text:
    Marie Hatcher, Appellee, v. Quincy Horse Railway and Carrying Company, Appellant.
    1. Appeal and error, § 1411

      —when verdict on conflicting evidence not disturbed. The verdict in a personal injury case will not be held to be against the manifest weight of evidence where the testimony is in direct conflict and two juries have found in favor of the plaintiff.
    2. Witnesses, § 188*—when question leading. In action to recover for damages for personal injuries received through the alleged negligence of a street car company, in starting the car while the plaintiff, who -had got upon the step leading to the platform of the car, was holding to the hand hold and was in the act of raising her foot to the platform, the defense being that plaintiff did not intend to become a passenger upon the car but intended to get off again because her friend whom she was looking for was not on the car, a question on direct examination asking plaintiff to state whether or not when she “stopped at that point’’ it was- with the intention of taking the car to her home, is leading and suggestive.
    3. Appeal and error, § 1507*—when leading question harmless. A leading and suggestive question propounded to the plaintiff upon direct examination, in an action for damages for personal injuries received through the negligence of defendant in starting the car while plaintiff was trying to get on it, as to whether when plaintiff “stopped at that point” she intended to take the car to her home, is harmless where the plaintiff already had answered as to her intention.
    4. Witnesses, § 187*-—when permitting leading questions discretionary. The matter of permitting leading questions to be asked is within the sound discretion of the court.
    5. Evidence, § 165*—when question does not call for self-serving declaration. A question as to whether or not the witness, who was plaintiff in an action to recover damages against a street car company for personal injuries received through the negligence of. the company, the defense being that plaintiff did not intend to become a passenger, said anything to her friend before and just as she left her friend’s home to go to the corner where she took the car, as to where she was going and, if so, what she said to her friend, is not objectionable as calling for a self-serving declaration.
    6. Evidence, § 78*—when question as to statements to others regarding intention not erroneous. A question is not objectionable as calling for evidence not part of the res gestee where the plaintiff, in an action to recover damages for personal injuries from a street car company, the defense being that plaintiff did not intend to become a passenger, was asked as to whether or not, when and just before she left the home of her friend and went to the corner where she took the car, she told her friend where she was going and, if so, what she said to her.
    7. Evidence, § 221

      —when hearsay. Evidence that the witness, plaintiff in an action to recover damages for personal injuries from a street car company, the defense being that plaintiff did not intend to become a passenger, was told by her son, who called her up on the telephone at a friend’s house on the evening of and before the accident, and from which place she went to the corner where she attempted to take the car, that a certain friend of hers wanted her to go down town with her and that she should go home, and her friend would come down and meet her there, -is improper as hearsay.
    8. Witnesses, § 239*—what improper on redirect examination. It is improper redirect examination to ask a witness, plaintiff in an action to recover for personal injuries from a street car company, the defense being that plaintiff did not intend to become a passenger, as to what her son said to her over the telephone at her friend’s residence the evening of the accident, and from which place she later went to the corner where she attempted to take the car, the purpose being to elicit an answer to the effect that the son told her that a friend of hers wanted her to go down town with her and for her to go on home and that she would come down on the car and meet her there.
    9. Appeal and bbrob, § 1475*—when admission of hearsay harmless. It is not reversible error to permit a question and answer, which are improper as mere hearsay, to be asked and answered on redirect examination, where the evidence was called out on cross-examination, and the question and answer were explanations of the inference drawn from the cross-examination.
    10. Evidence, § 368*—when question calls for a conclusion. An answer to a question propounded to a medical expert upon the trial of an action to recover damages for personal injuries from a street car company as to whether, after the examination of a plate, it corroborated his diagnosis of the condition of the plaintiff, held objectionable as stating the conclusion of the witness.
    11. Evidence, § 395*—when question erroneous as calling for a conclusion. A question propounded to a witness as to whether or not he permitted his attention to persons who were getting on a street car to be distracted by any conversation with any of the women getting on the car is objectionable as calling for the opinion and conclusion of the witness.

      12. Evidence, § 375

      —when question calls for a conclusion. A question propounded to a street car conductor as to whether he used all the means within his power to prevent an accident to a person apparently endeavoring to get on a car is objectionable as calling for the conclusion of the witness.
    13. Evidence, § 375*—when question erroneous as calling for a conclusion. A question asking a street car conductor to state whether there was anything he did not do that might have been done to prevent an accident to a person evidently trying to get on a car is objectionable as calling for the conclusion of the witness.
    14. Evidence, § 396*—when question calls for a conclusion. A question is objectionable as calling for the conclusion of the witness where a street car conductor is asked whether or not up to a certain time he knew that plaintiff did not intend to remain on the car.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    John E. Wall, for appellant.
    Charles J. Scofield and Frank J. Penick, for appellee.

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

      See Illinois Notes Digest. Vola. 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 Scholfield

delivered the opinion of the court.

This is an action of trespass on the case of Marie Hatcher against the Quincy Horse Railway and Carrying Company to recover damages for injuries received by her through the alleged negligence "of the company. The case has been tried three times, and this is the second time the case has been brought to this court. On the first trial the jury disagreed. The second trial resulted in a verdict and judgment for plaintiff for $5,000, which was reversed and remanded by this court (181 Ill. App. 30). On the last trial the jury rendered a verdict for the plaintiff of $4,000, on which judgment was entered, to reverse which judgment the appellant has appealed to this court. The facts in this case are fully stated in the opinion of this court on the former appeal (181 Ill. App. 30).

It is first argued by appellant that the verdict is against the manifest weight of the evidence. The appellee testified that she got upon the step leading to the platform of the car and that, while she was holding to the hand hold and in the act of raising her foot to the platform, the car was started; that she held on as long as she could, and fell or was thrown from the car and that she never was upon the platform at all. In this she is partly corroborated by the testimony of Earl Farrar, Leona Johnson and Blanche and Dora Blodgett. The conductor testified that appellee was not on the step when the car started, but that she was upon the platform; that she was standing there peering into the car; that the car had been started and was then in motion; and that after the car had gone twenty-five or thirty feet, she attempted to get off, and thus received her injury. The testimony of Dr. Bice, Lyda Thompson, Florence Bower and W. E. Pringle, as to admissions made by appellee after the accident occurred, tend to corroborate the testimony of the conductor. There were but two eyewitnesses to the accident, the conductor and Earl Farrar, a boy of eleven years of age. Their testimony is in direct conflict, as is also that of appellee and the conductor; and while the testimony of the Farrar boy does to some extent conflict with that of appellee, it tends to corroborate her in that she was attempting to get on the car instead of off of it when she received the injury. The evidence is in direct conflict. Two juries have found in favor of appellee. We cannot say that the verdict is against the manifest weight of the evidence.

On the trial of the case the appellee was asked, “You may state whether or not when you stopped at that point it was with the intention of taking the car to your home near Sixth street?” Appellant objected to the question as being leading and suggestive. The court overruled the objection and the witness, answered, “Yes sir.” It is urged by appellant that this was reversible error. We think not. The question was leading and suggestive, but the question was harmless, as the witness had before testified as to her intention. The matter of permitting leading questions to be asked is within the sound discretion of the court. Peebles v. O’Gara Coal Co., 239 Ill. 370.

On the trial appellee was' also asked, “Now just before you left and as you were leaving the Balthrope home, for the purpose of going to ,12th and Main streets as you have stated, you may state whether or not you said anything as to where you were going to Miss Nellie Balthrope, and if so what did you say to her?” The question was objected to by appellant as being a self-serving declaration and no part of the res gestae. The objection was overruled and the witness answered, “I told her I was going up to the corner to take the car to go home.” We think the objection was properly overruled. Appellee was in the act of leaving the Balthrope home when she made the statement and -left immediately and forthwith went to the corner where she was to take the car. It was a speaking act and made in connection of the act proven, and was perfectly proper. Neice v. Chicago & A. R. Co., 165 Ill. App. 627; Chicago & E. I. R. Co. v. Chancellor, 165 Ill. 438.

On redirect examination appellee was asked the following question: “You may state to the jury what it was your son Barclay said to you over the telephone when you were at Miss Balthrope’s residence that evening before the accident?” The question was objected to on the ground that it was not proper redirect examination and that it was a self-serving declaration, hearsay, and no part of the res gestae. The objection was overruled and the witness answered: “He told me that Mrs. Grovert wanted me to go down town with her; for me to go home and she would come down and meet me there.” After the witness answered, appellant moved to strike ont that portion of the answer in which the witness stated, “for me to go home and she would come down and meet me there.” The motion was overruled and exceptions taken. The conversation was called out by appellant on cross-examination and the question and answer were explanations of the inference drawn from the cross-examination; and while the question and answer were improper as being hearsay and not proper redirect examination, the error is not of such harmful nature as should cause a reversal of the judgment.

Objection was also made to the testimony of Dr. Williams. He was asked this question: “After your examination of. the plate, I will ask you whether or not, in your opinion, it corroborates your diagnosis of the condition of the plaintiff?” It is argued by appellant that the question was leading and suggestive, but no such objection appears in the record. It was objected to that the witness had not identified the plate and that the question was immaterial and irrelevant. The plate was identified. We think the testimony was improper as stating a conclusion of the witness. The question bore solely on the question of damages, and there is no complaint that the damages are excessive, and the extent of appellee’s injuries are not controverted.

On redirect examination of Edgar Englehart by appellant, he was asked: “State to the jury whether or not you permitted your attention to the persons who were getting on that car to be distracted by any conversation with any of the women who were getting on that car?” This was objected to and the objection sustained. The objection was properly sustained. The question called for the opinion and conclusion of the witness.

The next complaint relates to the refusing of the court to permit the conductor to answer the following questions: “State to the jury whether you used all the means within your power to prevent this aecident?” “State to the jury whether there was anything you did not do that might have been done upon that occasion to prevent this accident?” “Up to that time tell the jury whether or not you knew that Mrs. Hatcher did not intend to remain on that car?” Objections were made to these questions and sustained by the court. The questions involved the very matter to be passed on by the jury and also called for the conclusion of the witness. The objections were properly sustained.

It is argped that the court erred in giving certain instructions for appellee and in refusing certain instructions offered by appellant. "We have examined the instructions complained of and find no reversible error in either the giving or refusing of instructions. The jury were fully instructed as to the law of the case. Finding no reversible error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholeield

license: Public Domain

text:
    Jerinette Cox, Infant, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by Jennette Cox, an infant, against the St. Louis, Springfield & Peoria Railroad to recover damages for injuries sustained by plaintiff, a child, seventeen months old. From a judgment for plaintiff for nine hundred dollars, defendant appeals.

      Abstract of the Decision.
    1. Evidence, § 461

      —when evidence shows that accident tooTe place within a city. Evidence which establishes the fact that a child was injured by a train at the intersection of two streets in a certain city, the place alleged in the declaration as the place of the injury, and as being within the corporate limits of the city, is sufficient to establish the fact that the place where the accident occurred was within the corporate limits of the city.
    2. Municipal corporations, § 105*—when ordinance admissible. An ordinance of a city regulating the speed of electric railroad cars within the corporate limits, which is printed in book form and purports to be published by authority of the city council of a city, is admissible in evidence in action by an infant against a street railroad company to recover damages for injuries sustained as a result of the negligence of the company in running its cars at a higher rate of speed than was authorized by such ordinance.
    3. Damages, § 134*—when verdict not excessive. A verdict and judgment for nine hundred dollars, in an action by an infant seventeen months old against a street car company to recover damages for injuries sustained as a result of the negligence of the company, is not excessive where the infant’s skull was crushed to such an extent that it was necessary to remove a portion of it, the infant later completely recovering from the injury.
    Plaintiff had strayed near defendant’s railroad tracks and was struck by one of defendant’s interurban cars, which was running at a higher rate of speed than was permitted by the ordinance of the city, and which crushed her skull to such an extent that it wag necessary to remove a portion' of it. The child recovered entirely from the accident.
    John B. Hardaway and Rinaker & Rinaker, for appellant.
    H. H. Willoughby and Peebles & Peebles, for appellee.

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

   Mr. Justice Scholeield

delivered the opinion of the court.


author: Mr. Justice Scholfield

text:
    Truman’s Pioneer Stud Farm, Appellee, v. Zion F. Baker et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Truman’s Pioneer Stud Farm against Zion F. Balter, J. F. Fleming, J. II. Baker and Mary C. Baker on a promissory note given by defendants for the purchase price of a stallion. The facts are fully stated in a former opinion of the court. Truman’s Pioneer Stud Farm v. Baker, 176 Ill. App. 524.)
    The horse was bought in the spring of 1907 and notes given. There was a written warranty of the stallion to be an average foal getter (if bred to any reasonable number of good breeding mares, said mares to be regularly returned, tried, and bred), and, if he should prove otherwise, he should and must be returned to Truman’s Pioneer Stud Farm at Bushnell, Illinois, and another stallion of the same breed, but of no greater value, taken in his place.
    At the end of the first year the horse having not proved up to the warranty, by agreement of the parties the trial and warranty were extended another year, or to March, 1909. In February, 1909, defendants here, tried to talk with Truman over the telephone, and say that he refused to talk. Truman said he refused to talk, except that he said to return the horse. Defendants do not claim there was any extension for another year or any waiver of the contract by Truman. The defendants kept the horse the third year without attempting to return him or having any further agreement.

      Abstract of the Decision.
    1. Sales, § 275

      —remedy of purchaser for breach of warranty under contract providing for return. The only remedy of the purchaser of a stallion for a breach of warranty, the purchaser giving notes for the purchase price, is to return tie stallion, under a contract providing that the stallion is warranted to be an average foal getter, if bred to ,a reasonable number of good breeding mares, that said mares should be regularly returned, tried and bred, and that if he should prove otherwise he should be returned and another stallion of the same breed and equal value taken in his place.
    2. Trial, § 204*—when verdict for plaintiff may be directed. A verdict may be directed where no defense is proven.
    3. Trial, § 35*—when absence of judge harmless. The improper conduct of the trial judge in being absent from the room during the final argument of a case, during which time one of the counsel makes improper remarks, is not reversible error where a verdict might have been directed and no other judgment could be sustained under the evidence.
    4. Sales, § 105*—when agreement for exchange not a waiver of original agreement. An agreement to exchange a stallion, bought under a contract with warranty, for another is not a waiver of the original contract of purchase.
    5. Set-oee and recoupment, § 10*—wh,en unliquidated damages cannot be set off. Unliquidated damages for the breach of a contract to exchange a stallion, which had been bought under another contract with the same person, for another .cannot be set off in a suit in assumpsit on promissory notes given by the purchaser under the original contract.
    E. J. Miller, for appellants.
    Frank J. Thompson, Edward O. Craig and Donald B. Craig, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.


author: Mr. Justice Thompson

text:
    Eastern Illinois State Normal School, Appellant, v. City of Charleston, Appellee.
    1. Municipal corporations, § 41

      —what powers possessed by. A municipal corporation possesses and may exercise only such powers as are expressly delegated to it by the legislature, or which are necessarily implied from those expressly given.
    2. Municipal corporations, § 799*—power as to waterworks. All of the power and authority of a city in relation to waterworks is acquired from paragraphs 254-270, 280 of ch. 24 of the statutes (J. & A. 1F1T 2012-2019, 2081).
    3. Municipal corporations, § 814*—when contract to supply water donation. A resolution adopted by a city council offering to supply the Eastern Illinois State Normal School with all the water needed by it for a term of fifty years in consideration of a payment of $5, held a donation.
    4. Municipal corporations, § 155*—power to give away property. The councilmen of a city are the .trustees of the municipality, and have no power to donate any of its property or funds.
    5. Municipal corporations, § 808a*—when may contract to supply water at fixed rate for term of years. Neither express nor implied power to permit a city to bind itself by contract to furnish water at a fixed rate for a period of years is conferred by paragraphs 254-270, 280 of chapter 24 of the statutes (J. & A. 2012-2019, 2081).
    6. Municipal corporations, § 808a*—validity of contract to furnish water for term of years. A resolution adopted by the common council of the city of Charleston, agreeing to furnish the Eastern Illinois State Normal School with all of the water it required for a term of fifty years in consideration of $5, is, although acted upon for a number of years, ultra vires and void.
    7. Municipal corporations, § S08a*—when city estopped from claiming contract to supply water is ultra vires. The acceptance by the trustees of the Eastern Illinois State Normal School of a resolution adopted by the common council of the city of Charleston, agreeing to supply the school with all of the water it needed for a term of fifty years in consideration of $5, does not estop the city from setting up that the contract is ultra vires and void.
    Eldredge, J., dissenting.
    Appeal from the Circuit Court of Coles county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the April term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.

      Statement by the Court. In 1895, the Legislature of Illinois passed an act establishing the Eastern Illinois State Normal School (sections 364 to 380 of chapter 122 entitled “Schools” [J. & A. ]]]] 10491-10507]). Section 373 (J. & A. j] 10500) provides: “The Trustees shall, as soon as practicable after their appointment, arrange to receive from the localities desiring to secure the location of said school, proposals for donation of a site, of not less than forty acres of ground, and other valuable considerations, and shall locate the same in the place offering the most advantageous conditions, all things considered, in that portion of the State, lying north of the Baltimore and Ohio Southwestern Railroad, and south of the Wabash Railroad, and east of the main line of the Illinois Central Railroad, and the counties through which said roads run, with a view of obtaining a good water supply and other conveniences for the use of the institution. ’ ’
    The city council of the city of Charleston, at a regular meeting held on July 5, 1895, before the school was located, adopted the following resolution as an inducement to procure the location of the school at that city:
    “A resolution offering the Trustees of the Eastern Illinois State Normal School, providing it be located in this city, all the water it may require for use in its buildings and on its grounds also for fire protection for the consideration of five dollars for the period of fifty years was read and on motion adopted by all voting Aye. ’ ’ The city of Charleston at that time was the owner of a municipal water plant.
    The trustees of said school were notified of said resolution and relying thereon, located the school on September 1, 1895, on a parcel of land adjoining the south corporate limits of said city of Charleston. The trustees thereafter erected buildings for said school on said land and furnished the same, and the school was opened in 1899. At the time the school was located the city had a water main about twenty feet north of its south corporate line. The trustees, after the passage of said resolution and the location of the school, tapped said water main and connected therewith water pipes extending to the school grounds and buildings, and the school has ever since maintained said water pipes at its own expense and derived its water supply from the said municipal water plant. In 1904, the land on which the school is located was annexed to and included within the city limits.
    On May 15,1913, the city council voted to discontinue furnishing water to the school without charge, and in July, 1913, passed an ordinance fixing the rates for water at nine cents per thousand gallons and authorizing the water board to install water meters wherever in their judgment it was necessary, the cost of the meter and installation to be charged to the consumer. The city installed two meters in the service pipes connected with the school at a cost of $309.30, and served notice on the trustees that on October 1st the meters would be read and a bill rendered for water consumed to that date; that a bill would be rendered monthly thereafter, and that unless the bills for installing the meters were paid and arrangements made for payment for the water consumed the supply would be cut off without notice. In November, 1913, the rate was by ordinance changed to six and one-half cents per thousand gallons. The city now demands $188.64 water rent from August 25, 1913 to October 1, 1913.
    The school has an attendance of 500-students and 33 teachers. It has several large buildings used for educational and dormitory purposes, which are heated by steam. The only water supply it has is from the municipal water plant of the city of Charleston and which it has used under the resolution passed by the city council before the school was located.

      The city now threatens to cut off the water supply unless the school pays for the installation of the meters and the water used through them at the rate fixed by the ordinance.
    The school filed a bill in chancery praying for an injunction restraining the city and its officers from obstructing or interfering with the flow of city water from the city mains into the water pipes of the school; that the ordinances passed by the city council be decreed null and void as to the complainant, and that the city be decreed to comply with the terms of the resolution passed before the location of the school. A temporary injunction was issued. The defendant filed a special demurrer to the bill, which on the hearing was sustained and complainant standing by its bill, judgment was rendered dismissing the bill for want of equity. The complainant appeals.,
    T. N. Cofer and P. J. Lucey, for appellant
    John T. Kincaid and Albert C. Anderson, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

The question presented by this record is whether or not the offer made by the city of Charleston in the resolution adopted by the city council on July 5, 1895, and its acceptance by the trustees of appellant, coupled with the location and maintenance of the school at the city of Charleston is a legal, valid and enforceable contract.

The primary question is whether or not the appellant had the right and authority to make the offer and contract set forth in the resolution. The bill contains no allegations concerning the organization of the city of Charleston nor any allegation concerning any right or authority in the city council to make contracts in the nature of that which it is contended was made by the passage of the resolution by the city council and its acceptance by the trustees of appellant.

It is only from the allegations, that the name of appellee is the city of Charleston and that it has a city council and corporate limits that the inference is drawn that it is a municipal corporation. However, both parties state that appellee is a. municipal corporation.

Municipal corporations may exercise only such powers as are expressly delegated tó them by the legislature and such as are necessarily implied from-those expressly given. City of Chicago v. N. & M. Hotel Co., 248 Ill. 265; Smith v. McDowell, 148 Ill. 51; People v. Board of Education Paris Union School Dist. 255 Ill. 572; Illinois Cent. Hospital for Insane v. City of Jacksonville, 61 Ill. App. 199: There is therefore no such thing as an inherent power in any municipality which is created by legislative enactment.

Cities get all their power and authority relating to waterworks from paragraphs 254 to 270 and 280 of chapter 24 of the statute (J. & A. 2012-2019, 2081). Under section 254 (J. & A. 2012) cities are authorized and have power, “to provide for a supply of water for the purposes of fire protection, and for the use of the inhabitants of such cities, incorporated towns or villages by the erection, construction and maintaining of a system of water-works or by uniting with any adjacent city, incorporated town or village, in the erection, construction and maintaining of a system of water-works for the joint use of such cities, incorporated towns or villages, ’ ’ etc.

“The business of furnishing the inhabitants of a city with water by means of water works so constructed as to bring the water from some permanent source of supply and distribute it by means of pipes laid in the street's to the residences and places of business of those desiring to obtain their water supply in that manner, though not an exercise of the powers of sovereignty is undoubtedly a business which is public in its nature, and belongs to that class of occupations or enterprises upon which a public interest is impressed.” Wagner v. City of Rock Island, 146 Ill. 139; City of Danville v. Danville Water Co., 178 Ill. 299.

Section 257 of chapter 24 of the statute (J. & A. 2015) provides: “The common council of such cities * * * shall have power to make and enforce all needful rules and regulations in the erection, construction and management of such water-works, and for the use of water supplied by the same. And such cities * * * shall have the right and power to tax, assess and collect from the inhabitants thereof such tax, rent or rates for the use and benefit of water used or supplied to them by such water-works, as the common council * * * shall deem just and expedient. And all such water taxes, rates or rents shall be a lien upon the premises and real estate upon or for which the same is used or supplied. And such taxes, rents or rates shall be paid and collected, and such lien enforced, in such manner as the common council shall, by ordinance, direct and provide. ’ ’

The act of the legislature establishing appellant provides for the donation of a site and other valuable considerations from localities desiring to secure the location of appellant. The resolution offering to the trustees all the water the school may need for use in its buildings and on its grounds and for fire protection for the consideration of $5 for fifty years, is an offer to donate all the water the appellant may require for fifty years. 'The fact that the sum of $5 is mentioned as a consideration does not relieve the contract from the charge that it is a donation.

The city councilmen are trustees of the municipality, and have no authority to donate any of the funds or property of the city. “Every one is presumed to know the extent of a municipal corporation’s control of its public funds, and such a corporation cannot be estopped to aver its incapacity when an effort is made to enfórce against it a contract which it had no authority to make.” People v. Parker, 231 Ill. 478; Hope v. City of Alton, 214 Ill. 102; Roemheld v. City of Chicago, 231 Ill. 467; City of Danville v. Danville Water Co., supra.

Counsel for appellant cite the cases of Burre v. City of Carbondale, 76 Ill. 455, and City of Chicago v. University of Chicago, 131 Ill. App. 361, affirmed in 228 111. 605, as holding that the city council had authority to bind appellee by the resolution adopted by it. The City of Carbondale case, supra, is not in point for the reason that the question involved was the donation of certain bonds voted to secure the location of the Southern Illinois Normal University. In 1869, the legislature passed an act authorizing cities and towns in southern Illinois to issue bonds in aid of the Southern Illinois University (Sess. Laws 1869, page 247), so that in that case cities had been expressly authorr ized by the State to make such donations. In the University of Chicago case, supra, where the question presented by the bill was the validity of an ordinance directing the water rates assessed against charitable, religious and educational institutions within the city of Chicago to be remitted and canceled, the city in its answer to the bill filed by the university, alleged the validity of the ordinance. The Supreme Court affirmed the case for the reason that the “city cannot now be heard to say that the Circuit Court erred in adopting its view,” and did not pass upon the question of the right of a municipality to donate water to the university.

The powers conferred by the statute on cities neither expressly nor impliedly authorize a city to bind itself by contract to furnish water for a period of years at a fixed rate, (Illinois Cent. Hospital for Insane v. City of Jacksonville, supra), and a city council -hag the right to change the rates at any time (City of Danville v. Danville Water Co., supra), hence the members of one city council cannot by contract bind their successors.

We are of the opinion that donations, of the kind requested by the act creating appellant, can only be made by individuals and private corporations desiring the location in the vicinity and not by municipalities. The proposals must come from the people of the locality as individuals. The locality is not the municipality. The donation proposed by the resolution of the city council of the city of Charleston was unauthorized and ultra vires.

It is further contended by appellant that since the proposal in the resolution was accepted by the trustees of appellant and the school erected and maintained, the city is estopped to deny the validity of the contract.

‘ ‘ The doctrine of ultra vires is applied with greater strictness to municipal bodies than to private corporations. (1 Smith on Mun. Corp. sec. 661.) Persons dealing with a municipal corporation are chargeable with notice of its powers to contract. * * * A municipal corporation is not estopped from denying the validity of a contract when there was no authority for making it.” Hope v. City of Alton, supra; May v. City of Chicago, 222 Ill. 595; Snyder v. City of Mt. Pulaski, 176 Ill. 397; City of Danville v. Danville Water Co., supra. The contention of appellant that appellee is estopped to deny the validity of the contract cannot be sustained. The decree is affirmed.

Affirmed.

Mr. Justice Eldredge dissents.


text:
    Kinch Tudor, Appellant, v. F. H. Phipps, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action of replevin by Kinck Tudor against - F. H.' Phipps before a justice of the peace. On an appeal to the Circuit Court on September 30, 1912, the court directed a verdict in favor of the defendant. On that day, on a motion for a new trial being overruled, the plaintiff prayed an appeal to this court, which was allowed upon the filing of a bond within twenty days, and a bill of exceptions within ninety days.
    The common-law record made by the clerk of the Circuit Court shows that on October 21, 1912, plaintiff filed a motion to set aside the order overruling a motion for a new trial, the entry of judgment and the order fixing the time to file an appeal, bond and that a similar motion was also filed November 13, 1912. On January 9,1914, at the September term, 1913, the motions were overruled, and on January 24, 1914, the plaintiff was allowed an appeal to this court on filing a bond within twenty days, and a bill of exceptions within one hundred days. On May 4,1914, a bill of exceptions, was filed, which showed neither a motion for a new trial on September 30, 1912, nor anything that occurred subsequent to the entering of judgment on that day, other than the prayer for an appeal. Neither did the bill of exceptions contain anything as to any motions, or rulings thereon, at the March term, 1914.
    The only bill of exceptions in the case was filed May 4, 1914. The time for filing a bill of exceptions given in September, 1912, after a final judgment had been entered, was never extended.
    Abstract of the Decision.
    1. Appeal and error, § 800

      —necessity of preserving ruling on motions in hill of exceptions. Where error is to be assigned, on the decision of a court upon a motion, the ruling thereon together with an exception must be preserved in a bill of exceptions.
    2. Appeal and error, § 839*—when hill of exceptions stricken from the files. A bill of exceptions will he stricken from the files when not filed until after the expiration of the time granted by the court.
    3. Appeal and error, § 839*—when hill of exceptions not timely filed. A bill of exceptions filed May 4, 1914, where the only order made required a filing within ninety days from September 30, 1912, does not constitute a proper appeal, where no further extension was granted and the bill does not show any subsequent motions or rulings thereon.
    John E. Jennings and William M. Moran, Jr., for appellant.
    Vause, Hughes & Kiger, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Edwin L. Foell, Appellant, v. Christ Rasmussen, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the October term, 1914..
    Reversed and remanded.
    Opinion filed April 16, 1915.

      Abstract of the Decision.
    1. Appeal and eeeob, § 384

      -L^when objection essential to review. Evidence admitted without objection will not be reviewed on appeal.
    2. Weapons, § 1*—when answerable for accidental discharge of gun. Where, while the plaintiff and defendant were hunting together, the latter’s gun, as he was turning in the direction of the plaintiff in order to shoot at a rabbit, was discharged to the plaintiff’s injury, when the defendant’s thumb, which was numb with cold, slipped from the hammer of. the gun, held that the accident was due to the negligence of the defendant in pointing the loaded weapon towards the plaintiff.
    3. Weapons, § 1*—burden to show accidental discharge of gun. Where a person is injured by the discharge of a gun in the hands of and under the exclusive control of another, the burden rests on the latter to prove that he was without fault.
    Statement of the Case.
    Action on the case brought by Edwin L. Foell against Christ Rasmussen to recover damages for the loss of a leg caused by the discharge of a gun in the defendant’s hands. From a verdict and judgment in favor of the defendant, the plaintiff appeals.
    The evidence showed that the appellant and appellee with others were hunting together during cold weather; that the former shot at and missed a rabbit, and that the appellee, who was within a few feet from and in plain sight of the appellant, turned to shoot at it, pulling back the hammer of his gun as he did so, when the hammer slipped from his numbed thumb and the gun was discharged, when it was in range of the appellant’s leg, inflicting a wound which necessitated amputation.
    William A. Kane, for appellant.
    John E. Hogan, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the

court.


text:
    In re Probate of Will of Mary Schmanda, Deceased. John Schmanda, Proponent, Appellant, v. Mary Schmanda, Contestant, Appellee.
    Wills, § 94

      —when execution of will fraudulently obtained. The evidence held to show such fraud and improper conduct on the part of the proponent to justify the denial of the probate of a will, where it appeared that a friend of the proponent, who was but slightly acquainted with the testatrix, a Polish woman who did not speak English, examined a former will and informed her that it was not good but that the person who drew it had played a trick on her, acted as interpreter for an attorney who did not understand Polish, who was employed by the proponent to prepare a will under which the latter was the principal beneficiary.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    O. D. Mann and Morris Loeff, for appellant; E. M. Seymour, of counsel.
    A. B. Dennis and W. O. Edwards, for appellee.

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

   Mr. Justice Thompson

delivered the. opinion of the court.

An instrument in writing dated February 3, 1914, purporting to be the last will and testament of Mary Schmanda, deceased, was filed in the County Court of Vermilion county, with a petition for its probate, and upon the proof offered probate was refused. From that order an appeal was prosecuted to the Circuit Court, where upon a hearing probate of the will was refused. John Schmanda, the proponent, prosecutes this further appeal.

The evidence shows that Mary Schmanda was a widow, a Polish woman who did not speak English. She resided in Westville in Vermilion county and had an adopted daughter, Mary Schmanda, about twelve years of age, who is the party contesting the probate of the will.

John Schmanda, the proponent and sole legatee under the will, is a brother of the deceased husband of testatrix and resides in Chicago, where he is in the employ of Swift & Company. On February 3, 1914, and for some time prior thereto, the testatrix was seriously ill and confined to her bed. At that date the testatrix was living with Frank Suzn and his wife in a house where her husband had died, and which the testatrix about the date of her husband’s death had deeded to Frank Suzn under an agreement that the Suzns should care for testatrix during her natural life.

On Sunday, February 1, 1914, the proponent, John Schmanda, left Chicago and went to Westville for the purpose of having the testatrix execute a will. Before leaving Chicago he made an arrangement with Simon K. Obrzut, a Polish interpreter and real estate agent in Chicago, to go to Westville to assist in the making of the proposed will. Obrzut had an engagement in Chicago for Monday and went to Westville to the home of the testatrix on Tuesday. The only acquaintance' Obrzut had with the testatrix was that he had met her once in Danville some eight months before that time, when he had gone there to execute a bond for a friend of Schmanda who was in jail charged with bastardy. On arriving at the home of the testatrix, Obrzut inquired of her if she had a will and she told him she had. He said, “Let me see it.” She replied, “All right,” and showed it to him. After seeing the writing shown him by Mrs. Schmanda, Obrzut “told her it was no will,” that it “wasn’t any good” and was only a receipt for money, and that one Otto Newman, who had prepared the writing shown him, “had been playing some kind of a trick on her. ’ ’ That same afternoon the proponent with Obrzut and John Majorsik, a Polish man who lived in Kellyville and with whom Mrs. Schmanda had not been on good terms for some time, went to Danville, where the proponent employed Mr. Brittingham, an attorney, to go to Westville and draw a will for Mrs. Schmanda.

Mr. Brittingham, who is an American and does not talk Polish, accompanied by the proponent, Obrzut and Majorsik, went to Westville, where Mr. Brittingham prepared the instrument in controversy. Obrzut was the means of communication between the testatrix and the scrivener. He translated, in the presence of the beneficiary and others, from English to Polish the questions asked by the scrivener, and from Polish to English the replies and statements made by the testatrix.

The will is witnessed by Obrzut and Majorsik, both of whom speak Polish, and by Brittingham and Mr. Hamilton, neither of whom speak or understand Polish.

There is a clause in the will: ‘ ‘The above devise is made upon condition that John Schmanda care for me during my natural life, * * Although the testatrix already had conveyed her home to Suzn upon a promise of Suzn to care for her. The legatee was present when the will was drawn and executed. This clause tends to show that there was some influence brought to bear on the testatrix to execute the will in proponent’s favor.

Each of the four attesting witnesses testified that the testatrix was of sound mind and memory, and that the testatrix signed the will in their presence and acknowledged it to be her will. It is very apparent that the English speaking witnesses could know but little about such matters from their own knowledge, and that they relied for their knowledge on the information obtained through the Polish interpreter. The proponent made the proof necessary to require the will to be admitted to probate, “provided that no proof of fraud, compulsion or other improper conduct be exhibited, which in the opinion of said County Court shall be deemed sufficient to invalidate or destroy the same.”

The undisputed facts—that the sole beneficiary, before seeing the testatrix, made an arrangement in Chicago with his friend Obrzut, who was comparatively a stranger to testatrix and who was, as Obrzut himself states, unable to draw a will, to go all the way from Chicago to Vermilion county to look after the making of a will for the testatrix to be prepared by some other person; that Obrzut immediately on reaching West-ville inquired of the testatrix if she had made a will, and on learning she had, then asked to see it and told her that the paper shown him was not a will and that the party who drew it was playing a trick on her; that Obrzut with the other Polish attesting witness, who was not a friend of the testatrix, with the beneficiary went to Danville to employ a lawyer to draw the will, and that the Chicago witness and friend of the sole beneficiary did all the talking and interpreting between the scrivener and the testatrix—constitute such proof of fraud and improper conduct on the part of the proponent that the trial court was justified in refusing to admit the will to probate.

No question except the refusal of the court to admit the will to probate on the evidence properly in the record is argued or presented for review. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    C. M. Williams, Appellant, v. J. A. McKeene, Administrator, Appellee.
    1. Mabbiaoe, § 4

      —marriage of man and daughter of half sister. A marriage between a man and the daughter of his half sister is within the prohibition of section 1 of chapter 89 of the statutes (J. & A. If 7345) of marriages between uncles and nieces.
    2. Mabbiage, § 17*—when validity of marriage may he attacked in prohate proceeding. Since a marriage between a man and the daughter of his half sister is forbidden by section 1 of chapter 89 of the statutes (J. & A. If 7345) and is therefore void, its validity may be questioned in a proceeding to obtain administration on his estate.
    Appeal from the Circuit Court of Scott county; the Hon. Nob-man L. Jones, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed April 16, 1915.
    J. M. Riggs and T. J. Priest, for appellant.
    John A. McKeene, pro se.

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

   Mr. Justice Thompson

delivered the opinion of the court.

A petition was filed in the County Court of Scott county by Laura J. Williams, alleging -that she was the widow of A. J. Williams, deceased, waiving her right to administer on the estate of the deceased, and nominating J. A. McKeene as administrator. The court made an order appointing McKeene administrator. On the same day but subsequent to the entering of the order appointing McKeene administrator, C. M. Williams filed a petition alleging that A. J. Williams died intestate leaving no widow and leaving six children, of whom petitioner is one, surviving him. The petition of C. M. Williams also alleges that Laura J. Williams is not the widow of the deceased because she was his niece by consanguinity. This petition prayed that the order appointing McKeene administrator be set aside and that petitioner be appointed. The County Court denied the prayer of the last petition and dismissed it. An appeal was taken to the Circuit Court, where the court held that Laura J. Williams was the widow of A. J. Williams, denied the prayer of the petition of C. M. Williams and dismissed it. The petitioner Williams prosecutes this appeal from the order of the Circuit Court.

On the hearing in the Circuit Court it was stipulated that A. J. Williams and Laura J. Duncan prior to March 7, 1896, were residents of Illinois, living in the same house in Glasgow, Scott county; that Laura J. Williams is a daughter of a half sister of said A. J. Williams; that about March 7,1896, they went to Texas for the sole purpose of getting married; that they procured a license to marry and a marriage ceremony was performed for them in Texas by a minister of the Gospel, authorized to celebrate the marriage rite, and that they immediately returned to. Glasgow, Illinois where they lived together as man and wife until A. J. Williams died, October 14, 1912; that no children were born to Laura J. Williams and A. J. Williams and that A. J. Williams left C. M. Williams and other children surviving him, his children by a former wife who died before the Texas marriage. Appellant also introduced in evidence sections 329, 330 and 331 of the statutes of Texas, entitled, “Incest.” f

Section 329 provides: “All persons who are forbidden to marry by the succeeding articles, who shall intermarry or carnally know each other shall be punished by imprisonment in the penitentiary.”

Section 330 provides: “No man shall marry * * # the daughter of his half brother or sister * *

Section 331 provides: “No woman shall marry # # * her father’s brother or half brother, her mother’s brother or half brother * * *.”

Appellee introduced in evidence section 2838 of the Texas statutes which authorizes regularly ordained ministers of the Gospel to celebrate the rite of marriage.

■ Section 1 of chapter 89 of the statutes of Illinois (J. & A. ft 7345) provides: “That hereafter marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half, as well as of the whole blood, between uncles and nieces, aunts and nephews, and between cousins of the first degree, are declared to be incestuous and void. ’ ’

The contentions of appellee are that under the statute of Illinois a marriage between an uncle and a niece of the half blood, a daughter of a half sister, is not prohibited and that they did not leave Illinois to evade the law of Illinois and for the purpose of going to Texas to have an illegal ceremony performed, in a State where such a marriage is declared to be incestuous, and that the validity of the marriage cannot be determined, in a proceeding to appoint an administrator of the estate of the deceased.

The statute of Texas clearly forbids the marriage of a man with a daughter of.his half sister. Laura J. Duncan was the daughter of a half sister of A. J. Williams. 'The law of Illinois declares that marriages between uncles and nieces are incestuous and void. A man’s niece is the daughter of his sister, and a “sister,” in so far as the term relates to a human being, is defined by Webster in his dictionary to be, “a female person considered in the relation to another person * * * having the same parents (whole sister) or one parent (half sister).” The State of Louisiana has a statutory provision in relation to marriage literally identical with the statutes of Illinois, prohibiting marriages between “uncle and niece. ’’ On the prosecution of a man in Louisiana for having incestuous relations with a daughter of his half brother, the defendant was found guilty and the conviction was affirmed by the Supreme Court of that State. State v. Guiton, 51 La. Ann. 155. The same rule was held in State v. Wyman, 59 Vt. 527; State v. Reedy, 44 Kan. 190; State v. Pruett, 144 Mo. 92; Simon v. State, 31 Tex. Cr. App. 186; People v. Jenness, 5 Mich. 306; Shelly v. State, 95 Tenn. 152.

The statute of Illinois, title “Descent,” sec. 1, par. 5 (J. & A. if 4202) provides that property “shall descend in equal parts to the next of kin to the intestate in equal degree (computing by the rules of the civil law), and there shall be no representation among collaterals, except with the descendants of brothers and sisters of the intestate; and in no case shall there be any distinction between the kindred of the whole and the half blood.” Thus the rule of the civil law is recognized in Illinois in arriving at the degrees of blood relations. The statute of Henry VIII, ch. 38, provided: “All persons be lawful to contract marriage, that be not prohibited by God’s law to marry, and no reservation or prohibition (God’s law except) shall trouble or impeach any marriage without the Levitical degrees.” Chapter 28 of the statutes of Illinois (J. & A. ff 2222) adopts the common-law of England and all statutes of the British Parliament in aid thereof prior to the fourth year of James I, except certain excepted chapters, among which 38 of Henry VIII is not included, so that it would appear that the present statutes of Illinois concerning marriage are simply declaratory of the common law with the addition thereto that marriages contrary to the provisions thereof are declared to be void.

Marriages made within the prohibited degrees were formerly held to be voidable only and they could be attacked only during the lifetime of the parties, but the tendency in the United States is to hold them absolute’ ly void, and the statute of Illinois declares such marriages void.

In Bonham v. Badgley, 7 Ill. (2 Gilm.) 622, it was held that marriag’es within the Levitical degrees were not void hut only voidable. That case was decided before there was a statute in this State declaring such marriages void, and is not authority under the present statute.

In Wilson v. Cook, 256 Ill. 460, in a proceeding to sell land of a deceased person to pay debts, where the parties had been married in another State in violation of the statute of Illinois, prohibiting the marriage of a divorced person within one year, it was held that the survivor was not entitled to dower and homestead in the premises of the supposed deceased wife for the reason that the marriage was void under the statute. The statute declaring marriages between uncles and nieces to be void is a declaration of the public policy of the State in the interest of the welfare and morals of the people of the State. Lanham v. Lanham, 136 Wis. 360; Nehring v. Nehring, 164 Ill. App. 527. A void contract is one which has no legal effect. It is, in effect, not a contract and does not alter the relations previously existing between the contracting parties, nor will it serve as the foundation of any right. Allen v. Davenport, 65 C. C. A. 641, 132 Fed. 209; 40 Cyc. 214; 29 Am. & Eng. Encyc. of Law, 1065. The marriage of Laura J. Duncan and A. J. Williams was forbidden by the statutes of both Texas and Illinois and is void. A direct proceeding to have it declared void was unnecessary, since it is declared void by the statute. It could be questioned in any proceeding whenever anything was claimed under it. Wilson v. Cook, supra. The order of the Circuit Court is reversed and the cause remanded with directions to the Circuit Court to set aside and vacate the order appointing appellee administrator and to appoint appellant administrator upon Ms filing a good and sufficient bond and taking the necessary oath.

Reversed and remanded toith directions.


text:
    Anna Sloan, Appellee, v. F. W. Woolworth Company, Appellant.
    1. Sales, § 254

      —when retailer impliedly warrants wholesomeness of food. There is an implied warranty of the wholesomeness of canned goods sold by a retailer for immediate consumption.
    2. Sales, § 254*-—when retailer answerable for injuries due to unwholesome food. A retailer of canned goods is answerable on an implied warranty to a purchaser who, in the exercise of due care for her health, sustains damages from eating impure fish.
    3. Action, § 12*—when action lies for breach of statute. A civil action lies for injuries caused by a violation of a public policy statute, although a right of action is not created in express terms.
    4. Sales, § 282*—when evidence shows due care in eating canned food. In an action against a retailer for injuries arising from the breach of an implied warranty of the wholesomeness of canned fish, want of due care on the part of the purchaser is not shown by the fact that she took several bites of the fish after noticing that it was tasteless, and that the tomato sauce in which it came was not. the right color.
    5. Sales, § 283*—when due eare in eating unwholesome food question for jury. Whether the purchaser exercised due care for her health in eating unwholesome canned fish is a question for the jury, in an action against a retailer for the breach of an implied warranty of fitness, where she took but three or four bites after finding the fish tasteless, and noticing that the tomato sauce in which it came was not of the right color.
    6. Sales, § 282*—admission of evidence in action for injury from unwholesome food. The question whether a retailer undertook to supply the necessary skill in selecting canned goods for customers is immaterial in an action for injuries caused by the breach of an implied warranty of the wholesomeness of canned food, since it was his duty to use the skill necessary to supply wholesome goods.
    7. Damages, § 24*—sufficiency of evidence of loss of time and

      earnings. Evidence that a woman earned from eighty to one hundred dollars in commissions by canvassing just prior to an injury, and that she had not been able to earn anything since, held sufficient proof of the loss of time and earnings to take the question to the jury.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Brown, Brown & Brown, for appellant.
    Le Forgee, Vail & Miller, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Appellee recovered a judgment ag’ainst appellant for $500 in an action on the case for damages averred to have been sustained by her from eating part of the contents of a can of herring sold to appellee by appellant.

The declaration contains seven counts. Each count avers that appellant owned and operated a retail store in the city of Decatur, at which store appellant sold' to the public at retail, divers articles of merchandise, among which were canned articles of food. The first count pleads the statute of Illinois, which makes it unlawful for any person or corporation to sell any flesh of any diseased animal or other corrupt or unwholesome provision and avers that the appellant, not regarding its duty in that behalf sold to the appellee a tin of herring, which was corrupt and unwholesome and the flesh thereof diseased, of which fact the appellee was ignorant and in the exercise of due care for her own safety would not have known, and that appellee on the same day ate the said herring and by reason of its'unwholesome and corrupt condition became poisoned and diseased, etc.

The second count avers the provision of section 6 of the Pure Food Act of 1907 (J. & A. 10745), which makes it an offense for a retail dealer to have in his possession any article of food which is misbranded or adulterated and of section 8 (J. & A. If 10747), which provides that any article of food shall be deemed adulterated which consists in whole or in part of decomposed, infected, tainted or rotten animal or vegetable substance, and avers that the can of herring sold to appellee was adulterated in that its contents consisted in part of decomposed, infected and tainted substance. The third and fourth counts aver the same provisions of the statute as the second and that the can of herring was branded “fresh fat herrings in tomatoes,” whereas said herring were not fresh but were decomposed and tainted.

The fifth and sixth counts aver that appellant falsely ■ warranted the herring to be good, sound, healthy and fit for food. The seventh avers that appellant negligently sold appellee herring which was tainted, corrupt and poisonous. The plea is the general issue.

The evidence shows that on October 29, 1913, appellant was conducting a five and ten cent store in Decatur and on that day had a special sale of canned goods among which were “Nord Star” herring. The herring, in sealed cans labeled “Nord Star. Brand, Fresh Fat Herrings in Tomatoes, Strohmery and Art Company, N. Y., net contents five oz. Packed at Stavanger Norway,” were lying on a counter wrapped in wax paper. Appellant picked up a can, removed the paper, examined it, saw no defects in it and paid ten cents for it. At her home she opened the can, placed the contents on a china platter and served it for supper that night. The dishes, knives and forks were clean. Appellee testified that she ate four or five bites of the herring, said it was spoiled and ate nothing else for supper; that she noticed that the sauce looked brown; 'that the herring was tasteless; that they fell apart when she put them on the platter and that she thought she had shaken them too hard to get them out of the can. Immediately after partaking of the herring, she became sick at her stomach and was unable to eat anything more and continued in that condition through the night, becoming worse the next day. Both her husband and daughter were made sick. She examined the can the next morning and found it discolored and rusty on the inside, particularly around a knob on the inside where the tin plate was broken through. Appellee the next morning telephoned to a physician, who said he thought she had -ptomaine poisoning, and at his direction she took some castor oil. She remained ill several days and the next week claimed to be unable to walk. She was confined to her bed about a week. Afterwards she went to see the physician to whom she had telephoned but did not find him in his office. - After she had been ill about two weeks, she went to see Dr. Pollock, who diagnosed her case as ptomaine poisoning. He treated her a couple of days. She then visited another physician who treated her a couple of days, when she visited a fourth physician, Dr. Chenowith, who treated her for some time. The physicians testified she had symptoms of ptomaine poisoning and described the symptoms. The trial was in January, 1914, and one of the physicians testified she would not fully recover for sixty days from that time.

It is contended on behalf of appellant that there can be no recovery by appellee in this case because there is no warranty of the wholesomeness of provisions in cans sold by a retailer for immediate consumption; that there is a distinction between a sale of provisions open to inspection and provisions packed in cans or packages.

While that is the rule in some jurisdictions, the courts of Illinois appear to have held the contrary to be the rule in this State. In Wiedeman v. Keller, 171 Ill. 93, the opinion states: “Whether a retail dealer in meats and provisions for consumption is to be regarded as a warrantor that the goods he sells for immediate consumption are sound, wholesome, and free from all defects that may injure the health of the purchaser, or whether the vendor is relieved of responsibility where he has no knowledge of the defective character of the articles sold, and has used reasonable and ordinary care to guard against the selection or purchase of defective or unwholesome articles for sale to his customers * * * ” is a question “not free from difficulty, and one upon which text-writers and courts are not harmonious * * and concludes: “In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk. Moreover, we have a statute which makes it a crime for any person to sell or offer to sell, or keep for sale, flesh of any diseased animal. (Hurd’s Stat. 507.)”

The foregoing was announced as the law in this State in 1897. The Appellate Court of the First District in Chapman v. Roggenkamp, 182 Ill. App. 117, also has passed on the question involved in this case and held a retailer of canned goods liable for damages from ptomaine poisoning caused by eating such goods which were impure. Since the opinion was rendered in the Wiedeman case, the Pure Food Statutes was passed in 1907. The statute (Hurd’s St. ch. 127 b, secs. 6-9, (J. &. A. ¶¶ 10745-10747) is simply an enunciation of the law and affixes a penalty upon sales made in violation of it. These statutes are police regulations in the interest of public health, and do not make knowledge by the retailer a necessary element of the offense. .The question whether lack of knowledge by the retailer of the impure or tainted condition of such goods was or was not a defense to an action for damage under the Federal Pure Food Law was passed upon and held not to be a defense in United States v. Sprague, 208 Fed. 419; and the same rule was held under a similar statute of Minnesota in Meshbesher v. Channellene Oil & Manufacturing Co., 107 Minn. 104.

A civil action for injuries caused by a violation of public policy statutes will lie although the statute may not in terms give a civil right of action. Purtell v. Philadelphia & R. Coal & Iron Co., 256 Ill. 110; Streeter v. Western Wheeled Scraper Co., 254 Ill. 244. The conclusion to be drawn from a consideration of the authorities is that appellant was liable, if appellee in the exercise of due care for her health sustained damages from eating impure and tainted food sold by appellant.

It is also insisted that because appellee saw that the tomato sauce looked brown and the herring was tasteless, that appellee was not in the exercise of due care. The appellee only partook of a bite or two and then got up to wait on the table and then took another bite, when she was taken ill. We think the question of care exercised by appellee was for the jury to decide from all the evidence. Prudent persons might have done exactly what appellee did. If things that people eat do not always look alike and because of that fact it is necessary to stop and have them analyzed before eating, then there would be much hunger in the midst of plenty.

It is also argued that the court erred in sustaining an objection to a question put to the manager of appellant’s store: Does the defendant in that business undertake to supply the necessary skill in selecting goods for customers? It was immaterial what appellant undertook to do. Under the law it was obliged to use the skill necessary to supply wholesome goods for its customers. The objection was also properly sustained because of the leading character of the question and the further fact that it calls for a conclusion.

It is further contended that the court erred in giving appellee’s third instruction, which concerns the measure of damages, if they should find for appellee. This instruction included her loss of time and inability to work as one of the elements of damage. Her evidence shows that she had earned from eighty dollars to one-hundred dollars a month taking orders for goods on a commission, just prior to her illness. Since the injury she has not been able to do anything. Appellant argues that because she has not an established business, she is not entitled to recover anything for her loss of time. Appellee made proof of her earnings and loss of time sufficient to submit that element of damages to the jury.

It is also insisted that the court erred in refusing two instructions requested by appellant. What we have said concerning the law governing such sales fully answers this contention of appellant.

Finding no error in the case the judgment is affirmed.

Affirmed,.


text:
    O. G. Leverich, Appellee, v. Danville Collieries Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R E. Kimbbough, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at .the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action brought by O. Gr. Leverich against the Dan-ville Collieries Coal Company to recover damages for personal injuries sustained while in its employ as a coal miner. The plaintiff recovered a verdict and judgment for $5,000, from which the defendant appeals.
    The declaration averred a wilful violation of section 21 of the Miners’ Act (J. & A. 7495), in that the defendant permitted plaintiff to enter its mine and work therein, without being under the direction of a mine manager, while a dangerous condition existed without a conspicuous mark being displayed at the dangerous place.
    The evidence showed that the appellee had turned a room and worked therein about forty days; that the room had a horseback in its neck, which caused the grade to be slightly upwards .from the entrance, and, from the edge of the horseback, for a few feet suddenly declining into the room. That a car track of iron rails was laid from the entrance of the room to the edge of the horseback nearest the face of the room, and then wooden rails laid in the room from the end of the iron rails. That the wooden rails from the point where they joined the iron rails to the end of the decline had been raised upon cross ties to a height of from six to fourteen inches which made holes from six to fourteen inches deep between the wooden rails, the horseback and the cross ties, that from the edge of the horseback the track descended very rapidly so that in the space of a few feet—from five to nine—the track was level and on the rock; that when cars were pushed into the room, they would suddenly lurch forward as they passed over the horseback, and that the appellee had to hold and steady them as best he could so as to prevent them from jumping the track and knocking the timbers down; that he had talked about the condition with the mine manager several times, and that the latter promised to have the condition remedied as soon as iron rails could be procured.
    The appellee testified that on December 28, 1910, as he was pushing a car into the room for the purpose of loading it, as it went over the ridge, while attempting to hold it, it jerked forward and pulled him into a hole between the rails and that his foot was caught and he was wrenched and his hip twisted; that, although sick with pain, he continued at work with difficulty that afternoon. On the way home he had a chill, his leg pained him and swelled up badly that night; that he worked a little the n'ext day, and then consulted Dr. Hundley, who told him that his trouble was rheumatism caused by a sprain, and that exercise would be good for his leg; that appellee worked more or less for about two weeks, during which time Dr. Hundley treated his leg which was badly swollen; that appellee continued going to him for treatment for about five weeks; that he then went to Dr. Landauer for several weeks, and that the latter sent him to Mudlavia for a week in March to see if treatment there would not reduce the soreness and swelling; that in April Dr. Landauer discovered that the hip joint was dislocated, and took appellee to a hospital, where with other doctors an operation was performed; that the hip joint was opened and it was found that the rim of the acetabulum was broken, and several loose pieces of bone were removed.
    It was contended by appellant that the condition of the entrance to the room was not such a dangerous one as was within the meaning of the statute giving a remedy for injuries received because of a dangerous condition in mines, and that it was only conditions peculiar to the mining business that were within the contemplation of the act.
    Instruction No. 9 given at the request of appellee told the jury that a mine examiner had no authority to determine contrary to the fact; that a place was not dangerous and that the fact that the mine examiner in good faith thought the place was not dangerous was not an excuse for failing to mark a place ‘ ‘ dangerous ’ ’ if it was in fact dangerous.
    The appellant insisted that because appellee continued to work for about two weeks after he was injured, and that he told the mine manager that he had rheumatism, that this was contradictory of the fact that the rim of the hip joint was broken on December 28th. Immediately- after the accident, appellee told a miner, who worked in an adjoining room and who had inquired what was the matter with him, about the occurrence. The leg swelled up right after the accident and remained swollen, and appellee stated only what Dr. Hundley informed him was the trouble. Three physicians as experts testified, on behalf of appellant, that the appellee could not have performed the work and got around as he did, if his hip joint was dislocated and the rim of the joint broken. The evidence showed that the appellee’s hip was badly swollen and that he suffered great pain from the time of the accident; that he was advised by a physician a day or two after the accident, that he was suffering from rheumatism caused by a wrench of the joint; that he ultimately quit work because of the pain and that he continued to visit doctors until the actual nature of the injury was discovered by a more thorough examination.

      Abstract of the Decision.
    1. Mines and minerals, § 82

      —when defects in railway track, constitute dangerous condition. A dangerous condition, within the meaning of section 21 of the Miners’ Act (J. & A. 1f 7495), held created where wooden rails were used to piece out or extend a railway track in a mine, so as to leave a sharp decline with dangerous holes between the cross ties, into which a miner stepped and was injured as he was trying to prevent a car from escaping.
    2. Mines and minerals, § 191*—xohen instruction as to approval of conditions 6y mine inspector correct. An instruction was correctly given, in an action for injuries to a miner by reason of a violation of section 21 of the Miners’ Act (J. & A. H 7495), that a mine inspector did not have authority to determine, contrary to the facts, that a place was safe, and that such a determination although made in good faith was not an excuse for an employer’s failure to mark a place which was in fact dangerous.
    3. Mines and minerals, § 173*—evidence as to nature of miner’s

      injury. The fact that a miner told a mine manager that he had rheumatism and continued to work two weeks thereafter, held not contradictory to a subsequent claim that he was suffering from a broken rim of the hip joint, where at the time of such statement he had been advised by a physician that his trouble was rheumatism, and the true nature thereof was not ascertained until some time later.

      It is claimed that counsel for appellee improperly argued to the jury concerning the dangerous nature of the work of coal miners, and the safeguards that the law has provided for them.
    The evidence showed that the appellee at the time of the injury was thirty-six years of age, and earned $50 every two weeks; that he has been unable to work for over two years, and that he has suffered great pain; that his leg is now nearly two inches shorter than the other; and that he will suffer more or less from the permanent nature of his injury for the remainder of his life.
    Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    Clark & Hutton and R. Allan Stephens, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

4. Instructions, § 118 —refusal, of instruction supported by scintilla of evidence. The refusal of a requested instruction is not error even though supported by a scintilla of evidence.

5. Mines and minerals, § 176*—when evidence sufficient to sustain verdict for miner in action for injuries. The evidence held sufficient to sustain a verdict for the plaintiff in an action for injuries to a miner, where it appeared that a broken rim of the hip joint was due to the dangerous condition of a railway track in a mine, notwithstanding the plaintiff worked for two weeks after his injury.

6. Trial, § 123a*—when argument not prejudicial. An argument of counsel to the jury concerning the dangerous nature of a miner’s work, and as to the safeguards the law requires in mines, held not erroneous in an action for injuries due .to the failure of a mine operator to comply with section 21 of the Miners’ Act (J. & A. IT 7495).

7. Damages, § 124*—when verdict for broken rim of hip joint not excessive. A verdict for $5,000 held not excessive for an injury to a miner thirty-six years old, earning $50 every two weeks, consisting of a broken rim of the hip joint, which left one leg two inches shorter than the other, and the plaintiff more or less permanently disabled for life.


text:
    William Johnson, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pike county; the Hon. Harry Higbbe, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by William Johnson in case against the Chicago & Alton Railroad Company to recover damages for personal injuries alleged to have been sustained through the negligence of defendant. A jury returned a verdict in favor of plaintiff for $5,000, on which judgment was rendered, and the defendant appeals.
    The negligence charged was that while the plaintiff was driving along a road beside the defendant’s railroad right of way, its servants to the fright of the plaintiff’s horses, rolled a large piece of timber into the highway from the top of a pile of lumber, and that their fright was increased by steam escaping into the road from an exhaust box near by, and also by a cloud of dust which settled over them from a load of crushed stone which the defendant was unloading close to the highway.
    There is a serious conflict in the evidence as to the action of the plaintiff’s horses during the morning before the accident. One witness testified that the team was frightened on the road to Pearl before it got near the crusher. Appellee got some lumber from a freight car at Pearl. He testified that his horses did not take fright while he was at the car. Two disinterested witnesses testified that the team was frightened and jumping as he drove away from the car. After putting the lumber in the wagon appellee drove to the depot and got two bundles of corrugated iron roofing. One of the hunches was loose, the clamps being broken. Three witnesses testified that the horses were lunging and acted frightened from the noise made in loading the iron, while appellant testified that the team was not frightened while at the depot. Between the depot and the railroad crossing appellee stopped his team and tied the load to the wagon bed and also picked up from the road two pieces of rock, each weighing about twenty-five pounds, and put them on the top of the load, he says, to keep the load from slipping backward and forward, and appellant argues to keep it from rattling.
    Appellant testified that just as the horses crossed0 the defendant’s track that five men were standing on a pile of timber, and that they rolled a large timber, twelve or fourteen inches square and sixteen feet or inore in length, off the top pf the pile eight feet high, to the ground, to the front of and within five feet of the side of the near horse, which jumped against the off horse and started to run east; that a train came from the east on the main line whistling and ringing the bell; that a man was shoveling stone screenings out of a car on a nearby track and the wind blew dust across the track onto the horses, and made them run harder, and that steam was puffing out of the exhaust pipe and settling over the road, which made the horses crazy.
    Appellee is corroborated as to the rolling of the timbers off the pile by the side of the horses by a witness, Knox, a cousin of appellee, who was running the friction hoist on the top of the crusher. He testified that there were two men on the lumber pile who rolled a timber to the ground as the team was passing. He is discredited, among other things, by a written statement made by him shortly after the accident, in which he said that he saw a gang of men on the pile of timbers at the crossing near the crusher and stated: “1 will not say bridge men were rolling or moving timbers when he came np, but they were on the pile. ’ ’ Another witness, Brunaugh, also testified that he was at work in the crusher and saw Johnson with his team approach the crossing and two of the bridge men, who were on the pile of timbers with cant hooks, roll a large timber off the top of the pile within five or six feet of the left track of the wagon road, which scared the team; but that the horses were dancing as they approached the railroad. Neither of these witnesses knew of the accident until they were told about it.
    There were two gangs of six men each with push cars taking timbers from these piles. These men testified they were on a pile of timbers when a team went by and they did not roll timber off the pile, but that they slid the timbers on skids from the pile to the push car.
    It is contended that the court erred in modifying an instruction requested by appellant. The instruction as given was: “That if, on the occasion under investigation, the plaintiff’s team was excited, nervous, or alarmed by reason of, and on account of, the noises made by the articles he was carrying in his wagon, and .that while such team was in that condition the plaintiff came upon the right of way of the defendant, on which right of way, of the defendant, the defendant was carrying on its own business in a proper and usual way, and that on account of the excited condition of said team, so caused by said noises, or by other causes for which the defendant or its servants was not responsible, said team took fright and ran away, should find for the defendant.”
    The modifications were the insertion of the words, “or its servants,” and the erasure after the words “ran away” of the words “on account of such proper and usual conduct of the defendant’s business in its own right of way.”
    Appellant’s instruction “E” was modified by the insertion of the words, “and not from the negligent acts of defendant or its servants as,charged in the declaration.”
    Abstract of the Decision.
    1. Railroads, § 866

      —when subsequent conditions may not be shown. Where it is alleged that the plaintiff’s team of horses were frightened by a large piece of timber which was rolled from the top of a pile into a highway by the defendant’s servants as the plaintiff was passing, the latter cannot show that several hours thereafter pieces of similar timber were lying beside the roadway.
    2. Evidence, § 101*—when admission of incompetent testimony renders similar testimony admissible in rebuttal. The admission without objection of incompetent testimony does not render similar testimony admissible over objection in rebuttal.
    3. Witnesses, § 209*—scope of cross-examination. A witness who testifies that he hitched up a team of horses shortly before they ran away cannot he cross-examined as to the condition of their harness after the accident.
    4. Railroads, § 941*—instructions in action for frightening horses. An instruction in an action against a railroad company concerning the plaintiff’s team of horses becoming frightened by a large piece of timber which the defendant’s servants rolled into the roadway from the top of a pile of lumber, although not technically correct, held not to be misleading.
    5. Railroads, § 877a*—when negligence in frightening horses question for jury. Whether the act of the servants of a railroad company in rolling a large piece of timber from the top of a pile into a highway as the plaintiff was driving past, was unreasonable in character, or done at such a time and under such circumstances as to constitute a wilful disregard of the plaintiff’s rights, is a question for the jury.
    6. Railroads, § 888*—when modification of instruction proper in

      action for frightening horses. The modification of an instruction requested by the defendant in an action for the plaintiff’s team of horses being frightened by a large piece of timber being rolled from a pile into the highway by the defendant’s servants, held erroneous, since it might have misled the jury to believe that the burden was on the defendant to show freedom from negligence.

      Edward Doocy and William Mumford, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Williams & Williams and Paul F. Grote, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Lucinda Arkley, Administratrix, Appellee, v. William C. Niblack, Receiver, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholbield, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of tlie Case.
    Action on the case brought by Lucinda Arkley, administatrix of the estate of John R. Arkley, deceased, ag'ainst William C. Niblack, receiver of the Bering Coal Company, to recover damages under the Mines and Miners’ Act for the death of John R. Arkley, caused by a portion of the roof of a room falling on him while he was at work as a coal miner. From a judgment rendered on a verdict in favor of the plaintiff for $5,000, the defendant appeals.
    About 1:30 on the morning of May 23rd the mine examiner made an examination of the working place of deceased and found a loose rock, on which he placed a danger mark. When the deceased and his helper Moody, went to work on the morning of the 23rd, the assistant mine manager, who was the day inspector, told them about the loose rock and instructed them to fix it. They tried to get it down and removed part of it, including the part with the examiner’s danger chalk mark on it. They then went on with their work of mining. Moody testified that he tried to prop the loose rock but that six feet props were required and those in the vicinity were all seven feet long. The mine examiner testified that in the early morning of the 24th he again examined the roof of the working place, marked the date of the examination, but made no danger mark, as he at that time found the place safe. When Arkley and Moody went to work on that morning the rock with the dates May 23rd and May 24tli had fallen. The deceased tested the roof of the room with a pick and found a loose rock over the roadway, but he and his helper went to work loading coal. About 10:30 the assistant mine manager visited the room and was told by Arkley and Moody about the loose rock, sounded it, told them it was unsafe and put a crossmark on it; and testified that he told them to take the rock down. Moody testified that he told them to watch it. The deceased and Moody continued at work loading coal until near noon, when a side rock, which projected under and supported the loose rock, fell and killed Arkley. •
    The evidence as to the failure of the appellant to furnish props on request of the deceased and his associate is in direct conflict. There is no manifest preponderance either way.
    The court refused to give instructions requested by the appellant, to the effect that if the jury believe that when the mine examiner examined the roof, the side rock, which fell, was solid, and in the judgment of the examiner there were no dangerous conditions, and the rock in the roof was known by deceased to be loose, and before the accident the day inspector marked the loose rock with a cross and told deceased to take it down, and thereafter the deceased continued at work without taking it down or propping it, then they should find the defendant not guilty.

      Abstract of the Decision.
    1. Mines and minerals, § 176

      —sufficiency of evidence in action for death of miner. The evidence in an action for the death of a miner held sufficient to sustain a verdict for the plaintiff on the ground of the employer’s failure to provide suitable props to make a mine roof safe.
    2. Mines and minerals, § 125*—when contributory negligence no defense to action under Miners’ Act. Contributory negligence is no defense to an action against an employer for injuries sustained by a miner as the result of the former’s violation of the Miners’ Act.
    3. Mines and minerals, § 126*—when want of care no defense to action under Miners’ Act. Want of care on the part of a miner is not a defense to an action for injuries sustained as the result of an employer’s violation of the Miners’ Act, where the accident would not have occurred had there been a compliance with the act.
    4. Mines and minerals, § 131*—when notice of defect no defense under Miners’ Act. The fact that a miner had actual notice of a dangerous condition in a mine does not relieve an employer from liability for an injury which would not have occurred had the Miners’ Act been observed.
    5. Mines and minerals, § 151*—when proximate cause of death of miner question for jury. Whether the failure to properly mark and report a dangerous condition in a mine roof was the proximate cause of the death of a miner is a question for the jury, notwithstanding he may have had actual knowledge of the condition before he began work without first propping the roof..
    6. Mines and minerals, § 181*—when proximate cause of death of miner question for jury. The question whether the failure of an employer to prop the roof of a mine room was the proximate cause of the death of a miner, held a question for the jury.
    7. Mines and minerals, § 194*—instructions in action for death of miner. An instruction requested hy the defendant in an action for the death of a miner from the fall of an unpropped roof, held properly refused, although the deceased had actual knowledge of the dangerous condition.

      H. M. Steely and Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    L. A. Cranston, for appellee; Thomas A. Graham, 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 Thompson

delivered the opinion of the court.

8. Mines and minerals, § 191 —good faith of examiner as defense to action for death of miner. The good faith of a mine examiner in declaring a place in a mine to be safe is no defense to an action for the death of a miner due to the failure to mark a place dangerous, which was in fact unsafe.

9. Death, § 67*—measure of damages for death of miner. A verdict for $5,000 held not excessive for the death of a miner fifty-six years of age, in good health, who earned from $4 to $4.50 per day.

Scholfield, J., took no part in the consideration of this case.