text:
    John A. Lyons, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,029.
    1. Street railroads—injury by snowplow. Where a street railway company on a stormy night ran an ordinary" passenger car with a snowplow attachment eight inches high, which was wholly or partially concealed by snow and projected eight or nine feet into the street from the center of the car, the jury were justified in giving a verdict for the plaintiff, who was a prospective passenger injured by such projection, where its employes in charge of the car did not stop the same but merely shouted when they saw the plaintiff approaching.
    2. Instructions—when not reversible error. An instruction objectionable in itself but not so when considered in connection with other instructions does not constitute reversible error where the jury are instructed that all the instructions should be considered together.
    3. Instructions—that plaintiff need prove case only by preponderance of evidence, proper. An instruction in a personal injury case that the plaintiff is not bound to prove his case beyond a reasonable doubt but only bound to prove it by a preponderance of the evidence, is proper.
    4. Damages—when excessive in a personal injury suit. Seven thousand dollars damages awarded a doctor because of a fall resulting in a fractured collar bone, slight nervousness and slight impairment of eyesight and hearing, the evidence on the latter being conflicting, is excessive.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on remittitur otherwise reversed and remanded.
    Opinion filed June 14, 1912.
    S. S. Page and C. LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Upon this appeal we are asked to reverse a judgment for $7,000 rendered against appellant, the Chicago City Railway Company, in the Circuit Court of Cook county, in favor of appellee, John A. Lyons, for personal injuries received by him on February 1, 1908, through the alleged negligence of appellant.

A reversal is sought upon the following contentions:

First. The verdict is not sustained by the preponderance of the evidence.

Second. The court erred in instructing the jury.

Third. The damages are grossly excessive.

Fourth. The court erred in rulings on the admission of evidence.

It appears that appellee was, at the time of the accident, a practicing physician, about fifty-four years of age. About eight o’clock in the evening*, having* just made a professional call at some point on Sixty-eighth street, near Calumet avenue, he walked south on the west side of Calumet avenue to Sixty-ninth street, intending to board a westbound car thereon. There were five or six inches of snow upon the ground, and it was, at the time, snowing and blowing. For the purpose of clearing off the snow, appellant had attached a snow-plow rigging to one of its old-fashioned, ordinary, short passenger cars, and was running it west on the north side of Sixty-eighth street. The snowplow attached consisted of a plank about fifteen feet long and eighteen inches wide, the forward end of which was fastened to the front end of the front trucks on the right-hand or north side of the car as it was going west, and extending outward and backward at such an angle that the other end was extended out about eight or nine feet from the north rail; an iron bar connected the middle of the plank with the rear trucks and served as a brace. The purpose of the plow was to brush the snow back from the rails far enough to leave a clear space for passengers to alight and for teams to turn out of the track.

There were four employes of appellant company with the car, which was being operated westwardly at a rate of about five miles an hour between blocks— the motorman, Dutton, running the car; the conductor, Lageschult, who was on the front platform with the motorman, and whose duty it was to warn persons that got in the way of the plow or attempted to board the car upon the front platform; another man, Hall, standing with his feet on the snow-plow arrangement, and holding to the side of the car, stationed there for the purpose of warning, persons who might step into danger, and one Curran on the rear platform, to keep intending passengers from boarding, and also to warn drivers and others approaching, from the rear. A.t times the entire crew was necessary to change the snow-plow attachment from one side of the car to the other when reaching the end of a line, or otherwise switching back.

Appellee mistook the car to which this snow-plow rigging was attached for one of the regular cars in the passenger service, and stepped out into the way of the projecting plank, by which he was struck and thrown, or caused to fall over, receiving the injuries complained of.

As to the circumstances immediately preceding the actual contact between appellee and the snow-plow rigging, the testimony is directly conflicting. That on behalf of appellant tends to show that the car was approaching from the east at a slow rate of speed, averaging about five miles per hour between blocks; that, as the car approached Calumet avenue from the east, it was throwing out the snow to the west and northwest, nearly to the curb; that, as they approached the crossing of Calumet avenue and Sixty-ninth street, appellee was seen coming from the north on the west side of Calumet avenue, and observed till he reached the north side of Sixty-ninth street, where he hesitated ; that, assuming he was mistaken in supposing it was a passenger car and desired to board it, the motorman slowed up the car on the east side of the street so as to see what he intended to do—whether to cross the street or to stand out between the rail and the sidewalk, so as to board the car. It is claimed that at this time the motorman hit the bell three or four taps and “hollered” at appellee that he should look out; that he seemed to hesitate a moment, whereupon, thinking he was going to remain where he was, the car was moved along; that when the front end of the car was about even with the west cross-walk the motorman says he heard his partner (Lageschult, the conductor) yell at appellee, and that at about the same time Hall “hollered” as appellee approached the moving car from the sidewalk; that the car was stopped just after the big wing, or plank, reached the doctor. In short, that, when the car reached the east side of Calumet avenue, it was slowed down almost to a stop; that the employes on the car shouted to appellee, who was evidently going toward the south on the west side of Calumet avenue, and that he stopped or hesitated and looked at the car for an instant, whereupon the car started forward, and when it was within about ten feet of the cross-walk, appellee stepped from the sidewalk into the roadway. There were no passengers upon the car, which was then being used only to propel the snow-plow and clear the track. When appellee stopped, or hesitated, and looked south right toward the car, which was just pulling up to the west crosswalk, it was about two-thirds of the way across Calumet avenue. The conductor, Lageschult, testified that when the car left the east side of the street, appellee was on a fast walk toward the car. Hall, the man who stood upon the wing, or brace-rod of the snow-plow, testified that he saw appellee coming south as far as the corner, and that he stood still an instant, and that the car was stopped at that moment before crossing Calumet avenue, and when the car was started up appellee made for the rear of it, and tumbled over the wing of the snow-plow. Curran, who was on the rear platform, testified that when he first saw appellee he had started forward, whereupon Curran shouted to him to stay hack. Curran further testified that if appellee had remained where he was at that instant he would have been clear of the board.

The testimony on behalf of appellee tends to show that when he approached the intersection of Sixty-ninth street and Calumet avenue from the north, he stopped upon the sidewalk on the northwest corner, at which there was a lighted street lamp; that he intended to take a westbound car, but there was none in sight; that he stood there two or three minutes waiting; that he observed the car coming from the east when it was about two blocks away; that when it was about 150 feet away he started south in Sixty-ninth street toward the westbound track; that passengers got on the north side of the westbound car; that the car had the appearance of an ordinary street car as it came up to him, and there was nothing about it, either as to noise or appearance, to indicate to the contrary; that he went out six or eight feet from the curb, which brought him within four or five feet of the car, where he waved his hand for the car to stop; that he did not discover that it was not an ordinary street car until the front part of the car was opposite him, at which time he saw the man standing on the side of the car, or the plank, whose head was at the time inside the car through an open window. After seeing him the doctor noticed that he was standing upon a board, and as soon as he saw that he attempted to get out of the way by jumping ; that the plank extended north from the car six to nine feet. Appellee further testified that no one said anything to him nor gave him any warning, nor was there any ringing of the bell before the board struck him; that he had nothing over his ears; that he had never before seen any snow-plow appliance of that kind; that he looked toward the car when it was on the east side of the street coming toward him, and did not at any time see the snow spraying or sliding out of the way; that he heard no shout or call of any sort.

It appears from the testimony of several witnesses that at the time it was snowing and blowing quite hard, and that the ear in question was one of the small four-wheeled street cars then used for passenger service by the street car company, having a headlight like an ordinary street car—nothing about it, either as to noise or looks to indicate that it was anything different than an ordinary street car.

It is quite true, as contended by appellant, that this court has the final determination of the weight of evidence, and should reverse a judgment where the verdict is clearly and manifestly against the weight of the evidence, and it is also true that the party holding the burden of proof must establish his case by a preponderance of the evidence, and that the number of witnesses upon either side is an element in determining where the preponderance lies; but it is also true that in determining upon which side the preponderance of the evidence lies, neither the jury nor this court is concluded merely by the number of witnesses. It is also true that ordinarily the uncorroborated testimony of an interested party will be held insufficient to sustain a verdict where bis evidence is contradicted by the testimony of two or more unimpeached witnesses having equal opportunity for knowing the facts. In the case at bar, however, we do not think the application of these principies would justify us in reversing the judgment.

We are of the opinion that upon the facts disclosed by the testimony of the witnesses for both sides, appellant company was guilty of actionable negligence. It is a matter of common knowledge that persons habitually served by the street cars are accustomed to approach a position from which they may quickly enter the car when it actually reaches them. Appellant was operating the car in question with knowledge that in order to render quick service and handle as many passengers as possible, it required of prospective passengers that they get into position to enter the car quickly, and that appellee might be expected to approach and attempt to enter the car, as apparently he did. The night in question was blustering and windy; the ground was covered with five or six inches of snow, and snow was blowing through the air. There was nothing about the appearance of the car to in any way distinguish it from an ordinary street car upon which passengers might enter.

Appellee’s version of the affair down to the time he was struck seems entirely reasonable. There was nothing to put him upon notice that the car was dragging a snow-plow, projecting eight or nine feet out from its side, so that he would be in danger of being struck at almost any point between the north track and the curb; indeed, we think the testimony of the witnesses for the defendant company tends to show negligence in the management of this car. According to their own story, there was nothing about the car to attract attention or to suggest its unusual use as merely a motive power for the snow-plow, which, itself, was concealed by the snow it was pushing back. They saw appellee approaching and testified that he acted as if he intended to board the car as a passenger. It is true they testified that they shouted at him both when the car was on the east side of the crossing and again just before he was struck, but we do not think that was sufficient to relieve the company from the charge of negligence. When it used an appliance which extended out almost entirely across the north half of the street, and was wholly or partially concealed by the snow, and when those in its charge discovered a prospective .passenger approaching, it was not sufficient merely to shout at him; when they saw that he had stepped down into the street and was in a position of danger, the car should have been stopped. We think that the jury were justified in finding that appellant was negligent, and that the verdict therefor was not against the manifest weight of the evidence.

It is strongly urged that the court erred in the matter of instructions, and particularly that the court erred in giving, at the request of plaintiff, the following instruction:

“36. The preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should also take into consideration, so far as shown by the evidence, the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements in view of all the evidence, facts and circumstances proved on the trial; and from all these circumstances and a full consideration of all the evidence, determine upon which side is the greater weight or preponderance of the evidence.”

In determining whether or not the giving of this instruction constituted reversible error we must consider the other instructions in the case. The very first one was to the effect that the instructions constituted one connected body and series, and should be so regarded and treated by the jury; that is to say, they should apply them as a whole to the facts, and not detach or separate any one instruction from any or either of the others. Instruction No. 31, given by the court, at the request of appellant, was as follows:

“31. The jury are further instructed that while the preponderance of evidence does not consist solely in the greater number of witnesses testifying the one way or the other, yet the number of credible witnesses testifying on the one side or the other of a disputed point is proper for the jury to consider in determining where lies the preponderance of the evidence. ’ ’

We have carefully considered the cases cited by appellant in support of its contention that the giving of appellee’s instruction No. 36 constituted reversible error, but we think that when this instruction is read in connection with No. 1 and No. 31, given at the instance of appellant, that no substantial error was committed. If the jury read the complained-of instruction (No. 36) in connection with No. 31, as it should have done, and it must be presumed it did do, it would have been impossible for them not to understand that the question of numbers should be considered by them in determining where the preponderance of the evidence lay.

It is objected that instruction No. 36 has a tendency to make the jury think the element of the number of witnesses of little or no' consequence. We do not think so. The instruction declared that the preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts, but that in determining upon which side the preponderance of evidence is, the jury should “also” take into consideration not only the number of witnesses, but, so far as shown by the evidence, their several opportunities for seeing or knowing things about which they testify—their conduct, demeanor, etc., and, from all these circumstances, and a full consideration of all the evidence, the preponderance is to be determined.

It is further contended that the court erred in giving, at the request of appellee, instruction No. 15, which was as follows:

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

With respect to this identical instruction, this court, in Gurnea v. Baltimore & Ohio R. R. Co., 157 Ill. App. 331, said:

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

In the Nelson case, supra, the Supreme Court, referring to this particular objection to the instruction, said:

“It is next insisted that the court erred in giving the fourth and eighth instructions on behalf of appellee. These instructions told the jury that plaintiff is not bound to prove his case beyond a reasonable doubt, but is only bound to prove it by a preponderance of the evidence, and if the jury find that the evidence bearing upon plaintiff’s case preponderates in his favor, although but slightly, it would be sufficient to justify a finding of the issues in his favor. It is insisted that the use of the term ‘plaintiff’s case’ and authorizing a verdict for plaintiff if he proves ‘his case’ was erroneous, for the reason that the words were not qualified by any reference to the allegations of the declaration. We do not regard the objection of substantial merit. (North Chicago St. R. R. Co. v. Polkey, 203 Ill. 225.) ”

We have carefully considered the briefs and arguments with respect to alleged error on the part of the court below in its rulings upon the admission of evidence, and do not find any adequate justification for a reversal of the judgment upon that ground.

It is further complained that the damages awarded by the jury are grossly excessive, and, after painstaking examination of the testimony, we have reached the conclusion that the amount of damages awarded by the jury is too great. The contact between appellee and the plank was evidently not very violent. It clearly appears that immediately after his fall, the employes of appellant assisted him to rise, and asked him whether he needed help or medical attention, to which he replied that he did not. He walked without assistance to a drug store in the next block, where he remained five or ten minutes, but received no medical attention. Thereafter he boarded a street car and made a number of visits to patients, during which he occupied about an hour and a half, and transferred a number of times from one street car to another. He then telephoned his friend, Dr. Ferguson, and at his suggestion went to the hospital, where he remained four days, after which he went home. While making the calls mentioned he noticed a trembling of his body, which had practically disappeared when he left the hospital.

Appellee testified that he resumed work within two weeks from the date of the accident and continued it ever since. His injury was a fracture of the collar bone, which he himself describes as being a “simple transverse fracture, * * * the simplest in its nature, and one of those that is in the least harmful.” The collar bone had united with a fibrous union, which appellee’s physician testified, made a good, useful arm. Dr. Ferguson also testified that in about three days after the accident the left eye-ball became bloodshot, and there was some swelling behind the left ear, which he thought due “to a local bruise—just a local direct injury.” Appellee claimed that in addition to the fracture of the collar bone there was a fracture of the malleus, one of the small bones of the ear, resulting in deafness of his left ear, also pain and impairment in the sight of his left eye, and a possible fracture of the orbital plate of the skull; and, as a result of some or all of these, considerable nervousness.

As to his deafness in one ear, it appears that the accident occurred February 1, 1908. Dr. Allport, who testified in his behalf, examined him on the 8th of April, a little over two months after the accident, and again in January, 1910. Dr. Allport testified that one of the small bones of the left ear, the malleus, was broken, but that nothing was the matter with the drum of the ear, although there was some inflammation. He could not say whether the inflammation, which resulted in the thickening of the drum-head, was catarrhal in character or not, though a catarrhal condition of the ear often thickened the ear drum; and he further testified that he could not tell how long these conditions, which he found, had been in existence. Appellee himself testified that the hearing in Ms left ear had been defective for ten years before the accident, and that the trouble came on insidiously, without his knowledge. He thinks that, though he had tested his ear during the interval, and the ear did not seem to be much worse, yet he admits that he had made no test within, perhaps, three or four years, and did not know what difference there was in Ms hearing during that period. There was evidently no breaking of the membrane, nor was the injury attended with any discharge of blood from the ear, nor did his alleged deafness in the ear become apparent immediately. It further appears that appellee had at the time of the accident two accident insurance policies, which he subsequently adjusted with the companies, and to neither of the physicians representing these companies did he make any serious complaint or claim on account of his hearing-having been affected by the accident, though the policies provided for partial as well as for total disability.

Concerning the alleged injury to his eye, appellee, himself a practicing- physician, and an intimate associate with capable men in Ms profession, never consulted any physician or oculist on account of the condition of his eye after the accident, nor did he have his eyes tested in any manner, but he continued to wear glasses which he had originally bought in a department store. It was significant also that when he was examined by Dr. Allport, a prominent eye specialist, with reference to the injury to his ear, appellee did not suggest any difficulty with his eyes, or, in any event, did not have them examined.

The testimony as to appellee’s alleged nervousness after the accident, except during his four days in the hospital, is confined to that of appellee himself, and one Dr. Baer, whose specialty was giving “electrical treatments,” and is far from satisfactory. Indeed, appellee admitted that he had never been examined by any nerve specialist.

We think the evidence fails to show that the alleged loss of earnings on the part of appellee was due to the accident. He continued in the practice of medicine in the same neighborhood, and testified to having been busy after the accident. In view of all the testimony in the case, we regard the verdict as excessive. Accordingly, unless appellee shall, within five days remit $2,500.00, the judgment will be reversed and the cause remanded; should this amount be remitted the judgment will be affirmed.

Affirmed on remittitur; otherwise reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    Frank A. Renehan, Appellee, v. John Mohr & Sons, Appellant.
    Gen. No. 17,056.
    1. Masteb and servant—when machine is not defective. It cannot be maintained that a metal punching machine is improperly or defectively constructed where the evidence satisfactorily shows that the construction and use of the machine in the respects complained of was usual and like that of similar machines used in other establishments.
    2. Master and servant—when evidence of negligence in furnishing defective punching machine is insufficient. Where it is contended that the tail stock of a metal punching machine contained no set screw for holding a die and the evidence shows that there had never been a set screw since the injured servant was employed; that prior thereto the use of one had not been satisfactory; and the contentioh that the shoulder of the tail stock had worn away, allowing a die to become tilted, is directly contradicted by the only witness who testified upon the point; it further appearing that the machine was such as was customarily used in other shops, there is no evidence of negligence on the part of the master.
    3. Master and servant—when rislc of using defective punching machine is assumed. An experienced boilermaker, familiar with a metal punching machine, was struck in the eye by a flying piece of steel while operating it. The steel was not from the metal being punched and it did not appear where it came from or what was the cause of its flying off, the plaintiff contending that a die became loose and out of alignment with the punch, which struck it, causing the splinter to fly off. The die had become loose several times that day and was fixed by the plaintiff and a small hand-wheel was provided for moving the punch up to test the proper alignment. The handwheel was not used by the plaintiff and at the time of the injury he was operating the punch continuously at forty strokes a minute. Held, the plaintiff assumed the risk.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed with a finding of fact.
    Opinion filed June 14, 1912.
    Winston, Payne, Strawn & Shaw, for appellant; John Barton Payne, John D. Black and John C. Slade, of counsel.
    Richard J. Finn, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a judgment for $2,500 upon a verdict for that amount entered in the Circuit Court of Cook county, in favor of appellee and against appellant. Appellee, a boilermaker, was operating a horizontal punch in the shop of appellant in South Chicago, and on the 12th day of April, 1909, was struck by a flying particle of steel, by which the sight of one eye was destroyed. At the time of the accident, appellee had been working as a boilermaker in appellant’s plant for about fourteen months, and in the same capacity for other companies for about nine years, previous to which time he had been an apprentice in the boilermaking’ business for about three years. He had become proficient in the various branches of the boilermaking business, including the use of machines designed for punching holes in boiler plate. The machine in use by him at the time of the accident was one known as a horizontal punch, and it had been in constant use at that place during the entire term of appellee’s employment there, and for several years previously. It was a heavy machine, operated with electric power, and capable of punching cold boiler plate one inch thick.' Near one end of it was a rectangular notch or “throat” some eight inches deep and four or five inches wide, extending transversely across the top; in one of the perpendicular sides of this throat was set a heavy casting, known as the “tail stock,” sometimes called “die block,” or “die holder,” which had in it a round hole about one inch deep and two inches in diameter. The die was cylindrical in shape, about one inch long, having a circular hole extending entirely through it, and was placed in the hole in the tail stock. Directly opposite the die and tail stock, in the other side of the throat, was the punch stem and the mechanism operating it. The machine was very powerful, the punch being capable of striking a blow of seventy tons. Between the two sides of the throat was the “stripper,” an upright piece of iron or steel with a U-shaped opening through which the punch passed when in motion, its purpose being to remove from the punch, on its backward motion, any metal which might cling to it after the hole had been made. When in proper alignment, the punch stem would penetrate the metal to be punched, enter the hole in the center of the die, and force the piece of metal punched out ahead of it through the hole in the tail stock to the back of the machine. There was a small handwheel at the side of the machine, by means of which the punch could be slowly moved into the die; this was used to determine whether or not the die was in proper alignment. The dies were all made in the shop and were from 1-16 to 1-8 inch less in diameter than the hole in the tail stock; they were made this way so as to allow an adjustment of the die with reference to the point where the punch would strike. This adjustment was accomplished by wrapping pieces of tin or sheet iron (called ‘‘ shims ’ ’ or “liners”) around the die to the required thickness, and then driving the die, with these shims, into the hole in the tail stock. These shims served the double purpose of holding the die tight in its socket, and of properly aligning it with the punch. This method of setting the die had been in use during the entire term of appellee’s employment, and for eight or ten years previously. After inserting the die, with the shims around it, in the tail stock, the operator would test the machine with the handwheel. If the punch stem entered the hole in the die squarely and the die was tight in the socket, the punch was ready for use. It was set in motion by pressing a foot-pedal at the base of the machine.

On the day of the accident, appellee was punching holes in the flange of a nozzle. The nozzle was a large pipe six feet in diameter and about six feet long, made of % inch boiler steel. One end was cut out so as to fit against the side of a circular tank and a flange turned on the edges. Appellee, at the time of the accident, was punching rivet holes in this flange and also trimming off the edges. This large pipe weighed several hundred pounds, and was supported from above by a traveling crane- and chain hoist. Appellee had two helpers who acted under his instructions in shifting the nozzle and adjusting it in position. During his employment with appellant, appellee had punched at least two such nozzles on the machine as well as some angle irons; each of these operations requiring the use of the punch several hours. Though he had never used a horizontal punch, like this one, until employed by appellant, he had observed them while working in at least two other shops, and had frequently operated vertical punches before working for appellant, having begun to use them some ten years before the accident. The punches and dies, which he had used in these vertical punches, were all of tool steel and of the same general structure as the punch stem and die on the machine in question. He had also used the other horizontal machine in appellant’s shop two or three times before the accident.

Shortly before ten o’clock on the day he was injured, after having marked the places for the rivet holes by making dents with a hand-punch in the flange, and having marked off the edges which had to be cut off, he told the foreman of the shop that he had the job ready; the foreman then told him, “go take it over to that punch and punch it.” The work was hanging on the overhead hoist, and the die was already set; he tried the punch with the handwheel, and, finding it right, began his work. The method of working the machine was to first move the punch up with the handwheel until the small point in the center of the punch struck the dent previously made in the flange to indicate the center of the hole; then press the pedal at the base; this turned on the power and the punch would immediately pass through the metal and return to position. The nozzle would then be shifted so as to have the next dent in line with the punch, and the operation repeated. When punching rivet holes, which were about two and one-half inches apart, it was generally necessary to shift the nozzle before each punch. The same machine was also used for cutting off the surplus edge of the flange.

On the day of the accident, appellee’s method was first to punch two or three rivet holes, then cut off the surplus edge opposite. With the exception of twenty-five minutes had for dinner, he worked on the punch

_\_ steadily from ten o’clock in the morning until three o ’clock in the afternoon. In that interval of four and one-half hours, the die came loose once or twice, when he put the shims back in place again and continued the work.

It appeared further that he put his hand on the die ten or twelve times to see whether it was securely in place, as he found it had a tendency to become loose when used by reason of the fact that a portion of the metal forced into the die ahead of the punch would sometimes get wedged between the outside of the punch stem and the inside of the die so that when the punch drew back it would pull the die with it.

At the time of the accident, appellee was punching the surplus edge off, and, instead of stopping the machine after each punch, he kept the punch going at the rate of about forty strokes a minute by retaining his foot on the pedal. Suddenly something struck him in the eye. He let go of the material, looked at the die and found that it had become loose and tipped a little. A small piece of steel, approximately 2-5 of an inch long, and resembling the end of a carpet tack, was taken out of his eye. Its quality was what is known as “tool steel,” a harder grade of metal than that being punched. There is no evidence in the case showing where the piece of steel in question came from, nor as to the cause of its flying off. Appellee’s contention is that the die became loose and the hole in the center slightly out of line with the punch so that the punch, instead of entering the hole squarely, struck the edge and caused the splinter of steel to fly off from either the die or the punch.

Two of appellee’s witnesses, both having been in the employ of appellant, testified that the machine was used in the same way all the time that they worked there, and that the die was always set in position by the use of shims, and that it tended to work loose with use—sometimes as often as once in half an hour. It appeared that at some time the tail stock had been bored for a set screw, though the witnesses agreed that it had never been used on the machine other than experimentally, and that before the employment of appellee. The foreman also testified that, after an extended experience in the boilermating business in various shops, the method of lining up the die with shims was the best and most practical one for retaining it in position.

We are asked to reverse the judgment upon the contentions that appellee assumed the risk; that the accident was not due to any negligence of the appellant, and that appellee’s injury was due to his own negligence.

The declaration charged that appellant permitted and allowed the punch in question to become and remain in a dangerous and defective condition, and permitted the die holder and set screw to be and remain broken and out of order so that it became necessary to hold the die in place with tin and other metal as a wedge, and that the die was liable at all times to become loose and out of place while the punch was in operation.

The alleged liability of appellant seems to be based upon some or all of the following contentions: (1) that the die was not properly and securely fastened in the tail stock or die holder; (2) that the opening in the tail stock, or die holder, was larger than the die, thus necessitating the use of pieces of tin or sheet iron, called shims or liners, around the die, and, therefore, it was of improper and defective construction; (3) that the hole or opening in the tail stock was oval instead of round; (4) that safety in the operation of the machine required that the die should be held in place by a set screw, and that there was none used in the machine at the time in question; (5) and that the shoulder, or resisting surface in the tail stock, or die holder, against which the die pressed when the machine was in use, had worn away unequally, allowing the die to become tilted, or cocked, when it was subject to pressure.

As to the first three of these contentions we think the evidence satisfactorily shows that the construction and use of the machine in these respects was usual, and like that of similar machines used in other establishments. Indeed, the foreman, Mr. Thompson, testifying as an expert, declared that there was no better or safer metho'd for holding the die in the die block than that used in the machine at which appellee was working when injured; and there is no testimony to the contrary. Two of the witnesses for appellee testified that the inner surface of the tail stock appeared to be ' worn away at the top and that it had been in that condition during a considerable time. But appellee testified that instead of being worn away at the top and bottom, the opening was, in fact, cut out and made that way, and he gave as a reason for such construction that they could thereby get the holes closer down to the heel of the flange, thus adding to the utility of the machine, and he particularly stated that he observed that condition the first time he worked on the machine.

From the testimony in the case, it clearly appears that appellee was an experienced boilermaker, and had been employed in this plant for more than a year, and was familiar with the use of the two machines used in punching holes in boiler plate; that the machine which he was using at the time of his injury had been in constant use there, not only during the entire time he was employed there, but for years previously; that, while appellee was employed at this place, he had punched at least two nozzles such as that being constructed at the time he received his injury, and that at each of these operations he spent several hours.

It further appears that in the other places where he had been employed, though he had not used a horizontal punch like the one in question, yet he had observed them while”working in at least two other shops, and he had frequently operated vertical punches during a period of ten years before the accident. He was familiar with the construction and operation of the machine which he was using when he was hurt. The punches and dies he had used in the various vertical punches were all of tool steel and of the same general construction as the punch and die on the machine in question. It appears that it is important that by using the small handwheel he could move the punch slowly into the die and thus determine whether or not it was properly aligned, and during the four and one-half hours he had been working on the machine just before the accident, the die actually came loose once or twice, and appellee himself adjusted it by putting the shims back in place again. He knew perfectly well that the die must be firmly held, and testified to having tightened it once or twice that day. In addition he says he put his hand on the die ten or twelve times that day to ascertain whether it had become loose, and shimmed up the die in the same way that he had done it on other occasions. He testified that he knew the machine would not work properly unless the die was lined up right.

Appellee had two helpers assisting him. By the use of the handwheel he could have tested the alignment of the machine as often as he cared to. Instead of making frequent tests, however, as he might have done, he had been for some time before receiving the injury operating the punch at forty strokes per minute, keeping his foot continuously on the pedal for the purpose.

As to the complaint that the tail stock contained no set screw for holding the die, the evidence shows that there had never been a set screw in the tail stock at any time while appellee was employed in the shop. It appeared that some time before his employment, the tail stock had been drilled and a set screw tried once only, as an experiment, but that it was not found to work satisfactorily, and was at once abandoned. The contention of appellee that the shoulder, or resisting surface of the tail stock or die holder, against which the die pressed when the machine was in use, was worn away and allowed the die to become tilted,, or cocked, when it was subjected to pressure, finds no substantial support in the evidence, and the fact is directly contradicted by a witness for appellee who was the only witness who testified upon that point.

After a very careful consideration of all the evidence shown by the record, we think it fails to show any negligence on the part of appellant. Moreover, we think that appellee assumed the risk involved in operating the machine. He knew all about it; he testified that it was in the same condition during his entire fourteen months of service that it was when he began; that he had previously put the shims around the die in the socket. He never saw any set screw in the tail stock for holding the die, but his method was always to put the die in the hole and then shim it up. The die had actually worked loose with him once or twice on the very day of the accident, and he knew that the machine would not work properly unless it was lined up right, and, accordingly, he did it. He also testified to having used the little handwheel on the side of the machine for the purpose of lining up the machine so that if the punch did not go in right he would change the position of the die until it was properly adjusted.

Our Supreme Court has recently said: “The doctrine of the assumption of risk is firmly established as a part of the law of master and servant. * * * Under that doctrine the servant assumes all the ordinary risks incident to the business, all the extraordinary risks of which and of the danger of which he has knowledge, and all other obvious risks, and this whether any of such risks existed at the time of his employment or may have come into existence subsequently, provided, only, they have come to his knowledge. This condition attaches at the time of his employment and continues unchanged during his employment. It is an incident of the relation and has its origin in the contract by which that relation is formed. It becomes a part of the contract because the ,law attaches the liability or obligation to the contract.” Streeter v. Western Scraper Co., 254 Ill. 244-253.

While the accident was unfortunate we cannot, upon this record, allow this judgment to stand—first, because the evidence fails to show negligence on the part of appellant, and, second, that under the circumstances shown, appellee must be held to have assumed whatever risk was involved in operating the machine. Having reached this conclusion, the judgment of the court below must be reversed upon findings of fact.

Judgment reversed with findings of fact.


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    Fillippo Laudicino, Appellee, v. The Chicago & Alton Railroad Company, Appellant.
    Gen. No. 17,180.
    1. Masteb and sebvant—when trade laborer assumes risle from passing engine. A railroad laborer cleaning the track was struck by an engine. He was familiar with the constant movement of engines on the track and while there was evidence that the foreman warned the men of approaching trains, it appeared the men were in the habit of looking out for themselves. The evidence was conflicting as to whether a warning was given by the engine, hut it was admitted that a whistle was blown when the engine was two hundred and forty feet away, with the view unobstructed, and there was evidence that other blasts were blown in sufficient' time for the laborer to get out of the way. He testified, almost unbelievably, that he neither saw nor heard the engine. Held, the plaintiff assumed risk.
    2. Masteb and sebvant—when trade laborer is guilty of contributory negligence. A railroad laborer cleaning the track was struck by an engine. He was familiar with the constant movements of passing engines and while there was evidence that the foreman warned the men of approaching trains, it appeared the men were in the habit of looking out for themselves. The evidence was conflicting as to whether a warning was given by the engine, but it was admitted that a whistle was blown when the engine was two hundred and forty feet away, with. the view unobstructed, and there was evidence that other blasts were blown in sufficient time for the laborer to get out of the way. He testified, almost unbelievably, that he neither saw nor heard the engine. Held, the plaintiff was guilty of contributory negligence in failing to observe ordinary precautions for his safety.
    Appeal from the Superior Court of Cook county; the Hon. Louis Berxreuteb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact.
    Opinion filed June 14, 1912.
    Rehearing denied June 25, 1912.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn, Ralph M. Shaw and John C. Slade, of counsel.
    Stedman & Soelke, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a judgment for $4,540 entered in the Superior Court of Cook county, upon a verdict in favor of appellee, Fillippo Laudicino, for personal injuries sustained by him, through the alleged negligence of appellant, the Chicago & Alton R. R. Co.

The accident occurred October 11, 1907, in appellant’s yard at Bloomington, Illinois. Appellee, an Italian then a little over fifty-one years of age, was in good health, and was then and had been continuously in the employ of appellant as a general laborer in and about this yard for two and one-half years immediately preceding the accident.

The yard, with round-house, power-house, turntables, shops, and a large number of switch tracks, switches and cross-overs, extended north and were widened out at Locust street, Bloomington, but at the place of the accident,-—about half way between Locust and Market streets, the next one south,—there were six parallel north and south tracks, all elevated, the streets named passing beneath them.

The first track on the east was called the “scales” track; the next one west (*2), was the north-bound through main track; the next one (*3), the south-bound through main track; the next one (#4), (the one upon which the accident occurred) was a third main track—■ a local track extending from the Bloomington railroad station to the yards north. West of these four tracks were two additional side or switch tracks.

All passenger trains coming north changed engines at Bloomington station, about a quarter of a mile south of the place of the accident, and the several engines, after leaving their respective trains, would run north on the third main (*4) track to the round-house. It clearly appeared that a great number of trains and engines daily passed back and forth on all the tracks, including that upon which appellee was injured. It further appeared that it was customary for the laborers to work in gangs, numbering from five to twenty-two men, under the direction of a foreman, grading, repairing, rebuilding, and “cleaning” the tracks,—reloading and transferring cars, or doing any other general work which had to be done in the yard.

On the day in question, appellee was one of a gang of ten to fifteen laborers who were scattered along ' this fourth track, between Market and Locust streets, short distances apart—all engaged in “cleaning” the track. At about 1:40 p. m., when the “red train,” or Alton special, was proceeding north on the northbound through main track (*2), two tracks east of where appellee was working, engine No. 31, having completed its daily run from Roodhouse to Blooming-ton, and left its train at the station, came north, as was the everyday custom, on the third main track (*4), at a speed of about six to ten miles per hour, on its way to the round-house, and struck appellee when about midway between Market and Locust streets.

There were at least two other laborers working along the track south of appellee, from which direction the engine was approaching, but they escaped being injured by the passing engine. Appellee appears to have been standing just outside the track No. 4, on the west side, in a stooping position, facing west; he was not run over, but was apparently struck by the outer part of the front end of the engine and thrown over to one side. The engine was immediately stopped; appellee was found unconscious beside the track, opposite the rear wheel of the tender. His injuries consisted of cuts upon the head and leg, three fractured ribs, and a general bruising, causing his detention in a hospital for about two weeks, after which he came to his home in Chicago. At the close of plaintiff’s case, the declaration was amended by leave of court, by striking out certain allegations therein contained. Appellant, thereupon, asked leave to file a general and special demurrer, which was denied, and the pleas already on file were ordered to stand to the declaration as thus amended, to which appellant duly excepted. We are asked to reverse the judgment upon the grounds—1st, that plaintiff assumed the risk of the conditions existing at the time of the accident; 2nd, that plaintiff was guilty of contributory negligence, in that he failed to exercise ordinary care in looking out for the approach of the engine and failed to heed the warnings given; 3rd, that appellant was not shown to be guilty of any negligence; 4th, that the trial court erred in denying leave to file a general and special demurrer to plaintiff’s declaration as amended during the trial.

In the view we take of the ease, it will not be necessary to consider the last ground suggested, but we will proceed to consider the other three. Upon this record, there can be no dispute that appellee was engaged in a business somewhat hazardous, and requiring exercise of his faculties for his own safety; at the same time, appellant was under obligation to so conduct its business—operate its engines and trains—as to not unnecessarily expose appellee to danger. The character of the work in-which appellee was engaged at the time of the accident (c6cleaning” tracks) indicated that his location was transitory, and did not require that close application to, and concentration of the mind upon, the business in hand that would have been required of one engaged in a specific piece of work at one point, which might require close and individual attention. He had been long enough in the service to know that the track upon which he was engaged was frequently used during the day. The train from which engine Ño. 31 was detached, was on time, and when the engine approached where he was working, on its way to the round-house, it was doing what was done at that hour every day. Appellee himself testified that trains went by on all tracks while they were working; freight and passenger trains, or engines were likely to go by at any time; they would come from either direction; switch engines would move up and down the yard all the time in each direction. Other witnesses, on behalf of appellee, testified to knowing that ‘ ‘ engines were likely to come along any minute; that there was one foreman for the gang, but he would not always be standing in one place; if the train was near the first man who saw it would notify us. * * * Of course, all of us would look. * * * We would look, and we would have to work too; we know that we were working and if we did not look out we might get struck. I knew it was a dangerous place; it always was a dangerous place around there. I knew that if I didn’t look out for myself, I should .be likely to get hurt. * * * We all looked out for the trains and knew that if we didn’t look out, we were likely to get hurt. * * * When we would hear the cars coming, we would look up, and when we would see the cars, we moved away.”

The track extending to the south of where appellee was injured, for fully a quarter of a mile, was entirely unobstructed, and afforded a clear view of approaching trains for that distance, for the street traffic passed under the tracks, which were elevated. From the testimony, it appeared that during the entire term of appellee’s service in the yards, covering about two and one-half years, he was familiar with the constant movement of engines and trains along the tracks; that upon these trains the whistle was sometimes blown and the bell upon the locomotive was sometimes rung, and sometimes neither was done—and , the laborers along the track were required to be on the lookout.

It is true, appellee testified, as did some other witnesses in his behalf, that the foreman was in the habit of calling out to the men whenever a train was approaching ; but, from the evidence, it is clear that they were in the habit of looking out for themselves and of warning each other. One of appellee’s witnesses testified that, “I looked because we had to work, because the work we were doing, we had to watch all the time, north and south, and while we were cleaning tracks, it comes natural. We are looking north and south.”

It appears that the jury were instructed that appellee was not entitled to recover on the ground of the failure of the foreman to give warning, even if such warning was not given, and, therefore, the charges of negligence upon which appellee must recover were alleged failure of appellant to ring the bell or. to blow the whistle. The testimony bearing upon these alleged acts of negligence is directly conflicting. Including the appellee, there were five witnesses on his behalf, of whom three said that the whistle was not blown, nor the bell rung. Appellee, and his other witnesses, testified that they did not hear either the whistle or the bell. On the other hand, five witnesses testified positively for the appellant that the bell rang continuously from the time the engine left the station, a quarter of a mile away. Of this number, three were upon the engine. Seven witnesses testified to having heard the whistle signal when the engine was at Market street, and ten witnesses testified that the whistle was sharply blown several blasts just prior to the accident. The engineer and the fireman upon engine No. 31, and another engineer who was riding in the cab at the time, testified unqualifiedly that the engine had an automatic bell ringer, which was in operation and ringing the bell continuously from the time it left the station. A colored man, a colaborer with appellee, and working south of him in the gang, testified that he heard the bell as the engine approached, and called to others to get off the track; and another witness in appellant’s employ at the time of the accident, testified that she was washing dishes in a car standing on the side track two or three car-lengths south of where the accident occurred, and that, as the engine approached, she heard the bell ringing. As to the blowing of the whistle, Anderson, the engineer upon engine No. 31, testified that, as his engine reached Market street on its way north, he blew four blasts with the whistle as a signal to the switch tender north of Locust street to open the switch to the round-house. This testimony was corroborated by the extra engineer upon the locomotive, the fireman, the engineer of the Alton Limited, then going by on the second track east, the colored laborer working south of appellee, the foreman of the laborers who was considerably north of appellee, and a woman engaged in washing dishes in the car on the side track. As the engine was approaching appellee, he was seen to be in a stooping position near the west rail of the track, and as he made no move to get out of the way, the engineer testified that he blew several short blasts of the whistle in quick succession to warn appellee; and this testimony is corroborated by nine witnesses. The testimony is conflicting as to how far away the engine was from appellee at the time these last warning blasts were blown; but we think a careful analysis of the testimony clearly shows that the distance was sufficient to enable appellee to have gotten out of danger had he been giving attention.

With commendable frankness appellee concedes in his brief (though the fact was denied by several of his witnesses) that several blasts of the whistle were blown at Market street to notify the switch tender at Locust street. The point at which appellee was injured was only about 240 feet north of Market street—the track was straight, and the view unobstructed. If the whistle was sharply blown several times at this point, and appellee were giving the slightest attention, it seems that he must have heard them. That appellee could have remained in his stooping position, facing west, almost far enough away from the track to be missed by the passing engine, and that the engine could approach, after these sharp blasts of the whistle were concededly blown at Market street, and the bell being automatically rung, with all the noise incident to the approach of the engine upon the tracks, and neither see nor hear its approach, if he was in the exercise of any care or caution for his own safety, seems inconceivable.

Appellee testified that he neither saw nor heard the approaching engine, nor had any warning or indication of its presence; that in point of fact, he did not even know it touched him only from the statements made to him by others after the accident—a story, which, judged by the common experience of man, seems almost unbelievable. In any event, we think the verdict clearly against the weight of the evidence, and that appellee assumed the risks and hazards of the business in which he was employed at the time: see C. & A. Ry. Co. v. Bell, 209 Ill. 25-31; C. & N. W. Ry. Co. v. Donahue, 75 Ill. 106, and in our opinion appellee was clearly guilty of contributory negligence in failing to observe ordinary precautions for his own safety.

It is not denied that appellee was injured, nor is there any point made as to the amount of damages awarded. The accident was most regrettable, but, for the reasons given, we are compelled to hold that, upon this record, appellee could not recover, and the judgment of the court below must, therefore, be reversed.

Judgment reversed with findings of fact.


author: Mr. Justice Clark

text:
    Albert N. Eastman, Appellee, v. John W. Blackledge et al., Appellants.
    Gen. No. 17,113.
    1. Joint adventures—liability for services performed. Persons about to purchase and consolidate certain canning plants agreed to pay to an attorney for legal services a certain per cent, of all stocks and bonds issued by a company to be formed. The company was formed and the stocks and bonds delivered to the attorney who substantially complied with his contract. Stock dividends and bond interest was credited in the company’s hooks to the promoters, who made a settlement with the company and received dividends and interest that should have been paid the attorney. Held, the attorney was entitled to recover such dividends and interest from the promoters.
    2. Attorney and client—compensation when performance prevented by client. An attorney employed to do certain legal work may recover the agreed compensation though part of the work was performed by another where he performed all the work he was permitted to perform.
    Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 14, 1912.
    Lynden Evans, Clark Scammon Reed, Henry S. McAuley and Thomas M. Headen, for appellants.
    Eastman & White, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was had in favor of appellee and against appellants jointly, for the amount of certain dividends upon shares of the capital stock and interest upon certain bonds, both issued by the Wisconsin Pea Canners’ Company, and both belonging, as claimed, to the appellee.

The contention of appellee is that appellant caused the amount of such dividends and such interest to be credited to their account on the books of the company, and that afterwards a settlement was made with the company; that the legal effect of the conduct of appellants was a conversion to their own use of the amount for which judgment was rendered.

The case was tried before the court without a jury, and numerous findings were requested by the appellee and by the appellant Blackledge.

The essential facts are not in dispute but appellant Grillett claims that there should have been no recovery, first, because the obligation was not one for which appellants were jointly liable; second, because appellee had not performed his contract; third, because he was not the owner of the bonds at the time the interest was alleged to have been paid to appellants, nor the owner of the stock when the dividends were declared. It is further claimed that the acceptance of the note made by the company to the appellant Grillett, hereinafter referred to, was not a payment of the indebtedness evidenced thereby; that the appellants did not receive money or anything of value for the use of the appellant, and that if appellee was the owner of the bonds and stock his cause of action was against the corporation and not against appellants.

The contention of appellant Blackledge is that the plaintiff’s proofs do not support his pleadings, and that under the evidence the suit was prematurely brought.

In 1906 the appellants, Blackledge and Grillett, were interested in a joint venture to purchase and consolidate certain pea canning plants in the State of Wisconsin. On September 7th of that year appellant Blackledge entered into a contract with the appellee whereby appellee was to do the necessary legal work in connection with the purchase of the property, the formation of a company, etc., and was to receive in payment for his services 2y2 per cent, of all stock, bonds or other securities issued by the company to be formed, in addition to his expenses for hotel bills, railroad fare, etc. On July 13, 1906, and May 13, 1907, contracts were entered into between the appellant Gillett and the appellant Blackledge with reference to the promotion of the Wisconsin Pea Cannners’ Company and the division of the profits to be derived therefrom. On July 12, 1907, a supplemental agreement was made between the appellants, which provided for the payment of a monthly salary to Blackledge; the advancing of money necessary to carry on the sale of stock and the promotion of the corporation by Gillett; that Gillett was to have the possession and control of all stock, bonds or securities that both or either of the appellants were entitled to; that Gillett should have the right to dispose of the securities at the miuimum price of 80 per cent, of the face value of the preferred stock, an equal amount of common stock to be given as a bonus, and 80 per cent, of the face value of the bonds. The contract further provided that out of the proceeds to be derived from the sale of the securities there should first be deducted and paid to Gillett, with 5 per cent, interest, all advances made by him as payment or partial payment of the purchase price of two additional plants, known as the Landreth and Yandreuil plants; that there should be charged against the residue and paid to Gillett all other advances made by him in the promotion of the company, with interest thereon at 5 per cent.; that the balance of the profits then remaining, either in stock, bonds, cash or other securities, should be divided between the appellants, two-fifths to Blackledge and three-fifths to Gillett. Gillett agreed that he would assume and be bound by all contracts for commission and prices for securities made by Blackledge, including appellee’s (Eastman’s) compensation.

The court found that in pursuance of the joint undertaking of the appellants the Wisconsin Pea Canners ’ Company was organized in 1907, with an authorized capitalization of $750,000 of preferred and $600,000 of common stock, and an authorized issue of $200,000 in bonds; that by the contract above referred to the control of the stock and bonds was vested in Gillett by Blackledge for their joint benefit, and subject to the terms and conditions of the existing contract with appellee, and with his knowledge; that appellee had performed, and stood ready and able to perform, his contract in pursuance of this joint venture ; that the company issued its total capitalization of 75,000 shares of preferred stock and 60,000 shares of common stock (each of the par value of $10 per share), and $200,000 par value of bonds; that 1,875 shares of the preferred, 1,600 shares of the common, and $5,000 par value of the bonds had been delivered by appellants to appellee; that in September and October, 1907, 1,875 shares of preferred stock were by the appellants voluntarily directed to be issued and registered in the name of appellee, and that they so continued to remain until December, 1908; that between September 1, 1907, and December 1, 1908, dividends to the amount of 12% per cent, were paid by the company upon its entire issue of preferred stock, and that dividends upon the stock issued to Eastman were “paid and credited to the joint account of” appellants ; that the interest on the bonds of appellee was also credited to the joint account of Blackledge and Grillett; that no portion of the first five dividends so declared upon the preferred stock or the interest on the bonds was ever paid to Eastman. The court further found that the necessary legal work connected with the turning over to the company of the property purchased from the Lambreth Company was not done by the appellee.

While the findings of the court are perhaps not entirely harmonious, we think the conclusion reached was that there had been a substantial compliance by the appellee of his contract with Blackledge, and that by the contract between Blackledge and Gillett the latter agreed to turn over to the appellee the securities to which under the contract with Blackledge the appellee was entitled. We think it also apparent from the evidence that a joint account with Blackledge and Grillett was kept on the books of the company, and that this was done in pursuance of the contract between them, heretofore referred to; that up to the time that the manual delivery of the stock and bonds was made to appellee, the same were kept in the possession of the officers of the company, but that they were issued at the instance of Grillett and with the consent of Black-ledge to Eastman at a time when there had been a substantial compliance of his contract by the appellee; that there was an adjustment as to the matter of dividends and bond interest between the company and Gillett, and that in this settlement Gillett received the dividends upon stock and interest upon the bonds which properly should have been paid to the appellee.

It is true the court found that appellee did not perform the necessary work connected with the purchase of the property of the Lambreth Company in its entirety, but that it appeared the work was performed by another. We think it clear that he did perform all of the work that he was permitted to perform in that matter and that for reasons not definitely stated, but which it may be inferred were due to differences between the parties, Mr. Gillett preferred to have some other attorney look after the matter, and so relieved Mr. Eastman of further duties in the premises.

It is apparent that by the control of the securities Mr. Gillett was in control of the affairs of the company. By his actions he prevented the payment to appellee of dividends upon the stock and interest on the bonds. As heretofore stated, the amount of these dividends and the interest was credited to the joint account of Grillett and Blackledge. In the settlement which he made with the company Grillett must he regarded as having acted for himself and Blackledge jointly. We think the judgment entered in this ease is warranted by the pleadings and the proofs, and deem it unnecessary to comment further upon the various points raised in the briefs and arguments of counsel. The judgment will be affirmed.

Affirmed.


text:
    Patrick J. Maloney, Appellant, v. Frank H. Graham, Appellee.
    Gen. No. 17,050.
    1. Limitations—when begin to run for negligence of attorney. Where it is claimed that an attorney was negligent in passing upon the title to certain real estate, an action against him is barred in five years from the date of such negligence and not from the date of a decision of the Supreme Court holding the client had no title.
    2. Attobney and client—when bad faith of attorney not established. Where the title to real estate is attacked and the attorney who passed upon the title defends the action and is successful in the Circuit Court and the case is not reversed by the Supreme Court- until years later, it cannot be contended in an action of negligence against the attorney that he must have known what the result of the litigation would be.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Soanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 14, 1912.
    Charles C. Spencer, for appellant.
    Edward B. Healy, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the appellant against the appellee, an attorney, for damages alleged to have been sustained by the negligence of appellee in passing upon the title to certain real estate, a deed to which was afterwards made to the appellant in exchange for property conveyed by him. The service was performed by Graham in 1894. The appellant, Maloney, took possession of the property, paid taxes and assessments on it, and borrowed money on it. On October 17, 1898, after appellant had started to build a fence upon it, certain adjoining property owners filed a bill against him and obtained an injunction against his further occupying the property. The injunction on hearing was dissolved and the bill dismissed. Thereupon the complainants in the bill sued out a writ of error from the Supreme Court, where the decree of the Circuit Court was reversed, the court holding (Thompson et al. v. Maloney et al., 199 Ill. 276) that the grantor to Maloney, and hence Maloney, had no right, title or interest in the property, but that it was a public street or way. In pursuance to the mandate of the Supreme Court a decree was entered by the Circuit Court on January 9, 1903, perpetually enjoining Maloney from occupying the premises or placing any buildings upon them, etc.

The suit upon which the present appeal is brought was begun in the Circuit Court on February 1, 1907. The declaration was filed May 9,1907, and an amended declaration January 6, 1909. To this amended declaration a plea of the statute of limitations was interposed, and a replication filed.' At the close of the appellant’s (plaintiff’s) evidence the court directed a verdict for the defendant on the ground that the action was barred by the statute of limitations. To reverse the judgment so entered this appeal was brought.

As we understand the contention of appellant, it is that the statute does not begin to run, in cases like the present, until the party injured is shown to have suffered damage; that because the appellant, Maloney, was not “damaged” until after the decision of the Supreme Court above referred to was rendered, the decree in the Circuit Court in conformity therewith entered, and he ousted from the property, his cause of action then, and not until then, arose. We cannot agree with appellant in this contention. The decisions in this jurisdiction are uniform that under such circumstances the action is barred in five years from the date of the alleged tort or breach of duty or omission of duty. Pennsylvania Co. v. C. M. & St. P. Ry. Co., 144 Ill. 197; Fortune v. English, 226 Ill. 262. As stated in Wilcox v. Ex’rs of Plummer, 4 Pet. (U. S.) 172:

‘ ‘ The ground of action is a contract to act diligently and skillfully, and the breach of it admits of a definite assignment of date, and from that date the statute must run.”

In the case before us a suggestion is made by the appellant that the appellee was controlled by an ulterior motive when he advised Maloney that the title was good, namely, the hope of receiving $500 from the grantor. It is also stated that Graham took charge of the litigation for Maloney, and that he must have known at all times what the ultimate result would be. To the latter proposition we think it sufficient answer to say that in the Circuit Court Maloney was successful. It was not until years later, when the case was disposed of on writ of-error in the Supreme Court, that Graham knew the view he had expressed as to the title was erroneous. Apparently the Circuit judge entertained the same view, and that was the law of the case until reversed by the Supreme Court. No attempt was made by the appellant either in the pleadings or the proof to bring the case within the exception set forth in section 22 of the statute of limitations, that is, that there was fraudulent concealment on the part of appellee. We find nothing in the record indicating that Graham was paid $500 or any other sum by Pierpont, who was grantor in the deed to Graham.

We are satisfied that the Circuit Court has made a proper disposition of this case under the law, and the judgment will therefore be affirmed.

Affirmed.


text:
    Jantje Knol, Appellee, v. Abel Knol, Appellant.
    Gen. No. 17,025.
    1. Divobce—no relief not prayed for or against person not a party. Where a wife suing for divorce claims certain property but does not make the tenant a party defendant or ask for relief against him, it is error for the court to order that the tenant pay the rent of the premises to her.
    2. Divobce—when verification of hill is insufficient. It is improper to verify a bill for divorce partly on personal knowledge and partly on information and belief.
    3. Divobce—necessity of proving value of solicitor’s fees. In allowing solicitor’s fees in divorce there should be some proof as to the amount of service performed by the solicitor or proof that the fee is a usual and customary one.
    4. Appeal and ebbob—when improper allowance of solicitor’s fees will not reverse. The court will hesitate to reverse an order allowing solicitor’s fees in divorce though there is no supporting proof where the amount allowed is small, twenty-five dollars, and is stated to be on account.
    Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed June 14, 1912.
    I. T. Greenacre, for appellants.
    Gurdon Williams, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is an appeal from an order allowing appellee alimony pendente lite and $25 “on account of” solicitor’s fees in a suit for divorce. The order further provided that John Pott pay the complainant (appellee) rent for the use of certain premises claimed to be the property of appellee. Pott was not made a party defendant to the bill and was not summoned. He however joined in the appeal. It is clear that the order was erroneously entered as to him. If appellee was the owner of the premises she could of course compel the payment of the rent or obtain possession of the premises in a law proceeding. No valid order or decree could be entered against Pott in the case before us for the additional reason that no relief is asked against him in the bill of complaint. The allowance of alimony included a sum for the support of the child of the parties.

The bill charged habitual drunkenness, but was not sworn to at the time it was filed. An attempt was made to verify it in an affidavit filed by the appellee in reply to the verified answer filed by appellant. The language used was:

“That all the allegations set forth in the bill of complaint heretofore filed in the above entitled cause are true in substance and in fact except as to such matters which are stated upon information and belief, and as to such matters she believes them to be true. ’ ’

This language has been many times held to constitute an improper verification because it is impossible to say which matters are stated in the bill on information and belief, and which matters are within the personal knowledge of the complainant. (Neil v. Oldach, 86 Ill. App. 354, and cases cited.)

The answer filed by the appellant, Abel Knol, is verified, and denies all the allegations of the bill of complaint. In his answer he also charges improper conduct on the part of the complainant.

There is no evidence in the record as to the amount of services performed by the solicitor or- the value thereof, or that the fee is a usual and customary fee. Indeed, the allowance made appears to have been ‘ ‘ on account.” We think there should have been some proof on these matters. (Metheny v. Bohn, 164 Ill. 495.) The amount, however, allowed was small, and we should hesitate to reverse the order solely on account of this allowance to apply on solicitor’s fees. However in our opinion the pleadings and proof at the time the order was entered were not of such character as justified the issuance of the order.

For the reasons stated the order will be reversed with directions to the court to dismiss the petition,' but without prejudice to the complainant to renew the motion in proper form if she shall be so advised.

Reversed and remanded with directions.


text:
    Annie Haugh and Thomas Hunt, Administrators, Appellees, v. Joseph T. Ryerson & Son, Incorporated, Appellant.
    Gen. No. 16,999.
    1. Death—liability of owner of premises. In an action for death caused hy a fallen electric wire, an instruction that no recovery can be had against the owner of the premises on which the injury occurred and for whose use the electricity was supplied, if the sole cause of the accident was defective insulation, is proper where deceased was employed thereon by an independent contractor and where the alleged defective insulation was caused by another independent contractor.
    2. Electricity—when negligence not presumed. There is no presumption of negligence against the owner of premises on which plaintiff’s -intestate was working when a wire, through which electricity was conducted for the sole use of the owner, broke and fell to the ground, deceased having been employed by an independent contractor and the wiring having been done by another independent contractor.

      3. Master and servant—when owner of property liable to employes of independent contractor. Owners of property are only liable for injuries to employes of independent contractors when they participate in the negligent act or where there are latent dangers on the premises which cause the injury which are known to them but are unknown to the contractor or employes.
    4. Death—directed, verdict. In an action against the owner of property for the wrongful death of an employe of an independent contractor caused by the breaking of an electric wire, on the ground that the wire was on such owner’s property and was used solely to supply electricity to such owner, a verdict should be directed for the defendant where the wire was placed in the position it occupied on request of deceased’s employer and another independent contractor, and where deceased was warned of the danger and where the injury was caused by the negligence of fellow employes of deceased.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed June 14, 1912.
    Rehearing denied July 2, 1912.
    H. L. Howard, for appellant.
    Jacob C. LeBosky, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought in the Superior Court of Cook . county by appellees, as administrators of the estate of Thomas Haugh, deceased, against Charles F. Volkmann, the Commonwealth Edison Company and Joseph T. Ryerson & Son. A settlement was effected with Volkmann by his paying $2,000, and a covenant not to sue was given. Thereupon the suit was dismissed as to him. There was a trial of the issues between appellees and the Commonwealth Edison Co. and the appellant, Joseph T. Ryerson & Son. The jury found the Commonwealth Edison Company not guilty and the appellant guilty and awarded damages. From a judgment rendered upon such verdict the appellant appeals. An appeal was prayed by the appellees as against the Commonwealth Edison Company but was not perfected.

The suit is based upon the alleged negligence of defendants, which is charged to have caused the death of appellee’s intestate. The intestate was in the employ of Charles F. Volkmann, who was engaged at the time of the accident in erecting iron or steel columns or trusses on the north side of a building owned and occupied by the appellant Joseph T. Eyerson & Son. Two or three weeks before the accident Volkmann had notified Eyerson & Son that certain feed wires were in his way and would have to be removed so that he could proceed with his work. A certain pole and feed wires had been erected and placed in position by the Commonwealth Edison Company, and belonged to that Company; they were, however, on the premises of Eyerson & Son. On October 31, 1907, the Commonwealth Company’s men moved one of the poles and certain wires. The place to which they were moved was designated by Volkmann. The deceased was working as a member of the hoisting gang, working on a derrick of Volkmann, on the day of the accident, which was November 6, 1907. At this time two steel columns had been erected in a row directly west of the wires. The hoisting gang at the time of the accident was engaged in moving an iron truss. The gang consisted of five men. The deceased and another mem: ber of the gang, named Knudson, had the duty of attaching the chain and hook to the articles that were hoisted and unfastening the same. McManigle, the foreman for Volkmann, directed the movements of the men. The chain was fastened around an angle iron by the deceased and Knudson on McManigle’s order. When the chain had been fastened the truss was elevated ten or fifteen feet from the ground, and the boom was swung from the south toward the east and directly toward the feed wires in question. The truss was then again let down on the ground in an upright position, resting on its base, and the men tried to tip it over towards the east. They did not succeed in doing this, and the foreman for Volkmann ordered that the truss be again elevated. He placed a stone under one end of it, so that when it struck the ground it would of itself tip over towards the east. After the truss had been for the second time let down on the ground and tipped over, the deceased and Knudson walked over to unfasten the chain. As they did this a sudden flash was seen, and the two men fell to the ground unconscious. Whether or not they had succeeded in unfastening the chain before the accident happened is uncertain. It would seem that when the truss was being tipped over towards the east the chain slipped back on the angle iron, a distance of one or two feet, towards the center. The electric wire, which was about thirty feet up from the ground, broke and both ends fell to the ground. No one connected with the appellant was on the ground at the time of the accident. When the pole was moved, on October 31st, a superintendent for appellant was called into consultation. The pole was not placed where he suggested, but the wishes of Volkmann, the employer of deceased, through his foreman, McManigle, were complied with and the pole placed where the latter directed. It was admitted by the Commonwealth Edison Company and the appellant that the death of the plaintiffs ’ intestate was caused by the electrical shock occurring to him on the day in question and on the premises of the defend- • ant, Byerson & Son, but outside the shop, and on the building that was being constructed; that the electricity conveyed over the wire in question was supplied to Byerson & Son by the Commonwealth Edison Company, and that the wires were used solely in supplying power to the appellant Byerson & Son.

A motion was made by the appellant at the conclusion of all the evidence that the jury be instructed to return as to it a verdict of not guilty. This motion was denied. A similar motion at the close of the appellees’ evidence had been made and had been denied. We think the instruction to find the appellant not guilty should have been given.

The appellees apparently base their right to recover upon the proposition that the poles and wire were on the property of appellant, and that the current of electricity conducted through the wire was for the sole use of the appellant. It is further argued that the appellant should be held liable because the wire was not properly insulated. The evidence does not, in our opinion, tend to prove that there was improper insulation of the wire. If such was the case, it was the fault of the Commonwealth Edison Company.

The court charged the jury that there could be no recovery against the appellant if the appellees’ intestate was injured as a result of any defective insulation of the wire in question, and if such defective insulation was the sole cause of the accident. We think this instruction was proper.

We have read with great care the brief and argument of appellees upon the other propositions, namely, that the appellees should be allowed to recover because the poles and wire were on the property of appellant, and because the current of electricity conducted through the wire was for the sole use of appellant, but these admitted facts are not sufficient to raise a presumption of negligence. It is the settled law of this state that owners of property are not responsible for injuries to employes of independent contractors, unless the owner participates in the doing of a negligent act which results in the injury, or unless there are latent defects or dangers existing on the premises known to the owner and unknown to the contractor or his employes, which defects occasion the accident. (Hale v. Johnson, 80 Ill. 185; Foster v. City of Chicago, 197 Ill. 264; Boyd v. C. & N. W. Ry. Co., 217 Ill. 332; Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290.)

The deceased was warned of the danger prior to the accident. The wire was placed in the position it was at the request of his employer, Volkmann, and by the Commonwealth Edison Company, both Volkmann and the Commonwealth Company being independent contractors. The accident occurred because of the negligent manner in which the derrick was handled by the employes of Volkmann, and not through any negligence of Eyerson & Son. It would seem that Volkmann recognized his liability and made a settlement with appellees on account thereof.

It is1 unnecessary to discuss the other questions raised in the briefs. For the reasons stated the judgment will be reversed.

Reversed.