text:
    Frederick Seitz, Trustee, Appellee, v. Coal Valley Mining Company, Appellant.
    Gen. No. 5,100.
    1. Mines and mining—what does not waive obligation to support surface land. A conveyance of the right to mine all the underlying minerals implies that in so mining such minerals the surface land shall he' sufficiently supported and that so much of such minerals may he mined as can he obtained without injury to such surface; a waiver of the obligation to support must be made by the owner of the surface land by language clear and unequivocal; such a waiver does not follow a conveyance of all such minerals nor from the use of language in such conveyance to the effect that the mining operations shall be conducted with “as little damage to the surface * * * as conveniently may.”
    2. Mines and mining—what evidence competent in action for injury to surface land. The evidence of witnesses who made their examinations of the land in question after the suit was instituted is competent even though a recovery was limited to the damages which have accrued to the time of the institution of the action, if permanent injuries were claimed and the evidence of such witnesses is applicable to such injuries.
    Action in case. Appeal from the Circuit Court of Rock Island county; the Hon. E. C. Graves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 28, 1909.
    Jackson, Hurst & Stafford, for appellant.
    Jos. L. Haas and H. A. Weld, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

John Seitz, the owner of a certain forty acre tract in Mercer county and other lands, conveyed the coal and other minerals beneath the surface thereof to the Coal Valley Mining Company. The deed contained the following :

“Together with the right to extract, mine and carry away all the said coal and mineral, including the ribs and pillars, in such manner as it shall deem best, and to construct, maintain and use all such air and other shafts and roads thereto and waterways therefrom, as it may deem necessary or convenient for that purpose; also the right to appropriate and use all such part or parts of the surface of said land as it may deem necessary or convenient for the purpose of dumping thereon soil, clay and rock excavated from said premises, and for the purpose of erecting, maintaining and using such pumps, boilers, machinery, buildings, structures and other appliances as it may deem necessary or convenient for the purpose of raising water and other material from such mines and shafts, together with the right to discharge at or near said shafts or any of them, upon the surface of said premises, any and all water which may come or be raised from said mines; together with all such other and further rights and privileges as may be usual or necessary to enable it-said party of the second part, its successors and assigns-to successfully mine and market all said coal and mineral.”

It also contains the following:

“And said party of the second part doth hereby covenant and agree to and with said John Seitz, his heirs and assigns, that it and they shall and will, in and about the mining and excavation of the coal, ribs, pillars and minerals aforesaid, and in and about the enjoyment of the rights and privileges by these presents to it granted, do as little damage to the surface of said land as it and they conveniently may.”

John Seitz afterwards died on January 27, 1897, leaving a will conveying this real estate to his wife, Fredericke Seitz, in trust for certain purposes, which trust had not been terminated when this suit was begun. This is a suit to recover damages alleged to have been caused to the surface and to the buildings thereon by the acts of the appellant in mining coal thereunder without placing and leaving proper and necessary supports, and in withdrawing such props and pillars as it had placed there, and causing the surface soil to crack, settle and subside, and ditches, ridges and holes to be formed therein, and other injuries to be done to the surface and the dwelling house, barns and other buildings, and the foundations and walls to crack and be greatly damaged. The suit was originally brought in the name of the trustee and the cestui que trust, but an amended declaration was in the name of the trustee only. Defendant pleaded the general issue and four pleas of statutes of limitation. No issue in writing was formed upon these special pleas, but the parties went to trial without objection, and oral issues will be held to have been formed thereunder. Supreme Court of Honor v. Barker, 96 Ill. App. 490. At the trial appellee had a verdict for $1200 against appellant and a judgment thereon. This is an appeal by the defendant below.

Appellant concedes that some substantial injury was done to the surface and .to the buildings thereon by its mining operations. Appellee relies upon the rule of law thus stated in Wilms v. Jess, 94 Ill. 464: “Where the surface of land belongs to one and the minerals to another, no evidence of title appearing to regulate or qualify their rights of enjoyment, the owner of the minerals can not remove them without leaving support sufficient to maintain the surface in its natural state.” Appellant concedes the correctness of this rule of law, but contends that it is not liable because of the language last above quoted from the deed from John Seitz to it of the coal beneath the surface. The argument by appellant that it was anticipated and presumed by the use of that language in the deed that damage would be done to the surface of the land by the mining and removal of the coal, ribs and pillars, and that for such damage John Seitz was compensated in the consideration paid for that deed, seems strong and forcible. An examination of the authorities, wherein the above general rule that the owner of the surface of the land is entitled to the support of the subjacent coal and minerals is laid down, will be found to strongly hold that the right of support can only be waived by express words of waiver or by necessary implication from the language used. In Burgner v. Humphrey, 41 Ohio St. 340, the facts were that Burgner conveyed the coal under the surface of his land to defendants, with the right to dig, mine and remove the same, upon certain royalties reserved in the conveyance or lease. It was specially agreed that no mining operations by the lessees should extend to or be so near the dwelling house or barn on said land as to injure said buildings. Defendants carried on mining operations on the premises. Plaintiff sued them both to recover royalties and also damages for injuries to his property. The third cause of action stated in the petition was that the defendants negligently removed the coal so as to cause the surface of the land in many places to sink down in deep holes and so that about sixteen acres were destroyed by falling in, and by reason thereof the land had been rendered unfit for cultivation or plowing. The answer to the third cause of action alleged that defendants had mined and removed the coal in a careful and workmanlike manner, and that if any injuries resulted to the surface therefrom they were only the ordinary and natural injuries that would arise from the mining and removing of the coal. Under the third cause of action, plaintiff introduced proof tending to show that the defendants in mining the coal removed all the pillars, ribs of coal, and supports, whereby the surface was supported, and that the result of removing said pillars, ribs of coal and supports, was that the surface caved in and fell in deep holes and was thereby made wholly unfit for plowing and cultivation. Defendants introduced proof that they mined and removed the coal in the most approved method, and that the approved method of mining coal was to take out all the coal without leaving pillars, ribs or supports for the surface. The jury returned a special verdict, finding that the only negligence of defendants in mining the coal was the removal of the ribs and pillars and that they were removed in a proper manner if the defendants had the right to remove all the coal from "under the land without reference to any support to the surface, and they assessed the damages done to the surface by the mining and removing of the coal. The trial court rendered judgment against the plaintiff on the third cause of action and plaintiff took the cause to the Supreme Court. That court held that when the owner of the fee grants the minerals, reserving the surface to himself, bis grantee will be entitled only to so much of the minerals as he can get without injury to the superincumbent soil, unless the language of the grant clearly imports that it was the intention of the grantor to part with the right of subjacent support; that the owner of the surface is entitled to have it supported by the underlying mineral strata; that each owner must so use his own as not to injure the property of the other; that the subjacent support must be such as will preserve the integrity of the surface, but if the soil above does not require the support of the underlying minerals they may be entirely removed. It was there said that the right which the surface has to support is a part of the freehold, and the mine owner can only work so far as is consistent with this right and is liable if he violates it, and that the highest care and skill in the working of the mine is not a defense if injury results to the surface from the removal of the subjacent strata; and that if the grantee of the minerals wishes to be discharged from the servitude of leaving a sufficient support to the surface, he must obtain it by explicit language in the contract, or the contract must contain something from which the intention to discharge him from that obligation will appear by necessary intendment. It was held that although Burgner, by the terms of his lease, guarded his dwelling house and barn from being injured by extending the mining operations too far, he did not thereby authorize his lessees to remove the support from the rest of the farm. The court said that the intention to dispense with subjacent support.should be manifested by clear and unequivocal language. In reply to the argument that the lease conveyed all the coal, and meant that it might all be taken away without regard to the effect of its removal upon the surface, the court said that the defendants had the right to remove the coal so far as they could consistently with the surface rights; but if they resolved to remove the natural props and pillars for the support of the soil, it was incumbent on them to substitute artificial supports if they could thereby preserve the integrity of the surface. It was held that the authority given in the lease to mine and remove the coal did not authorize them to let down the surface. The Supreme Court entered judgment for plaintiff on the third cause of action, for the damages assessed by the jury.

Coleman v. Chadwick, 80 Pa. St. 81, was a suit by the owner of the surface of a tract of land against the defendants, who owned a coal mine thereunder, for taking away the coal without leaving sufficient ribs and supports, or putting up the necessary posts for supports, in consequence of which the surface fell down, making cracks in the surface and injuring the dwelling house, fences, fruit trees, etc. It was held that when the owner of the fee grants the minerals, reserving the surface to himself, the grantee can only take away so much of the minerals as he can get without injury to the superincumbent soil, unless the owner of the surface has, by his grant, parted with the right of surface support. The deed in that case, conveying the coal, granted all the privileges necessary for the convenient working and transportation of the coal, and all rights and privileges incident or usually appurtenant to the working and usage of coal mines. It was held that the right to support was not defeated by implication arising from that language.

In Scranton v. Phillips, 94 Pa. St. 15, the owner of the surface, by contract with the owner of the coal underneath the surface, bound himself to give the owner of the coal, his heirs and assigns, a full release and discharge forever from any liability for any injury that might result to the surface of the premises from the mining and removal of the coal, and it was held that the coal miner was not liable for damages afterwards done to the surface. The doctrine of Coleman v. Chadwick, supra, was reaffirmed in Carlin v. Chappel, 101 Pa. St. 348, and other authorities were there reviewed, and the case of Scranton v. Phillips supra, was distinguished from the other cases on the ground that it only decided that the right of support to the surface could be conveyed away by the express words of the grant.

Williams v. Hay, 120 Pa. St. 485, was a suit by the owner of the surface against the owner of a coal mine underneath to recover damages for injuries to the surface alleged to have been caused by the.defendant’s negligently mining and removing the coal without leaving sufficient pillars, ribs and supports, and without putting up sufficient supports, whereby the surface caved in and it became impossible to cultivate the same. Plaintiff acquired title from a former owner of the entire interest, who reserved in his deed the right to mine and take away the coal beneath the sur-' face, in which deed was the proviso that said grantor, his heirs and assigns, “in mining and removing the coals, iron ore and mineral aforesaid, shall do as little damage to the surface as possible.” On writ of error to the Supreme Court, defendant contended that the right to surface support was waived by the terms of the deed above quoted. Hpon this point the court said: “It was urged that this language implies jhat some damage would necessarily ensue to the surface in mining the coal. But an absolute right to surface support is not to be taken away by a mere implication from language which does not necessarily import such a result. The owner of the coal had certain surface rights which were indispensable to the carrying on of his mining operations, such as the right to go upon the surface to make explorations for the minerals beneath, and bore holes, sink shafts, drifts, etc., and the right to make roads and erect structures for taking out the coal. Hence it is a fair construction of the deed to say that in doing these things as little damage was to he done to the surface as possible. The provision referred to covers these matters and as we have a subject to which it directly applies, it would be a strained interpretation of the deed to hold that it was intended to take away the right of surface support.”

Noonan v. Pardee, 200 Pa. St. 474, is not in point, for that was a case where the owner of the entire estate, in granting the surface and reserving the minerals, expressly agreed that the surface should not be in any manner cut, broken, or displaced by the removal of coal underneath, and that every damage done to the surface by the exercise of the mining privileges reserved should be made good by the grantor.

In Livingston v. Moingona Coal Company, 49 Iowa, 369, defendant conveyed the premises with a reservation of all coal and coal mines under the surface, and with full right to mine and remove the same by such means as it deemed proper, without thereby incurring any liability for damage to the surface of the land in working coal, coal mines, etc., and removing the same. Plaintiff held under the title conveyed by that deed. He sued the defendant to recover for injuries done by defendant in mining coal under his house and premises, without making or leaving sufficient supports to uphold the earth above the coal, by reason of which want of care the surface was broken up and defendant’s house injured. It was held that defendant was bound to exercise ordinary care in removing the coal, and that if such care required that pillars or ribs of coal be left to protect the surface, their removal constituted negligence entitling the surface owner to damages for the loss occasioned thereby; that defendant could remove no more coal than was reasonably consistent with the preservation of plaintiff’s property; and if the surface could be preserved by substituting artificial supports, then the coal could all be removed. See also note upon “liability for removal of lateral or subjacent support of land in its natural condition,” in 68 L. E. A. 673.

It will be seen that the reservation in the deed in Williams v. Hay, supra, is very much like the language relied upon by appellant in the deed from John Seitz to it. Under the principles announced in that and the other causes above discussed, we conclude that John Seitz and his devisee, the appellee here, were not deprived of the right of surface support by the language of that deed. It follows that the instructions on that subject, requested by appellee and given by the court, were not erroneous.

The forty acres in question lie on the east side of a highway between the villages of Cable and Sherrard and immediately south of another highway, just north of which latter highway were other lands, the surface of which was owned by one 'Sherrard and the mining rights thereunder by appellant. The house, barn and other farm buildings of appellee were situated in the northwest corner adjacent to the two highways and stood upon high ground which descended rapidly to the highways. The east and west highway was about one hundred feet north of the house and about twenty feet below the surface of the ground upon which the house stood. The cracks through the foundation of the house and barn and in the cellar and cistern were to some extent parallel with the east and west road. Appellant contended that these cracks and the injury to the soil, under and near the farm buildings, were not caused by its mining of coal underneath that tract, as the declaration stated, but were caused by the removal of the coal and pillars underneath the Sherrard tract immediately north thereof and the subsidence of that soil, which caused the surface of appellee’s land, where the buildings were, to slide down hill and thus crack and disturb the soil by the removal of the lateral support of that hillside by the Sherrard land, and that this was not the act charged against it in the declaration and therefore appellee could not recover for the injuries done to the buildings and the land immediately adjacent thereto. The vein of coal was about four feet thick and about one hundred and fifty feet beneath the surface. Appellee’s proof tended to show that during 1901, 1902, 1903 and into 1904, shots and the rattling of coal were frequently heard beneath the house and that, upon these cracks opening underneath the house in 1902, gas and noxious odors came up. Appellant repaired the foundations of the house and barn and filled up the cracks in the cellar and cistern in May, 1902. Appellee’s proof was to the effect that a short time thereafter further cracks appeared in foundation and soil, showing further settling of the surface. Appellant offered proof of the following facts tending to show that appellee’s evidence upon this subject could not be true. Appellant proved that its shaft was located some considerable distance south of this land; that it excavated a main hauling way substantially north from its shaft and under this land and the Sherrard land; that it drove entries to the right and left under these tracts, and rooms off of these entries, and first removed about one-half of the coal, and left the rest of the coal in pillars supporting the soil; that when it had gone as far north as it desired or had the right to mine, it began at the northern extremity and dug out the pillars and removed the rest of the coal, permitting the surface of the Sherrard land to subside, and did this to the center of the highway running east and west just north of appellee’s land; that it left the pillars undisturbed under a block about three hundred or three hundred and twenty feet square in the northwest corner of appellee’s forty acre tract, being the part whereon said buildings were located, and did not disturb those pillars; that it then removed the rest of the pillars in the same way underneath the rest of these forty acres; that this work was completely finished as to the vicinity where these buildings stood by January 4, 1901; and that from that time on it was not possible for appellant’s servants or any one else to enter that part of the mine in said block whereon appellee’s buildings were, and that no noise of blasting or rattling of coal thereunder could have been heard thereafter that day. The issues raised by this conflicting testimony were decided by the jury in favor of appellee and that decision was approved by the trial judge, and we see no reason why a decision upon those subjects either way should be disturbed by this court. It is conceded, as we understand the proof, that the surface of the rest of these forty acres, except the immediate vicinity of the farm buildings, was let down by the removal of the pillars, and some cracks and ridges and depressions in the surface were caused thereby. If we are right in our view of the meaning and effect to be given to the deed, then plaintiff has a cause of action.

The court ruled during the trial that plaintiff could only recover for the diminution in the value of the land caused by the acts of appellant prior to December 26, 1902, the date when this suit was begun. Notwithstanding that ruling one or more witnesses for appellee testified in chief that the cracks in the foundations of the buildings which re-appeared after the repairs therein made by appellant in May, 1902, still continued at the time of trial in January, 1908. Appellant offered to prove that these foundations had never been repaired after May, 1902, and then sought to prove the condition of these foundations and buildings a few weeks before the trial,, for the purpose of showing that the conditions after May, 1902, testified to by appellee’s witnesses, did not then exist, from which offered evidence appellant evidently expected to ask the jury to infer, either that the testimony introduced by appellee as to these conditions was not true, or that these conditions .were not permanent. The court refused to admit this testimony, though perhaps one or two answers to that effect did creep in. Appellee was then allowed to show in rebuttal that these cracks in the foundations still existed at the time of the trial. Appellant contends that these rulings against it were erroneous. A defendant can seldom know that it is to be charged with - misconduct or negligence till the suit is brought and the declaration filed and the injury is therein described, and it may not always be able to bring witnesses who can testify to the condition existing before the suit was begun. The defendant must necessarily call witnesses who examine the premises after the suit has brought its attention to what is alleged against it. The objection here seems to have been that these examinations were made several years after the suit was begun; but as the claim in the declaration was that the injuries were permanent, and as appellant offered to show that no repairs had been made since May, 1902, we are of opinion that this evidence of the later condition of the property should have been admitted to be considered by the jury for whatever they deemed it worth, and as tending to refute the proof introduced by appellee.

This evidence, however, would only have gone to the amount of damages which the appellee was entitled to recover. The buildings were small, low and very old. The land was naturally very rough and uneven. We are satisfied from an examination of the evidence that in any view of the case the verdict was excessive. In view of the fact that appellee clearly has a cause of action, we conclude that if appellee will remit one-half of the judgment, justice will be done between the parties by affirming it ip, the sum of $600.

This opinion will be lodged with the clerk before filing and the attorneys will be notified thereof by the clerk. If within seven days thereafter, appellee files a remittitur of $600 the judgment will be affirmed in the sum of $600 at the costs of appellee. If such remittitur is not filed, the judgment will be reversed and the cause remanded for a new trial.

Thereafter appellee filed herein a remittitur of $600 and the judgment is therefore affirmed in the sum of. $600 at the costs of appellee.

Affirmed upon remittitur.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    August Emerling, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 5,079.
    1. Mines and Miners Act—what evidence competent in action to recover for wilful violation. In an action charging the existence and maintenance of a dangerous condition in the entry way, it is competent to show the extent, with respect to distance, of such conditions and the time that they have been permitted to continue prior to the accident in question.
    2. Mines and Miners Act—what question not material in action for wilful violation. The question of the good faith of a mine operator is not material in an action under the Mines and Miners Act charging wilful violation.
    3. Mines and Miners Act—when instruction in action for wilful violation properly refused. It is proper for the court to refuse to give an instruction which separates the several items of proof tending to show dangerous conditions and tells the jury that none of these facts taken separately prove the case.
    4. Evidence—when admission of immaterial, will not reverse. The admission of evidence in support of a count which does not state a cause of action will not reverse, if issue has been joined upon such count.
    5. Evidence—repetitions properly excluded. It is proper to refuse to permit a question to be repeated which has once been asked and answered by the same witness.
    6. Instructions—effect of, referring to the declaration as a whole, where the jury have teen told to disregard a particular count. Where an instruction directs the jury to disregard a particular count of the declaration, a reference in general terms to the declaration in other instructions is to be construed as intending a reference only to that part of the declaration which the jury has not been instructed to disregard.
    Action in case for personal Injuries. Appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 28, 1909.
    Opinion modified and rehearing denied June 9, 1909.
    Statement by the Court. Appellee, an employe of appellant, was driving two mules drawing several ears of coal along an entry way in one of appellant’s coal mines near the foot of a long down grade, when rock fallen npon the track caused the wheels of the head car on which appellee rode to leave the track, and one of his feet was caught between the car and rib of coal on the side toward which the car ran upon leaving the rail, and also between the car and a timber projecting into the entry way, and his foot was crushed. He brought this suit to recover damages for said injuries, and had a verdict and a judgment for $1,000 from which defendant below appeals. It is assigned for error and stated in appellant’s brief that the damages are excessive, but that alleged error is not argued and is therefore waived. Appellant’s chief contentions are that the trial court erred in its rulings upon the evidence and upon the instructions.
    The declaration consisted of four counts, and an amendment to each of them, and two additional counts. All the counts were for wilful violations of the mining statute, except the second additional count which charged common law negligence. At the close of appellee’s proofs, appellee dismissed the suit as to the second additional count. At the request of appellant, the court instructed the jury to disregard the fourth count and the first additional count. The verdict therefore rests upon the first three counts as amended.
    The first count charged that appellant wilfully allowed appellee and others to enter said mine and work therein, not under the direction of the mine manager, before all conditions had been made safe and while a dangerous condition existed in said mine. The dangerous condition was alleged to be that in said entry way there were loose rocks overhanging and jagged pieces of heavy strata in the roof and walls, liable to become detached and to fall into the road, and that said roadway had long needed repairing by breaking down the loose matter and rock and timbering the same; that the roadway was obstructed by loose rock and matter and liable to fall; that the roadway was less than five feet wide and five feet high; that the road was so low and narrow that the driver could not see past the mules; that there were no timbers for the support of the walls and roof; that no proper mark or danger signal was displayed at the defective part of the road nor any conspicuous mark placed there by the examiner; and that no record had been made by the examiner of these conditions. The second count charged that appellant wilfully failed to employ such a mine manager as the mining law required and wilfully failed, through its manager, to see that all dangerous places were properly marked by a danger signal displayed thereat; and it described the dangerous conditions as in the first count. The third count charged a wilful failure to cause the examiner to do the things required of him by law, namely, to visit the mine, inspect the places, make a daily record, etc., and it set out the dangerous conditions as in the first count. Each count charged that by these wilful violations of the statute the plaintiff was injured. The amendment was to each count and described minutely the place where the accident happened, and put it about forty-five yards inward from the principal doorway of the twelfth west roadway, and charged that from a point about twenty feet inward from said doorway to a point about two hundred yards inward from said doorway the bed of the road was not level but had many depressions, with a general down hill grade outwards towards said doorway; that the rails zigzagged in some places toward one wall and in other places toward the other, and in some places were very close to the wall or rib; that the walls were irregular and zigzagged to and from the rails; that great knobs, corners and timbers projected into the road in many places, obstructing the roadway; that rocks and pieces which had fallen from the roof were scattered along the sides of the rails against the rib, obstructing the roadway; that at the place where appellee was hurt a heavy wooden prop stood upright on the left wall coming within some four inches of passing cars and obstructing the roadway; and that the bed of the road was filled with dust which raised upward into the air, obstructing the view ahead of the driver every time a trip passed outward. Appellant pleaded the general issue.
    McDougall, Chapman & Bayne, for appellant.
    J. L. Murphy and William Hawthorne, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

It is alleged that the court erred in admitting evidence of the condition of the roadway and walls and roof for a distance of three hundred and fifty feet inward from the principal doorway and in allowing that condition to be shown for a period of about six months before the accident. From the foregoing statement it will be seen that while the injury was alleged to have occurred about forty-five yards inward from the principal doorway, yet the improper conditions were alleged to have existed from a point about twenty feet inward from said doorway to a point about two hundred yards or six hundred feet inward therefrom, so that the space covered by the proof was included in the charge in the declaration. The fact that said conditions existed for some considerable distance back and that those conditions had existed for several months before the injury tended to show that the conduct of appellant in maintaining those conditions was wilful. Taylor Coal Co. v. Dawes, 220 Ill. 145; Robertson v. Donk Bros. Coal Co., 238 Ill. 344. The existence of obstructions for some distance back, which made it necessary for the driver to ride low with his body in a cramped position in order to escape the obstructions, aided in showing how the injury actually occurred.

Complaint is made of the introduction of testimony that the entry way was dusty. The first additional count was devoted to that subject and appellant joined issue thereon. Appellant contends that that count did not state a cause of action, and the court at its request directed the jury to disregard that count, but the count was a matter in issue when the evidence was introduced and the admission of that evidence was therefore competent. Complaint is made that on cross examination appellant was not permitted to ask a witness if it was not a fact that there was no place in that entry which was less than five feet wide, and, in another question, if it was not true that there were no timbers less than five feet high. An examination of the record discloses more fully than does the abstract that appellant had asked - this witness each of these questions, and had received a positive answer to each, and that the question objected to was a mere repetition and was objected to on that ground. The court did not err in sustaining the objection. Zetsche v. C. P. & St. L. Ry. Co., 238 Ill. 240. We have examined the other criticisms made upon the rulings of the court upon the evidence and do not find any reversible error in those rulings.

It is argued that the court erred in refusing to take the case from the jury. There was evidence to support each of the first three counts of the declaration and it was the duty of the court to submit that evidence to the jury. The fourth count was based upon the provision of the mining law requiring certain passage ways to be five feet high and five feet wide. It is argued that this was not such a passage way as the statute contemplates, and that there could be no recovery thereunder, and that the court therefore erred in permitting plaintiff to introduce evidence tending to show that this entry was not five feet high and five feet wide. The court did instruct the jury to disregard this count of the declaration, and therefore decided this contention in favor of appellant. Appellant contends that because the court gave instuetions for appellee that if the plaintiff was injured by a wilful violation of law by appellant as charged in the deelararation, then they should find appellant guilty, this nullified the instruction to disregard the fourth count and first additional count. We are of opinion that where an instruction directs the jury to disregard a particular count of the declaration, a reference in general terms to the declaration in other instructions not only intends a reference to that part of the declaration which the jury has not been instructed to disregard, but that it would be so understood by the jury. West Chicago St. R. R. Co. v. Buckley, 200 Ill. 260; Sandy v. Lake St. Elev. R. R. Co., 235 Ill. 194. This conclusion answers several other objections made to instructions given for appellee and to the action of the court relating to proof introduced under the counts which the court afterwards instructed the jury to disregard. Instruction 4b requested by defendant, which the court refused, was in the nature of an argument. Some of the instructions requested by appellant and refused were designed to submit to the jury the question whether appellant acted in good faith. It was held in Eldorado Coal Co. v. Swan, 227 Ill. 586, that the question of the existence or non-existence of good faith on the part of the operator of a coal mine is not involved in a suit brought for the wilful violation of the statute. These instructions were therefore properly refused. But the court, by instruction No. 10 given at the request of appellant, laid down the law in harmony with its contention, and it has nothing of which to complain upon that subject. Appellant complains that the court refused to instruct the jury at its request that the mere fact that plaintiff was injured in that entry way did not prove that dangerous conditions existed there. The injury to plaintiff at that place was one of the facts which tended to show the existence of dangerous conditions at the place of injury, and the court properly refused to separate the several items of proof tending to show dangerous conditions and tell the jury that one of these facts taken separately did not prove the case. As the second additional count, charging common law negligence, was dismissed at the end of plaintiff’s, case, and the liability of appellant under the other counts did not depend upon any question of negligence, the court properly refused to instruct the jury upon the question of negligence. Several of the refused instructions were sufficiently covered by instructions given at appellant’s request.

It is contended that the evidence does not support the verdict. The evidence was conflicting. That introduced by appellee tended to establish the first three counts of the declaration. We do not feel authorized to disturb the conclusion of the jury, approved by the trial judge.

Appellee has assigned cross errors, but does not request us to act upon them unless, for some good reason, we reverse the case. We do not find any reversible error in the matters argued by appellant. The judgment is therefore affirmed.

!'Affirmed.


text:
    Luella Heinroth et al., Appellants, v. Elvin J. Griffin et al., Appellees.
    Gen. No. 5,127.
    1. Decebes—when providing for sale conclusive. A decree providing for the sale of real property which contains a provision that it shall be void if a certain bid is not made is conclusive upon all the parties thereto if such a bid has been made and the sale made pursuant thereto confirmed.
    2. Decrees—upon whom conclusive. Decrees are not only binding upon the parties thereto but also upon those who have outstanding unrecorded and undisclosed interests in the subject-matter thereof and upon those who have been represented in the proceeding by their trustee (their interests as cestuis que trust not having been disclosed until after the rendition of the decree in question).
    3. Injunctions—restraining sale under execution construed. Held, that the decree in question in this case operated perpetually to enjoin the sale of the real estate in question under a particular execution specified.
    Mandamus. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 28, 1909.
    Statement toy the Court. This was a petition filed by Luella Heinroth and Fred C. Tiedt against the sheriff of Lake county for a writ of mandamus to compel the sheriff to sell certain premises upon an alias execution in favor of the Illinois Brick Company against the Winthrop Harbor & Dock Company, issued on August 24,1903, under which on September 7,1903, a redemption was alleged to have been made from a prior sale to one Lawrence C. Moore, and said execution on that day levied on said real estate by a former sheriff, but which execution the petition averred was still outstanding and unsatisfied in the hands of the successor in office of said sheriff and still in full force. The petition set out at great length that the harbor company acquired title to this real estate and mortgaged the same and defaulted, and that William Jones became the holder of the notes secured by the mortgage and filed a bill to foreclose against the harbor company and the Illinois Brick Company and others; a final decree of foreclosure; the sale of the premises to William Jones and the issue of a certificate of purchase to him; that Caroline Both recovered a judgment against the harbor company in the Superior Court of Cook county and filed a transcript thereof in Lake county and had an execution thereon' to the sheriff of Lake county, which was levied on said real estate, and that Caroline Both paid to the sheriff $12,330.35 to redeem from said foreclosure sale on August 13, 1903, and the sheriff executed a certificate of redemption to Caroline Both and filed the same for record; that the sheriff then, under said execution in favor of Caroline Both, sold said real estate on September 5, 1903, to Lawrence C. Moore for $24,000, and a certificate of purchase was issued to him and filed for record; that on March 20, 1901, the Illinois Brick Company recovered a judgment against the harbor company in the Circuit Court of Cook county for $275.83 and filed a transcript thereof in Lake county; that said judgment was assigned in writing to William D. Cravens and by Tirm to H. Martin, which assignments were recorded in Lake county on September 7, 1903; and that on August 24, 1903, an alias execution was issued on said transcript to the sheriff of Lake county and placed in the hands of the sheriff. The petition further stated that certain persons were desirous of acquiring title to said land and secured the co-operation of said H. Martin, then the owner of said judgment, and contemplated redeeming the premises from said sale under the execution of Caroline Both and the purchase by said Moore, but did not have sufficient money, and that their attorney, F. H. Novak,' on September 7, 1903, requested and received from Luella Heinroth $2,200 and from Tiedt $5,200 which with other moneys were to he used by Novak in redeeming from the sale to Moore, and which moneys were to be secured in this manner: Martin was to assign to Novak as trustee said judgment of the Illinois Brick Company and all his right in said alias execution then in the hands of said sheriff, and all his right in the redemption moneys to be paid in the name of Martin in making redemption from said sale to Moore, and also an assignment in blank of the certificate of redemption to be issued to Martin, and Novak was to hold these assignments as security for petitioners till the sheriff sold the real estate under said alias execution; and that petitioners should he repaid out of the proceeds thereof; and if Martin obtained title to said real estate through said sheriff’s sale, then Martin was to give his notes due in one year and secured by a trust deed on said real estate. The petition further stated that Novak paid to the sheriff said money to redeem from said sale to Moore, and that the sheriff delivered to Novak a certificate of redemption issued to Martin, showing that Martin had on that day, September 7, 1903, redeemed from the sale under the Caroline Both execution; that the sheriff paid said money to Moore, and paid to one J. Husak, who was then the owner of the Caroline Both judgment, the amount paid by Caroline Both to redeem from the sale to Jones, and that the rest of the money was paid to Husak towards the satisfaction of the execution on the Caroline Both judgment ; and that, pursuant to the redemption in the name of Martin, the sheriff, on September 7, 1903, levied the execution in favor of the Hlinois Brick Company upon said real estate that day redeemed; that said execution has ever since remained unsatisfied in the hands of the sheriff and his successor in office, Elvin J. Griffin; that said judgment in favor of the Illinois Brick Company has never been paid and is in full force; that said execution has never been released or satisfied, but that the sheriff has ever since refused and failed to advertise and sell the real estate thereunder; and that no part of the moneys advanced by Huella Heinroth and said Tiedt, or the interest thereon, has ever been paid to them, and that they have the right to have the sheriff advertise and sell said real estate under said alias execution, but he refuses so to do.
    The sheriff answered setting up many facts prior to the litigation hereinafter mentioned, and setting up the filing of a bill of complaint by Arthur W. Burn-ham and others against Caroline Both, H. Martin, Joseph Husak, Lawrence C. MoOre, F. H. Novak and the sheriff of Lake county and others; and stated the substance of the bill and set out in full the decree rendered in that case, wherein it is claimed the sheriff of Lake county was perpetually enjoined from selling the real estate in question under the execution in favor of the Illinois Brick Company against the harbor company, issued under the judgment here in question. The substance of that bill and of that decree is fully stated in the opinion of this court when that decree was brought here for review, in Roth v. Burnham, 126 Ill. App. 222, to which opinion we refer for a statement of that decree. The sheriff relies upon that decree as his justification for refusing to sell under the execution issued in the case of the Illinois Brick Company against the harbor company.
    The answer of the sheriff also set up that after the rendition of the decree in Burnham v. Both, the master advertised and sold said real estate at public auction on May 10, 1905, to Fayette C. Munro for $16,343.62, and reported said sale to the court, and that the same was confirmed by the court; that no redemption was made from said sale and the premises were thereafter conveyed by the master to Albert C. Frost, then the legal holder of the certificate issued to said Munro; that afterwards, on September 5, 1907, Frost and his wife conveyed said real estate to Otto B. Hansen by warranty deed, which was duly filed for record, but which deed was in fact a mortgage; and that the title to said real estate is in Albert C. Frost, and that Frost and Hansen were necessary defendants to the petition. Thereafter, on motion of said petitioners, it was ordered that Frost and Hansen be made parties defendant, and process issued for them. A summons was issued and served upon Frost. An attempt was made to serve Hansen by delivering a copy of the petition and notice to a stenographer in his office in Milwaukee, Wisconsin. George M. Seward, receiver of A. C. Frost & Company, entered his appearance as a defendant. Frost and Seward each adopted the answer of the sheriff as his answer. A default was entered against Hansen. Petitioners demurred to the answer. That demurrer was overruled. They elected to abide by their demurrer and there was a judgment against them for the costs, from which they prosecute this appeal.

      Leslie A. Needham and Heydecker & Field, for appellants; Charles B. Hazelhurst, of counsel.
    Holland & Elliott and Arthur J. Mullen, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

It is first contended that the decree in Burnham v. Roth is not a bar to the relief sought in this case because said decree was so worded that it never became effective. Said decree (see 126 Ill. App. on page 238) directed a sale of the premises by the master and that there should be considered as bid at such sale by Husak $12,230.35, with interest at six per cent, from the date of the redemption by Mrs. Both to the date of the sale, and the costs of the sale; that the complainants be required to raise the bid; and petitioners in their brief here say that the decree provided that if complainants or some one of them failed to make such bid, then no sale shall be considered to have taken place and the decree shall be deemed void and of no effect; that said condition was never complied with but the property was sold to Munro, who was not a party to the proceeding, and therefore the decree by its terms became void. Petitioners obtained the basis for this argument by omitting from their brief certain words of this decree. The decree provided “that upon the failure of the said complainants or some of them or some other person to make such bid and pay said money, then no sale shall be considered to have taken place and this decree shall be deemed void.” Munro came within the provision for a bid by “some other person”, and therefore, if the complainants did not make the required bid, still the decree remained in force. But there is nothing to show that the complainants did not make such bid as the decree required of them. They may have made such bid and Munro may have overbid them. The subsequent confirmation of the sale is conclusive upon all persons bound by that decree that the terms of the decree were complied with.

It is argued that the decree only enjoined the sheriff from making sale under said alias execution on September 7,1903, and as that date was passed that injunction is no longer effective and does not prevent the sheriff from selling now. The language of the decree in that respect is “that the injunction granted in this case restraining and enjoining the sheriff of Lake county, Illinois, from making and holding any sale under, by virtue of and consequential upon, said redemption made by or in the name of H. Martin, on September 7, 1903, be and the same is hereby made perpetual.” The date September 7,1903, refers not to a date of sale but to the date of the redemption made by Novak in the name of Martin. If the preliminary injunction had restrained a sale under said execution on the particular day then fixed for that sale, this decree is broader and perpetually enjoins the sheriff from making any sale by virtue of the redemption made by Novak in the name of Martin, which was the redemption under the judgment and execution of the Illinois Brick Company.

It is argued that this decree is not binding upon the petitioners because they were not parties to that suit. The petition alleges that the title to the judgment and execution of the Illinois Brick Company was in Novak as trustee for the petitioners. Under the allegations of the petition this assignment to Novak could not have been earlier than September 7, 1903, and may have been later, as the petition only states that “thereafter” Martin executed and delivered to Novak an instrument whereby he assigned to Novak said judgment and all interest in said alias execution. It is not alleged that the complainants in Burnham v. Both had any notice that Novak was trustee for Luella Heinroth and for Tiedt or had any notice that they had any interest in the judgment or execution. There is no allegation that the assignment was recorded nor is any fact stated which would give the complainants in that bill notice that petitioners had any interest whatever in the subject-matter of that suit. In the absence of such notice complainants could not make them parties. It would be fatal to the validity of decrees in courts of equity in such matters if persons holding an unrecorded interest in some portion of the matter litigated could afterwards in this collateral manner avoid a decree rendered in a cause in which all the parties were brought in whose interests were disclosed. Novak, who had the title to the judgment and execution by the assignment and who was the trustee for petitioners, was a party to the suit and bound by the decree, and, according to that decree, was a party to the conspiracy and fraud which that decree sought to undo. We are of opinion that petitioners must be treated as present in that suit by their trustee, Novak, and therefore as bound by the decree. Vetterlein v. Barnes, 124 U. S. 169; Beals v. I. M. & T. R. R. Co., 133 U. S. 290, and authorities there cited.

Counsel for both parties have very naturally drifted outside of the record, and have discussed some facts which our opinion in Both v. Burnham, supra, shows were in evidence in the trial of that chancery cause, and among these facts is the circumstance that Luella Heinroth was a witness on the trial of that case and therefore knew of the pendency of that suit and if she desired to protect her interest she could have intervened, set up her secret rights and obtained an order giving her permission to defend. We deem it improper to consider anything outside the present record. But suppose that petitioners had there intervened or that complainants in that suit had had notice of their interest and had made them parties defendant as well as their trustee, Novak. Still under the facts found in that decree the use of Caroline Both’s judgment in the redemption sale for an amount far in excess of what remained due thereon and the subsequent fraudulent acts of Heinroth, Husak, Moore, Martin and Novak, would have required the setting aside of said sales and redemptions, and the fact that petitioners here might have innocently loaned some money to parties who wished to secure title to this real estate, upon an agreement that the subsequent certificates should be issued or assigned to them as their security could not have prevented the decree against them. Their relief must be sought against the parties to whom they loaned the money which was used in these fraudulent transactions.

We deem it unnecessary to consider the question whether there was sufficient service upon Hansen. The answer avers that Frost is the actual owner of the title. If so he has a right to protect it. But if the title is in Hansen, Frost warranted that title to him and has a right to resist this application for the purpose of protecting that title. But if these defendants had not been brought in, the sheriff had a right, and no doubt it was his duty, to set up in defense the decree which perpetually enjoined him from making a sale under this execution.

The judgment is affirmed.

Affirmed.


author: Me. Justice Dibell

text:
    James J. Ruddy, Appellee, v. Donald J. McDonald, Appellant.
    Gen. No. 5,125.
    1. Contracts—what performance of "building contract sufficient. Literal compliance is not essential to recover upon a building contract; substantial compliance in good faith is sufficient.
    2. Interest—allowance upon master’s award. Interest upon the award of a master is properly allowed from the time of the filing of his report to the time of the entry of the decree thereon.
    3. Costs—propriety of taxation of stenographer’s fees. It is proper to tax as costs the fees of an official stenographer at the rate fixed by statute; if the transcript on appeal does not show what amount was so taxed it will be presumed that no more than the statutory authorization was included in the costs taxed.
    Mechanic’s lien. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 28, 1909.
    Statement by the Court. McDonald, the appellant, a railroad contractor, bought a farm near Aurora and built a dwelling house thereon. He employed Worst and Shepardson, architects at Aurora, to draw the plans and specifications for the building and to superintend the construction thereof. There were among other things, specifications for the plumbing and specifications for the heating. Buddy, the appellee, put in written bids to do the plumbing work for $846 and to put in certain parts of the heating apparatus for $760, each according to the plans and specifications, and he was awarded the contract for the plumbing and for the heating. The preponderance of the proof is that appellant directed his architects to prepare a written contract covering this work. They did prepare a written contract and appellee signed it, and he supposed until after the work was done that appellant had also signed it. In fact it was never presented to appellant for signature and he never signed it, and he testified that he did not know such a contract had been prepared. The contract therefore consisted of the two sets of plans and specifications, the two written bids and the oral acceptance thereof. Appellee put in the [plumbing and the heating and the same was accepted by the architects^'and $500 was paid thereon by appellant. No objection has been made to the manner in" which the plumbing contract was performed. Appellee claimed to have put in certain extras at the request of appellant. Two other oral contracts were made between appellant and appellee, one for the heating of appellant’s creamery, and the other for the installation of- a certain water-lift. This suit is a bill and an amended bill by appellee against appellant, and against the holder of a prior mortgage lien upon the farm, for a mechanic’s lien for the sums remaining due appellee from appellant upon these several contracts. Appellant answered denying that appellee had any right to a lien and denying that the contracts (except the plumbing contract) had been performed by appellee. The cause was referred to a special master to take the testimony and report his conclusions thereon. The order did not say that the master should report the testimony, but he did report it, and the objections and exceptions are mainly based upon that testimony, so that the parties have treated the case as if the order was to take and report the testimony with the conclusions of the master. The master took the testimony and reported the same with an elaborate report of his findings and conclusions. Objections thereto by appellant were treated as exceptions before the court and were overruled. The master disallowed certain items of extras, and made certain deductions for certain slight defects, and found against appellee as to his claim for the water-lift. Appellee filed no objections, and the matter of the water-lift is therefore not before this court. Appellee was given a lien upon the premises for $1,333.65 which included interest upon the amount found by the master from the date when his report was filed in court till the date of the decree, but subject to the prior lien of the mortgage, which prior lien is not here disputed. The court directed that the clerk tax as costs $120 as the fees of the special master and that is not disputed, and also that the clerk tax as costs the fees of the shorthand reporter for making a transcript of his shorthand notes. McDonald appeals from that decree.
    C. I. McNett and James Maher, for appellant.
    E. M. Mangan and John A. Russell, for appellee.
   Me. Justice Dibell

delivered the opinion of the court.

The specifications for the heating contained the following provisions: “The contract when awarded will be for a complete and perfect job, even though every item required to make it such is not specially noted in the drawings or these specifications; ’ ’ and also the following: “Contractor shall furnish all labor, tools and appliances necessary to complete his work according to these specifications, and shall perform his work in a true workmanlike manner in every particular and thus provide the building with a durable and mechanically perfect system, and should any defect in his work. appear the contractor shall remedy such defects at his own cost within a reasonable time after receiving a written notice of same.” In Keeler v. Herr, 157 Ill. 57, our Supreme Court used the following language in relation to building contracts which have been performed in all substantial particulars, but where there are slight and unimportant omissions or defects: “In contracts like the one in suit, sometimes called ‘building contracts’, a literal compliance with the specifications is not necessary to a recovery by the contractor. A substantial performance, in good faith, is sufficient. As was said in Sinclair v. Tallmadge, 35 Barb. 602: ‘If there has been no wilful departure from the terms of the contract, or omission in essential points, and the laborer has honestly and faithfully performed the contract in all its material and substantial particulars, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent or unimportant omissions or defects. The law imposes no such liability and enforces no such penalty.’ Glacius v. Black, 50 N. Y. 145, is to the same effect, and in Crouch v. Gutmann, 134 id. 45, it is said: ‘ Then slight defects caused by inadvertence, or unintentional omissions, are not necessarily in the way of recovery of the contract price, less the amount, by way of damages, requisite to indemnify the owner for the expense of conforming the work to that for which he contracted.’ ” This was approved in Shepard v. Mills, 173 Ill. 223, where the court said: “A literal compliance with such contracts is not necessary to a recovery, but it will be sufficient that there has been an honest and faithful performance of the contract in all its material and substantial particulars, and no omission in essential points or wilful departure from the contract; and mere technical or unimportant omissions will not defeat a recovery of the contract price, less any damages however, requisite to indemnify the owner.” Bauer v. Hindley, 222 Ill. 319. Appellant contends that, though this is the ordinary rule, yet because of the language above quoted from the specifications it was essential to the maintenance of a lien in favor of appellee that he should prove an absolute compliance with the specifications in every particular, and also that the work remained perfect for a series of years thereafter. The proof showed a number of slight deviations, and the master made allowances therefor. For some of these deviations the proof showed appellant responsible, and in other cases the deviation was unimportant. In one room the style and size of radiator selected by appellant furnished one foot more of radiation than the specifications called for. In another room the plans provided for a certain number of feet of radiation to be put in a certain place but appellant afterwards selected a different kind of radiator from that required by the plans and specifications, and this newly selected radiator took up more room, so that in the space where the radiator was to be placed one less coil could be inserted than was intended, and as a result the radiation in that room was a few feet less than was called for by the plans. The master deducted the proven cost of this omitted radiation. In other instances of slight deviations the proof by witnesses engaged in that business differed as to whether the appliance used or that called for by the plans was the more useful. We are of the opinion that the law stated in the cases above cited entered into and formed a part of this contract, and that, notwithstanding the langmage above quoted from the specifications, appellee could recover upon establishing a substantial compliance with the contract, though he had not in every particular complied exactly therewith.

Appellant’s main contention is that the heating apparatus was substantially defective; that it would not heat the building in severe cold weather; that it was difficult or impossible to heat all the radiators at the same time; and that there was pounding in certain radiators, and other like defects. The specifications for the heating required the owner to furnish the boiler and pump set in position and ready for the steam and other connections. The owner furnished and put in position what is called by the witnesses an old boiler. Appellee made the connections therewith. The proof shows that when appellee finished the work it was in perfect condition and heated the building perfectly. Appellant’s architect examined it and accepted the work. The perfection of the work at that time is proved not only by appellee and by those working for him but also by the architect and by another servant of appellant. Afterwards appellant became dissatisfied with the boiler which he had furnished. After appellee had completed the work and had left the job appellant removed the old boiler and purchased and installed another boiler, and the connections of that boiler with the pipes were made by the parties from whom he purchased the new boiler, and they were not called as witnesses to show the manner in which they made these connections nor what they did in that regard. The only testimony as to defects in the subsequent operation of the heating plant, except that of appellant himself, comes from men who examined the plant long afterwards, and who found fault with the plant in various respects. Several of these witnesses were very guarded in finding any fault with the work appellee bad done. Upon a consideration of all the evidence upon this subject we do not feel warranted in disturbing the conclusion of the master and of the trial judge on this subject.

It is argued that it was error to allow appellee interest from the date of filing the master’s report to the date of the decree upon the amount found due by the master. The course pursued seems to be expressly authorized by section 3 of chapter 74 of the Revised Statutes which directs that when judgment is entered upon any award, report or verdict, interest shall be computed at the rate of five per cent per annum from the time when made or rendered to the time of rendering judgment and shall be made a part of the judgment. This statute was applied to a master’s report in Goodwin v. Bishop, 145 Ill. 421, where it was held proper to include the interest that had accrued after the master’s report was filed, and proper for the court to compute the interest without a reference, and this has been followed in several cases by the Appellate Courts. Goodwin v. Bishop, supra, was a bill to foreclose a trust deed to secure an interest-bearing debt, and it is argued that the statute is not applicable to a case like this where there was no contract to pay interest. We find no such limitation in section 3 of the Interest Act above referred to. That provision is in terms applicable to every judgment entered upon any award, report or verdict. It has been frequently applied to verdicts awarding damages in actions on the case, where there has been no contract of any kind, and therefore no contract for interest. The Supreme Court in Goodwin v. Bishop, supra, treated a decree as a judgment and entitled to include interest under this statute. We conclude that the court did not err in awarding interest upon the amount found due by the report.

It is argued that the court erred in ordering that the clerk tax as costs “the fees of the shorthand court reporter for making a transcript of the testimony taken in this cause.” The amount to be taxed was not stated in. the decree. The act of May 31, 1887 (Hurd’s R. S. for 1905, page 616), authorizes the appointment of shorthand reporters by the Circuit Courts and requires them to cause full phonographic notes of the evidence to be taken down, and one transcript of the same, if desired by either party to the suit or by the judge, to be correctly made and furnished to the party desiring it, and allows them to charge fifteen cents per hundred words for making transcripts of said shorthand notes, to be paid for in the first instance by the party in whose behalf it was ordered, and to be allowed and taxed as costs in the suit, and when so paid for and taxed as costs to remain on file, and provides also that when the judge trying a cause shall of his own motion order a transcript, he may direct the payment of the charges therefor and the taxation of the same as costs in such manner as to blm seems just. The allowance of statutory fees to the master for taking the testimony, even where the parties paid a stenographer for reporting it, was approved in Hoops v. Fitzgerald, 204 Ill. 325, which was a cause in chancery. The court there said: “The court allowed to the master the statutory fees for taking testimony. It appears that by agreement the parties employed a stenographer and paid him fifty cents a page for reporting the testimony. Thus the master was saved the labor of writing out the testimony. No portion of the fifty cents per page was received in any way by the master. Notwithstanding that the master did not have to write down the testimony, he had to listen to it, examine and certify to the correctness of every word transcribed by the stenographer or change the same to correspond with the actual testimony. That done by the parties was not at the master’s request, and was doubtless a great saving to the parties in the way of time and solicitor’s fees.” As already stated the decree in this case did not specify the sum which should be taxed, but only authorized taxing the fees of the reporter for making a transcript of his shorthand notes of the testimony. This record does not show what the clerk did tax as costs under that direction. It may well be assumed that he only taxed such fees as are authorized by the statute and the decisions above referred to. Certainly we cannot say that any error in that respect appears in this record. There was attached to the master’s report a bill rendered by the court reporter pursuant to a request made by appellant’s solicitor. If that bill is to be considered, it shows that he furnished not only a transcript of the testimony but also carbon copies, which could not mean less than two copies, and no doubt means that he furnished the master with the transcript which he embodied in Ms report and also furnished a carbon copy to appellee and a carbon copy to appellant. The bill shows that he charged sixty-two and one-half cents per page and that both appellant and appellee made him payments thereon. We cannot know that sixty-two and one-half cents per page would exceed fifteen cents per hundred words for each of the three copies. We are of opinion that the court could properly direct the taxation of the cost of the transcript furnished the master and at the rate fixed by statute. The matter of furnishing carbon copies to counsel for the respective parties depends upon the contract between the stenographer and the parties, unless brought within the terms of tMs statute. If the clerk shall tax a larger sum than authorized by statute, the proper way to reach the matter is by motion in the trial court to retax those costs, and on that motion the actual facts will be disclosed and proper taxation will no doubt be ordered. This record does not show that any unlawful costs have been taxed, nor what, if any, costs have been taxed.

We find no reversible error in the record, and the decree is therefore affirmed.

Affirmed.


text:
    James A. Campbell, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5,102.
    1. Negligence—when recovery under act of Congress providing for grab-irons not authorised. Held, under the evidence, that the car in question in this case was not in use in interstate commerce so as to authorize a recovery for the violation of section 4 of the act of Congress requiring that cars used in interstate commerce shall be provided with secure grab-irons.
    2. Negligence—when Illinois act of 1905 providing for grabArons applies. Servants who in the performance of their duties are preparing to make a coupling of ears are entitled to the protection of this act.
    3. Contributory negligence—when one engaged in coupling cars not guilty of. Held, under the evidence in this case, that the plaintiff was performing his duties in the usual and customary manner, was not acting in violation of any existing rule of the master, was practically compelled to proceed in the manner in which he did in order to perform his duties, and was not guilty of contributory negligence in undertaking to get upon a brake-beam in front of a moving car.
    4. Master and servant—when appliances must be maintained in reasonably safe condition. Notwithstanding the obligation to provide grab-irons for the use of employes may not have existed, yet if such appliances were furnished it is the duty of the master to keep the same in reasonably good repair and condition.
    5. Master and servant—what effects abrogation of rule. Abrogation of a rule may be shown by proof of its habitual violation with knowledge of the employer, and such knowledge may be constructive as well as actual; and if the practice to violate the rule is continued for such a length of time that the employer might reasonably have known of it, knowledge by the employer will be presumed.
    6. Master and servant—when provisions for exemption from liability will not be enforced. Even though a contract may provide for the exemption of the master from liability imposed by law for negligence resulting in injury to the servant, it will not be enforced where the provisions in question are contained in fine print, are not shown to have been read to the servant and contain among others recitals of material matters not true.
    7. Master and servant—effect of contract providing for exemption from liability. A contract by which a master seeks to exempt himself from liability for negligence is invalid as against public policy.

      Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    Jackson, Hurst and Stafford, for appellant; Benjamin S. Cable, of counsel.
    Seaele & Marshall, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On May 8, 1906, while appellee was at work for appellant as one of a switching crew, working with a switch engine of appellant in the yards of Deere & Company in Moline, appellee, at the head end of a string of three cars, gave a signal to the engineer to come ahead and, after the cars started, stepped upon the brake-beam with his foot or feet and at the same time put up his hands to take hold of the grab-iron on that end of the head car on that side, and failed to catch hold of it, and, finding himself falling, sprang to one side and threw his body outside of the rail. The front wheels passed over his left leg and it was crushed so that it had to be amputated above the knee. His right foot was seriously injured, some of his ribs were broken, and he was injured in the back of his head. He brought this suit against appellant to recover damages for these injuries. At a trial he had a verdict for $15,000 which was set aside. During the second trial he filed an amended declaration containing three counts. The first count charged that appellant had negligently allowed the grab-iron to become bent and out of repair and useless as a handhold and dangerous and unsafe for use in appellee’s work of switching; that while engaged in switching that car to couple it to another he stepped on the brake-beam to be in his proper place to make the coupling and reached for the grab-iron, but because it was out of repair and bent, his hand could not pass between the iron and the car, and in consequence thereof he was thrown to the ground and injured. The second count was similar in allegation but also charged a violation of section 4 of the act of 1905 to promote the safety of employes and travelers upon railroads (Hurd’s E. S. 1905, chap. 114, par. 226), which requires that there shall be secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. The third count contained like allegations as to the circumstances and the injury, but alleged a violation of section 4 of an act of Congress adopted March 2, 1893, requiring that cars used in interstate commerce shall be provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men coupling and uncoupling cars, and it averred that this car was in use in interstate commerce. Defendant pleaded the general issue. Appellee had a verdict and a judgment for $14,000, and the defendant below appeals.

The proof is undisputed that appellee reached for the grab-iron, that it was bent, that he failed to get hold of it and that he fell because he did not get hold of it, and that his injury resulted therefrom. The clear preponderance of the evidence is that the grab-iron was placed diagonally upon the end of the car, the lower end being toward the outside; that if such an appliance was found by an inspector of appellant to be in bad order, a chalk mark was put upon the car at the defective place to call attention to the defect, and that there was no mark upon this end of that car indicating any defect in the grab-iron. Appellee looked at the grab-iron before he sprang up, and saw no defect. Appellant produced in court a grab-iron and produced proof that it was the iron which was taken off of the end of the car in question a day or so after the injury. That iron has been certified to this court, and if it is the grab-iron which was upon that end of the car at the time appellee fell, and if it is in the same condition now that it was when appellee fell, then, though slightly bent, there was no place where a man’s hand, with a glove upon it such as appellee wore at that time, could not easily pass between the iron and the wood. Appellant argues that this is the identical iron, that it is in the same condition now as then, and that therefore appellee has no case against appellant. Appellee testified that he could not get his hands between the grab-iron and the body of the car. As he lay upon the ground immediately after the accident he called the attention of those who first came to him to the defective condition of the grab-iron. John D. Weber, who was at that time yardmaster for Deere & Company, was some fifty or seventy feet away when appellee fell, and saw him fall and saw the wheels pass over him, and ran to him, and not long afterwards experimented with the grab-iron. He found that at the ends he could get his hand in but that the rest of the way it was bent so that he could not pass his hand between the iron and the car. He testified that there was probably one-quarter of an inch between the iron and the car, and that though he made an effort to get his hand in he could not do so, except at one end. John Sullivan was at that time acting as switchman for another railroad, whose tracks ran parallel to those of appellant. He was near by and came to the place of the accident while appellee still lay upon the ground. He testified that he went up to this grab-iron with a buckskin mitten on, and could not get his hand down behind it at the place where it was bent. Martin Thompson was fireman of the engine that was pushing these cars, but was in other employment at the time he testified. He testified that the handhold at that end of the car was bent in towards the car except at the ends, and that as near as he could see the iron was within a quarter of an inch of the wood of the car. Charles Dahlsted, who was then forking as a switch-man in the crew with appellee, testified that he examined the car after he got back from calling a doctor, and that the lower corner of this iron was badly bent, and that at the lower end there was not enough space to admit a hand with a glove on. Carl M. Williams, the engineer of that engine and still in the employ of appellant, testified as a witness for appellant that after the crowd had gone away he measured from the outside of the bent rod to the surface of the car and found it to be an inch and three-fourths, and measured the bend and found it to be about ten inches long. He testified that he did not measure the diameter of the rod but believed it to be five-eighths of an inch. That would make the distance between the inside of the iron and the wood of the car an inch and one-eighth. No other witness for defendant undertook to measure or ascertain the space between the iron and the car before it was removed from the car, and although two employes of appellant, one of them its claim agent, removed the grab-iron from the car a day or two later, they did not make any effort to first measure the distance between the bent portion and the car. Weber testified that if the grab iron presented in court was the same one that was upon the car at the time in question, then it had since been changed; that he saw the car inspector and the claim agent prying the grab-iron off from the car after the car had been placed at Deere & Company’s plant, either the same day or the next day, and that they had a bar of some kind. Sullivan testified that between the first and second times that he saw this grab-iron it apparently had been straightened out some and looked as if a pry had been set behind the grab-iron to straighten it. Appellant’s car inspector testified in its behalf that he and the claim agent took off the grab-iron, and that while they used a hammer in the operation, they did not bend the iron. In this state of the proofs the jury were warranted in finding that the grab-iron had been bent and that at the time of the accident there was not sufficient space between the iron and the car the greater part of the length of the iron for the hand of a switch-man wearing gloves to take hold of it. The wearing of gloves by appellee was shown to be customary and necessary to prevent laceration of the hands in doing his work.

The car in question had come from an interstate trip, and was being placed in Deere & Company’s yards to be there loaded with implements for Utah. We are disposed to hold that at the time of this accident this car was not in use in interstate commerce within the meaning of the act of Congress before mentioned, and that therefore the evidence did not warrant a recovery under the third count.

Appellant contends that appellee was not engaged in coupling or uncoupling cars at the time of the accident, and that the state statute was only intended to provide greater security for men at the instant when, they were in the act of coupling or uncoupling cars. This subject will be discussed in another connection. Appellant further contends that under the case stated in the first count of the amended declaration it was under no obligation to furnish any grab-iron on its cars, and therefore it cannot be held liable even if this grab-iron was so bent that its employes could not catch hold of it. We are of opinion that whether it was bound under its general duties to its employes to furnish such irons and handholds or not, yet, having furnished them and having sent the cars out thus equipped, its employes had a right to their being in fit condition for use and to use them on any and all proper occasions, and that appellant was in duty bound to use ordinary care to see that they were reasonably safe for use in the exigencies and emergencies of railway service.

Appellant further contends that there is no evidence that this defect had existed for such a length of time that appellant in the exercise of ordinary care should have ascertained the defect and repaired the iron or removed the car from service. The witnesses on both sides agree that this condition of the grab-iron was produced by “cornering,” that is, one car being on a switch track hut only partly removed from the main track, another car on the main track had struck it so that the corner of that car collided with and bent the grab-iron on this car. Appellant contends that this may have happened within a few minutes before the accident, and so short a time before that it could not have learned thereof. The proof is that nothing of that kind had happened while this switching crew had hold of that car. Weber testified that when he examined the grab-iron a half hour or an hour after the accident, the bend in the iron appeared to be an old bend; that he could tell by looking at it that it was an old bend. Dahlsted testified that from its appearance at the time he thought the bend had been there quite a while and that it was not a new bend. Williams, the engineer, appellant’s witness, testified that it looked to him as if the bend had been done some time. Although appellant’s car inspector removed the grab-iron within a day or two, yet he did not testify that there was anything in the appearance of the iron to indicate that it had been recently bent. In this state of the proof we would not be authorized to disturb the conclusion of the jury that the bend was not recent and that proper inspection of the car would have ascertained and remedied the defect before the car was sent to Deere & Company’s yard to be loaded for this long journey.

Appellant’s chief contention is that it was an act of gross and reckless negligence for appellee to undertake to get upon this brake beam in front of this moving car; that appellee’s own testimony conclusively showed that he was not exercising due care for his personal safety; and that therefore the trial court erred in refusing to instruct the jury as a matter of law that appellee could not recover, and in giving other instructions submitting to the jury the question whether appellee was in the exercise of due care. Appellant relies strongly upon the language of this court in E., J. & E. Ry. Co. v. Docherty, 66 Ill. App. 17, and also upon L. S. & M. S. Ry. Co. v. Roy, 5 Ill. App. 82. Besides other differences that will appear, this case is distinguished from those in this particular, that in those cases there was an express rule of the railway company, known to plaintiff, forbidding him to get upon a moving car or engine in the manner in which these plaintiffs did when they were injured. In this case appellant had no such rule, and appellee did not violate any rule by his conduct. There is also proof here that this was the usual and customary and almost necessary way in which a duty such as appellee was then discharging was then performed upon appellant’s road. Even if there had been such a rule as in the cases above referred to, abrogation of a rule may be shown by proof of its habitual violation with knowledge of the employer, and such knowledge may be constructive as well as actual, and if the practice to violate the rule is continued for such a length of time that the employer might reasonably have known of it, knowledge by the employer will be presumed. Hampton v. C. & A. R. R. Co., 236 Ill. 249.

At the time this engine started to push these three cars into Deere & Company’s yard, the purpose was to couple them to certain cars standing in that yard. The crew consisted of the foreman, engineer, fireman, and two switchmen. The foreman had gone to another part of the yard. The other switchman had gone on ahead into Deere & Company’s yard for the purpose of going to their warehouse on some errand. Appellee was the only one in charge outside of the engineer. The engine was now headed west, so that the engineer’s seat was on the north side. The distance to the car to which the coupling was to be made was about three hundred feet. Appellant’s counsel say six hundred feet, but the preponderance of the evidence does' not seem to justify that statement. Appellee had never been in this yard before. It was his duty to be at the head of the cars, both to make the coupling and also to look out for any other employes, either of the railway company or of Deere & Company, who might be working about the cars which they were to strike or who might come upon the track. There was a hand lever for coupling purposes on the front end of the head car, but that hand lever was on the south side of the car. There was an iron ladder and a sill step on the front end of that car, but they are also on the south side. If appellee took his station on the south side he would be out of sight of the engineer, and could only give signals to the fireman, to be by him communicated to the engineer. The fireman was often engaged in shoveling coal or attending to other duties, and was not expected to watch for signals. The photographs in the record are of a car said to be of the same class as the car in question, and it had the ladder on the end of the car at the south side. There is some proof, however, that this is not a correct representation of the way the car was built upon which this accident occurred. If appellee had ridden upon the south side there was between him and the car to which the coupling was to be made a scale box which would come within a very few inches of this car, which was a large furniture car, and his life would have been endangered from that source. Appellee could have got upon the top of the car, but it was not customary to get upon the top of a car to go so short a distance, and if appellee had done so, he could not have attended to his duties connected with the coupling. The proof warranted the jury in finding that the usual and customary practice in appellant’s service, under such circumstances, was for the brakeman in charge of the string of cars to take a position on the engineer’s side of the front end where he could signal the engineer directly and could also arrange for the coupling, and that it was a customary practice for the man at the front to step upon the brake-beam and take hold of the handhold iron provided, after he had given the signal and the cars had started. Appellant proved that there were foot boards on the front and rear of this engine, but appellee could not have ridden upon either of these and performed the duties required of him. The coupling was known as a Janney coupler. The lever on the south side of the car could only lift the pin; it would not open the knuckles. It was generally found necessary to open one or both knuckles in order to make a coupling when the cars struck each other. The car to which they were to couple on stood on a curve, and the proof shows that when coupling with a Janney coupler on a curve it is practically impossible to do so without first opening the knuckles. Appellee’s testimony is that he started to get upon this brake-beam for the purpose, not only of keeping watch ahead, but also and especially to open these knuckles while traversing the space of three hundred feet. It seems to us not too broad a construction of the Illinois statute to say that he was engaged in preparing this car for coupling within the meaning of that act and therefore was within the protection of the statute. C. & A. Ry. Co. v. Walters, 217 Ill. 87; I. C. R. R. Co. v. Heath, 228 Ill. 312. Under all these facts we are of the opinion that it was a proper question for submission to the jury whether appellee was in the exercise of due care for his own safety and whether he was performing his duties in the manner in which such duties were customarily performed in appellant’s service with appellant’s knowledge. The court therefore properly refused to hold as a matter of law that appellee could not recover for want of due care on his own part, and did not err in refusing appellant’s instructions Nos. 1, 2, 3 and 4, of which refusal complaint is here made.

Appellant contends that appellee contracted to assume this risk, or is estopped to recover or to deny that he assumed the risk, because of a written application signed by him before he entered the employment of appellant. When appellee applied for a position upon appellant’s road, he was handed a blank and told to fill it up, and he went home and did so, and then went to the company’s surgeon and was there examined, and then the application was turned in. This document covers eleven typewritten pages of this record. A certain part of it contains twenty questions to be answered by the applicant, in which he gives his family history, habits of life, railroad experience, etc. There then follows over four pages of solid matter which is proved to have been in fine print, wherein the railroad company seeks to bind the applicant to release the appellant from any of the duties which the law imposes upon it. Among these provisions are the following: “I have had explained to me the dangerous nature of the service in which I am about to engage. I understand that standing in front of, or getting on, an engine or car coming towards me is dangerous, and is in violation of the rules, and if done by me will be at my own risk. I understand that great care must be exercised in approaching and passing all bridges and overhead structures, as they will not clear a man standing on top of a high covered car; that it is dangerous to climb up and down the sides of cars, or to otherwise expose myself, while passing water tank spouts, sand house pipes, coal houses or chutes, seed houses, cotton platforms, signal posts, switch stands, mail cranes, roundhouse doors, buildings and other structures dangerously near to the track, as they will not clear a man with safety, and that I am required to look out for them and avoid danger. I understand that the duties of the aforesaid situation expose me to great danger, the risk of which I assume, and agree to use constant and proper care to prevent injury to myself and others.” Appellee testified that he read none of this fine print. There is no proof that he did. There were several things in the statement that were untrue. It is not true that any one explained to him the dangerous nature of the service. Nothing was. said to him in regard to getting upon an engine or car coming towards him. The company had no such rule as was there stated. Elsewhere in the fine print he is made to say that he solemnly swears to the truth of the statement, but he was not sworn. If such a contract could be valid, we are of opinion that it ought not to be enforced when, as here, the provisions were of great length and in fine print and when no such explanations were made to the employe as were therein stated, and when the company had no such rule. But. we think the principle applicable which was laid down in Consolidated Coal Co. v. Lundak, 196 Ill. 594, where the appellant had adopted certain so-called rules which were designed to relieve it from its duties and liabilities to its employes, and the court said of them: 6 6 They are nothing but an attempt to make laws under the guise of rules, and, so far as they are claimed to operate as a contract against the negligence and dereliction of the defendant, they are void as against public policy.” Or as said in Himrod Coal Co. v. Clark, 197 Ill. 514: “A master cannot by a contract with a servant, in consideration of the employment, exempt himself from liability to the servant for injuries sustained through his negligence. Such a contract is void as against public policy.”

We conclude that if the jury had found that appellee was negligent and was injured because of his own negligence and the trial judge had approved that finding, it would have been sustained here. But we are of the opinion that in view of all the facts and circumstances, a verdict for appellee, approved by the trial judge, is also entitled to stand.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.