text:
    William Ballentine, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 15,084.
    1. Appeals and errors—duty of Appellate Court upon review of evidence. The duty of the Appellate Court, upon an appeal by a defendant from a judgment for plaintiff when errors are assigned which require the evidence to he weighed, is not “to review the testimony and determine upon which side is the greater weight of the evidence” hut its duty is to review the evidence and determine whether the plaintiff has established his case by a preponderance of the evidence.
    2. Negligence—at railroad crossings. It is possible in point of law that at the crossing of a railroad and a public highway the railroad company can create such a situation or condition or such circumstances by its trains, the placing of its cars or otherwise, that the speed of a train passing over the crossing although not so great as to be prohibited by statute or ordinance, may yet be an act of negligence.
    3. Negligence—what not proximate cause. Seld, under the evidence in this case, that the act of the parent of the plaintiff, who was an immature child, in sending such child upon an errand which brought him into a place of danger, was not the proximate cause of the injury suffered; that at most it was but a contributing cause which did not relieve the defendant from the liability established against it by the negligence shown by the evidence.
    4. Instructions—when upon question of care by parents of plaintiff properly given, j If it appears that the negligence, if any, of the parents of the plaintiff, who was a child of immature years, was not the sole cause of the injury to such child, it is proper for the court to instruct the jury that it was “entirely immaterial what care the plaintiff’s parents used” etc.
    5. Instructions—when upon damages m action for personal injuries by minor will not reverse. Notwithstanding an instruction in such a case is broad enough to have entitled an award upon account of loss of earning capacity by a minor during minority, yet such instruction will not reverse if the parents of such minor have individually participated in the prosecution of the action, as thereby such parents estop themselves from recovering damages upon their own accounts.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.
    Certiorari denied by Supreme Court (mailing opinion final).
    Calhoun, Lyeord & Sheean, for appellant; John Gr. Dbennan, of counsel.
    Francis J. Woolley, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

Between 7:30 and 8 o’clock in the morning of January 30, 1907, plaintiff’s right leg was so crushed above the ankle that amputation, at a point about five inches below the knee, became necessary. He was born April 21, 1900. He, therefore, lacked a little less than three months of being seven, years of age when injured. His father, Charles Ballentine, brought suit on his behalf against the defendant for causing the injury. Hpon a trial by jury, had in May, 1908, a verdict was returned in favor of plaintiff for $7,375 and judgment was rendered upon that verdict. This appeal is prosecuted from that judgment, by the defendant.

Plaintiff claims that in attempting to cross, from west to east, the north and south right of way of defendant, upon the north sidewalk of 80th court or place, which.street crosses defendant’s right of way, he was run over by a locomotive of the defendant. At 80th court and the vicinity thereof the right of way is 50 feet in width. There is a space about .ten feet wide in the center of the right of way, covered with cinders. This space has been used to some extent by persons walking north and south, so as to make a sort of pathway there. There is a railroad track of the defendant on each side of the space, which are the only railroad tracks in the right of way at this point. The west track is used for south bound trains and the east track for north bound trains.

There is no testimony by any eye witness other than the plaintiff, as to the manner in which he was injured, for he was the only eye witness of the occurrence. He was slightly over eight years of age when he testified. He testified that as he came from the west upon the north sidewalk of the crossing and was about to cross, he saw a passenger train standing still at the Cheltenham Station, and therefore stopped and stood still and waited before crossing, as he repeatedly puts it, until the “passenger train got by and then I ran across, and the engine of the freight train hit me and knocked me down and ran over me.” Cheltenham Station is over 900 feet, or about three blocks, north of where plaintiff was. On cross-examination he stated that he “ran pretty fast” when he attempted to cross and that he did not see the freight train and did not hear any bell or whistle. He also testified that before he was struck he did not see the locomotive which struck him and that he knew nothing from the time he was struck until when he saw a little of the end of the freight train which had struck him as it reached Cheltenham. The passenger train involved was one scheduled to leave Cheltenham at Y :30 o’clock and the freight locomotive involved was one going backwards, hauling ten or twelve freight cars, and running upon no scheduled time at any point. The freight engineer stated he did not know whether the freight cars were empty or loaded and it does not appear which was the fact.

The next we learn of the plaintiff from the evidence is that his cries were heard by one of the witnesses, Hiss Dommer. When she heard the cries, she was in her bedroom in a house which fronted north on 80th street to the east of the right of way. Hearing the cries, she looked out of the window and saw plaintiff lying in the space between the two tracks west of and just opposite her window, that is, about 25 or 30 feet south of 80th street.

From the center of 80th street, which is 60 feet wide, south to the center of 80th court, which is a street 35 feet wide, the distance is about 330 feet. This makes the distance approximately 250 feet from the place where plaintiff was run over, according to his testimony, to the place where he was found. Unless there is in the record lawful justification for legal presumption, that is, circumstantial evidence, as to the means, manner or method whereby plaintiff reached the place where he was found from the place where, according to his testimony, he was run over, the record fails to disclose how he reached the former place from the latter, for there is no direct evidence in that regard. Hone of the train men learned of the occurrence until about six o’clock in the afternoon of the day plaintiff was injured. During the morning of that day, before he was injured, snow had fallen, hut not much more than sufficient to cover the ground. There is evidence, undisputed, that there was a trail from drops of blood, beginning at a point estimated as being from ten to twelve feet north of the north sidewalk of 80th court and running, practically, "continuously, from that point to where defendant was found. This line of stains or drippings of blood ran upon the west rail of the east track or within about twelve inches thereof.

When Hiss Dommer, as stated, discovered plaintiff, she called her mother’s attention to him, and Mrs. Dommer immediately went to his assistance. There was then no train in sight. Two other ladies, Mrs. Whitcomb and Mrs. Oollis, came up to Mm about the same time as Mrs. Dommer. When Mrs. Dommer came to him, she asked him what the matter was, and he replied that a train had run over his foot and then asked her to take him to his home. Plaintiff’s home was then at 285 81st street, which was the second house west of the right of way, fronting south. Mrs. Dommer picked him up, held him, as she indicated, in her arms, with his head upon her left arm toward the east and carried him south in the space between the tracks, without Ms leg or foot being in anywise bound up, until she came near 80th court where they were met by a Mr. Pearson. Pearson then took plaintiff and carried him to his home. Pearson testified to seeing the blood stains referred to, which led to a large pool of blood where plaintiff was found by Mrs. Dommer. He also testified to an appearance in the snow, as if something had dragged along beside the track, where the blood stains were. His description indicates the dragging of a garment or of part of a garment rather than the body or any portion of the body of a human being. It can be reasonably inferred from the evidence, if it be assumed that plaintiff was struck at the 80th court crossing by the freight locomotive, that he was carried by the locomotive to where Mrs. Dommer found him. But it is entirely a matter of conjecture whether he ivas caught upon some place or projection upon the locomotive, as, for instance, a step such as is found upon the ends of some locomotives, or, in the exercise of the instinct of self-preservation, he caught hold of and clung to some such place or projection until he could hold on no longer. Neither party has furnished any evidence as to the physical condition of the back end of the locomotive, which ran backward, in respect to the existence of any place or projection whereon he may have been caught or which he may have caught hold of. Hpon the evidence of this record, it does not appear that it was impossible that plaintiff was carried by the locomotive. The trail of blood rather indicates that he was. It may reasonably be inferred that while carried he was not fully conscious. The evidence does not totally exclude the possibility of his having sustained some bruise or contusion upon his person when struck, but there is no evidence of any serious bruise or contusion other than the injury to his leg. That plaintiff should have been struck and carried the distance stated without other serious bruise or contusion is a remarkable occurrence, but not “miraculous” as defendant argumentatively characterized it. Plaintiff’s statement that when struck he was hnoched down may be regarded as au inaccurate description by him, a boy, of the result of his being struck.

The theory of. plaintiff’s case is that by the passing of the trains (the passenger train going south and the freight train going north), meeting, in the manner stated, at the crossing, a condition somewhat more than ordinarily dangerous to a person crossing the tracks was created by the defendant at the crossing of the railway and the public highway at 80th court; that under such circumstances ordinary care required the exercise of greater caution than otherwise both on the part of the railroad company and a person crossing in order that the person crossing’ should not be injured; that defendant was negligently (and also contrary to statutory enactment and municipal ordinances) running the freight train, without ringing any bell or sounding any whistle; that defendant was running the freight train at a negligent rate of speed, the circumstances then present being considered; and that defendant ran the freight train at a rate of speed prohibited by statute and by ordinance. In view of the plaintiff’s age we may not find him to have contributed to his injury by negligence. The only question, upon the facts, then is: Was the jury justified in arriving at the conclusion that the defendant was negligent ?; or, in an appeal by a defendant from a judgment in favor of the plaintiff, perhaps more accurately stated: Was it shown, by a preponderance of the evidence, that the defendant was negligent? In such case as this the duty of this court is not, as appellant puts it, “to review the testimony and determine upon which side is the greater weight of the evidence,” but it is to review the evidence and determine whether plaintiff has established his case by a preponderance of the evidence. That is the duty of this court when errors have been assigned which require us to weigh the evidence, where the judgment appealed from is in favor of the plaintiff.

It is, unquestionably, possible in point of law, that at the crossing of a railroad and a public highway the railroad company can create such a situation or condition or such circumstances, by its trains, the placing of its cars, or otherwise, that the speed of a train passing over the crossing, although not so great as to be prohibited by statute or ordinance, may yet be an act of negligence. Whether' in this particular instance there be such common law negligence, was a question wholly for the jury, provided the facts shown tended to prove such negligence. Besides other questions of negligence on the part of defendant in the case at bar, there is a question of such negligence. We think that there is sufficient evidence in the record, tending to show such negligence, to entitle the plaintiff to have the jury pass thereupon." There is, furthermore, pvidence that the freight train had no bell ringing or whistle sounding in passing over the crossing and that it ran over the crossing at a higher rate of speed than permissible under the law.

The evidence is, as between the parties, irreconcilably in conflict in respect to all these questions; and, indeed, the evidence of neither of the parties is at all times consistent with itself. Questions as to the veracity of witnesses arise frequently; and very often questions arise as to the knowledge and opportunity of observation, by particular witnesses, as to that concerning which they have testified. The correctness of the testimony of some of the witnesses in regard to whether one or the other of the two mentioned trains was crossing 80th court at a particular moment of time, depends either upon whether the passenger train left Cheltenham Station on time or whether another train left South Chicago on time, that is, upon something or other than the direct knowledge or observation of time and the occurrence by the testifying witnesses. This last mentioned weakness in the testimony is mainly, if not entirely, in the evidence of the defense. But the evidence on behalf of the plaintiff is not without weakness in some instances. A principal question in the case for our determination is the question whether the plaintiff, in his own testimony, truthfully presented the manner in which he was injured. While he is not directly contradicted by any of the train crew the very circumstance that at a crossing none of the several members of the train crew on the freight train, including the engineer, fireman, and switchman, who were necessarily more or less on the look out observed him is itself remarkable. According to the evidence the locomotive engineer was himself on the look out on the west side of the locomotive—the side which must have struck plaintiff. The plaintiff frequently failed to answer questions asked of him and which, his age being considered, it appears he should have answered. His failure to answer some of the questions asked does not leave the best impression.

We have, however, carefully examined and weighed the evidence and cannot say that the plaintiff has not established, by a preponderance of evidence, one or more of the charges of negligence.

The engineer upon the freight train, who called at the hospital and saw the plaintiff the day after the accident, testified that, in passing north in his locomotive the morning plaintiff was injured, he saw and spoke to the plaintiff at a point 15 or 100 feet north of the 80th court crossing. This evidence tends to totally destroy plaintiff’s theory of the manner of his injury. In view of all the other evidence we are, however, inclined to believe the engineer mistaken in regard to the identity of the boy he saw. He had but slight opportunity of observing the boy he did see and, when the evidence is considered altogether, we think there is room for the conclusion the jury arrived at in this respect, as indicated by the verdict.

It appears as facts not in dispute that the plaintiff’s father, an employe of the Illinois Steel Company who worked nights, returned home from work at about 1:30 o’clock on the morning plaintiff was injured. When the father reached home, plaintiff asked if he might go and 'get the morning paper. The father assented to this request and gave plaintiff the necessary money. Other mornings plaintiff had gone for the paper and he had always gone to a store kept by a Mrs. Dowling. Her store was north and east of Cheltenham Station. Defendant contends that it was entitled to a peremptory instruction, directing the jury to return a verdict in its favor upon this undisputed evidence. This contention, it is argued, is made because, as a matter of law, it appears that the proximate, efficient and producing cause of plaintiff’s injury, and more, the sole cause of plaintiff’s being injured, was the negligence of the father in sending a child, so young as to be incapable of caring for himself, into a place of known danger, and, further, it is argued, this is not a case of mere passive omission to keep an immature child constantly under supervision, on the part of the parents, but one where the child was sent upon the father’s errand and, in effect, sent or directed into the danger whereby he was injured. It is contended that this was a breach of the duty, owing from a parent'to an immature child, not to send him into danger, and that this breach of duty was the proximate cause of the injury.

Defendant does not seek to impute to the plaintiff negligence of one of the parents, which the law of Illinois would not permit (Chicago City Railway Company v. Wilcox, 138 Ill. 370), but endeavors to show that negligence of another than the defendant, namely the parent, was the proximate and efficient cause of plaintiff’s injury. In this connection defendant’s counsel, after asserting that there can be no doubt but that on the part of the plaintiff’s parents it was a breach of the duty they owed the plaintiff to send him upon “the railroad premises,” further assert, “nor can there be any doubt that the negligence of these parents contributed to the child’s injuries.” We fail, however, to see any merit or any argument in the slightest degree favorable to defendant in either of these assertions. The place where plaintiff was injured was a street crossing—public highway—and not the railroad’s premises. If there was negligence on the part of the parents in the respect argued, such negligence only contributed to the negligence of the defendant in causing the injury.. Had the negligence of the defendant not intervened, there would have been no injury. If, then, the parent’s negligence contributed and concurrently, together with defendant’s .negligence, caused the injury the plaintiff received while upon the highway and while crossing the railroad’s right of way, such contributing and concurring negligence is not a defense which can be interposed by the present defendant, which, in such case, woxild be a joint tort feasor. Unless the condition of this record is such that the jury would have been justified in exonerating the defendant on the ground that negligence by the parents, or one of them, was the sole proximate cause of plaintiff’s injury, that is, that plaintiff was injured without intervening or concurring negligence by the defendant, it is immaterial, so far as defendant is concerned, whether or not one or both of the parents were negligent. We have already expressed our view to be that upon the evidence in this record we do not feel justified in disaffirming the conclusion, arrived at by the jury and the trial judge, that negligence of the defendant occasioned the injury to the plaintiff. It is clear that there was not any negligence on the part of the parents, or either of them, in causal proximity closer to the injury than the negligence of the defendant. It having been determined that there was such negligence by the defendant, the possibility that the parent’s negligence was the sole efficient cause of the injury, a further contention by defendant, is eliminated from the case. This being so there was no error in giving plaintiff’s second instruction, which is as follows:

“The question whether the parents of the plaintiff used care or not for the plaintiff’s safety is not involved in this case. It is entirely immaterial what care the plaintiff’s parents used or did not use in that respect, and that question should not be considered by the jury.”

This instruction was a proper instruction in the case, so long as the evidence was such as to justify a conclusion that' the defendant’s negligence was either the sole producing cause of the injury or that it was a contributing proximate cause thereof. The fact that the defendant “made claim” that the sole cause of the injuries sued for was negligence of some one other than the defendant is immaterial. There is, in this record, no evidence tending to show that negligence of the parents was the sole proximate or efficient cause of the injury. The giving or refusal of an instruction is determined not alone by the claim made by a party or the theory advanced, but by the state of the evidence in respect to the claim made or theory advanced, as well. In the ease at bar the giving of this instruction was proper, although the plaintiffs parents were joint tort feasors with the defendant. Whether or not they were, it is unnecessary for us to decide and that question we do not decide.

Appellant complains of the giving of instructions numbered three., four and five, which were given at plaintiffs request. The complaint is not that the instructions lay down any erroneous principle of substantive law, but that they instruct relative to “plaintiff’s case” and “his case” without in anywise defining what is meant or referred to in the use of these terms; that they use vaguely, so as to leave indefinite what is to be proven, the expression “the occurrence sought to be provedand .that they fail so to limit the jury as to require it to base a verdict upon negligence which is charged in the declaration. Were these instructions defective in the respects complained of, these defects would be cured by various of the instructions given by the court at the request of the defendant, particularly those numbered eighteen, nineteen, twenty-one, twenty-three and twenty-seven. The instructions must all be considered together and as all having been given by the court. In complaining of these three instructions, appellant isolates them from all the other given instructions.

We find no reversible error in the giving of instruction numbered eight, which is also complained of.

Appellant complains of the giving of the instruction numbered twelve. The instruction relates to the measure of damages, if defendant is found to be guilty. The complaint is that it is too broad and comprehensive in that it authorizes the jury to assess damages at a sum which will be a fair and just compensation for the injuries sustained. The argument is that, in view of the fact that plaintiff is a minor, he is not the one who is entitled to all the compensation for the injuries. In so far as his earning capacity until he attained his majority was injured or diminished by the injury he sustained, plaintiff’s father, and, in case of his death, the mother, was entitled to the proceeds of that earning capacity, and hence, whatever damage the injury occasioned in that respect the plaintiff was not entitled to compensation therefor. In other words, the proposition advanced by defendant is that when a minor has sustained injury and some one is at fault, as here, two suits must be brought in order to recover the full extent of the damages caused by the injury to the minor, that is, one by the father for the injury to the minor’s earning capacity until he has attained his majority and another by the minor for the other damages sustained. The proposition is sustained by Western Union Telegraph Co. v. Woods, 88 Ill. App. 375; Chicago City Ry. Co. v. Schaefer, 121 Ill. App. 335, and Richardson v. Nelson, 221 Ill. 254, cited by appellant. In the case at bar, however, the father of plaintiff prosecutes the suit as next friend of the plaintiff and the mother of plaintiff aids in the prosecution thereof as a witness for and on behalf of plaintiff. The father and mother thus both aided in the prosecution of the suit upon the theory whereupon it was prosecuted, namely, that, whatever the damage which was sustained by reason of the injury of plaintiff, it should be recovered by the plaintiff. Under the principle of American Car & Foundry Company v. Hill, 226 Ill. 227, the father and mother of plaintiff herein thereby estopped themselves from hereafter recovering damages from appellant on the ground that plaintiff’s earning capacity until he attained his majority was diminished by the injury he sustained. The law of res adjudicata as established and applied in this state is in complete accord and harmony with this principle of the case of American Car & Foundry Company v. Hill. Lightcap v. Bradley, 186 Ill. 510, 530.

We find no reason for disturbing the judgment of the Superior Court. The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    The People, ex rel. Marie Guy, Defendant in Error, v. Felix Janos, Plaintiff in Error.
    Gen. No. 14,834.

      Bastardy—when restriction of cross-examination will reverse. It is' error to restrict the cross-examination of the prosecutrix where the effect is to keep out evidence which might tend to show that a person other than the defendant was the father of the child of such prosecutrix.
    Error to Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 21, 1910.
    Morris Loeee and E. M. Seymour, for plaintiff in error.
    John" E. W. Wayman, for defendant in error; Frederic Burnham, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The complaining witness in this case, charges the defendant, plaintiff in error, with being the father of her bastard child. Having admitted on her cross-examination that she had stated in the presence and hearing of three persons that John, the step-son of the defendant, was the father of her child, she was then asked by defendant’s attorney: “Q. Did you ever go out with John, his son?” A general objection was made to the question and sustained by the court. This was error. The defendant was entitled to examine her fully as to her relations with John, and to draw out of her, if he could, any facts and circumstances in relation to the subject matter of her statements in order to test the truth thereof. It was material to the defense, and the refusal of the court to permit the examination was material error for which the judgment must be reversed. The record shows other rulings of the same character on the same subject, in the cross-examination of the complaining witness, which were an unwarranted denial of the right of cross-examination.

For these errors the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    David G. Geraghty, Appellee v. National Fire Proofing Company, Appellant.
    Gen. No. 14,954.
    This case is controlled by the decision in Geraghty v. William Grace Company, post, p. 309.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 21, 1910.
    Frank M. Gox and B. J. Felling-ham, for appellant.
    Kiokham Scanlan and LeBoy Bichards, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This appeal is from the same judgment appealed from in Geraghty v. William Grace Company, post, p. 309, and this case was by order of court consolidated for hearing with that case. The judgment is a joint judgment against both defendants. The judgment against the William Grace Company having been reversed, it follows that for that reason the judgment in this cause must be reversed and the cause remanded.

Reversed and remanded.


text:
    David G. Geraghty, Appellee, v. William Grace Company et al., On Appeal of William Grace Company.
    Gen. No. 15,049.
    1. Master and servant—when doctrine res ipsa loquitur does not apply. Where the declaration charges an injury resulting from the failure of the master to furnish a safe place to work or because of a negligent order given to the servant, the doctrine res ipsa loquitur does' not apply.
    2. Master and servant—when failure to inspect does not confer cause of action. If an injury results from a defective condition of the place to which the servant is assigned to work a recovery cannot be had for an injury resulting unless the defect is one which a proper inspection would have disclosed.
    3. Master and servant—when former not obligated to furnish safe place. The obligation of the master to provide reasonably safe places and structures for his servants to work upon, does not extend to buildings in process of construction while undergoing constant changes and passing successive temporary conditions, many of which must from the very nature of construction be dangerous.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus ICavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed October 21, 1910.
    Statement by the Court. David G. Geraghty, plaintiff, had judgment in the Superior Court against the William Grace Company, appellant, and the National Fire Proofing Company jointly, for $5,000 for damages for personal injuries. On June 21, 1907, the plaintiff was employed by the William Grace Company, the general contractor for the erection of the County Court House in Chicago. The National Fire Proofing Company had a subcontract with the William Grace Company to furnish and lay all the tile in the arches forming the foundations of the various floors, and all the tile work of the building.
    Appellee was a common laborer employed to tamp concrete which had been placed by the Grace Company on top of the tile arches constructed by the National Fire Proofing Company. On the afternoon of the day he was injured, plaintiff was directed to go upon the eighth floor of the building, by .the foreman of the William Grace Company, and to tamp concrete. In obedience to such order plaintiff took his tamper and went to the floor designated. The gang of men engaged in spreading concrete had the north half of the first arch on that floor covered with the usual layer of concrete. Plaintiff stepped upon the center of the north end of the arch to begin tamping. Before he had done any tamping, according to his testimony, the tile in the north row of tiles suddenly gave way, leaving the balance of the arch standing, and he was precipitated through the opening to the next floor below, falling on a pile of bricks, thereby suffering the injuries complained of. It is contended on behalf of the defendant that the plaintiff had commenced tamping before the tile arch gave way. This arch had stood about a week. All the tile placed in the arch were apparently perfect. The Grace Company exercised no supervision over the work of the fireproofing company and gave no orders to it.
    The tiles were set in cement, and the best of tile and cement were used in building the arches, and experienced men were employed. The general foreman of the Grace Company walked over the arch in question in the morning of the day plaintiff was injured, and observed the condition of the arch, which appeared to be good, and it appeared to be ready for the concrete. He saw nothing that indicated any danger.
    F. J. Canty, P. L. McArdle and R. J. Folonie, for appellant.
    Kicicham Scanlan and LeRoy Richards, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The doctrine of res ipsa loquitur, relied upon by the plaintiff, is not applicable to the facts of this case as against the defendant William Grace Company. The mere happening of the accident in the manner shown by the evidence raises no presumption that it was caused by the negligence of that company. The burden of proof was upon the plaintiff to show that his employer was negligent as averred in the declaration. That burden was not discharged by mere proof of the accident. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; Chicago & Northwestern Ry. Co. v. O’Brien, 132 Fed. Rep. 593; Patton v. Texas & P. Ry. Co., 179 U. S. 658; Northern Pacific Ry. Co. v. Dixon, 139 Fed. Rep. 737; Chicago Union T. Co. v. Giese, 229 Ill. 260; National Biscuit Co. v. Wilson, 82 N. E. Rep. 916; Quincy Mining Co. v. Kitts, 42 Mich. 34.

Every count of the declaration avers that the building was in process of erection and that the defendant William Grace Company failed to furnish the plaintiff a reasonably safe place to work. In two of the counts a negligent order to the plaintiff to work in a place in the building known to the defendant to be unsafe is averred in connection therewith.

Plaintiff’s injury was clearly due to some weakness or defect in the construction of the arch. What that defect was, whether in defective tile and material used or in bad workmanship, the evidence does not disclose. The evidence does not show that the defendant Grace Company had any knowledge of any defect or weakness in the arch, or ought to have had such knowledge, or that it had neglected any duty to the plaintiff, or violated any duty to him in ordering him to work at a place known by it to be unsafe. The defect in the arch may be inferred from the fact that the row of tiles fell, assuming that the plaintiff had not commenced his work of tamping, and did not break the tiles by tamping upon them; but it does not appear that an inspection of the arch by the defendant would have disclosed the defect or have informed it of the weakness because of which the tiles gave way. Before a court or jury would be justified in saying that defendant’s negligence in failing to inspect the arch was the cause of plaintiff’s injury, the evidence must show that the fault or defect in the arch was one which a proper inspection would have made known to it. Sack v. Dolese et al., 137 Ill. 129. However, there is no averment of failure to inspect made in the declaration. The • only evidence in the case on this point was offered by the defendant, Grace Company, to the effect that its general foreman went over the arch that morning and saw nothing to indicate dangér; that the arch was all clear and ready for concrete. So that upon the assumption of the theory of the declaration contended for by appellee, the evidence fails to show a violation of any duty which the law imposed upon appellant.

We do not think, however, that the obligation of a master to provide reasonably safe places and structures for his servants to work upon, extends to buildings in process of construction while undergoing constant changes and passing successive temporary conditions, many of which must from the very nature of construction be dangerous. Falkeneau v. Ginley, 131 Ill. App. 399; McCain v. Kingsley, 126 id. 165; Richardson v. Anglo-American Provision Co., 72 id. 77; Village of Montgomery v. Robertson, 229 Ill. 466.

Furthermore, the evidence shows that the National Fire Proofing Company, which constructed the arch in question and furnished the materials therefor, was an independent contractor and the arches were to he turned over to appellant under the inspection of Holabird & Boche, architects for the building, as complete arches so far as the tile work was concerned. We are unable to discover any principle upon which the responsibility of appellant attaches for either the negligence, if any, of the Fire Proofing Company in constructing the arches, or for negligence, if any, in using defective tile. Wittenberg v. Friederichs, 40 N. Y. Supp. 895; Foster v. City of Chicago, 197 Ill. 264. It is, of course, conceded and asssumed that if the negligence of each of these defendants directly concurred in producing the injury complained of, both would be liable, and they would be jointly liable. Consolidated Ice Machine Co. v. Keifer, Admr., 134 Ill. 481. But, as we have stated above, we do not find that the evidence shows any negligence charged in the declaration on the part of appellant.

In this view of the case it is unnecessary for us to consider or to decide the alleged errors in instructions urged upon our attention.

The judgment as to this" appellant must, therefore, be reversed with a finding of facts.

Reversed with finding of facts.


text:
    Charles Hagmann et al., Appellants, v. W. G. Schoelkopf, Appellee.
    Gen. No. 15,145.
    1. Continuance—when denial not ground for reversal. The action of the court in denying a motion for a continuance predicated upon the absence because of illness of one of the parties to the cause will not reverse where the opposite party admitted that such person if present would testify to the facts set up in the affidavit for continuance.
    2. Trial—when argument of counsel improper. Held, that while it was error to allow the attorney of one of the parties to argue to the jury as to the conduct of the justice of the peace on the trial before him, yet that such error being trivial would not reverse.
    3. Judgments—when not void for uncertainty. Mere clerical errors will not vitiate a judgment nor will a judgment be held void where its certainty is apparent from an examination of the entire record.
    4. Appeals and errors—when merits of controversy not subject to review. In the absence of an exception preserved in the bill of exceptions to the action of the trial court in overruling a motion for a new trial, the merits of the controversy are not preserved for review.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Kichard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.
    Maecellus W. Meek, for appellants.
    E. A. AbqbjS", for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was commenced before a justice of the peace, and by appeal from the judgment rendered there it was removed to the Circuit Court. On the trial in that court a judgment was entered for the defendant for $104.63, being for defendant’s set-off $86.64 with interest, and plaintiffs prosecute this appeal to reverse the judgment.

It is urged that the trial court erred in refusing to grant plaintiffs’ application for a continuance on February 19, 1908.

It appears from the record that when the cause was called for trial on February 18, 1908, a motion was made by the plaintiffs to continue the cause on the ground that Charles Hagmann, one of the plaintiffs, was ill. In support of the motion a physician’s certificate was presented to the court dated February 18, 1908, as follows: “Chas. Hagmann is ill with la grippe and cannot leave the building. He has a high fever. E. E. Smith, attending physician.” The court granted a continuance of the cause until the next day-on terms. On February 19, 1908, the case was again called for trial, and plaintiffs moved the court for a continuance and presented the same physician’s certificate in support of the motion and also the affidavit of G. E. Mead as follows:

“Affiant deposes that he is agent and bookkeeper for plaintiffs ; that Charles E. Hagmann is the only member of plaintiffs’ firm familiar with all the circumstances of this cause and that said Hagmann and this affiant were the only witnesses who testified at the trial of this case in the Justice Court; that said Hagmann, if able to attend this trial, would testify that defendant occupied plaintiffs’ office and shop for six months or more in 1903 and agreed to pay rent for same and also .agreed to pay for light and fuel. Hagmann would also testify that plaintiff furnished to defendant certain material and that there is now due to plaintiffs from defendant $75 after deducting defendant’s credits.

That Hagmann would testify there is now due to plaintiffs $15 for commission on the sale of defendant’s trimotor.

That upon plaintiffs procuring a purchaser for said trimotor, defendant took from plaintiffs’ charge the consummation of said sale and accepted different terms than those agreed upon; that plaintiffs have a good and meritorious cause of action and that same will be irreparably prejudiced if said Hagmann is not present at the trial thereof, and that the foregoing facts cannot be proved, by any other witnesses; that affiant knows of his own knowledge that Hagmann is ill and cannot leave the building without danger to his health.”

The defendant admitted that Hagmann would testify to the facts set up in the affidavit, if present. The motion was thereupon denied. We do not think the court erred in denying the motion for a continuance.

We think it was error to allow the defendant’s attorney to argue to the jury as to the conduct of the justice of the peace on the trial before him. This had nothing to do with the issues before the jury. But the error was trivial and not reversible.

It is urged that the judgment rendered in this cause against the plaintiff, when there were two plaintiffs, is void for uncertainty. The judgment is certain as to the person in whose favor it was rendered and who is entitled to the money, and we think it is also clear from the record that the defendant in the cause is entitled to the money from the plaintiffs who sued as co-partners. The judgment is based on the plea of set-off and the evidence introduced in support thereof. “It is the duty of the appellate court rather to regard the substance only, and not mere form; but still there must always he in the record enough to show what was intended to he decreed. Martin v. Barnhardt, 39 Ill. 9.” Hofferbert v. Klinkhardt, 58 Ill. 450.

It is apparent from the record that if the word plaintiff, as used in the judgment, had been used in the plural instead of in the singular number, there would he no uncertainty in the judgment. Its meaning would he plain and definite.

From an inspection of the entire record it is manifest that the omission to use the letter “s” at the end of the word plaintiffs was simply a clerical mistake. This does not vitiate or render void a judicial record. Hofferbert v. Klinkhardt, supra. This point as to the verdict was not made in the court below, and cannot therefore be raised here. Ho assignment of error covers it.

Inasmuch as no exception was preserved in the bill of exceptions to the action of the trial court in overruling the motion for a new trial, the merits of the controversy are not brought before us for review. Pottle v. McWorter, 13 Ill. 454; Boyle v. Levings, 28 id. 314; McClurkin v. Ewing, 42 id. 283; Gill v. People, 42 id. 321.

The judgment is affirmed.

'Affirmed.


text:
    Robert H. Lanyon, Appellee, v. Lanquist & Illsley Company et al., on appeal of Lanquist & Illsley Company.
    Gen. No. 15,098.
    1. Negligence—when high degree of care required. Where contractors or other persons hoist or suspend an iron beam weighing five or six hundred pounds, a hundred feet in the air, and swing it over a public thoroughfare in the business center of a large city, ordinary care and diligence require the exercise of almost every precaution and safeguard that human foresight can conceive to protect the traveling public in the street below from all dangers from the falling of such beam and from all occurrences which might cause such beam to fall into the street. It is not the exercise of such care to depend upon custom that where several contractors are engaged in the construction of a building, each controlling or operating boom derricks, each contractor, before moving or causing to be moved the boom of his derrick, shall ascertain definitely whether or not any of the other contractors were so operating their derricks as to interfere with the proposed movement.
    2. Verdicts—when not disturbed as excessive. Reviewing courts will not substitute their judgment for that of juries on questions of damages unless it appears upon a consideration of all' the evidence that the amount assessed by the jury is the result of passion or prejudice, and not of calm and dispassionate reflection, or is so grossly excessive that it is not consistent with reason, and shocks one’s sense of justice.
    3. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its substance is substantially contained in other instructions given.
    4. Appeals and errors—of what complaint cannot be made. A party cannot complain except of those errors which are prejudicial to his own interests.

      Action in case for personal injuries. Appeal from, the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Rehearing denied November 11, 1910.
    Certiorari denied by Supreme' Court (making opinion final).
    Statement by the Court. This appeal is from a judgment of $35,000 recovered by appellee, Eobert H. Lanyon, against appellant, Lanquist & Illsley Company, and its co-defendant, James H. Stevens, in the Superior Court in an action for personal injuries sustained by appellee.
    Appellant was the contractor for the erection of steel work on the Commercial Eat ion al Bank Building, being erected on the northeast corner of Clark and Adams streets, Chicago. Its co-defendant, Stevens, was the contractor for the granite work on the same building. The steel work and the granite work were progressing at the same time. The plaintiff sustained injuries by the falling of a channel iron from the eighth floor of the building on September 10, 1906.
    The amended declaration contained two counts. The first count avers that the defendants were engaged in the erection of the building and that in its work of erecting the structural iron work appellant was using and operating a hoisting apparatus and equipments for hoisting and moving-materials and setting the same in place; and that the defendant Stevens was using a hoisting apparatus for moving- and hoisting materials and setting the same in place; that while the plaintiff was walking along Adams street upon or near the sidewalk adjoining- the building and in the exercise of due and ordinary care and diligence on his part, the defendants carelessly and negligently caused a steel or iron beam to fall from the building to and upon the ground in Adams street, crushing a wooden fence or enclosure whereby the plaintiff was injured.
    The negligence averred in the second count is that the appellant caused an iron bar to extend beyond the outer line of the building and defendant Stevens negligently operated its hoisting apparatus so as to come in contact with the iron bar, causing it to fall and thereby the plaintiff was injured.
    The evidence of the plaintiff tended to show that the defendants were employed on. the Commercial National Bank building, at Clark and Adams streets, as charged in the declaration, Lanquist & Illsley being engaged in the erection of the steel work and James H. Stevens being engaged in the setting of the granite; that on the day of the injury to the plaintiff the steel work had been constructed to a height of about twelve stories, and the granite work was being set near the ground floor. The south side of the building abutted on Adams street and some ten or twelve feet from the south wall of the building was a fence running parallel with the wall of the building, along the south side of which was a temporary wooden sidewalk for pedestrians passing along' Adams street.
    Each defendant in handling material used boom derricks operated by steam power, and the booms of which were from thirty-five to eighty feet in length. The derricks were of the same general construction, each having a mast, held upright by stiff braces, the mast turning freely in any direction by means of pivot pins at its top and bottom. To the bottom of the mast was attached by a hinge-like casting a boom, considerably longer than the mast, operated by means of wire cables controlled from a steam engine. The outer end of the boom could be raised or lowered, swinging up and down on the hinge, and the boom could also be swung from side to side, turning the mast with it. In addition to the cable which raised or lowered the boom, there was attached to its outer end a pulley, through which ran a second cable, used for raising or lowering materials handled by the derrick. On the south or Adams street wall of the building the derrick of the defendant Stevens was located about thirty or forty feet east from the west corner of the building, and the base of the derrick rested upon the fifth floor, the boom swinging out from the building in a half circle. The derrick of the Lanquist & Illsley Company nearest the southwest corner of the building was placed on the twelfth floor, and the boom of this derrick was eighty feet long and swung in practically three-quarters of a circle around the corner and over above the south and west walls of the building.

      Lanquist & Illsley Company had been placing on the south wall of the building certain channel or angle irons, which were fastened at regular intervals on the outside of the floor girders and outside the outer walls, for the purpose of holding in position the terra cotta and brick constituting the walls; and a large number of these irons were distributed from a pile on the eighth floor of the building which was within ten or twelve feet of the southwest corner. During the day of the accident, for several hours preceding it, Lanquist & Illsley Company had been placing and setting these channel irons. The witnesses testified that the manner of doing the work was that each channel iron before being moved from the eighth floor was pushed out about two and one half to three feet over the edge of the outer wall of the building, that a hook from the boom of the derrick above was then attached to it by a rope slung around the channel iron, and it was swung out and then moved into place.
    Appellant’s evidence tended to show that the derrick of the stonecutter Stevens had not been working at the place where these channels were being moved, for some hours before the accident. This evidence is, however, controverted by the evidence offered on behalf of the defendant Stevens to the effect that for at least an hour before the accident the defendant Stevens had been transferring stone from the east side of his derrick to the west side; that about fifteen or twenty stones had thus been moved along the south side of the building before the accident happened, and that the boom of the Stevens derrick had been moved around from the east to the west about twenty minutes before the accident happened, and that the stone that was being transferred at the time or just before the accident weighed from 800 to 1,000 pounds. The employes of appellant had projected one of the channel irons over the edge of the wall and were waiting for the pulley or fall from the derrick to come down from above, when suddenly the boom of the derrick operated by the defendant Stevens swung around from the east and lowered from above, struck the channel iron so extended or projected by the appellant on the top; and in spite of the efforts of appellant’s men, who were handling the channel iron, to prevent it from becoming dislodged, it was dragged from its position by the boom of the Stevens derrick, and fell into the street below, causing appellee’s injuries.
    It was claimed on the trial by the defendant Stevens that the boom of the Stevens derrick was not at any time moved close enough to the building to interfere with the channel iron, but the defendant Stevens offered no evidence tending to show how the channel iron fell, if it was not in the manner testified to by the witnesses for plaintiff and appellant.
    Winston, Payne, Stbawn, & Si-iaw, for appellant; John Babton Payne, John D. Black, Elbbidge Hanecy and John C. Slade, of counsel.
    John S. Huey, for appellee; Mann & Milleb, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

As indicated in the preceding statement, there appear in the evidence in the record only two points of controversy as to facts. By the plaintiff’s evidence it is shown that, to the knowledge of the witnesses, the Stevens derrick had not been operating on the afternoon of September 10, 1906, until about five minutes before the injury to the plaintiff, and then only in the field to the east of that in which appellant was handling and placing channel irons. But, upon a consideration of all the evidence, and particularly the evidence given by the witnesses called by the defendant Stevens, we are of the opinion that it shows by a clear preponderance that for an hour before the time of plaintiff’s injury, the derricks of both defendants were in operation, and that the derrick of defendant Stevens had been engaged during that time in transferring granite from a point east of the derrick to points west of the derrick, making it necessary to swing the boom of the Stevens derrick to the west and into the same field of operations in which appellant’s derrick was operating, and where it might come in contact with the material being handled by appellant,

Although these derricks had been operated for at least an hour in this manner, over a public thoroughfare, and with the possibility of interfering with each other at any moment, the record shows no attempt on the part of either defendant by signals or otherwise to exercise due care and diligence under the existing conditions and circumstances. .No notice or communication passed from one defendant to the other during the afternoon which was designed to safeguard and protect in any way those persons rightfully using Adams street. In our opinion, where contractors or other persons hoist or suspend an iron beam weighing five hundred or six hundred pounds, a hundred feet in the air, and swing it over a public thoroughfare in the business center of a large city, ordinary care and diligence require the exercise of almost every precaution and safeguard that human foresight can conceive to protect the traveling public in the street below from all dangers from the falling of such beam and from all occurrences which might cause such beam to fall into the street. It is not the exercise of such care to depend upon custom that where several contractors are engaged in the construction of a building, each controlling or operating boom derricks, each contractor, before moving or causing to be moved the boom of his derrick, shall ascertain definitely whether or not any of the other contractors were so operating their derricks as to interfere with the proposed movement. Or, in other words, as counsel for appellant say in their brief: “that the contractor first using a derrick obtained the right of way, and other contractors were in the custom and habit of ascertaining whether the space for the operation of their derricks was clear, and of respecting the superior right of the first contractor, before beginning their own operationfor, if the contractor not having the right of way should fail to observe the custom, it would still be the duty of the contractor having the right of way by the custom to govern his actions by the exigencies and according to the contractor’s actions notwithstanding the custom. It appears from the evidence, which is practically uncontradicted, that both defendants were operating their derricks at the same time, and had been so operating them for an hour, so that under the supposed custom neither contractor had the right of way and could not and did not rely upon the alleged custom, if it existed. Furthermore, if such custom existed, it appears from the evidence that neither of the defendants was observing it, and the jury had a right to conclude from the evidence that both defendants were pursuing their work regardless of each other, or of such a custom. Hence, had the alleged custom offered to be shown been received in evidence, it could not have affected the conclusion of the jury, or have exonerated the appellant from the charge of negligence in proceeding with its work while Stevens was operating its boom ” where it might interfere with appellant’s operations. Appellant’s foreman, Omundson, knew that the Stevens boom could reach the channel iron which he was engaged in hoisting. He also knew five minutes before the Stevens boom struck the iron that the Stevens derrick was in operation “over to the east,” and yet he proceeded with his work. The exercise of due care, under the circumstances shown, required him, we think, to ascertain and know that the boom would not be swung to the west where it could or would interfere with appellant’s operations, before proceeding with his work of moving out the iron to a place where it might be struck by the boom. We do not hold that it was a negligent act to extend the channel iron outside of the building, for that was but a part of the reasonable and usual operation of putting it in place. But is was negligence, we think, under the circumstances shown, to so place the iron without first ascertaining and knowing whether the Stevens boom was to be swung around in its operation where it might come in contact with the iron.

Holding as we do that the clear preponderance of the evidence tends to show that the custom offered to be shown by appellant was not being observed at the time of plaintiff’s injury by the defendants or either of them, and that reliance on such a custom by appellant Avhile it was being violated by the defendant Stevens would not have justified appellant in proceeding with its operations over a public thoroughfare where people were constantly passing, under the circumstances shown in the evidence, without exercising the care required by law, it follows, we think, that the exclusion of the evidence offered of the custom was not material error. While such a custom, if observed and followed by the defendants, would have been admissible in evidence on the question of negligence, as tending to shed light on the acts and conduct of the defendants, we do not see that the exclusion of evidence of the custom itself can be complained of by appellant when, as the evidence shows, it was not observing the custom in the operation of its derrick.

It is urged on behalf of appellant that the verdict is grossly excessive and is not based on the evidence.

It must be considered in the first place that the amount of damages in a case of this kind is to be determined by the jury under proper instructions, and it is to be left largely to their sound judgment. There cannot be in the nature of things any hard and fast rule by which to measure the amount of damages to be awarded. Reviewing courts will not substitute their judgment for the judgment of juries on such questions, unless it appears upon a consideration of all the evidence that the amount assessed by the jury is the result of passion or prejudice, and not of calm and dispassionate reflection, or is so grossly excessive that it is not consistent with reason, and shocks one’s sense of justice. We find nothing in the record affording any basis for the conclusion that the amount of the verdict was the result of prejudice and passion in the minds of the jury. It is true that the amount of the verdict is large, but when the nature of the injuries suffered by the plaintiff is considered, and the operations upon his skull rendered necessary to relieve the brain compression made evident by the slow pulse and paralysis of his left side, the general impairment of the brain, leaving a permanent condition of weak, slow and hesitating mentality, with a tricky memory, and the general shock to his system and loss of health shown by the evidence, we cannot say that the amount of the verdict is excessive.

It is contended that the trial court erred in refusing the following instruction requested by appellant :

“You are instructed that if you believe from the evidence in this case that the beam in question fell by reason of the fact that the defendant, James II. Stevens, negligently operated a certain derrick on the south side of the Commercial National Bank building then in the course of construction, and that such negligent operation by the said Stevens of the said derrick was the sole negligent act which caused the injury to the plaintiff, then the plaintiff cannot recover against the Lanquist & Illsley Company and your verdict as to said company should be not guilty.”

This instruction is fully covered by at least three other instructions given at the request of appellant. Its refusal was not error.

Complaint is made of the giving of the following instruction at the request of the defendant Stevens:

“In determining the question of liability in this case you must not be influenced or governed at all by any feeling of sympathy for the plaintiff or any feeling of prejudice against the defendant, James H. Stevens. It is your duty as jurors to determine the question of liability in this case as fairly and impartially for defendant, James II. Stevens, as for the plaintiff, and as fairly and impartially for the plaintiff as for defendant, James H. Stevens. Neither the plaintiff nor defendant, James H. Stevens, should receive any favor from you as jurors.

In considering your verdict you should be governed solely and exclusively by the evidence which the court permits the witnesses to give and the law given you by the court in these instructions, and base your verdict upon the evidence and the law regardless of all else.”

While we do not approve of the instruction, we do not regard the giving of it as reversible error. Nor do we regard the giving of the instruction requested by the defendant Stevens to the effect that if the jury believed from the evidence that the iron setters were not in the exercise of ordinary care in handling the piece of structural iron, but were handling it in a negligent manner and that such negligence was the efficient cause of the iron falling, and without such negligence of the iron setters the accident would not have happened, then they should find appellant guilty, as erroneous.

At the request of the defendant Stevens the court instructed the jury:

“The court further instructs you that as to the way and manner in-which the servants of the defendants, Lanquist & Illsley Company, handled and placed the piece of structural iron at the time in question the defendant, James H. Stevens, owed plaintiff no duty. The only duty defendant, James H. Stevens, owed the plaintiff was to exercise ordinary care in hoisting and setting or moving stone. And if you believe from all the evidence that the defendant, Stevens, at the time and place in question, was in the exercise of ordinary care, in the prosecution of his work, then you should find him not guilty.”

This instruction was clearly erroneous and misleading. The defendant Stevens owed to the plaintiff a duty with reference to the way in which the servants of appellant were handling and had placed the iron. If the movement of this derrick was likely to interfere with the iron as it was being handled by appellant and thereby cause the iron to fall and injure a passerby on the street below, Stevens was in law bound to use such care with reference to the movements of his derrick that no injury could be done to such passerby or to appellant or to the employes of the defendants. But while the instruction is wholly bad, its sole object and purpose, as expressed in the instruction, was to relieve Stevens from liability. The jury, however, found Stevens guilty. Of this we do not think appellant can complain.

We do not think the court erred in giving the first instruction on behalf of appellee on the question of joint negligence of the defendants.

Finding no reversible error in the record, the judgment is "affirmed.

1Affirmed.


text:
    Robert J. Mulcahy, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 15,119.
    1. Master and servant—what essential to recovery hy latter. Before a servant may recover from his master for injuries received he must establish by a preponderance of the evidence three propositions: first, the existence of the defect averred; second, that the master knew or in the exercise of ordinary care would have had knowledge of such defect, and, third, that the servant did not know of the defect and did not have equal opportunities with the master of knowing it.
    2. Master and servant—when doctrine of assumed rish precludes recovery. If the injury was the result of a condition known to the servant which was one of the assumed risks of his employment he cannot recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed October 21, 1910.
    Statement by the Court. The plaintiff, Robert J. Mulcahy, was injured on February 13., 1903, while he was employed by the defendant, Chicago & Alton Railroad Company, as a switchman, and engaged in his duties. He recovered a judgment for damages in the Circuit Court for $8,000 for his injuries against the defendant, and this appeal is prosecuted to reverse it.
    The declaration is in one count and charges the defendant with negligence in permitting a foot-board of its locomotive to become out of repair, in that the tank of the locomotive leaked and water dripped down on the foot-board and froze, causing the plaintiff’s foot to slip off the foot-board onto the track, and the cars attached to the locomotive passed over and crushed his feet.
    On the day of the injury the plaintiff went to work on the engine at eight o’clock A. m. and continued at his work all day in the usual manner until about seven o’clock p. m. Hear Western avenue in Chicago the tracks of the defendant connect with those of the Chicago Junction Railway. At the connection there was an interlocking switch controlled from a tower. The conductor and. the plaintiff were riding on the front foot-hoard of the locomotive. Do signal was received and the engine stopped. Plaintiff went ahead with his lantern about 150 feet, and signaled the engineer to “come on.” Plaintiff remained standing where he was until the locomotive came up and, as it passed, attempted to step upon the rear foot-board and either slipped, as he claimed, on the ice which had formed on the foot-board, or overstepped. The engine was going at the “ordinary speed for getting on or off.” q
    The plaintiff was about twenty-one years old at the time of his injuries. He had worked as a brakeman with switching crews on freight trains in freight yards about ten months and had worked for the defendant about seven months in the same employment, and for several weeks upon the same engine he was working on when he was injured. He was “head brakeman,” which required him to work next to the engine, either from the front or rear foot-board. His work required him to get on and off the foot-boards from fifty to two hundred times a day.
    Plaintiff’s claim in his testimony is that on the morning of the day-of the accident, when he went to work, he noticed water dripping down the end of the sloping tank onto the rear foot-board, and forming ice on the foot-board. The water appeared to come from a hole in the tank about two and one half feet from the end and about the same distance from the side of the tank. As to the existence of this hole there is a controversy in the evidence. Plaintiff claims he called the attention of his foreman, Wright, to the leak when he discovered it in the morning, and Wright told him “it was all right, it don’t amount to anything.” This is denied by Wright.
    At the close of the plaintiff’s evidence and again at the close of all the evidence in the case the defendant offered and requested peremptory instructions to find the defendant not guilty. These instructions were each refused • hy the court.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    George E. Gorman, for appellee; John M. Pollock, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The law is well settled in this State that before a servant may recover from his master for injuries received, he must establish by a preponderance of the evidence three propositions, viz.: First, the existence of the defect averred; second, that the master knew, or in the exercise of ordinary care would have had knowledge, of such defect; and third, that the servant did not know of the defect, and did not have equal opportunities with the master of knowing it. McCormick Machine Co. v. Zakzewski, 220 Ill. 522; Christiansen v. Graver Tank Works., 223 id. 142; Metcalf Co. v. Nystedt, 203 id. 333. The question is then presented by the refused instruction whether there is in the record evidence which, with the inferences reasonably to be drawn therefrom, tends to prove the above propositions.

Upon the question of the existence of the leak in the tank and that the water therefrom fell upon the foot-board, forming ice thereon, under the existing weather conditions, the witnesses Cox, Barrett and Cusack support the plaintiff. On the other hand the testimony of the witnesses Allison, Smith, Coughlin and Wright tends to show that no such defect existed in the locomotive tank and that there was no ice on the foot-board at the time of plaintiff’s injury. Upon this controverted question of fact, this court would not in this case be warranted in saying the jury had come to a wrong conclusion.

The evidence relating to the second proposition—the defendant’s knowledge of the defect—is confined to the testimony of the plaintiff in his own behalf, and to the testimony of Wright denying that the plaintiff called his attention to what appeared to he a stream of water extending down the tank and dropping upon the foot-hoard, and denying the conversation between the plaintiff and himself with reference to the leak in the tank. The jury believed the plaintiff and disbelieved Wright. We cannot say on this evidence that the jury were clearly and manifestly wrong in their finding on this question.

On the third proposition, however, that the plaintiff did not know of the defect and did not have equal opportunities with the defendant of knowing it, there is no controversy in the evidence. The plaintiff says he knew of the defect, and not only that, but he called appellant’s attention to it. The evidence on this question all points to the conclusion that plaintiff’s opportunities of knowing of the defect, if it existed, were at least equal to those of the defendant and perhaps superior. The evidence on this proposition is all against the plaintiff. He therefore failed to establish a necessary element in his case to entitle him to recover; or, to state it more accurately, the plaintiff’s case lacked this necessary element to his right of recovery. His own evidence on this question precludes him from recovering. He admits he knew of the leak, and that water was dripping upon the foot-board and forming ice thereon at eight o’clock in the morning, and he continued to use the foot-board until about seven o’clock in the evening without objection. That he appreciated the danger from such a condition of the foot-board is made clear by the evidence. For that reason he had chopped ice off the foot-board and put salt upon it frequently. From the evidence bearing upon this proposition, the conclusion is forced upon the court that plaintiff, on the case presented by the evidence, is not legally entitled to prevail.

Furthermore, in our opinion the plaintiff, on the evidence above adverted to, assumed the risk arising from the defect complained of. One of the ordinary hazards of his employment was that of slipping on the foot-boards. He knew that the formation of ice on the foot-board from the dripping water and the freezing temperature increased the danger of his work. He had his election to quit the service or assume the risks arising from the defect. He voluntarily continued in the service without objection after he knew of the defect and that his work had become more dangerous by reason thereof. It must therefore be held that the plaintiff assumed the risk arising from the defective tank. Morden Frog Works v. Fries, 228 Ill. 246; Christiansen v. Graver Tank Works, supra; McCormick Machine Co. v. Zakzewski, supra.

According to plaintiff’s testimony, ice and snow on the foot-board was of common occurrence during the winter months. He testified that, “very frequently the foot-board would have ice on it because of the water flowing from the tank onto the foot-board. It happened several times. It is a common occurrence out there. I always went and got some salt and sprinkled it on it. Previous to this time, I always chopped the ice off of it. I knew that water flowing from the tank would make ice on the foot-board.' Had seen it before on several occasions. Could not say I saw it on this engine. Always looked at the foot-board to see what condition it was in prior to this time. This is the only time I never did remove it.” The only conclusion from this testimony is that ice on the rear foot-board of an engine is a ferquent and common occurrence; and that the danger arising therefrom was one of the ordinary risks of the employment of plaintiff. By all the authorities in this jurisdiction plaintiff assumed the risk of injury therefrom.

For these reasons the Circuit Court erred in denying defendant’s motion to exclude the evidence and give the peremptory instruction. The judgment is reversed with a finding of facts.

Reversed with finding of facts.


text:
    Samuel Gurnea, Appellee, v. Baltimore & Ohio Railroad Company, Appellant.
    Gen. No. 15,139.
    1. Master and servant—who not fellow-servants. Held, under the evidence, that the plaintiff, who was a switchman, was not, as a matter of law, a fellow-servant of members of the crews of switch engines.
    2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    3. Contributory negligence—employe alighting from switch engine. Held, that it was for the jury to determine whether or not an employe of a railroad company in stepping from a switch engine and on to an adjoining track was guilty of such negligence as barred his recovery.
    4. Evidence—when admission of immaterial will not reversq. The admission of immaterial evidence will not reverse unless harm appears to have resulted.
    5. Instructions—when upon quantum of proof not erroneous. An instruction upon this subject as follows, held, not erroneous.
    “The jury are instructed that the plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.”
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.
    Calhoott, Lyeobd & Si-ieeaw, for appellant; ■ Ohables D. Clakk, of counsel.
    James O. McShane, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee, Samuel Gurnea, recovered a judgment in the Circuit Court against the appellant, The Baltimore & Ohio Railroad Company, in an action for personal injuries alleged to have been sustained by the plaintiff, Gurnea, through the negligence of the railroad company. The company prosecutes this appeal to reverse the judgment, and contends, (1) that the contributory negligence of the plaintiff precludes recovery; (2) that the weight of the evidence shows that the defendant .was guilty of no negligence; (3) if there was negligence on the part of the defendant liability cannot be predicated thereon because such negligence was not the proximate cause of the injury, and because such negligence was omission of duty by a fellow-servant; (4) prejudicial evidence on behalf of the plaintiff was erroneously admitted; and (5) an erroneous instruction was given at the request of the plaintiff.

If the question of contributory negligence on the part of the plaintiff, and the question of defendant’s negligence are both resolved in favor of the plaintiff, he still cannot recover, if his injury was caused by an omission of duty by a fellow-servant. We shall consider, therefore, the fellow-servant question, first, and then take up the other questions in the order above stated.

At the conclusion of the evidence the defendant asked the court to instruct the jury to return a verdict of not guilty. The court refused to give the instruction, and the refusal is assigned as error. This with other assignments of error raised the above stated questions which formed the principal subject of argument by the counsel on both sides.

The plaintiff was a night switchman employed by the defendant in its South Chicago yard. This yard extends from Rock Island Junction, which is south of Rinetythird street, where the tracks of the defendant leave the tracks of the Rock Island Railroad, to a point some distance north of Eighty-fifth street in the city of Chicago. It contains more than thirty parallel switch tracks which run north and south from the switching leads at the south end of the yard. On the east side of the yard between Eighty-sixth and Eighty-seventh streets is a round-house. Just west of the defendant’s right of way are the Illinois Central Railroad tracks. Erom Eighty-ninth street as far south as Rinety-first street, the most westerly track of defendant was used exclusively for the storage of cabooses. The next track to the east was designated by the witnesses as the main track, and it was regularly used as a thoroughfare for engines going in either direction. Next east of this main track was No. 1 lead, which ran parallel to the main track from Ninety-third street to a point between Eighty-ninth and Ninetieth streets, where it diverged in a northeasterly direction as a stem from which branched switch tracks numbered from 1 to 9.

Plaintiff had worked for various railroads and for the Standard Oil Company as switchman for about ten years. At the time of his injury he had worked for the defendant as switchman about three weeks. He was a member of a crew engaged in switching out ■ transfers, cars destined for other roads, at the south end of the yard. About 3:30 in the morning of March 23, 1904, a cut of 15 to 18 cars was being pulled out of switch track No. 8 in a southerly direction along track No. 1 or the lead, down to the switch south of Ninetieth street. This switch was to be thrown so as to back the cars north on lead track No. 2. The engine pulling this cut of cars was headed south, and plaintiff was riding on the foot board of the engine. As the switching engine (No. 1141) neared the switch leading from track No. 1 to track No. 2, a little south of Ninetieth street, plaintiff stepped from the west side of the engine and walked in a southwesterly direction across to and upon the track called the main track and stood there waiting for the cut of cars to pass the switch, intending to give the signal to stop and then to pass to the rear of the cars and throw the switch which was on the east side of track No. 1. As the switch engine and cut of cars were proceeding south on track No. 1, road engine No. 1738 was backing south on the track adjoining to the west, called the main track, at a speed estimated by the witnesses at from 4 to 8 miles per hour. This engine struck plaintiff, knocked him down and cut off his right arm.

The evidence shows that the road engines ran from the South Chicago round-house to Garrett, Indiana; that they pulled in their trains on any track in the yard that happened to be clear, and that the distance north in the yard the trains were pulled depended entirely upon the condition of the yard; that the “main track” was regularly used as one of the thoroughfares for engines, and for any purpose where business required it; that any of the tracks in the yard might be used by any engine going in either direction at any hour day or night; that incoming trains were put upon any track that the yard master designated, the switch crew and road crews making use of the same tracks in the yards; and road engines in going south from the round-house made use of whatever track happened to be open. The evidence further shows that the engine with which the plaintiff was working was a switch engine at the south end of the yard; that certain trains to be switched might be city trains, having some cars to be thrown out of them at the yard, and that while these were being taken from the train by the switch engine, the road engines remained attached to the trains, and after such cars were taken out, proceeded with the trains into the city; but, with reference to such trains the evidence is not clear and there is some dispute as to whether they were brought into the yard in question at the time of the accident. It thus appears from the evidence that the crews of road engines and their trains and switch engines in the ordinary work conducted in the yard were under the control of the yard master in the yard, and used the same tracks in entering and leaving the yard, in making up, handling, switching and breaking up trains.

These are the substantial and controlling facts developed by the evidence, bearing upon the question whether or not the members of the crew of road engine 1738 were fellow-servants of the plaintiff. While the evidence shows that the switching crew of which plaintiff was a member and the crew of road engine 1738, and the crews of other road engines which entered the yard, used the same tracks, the plaintiff testified that there was no working connection whatsoever between his crew and the road crews. The only dispute in the evidence of this statement is in the testimony of the witness Cameron, who speaks of one road train that was not delivered at the north end of the yard. This train arrived every morning and was pulled in on section B, according to his testimony, and for the purpose of taking out certain cars a switch engine was attached to the south end of the train, in order to protect the crossings, while the road engine remained attached to the train; and after the cars had been taken out the road engine took the train north into the city. But Cameron was uncertain whether this train was handled in this yard at the time of plaintiff’s injury, or before or after that time.

In our opinion the evidence, with all legitimate inferences to be drawn from it, is not of such a nature that all reasonable and intelligent men must reach the same conclusion, and hence the relation between the plaintiff and the members of the crew of road engine 1738 was one of fact, and was properly submitted to the jury.

The principle underlying the fellow-servant doctrine and the reasons therefor are fully discussed and the authorities are reviewed in Chicago & Northwestern Railroad Co. v. Moranda, 93 Ill. 302; and in C. & E. I. R. Co. v. White, 209 id. 124; and no useful purpose would be subserved by here repeating what is so well stated in those cases. The facts in the White case, supra, are so similar to the facts in this case that we think no discrimination on principle can be made between the cases with regard to the application of the fellow-servant doctrine.

We cannot say, upon a consideration of the evidence upon this issue, that the verdict of the jury was manifestly against the weight of the evidence and should therefore be set aside; nor can we hold as a matter of law upon the evidence that the relation of fellow-servants existed.

The question of negligence of the defendant, and the question of contributory negligence of the plaintiff, were both for the jury, and upon the record in this case we cannot say its findings were against the weight of the evidence. The contributory negligence of The plaintiff, according to the contention of the defendant, consisted in unnecessarily going upon the “main track” when there was sufficient room between the tracks for him to stand in safety and give the signal to stop to the engineer when the rear end of the cut of cars had passed the switch. He had looked to the north before he stepped off his engine and saw a red light which he took to be a red light on section 8 switch. He had been in the service of the defendant in that yard only a few days, and had never seen this “main track” in use for any purpose, and had never seen any of the large engines of the type of engine 1738 backing out during the nights he was there, and did not know that this engine was backing south at that time, or that it was the practice in that yard to back the large engines out with a red lantern suspended from the back of the tender.

It is clear that ordinary care for his own safety required plaintiff in alighting from the engine to step far enough away from the track to avoid being struck by any projections which might be extending out from the sides of the cars of the train and also far enough away from the train so that the engineer could see his signal. Whether in the night time he was negligent under all the circumstances in stepping upon the next track was a question for the jury. It was for the jury, with all the evidence before it, to determine what reasonable, prudent and cautious men do under the circumstances which they found to exist before and at the time of the accident, and to say by their verdict whether the plaintiff acted negligently or whether his action was in accordance with the course that an ordinary prudent switchman might follow. There are various facts and circumstances shown by the evidence which would warrant the conclusion of the jury on this issue, and we are not justified in setting it aside as contrary to the weight of the evidence.

The negligence averred in the second count of the declaration is the failure to ring the bell of the engine backing south in accordance with section 1733 of article 2 of chapter 55 of the city ordinances of the city of Chicago. General averments of negligence are made in the first count. The cause was submitted to the jury on these counts. Hpon the question whether or not the bell of the road engine was ringing, the evidence is conflicting. Three witnesses testified that it was ringing, and seven witnesses that they did not hear it, or that it was not sounded.

It is insisted on behalf of the defendant that greater weight should be given to the positive testimony of the witnesses Rink, Voight and Shulthes that the bell was rung and the whistle sounded than to the negative testimony of the witnesses who did not hear the bell or whistle. This so-called negative testimony is competent, and seems to be equivalent to positive evidence as to the facts about which the witnesses testify. C. & A. R. R. Co. v. Dillon, 123 Ill. 570; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 529. As said in the Siltman case: “Under the conflicting testimony presented, it was certainly the province of the jury to find which was the better evidence and most worthy of belief. The law has made that the duty of the jury, and an Appellate Court ought not to disturb this finding of facts upon conflicting evidence, except where it becomes necessary to do so to prevent palpable injustice in cases where it is manifest the 'finding is the result of passion or prejudice. That is not the case here.

In our opinion the negligence of the defendant was the proximate cause of the injury to the plaintiff.

It is contended that the trial court erred in permitting the witness Riley to testify that he was touched or struck by the engine some two hundred feet north of the point where the plaintiff was struck. Riley was the conductor of the same train of cars on which plaintiff was switchman at the time of his injury. Riley was seven or eight cars lengths north of the plaintiff and on the west side of his train. He was asked the question: “Q. Did this engine touch you, this road engine?” An objection to the question on the ground of immateriality was overruled. The witness then answered: “A. Well, when I first noticed this engine I had got further over in the track, the main track, and I was looking at my cars with my face more to the southward. The next I noticed the engine was when it was real close to me.”

“Q. What did you do? A. I hurried to get out of the way.

“Q. Did it touch you ? A. It barely touched me on the shoulder or between the shoulder and the hip.”

It appears from the record that the question objected to was not answered, the answer given by the witness not being responsive to the question. Another question was then asked and answered, and then the question first objected to was again asked and the answer complained of was given, without any renewal of objection to either the question or answer. RTor was there any motion made to strike out the answer. We do not think the competency or "materiality of this evidence was raised.

Assuming, however, that the evidence was immaterial (which we do not hold), its admission was not harmful in view of the fact the witness had testified without objection that “When I first saw the road engine I did not know it was an engine. It was north of me, and I saw a red light. Then the engine passed me. I was just about at the edge of the east rail of the main track when I first saw the red light.”

We are inclined to think the evidence was material for its corroboration of both plaintiff’s and Riley’s testimony as to the facts that the red light suspended from the tender was mistaken by them for a switch light, and that the bell was not rung or the whistle sounded.

The court gave at the request of the plaintiff the following instruction:

“The jury are instructed that the plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.”

The giving of this instruction is assigned for error. In view of what the Supreme Court has said regarding this instruction in Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Consolidation T. Co. v. Schritter, 222 id. 364; C. U. T. Co. v. Mee, 218 id. 9, and other cases, we cannot hold the instruction erroneous.

Rinding no error in the record, the judgment is affrmed.

Affirmed,.

Mb. Justice Mack took no part in the consideration of this cause.