author: Mr. Justice Smith

text:
    Alexander Findlay, Plaintiff in Error, v. Corn Exchange National Bank, Defendant in Error.
    Gen. No. 15,821.
    1. PRESUMPTIONS — as to receipt of checks. If cheeks are placed in envelopes and properly addressed and mailed to the payee the presumption arises that they were received by such payee in the regular course of business.
    2. Negotiable instruments — effect of delivery of checks. Delivery of a check to the payee thereof constitutes an assignment pro tanto of the funds of the drawee in the bank and vests a right of action thereon in the payee, and the maker thereupon loses control over the cheek and the funds represented thereby.
    3. Negotiable instruments — in whom right of action vests on payment of check upon forged endorsement. If the bank pay a check upon a forged endorsement, the right of action to recover the fund thus diverted is vested in the payee of the cheek.
    4. Negotiable instruments — duty of depositor to notify ha.nik of forgery. It is the duty of a depositor to notify the bank immediately upon his discovery of a forgery and a depositor who fails to notify his hank of a forged endorsement as soon as it is discovered, loses all right of action against the hank.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    IioYNE, O’CoNNOR, HoyNe & IrwiN, for plaintiff in error; Harry D. IrwiN and Carl J. Appell, of counsel.
    Jacob E. Dittus, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

An action was commenced in the Municipal Court of Chicago on April 10, 1909, as a fourth class case. The amended statement of plaintiff’s claim, filed in the action, alleges that two checks had been wrongfully charged to plaintiff’s account, and that the amounts thereof still remained to his credit, for which he brought suit.

The substance of the defenses set up by the amended affidavit of merits filed by the defendant, may be briefly stated thus :

First, that the right of action, if any, growing out of the subject-matter of the suit belongs to Samuel Cabot, a corporation, the payee of the checks, and not to A. Findlay, the maker.

Second, that the plaintiff has forfeited any possible right of action which he may have had, by his negligence in discovering the forgeries, and Ms subsequent delay in notifying the defendant of the forgeries after the plaintiff discovered the same.

The plaintiff in error, Findlay, was a depositor of the Corn Exchange National Bank during 1907 and up to November 5th of that year, when his account with the bank was closed. In March, 1907, Findlay mailed to Samuel Cabot, a corporation, at No. 28 Dearborn avenue, Chicago, Illinois, a check in the amount of $100.65, and on May 19,1907, a further check for $40.80 in payment for certain goods purchased by him from Cabot. These checks, both of which were drawn on the Corn Exchange National Bank, came into the possession, as later explained, of one E. S. Schenken-berger, who forged the endorsement of the payee thereon, and then endorsed them over to the Chicago Savings Bank and Trust Company, which sent them to the Continental National Bank of Chicago for collection. The Corn Exchange National Bank paid them through the Clearing House to the Continental National Bank and charged the checks up to plaintiff’s account returning the cancelled or paid checks to plaintiff as vouchers, together with a statement of his account on the second of the month following their respective dates.

The plaintiff, Findlay, testified that the checks were placed in envelopes properly addressed and mailed by him to Cabot. It appears that the checks were received at the office of Samuel Cabot, the payee, by Morris Potthoff, the bookkeeper of Cabot, or by George H. Bell, Jr., who was employed in Cabot’s office as a clerk; and the checks were either taken by Schenken-berger from Cabot’s office or turned over to him by Potthoff or Bell, Jr. Both Bell, Jr., and Potthoff, the bookkeeper, were authorized to receive and open mail for Samuel Cabot.

George IT. Bell, Jr., was shortly after the time of the mailing of these checks indicted for forging endorsements on checks similar to the ones here involved, in Cabot’s office, but escaped before he was arrested and is now a fugitive from justice.

The first knowledge Findlay had of the forgery was obtained by him in the middle of March, 1908, when he received from Cabot a statement for the items paid by the checks in question. Findlay thereupon called George IT. Bell, Cabot’s manager, on the telephone and told him that he had paid the account contained in the statement received, and that he had the cancelled checks as evidence of such payment. Bell wrote Find-lay a letter requesting him to send the cancelled checks to Bell, which plaintiff did about a month later. Findlay states that he compared the endorsement Samuel Cabot on the checks in question with the endorsements on other checks sent by him t,o this same corporation, and found the endorsements to be dissimilar, and that he then knew something was the matter. This comparison was undoubtedly made prior to the time the checks were sent to Bell, as Findlay testifies that he never had the checks in his possession after mailing them to Bell in March, 1908.

No notice of the forgery was given to the defendant in error by Findlay or any one representing him, and no demand was made by Findlay or in his interest, until on or about March 26, 1909, or a little over a year after Findlay discovered that the endorsements in question were forged.

George H. Bell, representing Samuel Cabot, the payee named in the checks in question, received the cancelled checks from Findlay in April, 1908, and at once discovered that the endorsements of Samuel Cabot were forged thereon by one E. S. Schenkenberger, whom Bell knew intimately and who was employed by a corporation of which Bell was treasurer. Bell states in his evidence that it was at least two weeks after he made this discovery. of the forgeries before he disclosed that fact. He took time to think it over and consult an attorney he says. At the expiration of two weeks or more after discovering the forgeries, Bell went to the Chicago Savings Bank and Trust Company, which had paid the checks to Schenkenberger, and without presenting the checks, stated that he was the representative of Samuel Cabot, and that Schenk-enberger had forged Cabot’s endorsements on several checks and that the Chicago Savings Bank and Trust Company had paid Schenkenberger the amounts thereof on such forged endorsements. Bell was told that he might consult with the Bank’s attorney, William E. O’Neill, which he did on the same day.

The conversation of Bell with Mr. O’Neill, as related by the latter in his testimony, was to the following effect: Bell came to O’Neill’s office in the latter part of April or the first part of May, 1908, and they had a conversation relative to certain checks which had passed through the Chicago Savings Bank and Trust Company for collection, which Bell claimed were forged by Schenkenberger. Bell stated that Schenk-enberger had access to the mail of Samuel Cabot, whose office he, Schenkenberger, occupied at will, and that Schenkenberger had forged certain checks which were put through the Chicago Savings Bank and Trust Company. No checks were produced by Bell at that conversation. Bell also stated that Schenkenberger had misled Bell’s son, who had been in the employ of Cabot, and that both Schenkenberger and Bell’s-son had left the city, and he thought they were together. Bell further stated that he wanted to protect his son and separate him from Schenkenberger, if possible. Bell was then advised by Mr. O’Neill that he did not consider that the Chicago Savings Bank and Trust Company was liable for the forgeries, but he stated he thought it Bell’s duty to pay the amount thereof, to which Bell replied that they were larger in amount than he could afford to take care of, but that he wanted to protect his son, if possible. Subsequently Bell settled with Samuel Cabot for the forgeries, and took an assignment of its claim on the forged checks, and in March or April, 1909, he stated to Mr. O’Neill that he was going to pursue his remedy on those checks as he understood it to be.

The first notice of the forgeries received by the Corn Exchange National Bank was given to it by George H. Bell, Cabot’s representative, abont two weeks after tbe checks were returned by Findlay to Bell. At that time, Bell saw Mr. Gary of tbe Corn Exchange National Bank, and advised him that tbe endorsements on tbe checks were forgeries, and that be represented Samnel Cabot, tbe payee, and that be wanted to get tbe money on tbe checks. According to Bell’s story, be stated to Gary, “I could not ask Findlay to pay my account over again, be tried to do so once. ’ ’ Mr. Gary told Bell that before anything could be done Bell would have to get affidavits of tbe forgeries. Gary’s recollection is not clear as to what Bell replied, but be stated that Bell gave some reason why affidavits could not be obtained. Mr. Gary then went with Bell to tbe Continental National Bank, to which tbe checks were paid through tbe Clearing House, and advised them that tbe endorsements on tbe checks were claimed by tbe payee to be forgeries, and demanded that tbe amount of tbe checks be paid. Tbe Continental National Bank declined to pay tbe checks on tbe ground that no proof of forgery bad been furnished, stating that tbe Clearing House rules did not apply, and said, “We must have some proof first.”

After tbe Continental National Bank had declined to pay tbe checks to tbe payee without proof of tbe alleged forgeries, tbe Corn Exchange National Bank also declined payment and advised Bell to bring suit if be desired to press bis claim any further. Bell thereupon stated that be would’ consult with bis lawyer and adopt whatever legal course was necessary to obtain tbe payment of tbe checks.

Tbe conversation with tbe representative of tbe Corn Exchange National Bank occurred about tbe first part of May, 1908, and nothing further was beard about "the alleged forgeries, from Bell or any one else, until about March 26, 1909, nearly a year later, when Bell’s objections to producing affidavits of tbe forgeries seem to have been removed. At any rate, on or abont tbat date, Bell produced an affidavit wbicb stated in substance tbat tbe endorsements of tbe checks in question bad been forged by Scbenkenberger. Bell further stated tbat be now demanded payment of tbe checks in behalf of the maker Findlay instead of tbe payee, Cabot, as be bad stated in tbe month of May preceding.

Tbe affidavits produced by Bell were submitted in turn to both tbe Continental National Bank and tbe Chicago Savings Bank and Trust Company, who were endorsers, both of wbicb declined payment. Tbe Corn Exchange National Bank thereupon declined payment also, and advised Bell tbat suit would have to be brought to determine its liability if Findlay cared to press bis claim further.

It is urged by tbe plaintiff in error, first, tbat tbe plaintiff was not guilty of any unnecessary delay in giving notice of tbe forgery, but even if be bad been tbe defendant was not injured thereby; second, tbat tbe plaintiff was not guilty of any negligence in failing to discover tbe forgery; and third, tbat tbe burden of proof was upon tbe defendant to show tbat it bad been injured by tbe negligence of the plaintiff if there bad been such negligence.

On tbe other band, it is contended by tbe defendant in error, first, tbat tbe right of action against the defendant on account of tbe wrongful payment of tbe checks in question belongs to Samuel Cabot, the payee, and not to Findlay, tbe maker of tbe checks, and second, tbat by bis unreasonable delay in notifying tbe defendant bank of tbe forgeries after be discovered tbe same tbe plaintiff has lost whatever right of action be may have bad on account of tbe payment of tbe checks on forged endorsements.

In our view of tbe case, tbe contentions of tbe plaintiff in error are not supported by the law of this state, and we think that .the contentions of the defendant in error are well founded.

By the undisputed testimony of the plaintiff the checks in question were placed in envelopes and properly addressed and mailed to the payee. This fact creates the presumption that they were received by the payee in the regular course of business. Young v. Clapp, 147 Ill. 176-190; Dick v. Zimmerman, 207 Ill. 636.

In Wigmore on Evidence, section 95, the learned author says:

‘ ‘ The fixed methods and systematic operation of the government’s postal service have been long conceded to be evidence of the due delivery to the addressees of mail matter placed for that purpose in the custody of the authorities.”

To the same effect is 16 Cyc., pages 1065,1066, 1067.

The delivery of a check to the payee thereof constitutes an assignment pro tanto of the funds of the drawer in the bank, and vests a right of action thereon in the payee, and the maker thereupon loses control over the check and the funds represented thereby. Gage Hotel Company v. Union National Bank, 171 Ill. 531; Union National Bank v. Oceana County Bank, 80 Ill. 212; Bank of Antigo v. Union Trust Company, 149 Ill. 343, 352.

In Gage Hotel Company v. Union National Bank, supra, the court said:

“The relation of the banker to the check holder has been frequently considered by this court, and the right of the check-holder to payment on presentation of the check, provided there are sufficient funds on deposit to meet it, has been recognized and upheld in every case. This court has constantly held that when the check of a depositor is presented to the banker if the deposit is sufficient to pay the check it is an absolute appropriation of the amount of the check to the holder, and that the contract implied by law between the hanker and his depositor for the benefit of whoever may become the holder of the check, is one upon which such holder can maintain an action. ’ ’

It follows from what we have said above that the right of action against the defendant, the Corn Exchange National Bank, if any, on the check or the funds represented by the checks, is vested in the payee of the checks, and the maker Findlay has no right of action against the defendant either on the checks or for the balance of his account represented by the checks.

In First National Bank v. Pease, 168 Ill. 40, the court, in discussing this question, said: .

“The material question in this case is, whether the drawer of a hill or check may recover the amount named therein from a hank on which such hill or check is drawn where the hank has paid the same on a forged endorsement of the name of the payee. If the check becomes the property of the payee by coming to his hands the liability of the bank would be to such payee for a wrongful payment to another.”

In 2d Daniel’s Negotiable Instruments, 5th Edition, section 1663, the author says:

“There is no doubt that if a bank pays a check upon the forged endorsement of the payee’s or special endorsee’s name, the payee or such endorsee may recover back the amount if the check had been delivered to him. ’ ’

In 2d Morse on Banks and Banking, 4th Edition, section 474, the author says:

“If A draws a check payable to B and delivers it to B, and C forges B’s name and gets the money, B can recover from the bank on the money counts if the amount has been charged to the drawer. That constitutes ah acceptance of the check, and the bank holds the money for the true owner. If it pay to a wrongful holder or any one not entitled to receive, it must repay. "When a check is paid on a forged endorsement the. payee may bring suit on it as though there had been no endorsement or payment; or if it had not been issued by the drawer, he can recover the amount from the bank.”

If Findlay ever had any right of action against the defendant Bank he lost that right of action by his unreasonable delay in notifying the bank of the forgeries after he discovered the same.

Findlay testifies that he never authorized Bell to represent him in the matter involved in the action until on or about the first day of April, 1909, about a year after the forgeries were discovered. He further testifies that although he discovered the forgeries in the middle of March, 1908, he did not send the checks to Bell until almost a month later.' It is perfectly apparent that Findlay did not interest himself in the situation until long after the forgeries were discovered by him. At Bell’s request he mailed the checks to Cabot’s office sometime in April, 1908, along with two other checks not involved in this suit. The two latter checks were returned to Findlay in June, 1908, with the advice that they were all right. The two checks involved in this suit were never returned to Findlay at all. Bell retained them in his possession from the time that they were mailed to him, until the suit was commenced. Bell representing the payee of the checks assumed the entire responsibility qf the situation ■ and apparently recognized that Findlay had no claim against the bank but that the payee was the owner of the checks, and he sought to collect on behalf of the payee.

The authorities are all agreed that in a case of this kind it is the duty of the depositor to notify the bank immediately upon his discovery of the forgery. There is some controversy in the authorities as to what re-suits shall follow the breach by the depositor of his duty in this respect. We think the trend of the Illinois-cases is, that the depositor who fails to notify his bank of the forgeries as soon as they are discovered loses all right of action against the bank. It is the depositor’s dnty to discover the forgery, and upon its discQvery to promptly notify the bank.

The leading case on this question is Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96. That was an action by a depositor to recover a balance of his account with his bank claimed to be due him by reason of the bank having charged to his account" certain checks which had been forged by a clerk in the depositor’s employ. There was evidence tending to show that the depositor was guilty of neglect in discovering and notifying the bank of the forgery, but there was no evidence in the case tending to show an affirmative loss on the part of the bank. In that case a judgment was entered for the plaintiff below, and in reversing the judgment the Supreme Court say:

“If the depositor was guilty of negligence in not discovering and giving notice of the fraud of his clerk,. then the bank was thereby prejudiced, because it was prevented from taking steps, by the arrest of the criminal, or hy an attachment of his property, or other form of proceeding, to compel 'restitution. It is not necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. Whether the depositor is to be held as having ratified what his clerk did, or to have adopted the checks paid by the bank and charged to him, cannot be made, in this action, to depend upon a calculation whether the criminal had at the time the forgeries were committed, or subsequently, property sufficient to meet the demands of the bank. An inqniry as to the damages in money actually sustained by the bank by reason of the neglect of the depositor to give notice of the forgeries might be proper if this were an action by it to recover damages for a violation of his duty. But it is a suit by the depositor in effect to falsify a stated account, to the injury of - the bank,, whose defense is that the depositor has, by his conduct, ratified or adopted the payment of the altered checks, and thereby induced it to forbear taking steps for its protection against the person committing the forgeries. As the right to seek and compel restoration and payment from the person committing the forgeries was, in itself, a valuable one, it is sufficient if it appears that the bank, by reason of the negligence of the depositor, was prevented from promptly, and, it may be, effectively exercising it. ’ ’

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jesse B. Clement, Appellant, v. George H. Bladworth, Appellee.
    Gen. No. 15,855.
    1. Negotiable instbtjments — burden to establish want of consideration. The burden of proof to establish want of consideration of a note, is upon the party raising such issue.
    2. New trial — when newly discovered evidence requires. A new .trial should be granted if after the trial new evidence is discovered which in connection with the evidence already given would demonstrate that upon another trial a different result would be arrived at.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 14, 1911.
    Eastman, Eastman & "White, for appellant.

      Charles H. Wells, for appellee.
   Mr. Justice Smith

delivered tlie opinion of tlie court.

This is an action of assumpsit upon a promissory note executed by G-eorge H. Bladworth in favor of Clement and Stockwell, dated April 27, 1903, for the sum of $5,379.72, payable on demand. One special count on the note and the consolidated common counts were filed. The defendant filed the general issue and a plea of want of consideration. A similiter and special replication alleging the consideration to be an extension of time in payment of the indebtedness of the Bazaar Glove Fitting Pattern Company, which was assumed by the defendant.

There was a jury trial, and a verdict -for the defendant. A motion for a new trial was denied, and judgment was entered on the verdict. From this judgment the plaintiff, Jesse B. Clement, who sued as surviving partner of the firm of Clement ■& Stockwell, prosecutes this appeal.

It appears from the evidence that prior to the giving of the note sued on, the firm of Clement & Stockwell had sold at various times paper to a concern doing business as the Bazaar Glove Fitting Pattern Company, of which appellee, Bladworth, was the manager, and was also largely interested therein. This concern managed by appellee had given notes to Clement & Stockwell in payment for merchandise sold, aggregating the amount of the note sued on in this case, $5,-379.72. These notes at the time of the giving of the note sued on were long past due and had been protested, and Clement & Stockwell were demanding payment. The note sued on in this case was given, as appellee Bladworth says, in settlement of the existing indebtedness of the Bazaar Company notes, and this is also the evidence given by appellant. The only evidence offered on the trial was the deposition of appellant, and the evidence of appellee, a letter of appellee to appellant, the note sued on, and evidence as to the computation of interest. The defense of the note sued on was that it was given without consideration.

Three questions are presented by the errors assigned and arguments of counsel: First, that the verdict and judgment are contrary to the preponderance and weight of the evidence; second, it is urged that erroneous instructions were given by the court at the instance of defendant, appellee; and third, that a new trial should have been given on the ground that the evidence of defendant, appellee, was a surprise to the plaintiff, and on the further ground of newly discovered evidence after the trial.

The real issue of fact between the plaintiff and defendant on the trial was the want of consideration of the note sued on, and this resolves itself in the evidence to a question as to whether the old notes, executed by the Bazaar Glove Company, represented by appellee, were surrendered and given to appellee at the time he gave the note sued on. Upon that issue the burden of proving his plea by a preponderance of evidence was upon appellee. Stacker v. Hewitt, 1 Scam. 207; Mitchell v. Deeds, 49 Ill. 416; McMicken v. Salford, 197 id. 540.

We do not deem it necessary to discuss the instructions which are claimed to be erroneous, for the reason that a new trial must be given in this case, and the instructions may not again be requested or given in their present form.

On the question as to whether a new trial' should have been given, we are of the opinion that the court erred in not granting a new trial upon the showing made.

The evidence of appellee given on the trial in view of his letter written to the plaintiff, dated at Kansas City, September 30, 1906, and what had occurred between the parties, was clearly a surprise to the plaintiff. It appears very clearly that the plaintiff had no reason to believe from the relations of the parties and the letter above referred to that any such defense would be made as was made upon the trial. The affidavits in support of the motion for a new trial show clearly that the plaintiff after the trial discovered new evidence, which, in connection with the evidence already given, would demonstrate to the court and the jury that the defense to the note was without mer-it. Wilday v. McConnel, 63 Ill. 278; Hewitt v. Hexter & Co., 39 Ill. App. 585; Holbrook v. Nichol, 36 Ill. 161; Mitchell v. Nelson, 142 Ill. App. 534; Davis v. Moberly, 65 id. 528.

In our opinion upon the showing made in the record, an unjust judgment has been obtained in this case, and a new trial should be awarded. The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


author: Mb. Justice Smith

text:
    Marie A. Fellows-Kimbrough, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,905.
    1. Evidence — what improper cross-examination. In an action on the case for personal injuries, held, that it was improper upon cross-examination to permit the plaintiff to show that people gathered at the scene of the accident and were threatening to mob the motorman for what he had done.
    2. Evidence — what' improper cross-examination. It is error for the court ot permit counsel by cross-examination to attempt to insult, brow-beat and degrade a witness.
    3. Evidence — what does not cure improper cross-examination. An instruction which withdraws from the consideration of the jury matters improperly elicited upon cross-examination, does not cure the error if prejudice notwithstanding must have resulted.
    4. Evidence — duty of court to regulate cross-examination. It is the duty of the trial court so to regulate a cross-examination as to prevent improper prejudice resulting and a failure to perform this duty is ground for reversal.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 14, 1911.
    JohN E. Kehoe and C. LeRoy BeowN, for appellant.
    BbaNdt & PIofemaN, for appellee.
   Mb. Justice Smith

delivered the opinion of the court.

Appellee brought an action on the case against appellant for damages on account of personal injuries alleged-to have been sustained September 5, 1907, in a collision between a north bound Indiana avenue car and an east bound Thirty-fifth street car. Appellee was a passenger on the Thirty-fifth street car. The collision appears to have been caused by a metal finger on the controller of the Indiana avenue car coming loose which rendered it impossible for the motorman to shut off the electric current in the usual way.

It is unnecessary for us to set out the substance of the eleven counts in the declaration or to state the evidence in the case, for the reason that independent of the issues and the evidence we must reverse this judgment because of the improper conduct of the plaintiff’s attorney during the trial, which was so reprehensible as to show us that the trial was not fairly conducted.

In the cross-examination of the motorman of the Indiana avenue car, plaintiff’s attorney brought out over the defendant’s objection that people gathered at the scene of the accident and were threatening to mob the motorman for what he had done. The record shows:

Q. “Don’t you know, after this accident happened, the people that gathered there were going to mob you for what was done there?
Mr. Kehoe: I object to that.
The Court : Sustained.
Mr. BraNdt: Q. Was there a large crowd of people there?
The Court : I think if there is any error in the matter it is done by the question. He may answer. Objection overruled.
To which ruling of the court the defendant excepted.
A. Yes, there was quite a number of colored people around there acted mad.
Q. Did any of them say anything to you?
Defendant objected. Objection overruled and exception by defendant.
A. Yes.
Q. Did you say anything to them?
Defendant objected. Objection overruled. To which ruling of the court defendant excepted.
A. No.”

Later in the cross-examination of this witness he testified it took some time to think about the use of the air brake and said, “You can’t do it within a second.” Counsel for the plaintiff, under the guise of a question, then said to the witness, “You haven’t got a very good thinking apparatus anyhow, have you?” The defendant entered an objection which was sustained by the court.

Further on in cross-examination plaintiff’s attorney declared, “You ran on and struck this other car, as you said, without shutting it off at any time, because you couldn’t think.” Defendant objected and its objection was overruled, and the defendant excepted. This latter declaration does not purport to be in the form of a question. It was not based upon anything the witness had said. It was purely and simply an attempt to insult, brow-beat and degrade the witness.

This witness further testified that he was not at the time of the trial in the employ of the defendant and that he felt no interest in the case, whereupon plaintiff’s counsel said to him, “You know it is claimed that in tMs case it was through, your fault that that woman was permanently and seriously injured.” The defendant objected, the objection was overruled, and exceptions were duly preserved. Thereupon the plaintiff’s attorney said, over objection which was overruled, the following: “Do you care whether the jury believe you were to blame or not?” The record shows that plaintiff’s attorney persisted further on this line, and asked in various forms whether the witness wanted the jury to find he was in fault or wanted to be blamed for the accident.

In our opinion, this examination was wholly unwarranted and should not have been allowed by the court. The rulings of the court during the examination were erroneous.

In the cross-examination of the defendant’s expert witness Magill, he testified that the fingers in the controller box were necessarily attached by screws and that rivets were not a proper attachment, for several reasons, and that if the rivets were used it would damage the construction of the controller to get at the fingers. Plaintiff’s attorney exclaimed to the witness: “Suppose you did destroy the controller, wouldn’t that be better than to destroy a lot of human lives?” To this the defendant objected and its objection was sustained. The cross-examination proceeded further and it appeared the use of rivets was impossible, whereupon the plaintiff’s attorney said: “Then the idea was to take the risk of the thing coming unscrewed for the sake of using that kind of an apparatus.” To this objection was made and sustained.

In the cross-examination of several witnesses who testified as to the plaintiff’s talk after the accident, plaintiff’s counsel constantly accused the witnesses of expecting to be paid large sums of money. Many of these witnesses were from the lower walks of life. The witnesses were excluded from the court room while others were testifying, and several times when a witness came in from the hall where he had been waiting, defendant’s attorney took his hat. On one of these occasions plaintiff’s attorney exclaimed: “I think the taking care of these hats onght to he stopped. I wish yon wouldn’t put them under my nose anyway. If you insist upon taking care of them put them somewhere else.” And later on when the attorney for the defendant took the hat of another witness, plaintiff’s attorney said: “Are you obliged to act as if you were in a barber shop?”

It is hardly possible for a more incurably erroneous and outrageous cross-examination to occur than the cross-examination as to the gathering of the mob at the scene of the accident. It was well calculated to prejudice the jury, and no course of action could be more calculated to prejudice the jury 'than such a cross-examination of the witnesses. It is a common thing for people to think that the spontaneous conduct of those at the scene of an occurrence like this, constitutes evidence as to whether or not an actor in that occurrence is culpable, and the jury were doubtless ready to accept the action of the mob as indicative of the condemnation that should be placed upon the transaction by them.

. A similar question arose in Chicago City Railway Co. v. Uhter, 212 Ill. 174. In that case upon the cross-examination of a witness the plaintiff’s attorney asked whether a policeman did not cause the arrest of the conductor and motorman of the car involved in the accident. That cross-examination was objected to but the trial court overruled the objection. The Supreme Court in reversing the judgment said: “This evidence in regard to the arrest was improperly admitted by the trial court. There was no charge of wilful and wanton conduct on the part of the motorman and the conductor in the declaration, but only the charge of ordinary negligence-on tie part of tie company. Tie admission of .tiis evidence tended to make tie impression npon tie minds of tie jury tiat tie motorman and conductor iad been guilty of committing an act which was criminal in its nature, and as tie verdict of tie jury before its reduction by remittitur was $12,500, it may be tiat tie jury came to tie conclusion, in view of tiis evidence, tiat tiey iad a riglit to award punitive damages. Tie theory upon which tie introduction of tiis testimony is sought to be justified is that tie officer’s act in making tie arrest was part of tie res gestae. It cannot be so regarded.”

In Chicago City Ry Co. v. White, 110 Ill. App. 23, a witness" testified, over repeated objections and exceptions by counsel for defendant, to a conversation with tie conductor immediately after tie accident. Tiis conversation was in tie nature of a protest by a passenger against tie conduct of tie conductor in putting tie plaintiff off- the car. After tie witness iad testified to an angry protest in tiis conversation tie evidence was stricken out by tie trial court. Tiis court held tie evidence was manifestly incompetent, and tiat its being brought before tie jury was so manifestly prejudicial tiat tie judgment must be reversed, even though tie evidence was afterwards stricken out. In reversing it tie court said: ‘£ Such testimony may influence tie jury notwithstanding tie efforts of the trial court to contradict it,” citing many authorities.

In tie case at bar tie court overruled tie defendant’s objection to tie inquiry as to tie mob, not because tie court thought tie inquiry was proper, but because, as tie court expressed it, tie harm was done by asking tie question. Tie admission of tie evidence did not cure tie harm or correct tie error, but, in our opinion, emphasized it. Tie error was not cured by tie instruction given to tie jury withdrawing from tie consideration of tie jury what was said by bystanders, The striking out of suck evidence or the withdrawal of the same from the jury.cannot remove from the minds of the jurors tke effect of the evidence, nor can the conduct of plaintiff’s counsel in bringing out such circumstances on the trial be cured by the proper rulings of the trial court. The court has power to control counsel in the trial of a cause, and it is as muck its duty to exercise a proper control over counsel in the conduct of a case as it is to discharge any other duty devolving upon the court. Where the court fails to properly control counsel either in the examination of witnesses or in arguments to the court and the jury, and it is apparent that the misconduct of the counsel is calculated to prejudice the jury, or where the counsel suggests facts in questions not proven by the evidence, which are calculated to prejudice the jurors in their consideration of the case, it is the duty of this court to interpose and prevent the success of such methods by setting aside the verdict.

As said in West Chicago Street R. R. Co. v. Johnson, 69 Ill. App. 147:

“A proceeding under tke law to enforce a rigkt or give redress for a wrong, kaving as its result tke taking from one man kis money or property and conferring it upon anotker, is always a matter requiring tke most solemn and deliberate consideration by tke tribunal entrusted with suck duty and responsibility. Tke purpose, in part, for wkick courts are established, is tkat justice shall be administered, not alone with impartiality but in an orderly manner, and whatever tends to thwart suck an administration of justice operates to deprive tke party to tke suit of kis rigkt to due process of law.”

In Chicago & Alton R. R. Co. v. Scott, 232 Ill. 419, the court said:

“A court owes a duty of protection to witnesses and parties, and especially to witnesses, and hearing an attorney, under the guise of argument, abusing his privilege, should, either upon objection or its own motion, check'the attorney, and not only do that hut preserve the dignity of the court by compelling obedience to its order.” (3 Enc. of PI. and Pr., 750.)
“It is the duty of a court to preserve its own dignity and the respect due to the court and the administration of the law by not allowing an attorney, under the pretense of arguing the case, to indulge in the abuse of parties or witnesses.” City of Salem v. Webster, 192 Ill. 369.

The power vested in the court should have been promptly used in this case at the outset by stopping the line of examination and the manner of it upon which the attorney had entered, and affirmatively endeavor to remove the prejudice excited by his language. The court failed in its duty, and the mere sustaining of objections was no adequate remedy for the evil done. As was said'by the Supreme Court of Wisconsin in Sullivan v. Collins, 107 Wis. 291:

‘ ‘ The least that a self respecting court can do under such circumstances is to stop such practice in the presence of the jury, and not allow it to proceed with simply a perfunctory sustaining of objection.”

To the same effect are numerous other cases, among which may be cited, I. C. R. R. Co. v. Seitz, 111 Ill. App. 242; Pittsburg C. C. & St. L. R. R. Co. v. Warren, 64 Ill. App. 584; C. C. Ry. Co. v. Barron, 57 Ill. App. 469; C. C. Ry. Co. v. Ahler, 107 Ill. App. 397, and Maxwell v. Durkin, 185 Ill. 546.

For the error of the court in' allowing the misconduct of the plaintiff’s attorney on the trial of this case and for the error in its rulings indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Susie Hickey Johnson, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,918.
    1. Instructions — when limitation as to theory of recovery proper. If the plaintiff relied upon a single ground of recovery in his declaration, notwithstanding the evidence may show other grounds of recovery, the court should by instruction limit the right of recovery to the single ground relied upon.
    2. Instructions — when modification as to exercise of ordinary care erroneous. To modify an instruction upon this subject so as to require the exercise of ordinary care with respect to a state of facts not alleged in the declaration is to render it both meaningless and erroneous.
    3. Instructions — when refusal as to burden of proof erroneous. It is error to refuse instructions which give the law to the jury as to tho burden of proof and the preponderance of evidence upon the material issues in the case submitted to them if the subject-matter of such instructions be not covered by other instructions given.
    4. Instructions — when refusal as to preponderance of evidence erroneous. If an instruction is refused which tells the jury that the number of witnesses is to be considered in determining where the preponderance lies, error is committed if no other instruction covers the same subject, and if in the ease in question the number of witnesses testifying to a particular issue is greater upon one side than upon the other.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthild, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 14, 1911.
    William RothmanN and C. LeRoy Brown, for appellant.
    George E. Gorman, for appellee; Frank Lummers, of conns el.
   Mr. Justice Smith

delivered tlie opinion of the court.

Appellee, Susie Hickey Johnson, sued appellant, Chicago City Railway Company, for damages on account of personal injuries alleged to have been sustained by falling from the rear platform of a street car.

The declaration contained one count. It alleged that plaintiff was a passenger on a west bound street car of defendant on 35th street, Chicago, and that she requested the conductor to stop the car at Hermitage avenue; that the car stopped at that street in response to the plaintiff’s request, and while the plaintiff, with all due care, was in the act of stepping, from the car, the defendant negligently and improperly caused the car to start in motion, whereby the plaintiff was caused to fall from the car to the ground.

Evidence was given on behalf of the plaintiff tending to support the averments of the declaration.

The defendant’s testimony tended to show that while the car was running between Paulina street and Hermitage avenue the plaintiff went out on the rear platform and indicated to the conductor, who was inside the car, that she desired to alight at Hermitage avenue. The car duly stopped at Hermitage, but before it came to a stop, and when it was about ten feet east of the place where it stopped at the west side of Hermitage, plaintiff fell or was thrown from the car.

Appellant urges that the verdict was the result of flagrant errors in instructions, and in the admission of improper evidence.

Appellant requested, but the court refused to give, the following instruction:

“No. 26. The only negligence which the plaintiff in her declaration charges against the defendant is that while the car was standing still, and while the plaintiff was in the act of alighting therefrom, the defendant caused said ear to start in motion, thereby causing the plaintiff to fall. These facts must therefore be proven, by the preponderance of the evidence, and unless they have been so proven, the plaintiff cannot recover, even if you should believe, from the evidence, that defendant ’s servants were negligent in some other respect.
If, therefore, you believe from the evidence that the car did not stop until after the plaintiff fell, you should find the defendant not guilty. ’ ’

The negligence alleged was that appellant negligently caused a standing car to start in motion while the plaintiff was in the act of alighting therefrom. The version and theory of the appellant was that plaintiff stepped from the car before it came to a stop. Plaintiff could recover only on the theory of her declaration, even though the car might have been negligently managed in some other respect. Hence the appellant was entitled to have the jury instructed that if they believed from the evidence the injury was not sustained in the manner alleged, the verdict should he not guilty. This was clearly stated in the instruction refused by the Court. Counsel for appellee contends, on various grounds, that this instruction should not have ¡been given. We do not agree with these contentions. The instruction was correct and should have been given. Chicago City Ry. Co. v. Gates, 135 Ill App. 180; Ebsery v. C. C. Ry. Co., 164 Ill. 518; Kaukusch v. C. C. Ry. Co., 153 Ill. App. 454; Kokoshkey v. C. C. Ry. Co., 162 Ill. App. 613.

Appellant requested the following instruction and the court gave it after modifying it by inserting the words shown in italics:

“No. 12. If you believe from the evidence, that the plaintiff attempted to alight from the car in question before it came to a stop, and that it did not come to a stop until after she had fallen to the ground, and that her fall and injury were due to that fact, and that in so doing she failed to exercise due and ordinary care for her own safety then the jury are instructed that the plaintiff cannot recover in this case and your verdict should be not guilty.”

The instruction was proper as requested. The modification was erroneous in that it required the jury to find that the plaintiff failed to exercise due and ordinary care for her own safety with reference to a state of facts not alleged in her declaration, and thereby made the instruction meaningless as applied to the facts of this case.

The trial court refused the following instructions requested by appellant:

“No. 28. The jury are instructed that the plaintiff cannot recover at all in this case against the defendant unless you believe that the plaintiff has proved by a preponderance of the evidence each of the following propositions:
“1. That the plaintiff sustained injuries as charged in the declaration;
“2. That the alleged injuries of which plaintiff now complains were not brought about or contributed to by any failure on her part to exercise ordinary care for her own safety at and just before the time of the accident in question;
“3. That the defendant was guilty of negligence in the manner charged in the declaration;
“4. That such negligence of the defendant was the proximate, direct cause of the plaintiff’s alleged injuries in question;
“And if you find, from the evidence, that the plaintiff has failed to prove, by a preponderance of the evidence, these propositions as stated, or that she has failed to so prove any one of them, she cannot recover against the defendant and you should find the defendant not guilty. ’ ’
“No. 29. You are instructed that you are not at liberty to guess or conjecture about the amount of actual damages, if any, suffered by;the plaintiff; you can allow her for no item of actual damages which has not been established by a preponderance of the evidence in the case even though yon should find the defendant guilty. If you should find the defendant not guilty, from the evidence and under these instructions, then and in that case you will have no occasion at all to consider the question of damages.”

These instructions would have given the law to the jury as to the burden of proof and the preponderance of the evidence upon the material issues in the case submitted to them. No instruction was given comprehensively stating the necessary elements going to make up the plaintiff’s case and the burden of proof thereon. No instruction was given stating that the burden of proof was on the plaintiff to establish the existence of the injuries claimed by a preponderance of the evidence.' Instruction 11, if given as requested, would have told the jury that the plaintiff was required to establish by a preponderance of the evidence that the cause of the alleged injury was the negligence of the defendant. But it did not, as tendered or as modified by the court, state that the general burden of proof was on the plaintiff. These instructions should have been given, and to refuse them was reversible error.

Appellant requested the court to give, but the court refused, the following instruction:

“No. 24. The court instructs the jury that the burden of proof is not upon the defendant to. show that it is not guilty of the negligence charged in the declaration, but the burden is upon the plaintiff to prove that the defendant is guilty, and also to prove that the plaintiff herself was in the exercise of ordinary care for her own safety, and that this rule as to the burden of proof is binding in law and must govern the jury in deciding this case. The jury have no right to disregard said rule or to adopt any other in lieu thereof, but in considering the evidence and coming to. a verdict, the jury should adhere strictly to this rule.”

In Chicago Union Traction Co. v. Mee, 218 Ill. 9, it was held reversible error to refuse this instruction.

The court refused to give instruction 23 requested by the defendant, wbicb was as follows:

“No. 23. The jury are further instructed that the number of credible and unimpeached witnesses testifying on the one side or the other of a disputed point is a proper element for the jury to consider in connection with all other facts and circumstances in evidence, in determining where lies the preponderance of the evidence. ’ ’

No instruction was given which told the jury that the number of witnesses was to be considered in determining where lies the preponderance. In Chicago U. T. Co. v. Hampe, 228 Ill. 346, the judgment was reversed in part for the giving of an instruction stating that the preponderance is not alone necessarily determined by the number of witnesses testifying to a particular fact or state of facts, and then enumerating the various matters proper to be considered by the) jury in determining on which side the preponderance of the evidence is, but omitting all reference to the number of witnesses testifying. In Elgin, Joliet & E. Ry. Co. v. Lawlor, 229 Ill. 621, the court held that the number of witnesses was one of the things the jury w)ere bound to consider. By instruction 4 given at the request of the plaintiff, the jury were instructed that the weight of the testimony did not necessarily .depend on the greater number of witnesses sworn on either side of a question in dispute. This made it all the more necessary and proper for the jury to be advised (that the number of credible and unimpeached witnesses testifying on the one side or the other of a disputed point,, was a proper element for the jury to consider in connection with all other facts and circumstances in evidence.

We are of the opinion that the first instruction given at the request of plaintiff is too broad, in that it held the appellant as a carrier of passengers responsible “for the slightest neglect resulting in injury to the passenger, if the passenger is at the time of the injury exercising ordinary care for her safety,” regardless of whether the neglect was charged in the declaration or not. It further says, “this care applies alike to the employment of skillful and prudent operators, and the faithful performance by them of their respective duties.” No averment of the declaration presented any question of negligence as to the employment of skillful and prudent operatives. “It is elementary that recovery can only be had on the negligence charged in the declaration.” Ratner v. Chicago City Ry. Co., 233 Ill. 169: Elgin, A. & S. T. Co. v. Brown, 129 Ill. App. 62.

For these errors in instructions the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    Elizabeth Griffith Heatley, Executrix, Appellant, v. The George A. Fuller Company, Appellee.
    Gen. No. 15,789.
    Master and servant — when former not required to furnish safe place. If the character of the work is such that changes in the conditions surrounding the servant are essential and necessarily result, the responsibility for the safety of the servant resulting from such changes is not with the master but is an incident of the servant’s employment.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 14, 1911.
    CalhoitN, Lyeord & Sheean, for appellant; Edward W. Rawlins, of counsel.

      Elbridge HaNeqy, P. J. Canty and J. C. M. Clow, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by appellant ag’ainst ap-pellee for wrongfully causing the death of plaintiff’s testator. Upon the trial at the close of plaintiff’s evidence the trial court peremptorily instructed the jury to find the defendant not guilty, and entered judgment upon the verdict returned in accordance therewith.

The declaration consisted of four original and four additional counts. Upon examination of the different counts in the declaration we think they all set out substantially the slime negligence.

In the first count, which may be taken as a fair sample of all as to the negligence averred, it is alleged that the defendant was engaged in the erection of a certain building, and that it erected and constructed, or caused to be erected and constructed, a certain temporary platform, framework, staging or scaffolding; that the deceased was in the employ of the defendant as a carpenter and was then and there working about said building; that it became necessary for Heatley, the deceased, in the performance of his duties to go and be upon said temporary platform, framework, staging or scaffolding; that it was the duty of the defendant to exercise reasonable care to furnish said deceased with a reasonably safe and suitable place to perform his duties as such servant, and to keep and maintain said platform, framework, staging or scaffolding at all times in a reasonably safe and suitable condition; that the defendant negligently failed and neglected to perform its said duty, and carelessly permitted and allowed said platform, framework, staging or scaffolding to become, be and remain in an unsafe and dangerous condition, and that while the deceased in the exercise of ordinary care for his own safety, went and was upon the temporary platform, framework, staging or scaffolding lie was caused to fall and received injuries from which, he died, by reason of the unsafe and dangerous condition of the scaffolding.

The evidence of the plaintiff in the action tended to show the following facts:

At the time of the accident, September 4, 1907, the deceased, Thomas Heatley, was in the employ of the appellee, the George A. Fuller Company, as carpenter, and was working at the Montgomery Ward building, which was being constructed by appellee at the corner of Chicago avenue and Larrabee street, adjoining tlje Chicago river, in the city of Chicago. The building was about 600 feet long from north to south and about 200 feet wide from east to west and was to be constructed about eight stories high. The west side of the building adjoined the Chicago river. The building was being constructed of reinforced concrete construction, and at the time in question the second floor had been completed, and Heatley and his companions were at work on the third floor, under the direction of ap-pellee’s foreman, John O’Toole, laying panels or frames into which the concrete for the floor was to be poured. The floor of the building was divided by the main girders of the building into squares or sections 16 feet square and in each of these squares 2 by 10 joists were laid, four in number, dividing the sections into equal spaces each a little more than three feet wide. Upon these joists panels were laid, each panel being 4 feet wide and 16 feet long. Four of these panels would completely fill the square or section. Hpon these panels in each section cement would be poured until it completely filled the section and would be six or eight inches deep. These joists and panels and in fact the entire wood construction were merely temporary, and, as soon as the cement had sufficiently hardened, the joists, panels and wood construction would be taken ont. The sections in the row along the west side of the building were not square, because the west side of the building following the line of the river and the west wall instead of running directly north and south ran northwest and southeast. This made the east and west dimensions of the sections in the row on the west side of the building vary, some of the sections being less than 16 feet from east to west while others were somewhat more than 16 feet. The north and south dimensions of all the sections were the same. It was through one of these river sections that the deceased fell. Some of the sections on the third floor where deceased was working had already been filled with cement and had hardened or were in process of hardening. In others the joists and panels had already been placed ready to receive the cement, while in others only the joists had been placed and had no panels in them at all.

The deceased at the time of the accident was working with a gang of carpenters engaged in placing and fitting panels into the sections, making them ready to be filled with cement. At the time of the accident he with three other men was carrying one of the panels to the section which he was helping to prepare. As they carried this panel the deceased and one of the other men were at the front end of the panel and two others at the rear end of it. The deceased occupied a position at the right front corner. As he approached his section carrying this panel he stepped upon one of the 2 by 10 joists which was in a section immediately adjoining the one upon which he was engaged, the joist turned with him, he lost his balance and fell to the.floor below. At the very time that he approached the place where he fell and the joist upon which he stepped, two carpenters were actually engaged at work upon the joist, one of them at one end and one at the other. Everything there was in plain sight and -immediately before deceased’s eyes. It was broad open daylight. It was the top floor of the building as it then stood, with no structure or construction of any kind, built above the floor. The two men working on the particular joist were sitting on top of it, one at either end of the joist, and were actually working on it at the time that the deceased stepped on the joist and fell.

The contentions are that the court erred in instructing the jury to find the defendant not guilty, and erred in overruling plaintiff’s motion for a new trial.

It appears from the theory of the case as set out in the various counts of the declaration, that the defendant was negligent in constructing and maintaining the scaffolding or platform upon which the deceased was at work, and that the defendant was also negligent in not giving the deceased a safe place in which to work. Upon that theory of the case the authorities cited by counsel for appellant are in point, for it is no doubt a sound proposition of law that if the master provides a platform or staging or scaffolding for his employes to work upon, it is his duty to make such structure reasonably safe for the purpose of use by his servants; and if the evidence proved the averments of the declaration the plaintiff would undoubtedly have a right to recover, and the court erred in taking the case from the jury. But, in our opinion, the evidence does not tend to show that the defendant had erected any scaffolding, platform or other structure designed for the purpose of furnishing a reasonably safe place for its employes, including the deceased, to work. On the contrary, the evidence without contradiction or controversy shows thnt the building was in process of construction and had progressed to the third floor, and that the workmen were engaged in the construction of the third floor of the building; that no scaffolding, platform or other structure was erected for the purpose of giving the workmen a reasonably safe place to work upon, but that the joists were being placed in position for the purpose of constructing and supporting the panels into which the cement was to he poured in the regular construction of the building. The evidence clearly shows that the men who were at work upon the joists upon which the deceased stepped, just before he fell, were engaged in lengthening the joist in order to make it long enough to construct one of the irregularly shaped panels, and at that time they were actually at work upon the joist for that purpose. It is true that the evidence shows that this joist had been made fast at one time, but, by order of the foreman it was loosened up and the cleats taken from it for the purpose of lengthening it, and the men were at the moment of the accident actually at work upon the joist, one at each end of it. This was apparent to the deceased as it was to everybody, and was simply one of the processes of construction which had to be used in making the irregular panels on the west side of the building.

The evidence therefore fails to support the aver-ments of negligence in the declaration, and for that reason there can be no recovery. An additional reason for denying the right of recovery in this case is, the defendant was not required, in the actual construction of the building, to observe the care, vigilance and diligence that would have been laid upon it had it constructed a platform, staging or scaffolding upon which the men were to work.

In Village of Montgomery v. Robertson, 229 Ill. 466, the court said:

<«q^ere is a general rule that a master must exercise reasonable care to furnish a reasonably safe place for his servant to work, but that rule is subject to limitations and exceptions. One exception universally recognized is that the general rule does not apply where the conditions are changed from time to time in the prosecution of the work. If the nature of the work is such as to produce changes and temporary conditions in the place where the work is performed the rule does not require the master to keep the place reasonably safe under such changed conditions which the work renders necessary. (Thompson on Negligence, Section '3876.) In such a case the master does not make or create the place or conditions hut they are created by the progress of the work and the workmen engaged in it. In this case the removal of the gravel created the attendant dangers, and while the master might become liable for an injury on account of some other fault or neglect he would not be liable under the rule here invoked. A master cannot be held to make a gravel pit safe for employes from moment to moment when the natural support of the bank is being constantly removed.”

In Falkenau v. Grinley, 131 Ill. App. 399, 404, the court said:

“The same rule which governs the tearing down of a building is equally pertinent to one in process of construction. As was said in Western Wrecking Co. v. O’Donnell, Admr., 101 Ill. App. 492: ‘The work of tearing down an old building is necessarily attended with danger, and the rule that it is incumbent upon the master to furnish the servant a reasonably safe place in which to do his work does not apply.’ It is plain that in the construction of a building there are many dangers to be encountered until final completion, and the safe place rule as to the contractor for construction does not apply during the process of building.”

In McCain Co. v. Kingsley, 126 Ill. App. 165, the plaintiff was injured by a column rolling over on him which he claims negligently rested on a piece of wood forming a bearing, which had been insecurely and improperly placed. The court held that a verdict should have been directed for the defendant, and said among other things:

“The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not oblige him to keep the building that they are employed in erecting in a safe condition at every moment of their work so far as the safety depends upon the due performance of that work by them and their fellow servants.”

To the same effect are Armour v. Hahn, 111 U. S. 313; Murphy v. Greeley, 146 Mass. 196; and Richardson v. Anglo-American Provision Co., 72 Ill. App. 77.

We think it clearly appears from the evidence that the defendant violated no duty to the deceased. It further appears that the deceased was himself guilty of negligence in stepping upon a joist upon which two men were actually at work putting it in place. He was so close to one of the men who was working upon the joist that he cautioned him to “look out or I will knock your head.” This remark shows very conclusively-that the deceased saw the man, knew where he was, knew what he was doing, and negligently stepped upon a loose joist which the man was putting in place.

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

Affirmed.