text:
    Arthur E. Mapes, Appellee, v. St. Louis & Northwestern Railway Company, Appellant.
    1. Evidence—competency of prior act of negligence. A prior act of negligence by a particular servant of the defendant is not competent except for the purpose of establishing the incompetency of such servant as affecting the master’s liability for retaining in his employ an incompetent servant.
    2. Masteb and sebvant—how incompetency of servant may be established. A single act of negligence resulting in an ^ accident may show incompetency if such act is preceded or accompanied by other acts and circumstances indicating a lack of knowledge or capacity or if the act is done wantonly regardless of consequences, or maliciously. The general rule, however, is that a single act' or omission is not sufficient to prove incompetency.
    Action in case for personal injuries. Appeal from thd Circuit Court of Madison county; the Hon. Louis Bebnbeúteb, Judge, presiding. Heard in this court at the March term, 1911.'
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Terry & Gueltig, for appellant; George W. Burton and George W. Black, of counsel.
    C. H. Burton, for appellee.
   Mr. Justice McBride

delivered the opinion ,of the court.

The declaration in this case consists of two counts. At the conclusion of the testimony the court excluded the evidence as to the second count which charged, negligence on account of defective appliances. The trial was then continued and concluded upon the allegations of the first count.

The first count alleges that the defendant wa,s possessed of, using and operating certain cars- on a certain electric railway extending from East St.; Louis to Springfield, Illinois, through a place called Loveless Siding, and that plaintiff was employed as brakeman on a certain express car, run from the north towards the south, at about 2:30 on the morning of May 20, 1910. The declaration further avers that it was the duty of the defendant to exercise due care and diligence in the selection of its motorman and conductor in charge of said car; that the defendant did not regard its said duty in this behalf but negligently employed one J. E. Bobbett as motorman and placed him on said car, with the plaintiff as brakeman, and C. E. Thompson as conductor, to operate and control said car.

The declaration then avers that the said J. E. Bobbett was then and there a careless, negligent and incompetent motorman, which fact was known to the defendant or by the exercise of due diligence could have been known, and of which fact the plaintiff was not advised; and avers that while plaintiff was in the performance of his duty as brakeman, with due care and diligence for his own safety, the said car was so negligently run and driven by its said motorman that the said car while runing at a high rate of speed, to wit, thirty miles an hour collided with a north-bound car of defendant at or near Loveless Siding aforesaid, and thereby permanently injured the plaintiff, etc.

The defendant, so far as the abstract discloses, pleaded the general issue. The case was tried before a jury and a verdict given for the plaintiff in the amount of $3,938.70; motion for a new trial was overruled and judgment rendered upon the verdict, from which this appeal is taken. The facts and circumstances which gave rise to the alleged cause of action are briefly as follows:

About April 15th, before the injury to the plaintiff, he was in the service of the defendant as brakeman; he at first did such work as was required to give him proper information in regard to his duties, and on May 15th began his regular work; about eight o’clock of the 19th the crew with which plaintiff was working ran to Granite City, thence to Venice and there did some switching and about eleven o’clock p. m. ran their car to Granite City and there received orders to proceed north with their train; they ran np to Monroe Siding near Virden, and there changed ears with a crew from Peoria and took a train called the HighBall Express and proceeded south as an extra; at Carlinville they received orders to stop at Moody Siding and allow the Peoria Sleeper to pass, which was done. At this point the conductor received orders from the booth to run to Loveless Siding four and one-half miles further south; the conductor informed the motorman and brakeman of this order; the Express train consisted of motor car and two trailers, which was loaded with whiskey, and the crew proceeded with the train towards Loveless Siding. After leaving Moody Siding the plaintiff rode near the center of the motor car on some whiskey cases and the conductor and motorman were riding on the front platform. The High-Ball Express was ordered to take the siding at Loveless Siding for the passage of the Springfield Sleeper going north; the Express, under the control of Bobbett, was running at the rate of about thirty-five miles an hour and collided with the Springfield Sleeper at or near Loveless Siding, and as a result the conductor and motorman were killed and the plaintiff badly injured. The track was straight for a mile north of Loveless Siding. The head-light on the Springfield Sleeper was burning brightly, and was on the same track as the Express with nothing to prevent the motorman from seeing- it.

It is further disclosed by the evidence that the motorman, Bobbett, on about September 14, 1909, failed to observe or neglected to heed the danger signal and ran into an open switch; he was badly crippled by the accident and unable to work for several weeks but resumed his work in a few weeks.

It is further disclosed by the evidence that Bobbett had about eight years’ experience as conductor and motorman on the electric roads, and that at the time of his employment by the defendant he was examined carefully and critically as to his ability and competency and proved to be a competent man, and in fact sustained a good reputation as such at the time of his death; that the incident on September 14, 1909, was the only accident that had happened to him and the only time he had ever violated the rules of the company, so far as the defendant ’ knew, and in fact was the only negligent or careless act ascribed to Bobbett in his eight years of experience; except having permitted the plaintiff on one occasion to run the car, and had, as plaintiff claimed, failed upon one or two occasions to go into the booth with the conductor to receive the orders and register, but these facts were not disclosed by the plaintiff to the defendant and the defendant had no knowledge of them prior to plaintiff’s injury.

In our view of the record in this case, the controlling and only question necessary to consider is, was the defendant guilty of negligence in the employment of Bobbett as motorman and the retention of Mm in its employ after the incident of September 14, 1909? As to the first employment by the defendant of Bobbett the evidence is overwhelming that he was competent and thoroughly qualified for the position. It is disclosed that he had experience as motorman and conductor for several years without having had a single mishap, or having been guilty of a single act of negligence. He was also subjected by the officers of the road to a very rigid examination as to his qualifications; he passed a physical examination and underwent an examination at the company’s shops as to Ms mechanical knowledge and experience and was recommended as competent by the mechanical engineer of the company, and the officers appeared to be satisfied that he was a competent man to act as motorman in the operation of defendant’s cars, and we think they were fully warranted in so determining, and that there was no negligence in the employment of Bobbett as motorman, and indeed no complaint is made that there was any negligence in this respect.

The next question is, was the defendant justified in retaining Bobbett in its service after the incident of September 14,1909, in which Bobbett ran into an open switch and ditched his car? The negligence of the motorman, if any such has been proven, on the occasion of May 20, 1910, when plaintiff was injured, cannot be considered in determining the liability of the defendant in this case for the reason that such a negligent act would only affect the liability of the defendant for afterwards keeping him in its employment. Smith v. C. P. & St. L. R. R. Co., 236 Ill. 369.

It is contended by counsel for appellee that á single act of neglect resulting in an accident may show incompetency, which is true, if such act is preceded or accompanied by other acts and circumstances, indicating a lack of knowledge or capacity such as was shown in the case of Smith v. C. P. & St. L. R. R. Co., supra; or if the act is done wantonly regardless of consequences, or maliciously. ;

It is said by the Supreme Court in the case of Consolidated Coal Company v. Seniger, 179 Ill. at page 373: “It is true that a competent engineer may be negligent on a particular occasion and not be; above the ordinary frailties of human nature, and that incompetency is not shown by some particular 1 act of negligence; and yet, one who knows how to run and handle an engine properly and who has the physical strength to do- so, cannot be said to be competent for the position of engineer if he is habitually imprudent, careless and reckless.” There is nothing in this record that discloses that the accident of September 14, was actuated by malice or brought about by the ignorance or want of knowledge or skill upon the part of .Bobbett. The general rule laid down by the authorities is, that a single act or omission is not sufficient to prove incompetency, subject to the exceptions1 above noted. Wood on Master and Servant, Section 432; C. & E. I. R. R. Co. v. Myers, 83 Ill. App. 469, and other authorities therein cited.

It appears from the evidence that at the time of the accident of September 14, 1909, that Bobbett received an electrical burn and that this burn could not have been received after the car turned over but must have been received immediately prior thereto, and that Bobbett may have been temporarily, through no fault of his own, unable to stop his train in time to prevent its going into the open switch. There was also some evidence tending to show that there were obstructions along the road at that time that prevented Bobbett from seeing the danger signal; this, however, is contradicted. It also appears from the evidence that John Lunsden, a conductor, at the time Bobbett left this switch and ran out to the north, was on the side track with his freight train and-Lunsden told him to go ahead and he would shut the switch, and it may be that the assurance of Lunsden that he would close the switch had some influence upon Bobbett’s conduct upon this occasion. At all events, after this incident the officers of the company made an investigation of the conduct of Bobbett upon this occasion and found that he was not to blame for the accident, and while it is true that this investigation is charged by the appellee to be a mere white-washing of Bobbett, yet we do not see anything in the record that justifies this assertion. There could be no motive upon the part of the officers, as far as we can see, to misrepresent or conceal at the time the truth with reference to Bobbett’s conduct upon that occasion. In the case of C. C. C. & I. C. R. R. Co. v. Troesch, 57 Ill. 155, where there had been three accidents by the engineer Tupper, and as to two of them the superintendent had examined the circumstances and became satisfied that it was not the fault of the engineer and as to the other one the witness himself had exonerated the engineer, the court there says that the evidence is not sufficient to warrant the finding of the incompetency of the engineer.

We do not believe that the evidence in this case is sufficient to warrant a jury in finding that the motorman Bobbett was by this evidence proven incorhpetent, at the time he was employed and retained in the service of the defendant, and the judgment should be reversed. ,

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Thomas Staiger, Appellee, v. Fred Ziegenhein et al., Appellants.
    Malicious prosecution—what essential to recovery. In order to recover in an action for malicious prosecution in instituting a replevin suit, it must be shown that such suit was instituted both maliciously and without probable cause. Malice may be ¡ inferred from the absence of probable cause but probable cause cannot be inferred from malice but must be clearly shown by the evidence.
    Trespass on the ease. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Alexander Flannigen and B. H. Canby, for appellants.
    Webb & Webb and Daniel A. Newby, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is an action of trespass on the case by ijhe appellee against the appellants. Trial was had in the City Court of East St. Louis, Illinois, which resulted, in a verdict for appellee for $1,000. A remittitur of $300 was made and judgment rendered for $700, from which judgment the appellants prosecute this appeal.

This case was before this court on appeal, at the August term, 1906, at which time the cause was reversed and remanded. Justice Higbee at that time made a detailed statement of the pleadings and facts in the case, which will be found on page 191, Vol. 133 of the Appellate Court Reports.

In general terms the declaration in this case alleges that appellants maliciously and without probable cause, wrongfully and unlawfully instituted an action of replevin, and by virtue of the writ of replevin took possession of the goods and chattels of appellee, to wit, household and kitchen furniture. That said replevin suit was dismissed by the appellants and a writ of retorno awarded, but the goods were not returned. To this declaration the appellants filed the general issue and a special plea justifying the taking of said property by virtue of a chattel mortgage thereon, after default in the payment of the notes secured by such mortgage; and that they were lawfully entitled to the possession of the property. To this plea replications were filed averring a warranty on a range purchased by appellee from appellants, and included in said mortgage, and that there had been a breach of warranty by reason of the range failing to do the work as appellants had agreed it should do. There was a trial of the case and the principal question disposed of in the trial court was as to whether the appellants did warrant the range and was there a breach of the warranty; also was the suit of replevin instituted by the appellants maliciously and without probable cause.

As we view the record in this case, it should be determined upon the question as to whether or not the replevin suit was instituted by the appellants maliciously and without probable cause. In an action of this character it must be clearly shown by the plaintiff that the suit was instituted without probable cause and maliciously, and even though it may have been maliciously and with probable cause the plaintiff would not be authorized to recover in an action of this character. The want of probable cause is essential to appellee’s right to recover. It is said by the Supreme Court of this state that, “The want of this element, probable cause, is the main ground of this action, and it must be clearly shown; and though malice may be inferred from the want of probable cause, a want of probable cause cannot be inferred from malice.” Ross & Co. v. Innis, 35 Ill. 487; Mitchinson v. Cross, 58 Ill. 366.

There are many decisions of the courts arising in this class of cases, and the decisions are quite uniform to the effect that probable cause must be clearly shown, and the courts adhere strictly to this rule so as to protect persons from suits for malicious prosecution, where they in good faith feel that they have a grievance that justifies them in resorting to the courts to protect. It was said by the Supreme Court in the case of Collins v. Hayte, 50 Ill. 353 (and repeated in the case of Barrett v. Spaids, 70 Ill. 408): “It was said good faith on the part of the prosecution is an important, if not a vital, element of inquiry, and is always a sufficient justification, except where an unreasonable credulity is manifested, inducing the prosecutor to draw conclusions of guilt, when it would have been wanting in the perception of a person of ordinary prudence and judgment.” The same rules apply to both civil and criminal prosecutions. The courts have repeatedly held, that where a party procured an indictment to be found against another, that in an action for malicious prosecution against him, that in so doing he acted on the advice of counsel, after having communicated to such counsel all the facts bearing upon the guilt or innocence of the accused, of which he had knowledge, or could, by reasonable diligence have ascertained, the advice so given was a protection against an action for malicious prosecution. Wicker v. Hotchkiss, 62 Ill. 107; Barrett v. Spaids, supra.

We think that counsel for appellants and appellee practically agree upon these propositions but differ as to the application of the facts in this particular case. The replevin suit was instituted by F. W. Ziegenhein, and he says that he at that time did not know of a warranty, which is not disputed, except that he had constructive knowledge, and the claim is made that Morris Sternberger, a member of the old furniture company, obtained this information from the salesman Slack, but Slack not only denies imparting such information but denies that any warranty was ever made. It is true, that the record discloses that appellee gave notice to the appellants that he had a guaranty upon this range but does not state what his guaranty was, but even if he did, we do not see why appellants should be precluded from bringing a suit of replevin to recover property on which they had a chattel mortgage, simply because the debtor was claiming that he had some defense to it.

As to the other question, it is not disputed but what Fred Ziegenhein consulted a reputable attorney before bringing the replevin suit, and told him what facts he knew and that at that time he knew nothing about the warranty as claimed by appellee; but it is insisted that the law required him to state to his counsel not only what he actually knew but such facts as could have been ascertained by the exercise of reasonable care and diligence. And the only question left open for discussion is, Was reasonable care and diligence exercised in laying the facts before his attorney!

It appears from the evidence in this case that the only person to whom appellants might have gone for information as to this sale and alleged warranty was Bichard Slack, the man who made the sale. But suppose that he had gone to Slack for information after receiving appellee’s notice, what would he have learned according to the testimony of Slack! He would have been advised by Slack that no warranty was made, and under that state of facts he could not be held to have had constructive notice of the acts of the agent, when the agent himself denied such acts or could not have been required, constructively or otherwise, to have known that Morris Sternberger would have testified that Slack had told him that there was a guaranty upon this range, and appellants certainly cannot under such a state of facts be charged with not having used reasonable care and diligence in ferreting out these disputed matters. But even if he had been advised by Sternberger that Slack had told him there was a guaranty and Slack denied it, this would not preclude appellants from their right to have the question tested in the courts. We do not believe that appellants were required to go to appellee to ascertain any such facts; he was disputing the claim of appellants, denying that he owed them any part of it, whether rightfully or not it is not necessary or material for us to determine. Appellants had a chattel mortgage that was a lie,n upon the property, unless the appellee had in some manner discharged this lien, and had a legal right to rely upon their lien and take charge of this property, and so far as this record discloses, there was nothing existing in the minds of the appellants at the time that they instituted the replevin suit, or that, they should have been held to know, that they did not disclose to counsel. It frequently happens in the trial of law. suits -that facts are developed which were not foreseen, or are disputed, and no man would be safe in instituting á law suit if either unforeseen or disputed facts would prevent him from insisting upon his theory of the case.

Some stress is laid upon the fact that appéllants dismissed their suit and failed to return the property as ordered by the court. This frequently happbns in a trial of replevin suits, and this very character of case is provided for by the statute, that when the plaintiff fails to prosecute his suit but suffers a dismissal, an action may be instituted upon the bond, and the plaintiff can recover on the bond, not only the value of the property but also damages and necessary expenses incurred in carrying on the suit, and we ¡think in this case appellee could have been fully protected, both as to the value of the property, and expendes he may have incurred by an action upon the bond., We are satisfied that the appellee failed to prove that this suit was instituted maliciously and without prqbable cause; and we are further satisfied that the appellants did what any reasonably prudent man would do in disclosing the facts in the case to their counsel, and that they were fully protected by the advice of counsel in the bringing of the suit of replevin, and that under the facts as disclosed by this record the verdict of the jury was manifestly against the law and the evidence, and the verdict ought not to stand. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.


text:
    Maude Neice, Administratrix, Appellee, v. Chicago & Alton Railroad Company et al., Appellants.
    1. Evidence—what part of res gestae. Whenever a declaration is made explanatory of an act and in connection with the act it is admissible.
    2. Husband and wife—competency of latter. At common law the wife was incompetent to testify as to conversations had between herself and husband, and this rule still obtains in this state except as modified by section 5 of the Evidence Act.
    3. Evidence—when incompetent, given hy wife, will not reverse. If the wife of the intestate be permitted to give incompetent testimony as to conversations had with the intestate, such error will not reverse where such conversations were fully proven by other competent testimony.
    4. Negligence—when trespasser cannot recover. Where persons for their own convenience travel upon the right of way of the railroad company they are trespassers and a railroad company owes no duty to such trespassers except not wantonly to injure them. Held, in this case, however, that the facts did not bring the plaintiff’s intestate within the rule.
    5. Negligence—duty of railroad at depot grounds. The courts make a clear distinction as to the rights of persons about the depot, and its connecting platforms, and persons on the right of way from the depot, and of the duties of railroad companies to look out for persons in and about depot grounds, and where people are liable to be more than in and about private places in and along their railroad right of way.
    6. Negligence—how question as to whether person injured is trespasser, determined. Held, uhder the evidence in this case, that it was a question of fact for the jury to determine under instructions from the court whether the plaintiff’s intestate was a trespasser or rightfully upon the railroad company’s property.
    6. Tbial—when arguments of counsel will not reverse. If an objection was sustained to the arguments complained of a reversal will not he awarded unless prejudice was created which the sustaining of the objection did not remove.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Warnock, Williamson & Burroughs, for appellants; J. A. Connell, of counsel.
    D. J. Sullivan, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This action was brought by appellee against the appellants, in the City Court of Granite City, Illinois, for loss sustained by her by reason of the death of her husband, L. B. Neice. Trial was had by a jury resulting in a verdict of $3,500 for appellee, on which judgment was rendered, and the case was brought to this court by defendants on appeal.

The declaration, as disclosed by the record, consists of six counts and are denominated the first and second additional counts, and amended first, second, third and fourth counts, and the cause was tried upon the additional and amended counts.

The first additional count alleges that the Chicago and Alton Railroad Company on the 8th of March, 1910, and for a long time prior thereto, was possessed of and operating a certain line of railroad extending through the county of Madison, and in and through the city of Venice, over which road the Chicago and Alton Railroad Company knowingly permitted the Chicago, Burlington and Quincy Railroad Company to operate its trains; that deceased was standing upon the platform of the Chicago and Alton Railroad Company at its depot in the city of Venice, where the said railroad track is crossed by a board walk used and frequented by many people with the knowledge and consent of the defendant; that on the date aforesaid the Chicago, Burlington and Quincy Railroad Company, wilfully, wantonly and in reckless disregard of the safety of persons who might be on said platform and walk, drove an engine and train of cars on the said track in the said city of Venice, where plaintiff and other persons were standing, at a dangerous rate of speed, to wit, thirty miles an hour, without ringing the bell or blowing the whistle, and without any headlight, and without the engineer keeping a proper lookout, whereby the said engine was driven against the intestate causing him injuries from which he died and left Maude Neice, his widow.

The second additional count is the same as the first, except that it gives the location, surroundings, depot and platform more in detail, and avers that the deceased had come to the said depot for the purpose of going to Roodhouse, Illinois, upon one of the trains of the said Chicago and Alton Railroad Company then approaching said depot, and while waiting upon the platform constructed by the railroad east of its depot, which depot and platform were used and frequented by a large number of persons going to and from said depot, which fact was known by the said defendants, and while waiting upon the said platform the said Chicago, Burlington and Quincy Railroad Company, did wantonly and wilfully operate, by its servants, its train at a high rate of speed without ringing the bell, sounding a whistle or having a proper head-light upon the engine, etc.

The amended first count describes the roads and location of the depot and platform substantially the same as the first additional count, and avers that while the deceased was standing upon the platform in the act of leaving the depot, to which place he had gone for the purpose of obtaining information with reference to being carried, and to be carried by the Chicago and Alton Railroad Company to the city of Roodhouse, and while in the exercise of ordinary care for his safety, the defendant, Chicago, Burlington and Quincy Railroad Company, by its servants, negligently, carelessly and recklessly ran a train of cars along the said Chicago and Alton Railroad track, and drove its engine against the deceased, thereby injuring him, from which injuries he died.

The amended second count is the same as the amended first count, except that it sets forth an ordinance in the city of Venice prohibiting any railroad company from operating passenger trains within the city limits at a greater rate of speed than ten miles an hour, and freight trains at a greater rate of speed than six miles per hour.

The amended third count is the same as the amended first count, except that it avers that the defendant, Chicago, Burlington and Quincy Railroad Company, negligently and carelessly ran and operated the engine and train of cars along and upon said track of the Chicago and Alton Railroad Company without ringing a bell or blowing a whistle, and without having a head-light burning upon said engine, and driving-said engine at a high and dangerous rate of speed.

The amended fourth count is the same as the amended second count, except that it sets forth an ordinance of the city of Venice requiring every railroad company operating its road in the night time to keep a bright light conspicuously displayed on the front and rear ends of all trains while in motion, and avers that the defendant, Chicago, Burlington and Quincy Railroad Company, operated a train on the said track without having a bright light displayed on the front end of said train while in motion.

The facts, as disclosed by this record, are that on and prior to March 8, 1910, the appellants were possessed of three parallel tracks extending in a northerly and southerly direction. The track farthest west was called a running track and used for storage; the second track is eight or ten feet east of this one and is used for south-hound traffic towards Bast St. Louis by the appellants and the Big Four Railroad Company. The third track is owned by the Big Four Railroad Company, and is ten or twelve feet east of the second track and is used for north-bound traffic by appellants and the Big Four Railroad Company, and east of this track, a distance of about seventy-five feet, is the main line of the Wabash Railroad. The passenger depot of appellants is located west of the first of the above described tracks, and nearly opposite and west of Weber street. There is a board walk extending from the depot east across the running track and the Chicago and Alton track, used by passengers going to and from the train, and by other persons having business with the company coming to and going from the depot. At the time of the accident in question there was a platform approximately fifty feet long constructed between the Chicago and Alton and the Big Four Railroad tracks, and connecting with the cross walk above mentioned. Between the Big Four and Wabash tracks and about opposite the south end of the depot is a plank foot bridge with railings thereon, the west end of which extends.to within a few feet of the east rail of the Big Four track. The east end of this bridge extends to within a few feet of the west rail of the Wabash Railroad, and is opposite the south line of Weber street. These walks and the platform were used by persons traveling to and from the depot, and by other persons in that vicinity. On and prior to March 8, 1910, the deceased and his wife had been living at his father-in-law’s about two or three miles north of Venice, and on this day the deceased had returned from a trip to Roodhouse, Illinois, where he had been in search of employment, and during the day he and his wife were packing their goods preparatory to moving to Boodhonse. About six o’clock in the evening the deceased left his home dressed in his working clothes and carrying a lantern. On his way to Venice he met one of the witnesses, who observed him with this lantern, and arrived at the depot in Venice between seven and eight o’clock. At thht time the local passenger trains of the Chicago and Alton going north and south had all passed through Venice and the station was closed except a couple of lights were left burning for some of the train men or clerks. At this time there was a freight train called No. 92 of the Chicago and Alton Bailroad, hauling stock, that was expected by the train men and a Mr. Pease, a witness, to stop at the depot for the purpose of taking. Pease, who had stock on this train, aboard of it. As this train pulled in a witness by the name of Sitton saw Neice standing between the Chicago and Alton and Big Four tracks, and Neice inquired of the witness about this train and who was on it, and the witness told Neice he did not know who was the conductor but that1 a man by the name of Mitchell had been ón it as conductor. Neice did not tell why he wanted to know the crew. While witness Pease was standing between the Chicago and Alton and Big Four tracks and'as tlxe Chicago and Alton No. 92 approached, the deceased, also stepped on the platform and asked Pease if he knew if No. 92 was going to pick up- anything, whereupon Pease replied, “Nothing I know of beside myself,” and asked Neice if he was going and he replied, “I would like to go,” and while they were walking down the platform towards the place where it was necessary to go to take the freight train, a train No. 92 on the Chicago, Burlington and Quincy Bailroad going south hit the deceased and injured him, from which injuries he shortly thereafter died.

Counsel for appellants insist that the verdict of the jury and judgment of the court are contrary to the law and the evidence in the case, and that the judgment should be reversed, and claims, first, that the court erred in admitting incompetent and improper evidence, in this, that Maude Neice was permitted to testify to a conversation between herself and her husband at the time he was leaving his home and while dressed in his working clothes, with lantern in hand, ready to start, he told his wife that he was going to Boodhouse and for her to come the following Thursday, and that he was going to take the train from Venice and that he was going to Boodhouse to take a position which had been given him a few days previous. Counsel insist that these being declarations out of the presence of the defendants and made from one to two hours before the injury, that they are no part of the res gestae and should be excluded. We cannot agree with counsel in this contention. Whenever a declaration is made explanatory of an act and in connection with the act it is admissible. The case of Chicago and Eastern Illinois R. R. Company v. Chancellor, 165 Ill. 438, fully sustains this doctrine and cites with approval an Ohio case in which a witness was permitted to testify that on the morning defendant left his hotel he said to witness, who was a clerk, that he was going to Collins; he was injured while bn his way to the train, and the court says, that declarations thus made are part of the act itself, and the Supreme Court of Illinois, following the reference to this case says: “Where the evidence shows the party is about to start on a journey, from common experience we know it is usual and natural that something is said by the party relating to the departure, and of a character indicative or explanatory. For such declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven, as in the case above cited.” This was not a narrative of past events and is not within the rule contended for by appellants.

Again, appellants say that the declarations made by the husband to the wife cannot be proven by the wife because she is incompetent under the law to testify to any conversation between herself and husband. We concur with counsel in this view, and believe the true rule to be that at common law the wife was incompetent to testify as to conversations between herself and husband, and while the statutes of 1872, in regard to evidence and depositions, did to some extent relax this rule in certain specified cases, in 1874, section 5 was amended by adding thereto a proviso to the effect “That nothing in this section contained shall be construed to authorize or permit any such husband or wife to testify to any admissions or conversations of the other, whether made by him to her or by her to him, or by either to third persons, except in suits or causes between such husband and wife.” Commenting upon this statute and its effect upon the competency of a spouse to testify to the conversation or admissions of the other, our Supreme Court in the case of Goelz v. Goelz, 157 Ill. 33, says, in reference to this amendment: “This was a recognition and re-enactment of the above mentioned rule of common law, based on public policy, but confining its operation to eases other than suits or causes between the husband and wife.” And in this case the court explained the former decisions of Deniston v. Hoagland, 67 Ill. 265, and Galbraith v. McLain, 84 Ill. 379, which are referred to by counsel for appellee herein. Counsel for appellee, however, insist that appellants cannot take advantage of this for the reason that the objections made to the admissibility of the evidence were not specific, and the motion to exclude was not limited to the declarations but included the whole of the evidence of Maude Neice. Waiving this question, however, we are of the opinion that the testimony of Maude Neice as to the material declarations of her husband to her were proven by other witnesses, and that the appellants were not prejudiced by this error. It was shown by the evidence that the de: ceased was seen on his road towards Venice, and that he actually arrived at Venice, and there stated, without objection, that he was going to Boodhouse; and we think all of the evidence, except that with reference to her declaration to her husband, was proper, and cannot say that there was such error in the admissibility of this testimony as to require a reversal of this case.

It is next contended by counsel for appellants that the deceased was a trespasser, and for that reason plaintiff is barred of her right to recover, and this is the crucial question in this case. We have been referred to many cases by counsel holding that where a party by some stealth or fraud actually procures passage upon a railroad train, that such parties are trespassers. There are also many cases holding that where persons, for their own convenience, travel upon the right of way of a railroad company, are trespassers, and that the railroad company owes no duty to such trespassers, except not to wantonly injure them, but as we view the facts in this case it does not fall within the rules laid down by either of such classes. In this case, the defendant maintained a depot and platform for the convenience and use of any and all persons having or desiring to transact business with the company, or its agents, or to go there for any legitimate purpose, and it is said by the Supreme Court in the case of I. C. R. R. Co. v. Hammer, 72 Ill. 347: “Depot grounds and passenger houses are not strictly private property. They are places where persons may resort without permission, for the purpose of transacting business with the company, or with the employes of the company, or for the purpose of meeting friends or others arriving on trains, or to see others depart, and to pass over the same in going from one part of the city to another. Such grounds are made quasi public, by the general use to which they are appropriated. ” And in the same opinion the court again says: “When they permit the people to pass over their grounds, and invite the public to transact business with them on these grounds, they thereby tacitly license persons to come upon and pass over them, and persons do not become trespassers by doing so in a proper manner. But it is otherwise with their right of way and ground outside of arid away from their depot grounds, and beyond the limits of cities, towns, villages and their depot grounds. In such places, the people or individuals have no ¡right to travel. The people are not invited to come there, nor have they any right to go on their tracks or right of way at such places.”

And again in the case of James v. I. C. R. R. Co., 195 Ill. 327, the court further says: “It is true that we have héld in a number of cases that railroad stations are quasi public places, and that the public, for certain purposes, are invited there and that they are not trespassers when they go there; but no ¡case is cited, and we think none can be found, in which it has been held that the railroad tracks adjacent to a railroad station are public places or such places as the public are invited upon or have a right to be, unless it be shown that it was for some purpose connected with the business between such parties and such railroad company or in company with some person having business with such company. In other words, we1 do not understand the law to be that because a railroad company maintains a depot or station along its line it thereby invites loiterers or persons having no business with it to go from the platforms of the station and travel upon or across its tracks for their individual convenience and upon their individual business in no manner connected with such railroad.” We think the courts make a clear distinction as to the rights of persons about the depot, and its connecting platforms, and persons on the right of way away from the depot, and of the duties of railroad companies to look out for persons in and about depot grounds, and where people are liable to be more than in and about private places in and along their railroad right of way.

It is claimed, however, by counsel for appellant that the reasonable and only inference to be drawn from tjie testimony in this case, and from the circumstances is, “That if Neice went to the depot for the purpose of obtaining information with reference to being carried, and to be carried, and was standing upon the platform waiting to take passage, which undoubtedly is a fact, he was there seeking information for an unlawful purpose and to be carried in an unlawful manner.” We cannot say as a matter of law that such was the purpose of Neice in entering upon the platform in company with Pease. It was a question of fact as to what his purpose was, and this question was for the jury to determine, and cannot be determined by this court, unless we would have to say that the evidence and circumstances were manifestly such as to show that he was there for an unlawful purpose. Counsel for appellants recognize this doctrine in submitting this and kindred questions to the jury by its first, second and sixth instructions; but aside from this, there appears to have been no one at the depot that would be better calculated to give him better information with reference to riding upon this freight train than the conductor of the train, and if he desired to ride upon the freight train, even though he had not procured a ticket, he certainly had the right to go upon the grounds of the defendant for the purpose of ascertaining whether or not he could ride upon this train, without becoming a trespasser, if he was in good faith seeking such information, and this too was a question for the jury.

It is also contended that he was a loiterer about the depot and was attempting to steal a ride. Without going into the evidence upon these questions, they certainly were questions for the jury to determine and were properly submitted to the jury under instructions of the court.

As to the proposition that he was chargeable with notice that this train did not carry passengers, we do not believe that we are warranted in saying as a matter of law that he was chargeable with such notice. The evidence did not .disclose that he had any special notice of the matter. His connection with the railroad company heretofore was in an entirely different capacity. Bules and regulations by which it is claimed freight trains were- not allowed to carry passengers were posted up in the depot, but there is nothing to show that he had any knowledge whatever of them, and under the circumstances we do not feel that we can say as a matter of law that he had notice that this train did not carry passengers.

The question as to whether or not the “deceased knew that said train was a freight train and that he had no reason to believe that he could rightfully take passage upon said traiü to Boodhouse, and he was not rightfully upon said tracks but was a trespasser” was submitted to the jury as a question of fact to be determined by it by appellants’ thirteenth instruction.

Weber street abutted on to the Wabash railroad as above described, and was connected by walks and platforms with appellants’ depot, and this was a thoroughfare used by many people in passing to and from Weber street, and so far as the evidence discloses, without objection upon the part of the appellants, and we think that .under the facts as they appear from the evidence in this case, that it was a question for the jury to determine whether plaintiff was a trespasser or rightfully on defendants’ property. C. B. & Q. R. R. Co. v. Mirowski, 179 Ill. 77.

Criticism has been made by counsel for appellants upon some of the instructions given by appellee. We have examined these instructions and do not think there is any merit in the criticism. We have also examined the refused instructions of appellants and are of the opinion that these are properly refused by the court.

Criticism is also made upon the statement of counsel to the jury during the argument of the case. The court, however, sustained the objection made by counsel for appellants and directed the jury to disregard the statements, and we are not able to say that the statements were very harmful in the light of the testimony and circumstances surrounding this case.

Practically every question now urged by counsel for appellants for the reversal of this case was submitted to the jury to be determined by it, including the questions of negligence of the defendants and due care of the plaintiff, and we think that the jury were fully and liberally instructed in behalf of the appellants, and the jury having determined all of these facts in behalf of the appellee we cannot say that the verdict- of the jury is manifestly against the weight of the evidence and the judgment of the lower court is affirmed.

Affirmed.


text:
    George S. Clarke, Plaintiff in Error, v. E. V. Mayberry et al., Defendants in Error. W. B. Maulding et al., Defendants in Error, v. George B. Clarke et al., Plaintiffs in Error.
    Term No. 1159.
    Term No. 1207.
    Consolidated for Hearing.
    1. Vendor and vendee—when lien of latter arises. "The legal title remains in the vendor, who has simply agreed to convey, while the vendee, although having as yet acquired no legal interest in the land by virtue of the contract, does obtain a lien upon it as security for the purchase money he has paid, and for the performance of the vendor’s obligation to convey.”
    2. Vendor and vendee—when lien of latter does not exist. If the vendor refuses to convey or the vendee properly declines to complete the sale, the right of a vendee’s lien attaches; but if the conveyance is made, whether in accordance with the terms of a contract or otherwise and the title of the vendor passes to the vendee, then no lien can exist.

      Error to the Circuit Court of Wayne county; the Hon. J. R. Ckeightojs", Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    E. B. Green, Theo. G. Risley and Bonham & M’Lin, for plaintiff in error.
    Creighton & Thomas, for defendant in error; Cooper & Burgess, of counsel.
   Mr. Justice McBride

delivered the opinion of the court.

The above cases were, by agreement, consolidated and tried together and are brought to this court in one . record.

The case No. 1159 was a bill to cancel a mortgage and enforce a vendee’s lien upon the northwest quarter and the northwest quarter of the southwest quarter of section ten, township one, south, of range 5 east in the county of Wayne, State of Illinois.

The case No. 1207 was a bill to foreclose a mortgage executed by George Clarke and wife, upon the same lands, to secure the payment of a note for $2,000 and interest; and in this decision the cases will be referred to by their numbers above given.

The bill in No. 1159 alleges that on February 9,1909, E. V. Mayberry and George S. Clarke entered into an agreement whereby the said Mayberry agreed to convey said lands to the said Clarke for a consideration of $10,000; and covenanted to convey and assure the said lands in fee simple, clear of all encumbrances by good and sufficient warranty deed, and furnish a merchantable abstract of said lands to date, the deed and abstract to be delivered not later than February 15, 1909. By the terms of said agreement the said Clarke was to make a bill of sale to the said Mayberry for a certain stock of merchandise, then owned by the said Clarke, estimated to be worth about $8,000, and that if the said stock of goods should exceed the sum of $8,000 the said Mayberry was- to pay unto the said Clarke in cash the excess of the said $8,000 and to accept from the said Clarke a note for $2,000 payable one year after date and secured by a real estate mortgage on the above described land. That the delivery of the deed and abstract and bill of sale were to be made concurrently, and that each of the parties was to deposit with A. D. Rodenburg a certified check in the sum of $500 to be delivered by the said Rodenburg to the party not in default in the performance of such contract, provided the other party performed. The deed and bill of sale were to be delivered to Rodenburg in escrow not later than February 11th. That the amount of $12,500 was finally agreed upon as the invoice of the stock of goods.

The bill also alleges that the said Mayberry failed and refused to furnish an abstract showing a merchantable title to said land, and that the one so furnished was imperfect. The bill here sets out the abstract in full, and .then alleges fifteen different objections to the abstract, which it is not necessary here to note, except objection No. 4, that the title never passed from the devisees or heirs of John B. Cornell, deceased, to the said Mayberry; and No. 13, that there had been a reservation of all oil, gas, mineral and coal rights under a portion of said lands; that Mayberry failed to correct the errors in said abstract and tendered a deed purporting to convey the said land subject to the said oil, gas, and coal lease, which deed the said Clarke refused to accept; that the time to perfect said abstract was extended after February 15, 1909; and that the entire stock of goods was delivered to one Adolphus Aydt pending settlement of the trade, and that Aydt delivered possession to Mayberry who removed the stock of goods from Centralia to Wayne City, Illinois, that Clarke executed his note for $2,000 secured by a mortgage upon said land to Mayberry on February 22, 1909, and that for the purpose of defrauding Clarke, Mayberry assigned the said mortgage to one W. B. Maulding, and in the prayer of the bill asks that the said mortgage he declared void and the note and mortgage cancelled and surrendered, and that a lien may he decreed to exist in favor of said Clarke against said lands for the sum of $8,000.

The answer of Mayberry admits the making of the agreement and that he was to pay Clarke $12,500 for the stock of goods and to accept the note of Clark secured by mortgage on said land for $2,000 to be advanced by Mayberry to Clarke; and avers he did furnish an abstract of title, and denies that the abstract set out shows the title in the devisees of John Gr. Cornell; and further avers that the said Clarke agreed to accept the said abstract if the defendant secured a release of the oil and mineral rights shown to have been reserved; and that he did procure and deliver to the said Clarke a deed conveying to him all oil, gas and mineral rights on said land that had been reserved, and avers that thereupon Clarke became seized in fee simple of the said premises; and that he paid Clarke the full value of said lands, and that the mortgage was made to secure a loan which Mayberry advanced in cash to the said Clarke; and denies a conspiracy with the said Mayberry to defraud the said Clarke. And further avers that the deed and bill of sale'were delivered and the certified checks of $500 were by agreement surrendered to the respective parties, the loan of $2,000 was made by Mayberry to Clarke and the mortgage was executed by the said Clarke to the said May-berry to secure the said two thousand dollar loan.

Maulding answered denying all knowledge of the trade, and exchange of property, or terms or conditions under which Clarke purchased the land, but averred that he purchased the said note and mortgage before maturity, in good faith, and for the consideration of $2,000, and that he had no notice that Clarke had or claimed to have any equitable or legal defense to said note and mortgage.

The pleadings in No. 1207 was an ordinary bill to foreclose the mortgage made to secure the payment of the $2,000 to Mayberry, and that it was assigned by him to Manlding.

The answer of George S. Clarke and wife denies the right of Manlding to foreclose said mortgage and avers substantially the same facts, in this answer, as were set forth in his original bill.

The facts in this case, as we gather them from the record, are that Mayberry was possessed of a tract of land and Clarke of a stock of merchandise which they agreed to exchange. The stock of merchandise was estimated to be worth about $8,000 and the land was valued at $10,000. The agreement as set forth in the bill was executed by the parties, and a check of $500 was made by Clarke and placed in the hands of Rodenburg to be delivered to Mayberry should Clarke default in his contract, and a check of $500 was made by Mayberry payable to Clarke and placed in the hands of Rodenburg to be delivered to Clarke in case of May-berry’s default; Mayberry was tó make a warranty deed conveying the land in fee simple to Clarke and to furnish an abstract showing a merchantable title in Mayberry. The abstract was furnished but as Clarke claimed there were three serious objections thereto; one, that the title was in John B. Cornell; another, that by some former deed the oil, gas, coal and mineral rights had been reserved so that the said Mayberry was not the exclusive owner of the said lands, also that the title to a part of said lands was in one George M. Norris, W. A. Storey and Elvira A. Norris, and after the defects were discovered in the title the time for perfecting the title was extended from time to time. It appears that these lands had been sold by Storey and Norris to one E. M. Turner and that the deeds were held by George M. Norris, to secure the payment of $1,500 of the unpaid purchase price. The Turner deeds were procured, placed on record and the abstract brought down to date. It is claimed by Mayberry that Clarke then told Mayberry that the most particular objection that he could see to the title, then, was the reservation of the coal, gas and oil rights under forty acres of the land, and that they would proceed to close the trade and he could arrange that part of the abstract later; this, however, is denied by Clarke but the evidence shows that Mayberry took full and complete possession of the stock of goods; the checks for $500 that were placed in escrow by Clarke and Mayberry were surrendered to each of them. Mayberry paid to Clarke the $2,500 difference between the valuation of the stock of goods and the land, and Clarke then made a mortgage upon the whole of the lands in question to Mayberry to secure the loan of the $2,000 which Mayberry says he told Clarke he would advance him if he would close up the deal.

It also appears from the evidence that Aydt had purchased an interest in this stock of goods and Clarke endeavored to make a trade with Aydt for his interest in the goods, and that Clarke made one or two efforts to dispose of the land in question.

It is claimed by the plaintiff in error, Clarke, No. 1159, that he is entitled to a vendee’s lien upon the lands in question to the extent of the $8,000, because of the failure upon the part of Mayberry to complete his title according to contract, and because as Clarke says, of his refusal to accept the deed as made. As we understand the equitable doctrine of the lien of the vendee, it arises where,

“The legal title remains in the vendor, who has simply agreed to convey, while the vendee, although having as yet acquired no legal interest in the land by virtue of the contract, does obtain a lien upon it as security for the purchase money he has paid, and for the performance of the vendor’s obligation to convey.” Pomeroy’s Equity Jurisprudence, Vol. 3, Sec. 1263.

If the vendor refuses to perform, that is convey, or the vendee properly declines to complete the sale, then the right of a vendee’s lien attaches; but if the conveyance is made, whether in accordance with the terms of a contract or otherwise and the title of the vendor passes to the vendee, then no lien can exist. Swetisch v. Waskow, 37 Ill. App. 155. We are clearly of the opinion that the lien of a vendee cannot exist where the title has heen conveyed to and vested in the vendee. It is a familiar doctrine that a delivery of a deed is to be determined by all of the facts and circumstances surrounding the transaction. In this case we think when Clarke permitted Mayberry’s check of $500 to be surrendered to him, allowed Mayberry to take absolute control of the stock of goods, and accepted from Mayberry the $2,500 difference agreed to be paid and then executed a mortgage to Mayberry upon the same lands to secure the payment of a note for $2,000, accepted the loan, which money as the evidence discloses was obtained from the complainant, W. D. Maulding, and, as we think, this was known by Clarke at the time, that it would be inequitable to permit Clarke to say he was not vested with the legal title to the lands.

It appears from the record that Maulding purchased this note in good faith, paid therefor the full amount of $2,000, and we believe that it would be inequitable and unjust to permit that mortgage to be set aside; that Clarke, after having executed the mortgage in question is estopped from denying that he was vested with the legal title; that the circumstances are sufficient to warrant the finding that whatever title was owned by Mayberry had by this deed been vested in Clarke, and that under such circumstances the lien of a vendee could not exist, and that the Circuit Court did right in dismissing the bill of George S. Clarke, and the decree of the Circuit Court is affirmed in dismissing such bill.

It follows from the above finding that Maulding was an innocent purchaser for a valuable consideration, of the note and mortgage above described; that the same was due and unpaid and that he had a right to institute a suit of foreclosure against such land to enforce the payment of the amount due him, and that the Circuit Court did not err in sustaining the foreclosure proceedings, and the decree of the Circuit Court as to such foreclosure proceedings is affirmed.

Decree affirmed.


author: Mr.. Justice McBride

text:
    Charles Flynn, Appellee, v. St. Louis National Stock Yards, Appellant.
    Í. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Instructions'—when do not assume facts in dispute. An instruction need not continually repeat to the jury that they must find from the evidence; if from a reading of an entire instruction it appears that the jury" are required thereby to find the facts referred to from the evidence it is not subject to the complaint that it assumes the existence of facts in dispute.
    3. Instructions—how error cured. Even though an instruction assumes the existence of a fact in dispute such improper matter may be cured by other instructions which clearly indicate that such fact must be established by the evidence.
    4. Instructions—when do not ignore defense of fellow-servants. An instruction authorizing a verdict for the plaintiff where the defense of fellow-servants is relied upon, need not negative such defense.
    5. Master and servant—when defense of fellow-servants will not preclude recovery. Notwithstanding the injury sued for may have resulted in part from the negligence of a fellow-servant yet if the master was also negligent a recovery may be sustained.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Dan McGlynn, for appellant.
    Wise, Keefe & Wheeler and Daniel Dillon, for appellee.
   Mr.. Justice McBride

delivered the opinion of the court.

This was an action brought by appellee against the appellant in the City Court of East St. Louis, Illinois, tried by a jury at the August term, 1910, of said court. The trial resulted in a verdict in favor of the appellee for $2,500; appellee remitted $1,000, and judgment was rendered in his favor for $1,500, and costs, and the appellant brings this case into this court by appeal.

The declaration alleges that the defendant was engaged at East St. Louis in the sale of live stock and that in conducting the stock business it used many sheds and pens of various descriptions; that on the 8th day of June, 1909, plaintiff was in the employ of ■the defendant as a carpenter, working under the orders and directions of a foreman of the defendant, and that it was the duty of the plaintiff to obey the orders and directions of such foreman, and that plaintiff was ordered and directed by the foreman to assist in doing certain kinds of work in the erection of the sheds; that defendant had erected a part of the pens and plaintiff was ordered and directed by said foreman to do certain carpenter work in the completion of such pen and that it was necessary for the plaintiff, in order to perform the work which he was required to do, to go upon and stand upon a certain runway or board, being a part of said pen or shed which had been built by the defendant prior to the plaintiff being ordered to work thereon; that it was the duty of the defendant to furnish plaintiff with a safe place to work and safe supports for such runway or board, and a safe runway or board to stand or work on while performing the work which he was ordered to do; that in the erection of said pen the defendant in disregard of its duty caused a part of said pen or shed, runway or board to rest upon or be supported by a cross-piece or piece of timber which was defective, knotted, cross-grained and of insufficient strength to sustain the weight of the plaintiff while plaintiff was standing on the runway or board attempting to do his work; that plaintiff was not aware of the insufficient strength or defective condition of said cross-piece or piece of timber and could not have known its condition by use of ordinary care, but the defendant by the exercise of ordinary care could have known that the said cross-piece or piece of timber supporting said runway or board was defective and of insufficient strength to support the plaintiff- while working on said runway or board; that plaintiff while standing on said runway or board engaged in doing-work he was ordered to do, and while in the exercise of care for his own safety, said piece of timber supporting said runway or board in consequence of its said defective condition and insufficient strength, broke, causing the plaintiff to fall to the ground with great force and violence, by reason whereof three ribs were fractured and he was otherwise badly injured, and as a result of such fall he has been permanently injured and disabled; that he has expended a large amount of money in attempting to be cured and is damaged to the extent of $5,000. To this the defendant filed a plea of not guilty.

It appears from the record in this case-that the.appellant was engaged in the live stock businéss at -East St. Louis, Illinois, and that in the prosecution of -its business it deemed it proper to erect a row of hog pens; the pens when erected were about sixtéen fee.t square and consisted of four upright posts, each 8"x8", and sixteen feet apart. These posts rested upon concrete piers about five inches high, and when the posts were raised to an upright position they were plumbed and tied or fastened to a board two inches thick, six inches wide and sixteen feet long called brackets or braces. These braces were nailed to the posts with twenty-penny nails and were about seven or eight feet above the ground. In order to prepare these posts for the roof, girders two inches by twelve inches were placed north and south upon shoulders cut in the top of these posts. There were two girders, one on each side of the posts, and the middle of the girders was strengthened by nailing blocks in between .them, and the girders were further strengthened by putting braces at the end extending from the posts up to .the girders. The business of building these pens was not entrusted to one man or any one set of men but the appellant had different sets of men to perform different parts of the work. Other servants of appellant plumbed the posts, nailed the brackets thereto, placed the gang-planks thereon and placed these girders along side or near the gang-planks, and it was the duty of appellee and Hutchinson with whom he worked, to go upon the scaffolding board (which lay on the top of the stringers and near the posts) and perform the work of fitting these girders and putting them in place, and fastening them. The appellee and Hutchinson had about completed the work of placing the girder on the east end of the particular pen in question, and were about ready to commence the work of placing the girder on the west end of this pen; the girders for the west end had been thrown upon the ties or brackets at an angle from the west to the north, and the north end of the girders rested upon the north “tie” about one-third of the distance from the west post. In placing the girders at the east end of the pen Hutchinson worked at one end and appellee at the other. Hutchinson completed his work first and then passed over the north bracket or “tie” to the west end of the pen and on to the platform that was lying to the west end; and as stated by some of the witnesses, passed over this girder towards the northeast until he reached the place the girder lay upon the “tie” or bracket and at the time he reached this point the “tie” or bracket broke and caused appellee to fall to the ground. Appellee was standing, as he claims, on the platform at the east end at the time of the fall; it is claimed by some of the witnesses that he had one foot on the platform and one foot on the north “tie” or bracket. Just before the fall Hutchinson notified appellee .not to come over to the west end as these girders would have to be taken down and sized, and that they could not do the work in the position in which the girders were lying when he crossed over. He says he simply stepped over on these girders waiting for some one to help him get them down to the ground and that such was the position he would take for that purpose. Appellee and Hutchinson were furnished with a ladder to be used to pass from one end of the pen to the other so as to avoid walking upon the “ties” or brackets. Hutchinson, however, passed from the east post over to the west post on the “tie,” as he says, safely. Appellee denies that he was contemplating passing over on the “tie” but says that he expected to go down on the ladder; that he could not walk the “tie.”

The evidence further tends to show that the “tie” or bracket that broke was decayed, cross-grained and had knots in it at the point where it broke; that this bracket was put up by other servants and that the men who nailed it up saw its defective condition but did not know that it was to be used for the purpose of supporting any weight. The appellee and Hutchinson understood the business of putting up these girders and that these “ties” or brackets were not used for the purpose of walking over, as Hutchinson had done. Hutchinson was placed upon the witness stand by the appellant and gave his version of his position and also that of the appellee at the time of the injury. The appellant offered testimony tending to show that at the time appellee fell he had one foot upon the board, used to stand upon in placing the girders, and the other foot extending out on to the north “tie” or bracket. There was also some difference in the testimony with reference to the extent of the injury, and also with reference to some other matters which we do not regard as being very material in the view that we' take of the law that governs this case. At all events, the facts were submitted to a jury for its consideration and unless we can say that the verdict of the jury was manifestly against the weight of the evidence we would not be authorized to disturb its verdict on that account.

It is claimed by appellant that the weight of the evidence tended to show that this injury was not the result of appellant’s negligence, but the jurors saw the witnesses upon the stand and heard the story of each of them and were better calculated to determine the correctness of the story of the several witnesses than we are from the record, and there being much testimony in support of appellee’s contention, we do not feel that we are warranted in disturbing this verdict on the ground that it is manifestly against the weight of the evidence.

It is next contended by counsel for appellant that the first instruction given on behalf of the appellee was so vicious that it would require a reversal of this judgment. The instruction complained of is as follows:

“The court instructs the jury that it is the duty of the master to use ordinary care to furnish a reasonably safe place for the servant to work, and it is the duty of the servant to obey the orders and directions of the master, and if you believe from a preponderance of the evidence that the plaintiff was ordered and directed by his foreman to do certain work on the runway, or board mentioned in the evidence and that in obedience of said order it was necessary for him, to do the work, to stand on said board or runway and while doing said work and while in the exercise of ordinary care for his own safety a piece of timber which supported said board or runway broke by reason of it being knotted, cross-grained and of insufficient strength, as alleged, and thereby caused said board to fall and precipitate plaintiff to the ground, thereby injuring him; and if the jury believe from the evidence that plaintiff did not know and could not have known by the exercise of ordinary care, before or while standing on said board or runway that said piece or timber that supported it was so defective, if it was defective, and could not have discovered said defect by the use of ordinary care on his part, then your verdict should be for the plaintiff, if the jury further find from a preponderance of the evidence that said foreman before plaintiff was injured as aforesaid knew or by the exercise of ordinary care would have known that said piece or timber was knotty, cross-grained and of insufficient strength to sustain the weight of plaintiff when standing on said runway or board doing said work.”

The first criticism made upon the instruction is that the latter part of it, to wit, “and of insufficient strength to sustain the weight of the plaintiff when standing on said runway or board doing said work”, assumes, first, that the piece of timber which broke was of insufficient strength to sustain the weight of the plaintiff while standing on the same; and, second, that it broke while he was so standing on said runway or board doing his work. The former part of the instruction requires the jury to find from the evidence that the piece of timber which supported the board was cross-grained and of insufficient strength as alleged, and it was not necessary to repeat the statement that they must so find from the evidence. By the reading of the whole instruction it will appear further that in the former part of the instruction it makes the declaration, that if in obedience to the order it was necessary for him in performing the work to stand on the board or runway, and while doing the work, using due care and caution, the timber broke, etc., and caused plaintiff to fall to the ground, were facts which the instruction required the jury to find, that if they found he was standing there, then the effect of the conclusion of the instruction, as we read it, is that if the foreman knew or could have known that the timber was knotty and of insufficient strength to sustain the weight of the plaintiff when standing on said runway or board doing-said work then the liability attached. Even if this objection were tenable, we think it is cured by the twelfth instruction given at the request of appellant, which pointedly informs the jury “that the plaintiff has alleged in his declaration that the cross- piece of timber supporting the runway or board on which he was working was defective and of insufficient strength to support him while working on said runway or board, and that you are instructed that this is a material allegation which the law requires plaintiff to prove by the preponderance or greater weight of the evidence before he is entitled-to recover. If after a careful, candid and impartial consideration of all the evidence, facts and circumstances in evidence in this case you believe that the plaintiff has failed to prove this averment * * * you should find the defendant not guilty.” If the instruction was open to the criticism suggested by counsel, we think when considered in connection with appellant’s twelfth instruction, it appears that the plaintiff was required to prove the facts that are complained of as having been assumed by the instruction criticised.

The next criticism upon this instruction, and the one that is most strongly urged is, “that the instruction ignores completely the affirmative defense interposed on the trial, by appellant, of the negligence of the witness Hutchinson while employed as a fellow-servant of appellee.” In other words, counsel for appellant takes the position that it was necessary for the plaintiff to negative the fact that the injury was caused by the negligence of a fellow-servant. In other words, he would have the plaintiff to include in this instruction the proposition that if the injury was caused by the negligent acts of Hutchinson that such would defeat a recovery by the plaintiff regardless of the question as to whether the defendant was guilty of negligence as charged in the declaration. We understand the law to be that even though a fellow-servant may be guilty of negligent acts that materially contribute to the injury, still if the master is also guilty of the negligence charged and such negligence also contributes to the injury, the master would still be liable. And we think tó embody in this instruction the principle contended for by appellant would tend to direct a verdict in favor of the defendant regardless of his negligence. In the case of I. C. R. R. Co. v. Johnson, 95 Ill App. 49, the court says: “When the negligence of the master combines with the negligence of a fellow-servant to produce the injury, and neither alone is the efficient cause, the master is liable.”

Again, in the case of Swift & Co. v. O’Neill, 88 Ill. App. 162, the court says: “Whether the injury was caused solely "by the negligence of appellant in the failure to properly light the place where its employe was directed to work, or such negligence was only a concurring cause together with negligence of others, who were fellow-servants, was not a question of controlling importance. In either case if the negligence of appellant operated as a concurring and efficient cause, the liability of appellant would not be relieved by other causes also concurring.” See also N. C. St. Ry. Co. v. Dudgeon, 83 Ill. App. 528.

In the case of C. & A. R. R. v. House, 172 Ill. 601, this same question was presented, where the appellant had neglected to furnish a light, and another and a different crew had failed to close an open switch, and the engineer who was the fellow-servant of the plaintiff was guilty of running the train negligently and at a high rate of speed; the court says on page 603: “To recover damages for the death of House so caused, this action on the case was brought by his widow and administratrix. The declaration charged the company with negligence in taking off the light, and also in employing inexperienced and incompetent servants on the freight train, and the plea was the general issue. * * * The case presents three causes alike claimed to have been efficiently contributing to produce the unfortunate result, and so essentially that if either had been wanting it would not have been produced. These are, the absence of the switch light, the failure to close the opened switch, and the rate of speed at which the passenger train was running. Bach of these is by one or the other of the parties charged to be negligence— the first, by plaintiff, to that of defendant; the second, by each, to that of the freight train crew; and the third, by defendant, to that of the engineer of the passenger train.” After considering the question as to whether or not the freight train crew, which was different from that upon which deceased was working, were Mow-servants, the court concludes the opinion by saying: “It is unnecessary to consider the question of negligence of the engineer in running at such a rate of speed, for though he was a fellow-servant of the deceased, and however negligent, if the deceased himself exercised due care, and his death was due to the contributing fault of either the company or the freight train crew,.and a fortiori to that of both so contributing, the plaintiff was entitled to recover.”

Again, in the case of C. & N. W. Ry. Co. v. Gillison, 173 Ill. 264, the court says: “If the injury to plaintiff was, in any respect, due to mismanagement of his fellow-servant, the engineer, in handling the front part of the train, that fact would not relieve defendant from liability. • The injury could not have happened but for the defective draw-bar and the breaking in two of the train, and in such a case there would only be the concurring negligence of the defendant and the engineer. Being injured by such concurrent negligence, plaintiff could recover for his injury from defendant.” Cooley on Torts, 560; Pullman Palace Car Co. v. Laack, 143 Ill. 242.

We do not believe that this objection to the instruction is well taken. The appellant was permitted, however, to try the case upon the theory that if the brace in question was broken by the negligence of a fellow-servant that the defendant would not be liable, and was given instructions Nos. 12, 14 and 15 upon this theory, which at least put the question fairly before the jury upon his theory.

The question as to whether or not appellant was guilty of negligence in furnishing a deficient piece of timber to be used and as to whether or not appellee was using due care for his own safety, were questions of fact purely within the province of the jury, and under the instructions given in this case the jury would necessarily find both of these issues for appellee before it could render a verdict in his favor, and these issues being found for appellee it follows that even though the negligence of Hutchinson, the fellow-servant, was a concurring cause in producing the injury, this would not relieve the appellant from liability for his negligence. We cannot say upon these questions, that were proper to be passed upon by the jury, that the verdict was manifestly against the weight of the evidence, and the judgment is affirmed.

Affirmed.


text:
    William Lamb, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the evidence where the Appellate Court is of the opinion that it is clearly and manifestly against the weight thereof.
    Action in case for personal injuries. Appeal from the City Court of Bast St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Shaefer, Farmer & Kruger, for appellant.
    G. C. Borders and F. C. Smith, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is a suit brought by appellee against appellant for an injury appellee claims to have received while he was alighting from a car, which he alleges appellant was possessed of and operating.

It appears that appellee boarded the car in question in Madison, with a view of going to Bast St. Louis, but instead of leaving the car in Bast St. Louis, the point of his destination, he remained on same until the. car was on the approach of what is known as the Bads Bridge, across the Mississippi Biver, at which time, in alighting from the car, he received the injury complained of. Appellee obtained a verdict for $850, and a remittitur of $350 was entered by appellee, and judgment rendered for $500 against the appellant, from which this appeal is prosecuted.

The declaration in this case contains four counts; in the first count appellee alleges that he was attempting to alight from the car at the bridge approach. In the second count he alleges that appellant negligently and carelessly put him off the car in question on the viaduct in a dangerous and unsafe place. In the third count appellee alleges that the appellant negligently and carelessly ordered the appellee to alight from the car in question upon said viaduct in a dangerous and unsafe place. In the fourth count appellee alleges that appellant negligently cast, expelled and ordered, with force and violence, the appellee, to alight from the car on said viaduct in a dangerous and unsafe place.

From an examination of the evidence, as disclosed by the record, it is apparent that the injury to the appellee took place on the east approach to Eads Bridge, as testified to by the witnesses on the part of the appellant.

It further appears that at the place where the appellee got off the car on the east approach of Eads Bridge, it was dangerous to alight while the car was in motion for the reason that there was but a small space, namely, about twenty inches between the steps of the car and the fence of the bridge approach. It appears from the testimony of appellee himself, and two of his witnesses, that he alighted on the top of the bridge where it was not a dangerous place, as there was a space of perhaps twenty to thirty feet between the east and west-bound street railway tracks; the ticket collector and other employes who were on the top of the bridge, where the ticket seller and ticket collector’s office is located, testify that no such injury as complained of by the appellee happened on top of the bridge, the place as testified to by appellee and his witnesses.

From an examination of the testimony in the record herein, appellee testified that when he went to get off the car he turned around and a wagon ran over his foot; that he did not fall down; that the wagon ran over his foot while standing, and that he didn’t fall on the bridge while standing.

Fred Smith, a witness for appellee, testified that appellee fell down, clear down to the floor; that he fell backward; that he fell flat on the bridge and “kind of rolled as he fell;” that is, that he fell on his back, and then rolled over on his breast side to get up.

Edward Bresser, who claims to have been another eye witness of appellee to the transaction in question, says that the conductor put his hand on appellee’s breast and pushed him off and he fell flat on the bridge, and that as he got up he saw him limping.

Under the evidence of appellee and of his two witnesses, who claim to have been eye witnesses to the accident, there appears to be an irreconcilable- conflict. This in connection with the other facts and the testi-. mony of the witnesses of appellant to the effect that"' the injury sustained did not happen- at the place where appellee and his witnesses claim that it did happen, leads us to believe that- we are not authorized, to sustain the finding of the jury in this case.

We are clearly of the opinion that the verdict of. the jury was contrary to the weight of the evidence, and-being of that mind, the case is reversed and remanded.

Reversed and remanded.


author: Mr. Presiding Justice Baldwin

text:
    Isaac N. Perry, Defendant in Error, v. John Krausz, Plaintiff in Error.
    Gen. No. 15,824.
    1. Municipal Court — power to require affidavit of merits. Held, that under the statute and the rules of the Municipal Court, the Municipal Court has power to require a defendant in an action to file an affidavit of merits and to enter judgment against the defendant “as in case of default1 ’ unless the affidavit filed is sufficient.
    2. Municipal Court — when affidavit of merits insufficient. An affidavit of merits does not comply with the requirements of the statute in ‘ ‘ specifying the nature of such defense ’ ’ if it merely states conclusions of law. Such an affidavit must state in a direct and positive manner facts sufficient to disclose the elements of a substantial defense.
    3. Municipal Court — what not pleadings. An affidavit of claim upon the one hand, and an affidavit of merits upon the other, in a suit of the fourth class in the Municipal Court, is not a pleading in the pense of the word as used in section 282 of the Municipal Court Act.
    4. Municipal Court — what does ■not waive default. Service of a notice that the ease will be called for trial, does not waive a default theretofore entered.
    Error to the Municipal Court of Chicago; the Hon. Robert M. Scott, Judge, presiding. ' Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.

      JOHN W. Burdette, for plaintiff in error.
    Felsenthal, Foreman & Beckwith" for defendant in error.
   Mr. Presiding Justice Baldwin

delivered tlie opinion of the court.

Isaac N. Perry, endorsee, brought a suit of the fourth class in the Municipal Court of Chicago, against John Krausz, as maker of a certain promissory note. He filed a statement of claim for moneys due and owing upon a certain note, dated March 16, 1908, for $500, due in one year, etc., with interest. Attached to the statement of claim was an affidavit of one Jacob Levin, stating that he was the agent of the plaintiff in the above entitled cause; that the suit was one for the payment of money, etc., and that there was due the sum of $534.50.

On June 9, 1909, the return day, the defendant, by one John W. Burdette, his attorney, filed his appearance and demanded a jury trial. Upon motion, defendant’s time in which to file an affidavit of defense was extended five days. On June 14th, the defendant filed an alleged affidavit of defense to the whole of plaintiff’s claim, which was subsequently, and on the 23rd of that month, upon motion of the plaintiff, stricken from the files as being insufficient, and the cause was postponed to June 24th. On the last mentioned day, judgment was entered against Krausz as by default, for want of an affidavit of merits.

On the 14th of July, 1909, plaintiff served upon attorney for defendant a notice, informing him that the case had been set for trial for July 15, 1909, on which day the parties appeared by their respective attorneys, and a jury was impaneled to assess damages. After some evidence had been presented by the plaintiff, a juror was withdrawn, and the cause continued. On July 20th, the cause was again called, and both parties appeared by their attorneys; a jury was impaneled and sworn to assess plaintiff’s damages. Oral testimony for the plaintiff was heard and the witnesses were cross-examined by the attorney for the defendant. Upon a peremptory instruction, the jury assessed plaintiff’s damages at the sum of $540.33. Defendant’s attorney, thereupon, moved for a new trial, which was overruled, following which, a motion in arrest of judgment was made and overruled.

The case is before us upon a writ of error. Plaintiff in error, Krausz, here claims that the court below erred in striking his affidavit of defense from the files, and entering judgment as by default, making the following contentions:

1. That there is no power in the Municipal Court to require a defendant in a fourth class case on contract for the payment of money, to file an affidavit of merits or defense and render judgment for the plaintiff as by default on the failure of the defendant to file such affidavit.

2. That an affidavit of merits or defense, where no written pleadings are required, is in substance and effect a pleading.

3. That the plaintiff’s affidavit of claim is insufficient.

4. That defendant’s affidavit of defense is sufficient and should not have been stricken from the files by the court.

5. That defendant’s affidavit of defense need not be filed by the defendant until the case is called for trial.

G. That the plaintiff, in the trial court, waived the judgment as by default, rendered against the defendant.

Taking up these contentions seriatim, we consider (1st) whether or not the Municipal Court has power in fourth class cases on a contract for the payment of money, where the plaintiff has filed an affidavit of claim with, a statement, to require a defendant to file an affidavit of merits or defense.

The Practice Act of Illinois expressly provides that, in actions on contract for the payment of money, if the plaintiff files an affidavit, showing the nature of his demand and the amount due him from the defendant * * he shall be entitled to a judgment as in case of default, unless the defendant, or his agent or attorney, shall file with his plea an affidavit, stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of plaintiff’s demand, and specifying the nature of this defense. Hurd’s Stats., 1908, ch. 110, sec. 55.

The Municipal Court Act of 1907, provides that the practice in that court shall be the same as nearly as may be, as that prescribed for similar suits or proceedings in the Circuit Courts, with the exception that in oases of the fourth and fifth class, the issues shall be determined without other forms of pleadings than those expressly provided for in the act. R. S. Ill., 1908, chap. 37, 282.

By sections 271, 283 and 303 of the same chapter, it is expressly provided that in cases of the fourth class, the Municipal Court may adopt such rules and regulations as it may deem necessary to enable the parties in advance of the trial to ascertain the nature of the plaintiff’s claim or claims, and of defendant’s defense or defenses.

Section 283, supra, provides that this court shall take judicial notice of the rules of practice in force from time to time in the Municipal Court. By rule No. 14, the Municipal Court provided that section 55, supra, should be held to apply to, and govern all civil proceedings in the Municipal Court, as nearly as may be.

Under these provisions, we are clear that the Municipal Court was authorized in this case to enter judgment against the defendant “as in case of default,” unless the affidavit filed by the defendant was sufficient. The Practice Act requires that the affidavit for the defendant shall be to the effect that the affiant believes the defendant has a good defense, etc., “specifying the nature of such defense.”

In the case at bar, the affidavit was by the defendant and was to the effect that he had a good defense to the whole of the claim, “and that the nature of such defense is as follows: that the plaintiff has not and never had a cause of action against the defendant; that the plaintiff is not an innocent holder of the supposed note for value before maturity, and that the supposed note was obtained by the original holder from the defendant by fraud and circumvention, and a failure of the supposed consideration for the supposed note.”

We do not think that this affidavit complies with the requirements of the statute in “specifying the nature of such defense.”

No formal written pleadings being required- in this class of cases in the Municipal Court, it was thought wise to specifically give the court power to require each party to disclose in advance the character of his claim or defense. This was effected by the Legislature providing, in section 303, supra, that in cases of the fourth class, “the Municipal Court may adopt such rules and regulations as it may deem necessary to enable the parties, in advance of the trial, to ascertain the nature of the plaintiff’s claim or claims, and the defendant’s defense or defenses.”

Eule 17 of the Municipal Court requires that in fourth class cases, for the recovery of money only, “the defendant shall file an affidavit, sworn to by himself, his agent or attorney, stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense, whether by way of denial or by way of confession and avoidance, in such a manner as to reasonably inform the plaintiff of the defense which will be interposed at the trial.* * * The affidavit of merits required to be filed under this rule shall * * * in fourth class cases be filed with the defendant’s appearance. * * * If the defendant fails to file an affidavit of merits required under the provisions hereof, the plaintiff shall be entitled to judgment as in case of default.”

It is clear that under these requirements the affidavit of the defendant was not sufficient. It failed entirely to disclose or specify the nature of such defense. “To specify means, to point out, to particularize, to designate by words one thing from another. ’ ’ Stewart v. Jacques, 77 Ga. 365 (368). “Specifying” the nature of the defense, means the pointing out with particularity the facts which constitute such defense. To do this evidently the affidavit must state in a direct and positive manner facts sufficient to disclose the elements of a substantial-defense. The affidavit should be as to existing facts, so that if false the party making it could be convicted of perjury. The affidavit filed by Krausz is entirely lacking in definite allegatiens of facts upon which he could be convicted of perjury, and consists of conclusions.

The contention made in the court below by plaintiff in error was that the affidavit of defense filed by him was sufficient instead of being, as made here, that no affidavit was required.

We do not regard the affidavits of either side, in an action of this kind, as a “pleading” in the sense that word is used in section 282 of the Municipal Court Act, supra.

Plaintiff in error contends that the affidavit of claim filed by the plaintiff was insufficient upon the ground that it was not made by the plaintiff himself, and no excuse shown why it was not. We think this objection untenable, and regard' the affidavit as sufficient.

What we have said before answers the fifth contention of plaintiff in error, that the affidavit of defense need not be filed nntil tbe case is called for trial, which, contention we cannot sustain.

Coining now to the claim that there was waiver of the default in serving notice upon plaintiff in error that the cause would be called for trial, etc., we do not think the contention has much merit. The wording of the notice was undoubtedly wrong in saying that the cause had been set “for trial,” on the 15th of July, instead of being set for “assessment of damages,” but this inadvertence did not operate in any way to his prejudice. The notice served its purpose in bringing him before the court at the time the case was actually disposed of, and was sufficient.

Applicable to this case under the law it is not the duty of this court to reverse the action of the Municipal Court, unless it is apparent from the record that substantial justice to the parties requires that this should be done.

In this case, it appears from the record that plaintiff in error was offered an opportunity by the judge to file an additional affidavit of defense. This he did not care to do, nor did he offer to interpose any defense before the jury. He seems to have cared more to defeat the claim of defendant in error by interposing technicalities than to controvert it with testimony.

The judgment of the Municipal Court will be affirmed.

Judgment affirmed.