text:
    A. Sox, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,982.

      Negligence—what essential to establish, as against motorman in • charge of car colliding with wagon. To charge a motorman. with negligence in a case where it appears that the car upon which he was employed collided with a wagon, it must be shown that such motorman had notice of the danger “at least long enough before the injury inflicted to have enabled him to form an intelligent opinion as to how the injury might be avoided and apply the means.”
    Bakes, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed March 17, 1910.
    Watson J. Ferry and West, Eckhart & Taylor, for appellant.

      Goldsmith & Morris, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action for personal injuries in which the plaintiff recovered a judgment for $1,020 against the defendant and the latter appeals.

It appears from the evidence that the plaintiff was riding in a covered wagon driven by a fellow employe of a third person and was engaged in selling merchandise carried in the wagon. The plaintiff was salesman. At the time of the accident the wagon had been standing about fifteen minutes on the west side of Halsted street about a hundred feet north of Boot street, Chicago, waiting the return of the driver. The latter testifies that when he returned to the wagon he looked southward and saw a north-bound street car operated by defendant standing on the the south side of Boot street. He says he looked to the north also and then started to drive from the west side of Halsted street in a northeasterly direction across the double tracks of the defendant on that street to the opposite or east side of the street. The evidence tends to show that at the time the wagon started .to cross from near the west curb of Halsted street there were a number of teams or wagons going south in front of a south-bound car on the westward or southbound track, and the driver of the wagon in which plaintiff was riding drove east through this line of conveyances. In the meantime defendant’s north-■ bound car was moving north on Halsted street on the eastward of the two tracks. The distance between the east rail of the westward or south-bound track and the west rail of the eastward or north-bound track was about five and a half feet. When therefore the plaintiff’s wagon broke through between or in front of the wagons on the west or south-bound track the horse’s head was not more that about five feet from the west rail of the other or north-bound track on which defendant’s car was moving toward it. The testimony of the motorman of the car is to the effect that he first saw the horse just as it reached the west rail of the east or north-bonnd track in front of his car, and that he at once applied the brakes and did all he could to stop the car. The wagon meanwhile was crossing the track diagonally and when nearly across was struck on its right hind wheel by the car and shoved a few feet, overturning it and throwing the plaintiff to the ground, causing the injuries complained of.

The material question is whether the accident was caused by negligence of the defendant’s motorman. The plaintiff’s claim in this respect is that the motorman after crossing Boot street and until his car struck the wagon in which plaintiff was riding, was engaged in conversation with passengers, and paying no attention to his car. This contention is based upon the testimony of a single witness, a peddler, whose presence on the car at the time is questioned by other witnesses. He stated, “The motorman was looking in the car. He spoke all the time. I don’t remember just exactly what conversation we had at that time, what we spoke. He was looking at us in the car. There were many men on the front platform. ’ ’ Upon cross-examination he says the motorman “looked out in front and looked back. How often he looked out in front I don’t know; he looked'out often at the people and he looked at the car and looked at the people. I think he did look out in front when the car started up.” To the question, “Did he look out in front after that?” he answered: “No, sir, that is what I don’t think, I don’t think he did. He only looked out when the ear first started up, and then he turned around and was talking to the passengers and didn’t look out ahead after that. I was looking out in front most of the time. I was standing on the right of the motorman on the east side. I was right in the step in the corner window, you see.” He states that when the horse first stepped on the track in front of the car he “could not exactly place” the distance between the horse and the approaching car, but it was “about 100 or 150 feet.” Defendant’s witnesses all place the distance from ten to fifteen feet..

A passenger on the car in question called by defendant testified that the driver of plaintiff’s wagon drove across the south-bound track between two of the teams on that track, “licked up and drove in between them,” and that when the horse stepped on the track in front of defendant’s ear, it was in his judgment “about ten feet away * * * from the front end” of the car, that the car struck the wagon, “and moved about ten feet, not any more than that after it struck; then it came to a stop.” He testifies that the gong was ringing “all the time, not in one particular place, he rang it all the time down there, because there was so many teams around,” that “before the accident occurred the motorman was looking straight ahead. From the place where the car made its last stop the ringing of the bell was just the same as before he made the stop, he was ringing the bell all the time and kept ringing it from that point up to the time of the collision.” This testimony is corroborated in all essential particulars not only by the conductor and motorman of the car, but by four other apparently disinterested witnesses, one a police officer, and it is not contradicted. One of defendant’s witnesses, a farmer from the country who “had been at the stock show in the Stock Yards” and was on the car expressly states that “the motorman coming up from Boot street was looking out in front. He did not look around behind and talk to the passengers, that I know.” If uncontradicted testimony of witnesses who appear to be honest, impartial and truthful is to be given credence, then it must be found from the evidence, first, that the driver of the wagon dr.ove across the west track going between wagons on the southbound track, “licked up” his horse and started to cross the north-bound track in front of and without looking out for the approaching north-bound car; that when his horse stepped on the track in front of said car the latter was from ten to fifteen feet away; second, that before and during the time the car had been approaching from Boot street, the motorman was continuously ringing his gong and that when he saw the horse coming on the track in front of him he “commenced to put on his brake” and endeavored to stop the car; and third, that the greatly preponderating evidence tends to show the motorman was not neglecting his duties and was not turning around to look at and talk with passengers between Boot street and the place where the collision occurred.

We agree with plaintiff’s counsel that in this case •it is “immaterial whether or not the driver Wolkoff was guilty of contributory negligence, and the sole question to be determined * * * is whether or not the motorman in charge of the car was guilty of the negligence which caused the injury.” It is argued that “after the wagon driver had indicated his. purpose of crossing the track in front of the car and the danger of collision became known to the motorman, it became the duty of the latter to slacken the speed of the car upon the first intimation of said danger.” There.is no evidence, however, tending to show first that the wagon driver did indicate such purpose to the motorman or any one else except by driving through the line of wagons on the nearest track; nor second that the danger did become known to the motorman until the horse appeared close to the track upon which the defendant’s car was approaching and was already apparently within ten or fifteen feet of the car. The evidence that the motorman did then immediately apply the brakes and endeavor to stop the car is not contradicted. It appears to have been actually stopped within a distance not exceeding about twenty-five feet. It is undoubtedly true that a driver of a wagon upon a public street where his wagon is in plain view of an approaching car has a right to rely upon the exercise of ordinary care by a motorman to prevent accident and injury. But he owed the plaintiff and his driver only ordinary care (Wilson v. C. C. Ry. Co., 133 Ill. App. 433-437), and to charge such motorman with negligence in a case like that at bar, he must be shown to have had notice of the danger “at least long enough before the injury inflicted to have enabled him to form an intelligent opinion as to how the injury might be avoided and apply the means.” C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512-520; U. S. Exp. Co. v. McCluskey, 77 Ill. App. 56-58. There is, as we have said, no evidence in the case at bar that the motorman did have such notice. Negligence is not a mere matter of conjecture. It must appear by evidence. The motorman testifies he did not see the horse and wagon until it was right in front of him, and there is corroborating testimony. A witness who was driving south on the west track states that he did not notice the wagon until it pulled “diagonally across the teams in front of me.” Another witness testifies, “the very first I saw of the horse and wagon that afterwards came into collision with the car, it was coming over from the south-bound track over to the north-bound track.” At that time the horse must ¿ave been close to the north-bound track, the distance between them being only about five feet. The police officer on the car says that the first he noticed the horse and wagon it was “coming through the procession that was on that south-bound track and trying to get across the street.” There is nothing in the evidence, so far as we discover, tending to show that in the exercise of ordinary care the motorman ought to have seen the horse and wagon in time to avoid the accident. It occurred, not at a street crossing but at or near the middle of the block where the motorman so far as appears had no reason to assume that a horse and wagon would start suddenly from behind a procession of wagons going south on the other track and endeavor to cross in front of tlie car. In C. U. T. Co. v. Browdy, 206 Ill. 615-618, it is said that a motorman is “only required to operate his car with reference to perils which reasonably might be expected to occur. To require him to run his car with such caution as to guard against unusual or extraordinary perils would he to require him to so operate his car as to prevent the practical operation of the road.” For the reasons indicated the judgment of the Superior Court must be reversed.

jReversed.

Mb. Justice Baker dissenting.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Margaret Maloney, Appellee, v. Mark F. Madden et al., Appellants.
    Gen. No. 14,988.
    1. Bill of particulars—when sufficient. Slight ambiguity in the bill of particulars is not fatal; a bill of particulars will be sustained if it informs the defendant of the nature of the plaintiff’s claim.
    2. Appeals and errors—how identity of actions to he determined. Whether actions are identical is a question of law for the court and not for the jury.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1908;
    Affirmed oh remittitur.

    Opinion filed March 17, 1910.
    P. McHugh, for appellants.
    Pliny B. Smith, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action upon the common counts, in which plaintiff’s demand was for the sum of $557.89. She makes affidavit that this is the amount due her. In addition to the general issue the defendants pleaded the statute of limitations. Subsequently the plaintiff filed an amended bill of particulars. A jury returned a verdict in plaintiff’s favor for $1,033.84, which was reduced to $1,000 by remittitur, and judgment entered for that sum.

There is evidence tending to show the plaintiff placed $1,000 in the defendants’ hands in December, 1896, to be loaned. She had previously paid them $400 for the same purpose. She testifies that in March following defendants told her they had a place upon which to loan her money and took her out to see the property. She states she was led to suppose her money was to be loaned on the place as security, and consented to that being done, but denies she consented to the purchase and denies she knew at the time that it was being made. She says she was afterward informed she had bought the property and that the money of her’s in defendants’ hands as her agents had been applied on the purchase. The deed conveying the property to plaintiff is dated March 12, 1897. Defendants deny any deception in the matter and produce a paper signed by plaintiff, dated February 26, 1897, as follows:

“Madden Bros.

Kindly buy for me the property 1425 Dunning street and apply to the purchase of same the money you hold belonging to me.

Margaret Maloney.”

They state they had in their hands at that time $775 belonging to plaintiff which they applied on the purchase. The consideration was $3,350. The conveyance was subject to an encumbrance of $2,000, and to make up the balance of the purchase price defendants p.1 aim that plaintiff agreed to turn over a note of theirs for $400 and another note for $225, which with the $775 in defendants’ hands would more, than make up the full amount of the consideration. Instead, however, of paying the full amount in money, defendants arranged with the grantor to take a lot in Grossdale subdivision belonging to them, which lot they state was charged to plaintiff at $600 and not at $900, the price which defendants received for it from the plaintiff’s grantor in payment of the purchase price for the property. The grantor testified that he received from the defendants for the Dunning street property $375 in cash and that the lot at Grossdale “was taken in the deed at a consideration of $900.” Defendant’s claim that plaintiff knew all about these transactions, that she expressed no dissatisfaction, and employed defendants as her agents to collect the rents, make repairs on the house and pay interest until in December, 1898, when she desired to sell the premises and found the property could not be disposed of at once; that she then expressed great dissatisfaction, insisted defendants should pay her back the purchase price and threatened criminal and civil proceedings if they did not.

Defendants contend the court erred in entering judgment for an amount greater than the amount claimed in plaintiff’s bill of particulars, in the admission of evidence and in submitting to a jury under the pleadings the question of the identity of the present cause of action with that in a former suit brought before the statute of limitations had become a bar. As to the first of these contentions, it appears the bill of particulars was amended to state that “the plaintiff’s claim is for balance of money deposited with said defendants and now retained by them and for the difference between the real and actual purchase price of property purchased by said defendants for plaintiff. ’ ’ We are of opinion that notwithstanding some ambiguity, the amended bill of particulars sufficiently informed the defendant as to the nature of the claim. McKinnie v. Lane, 230 Ill. 544-548.

It is true, however, that the identity of the cause of action was a question of law for the court and not of fact for the jury. Gibbs v. Crane Elevator Co., 180 Ill. 191-194-5, and cases there cited. In the case referred to the court quotes from Fish v. Farwell, 160 Ill. 236-243, as follows: “The interpretation and construction to be placed upon pleadings is a question of law for the court and not a question of fact for the jury. It would be absurd and a confusion and destruction of the law, to submit to the decision of a jury the matter of the legal identity of the several causes of action which are alleged in the pleadings in a cause.” Defendants’ plea of the statute of limitation was replied to by plaintiff. This replication was demurred to, the demurrer was sustained, and leave given to plaintiff to amend. The amended replication is to the effect that suit on the claim had been begun within five years, that subsequently an involuntary non-suit had been suffered and that the present suit is for the same cause of action and was commenced within one year after the involuntary non-suit, and concluded to the country. Instead of demurring, the defendants joined issue upon the replication. The question of the identity of the cause of action was, as we have said, for the court alone; but its submission to the jury was at the most superfluous and not harmful. The court itself apparently found that “this suit is for the same cause of action” as the former..

It is urged in behalf of plaintiff that defendants as plaintiff’s agents “had no right to make any profit out of the trade” by which plaintiff acquired the Dunning street property. Defendants’ own testimony tends to show that they were allowed $900 for the G-rossdale lot when they turned it in to the grantor of the Dunning street property in lieu of that amount of plaintiff’s money, and they rendered plaintiff a statement of the transaction in which they credit her with money or its equivalent in their hands amounting to $1,471.57 and charge her with the full $1,350 as having been paid by them to the grantor for his equity in the Dunning street property. But they did not pay that amount. They actually paid only $450 and turned in the Grossdale lot of their own for the balance of $900. If the lot was put in for more than it was worth, then the transaction was a fraud on plaintiff by her agents to the extent of the excess. The grantor testifies that at that time “the lot had a valuation of $300.” The defendants’ evidence tends to show it was worth $900. They state, however, that it “was put in at $600” and that “the commissions, accrued interest and all that, made up to $900.” What these commissions and other expenses were and to whom paid they do not explain. The burden is on them to account for the plaintiff’s money in their hands, and they have failed to account in any satisfactory way for at least $300 of the $900 applied to their own use. This sum, representing the difference between the price of the Grossdale lot which defendants put into the purchase of the Dunning street property and what they charged plaintiff therefor, the latter is entitled to recover with interest thereon from April 17, 1897. She is also entitled to judgment for $26.34 which defendants formerly tendered and conceded to be due. Plaintiff’s attorney also.claims the $50 collected from' the grantor. There is evidence, however, tending to show that this charge was not illegitimate.

If therefore plaintiff shall within ten days hereafter remit the excess of the judgment appealed from over and above $326.34 with interest added from April 17, 1897, on the sum of $300, the judgment for the balance will be affirmed. Otherwise it will be reversed and the cause remanded.

■Affirmed on remittitur; otherwise reversed and remanded.

March 25, 1910, remittitur filed and judgment affirmed for $520.09.


text:
    E. H. Bauch, Appellee, v. C. A. Coey & Co., Appellant.
    Gen. No. 14,995.

      Vebdicts—when not disturbed. A verdict will not be set aside on review if it appears that the same is supported by the evidence.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. William H. Hinebaugh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    Benjamin Levering, for appellant.
    Gustav E. Beerly, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action to recover damages for breach of warranty. The plaintiff purchased of defendant a second hand automobile. The contract of purchase was in writing and contained a guaranty as follows; “You to guarantee automobile to be in good running-order and thoroughly overhauled.” According to the contract the purchase price was to be $1,500, but the actual price agreed upon was $850, the larger sum having been put in the contract, it is said, “to show up better” in ease of future sale.

After delivery of the machine the plaintiff was unable, as there is evidence tending to show, to make it operate. It broke down repeatedly and finally plaintiff left it in a garage and wrote defendant as follows: “I hereby wish to further notify you that the car is now at Sheridan Garage or Automobile Livery, 3096 N. Clark street, telephone Edgewater 1864, subject to your order and disposition. I have this day notified the Sheridan Garage to turn the said car over to you, you not having carried out your part of our contract. I hereby demand of you the return of the sum of $850, being- the amount paid you by me under said contract.” The plaintiff in his declaration claimed damages to the amount of $1,000 for breach of the warranty. The jury returned a verdict in his favor for $850 and judgment was entered on the verdict.

It is urged by defendant that the allowance by the verdict and judgment of the exact sum originally paid for the machine amounted to a rescission by process of law in a case where rescission of the contract is not legally possible; that the remedy for breach of contract in case of an executed contract of sale is damages calculated on the failure of the article to fulfill the warranty and is not rescission. There is no controversy as to the law. In this case, however, the suit has been brought and recovery had for damages for a breach of warranty. It is not material that plaintiff by his letter placed the car at the defendant’s disposal and demanded the return of the purchase price. The suit here is not so far as appears nor necessarily based upon such theory. It is said by defendant’s attorney that there is no evidence of the worthlessness of the car and that to sustain the verdict it was absolutely essential the plaintiff should prove such worthlessness; that to enable the jury to fix damages they must have had evidence tending to show the actual value of the car as delivered and what its value would have been had it been as represented by defendant, since the measure of damages in an action for breach of warranty, is the difference between the value of -the property at the time of the sale and what its value would have been had it been as warranted to be. There is, however, evidence which in our opinion justified the jury in concluding that there had been a complete failure of the contract of guaranty and that the automobile was not “in good running order and thoroughly overhauled.” There is evidence tending to show not only that it was not in good running order and overhauled, but that for any uses to which a car could be put by plaintiff at least it was without value; that the difference between the car contracted for and the car delivered was the sum allowed by the verdict. The price demanded and paid tended to show what its value would have been had the car been as warranted. There was testimony of experts called in behalf of plaintiff tending to show the radiators leaked, that various important parts and connections were loose and in bad condition, that piston rings were worn, valves out of order and cylinders would not operate. One expert testified that it “looked to me as if the ear had run for a couple of years and nobody touched a screw or anything on it.”

It is urged on behalf of plaintiff that the warranty under the evidence referred to is shown to have been accompanied with fraud in the sale, and that even though the contract was fully executed, the purchaser upon discovering the fraud had the right to rescind; but that the car as delivered was not what the contract called for, and therefore the real contract never became operative, and in returning the property the plaintiff was not rescinding. Citing Owens v. Sturges, 67 Ill. 366. However that may be, we are of opinion- the verdict and judgment are supported by the evidence.

Finding no sufficient grounds for disturbing the judgment, it will be affirmed.

Affirmed.


text:
    Frederick J. Selden, Appellant, v. Marshall E. Sampsell, Receiver, Appellee.
    Gen No. 15,004.
    1. iK-STEUcnoNS—when, as to obligation of carrier to passengers, properly refused. An instruction is properly refused which tells the jury that “common carriers of passengers are required to use all human care, vigilance and foresight they can reasonably use in view of the character and mode of conveyance adopted, to prevent accidents to passengers;” the vice of such instruction being that it does not contain the limitation that such care, vigilance and foresight is required to be such as is consistent with “the practical operation of the road and the exercise of its business as a carrier.”
    2. Instructions—when, as to damages which may be awarded, properly refused. The plaintiff’s recovery must be confined to the damages charged in the declaration and an instruction which does not so limit the jury is properly refused.
    3. Instructions—when refusal to give, upon question of damages, mil not reverse. A refusal to give a proper instruction asked by the plaintiff upon the question of damages, will not reverse if the question of liability has been resolved against the plaintiff.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    Frederick A. Brown, for appellant; William R. T. Ewen, Jr., of counsel.
    John A. Ross and Frank L. Kriete, for appellee; W. W. Gurley, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action to recover for personal injuries. The issues were submitted to a jury and a verdict returned finding the defendant not guilty. The latter had judgment. The plaintiff appeals.

It is urged as grounds for reversal, first, that the court erred in refusing three instructions requested in behalf of the plaintiff, and second, that the verdict is clearly against the weight of the evidence. The first of the instructions the refusal of which is complained of, would have told the jury that “common carriers of passengers are required to use all human care, vigilance and foresight they can reasonably use in view of the character and mode of conveyance adopted to prevent accidents to passengers.” This instruction does not contain the limitation that the care, vigilance and foresight required are such as is consistent with “the practical operation of the road and the exercise of its business as carrier.” North Chicago St. R. R. v. Polkey, 203 Ill. 225-233. An instruction containing practically the same language was declared erroneous in Tri-City Ry. Co. v. Gould, 217 Ill. 317-321. The second of the refused instructions is to the effect that the jury could take into consideration in estimating damages the personal injury inflicted on the plaintiff, the pain and suffering undergone in consequence, if any were proved, and also such permanent injury as they believed from the evidence plaintiff sustained from the wrongful acts complained of. There is in this instruction no reference to damages charged in the declaration, to which any recovery by plaintiff must be confined. There is moreover, an instruction given at plaintiff’s request in which the jury were told that if they found defendant guilty and believed from the evidence he had “sustained damages as charged in the declaration” they could themselves estimate the amount of such damages from the proof and by considering them in connection with their own knowledge, observation and experience. This instruction gave plaintiff the benefit of whatever was valuable in the refused instruction. There was proof of pain and suffering undergone by plaintiff in consequence of the injury complained of, proof of disability and as to whether it was likely to be permanent. The attention of the jury was by that given instruction called to this evidence. The third refused instruction is subject to the same objection, namely, it fails to confine recovery to damages charged in the declaration. That plaintiff was in fact injured is not controverted. It is urged by defendant’s counsel that inasmuch as the jury found defendant not guilty, it is to be presumed they first considered the question of liability, and having determined that issue in favor of defendant had no occasion to consider damages. Hence it is argued, the refusal of the second and third instructions under consideration was not harmful, citing Chicago City Ry. Co. v. Hagenback, 228 Ill. 290-298. We are of opinion the failure to give the refused instructions was not prejudicial.

Whether the verdict should he deemed against the weight of the evidence depends in a measure at least upon whether the preponderating evidence supports plaintiff’s allegation of negligence on the part of the defendant in negligently starting the car just as plaintiff was about to alight. The question is whether the conductor had or in the exercise of due care on his part ought to have had notice that the plaintiff was about to alight and was only waiting to step down from the platform until the ladies ahead of him had gotten out of the way. The plaintiff testified he had not spoken to the conductor and so indicated he wanted to get off, although he says the conductor was standing right beside him. He states that he indicated by a move of his hand that he wanted to alight. This gesture was repeated to the jury but its nature is not indicated in the record and we have no means of knowing. The jury evidently did not conclude from that and the other evidence that it showed negligence in the defendant’s agent. It was a question of fact and no reason appears in the record which would justify us in overruling the jury’s conclusion, which has had the approval of the trial court.

Finding no material error, the judgment of the Superior Court must be affirmed.

Affirmed.


author: Mr. Presiding Justice Chytraus

text:
    Thomas F. Pickham, Appellee, v. Illinois, Iowa & Minnesota Railway Company, Appellant.
    Gen. No. 14,903.
    1. Evidence—incompetency of conclusion. Nothing is more erroneous and dangerous than to permit a witness to determine the law upon questions involved in a ease on trial, through failure to require the witness to testify to facts instead of giving his conclusions involving propositions of law as well as of fact.

      2. Assumpsit—when account stated arises. When a rendered statement of an account has been retained, without objection to the account or to the items contained therein, for such a length of time that the recipient has had a reasonable time within which to express objections, then he is in law regarded as having waived his objections, if any he had. Thereafter, if an action as upon an account stated be brought upon the claim, the original character or form of the debt, as well as what kind of evidence was necessary to establish the same, is unimportant.
    3. Assumpsit—what does not affect employment of account stated. An account which becomes stated by virtue of retention without objection is none the less so because of the omission by mistake of an item which should have been included.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavastagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed March 18, 1910.
    Henry C. Wood and Steere, Williams & Steers, for appellant.
    Elmer E. Ledbetter and William R. T. Ewen, Jr., for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Plaintiff obtained a verdict and recovered a judgment for $2,500 in the Superior Court against the defendant railway company in an action of assumpsit. The company prosecutes this appeal. The plaintiff makes claim under an original and an additional contract, for pepairs made upon a locomotive and for extra work, labor and material ordered from time to time by representatives of the company, during the progress of the repairs, as necessity for "extras was discovered.

The parties litigant were first brought together through a communication to plaintiff’s shop, by William T. McSwiney, treasurer of defendant, that he desired to see some one who would figure upon the cost of repairing a locomotive for the company. In response plaintiff called upon MeSwiney at the company’s office in Chicago. After a talk with MeSwiney plaintiff went to DeKalb, Illinois, at MeSwiney’s request, to see the locomotive. At DeKalb plaintiff spent about an hour looking over the locomotive and there he met John T. Duffin, general superintendent for the defendant, who had general charge of superintending construction and of the rolling stock. Duffin testified that he informed plaintiff of the general condition of the engine, that he told him the company desired it repaired quickly and wanted the locomotive “put in thorough first-class shape.” He also testified that he authorized MeSwiney to make the contract, but that he did not think that he, himself, had anything to do with the making of it. Plaintiff sent a proposition to the superintendent for the making of the repairs, and, subsequently, took up the matter with MeSwiney. A contract for repairs upon the locomotive was then made, between MeSwiney, who acted for the company, and plaintiff, in the form of two letters, as follows:

“December 24th, 1904.

Hlinois, Iowa and Minnesota By. Co.,

Gentlemen:

I propose to take out the fire-box in your No. 10 engine and replace it with a new one of the same design and dimensions; also cut off holes now on leg of outside plates and set the ring up high enough to get the defective parts of plate out; take out entire set of flues; weld new ends on and replace them in the boiler. This will place the boiler in first-class condition for the sum of Twelve Hundred and Fifty Dollars ($1,250.00).

I also propose to weld the engine frame, replace all the parts broken or missing and give the entire engine a thorough overhauling, leaving the same in good running order, for the sum of Pour Hundred and Fifty ($450.00) Dollars. You will deliver the engine to me on the Burlington tracks, Chicago, and I will have the same ready for you six weeks after you make this delivery.

Respectfully submitted,

(Signed) Thomas F. Pickham.

Engine to be delivered to

inspection before delivery.

“December 24th, 1904.

Mr. Thomas F. Pickham,

Chicago, 111.

Dear Sir:—

Replying to your letter of the 24th instant, we will accept your proposition for repairs to our engine No. 10, with the proviso that you make delivery within six weeks after the engine is delivered to you, and for each day’s delay after said period of six weeks you will incur a penalty of $10.00, the same to be deducted from any money coming to you. If, on the other hand, you get the engine completed earlier than six weeks from date of delivery to you, we will give you $10.00 a day premium for each day of such earlier delivery. The engine to be guaranteed in first-class running .order and the material and workmanship to be subject to the approval of an inspector appointed by us. Tours truly,

(Signed) W. F. McSwiney,

Treasurer. Mc-S.”

On January 3, 1905, the locomotive was delivered to plaintiff. After starting his work plaintiff discovered that the flues of the locomotive were in such poor and worn out condition that new ones were advisable. Of this condition plaintiff then informed McSwiney. Some negotiation took place during which plaintiff asked $200 additional for putting in new flues. The company, however, refused to pay that much and procured plaintiff’s agreement to put in the new flues for $100 and an additional agreement, was then entered into in the form of two letters as follows:

“February 6,1905.

Illinois, Iowa and Minnesota Ry. Co.,

369 The Rookery, City.

Gentlemen: In reference to the flues that we have taken out of yonr locomotive boiler, we find that they have been re-ended two different times, and the center of the flues are in such condition that it will never do to put them back in the boiler again. We wish you would send a representative to our factory so we can show him same.

It will be necessary to put in new flues, as these flues, when welded and placed back in the boiler again as contemplated, would last but a short time. The additional cost of putting in new flues instead of the old ones will be something like Three Hundred ($300.00) Dollars. Bather than make an unsatisfactory job with the old ones, we will use the new ones and make a charge to you of One Hundred Seventy-five '($175) Dollars. We know that you would rather make this additional expenditure and do the job this way. We also are putting on an entire new bottom on the outside of the boiler at the water leg, as it is necessary so as to put the job in a complete condition, and for this we won’t make any charge.

If you agree with our views in this matter, we would prefer that you send somebody up here to look at the tubes and to satisfy yourself that our statement is correct.

Tours truly,

(Signed) Thomas F. Pickham.

M.”

“Feb. 10th, 1905.

Mr. Thomas F. Pickham,

53 West 14th Place,

Chicago, 111.

Dear Sir:—

Replying to your letter of the 6th instant, and confirming arrangement made with you by Mr. Duffin, we will increase the amount agreed upon with you for the repair of our locomotive No. 10 from $1,700.00 to $1,800.00. In consideration for this increased sum you are to put in a complete set of new flues and turn out the engine in first-class condition all around.

Please advise when boiler is ready for inspection and we will arrange for inspection by a Hunt Inspector.

Tours truly,

(Signed) W. F. MeSwiney,

Treasurer.”

Both parties obviously regarded the defective condition of the flues as something which was not discovered and which perhap's could not have been discovered at the DeKalb inspection of the locomotive, and of which plaintiff was not then informed; for, without dispute, so far as the record shows, both parties by their action construed the original contract not to require plaintiff to repair the defective flues, except upon payment of further compensation. Both acted upon the theory that the scope of'the contract they had first made did not include or require that the plaintiff should make repairs of after-discovered defects and worn out parts and conditions.

As the parties have themselves interpreted their contract in this respect, it is, perhaps, unnecessary for us to express any opinion regarding the correctness of that interpretation or to say anything upon that subject. But as this is the only proposition, so far as the merits of this controversy are concerned, whereupon, in the absence of an interpretation of the contract by the parties themselves, there would have been room even for discussion, we will say that the parties were undoubtedly correct in their interpretation. Plaintiff’s letter of December 24, 1904, was based only upon his knowledge of the locomotive’s condition derived from defendant’s superintendent’s statement and about an hour’s personal inspection. This short inspection of the locomotive, while, perhaps, talking with the superintendent, could- be but external and very superficial. Many defects could exist of which plaintiff could not become aware and which he, therefore, as the parties well knew, would not have in contemplation in arriving at the price to. which he agreed. Furthermore, although plaintiff’s letter, after specifying certain things to be done, concludes with the language “and give the entire engine a thorough overhauling, leaving the same in good running order,” the specification, nevertheless, excludes the idea that plaintiff agreed to repair all after-discovered defects. A different interpretation might have required plaintiff to rebuild the entire locomotive, if sufficient latent defects and worn out places were subsequently discovered. The parties were but reasonable in the construction they put upon the contract.

It appears that the matter of new flues occasioned iome considerable delay. Plaintiff informed the company in advance that to obtain the new flues would cause some delay, because flues of that particular length were not kept in store. The flues were finally obtained, some time in the latter part of March, from an iron company in Pittsburgh, which was the only place where these flues could be obtained.

In the middle of February, or about a week after the question concerning the flues came up, it was discovered that certain plates inside of the locomotive were worn down. Plaintiff and his brother then called upon McSwiney and informed him of the condition of these plates and suggested that new ones be substituted because, as they told him, new plates would have to be put in in two or three years, at all events, and-then at a cost two or three times greater. The cost of the additional work, plaintiff informed McSwiney, would be at the rate of' sixty cents an hour. After some discussion McSwiney told plaintiff to go ahead with this additional work. The officers of the company appear to have concluded about this time that with some change the locomotive could be made use of for a better or higher grade of work than it had formerly been used for, that is, that it might be used for service on passenger trains. Consequently a letter was sent to plaintiff on March 6, 1905, as follows:

“Keneeick Construction Company,

369 The Roolcery,

Chicago, March 6th, 1905.

Mr. Thomas F. Pickham,

53 West 14th Place,

Chicago.'

Dear Sir:—

Regarding the repairs which you are doing on Loco. 10 for this Co. it appears to me that there was no pilot on same only a switching step. If this was so I herewith authorize you to put a pilot on. I also authorize you to put on the Loco, an Air Signal Connection, as she is to be used on Passenger Train. An allowance will be made you for the said additional repairs.

As we are in need of the Loco. I shall thank you to rush the repair to completion, as the time allowed for same is run over.

Tours truly,

W. F. McSwiney.”

From time to time, while the work was being done, plaintiff talked with McSwiney about “these little parts,” that is, other defects which were discovered, and McSwiney, as plaintiff testified, questioned him as to whether or not they were necessary to be done. This questioning was undoubtedly both on account of the additional cost and on account of the additional length of time the repairing would take. Plaintiff finally told McSwiney, “The proper thing for you to do is to send up a man to represent your company, that has power enough to order this work if we run into it.” Some time thereafter one Sbillinglaw brought to plaintiff a letter as follows:

“Ejbneeick Construction Company,

369 The Rookery,

Chicago.

March 16, 1905.

Thomas F. Pickham,

Canal and 14th Place, City.

Dear Sir:—■

This will be handed to you by our inspector, T. 0. Sbillinglaw, who desires to look over the engine now in your works. Will you kindly afford him every facility for so doing?

Tours truly,

W. F. McSwiney,

Mc-S. Treasurer.”

There is some conflict in the evidence as to whether Shillinglaw was or was not defendant’s master mechanic and whether he was represented to plaintiff to be such. It is quite clear that he was not defendant’s master mechanic; but this conflict is wholly immaterial for there is no dispute as to Shillinglaw representing the defendant in some capacity. McSwiney testified that he went there to “oversee” the work. In the letter he brought to plaintiff the company called him “our inspector.” Shillinglaw remained at plaintiff’s shop overseeing and inspecting the repairing of the locomotive, from the middle of March until the work was completed on the first of May, except that he was away for possibly one week’s time. Plaintiff testified that Shillinglaw found something worn, directly over the carriage of the engine, immediately after he came to plaintiff’s shop. This worn part he directed plaintiff to take off. Plaintiff objected to proceeding on Shillinglaw’s order, only, and said: “Hadn’t we better go down and have a talk with Mr. McSwiney and get right on the matter first? It may be all right, but I would rather talk to Mr. Mc-Swiney about it.” So plaintiff, his brother and Shillinglaw called on McSwiney and Shillinglaw explained to him the condition Shillinglaw had discovered and stated that the part then in question might or might not do, but that renewing it then would save money for the company. He also explained that plaintiff and his brother came with him to ascertain whether he had authority to order the work or not. Plaintiff at the same time interposed saying: “Well, am I to understand that any work he [Shillinglaw] orders us to do, that will come up again, that we won’t have to come down here about it—that we are to go ahead and do anything he says to do?” To this question of the plaintiff McSwiney replied affirmatively. Plaintiff testified that on this occasion McSwiney acceded to the price of sixty cents an hour for the extra work at that time and that “Shillingiaw says he would be on the job himself and there wouldn’t be any more hours charged than was absolutely necessary on it.” Plaintiff’s brother corroborates him in respect to this interview with McSwiney and no one testified otherwise. Shillingiaw did not testify and McSwiney testified he had no recollection as to Shillingiaw and the Pick-hams ever coming to see him. Plaintiff testified that all the work done'after March 6,1905, was for the purpose of making the locomotive serviceable as a passenger locomotive, and this was disputed by no one. A number of the items charged as extras are shown to have been directed to be made by Shillingiaw. All these extras, in addition to the work required by the original contract, unquestionably took time and caused delay.

On May 2, 1905, the locomotive was returned to defendant repaired. Plaintiff then received from Shillinglaw an acceptance thereof, as follows:

Chicago, May 1st, 1905.

Mr. Thomas F. Pickham,

53-55 West 14th Place, City.

Dear Sir:—

We hereby accept the engine and boiler as complete in workmanship.

T. Shillingiaw, M. N.

I. I. M.”

That the work and labor done and materials furnished after the middle of February, charged for as extras, were actually done and furnished is not disputéd. But defendant’s counsel contend that these items of extras, except the putting on of the pilot and the signal connection, were not ordered; and, further, that, should it be deemed they were ordered or directed to be done by Shillingiaw or McSwiney, such ordering or direction was without proper authorization, because Duffin was the only one who possessed the power of obligating defendant for such extras. The force and effect, in this connection, of the fact that McSwiney made the original and additional contracts and executed and delivered those contracts on behalf of defendant, counsel seek to meet and overcome by referring to Duffin’s testimony that Mc-Swiney did so by special authority from him, Duffin. It nowhere appears that plaintiff was informed that McSwiney’s authority in respect to ordering repairs for the locomotive was special and limited. Plaintiff acted, as he had a right to act, upon appearances. We are of opinion that McSwiney was held out to him as possessing full and complete authority in regard to ordering repairs for this locomotive and we regard the defendant as bound for all extras that McSwiney authorized. McSwiney sent Shillinglaw to plaintiff’s shop and the evidence also shows McSwiney authorized him to order extras. Plaintiff talked with Mc-Swiney relative to charging sixty cents an hour for extras and McSwiney consented to this charge. Shillinglaw was sent to plaintiff’s shop by defendant expressly to oversee and inspect the repairing of the locomotive by plaintiff. Not only was Shillinglaw, defendant’s representative, present observing the furnishing of the extras and the doing of the extra work upon the locomotive, but in many instances he ordered the extras. More than that, after the repairing of the locomotive was completed he 0. K.’d all plaintiff’s bills, including the bills for the extras. Although plaintiff, after sending in his bills, called four or five times to obtain payment of the bills, nothing was said to him, so far as the record shows, to indicate that the extras were not authorized nor was any complaint made regarding any of the items or the prices charged. It is true that once—the exact time does not appear, but it was about the time the bills were rendered— McSwiney called plaintiff’s attention to the penalty provision in the original contract and the benefit of that provision was claimed for defendant, but that was a matter entirely different and distinct from the question of authorization or prices. What McSwiney then said did not amount to disputing the authorization of the extras or the prices charged. We see no merit in the claim that the extras were not authorized as it clearly appears both that they were authorized and that they were authorized as extras. It is true that McSwiney when asked by leading questions, two or three times, whether he “authorized” any extra repairs, answered that he did not. However, those questions were not only incompetent, because calling for conclusions and conclusions of law at that (Be Estate of George C. Benton, deceased, ante, p. 56), but witness ’ answers were of little or no weight for the purpose of overcoming specific facts testified to by other witnesses. “A witness can only testify to facts, not inferences deducible from facts.” Steamboat Albatross v. Wayne, 16 Ohio, 513. Nothing could be more erroneous and dangerous than to permit a witness to determine the law upon questions involved in a case on trial, through failure to require the witness to testify to facts instead of giving his conclusions involving propositions of law as well as of fact.

Defendant’s counsel contend, also, that the evidence fails to show the reasonable value or worth of the extras, that there is a variance between the proof and the averments of the first and second counts and that plaintiff is not entitled to recover upon the theory of an account stated. These contentions will be considered together. The contention of lack of evidence as to reasonable worth and value is first made in this court and, therefore, comes too late. However, considering the facts of this case, we can see no reason why the plaintiff should have introduced any evidence upon that subject. The plaintiff’s case was tried upon the theory of an account stated and the evidence being sufficient to establish an account stated, there was no occasion to introduce evidence of the reasonable worth and value of the items in the account. The plaintiff’s claim is for $1,800 upon the original and additional contracts and for $1,790.59 for extras. Both of these claims were recoverable under the common counts contained in the declaration. The work under the original and additional contracts, aggregating the $1,800, was done and completed. Indeed, as to that there is no dispute. The testimony of Puffin, concerning the condition of the locomotive when it was returned by plaintiff, that “We had to put her in shape and spent about three or four hundred dollars in putting her in shape,” is altogether too meagre, vague, uncertain and indefinite to be entitled to any consideration whatever. The amount of $1,790.59 for extras was, of course, recoverable under the common counts, if recoverable at all, either by showing the reasonable worth and value of the items or by inclusion of the items of extras in an account stated. It follows from what has been said that there is no merit in the contention as to lack of evidence of reasonable worth and value or in the contention of variance as between the first and second counts and the proof.

On May 31, 1905, plaintiff sent his statement of account, that is all his bills, including bills for the extras, to McSwiney, together with a letter as follows:

Thomas F. Pickham,

Manufacturer of Boilers, Marine, Land and Water, Air and Gas Tanks.

Office and Works, 53-55 West 14th Place.

Chicago, May 31, 1905.

Illinois, Iowa & Minnesota By. Co.,

The Bookery, City.

Gentlemen: Enclosed please find bills for work done on your engine. I send these that you may see the amount of extras I performed above my contract, which was to place in new firebox and set of flues and spend Four Hundred Dollars ($400) on engine. Will you please have your superintendent check same off and see that this work was done, and give me as much credit in settlement for this extra—offset by delay forfeit ?

Kindly have your Mr. Duffin look this over carefully and upon notice from you I can go over the same and settle the matter.

Tours very truly,

Thomas F. Pickham.”

McSwiney admitted receiving the bills and the letter on that date. As already stated, plaintiff subsequently called four or five times in endeavoring to obtain payment. Plaintiff appears, from the evidence, to have been in some stress for money and about the time the bills were first presented expressed a willingness to deduct a hundred dollars' or so, in satisfaction of the penalty provision in the original contract, if he could obtain immediate payment .of his bills. Within a few days after the locomotive was returned plaintiff received $1,000 in two payments of $750 and $250, concerning which there is no dispute. Although he both called and sent in his statement, as has already been stated, plaintiff received no money after he sent in his statement. Neither did the defendant company inform him that there was any objection to the bills. Impatient at the delay he, in August, 1905, sent the company two letters as follows:

“Chicago, Aug. 9, 1905.

Mr. McSwiney,

I., I & M. By. Co.,

Bookery, City.

Dear Sir:—

As per our conversation, I understand you to say you will write your Mr. Duffin in regard to the settlement of my bill, and pay me for all the extra work I have done above the contract and deduct the proper amount of forfeit money.

I would appreciate having you settle this thing up at once as I certainly cannot afford to lose this money after all this work.

Trusting you will make no further delay in settling the affair, I am,

Tours very truly,

Thomas F. Piekham.”

‘ ‘ Chicago, Aug. 18th, 1905.

111. Iowa & Minn By. Co.,

The Bookery, City.

Gentlemen:—•

On Aug. 9 I wrote you a letter about our agreement to settle the bill for labor on engine wherein you were to charge me for forfeit money and allow me for the extra work on engine and water tender. I have not heard from you since in reference to the matter, and I am unable to continue carrying this thing on, as I simply must have the money, and do not see why you cannot settle it up at once.

Kindly make an effort specially to settle this up at once, or I will have to put the thing in the hands of my attorney as it is a matter of compulsion on my part.

Tours very truly,

Thomas F. Piekham.

Mr. McSwiney, Mgr.”

Thereupon the defendant, for the first time, by a letter dated August 25, 1905, makes objection to the charges for the extras. That letter is as follows:

“Keneeick Constbuction Company,

369 The Bookery.

Chicago, August 25, 1905.

Thomas F. Piekham,

53-55 West 14th Place,

Chicago, 111.

Dear Sir:—

Beplying to your letter of the 18th instant with regard to work on our engine No. 10.

I beg to advise you that upon looking over your bills for extras, we are unable to find any items which do not come under that clause of the contract which required you to ‘give the engine a thorough overhauling, leaving the same in good running order.?

Under the penalty clause of contract there is due from you $730.00, being 73 days at the rate of $10.00 a day, and in addition, we have paid out on your account for material, &c., $227.97; we have also paid you on account of this work $1,000.00 making a total debit against you of $1,957.97, and as the contract price was $1,800.00 there is due us from you $157.97, which amount we will be pleased to have you remit at once.

Tours truly,

W. F. McSwiney,

Treasurer.”

In that letter there is no complaint that any of the items of extras shown in the statement sent on May 31, 1905, were not furnished, nor is there any complaint as to the prices charged for any of the items. The only objection to the extras made in the letter is that they come under the clause in the contract which required plaintiff to “give the engine a thorough overhauling, leaving the same in good running order.” We have already seen that this objection is entirely without merit. At no time, up to this point, had there been any refusal by the defendant to pay; there had been only postponements.

“When a rendered statement of an account has been retained, without objection to the account or to the items contained therein, for such a length of time that the recipient has had a reasonable time within which to express objections, then he is in law regarded as having waived his objections, if any he had. Thereafter, if an action as upon an account stated be brought upon the claim, the original character or form of the debt, as well as what kind of evidence was necessary to establish the same, is unimportant.” Eudolph Wurlitzer Company v. Dickinson, ante, p. 36. This is a wholesome rule which, among others, has the merit of tending to prevent a debtor from unnecessarily and vexatiously delaying payment of a just debt. When parties are located in the same city, as for instance here in Chicago, where they can readily communicate with each other, the time required for an account rendered to ripen into an account stated is comparatively short. In the case now before us and under the cir-' cumstances therein, the time, from May 31, 1905, to August 25 the same year, was more than sufficient to give the defendant the opportunity to examine the statement in question and to inform the plaintiff of the objections thereto, if any there were. Certainly the only objection which was finally offered, namely, that the item of extras were covered by the written contract, could and should have been made long before it was made. We are of the opinion that there was an account stated between the parties, owing to defendant’s unreasonable delay of nearly three months before making any objection to the statement rendered.

King v. Machesney, 88 Ill. App. 343, and Peterson & Co. v. Wachowski, 86 Ill. App. 661, are cited to the effect that an account stated arises only upon an agreement between the parties and requires that there be an agreed balance. That is true, with the qualification, however, that the agreement may be either an express or an implied agreement. That is, the agreement may arise from a failure of a party to speak when he should speak. There is nothing in the cited cases to the contrary. Upon the facts, those cases are not in point.

There has been no dispute, at any time, as to the payment of the $1000. It was by mistake omitted from the statement plaintiff rendered. It is now argued that because of the omission that statement could not become and cannot be regarded as an account stated. An account stated is none the less an account stated because of an omission by mistake. We are not impressed by this argument. In this connection we must point out that in the brief filed defendant’s counsel purport to quote, in support of their argument, from Thomlinson v. Earnshaw, 14 Ill. App. 593. We find no language in that case such as that quoted to us by counsel. We regard this as a mistake or oversight, but such mistakes, by counsel, are serious and should not occur in an argument to the court. In the case cited, although there were numerous credits, statements or memoranda had been presented showing only debits. Such being the situation the court said: “The fact that the defendants made no objection to the several statements is perhaps evidence of an implied admission of their correctness; bnt this only furnishes proof of the items composing the debit side of the account.”

We regard the evidence in the ease at bar amply sufficient to warrant the jury in finding an account stated between the parties, and that plaintiff, by mistake, omitted the credit of $1000. This mistake was corrected by deduction of that sum from the statement amount and the return of a verdict accordingly.

By the letter of August 25, 1905, defendant also made claim of a penalty of ten dollars per day for delay by plaintiff, beyond the time fixed by the original contract. Upon the state of facts disclosed by the evidence, we see no reason whatever why defendant should be permitted to impose a penalty upon the plaintiff for delay. The additional contract and the extras occasioned delay wholly attributable to defendant. We find no evidence whereby any of the delay is separated or segregated and shown to be attributable to the plaintiff. Under such circumstances there is a failure of such proof as would permit of charging the plaintiff with any contract penalty under the original contract.

No reason having been shown for the reversal of the judgment of the trial court, that judgment must be affirmed.

Affirmed.


text:
    John Trybula, Appellee, v. A. Plamondon Manufacturing Company, Appellant.
    Gen. No. 14,913.
    1. Master and servant—when doctrine of assumed rislc precludes recovery under particular count. If the plaintiff confessedly knew of the defect of which he complained in a particular count, he cannot recover, nor can he recover if the evidence fails to show that the master had knowledge ©f such defect or that it was of such a nature and had existed for so long a time that in the exercise of reasonable care such master should have known of it.
    2. Pleading—when element of negligence treated as contained in declaration. If a case has been tried by the parties upon the theory that a particular count did by some averment contain the element of negligence, such count will be so treated by the Appellate Court even though it may not have contained such element of negligence.
    3. Evidence—burden of proving cause and manner of injury. The burden of proving the cause and manner of an injury for which recovery is sought, rests upon the plaintiff; the Appellate Court will not, for the benefit of either party, indulge in speculation as to the manner in which the plaintiff’s injury occurred.
    4. Verdicts—duty of Appellate Court to review sufficiency of evidence. Whenever the question is raised in the Appellate Court as to the sufficiency of the evidence, in poiht of fact, to sustain a verdict and judgment, it becomes the duty of that court carefully to analyze such evidence and to determine where the preponderance lies, even where there is a sharp conflict in the testimony of witnesses.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed March 18, 1910.
    Frank M. Cox and R. J. Fellingham, for appellant.
    Johnson, Belasco & McCabe, for appellee; Joel Baker, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

A judgment against the defendant company. was rendered in the Superior Court after a trial by jury. The defendant by this appeal complains of various errors in the rendition of that judgment. The suit is by a servant against his master for a personal injury. The claim is that the injury occurred through defectiveness in a freight elevator or in its machinery. Defendant denies the existence of any defect in the elevator or in its machinery.

The declaration contains two counts. The first count alleges that the defendant “permitted and allowed the elevator and the machinery operating, controlling and stopping the same to be and remain loose, worn out, out of order, shaky, and otherwise unsafe and dangerous, which facts defendant knew or by exercise of reasonable care should have known, but which facts plaintiff did not know, and by the exercise of reasonable care could not have known, ’ ’ and that while plaintiff, in the exercise of due care and caution for his own safety, and in the discharge of his duties, was riding thereupon, the elevator, by reason of the aforesaid negligence of the defendant, moved, jerked suddenly and violently and thereby caused plaintiff’s foot to be crushed and permanently injured. The second count alleges that the “machinery, operating, controlling and stopping the elevator, was loose, worn out, out of order, shaky and otherwise unsafe and dangerousthat plaintiff “then and there notified the said defendant of the condition of the said elevator aforesaid; that the said defendant then and there promised to repair the same in a short time, to-wit: one hour, and then and there ordered and directed the said plaintiff to return to work upon the said elevator ; that the said plaintiff in obedience to the orders and direction of the said defendant and relying upon the promise of the said defendant returned to work;” and that a short time thereafter, while plaintiff was on the elevator and in the exercise of due care and caution for his own personal safety, the elevator “moved and jerked suddenly and violently, then and thereby causing plaintiff’s foot to be crushed” and plaintiff to be otherwise permanently injured.

It appears that defendant conducted a foundry plant in which plaintiff was employed as a laborer. The foundry was about a story and a half high. The west part called the “charging room” was a very large room and abutted npon an alley on the west. From that room a door led into the alley. Inside the door and directly in front of it was an elevator. The elevator carried material up to a platform; for a cupola which was located within a few feet of the door. .The elevator ran a distance of only from eleven to fifteen feet high. It moved very slowly. According to Zachwiega, plaintiff’s principal witness, it took the elevator about five or six minutes to travel to the top. The elevator had wire caging, on the north and south sides but was open at the east and west ends. The platform of the elevator was four feet six inches wide, north- and south. The door into the alley was somewhat wider. That door had a doorsill, on a level with the alley, which doorsill was three inches in thickness and projected about nine inches into the “charging room.” The testimony of different witnesses varies as to the width of the space between the doorsill and the elevator platform when the platform was on a level with the doorsill. Plaintiff fixed the space at about half an inch. Zachwiega said its width was about two inches— at the most three inches. Another of defendant’s witnesses said its width was about an inch or more. The space directly below the projecting doorsill down to the ground, 'that is, below the nine inches of the door-sill’s width, was open back to the wall. The distance between the ground and the doorsill was about three feet.

At the time plaintiff was hurt, January 10, 1907, at about two o’clock in the afternoon, he, Zachwiega and a third man were engaged in bringing scrap iron, pig iron and similar material up to the cupola platform by means of a truck and the elevator. As stated, the elevator platform was four feet six inches wide and six feet six inches in length. The truck or, as sometimes called, the buggy had four wheels which were sixteen inches in diameter and had rims about two inches in width. The truck had a table or platform which stood up twenty inches high from the floor or ground. That table was three feet six inches in length and twenty-four inches in width. The wheels were outside of the table and between the extreme outsides of the wheels the truck was twenty-nine inches in width. At what may, for convenience, be called its front end, the truck had a pole or long handle, so arranged that it conld be made to stand upright. At the rear end of the truck the location of the wheels was such that the back part of the rear wheels was about six inches forward of the rear edge of the truck’s table, that is, the rear edge of the table projected about six inches back of the back part of the wheels. Plaintiff’s witness Zachwiega testified, both upon his cross and his direct examination, that the dimensions of the truck were two feet in length and one and a half feet in width; but in his measurements this witness is utterly unreliable. He fixes the distance from the door-sill or level of the alley down to the foundry floor at about a foot and a half, less than any other witness by one half. When plaintiff was injured, he and the other two men were upon the elevator with the truck, loaded by them with scrap iron or pig iron, which they were taking up to the cupola platform. Zaehwiega testified that the loaded truck weighed about a ton and plaintiff estimated the weight at three or four hundred pounds. Clybourn, cupola tender, who testified on behalf of the defendant, fixed the weight at about eight or nine hundred pounds. The elevator platform was a wooden one “not real smooth but it was in good condition,” and, according to plaintiff, there was a little iron dust and sand on it. Zachwiega testified that they placed the truck “right in the middle” of the elevator platform. The truck was brought upon the elevator from the east and stood lengthwise east and west with the rear end toward the alley. No iron stuck over the edges of the truck table and none fell off. As the elevator platform was six feet six inches long and four feet six inches wide and the truck table was three feet six inches long and twenty-four inches wide, with the wheels projecting on the sides, the larger space for the men to stand upon in going up on the elevator was at the ends. Assuming the truck to stand precisely in the middle of the elevator platform, we have a foot and a half of the elevator platform west of the truck table. The witnesses who testify on the subject all agree that Zachwiega, plaintiff, and the third man all placed themselves west of the truck in going up with the elevator. Zachwiega, who conducted the elevator, placed himself at the southwest comer of the elevator platform, where the ropes controlling it were. The theory of the plaintiff’s case, according to the evidence, is that when the platform was from six inches to a foot below the door-sill the elevator suddenly “jerked” straight up and down so that it set the truck in motion backward and the rear wheel of the truck to the north, “struck,” “pushed” or “shoved” his left foot and “twisted” it under the doorsill. The outer part of his left foot, including the second toe, was somewhat injured. The second metatarsal bone was the only bone fractured and that has since united so as to be as strong as ever, but there is some limitation of motion.

Plaintiff was about twenty-nine years of age. He had been employed at the foundry about five months when he was hurt, and, while employed there, he had used the elevator, as he says, several times a day.

Zachwiega testified that plaintiff and he were accustomed to load up the truck, push it on the elevator and take it up; that he, Zachwiega,' generally started the elevator; that for about three or four days before plaintiff was hurt he noticed the elevator jerked, sometimes twice and sometimes three times a day; that before plaintiff was injured, on the day he was injured, he had made about six trips on the elevator with plaintiff, and during those “it jumped about three times; ’ ’ that the three men were on the elevator when plaintiff was hurt; that he, Zachwiega, stood on the elevator platform west of the truck at the southwest comer; that plaintiff, also, stood at the west end of the truck but at the other comer—the northwest corner; that when the truck was on the elevator platform Trybula, the plaintiff, was obliged to stand where he stood because there was no room for him to stand on either side of it; that whenTrybula stood on the elevator, before it started, the doorsill was right up against his leg; that when the elevator started up Trybula stood with his back toward the doorsill and facing east; that the table of the truck was half a foot above the elevator platform; and that when the elevator platform came up to about the doorsill the elevator jerked and the truck was moved backward, struck Trybula’s foot and pushed it under the door-sill. Zachwiega testified that he then, by mistake, first pulled the wrong cable and caused the elevator to go up instead of down, when Trybula cried out.

Trybula, the plaintiff, testified that when the elevator started up, there was just sufficient space between the west end of the truck and the edge of the elevator platform for a man to stand there, and that he stood between the west end of the truck and the platform’s edge, facing east; that he then carefully looked down and saw his left foot was two and a half inches back from the edge of the platform; that when he was hurt the wheel was east of his left foot and “the right foot was between both wheels; ’ ’ that the elevator had been jerking for three or four days, but not as much as on the day of the accident; that he did not notice how far up from the bottom the elevator was when it jerked, but it went up a little and then jerked; that it “jerked straight up and down and sudden;” that he could not tell how far, up and down, it jerked; that it was the wheel of the truck which struck his left foot and twisted it and pushed it “into the hole;” that his foot was caught “right under the ledge;” that the wheel struck the inside of the foot opposite the instep; and that that part of his foot caught was the left side of his left foot extending almost half way across and from the toes back to the instep. Plaintiff also testified that on the morning of the accident the elevator jerked a little more than before; that it was jerking more at eleven o’clock in the forenoon than when he went to work in the morning; that it jerked more in the afternoon than it did in the forenoon; and that on the day he was injured, between ten and eleven o’clock he talked to the boss, Pete, about the trouble. The conversation with the boss, Peter Berg, as testified to by plaintiff, the record discloses to have been as follows:

‘ ‘ Q. What did you say to him and what did he say ?

A. Mr. boss, elevator is no good.

All right, Joe. Me see. Me pull rope. Me pull down. Me all right. Me fix after while.

Mr. Cox: Me fix after while.

The interpreter: That is the best I can do.

Mr. Johnson: Q. What, if anything, did he do with reference to examining the elevator?

A. Well, he went to examine that elevator, but there was nothing on it and the elevator wasn’t jerking very much that time.

Q. What did he say after he had examined it?

A. He said all right, that he will order to fix it *

Mr. Johnson: Q. State what, if you know, he said with reference to time.

A. Well, as I said before, the foreman said to me that he was going to order people to fix that elevator and then (speaking English): Me fix after awhile *

Q. And what, if anything, did he say to you with reference to continuing your work?

Mr. Cox: I object to the form of the question.

The Court: Yes, sustained.

Mr. Johnson: Q. Did he say anything further?

A. He ordered me to work and told me after a while he would fix it.”

This testimony of the plaintiff, on the subject of information to the master of a defect, was all the evidence on the subject on plaintiff’s behalf. Peter Berg, the foundry foreman, testified, on behalf of defendant, that Trybula never spoke to him about the elevator nor did he ever speak to Trybula about the elevator. The foregoing is all the evidence in the record relating to the subject of such information.

Another witness, Cichy, on behalf of plaintiff, testified that he stood on the floor, about five feet from the elevator, when plaintiff was hurt; that he saw the elevator “moved up and jerked and the truck moved on the side,” hut he did not see what caused plaintiff’s injury; that plaintiff stood on the west side -of the platform, a little bit sideways, looking forward the east; that the left side was the closer toward the alley but his back was “mostly” toward the alley; that the elevator jerked “twice, once up and down;” that he looked at it close enough to see how far it dropped when it jerked and it jerked down first, a quarter of an inch; that when it jerked down the quarter of an inch it “jerked down and shook;” that “when there was a jerk it shook all”—“When the elevator jerked it down, it tipped and went to the other side, too”—“It shook towards all sides;” that he saw the truck move and it moved “maybe an inch, maybe two” backwards.

Defendant adduced evidence to prove that there was no defect in the elevator or its machinery and that it did not “jerk.” Johnson, a millwright in defendant’s employ for seventeen years, testified that when testifying he was not in the employ of defendant, but he was in its employ when plaintiff was injured; that he was employed in defendant’s foundry about five years and when any repairs were to be made there he was the one who made them; that at the time plaintiff was injured he was called and came to the elevator a couple of minutes after plaintiff was hurt; that he then ran the elevator up and down four or five times and there was nothing out of the ordinary in the operation of it; that there was no jerking; and that there was then nothing out of order or broken about the elevator.

Burnley, city elevator inspector, testified that he examined this elevator in the fall of 1906 and that the elevator and its machinery was then in good condition and that he examined it again in February, 1907, and tested its operation and it was then in good condition.

Peter Berg, foundry foreman, testified that during the afternoon after plaintiff was injured he saw the elevator go up thirteen times with a wheelbarrow of coke for the cupola each time and there was then no jerking; and that he never saw the elevator jerk.

Clybourn, the cupola tender in the foundry, testified that he was standing there about four feet from the elevator and when the elevator was about three feet from the foundry floor Trybula cried out; that the elevator traveled all right at that time and right after and that he noticed no jerking or anything wrong with the elevator; that they continued to carry up iron with the elevator after Trybula was hurt; that during the afternoon he saw the two men who were with Trybula go up five or six times and in the course of his work he himself went up three or four times; that the elevator did not jerk that afternoon, nor was there anything wrong with it and he was right there and saw the elevator used with loads on it; that there were no repairs made that afternoon; that on the morning of the accident at about ten o’clock he took up a load of sand of about half a ton on the elevator and then he noticed nothing wrong with it; that for a month before the accident he used the elevator ten or fifteen times a day and he observed no jerking of the elevator; that he used the elevator every day for four or five months after the accident and observed nothing-wrong with it and no jerking, and that there were no repairs upon the elevator until five or six months after the accident.

Kline, an employe of defendant, testified that before the accident he took up heavy wheelbarrows of sand for the cupola, coke and pig iron, every day and never observed the elevator jerk, but it went up all right; and that after the accident he took up sapd every day and the elevator did not jerk.

Morabec, an employe of defendant, testified that on the day of the accident, before plaintiff was injured, he took up coke, sand and wood, on the elevator, and he did not see it jerk; that in the afternoon after the accident he took up two wheelbarrows of coke and scrap iron and he did not see it jump or jerk then; that for about two months before the accident he took up thirteen wheelbarrows of yoke each day and during that period he at no time saw the elevator jerk when going up with a load, and that for about a week after the accident he hauled up stuff steadily and saw no jerking of the elevator on any day..

Aside from the testimony as to the elevator “jerking,” there is no claim that there is any evidence tending to show any defect in the elevator or its machinery, such as complained of in the first count of the plaintiff’s declaration. This jerking, if it jerked, was well known to plaintiff. According to plaintiff and Zachwiega the elevator had jerked “sometimes twice and sometimes three times a day” for only about three or four days before plaintiff was injured. There is no other evidence tending to show that the elevator jerked; nor is there any evidence tending to show from what defect it jerked if it did jerk. It may have jerked because of some act by the operator who controlled it. At all events, when all the facts and circumstances are considered, it is perfectly clear that upon the evidence in this record there can be no recovery upon the first count; not only for the reason, as will be shown later, that there can be no recovery at all, but, also, because plaintiff himself, confessedly, knew of the defect of which he complained in this count and because the evidence fails to show that defendant either had knowledge thereof or that it was of such nature and' had existed for so long a time that, in the exercise of reasonable care, defendant should have known of it.

The second count fails to state any cause of action. This count omits negligence as a cause or as an element in the cause of action. It does not predicate a right of recovery upon negligence at all, but upon the facts; that the relation of master and servant existed, that an appliance in use by the servant was unsafe and dangerous, that the servant informed the master of the condition of the appliance, that the master promised to repair the same and, at the same time, ordered and directed the servant to make use of the appliance which he accordingly did, and that within a short time thereafter, to-wit, one hour, the servant, plaintiff, was injured by reason of the defective condition of the appliance. However, the case was tried by the parties upon the theory that this count did by some averment contain the element of negligence and it will, therefore, be so treated by us.

From the evidence it appears that when he was injured plaintiff stood upon the elevator platform west of the loaded truck and at its northwest corner. The space upon the elevator platform between the edge of the truck’s table and the edge of the elevator platform was eighteen inches in width. There was also a space of an inch or two between the elevator platform and the doorsill in connection with which plaintiff’s foot was injured. While facing mainly east, toward the truck table, he stood “a little bit sideways” with his left side slightly toward the alley; so that, speaking with greater precision, he faced slightly northeast. Plaintiff’s left foot was upon the elevator platform west of the north rear wheel and two and a half inches from the platform’s edge. This placed his left foot well away from the north rear wheel of the truck, for the rear edge of the truck’s table projected back of the wheel’s rim about six inches. From the starting of the elevator until plaintiff was hurt, Cichy stood watching them. He is the only witness who undertakes to tell us with any degree of particularity how the elevator jerked and how much it jerked. He, also, informs us that he saw the truck move backwards when- the elevator jerked up and down and that the distance it moved backward was “maybe an inch, maybe two.” His testimony is the only evidence in the record as to how far the truck moved. The. only definite evidence in the record as to the manner in which plaintiff’s foot was injured is his own testimony that the north rear wheel of the truck struck the inside of his foot opposite the instep and twisted and pushed his foot in under the doorsill. That plaintiff’s foot was injured in that manner appears physically impossible when the evidence in this record is all considered together. The probability is, whether the elevator did or did not jerk, that plaintiff, in a moment of carelessness, projected his foot, which he says he placed two and a half inches from the platform’s edge, over that edge. Even though we give the plaintiff the benefit of disregarding Cichy’s "particularity and exactness, with reference to the jerk of the elevator being a quarter of an inch and the movement of the truck being but an inch or two backward, plaintiff’s situation is no better. It still appears to us impossible that plaintiff was injured in the manner and under the circumstances, as he claims. The existing conditions at the moment he was injured, concerning which there is no conflict in the evidence, discredit plaintiff’s evidence as to the manner in which, and the circumstances under which he was injured. The burden of proving the cause and the manner of his injury rested upon the plaintiff. "We may not for the benefit of either party indulge in speculation as to the manner in which plaintiff’s injury occurred. Three men stood west of the truck upon the elevator platform. It is uncontroverted that they all stood between the edge of the truck’s table and the doorsill. There is no question but that the edge of the truck’s table projected back of the truck’s wheels about six inches; nor is there any question but that the plaintiff’s right foot was between the truck’s rear wheels, upon the elevator platform. If the truck suddenly moved backward to the extent that the north rear wheel of the truck could have “twisted and pushed” plaintiff’s left foot under the doorsill, as plaintiff testified, the edge of the truck’s table, twenty inches above the floor, necessarily moved backward simultaneously with the wheel and with like suddenness and if so, projecting as it did, would have struck plaintiff’s right leg (had his left been so far north as to escape the table) and the legs of the- other persons west of the truck’s table before the wheel could have come in contact with plaintiff’s left foot. The table’s edge coming in contact with plaintiff’s right leg would, necessarily, have forced the leg against the doorsill and injured it, before such injury as he describes would have happened to the left foot. There is no evidence that the table’s edge occasioned any injury to the plaintiff’s right leg or to any one other that the plaintiff. This is decisively inconsistent with plaintiff’s positon and theory in the case.

Furthermore, plaintiff advances the contentions that defectiveness in the elevator or its machinery caused the elevator to jerk in the manner claimed by plaintiff and that the master promised to repair such defectiveness. In respect of both these contentions the burden of proof was upon the plaintiff to establish the contentions by a preponderance of the evidence. "While there is evidence that the elevator jerked there is none that the jerking was caused or occasioned by the “elevator and the machinery operating, controlling and stopping the same,” being “loose, worn out, out of order, shaky, and otherwise unsafe and dangerous,” as alleged, or that the defendant was negligent in permitting it to be in such condition. It is well possible that plaintiff’s fellow servant, Zachwiega, may have caused the elevator to jerk. We have carefully analyzed the evidence and, considering not only what the witnesses have said but also the inherent nature and character of their testimony, we are convinced, also, that plaintiff has failed to establish, by a preponderance of the evidence, both the contention that the elevator jerked and the contention that the master was informed of some defect in the elevator or its machinery and promised to repair the same. This failure would alone require us to reverse the judgment rendered. "Whatever we may" think of the policy of the rule, the law invests this court with the power and requires of us that we perform the duty to review the verdict of the jury upon questions of fact. Indeed, this is the court of last resort in respect to questions of fact. Whenever the question is raised in this court as to the sufficiency of the evidence, in point of fact, to sustain the verdict and judgment, it becomes our duty to carefully analyze the evidence and determine where the preponderance lies, even where there is a square conflict in the testimony of witnesses. Should we fail in that respect we should be derelict in our duty. Under the law we have no right to shift that burden, upon the trial court or the jury. True, this court should be slow in disturbing the verdict of the jury and the judgment of the trial court and should not do so except upon firm conviction that injustice would otherwise be done and after a careful consideration of all the evidence.

In Donéis on v. East St. L. Ry. Co., 235 Ill. 625, our Supreme Court held that the constitution does not make the jury the final judges of the weight of the evidence. To the same effect are C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; Borg v. C., R. I. & P. Ry. Co., 162 Ill. 348; and City of Spring Valley v. Coal Co., 173 Ill. 497. In the Donelson case the court also said: “If a verdict is manifestly against the weight of the evidence, it is not necessary that it should further appear that it is not the result of the impartial and honest judgment of the jury, nor that it resulted from prejudice, passion or some improper motive or condition. To permit a verdict, which is clearly and manifestly against the weight of the evidence, to stand, upon the supposition that the jury were impartial and honest, would be as unjust and injurious to the defeated party as though it proceeded from passion, prejudice or some improper motive.” This court said in I. C. R. R. Co. v. Cunningham, 102 Ill. App. 206: “The mere fact that a jury have passed upon the questions of fact cannot absolve this court from the duty of determining whether or not the verdict is justified by the evidence. That duty is by the statute placed upon this court.” In Hebard v. Tilley, 134 Ill. App. 1, this rule was reiterated. See also Wentz v. Wilson, 52 Ill. 440.

The language used in C. & A. R. R. Co. v. Shannon, 43 Ill. 338, and Miller v. Balthasser, 78 Ill. 302, to the effect that a verdict will not be set aside where the evidence is conflicting unless it is apparent that the jury was actuated by passion, prejudice or a palpable misapprehension of the facts is squarely overruled by what is said in Donelson v. East St. L. Ry. Co. above quoted. Were it in a particular case, where the defendant attacked the judgment of a trial court on the ground that the evidence was insufficient to sustain the verdict, demonstrable that the evidence was evenly balanced it would be our duty, under the law, to reverse such judgment because the plaintiff had failed to prove his case by a preponderance of the evidence. Here plaintiff failed to prove, in the manner the law required him to prove, that the master was informed of an existing defect and that he promised to repair. No reason is shown for believing Trybula as against Berg, while reasons to the contrary appear.

There are also some errors in the rulings upon evidence and in the instructions, which we regard as prejudicial to the defendant, but in view of our disposition of the case it is unnecessary to specifically refer to them.

The judgment of the trial court will be reversed and the cause will not be remanded.

Reversed.