text:
    Frederick W. Hoffman, Appellee, v. Ernst Tosetti Brewing Company, Appellant.
    Gen. No. 16,131.
    1. Instructions—when peremptory should not he given. A peremptory instruction should not he given where the evidence tends to establish the allegations of the plaintiff’s declaration.
    2. Instructions—must not single out evidence. It is improper for an instruction to single out and lay special emphasis upon a partieular item of evidence.
    3. Instructions—predicated upon evidence. An instruction should not contain an hypothesis not supported by any evidence in the cause.
    4. Instructions—definite in form. An instruction is properly refused which is vague, indefinite and misleading.
    5. Evidence—as to what expert testimony competent. Held, that it was proper to inform the jury that the friction of one metal with another would cause heat and that a wooden hub coming in binding contact with a nut would also cause heat and that the expansion of the nut by the heat thus produced would cause it to drop off or break off.
    6. Evidence—when as to reputation of manufacturer incompetent. Where a charge is made that a wagon was defective, evidence that the manufacturer of such wagon was a reputable manufacturer of wagons, is not competent.
    7. Evidence—when question calls for conclusion. A question as to who had authority to make promises or assurances calls for a conclusion and an objection to such a question is properly sustained.
    8. Evidence—when question as to duty competent. Held, that a question which inquires as to whether it was a servant's duty to do a particular thing, was not reversible error.
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    F. J. Canty and E. J. Folonie, for appellant.
    Lackner, Butz & Miller, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion^of the court.

This appeal is from a judgment for $9,000 in an action of trespass on the case.

The declaration contains several counts, but the substance of them may be stated as follows: That it was the duty of the defendant, appellant here, to furnish the plaintiff a wagon which was serviceable and well-constructed, with all its parts in a safe and good working .condition, but that not regarding this duty, the defendant furnished the plaintiff a wagon to drive which was unserviceable and defectively constructed, and which had one axle which was improperly constructed, was too short, was in a bad and unsafe condition, and was in such condition that it was liable to cause one wheel of said wagon to come off while the wagon was in use, and that, while plaintiff was driving the wagon, one of the wheels of the wagon, by reason of the defective, dangerous and unsafe condition, came off causing the plaintiff to be thrown violently to the pavement whereby he was injured.

It is urged on behalf of the appellant that the trial court erred in refusing to direct a verdict for the defendant. In support of this contention some argument is indulged in by counsel for appellant with reference to the doctrine of res ipsa loquitur. That doctrine is not applicable to the case and no further notice of it need he made.

The evidence shows that the wagon in question was first put in use by the defendant from three to six weeks prior to the date of the accident, and from the day when it was first used until the day of the accident, all four wheels of the wagon ran hot when the wagon was used. This is the testimony of Herman Bleck, who was employed by the appellant company as a greaser of its wagons, including the wagon in question. Bleck testified that the wagon had been in use for about three weeks before the accident, and that it always came back with all four of the axles hot, but that the axle on which the left hand wheel ran was hotter than the others. He testified that he took off the wheels, washed them with kerosene before they got cold and then brushed them out and greased them, and put the wheels on, and turned the nuts tight and gave the wheels a little spin; that the left hand wheel would not spin, but would only turn so long as he pushed it with his hand, and when he took his hand off it would stop and would not spin. He further testified that he greased the wagon the night before the accident, and put plenty of grease upon it; that the rear left hand wheel would not spin when he attempted to cause it to spin, hut would stop as soon as he took his hand off. This is uncontradicted evidence as to the condition of the wagon.

The evidence shows that upon the complaint of the plaintiff as to the condition of the wagon it was sent to a repair shop, but that only the front wheels were ground down and tested, and that the rear axles were not touched. The evidence in the case without dispute shows that the hot axles must have been caused by one or more of three things: Either the boxing was.too long and rubbed against the nut; or, the wood in the hub extending over the box was too long, and rubbed against the nut; or, the boxing fitted too tightly upon the axle. The evidence, shows without contradiction that the natural tendency of the existence of either one of the three defects mentioned would cause the nut to come off, either by heating and the consequent expansion of the nut, or by grinding and heating and a resultant breaking off. The evidence shows without controversy that the appellant had full knowledge of this condition of the wagon, and that it returned to the yard of the appellant every night when in use with the axles hot.

The accident happened on the 3rd of July, 1903. This being the day before the Fourth of July, was one of the heaviest days of the year in the defendant’s business, because, as we suppose, saloons are required to be closed on legal holidays. On that day the plaintiff took out two wagons. He put his regular helper on the extra wagon and took a new man with him on the wagon in question. The testimony shows that the wagon was driven on this day about twenty miles. While the plaintiff was driving south in State street, in the city of Chicago, between seven and eight o’clock in the evening and had about reached Harmon court, the left hind wheel of the wagon came off, and the plaintiff was thrown to the street. He was knocked insensible, and the neck of the' right femur was broken, and he was otherwise seriously injured.

In our opinion the jury were warranted by the evidence in finding that the accident was caused by the defective boxing in the hub, or by the extension of the wood in the hub over the boxing, and that the heating of the nut and axle caused the nut and the wheel to come off the axle. No other probable cause for the accident is shown by the evidence to have existed. The jury were warranted by the evidence in drawing the inference, we think, that the falling off of the nut was the result of the defective construction of the axle and wheel which ran upon it. The evidence was sufficient to require the case to be submitted to the jury, and the court did not err in refusing to direct a verdict for the defendant.

We do not think that the contention on behalf of appellant that the court erred in denying the motion for a new trial because the verdict is against the preponderance of the evidence, finds any basis in the testimony. The evidence preponderates in favor of the plaintiff.

It is urged that the court erred in permitting witnesses Draper, Trautman and Nelson to testify as experts on the question of what would be likely tti cause a wagon to run hot. All three of these witnesses were men of long experience in the matter of repairing wheels, axles and nuts on wagons. We think the court did not err in permitting the testimony. It was proper to inform the jury that the friction of one metal with another metal would cause heat; and that the wooden hub, coming in binding contact with a nut, would also cause heat; and that the expansion of the nut by the heat thus produced would cause it to drop off or break off. The admission of this testimony was hot error. Acme Harvester Co. v. Chittick, 230 Ill. 558; Henrietta Coal Co. v. Campbell, 211 id. 216; Kellyville Coal Co. v. Strine, 217 id. 516.

The court excluded the evidence offered by appellant tending to prove that the manufacturer of the wagon in question was a reputable manufacturer of wagons. This ruling of the court is urged as erroneous. We are unable to see that the evidence offered would have enlightened the court and jury upon the question at issue in the case in view of the uncontradicted evidence as to the existence of the defect, and that it had been called repeatedly to the attention of the defendant before the happening of the accident. The defendant had direct and specific notice that the wagon was not properly constructed and as to the particular defect alleged in the wagon. It cannot be said, therefore, that the defendant had any right to rely upon the reputation of the manufacturer of the wagon in view of the undoubted defect in the wagon, and of the notice it had of such defect. The court did .not err, in our opinion, in excluding the evidence.

It is urged that on the reading of the deposition of Kornmayer, the court sustained an objection to questions asked of the witness as to who had authority to make promises or assurances for the defendant. The answer to these questions manifestly involved a conclusion on the part of the witness. Further complaint is made that on cross-examination, the court permitted counsel for the plaintiff to ask the same witness whether or not it was the greaser’s duty to see that the axles were properly attended to, so far as greasing them was concerned. We see no reversible error in permitting questions on this subject to be answered by the witness.

The court .refused defendant’s instruction 22 in which the court was requested to instruct the jury that, “the mere fact that one of the wheels of the wagon which plaintiff was driving came off, if you believe from the evidence that it did come off, is not of itself any evidence of negligence on the part of the defendant entitling plaintiff to recover. ’ ’ This requested instruction if given would have called the attention of the jury to one item of evidence, or one fact disclosed by the evidence, and that the jury would have a right to draw a conclusion from that fact alone. This method of instructing jurors has been condemned in many cases, among which are West Chicago St. Ry. Co. v. Petters, 196 Ill. 298, and Weston v. Teufel, 213 id. 291.

Complaint is also made that the tiourt refused to give the twenty-third instruction requested by appellant ; that instruction reads as follows:

“The jury are instructed that if you believe from the evidence that the axle in question had been running hot at various times, but that it did not run hot on the day of the accident, then you must disregard the evidence respecting the heating, in arriving at your verdict. ’ ’

We think this instruction was not based on any evidence in the case. The testimony of the witness Smith does not show that he at any time examined or felt of the left rear wheel or axle; he did not so testify. He was on the stand as a witness on behalf of the appellant, and, although he testified to feeling of the wheels and nuts of the wagon, he did not testify directly as to feeling of the left rear wheel of the wagon and the nut holding same in place. The evidence in the case is uncontradicted and undisputed that during all the time the wagon in question was in use the left rear wheel ran hot, and was in that condition every night when the wagon was returned to the yard of the appellant. Smith testified that Hoffman told him on the first stop down-town on that date to look at the wheels,— that they had been running hot,—“I did look after them; I felt of the axle. I felt of the nut and the axle that is flush with the nut. I did that a couple of times that afternoon. As I felt them those different times during the afternoon they were cold.” We do not think that this evidence shows that the axle was not hot at the time of the accident, or that it did not run hot on the day of the accident. We do not think that counsel for appellant would have contented themselves with the mere general statement of the witness Smith as above given if they could have proven by him that the left side rear axle had been tested by him as to' heat on the day in question, or shortly before the accident. We are of the opinion that the jury would not have been warranted in finding from the evidence that the left hand rear wheel did not run hot on its axle, and the court did not err in refusing the instruction. It would have been misleading if given. It would have been equivalent to telling them that they must disregard all the evidence respecting the heating of the axle contained in the record.

It is also urged that the court erred in refusing instruction 24, dealing with the propriety of a party to a lawsuit paying witnesses for the time they lost in attending upon the trial of a case. This instruction had no basis in the evidence and was properly refused; The evidence simply showed that the witness Smith had received money from some one but he did not know from whom. There was no evidence what the money was paid for or by whom it was paid.

The court refused instruction 21 tendered by appellant. This instruction was vague, indefinite and misleading; it assumed to tell the jury that if they were unable to determine from the evidence whether or not the accident was caused by the negligence complained of they must find for the defendant. The jury had already been told by instruction 16 that the plaintiff could not recover unless he proved by a preponderance of all the evidence that the defendant was guilty of the negligence complained of in the declaration, and that the accident happened as a result of such negligence; and bv instruction 12, the jury was told that they must find for the defendant if the evidence is so evenlv balanced that they were unable to determine whether it preponderated in favor of the plaintiff or the defendant. We think these instructions fully «over the ground which would have been covered by instruction 21. if it had been properly framed and given.

Upon a careful examination of tbe testimony as to the injury received by the plaintiff, we are of the' opinion that the judgment is not excessive. We do not think the record shows that the verdict was the result of passion and prejudice. The court required a remittitur from $12,000 to $9,000, and the judgment was entered upon the remittitur. We find no reason for disturbing the judgment on the ground that it is excessive.

Finding ho error in the record the judgment is affirmed. ■ ■' ¡i ••;"{$]

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    The Philadelphia & Reading Coal & Iron Company, Plaintiff in Error, v. Capps & McCormick Company, Defendant in Error.
    Gen. No. 16,166.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opnion filed February 6, 1912.
    Rehearing denied February 20, 1912.
    TJllmann, Hoag & Davidson, for plaintiff in error.
    Truman H. Miner, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

In an action in the Municipal Court of Chicago by the plaintiff, Philadelphia & Beading Coal & Iron Company, plaintiff in error, against Capps & McCormick Company, defendant in error, the plaintiff had judgment for $1.95. The action was brought to recover a balance due on an account for coal sold and delivered by the plaintiff in error to the defendant in error. The defendant in error filed a plea of set-off, setting up a claim of $163.25 due to the defendant in error from the plaintiff in error on account of rebates of 25 cents a ton for hard coal purchased by the defendant in error from the plaintiff in error.

No question of law is involved in this case. The judgment is sought to be recovered on the ground that the proofs show that O’Kelly, the salesman of the plaintiff, did not promise the rebate of 25 cents per ton which the jury allowed the defendant, and second, that O’Kelly had no authority to offer a rebate and agree to make it.

The evidence shows that the contract for the sale and purchase of the coal in question was made by plaintiff’s sales agent, Myles J. O’Kelly, in May, 1907. The coal in question was sold pursuant to the contract made by O’Kelly and delivered from May, 1907, to October, 1908. There was a total delivery of 855 tons of hard coal under the contract.

The evidence shows that O ’Kelly was the recognized agent of the plaintiff for the sale of coal,-and it was stipulated that the defendant had been credited with rebates on 202 tons of hard coal, and that on 653 tons the rebate of 25 cents had not been credited to the defendant.

Upon the question as to whether the rebate was agreed upon with O’Kelly, two witnesses testify in support of the defendant’s contention. Capps téstified that on the 8th or 9th of May, 1907, O’Kelly solicited the business of the defendant company, stating that he could give them a better price by 25 cents per ton than defendant was paying, and that shortly thereafter O’Kelly agreed to give defendant a rebate of 25 cents a ton on the price named. The witness McCormick testified to the agreement by O ’Kelly, and that in consideration thereof the defendant company began buying coal from the plaintiff.

On behalf of the plaintiff, O’Kelly testified that he never promised the defendant a reduction or rebate on coal prior to May 1st, 1908.

Correspondence between the parties tending to show an account stated was introduced in evidence. There was also a letter from the defendant in March, 1909, stating that in checking over the account they had discovered that the plaintiff had omitted to give the defendant credit for the rebate of 25 cents per ton on 653 tons, and that they had only received a rebate on 202 tons out of a total of 855 tons of coal. To that letter the plaintiff made reply by bringing the suit.

In our opinion the jury, under all the facts and circumstances shown in the evidence, were justified in finding that the defendant was entitled to the rebate of 25 cents per ton on all the coal sold. The verdict and judgment are not clearly against the weight of the evidence upon the question of amount, assuming that 0 ’Kelly had authority to sell the coal and fix the price, and give a rebate of 25 cents a ton. Upon that question we also think the jury were justified in finding from the evidence that 0 ’Kelly was authorized by the plaintiff to make the contract claimed by the defendant. He was held out by the plaintiff to the trade and to the defendant as its sales agent, and we think the defendant had reason to believe that he was authorized to make the contract which it is claimed by the defendant was made for the sale of the coal in question.

The judgment is affirmed.

Affirmed.


text:
    The Standard Brewing Company, Defendant in Error, v. The Erie Railroad Company, Plaintiff in Error.
    Gen. No. 16,221.
    1. Contributory- negligence—driving across railroad trades. In determining whether it was contributory negligence to attempt to cross railroad tracks in front of an approaching train, the fact that the crossing gate was not down may reasonably be considered as an intimation to. the driver that it was safe to enter upon the crossing.
    2. Evidence—when admission as to habits of care will not reverse. If such evidence was admitted at a time when it was supposed by plaintiff’s counsel and the court that there were no eye witnesses to the accident a reversal will not be ordered where no exception was taken to the receipt of such evidence.
    3. Negligence—when defendant liable for acts of gaicman not employed by it. It is immaterial whether a gateman is employed by the owner who is the defendant or by some other railroad company using the tracks of such defendant with its consent.
    Error to the Municipal Court of Chicago; the Hon. W. N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 6, 1912.
    W. O. Johnson and Bull & Johnson, for plaintiff in error.
    Depress, Buckingham, Bitter & Campbell, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Standard Brewing Company, defendant in error, plaintiff below, commenced an action to recover damages to a team of horses and wagon belonging to it, caused, as it alleged, by the negligence of the Erie Bailroad Company, defendant below, in the management and control of its cars, engine and train. The trial resulted in a verdict and judgment for $700. The Erie Eailroad Company, defendant below, brings this writ of error to reverse the judgment, contending first, that the servant of the plaintiff, who, was. the driver of the horses was guilty of such contributory negligence as to bar a recovery; second, that the trial court erred in admitting improper evidence; third, that it erred in instructing the jury that they might assume that the negligence of the gateman in the employ of the Chicago & Western Indiana Eailroad Company was the negligence of the defendant; fourth, that the court below erred in refusing to direct a verdict for the reason that it was not proved that the defendant was operating the train which caused the injury; and fifth, that the evidence fails to show any negligence on the part of the defendant.

Upon the first contention, that the servant of the plaintiff was guilty of such contributory negligence as to bar a recovery, it is urged that the evidence shows that the driver had a clear and unobstructed view of the approaching train for at least 200 to 300 feet from the point where the collision occurred, and that he was driving his horses at a smart trot and carelessly and negligently drove them in front of the train.

We think the evidence tends to show that the driver did have or could have had a clear and unobstructed view of the approaching train. The evidence shows, however, that he was sitting in a hooded seat, which to some extent obstructed his view; and the evidence is uncontroverted that at the crossing in question, which was the crossing of the Chicago & Erie Eailroad Company at or near 112th street in the city of Chicago, there was maintained and operated a, gate, with a light hanging upon it to warn and prevent people driving upon the tracks when a train was approaching. This gate was operated from a tower a little to the north and west of the crossing, and it appears that the gate was not closed by the towerman when the plaintiff’s driver drove his team upon the railroad track.

These facts presented a question to the jury and. the court as to whether the plaintiff’s driver was guilty of negligence in driving upon the tracks under the circumstances above stated. The fact that the gate was not down may reasonably be considered as an intimation to the driver that it would be safe to enter upon the crossing; and it was a fair question for the jury, iconsidering’ the fact that the gate was not closed at that crossing, whether the driver of the plaintiff was guilty of contributory negligence.

While we might not have found if sitting as jurors, that the driver was not guilty of contributory negligence, that is not the question to be considered here upon this writ of error. The question here is whether the verdict of the jury is manifestly against the weight of the evidence, or was the result of passion and prejudice. Upon reviewing the evidence upon the question of liability, we cannot say that the verdict is so manifestly against the weight of the evidence that we are bound to reverse the judgment. Upon the whole case we are clearly of the opinion that the defendant was negligent, and we are not led to the conclusion that the judgment does not express substantial justice between the parties.

It is urged in support of the second contention or ground of reversal by the defendant that the court erred in admitting evidence concerning the carefulness of the deceased, because there were eye witnesses to the accident. It is true that Anne McNellis and Mary McNellis saw the team being driven along the street about a half a block from the track and saw the engine strike the team, and it cannot be said that they were not eye witnesses of the accident. The court admitted the testimony of Matt Weber to the effect that he knew the habits of the driver of the wagon, and that he was a very good man, a temperate man and a careful man. This evidence was admitted before it appeared that there were any eye witnesses to the transaction, and when it was supposed by the plaintiff that there were none. It appears that the. case had been tried before the trial now under review, and the parties in the trial now being reviewed stipulated that any portion of the testimony of the gateman given at the former trial could be offered in evidence by either party. This witness had given considerable testimony in the former trial in answer to questions put to him by counsel for the defendant below concerning the habitual recklessness of the driver in question in crossing tracks. At the time the plaintiff offered the testimony regarding the habits of the deceased driver, its counsel stated to the court that he thought there was no eye witness to the accident. Counsel for the defendant did not deny this. Upon this statement of counsel the court admitted testimony as to the driver’s habits. No exception was preserved to the ruling. Later on counsel for defendant introduced the testimony of the gateman mentioned above, and still later in the case the testimony of the two young girls above mentioned, one being twelve years old and the other a little over eight years of age. Upon the introduction of the evidence of the two girls who saw the accident, the defendant’s counsel moved to strike out all the testimony regarding the habits of the deceased driver. Under the state of the record as it then stood, we do not think that the court committed reversible error in reference to this testimony.

In Illinois Central Railroad Co. v. Ashline, 171 Ill. 313, the court said: ‘ ‘ The evidence leaves the question in doubt whether any person saw the deceased when he was struck by the train, and when such is the case we are inclined to think the evidence admissible, but if the court erred in admitting the evidence we would not regard the error of sufficient magnitude to work a reversal of the judgment. ’ ’ Upon the authority of the above case, even if the trial court should have sustained the motion of defendant to strike out the testimony in regard to the habits of the deceased driver, we must regard the error as not of sufficient magnitude to work a reversal of the judgment.

It is next urged that the court erred in instructing the jury that they might assume that the negligence of the gateman in the employ of the Chicago & Western Indiana Railroad Company was the negligence of the defendant. The facts in relation to the operation of the gate are given in the testimony of the witness Cottrell. He testified that he was working for the Western Indiana and was towerman at 112th street and Torrance avenue; and it clearly appears we think from the evidence that he was not in the direct employ of the defendant, plaintiff in error. We think, however, that the defendant was responsible for the acts of the gateman employed on its line of tracks whether he was employed by the defendant below or by some other railroad corporation which was using its track. It is immaterial by whom the gateman was employed. Wabash etc. Ry. Co. v. Peyton, 106 Ill. 534; Illinois Central R. R. Co. v. Kanouse, 39 id. 272; Toledo P. etc. Ry. Co. v. Rumbold, 40 id. 143.

It is next urged that the court below erred in refusing to direct a verdict for the reason that it was not proved that the defendant was operating the train which caused the injury. Under the authorities cited above and others we do not think there is any question but that the defendant railroad company is liable for damage done upon its railroad tracks whether it is done by trains owned by itself or by trains operated upon its road by its license or consent. We think there was evidence, however, tending to show that it was the defendant’s train which produced the injury.

In our opinion the evidence in the record warranted the jury in rendering the verdict which was rendered and we find no substantial ground for reversing the verdict or the judgment entered thereon. The judgment is therefore affirmed.

Affirmed.


text:
    The St. Mary’s African Methodist Episcopal Church, Plaintiff in Error, v. The German Lutheran Church et al., Defendants in Error.
    Gen. No. 16,240.

      Assumpsit—when lies to recover money paid out without authority. If the pastor of a church disburses its funds without authority the amount so disbursed may be recovered by the church, as parties receiving such money are bound to ascertain.at their peril whether such pastor was authorized to disburse the same.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of fact.
    Opinion filed February 6, 1912.
    Abel L. Allew, for plaintiff in error.
    Budolph D. Huszagh, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An action was brought in the Municipal Court to recover $400 deposited by Bev. W. H. Saunders, pastor of the St. Mary’s African Methodist Episcopal Church, a corporation, plaintiff below and plaintiff in error here, with the German Lutheran Church, a corporation, and A. C. Daul, defendants below and defendants in error, in the matter of the conditional purchase of certain church property.

The case was tried by the court without a jury and resulted in a finding and judgment for the defendants.

There is little dispute in the evidence as to the material facts. The evidence shows that the money in question belonged to the plaintiff below. It appears that the Eev. Saunders, pastor of the plaintiff church, together with certain members of the church and trustees, made a proposition to purchase a church property owned by the defendant church, and in furtherance of that proposition, after examining the property, tile Rev. W. H. Saunders deposited with the defendant church and A. C. Daul, a trustee of the church, the $400 in question, for an option upon the property, the purchase of which, if made, was to be consummated on or before March 1, 1909. The $400 was deposited September 12, 1908.

The evidence is clear that the Eev. Saunders acted in the matter of the purchase of this property and in depositing the money without any authority from the church or its board of trustees. He had- in his possession $400 belonging to the church, $200 of it having been derived from a church carnival or festival, and the other $200 from subscriptions made to the church; and without any authority whatever from either the church itself, or its board of trustees, he took the money belonging to the church and deposited it with the defendants to apply on the proposed purchase.

There is a controversy in the evidence as to whether a receipt was given for the money by the trustees of the defendant church or not. It is contended on behalf of the plaintiff that no paper of any kind was passed between the parties. On the part of the defendants it is claimed that a receipt was given in the following words and figures:

“Eeceived of W. H. Saunders for the option to purchase church property on Dearborn street near 49th street in Chicago, Illinois, on or before March 1st, 1909, at the price of Seventeen- Thousand Five Hundred Dollars.
Should said purchase be consummated said Four Hundred Dollars to be applied upon the purchase price, otherwise to be forfeited as liquidated damages and payment for said option.
The Trustees,
H. A. Radd
A. C. Daul
J. R. Roblin.
Dated September 12, 1908.”

In our opinion it is unimportant to a determination of the case whether or not the receipt was given. The fact is practically conceded that the $400 mentioned in the receipt was paid by the Rev. Saunders to the defendants.

It is contended on behalf of the defendants in error that the contract between the parties is void because of the. Statute of Frauds, and that in any event Saunders abandoned the purchase before the time expired and cannot recover the money back without having completed his contract. This contention, we think, is aside and apart from the real issue in the case and should not be allowed to come into the case and cloud and confuse the issues. Saunders did not bring the suit for the money in question, did not own the money, and, as we have said above, did not have anv right or authority to dispose of it in the way he did. The defendant knew that Saunders was simply the pastor of the plaintiff church, and that as such pastor be had no authoritv whatever to dispose of the church funds in his hands for the purpose of purchasing a church property. The defendant was bound to see and know that Saunders was acting under proper authority from the church and from the trustees. The trustees themselves of the plaintiff church would have no authority to make the purchase and pay out the money in question, unless they were duly authorized so to do by a vote of the plaintiff church, and no one on behalf of the church would then be authorized to pay out the money except on the action of the board of trustees, which under the law has charge of all the property of the church. (Sec. 43, chap. 32 R. S.)

These substantial requirements as to authority to act are obvious and clear, and the absence of authority in the pastor to conduct business negotiations of the character shown in the record unless authorized specifically so to do by the proper authorities of the church, compels the conclusion that the defendants had no right to rely upon the agency of Saunders from the mere fact that he assumed to act in the matter. They were bound to inquire as to the authority to pay over the money. Schneider v. Lebanon D. & C. Co., 73 Ill. App. 612.

In our opinion the evidence shows that the defendants have $400 of the plaintiff’s money in their possession, paid to them by Saunders without authority, and that in justice and law they should repay the money to the plaintiff in error.

The judgment of the court below is erroneous and is accordingly reversed, and a finding of fact is made in favor of the plaintiff in error, plaintiff below, and a judgment is entered in this court upon such finding against the defendants in error.

Reversed with finding of fact and judgment.


text:
    Harry M. Loeber, Defendant in Error, v. Charles R. Horrie, Plaintiff in Error.
    Gen. No. 16,258.
    3. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Contracts—when parol evidence does not vary. If the contract originally made was abrogated parol evidence is competent to show the relations of the parties.
    3. Appeals and errors-—when admission of erroneous evidence will not reverse. The admission of erroneous evidence will not reverse unless prejudice resulted therefrom.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 6, 1912.
    Aaron Heims, for plaintiff in error.
    Whitman & Horner, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Harry M. Loeber, defendant in error, brought suit in the Municipal Court against Charles R. Horrie, plaintiff in error, to recover for labor and materials on a building on East End avenue in Chicago. The case was tried before the court and a jury and resulted in a verdict and judgment in favor of the plaintiff below for $516.87.

The evidence shows that the parties to the suit entered into two written agreements, one dated August 25, 1908, providing in substance that Loeber should provide all materials and perform all the work for the painting and cabinet furnishing for a three story apartment building, and provided the time and manner in which the work was to be done, and the times at which payments were to be made, and the amounts of such payments. The second contract was made September 16, 1908, and provided for the performance of work and furnishing materials for decorating the building, how the work was to be done, and how payments were to be made. Both of these agreements were under seal.

The evidence shows that the parties subsequently, for sufficient reasons, among others the insanity of the architect designated to supervise the work, entered into a verbal contract for the doing of the work provided for in the contracts above mentioned, upon a commission basis. This contract was made in January, 1909, and it was agreed that Loeber was to do the work and be paid for it upon his affidavits of the amount expended for labor and materials each week as the work progressed ; and jn addition to that amount he was to have ten per cent commission thereon.

The contention of the plaintiff in error is that the verdict is manifestly against the weight of the evidence. Upon an examination of the evidence, we do not think that it shows any substantial defense upon the merits of the case. The work was done, and the plaintiff was not paid for it. We find no evidence indicating that it was improperly done, or that the defendant below had any substantial defense upon the merits.

It is also urged that the contracts entered into between the plaintiff and defendant, being under seal and executorv, could not be modified bv a parol agreement, and that therefore all the plaintiff’s evidence concerning the work and materials and their value was incompetent and should have been stricken out. We are of the opinion that the contracts under seal originally made between the parties were not modified and therefore do not fall within the authorities cited by plaintiff in error. The contracts were abrogated, in our opinion, and the work was done under the parol agreement. We think the evidence was competent and that no error was committed by the court in refusing to strike it out.

It is also .contended that the court committed error in receiving in evidence a letter from Kennard, the architect. The letter in question was spoken of between the plaintiff and the defendant in their conversations when they entered into the new parol agreement, and having been so mentioned in the conversation between them it was competent evidence for whatever it was worth. We think, however, that if it was incompetent and improperly introduced in evidence, It could have produced no injurious results or affected the issues in this case in any manner injurious to plaintiff in error.

In our opinion the judgment of the court below is sustained by the evidence, and it is affirmed.

Affirmed.


text:
    A. Gutmann, Plaintiff in Error, v. A. S. Eichner, Defendant in Error.
    Gen. No. 16,284.
    Appeals and errors—when finding by court not disturbed. A finding by the court is given the same effect on appeal as the verdict of a jury and such finding will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 6, 1912.
    Sonnenschein, Berkson & Fishell, for plaintiff in error.
    Henry L. Stern, for defendant in error; Meyer S. Emrich, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff .in error Gutmann brought suit against A. S. Eichner, defendant in error, in the Municipal Court of Chicago. The statement of claim is for the sum of $50 repaid by the plaintiff below to the defendant as part of the purchase price of a certain automobile sold to plaintiff below, upon the condition that if the machine was not in perfect working order it should be returned to the defendant and the $50 paid to the plaintiff; that the machine was tried and found to be defective and in poor working condition, and was returned to the defendant.

The defendant pleaded a set-off for damages sustained on account of the plaintiff’s failure to take the automobile, $150, and for maintaining and caring for the automobile $50.

The cause was tried before the court without a jury, and there was a finding in favor of the defendant in the sum of $100, and judgment was entered on the finding.

The controversy is one of fact; and upon an examination of the testimony in the record we do not think that it shows by a preponderance'that the automobile was not substantially as represented at the time of the purchase. The evidence does not justify us in reaching a different conclusion from that of the trial court us to the right of the plaintiff to rescind the contract of purchase. The evidence was conflicting. The court below saw the witnesses, and had a better opportunity to judge of their truthfulness than this court has, sitting as a court of review. We are of the opinion that the finding and judgment of the court are not manifestly against the weight of the evidence, and we see no ground for reversing the judgment. It- is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Freeman

text:
    Merchants Loan & Trust Co., Executor, Appellee, v. Merchants Safe Deposit Co. et al. On Appeal of Charles B. Pike, Appellant. Same, Appellee, v. Merchants Safe Deposit Co., Appellant. Consolidated for Hearing.
    Gen. No. 16,010.
    Gen. No. 16,011.
    1. Fixtures—when safety deposit boxes not. Held, that safety deposit boxes not attached to the realty except by their own weight and not attached to each other, were, prima facie, not fixtures.
    2. Fixtures—effect of acceptance of lease upon right of removal. After trade fixtures have been placed in demised premises, to accept a lease which does not contain a clause authorizing their removal is to waive such right. Held, however, that this rule does not apply to the safety deposit boxes in question in this case.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dupijy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 13, 1912.
    Statement by the Court. The two causes above entitled have been consolidated for hearing and argued as one. They are the separate appeals of the Merchants Safe Deposit Company and of Charles B. Pike from a judgment for $5,000 rendered against them jointly in the Superior Court upon a single cause of action. In his declaration the plaintiff alleged, among other things, that he was the owner of 2,226 safe deposit boxes located in the basement of the premises 78 to 82 LaSalle street, and that the defendants without leave or license and against the plaintiff’s will took, ■carried away and converted to their own use the said boxes. The defendants deny in their pleas that these boxes were the property of the plaintiff, and deny that he was entitled to them. The material facts are in substance as follows:
    In 1884 the Merchants National Bank of Chicago was the owner of the land and building thereon known as 78 to 82 LaSalle street, Chicago. It occupied the main floor of said building for banking purposes. Before that date the basement of the building had been fitted with a safety deposit vault and appliances for carrying on a safety deposit business, and was leased to, occupied and used by, the Merchants Safe Deposit Company, one of the appellants herein, until 1903, apparently under a verbal lease. The vault referred to was constructed of steel, extended from the floor to the ceiling of the basement, and was equipped with steel doors, time locks and usual devices for protecting the vault and its contents. Within the vault were four rows of safe deposit boxes arranged in pairs on either side of a passage. It is not disputed that three of these rows of boxes were the property of the landlord and were a part of the realty. There was however an additional row of boxes composed of and containing the 2,226 safe deposit boxes now in controversy. These last mentioned boxes were not in the vault when the Merchants Safe Deposit Company first became a tenant of the premises, but had been purchased by said tenant on or about May 20, 1884, from the Die-bold Safe & Lock Company for the sum of $8,000 and paid for by said tenant with its own money. These boxes now in controversy were installed or set up in place along the south wall of the vault by the Merchants Safe Deposit Company. They were made in sections and were not fastened in any way to the vault or building. There were twelve of these sections, and the boxes were set one on top of the other and kept in place by their own weight. It is said they weighed 46,000 pounds and were accurately fitted into the space which they occupied and for which, it is said, they were specially constructed. When these boxes were purchased by the Safe Deposit Company in May, 1884, the Merchants National Bank, then the landlord, and the Merchants Safe Deposit Company, then the tenant, were in part under the same management, the president of the Bank being also president of the Safe Deposit Company, and the Deposit Company being tenant of the Bank which owned the premises. In 1903 the appellant, Charles B. Pike, acquired the majority of stock of the Deposit Company and became its president. June 15, 1903, the Merchants National Bank, then owner of the premises, executed and delivered a new written lease to the Safe Deposit Company of the premises and property described therein as follows :
    “The entire basement now occupied by the Merchants Safe Deposit Company of the premises known as Nos. 78, 80 and 82 LaSalle street in said city of Chicago, including all vaults, storage boxes and safe deposit boxes therein, together with the office furniture and fixtures enumerated in the inventory annexed hereto and made a part hereof, to be occupied as safe deposit vaults and for no other purpose.”
    The lease contains a covenant that “upon the termination of this lease in any way the tenant will yield up said premises and said furniture and fixtures to said party of the first part in good condition and repair.”
    May 24, 1907, the Merchants National Bank had sold and conveyed to appellee, Lambert Tree, the premises, including the building, the basement of which had been leased as above stated and was occupied by the appellant Safety Deposit'Company.
    July 26, 1907, the lease of these premises to the Safe Deposit Company was assigned to the city of Chicago with the consent of appellee, Lambert Tree, who had purchased and became the owner of the fee. It was while the negotiations resulting in this assignment were in progress, that Mr. Pike, defendant herein and then president of the Safe Deposit Company, informed Mr. Howard Gv Grey, agent of the plaintiff, Lambert Tree, that the 2,226 safe deposit boxes now in controversy had been bought and paid for by the Merchants Safe Deposit Company, the tenant, and claimed that said boxes belonged to that Company and not to the landlord, the Merchants National Bank, nor to Mr. Tree, the purchaser of the premises and assignee of the lease from the bank. The assignment of the lease of the premises occupied by the Safe Deposit Company to the city of Chicago was dated July 26, 1907, and provided that “All the safe deposit boxes in said demised premises, which the Merchants Safe Deposit Company may have broken open or may hereafter break open (except 2,226 numbered 3,313 to 5,538 both inclusive) shall be immediately repaired by said company with respect to the damage caused by said breaking open. ’ ’ An exactly similar provision is contained in the written consent of Lambert Tree, also dated July 26, 1907, to the assignment of the same lease to the city of'Chicago and hereinafter referred to.
    Thereafter on or about August 8, 1907, the Merchants Safe Deposit Company sold to a third party—■ the Donnell Safe Company—for $1,800 the 2,226 safe deposit boxes; and on or about the 21st of the same month the purchaser—Donnell Safe Company—began to remove and did remove the 2,226 boxes in controversy, which were subsequently overhauled and resold by the Donnell Safe Company.
    Newman, Nobthrup, Levinson & Becker, for appellants; Chester E. Cleveland, of counsel.
    McCulloch & McCulloch, Tenney, Coffeen, Harding & Sherman, for appellee; Horace Kent Tenney, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is contended, among other things in behalf of appellants, that the 2,226 safe deposit boxes in question were personal property of the appellant Merchants Safe Deposit Company and were not fixtures or real estate, and that such is the presumption of law; that the question of ownership of these boxes was one of fact, which should have been submitted to the jury; and that appellee Tree is estopped to assert ownership of these boxes, because he remained silent when he should have asserted his claim to the boxes if had any.

As to the first of these contentions, the reply of appellee in substance is that the basement containing the vault in which the 2,226 boxes in controversy were placed was equipped by the landlord with a homogeneous plant devoted to the purpose of carrying on a safe deposit business; that this equipment consisted of an outfit of steel boxes purchased and owned by the landlord, conceded- to be part of the realty and not now in controversy; that subsequently the tenant extended the capacity of this plant by additional fixtures—being the 2,226 boxes now in question—of the same character, made to match the original equipment of boxes, fitted accurately to a special place along the wall of the vault and put in place in the- same manner as the others; that the fixtures thus added became a part of the realty which the tenant had under no circumstances the right to remove. In the case of Arnold v. Crowder, 81 Ill. 56, 58, the Supreme Court says: “Perhaps the true rule is that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing they were so intended lying on those who assert that they have ceased to be chattels; and that on the contrary an article which is affixed to the land even slightly, is to be considered as part of the land unless the circumstances are such as to show that the article was intended all along to continue a chattel, the onus similarly lying on those who contend that it is chattel.” To the same effect is the statement in 19 “ Cyc., ’ ’ p. 1036, in part as follows: “It is believed that the true rule is that articles not ■ otherwise attached to realty than by their own weight are prima facie personalty and articles affixed to land in fact although only slightly are prima facie realty and that the burden of proof is on the one contending that the former is realty or that the latter is personalty.” In 19 Cyc., p. 1038, it is said that if we “inquire what facts may be shown to rebut these presumptions,” such “facts relate to two principal matters, viz, the act of annexation and the parties concerned. The former concerns the degree of annexation, the adaptability of the article to the realty and the intention with which the annexation was done. The latter concerns the relation of the interested parties to the realty and to the chattels.”

The 2,226 boxes in controversy were not otherwise attached to the realty than by their own weight. They were so built and fitted together as to make each box a part of the whole 2,226 boxes for use for safety deposit purposes; but they were not fastened to each other or the realty and could be and were when finally moved, detached each from the others and carried out as separate .boxes through the door space of the vault. In the view of the law as above stated by the Supreme Court the presumption is that in the absence of circumstances tending to show that they were intended to be part of the realty, the onus of showing these boxes were so intended rests upon the appellee, who is now asserting that they had ceased to be chattels. The boxes as above stated were bought for $8,000 and paid ■ for by the Safe Deposit Company out of its own funds, and were never attached in any way, save by their weight to the vault or building or ground. So far as these facts go they tend to show that the boxes were not even “trade fixtures.” In Watriss v. First National Bank of Cambridge, 124 Mass. 571-578, the opinion concludes as follows: “If any of the articles named were movable chattels as the defendant contends, the plaintiff cannot recover for them; but if they were permanent or trade fixtures, the plaintiff may recover for their removal;” thus making the distinction between “movable chattels upon the premises” and “trade fixtures put in by the * * * bank.” Idem p. 574. The case holds that “when the same tenant continues in possession under a new lease, containing different terms and conditions, mailing no reference to the old lease, reserving no rights to the lessee in fixtures annexed during the previous term and not removed before its expiration and containing the covenant to deliver up the premises at the end of the term in the same condition,” there is a “creation of a new tenancy,” that “the occupation is in effect a surrender of the premises to the landlord under the old” (Idem p. 576-577), and the right to removal of trade fixtures annexed to the premises is lost to the tenant “notwithstanding his occupation has been continuous.” Idem p. 578.

But a “trade fixture” does not necessarily become a fixture at all unless it is in some respect annexed or an intention is shown to permanently annex it to the premises. Such “intention must be definitely expressed by words or acts.” Bouvier’s L. Die., Fixtures. “By actual annexation is understood every mode by which a chattel can be joined or united to the freehold. The article must not be merely laid upon the ground; it must be fastened, fixed, or set into the land or into some such erection as is unquestionably a part of the realty; otherwise it is in no sense a fixture.” Idem. In the case at bar it is conceded jhere was no actual annexation of the boxes in question to the vault or premises.

It is claimed however that when on June 15, 1903, 19 years after the 2,226 boxes in controversy had been put into the vault by the Merchants Safe Deposit Company, a new lease was taken by that Company which did not reserve to the tenant any right of removal of the said boxes, said boxes then became as trade fixtures a part of the subject-matter of the new demise, and that by the acceptance of such new- lease without reserving such right of removal the Safe Deposit Company relinquished its right in the fixtures to the landlord. This is undoubtedly the law, if these boxes were “trade fixtures.” Sanitary Dist. v. Cook, 169 Ill. 184-190-195. Watriss v. First National Bank, 124 Mass. 571, supra. It is urged also that these boxes were expressly devised by the terms of the lease itself, which includes in the description of the leased premises “the entire basement * * * including all vaults, storage rooms and safe deposit boxes therein.” The words “all * * * safe deposit boxes therein” undoubtedly cover the 2,226 boxes in controversy which were then in the vault in said basement and had been there in use for about nineteen years. The acceptance of a lease containing this language standing by itself seems to be a recognition of the right of the lessor to these boxes and of its right to lease them. If however they were not “trade fixtures,” but were the personal property of the lessee and conceded to be such personal property, the use of such words alone would not probably be held to constitute a conveyance of such personal property to the landlord. The words “all • safe deposit boxes.” would be deemed probably to refer only to all such boxes as the landlord had a right to lease. What boxes the landlord could thus lease is clearly a question of fact and there is evidence tending to show that neither lessor nor lessee at that time or subsequently intended the lease to cover any boxes save such as were and always had been the property of the lessor, which there is evidence tending to show was not true of the 2,226 boxes in controversy. Up to that time these last mentioned boxes according to this evidence were and always had been the property • of the lessee, bought by the latter, paid for with its own money, placed by it in the vault and used in its own business.

There was also introduced in evidence a consent by the plaintiff—appellee herein—to the assignment of the lease under consideration to the city of Chicago bearing date July 26, 1907. This consent given by appellee as assignee of the original landlord contains the following:

“I hereby certify that all the personal property mentioned and described in said lease has been duly surrendered and delivered to and is now held by me as assignee of said The Merchants National Bank of Chicago and as owner of said Deposit Company lease and is no longer a part of said lease. All the safe deposit boxes in said demised premises which the Merchants Safe Deposit company may have broken open or may hereafter break open (except 2,226 boxes numbered 3,313 to 5,538 both inclusive) shall be immediately repaired by said Company with respect to the damage caused by such breaking open.”

This consent to the assignment of the lease to the city of Chicago is signed “Lambert Tree, by Howard G. Grey, his attorney in fact.”

The evidence, it is contended, tends to show that the 2,226 boxes in controversy had not been surrendered or delivered to Mr. Tree and were not held by him as assignee of the Bank then or at any other time, and that .the contract to repair boxes injured by the Safe Deposit Company in getting out the property of depositors therein and- breaking open boxes for that purpose was expressly confined to boxes other than the 2,226 in controversy.

It is urged in behalf of appellants that in view of this and other evidence, a question of fact as to the ownership of these 2,226 boxes was raised, which should have gone to the jury, and that the trial court erred in giving the jury the following instruction:

“As to the plaintiff’s first claim, the court instructs you that under the evidence in this case the title to those boxes was in the plaintiff and that the defendant had no right to sell them or to have removed them from the premises, and if you find from the evidence that they did so, then they are liable to the plaintiff for such damage as you find from the evidence was caused thereby.”

We are of opinion the objection is well taken. There is conflicting evidence upon the question of title which should in our opinion have been submitted to the jury under proper instructions as to the law applicable. The ownership of the boxes in controversy is not merely a question of law but also one of fact. The intention and understanding of the respective parties is material as to ownership and the evidence presents a question for the jury. Hewitt v. General Electric Company, 164 Ill. 420; Crerar v. Daniels, 209 Ill. 296, cited by appellants’ counsel, are we think in point. The determination as a matter of fact of the question of ownership of the boxes has bearing upon the question of defendants’ liability.

Other points are discussed by counsel, but inasmuch as the case must be sent back for a new trial for reasons indicated, we deem it unnecessary now to prolong the discussion.

The judgment of the Superior Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Patrick Kelleher, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,051.
    1. Passenger and carrier—when relation established. If a person, when a car is standing still, places one foot upon the step of the platform thereof with the intention of boarding such ear, the relation of passenger and carrier is established.
    2. Instructions—what phrases having reference to starting a oar not synonymous. Held, that a car might be “suddenly and violently started forward” without being put in “rapid motion.”
    3. Verdict—when not excessive. Held, in an action for personal injuries, that a verdict for $3000 was not excessive, where the plaintiff as a result of his injuries was confined to his bed for about four months and for a year was seriously hampered in doing his customary- work.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.
    Statement by the Court. This is an appeal from a judgment rendered in favor of appellee in the Circuit Court. -The case has been tried twice. The first trial resulted in a disagreement of the jury. Upon the second trial the jury assessed appellee’s damages at the sum of $3,000. Judgment was rendered accordingly, from which this appeal is prosecuted.
    Plaintiff’s evidence tends to show that he received the injuries complained of while attempting to board a street car operated by appellant. He states that in company with a fellow workman, upon quitting work about half after four o’clock in the afternoon of November 1, 1901, he walked to the corner of 55th street and Lake avenue. They waited there for a street car. When the train, headed by a grip-car, approached the two men “went out on the street,” as there is testimony tending to show. The grip-car passed them about five or six feet and came to a stop. The two men followed it and plaintiff’s companion got on the grip-car. Plaintiff tried to get on, but says he did not get time; that he ‘ gripped the railing on the end of the seat and got one foot on the running step of the grip-car;” that the car was then standing still, but that when he tried to put his other foot on the running board of the grip-car, the bell was rung, the car gave a jerk and twisted him around; that he had his dinner pail in his right hand; that the “car was going too quick for” him; that he “lost his feet” and was not able to pull himself on; that his wrist gave out and he had to let" go; that in falling down his left shoulder and elbow he thinks struck the running board of the car and his breast hit the pavement. He was in bed, he says, about four months after the accident, and noticed a “little grain of black blood” the next day in his sputum and for about four weeks thereafter and he noticed a little in his urine for about a week. He claims to have had pains in his side and chest ever since the accident, and testifies that three years after the accident a splinter of bone about a quarter of an inch long, with a sharp point, about an eighth of an inch thick in the middle and “not so thick in the butt end” worked its way out at the wrist.
    Before the accident here in question plaintiff had been shot at the time of a strike in the fleshy part of the thigh; and August 31, 1906, when he was crossing a railroad track after quitting work he was struck by an engine which injured the ankle of his left leg and caused him the loss of the four small toes and part of the foot, including the heel of his right foot, from which a bone was taken out by the surgeon. The right foot has since been crooked and deformed.
    The defendant’s contention is that plaintiff and his companion were attempting to board the train after it was in motion; that his companion succeeded in getting on but that the plaintiff got hold of the car and had one foot on the running board, when he lost his hold and fell. There is evidence tending to support this contention.
    James Gr. Condon, for appellant; Irvin I. Livingston, of counsel.
    Quin O’Brien and Lawrence W.- Potter, for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is urged in behalf of the defendant that the declaration is insufficient, that the verdict is contrary to law and the weight of the evidence, that plaintiff’s counsel was guilty of improper conduct at the trial and that the Court erred in giving and refusing instructions. The alleged defect in the declaration consists, according to counsel, in its failure to allege facts and circumstances showing that the negligence alleged was the breach of any duty owing to the plaintiff from the defendant since, as it is said, it fails to allege facts or circumstances from which it can reasonably be inferred that the plaintiff was a passenger on the car, or that the relation of carrier and passenger existed between plaintiff and the defendant.

The declaration consists of a single count. It alleges that defendant’s business was that of a common carrier of passengers for hire, and that it ought to have exercised due care to avoid injuring -such passengers; that the defendant’s car had stopped at a usual place of receiving passengers and plaintiff was in the act of getting on the car, when before plaintiff was fully on said car and while he was in the act of boarding the car with reasonable care, defendant’s agents negligently and carelessly caused the car to be suddenly and violently started forward, by reason of which the plaintiff was ‘ thrown violently from said car ’ ’ and injured. The declaration is not open to the objection urged. We deem it unnecessary to refer to the cases mentioned by defendant’s counsel or to take time to analyze and differentiate them. The case of Grace and Hyde Co. v. Sanborn, 124 Ill. App. 472-479 et seq., and the opinion of the Supreme Court in the same case in 225 Ill. 138-141, are we think relevant. In Nellis on Street Surface Railroads, p. 446, it is said: ‘ Certainly where a street car stops at a usual place for passengers and a person in the exercise of due care gets on the steps or platform, or places one foot on the step of the car for the purpose of taking passage while it is so waiting, he is to be regarded as a passenger.” If the plaintiff got on the car for the purpose of taking passage thereon while it was standing still and was as the declaration alleges violently thrown therefrom by the sudden starting of the car when he had gotten but one foot on the car step, he had become in the eye of the law a passenger. In Clark’s Street Ry. Accident Law, 2nd ed. (1904), Section 3, it is said that “a person does not have to be actually on a street car before he becomes entitled to the rights of a passenger. If a car has been stopped on being signalled and he is in the act of getting aboard when the car starts, the relation of carrier and passenger is held to be established.” The question of the sufficiency of the declaration was involved in Chi. Union Traction Co. v. O’Brien, 117 Ill. App. 183-189, and what is there said on this subject by Mr. Justice Adams is we think applicable in the case at bar. Here, as in that case, the substance of the averments in the declaration was “that appellee was impliedly invited to get on the train and was getting on it when the accident occurred. Facts are averred from which the legal conclusion that appellee was a passenger is deducible. We think the declaration sufficient to admit evidence showing that appellee was a passenger.”

The verdict is supported so far as the question of negligence is concerned by evidence in plaintiff’s behalf. The conflict as to whether plaintiff was injured by reason of the car being suddenly started before he could get on or whether he was trying to get on while the car was moving must be deemed concluded by the verdict.

We are unable to concur in appellant’s contention that the evidence relating to plaintiff’s injury by a bullet was necessarily prejudicial and find no reversible error in the admission of the evidence tending to show that a so-called splinter of bone came from the wrist about three years after the injury complained of.

It is urged however that there was reversible error in giving and refusing instructions. The first instruction the refusal of which is complained of would have been erroneous, if given. A car might be “suddenly and violently started forward,” as the declaration charges, without being pnt in “rapid motion,” as stated by the instruction in question. As to the next instruction complained of, which was given at plaintiff’s request, we have already indicated our view that the declaration sufficiently stated facts from which the relationship of passenger and carrier as a matter of law was clearly deducible. There is no error therefore in the reference contained in that instruction to “negligence as charged in the declaration.” In like manner objections are urged to plaintiff’s instructions numbered 2, 3, 6, 7, 8 and 9, and the refusal of plaintiff’s instruction Number 35. Appellant’s brief and argument contains more than 183 printed pages. It must suffice to say that we have considered with care the objections urged in reference to these instructions and find no material or reversible error.

It is urged that the verdict and judgment of three thousand dollars is excessive. That in our judgment the jury were warranted by the evidence in finding the defendant guilty of negligence causing injuries of which the plaintiff complains we have above indicated. There is evidence tending to show that the plaintiff was confined to his bed about four months after the accident, was then around the house and yard about four or five weeks and then went back to work; that for a year he could not lift a heavy load or use a shovel. The accident happened November 1, 1901. Plaintiff testified that until August 31, 1906, when he was again injured as before stated in a railroad accident, he felt fairly well and was apparently doing his usual work the greater part of the time. His injuries up to that time were confined to bruises from his fall at the time of the accident now in question, except that he testifies he saw some traces of blood in his sputum and urine shortly after the accident. There is evidence in behalf of defendant tending to show that many of the symptoms complained of by appellant were such as might be ascribed to rheumatism. Upon this evidence the verdict of the jury fixed the amount of damages at $3000. While if sitting as jurors we might have regarded this amount as excessive, the question was clearly within the province of the jury to determine, and the amount is not so clearly excessive as to justify this court in setting it aside.

Finding no material error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Gerritt DeVries, Administrator, Appellee, v. Chicago, Rock Island & Pacific Railway Company et al., Appellants.
    Gen. No. 16,093.

      Negligence—obligation of railroad company to trespasser upon its right of way. It is the duty of a railroad company to refrain from wilfully or wantonly injuring a trespasser and to use reasonable care to avoid injury to a trespasser after such a trespasser is discovered to be in peril.
    Action in case. Appeal from the Superior Court of Cook county; the Hon'. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 13, 1912.
    Rehearing denied February 29, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Ben S. Cable, Marcus L. Bell, Knapp & Campbell and William Beye, for appellants.
    A. Gr. Dicus, for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

In this action appellee seeks to recover for personal injuries resulting in the death of Anna DeVries. On or about August 3, 1907, she was struck by a train operated by the Chicago, Lake Shore & Eastern Railway Company at or near a point where the tracks of said railroad cross the Holland road, a public highway. Upon that day Mrs. DeVries and her daughter went into Chicago to do' shopping. They returned on a train of the Chicago & Western Indiana railroad, and Mrs. DeVries got oft at Oakdale station, her daughter remaining on the train. It was about six o ’.clock P. M. and the deceased started toward her home not far away. To shorten the distance apparently she walked along the tracks used by the Rock Island and Lake Shore Railroad Company, which cross the Western Indiana tracks at Oakdale station. Shortly thereafter the Lake Shore train by which the deceased was struck approached the crossing at Oakdale station from the west. In the meantime deceased was proceeding eastward along the double tracks used by the Lake Shore road, and was approaching the Holland road about half a mile east of Oakdale station. The Lake Shore train stopped before the Oak-dale crossing and then proceeded on its way eastward. The engineer and fireman of that train testify that the deceased was in plain view ahead of them, going eastward along the north track with her back toward the approaching train. It is claimed that the whistle had been blown at the Oakdale station before crossing the tracks there, that it w;as also blown after crossing those tracks as a signal for the Holland road crossing; that about that time the deceased stepped in between the two tracks of the defendant and without looking back continued on her way eastward; that the deceased walked a short distance between the two tracks and then .turned toward the southeast and stepped on the south or east-bound track on which the train was approaching; that the engineer and fireman thought from her movements she was intending to cross over that southern or east-bound track, but that just before she reached the south or outer rail she turned to the eastward on that track and kept on her way and that at once the engineer commenced to blow his whistle and put on the air brakes, but the train almost immediately struck .the deceased and inflicted injuries causing her death. It appears her home was about three hundred feet east of Holland road and about the same distance south of the tracks of the Lake Shore road upon which she had been walking.

It is contended that there was no duty on the part of the employes of the railroad company to the deceased to ring a bell or blow a- whistle as provided by statute, inasmuch as she was a trespasser on the private right of way of the railroad company, and that if, as the jury found, she was also on the public highway when struck, she was not using the highway for crossing purposes at the time. “A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or willfully injuring him and to use reasonable care to avoid injury to him after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee or one who is on the tracks by mere sufferance without objection of the company. * * * In either ease there is no duty toward him except to refrain from wantonly or willfully injuring him.” I. C. R. R. Co. v. Eicher, 202 Ill. 556-560.

In the ease at bar there is testimony of the engineer and fireman tending to show that they saw the deceased on the tracks when she was a considerable distance in front, and that she was in plain view all the time until hit by the engine. During all that time she was in a position where a momentary forgetfulness might put her in a place such as she was in when struck. She did not look back at all before or after she stepped on the south track in front of the approaching train; yet it was not, as there is evidence tending to show, until just before she was hit that the engineer gave the short, sharp signals which indicated the imminence of the danger which immediately thereafter caused her the loss of life. It is said by one witness, whose opportunity of seeing appears to have been good, that he saw the deceased take one step after he heard these danger signals given just before she was struck. If the deceased failed to look back and was apparently oblivious of the danger rapidly approaching, and there was a failure to give such signals of danger in time to permit the deceased to hear them and get out of the way, as there is evidence tending to show, it was we think a question for the jury whether such failure under the circumstances was wanton or wilful negligence. It is not pr oh able that the train employes desired or intended to strike the deceased, but there is evidence which tends to show that they did not awake to the danger of doing so in time to prevent such result. Employes in charge of powerful engines going at a high rate of speed cannot speculate as to whether one in danger will or will not get out of the way in time to escape the danger. They cannot neglect under such circumstances to give signals such as will be likely to arouse one going on in apparent unconsciousness. There is evidence tending to show and the jury specially found that at the time the deceased was struck she was on the highway wheré she was no longer a trespasser upon the defendant’s right of way. Whether so or not, it was the duty of defendant’s employes “to refrain from wilfully or wantonly injuring her and to use reasonable care to avoid injury to her after she was discovered to be in peril.” I. C. R. R. Co. v. Eicher, supra. Whether or not she was guilty of contributory negligence was a question of fact for the jury,—Winn v. C. C. C. & St. L. Ry. Co., 239 Ill. 132—and they have decided it against the defendants’ contention. We find no error in the refusal of the trial court to direct a verdict for the defendants.

We have examined the instructions with reference to which complaint is made, but are of the opinion that no material error was committed in that respect. Finding no substantial error in the record, the judgment of the Superior Court must be affirmed.

Affirmed.


author: Mr. Justice G-ridley

text:
    Joseph T. Wachowski, Administrator, Appellee, v. Chicago Ornamental Iron Company, Appellant.
    Gen. No. 16,038.
    1.. Master and servant—who are fellow servants. Servants of a common master who at the time of an accident to one of them, are co-operating in the particular business in hand, are fellow servants.
    2. Contributory negligence—when servants guilty of. A servant who fails to employ instrumentalities provided for his use and neglects to observe warnings given for his safety is guilty of contributory negligence which will bar a recovery if his method of performing his work directly contributes to his injury.
    Trespass on the case. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed February 13, 1912.
    Frank M. Cox and R. J. Fellingham, for appellant.
    Johnson &'Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice G-ridley

delivered the opinion of the court.

This is an action of trespass on the case commenced in the Circuit Court of Cook county by Joseph T. Waehowski, as administrator of the estate of Stanislaus Sikucinski, deceased, appellee, against Chicago Ornamental Iron Co., appellant (defendant below, and hereinafter called defendant), to recover damages for the death of said Sikucinski, resulting from injuries sustained by him on December 10, 1903, while in the employ of defendant, engaged in constructing an iron stairway landing or platform in the Railway Exchange building in Chicago. A jury trial resulted in a verdiet and judgment for $5,000 in favor of appellee, from which judgment this appeal is taken.

The declaration consisted of one count as amended, and averred, in substance, that deceased was in the employ of defendant and was engaged in putting certain iron work in place on a certain stairway in said Eailway Exchange building under the direction of defendant, that it was the duty of defendant to furnish deceased with a reasonably safe place to work, that defendant negligently caused and permitted a certain cast iron beam, connected with a certain other cast iron beam, connected with the wall of said building, to be and remain weak, defective and insecure, which defendant knew or could have known by the exercise of reasonable care, .but of which deceased did not have notice or by the exercise of reasonable care could not have had notice, and that, by reason of said negligence of defendant, while deceased was upon said cast iron beam by and under the direction of the defendant, and while deceased was in the exercise of due care for his own safety, the said beam, upon which deceased was resting, broke and gave way, causing deceased to fall a great distance, whereby he was injured and which injuries caused his death.

From the evidence it appears, among other things, that on the day mentioned defendant had the contract for, and was erecting, the iron work for the stairways and platform landings in said building and had been so engaged for several months; that said iron work for said landings had been erected up to the twelfth floor and that the iron frame work for the platform of that floor, when the accident occurred, was nearly completed ; that these platform landings on each floor were of the same size and similarly constructed; that the platform at the twelfth floor was composed of six cross-bars, about twenty inches apart each from the other, running east and west, and each fastened to the fascia on the sides, and between each of these crossbars was a cast iron brace about twenty inches long, running’ north and south and extending from one crossbar to another, and to which cross-bars said braces were attached by means of matched lugs and bolts; that the cross-bars and braces were each shaped something like an ordinary railroad rail, with the wide part uppermost when in place, were each about three inches wide on top and about three and one-half inches high, and each end of each brace was so formed that it had a lug which matched the corresponding lug projecting from the side of each cross-bar, and in the center of each lug there was a bolt hole, so that when the corresponding lugs of a cross-bar and brace were fitted together they might be securely fastened by means of bolts and nuts; that at the time of the accident the deceased,—then a man of twenty-two years of age,— was sitting astride a brace between two of the crossbars on said twelfth floor platform, tightening a bolt, when a lug at one end of said brace broke where the bolt went through, and he fell.

It further appears from the evidence that about three or four weeks before the accident deceased and one Wilhelm went together to the building and applied to the foreman of defendant, one Bahlau, for work and were employed by him; that for over a year prior to this time Wilhelm and deceased had been working together on the architectural iron work of other buildings and were familiar with that kind of work; that from the time of said employment by Bahlau and up to the time of the accident deceased and Wilhelm had frequently worked together and had together built two other platforms on lower floors of the building; that they had worked together on the twelfth floor platform the day before the accident and had it completed, except the tightening of some of the bolts, when deceased fell; that at that time they were working together on said platform alone; that while deceased was a “helper” to Wilhelm they together did practically the same kind of work, namely: putting in the cross-bars and the braces and fastening them together; that before the accident defendant had furnished Wilhelm and deceased suitable planks, ropes, etc., with which to make an underneath scaffold or sling for them to stand upon while doing their work; that they had been ordered by the foreman to make use of such a scaffold, and that they had previously made use of the same, but that at the time of the accident deceased was not using the same, but was sitting astride of one of the braces; that deceased had been warned more than once by other workmen who were passing by not to sit on the braces, and was told that he might fall, but these warnings were disregarded by deceased; that the brace which broke was examined shortly after the accident, that it was then found to be sound, with no flaw in it, except the broken lug, and that there was a clean, fresh break in the lug; that such examination further disclosed evidences that no bolt had been put in and through the lug at the other end of said brace so as to firmly attach it to other cross-bar; that Wilhelm, who was the only person who was working with deceased at the time of the accident, testified that he did not know what made the lug of the brace break; that Wilhelm further testified that about an hour before the accident, while he and deceased were engaged in the work of tightening the bolts, he heard a sound as if a piece of iron had cracked, but that he could not tell whether the sound came from the brace which afterwards broke or not.

We have beeti favored with exhaustive briefs and arguments by counsel of both parties, and we have carefully examined the record of the case. Appellee seeks to sustain the verdict and judgment of the lower court .on the theory, and so contends, that Wilhelm was the vice-principal of defendant, that he, as such vice-principal, knew, or should have known by the exercise of reasonable care, that the beam, or brace, was weak, defective and insecure, and that deceased, at the time of the accident, was doing the work in hand in the particular manner as directed by such vice-principal. To this we cannot agree. We think the evidence shows that, at the time of the accident, Wilhelm and deceased were co-operating in the particular business in hand, and were in fact and in law fellow servants; that the defendant was not guilty of any negligence, and that the deceased was himself guilty of negligence in not making use of the scaffold above mentioned in performing his work, and in sitting astride said brace after being warned not to do so. The judgment of the lower court is reversed.

Reversed with finding of fact.