text:
    William H. Selby et al., Appellants, v. Amanda Summers et al., Appellees.
    Gen. No. 6,340.
    1. Wills, § 360*—what estates created, by. On a bill for an accounting based upon the construction of the last will of a testator whereby the complainants claimed that the testator bequeathed a life estate in personal property to his widow, with remainder to his children, and where the widow had by her last will devised real estate purchased with the proceeds of a sale of such property to certain of her children to the exclusion of the complainants, and such provision in question was in two parts, the first devising a life interest in realty, and the second was as follows: “I also will and bequeathed unto her [the wife] all my household goods, personal property and money,” held that the two clauses were distinct and separate and that one devised the realty with a life estate limitation, and the other bequeathed the personalty and money absolutely.
    2. Wills, § 364*—when life estate not created in personalty. A provision in a will as follows: “Second: I will and bequeath unto my wife, * * *, for and during her natural life, the northeast quarter of section three, in township nine north, range three east, in * * *. I also will and bequeath unto her all my household goods, personal property and money,” construed in connection with a provision in another paragraph, that if, after the death of the widow, any of the personalty should remain not used or disposed of, it should go to the children of the testator, and held that the conjunctive word “also” did not connect the words of limitation—which definitely referred to the realty—with the separate and distinct bequest of the personalty, and that by the second clause of the second paragraph the testator bequeathed to his widow the absolute ownership of the personalty therein mentioned.
    3. Wills, § 247*—when disposition of remainder in personalty is void. Where, by the terms of one of the paragraphs of a will, personal property was bequeathed absolutely to the widow of the testator, and in a subsequent paragraph the testator directed that if, at the death of the widow, any of the personalty should remain unused or not disposed of, it should go to the children of the testator, held that the disposition of the remainder after the widow’s death was void.
    4. Wills, § 327

      —when ownership of property disposed of by will is implied. The right to dispose of property in a will without words of limitation legally implies ownership.

      Appeal from the Circuit Court of Knox county; the Hon. Geobge W. Thompson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    E. T. Morrison, Joseph Crow, C. D. Hendryx, Charles Dickerson and Gurley & Fitch, for appellants.
    Chiperfield & Chiperfield and Williams, Lawrence, Welsh & Green, for appellees.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Knox county, sustaining the demurrer to a bill brought by William H. Selby and others, appellants, against Amanda Summers and others, appellees, for an accounting, based upon the construction of the last will of Philoman B. Selby, deceased, by which it is claimed, that the deceased testator bequeathed to his widow, Elizabeth Selby, his household goods, personal property and money, for life, the remainder, after her death, to be equally divided among his children, or their descendants, share and share alike. The bill alleges that the widow, under the provisions of the will, received the personal estate of the testator, which amounted to about $40,000; and that, by changing the character of the investments and reinvesting the estate, it grew to be of the value of about $60,000 at the time of her death, which occurred on or about March 25, 1904; that a large part of the money which she received under the will she invested in real estate, the title to which she acquired in her own name; that the widow undertook to dispose of her personal property and the real estate purchased therewith, and the increments thereof, by her last will, to her daughters, Amanda Summers, Salina Clark and Buth Bigelow, who are the appellees; that the appellants are not informed as to how much of the personal estate or money was used for the purchase of real estate, but aver that some of the real estate acquired by her was partly purchased with the money and personal property of the estate of the deceased testator; and some was entirely purchased with such money and property; and claim an interest in said real estate to the extent that the personal estate of Philoman B. Selby was used and entered into the purchase price thereof, and ask for an accounting, both with reference to the personal property remaining at the time of the death of the widow, which it is alleged passed into the hands of the appellees; and also with reference to the interest claimed in the real estate, which was purchased, in whole or in part, by the personal estate of the deceased testator.

Appellants have no right to an accounting, if the widow, by virtue of the provisions of the will, became the absolute owner of the personal property. Appellants contend that a proper construction of the will requires that the second and the sixth paragraphs of the will to be considered together, to arrive at the intention of the testator; and that when considered together they show that the testator, by the second paragraph, intended to bequeath to his widow a life interest only in the personal property mentioned therein. The paragraphs are as follows:

“ Second. I will and bequeath unto my wife, Elizabeth Selby, for and during her natural life, the northeast quarter of section three, in township nine north, range three east, in Knox County, Illinois. I also will and bequeath unto her all my household goods, personal property and money.”
Sixth. After the decease of my wife, Elizabeth Selby, if any of the proceeds of my personal estate shall remain not used or disposed of by her, I will and direct that the same shall be equally divided between my children and their descendants, share and share alike. If they are dead, the descendants to take a child’s parti”

The two clauses contained in the second paragraph are distinct and separate, and pertain to different subjects; the one devises the real estate, with the limitation embodied in the words “for and during her natural life”; and the other bequeaths the personal property and money, without any words of limitation whatever. It is claimed by appellants, that because the two clauses are connected by the conjunctive word “also” that this connects the bequest of the personal estate with the limitation “for and during her natural life,” contained in the devise of real estate in the first clause. From a grammatical, as well as from a legal standpoint, it is apparent, however, that the only purpose of the conjunction is to connect the two clauses together as the provisions made by the testator for the widow; and not to connect the words of limitation (which definitely refer to the real estate) with the separate and distinct request of the personal property. It is evident, too, that the two clauses could be separated and placed apart in different parts of the will without changing or impairing the meaning or significance of either; and this of itself shows that, in meaning and effect, they are entirely independent of one another.

We are of opinion that by the second clause of the second paragraph the testator bequeathed to his.widow the absolute ownership in the personal property mentioned therein. It is difficult to see how the testator could have used language to dispose of his personal property that would more clearly signify unconditional ownership.

If, however, the sixth paragraph is considered in connection with the second clause of the second paragraph, it becomes apparent at once that the testator had in mind that he had given his widow the right to dispose of the personal property as she might see fit. This idea could only come from a contemplation of the terms of the second clause—there being no other words in the will from which the right to dispose of the property could be inferred; and the only right to dispose of the property which can be inferred from the second clause is such as would be incidental to ownership. Necessarily, therefore, he must have thought that by the terms of the second clause he had invested his widow with the ownership of the property bequeathed to her. The right to dispose of property in a will without words of limitation legally implies ownership. Hamlin v. United States Exp. Co., 107 Ill. 443; Wilson v. Turner, 164 Ill. 398; Burton v. Gagnon, 180 Ill. 345. Nor is the force of the feature of the sixth paragraph above mentioned in any way diminished by the fact that in the same paragraph the testator directs a distribution of the personal property which might remain after the widow’s death.

If the widow took the personal property under the provisions of the will, as absolute owner, then the disposition of the remainder after the widow’s death, to the children or descendants, in the sixth paragraph of the will, was void, and did not change the character of the original bequest. It is said in 2nd Jarman on Wills (5th Amer. Ed.), page 529, note 19: “In general, a gift over by remainder or otherwise, after an absolute legacy or devise in fee, of whatever may remain if the first legatee or devisee die without having disposed of it, is repugnant to the nature of the estate or interest first given, and void.” And this doctrine has réceived sanction by our Supreme Court. (Wilson v. Turner, supra; Griffiths v. Griffiths, 198 Ill. 632; Lambe v. Drayton, 182 Ill. 110; Jenne v. Jenne, 271 Ill. 526.)

We conclude, therefore, that not only by the express terms of the will, but also by the manifest intention of the testator, as it appears from the language of the sixth clause, Elizabeth Selby was the absolute owner of the personal property bequeathed to her; and that by her last will the property passed to Amanda Summers, Selina Clark and Ruth Bigelow, the appellees; and the appellants, under the averments of their bill, had no right to compel the appellees to account. The demurrer to the bill was properly sustained.

And in this view of the matter it becomes unnecessary to discuss other questions raised on this appeal. The decree dismissing the bill is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
      Lz Medearis, Appellant, v. Michael Balenseifen, Appellee.
    Gen. No. 6,345.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Marshall county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Lz Medearis, plaintiff, against Michael Balenseifen, defendant, to recover the sum of two hundred dollars which plaintiff claimed the defendant had agreed to pay him for rebuilding a dam on a part of the farm leased by plaintiff of defendant. From a judgment against plaintiff for costs, upon denial of a motion for new trial, plaintiff appeals.
    Fred W. Potter and Barnes, Magoon & Black, for appellant.
    Henry E. Jacobs, Clarence W. Heyl and Harry. C. Heyl, for appellee.

      Abstract of the Decision.
    1. Witnesses, § 253

      —when credibility of is for jury. The weight of the evidence does not necessarily depend on the number of witnesses, but the matter of the credibility of the witnesses is also involved, and it is for the jury to determine which of the witnesses was more credible or more worthy of belief.
    2. Appeal and error, § 1411*—when verdict of jury based on conflicting evidence not disturbed. Where there is contrariety of evidence on both sides and the facts and circumstances by fair and reasonable intendment will warrant the inferences of the jury, a court of review will rarely, if ever, disturb a verdict, notwithstanding the fact that it may appear to be against the weight of the testimony so far as the number of witnesses is concerned.
    3. Appeal and error, § 450*—when improper admission of evidence may not be complained of. Error cannot be assigned on the ground of the admission of incompetent evidence where the complaining party failed to object to its admission.
    4. Appeal and error, § 1275*—when presumed that conduct of counsel was not improper. In the absence of anything in the record showing improper conduct of counsel, the court is bound to presume that such conduct was not improper and that, if it had been, a record would have been made of it.
    5. New trial, § 67*—when not granted on ground of newly-discovered evidence. A new trial will not be granted on the ground of newly-discovered evidence where the witness by whom such evidence is to be proven was present at the trial and testified on other matters, and no reason is apparent why the party could not by the exercise of proper diligence have ascertained at and before the trial that the witness possessed the knowledge.
    6. New trial, § 68*—when not granted on ground of newly-discovered evidence. A new trial will not be granted on the ground of newly-discovered evidence where such evidence is cumulative.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Anton Krayouska, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 6,351.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mines and minerals, § 186

      —when giving of instruction based on nonexistent statute as to duty of owner as to allowing employee to enter mine is reversible error. In an action for personal injuries sustained by a miner who was struck by an empty car which from some cause ran down an incline without apparently being in charge of any servant of the defendant, where one of the counts charged violation of a statute making it the duty of defendant not to allow any employee to enter the mine in question or to work therein unless he did so under the direction of the mine manager, and such statute was no longer a part of the mining law, but an instruction had been given that plaintiff had a right to recover under the allegations of this count, held that inasmuch as it clearly appeared in the evidence that the defendant did allow plaintifi to enter the mine and work therein without being under the direction of the mine manager, the jury could properly infer from such instruction that the defendant had in such respect violated a duty required of it by law and that plaintiff had a right to recover on that ground, and as the verdict may have been based in whole or in part on such erroneous idea of the defendant’s statutory duty, the giving of the instruction constituted reversible error.

      Appeal from the City Court of Spring Valley; the Hon. W. H. Hawthorne, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Anton Krayouska, plaintiff, against the Spring Valley Coal Company, defendant, to recover damages for personal injuries received while working as a miner in defendant’s coal mine. From a judgment for plaintiff for eight hundred dollars, defendant appeals.
    McDougall, Chapman & Bayne, for appellant; Mastin & Sherlock, of counsel.
    G. F. Wagner, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, anti Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

2. Mines and minerals, § 156*—when admission of evidence as to custom of miners in operation of cars is erroneous. In an action by a coal miner for injuries sustained by being struck by an empty car running down an incline in the coal mine, held that the admission of evidence concerning the habit of one of the miners to permit cars to run down the incline by force of gravity was erroneous.


text:
    Bert Biederbeck, Appellant, v. Robert Tucker, Appellee.
    Gen. No. 6,354.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Bert Biederbeck, plaintiff, against Robert Tucker, defendant, to recover one-half the expense of a fence built under the Fence Viewers’ Act, see. 8 (J. & A. if 5708), and also the fees and reasonable expenses of the fence viewers. From a judgment based on a directed verdict in favor of defendant, plaintiff appeals.
    O. P. Westervelt, Clarence W. Heyl and Harry C. Heyl, for appellant.
    R. H. Radley, for appellee.

      Abstract of the Decision.
    1. Fences, § 12

      —when fence viewers have no authority to make appraisement of damages. In an action to recover damages for building the defendant’s portion of a division line fence which was erected by the plaintiff pursuant to the decision of fence viewers appointed under the Fence Viewers’ Act, sec. 8 (J. & A. If 5708), where it appeared that the notice limited the authority of the fence viewers to determining what proportion of the fence should be maintained by each owner, and damages were assessed without giving notice for the selection of fence viewers to make the appraisement of damages, held that the fence viewers originally selected could not legally make the appraisement of the damages, because they were not selected for that purpose under- the original notice, and it was therefore necessary to give another notice to the defendant so that he would have the opportunity, which the statute contemplated, of selecting one of the fence viewers to make such appraise- ■ ment.
    2. Fences, § 12*—when fence viewers have no authority to determine character of fence to he huilt hy parties. Where a notice is given under the Fence Viewers’ Act, sec. 8 (J. & A. If 5708), for the purpose of determining the proportion of a division fence between lands which should be maintained by each owner, and the notice is limited to such purpose only, the fence viewers have no authority to determine the character of the fence to be built by the parties.
    3. Fences, § 6*—when party erecting fence entitled to recover one-half of fees and expenses of fence viewers. In an action to recover damages for building the defendant’s portion of a division line fence which was erected by the plaintiff pursuant to the decision of fence viewers appointed under the Fence Viewers’ Act, sec. 8 (J. & A. H 5708), and also to recover the fees and reasonable expenses of the fence viewers, where it was determined that the plaintiff had no right to recover the cost of the fence because notice for the appointment of appraisers to appraise damages had not been given, held that the plaintiff was, however, entitled to recover one-half the amount paid by him for fees and reasonable expenses for the fence viewers which were incurred in determining the dispute as to the proportions of the fence-to be maintained by the respective parties.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Eugene Hayden, Appellant, v. Independence J. Miller, Appellee.
    Gen. No. 6,357.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 253

      —when weight of evidence is question for jury. In an action to recover money borrowed in various items, where plaintiff testified that none had been paid and the defendant testified that all but one item of $50 had been paid, and where the verdict was for $50 and plaintiff appealed, held that the weight of evidence could only be determined by passing on the question a* to which of the parties was more worthy of belief, and that this was a question for the jury.
    2. Appeal and ebbob, § 1411*—when verdict based on conflicting evidence not disturbed as against weight of evidence. In an action to recover money borrowed in four items, where the plaintiff and the defendant testified diametrically opposite to each other on the question of payment of three of the items, held that the court could not say that the verdict for plaintiff for only one of the items was against the weight of the evidence, nor that the jury should have believed the plaintiff instead of the defendant.

      Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Eugene Hayden, plaintiff, against Independence J. Miller, defendant, to recover the sum of $725 which the plaintiff claims was borrowed from him by the defendant in four separate items. From a judgment for $50 for one of such items, plaintiff appeals.
    John B. King and Leo G. Hana, for appellant.
    Dailey & Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

3. Evidence, § 475 —what constitutes preponderance of. It does not follow as a matter of law that because two witnesses testify diametrically opposite each other concerning a matter in dispute that there is no preponderance of the evidence, but the preponderance is established when it is legally ascertained which of the two witnesses testified to the, truth.

4. Instbuctions, § 50*—when instruction on credibility of witnesses n<Jt erroneous. In an action to recover borrowed money, where the testimony of plaintiff and defendant as to the payment of various items was diametrically opposite, held that an instruction concerning the credibility of witnesses and the testimony of parties to the suit, although peculiar in language and not free from criticism, was not erroneous and could not have misled the jury.


author: Me. Presiding Justice Niehaus

text:
    A. W. Billburg, Appellant, v. August Schmid, Appellee.
    Gen. No. 6,375.
    (Not to be reported in full.)
    Appeal from the County Court of Rock Island county; the Hon. Nels A. Labson, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by A. W. Billburg, plaintiff, against August Schmid, defendant, to recover a sum of money alleged to have been taken by defendant as constable from the premises of plaintiff, From a judgment against plaintiff for costs, he appeals.
    Phillip H. Wells and Dietz & Sinnett, for appellant.
    J. T. & S. R. Kenworthy, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 469

      —when remarks in presence of jury not assignable as error. Misconduct of a party and a third person consisting of remarks derogatory to the other party in the presence and hearing of the jury during the temporary absence of the trial judge cannot be assigned as error where the attention of the trial judge was not called to such misconduct, so as to enable the court to counteract whatever prejudicial effect the making of such remarks might have had upon the jury.
    2. Sheriffs and constables, § 80*—when evidence insufficient to sustain verdict for defendant in action for money taken from plaintiff. In an action against a constable for money claimed to have been taken from the premises of the plaintiff, where it appeared that the defendant, while serving a search warrant, possessed himself of a large part of such money and that, although he did not claim the money as his own, or that he had any other right' to it, he refused to return it to the defendant on the ground that he did not know to' whom it belonged and that a party other than the plaintiff also claimed it, held that if such other party had made any legal claim for the money and the defendant had really been in doubt a, bill of interpleader should have been filed, or he should have produced such other party as a witness, and that the verdict in favor of the defendant was against the weight of the evidence.

      See Illinois Notes Digest, Yol*. XI to XV, and Cumulative Quarterly, same topic and section number.

   Me. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Clarence E. Higgins, by Grace Higgins, Conservator, Appellant, v. Midland Casualty Company, Appellee.
    Gen. No. 6,378.
    1. Insurance—when injury not due to accident. In an action to recover upon an accident insurance policy, under the terms of which recovery could only be had if the injury was the result of accident, and where it appeared that the injured person suffered sunstroke while on duty in the usual way as a traffic policeman, held that the sunstroke was not due to accident and that the court properly directed a verdict for the defendant.
    2. Insurance—-when burden of proof is on plaintiff. In actions upon accident insurance policies, the plaintiff assumes the burden of showing that the injury was sustained through accidental means.
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    B. Jay Knight and Karl J. Mohr, for appellant.
    R. K. Welsh and Cleland, Lee & Phelps, for appellee; McKenzie Cleland, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The appellant, Clarence E. Higgins, by Grace Higgins, his conservator, brought this suit against the appellee, Midland Casualty Company, to recover a weekly indemnity under the provisions of an accident insurance policy issued to the appellant by the appellee on June 20, 1912. The accident alleged was a sunstroke, which it is claimed the appellant suffered on June 4, 1913. It appears from the evidence that the appellant was a traffic policeman in the City of Bock-ford, and on the day in question he was stationed on the corner of Main and State streets in that city, and in. the usual and customary way was performing his duties as policeman in regulating the street traffic at the time he was stricken.

To entitle the appellant to recover, it was necessary to show, under the terms of the policy, that the injury suffered by him which caused his disability, namely, the sunstroke, was the result of accidental means. The proof, however, is to the effect that the sunstroke was not sustained by him through accidental means; that it came in the usual order of nature and was the result of ordinary physical conditions; and that it came to him while he was pursuing his avocation in the usual way, and, apparently, as he always had. A sunstroke suffered under these circumstances cannot be regarded as accidental any more than a stroke of apoplexy could be so regarded; neither does the fact that it was unexpected and unforeseen make it accidental. In the Semancik case, in which the insured died from sunstroke, the Pennsylvania Superior Court pointedly states the rule governing cases where recovery is sought under similar provisions in insurance policies: “The plaintiff assumes the burden of showing that her husband died from sunstroke, and that this was effected through external, violent and purely accidental means. * * *, Voluntary exposure to heat or cold, with a knowledge of the existing conditions and action by the insured in an intended and ordinary manner, under such circumstances resulting in bodily injury, does not present a state of facts on which the court can, with confidence, declare that such injury was effected by accidental means, although the injury was accidental, in that it was not designed nor anticipated. * * * There was manifestly an intention to make the policy cover cases of sunstroke, freezing and hydrophobia, only when some accident was the means of the injury.” (Semancik v. Continental Casualty Co., 56 Pa. Super. Ct. 392.)

While it is true that the Supreme Court of Texas, hy its decision in Bryant v. Continental Casualty Co., 182 S. W. 673, apparently reached a different conclusion, yet the weight of authority is in accordance with the rule as stated in the Semancik case. Dozier v. Fidelity & Casualty Co. of New York, 46 Fed. 446; Herdic v. Maryland Casualty Co., 146 Fed. 396; Sinclair v. Maritime Passenger Assur. Co., 3 Ellis & Ellis 478; Continental Casualty Co. v. Pittman, 145 Ga. 641, 89 S. E. 716.)

We conclude, therefore, that the court properly directed a verdict for the appellee, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Carnes

text:
    Town of Magnolia, Appellant, v. Mark Kays, Appellee.
    Gen. No. 6,258.
    (Not to be reported in full.)
    Appeal from the County Court of Putnam county; the Hon. Irvikg E. Broabdus, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case. .
    Action by the Town of Magnolia, on the complaint of Amos B. Wilson, plaintiff, against Mark Kays, defendant, under the provisions of the Roads and Bridges Act of 1913, secs. 151, 155 [Cal. 111. St. Supp. 1916, ([[[ 10000(151), 10000(155)], to recover the penalty therein provided for the obstruction of a public road. From, a judgment against Amos Wilson for costs of the action, said Wilson appeals.
    George W. Hunt, for appellant.
    Henry E. Jacobs and James E. Taylor, for appellee.

      Abstract of the Decision.
    1. Roads and bridges, § 7

      —when evidence insufficient to show existence of public road. In an action under the Roads and Bridges Act of 1913, secs. 151, 155 [Cal. 111. St. Supp. 1916, 10000(151), 10000(155)], to recover the penalty for obstructing a public road, record of proceedings at a meeting of the highway commissioners at which the strip in question was attempted to be set aside as a public road, and facts regarding the use of such strip considered, and held that the evidence failed to establish the existence of a public road.
    2. Roads and bridges, § 199*—when no liability arises for obstruction of road. In an action under the Roads and Bridges Act of 1913, secs. 151, 155 [Cal. 111. St. Supp. 1916, ÜlT 10000(151), 10000(155)], to recover the penalty for obstructing a public road, where the charge was that the defendant obstructed a “public road,” held that if the defendant did not obstruct a public road he could not become liable, whatever private rights he might have invaded.
    3. Roads and bridges, § 25*—when public road not established by dedication. In an action to recover the penalty for a violation of the Roads and Bridges Act of 1913, secs. 151, 155 [Cal. 111. St. Supp. 1916, Iff 10000(151), 10000(155)], by obstructing a public road, where it appeared that certain owners had agreed between themselves as to the use of the land in question for a public private road, and the agreement was acted upon and a lane fenced out, but that the way was not used by the general public to any considerable extent, and did not have the appearance of a public road, and was at times closed at both ends by gates, held that there was no establishment of a public road by dedication.
    4. Roads and bridges, § 29*—necessity of acceptance of way. A way cannot become a public road by dedication of the owner without something being said or done by way of acceptance by the public authorities.
    5. Costs, § 77*—when individual suing in name of towri liable for on appeal. In an action to recover the penalty provided by statute for obstructing a public road, where the action was brought in the name of a town on the complaint of a particular individual, and such individual assumed in the whole proceedings that he was the actual plaintiff and gave a bond for costs, and his appeal bond was drafted on that- theory, and the finding was for the defendant and a judgment for costs was entered against such individual plaintiff, held that such individual was liable for costs under his costs bond.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Clarence Spiller and Laura Spiller, Appellees, v. Charles B. Ensign et al. Charles B. Ensign, Appellant.
    Gen. No. 6,321.
    (Not to he reported in full.)
    Abstract of the Becision.
    1. Injunction, § 384

      —when merits of case not passed on. The merits of the case are not passed on in considering the propriety of granting or dissolving a preliminary injunction.
    2. Injunction, § 11*—what is important consideration in deter

      ‘mining propriety of granting or dissolving preliminary injunction. In considering the propriety of granting or dissolving a preliminary injunction, an important inquiry is the relative inconvenience to be caused the parties if on final adjudication it appeared that the court should not have entered the order.

      Interlocutory appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Bill by Clarence Spiller and Laura Spiller, plaintiffs, against Charles B. Ensign, First National Bank of Gardner and W. G. Howell, defendants, praying for the surrender and cancellation of a note of plaintiffs then in possession of said bank, where it had been sent for collection, and for an injunction restraining the bank from parting with possession of the note to the assignee thereof, defendant Ensign, during the pend-ency of the suit. From an order denying motion of defendant. to dissolve the temporary injunction granted, defendant appeals.
    Felsenthal & Wilson, for appellant; David Levinson, of counsel.
    Frank H. Hayes, for appellees.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vol». XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

3. Injunction, § 177*—when allegations of fact insufficient. Allegations of fact relied on in support of a bill for injunction should rest on clear averments and not on inference.

4. Injunction, § 384*—when assignments of error as granting injunction disregarded; Where, on an application for an interlocutory injunction to restrain an assignee of a note charged with notice of its fraudulent character from obtaining possession of such note while held by a hank for collection, a temporary injunction issued without notice and the prayer and order for appeal were only from the order denying the motion to dissolve, held that assignments of error directed to alleged error in granting the injunction would be disregarded.

5. Injunction, § 50*—when order refusing to dissolve temporary injunction against obtaining possession of note by assignee not disturbed. On an application to restrain the defendant, as assignee of a note charged with notice of its fraudulent character, from obtaining possession of such note, where It was contended that the note having been purchased before maturity and past due when the bill was filed, a court of equity would not interfere because the defendant could not cut off defenses by an assignment of the note, held that the order refusing to dissolve the injunction should not he disturbed.

6. Injunction, § 11 —when order refusing to dissolve temporary injunction not disturbed. Where, on an application for a temporary injunction to restrain the collection of a note by an assignee charged with notice of its fraudulent character, it appeared that the defendant would not be deprived of any right while the note was im-, pounded, while on the other hand the complainant might he put to loss if the defendant were permitted to get possession of the note, held that the order refusing to dissolve the injunction should not he disturbed.


text:
    Gus Carlson, Appellee, v. Chicago Great Western Railroad Company, Appellant.
    Gen. No. 6,349.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 98

      —when federal law controlling in action for personal injuries. In actions by an employee against the employer for personal injuries, where both are engaged in interstate commerce, the federal statute must be applied.
    2. Master and servant, § 302*—when defense of assumed risk not excluded. In an action against an interstate railroad where it is not claimed that any violation of a federal statute enacted for the safety of employees contributed to the injury, the defense of assumed risk is not excluded.
    3. New trial, § 109*—what considered on motion for. Although the trial court could not under the evidence direct a verdict for the defendant on the ground that such evidence would not sustain a verdiet for the plaintiff, that question is before the court on a motion for a new trial.

      Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Gus Carlson, plaintiff, against the Chicago Great Western Railroad Company, defendant, to recover for personal injuries received while working as a section hand for defendant. From a judgment for $5,000 in favor of plaintiff, defendant appeals.
    John A. Russell, for appellant.
    C. Helmer Johnson, Leonard Mead and Julius C. Matthison, for appellee; James D. Power, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

4. Instructions, § 135*—when should he offered. Where a defendant fears that an instruction which informs the jury as to the charges in the declaration, without stating that those charges were denied by the defendant, is misleading, he can protect himself by offering an instruction to that effect.

5. Master and servant, § 206 —when railroad engaged in interstate commerce liable for negligence of fellow-servant of employee. In an action for personal injuries sustained by a railroad employee while engaged in interstate commerce, where the plaintiff, while pulling a spike, was thrown from a bridge as a result of the alleged negligent act of a fellow-servant, and the plaintiff claimed that he did not assume the risk of the negligence of such fellow-servant, held that the defendant was not liable in the absence of affirmative showing that such fellow-servant was guilty of negligence which was the proximate cause of the injury.


text:
    Mary Sabol, Appellee, v. Joseph G. Heintz et al., Appellants.
    Gen. No. 6,364.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Bill in equity by Mary Sabol, complainant, against Joseph G-. Heintz, John J. Wellnitz and Joliet Trust & Savings Bank, a corporation, defendants, to subject the premises of the defendants Joseph Gr. Heintz and John J. Wellnitz to the payment, as provided in section 10 of the Dramshop Act (J. & A. ft 4610), of a judgment of eight hundred dollars obtained under section 9 of the Act (J. & A. 4609), against Robert McMillin, a saloon keeper and tenant of such premises. From a decree for complainant subjecting the said premises to the payment of the judgment, subject to the lien of a trust deed held by defendant bank, for the payment of as much as was unpaid on the note's secured by the trust deed and ordering the sale of the premises subject to the lien of the trust deed for the payment of as much money as was unpaid on the notes secured thereby, defendants Heintz and Wellnitz appeal.
    Abstract of the Decision.
    1. Intoxicating liquors, $ 260

      —when lien against property of owner of rented premises for judgment against saloon keeper enforceable. The lien provided by section 10 of the Dramshop Act (J. & A. f 4610), subjecting premises rented for saloon purposes to the payment of a judgment obtained against the saloon keeper under section 9 of the Act (J. & A. If 4609), is enforceable in equity, as the proceeding is not one taken to enforce a penalty.
    2. Intoxicating liquors, § 260*—when cause of action to subject property of saloon keeper to payment of judgment accrues. In a, chancery proceeding to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided in section 10 of the Dramshop Act (J. & A. If 4610), where it was contended that the proceeding, being one to enforce a penalty, was barred by the Two-Year Statute of Limitations, which began to run from the time the cause of action accrued against the saloon keeper, held that the cause of action against the property of the defendants did not accrue under said section until after the judgment had been obtained in the common-law suit, as the causes of action were distinct
    Snapp, Heise & Snapp, for appellants.
    Cowing & King, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

3. Intoxicating liquobs, § 260*—what are considered as adjudicated matters in equity proceedings to subject rented saloon premises to judgment against saloon keeper. In equity proceedings to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided in section 10 of the Dramshop Act (J. & A. T 4610), the facts as to sales of liquor and consequent damages to the complainant are considered adjudicated in the common-law suit, and cannot be controverted in the equity suit.

4. Intoxicating iiqttobs, § 260*—what must be proved in equity proceedings to subject rented saloon premises to judgment against saloon keeper. In equity proceedings to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided in section 10 of the Dramshop Act (J. & A. 1f 4610), the proof must show that the saloon keeper was selling intoxicating liquor in the premises of the owner at the time in question.

5. Intoxicating liquors, § 260 —when decree in equity proceedings to subject premises rented for saloon purposes to judgment against saloon keeper is erroneous. In equity proceedings to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided by section 10 of the Dramshop Act (J. & A. H 4610), where the holder of a trust deed was made a party, and the decree provided for a sale subject to the lien “for the payment of so much money as may be unpaid on the note secured thereby,” held that such decree improperly left the holders of the incumbrance without remedy as to any lien provided in case the trustee should be compelled to pay taxes, expenses of foreclosure and other sums secured or provided in the trust deed.


text:
    William Blair and John Patten, Administrators, Appellees, v. Chicago, Ottawa & Peoria Railway Company, Appellant.
    Gen. No. 6,365.
    1. Carriers, § 428

      —when passenger riding on platform, guilty of contributory negligence. In an action to recover for the death of a passenger who, while standing on the platform of an interurban car going at the rate of about thirty miles per hour, in some way fell through an opening left by an open vestibule and trapdoors as the car approached the station at which the deceased was to alight, where it appeared that there was room inside the car and there was a printed notice posted in the vestibule informing passengers that they were not allowed to ride on the platform or steps, held that plaintiffs intestate was guilty of contributory negligence.
    2. Carriers, § 386*—when not guilty of negligence in leaving trapdoors of car open. In an action to recover for the death of a passenger who, while standing on the platform of an interurban car going at the rate of thirty miles per hour, in some way fell through an opening left by open trapdoors as the train was approaching the station at which the deceased was to alight, where it appeared that there was room inside the car and a notice was posted in the vestibule informing passengers that they were not permitted to stand on the platform or steps, held that the defendant was not guilty of negligence.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed April 19, 1917.
    Snapp, Heise & Snapp, for appellant.
    Frank H. Hayes and John W. Downey, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal by the Chicago, Ottawa & Peoria Railway Company from a judgment of $4,500 obtained by the appellees, William Blair and John Patten, administrators, for the death of their intestate, James Patten, while a passenger on appellant’s interurban car August 28, 1913, caused by falling from the rear platform of the car.

Before the time in question James Patten, about sixty-five years of age, lived on a farm about two miles northeasterly from the City of Morris, and had lived there many years. On that day there had been a home-coming celebration at Morris attended by many people. He went there from his home in one of appellant’s cars, and started from Morris to so return about six o ’clock p. m. The car which he boarded was a large interurban car with a rear inclosed platform, made to be opened and closed at the sides by vestibule doors and trapdoors in the usual manner of construction of that kind of vestibule. The car had two compartments, the smoker being in front. When Patten got on the car there was no one standing inside in the aisle. The seats of the rear compartment were mostly occupied, but there was room for two or three more passengers to sit there. There was also room in the front or smoking compartment for more passengers to sit. There was a printed notice posted in the vestibule informing passengers that they Were not allowed to ride on the platform or steps of the cars. Patten and four others remained on the platform apparently without investigating whether there were or not seats inside. Probably Patten did not care to sit, and quite likely a vacant seat would not be observed by a careless glance inside, but it would have been apparent that the aisle was empty. It was a commercial railway, organized under the general railroad act, running easterly from Princeton and other points through Ottawa and Morris to Joliet, doing a passenger, freight and express business.

The conductor collected Patten’s fare after the car left Morris without objecting to his or the other passengers standing on the platform. The car made frequent stops in the cities and towns through which it passed and at various places in the ccrantry, after the manner of interurban cars. After leaving Morris two or three of the next stops were to let passengers off at the south side of the car, and the vestibule door and trapdoor to the south were left open. As the car was nearing the point at which Patten was to alight, it was running at a speed of thirty or forty miles an hour, and Patten in some way fell through this opening and received injuries from which he soon died. Appellee’s theory is that he must have thought because of the speed of the car that it was not going to stop at his crossing, and that he started to attract the conductor’s attention and ask him to stop there, and in so doing fell. It is not clear from the testimony of the passengers on the platform how or why he fell. The road was straight and the rails and bed in good condition. There was no unusual motion of the car and nothing to account for his falling except that he stepped too near the edge of the opening and lost his balance.

Appellees in their argument here urge as negligence of appellant that the car was running at a high and dangerous rate of speed; that the doors at the south side of the vestibule were left open, and say that the high rate of speed and failure to close the vestibule doors and running the cars at such rate of speed approaching the station were the proximate cause of the injury. The declaration counted on such alleged negligence, and averred due care on the part of the plaintiff’s intestate. The general issue was pleaded.

Appellant strongly insists, that under the above state of facts James Patten was negligent as matter of law, and that the court erred in overruling its motion to direct a verdict, and quotes from Thompson on Negligence, vol. 3, sec. 2947:

“The general rule is that if a passenger elects to ride upon the platform of a steam railway car without any necessity, real or apparent, for talcing that position, and while so riding is injured under such circumstances, that he would not have been injured if he had not taken that position, he cannot recover damages from the company. In other words, for a passenger to ride in a position of such obvious danger, without any real or apparent necessity for so doing, is generally regarded as negligence per se.” And sec. 2949:'
“A real or apparent necessity would excuse the passenger in so riding, and repel the imputation of contributory negligence so that if, while so riding, he is injured through the negligence of the carrier, he may recover damages. The real necessity for riding in such a position is generally held to exist where the cars are so crowded that the passenger cannot secure standing room inside.”

and cites Quinn v. Illinois Cent. R. Co., 51 Ill. 495, where the court held that a passenger voluntarily placing himself upon the steps of the platform of a car, holding onto the railing while there was abundant room in the car, even though the seats were full, and fell to the ground, not in consequence of a collision, or broken rail, or other fault of the company, was grossly negligent, and quoted with approval from a New York case: “If a mar places himself in such position that in the ordinary movement and conduct of the train he is exposed to danger, he may justly be said to be negligent of his security, and must take the consequences if he is injured.” [Willis v. Long Island R. Co., 32 Barb. 399.] This case was cited in Chicago & A. R. Co. v. Fisher, 141 Ill. 614, 628, and distinguished on the ground that in the Quinn case, supra, there was abundant room in the cars, and the deceased voluntarily and without any necessity therefor placed himself upon the platform of a car, although in the Quinn case there' was not so abundant room in the car as in the present case. It was also cited by this court in Savage v. Illinois Cent. R. Co., 164 Ill. App. 634, where the authorities on the question of a passenger’s negligence in riding upon the platform were very fully reviewed and the court reached the conclusion that except under special circumstances a passenger is negligent if he rides or goes upon the platform of a coach while the train is traveling between stations, and if he is injured because of his presence upon the platform while the train is running, the carrier is not liable, and reversed without remanding a judgment in favor of the plaintiff for damages for the death of a person riding upon a coach platform.

It is said in 6 Cyc. 652, that a passenger who rides in a place not intended for passengers, and which is more dangerous than the place where passengers are permitted to ride, is thereby charged with contributory negligence. Ohio & M. Ry. Co. v. Allender, 47 Ill. App. 484, is cited in support of the text. It was there held that a person voluntarily going upon the front platform of the express car in a given train takes upon himself the hazard of his voluntary act, which imposes upon him the exercise of a degree of care commensurate with the risk voluntarily assumed in the ordinary and usual running of the train. In the text of 6 Cyc. 653, we find: “To ride on the platform of a railroad car while the train is in rapid motion is usually treated as negligence per se, such as to defeat recovery for injuries received by reason of riding in such position; but there are cases in which such an act is said not to be negligence per se, even where there is no particular excuse for it. And where the ear is so crowded that there is no reasonable accommodation inside, the act of riding on the platform is treated as not negligent. As, therefore, the question of the propriety of riding on the platform depends on circumstances, it is properly for the jury.” Extensive notes on the question are found in 29 L. R. A. (N. S.) 325, and L. R. A. 1915B 166. These cases and authorities are dealing with commercial railroads operated by steam power. In the present case we have a commercial road not operated by steam power, occupying an intermediate position between the older commercial roads and the street car, with functions and duties partaking of the nature of each. It is said in 6 Oyc. 654: “As to street cars, the rule as to riding on the platform is more liberal, and it is generally said not to be negligence per se to do’so.” North Chicago St. R. Co. v. Baur, 179 Ill. 126, is cited in support of the text. In that case it was said there was no regulation of the railway prohibiting passengers from riding on the platform, but it appeared that other passengers did so ride without objection on the part of those in charge of the car; therefore, that the fact that plaintiff was standing on the platform when injured was not such negligence as would preclude a recovery; that it was a question of fact for the jury to determine from all the facts and circumstances surrounding the transaction. The court said we cannot denude ourselves of the knowledge, which is alike common to all, that passengers are constantly riding upon these platforms with the tacit assent of the defendant and without any posted notice or regulation. It was also held in Chicago Union Traction Co. v. Lawrence, 113 Ill. App. 269, that it is not negligence per se for a passenger to ride upon the platform of a street car.

We will not extend this opinion by discussing a great number of other authorities that may be readily found following the lines above indicated. We do not think it can be said as matter of law that it is negligence under any and all circumstances to ride on the platform of a moving car. The trial court could not direct a verdict for the defendant on the ground that it was negligence per se for the plaintiffs’ intestate to ride on that platform, and he could not direct a verdict because the preponderance of the evidence in this case was that it was negligence for him to do so, or that the defendant was not negligent. If there was any fair question as to the conclusion to be drawn from the evidentiary facts, he was bound to submit it to the jury. But he was charged with the duty to grant a new trial if, in his opinion, the verdict of the jury was manifestly against the weight of the evidence, and it is our duty to examine the case on the facts and not accept the conclusion of the jury if, in our judgment, it is manifestly against the weight of the evidence.

We do not see how under the admitted facts the defendant can be held négligent. Proof was offered by the defendant that it was usual and customary in the operation of such cars to leave one of the vestibule doors open. Objection of the plaintiffs to this proof was sustained, perhaps properly. But it is almost, if not quite, a matter of common knowledge that one door of a car making frequent stops is usually left open, and unless some special reason appeared for shutting it between stops, and none did here appear, a jury would not be warranted in finding that act negligence; neither were the jury warranted in finding that the rate of speed at which the car was running negligence, even though it was approaching the point at which it was to stop for plaintiffs’ intestate to alight. We think it quite as clear that the defendant was not negligent as that plaintiffs’ intestate was negligent. Other prudent men might have stood upon the platform under similar circumstances, but if it is conceded that they might do so they still would be required to exercise a degree of care commensurate with the known danger. The conclusion cannot reasonably be reached that the defendant was negligent in leaving the door open, and that the plaintiffs’ intestate was not negligent in not guarding himself against the obvious danger.

We conclude that the judgment should be reversed on the ground that the verdict is manifestly against the weight of the evidence; and as there is no reason to presume the facts would appear other or different on another trial, the cause is not remanded..

Reversed with finding of facts.

Finding of facts: We find that the defendant was not guilty of any negligence causing or contributing to the death of the plaintiffs’ intestate, and that he at the time in question was not in the exercise of ordinary care for his own safety.


text:
    Oscar M. Kiess, Appellee, v. Block & Kuhl Company, Appellant.
    Gen. No. 6,367.
    (Not to he reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by' Oscar M. Kiess, plaintiff, against Block & Kuhl Company, defendant, to recover on a contract for commissions for selling victrolas in defendant’s department store. From a judgment for plaintiff for $311.66, defendant appeals.
    Page, Hunter, Page & Dallwig, for appellant.
    J. E. Daily and S. F. McGrath, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Trial, § 199 —when direction of verdict improper. Where the evidence is conflicting, it is improper for the trial court to direct a verdict, as it could not do so without weighing such evidence.

2. New trial, § 109*—what considered on motion for. On a motion for new trial, the court is required to consider the weight of conflicting evidence and grant the motion, if in its opinion the verdict was manifestly against the weight of the evidence.

3. Master and servant, § 84*—when evidence insufficient to sustain verdict for plaintiff in action to recover commissions. In an action to recover commissions 'under a contract of employment providing for a weekly salary, and also commissions which were to be due and payable at the end of the employer’s fiscal year, where it appeared that before the expiration of the year the plaintiff quit because he was offered a better position elsewhere, and three witnesses for the defendant testified that the right to commissions depended upon plaintiff’s working for the fiscal year, as against the plaintiff alone who testified that his commissions were not made dependent on his working for the time specified, held that the verdict for the plaintiff was manifestly contrary to the evidence.

4. Master and servant, § 66*—when employee entitled to commissions on sales. Where, under a contract of employment an employee is to receive a certain commission upon sales made by him payable at the end of the employer’s fiscal year, and the duration of the employment is not fixed, the fact that the employee quits before the expiration of the fiscal year does not of itself bar him from recovering commissions, but if the contract is to continue for the year, the employee cannot recover unless he fully performs his contract for the full term for which he was hired.

5. Evidence, § 476*—when testimony of one witness not to he given greater weight than that of opposing witnesses. In an action for the recovery of commissions by an employee where three witnesses, as against the plaintiff alone, testified that the payment of such commissions was made dependent upon the employee working for the defendant for a time specified, and it appeared that the employee quit before the expiration of such period, held that although the number of witnesses alone did not control, it would be unreasonable that the testimony of the plaintiff alone should be allowed to outweigh that of the three witnesses to the contrary.

6. Appeal and error, § 1805*—when case reversed without remanding. Where a verdict is contrary to the weight of evidence and another trial will not result in the production of different evidence, the case will be reversed on appeal without remanding.


text:
    Richard Smith, Appellee, v. Stover Manufacturing Company, Appellant.
    Gen. No. 6,380.
    1. Appeal and error, § 438

      —when objection on ground of variance too late. An objection on the ground of variance comes too late when made for the first time on appeal.
    2. Appeal and error, § 438*—when question of variance raised too late. In an action on the case for damages for personal injuries, by an employee where the employer had elected not to provide and pay compensation under the Workmen's Compensation Act of 1913, and it was averred that the defendant was not operating under the provisions of the act and that notice in writing of its election was filed with the State Bureau of Labor Statistics, and the proof showed that a notice of election under section 2 of the Act [Cal. 111. St. Supp. 1916, U 5475(2)] was filed with the Industrial Board, and this variance between the pleading and proof was urged as ground for reversal, held that as the objection to a certified copy of the notice was not made on the ground of variance, the defendant was precluded from availing itself of the objection of variance on appeal.
    3. Workmen’s Compensation Act, § 12*—when evidence sufficient to show that accident occurred in State. In an action by an employee for damages for personal injuries, where the defendant had elected not to provide and pay compensation, as required hy section 2 of the Workmen’s Compensation Act of 1913 [Cal. 111. St. Supp. 1916, j[ 5475(2)], and objection was made that the proof failed to show that the accident occurred in Illinois, and that therefore the court could not know whether the act was applicable, held that although it failed to appear that the city mentioned by witnesses as the place where the accident occurred was in Illinois, there was enough in the evidence to leave no question that appellant’s factory was located and the accident occurred in such city.
    4. Evidence, § 108*—when experiments not competent. Where the plaintiff in a personal injury case was injured while engaged in moving a heavy piece of machinery across a railroad track and over a plank bridge between two buildings of the defendant, and the defendant offered to prove by a witness that while the locality was in the same condition as on the day of the accident he took a machine exactly like the one in question and placed it on the bridge and took measurements of the depression caused thereby, held that experiments were not competent unless the circumstances under which they were conducted were very similar to those connected , with the act to be illustrated, and that such offer by the defendant had not brought the evidence within the rule stated.
    5. Evidence, § 378*—when opinion of witness is not competent. The question whether the place of an accident and the appliances used by a servant were reasonably safe are ultimate facts in issue and therefore the opinion of a witness on those questions is not competent.
    6. Evidence, § 279*—when exclusion of skiagraph is of little importance. Where, in a personal injury case, the plaintiff introduced a skiagraph of his injured arm and one of his uninjured arm, and sufficient foundation was thereafter laid for the introduction by the defendant of a skiagraph of a case somewhere near similar to the one in question, and an objection to the introduction of such skiagraph was sustained, but the witness was permitted to testify that skiagraphs did not represent true conditions of dislocated bones, and also to give other testimony as to the reliability of skiagraph pictures, held that under the circumstances it was of little importance whether the jury were or were not permitted to see pictures of other somewhat similar cases.
    7. Trial, § 288*—when error to assume that court is laying down proposition of law. It is error to assume that a court, charged with the duty Of passing on the facts of a case, is laying down a proposition of law in stating its opinion as to such facts.
    8. Appeal and error, § 1238*—when party cannot complain of converting of proposition of fact into one of law. A party who induces a court to convert a proposition of fact in an instruction into one of law in his favor cannot complain of such action.
    9. Appeal and error, § 1565*—when modification of instructions not reversible error. The practice of modifying instructions by erasures and interlineations is condemned, but held not to be reversible error.
    10. Workmen’s Compensation Act, § 12*—what must be averred and proved in action to recover for injuries sustained. Although under section 3 of the Workmen’s Compensation Act. of 1913 [Cal. Ill. St. Supp. 1916, 5475(3)], an employer is deprived of various defenses which might have been available at common law, nevertheless negligence of the defendant must be averred and proved in an action to recover for injuries sustained.
    11. Workmen’s Compensation Act, § 12

      —when instruction in action for personal injuries not misleading. In an action by a servant to recover damages for personal injuries, where the defendant had elected not to provide and pay compensation under the Workmen’s Compensation Act of 1913, an instruction stating that the plaintiff did not assume the risk incident to his employment, held not misleading as telling the jury that it was not necessary to prove the defendant’s negligence.
    12. Appeal and ebrob, § 1256*-When. refusal of instructions may not be assigned as error. The refusal to give instructions which are covered by given instructions of the party complaining, in which refused instructions the law is stated less favorably to such party, cannot be assigned as error.
    13. Workmen’s Compensation Act, § 12*—when refusal of instruction in action for damages for personal injuries is proper. In an action by an employee to recover damages for personal injuries, where the defendant had elected not to provide and pay compensation under the Workmen’s Compensation Act of 1913, an instruction stating that if the jury found that the negligence of the plaintiff contributed to the accident they might consider such fact in arriving at the amount of damages to be assessed by defendant, and make it less than they would have made it but for the negligence of the plaintiff, held properly refused.

      14. Appeal and error, § 1622*—when exclusion of evidence of witnesses unable to speak English intelligently is not reversible error. In an action to recover for personal injuries, where two foreign witnesses who had not sufficient understanding of the English language to make their testimony intelligible were called by the plaintiff, and the reporter stated that he could not understand the witness, and defendant’s counsel stated that he did not care to cross-examine, but objected to the testimony without its appearing in the record, and the court instructed the jury not to consider the testimony of such witnesses, held that there was no reversible error in such proceeding. .
    15. Appeal and error, § 1236

      —when party may not complain of error in statement of opposing counsel as to making of stipulation. Where, in a personal injury case, the defendant’s attorney, in proceeding to impeach the testimony of a witness, produced a transcript of the testimony of such witness taken at a former trial and stated that it was stipulated to be a true and correct transcript taken by the official reporter, and thereupon offered the questions and answers appearing in the transcript, and an objection by the plaintiff was sustained on the ground of it not being proper impeachment, and on appeal the plaintiff urged that it did not appear that he had joined in the stipulation referred to by defendant’s attorney, held that the plaintiff should not be heard to so contend after permitting the statement regarding the stipulation to be made without objection.

      16. Appeal and erroe, § 1495

      —when exclusion of impeaching testimony harmless error. Where, in a personal injury case, impeaching testimony which tended to show that on a former trial a physi- . cian was not positive that the condition of the plaintiff came from the injury in question was excluded, held that such exclusion was harmless error, as there was no question but that the plaintiff was seriously and permanently injured, and other proof made it certain that there was no former injury.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Faerand, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Charles H. Green, for appellant.
    C. W. Middlekauff, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Disrest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Richard Smith, the appellee, thirty-nine years old, thirteen years in the employ of Stover Manufacturing Company, the appellant, earning. about $10 a week, was on February 11, 1915, while so employed, injured when he, with three coemployes, was engaged in moving an ensilage cutter, a heavy piece of machinery, from one of appellant’s buildings to another. Appellant had elected not to provide and pay compensation according to the provisions of the Workmen’s Compensation Act of 1913 (Hurd’s Rev. St. ch. 48, § 126 et seq., Cal. Ill. St. Supp. 1916, jf 5475(1) et seq.) and given notice of such nonelection as required by section 2 of that Act Cal. Ill. St. Supp. 1916, 5475 (2). This action on the case was brought to recover for that injury. Plaintiff had judgment on a verdict of $2,500, from which the defendant appeals.

The ensilage cutter weighed from fifteen hundred to two thousand pounds, was four and one-half feet high, two and one-half or three feet wide, and eight feet long. The workmen were attempting to move it by using two dollies, one with a single wheel at the front attached to the cutter and turning like a castor. The other a two-wheel dolly, at the rear, a board two and one-half to three feet long with two wheels not attached, but set under the cutter. They were required to cross over a railroad switch track between two buildings. This space was spanned by a loose plank bridge about ten feet long, made of six planks each between ten and twelve inches wide and two inches thick. The approach to the bridge was of cement with a depression at the edge which the ends of the planks were designed to fit into. There was no support between the ends of the planks. After the dollies were placed under the cutter, four workmen, appellee, Amos Ditzler and two Greeks, proceeded to take it towards the bridge. Appellee was stationed at the one-wheel dolly in front, and steered the course. The other three workmen were behind the machine,' pushing. They proceeded through one factory and onto a platform, adjacent to the bridge. When the four workmen approached this bridge they met another workman coming with a wheelbarrow load of material. They turned to one side to allow him to pass and then moved ahead with the cutter onto this plank crossing. Appellee went onto the crossing fir§t, steering the single-wheel dolly. Before the two-wheel dolly and the other three workmen arrived at the crossing the single dolly and appellee were in the middle of the plank crossing. Appellee claims that the plank on which the single dolly rested bent down four to six inches, causing its end to rise above the cement surface, and that one of the two wheels of the rear dolly struck that and slipped back, and the other wheel rolled ahead upon the plank crossing; that he stooped down to move the wheel of the dolly onto the plank, when Ditzler and one of the Greeks pried up with a crowbar on the other side of the cutter and it fell over onto him, breaking two bones in -his left leg, the larger bone of his wrist, and tearing the ligaments which bind the' small bone of the wrist to the large bone, inflicting serious and permanent injuries. • The declaration in different counts charged as defendant’s negligence that it provided no railroad track or smooth planks to move said cutter; that the plank bridge was negligently, carelessly and unskilfully constructed; that the defendant was negligent in employing laborers of a foreign nationality unable to speak the English language; that the laborers were not furnished with proper equipment for doing the work; that an employee of defendant pushed and pried the cutter over onto the plaintiff and that such employee was a foreign-born citizen and unable to speak the English language, and was unskilled and not a proper person to work about the moving of heavy machinery; that the defendant carelessly and negligently employed said laborers; that the laborers were provided with imperfect and insufficient tools and appliances to move the cutter; that the defendant failed to furnish a safe place in which the plaintiff should perform the moving of the cutter.

It was averred that at the time, etc., defendant was not operating under the provisions of “ An Act to Promote the General Welfare of the People of this State by Providing Compensation for Accidental Injuries or Death Suffered in the Course of Employment Within this State,” and that notice in writing of its election was filed with the State Bureau of Labor Statistics.”

The proof showed that appellant’s notice of election under section 2 of the Workmen’s Compensation Act [Cal. 111. St. Supp. 1916, ][ 5475(2)] was filed with the Industrial Board, as there required, and not with the State Bureau of Labor Statistics, as averred in the declaration; therefore, there was a variance between the pleadings and proof, which appellant urges as a ground for reversal. A certified copy of this notice was offered in evidence by appellee, and objected to on the ground that it was immaterial and not properly certified. The attention of the court was not called to its variance from the pleading. There is no question that it was properly certified and material if it had been properly pleaded. If the court’s attention had been called to the real objection, we must presume it would have been obviated by an amendment of the declaration; therefore, appellant cannot here avail itself of the variance. (Libby, McNeill & Libby v. Scherman, 146 Ill. 540; Ransom v. McCurley, 140 Ill. 626; Barth v. Hanna, 158 Ill. App. 20.)

It is objected that the proof does not show that the accident occurred in the State of Illinois; therefore, that we cannot know that our Workmen’s Compensation Act is applicable. The trial was at Freeport, Stephenson county, Illinois, and while it may be that it does not specifically appear in a single item of evidence that the Freeport often mentioned by the witnesses was Freeport, Illinois, yet there is enough in the evidence, taken altogether, to leave no question that appellant’s factory was there located, and the accident there occurred.

Appellant offered to prove by E. M. Bennethum that some time after, and while the platform or bridge was in the same condition as on the day of the accident, he took an ensilage cutter exactly like the one in question and placed it on the bridge and took measurements as to the depression of the platform caused thereby. The court sustained an objection to that evidence, we tbink properly, on the authority of Libby, McNeill & Libby v. Scherman, 146 Ill. 540. That case is cited and the authorities quite thoroughly reviewed and discussed in Fein v. Covenant Mutual Benefit Ass’n, 60 Ill. App. 274, where an experiment was held admissible in evidence; but the rule to be gathered from the cases is that experiments are not competent unless the circumstances under which they are conducted are very similar to those connected with the act to be illustrated. We do not think the offer in the present case brought the evidence within that rule. Appellee claims that one of the six planks upon which the wheel of the front dolly rested, and upon which appellee perhaps also stood, bent four to six inches. The entire cutter was not upon the bridge. It would not have aided this investigation to know that an entire cutter like the one in question might be placed on the middle of the bridge without causing so much depression of any single plank. See opinion of this court in Upthegrove v. Chicago Great Western Ry. Co., 154 Ill. App. 460. The same witness, Bennethum, was shown to be familiar with the usual and customary appliances used in factories, warehouses and freight depots for hauling heavy-objects, and with the two-wheel dolly and one-wheel dolly used by appellee, and was then asked by appellant whether such dollies are used in such places for such purposes, and whether- the dollies in question were reasonably safe appliances for use at the time in question, and whether the platform (bridge) was a reasonably safe and proper method of connecting the two floorways. The court sustained objections to each of these questions: Whether the place and appliances were reasonably safe were ultimate facts in issue. The court did not err in rejecting the opinion of the witness on those questions. (Keefe v. Armour & Co., 258 Ill. 28.)

On cross-examination, appellee was asked if he testified on a former hearing that he had moved ensilage cutters over those same planks and passageway before, and answered that he did not remember, but that he did not believe he had moved them before. A transcript of appellee’s testimony taken on a former trial was produced and appellant’s attorney stated that it was stipulated to be a true and correct transcript of the testimony taken by the official reporter of the court. Appellant then offered questions and answers of appellee appearing in such transcript, from which it appeared that he did testify before that he had moved ensilage cutters over the same platform and passageway, which was objected to on the ground that it is not proper impeaching testimony, and the objection sustained. Counsel for appellee say here that it does not appear that appellee joined in the stipulation as to the transcript. We do not think he should be heard to say that, after hearing the statement made by appellant’s counsel without objection. Dr. Snyder, a witness for appellee, was also sought to be impeached by a reading of his testimony offered at a former trial as to the exact nature of appellee’s injury, and such impeaching testimony was rejected, and is justified here on the same ground. We think the impeaching testimony should have been admitted, but that it was not of sufficient importance so that its rejection should be held reversible error. Whether appellee had been accustomed to moving cutters over that platform and was therefore familiar with the method of doing the work and the danger went only to the question of his care when he was injured— whether he might be guilty of contributory negligence; but as contributory negligence is excluded as a defense, that question was not very material. Dr. Snyder’s testimony varied from his former evidence slightly in matters that were technical and not likely to be well understood by the jury. The impeaching testimony tended to show that on the former trial the doctor was not positive that the condition came from the injury complained of. There is no question that appellee was seriously and permanently injured, and other proof makes it certain that there was no former injury. ‘ We think there are no grounds for the presumption that the jury might have awarded less damages if the proof had been admitted. It is said in ap.pellant’s brief: ‘‘Plaintiff was severely injured by the accident * * *. His arm was broken and his leg was broken. He was at the hospital from February 11, 1915, to March 27, 1915. He stayed at home fifteen weeks before he was able to walk at all. ’ ’ While there is conflict in the testimony as to the extent of the permanent disability induced by the injury and its effect upon appellee’s ability to work, in the future, the above-quoted statement is as favorable to appellant as the evidence warrants in any -view of the case, and there is no ground for holding the damages assessed excessive.

Appellee introduced in evidence an X-ray skiagraph of his injured arm, and another of his uninjured arm. Appellant called a doctor as a witness, who stated that in his opinion appellee had comparatively full capacity for manual labor, and based that conclusion on similar conditions in other cases of fractures of a similar type in which there was approximately a similar condition. He said he had skiagraphs of such cases somewhere near being similar to the one in question. The court sustains an objection to the production of such a skiagraph for inspection by the jury, but the witness was permitted to testify that skiagraphs do not represent true conditions of displacements; that they are considered shadowgraphs and do not represent true conditions of dislocated bones, because in broken bones it seldom occurs that there is not some displacement and the focus—the point from which the X-ray emanates— is of pin-point size, and about the average of twelve to fifteen inches from the part to be photographed, and these rays diverge and produce distortion of the true condition; that he thought the injured ulna was not in a parallel plane with the surface of the radius, and that it would somewhat interfere with appellee’s capacity to do manual labor but not as much as the photograph of that type would indicate. It would seem that appellant got the benefit of whatever this witness knew about the reliability of a-skiagraph picture, and that it was of little importance in this case whether the jury were or not permitted to see pictures of other somewhat similar cases. It was like many other instances in trials where the witness might or might not, in the discretion of the court, be permitted to illustrate his statements by pictures and objects at hand. Appellant cites the language- of the court in Kruger v. McCaughey, 149 Ill. App. 444, as follows:

“While sufficient foundation was laid to permit the X-ray skiagraph of appellee’s arm to be introduced in evidence, such skiagraph is by no means conclusive as to the conditions actually existing in the arm. The skiagraph is not a picture of the object or substance itself, but of the shadow merely which is cast by such object or substance, and the evidence discloses that the picture thus produced is frequently inaccurate and misleading owing to divergence and distortion. It is easily within the ability of a person operating an X-ray machine to magnify or minimize the appearance of an existing condition.”

and assumes that the court was there announcing a proposition of law, and complains that the trial court would not observe it as such. The.error of assuming that a court, charged with the duty of passing on the facts of a case, is laying down a proposition of law in stating its opinion as to such facts has been too many times pointed out by the Supreme and Appellate Courts to require citation of authorities. In this connection we may note that appellant’s sixth instruction offered asked the court to inform the jury “that the X-ray skiagraphs of the plaintiff’s injured arm introduced in evidence in this case are by no means conclusive as to conditions actually existing in his arm,” and the court modified the instruction so it would read that they “are not conclusive as to the conditions actually existing in his arm.” This modification was made by erasures and interlineations, and the original instruction is certified here for our inspection, appellant claiming that it might have been misread by the jury to mean that the pictures in the case were conclusive as to the conditions actually existing, and that the instruction should have been given as offered. It should have been refused for the reasons above stated, and while the practice of modifying instructions by erasures and interlineations has been criticised by reviewing courts, it resulted in no harm here. The jury heard the instruction read as it appears in the record. We do not think they were misled by its inspection afterwards. ' The result was that appellant induced the court to convert a proposition-of fact into one of law in its favor, and is in no p.osition to here complain. So far as this record shows it was indisputably a fact, and no harm resulted to either party.

Under the Workmen’s Compensation Act, sec. 3 [Cal. HI. St. Supp. 1916, 5475 (3)], appellant was deprived of three defenses that might have been available at common law: First, that the employee assumed the risk of the employment; second, that the injury or death was caused in whole or in part by the negligence of a fellow-servant; third, that the injury or death was proximately. caused by the contributory negligence of the employee. Appellant recognizes those provisions of that statute and correctly, says that nevertheless negligence of the defendant must be averred and proven. Its counsel argues at length that the court did not so hold the law, and calls our attention to the instructions given and refused to support that argument. Appellant’s first given instruction read as follows:

“The court further instructs you that before, you. can find the defendant guilty, the plaintiff must prove by a preponderance of the evidence in this case that the defendant at the time of the accident did not furnish a reasonably safe platform on which the plaintiff was working, and did not use all reasonable precautions to keep and maintain such place in a reasonably safe condition, or did not furnish reasonably safe appliances, tools or equipments for moving the machinery which plaintiff was moving.”

This not only informed the jury that appellant must be shown negligent in failing to furnish a safe platform or safe appliances, but withdrew absolutely from the jury the other allegations of negligence contained in the declaration in respect to employing fellow-servants that were unskilled and unqualified. It seems a complete answer to the argument that appellee obtained an unfair advantage from a mistaken view of the law entertained by the court. It put the whole question of appellant’s negligence in a nutshell, and stated it more favorably to appellant than the law required.

The court at the instance of appellee instructed the jury that the plaintiff did not assume the risk incident to his employment with the defendant. Counsel argues that this was equivalent to telling the jury that it was not necessary to prove defendant’s negligence, and undertakes to point out that there is a plain distinction between the proposition that the defendant is deprived of the defense of assumed risk, and that the plaintiff is not to be held as assuming the risk. We conclude that the jury could not have been misled by that statement of law, even if a technical difference might be discovered by jurists.

The court refused appellant’s fourth instruction, which was framed to tell the jury that the master must be shown negligent in some act or omission that caused the injury, and that a verdict must be based upon some logical and reasonable theory; and its fifth instruction to inform the jury that the defendant must he shown to have failed to perform a duty which it owed the plaintiff. So far as either of these instructions was material it was covered by the given instruction above mentioned, and was less favorable to appellant than that. Defendant’s sixth instruction was to inform the jury that if they found the negligence or carelessness of the plaintiff contributed to the accident they might consider that in arriving at the amount of damages to be assessed the defendant, and make it less than they otherwise- would have made it but for said negligence of said plaintiff. The Workmen’s Compensation Act of 1911-12 (J. & A. If 5449) provided for proportioning damages in cases of contributory negligence of the plaintiff. We find no such provision in the Act of 1913,' and know of no authority for applying that rule in the absence of such statutory provision..

The plaintiff called the two Creeks that were working with him as witnesses. They had not sufficient understanding of the English language so that their testimony was intelligible. The reporter stated that he could not understand the witness, and appellant’s attorney said he did not care to cross-examine him, but objected to the testimony of those witnesses without its appearing in the record. The court said to plaintiff’s attorney that if he wanted the testimony preserved he had better call an interpreter because the court did not think the reporter or jury understood what they said, and the court did not. Plaintiff’s attorney then said that he offered the witnesses for the purpose of permitting the jury to ascertain their knowledge and lack of knowledge of the English language ; whereupon the court instructed the jury not to consider the testimony of those witnesses and the plaintiff excepted. We see no error in this proceeding. The court seems to have followed the suggestion of appellant’s counsel against the protest of appellee. If the production of those witnesses had an influence with the jury in determining the question whether appellant had employed incompetent help, appellant caused the court to remove that trouble by taking that issue from the jury by the defendant’s instruction before mentioned. The question of defendant’s negligence was properly left to the jury. We do not think their conclusion so unreasonable or manifestly against the weight of the evidence as to justify our reversing the judgment on that ground.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    George E. Mann, Appellant, v. Amos B. Ahrens, Appellee. Amos B. Ahrens, Appellant, v. George E. Mann et al., Appellees.
    Gen. No. 6,387.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the Octoher term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Bill by George E. Mann, complainant, against Amos B. Ahrens, defendant, to restrain the collection of notes for corporate stock purchased of defendant and to obtain the cancellation thereof, and cross-bill by Amos B. Ahrens to enforce an alleged agreement for the release of a debt owed by cross-complainant to the corporation. From a decree dismissing the bill and cross-bill for want of equity, both parties appeal.

      Abstract of the Decision.
    1. Fraud, § 59

      —What are prerequisites to relief against contract on ground of. Equity will not grant relief against a contract on the ground of fraud unless such contract is at once repudiated on the discovery of the fraud and a tender to return what has been received is made.
    2. Cancellation of instruments, § 39*—when dismissal of hill and cross-hill proper. In, a suit in equity where it appeared that the defendant, as practically sole owner'of the stock in a corporation carrying on a dry goods business, sold certain of the shares to the complainant, and the latter, who was an experienced merchant, entered the business and after about eight months the parties entered into another contract pursuant to which the complainant made a further purchase of stock which was to be paid for in instalments, and, after having made a number of payments under the second contract, the complainant discovered that the defendant had concealed the fact that he was indebted to the corporation in a large sum, and complainant prayed that the collection of the notes be enjoined and the notes be delivered up for cancellation, but failed to offer to return the stock, and defendant filed a cross-bill alleging that the consideration for the second purchase was payment for the stock and also the release of his indebtedness, held that the action of the chancellor in dismissing both bills for want of equity was proper.
    3. Equity, § 254*—when amendment to hill properly refused. An amendment to a bill offered after the expiration of more than a year from the filing of the answer, and eight months after a reference to the master to report the testimony, and over a month after the case had been heard by the court and taken under advisement, and where the proposed amendment tendered new and different issues from those which had been tried and were about to be determined, held properly refused.
    Stager & Stager, Henry C. Ward and McCalmont & Ramsay, for appellant Amos B. Ahrens.
    A. A. Wolfersperger, C. C. McMahon and Sheean & Sheean, for appellees.

      See Illinois Notes Digest, Vols, XI to XV, and Ou mil In live Quarterly, same topic and section number.

      See Illinois Notes Digest, Volg, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

4. Cancellation op instruments, § 26 —when relief denied on bill and cross-bill because of laches. In a suit in equity where the complainant in the original bill sought relief from a contract for the purchase of stock, on the ground of fraudulent concealment of a debt which the defendant owed to the corporation, and the defendant in the original bill sought by cross-bill to enforce an alleged agreement for the release of such debt, held that both parties were negligent and had slept on their rights, and neither was entitled to relief.


text:
    Etha J. Calhoun, Appellee, v. Central Illinois Light Company, Appellant.
    Gen. No. 6,389.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Etha J. Calhoun, plaintiff, against Central Illinois Light Company, defendant, to recover damages for personal injuries received through the explosion of a hot water heater in the basement of a building in which plaintiff was janitress, which boiler defendant was endeavoring to sell to the owner of the building. From a judgment for plaintiff for eight hundred dollars, defendant appeals.
    Quinn & Quinn, for appellant; Frank J. Quinn and Harold B. Schradzki, of counsel.
    Kirk & Shurtleff, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. , Negligence, § 188*—when evidence sufficient to show lacK of Knowledge of danger of explosion from hot water boiler by janitress. In an action hy a janitress against her employer for damages for personal injuries received through an explosion in a hot water boiler which she was operating, where it appeared that the plaintiff knew of some defect in the heater, but did not know of the danger, held that the jury were warranted in finding that plaintiff did not know and was not charged with knowledge of the danger from whatever defect of the heater she knew of.

2. Appeal and error, § 1321*—when presumed that jury found that accident occurred as claimed by plaintiff. In an action by a janitress against the owner of a hot water heater for personal injuries received through an explosion of the heater in the building in which plaintiff was employed, where it appeared that the plaintiff had looked after the heater for some time, and knew that the pilot light had theretofore sucked out when a faucet was quickly closed, and. at the time of the accident plaintiff was waiting to turn off the gas if the light should again suck out while a party whom she had let upstairs was using the hot water, and plaintiff claimed that the explosion was caused by the negligence of the defendant in not cleaning the chimney, etc., and the defense was that the explosion was caused by plaintiff’s negligent act in failing to light the pilot until after a faucet had been opened by the party whom she had let upstairs, held that it must be assumed that the jury found that the accident occurred as claimed by the plaintiff.

3. Negligence, § 17 —when duty lies upon owner to put in repair heater which he is attempting to sell to owner of building. In an action by a janitress against her employer for personal injuries received through an explosion in a hot water heater contained in a building, where the defendant was the owner of the heater and had notice of its defective condition and defendant claimed that it was endeavoring to sell the heater to the owner of the building as a secondhand article, and that therefore the transaction was a bailment for the mutual benefit of the defendant and the owner, and there was no implied warranty that the heater was fit to use, and no duty rested on the defendant to put it in order, held that as the defendant was undertaking to sell the heater and as demonstrations were being made, and the defendant had notice of defects in the heater, and also knew that plaintiff would operate the heater, it was the duty of the defendant to put the same in order.