text:
    Eugene Alcorn, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Master and servant—when instruction not required. The law does not require that a master shall inform or point out to a servant of ordinary intelligence, in the line of work in which he is engaged, defects or dangers which are apparent, open and visible and as easily discernible by the servant as by the master.
    Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel H. Dwight, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed.
    Opinion filed October 18, 1910.
    Creighton & Casaway, for appellant; Chester M. Dawes, of counsel.
    Hill & Bullington, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee was employed by appellant as a section hand upon its railroad. Upon the day of the accident he was engaged in loading upon flat cars old and worn out rails, which had been taken from the track of appellant company. There were numerous section gangs employed by appellant upon its line of road. The rails in question and which were being picked up along the right of way of appellant were upon another section than that in which appellee was employed as a section hand, and it was while he was performing the duty of assisting other section men in loading rails upon the flat car that he received the injuries complained of.

The trial below resulted in a verdict and judgment for appellee for $500 and it is to reverse this judgment that this appeal is prosecuted.

The declaration consists of three counts, each count charging, in various allegations, in substance that appellee was ordered and directed to do this work by the foreman in charge of the gang of section men; that appellee was not familiar with the manner or method of loading rails hy hand; that no instructions were given him regarding the loading of the same; no information of the dangers connected therewith; and that he was directed to do this work upon specific order of the foreman and that the dangers were not equally ascertainable by him; and that the injury was not caused by one of the risks assumed by him in his employment.

The evidence in the case is undisputed that appellee was employed as a section foreman, that his duties consisted of surfacing the railroad track, laying rails, ties, loading rails, unloading rails, together with any work that might be required to be performed upon the track as labor as section man; that on the night before the accident, he was notified by his section foreman that he would be required to go upon another section on the following morning for the purpose of loading old rails, which had been taken from the track, upon a flat car. It was also disclosed without contradiction that this was a part of his duties as section man; he had performed work of this character before; that he was familiar with the fact that these rails, when old.and worn out and taken from the track, were liable to have splinters or slivers thereon; and it was because of their old and worn condition that they were removed from the track; that the usual and customary method of loading these rails upon the flat cars, when done by hand, was for a number of section men to take hold of the rail by hand, grasping the ball of the rail, then by raising the rail to such height as would permit the throwing of the rail upon the car. For the purpose of having the entire gang act in unison, each step of the proceeding was directed by the foreman by command. First, they were directed to, take hold of the rail, second, to raise it, raise it higher and when of sufficient height to throw it, and when all of the parties had hold of the rail by the ball and acted in unison, the rail properly fell upon the car without injury to anybody.

At the time of the accident appellee, instead of taking hold of the ball of the rail with both hands, seized the rail by the ball with one hand and the other hand was clasped over and upon the fangs of the rail; he wore a pair of mittens and when the rail was directed to be thrown by the foreman, his hand was caught by a sliver in the rail, he was lifted from the ground and pulled over to the car, his hand catching between the rail thrown and those upon the car, mashing the fingers and breaking several bones of the hand. There was nothing to prevent appellee from seeing the condition of the rail which he was taking hold of and he had as great, if not a better, opportunity to lmow and see the condition of the rail than appellant. Other members of the gang saw that the rail was splintered and the order, which appellee contends was given him to do this work, was the general order given to all the men at work in lifting this rail and throwing it upon the car, and the evidence does not disclose that there was anything dangerous in the order or anything that created any greater risk by reason of the order; that it was necessary to give these directions in order to have the men act together in the work to be performed. It was in the regular line of employment of appellee and there were no hidden or latent defects but everything in connection therewith was open and visible to appellee. Appellee was in no manner misled by any act or order given him by the foreman and all of the dangers and risks incident to the work being performed were open and visible to appellee.

The law does not require that appellant shall inform or point out to a person of ordinary intelligence, in the line of work in which he is engaged, defects or dangers which are apparent, open and visible and as easily discernible by the employe as by the master, E. J. & E. Co. v. Myers, 226 Ill. 358; Illinois Steel Co. v. Mann, 170 Ill. 200; C. & A. Ry. Co. v. Landroth, 123 Ill. App. 656; Illinois Central R. R. Co. v. Sporeleder, 199 Ill. 184. He was a man of ordinary intelligence and under such condition it must be held that the injury to appellee was caused by one of the risks assumed by him in his employment. He had been working at this work for several hours, he had made no complaint of the manner in which it was done and no other manner was- suggested or promised and the work was not done in any unusual or special way.

At the close of the evidence on the part of the appellee, the appellant offered an instruction and requested the court to direct a verdict of the jury for appellant; this the court refused to do. Motion was again renewed at the close of all the evidence and again refused by the court; the refusal to give this instruction was error and for this reason the judgment below must be reversed and from the conclusions reached herein, it is unnecessary to pass upon the other questions raised upon this record.

The injury complained of herein was not caused by reason of negligence of appellant and the risk of the injury received by appellee was incident to his employment and was assumed by him and the clerk will enter in the judgment in this court the finding that appellant was not guilty of negligence as complained of in the declaration and that appellee was injured by one of the ordinary risks of employment assumed by him. The judgment of the trial court is reversed with above finding of fact.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    Christian Schmalfeld, Appellee, v. Peoria & Eastern Railway Company, Appellant.
    1. Instructions—when erroneous will not reverse. An erroneous instructon will not effect a reversal unless it appears by the record that such erroneous instruction was given at the instance of the prevailing party.
    2. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse if it is apparent that it could have done no greater harm to one party than to the other.
    3. Instructions—argumentative in form. An instruction argumentative in form is properly refused.
    4. Instructions—assuming matters of fact. An instruction which assumes as a matter of fact that the testimony of an engineer was true notwithstanding the record discloses a serious conflict therein, is properly refused.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and J. P. Lindley, of counsel.
    S. P. Robinson and Welty, Sterling & Whitmore, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action on the case by Christian Schmalfeld against the Peoria & Eastern Railway Company, to recover damages for a personal injury, alleged to have been caused by the negligence of the Cleveland, Cincinnati, Chicago & St. Louis Railway, lessee of the defendant. Upon a trial by jury in the Circuit Court of McLean county there was a verdict and judgment against the defendant for $410, to reverse which appellant prosecutes this appeal.

The declaration contains four counts. The first and second counts allege a negligent operation of the engines and train of cars of lessee whereby plaintiff, while in the exercise of due care for his own safety in attempting to cross defendant’s right of way on Allin street in the city of Bloomington, was injured.' The third count alleges that a train of lessee was being operated at a greater rate of speed than ten miles an hour contrary to an ordinance of the city of Blooming-ton, and that plaintiff, while in the exercise of due care for his own safety was struck by said train as aforesaid, at said street crossing and injured. The fourth count alleges an ordinance of the city of Bloomington requiring defendant’s said lessee to place and keep a gate at Allin street in said city, and requiring the same to be in operation on every day of the week from seven o’clock in the morning until seven o’clock in the evening, and alleges that said lessee had installed such a gate, and that plaintiff while the said gates were open so as to invite people to cross the said railway, and while in the exercise of due care for his own safety, and while attempting to walk across said railway, was struck by said engines and train and was thereby then and there greatly injured.

Front and Grove streets in the city of Bloomington run east and west and Allin street runs north and south connecting said east and west streets. The tracks of the Peoria & Eastern Railway and the Lake Erie and Western Railway, which are nineteen feet apart from center to center, extend in an easterly direction to Front street and thence in a southeasterly direction, crossing Allin and Grove streets at grade. A street car track is located in the center of Allin street and crosses the track of the defendant at a point 120 feet south of Front street. The track of the Lake Erie & Western Railroad is located north of defendant’s track. From the intersection of defendant’s track with the street car track northwesterly to Front street is 210 feet, and about midway between said points there is located on the north side of the Lake Erie & Western’ track a tower house where' a tower man is stationed to operate the gates at street crossings. Gates were constructed and maintained on the south side of defendant’s track and on the north side of the track of the Lake Erie & Western Eailway, where said tracks intersect Allin street. By an ordinance of said city the speed of passenger trains running upon the track of the defendant railroad, within the corporate limits of said city, was limited to ten miles an hour. At the time in question the Cleveland, Cincinnati, Chicago & St. Louis Eailway Company was operating its trains upon the railroad of appellant, as lessee, and the engine which struck and injured plaintiff was then owned and operated by said lessee. On February 20, 1908, at about two o’clock in the afternoon, appellee, aged about seventy-one years, and Mary Schmalfeld, his wife, aged about sixtv-seven years, were walking south on Allin street, using the street car track which had been cleaned of snow, rather than the sidewalk which was covered by a recent heavy fall of snow; when they reached the track of the Lake Erie & Western Eailroad the evidence, while conflicting, tends to show and the jury were warranted in finding that the crossing gates were not lowered and the automatic alarm gongs were not sounding. As they proceeded across the last mentioned tracks, and southward, toward the tracks of the defendant company, the plaintiff was walking somewhat in advance of his wife, and when the latter reached the track of the defendant company she fell, and almost immediately thereafter, while plaintiff was attempting to assist her in rising or to lift her from the track, they were both struck by an engine, which, with another engine, was hauling a passenger train owned and operated by the lessee company, resulting in injuring the plaintiff and causing the death of his wife. The train was from fifteen to twenty-five minutes behind its schedule time, and was approaching from the northwest on a down grade. While the evidence as to the speed of the train is conflicting, we are of the opinion that the jury were justified in finding from the evidence that the train was then running at a speed of from twenty-five to thirty miles an hour. The evidence tends to show that the engine whistled when it left the Union Station, a distance of about half a mile west and north of the Allin street crossing, and again as it approached the crossing at Howard street, being the next street west of Allin street, and that several sharp, shrill blasts of the whistle, designated danger signals, were sounded after the train crossed Front street and as it approached Allin street.

It is insisted on behalf of defendant that a verdict should have been directed in its favor, first, because the evidence fails to show that the deceased was injured as the approximate result of any negligence charged in the declaration, and that the evidence does not sustain the negligence alleged in the declaration; second, because it insists that appellee who was in advance of his wife, and had crossed the track in safety, should not have returned to the track where his wife was in danger for the purpose of assisting her across, and that in doing so he was not in the exercise of due care and caution for his own safety. Whether he had so crossed the tracks and if so, whether in returning to assist his wife he was in the exercise of due care, etc., was a question of fact for the determination of the jury, and they, by their verdict, have found that he was in the exercise of due care and caution for his own safety and we are not inclined to disturb the verdict oil that ground. From all the facts as disclosed by the evidence we are not disposed to hold as a matter of law that it was negligence on the part of the husband to undertake to assist his wife in the time of danger to a place of safety. What we have heretofore said with reference to the state of the proof as to the speed of the train and the failure of defendant’s lessee to lower the gates as said train approached the Allin street crossing disposes of the contention that the evidence fails to sustain the negligence of defendant lessee as alleged in the third and fourth counts of the declaration. Conceding, as claimed by defendant, that in order to sustain a recovery in actions of the character here involved it is necessary to aver and prove three elements: (1) existence of a duty on the part of the defendant to protect appellee from the injury which he received; (2) the failure of the defendant to perform such duty; (3) the injury resulting from such failure, it is further held in McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232, that the absence of any one of these elements either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence even after verdict.

What has been said by our Presiding Justice Baume in an opinion heretofore filed in an action brought by appellee as administrator of the estate of Mary Schmalfeld, deceased, versus appellant, 156 Ill. App. 1, regarding the pleadings and the sufficiency of the declaration therein, is applicable and applies equally to the first, second, third and fourth counts of the declaration in this case, the declarations being identical with the exception that the fifth or additional count filed in that case was not filed in this case.

The contention of defendant that the plaintiff and Ms wife saw the train approaching when they were upon the track of the Lake Erie & Western Railroad is not supported by the evidence. The plaintiff testified .that when he reached the track of said railroad he looked east and west for an approaching train but saw none. No witness testifies to the contrary and no facts and circumstances tending to contradict the plaintiff are apparent in the record. There is evidence tending to show that when the plaintiff and his wife reached a point about midway between the track of the defendant and the track of the Lake Erie & Western Railroad they might have observed the train as it turned at or about Front street in a southeasterly direction toward the Allin street crossing, a distance of about 370 feet.

There is evidence tending to show that when the plaintiff reached the track of the Lake Erie & Western Railroad he heard the engine whistle for the Howard street crossing, and the evidence tends to show that such signal was given as the train approached said crossing, but that subsequent thereto the whistle was not again sounded until the engine reached a point on the track about opposite the tower-house when the danger signals were sounded. The deceased had a right to rely upon the observance by defendant’s lessee of the provisions of the speed ordinance, and the jury were fully justified in finding that if such ordinance had been complied with the plaintiff would have crossed the track in safety. The violation by defendant’s lessee of the provisions of the speed ordinance was properly found to be the proximate cause of the injury to plaintiff, unless it appears from the manifest weight of the evidence that want of due care upon his part contributed to his injury, and upon the evidence in this record we are not justified in so holding, hut must hold the verdict to he conclusive upon such issue.

It is insisted in the criticism of instructions that the plaintiff’s first instruction is erroneous. This instruction related to the question of the credit to be given to any person who had testified falsely, especially so far as the testimony is corroborated by other evidence. This instruction omitted the word “credible” and did not have the proper language “of other credible evidence” but there is nothing in the record in any way to show to the jury whether this instruction was given on behalf of the plaintiff or defendant and it could not have done any greater injury to the defendant than to the plaintiff and there is no showing that the appellant was injured in any way thereby.

Appellant also criticises defendant’s refused instruction No. 3. While this instruction contained the correct principle of law that the rights of appellant and appellee were mutual upon the crossing, the instruction is in argumentative form and also undertakes to inform the jury that by reason of the momentum by .which railroad trains are run, and there being but a single track for them to go upon, that they thereby obtained a greater right at the crossing and does not in any way attempt to limit the use of the crossing by appellant to the rules of law which it is required to comply with; there was no error in refusing this instruction.

Criticism is also made of the refusal of instruction No. 15. This instruction is based upon the testimony of the engineer and the instruction assumes as a matter of fact that the testimony of the engineer was true notwithstanding the record discloses a serious conflict therein and it was not error to refuse this instruction.

We find no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Dora Wolkau, Appellant, v. Fred Wolkau, Sr., Appellee.
    Separate maintenance—proper practice where bill is multifarious. Where a hill for separate maintenance attempts to raise questions as to ownership and right of possession of property in no way connected with the action, it is proper for the court to dismiss that portion of the hill without prejudice.
    Separate maintenance. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    John E. Pollock, for appellant.
    Hart & Fleming and Martin Brennan, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant commenced action for separate maintenance against appellee in the McLean Circuit Court. The cause was referred to a master; the master made his report of findings of law and fact, and exceptions were taken to his report. Upon the hearing before the chancellor the master’s report was approved, and the bill was dismissed for want of equity. Appellant prosecutes her appeal to this court to reverse that decree.

In the bill filed in this cause appellant charges appellee with being guilty of extreme and repeated cruelty and for violating his marriage obligation by being criminally intimate with other women.

The evidence in this case as taken before the master is quite voluminous and after a careful consideration of the samé we find that while the appellant has testified to numerous acts of extreme and repeated cruelty these were each and all of them specifically denied by the appellee and there is no evidence in the record corroborating appellant by any persons who actually saw any acts of violence committed. While it is true appellant showed bruised spots and -other indications of rough treatment to her, which she informed the witnesses were caused by appellee, none' of these witnesses ever saw any' of the acts committed or know anything about it other than that told by appellant.

There is one instance particularly where one witness testified that appellee threw a bucket at appellant but it did not hit her and she was not injured thereby. Tie used improper language towards her and talked to her in a manner unbecoming that of a husband, but the evidence further discloses that appellant was continually nagging at appellee and on various occasions used language that actually intended to provoke the outbursts on the part of appellee, and we cannot say that the findings of the master and the decree of the chancellor upon the question of the extreme and repeated cruelty is unwarranted by the evidence, and we are not able to say that the finding is manifestly and clearly against the weight of the evidence in this cause.

Upon the charge of adultery contained in the bill, there is no evidence even tending to show any improper relations with more than one woman and while it is shown that he frequently visited this woman and while he was away from appellant spent considerable of his time at her home, that he at one time purchased a piano for her, that by reason of the serious objections urged and insisted by the daughter of appellant, the piano was taken from the woman and returned to the parties from whom it was purchased, and while his acts cast a very serious suspicion upon his conduct, we are not prepared to say that upon this question the finding of the master and the decree of the chancellor is manifestly against the clear weight of the evidence in this cause as all acts charged are specifically denied by appellee and we do not feel justified or warranted in setting aside the decree of the chancellor on either of these charges.

The master in his findings found that appellant was not living separate and apart from appellee without fault on her part, and from the mass of evidence taken in this case, showing the relations that existed between these parties, their conduct towards each other, we are not prepared to say that this finding is not warranted by the evidence.

The bill besides charging appellee with improper relations and conduct, contained averments that he was in possession of and had been for more than twenty years in possession of and received rents and profits of certain premises belonging to appellant and asked for an accounting between appellant and appellee concerning this property. The chancellor in his decree found that in this respect the bill was multifarious and refused to entertain jurisdiction or hear any evidence regarding the possession or rights of the parties concerning this property. and dismissed the bill as regards all allegations concerning the rights or interest of the parties to this property without prejudice for the reason that the rights and interests of the parties concerning this property were not germane to the action for separate maintenance. The principal relief being sought by this bill was for separate maintenance and the question as to whether or not the property over which the questions were attempted to be raised as to ownership and right of possession and rents and profits were in no way connected with the action for separate maintenance and sustained no relation thereto and in this respect the bill was multifarious and the chancellor was not only justified but it was the proper practice to dismiss that portion of the bill without prejudice and in entering that order the chancellor committed no error, and upon this whole record we are not prepared to say and do not feel justified in finding that the chancellor erred in any respect in entering the decree in this cause and it is, therefore, affirmed.

Affirmed.


text:
    George Morgan, Defendant in Error, v. Wabash Railroad Company, Plaintiff in Error.
    1. Master and servant—duty to furnish safe place. While the general rule of law is that the master must use reasonable care to furnish a reasonably safe place for his servant to work, this rule is always subject to limitations and exceptions, and one universal exception well recognized is that where the master has used reasonable diligence to provide a reasonably safe place for the servant to perform his work and in the prosecution of that work changes are produced in the conditions of the place where the servant is required to work and these conditions are in the performance of the work for which the servant is employed and only temporary, the rule does-not require the master to keep the place reasonably safe at all times under such changed conditions, and the rule has no application where the master does not make or create the conditions but they are created by the progress of the work and the men engaged in it. This general rule is also subject to the exception that it does not apply to servants whose duty it is to see that the place is kept in a reasonably safe condition and whose duty it is to remove or remedy any defects which arise therein by reason of the work performed by the servant.
    2. Master and servant—employment of insufficient number of servants. The fact alone that a master fails to employ a sufficient number of men to do the work in question does not constitute a cause of action.
    3. Master 'and servant—when doctrine of assumed rislo applies. A servant assumes the risk of injuries from all conditions of which he has equal knowledge with the master to know and which are open to his observation and which he might have easily known by the use of his sense of observation.
    Action in case. Error to the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed.
    Opinion filed October 18, 1910.
    Hugh Crea and Hugh W. Housum, for plaintiff in error.
    Jack & Deck, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This suit was an action of trespass on the case, to recover damages for alleged personal injuries, brought by George Morgan against the Wabash Bail-road Company, in the Circuit Court of Macon county. The trial resulted in a verdict in favor of plaintiff below for $1,500. A motion for new trial was overruled, judgment was entered on the verdict, from which judgment the defendant below has prosecuted this writ of error to this court.

The declaration in this case charges plaintiff in error with a failure to perform its dirty in providing defendant in error with a reasonably safe place in which to discharge his duties, and in charging the failure to do this alleges that in one of the departments at the shops of plaintiff in error was a certain scrap pile or scrap heap whereby the different kinds and qualities of old and refuse iron were collected, separated and placed into bins, that this old iron and refuse.material was hauled into the department upon cars, that the tracks were depressed here, a platform was built that came even with the floor of the cars, that on either side of the tracks was a platform or passageway eight to ten feet wide, and that on either side of that passageway was erected certain bins for the receipt of the various kinds of scrap iron and material; that there was a certain piece of machinery used in connection with this that was used for cutting away the old and refuse scrap from the portion of the material that was desired to be saved.

The declaration alleges that it was the duty of defendant in error to assist in taking care of unloading this old. iron and refuse material and place the same in the proper bins; that to do this it became necessary to use the various passageways or platforms built between the bins and the track and that it was the duty of plaintiff in error to keep this passageway free and clear so that the same would be a reasonably safe place in which defendant in error might perform his duties.

, The first count alleges a failure to keep this place in proper condition by permitting and allowing the passageway to become accumulated and blocked with refuse iron, scrap and old material whereby it became dangerous and unsafe. This count also alleges that plaintiff in error employed a certain servant for this purpose and that it negligently and carelessly removed the servant in the performance of this work whereby it became so obstructed, and that defendant in error was not aware and did not know of this condition by reason whereof he was injured, etc.

The second count is almost identical with the first but avers as a neglect of duty that the plaintiff in error failed to employ servants, whose duties it was to keep said passageway clear, free from obstruction, etc., and by reason of the failure to so employ such servants it became obstructed, clogged and full of iron and refuse materia], by reason of which defendant in error was injured, etc.

Plaintiff in error insists that the judgment should be reversed for the reason that the injury to defendant in error was not caused by reason of any negligent act on the part of plaintiff in error, but his injury was one of the ordinary risks assumed by him in his employment; also for the reason that it became and was a part of the duty of defendant in error to assist in keeping this passageway free and clear of these obstructions and further that at the time the passageway became so obstructed that defendant in error was not using due care and caution for his own safety and further for the reason that the condition was open, obvious and apparent to any person using his faculties of sight and observation in the exercise of due care and caution for his own safety and that defendant in error had equal, if not better, opportunity to know the condition than did plaintiff in error.

Plaintiff in error at the close of the evidence for plaintiff moved the court to instruct the jury to find for the defendant, which instruction and motion were overruled; the motion and instruction were renewed at the close of all the testimony and again overruled.

The record in this case discloses that defendant in error was in the employ of plaintiff in error as a common laborer for the purpose of removing scrap iron, old material and refuse material from the flat cars at its shops at Decatur to various bins constructed along the side of the track upon which the cars were placed for the purpose of unloading; that it became necessary with certain of the material or scrap that was brought in upon these cars to take the same from the cars to a compressed air cutting machine, which was used for the purpose of cutting off the material that might be saved and separating it from the old scrap and refuse material and whenever this was necessary it became a part and was a part of the' duty of defendant in error to do this work, and it became and was a part of his duty in unloading the scrap and material from the cars to place the same at the bin where it belonged, each bin being properly designated as to the kind of material to be put therein.

At the machine the old and refuse material, accumulated and fell, and accumulated in the passageway between the bins and the car, which passageway it was necessary for defendant in eror to use in the performance of his work. Plaintiff in error employed a servant whose duty it was to remove this scrap and refuse material from this passageway and from the machine, but on numerous occasions the accumulation would be greater than he was able to remove and upon these occasions, which were numerous, defendant in error was required to and did assist in removing this old scrap and refuse material from this passageway; it was a part of his duty, as shown by the clear weight of the evidence, to assist in keeping this passageway free from obstruction.

The evidence further discloses that at the time of the injury in question defendant in error was with the other servants of plaintiff in error removing from the car a certain brake-beam and was removing the same to the cutting machine for the purpose of having the same operated upon by that machine. In carrying this brake-beam from the car to the machine defendant in error was walking backwards and while walking backwards stumbled and fell over some old scrap or refuse material which had accumulated in the passageway, the brake-beam fell upon him and he received the injury complained óf. There was nothing in any way to obstruct or- hinder the view or observation of defendant in error or to keep him from knowing that this passageway had the accumulation of iron and refuse material therein, and that in his walking backward in the direction thereof that he was liable to and probably would come in contact therewith.

While the general rule of law is that the master must use reasonable care to furnish a reasonably safe place for his servant to work, this rule is always subject to Limitations and exceptions, and one universal exception, well recognized, is that where the master has used reasonable diligence to provide a reasonably safe place for the servant to perform his work and in the prosecution of that work changes are produced in the condition of the place where the servant is required to work and these conditions are in the performance of the work for which the servant is employed and only temporary, the rule does not require the master to keep the place reasonably safe at all times under such changed conditions and the rule has no application where the master does not make or create the conditions but they are created by the progress of the work and the man engaged in it. Village of Montgomery v. Robertson, 229 Ill. 466.

The rule is also subject to the exception that it does not apply to servants whose duty it is to see that the place is kept in a reasonably safe condition and whose duty it is to remove or remedy any defects which arise therein by reason of the work performed by the servant. Kellyville Coal Co. v. Bruzas, 223 Ill. 595.

The evidence also discloses that at certain times the accumulation became so great in the passageway and at the machine that one man was unable to remove it and keep the passageway clean; and it is further insisted by counsel for defendant in error that it then became and was the duty of the master to provide and employ a sufficient number of men for the purpose of keeping this passageway free from such material and that a failure to do so was negligence on its part. Defendant in error in his employment, and which had continued for a considerable length of time, knew and was fully aware of this condition; he had been called upon on numerous occasions to assist in removing the debris, refuse and waste materials that had collected in this passageway and at the machine to clear up the passageway; he knew that there was hut one man employed for this purpose, but made no complaint of this condition of affairs, and continued in this employment, knowing the conditions; and having so continued in the employment without complaint, he cannot complain that a sufficient number of men were not employed for this specific purpose. The fact alone that a master fails to employ a sufficient number of men to do the work does not constitute a cause of action. Swift & Co. v. Rutkowski, 167 Ill. 156; Chicago & Eastern Illinois R. R. Co. v. Geary, 110 Ill. 383; C. & E. R. R. Co. v. Heerey, 203 Ill. 492.

The evidence discloses beyond controversy that whatever danger existed at the time was as obvious and apparent to defendant in error, who, the evidence discloses, was a person of ordinary intelligence, as it was to the master, and where this condition exists the law charges the servant with knowledge of such danger and he assumes the risk of injury from all conditions of which he has an equal knowledge with the master to know and which are open to his observation and which he might have easily known by the use of his sense of observation. Montgomery Coal Company v. Barringer, 218 Ill. 327; Christiansen v. Graver Tank Works, 223 Ill. 142.

The record in this case does not show that the plaintiff in error was guilty of the negligence charged in the declaration in either count thereof, neither does it show that defendant in error was in the exercise of due care and caution for his own safety at the time of the injury but it does show conclusively that the injury occasioned to defendant in error was caused by one of the risks assumed by him and was incident to his employment and for which the plaintiff in error is not liable and the trial court erred in refusing to grant plaintiff in error’s motion to direct a verdict and for this reason the judgment below is reversed, and the clerk will enter in the judgment of this court the finding of fact, that defendant in error was not in the exercise of ordinary care for his own safety and that the injury was occasioned by reason of one of the ordinary risks assumed by defendant in error incident to his employment.

Reversed.


text:
    Martha A. King, Administratrix, Plaintiff in Error, v. Illinois Midland Coal Company, Defendant in Error.
    1. Master and servant—when order to do work does not remove operation of doctrine of assumed risk. An order which does not require a servant to do the work directed in any particular manner and which is not a specific order to do or perform any act outside of the line of his employment, the appliances for doing such work without danger being provided, is not such an order as will operate to avoid the assumption of risk or relieve the servant from its obligation.
    2. Contributory negligence—what lack of ordinary care will har recovery. The law requires a plaintiff suing for personal injuries to show the exercise of due care and caution and any lack of due care and caution will defeat a recovery if the same contributed to the injury complained of.
    3. Instructions'—when inaccuracies will not reverse. Slight inaccuracies in instructions will not effect a reversal.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    A. Salzenstein and John L. King, for plaintiff in error.
    Brown, Wheeler, Brown & Hay, for defendant in error; Mastin & Sherlock, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

Defendant in error was engaged in mining coal. In connection with its business it had in use a mechanical device for loading coal in box cars; this device was known as a rocker; it was constructed at the tipple of the mine and was a device which permitted box cars, when being loaded with coal, to be tipped by raising one end higher than the .other for the purpose of placing the coal in the ends of the car. The machinery which operated this rocker was underground, upon each side of the car, and at either end of the rocker platform were two rocker arms projecting above the surface of the ground about four and a half feet; they were about two feet in width, and were constructed about five feet from either rail of the track upon which the cars were placed for loading and came within about six inches of the side of the box car when placed upon the rocker to be loaded.

Plaintiff’s intestate was employed by defendant to work around the top of the mine and to perform duties in connection with the setting of box cars upon the rocker and loading the same, and his duties also required him to do and perform whatever work might be required to be performed by a-laborer at the top of the mine. Deceased had been in the employ of defendant about a day and a half, but had previously been employed in other mines, one at Riverton, in the same capacity.

Upon the day in question the superintendent of the mine was having placed on the rocker platform a box car for loading; four other cars were coupled to this car and in moving it to the rocker it became necessary to run the four other cars past the rocker, uncouple them and stop this car upon the rocker; as the car approached the rocker platform deceased was directed by the foreman to uncouple it from the others; while attempting to do this deceased was caught between the side of the car and the rocker arm which extended four and a half feet above the surface of the ground on the west side of the car, this being the northwest rocker arm of the loading device.

Plaintiff’s intestate was injured and died a short time after the injury. This action is brought by bis administratrix to recover for his death. The trial below resulted in a verdict for defendant and a judgment against plaintiff for costs, and to reverse that judgment she prosecutes her appeal.

The declaration on which trial was had consisted of two counts, being the second and third amended counts; upon the first count a verdict was directed by the trial court on the ground of variance; no errors are assigned thereon. The two remaining counts of the declaration charge defendant with negligence in failing to provide a reasonably safe place in which deceased could perform the services required of him, and that deceased was ordered and directed to do a specific thing by defendant’s superintendent and in the performance of that thing plaintiff’s intestate was injured, and that by reason of the specific direction the doctrine of assumed risk does not apply.

The record in this case discloses that deceased was employed by defendant only a short time previous to the accident; that his duties required him to do any work required to he done by the superintendent at the top of the mine and that this included the setting and placing of box cars upon the rocker to be loaded and to work around the cars, when the same were being loaded.

Upon the day in question there were five cars upon the siding and in order to place the car, which it was decided to load, upon the rocker platform at the tipple it became necessary to run four cars past the tipple and over the rocker; as these cars approached the rocker they were running at about three miles per hour. The cars were supplied with an automatic coupler which was operated by an arm or lever connected with a pin which coupled the cars; the arm or lever extended to the outside of the cars and it was unnecesary to go between- the cars for the purpose of coupling or uncoupling them. As these cars approached the tipple and the rocker the superintendent of defendant attempted to uncouple this car from the other cars and after making such attempt, climbed upon the. car for the purpose of setting the brake and stopping it upon the rocker, but not knowing whether his attempt to uncouple the car was successful, as the car continued to approach the rocker and was about ten or twenty feet therefrom, the superintendent ordered and directed deceased to uncouple this car from the other cars. This order was misunderstood by the deceased and he picked up a stick of wood to block the car so as to stop it at this point. He was then again told by the superintendent of defendant to uncouple the car from the rest and be careful and not get hurt in doing so. He then undertook to uncouple the car; whether he did it by the use of the lever is not known, as the next seen, or heard of him, was when he screamed at the time of the injury. Parties then looking in his direction saw that he was caught between the rocker arm and the car. The rocker arm which was a part of the machinery of the rocker platform was so constructed that it was impossible for any one to pass or remain between the car and this rocker arm without being injured.

At the time of the direction given to plaintiff’s intestate, the car was at least ten feet from the rocker arm and was moving at about three miles per hour. The rocker arm was in plain view and from the point at which deceased was injured it was easily discernible; and it was patent, to any one using his sense of sight, that it was impossible to pass or be between the car and this rocker arm. The order given to plaintiff’s intestate did not command or direct him to do any act which was dangerous or calculated to harm or injure him and the order and direction so given was one of the necessary and usual orders required for the performanee of the duties for which plaintiff’s intestate was employed. The order did not require the deceased to do the work in any particular manner and the appliances for executing it without danger were provided. It was not a specific order to do or perform any act outside of the line of employment for which deceased was engaged, and was not such an order as could operate to avoid the assumption of risk or relieve the deceased from its application. Linderman Box & Veneer Co. v. Thompson, 127 Ill. App. 134; I. C. R. R. Co. v. Sporleder, 199 Ill. 184; Dolese & Shepard Co. v. Schultz, 101 Ill. App. 569.

Plaintiff criticises the instructions given on behalf of defendant and it is insisted that the question of assumed risk should not have been submitted to the jury. Plaintiff is not in position to raise this question, upon this record, for the reason that the instructions offered and given on behalf of plaintiff submitted to the jury the same question, and having by her own instruction authorized and requested that this question be submitted to the jury, she cannot complain that defendant submitted instructions of a like character.

Plaintiff criticises the sixth instruction given on behalf of defendant and insists that the instruction is bad. The instruction is as follows:

“The court instructs the jury that if you believe from the evidence in this case that John King, deceased, at and just prior to the time of the accident, was not in the exercise of due care and caution for his own safety which a person of reasonable prudence would have exercised under the same or similar circumstances, and that his negligence in any manner, no matter how slightly, contributed to the accident, that in that event your verdict should be for the defendant. ’ ’

This instruction informed the jury that it is necessary for plaintiff to show that her intestate was in the use of ordinary care at the time of and just before the accident and directed the jury that if they found that the lack of ordinary care upon the-part of plaintiff’s intestate contributed, even slightly, to the injury then plaintiff cannot recover. This instruction does not tell the jury that slight negligence on the part of plaintiff’s intestate would prevent a recovery but that where the lack of ordinary care contributed in any degree to the injury then the plaintiff cannot recover; this is the correct rule of law. The law requires that plaintiff shall show the exercise of due care and caution on the part of her intestate and any lack of due care and caution on his part, which contributed to the injury, no matter how slight, will defeat a recovery, and this is the rule applied by this court in Harvey v. C. & A. Ry. Co., 116 Ill. App. 507, and there was no error in giving this instruction.

It is insisted also that the court erred in giving instruction No. 5 on behalf of defendant. This instruction related to the question of damages and the jury, having found for the defendant; it is self-evident the jury never arrived, at the point where it became necessary to consider the question of damages and that although this instruction is inaccurate, it is not such an instruction, considering the finding of the jury for the defendant, that would require a reversal. We think the jury was warranted in the finding made by it and we find no reversible error in any of the instructions given by the trial court.

The judgment is, therefore, affirmed.

Affirmed.


text:
    Paul Dobbles, Appellee, v. Electric Coal Company, Appellant.
    Mines and minees—what essential to recovery for wilful violation. Before a plaintiff can recover in an action under section 18 of the Mines and Miners Act he must show that the proximate cause of the injury was the wilful violation of the statute by the defendant.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    O. M. Jokes and Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    S. M. Clark and C. H. Beckwith, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee to recover for an injury in a mine of appellant. Trial below resulted in a judgment for appellee for $650; appellant prosecutes this appeal to reverse that judgment.

The declaration in this ease contains but one count and is brought under section 18 of the statute relating to mines and miners, for a wilful violation of the statute. The violation charged in the declaration is that appellant permitted appellee, who was employed by appellant as a mule driver, to go into the mine without said mine having been duly and properly inspected and a record made thereof by the mine examiner, and in permitting the mine to be in an unsafe condition at the time when it permitted appellee to enter for the performance of his work; that a large mud hole, filled with water, was allowed to be and remain in the middle of the roadway at the intersection of the west main entry and a cross-cut running north from this main entry at a point where the track in the cross-cut connected with the track in the main entry; and further charges that appellee, while in the performance of his duties and upon the car in the usual and customary manner, was driving the mule, it shied at the mud hole, kicked the switch which caused the car to run on the track in the cross cut, the mule proceeded up the main Avest entry and because thereof, appellee was thrown from the car and. received his injury.

The section of the statute under which a recovery is sought requires that a mine examiner shall be employed at all mines, that it is his duty to visit the mine before men are permitted to enter and he shall inspect the places where men are expected to work or pass, and observe whether there are any. recent falls or obstructions in the roadway or room; or whether there is an accumulation of gas or any other unsafe conditions, and shall mark the same upon the Avails, etc.

Before the plaintiff can recover in an action under this section of the statute, he must show that the proximate cause of the injury was the wilful violation of the provisions of the statute by appellant; this statute is intended to impose, obligations upon mine owners for the protection of the miner from injuries which are incident to the operation of the mine, and appellant is not liable by reason of its provisions for any neglect of duty which falls within the ordinary rules of law regarding negligence which are not incident to the operation of the mine. Girard Coal Co. v. Wiggins, 52 Ill. App. 69. The existence of the mud hole complained of Avas not the proximate cause of the injury to appellee, the mud hole in itself was not dangerous and the injury to appellee was not caused by reason of it, or by reason of appellee coming in contact with it, but his injury was caused by reason of the habit of the mule in shying. The mud hole was only a condition which made the injury possible when in connection with the shying and kicking of the mule, and it required the combination of these two conditions to cause the injury.

Before a recovery can be had under this statute for a wilful violation thereof there must have been a failure to perform some act required by the statute, and that act must have been knowingly done or the requirements knowingly omitted or the knowledge of the doing of such act or its omission must be chargeable to the mine owner by reason of a failure to use ordinary diligence and caution on his part to. determine the same, but the statute does not apply to an ordinary act of negligence under the common law. Catlett v. Young, 143 Ill. 74; Peterson v. Pusey, 237 Ill. 204; Peebles v. O ’Gara Coal Co., 239 Ill. 370.

The record discloses that appellee was aware of the habit of the mule and there is no evidence that appellant had any knowledge or information regarding it and neither is there any evidence tending to show that appellant had any information or knowledge regarding the condition of the track. The conditions that here existed are not a violation of the section of the statute complained of and under which a recovery is sought in this,case. At most, it could only be a question whether or not appellant furnished appellee with a reasonably safe place to perform his labors under the ordinary and usual rules requiring the master to furnish a reasonably safe place in which to perform the work. This record does not disclose any dangerous condition or negligent act within the contemplation of the statute so as to render appellant liable for wilfully permitting plaintiff to enter this mine at the time in violation of the statute.

From the view we have taken of this case it becomes unnecessary to pass upon the other questions raised by this record. The judgment is reversed and the clerk will enter in the judgment herein a finding of fact that appellant was not guilty of a wilful violation of the statute.

Reversed.


text:
    Carrie A. Smith, Appellee, v. Dr. Ernest Mammen, Appellant.

      Evidence—when admission of, invading province of jury will reverse. To permit a witness to express an opinion as to a material fact which the jury are required to determine, is so prejudicial as to require a reversal.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Welty, Sterling & Whitmore, for appellant.
    Stone, Oglevee & Franklin, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This action is brought by appellee to recover damages for alleged malpractice against appellant, Dr. E. Mammen. Appellee had been for some time under the care of Dr. Rhodes, a regularly licensed physician of Bloomington. In the course of her ailment a consultation of physicians was deemed advisable and Dr. Chapin was called in consultation. This consultation resulted in the determination that an abdominal operation w;as necessary and it was finally decided that Dr. E. Mammen, appellant, who was a regularly licensed physician and surgeon, should be engaged to perform this operation.

Appellee was taken to the hospital where the operation was performed by Dr. Mammen assisted by Dr. Chapin, Dr. Rhodes, and Dr. Hart, an assistant of Dr. Mammen. The regular trained nurses of the hospital assisted the surgeons.

The negligence charged in the declaration against Dr. Mammen is, that he left a sponge in the abdomen of appellee and that by reason thereof appellee became seriously ill and was injured in health.

The trial below resulted in a judgment against appellant for $2,400 and it is to reverse this judgment this appeal is prosecuted.

The record in this case discloses that appellant performed an abdominal operation upon appellee, that in the performance of this operation it was not only necessary to use sponges in the abdominal cavity, where the operation was performed, but that it also became necessary to pack the vagina of appellee with sponges in order to hold the organs in their proper position, and the question of fact at issue in this case, as conceded by appellee is, whether the sponge which was left in the body of appellee was one that was packed in the vagina or was one that had been used in the abdominal operation and left in the abdomen after the performance of the operation.

The evidence upon this question is so close and of such importance that it is necessary that the case shall be tried without error either in the admission of evidence or in the instructions to the jury, and as we find it necessary to reverse this cause on errors committed by the trial court, we refrain from expressing any opinion on any questions of fact involved in this case.

The record discloses that a short time after the performance of this operation appellee was again troubled with pains, nausea and required the further attendance of a physician, and upon her sickness at this times a Miss Charles was employed to attend her as nurse. While in attendance upon her, appellee was taken to the water closet and placed upon a jar for an expected movement of the bowels. Miss Charles, the nurse, accompanied her and was with her during this time. After appellee arose from the jar, on examination of the contents of the jar, it was found that it contained the sponge offered in evidence in this trial as plaintiff’s Exhibit “A;” and upon the contention of appellee that the sponge passed from her bowels and rectum, Miss Charles was a witness in her behalf and the trial court permitted Miss Charles in her testimony in describing what occurred at the time appellee used the jar to give the following testimony, over objection of appellant.

“Q. Tell the jury what occurred?”

“A. There was something passed from the bowels while she was on the jar.”

On motion of appellant the court refused to exclude the answer.

“Q. Tell thé jury anything else you observed?” “A. I heard whatever it was fall into the slop jar and Mrs. Smith got up and looked into the slop jar to see what it was. All I could see was the sponge.”

“Q. You said whatever it was came with force. Tell what you mean by the word ‘ Force. ’ ”

“A. It came with such force from the gases in the bowels and it was the gases that forced it from the bowels.”

The court also refused to exclude this answer on motion.

The question involved in this case as to whether this sponge at that time passed from the vagina or from the bowels is so close under the evidence that the court should not have permitted Miss Charles to have expressed or given any opinion as to where" the sponge came from. At most it could only be a conjecture or guess by her. She had no positive information or means of knowing where the sponge came from except from what she heard and saw and to permit her to express her opinion upon this vital question of fact was such an error and so prejudicial to appellant as to require a reversal of this cause. It was proper for the court to permit her to detail 'all of the circumstances connected with the finding of the sponge in the jar but not to permit her to express ah opinion as to where it came from.

It is insisted by appellant that the trial court permitted the questions submitted to expert witnesses of such leading character as to be prejudicial to appellant. While the questions asked by appellee’s counsel were leading and in a great many instances pointedly suggested the answer desired from the witness, we find no objections to these questions by appellee at the time on account of their being leading and appellant is not in position to raise that point at this time upon the questions propounded to the expert witnesses. The questions were not framed to elicit an expert opinion upon the evidence but rather upon possible conditions submitted therein to the witness.

Appellant attempts to take the position that appellee assumed the risk complained of in the declaration by reason of having employed appellant to perform the operation but this position is so wholly untenable and unreasonable that we do not desire to discuss it other than to say that we cannot accede to such a proposition.

Appellant also complains of instructions Nos. 1 and 2 which were requested by him and refused by the trial court. Both instructions are practically the same, one being expressed in a little greater length than the other, but they are based upon the theory of appellant in this case; the declaration charges that the negligence of appellant consisted in leaving the sponge in the abdominal cavity after the performance of the operation and these instructions attack that theory and are based upon the theory of appellee- that the sponge was not left in the abdominal cavity but was one used in the packing of the vagina and if that be the fact, then appellee’s declaration was not proven and appellant had the right to have this question submitted to the jury by proper instructions, and under the rule that it is necessary in cases where the questions of fact are close upon the evidence and the evidence very conflicting that the jury should be properly and accurately instructed and that appellant is entitled to have the jury instructed upon his theory of the case, one or the other of these instructions should have been given to the jury and it was error to refuse.

We do not deem it advisable to go into this case any farther than above set forth. Upon the other questions urged as error in this case, they will undoubtedly be corrected at another trial. For the reasons herein expressed the judgment below is reversed and the cause remanded.

Reversed and remanded.


text:
    Martin Shea, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Railroads—when not liable for double amount expended in erecting farm crossing. Before a recovery can be had of a railroad company for double the amount expended by an owner in erecting a farm crossing, such owner must bring himself within the reasonable provisions of the statute which requires the construction of such crossing.
    2. Railroads—when not obligated to construct farm crossing. Held, under the evidence in this case, there being no public highway to which access was desired and no reasonable necessity for the construction of such a crossing, the railroad was not obligated to construct the same merely because it might serve the personal convenience of the owner.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Coles county; the Hon. W. B. Scholfield, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Gillespie & Fitzgerald and James Vause, Jr., of counsel.
    James W. & Edward C. Craig, for appellee;
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover a penalty, under the statute, for double the amount expended by appellee in putting in an alleged farm crossing across the right of way of appellant, and the alleged failure of appellant to build said crossing after notice'by appellee. Judgment below was for appellee for $67.40, being double the amount expended in the construction of said crossing.

Appellee, for a number of years, has owned sixty acres of land lying on the north side of the right of way of appellant; appellee has owned and farmed this sixty acres for forty years or more, during all of which time appellant or its predecessors owned a right of way adjoining the south line thereof upon which trains had been continuously operated.

About six years ago the Mattoon City Street Bail-way Company desired to build a line from the city of Mattoon to the city of Charleston. It was incorporated under the statute known as the Horse and Dummy Act and had no power to exercise the right of eminent domain, and for the purpose of assisting in obtaining the right of way for this line a new corporation was formed under the act regarding the incorporation of railroads; this was known as the Central Illinois Traction Company. It had the power to exercise the right of eminent domain and condemn its right of way. This right was exercised on portions of the right of way and after the right of way was thus secured, through the Central Illinois Traction Company, the right of way was conveyed to the Mattoon City Street Railway Company and the Central Illinois Traction Company, a corporation, was dissolved, and this line between the cities of Mattoon and Charleston was built by the Mattoon City Street Railway Company, which has since that time operated and controlled it.

This Mattoon City Street Railway Company, which will hereafter he designated as the Internrban Company, built a station on its right of way immediately south of the tract of land owned by appellee, leaving the right of way of appellant between the station and appellee’s land. Appellee’s dwelling house was located on the north side of the tract of land farmed by him. There was a public highway running east and west north of this tract but there was no highway -running south except about a mile and a half to the east or west of appellee’s house and upon these highways was the only means of access to the depot or station located by the Interurban Company. The Interurban Company was engaged in hauling and delivering freight as well as passengers. Appellee desired to use this Interurban line for the purpose of going to and from the city of Mattoon and Charleston in shipping butter, milk and eggs thereon, and for the purpose of access to the Interurban station desired a crossing constructed across the right of way of appellant and to secure this he served written notice upon appellant to build and construct such crossing, basing his right upon the statute requiring railroads to construct farm crossings.

Appellant paid no attention to this notice and a short time thereafter appellee purchased one acre of ground on the south side of the Interurban Company’s right of way and south of the right of way of appellant. At the time of the purchase of this one acre of ground it was in the possession of a tenant of the party from whom it was purchased by appellee and has so continued. After purchasing this one acre tract, appellee then served a second notice upon appellant, demanding the construction of a crossing, basing his right thereon upon the said paragraph 62, chapter 114 of Hurd’s Revised Statutes of 1909, and setting forth that he was the owner of farm lands upon either side of the right of way of appellant and desired the crossing built for the purpose of use of these lands for agricultural purposes. Appellant still paid no attention to his notice. Appellee then constructed a crossing at a point selected by him and placed gates upon the right of way fences of appellant to permit the free use of the crossing so constructed. Appellant tore up and removed the crossing built by appellee, closed the gates constructed by him and notified him to cease .trespassing upon the right of way of appellant. Appellee then brought suit to recover a penalty under the statute for double the amount of the cost of construction of the crossing.

The record discloses that appellee suffered no inconvenience in the operation and management of his land for agricultural purposes more than forty years for lack of farm crossing, notwithstanding appellant or its predecessors continued, during all of that time, to operate a line of railroad adjoining its south side. There was no public highway which he desired to reach upon the south thereof and no necessity or desire for a farm crossing existed until after the construction of the station along the line of the Interurban Company, about six years ago, and while it may be a convenience for appellee to have a farm crossing constructed at this point, he must bring himself within the reasonable provisions of this statute under its proper construction before he can either force appellant to build such crossing for his Convenience or- recover the value thereof upon a failure to so build by appellant after notice.

Considerable time was spent in argument by counsel as to whether the farm crossing was a matter of right where a railroad right of way divides farm lands owned and operated by one proprietor; but this condition does not exist or arise from the facts in this ease and it is unnecessary for us to consider that question.

Upon the question as to the sufficiency of the notice given" to construct a crossing in this case, the notice specifically described each tract of land, but did not indicate any particular point at which the crossing was desired. We are of the opinion that the notice was sufficient without designating any particular point or location for the crossing and that the railroad company under the notice, if required to build the crossing at all, would have had the right to select the proper location therefor. The courts have held the railroad company is required to construct a farm crossing where such crossing is required for the reasonable convenience and occupation of the farm by its owner, and have held that where a farm crossing is necessary for the purpose of reaching a public highway, which is cut off or separated from the farm by a railroad, it then becomes the duty of the railroad to construct such farm crossing, but under the facts in this case there is no public highway to which access is desired and the only object of obtaining this crossing is for the personal convenience of appellee to obtain access to the depot of the Interurban Company; and it is conceded by appellee that the Interurban Company is not a railroad incorporated under or operated under the general railroad act of this state; consequently it does not fall within the rule declaring railroads to be public highways. This statute does not require railroad companies to build a farm crossing for each individual along its right of way who might desire to avoid a more circuitous route along the public highways to reach the station for the personal convenience of the owner of land upon the opposite side of the road upon which a station is located, and the rule would be no different whether the station, so located, is upon the line of the company across whose right of way the crossing is desired or upon the right of way of another company immediately adjoining. A railroad company is not required to build these crossings for the personal convenience of the owners; before they can be demanded as his matter of right, they must relate to the reasonable convenience of the operation of the land as a farm.

The right to farm crossings is not one that may be invoked for the purpose of supplying the place of public highways. If appellee is in such position that a public highway is necessary, not only for himself but for other people to gain access to this Interurban depot, he might take the necessary steps to secure the opening of a highway by the highway commissioners. He does not come within the requirements of the statute giving him the right to demand a farm crossing; consequently he was a trespasser upon the right of way of appellant company in building the crossing at the place where he so constructed it, and the company had the right to tear up and remove the same and appellee is not entitled to recover the costs of the construction thereof from appellant.

The trial court erred in refusing to hold the following fifth and sixth propositions of law requested by appellant:

“The court holds as the law in this case that Shea is not entitled to a crossing over defendant’s right of way by reason of the location of the station of the Mattoon City Railway Company on the south side of the defendant’s right of way.”

“The court holds as the law in this case that the plaintiff, Shea, is not entitled to recover the penalty sued for.”

And for this reason the judgment of the trial court is reversed.

Reversed.


text:
    Ellen Kilcummings, Administratrix, Appellee, v. Springfield Consolidated Railway Company, Appellant.

      Negligence—when failure to ring hell or sound whistle does not constitute. If a train is approaching a crossing a failure to sound a gong or give other warning of approach is not negligence which will sustain a recovery if the sounding of such gong or the giving of such warning would have afforded no more information to the person injured than he already possessed, there being no complaint of the violation of any statute or ordinance requiring the giving of "any warning.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Wilson, Warren & Child, for appellant.
    Smith & Friedmeyer and C. F. Mortimer, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Action brought by appellee against appellant for the death of appellee’s intestate by reason of being hit by a ear at or near the intersection of Seventh and Washington streets in the city of Springfield, as the result of which injury plaintiff’s intestate died. The judgment below was for appellee for $4,750; to reverse that judgment this appeal is prosecuted.

The grounds urged by appellant for reversal are, that the record does not sustain the charge of negligence in the declaration, and that appellee’s intestate was not in the exercise of due care for his own safety.

•The record in this case discloses that on the night of the twenty-eighth day of March, 1909, the plaintiff’s intestate, who was a miner and fifty-three years of age at the time of the injury, at about 11:30 p. m. started from the business district of the city of Springfield to his home. He went to the corner of Washington and Seventh streets where he expected to board a car of appellant. While at this corner he stopped for some minutes to converse with a friend, Burnstein, who kept an eating stand erected upon the sidewalk along the side of the building on the northeast corner of Seventh and Washington streets. While standing conversing with Burnstein and waiting for his car, he saw a car approaching upon the east-bound track, being the south track upon Seventh street; this was the car deceased intended to take; as the car approached, he bade his friend, Burnstein, good night and started across the street to the point where this car usually stopped for passengers, being at the south side of Washington and the east side of Seventh street. As he attempted to cross the street to reach this point a west bound car approached; he waited for the west bound car to pass and immediately after the west bound car had passed, he crossed the west bound track and without undertaking to ascertain or noticing where the east bound car he had seen approaching was at the time, he stepped in front of it and was struck by the fender of that car. The injuries which he received resulted in his death about five hours after the accident.

The declaration filed contains two counts; one charging a failure to give any sound or warning of the approach of the car at this crossing; the other alleging negligence in running the car at an excessive and high rate of speed.

Upon the charge of negligence of a failure to sound a gong or give a warning of the approach of the ear at the crossing, there is no complaint of the violation of any statute or ordinance requiring appellant to sound any gong or give any warning at a street crossing, and the general rule of law, which requires or which would require appellant to give notice of warning or signal of the approach of the car, is required only for the purpose of giving notice to pedestrians or parties lawfully using the street or crossing of the approach of a car or its close proximity and the charge of negligence in this count of the declaration is that appellant failed and refused to give any such notice or warning and that by reason thereof plaintiff’s intestate was killed. The facts in this record disclose beyond controversy that the intestate knew this car was approaching this crossing, that he saw it before he started to cross the street, and that it was his intention to cross the street in time to have this car stopped at the intersection of Seventh and Washington streets that he might board it; he, therefore, was aware and knew it was approaching, and conceding that appellant did not sound a gong or give any warning of its approach at that crossing, the rule which might require, under certain conditions, notice of the approach of a car at a crossing has no application to the case at bar; and the sounding of a gong or giving any notice of warning could have given appellee’s intestate no more information that he already possessed and under these conditions, conceding appellant failed to give such a notice or warning, it was not the proximate cause of the death of appellee’s intestate. West Chicago Street R. R. Co. v. Tuerk, 193 Ill. 385; E. A. & S. Traction Co. v. Brown, 129 Ill. App. 62.

Upon the charge of negligence that the car was running at an excessive and high rate of speed the testimony of appellee’s witnesses, of which there are but two who give any testimony concerning the speed of the car, Burnstein is the principal witness, and he places its speed at from fifteen to twenty miles an hour; one other witness, Parrot, tends to corroborate him in this, but he was directly in front of the car a considerable distance from it, and had no relative means of determining its speed. The car was stopped almost immediately after deceased was hit; it did not proceed to exceed fifteen or twenty feet and the preponderance and greater weight of the evidence, not only by the number of witnesses, but of those who were in position to judge its speed, discloses that there was no excessive or unusual rate of speed in its operation and the charge of negligence in operating the car at an excessive rate of speed is not sustained by the evidence in the record; it being established beyond controversy that appellee’s intestate saw his car approaching, and anxious to board it, he left his friend Burnstein, started across the street to reach its usual stopping place that he might board it, and after waiting for the passage of the. west bound car on the north track, which was nearer to him, he immediately hurried to get across the track without in any .manner undertaking to ascertain the location of the car which he had seen approaching from the west, and without ascertaining or knowing its location he carelessly stepped in front of the car while it was in motion and in doing so he was not in the exercise of ordinary care for his own safety. E. A. & S. T. Co. v. Brown, supra.

For the reason herein expressed the reversal of the judgment of the Circuit Court is necessary, and it is reversed, and the clerk will enter in the judgment herein a finding of fact, that appellant was not guilty of the negligence charged in either count of the declaration and that appellee’s intestate was not in the exercise of due care and caution for his own safety.

Reversed.


author: Mr. Presiding Justice Freeman

text:
    Illinois Custom Tailoring Company, Defendant in Error, v. Adams Express Company, Plaintiff in Error.
    Gen. No. 15,311.
    1. Express companies—what establishes prima facie case of loss of merchandise delivered for transportation. Held, that the dates of the receipts given, by the company’s agent and other evidence tended to show that sufficient time had elapsed for the merchandise to he transported to destination and tendered to the consignee, and that this, coupled with proof that the merchandise had not been returned or the money therefor paid to the consignor, established a prima facie case of liability as against the company where it had received the merchandise for delivery c. o. d.
    2. Express companies—when limitations printed upon receipt not enforced. In the absence of a showing of knowledge of or assent to the limitations of liability printed upon a receipt issued by an express company, such limitations cannot be enforced against the consignor.
    3. Abbreviations—meaning of letters “c. o. d.” These letters have a well-defined meaning in the commercial world and evidence of such meaning is competent.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 10, 1910.
    Rehearing denied November 25, 1910.
    Charles B. Elder, for plaintiff in error.
    David K. Cochrane, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

The plaintiff sued for money claimed to he due from defendant on account of merchandise delivered to the defendant to be forwarded C. O. D. to parties designated. The issues were submitted to a jury, which returned a verdict in plaintiff’s favor for $157.53, upon which judgment was entered.

Plaintiff was engaged in manufacturing custom made clothing for customers in various parts of the country, to whom it was shipped through the defendant Express Company. In this case fourteen separate shipments were originally included. Upon receiving the packages in question the defendant by its agent signed receipts, using a printed form. These receipts were substantially like the following: “Invoice No. 65144. Acc’t No. 3489. Date 10/31/7.

Sold to Brown Bros. C. O. D. $23.50.

Town, Central P. O'., State S. C.

Illinois Custom Tailoring Co. Wholesale Tailors. The largest Custom Garment Makers in the World, 47-151 Fifth Ave., Chicago. Terms Net. Remit in New York or Chicago Exchange and make drafts payable to Illinois Custom Tailoring Co. All bills not paid at maturity subject to sight draft. Shipped Nov. 4, 1907. Received of Illinois Customs Tailoring Co., Chicago, U. S. A. The property above described to be forwarded subject to the terms and conditions of the Company's form of Receipt. ’Signed for the Company Townsend.”

There is evidence tending to show that neither the money for these goods nor the goods themselves had been returned to the plaintiff. There was evidence tending to prove defendant had tendered plaintiff six returned C. O. D. packages which plaintiff refused to receive. This evidence was stricken out. There was no other evidence offered tending to show what had been done with any of the shipments in controversy; and whether the packages so tendered were any of the goods in question does not appear.

It is urged in defendant’s behalf that “aside from the C. O. D. contract the principal question in the case was as to whether by mere proof of the delivery of goods marked C. O. D. and that the money had not been returned, the plaintiff could compel the defendant to prove that it had performed its full duty as to each shipment.” The argument is that the burden of proof is on the plaintiff and that there was no evidence of breach of duty by defendant. Defendant concedes that if the consignee refused to take the goods the defendant’s duty was to “notify the shipper and await instructions.” There is no evidence called to our attention that the defendant did this. There is undisputed evidence tending to show that the defendant has not delivered to plaintiff the money on any of these shipments, and no evidence tending to show whether the consignees refused to take the goods and pay for them or not, nor what has become of them. The defendant has so far as appears failed to perform an affirmative duty in not having notified the plaintiff in case any of the consignees in these cases refused to take and pay for the goods. The dates of the receipts signed by the Company’s agent and other evidence tended to show that sufficient time had elapsed for them to be transported to their destinations and tendered to the respective consignees. This evidence suffices, as is said in Hutchinson on Carriers (3rd ed., vol. 3, sec. 1352, p. 1596), cited by defendant’s counsel, to “create the inference against the defendant, * * * as for instance that they have been bailed to the carrier^ sufficient time to be transported to their destination and had not been received or delivered to the person entitled to them to whom they were consigned.” This proof suffices to meet the burden imposed upon the plaintiff in making out a prima facie case against the defendant and it is not by evidence in defendant’s behalf.

It is further contended that “the court erred in its rulings on the C. 0. D. contract;” that “the receipt and the terms and conditions to which it refers were to be construed together as one instrument and parol evidence was not admissible to vary them or to explain any of their terms unless there was an ambiguity therein.” The contention is in effect that the letters C. O. D. are ambiguous. If so, then the evidence tending to show the customary meaning of these letters was on the defendant’s own argument admissible. We find no material error in the admission of this evidence. That these letters (C. O. D.) when used in such connection as in this case have a well recognized meaning in the commercial world, is so well understood that evidence of such meaning might seem to be superfluous. Whether so or not the evidence was we think properly admitted. In the American Express Company v. Lesem, 39 Ill. 312-332, it is said: ‘‘ The letters (C. O. D.) are the initials and so understood of the words ‘collect on delivery,’ and this undertaking, by those letters the appellant assumed and they must be held to a strict performance thereof.”

It is claimed the verdict is against the evidence and that the court erred in its rulings on the evidence and in its instructions. It is said “there is no evidence that any of the defendant’s receipts contained conditions different from those proven by the defendant and the presumption is they were the same.” The receipts in controversy were “subject to the terms and conditions of the Company’s form of receipt.” The condition of one of its forms of receipt was apparently that the defendant Company should not be liable “for loss, damage or detention” of property unless a claim therefor should be “presented to it in writing at its office within ninety days from this date;” and that the Company should not be liable in any suit to recover for such loss, damage or detention, “unless the same shall be commenced within one year after such loss, damage or detention shall have occurred.” The witness for plaintiff upon this subject testified in substance that he did not remember the form of any of those receipts, that he never read them and did not know their contents. There was no evidence tending to show that these provisions of any of the defendant’s forms of receipts were ever made known to or assented to by the plaintiff’s officers or agents. Whether or not there was or had been such knowledge or assent was a question for the jury upon proper evidence. The jury by their verdict must be deemed to have determined the question adversely to defendant, and upon the evidence presented they could not well have done otherwise. The court instructed the jury that defendant must show by a preponderance of evidence that conditions of a form of receipt, not as we think at all clearly shown by the evidence to be one referred to in the receipts given by the defendant in this case, "were made known to and assented to by the plaintiffs.” It is said this instruction is not supported by the evidence. We do not concur in this contention. The defendant offered no evidence.

We find no material or harmful error in the verdict and judgment. They are in our opinion sufficiently supported by the evidence. The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    L. M. Johnson, Appellant, v. W. J. Turnes Company, Appellee.
    Gen. No. 15,330.
    1. Damages—when building contractor not liable. A contractor engaged in the construction of a wall of a building which is injured by the architect, who was the owner’s agent, permitting an independent sewer contractor to excavate too close to such wall, is not liable for the resulting damage.
    2. Contracts—when architect’s decision not binding. A clause in a building contract which gives to the architect the power to render final and binding decisions “in case any difference of opinion shall arise * * * in relation to this contract,” does not authorize such architect to decide as to who shall be liable for damages claimed by the owner for matters arising outside of such contract.

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 10, 1910.
    Rehearing denied November 25, 1910.
    Statement by the Court. Appellant sued to recover damages from defendant upon a building contract. The declaration charges the contract provided inter alia that the work would he accepted in a finished and undamaged state only; that the defendant, should protect the work during its progress, and if said work was damaged do all necessary patching and should be liable upon all the conditions of the contract before the work was completed, and accountable to the owner or other contractors for any and all loss or damages that should or might happen to said building or any part thereof. It is averred there was a provision in said contract to the effect that in case any difference of opinion arose between the parties in relation to said contract or work to be performed under it, or in relation to plans, drawings or specifications, the decision of Thomas H. Mullay, the architect named therein, should be final and binding on the parties thereto.
    The main controversy, it is said by plaintiff’s attorneys, “arises over the fact that while appellee was working on the building, the erection of the walls thereof and before the wall was quite completed, the plumbing contractor, who had a contract for the plumbing work of substantially the same general terms and conditions as that appellee had for the mason and carpenter work, and who was we believe without doubt an independent contractor, started his excavation for the sewer pipe and dug his trench for the same within a few feet, of the northwest corner of the building in question instead of running it at a point about ten feet from said corner as indicated from the plan, and the soil at the point in question being light and sandy gave way, thereby causing the wall on which appellee was working to sink, pull apart and crack, thereby greatly injuring the building in value, appearance and use. Appellee was at the time working on the building and took no steps to protect the wall from the trench, although requested so to do, taking the position that it was not liable under the terms of its contract to take any steps to protect its work from the trench in question. Thereafter appellant fixed the wall as best it could be done at an expenditure of about $350. The architect thereafter issued his final certificate in which he charged up to appellee certain items for work left undone, the item of $350 for shoring up the defective wall and an item of $1,000 for the injury to the wall and decrease in value of the building by reason of appellee not having turned the building over in an uninjured and completed condition.”
    The cause was submitted to the court without a jury, and the court found the issues for the defendant and gave judgment accordingly. Plaintiff appeals.
    Hebel & Haft, for appellant.
    Atkinson & Hibben, for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is urged that defendant undertook to perform the contract unconditionally within a certain time and that nothing but the act of God or public enemy will excuse non-performance; second, that the relation between the plaintiff and the sewer contractor “was that of contractor and contractee and not that of master and servant” and consequently the plaintiff is not chargeable with any negligent conduct of the sewer contractor. Plaintiff states his position to be first that the defendant “is liable because knowing the walls were in a dangerous condition he failed and neglected to protect them” (citing Schwartz v. Daegling, 55 Ill. 342), and “Second, appellee is liable because it undertook at all hazards by the terms of its contract (fire excepted) to construct this building’ and deliver it to appellant in a completed condition.”

It is conceded however “that the original cause of the accident in question was the conduct of Racine, the plumbing contractor,” and “that the contract between the plaintiff and the Turnes Company is identical in form with that between the plaintiff and Ba-cine.” Here there were two independent contractors over whom the architect had by the terms of the contract equal authority and control. The architect was the owner’s agent. If he permitted Racine, the sewer contractor, to dig the sewer in such close proximity to the wall erected by the defendant as to cause that wall while still new to sink and crack, when he had by the terms of the contract authority to prevent such conduct on the part of the sewer contractor, no reason exists so far as we discover for holding defendant liable for the acts and omissions of another contractor over whom the defendant had no control. The mere fact that defendant failed to complete the building on time is not important under the conditions. The contract itself provides that “accidents and other causes beyond the power of the contractor will in the judgment of the architect be valid cause for the extension of time in this contract.” What is said in Daegling v. Gilmore, 49 Ill. 248-250, is clearly in point. Referring to the contractor the court says: " He in the performance of his part of the work must be responsible for the skill and fidelity of the workmen he employs * * * as well as all persons under his control; but not for the acts of those under whom he acts or for others acting independently of him.” Having allowed the sewer contractor to disturb the foundations built by the defendant in pursuance of his contract, the owner and his agent, the architect, can not now charge the defendant with damages occasioned by the architect’s failure to prevent the sewer contractor from undermining such foundations. The owner in this case had not in the language of the court in Schwartz v. Gilmore, 45 Ill. 455-460, “So far given to the contractor all control over the work and the premises as to be relieved of all responsibility.” The contract required the work to be done according to the plans and specifications to the satisfaction of and under the direction of the architect, who might make alterations. The defendant was by the terms of the contract to “carry forward the work under the control” of the architect, who was by the owner made his representative, and it was the duty .of the architect having control of the work not to stand by idly and permit an independent contractor to damage'or undo defendant’s work. As said in Schwartz v. Gilmore, supra (p. 460), if it was necessary to protect the walls “he should have seen that it was done.”

Instead of doing this the architect permitted the damage to be done by the sewer contractor and now seeks to hold the defendant, who so far as appears was not responsible for it, liable for the whole damage. He issued a certificate in which he certifies to the owner that he, the owner, “is entitled to a payment of five hundred and twenty-four dollars ’ ’ from the defendant, and deducts over a thousand dollars from the amount due defendant for alleged “damages to building from cracks and crooked walls and from not attending to same promptly before accepting by the architect, slanting door piers and front door, loss in the selling value of the building, windows open at top and bottom,- etc.,” and he charges also against defendant other items amounting to over $400, such as “shoring up building” and “paid to the architect for extra labor and work,” all of which so far as appears were matters arising from the same negligent acts of the independent sewer contractor. We find in the contract no warrant for such charges. The clause giving authority to the architect as final arbiter is as follows: “It is further agreed that in case any difference of opinion shall arise between the said parties in relation to this contract, the work to be performed under it or in relation to the plans, drawings and specifications • hereto annexed, the decision of said Thomas H. Mnllay, the architect, shall he final and binding on all the parties hereto. ’ ’ The matters thus submitted to the final arbitrament of the architect are such as relate to the contract and the work to be performed under it. Whether or not the defendant contractor shall be liable for damages claimed by the owner for matters arising outside the contract is not a question submitted to the architect in this case. His certificate purporting to determine such a question and arbitrarily awarding damages to his client and fees to himself is an attempt to exercise authority which the contract does not confer.

Finding no error, the judgment of the Municipal Court will be affirmed.

Affirmed.