text:
    John F. Devine, Administrator, Appellee, v. Boston Store of Chicago, Appellant.
    Gen. No. 16,117.
    1. Master and servant—who not fellow servants as a matter of law. An elevator operator in sole charge of the operation of an elevator is not as a matter of law the fellow servant of a clerk employed in a clerical capacity, who was in the habit of using such elevator.
    2. Pleading-;—when declaration failing to allege absence of fellow ' servant relation sufficient. If a declaration directly and indirectly improperly fail to allege that the plaintiff and the servant whose negligence caused his injury were not fellow servants, if the evidence justifled the jury in finding that such relation did not exist the declaration is good after verdict.
    3. Instructions—when reference to limits of recovery will not reverse. In a death ease ah instruction which tells the jury that the amount of their verdict "may be any sum between $1 and $10,000” though open to some criticism in referring to the ad damnum is not ground for reversal.
    4. Instructions—when ignoring defense of fellow servants cannot he complained of. If an instruction be improper in ignoring the defense of fellow servants complaint thereof cannot be made by the opposite party if he requested and caused the court to give an instruction or instructions containing a like impropriety.
    5. Instructions—use of phrase “by such carelessness.’’ Held, that the use of the phrase referred to in the instruction under criticism was not calculated to mislead the jury.
    6. Instructions—when modification as to probative effect of happening of injury proper. Held, that the following statement contained in the instruction as originally presented was too sweeping and that the modification made by the court was accurate and proper. "Nor is the happening of the injury to the deceased any evidence whatever that the defendant is liable for his injuries, or that the plaintiff is entitled to your verdict.”
    7. Negligence—effect of concurring. If the negligence charged against the defendant is established a verdict against him is proper notwithstanding the injury complained of was contributed to by the negligence of a third person not joined as a defendant.
    8. Negligence—what may be shown to establish in operation of elevator. As bearing upon the care required to operate an elevator and the duty of the defendant to ascertain whether or not his operator was sufficiently capable and experienced, it is competent for the plaintiff to show every known fact in relation to the operation of such elevator including the speed at which the elevator was ordinarily capable of being operated. . .
    9. Negligence—what incompetent to establish in operation of elevator. Held, that it was improper to permit a city elevator inspector to give his opinion to the effect that a man ought to have two or three months’ experience in operating an elevator in order to become thoroughly competent.
    10. Evidence—what competent in action for death by wrongful act. In such a ease it is not improper to permit a -witness to testify that the deceased was industrious.
    11. Evidence—when objection to model will not avail. If a model was used by counsel for both parties and by the witnesses for purposes of illustration without objection, an objection for the first time made in the appellate court to such use will not avail.

      12. Verdicts—when not excessive. Held, in a death case, that a verdict of $3,000 was not excessive where it appeared that the deceased was 32 years of age, was unmarried, earned $13.50 per week, resided with his mother, paid her from 4 to 4% dollars per week for his board, and in addition gave her $10 per month.
    Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 14, 1912.
    Winston, Payne, Strawn & Shaw, for appellant; Ralph M. Shaw and Edward W. Everett, of counsel.
    Charles T. Farson and Gardner, Stern, Anderson & Davis, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee, as administrator of the estate of Samuel Kahn, deceased, recovered a verdict and judgment in the Superior Court against appellant, Boston Store of Chicago, for $3,000, as damages for wrongfully causing the death of his intestate.

The declaration contains three counts. In each count it is alleged that in the building occupied by appellant it operated and controlled an elevator for the conveyance of passengers from floor to floor of said building, which elevator was particularly used at the time in question for the carriage and conveyance of the employes and servants of appellant in the due course of their business and employment; that the deceased was a servant or employe of appellant, working in a clerical position, and at the time in question had occasion, in the course of his employment, to go to another floor in said building, and for that purpose signalled the said elevator, etc. The first count charges careless and negligent operation of the elevator, by the servants of appellant in charge of and operating the same, in starting it before the deceased had entirely passed into the car; the second count charges a failure to keep the elevator at rest a sufficient length of time to enable the deceased to safely get into the car; and the third count charges appellant with negligence in employing an incompetent servant to operate the elevator.

At the close of the evidence for appellee, and again at the close of all the evidence, appellant moved the court to instruct the jury to find it not guilty, but in each instance such motion was denied and the instruction refused.

The elevator in question was known as No. 15. It was operated by hydraulic power and was used exclusively in carrying the employes of appellant. The power was communicated to the machinery which operated the elevator, by means of a lever, which moved from right to left within an arc shaped frame. When the lever was placed in the center of the frame, the car remained stationary, and the lever was held in place by a spring catch on its inner side which fitted into a slot in the frame. The spring catch was released by a device underneath the handle of the lever. When the lever was moved to the right the car descended in the shaft and when it was moved to the left the car ascended. The door of the car was opened and closed by air pressure controlled by a knob placed above the lever and also by a foot treadle connected with the knob by a chain. When the knob was pulled down about an inch the door opened and when the knob was released the door closed. The lever was located in the front of the car to the left of the door, and in moving the lever the operator most conveniently used his left hand.

The deceased was employed in a clerical capacity in the mail order department of appellant’s business, conducted on the seventh floor of the building, but upon occasion was required to visit other departments of appellant’s business, conducted upon the several other floors of the building, and for this purpose customarily used one or the other of two elevators operated by appellant for the use of its employes. On the occasion of the accident in question the deceased was on the second basement floor, at which floor the car had been standing a few minutes. The deceased hurriedly approached the entrance to the car, the door being open, and had partially entered the car, when the door commenced to close and the car suddenly and rapidly ascended. The deceased was thereby caught between the floor of the car and the floor of the first basement, and so seriously injured that he died. The operator in charge of the car was Edward Fesenmeyer, who had then been in the employ of appellant about a week. Prior to the attempt by the deceased to enter the car, four of appellant’s employes, other than Fesenmeyer, were in the car. Ida Friedman, Yetta G-oldstein and Harold Dahlin, a bundle boy, had been in the car several minutes, and Irene Briggs immediately preceded the deceased.

It is claimed by appellee that Fesenmeyer moved the lever at the time the deceased was entering the car, before allowing sufficient time for the door to close, while appellant claims that the lever was moved by Ida Friedman, immediately after Fesenmeyer released the knob for the purpose of closing the door. Upon this issue the evidence, while somewhat conflicting, justifies a finding that the lever was moved by Fesenmeyer, and it is practically conceded by appellant that if the lever was moved by Fesenmeyer he was negligent in that respect. It is, however, insisted by appellant that Fesenmeyer and the deceased were fellow-servants as a matter of law within the consociation branch of the fellow servant rule, and that there can, therefore, be no recovery under the first and second counts of the declaration. The question whether or not Fesenmeyer and the deceased were fellow servants was not submitted to the jury as one of fact, and it, therefore, only remains in the case as a question of law. The admitted facts that Fesenmeyer was employed by appellant to operate an elevator for the carriage of other of its employes; that the means provided for the operation of the elevator were wholly within the direction and control of Fesenmeyer; that the deceased was an employe of appellant engaged in a clerical capacity, and in the usual course of his employment was in the habit of being carried upon the elevator so operated by Fesenmeyer, do not as a matter of law constitute the deceased and Fesenmeyer fellow servants, so as to relieve appellant from liability for an injury to the deceased by the negligence of Fesenmeyer. In other words, upon the facts stated, it cannot be said as a matter of law that the usual duties of Fesenmeyer and the deceased were such as to bring them into habitual association so that they had the opportunity and power to influence each other to the exercise of caution. Chicago City Ry. Co. v. Leach, 208 Ill. 198. The statement in Walsh v. Cullen, 235 Ill. 91, relied upon by appellant, to the effect that an employer who owns and operates an elevator is subject to all the duties toward his employes that obtain in other cases where the relation of master and servant exists and the servant is subject to the rules of law governing the assumption of risks and the negligence of fellow servants does not mean that as a matter of law the relation of fellow servants exists in all instances between servants who operate elevators for the carriage of other servants and such other servants.

The case was not tried in the court below upon the theory that appellant owed the strict duty to the deceased that arises out of the relation of carrier and passenger, and it is, therefore, not necessary to dis-' cuss that question.

It is next urged that the first and second counts of the declaration do not state a cause of action, because it is neither specifically alleged therein that the deceased and Fesenmeyer were not fellow servants, nor are there any allegations therein justifying a reasonable inference that they were not fellow servants under the consociation rule. True, in neither of said counts of the declaration is it expressly alleged that the deceased and'Fesenmeyer were not fellow servants, but as the facts alleged and proved did not constitute them fellow servants as a matter of law, the question became one of fact for the jury, and said counts of the declaration were thereby made good after verdict. Chicago & Alton R. R. Co. v. Swan, 176 Ill. 424; Bennett v. Chicago City Ry. Co., 243 Ill. 420.

As the evidence warrants a recovery under the first and second counts of the declaration, it is not necessary to consider in detail the evidence bearing upon the third count of the declaration. A careful analysis of such evidence, however, leads us to the conclusion' that a verdict against appellant upon the third count would not be unwarranted.

The fourth instruction, given at the instance of appellee, relates to the question of damages, and is' based upon the hypothesis that appellant shall have been found guilty under either count of the declaration. The instruction is well guarded, and the direction at its conclusion that the amount of the verdict, “may be at anv sum between one dollar and ten thousand dollars, which you find the pecuniary loss to be,” is not in this case seriously objectionable, although reference to the amount of the ad damnum in the declaration is open to criticism. It is said, “The fault with this instruction is that the jury would be impressed with the idea that substantial damages ought to be allowed.” If the jury found appellant guilty as premised in the instruction, the deceased having left him surviving lineal next of kin, pecuniary loss would be presumed. C. P. & St. L. R. R. Co. v. Woolridge, 174 Ill. 330. It cannot be seriously urged that a verdiet for one dollar would, in any such case, amount to an award of more than the pecuniary loss which the law presumes.

The court of its own motion gave to the jury the following instruction:

“You are instructed by the court that if you believe from the evidence that the elevator man retained control of the lever all the time while in the car, at the time of the accident, and that he himself failed to exercise ordinary care in the physical control of the lever or in the control of the appliance operated by the knob, or in the control or operation of both knob and lever, and that by such carelessness Kahn was caught and injured so he died, and further find Kahn at the time of and prior to the accident was in the exercise of ordinary care, then in such state of the proof, you should find in favor of the plaintiff, Devine.”

As to this instruction, it is insisted that it improperly singles out the individual act of Fesenmeyer to the exclusion of all his other conduct; that it eliminates the question of fellow servant; that it ignores the issue under the third count of the declaration; and that it assumes that the failure of Fesenmeyer to retain physical control of the lever and apparatus constituted negligence.

Under the first and second counts of the declaration, whether or not Fesenmeyer was negligent in his conduct and operation of the elevator was one of the main subjects of inquiry. There is abundant evidence in the record tending to show that it was the duty of Fesenmeyer, repeatedly enjoined upon him, to have his hand on the lever at all times, and not to use the lever for the purpose of moving the car until the door was closed. If Fesenmeyer failed to use ordinary care in controlling the lever or in controlling the appliance which opened and closed the door, then he was guilty of the negligence alleged in the first and second counts of the declaration. The instruction igñores the question of fellow servants, but of this appellant cannot complain, because the twelfth and twenty-first instructions given at its instance ignore the same question and impliedly concede its liability for the negligence of Fesenmeyer. As a matter of fact, the question of fellow servants is not alluded to in any instruction tendered or given in the case. The instruction had no relation to the issue involved under the third count of the declaration, and there was no occasion for any reference to such issue..

The last criticism of the instruction is more artificial than real. The phrase “by such carelessness,” manifestly relates to the failure of Fesenmeyer to exercise ordinary care in the respects indicated in the preceding portion of the instruction, and the failure of Fesenmeyer in that regard is not assumed, but is submitted to the jury as a question of fact. The instruction is not a model, and had better have been withheld, but it is not so misleading and prejudicial as to require a reversal of the judgment.

We have fully considered the objections urged to other instructions given by the court upon its own motion and at the instance of appellee, but do not deem them of sufficient significance to merit further discussion.

It is insisted that the eighteenth instruction tendered by appellant was improperly modified by striking out the following: “Nor is the happening of the injury to the deceased any evidence whatever that the defendant is liable for his injuries, or that the plaintiff is entitled to your verdict.” This statement is too sweeping. The rule was properly and sufficiently announced in the same instruction as given, as follows: “The court instructs the jurv that the mere fact that the deceased was injured while in the employ of the defendant, does not entitle plaintiff to a verdict at your hands.” The twenty-second and twenty-third instructions tendered by appellant and refused by the •court were properly refused because they ignored the liability of appellant for an injury resulting from the ■concurrent negligence of Fesenmeyer and the wrongful act of a third person. They also ignored the third ■count of the declaration.

It is urged that the court improperly permitted the witness, Moses Kahn, to give hearsay testimony. The record shows the contrary and that such testimony was stricken out. A statement by the same witness that the deceased was industrious was properly permitted to stand.

During the trial a purported model of the elevator and of the device for opening and closing the door was placed in view of the jury. While the model was not permitted to be operated, it was used generally by counsel for both parties and by the witnesses for the purpose of illustration, without objection. It is needless to say that the objection for the first time in this court to such use of the model comes too late.

Over the objection of appellant a witness for appellee was permitted to state that the speed at which the elevator was ordinarily capable of being operated was 400 feet a minute. It was competent for appellee to show every known fact in relation to the operation of the elevator, as bearing upon the care required to operate it and the duty of appellant to ascertain whether or not Fesenmeyer was sufficiently capable and experienced to properly operate it.

The opinion of the witness, Boss, city elevator inspector, to the effect that á nián ought tó have two or three months’ 'experience in operating an elevator, such ás the one in question, to be a thorough elevator man, was incompetent, but the record discloses that the objection interposed to the question which elicited the opinion of the witness, 'was directed solely to the qualification of the witness, and not to the competency •of his opinion as evidence. Other objections urged to the rulings upon the evidence are inconsequential.'

At the time of his death, the deceased was 32 years, of age. He was unmarried and resided with his parent, to whom he paid from $4 to $4.50 a week for his. board. He was earning $13.50 a week, and gave his-mother $10 a month in addition to the amount paid by him for board. The damages assessed at $3,000-are not excessive.

There is no prejudicial error in the record and the-judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Charles Godin, Appellee, v. F. G. Hartwell, Appellant.
    Gen. No. 16,126.
    1. Verdicts—when set aside as against the evidence. A verdict will' be set aside as against the evidence where clearly and manifestly so.
    2. Instructions—when cannot he complained of. If an instruction is improper in departing from the averments of the declaration it cannot be complained of where instructions given at the instance of the-complaining party contained a like impropriety.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1912.
    F. J. Canty and E. J. Folonie, for appellant.
    S. P. Douthart, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action in case by appellee against appellant to recover damages for personal injuries alleged to have been occasioned by a vicious horse belonging-to appellant, which appellee, as a servant of appellant,. was required to drive and care for. A trial by jury in the Superior Court resulted in a verdict and judgment against appellant for $1,500, from which judgment he prosecutes this appeal.

The first count of the declaration alleges that for a long time prior to June 13,1905, appellant negligently kept in his barn a certain horse, well knowing that said horse was accustomed to kick and attack mankind, all of which was unknown to appellee; and that while appellee, on said day, was in the performance of his duties in caring for said horse, and in the exercise of due care for his own safety, said horse suddenly and violently attacked and kicked appellee, etc. The second count alleges that appellant then negligently kept in his barn a certain horse of vicious, ferocious and malicious disposition, all of which was and for a long time had been known to appellant, and was unknown to appellee; and that while appellee was in the exercise of due care for his own safety, and in the performance of his duties, etc. The third count is substantially like the first, except that it further alleges a duty on the part of appellant to notify and warn appellee of the vicious disposition of the horse, and that said horse was accustomed to attack and kick mankind.

It is insisted the verdict of the jury upon the question of appellant’s liability is against the clear preponderance of the evidence.

At and' prior to June 13, 1905, appellant was engaged in the business of teaming, and kept from 100 to 125 horses in his stables. Appellee was first employed by , appellant in February, 1905, as a driver, and served in that capacity thereafter until he was injured. One of the duties of a driver was to feed,, care for, clean, and hitch and unhitch the horse or horses driven by him. ; While, an effort was made on behalf, of appellant to show that “Ike,” the horse in question, was an old, slow going, gentle “plug,” there is substantial evidence in the record tending to show he was a kicker and that he had a vicious and stubborn disposition; that he frequently kicked when struck or tapped with a curry-comb.

Appellee testified that he had never driven or cared for the horse “Ike,” until two weeks prior to his injury ; that during that time the horse had been quiet and gentle and had manifested no disposition to kick, and that he had no knowledge the horse was a kicker; that upon the occasion in question he unharnessed the horse, put a halter on him and led him into the alley for the purpose of cleaning him; that he tied the horse to a ring in the window sill, and was in the act of walking around behind the horse to get a comb, brush and cloth, when the horse kicked him in the face, causing the injuries complained of. Appellee’s version of the occurrence is wholly uncorroborated.

James O’Leary, a witness called on behalf of appellee, testified on direct examination that about two weeks or a month prior to the time appellee was injured, he (O’Leary), while cleaning the horse, slapped him on the hip with the curry-comb and the horse kicked at him, and that he informed appellant’s foreman of the circumstance. On cross-examination the same witness testified, that upon one occasion, when the horse was being cleaned, he saw some person hit him with a curry-comb and saw the horse give a jump; that he said to the person, “You had better look out there or you’ll get your block kicked off, because he will kick you if you hit him;” that the person might have been appellee, he was not sure; that the signature to the paper then shown him was his; that he read the paper before signing it and the statement contained in it was true. The paper identified by the witness, and offered in evidence by appellant, contains a statement as follows; “The horse was a plug, and gentle, unless .you hit him on the flanks. He was all right unless you hit him. I saw Godin tap "him on the' flank with. the curry-comb one day in the barn and said.to him, ‘Ton had better be careful about hitting that horse with the comb, because if you do, he will Hck you, as he tried to do me.’ ” Appellee did not deny that he had been so cautioned by O’Leary.

James Barry and Frank Carter, two fellow-servants of appellee, testified they were present upon the occasion when appellant was injured, and were then engaged in cleaning horses within a few' feet of appellee; that they saw appellee hit the horse with the curry-comb, and heard him say, “Get over there,” and immediately saw the horse kick appellee; that when he was kicked appellee was in a stooping position with his back toward the horse’s head. Appellee denied that he hit the horse with the curry-comb, but he did not deny that Barry and Carter were present, as they testified, when he was injured.

Edward T. Brindley, Dr. Melville C. Kolb and William Brownson, witnesses called on behalf of appellant, testified that in answer to their several inquiries as to how he was injured, appellee said, in substance, that while he was cleaning the horse, he tapped him with a curry-comb to make him stand over and he kicked him.

It will thus be observed that upon each of several issues in the case, the testimony of appellee, a confessedly interested party, stands alone and uncorroborated, sáve by the mere fact that he was kicked by the horse, and that upon such issues, the evidence introduced on behalf of appellant, consisting of the testimony of several unimpeached witnesses having no apparent interest in the controversy, is in direct conflict with the testimony of appellee. True, the mere fact that appellee may have struck the horse with a curry-comb for the purpose of making him stand over does not preclude a recovery, but if appellee knew the disposition of the horse to kick generally, he assumed the risk, and if he knew that the horse would kick when hit with a curry-comb, he was guilty of contributory negligence in hitting the horse. If the horse was in the habit of snapping at persons and kicking, whenever he was approached, as is testified to by some of appellee’s witnesses, it is incredible that appellee could have been in and around the stables of appellant from February until June, and during the last two weeks have taken exclusive care of the horse, without observing his habit and disposition in those respects.

The testimony of appellee bearing upon the material issues in the case, as to his knowledge of the habits and disposition of the horse, and whether or not he was warned not to hit the horse, is, in view of the circumstances disclosed by the evidence, and in view of the fact that he was successfully contradicted in other particulars, entitled to little weight. We are fully persuaded that the verdict of the jury upon the question of appellant’s liability is against the' manifest weight of the evidence and should be set aside.

The rulings of the court upon the evidence are substantially free from error, notwithstanding an apparent effort made on behalf of appellee to inject impertinent matter into the record for the purpose of improperly influencing the jury against appellant. As upon a retrial of the case, the record in that respect will, doubtless, be free from criticism, we do not deem it necessary to further discuss the same.

While the second instruction given at the instance of appellee reveals a departure from the averments of the declaration with respect to the knowledge of appellant of the vicious disposition of the horse, like instructions were given at the instance of appellant, and the latter is thereby estopped from complaining.

Because the verdict is against the manifest weight of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mb. Pbesiding Justice Baume

text:
    The People of the State of Illinois, Defendant in Error, v. Samuel Golden, Plaintiff in Error.
    Gen. No. 16,306.
    1. Wipe abandonment—when information sufficient. An information charging the offense of wife abandonment is not defective in failing to allege that the wife was in destitute or necessitous circumstances at the time of the alleged abandonment.

      2. Statutes—function of title of act. The title of an act is no part thereof, although it is not to be wholly disregarded in construing the act and may be resorted to where a consideration of the act itself makes the intention of the legislature uncertain or ambiguous.
    3. Municipal Court—what within criminal jurisdiction of. The Municipal Court has jurisdiction of the offense of wife abandonment.
    4. Municipal Court—when retains jurisdiction after lapse of SO days from -final order. By virtue of the wife abandonment act construed in connection with section 21 of the municipal court act the municipal court has jurisdiction to change the allowance for the support of the wife and child or children from time to time as the circumstances may require in accordance with the provisions of said wife abandonment act.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 14, 1912.
    Saul C. Ebbstein, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Otto B. Scheam, of counsel.
   Mb. Pbesiding Justice Baume

delivered the opinion of the court.

Upon prosecution by information in the Municipal Court the plaintiff in error was found guilty by a jury of the offense of wife abandonment, and sentenced by the court to imprisonment at labor in the house of correction for seven months and to pay a fine of $200 and costs. This writ of error is prosecuted to reverse such judgment of conviction.

It is insisted that the information is fatally defective because it fails to allege that the wife was in destitute or necessitous circumstances at the time of the alleged abandonment. The portion of the section of the statute in question is as follows:

“That every person who shall, without cause, abandon his wife and neglect and refuse to maintain and provide for her, or who shall abandon his or her minor child or children under the age of twelve years, in destitute or necessitous circumstances, and wilfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished,” etc. R. S., 1909, p. 1243, par. 24.

Under this statute the words “in destitute or necessitous circumstances,” are descriptive of and relate to the minor. child or children and not the wife. True, the act is entitled, “An Act making it a misdemeanor to abandon or wilfully neglect to provide for the support and maintenance by any person, of his wife, or of his or her minor children, in destitute or necessitous circumstances,” but the title of. the Act is no part of the act, and although it is not to be wholly disregarded in construing the act, and may be resorted to where a consideration of the act itself makes the intention of the legislature uncertain or ambiguous, there is no occasion to consider it in this instance.

It is insisted that the Municipal Court was without jurisdiction to try plaintiff: in érror upon the information'and to render a judgment in the case. This insistence is predicated, as we understand it, upon the ground, first, that the statute defining the offense charged in the information, provides that the court may, in addition to imposing a punishment by fine or imprisonment, or both, direct the defendant, to pay a certain sum weekly for one year to the wife, guardian or custodian of the minor child or children, and second, that the same statute provides that the court may-change such order or direction from time to time as the circumstances may require. In support of the first ground it is said that an offense made punishable by a penalty in addition to fine or imprisonment, otherwise than in the penitentiary, or both, may only be prosecuted upon indictment by a grand jury, and People v. Kipley, 171 Ill. 44, and People v. Russell, 245 Ill. 268, are cited as being in point. Neither of these .cases is pertinent.^ In the Kipley case, it was held that disqualification to hold office following conviction of the offense there involved rendered the offense infamous and not subject to prosecution by information. In the Bussell case, it was held that petit larceny was an infamous crime and could only be prosecuted upon indictment by a grand jury.

The provision in the act relating to abandonment of wife or children, authorizing the .court to require the defendant to pay a certain sum weekly for one year for the support of the wife or child or children, is not, strictly speaking, in the nature of a penalty, but merely the enforcement of a legal obligation by summary process.

In support of the second ground, it is said that, as the act in question authorizes the court to change the allowance for the support of the wife or child or children from time to time as the .circumstances may require, the Municipal Court is powerless to execute it, because it is not permitted by statute to change anv final order after thirty days from the entry thereof. Section 21 of the act creating municipal courts provides, in part, as follows:

“Every judgment, order or decree of said court final in its nature shall be subject to- be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court, during the term at which the same was rendered in such circuit court, provided a motion to vacate, set aside or modify the same be entered in said Municipal Court within thirty days after the entry of such judgment, order or decree. If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified, excepting on appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which ■would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity.”

In changing any order theretofore made with respect to an allowance for the support of a defendant’s wife or child or children, as the circumstances may require, the court would necessarily be moved by equitable considerations, and we apprehend that the provision in the portion of the section above quoted, relating to an application to the court by petition, vests ample authority in the court to order such changes in the allowance as may be deemed necessary.

There is no error in the record and the judgment js affirmed.

Judgment affirmed.


author: Mr. Justice Duncan

text:
    J. J. Jackson & Son, Plaintiffs in Error, v. New York Central & Hudson River Railroad Company et al., Defendants in Error.
    Gen. No. 15,791.
    1. Common carriers—when conversion of shipment not established. A failure by a carrier to inform of arrival of shipment as-required, in the event of subsequent delivery upon demand to the consignor, does not establish a conversion..
    2. Common carriers;—tdhat delivery not required. A carrier is not bound to deliver to a consignee at its place of business' in the absence of a contract or custom established. It is however the duty of the carrier to notify a consignee of the arrival of the shipment and to place it on the tracks or other proper place where the consignee can take the shipment.
    3. Common carriers—when not liable for depreciation. The consignee upon notice and delivery at a proper place is bound to remove a shipment within a reasonable time. Prom the time that the consignee has notice of the arrival of the shipment and a reasonable time has elapsed for its removal the shipment- is at the risk of the consignee and no liability attaches to the carrier for subsequent depreciation in value.
    4. Measure op damages—when carrier fails promptly to notify of arrival of shipment. In such a ease the measure of damages is the difference between the market value of the shipment in question at the proper time and place of delivery and the market value at the same place on the date when the shipment was tendered by the carrier. Provided, further, that if the market price at the date when delivery should have been made exceeded the price at which the same had been sold the measure of damages would be the difference between the market value at the date when the purchaser refused to accept the shipment and the selling price plus the damage, if any, by reason, of the negligence of the carrier in not making prompt delivery.
    5. Evidence—how market values may be established. Market values may be established by the testimony of experts who qualify by showing knowledge of quotations gained by letters and wires.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1912.
    Statement by the Court. The plaintiffs in error, J. J. Jackson & Son, sued the defendants in error, final and initial carriers, respectively, to recover for loss and damage sustained on a car-load shipment of barreled apples delivered in good order, October 29, 1907, to the defendant in error, New York Central & .Hudson River Railroad Company, at Middleport, New York, to be transported and delivered to “J. J. Jackson & Son,'Notify Hudson Cold Storage Company, Hudson, Wisconsin,” routed “Ohio Street, Buffalo, care Western Transit Company, Care North Western Line at Milwaukee. ’ ’ The car was hauled by defendant in error, New York Central, to Ohio street, Buffalo, and the contents of the car there delivered to the Western Transit Company, a boat line running from Buffalo to Milwaukee. At Milwaukee the apples were delivered to the Chicago & Northwestern Railway Company, which in turn delivered them to the Chicago, St. Paul, Minneapolis & Omaha Railway Company, which transported the apples in due time to Hudson, Wisconsin, November 6, 1907. The original car initial and number on the bill of lading was N. 0. & N. E. 16579, but en route, without knowledge of the plaintiffs in error, the contents were transferred to E. F. G-. car 61,092, and when the waybilling under which the car moved reached Hudson, the words “Notify Hudson Cold Storage Company,” were omitted, and by reason thereof no notice of the car’s arrival was received by the Hudson Cold Storage Company until about November 16th after the car’s arrival. The plaintiffs in error, having sold the apples at $4.35 a barrel, on a delivery order to the Hudson Cold Storage Company, drew their sight draft for $761.25 on that company, attached the bill of lading, and placed both with their bank at Hudson. The draft was dishonored because the Hudson Cold Storage Company could not obtain the apples in the time agreed, and the Storage Company, about November 16th, declined to accept the shipment, having previously bought apples elsewhere to fill its orders after it had made repeated inquiries of the defendant’s agent for the apples and after they had arrived at Hudson. On December 2, 1907, a representative of the Produce Reporter company appeared on.behalf of plaintiffs in error, accepted the car and attempted to make a sale of the apples in Hudson; but could not do so because there was then no market at that place for apples, the buyers having been previously supplied. The car of 175 bbls. was then ordered to Minneapolis and sold for $3 per barrel about December 18, 1907. Plaintiffs in error’s claim is for $377.86 loss by reason of delay in transportation, based upon the difference between the price for which the plaintiffs in error had sold the apples on November 6th and the price realized by them at Minneapolis on December 18th, pins incidental expenses. The court entered judgment in favor of plaintiffs in error against the defendants in error for nominal damages of one dollar and costs of suit, after a trial without a jury. This writ of error brings before us for review the judgment rendered by the Municipal Court.
    Frederick S. Baker, for plaintiffs in error.
    Winston, Payne, Strawn & Shaw, for defendants in error; George B. Winston, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

Plaintiffs in error argue that there was a conversion of the apples by the defendants in error after reaching their destination, as demand was frequently made for the apples by the Hudson Cold Storage Company after their arrival at destination, and such demand was refused by the agent of the defendants in error. For the same reason, it is claimed that the proper measure of damages is the difference between the market value of the apples at Hudson on the 6th day of November, when they ought to have been delivered, and the price for which they were sold in Minneapolis plus the necessary expense of re-shipping the apples, commissions, etc. As a further basis for this measure of damages, it is said that there was no market for the apples at Hudson from December 2nd, the time they were actually delivered to plaintiffs in error, up to and including December 18, 1907, the day on which the apples were sold. We do not think the evidence shows a conversion of the- goods by the defendants in error. The shipment was made to J. J. Jackson & Son with directions to notify the Hudson Cold Storage Company, and that company could not obtain the apples from the defendants in error without the surrender of the bill of lading. The Cold Storage Company refused to take up the draft and the bill of lading because the agent of defendants in error continued to inform it that no such car of apples had arrived, until after the Storage Company had supplied itself with apples elsewhere. It is proved also that plaintiff in error demanded and received the apples about December 2nd. The evidence simply shows a negligent delay on the part of the defendants in error in notifying the Storage Company of the arrival of the car, by reason of their negligent failure to direct their agent by their way-bill to “notify Hudson Cold Storage Company.” Scovill v. Griffith, 12 N. Y. Court of Appeals, 509; Zinn v. N. J. Steamboat Co., 49 N. Y. Court of Appeals, 442; N. O. J & G. N. R. R. v. Tyson, 46 Miss. 729; Hutchinson on Carriers, 3rd Ed., Sec. 1372.

The defendants admit that they were negligent as aforesaid, and that they are “liable for any damages properly proven.” For any unreasonable delay, either in the transportation or the delivery of freight after its arrival at destination, common carriers are liable. The defendants in error were not bound to deliver the apples to the consignee at its place of business in the absence of a contract or custom to do so; but they were bound to notify the consignee of the arrival of the apples and to place them on their tracks or other proper place where the consignee could take them. Until they did so. their stringent liability as common carriers continued. The consignee upon such notice and delivery was bound to remove the apples within a reasonable time. From the time that the consignee had notice of the arrival' of the apples and a reasonable time had elapsed for their removal, they were at the risk of the plaintiffs

in error, and no liability attached to the defendants in error for subsequent depreciation in value. Zinn v. N. J. Steamboat Company, supra.

The measure of damages in such a case is the difference between the market value of the apples in question at Hudson, November 6, 1907, the date of their arrival and on which the Storage Company should have received them, and the date on which they were tendered to it by the defendants in error, about November 16, 1907. Hutchinson on Carriers, 3rd Ed., Sec. 1366; Ward v. R. R. Co., 47 N. Y. Court of Appeals, 29; L., N. A. & C. Ry. Co. v. Heilprin & Co., 95 Ill. App. 402.

The foregoing rule should be modified by the further statement that if the market price at Hudson on November 6th should exceed the price of $4.35 per barrel, the price for which plaintiffs in error had sold the apples, the measure of damages would be the difference between the market value at the date the Cold Storage Company refused to accept them, and the selling price of $4.35 per barrel, plus the damage, if any, by reason of the apples being frosted by reason of the negligence -of the defendants in error. If, however, the market value on Nov. 6th should be less than $4.35 per barrel, the defendants in error could not be held by such value unless it be shown that they were apprised, prior to the shipment of the apples-from New York, that the plaintiffs in error had sold the apples for such price on delivery by November 6th. Only the actual damages of the plaintiffs in error can be recovered, such as were necessarily contemplated by the parties in case of negligence as aforesaid.

The plaintiffs in error did not make very definite proof as to the time the Cold Storage Company got notice of the arrival of the car at Hudson. The defendants in error’s claim that it was about November 16th is somewhat supported by the evidence. For the foregoing reason it does not definitely appear by the evidence what was the market value of the apples in question on this date. It is definitely proved that within a few days thereof, or about the last of November, there was no market for the sale of apples at Hudson, because all the buyers there were well supplied. Until it is definitely proved that there was no-market value for the apples on the day the Cold Storage Company refused to accept them, plaintiffs in error were not entitled to the difference in the-market value of the apples November 6th at Hudson, less the net sum received for them by sale in the Minneapolis market, as their damages, unless the evidence further showed that this net sum received at Minneapolis was equal to or greater than the market value of the apples at Hudson on the date the Cold Storage Company refused to accept the apples.

The court ruled in this case that there was no proof of the market value of the apples in question at Hudson on November 6th, the day the apples arrived at Hudson, and sustained objections of the defendants-in error to all of the evidence of the plaintiffs in error bearing thereon. In this ruling we think the court was in error. John J. Jackson, one of the plaintiffs in error, testified by deposition that he was familiar with the condition and prices of apples of the quality and kind shipped by plaintiffs in error to the Hudson Cold Storage Company, on November 6, 1907, and that those apples were worth on the open market at. that place on that day $4.50 per barrel. G-eorge B. Higgins testified by deposition that he had been in the wholesale fruit and produce business exclusively for twenty-seven years, and that he was familiar with the-market value of apples of the quality and kind in question at Hudson, Wisconsin, on of about November 6, 1907, and that they were then worth $4.35 "to-$4.50 per barrel. • The objections made and sustained, to these questions were to the effect that no qualifications of the witnesses to testify as experts were shown, and that the said Jackson could not know such market prices in Hudson. The last objection was •evidently based upon the fact that the witness did not live at Hudson, and hence could not have personal knowledge of the facts to which he testified. Market values are usually obtained from others by letter or wire or by other similar methods. The best posted men on markets and market values usually depend upon such means for such knowledge. The said witnesses in this case qualified and their testimony was ■competent. Their means of knowledge, if it had been shown, and the extent of their knowledge, would have been proper considerations only in determining the weight of their evidence. There being no other testimony opposing their evidence upon this point, the court erred in not considering and treating it as satisfactory proof of such fact. Laurent v. Vaughn, 30 Vt. 90; Lush v. Druse, 4 Wendel (N. Y.) 313.

After the court had ruled out all of the evidence ■of plaintiffs in error pertaining to the market value of the apples in Hudson on November 6th, the same being apparently all the evidence within their possession that could be offered at the trial, it was not within their power to properly prove their damages under the rulings of the court. Similar evidence offered as to market values of the apples at Hudson at any -other time would have been unavailing, whether excluded or not by the court, ás it was necessary for the plaintiffs in error to have the benefit of their proofs as to the market value of the apples at Hudson on November 6th, in order to establish a proper basis for recovery of actual damages. We think, therefore, that the error in the court’s rulings is such ■as to entitle plaintiffs in error to another trial, as the ■evidence tends to show that plaintiffs in error were entitled to recover more than mere nominal damages. The judgment of the lower court is accordingly reversed and the cause remanded.

Reversed and remanded.


text:
    Peter J. Krakowski, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 15,967.
    1. Damages—what cannot be recovered in action for personal injuries. A plaintiff cannot in an action for personal injuries recover any damages for the loss of any portion of his life nor for any earnings he might be supposed to make if living in that part of his life lost by reason of his injuries, but evidence that by reason of an accident the plaintiff’s life has been shortened is competent to' show the extent of the plaintiff's injury, his consequent disability to earn a living, if any, for the time he shall live and his bodily and mental suffering, if any, which will result from such injuries.
    2. Damages—when proof must be specific. Damages claimed for loss of time, medical expenses, etc., must be specifically proved.
    3. Evidence—when subjective symptoms incompetent. Subjective-symptoms or tests obtained from a plaintiff during an examination by a physician for the purpose of testifying upon the trial are inadmissible. Involuntary acts however are not subjective symptoms.
    4. Evidence—what competent to show extent of disability. Held, that it was not error to admit evidence of the plaintiff’s inability to-work generally and to pursue his studies as a medical student although the declaration averred that the plaintiff’s occupation was that of a watchmaker and a student of medicine, but that the plaintiff could only recover for his actual loss of time proved by him as a watchmaker, because no loss or damage by reason of his inability to pursue his study of medicine was proved.
    5. Instructions—when upon meamre of damages in action for personal injuries improper. Where damages claimed are susceptible of specific proof and such specific proof is not made it is improper to tell the jury that “to enable the jury to estimate the amount of damages it is not necessary that any witness should have expressed an opinion as; to the amount of such damages but the jury may themselves make such estimate from the facts and circumstances in proof,” etc.

      6. Verdicts—when excessiveness cannot he cured hy remittitur. If the damages awarded are so grossly excessive that they can only be accounted for upon the theory that the jury were misled by the instructions, the error cannot be cured by the entry of a remittitur.

    Action in case for personal injuries. Appeal from the Superior Court ■of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion on rehearing filed February 14, 1912.
    Statement by the Court. Peter J. Krakowski recovered a judgment of $8,000 against the Aurora, Elgin and Chicago Bailroad Company for personal injuries sustained October 30, 1905. The railroad company has appealed from that judgment.
    Appellee received his injury while a passenger on one of appellant’s cars which collided with a construction car standing on a siding, while running at the rate of about forty-five miles per hour. The forward end of the car in which appellee was riding was almost completely wrecked, and all but two or three of the seats in the car were broken or wrenched from their fastenings. Appellee claimed that he was violently thrown from his seat in said car and that he suffered thereby a very serious dislocation of the left knee, in which dislocation the head of the tibia was passed by the distal end of the femur about two inches. He also claimed that as a result of the injury he suffered very great pain for a long time, and that he continues to suffer pain thereby; that he has suffered a general condition of nervousness designated as neurasthenia, and that he will continue to do so; that his eyesight is affected, and that his limb is much smaller than prior to his injury; that irritation continues in the knee joint, and that he never will be able to use his limb again without severe shocks, and that said injuries are permanent. The fact that he suffered any such dislocation of the knee joint, and that he suffered, or will continue to suffer, from such severe injuries, is controverted very strongly by the evidence of appellant’s witnesses.
    Hopkins, Peppers & Hopkins, for appellant.
    Edward Maher and James L. Bynum, for appellee; Guerin, Gallagher' & Barrett, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

First. Appellant first attacks the verdict and judgment in this case on the ground that they are excessive, insisting that the weight of the evidence shows that appellee did not receive the severe dislocation of the knee that he claimed that he had, or any other serious and permanent injuries by reason of said collision. As the cause will be reversed for other errors in the record, we will not discuss the case on the merits further than to say that the question of the extent of appellee’s injuries was very closely contested, and we are of the opinion that the damages awarded by the jury are excessive.

Second. The record shows appellee was allowed by the court, over the objections of the appellant, to prove that appellee’s injuries would shorten his life. At common law, no action could be maintained against any person for wrongfully causing the death of another person. It is only by virtue of some statute that such an action can be maintained anywhere in this country or in England; and the preamble of Lord Campbell’s Act, which was an act passed for the purpose of compensating families of persons killed by accidents, recites that “no action at law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person.” It has néver been held in this country, in the absence of a statute, so far as we know, that there can be a recovery for the death of any individual, or for the loss of any portion of his life. The injured party cannot do that in an action for a personal injury to himself, because death by reason of the injuries complained of, at once puts an end to his suit, and his legal representatives cannot continue or maintain such suit after his death, unless authorized to do so by a statute. 6 Thompson on Negligence, Secs. 6978, 6979 and 6980; Baker v. Bolton, 1 Campbell (Eng.), 493; Hyatt v. Adams, 16 Mich. 179; Conn. Mut. L. I. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265; Chic. & W. I. R. R. v. Schroeder, 18 Ill. App. 328; I. C. R. R. Co. v. Cragin, 71 Ill. 177.

■ By the 123rd section of the Bevised Act in relation to the administration of estates, in force July 1, 1872, actions to recover damages for an injury to the person, except slander and libel, * * * shall also survive.” Chap. 3, Hurd’s Rev. Stat., 1909. If the party injured die of causes other than the injuries complained of, the suit of the deceased may be continued under the statute in the name of his administrator; but it is and must be regarded as the suit of the deceased, and tried under the same principles of law, as if he were alive and personally present and suing, and no recovery can be had beyond his death. If the injured party die of the injuries complained of, then his action dies with him, and his suit for damages to him cannot be longer maintained. If he had in his life a good.cause of action and died by reason of such injuries, a suit by his administrator can be maintained under the second section of the Injuries Act for his death, for the benefit of the widow and next of kin. In such case it is not the suit of the deceased, and the measure of damages is not governed by the same principles of law at all. Holton v. Daly, 106 Ill. 131; Hurd’s Stat., 1909, Chap. 70.

By the foregoing, it is clear that appellee is not entitled to recover any damages under the law for the loss of any portion of his life, nor for any earnings he might be supposed to make, if living, in that part of his life‘lost by reason of his injuries. After reconsidering this case, however, we are convinced that appellee was entitled to the benefit of the evidence in question to show the extent of his injury, his consequent disability to earn a living, if any, for the time he shall live, and his bodily and mental suffering, if any, which will result from such injuries. Other jurisdictions hold this to be the law and our Supreme Court seems to sanction the same doctrine, when there is evidence, as in this case, that death is reasonably sure to follow as a result of such injuries. The Richmond Gas Co. v. Baker, 146 Ind. 600; C., C., C. & St. L. Ry. Co. v. Miller, 165 Ind. 381; Magee v. City of Troy, 48 Hun (N. Y.), 383; Southerland on Damages, Vol. 4, Par. 1241, 3rd Ed.; T. W. & W. R. R. Co. v. Baddeley, 54 Ill. 19; Lauth v. C. U. T. Co., 244 Ill. 244.

Third. It is the law that subjective symptoms or tests, obtained from a plaintiff during an examination by a physician for the purpose of testifying upon the trial, are inadmissible. Shaughnessy v. Holt, 236 Ill. 485; Greinke v. Chic. C. Ry. Co., 234 Ill. 564. Inasmuch, however, as one or more of the physicians in this case testified that the tremulousness of the hands and of the tongue and eyelids of the appellee were involuntary and not within his control and could not be simulated, the evidence thereof objected to by appellant was competent. The fact that other physicians testified that they were under the control of the voluntary muscles and could be simulated, did not render the evidence inadmissible for that reason; but in such case it was properly left to the jury as a fact for them to determine whether or not such symptoms were involuntary or simulated.

Fourth. We do not think it was error to admit the evidence of appellee’s inability to work generally and to pursue his studies as a medical student, although the declaration averred that his occupation was that of a watchmaker and a student in medicine. The evidence was competent to show the extent of his disability, and under the evidence as introduced, to show how much time as a watchmaker he in fact lost, and how much therefor he should recover. "With proper instructions the evidence was admissible. He could only recover for his actual loss of time proved by him as a watchmaker, however, because he proved no loss or damage by reason of his inability to pursue his study of medicine. The amount of damages to be awarded to him on this evidence was a matter to be guarded and governed by proper instructions.

Fifth. The giving of appellee’s fourth and fifth instructions by the court, in view of the evidence admitted in this case, was error. By instruction No. 4 the jury were told, “to enable the jury to estimate the amount of damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof,” etc. This instruction is correct as to physical injuries, suffering in mind and body, future suffering, and loss of health, which cannot be measured with pecuniary exactness. It is incorrect when applied to damages for expenses made in paying for medicines and medical services rendered, and for loss of wages as an employe in a watch factory, which are capable of exact proof. By this instruction the jury were at liberty to give damages for loss of time as a medical student, without any specific proof of such damages, and which in any event must necessarily be regarded as in the nature of speculative damages. The testimony of appellee was also to the effect that he paid $150 doctor’s bills and that he owed more, but did not know how much more he owed. The physician’s testimony was given only as to the character of the services rendered, and the duration thereof without stating the value of the services, and the value thereof cannot be determined from the evidence. Such services and expenditures are elements of damages capable of pecuniary measurement, and the law requires that the amounts of such expenditure and the amount of liability for such services shall be specifically proved. North C. St. R. R. Co. v. Fitzgibbons, 180 Ill. 466; Harley v. A. E. & C. Ry. Co., 149 Ill. App. 339.

Instruction No. 5 for appellee stated that in determining the amount of damages appellee was entitled to recover in this case the jury had the right to and should take into consideration all the facts and circumstances, as proved by the evidence before them. The instruction does not accurately state the law, and is subject to some of the same objections as No. 4 above mentioned. In determining the amount of damages the jury should only consider such evidence as properly and legally bear upon the question of such damages. In this case, it was not proper for them to consider the evidence as to doctor’s bills, except so much of the same as was properly proved to have been paid. It was not proper for them to allow any sum for loss of time as a medical student. It was not proper for them to allow any sum for loss of appellee’s life. It is not possible for this court to know how far astray a jury may go", where the whole field of evidence is thrown open for the consideration of the jury, the evidence that does, and also the evidence that does not, have proper bearing upon determining the amount of damages, in determining the amount of damages to be awarded. Especially must this be so when the court tells them by an instruction that it is their right and that they should consider all the evidence before them in determining such question. We must necessarily conclude that they followed the direction of the court. While it is true that the evidence that appellee could not follow his avocation as a student and that his injuries would cause his death, is proper to be considered by the jury for the reasons above given, and that such evidence also had a. tendency to affect the amount of damages to be awarded; yet, when a jury are told that they may and that they should consider such evidence in determining the amount of damages they should award, the jury ought to be further instructed as to the correct bearing such evidence shall have in such determination. In other words, they should have been informed that appellee could not recover for the loss of any portion of his life by reason of such injuries, if any, he will lose, nor for any wages or earnings he might be able to make during such portion of his lost life, nor for loss of time as a medical .student. They should also have been informed that no amount could be allowed for that portion of his liability for medical services that was unpaid, or the evidence on that subject ought to have been excluded because the amount of such liability was not made definite. It was not proper for the jury to consider such unpaid liability for any purpose. As the contest in this case was mainly, if not solely, as to the amount of damages to be recovered by appellee, it was very necessary, in view of the evidence, to give' the jury the correct standard in every instance by which to measure the damages.

All must concede that it would be a very dangerous thing to specifically tell a jury that they should take into consideration in assessing damages the fact, if they believed such fact to be proved, that appellee would die as a result of his injuries, without telling them specifically the exact bearing such evidence should have in fixing such damages. As the jury were told they should consider all the evidence in fixing the damages, we are certainly warranted in concluding that they considered loss of life as it was necessarily one of the most prominent facts. We also conclude that such .restricted consideration was not given to that evidence by the jury in assessing the damages, as the law requires, and that’that accounts for the excessive damages awarded by the jury. After thoroughly considering the question, we are of the opinion that the damages are so grossly excessive that they can only be accounted for upon the theory that the jury were misled by the said instructions, and that the error cannot, under the law, be cured in this case by a remittitur. Loewenthal v. Streng, 90 Ill. 74; C. & E. I. R. R. Co. v. Cleminger, 77 Ill. App. 186; North C. St. R. R. Co. v. Hoffart, 82 Ill. App. 539; Lauth v. Chic. U. T. Co., 244 Ill. 244.

While it is true that instructions in very nearly the same language as Nos. 4 and 5 have been approved in a number of cases, still it is clear that they cannot and ought not to be approved in this, or in any other case, where they are inapplicable to certain portions of the evidence not properly in the case, and necessarily misleading as to other evidence properly in the record. The limitation in No. 5, “so far as such damages and injuries, if any, are claimed and alleged in the declaration and are proven, ’ ’ does not have any tendency to relieve these instructions of the objections above suggested. Loss of time as a student, and expenses for medical services, etc., were alleged in appellee’s declaration.

For the errors above indicated, the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    Hugo Richter, Appellee, v. Charles W. Tegtmeyer, Appellant.
    Gen. No. 16,122.
    1. Master -and servant—when doctrine of assumed risk applies; when not. A servant assumes the risks arising from defective tools and machinery and from defects in his working place if after the employment he knows of the defects and appreciates the dangers thereof and voluntarily continues in the service without objection. The law makes an exception to that rule, where the servant gives notice of the defects and dangers and the master promises him to remedy the defects the servant may then continue in the same service for such a time as would be reasonable for the master to fulfil such promise.
    2. Master and servant—when “simple tool rule,” applies. The “simple tool rule” is only applicable where the servant performs ordinary labor with ordinary tools at any place' where no intricate or dangerous machinery is involved. The doctrine is not applicable to any given case upon the grounds solely that the defect is simple and that the servant has full knowledge of the defect and danger of which complaint is made.
    3. Master and servant—when doctrine of assumed risk does not apply. The doctrine of assumed risk does not apply in any case where the servant is working with defective and dangerous machinery unless the servant knows the defects and the dangers thereof. If he simply knows of the defects but does not know and appreciate the dangers incident thereto the doctrine does not apply. If he knows the defects and the dangers and makes complaint that it is dangerous to him to work with the machinery and of his intent to quit the work unless the defects are remedied and receives a promise by the master to remedy the defects or to remove the danger, the servant may then continue to work with the dangerous machinery until the master has had a reasonable time to fulfil his promise, and during that time the risk is not at all assumed by the servant.
    4. Master and servant—when doctrine of assumed risk applies. If a servant is working at common labor with simple tools, such as an axe, or a hammer or a hoe, and is as familiar with them .and the dangers, thereof as the master, and is not exposed to any danger except those that are incident to the 'use of such tools in a defective condition, the doctrine of assumed risk applies at all times and is not suspended by a promise to remedy or repair the defects.
    5. Instructions—ivhen containing abstract proposition of law ground for reversal. An instruction which contains an abstract proposition of law calculated to mislead is ground for reversal.

      6. Verdicts—when excessiveness cannot he cured hy remittitur. If the appellate court is unable to account for the size of a verdict by any reasonable view of the evidence except upon the theory that such verdict was the result of prejudice, passion or a misconception by the jury of the evidence bearing upon the question of damages, it cannot be cured by the allowance of a remittitur.

    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S.. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1912.
    Statement by the Court. This is an action in case by Hugo Richter, appellee, to recover damages for personal injuries sustained by him about November 20, 1903, while employed in his duties in.carrying boards in appellant’s box factory. In a jury trial appellee recovered a verdict and judgment against appellant in the sum of $4,000.
    The second count of the declaration, the only one relied on by appellee, charges that appellant negligently failed to furnish appellee a reasonably safe place in which to work; that the walk way over which appellee carried the lumber for appellant was covered with blocks of wood liable to cause injury; that on complaint thereof to appellant’s foreman appellant promised to remove the same, upon which promise appellee relied; that said promise was not fulfilled by appellant and that as a result thereof appellee was injured by falling on a saw while exercising reasonable care.
    The evidence discloses that the passageway on which appellee was injured was the main passageway to appellant’s tables and saws to which appellee was carrying boards; that there was a regular man employed by appellant whose duty it was to sweep up the floor and keep the passageway cleared; that while throwing a load of boards from this passageway over a cross-cut saw of appellant to the table in which the rip-saw also ran, appellee’s.hand came in contact with the cross-cut saw, as he claims, by reason of his foot slipping on one of said blocks, and throwing him forward and on to the running saw. About one hour intervened between the alleged promise of the foreman and the injury to appellee. The blocks in question were small sawed off portions of the boards being sawed, and were from two to six inches wide and three-eighths of an inch to an inch in thickness. Appellee sustained a ragged cut extending from about the middle of his thumb over the palmar surface of the hand to the wrist at the opposite side of the hand.
    Frank M. Cox and E. J. Fellingham, for appellant.
    John A. Bloomingston, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Much of the argument of appellant is devoted to a discussion of the doctrine of -assumed risk and to his position that the complaint of appellee and the promise of appellant to remedy the defects complained of by appellee, as averred in the second count of the declaration, did not have the effect of suspending the assumption of the risk by appellee. There can be no question about appellee’s knowledge of the defect in question, and of his appreciation of the dangers thereof, at and before the time of his injury under the evidence in this case. If there had been no promise to remove the blocks complained of, appellee would have been barred from a recovery by the doctrine of assumed risk. A servant assumes the risks arising from defective tools and machinery and from defects in his working place, if after the employment he knows of the defects and appreciates the dangers thereof and voluntarily continues in the service without objection. The law makes an exception to that rule where the servant gives notice of the defects and dangers and the master promises him to remedy the defects. The servant may then continue in the same service for such a time as would be reasonable for the master to fulfill such promise. By such a promise of the master and a continuance of the work by the servant a new relation is created whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for such reasonable time following the promise. The complaint must have been made on account of some supposed danger to the servant, and with the intent to quit such employment unless the defects are remedied. The burden is on the servant to show that he was induced to remain at the work by reason of the promise to repair. Morden Frog Works v. Fries, 228 Ill. 246, and cases there cited.

We think the evidence in this case tends to prove a right of recovery by appellee under the foregoing rules, but will not discuss it further upon the merits, because the judgment must be reversed upon other grounds. Appellant insists, however, that there can be no recovery in this case as a promise to repair or remove dangers does not suspend the risk of the servant engaged in ordinary labor which only requires the use of implements with which the employee is entirely familiar. In other words, he insists that the “simple tool” doctrine is applicable to this case, as set forth in Webster Mfg. Co. v. Nisbett, 205 Ill. 273. The doctrine that we are asked to hold here is that because appellee was injured by an “apparent and known danger,” arising from a very simple defect and which was “so simple that no ordinary mind could fail to fully understand and appreciate it,” appellant’s promise to repair does not have the effect to create an implied agreement with appellee that the doctrine of assumed risk should be suspended for a reasonable time, etc. It must be remembered that the doctrine of assumed risk cannot be invoked against the servant’s right to recover for an injury caused by defects in his working place in any case, unless he knows and appreciates the dangers thereof, or unless the danger is so open and obvious that the law will imply that he has such knowledge and appreciation. The doctrine of assumed risk would not and could not apply in the first instance unless the servant had such knowledge and appreciation of the danger. There can be no suspension of a risk that never existed; and to say that if the servant fully knows and appreciates the danger, a promise to remove or remedy such danger will not suspend the risk or make an exception to the doctrine of assumed risk, is in effect to hold that there is no exception to the doctrine of assumed risk by reason of a promise to remedy or repair the danger. The “simple tool rule,” as we understand it, is only applicable where the servant performs ordinary labor with ordinary tools and in a place where no intricate or dangerous machinery is involved. Nisbett case, supra, page 280. The doctrine is not applicable to any given case upon the grounds -solely that the defect is simple and that the servant has full knowledge of the defect and danger of which complaint is made. The doctrine of assumed risk does not apply in any case where the servant is working with defective and dangerous machinery, unless the servant knows the defects and the dangers thereof. If he -simply knows of the defects, but does not know and appreciate the dangers incident thereto, the doctrine of assumed risk does not apply. 'If he knows the defects and the dangers and makes complaint that it is dangerous to him to work with the machinery and with the intent to quit the work unless the defects are remedied, and receives a promise by the master to remedy the defects or to remove the danger, the servant may then continue to work with the dangerous machinery until the master has had a reasonable time to fulfill his promise, and during that time the risk is not at all assumed by the servant. If, however, the servant is working at common labor with simple tools such as an ax or a hammer or a hoe, and is as familiar with them and the dangers thereof as the master, and is not exposed te any danger except those that are incident to the use of such tools in a defective condition, the doctrine of assumed risk applies at all times, and is not suspended by a promise to remedy or repair the defects. In the-case now before us, while the blocks are very simple obstructions, or defects, yet they were.in the work way of the plaintiff, and very near dangerous saws in full motion over one of which, as he swears, he was. compelled to throw the lumber he was carrying to get it to the place where he was-ordered to take it. He even testifies that this was the only way he could reach that saw, and that the whole passageway was covered with these blocks and with saw dust, sticks and slabs, and that the saw on which he fell was idle-but running, and that he did not know it was running. The evidence also shows that there were other saws all around him running, and that a great deal of noise was made also by box nailers, etc. Other witnesses, it is true, testified that the floor of this aisle was clear and that there were no blocks or slabs or other obstructions, in it, and that appellee did not stumble but simply put or thrust his hands onto the saw. In deciding the question of whether or not the court erred in -submitting the case to the jury, we are only to consider whether or not there is evidence in the record that fairly tends to prove all the material elements necessary to make out the appellee’s case. It is only upon' the question of' whether or not the judgment or some portion thereof should stand that we are authorized to weigh the evidence, and that question cannot properly be considered by us now, as we have determined to remand the cause. The facts in the record do not warrant us in holding-that there were only a dozen blocks or so in the passageway that appellee could kick out of his wav while-performing his work, as claimed by appellant. Neither does it appear from the evidence that it was the appellee’s duty to clear the passageway; but on the contrary it is in evidence that appellant kept a regular man ■employed to do that work, and that the foreman told appellee to not stop his work, and that he, the foreman, would have the obstructions removed. For the same reasons, we are not authorized to reverse this judgment with, a finding of facts to the effect that the appellee was guilty of contributory negligence upon any one of the three grounds argued by appellant.

Appellant’s contention that the court erred in refusing to give its instructions numbered 16, 17 and 18 ■cannot be sustained. They all pertain to the “simple tool” rule, and are inapplicable to this case for the neasons already set forth in this opinion. Instruction No. 14 was properly refused, because it failed to give the jury a correct basis for determining what would have been a “reasonable time” in which the appellee ■might rely on the promise of appellant. The jury were not informed that appellee might remain in the service of appellant only for such time after the promise as would be reasonably sufficient to enable appellant to remedy the defect. They would have been informed by the instruction in question that after such notice appellee might rely thereon for a reasonable length of time only, and that what was such reasonable time would depend on the nature of the danger. The instruction is also objectionable because it is a mere abstract'proposition of law. This instruction in proper form may be found in Illinois Steel Co. v. Mann, 170 Ill. 200.

The attending physician in this case testified that appellee received a ragged cut on his hand extending from about the middle of his thumb to the wrist on the opposite side; that the skin, muscles, tendons and nerves were cut and that the bones were • ‘ slightly nicked,” but none of them broken; that it healed properly from the bottom towards the top, without any blood poisoning or other complications, and that all parts united and got well inside of two months; that the effect of the injuries will be to make his hand weaker with a certain amount of loss of sensation and. subject to being colder in cold weather; that after it healed appellee could flex his hand by opening and closing it and that the tendons were well united; that he suffered some considerable pain for a while and that he-cannot do hard work so well as formerly without danger of inflammation of the skin where it was injured. Appellee was out about $25 for medical aid, was earning $1.50 per day when injured, and it did not appear from the evidence that he could not work at the same- or similar service or that he could not earn as much money by his labor hereafter.

We think the damages awarded in this case are-grossly excessive, and that the evidence bearing thereon does not warrant a recovery by the appellee of more than one fourth of the sum awarded by the jury. We-are unable to account for so large a verdict by any reasonable view of the evidence except upon the theory that the verdict is the result of prejudice, passion or a misconception by the jury of the evidence bearing-upon the question of damages. There has been noremittitur entered or suggested in this case; but even if there had been, the allowing of a remittitur under our finding would not cure the verdict in this case under the holdings of our Supreme and Appellate Courts. Loewenthal v. Streng, 90 Ill. 74; C. & E. I. R. R. Co. v. Cleminger, 77 Ill. App. 186; North Chicago St. R. R. Co. v. Hoffart, 82 Ill. App. 539. Another trial, we think, may shed much more light upon the main issues in this case, and enable the jury and this court as well to make a more satisfactory conclusion upon the merits of the case. The evidence in this record does not make it at all clear as to what particular place- or spot appellee was required to deliver the boards in question at the time of his injury, and as to the proper-way and manner for him to safely deliver such boards, if there was any such way and manner for him to do so. The difficulty of understanding the evidence in this record may he appreciated by quoting some of the evidence in the case, supposed to throw light on the questions above suggested, to-wit:

Q. “So that if this was the entrance to the passageway (indicating), the saw was here some place (indicating) ? ’ ’
A. “Tes, about three or four feet away there (indicating).”

On cross examination of the same witness we find the evidence on the same subject abstracted in the following manner: “That (indicating) is the passageway, and that (indicating) is the saw, and then I had to go over there (indicating). ’ ’

Much more of appellee’s evidence, as abstracted, appears in the same condition as the evidence quoted, and the other evidence in the record fails to make clear the questions to which we have referred. It is counsel’s duty to so present the case to the jury, and to so prepare the record for review, that the reviewing court may fully understand the case as presented to the jury. If counsel in retrying this case will remember that the court stenographer is not expected to photograph counsel, and witnesses, and their movements, while the evidence is being taken before the jury, we shall hope to have a complete record of the evidence, in case it shall be again submitted to us for review.

For the foregoing reasons the judgment is reversed, •and the cause remanded.

Reversed and remanded.


text:
    Henry Madl, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,133.
    1. Bes adjudicata-—when former opinion not. An opinion by the appellate court upon a former appeal in the same case is not binding if after its rendition the supreme court has determined the law to be otherwise than as therein stated.
    2. Pleading—effect of failure to demur. If a defendant desires to question the sufficiency of a declaration he should demur to it or move in arrest of jugdment, and if he fails to do either he should be held to have admitted the sufficiency thereof.
    3. Pleading—when absence of specific cuverment of due care cured. If a declaration in a personal injury ease does not specifically aver the exercise of due care by the plaintiff such defect will be cured if the defendant did not demur to the declaration, did not move in arrest of judgment, and by intendment it could be said from the allegations of fact contained in the declaration that due care was exercised and the proof offered was sufficient to establish the exercise of due care.
    4. Passenger and carrier—duty of latter where former rides upon footboard. Where no seats are furnished and the carrier permits a passenger to ride on the footboard the carrier assumes the duty of exercising the care demanded by the circumstances, that is to say, the highest degree of care, vigilance and foresight for the safety of the passenger which it could reasonably do in view of the character and mode of conveyance adopted consistent with the practical operation of its cars at the place where the collision occurred.
    5. Passenger and carrier—duty of latter in approaching gateway. Where the habitual use of a gateway by the public in driving there-through is known to the carrier and the danger of collision is probable, it is the duty of those in charge of a traction car to approach such place with the car under full Control and particularly so when the footboard next to the gateway is crowded with passengers.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 14, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Samuel S. Page and Watson J. Ferry, for appellant.

      James R. Ward, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This action for personal injuries is brought by Henry Madl, administrator and appellee, to recover damages in consequence of the alleged negligence of appellant, Chicago City Railway Company, and Lake Shore and Michigan Southern Railway Company and Chicago, Rock Island and Pacific Railway Company, resulting in the death of Henry Alfred Madl. The last two railway companies were found not guilty by the jury; but a verdict and judgment in the sum of $1,300 were rendered against appellant, its motion for a new trial and in arrest of judgment having been overruled by the court, and by this appeal appellant seeks to reverse that judgment. Two reasons are assigned by appellant for the reversal of the said judgment; (1) that the cause of action was barred by the statute of limitations; and (2) that the verdict is not justified by the evidence.

First. The first contention of appellant was decided adversely to it by the Branch Appellate Court at the October term, 1904, in this same case on an appeal by the administrator. We refer to the opinion of the court in 121 Ill. App. 602, where will be found a sufficient statement of the case, so far as this question is involved, and the reasoning of the court in arriving at its conclusion. We would be inclined to regard the decision of the Branch Appellate Court as binding and conclusive upon the Circuit Court and upon this court under the holdings in Zerulla v. Supreme Lodge, 223 Ill. 518, and without further comment, but for the fact that since the filing of said opinion the Supreme Court has filed an opinion in Walters v. City of Ottawa, 240 Ill. 259, which is apparently in conflict with the Branch Appellate Court’s decision. It was formerly held by our Supreme Court in the causes of I. C. R. R. Co. v. Simmons, 38 Ill. 242; Cox v. Brackett, 41 Ill. 222; Consolidated Coal Co. v. Wombacher, 134 Ill. 57; B. & O. S. W. Ry. Co. v. Then, 159 Ill. 535, that in an action on the case to recover damages for personal injuries an averment in the declaration of the exercise of ordinary care on the part of the plaintiff is not necessary. The same doctrine is apparently sustained in Chicago C. Ry. Co. v. Cooney, 196 Ill. 466; and the Branch Appellate Court expressly based its decision upon this case, it being then the latest holding of the Supreme Court upon the question. It is also positively held by our Supreme Court that a declaration in such a case which does not aver due care on the part of the plaintiff, and does not contain any averment in regard to his conduct, or the circumstances'surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action, and, after the period of limitation fixed by the statute has elapsed, cannot be amended to state a cause of action not subject to the bar of the statute. This must be held to be the law now as it is the latest holding of the Supreme Court. Walters v. City of Ottawa, supra, and cases there cited.

If a defendant desires to question the sufficiency of a declaration, he should demur to it, or move in arrest of judgment; and, if he fails to do either, he should be held to have admitted the sufficiency thereof. C. B. & Q. R. R. Co. v. Warner, 108 Ill. 538; Ide v. Fratcher, 194 Ill. 552.

The declaration in this case would be clearly and fatally defective if attacked by demurrer, as all intendments must in such case be solved against the pleader and nothing will suffice, by way of inference or implication, in his favor. “But on motion in arrest of judgment * * * the court will intend that every material fact alleged in the declaration, or fairly or reasonably inferable from what is alleged, was proved at the trial, and if, from the issue, the fact omitted and fairly infer-able from the facts stated in the declaration may fairly be presumed to have been proved, the judgment will not be arrested.” Gerke v. Fancher, 158 Ill. 375; Pa. Co. v. Ellett, 132 Ill. 654.

Appellant did not attack the declaration in this case by demurrer, but simply relies on its motion in arrest. In the first amended declaration of appellee of July 3, 1903, which date was less than two years after the intestate’s death, is in substance this averment: that Henry Alfred Madl became and then and there was a passenger of the appellant in its said street car and that while he was so a passenger then and there upon said street car to be carried for hire upon the same as a passenger, a certain horse and vehicle was then and there driven through said gateway to and upon the street railway tracks of appellant, and that appellant’s employes so carelessly, rapidly and improperly drove and operated said car that the said car ran against said horse and vehicle with great force and violence, whilst said Madl was then and there a passenger on said car, whereby he was forced against said horse and shafts of said vehicle with great violence, and thrust between said horse and car and crushed and killed, and that he was an infant of the age of fifteen years, etc.

It is also averred in the declaration that the tracks of appellant ran southward at the place of the accident; that not more than three feet west of the west rail of appellant’s track there was a brick wall ten feet high and extending southward beyond the place of the accident and along the side of appellant’s track, in which wall was the gateway or opening used by the public for travel by horses and vehicles in crossing appellant’s tracks; that as the car traveled southward towards this gateway or opening, the said car struck the horse and vehicle as they came through the gateway and onto the tracks of appellant. The conclusion necessarily and reasonably follows that the horse and vehicle were thrown against and held by the wall and that the deceased by reason thereof was crushed by the force nf the car running by the horse and vehicle while so held, and after he had been thrown between the side of the car and the horse. From these averments we can fairly and reasonably draw the inference that the deceased was riding on- the car, and was being carried thereon by appellant, as a passenger, and that while he was so riding and being carried he was thrust against said horse and shafts and thrown between the side of the car and the horse and crushed. It is not a reasonable and natural inference, as suggested by appellant, from the foregoing averments that the deceased may have been riding on the top of the car or on the bumper, or on some other portion of the car not provided for passengers, and in which he had no business to be. Passengers when riding and being carried as passengers on a car are not usually found in such places. If the deceased was on the top of the car, or on the bumper, when struck, it is inconceivable how he could have been struck by the horse and shafts and thrown between the side of the moving car and the horse. As was said in Gierke v. Fancher, supra,: “While these averments may not be in all respects tantamount to an averment that the plaintiff was in the exercise of due care, they tend to show its exercise, and if sustained by proof would, as we think, have justified the jury in finding that the plaintiff was free from contributory negligence.” The declaration must therefore be held sufficient, if we give the appellee the benefit of the presumptions which arise after verdict.

Second. We also think that the verdict is amply supported by the evidence in the case and the admissions of appellant. The evidence shows that appellee’s intestate was standing on the footboard on the west side and about midway of the car along with a number of other passengers, when he was injured. He had been thus riding from the time he became a passenger, because of the fact, which was abundantly proved, that the car was crowded with people, so that there was no room for him inside the car. The conductor-in charge of the car was presumed to know this, and he must have known it. It is not negligence, as a matter of law, for a passenger to stand on the footboard in an exposed position, and particularly if the car be so crowded that he cannot ride inside the car. In each particular case the question of negligence is one of fact for the jury. Where no seats are furnished and the carrier permits a passenger to ride on the footboard, the carrier assumes the duty of exercising the care demanded by the circumstances, that is to say, the highest degree of care, vigilance and foresight for the safety of the passenger which it could reasonably do in view of the character and mode of conveyance adopted, consistent with the practical operation of its cars at the place where the collision occurred. North C. St. R. R. Co. v. Polkey, 203 Ill. 225; Same v. Shreve, 226 Ill. 530.

It was admitted by appellant in this case “that the said car struck the horse and wagon, whereby the said Henry Alfred Madl, a passenger, was forced against said- horse and the shafts of said vehicle with great' force and violence, and thrust between said car and' said horse and crushed, bruising -and lacerating and wounding his limbs and body and permanently and mortally injuring him, of which said injuries so afflicted as aforesaid, he the said Henry Alfred Madl died, July 14, 1901.” It was also proved that the deceased was fourteen years of age; that he boarded the car about six o’clock on the evening of May 29, 1901, paid his fare, and rode to the place of the collision in that position until he was thrown therefrom by the collision with the horse and wagon, as it came through the' opening in the wall; that the car was then running at a speed of from six to ten miles an hour; that the-motorman saw the head of the horse coming through the opening when about four to eight feet north of the-opening; that the car struck the horse on the shoulder turning it southward, and knocked it down between the wall and the car, and after striking the horse the car ran past the opening leaving the north end of the car about two feet south of the opening, after the motorman, according to his claim, had applied the brakes, and reversed the current, the width of the opening being ten feet and the length of the car thirty feet.

The evidence further disclosed that the opening in this wall and a plank roadway westerly therefrom, and ■a crossway then easterly of the gate over appellant’s track, had been used by the public in driving teams to and from the landing at the foot of Fourteenth street on the river for years prior thereto, and that appellant’s employes who operated the car were familiar with these facts. A consideration of the foregoing facts by the jury warranted them in finding that the defendant was guilty of negligence which caused the death of the appellee’s intestate, and that the deceased was not guilty of any negligence that contributed to his injury. The habitual use of the gateway in question by the public in driving teams therethrough was so well known to appellant, and the danger of such a collision so probable, as to make it the duty of appellant to approach the place with the car under full control, and particularly so when, as in this case, the footboard next to the gateway was crowded with passengers, because there was no room for them inside the car.

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

Judgment affirmed.