief by injunction, if the facts otherwise set out in the bill make an appropriate case for relief in equity. City of Joliet v. Werner, 166 Ill. 34, 41.

As to whether or not the city had taken any steps toward stopping the work of the defendant in error, it was for the city to answer, inasmuch as the knowledge of such steps necessarily rested with it.

The principal question presented by the record is. as to the construction of the ordinance set out in the bill, and particularly the last sentence in the second section of the ordinance, which reads as follows: “No permit shall be issued hereunder for the use of any space under the surface of the roadway of any street or other public ground.”

It is conceded in argument by counsel for plaintiff in error that the city, in granting the permit and accepting the bond set out in the bill, acted in its private corporate capacity, and not in its public and political' or governmental capacity. Gregsten et al. v. City of Chicago, 145 Ill. 451.

It is contended on behalf of the city that the above quoted provision of section two of the ordinance is an express limitation upon the authority of the Commissioner of Public Works to issue a permit for the use of space under the surface of any street or roadway, and that an alley being a public ground and roadway falls within the inhibition of the express terms of the provision. No question is made as to the power of the city under its charter to pass the ordinance.

An ordinance passed by a city council, within the legislative power conferred by the charter, has the same force and effect within the corporate limits as a law passed by the legislature. Hope v. City of Alton, 214 Ill. 102. The rules for the construction of ordinances are the same as those for the construction of statutes. 21 Am. & Eng. Enc. of Law, p. 996 (2nd ed.). And the meaning of a statute must be sought in the words used. ‘ ‘ Courts have no right to suppose that the legislature intended anything different from their natural import. When a statute needs construction, every part of it must be considered, so that the whole may harmonize; for it is never to be presumed that the legislature intended any portion to be without meaning.” Way v. Way, 64 Ill. 406.

Another general rule applicable to the construction of statutes is stated as follows by Endlich on the Interpretation of Statutes, sec. 405, quoted in Weber v. City of Chicago, 148 Ill. 313: “When the general word follows particular and specific words of the same nature as itself, it takes its meaning from them, and is presumed to be restricted to the same genus as those words; or in other words, as comprehending only things of the same kind as those designated by them; unless of course, there be something to show that a wider sense was intended.” This rule is stated In the Matter of Swigert, 119 Ill. 83, at page 88, as follows: “It is a well settled doctrine that in construing statutes, particularly those requiring a strict construction, as in the case here, a general description, like the one in question, following a specific enumeration of objects or things, will be held to include only such things or objects as are of the same kind as those specifically enumerated.”

Applying these rules of construction to the ordinance in question, it appears to be a general ordinance regulating the use of space underneath the surface of streets and alleys by private parties. It requires all persons to obtain a permit from the Commissioner of Public Works of the city before using such space and prescribes the manner and the conditions upon which the permit shall be issued. The ordinance clearly contemplates and provides for the use of space under streets and alleys in the city by private persons within the terms and conditions of the ordinance.

Giving proper and due effect to each and all the words and provisions of the ordinance, according to their common and ordinary use and meaning, it appears clearly, we think, that the words street, alley, and public ground, as used in the ordinance, are not synonymous, and do not mean the same thing. We think they are used advisedly. When the word street is used it does not mean alley, and when the word alley is used it means alley and not a street. And so, in the last sentence of section two of the ordinance, the term roadway of any street does not mean or include roadway of an alley. In other words, the inhibition as to permits made in that section applies to the use of space under the surface of the roadway of any street, and does not apply to the use of space under an alley. The clause “other public ground,” following the word street, cannot be interpreted under the rule of ejusdem' generis to include alleys; and we do not think, considering the whole ordinance, that the city council intended to include alleys in the prohibition under consideration. Our conclusion, therefore, is that the permit was authorized by the ordinance and that the commissioner of public works of the city of Chicago acted within his powers conferred by the ordinance in issuing the permit and taking the bond set out in the bill.

It necessarily follows that the permit construed in connection with the bond in so far as those documents relate to matters not affecting the public use of the alley constitutes a contract between the city and the Burton Company mutually binding upon the parties. The city, in granting the permit and accepting the bond and the compensation provided for in the ordinance, acted in its private capacity, as contra distinguished from its governmental capacity, and is bound by its contract. Gregston v. City of Chicago, supra.

From the allegations of the bill it appears that the city is endeavoring to deprive the defendant in error of its rights under its contract, and that a case of appropriate equitable relief is presented.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    American Rolling Mill Corporation v. Cyrus Knox.
    Gen. No. 13,824.
    1. Master and servant—what failure to furnish safe place to work. It is negligence for a master to change the condition of the floor of an engine room in which the servant is working hy removing some of the planks across a pit contained therein without warning such servant of the change.
    2. Master and servant—what not an assumed risk. A servant does not assume the peril which arises from the uncovering by the master, without warning to him, of a pit contained in an engine room in which he is working.
    3. Instructions—when may ignore doctrine of assumed risk. An instruction may with propriety ignore the doctrine of assumed risk where that question does not arise in the case.
    Freeman, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Rehearing denied March 20, 1908, and opinion modified and refiled.
    Statememt Tby the Court. Cyrus Knox, appellee, recovered a judgment in the Circuit Court against appellant for $2,700 damages for personal injuries.
    Knox was night foreman for appellant, having charge of anything in appellant’s plant, consisting of a muck mill, an open hearth steel plant, two finishing mills and a gas house, all under one roof. He had been in the employ of appellant in that capacity for about six weeks before the accident in which he was injured. He went to work through the working days of the week at about six o’clock in the evening, and on Sundays at any time between eight and ten o’clock in the evening. The plant ran day and night. With the exception of the steel plant, the whole plant was shut down Saturday nights. Appellee left the plant between six and seven o’clock Saturday mornings and did not go back to it until Sunday nights, and had no knowledge of what was going on in the plant in those intervals except as he was notified. On the Sunday night when he was injured, July 28, 1902, he went to werk about eight o’clock in the evening. He had two or three nien at work helping him to clean up and get things in readiness to start up the plant on Monday morning. About twelve o’clock the men went to lunch, and after they returned from lunch they were to go over to what was called the nine-inch mill and couple it up ready for the Monday morning.
    The evidence tends to show that the furnace room and the engine room were separated by a wall about three feet high. They were in the center of the building. The engine room was between the furnace room and the nine-inch mill. The floor of the engine room was lower than the floor of the furnace room, and two or three steps led down to the engine room from the furnace room, nearly in front of two engines located there. In the engine room is a long pit in which ran a large fly-wheel and a large pulley wheel. The axles of these wheels were a little above the floor. A belt ran over the large pulley wheel and came back over a small pulley wheel. Between the rim of the fly-wheel and the small pulley wheel there was a distance of about twenty feet; there was a space of seven or eight feet in height from the level of the floor up to the belt. The pit at this point was usually covered over with twenty or more planks to enable persons to walk across it under the belt. These planks were loose planks and never taken up except for the purpose of repairing the wheels or for babbitting, which could only be done when the engine was not running.
    Three of the planks across the pit were removed between Saturday morning, when appellee left the plant, and Sunday evening, when he returned, according to the testimony for appellee, and without his knowledge. According to the testimony for appellant, the mills had been shut down and the planks had been removed two or three days before the night in question.
    After appellee told the men to get their lunch, he sat down for a time near the furnaces where it was warm, and then started to go to the nine-inch mill, where his men were working. He went down the steps into the engine room and went in a north-westerly direction in order to cross the pit on the planks, and stepped into the pit where the planks had been removed, and was injured.
    The evidence tends to show that the place was in a semi-dark condition, there being some light from the furnace room, and a light from a torch at the nine-inch mill, twenty or twenty-five feet away, and from a torch still nearer.
    F. J. Gantt, J. C. M. Clow, and E. E. Gray, for appellant ; H. E. Long, of counsel.
    Darrow, Masters & Wilson, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The two principal questions of fact presented are as to the negligence of appellant and of appellee. In our opinion, the evidence shows negligence on the part of appellant. To change the condition of the floor by removing some of the planks across the pit without warning appellee of such change may reasonably be considered negligence, and the evidence shown by the record warranted the jury, we think, in finding appellant guilty of negligence. The planks were removed in the daytime, in the absence of appellee from the plant. Appellee, as night foreman of the whole plant, might reasonably be expected to pass over these planks in going from one part of the plant to another. He was foreman of all the men and had charge of the mill nights. As Tanner, called by appellee, says in his testimony: ‘ ‘ Knox was foreman over the rolling mills. He was not confined to any particular part of the building, but was here and there. ’ ’ He went on duty after it was dark. He had been employed at the plant about six weeks, and the planks across the pit had never been removed during that time. He had frequently passed over this point in the night time under similar conditions and had been lulled into a sense of safety and security in passing along this usual and customary route. He had a right to presume that appellant would let him know in some way if any unusual dangers or increased hazards had been created in the plant in his absence. It was the duty of appellant in the exercise of ordinary care for the safety of its employe, to warn him of any changes which increased the peril or danger of his employment, and of which he could not reasonably be presumed to be aware from the time and nature of his employment, so that he might guard himself against the new hazard. The evidence in the record amply justifies the conclusion that no warning was given, and, in our opinion, it warrants the finding that appellant was negligent. Iroquois Furnace Co. v. McCrea, 191 Ill. 340, affirming 91 Ill. App. 337; National Syrup Co. v. Carlson, 155 Ill. 210; Deering v. Barzak, 227 Ill. 71.

We come now to the consideration of the negligence of appellee contributing to the injury. It is urged on behalf of appellant that if the place was so dark that appellee could not see the hole into which he fell, he was negligent in attempting to go through the mill in its then dark condition without carrying a torch, when he knew that repairs were liable to be made between the time he left the mill on Saturday morning and the time of his return Sunday night. We are not prepared to hold, however, that the facts that it was dark and his knowledge that repairs were usually made on Saturdays and Sundays constituted negligence on his part. That was a question for the jury to determine upon a consideration of all the facts and circumstances in evidence. So, also, it was a question for the jury, upon the evidence, whether this hole of about three feet by four feet was at that time clearly- open and obvious to the sight, and that appellee knew it was there; and either to harmonize the conflicting testimony of McG-ruther and Knox upon the latter’s knowledge of the existence of the hole, or to determine which witness told the truth. We cannot hold that the verdict of the jury finding in effect that appellee was free from negligence is against the manifest weight of the evidence.

The court gave, at the request of appellee, the following instruction:

“In this case, if you believe from a preponderance of the evidence that the defendant was guilty of the negligence charged in the declaration and that such negligence, if any, was the proximate cause of the plaintiff’s injuries, if any, then you may find the defendant guilty, provided you further believe from a preponderance of the evidence that the plaintiff at the the time of the injury was in the exercise of reasonable care for his own safety.”

The principal objection urged to this instruction is that it eliminates from the case and takes from the jury the question of assumed risk.

In our opinion there is no question of assumed risk in this case. The true rule is stated in McCormick H. M. Co. v. Zakzewski, 220 Ill. 522, as follows: “The servant assumes, not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent, and if he voluntarily enters into or continues in the service, knowing, or having the means of knowing, its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting from such dangers. Browne v. Siegel, Cooper & Co., 191 Ill. 226; Cichowicz v. International Packing Co., 206 id. 346.” It is obvious from the evidence that the uncovered pit in the condition in which it was on the night of the accident, was not one of the ordinary risks of appellee’s employment. The planks across the pit had never been removed during the six weeks of his employment by appellant. Nor was the removal of the planks, leaving the pit uncovered, obvious and apparent to appellee; for, according to the averments of both counts in the declaration and the undisputed evidence in the record, appellee was unaware of and could not have known, in the exercise of all due care for his own safety, of the removal of the planks which constituted the usual pathway over the pit. By the removal of the planks appellant created a new danger, unknown to appellee, the risk of which appellee did not assume.

We do not think there are reversible errors in the other instructions given at the request of appellee.

On the direct examination appellee was asked several questions, and testified as to his former occupation, that of puddler, and the wages he received and which were paid generally to puddlers. This testimony was objected to by appellant. We think the evidence was competent, and the court did not err in admitting it.

The amount of the verdict is not large, in view of all the evidence, and we cannot say it is excessive. The judgment is affirmed.

Affirmed.

Mr. Justice Fbeemah dissenting.