text:
    William L. Campbell et al. v. C. L. Timmerman et al.
    Gen. No. 13,761.
    1. Practice—what controls where recitals of cleric and order of court are in conflict. An order of court controls the clerks’ recitals where the two are in conflict.
    2. Amendments and jeofails—when action of court in permitting amendment cannot he complained of. The action of the court in striking ail amendment from the files, upon the ground that the same was not made in apt time, cannot be complained of where, instead of asking leave to re-file such amendment, complaining counsel elected to stand hy the pleading previously sought to be amended.
    3. Pleading—lohat not admitted hy demurrer. A demurrer does not admit the conclusions of the pleader; it only admits facts properly pleaded.
    4. Pleading—how hill of complaint should he construed. A bill of complaint tested by demurrer should he construed most strongly against the pleader.
    5. Lease—when assignment of, deemed oral. In the absence of averment as to whether or not a lease was oral or in writing, the court, construing the hill most strongly against the pleader, will hold that such lease was oral—the question at issue being whether relief will be barred by the application of the Statute of Frauds.
    6. Statute of frauds—when option for renewal of lease within. Held, that an option for the renewal of a lease was within the Statute of Frauds.
    7. Specific performance—when not aioarded of lease. Held, that under the averments of the bill of complaint in this cause, that specific performance would not be awarded to compel the granting of an alleged option to renew a lease.
    Bill in equity. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.

      Frahic M. Burwasii, for appellants.
    Cliti-iero & Bell, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

Appellants filed their bill of complaint in the Superior Court alleging that on September 1, 1901, one Nelson was the owner of a certain building on the southeast corner of Sixtieth street and Washington avenue in the city of Chicago and that there was a certain store-room on the ground floor in the northwest corner of said building. That, on, to-wit, the same date said Uelson entered into a written lease with one Bancroft of the city of Chicago, whereby said store room was leased to said Bancroft, to be occupied as a drug store for-a term of five years, beginning on the first day of May, 1902, and expiring on the 30th day of April, 1901, for a rental of $3,600, payable in equal monthly installments of $60 each on or before the 15th day of each and every month during said term. Said lease contained a further provision giving unto said Bancroft the right to renew the same at his option, there being no provision as to when he should make his election to renew, or when or how he should give notice to said Melson or his successors in interest as to his election.

That the term and provisions of said lease, including the option to renew, became and were binding on the heirs, executors, administrators and assigns of the respective parties to said lease.

That said Bancroft entered in possession of said store room under the terms of said lease and continued in exclusive possession thereof and conducted a drug store until, to-wit, July 1, 1903, when he sold said drug’ store to complainants, and assigned to them the said lease, which assignment was consented to in writing by said Nelson, and thereupon complainants entered into possession of said store room and have ever since continued in continuous and exclusive possession thereof, and have conducted therein a drug store.

That about two years ago said Nelson sold and conveyed said building, including said store room, unto one C. L. Timmerman, a resident of the city of Mandam in the State of South Dakota, and thereafterwards complainants paid unto Messrs. William H. Brown & Brittain, agents for said Timmerman, the monthly rentals provided in said lease.

That during the summer and fall of the year 1906, and in January, 1907, both orally and in writing, complainants notified said Timmerman and his said agents that complainants had elected to renew said lease; that during- the latter part of January, 1907, complainants learned that said William H. Brown & Brittain, purporting to act on behalf of said Timmerman, had executed a lease of said store room unto C. H. Richardson and L. E. Brainerd, both of the city of Chicago, for a term of three years at a monthly rental of $100.

That said Richardson and Brainerd claim to be entitled to exclusive possession of said store room, by virtue of said lease between them and said Timmerman, and threaten to take forcible possession of the same and have instituted in the Municipal Court of Chicago in the First District, a forcible entry and detainer suit against the complainants for the recovery of said premises.

That the drug store conducted by complainants on said premises is worth as a going concern at least ten thousand dollars and pays dividends of upwards of 10 per cent annually on that amount. That the fixtures and stock on hand will be worth not to exceed five thousand dollars if the complainants are not continued in possession of said drug store, and that unless the complainants are allowed to continue in possession of said store room, they 'will suffer damages to the extent of at least five thousand dollars.

That during the occupancy by complainants of said drug store, there has not been any criticism of them by said Timmerman or his agents, nor any dispute or conflict of interest. That complainants are abundantly able and are willing to pay the rent of said store during the next five years, and it is not and has not been complained on behalf of said Timmerman that complainants are not able so to do. For is it claimed, nor has it been claimed that complainants are not in every way acceptable and desirable tenants for said store room.

Forasmuch, therefore, as complainants are without remedy in the premises, except in a court of equity, complainants pray that said Timmerman, Richardson and Brainerd, who are made parties defendant to the bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being waived; that the court may decree that said Richardson and Brainerd had notice of complainants’ right to renew said lease, and that the lease claimed to have been executed between said Timmerman and said Richardson and Brainerd be decreed to be null and of no effect; and that it be decreed that said Richardson and Brainerd have no right to the possession of said premises; and that the said Timmerman be decreed specifically to perform and carry into execution the terms of the aforementioned lease and that he may be decreed to execute unto complainants another lease for the said store room, to be occupied by the complainants as a drug store for a term of five years, beginning May 1, 1907, and ending April 30, 1912, as a rental of $3,600, payable in equal monthly installments of $60 each on or before the 15th day of each month, and providing further that upon the failure of complainants to piay any installment of rent when due, and upon failure to surrender the premises unto said Tim-merman, his grantee or successor in interest at the expiration of said term, then that said Timmerman or his grantee or successor in interest .shall have a right to re-enter upon said premises, and take exclusive possession thereof, and complainants offer to enter into such a lease with said Tim-merman; that the rents of said building be sequestered by the court and a receiver be appointed to collect the same until Timmerman complies rvith the decree of the court; and that a preliminary injunction, enjoining* and restraining said Timmerman, his agents and attorneys, from in any manner interfering* with the possession by complainants of said drug store, that a preliminary injunction enjoining and restraining Richardson and Brainard, their agents and attorneys, from in any manner interfering with the possession hy complainants of said drug store and from prosecuting their said forcible entry and detainer suit pending in the First District of the Municipal Court of Chicago against complainants, be issued and that on final hearing such preliminary injunction be made perpetual; and that complainants may have such other and further relief in the premises as equity may require and to the court shall seem meet. Prayer for summons.

The bill is signed by complainants and by their solicitors.

An affidavit to said bill by David A. Kennedy, one of the complainants, that he has read the bill and knows its contents, and that the same and the allegations therein are true in substance and in fact; that the defendants, Richardson and Brainerd, have made threats that they will take forcible possession of the store room aforesaid, and remove the goods of the complainants to the street; that if they do take forcible possession as they threaten to do and do remove said goods, complainants will be damaged at least five thousand dollars; that said Brainerd is a-man of no means; that the means and ability of Richardson to resjiond in damages is unknown, and that the rights of the complainants will be undoubtedly prejudiced if the injunction prayed for is not issued immediately and without notice to defendants.

A preliminary injunction was granted as prayed by the bill on May 7, 1907, on appellants filing a bond in one thousand dollars with Charles W. Boynton as surety.

May 9, 1907, all of the defendants entered their appearances by counsel, and on the following day entered a motion for the dissolution of the injunction on the face of the bill. This motion was continued.

May 16, 1907, the defendants filed a joint and several and general and special demurrer to the bill. On May 21, 1907, as the clerk’s certificate shows, the cause came on for hearing on the motion of the defendants upon the face of the bill to dissolve and set aside the restraining order theretofore entered, and upon the defendants’ demurrer to the bill, and it was ordered that the demurrer be sustained without prejudice to the restraining order, and that the defendants (complainants) have leave to amend their bill of complaint instanter; and that the motion to dissolve the injunction and restraining order be continued to May 22, 1907, at 9:30 o’clock a. m.

Complainants filed several amendments to their bill on May 21, 1907, which, in the view we take of the case, it is not important to set out.

May 22, 1907, the final decree was entered, striking from the files the amendments to the bill filed on May 21, 1907, for the reason that said amendments were not filed in compliance with the order of court entered on May 20, 1907, wherein complainants were given leave to file amendments to the bill of complaint instanter, and dissolving the injunction. The complainants elected in open court to stand by their bill of complaint, and the court dismissed the bill for want of equity at complainants’ costs.

In considering the error assigned upon the order of court striking the amendments from the files upon the ground that appellants in filing their amendments did not comply with the order of court permitting amendments to be made, we are of the opinion that we must look to the order of court spread upon the record rather than to the recital of the clerk as to when the order giving the leave to amend was entered, when there is a conflict upon that point in the record. By the clerk’s certificate it appears that the order granting leave to amend was entered on May 21, 1907. If the certificate of the clerk is correct, the amendments were filed in compliance with the order granting leave to amend. But by the order entered on May 22, 1907, the court adjudicates and determines that it entered the order granting leave to amend on Hay 20, 1907. This, we think, must control and supersede the mere recital of the clerk. No question is made in the briefs of appellants as to the accuracy of the order of May 22, 1907, upon this point, and indeed the record can not be disputed. Appellants, then, did not file their amendments to their bill in compliance with the order permitting them to amend.

Without asking for further time in which to amend either before May 22, 1907, or on that date when the court struck their amendments from the file, they announced in open court their election to stand by their bill, and thus waived their right to renew their application for leave to amend. Appellants cannot now urge error upon the order striking their amendments from the files, or treat their amendments as a part of the record, and their case must stand upon the averments of the original bill and the ruling of the court upon special demurrer thereto. Toles v. Johnson, 72 Ill. App., 182; Campbell v. Powers, 139 Ill., 128, 133.

The main question presented by this record is as to the propriety of sustaining a general and special demurrer to the original bill of complaint of appellants.

Where a bill in equity states only the conclusion of the pleader, a demurrer does not admit such conclusion to be true. It admits all facts properly pleaded, but not inferences of law from those facts. Newell et al. v. Bureau Co., 37 Ill., 253. A complainant seeking relief in equity must allege in distinct terms the facts necessary for such relief. Toles v. Johnson, supra.

The original bill of complaint alleges in substance that two years before the expiration of the alleged lease, it was assigned by Bancroft, the lessee, to appellants. But by what method or means this alleged assignment was made is not disclosed by the bill. It is not averred whether this alleged assignment was in writing, or by word of mouth, or simply by delivery of possession to appellants and payment of rent by them. Construing the bill most strongly against appellants, the court must conclude that the assignment, if there was one, was not in writing, and if so, it is too plain for argument that no right of renewal for five years could have passed to appellants wdiich a court of equity or law would or could enforce. Chicago Attachment Co. v. Davis S. M. Co., 142 Ill., 171; Marr v. Ray, 151 id., 340; Leavitt v. Stern, 159 id., 526.

The averment in this hill that “said lease contained a further provision giving unto said Bancroft the right to renew the same at his option, there being no provision as to when he should make his election to renew, or when or how he should give notice to said Nelson or his successors in interest, as to his election,” is, in the absence of a copy of the lease attached to the bill as an exhibit, the conclusion merely of the pleader. The court is not placed in the position by this averment where it can draw any conclusion from facts alleged as to whether the conclusion of the pleader is justified or not, for the provisions of the lease or its terms are not averred. It is too clear for argument, we think, that in the absence of evidence showing the terms and conditions of the assignment and the lease a court could not frame a decree of specific performance, specifically enforcing the alleged option to renew, upon the averments of the hill without resorting to speculation and conjecture. A court of equity will not enforce a vague and uncertain contract.

The demurrer was properly sustained, we think, and the decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Chicago Title & Trust Company et al. v. Olive M. Thomson et al.
    Gen. No. 13,431.
    Appeals and errors—what order not appealable. An interlocutory order entered in a foreclosure proceeding over which the court retains jurisdiction to modify or change on the application of any party in interest, is not subject to review until the final disposition of the cause in which it is entered.
    Foreclosure. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1907.
    Writ dismissed.
    Opinion filed March 9, 1908.

      Cratty Bros., Jarvis & Sample, for plaintiffs in error.
    Robert P. McEulta, for defendants in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out in an attempt to reverse an interlocutory decretal order entered July 30, 1906, in a proceeding to foreclose a trust deed in the nature of a mortgage upon real estate in Chicago. That order is as follows:

“On motion of defendant Thomson it is ordered that Ebenezer Wakely, H. F. Evans, Eben J. Ross, L. C. Lewis, A. F. Breyfogle and Charles Jewell, defendants herein and tenants of the premises Nos. 6211-6216 South Park avenue, Chicago, Illinois, pay their respective rents of said premises to the owner, Olive M. Thomson, according to the terms of their respective leases therefor until the further order of the court.”

It needs no argument or citation of authority to support the self-evident proposition that this order is not a final one. The chancellor still has jurisdiction either to change, modify or vacate it on the application of any party in interest. If such an order as this is reviewable, then every order entered in like proceedings anterior to the final decree would be reviewable. Such has never been the law in this jurisdiction. Counsel for plaintiffs in error cite no cases holding to the contrary of this proposition, and we know of none.

The order is conditional only, as plainly appeárs from its concluding sentence. It has no finality and can only remain in force “until the further order of the court.” Hawkins v. Taber, 47 Ill., 459; Quinn v. McMahon, 40 Ill. App., 593; and Benevolent Assn. v. Farwell, 5 ibid., 240.

As this court is without jurisdiction to review the order complained of, the writ of error is dismissed.

Writ dismissed.


author: Mr. Presiding Justice

text:
    Chicago City Railway Company v. James Reddick, Administrator.
    Gen. No. 13,641.
    1. Negligence—considerations which enter into determination of question of, as one of fact, where child of tender years is injured while attempting to cross street car tracks. Where a child of tender years is injured by a motor car while attempting to cross street car tracks, very strong elements essential to the solution of the question of negligence are, the position and the distance of the car from the child when he first started to cross the track, the attention or lack of attention of the motorman in control of the car at that time, whether or not the motorman saw the child as soon as he might in the exercise of due care or applied as he should the mechanism of the car in an attempt to arrest its progress and bring it to a stop before striking the Child, whether, in fact, he used sand on the rails, and if he did use sand, did he do so in apt time, in the exercise of due diligence.
    2. Negligence—what does not relieve from charge of, where a child of tender years is injured while attempting to cross a street car track. Whether or not a gong on a motor car is sounded at the time of an accident is immaterial in a case of a child of tender years injured or killed while attempting to cross a street car track.
    3. Damages—how amount of, determined in death case, where the plaintiffs intestate was a child of tender years. The determination of the amount of damages to be awarded in an action for death caused by wrongful act is left to the determination of the jury, and where the plaintiff’s intestate is a child of tender years with the infinite possibilities of life and opportunity before him, the discretion exercised by the jury is liberally considered on review.
    4. Arguments oe counsel—what ground for reversal. Arguments of counsel which seek to inflame the passions and prejudices of a jury by references to matters of common knowledge which are outside of the issue, are ground for reversal where harm may fairly be inferred to have resulted.
    5. Arguments oe counsel—what ground for reversal. Remarks of counsel, upon the question of damages, as follows, held improper, and to constitute ground for reversal.
    “When it ccmes to a question of damages, Mr. Duncan touches upon those and says that if you should find for the plaintiff in the case, you should limit the damages. * * * The law fixes a limit. It allows the recovery of ten thousand dollars in a case where death of one is wrongfully and negligently caused by another.”

      6. Pbactce—when impropriety in permitting jury to talce eliminated counts upon retirement not subject to review. It is not error per se to allow the jury to take with them upon their retirement the declaration in the cause, although the better practice is not to permit them so to do. It is error, however, to permit the jury so to take with them eliminated counts, but such error is not subject to review in the absence of the question being raised in the trial court at the time of the delivery of such eliminated counts to the jury.
    7. Instructions—when refusal to eliminate count error. It is error to refuse by instruction to eliminate a count of a declaration from the consideration of the jury where there is no evidence tending to support the averments of such count.
    8. Instructions—must not tender false issues. An instruction is erroneous which submits a false issue to the consideration of the jury.
    9. Instructions—effect of refusing abstract proposition of law. It is not error to refuse an instruction which contains only an abstract proposition of law, even though such abstract proposition of law is correctly stated.
    10. Instructions—measure of damages improperly stated. An instruction given in this case, as follows, held erroneous:
    “The court instructs the jury that the law provides that whenever the death of a person shall be caused by the wrongful act, neglect or default of any person, company or corporation who or which would have been liable if death had not ensued, to the party injured, the administrator or executor of such deceased person may bring a suit against the person, company or corporation whose negligence was the cause of death for the benefit of the next of kin of such deceased person. And the law also provides that in such suit or action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injury resulting from such death to the next of kin of such deceased person, not exceeding the sum of $10,000.”
    11. Pleading—when averment in declaration that plaintiffs intestate left next of Join sufficient. While in actions for death caused by alleged wrongful act it is usual to aver in all the counts of the declaration that the plaintiff’s intestate left next of kin, yet it is not necessary so to do. It is sufficient if such averment appears in one count of the declaration.
    12. Evidence—when rules of traction company competent. Held, that it was not error to admit in evidence the rules of the traction company defendant governing motormen.
    13. Evidence—what competent with respect to arrest of motorman at the time of accident. Held, that it was not error to admit proof of the arrest of the motorman at the time of the accident, but that it was error to refuse to permit evidence to be given as to the cause and reason of such arrest, where such evidence tended to remove the impression which might have been left in the minds of the jury that there was something culpable in the conduct of the motorman at the time of the accident which brought it about.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed March 9, 1908.
    William J. Hynes, Vincent J. Duncan and 0. LeBoy Brown, for appellant.
    Ossian Cameron, for appellee.
   Mr. Presiding Justice

Holdom delivered the opinion of the court.

This is an action on the case brought under the statute against appellant for negligently causing the death of appellee’s intestate, a male child of the immature age of two years. The little boy came to his death by being run over by an electrically propelled car of appellant while it was going west on 59th street near Grove avenue on June II, 1904. The original declaration, filed February 3, 1905, contained seven counts, in one of which only was contained an averment that the deceased- left a father and mother and three sisters surviving him, who were his next of kin. A general demurrer was interposed to the six counts omitting the averment of survivorship, and the general issue filed to the remaining count. The demurrers were sustained and leave given to file an amended declaration. Seven additional counts were filed October 1, 1906, each containing an averment that the deceased boy left next of kin surviving, and one of which set up an ordinance of the Chicago Council, referred to colloquially as the “Fender Ordinance,” and averring a violation of it in the equipment of the ear which killed the boy.' A demurrer was interposed to the seventh additional count, which being sustained, the count was amended upon its face by leave of court. To the reinaining seven counts the Statute of Limitations was pleaded, to which appellant demurred, and the demurrers being sustained and appellant electing to stand by the pleas, the cause proceeded to trial on the issues thus made. The trial resulted in a verdict against appellant of $10,000, from which appellee remitted $4,000, and after overruling motions for a new trial and in arrest of judgment, the court entered judgment on the verdict of the jury, less the amount of the remittitur, for $6,000, to which rulings appellant preserved sufficient exceptions and brings the record to this court for our review.

Twenty-five reasons were filed with the motion for a new trial, and forty separate assignments of error are found endorsed upon the record.

The errors argued as requiring a reversal are restricted to the verdict being contrary to the law and the evidence, excessive damages, improper statements of counsel in argument, in sending the declaration to the jury, in not excluding the fifth count, in eliminating the pleas of the Statute of Limitations, in the exclusion and admission of certain evidence, and erroneous instructions to the jury.

The family of deceased lived in the neighborhood of the place of the accident. The little boy, about five minutes before the accident, left his home, without the knowledge of his mother, and with his sister, a child in the vicinity of four years of age, proceeded onto the south side of 59th street, where they met a four-year-old child of John Murray, an uncle of deceased. When this little group of children were at a point on the south side of 59th street on a line with the east side of Grove avenue, they saw John Murray walking south on Grove avenue toward them. They holloed to him, and the deceased and his sister started to go north across the tracks of appellant with the apparent intention of meeting Mr. Murray. The little girl halted on the east-bound track, but deceased, unconscious of the danger so imminent, kept on running, and when on the west-bound track was picked up by the fender of the car and in some way not altogether clear, his little body was released from the fender and drawn under the car, which ran over him, causing his death. When the car stopped it was about fifty feet west of Grove avenue. Fifty-ninth street at the point of the accident, and for some distance east and west of that point, is .not paved. It is contended that the rails were slippery and in a greasy condition, made so by having been recently sprinkled to allay the dust. A railroad viaduct used by the Rock Island and Lake Shore Railroads passes over 59th street in the vicinity of Lafayette avenue and about 100 feet west of Grove avenue. There is a gradual depression of the street to the east and west of this viaduct, the down grade to the west being steep. As the car approached from the east to descend this grade there were no obstructions visible in the street in the line of the westward progress of the car, either of pedestrians or vehicles. The motorman threw off the power and applied the brakes about 30 feet east of the descent of the grade. The evidence is somewhat conflicting as to how far from the child the car actually was at the time the motorman first saw him, but that the rails were slippery and that the motorman seemed to do all in his power to stop the car in an attempt to avoid striking the deceased, is not seriously contested. That the mechanism of the car was in good order and condition, is the undisputed evidence of the witnesses who had the best means of knowledge in relation thereto. The motorman testifies that when he was unexpectedly confronted with the perilous situation of the deceased, appreciating the fact that an application of the brake would not result in bringing the car to a standstill in time to avoid striking deceased, he applied the reverse and turned on the power in an attempt to set the wheels going in the opposite direction, and says that when the boy was on the fender he used the sand in an effort to counteract the slipperiness of the rails. Some of appellee’s witnesses testified that the motorman seemed to be doing all in his power to stop the car.

The verdict, with the exception of one disputed point, seems to us to be manifestly against the clear weight of the evidence. That negligence cannot be imputed to one of the tender age of deceased is elementary. We think the jury, under the evidence, was warranted in finding that negligence was not imputable to the parents of deceased. But whether or not appellant was guilty of the negligence charged in some one of the counts of the declaration, in not so holding the car in control, in the condition which presented itself at the time of the accident, as to have avoided it, is for the jury to determine. Very strong elements essential to the solution of this question are the position and distance of the car from deceased when he first started to cross the track, and the attention or lack of attention of the motorman in control of the car at that time, and whether or not the motorman saw the deceased as soon as he might in the exercise of due care, or applied, as he should, the mechanism of the car in an attempt to arrest its progress and bring it to a stop before striking the deceased, whether in fact he' used sand on the rails, and if he did use sand, did he do so in apt time in the exercise of due diligence. These questions we regard as the prominent factors in dispute, and as to which the evidence is somewhat in conflict.

It is primarily for the jury to find from the evidence whether or not the car was at such a distance from the point where it struck the deceased that it could have been stopped in the exercise of due diligence by the motorman, either before it struck deceased in the first instance, or during the time when the child was on the fender upon which he was carried 40 or 50 feet before he fell to his death. These matters will be pertinent for the consideration of the jury upon another trial.

Whether or not the gong on the car was sounded at the time of the accident is immaterial in the case of so young a child as deceased. It would not serve the purpose of warning so young a child. He had no discretion to exercise nor judgment to which the sound of the gong would appeal.

While the verdict cannot be maintained, for the reasons hereafter more specifically set forth, yet neither the argument nor reasoning of counsel for appellant that it cannot be maintained because of its claimed excessiveness, appeals to us. Their standard for the measurement of damages is neither supported by the law nor the conditions of hope for reward which may await the diligent and competent citizen, regardless of humble birth, which elsewhere might be a barrier to success and preferment. We have spoken in no uncertain tone on the subject in a nearly parallel case, concerning the amount of damages which may be awarded the next of kin in an action for negligently causing the death of a young boy. In Chicago City Ry. Co. v. Strong, adm’r, 129 Ill. App., 511, we said: “The assessing of damages in this class of cases is not free from difficulty and some uncertainty. It has been decided that such damages cannot be limited to any fixed rules, and must be left largely to the sound discretion of the jury. C. & A. Ry. v. Shannon, 43 Ill., 338. The amount of recovery in this case is the maximum allowed by law when the boy died. He was an ordinary, bright boy, but too young to judge of his final attainments in the Tattle of life.’ He was an American youth, and every ambition of life was open to him, and fame and distinction and high place in this free Eepublie were not barred to him. The country’s history is replete with names which shine luminous upon the scroll of fame, who climbed the giddy heights -of prominence and usefulness as the reward of strenuous and patriotic endeavor from as humble station in life as that to which the deceased was born. What comfort. and financial support he might have been to his next of kin we can never know. What sorrow or charge upon them he might have become is equally denied. Therefore no one may know what actual damage the next of kin may have suffered, and there being no class distinction or advantage of heredity here, all are on an equal plane, and the damages must be admeasured within the limitations of the statute and of necessity what the amount shall be largely rests in the discretion of the jury.” These observations are of equal application to the case at bar. The argument of counsel to the contrary comes with ill grace, and is refuted by the history of this country and the attainments of its professional men, financiers, merchants, journalists, inventors and others, to whom, the unprecedented growth of our country and its material prosperity is debtor. They led and conquered in the struggle by bursting the bounds of their humble environment.

The authorities cited and discussed in the Strong case, supra, are all decisive of the rule as to the admeasurement of damages in this class of cases. Our judgment in the Strong case was affirmed on further review, 230 Ill., 58.

Where the proofs are inharmonious and the right of recovery is a close question by reason of this condition of the evidence, exactness in the rulings of the court on the evidence and instructions and moderation in the conduct of counsel in argument are essential requirements to sustain a verdict thereon resting for its support.

Counsel for appellee in his closing address to the jury was guilty of indulgence in improper remarks of a highly inflammatory character, calculated, as Ave think, to stir the passions and prejudices of the jury to such an extent that it SAvayed their deliberations and influenced their verdict to the detriment of appellant.

That the citizens of Chicago have been much perturbed with a so-called “traction problem,” affecting all the corporations operating street surface railroads in Chicago, is a matter of common knowledge and current local history. That the systems have been inefficiently operated to the great inconvenience of patrons, is generally believed, whether justly so or not. In judging of the purpose and effect of the improper remarks of counsel, the court cannot disregard the general current of public sentiment in the community on this subject. Its purpose undoubtedly Avas to appeal to the prejudices of the jury and the result impels us to the conclusion that counsel succeeded in such purpose. The fruit thus unlawfully obtained the court will not allow the offending party to retain. Such is the trend of all the authorities treating of like conditions. These are some of the most objectionable and indiscreet remarks of counsel: “The parents of this child permitted that child to go into these streets where cars were passing. My God! Are cars so sacred—are cars more sacred than human life? Have we given up all our rights in the streets ?” These remarks were so apparently unwarranted that counsel on making them yielded to an objection by withdrawing them. But he was too late; the harm had been done. Neither statement of counsel nor ruling of the court sufficed to correct the evil effect of this and other like language indulged in by counsel. The verdict of the jury evidences its baneful effects on them, and the remittitur of four-tenths of its amount by counsel for appellee is a recognition tantamount to an admission that prejudice and passion were ingredients dominating the jury’s deliberations. The trial judge also indicated a like opinion by requiring this large remittitur as a sine qua non to denying the motion for a new trial. Full support for these conclusions is found in Chicago City Ry. Co. v. O’Donnell, 208 Ill., 267; McDonald v. People, 126 ibid., 150; Wabash R. R. v. Billings, 212 ibid., 37.

The case of Chicago City Ry. Co. v. Math, 114 Ill. App., 350, is as to the criticized remarks very similar. The counsel in the Math case said: “If every man, woman or child who ride upon the footboards in Chicago are taking their lives in their hands, and this company can come into court and say ‘We are not liable,’ then I say the Lord help the men, women and children who ride on them.” This court condemned such remarks as improper.

In I. C. R. R. v. Souders, 178 Ill., 585, the court said, as we intend to be understood as holding here: “The withdrawal was after the harm had been done. It would not be safe to establish the rule that after an injury is done a mere withdrawal is sufficient to restore the status, since that would furnish a very convenient method of bringing before the jury improper matters.” W. C. St. Ry. v. Kean, 104 Ill. App., 147.

The remarks of counsel to the jury as to the measure of damages and the rulings of the court on the objection of appellant were equally erroneous and prejudicial in a matter most materially affecting the liability of appellant. Counsel among other things said: “When it comes to a question of damages, Hr. Duncan touches upon those and says that if you should find for the plaintiff in the case, you should limit the damages. The law fixes the limit. It allows the recovery of ten thousand dollars in a case where the death of one is wrongfully and negligently caused hy another.” Other remarks of a similar tendency were made and ruled as proper by the court over the objection and exception of appellant. In a colloquy between the court and counsel over these objections, in the presence of the jury, the court by the trend of his remarks intimated it as his opinion that appellee’s counsel was justified by the law in his argument as to the measure of damages. These rulings were error prejudicial to the rights of appellant. They have been so held in I. C. R. R. Co. v. Souders, supra, where the court say: “The injury was severe, but the damages allowed are very large, and the remarks of the court were directed to the subject and likely to affect the amount of the damages. Every one knows the importance juries ordinarily attach to the remarks and opinions of the court, and we think that in this case it would be unjust to overlook them, and that in connection with the conduct of counsel complained of, they require a reversal of the judgment.” While it is not error per se to allow the jury to take with them upon their retirement to consider of their verdict the declaration in the case, it is not always the part of wisdom so to do. However, it is a matter which rests largely in the discretion of the court. Still, the jury’s possession of the declaration with the sixth and seventh counts, which had been eliminated from the case by the court’s instructions, was calculated to prejudice the defense of appellant and counterbalance the action of the court in excluding these counts, which the jury may have either designedly or inadvertently examined and heeded in arriving at their verdict. It is true that the objection made was general, when it should have been specific by designation of the two eliminated counts. The objection was to the declaration as a whole, and as such was unavailing. W. C. St. Ry. v. Buckley, 200 Ill., 264. The court should have afforded an opportunity to have detached the sixth and seventh counts before delivering to the jury a declaration on which the issue joined was submitted.

The court say in Hanchett v. Haas, 219 Ill., 546: “It is insisted that it was error for the court to permit the jury to take the declaration into the jury room upon their retirement. In this there was no reversible error.” While yielding our assent to this ruling, we are strongly of the opinion that in furtherance of justice it is by far the better practice not to allow the declaration to be taken by the jury while considering upon their verdict. The declaration is not evidence. It is a technical legal document, requiring a knowledge of common law pleading to correctly interpret, and it cannot be intelligently applied to facts in evidence without interpretation. It would seem to us that ordinarily a declaration would be more liable to confuse than enlighten the jury. The instructions upon the law of the case generally include sufficient explanation as to the relation of the issues joined by the pleadings to the facts. As held in Fish v. Farwell, 160 Ill., 236, the interpretation to he placed upon pleadings is a question of law for the court, not of fact for the jury.

There was no evidence tending to sustain the allegation of the fifth count, that appellant employed and retained reckless, careless and incompetent motormen and conductors, and that by a certain unskilled, reckless and careless motorman the car was so negligently managed as to run it against deceased, etc. It was error to allow the case to go to the jury under this count, and in failing to give the instruction asked excluding it. This error becomes more flagrant and injurious when it is borne in mind that the court by instruction 5 authorized a recovery upon any count in the declaration except the sixth and seventh, and its perniciousness is obvious. In terms such direction was repeated in several other of the instructions given. Evidence of other negligent acts of the motorman, or a general inquiry into his ompetency or incompetency was the tender of a false issue. The inquiry should have been directed and confined to the motorman’s actions and conduct as to his management and control of the car at the time of the accident. So far as the evidence diverted from this course, it was erroneous. C. & A. Ry. v. Hodge, 55 Ill. App., 166.

It was not error to sustain the demurrers to the pleas of the Statute of Limitations. While it is usual in practice to aver in all the counts of the declaration, in cases of this character, that the intestate left next of kin, yet it is not necessary so to do. If the averment appears in one count, the statutory requirement necessary to maintain the action has been met. Afterwards filing additional counts, or an amended declaration making an averment of survivorship in each count, is not the statement of a new cause of action, but a restatement in an amplified form of the cause of action stated in that count of the original declaration. L. S. & M. S. Ry. Co. v. Hession, 150 Ill., 557; Chicago C. Ry. v. Hackendahl, 188 ibid., 300; Enright v. Gibson, 119 Ill. App., 411.

The cases cited by appellant’s counsel have no application, for the reason that in those cases there was an entire lack of the averment in any count of next of kin surviving. In the case at bar the averment of next of kin in the one count was all-sufficient to arrest the running of the statute.

It was not error to admit evidence of the rules of appellant governing motormen. After notice to appellant it failed to produce them, and they were then proven by the testimony of a conductor who had worked under them for appellant and was familiar with them. City of Chicago v. Saldman, 225 Ill., 625. We think the rules about which conductor Murray testified were shown by his evidence to be those in force at the time of the accident.

While it was not error to prove the arrest of the motorman at the time of the accident, it became error to refuse to permit evidence to be given as to the cause and reason of such arrest. In the condition of the testimony in relation to the arrest, it was calculated to leave an impression upon the minds of the jury that there was something culpable in the conduct of the motorman at the time of the accident which brought it about. Chicago C. Ry. v. Uhter, 212 Ill., 174.

Appellant’s first instruction was properly refused because it stated simply an abstract proposition of law. Instruction 2 should have been given, for the reason already stated, that there was no evidence tending to support the averments of the fifth count of the amended declaration. At the request of appellant the court gave 19 instructions to the jury, which when read together as a series fairly and fully, we think, except as herein otherwise stated, presented all the law on the several theories and defenses of appellant, and furnished a sufficient guide to the jury in their deliberations, from which they could arrive at a correct conclusion thereon. We think instructions 26 and 27 substantially covered all the elements of damage for which appellee was entitled to recover compensation. They specifically enumerated them, and instruction 26 expressly told the jury that they could not “award exemplary or vindictive damages.”' Instruction 11, given at the instance of appellee, is:

“The court instructs the jury that the law provides that whenever the death of a person shall be caused by the wrongful act, neglect or default of any person, company or corporation who or which would have been liable if death had not ensued, to the party injured, the administrator or executor of such deceased person may bring a suit against the person, company or corporation whose negligence was the cause of death for the benefit of the next of kin of such deceased person. And the law also provides that in such suit or action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injury resulting from such death to the next of kin of such deceased person, not exceeding the sum of $10,000.”

This instruction, and many others of like import, have been held vicious in a number of cases; among them: Muren Coal & Ice Co. v. Howell, 204 Ill., 515, and cases there cited; Ills. Terminal R. R. Co. v. Thompson, 210 ibid., 226; I. C. R. R. v. Johnson, 221 ibid., 42, Laporte v. Wallace, 89 Ill. App., 517; I. C. R. R. v. Becker, 119 ibid., 221.

The error here apparent was not cured by any other instruction given.

For the errors indicated the judgment of the Superior Court is reversed and the cause remanded for a new trial in accord with the views here expressed.

Reversed and remanded.


text:
    John Mohr & Sons v. Anton Martewicz.
    Gen. No. 13,636.
    1. Master and servant—when doctrine of assumed rislc applies. A servant is held to have assumed all those obvious risks which are incidental to his regular employment.
    2. Master and servant—when former need not give warning of danger. A master is not hound at his peril to warn his servant of a danger equally obvious to both.
    3. Instructions—when must not omit reference to issue. An instruction which directs a verdict of not guilty in the event of finding certain facts must not omit ingredients essential to justify the rendition of such a verdict.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed with finding of fact.
    Opinion filed March 9, 1908.
    Statement by the Court. The action is case for personal injuries. A trial in the Superior Court with a jury resulted in a verdict for $10,000, upon which the court entered a judgment after overruling motions for a new trial and in arrest of judgment.
    The errors assigned and argued are that it was error to refuse the peremptory instruction requested to be given to the jury to find a verdict for defendant, that the verdict and judgment are contrary to the manifest weight of the evidence, and that the court erred in giving certain instructions tendered by plaintiff and in refusing to give others tendered by defendant.
    The parties will be designated in this opinion as in the trial court. The declaration consists of three counts. By the first count plaintiff, after averring that he had worked for defendant at the time of the accident for three years, in its boiler factory, in which it maintained a crane with an upright part 20 feet high, from which there was extended in a horizontal direction, at the height of about 14 feet, a beam or arm about 12 feet long, avers that on December 10, 1904, he was ordered by defendant to ascend the crane to the height of the beam and to go along said beam toward its further end for the purpose of ascertaining the length of a pipe which was to be put in position five feet above the beam, where it moved horizontally about the upright of the crane. It is then alleged that there was danger attendant upon the doing of that work because when he was along the beam outward from the upright, the beam wras liable to move in a horizontal direction, which motion was liable to precipitate him to the ground below; all of which defendant knew or was chargeable with knowing in the exercise of ordinary care. It is then averred that plaintiff neither knew nor in the exercise of ordinary care could have known of these dangers, and that therefore it was the duty of the defendant to show him the dangers encountered in the doing of the work, and especially the danger in proceeding along the beam. The negligence charged against defendant in this first count is that it failed and omitted to point out and discover to the plaintiff the fact that the beam was liable to move horizontally and the danger attending such motion, and failed to warn plaintiff that there was danger attending the work he was so ordered to do. That by the moving of the beam while he was so upon it, in the exercise of due care for his safety, he fell to the ground 14 feet below, and was injured.

      The second count, after the inducement, alleges that plaintiff at the time of the accident was a helper to a pipe fitter, whose orders he was directed by defendant to obey; that defendant either knew or was chargeable with knowing that if plaintiff proceeded upon the beam outward toward its end, there was danger of the beam moving horizontally, resulting in pitching him down upon the ground below, of which danger plaintiff was unaware, etc. Hegligence is then charged in that defendant “negligently, through the directions of said pipe fitter, ordered and commanded the plaintiff to proceed horizontally upon said beam toward and to the outer end thereof”; that while he was obeying the order of the pipe fitter, in the exercise of due care, the beam, without his fault, moved horizontally, causing him to fall to the ground.
    The third count grounds the negligence of defendant in not providing a reasonably safe place for plaintiff to work, but on the contrary furnished a dangerous place, in that the beam, being unfastened and movable, was liable to move in the manner before alleged, and that while plaintiff was moving outward upon the beam he could not be in a safe position, but was obliged to crawl along the beam upon his hands and knees, and consequently could not prevent his falling in the event the beam moved sideways; that such dangers were actually known or might have been known to defendant if it had exercised reasonable care; that such dangers were neither obvious nor known to plaintiff, and could not have been known to him in the exercise of due diligence; that while proceeding along the beam with due care, it suddenly moved, causing him to fall off, injuring him.
    To this declaration defendant pleaded the general issue.
    Plaintiff was a laborer who had been in the employ of defendant three years at the time of receiving the injuries to recover compensation for which this suit was brought. During the first two years or more of his employment he helped the man who punched holes in iron plates; did anything he told him to do. He testified that he was a common helper to most everybody in the shop. Six months before the time of the accident he went into the machinists’ shop to work as a helper. He helped any of the machinists who called for his assistance. He was under their orders. On the morning of the accident he was working with Meyer, a “pipe fitter,” with whom he had been working something-less than a month. Meyer testified that plaintiff helped him from the first time he, Meyer, went into the machinists’ shop; that day after day they put up pipes in different parts of the building. The master mechanic, one Luedtke, directed plaintiff to help Meyer, and when he and plaintiff worked together he did whatever Meyer told him to do. Plaintiff knew of the crane and its situation during all the time of his employment, but while he worked as a punch press helper he did not use it. After quitting as punch press helper he went into the machine shop, where was located the crane from the beam of which he fell. During the six months prior to the accident he worked with the crane very often, nearly every day; would use it from one to ten times daily; when working away from the crane did not use it. Part of his duties were to carry things to the machinists; when things were light he carried them by hand or put them on a truck; when heavy he used the crane for that purpose; knew how to work the crane and its method of operation; knew the way the crane swung when moved; knew that the beam moved easily. When he used the crane would pull a chain so that it would catch, and then pull the chain again and get it wherever he wanted it. The chain was attached to the crane more or less in the center. The beam is 16 feet from the ground and 13% inches wide on top. The day before the accident a box was fastened on the platform above the crane. Meyer, the pipe fitter, and plaintiff worked on the box before it was put up; they put an elbow or connection onto the box so as to connect it with a pipe. After the box was put up Meyer went out on the beam and put some tin on the box; he went out onto the beam on his hands and knees, got hold of the box and stood up; he went out that way so that he should not fall. Meyer wanted a couple of pieces of wire, and plaintiff got them for him, climbed up to the beam on the ladder, from which he handed them to Meyer. Meyer was six or seven feet from plaintiff out on the beam when-he handed him the wire. Plaintiff, the morning after Meyer was on the beam, was standing on the floor with Meyer, when Meyer asked him to go up on the beam and make a measurement to ascertain the length of pipe needed. When he got up to the beam Meyer went up the ladder after him. Plaintiff took a tape line with him to make the measurements. When he was out on the beam Meyer was sitting against the column with his hand on the crane holding one end of the tape line. Plaintiff got the tape line up to the elbow with his hands, when the crane turned, how he does not know, and he fell off the beam to the floor below. Plaintiff was asked this question:
    “Q. Before you fell did you move the crane yourself at all ?” He answered: “I could not move it; I did not go up there with the intention of falling down.”
    He further testified that he did not hear Meyer say anything to him about the crane being moved, nor could he tell how long he was on the crane before he fell. That he was not on the beam at any time before the day he fell from it. On cross-examination plaintiff was asked: “Q. Did you move the crane when you went up or after you got up?” to which he replied, “Why should I move the crane ? So as to fall down ?”
    Meyer testified that the crane arm with reference to the union (the place where the measurements were to be made) was about six inches; that would be twelve inches away from the union; with the plaintiff sitting on the beam, or a man the size of the plaintiff sitting on the beam as the beam was located at that time, if he was sitting at the end of the crane, that is, about fourteen inches away from the end of the crane, he would strike the pan with his head. “I mean, as he sat there his head would touch the pan.” As the crane was actually standing there at this time and at the point where the plaintiff would have to make the measurement, where he was, it was not necessary for him to stand on his feet to reach this joint or union. As the crane stood there at this time the plaintiff could have sat on the crane there and reached the joint or union. Plaintiff pushed the crane on the first movement as far as it went to the hull riveting machine; that would he about a foot; then he turned right around and facing north he pushed the crane south and fell down. I did not move the crane while he was out there. I have no way of moving, it. On cross-examination this same witness testified to the effect that the post never moves and the ladder never moves. The arm— beam—is fastened into the post with a pin holding it on top; there is a bracket with a hole drilled to a certain size, and that pin goes in there, and also down below is a bracket, one on top and one on the bottom, where the brace is. “When I went up there I climbed out on my hands and knees, and when I got clear to the end I sat down on the crane and located where it was, about, by looking. I didn’t measure. I didn’t reach up above, didn’t have to that day; and after I located by looking I crawled back on the arm of the crane and went down to the ground where Martewicz was.”
    Calhoun, Lyford & Siieean, for appellant; Egbert J. Slater, of counsel.
    Cyrus J. Wood and Stephen Janowicz, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

There is neither evidence nor contention that the crane, its arm or beam, from which plaintiff fell, or any of its mechanism, was out of repair, improperly or unsafely constructed, or that it was not adapted to the purposes for which it was used, or that there was anything unsafe about it or its operation when used and operated with ordinary care. It was not a complicated piece of mechanism. Its method and manner of operation were known to plaintiff, who was admittedly familiar with the crane, its appendages, uses and operations. The attitude of counsel for plaintiff and their argument in support of it narrows materially the scope of our discussion in reaching* a conclusion and decision of the case.

Counsel for plaintiff say on page 15 of their brief, “With regard to the res ipsa loquitur doctrine and the cases cited on that subject by opposing counsel, we are unable to see their relevancy. This "is not a res ipsa loquitur case. It is an ‘order’ case. The plaintiff was doing what he was told to do by his ‘boss.’ ”"

Plaintiff was a laborer, styled a helper, in defendant’s shop. His employment extended over a period of three years. In whatever department he worked, he was working under the order of the several mechanics to whom he was a helper. At the time of the accident, and for a little time previous to it, he had been helping the pipe fitter, Meyer, who in giving him orders about his work was at such times his “boss,” as that word is generally understood in the vernacular of this country, and in giving of such orders Meyer stood as the representative of defendant. Counsel argue that “if appellant put an incompetent man in a place of authority it must bear the consequences of its acts and his acts. If Meyer was negligent, it is negligence for which appellant is responsible.” We" find no support for this contention in the testimony, or anything that will justify the indulgence of an inference that Meyer was either incompetent or negligent. In fact the testimony is strongly susceptible to the very opposite interpretation. He ivas, so far as the evidence shows, a competent workman, and in his order to plaintiff to go upon the beam with the tape line, was not guilty of negligence. Heither is there any evidence in the record that Meyer did any act, or gave any order for the doing of any act which caused the beam to move, which movement resulted in plaintiffs falling. Hor was the moving of the beam caused by the action of any other employee of defendant, so far as the record discloses. From the evidence of Meyer it would seem that the moving of the beam was attributable to an act of plaintiff himself. He testified: Plaintiff pushed the crane on that first movement as far as it went to the bull riveting machine; that would be about a foot; then he turned right around and facing north he pushed the crane south and fell down. At the time plaintiff fell he was standing on the beam. Meyer testified that it was not necessary for him to stand on his feet to reach the joint or union from which the measurements were to be taken. As the crane stood plaintiff could have reached the joint while sitting on the beam. Howhere in the record are these facts refuted. The indisputable evidence is to the purport that plaintiff was well-informed about the working of the crane. It does not appear that Meyer had any information of any material character in relation to it and its working not possessed by plaintiff. Plaintiff had worked with it himself numerous times; he had observed its operation by others; he had seen Meyer and the “sailors” work on the beam before the day of the accident. There is naught that we can find in the evidence leading us to the conclusion that the order given by Meyer to the plaintiff to work upon the beam was extraordinary or fraught with dangers unknown to plaintiff, within the knowledge of Meyer, or that he was chargeable with knowing in the exercise of reasonable care. It also is quite clear from the evidence that the crane was simple in the method of its operation, and that such method was obvious to any unskilled laborer brought in constant contact with it, as plaintiff undeniably was. There was no suggestion of danger in plaintiff’s going to work upon the beam by himself or with anyone else. From the nature of his employment and the work he was constantly engaged in doing, this work was an incident of his employment and a part of his regular work. He entered upon it without protest, or suggestion of danger, which, if any there was, he must be assumed to have had knowledge of, and therefrom to have assumed the risk attendant upon doing the work. Meyer, in these circumstances, was not required to warn plaintiff of danger as obvious to him as to Meyer. We think the duty of defendant, under the facts in evidence, circumscribed by the doctrine laid down in section 231, Labatt on Master and Servant: “The absence of any obligation to instruct a servant who is proved by direct evidence actually to have had as complete knowledge of the danger and of the appropriate means of avoiding it as the master could have imparted to him, is too obvious to admit of controversy. Manifestly it cannot be The duty of the master to admonish the servant to be careful, when the servant well knows his danger and the importance of using care to avoid it. It is the duty of the servant to exercise care proportionate to the danger of his situation as he understands it, and if he fails to do so, the fault is his, and not his master’s.’ ” Call v. Chicago & No. R. R., 11 Wis., 114; M. & O. R. Co. v. Vallowe, 214 Ill., 121.

This court said in C. & A. R. Co. v. Pettigrew, 82 Ill. App., 33: “It is the settled and elementary law that it is unnecessary that a servant should be warned of every possible manner in which injury may occur to him, or of risks that are as obvious to him as to the master. The master is not required to point out dangers which are as readily discernible by the servant himself by the use of ordinary care, with such knowledge, experience and judgment as the servant actually possesses, or as the master is justified in believing him to possess.” Reynolds v. Grace, 115 ibid., 473; E., J. & E. Ry. v. Myers, 226 Ill., 358; C. & E. I. R. R. v. Heerey, 203 ibid., 493; McCormick H. M. Co. v. Zakzewski, 220 ibid., 522.

The master is not liable to the servant for injuries sustained in hazardous employment. The liability of the master depends entirely upon the nature of the employment of the servant and the work he has employed his servant to do. If the master puts the servant to work at any unaccustomed task, which is attended with more dangers than the work he was employed to do, and fails to inform such servant of the dangers to be encountered and the perils to be met, and the wray to avoid the injury, then the master is liable to such servant in the event of "his being injured. But this is not the rule or doctrine to be applied in all cases regardless of the known dangers and hazards to be met, arising from the very nature of the employment, lien employed to work in and about highly explosive substances assume the risk of the perils encountered, so obvious to all, unless an injury be suffered "directly traceable to some act of negligence of the master, either of omission or commission, proximately causing the injury. Persons thus engaged and others in like perilous employment do all their work under orders; yet that of itself does not make the master liable for every accident attendant upon the execution of such orders. The risks naturally to be encountered and consequently to be expected by workmen in such employment the law holds to be assumed upon taking and entering upon such employment. We do not think that Springfield Consolidated Boiler Co. v. Parks, 222 Ill., 355, when considered in the light of the facts to which the reasoning of the court and the law was applied in that case, is in conflict with the doctrine here announced. The cases which hold the employer liable where the workman acts under an order in doing the work at which he was injured, contain some of these elements. That the employer was first guilty of negligence in respect to appliances, places to work, or in failing to warn of dangers unknown to the workman, or where the order is given to do work more hazardous than that which he was employed to do and out of the line of his employment, or where the order being peremptorily given, for immediate action, allowed the workman no time to weigh the probable result to him in obeying, where the necessity for immediate action is so urgent that prompt obedience necessitates reliance for safety upon the assumed knowledge of the party giving the order that it can be safely done. Hone of these conditions enter as elements in either the giving or execution of the order which resulted in plaintiff’s injuries. We cannot coincide with the somewhat novel argument of counsel for defendant that the doctrine promulgated in the case of Wells v. Kapaczynski, 218 Ill., 149, is not the law of this forum because three judges, now members of the Supreme Court, joined in a dissenting opinion upon differing legal theories, the majority members of the court joining in the deciding opinion being no longer upon the bench of that tribunal, and that therefore the dissenting opinion becomes the law of the forum. In the first place, the deciding opinion is the law of the court until expressly overruled in a case subsequently decided by the court, and until then it is binding on all the courts of the State. Secondly, it would be an unheard-of method to adopt, to make a new legal precedent upon the unwarranted assumption that the learned judges who have succeeded to the places vacated by their predecessors are sure to agree with the views of the dissenting opinion, rather than to concur in the doctrine of the deciding opinion. Law is not culled from the realm of speculation; it rests for its authority upon much more tangible and firmly fixed principles.

We do not, however, regard the Wells case as being in conflict with the rule announced in this opinion. All the court there did was to hold that the findings of fact by this court were not subject to further review in the Supreme Court, and were binding upon it. This court having found as an ultimate fact that the defendant negligently ordered the plaintiff to perform certain work, in obeying which plaintiff was injured, and plaintiff being without fault, the Supreme Court held that the doctrine of assumed risk had no application. In what the negligence of the defendant in the Wells case consisted is immaterial. It may have, for aught the Supreme Court could search to find to the contrary, have rested in a hurry order obeyed necessarily without deliberation on the part of the workman. In such a case the doctrine of assumed risk could not be successfully, invoked as a defense; it would have no application. The ultimate fact in the Wells case being contrary to the ultimate fact here found, neither its reasoning nor doctrine is pertinent to this decision. ¡¡Neither do we regard the case of E., J. & E. Ry. Co. v. Myers, 226 Ill., 358, as being in conflict with the Wells case. Both cases are entirely variant in all their controlling facts, necessitating the application of different legal principles to each case, which, when fairly analyzed and distinguished, will not be found to be either in conflict or contradiction to each other. We think the verdict and the judgment thereon are clearly contrary to the manifest weight and probative force of the evidence, as the evidence fails to sustain the charge that the order given was negligent or the work to be performed extra hazardous, or that the order given was a hurry or a peremptory one, out of the line of his employment. In this condition of the evidence a question of law was raised by the motion of the defendant to instruct the jury to find a verdict in its favor. If this evidence, with all the inferences which could reasonably be indulged, was clearly insufficient to sustain the charge of negligence alleged against defendant in any count of the declaration, it was the duty of the court to allow the motion and instruct the jury as requested. The peremptory instruction asked by defendant at the close of all the proofs should have been given.

Instruction A given by the court at the instance of plaintiff was erroneous in failing to inform the jury that if the order given to plaintiff was to do work which he ordinarily did and was employed to do, then he assumed the risk and could not recover. The instruction was misleading and authorized a verdict on the doctrine of the liability of the defendant to compensate plaintiff for injuries sustained while working in a dangerous place, regardless of the fact, if it was a fact, that plaintiff hired himself to work in a place fraught with danger, and that he thereby assumed the risks obvious to him in the exercise of due care. Ills. Iron & Metal Co. v. Weber, 196 Ill., 526.

The court properly refused to give instructions 17, 18 and 19, proffered by defendant. They omit ingredients essential to justify the jury in rendering a verdict of no.t guilty, and furthermore the jury, by the instructions given at defendant’s request, were fairly instructed upon the theories defectively set forth in defendant’s instructions refused.

For the errors indicated the judgment of the Superior Court is reversed with a finding of fact.

Reversed with finding of fact.


author: Mr. Presiding Justice Holdom Per Curiam.

text:
    Peter Glynn v. Mary Glynn.
    Gen. No. 13,647.
    1. Separate maintenance—when right to relief not tarred ty laches. Held, under the evidence in this case, that a delay of thirty-two years in seeking separate maintenance after the right thereto had accrued, did not constitute such laches as would bar the granting of the relief sought.
    2. Separate maintenance—what does not tar right to relief. The Statute of Limitations does not run against the liability of the husband to support his wife and therefore does not operate to bar the right to relief by separate maintenance.
    3. Separate maintenance—how award of alimony determined. The amount of the allowance to be awarded in an action for separate maintenance rests largely in the discretion of the chancellor and the allowance made by him will not be disturbed where the Appellate Court cannot say from the briefs that the limit of such discretion has been exceeded.
    4. Separate maintenance—when allowance of solicitor’s fees improper. Judicial notice will not be taken of the value or extent of legal services rendered in cases where an allowance therefor is permitted by statute, and an allowance for solicitor’s fees made in a separate maintenance proceeding -which is not supported by any evidence in the record will be set aside on review.
    Separate maintenance. Appeal from the Superior Court of Cook County; the Hon. Willard M. McBwen, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Edmund S. Cummings, for appellant.
    Frederick Peake and Robert I. Gregg, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a decree for separate maintenance, in which fifty dollars a month was allowed for support of appellee and two hundred dollars for her solicitor’s fees.

It is assigned for error and argued that the decree is contrary to the weight of the evidence, in that it does not sustain the findings of the decree that plaintiff was living separate and apart from appellant at the time of the filing of the bill without her fault; also that appellee is guilty of such laches in waiting thirty-two years from the alleged desertion before instituting her action, as to bar her cause of action; that the allowance is unreasonable and excessive, and that there is no evidence in the record supporting the allowance for solicitor’s fees.

The parties were married in January, 1866, and lived in the marital relation until June, 1874, when appellant deserted his family, at the time consisting of his wife and two children. During the eight years of their cohabitation six children were born to the Glynns, four of whom had passed from earth at the time of their separation. Since such desertion Glynn has failed to make any provision for the care or support of either his wife or children, except as hereinafter mentioned as to the children.

The bill charges that Glynn, during the time he lived with his wife, was cruel to her, struck her several times, knocking her down and blackening her eyes, and that he was also addicted to excessive indulgence in intoxicating liquors. It is further charged that appellee is without property or means of support save the equity in two lots in Denver, of value not to exceed $500, and for the past fourteen years has been supported by her married daughter; that she is over sixty-five years of age, decrepit, and unable to work and earn her livelihood.

Appellant admits the marriage and the birth of six’ children, but denies the desertion charged, or that appellee is living separate and apart from her without her fault, and while admitting that the parties separated in June, 1874, avers that such separation was brought about by the desertion of appellee; that during the thirty-two years, of desertion appellant never heard of appellee until the filing of the bill; denies that he possesses any property other than an interest in the estate of Catherine ITealy, deceased, valued at about $3,000; avers that he is sixty-nine years old, has a lame leg, and is unable to earn more than a living for himself by reason of his advanced age and infirmities.

The evidence was contradictory, but developed that for several years before the separation the relations of the parties were strained, and that quarrels and disagreements over domestic matters were of frequent occurrence. However, the crucial question as to who was the deserter of the other rests in the solution of the conflicting stories of the parties. On the wife’s part it appears that after a quarrel Glynn left his home and never returned, and on his part that he went to the Wesley Hospital, suffering from rheumatism, and upon his return to the home he left, found it deserted. After the long lapse of years between the separation of the parties and the trial, it may well be that the memories of the parties had become somewhat dimmed as to the events causing the parting of the ways between them, yet a woman would be more apt to have deeply engraven upon the tablets of her memory the incidents and events constituting the tragedy in her career, which set her adrift upon the world, to care, unaided by her husband, for herself and her children, than would the husband, who shifted all his matrimonial responsibilities and duties upon his wife. His refraining from attempting to have the marriage bond dissolved by an application to the courts for a divorce on the ground of desertion, may be reasonably inferable to his consciousness of the fact that he, and not his wife, was the guilty party in their separation. His contradictory statements in relation to "his being in the hospital at all, and his failure during all these years to make any attempt to get his family together again, his callousness as to their condition, his failure to contribute to their support, and his studied attempt to conceal his property and prevent" its being made liable to contribute to the support of his wife, may,—as they undoubtedly did,—have caused the chancellor to give but little credence to his testimony.

We think the greater weight of the evidence establishes that appellant in June, 1874, wilfully and without just cause, deserted appellee and their children, and that appellee has ever since lived separate and apart from appellant without her fault. We do not doubt but that during most of the time since June, 1874, either'party could have found the other with a little effort. Appellee removed to Denver, Colorado, three years after her desertion, where she had a sister living, and appellant has been in Chicago all the time. This is partly borne out by the admitted fact that appellant for about three years maintained his daughter Mary at the Washington Heights convent. She came from her mother at Denver to go to the convent, and at the time she quit the school and returned to Denver more than twelve years had passed since the father and mother had ceased to live together. The daughter Anna visited her father and was maintained by him for several months eight years before the bill was filed. Yet appellant during none of the time made any provision for his wife, or attempted to bring about a resumption of their marital relations.

That appellee has been lax in not asserting her rights until the lapse of thirty-two years, which, in some circumstances, might be sufficient to bar her from obtaining the relief sought, cannot be denied. However, her right to relief must rest in facts sufficiently convincing to overcome the laches thus clearly imputable to her. Appellant was not in any business during these thirty-two years which indicated that he was possessed of any means; repeated letters to him failed of response; a telegram telling him of the death of his daughter Mary remain unnoticed. Mrs. Glynn excuses herself from sooner asserting her right to a separate maintenance by saying, in her testimony, “I didn’t know 'what he was doing, so I tried all I could to take care of myself and children. Mr. Glynn never put a dollar in property, and what was the use of trying to make him support me ? He had tlie money in his pocket, and I couldn’t get at it.” When she discovered lie had property under the Healy will, which could be reached, she at once asserted her right to compel her husband to support her. In the meantime, while sick in body, appellee, when no longer able to work, was supported by her only surviving child, Anna Corsepius. Appellant told his daughter Anna that he had money, but did not want her mother to have any of it. On the witness stand he testified that he had been buying and selling horses on commission and on his own account, and “made money and lots of it,” yet he refused to tell what he had done with his money. While he could not secrete or hide his interest in the Healy real estate, yet he was obstinate in testifying about the value of his interest in it and minimized its value as best he wras able. He admits he had money in a safe deposit box, but claims that it was not his. Yet he fails to disclose the person to whom the money belonged. In his testimony he says he is not a “spender” or a “drinking man” ; yet having made money, as he tells us he did, he fails to account for his lack of possession of any at the time of the hearing.

We think the facts recited sufficiently potent to exculpate appellee from laches. An earlier appeal to the courts would evidently have been barren of financial aid.

Appellant has escaped the performance of the duty cast upon him by the law and good morals for thirty-two years, and from his whole testimony, with the reasonable inferences to be drawn from it, the chancellor was justified in fixing the allowance at the amount which he did. If it is too high and disproportionate to the wealth of appellant, the fault is his own, chargeable to his secretiveness and lack of frankness as a witness, and his apparent evasion in failing to honestly disclose his financial condition.

The amount of such an allowance rests largely in the discretion of the chancellor, and as we cannot say from the proofs that the limit of such discretion has been exceeded, we do not feel authorized to disturb it. Johnson v. Johnson, 125 Ill., 510; Harris v. Harris, 109 Ill. App., 148; Porter v. Porter, 162 Ill., 398,

We think appellee has exculpated herself from the doctrine of laches as applied to her long continued failure to call upon the courts to compel her husband to support her. The effort would have been fruitless until the bequest under the Healy will became operative. Diligence, when diligence could be made effective, was exercised. When appellant could be proved to possess property, the action was immediately started to subject that property to her claim for support. The laches has been excused.

There is no Statute of Limitations which runs against the liability of the husband to support his wife. Desertion and neglect, however long continued, will not, in a proper case, relieve from the responsibility cast upon the husband by law to maintain and support his wife while the marital relation continues, and, as said in Carr v. Carr, 33 N. E. Rep., 805, “If the plaintiff has by some means eked out an existence in the past, she cannot compel the defendant to compensate her for the cost. * * * The effort here is to obtain nourishment and means of sustenance for the present and future.” So in this case it is the present and future support that is provided for by the decree, and not compensation for the cost of support in the past. Directors of the Poor v. Mercer, 6 Pa. L. J. R., 75.

Appellee in her old age and infirmity, unable as she now is, further to support herself, is entitled to a separate maintenance from her husband, in accord with her necessities and his ability to provide. There is no proof in this record justifying the conclusion that appellee either sanctioned the desertion of appellant in the first instance, or has since acquiesced in it. She was as helpless to prevent the desertion as she has since been to bring about a reconciliation, and just as powerless to earlier compel him to pay support money. The authorities cited by counsel for appellant on this point have no application to the facts found in the record.

There is an entire lack of evidence to support the allowance of solicitor’s fees. Under well-settled legal principles the decree as to such allowance cannot be sustained. The court cannot take judicial notice of either the value or extent of legal services rendered in cases where an allowance therefor is permitted by the statute. We must look to the record for evidence to sustain it, and if none is found, the decree as to such allowance is erroneous.

In Metheny v. Bohn, 164 Ill., 495, the rule is announced that no allowance for solicitor’s fees can be sustained where the record fails to disclose the service performed by the solicitor and the value thereof, and it must appear that the fee is a usual and customary fee in like cases. On this subject the court say, in Reynolds v. McMillan, 63 Ill., 46: “In fixing the amount of a reasonable fee the examination should be directed to what is customary for such legal services where contracts have been made with persons competent to contract, and not what is reasonable, just and proper for the solicitor in the particular ease. The inquiry should be not what an attorney thinks is reasonable, but what is the usual charge.”

The court say in Metheny v. Bohn, supra, concerning that which is essential for the consideration of a court of review on such allowances, “When the question is considered in an appellate court, although it is one about which the court is well qualified to form an opinion, and upon which it will exercise an independent judgment) the evidence is necessary to a proper review of the allowance, for the purpose of showing what the ordinary and usual charges of solicitors for like services are in the court where the allowance was made, in cases where such fees are the subject of contract between solicitor and client. The allowance in this case being without any support in the record, cannot, under the "well established rule, be sustained.”

In Hunter v. Hunter, 121 Ill. App., 380, an allowance of solicitor’s fees in a separate maintenance cause was held erroneous for the sole reason that no evidence to support it was in the record. Goodwillie v. Millimann, 56 Ill., 523; Albright v. Smith, 68 ibid., 181; Spring v. Collector of Olney, 78 ibid., 101.

The latest expression on this subject by our Supreme Court is found in Reed v. New York Exchange Bank, 230 Ill., 50, where the court say: “The allowance of $100 damages as attorney’s fees in this case is wholly unsupported. There is no evidence here whatever that appellees had paid or become liable to pay any attorney’s fees in and about the dissolution of the injunction. If no damage has been sustained, none ought to be awarded, and this can only be determined from evidence.”

The decree, in so far as it finds that appellee is living separate and apart from her husband without her fault, and allows for her future support $50 a month, is sustained by the proofs and is affirmed; but for the error indicated in the allowance of $200 for appellee’s solicitor’s fees, that part of it will be reversed and the cause remanded, for further proceedings conformable to this opinion.

Decree affirmed in part and reversed and remanded in part.

Per Curiam.

Subsequent to the filing of the foregoing opinion, the appellant, by leave of court, withdrew the following assignment of error:

“9. The trial court erred in ordering and decreeing that the defendant pay to the complainant as and for the fees of her solicitors the sum of two hundred dollars within ten days from the entry of the decree.”

Whereupon, the order and judgment of this court heretofore entered was vacated, and on motion of the appellee the decree of the Circuit Court is affirmed.

Affirmed.


text:
    Swift & Company v. Frank Miller.
    Gen. No. 13,660.
    1. Master and servant—how question of whether a child under sixteen years has been employed at extra-hazardous employment determined. Whether a child under the age of sixteen years has been employed at extra-hazardous employment in violation of statute, is a question of fact to be determined by the jury. Held, in this case, that a child under the age of sixteen years was employed at extra-hazardous employment, it appearing that his duty was to run soiled rags through a ringer.
    2. Master and servant—when doctrine of assumed risk does not apply. The doctrine of assumed risk has no application where recovery is sought for injuries sustained by a servant, a child under sixi en years, by virtue of his having been unlawfully employed at extra-hazardous labor.
    3. Evidence—when expert testimony not competent. Expert testimony is not competent to determine the question as to whether a particular employment is extra-hazardous within the meaning of the statute prohibiting the employment of children under the age of sixteen years at extra-hazardous employment.
    4. Ordinary care—how question of exercise of, determined, with respect to child fourteen years of age. What is due care in a boy of the age of about fourteen years must be determined within the limitations of his actual knowledge of the dangers of the position in which he is placed and of the existence of which he has not been informed.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Winston, Payne & Strawn, for appellant; John Barton Payne, John D. Black and Walter H. Jacobs, of counsel.
    Walter A. Brendecke, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action to recover damages for a personal injury to appellee, a minor, which happened to him when he was a little more than fourteen years of age, and while in the employ of appellant. A trial before court and jury resulted in a verdict and judgment for $1,700. Sufficient objections were made and exceptions preserved to the rulings of the trial court calling for our review of the errors assigned and arguments urged for a reversal of the judgment.

Counsel for appellant say in their statement of the case, at the commencement of their brief and argument: “This record presents the single question, whether it was unlawful to employ a boy over fourteen, years of age to run soiled rags through a wringer. * * * Whether the employment of appellee at the work in which he was engaged was a violation of section 14, chapter 48, Starr & Curtis Ann. Illinois Statutes, Supp., 1902.”

This section runs: “Ho child under the age of sixteen years shall be employed or permitted or suffered to work by any person, firm or corporation in this State at such extra-hazardous employment whereby its life or limb is in danger or its health is likely to be injured or its morals may be depraved.”

This raises for our determination but two questions: First, was appellee employed to work at the wringer which injured him ? and, second, if he was so employed, was such employment extra-hazardous, and therefore a violation of the statute supra f

These are questions of fact to be solved from the evidence found in the record.

The record develops that Frank Miller, when a little more than fourteen years of age, was employed by appellant in July, 1902, in doing what the slaughter house people call “pulling skivers,” which is the putting of sticks or skewers into the breasts of sheep in the process of dressing them for the market; also in carrying clean rags to be used in wiping the inside of the sheep and returning these rags when foul to be cleaned by being dipped into scalding water and run through a wringer. At the time Miller worked at this employment a colored man was in charge of the cleansing process through the wringer. Miller had never worked at a machine before working the wringer at which he was hurt. For ten months prior to his employment by appellant he had worked at the Armour plant cutting soap. At the time of Miller’s injury he had worked for appellant about one week and three days. At the end of the week the colored man who worked the wringer left, and Rogers, who hired Miller, put him to work on the wringer cleansing rags in place of the colored man who had left. Rogers instructed Miller how to proceed with this work. The rags were dipped into hot water and then thrown onto a board in front of the wringer, which consisted of three rollers through which the rags were run, squeezing the water out of them in the process and fitting them for use again in wiping sheep. It seems that while the rags were thrown onto the board in front of the machine, they had to be thrown in such a way that the thrower must not let go of the end retained between his •thumb and finger until the rag is caught in the rollers. Unless it was so caught, it would not go through the rollers, and failing so to do, the rag had to be thrown over again. Rogers, a "witness for appellant, testifies that in instructing Miller about this work he put 50 or 60 rags through the wringer; that when he found Miller could throw them all right he left him. On the first day Miller worked throwing the rags, Rogers says he caught him in the afternoon trying to shove a rag into the rollers with his hand, the rag not having caught when thrown; that he reproved him for his recklessness and threatened to discharge him if he caught him doing such a thing again, and cautioned him to call on him if there was any trouble. It seems that the ends of these rags become frayed by use. In throwing one of the rags frayed at the end, Miller was drawn along to the •wringer, and before he could disentangle his fingers they were caught in the roller and injured. It is contended- that Miller was not put to work on the machine, but simply to stand off three feet from it and throw the rags at it. But we think the contention refuted by appellant’s own proof. The object to be accomplished through Miller’s work was to get the rags through the rollers of the wringer. The objective point of his work was the wringer. Rogers testifies that Miller “worked on the machine two full days from Friday to Monday before the accident happened. On Friday afternoon I was going up, and the boy—Miller—was operating the machine.” We think the jury were correct in concluding as a fact sustained by the proofs that Miller was working at the wringer.

On the question of whether such employment was “extra-hazardous” appellant put forward John Staats and another witness as experts, who testified, in answer to hypothetical questions, that such employment was not “extra-hazardous” for a boy of Miller’s age. The testimony of these witnesses was admitted without objection. ¡Nevertheless, we do -not regard it as competent. The case did not call for expert testimony. Whether employment at the wringer was “extra-hazardous” for a fourteen-year-old boy was a fact to be found by the jury from the physical conditions of the wringer and the surroundings encountered by the boy in his working with it. This did not involve a question of skill, science or trade calling for expert knowledge. City of Chicago v. McGiven, 78 Ill., 347. Aside from this expert testimony— which the jury may have disregarded as not being in harmony with the evidential facts as to the manner of the operation of the machine in its environment—they were warranted from the facts plainly deducible from the testimony of the other witnesses in finding that the employment at the wringer of a fourteen-year-old boy, unskilled and unacquainted with the manipulation and working of machinery, was extra-hazardous employment, of the character inhibited by the letter and spirit of the statute. With this conclusion we see no reason to disagree.

The cases cited by counsel on the doctrine of assumed risk have, in our judgment, no application. The right to recover here rests for its support in a violation of the statute first quoted. The jury have found—as do we—that the employment of the Miller boy was in violation of its express terms. This being so, the liability follows without any reference to the doctrine of assumed risk and, in fact, in disregard of its sheltering protection as a defense. But for the statute, it is true, the doctrine of assumed risk might be of controlling force, although of this we have much doubt in the light of the proof that Miller was employed to do work not attended with any danger, from which safe employment he was taken and put to work on a dangerous machine, with but little instruction as to the dangers confronting him, and the further fact that as to the particular hazard which he encountered, to his injury, he received no cautionary advice of any kind. We judge from the evidence that a workman like the witness Rogers, Miller’s “boss,” must have known that the frayed edges of the rags were liable to catch in the boy’s fingers while throwing them, the effect of which would be to suddenly jerk the boy forward and the pulling of his fingers into the rollers of the wringer, thereby exposing him to severe injury.

This certainly is not a case of assumed risk in any of its aspects, for the dangers encountered were neither incident to Miller’s employment, nor could they be known or understood by him in the exercise of due care. What is due care in so young a boy, must be determined within the limitation of his actual knowledge of the dangers of the position in which he is placed and of the existence of which he had not been informed. As said in Pressed Brick Co. v. Reininger, 140 Ill., 343, citing Wood on Master and Servant: “The master must warn such young servants against the dangers to which their employment exposes them, and he must put this warming in such plain language as to be sure that they understand it and appreciate the danger.” Surely when Rogers saw Miller trying to push a rag into the rollers with his hand, he might have regarded such a rash act as cogent evidence that this immature boy, unaccustomed as he was to work among machinery, had no appreciation of its dangers. It is clear that Miller’s injuries resulted from a violation by appellant of the statute supra.

There being no error in this record adversely affecting the rights of appellant, the judgment of the Circuit Court is affirmed.

Affirmed.