author: Mr. Justice Graves

text:
    Permellia Peters, Appellee, v. C. E. Howard, Appellant.
    1. Physicians and surgeons, § 18b

      —when special pleas in action for negligence are demurrable as amounting to general issue. In an action against a physician for damages for negligently placing bottles filled with hot water upon plaintiff during childbirth without sufficiently protecting her body and limbs, special pleas that the hot water bottles mentioned in the declaration “were not the property of, nor in the possession or under the control” of defendant, and that the grievances complained of “were not committed by this defendant * * * nor by any one under the control or in the employ” of defendant, are demurrable as amounting to the general issue.
    2. Physicians and surgeons, § 20*—when burden of proof is on plaintiff in action for negligence. In an action against a physician for damages for negligence in placing hot water bottles on plaintiff’s body during childbirth without protecting her body and limbs, the burden of proof of negligence is on plaintiff.

      3. Negligence, § 129*—when special plea that defendant is not owner or operator of instrumentalities causing injury is unnecessary. A person who is charged with the commission of a negligent act need not deny by a special plea that he was neither the owner nor operator of the instrumentalities by which a plaintiff had been injured, to require proof of such allegations of the declaration by the plaintiff.
    4. Physicians and surgeons, § 20a*—what evidence is inadmissible under charge of negligence in placing hot water bottles on patient. Evidence that a physician used a brass pin in opening a blister, caused by the use of a hot water bottle without adequate protection to the body of a woman at time of childbirth, is inadmissible in action for damages for malpractice, where the only negligence charged is in negligently placing hot water bottles on patient.
    5. Appeal and error, § 1480*—when erroneous admission of evidence is prejudicial error. The erroneous admission of evidence that a physician attending a woman at childbirth used a brass pin in opening a blister, caused by negligently placing hot water bottles on the patient without adequately protecting her body, is prejudicial error not "curable by instructions of the court, where the only negligence charged was in negligently placing hot water bottles on the patient; and the purpose of the admission of the evidence was to inflame the minds of the jury.
    6. Witnesses, § 220*—when cross-examination of expert medical witness should be allowed. The defendant, in an action against a physician for negligence in placing hot water bottles on plaintiff during childbirth without adequately protecting her body, should be allowed to cross-examine a medical witness for plaintiff, who attended plaintiff after the injury and testified that on an examination he found plaintiff’s kidneys affected and that absorption from burns affects the kidneys, as to what diseases might have affected the kidneys.
    7. Physicians and surgeons, § 21*—when admission of evidence as to charges of physician is erroneous. In an action against a physician for malpractice in negligently placing hot water bottles on plaintiff during childbirth without protecting her body, the admission of evidence that after the end of the treatment the husband of plaintiff met defendant and the latter said to the husband that he owed him a certain sum, is erroneous where it is not shown that this was for the treatment out of which the injuries arose, or that the charge ivas against plaintiff.
    8. Instructions, § 128

      —when instruction directing verdict and

      referring to declaration is proper. An Instruction directing a verdict for the plaintiff, if the jury believe that he has proved his case by a preponderance of the evidence as laid in the declaration, can only be justified when the declaration contains a complete statement of the cause of action.
    9. Physicians and surgeons, § 19a*—what is gist of action against physician for malpractice. The gist of the action against a physician for malpractice is negligence and not the violation of the contract of employment.
    10. Physicians and surgeons, § 18b*—necessity of allegation of freedom from contributory negligence in action for malpractice. The plaintiff, in an action against a physician for malpractice, must allege in her declaration her freedom from contributory negligence.
    11. Pleading, § 476*—when defect in declaration is not cured by verdict. The failure of the plaintiff, in an action for malpractice against a physician, to allege her freedom from contributory negligence is not cured by verdict, where an instruction directing a verdict and referring to the declaration is given that in effect informs the jury that it is not necessary for plaintiff to prove that she was in the exercise of ordinary care.
    12. Physicians and surgeons, § 23*—when error in instruction directing a verdict is harmless. The failure, in an action against a physician for malpractice, to include in an instruction directing a verdict the necessary requirements of ordinary care on the part of the plaintiff is harmless where the proof clearly establishes freedom from contributory negligence on the part of the plaintiff.
    13. Physicians and surgeons, § 23*—when instruction referring to declaration is misleading. In an action against a physician for malpractice in attending a woman at childbirth, an instruction that if the jury found the issues for plaintiff and that. plaintiff had sustained injuries as charged in the declaration, then to enable the jury to estimate the amount of damages to plaintiff for injury to her person it was not necessary that any witness should have expressed any opinion as to the amount of such damages, but the jury themselves must make such estimate from the facts and circumstances in proof, held to be misleading in referring to the damages as charged in the declaration, which enumerated physicians’ bills, nurse hire, medicines, and being hindered and prevented from transacting her business affairs, as well as pain and suffering and weakness of body and' mind caused by the injury.
    14. Physicians and surgeons, § 18

      —what evidence is basis for damages for liabilities incurred and injury to business of plaintiff

      in malpractice case. The damages for liabilities incurred and for injury to the business affairs of the plaintiff in a malpractice case must be based upon evidence of debts necessarily incurred and evidence showing the value of her time and business lost.
    15. Damages, § 191

      —how damages for pain and suffering and weakening of mind are to he estimated. Damages for pain and suffering and the weakening of the mind of the plaintiff in a malpractice case are to be estimated by the jury in connection with their knowledge and experience in such matters.
    Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed July 14, 1917.
    Stevens, Miller & Elliott, for appellant; Robert J. Folonie, of counsel.
    Clarence W. Heyl and Harry C. Heyl, for appellee.

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

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

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

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an action on the case begun by Permellia Peters against C. E. Howard, April 14,1915, to recover damages for injuries averred to have been caused by the negligence of the defendant. The declaration consists of three counts. The first count avers that defendant was retained and employed as a physician for reward to attend and treat plaintiff in connection with her giving birth to an infant; that defendant as a part of his treatment, as a physician, carelessly and negligently placed about her body and limbs bottles filled with hot water without sufficiently protecting her body and limbs from the heat of said bottles and, as a result of such negligence on the part of defendant, the body and legs of plaintiff were severely burned and cooked, large areas of skin were then and there burned from her hips and calves of her legs and large ulcers were formed upon her body and legs, by means whereof plaintiff suffered and will in the future suffer great and unnecessary pain, and she became disordered and weakened in body and mind and was prevented from transacting her ordinary business and became obligated to pay divers sums of money for physicians’ bills, hospital bills, nurse hire and medicines, amounting to, to wit, $500, in endeavoring to be cured of her injuries, etc. The other counts aver the bottles were “filled with exceedingly hot water,” otherwise they are substantially the same as the first.

The defendant filed a plea of the general issue and two special pleas. The second avers that the “hot water bottles' and bottles containing hot water mentioned in the said declaration were not the property of, nor im the possession or under the control of this defendant.” The third avers that “the several supposed grievances in the declaration mentioned were not committed by this defendant, as in said declaration alleged, nor by any one under the control or in the employ of this defendant,” etc. The two special pleas conclude to the country.

The plaintiff filed a demurrer to the special pleas, stating as causes of demurrer, among others, that they amount to the general issue and that they conclude to the country. The court sustained the demurrer to these pleas and defendant abided by them. A trial was had before a jury which returned a verdict in favor of plaintiff for $1,250. The court overruled a motion for a new trial and rendered judgment on the verdict. The defendant appeals.

It is insisted that the court erred in sustaining the demurrer to the special pleas. The declaration avers that the defendant as a part of his treatment, as a physician, negligently placed about her body and limbs bottles filled with hot water without sufficiently protecting her body from the heat of said bottles. The averments of the second plea, that the hot water bottles mentioned in the declaration “were not the property of, nor in the possession or under the control of this defendant,” and of the third plea, that the grievances complained of “were not committed by this defendant * * * nor by any one under the control or in the employ of this defendant,” are simply denials that the appellant performed the acts complained of as alleged and amount to the general issue. The burden of proof of negligence was on the appellee. All the evidence offered by appellant on the control, management and placing of the bottles filled with hot water was admitted . and instructions asked by appellant on that question were given to the jury. The rule that a corporation must deny by a special plea that it was neither the owner nor operator of the instrumentalities by which a plaintiff has been injured, to require proof of such allegations of the declaration by the plaintiff, does not apply to a person who is charged with committing a negligent act. There was no error in sustaining the demurrer, and it is not necessary to discuss the other causes of special demurrer.

It is contended that the court admitted improper and prejudicial evidence offered by appellee over the objection of appellant. The question was asked of the husband of appellee as to what treatment appellant gave appellee for the burns after the injury. An' objection to this evidence was overruled on the theory that appellant charged her for treating the bums. The answer to the question was that the appellant treated the sores and the witness was sent after medicines. This was followed by the question: “Were you present when any treatment was administered to any of those blisters and sores?” This was objected to as immaterial and not within the declaration. The objection was overruled. The answer was: “Yes sir, I was there once when the doctor wanted to pick one of the blisters with a safety pin.” The answer was objected to and excluded. The witness then answered: “Yes sir, I was there once.” The question was then asked, what took pláce at that time? An objection to this question was overruled and the witness answered: “Why he unpinned her leg or took off the bandage and found a place he thought needed opening and he took the safety pin and was in the act of opening the place with the safety pin, and she says, ‘hold on,’ ” “he must not do that with no safety pin; he wasn’t going to pick that sore with no safety pin on her. ‘Oh,,’ he says, ‘that won’t make any difference to that dead flesh.’ ” A motion.to exclude this evidence was overruled. The appellee was permitted to testify to the same matter. It is contended that appellant used a safety pin in opening the blister. The declaration only alleges damages from negligently placing the hot water bottles. The sole purpose of this evidence was to inflame the minds of the jury against a physician by showing that he was so careless in his professional work, that he would use. a brass pin just taken from a bandage about a wound to prick the flesh of appellee. The admission of this evidence was erroneous and very prejudicial. It could not be remedied by instructions and was a foundation for very improper, inflammatory and prejudicial argument.

A physician testified for appellee that he treated the injuries after June 9, 1913, and that in February, 1914, he found the kidneys of appellee affected, and that absorption from burns affects the kidneys. The appellant was not permitted to cross-examine the witness as to what diseases might have affected the kidneys. When the doctor in answer to appellant’s question said that absorption from the burns might have caused the kidney trouble, -he was testifying as an expert as to a probable or possible cause of her condition, and appellant should have been permitted to cross-examine concerning what causes resulted in such conditions.

Evidence was also admitted over objection that after the end of the treatment the husband of appellee met appellant and appellant said to the husband that he owed him $56. It was not shown that this was for treatment out of which the injuries arose or that the charge was against appellee.

The first instruction given for the appellant is: “The court instructs the jury, that if you believe from a fair and candid consideration of all the evidence in the casé that the plaintiff has proved her case by a preponderance of the evidence, in manner and form as charged in her declaration, or some one count thereof, then and in that state of the proof it is your duty to find the defendant guilty.”

The rule is that an instruction directing a verdict for the plaintiff, if the jury believe that he has proved his case by a preponderance of the evidence as laid in his declaration, can only be justified when the declaration contains a complete statement of a cause of action. Krieger v. Aurora E. & C. R. Co., 242 Ill. 544; Illinois Cent. R. Co. v. Smith, 208 Ill. 608; Cromer v. Borders Coal Co., 246 Ill. 455; Cantwell v. Harding, 249 Ill. 358; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243. “The general rule often declared is. that instructions must in a clear, concise and comprehensive manner inform the jury as to what material facts must be found to recover or defeat a recovery. (Moshier v. Kitchell & Arnold, 87 Ill. 18.) The rule adopted by nearly all courts is that the court must define the issues to the jury without referring them to the pleadings to ascertain what they are.” Krieger v. Aurora, E. & C. R. Co., supra; Walters v. City of Ottawa, 240 Ill. 259; Mooney v. City of Chicago, 239 Ill. 414. This is a suit in case to recover damages for injuries suffered because of the negligence of the appellant. There is no averment, in any count of the declaration, that the appellee, at the time she received the injury, was in the exercise of due care for her Own safety. While the employment of appellant as a physician was a matter of contract, the gist of the action is negligence. An action against a railroad company for a negligent injury to a passenger while under its charge is, though sounding in tort, really an action founded tin ahd arising out of a contract. Yet in that class of actions proof that plaintiff was in the exercise of due care and free from contributory negligence is a prerequisite to a recovery. In the federal courts and in several States, contributory negligence is a defense to an action on the case to recover for personal injuries because of the negligence of the defendant, to be proved by the defendant; while on the contrary, in this State in all such actions, where the rule has not been modified by statutes, the plaintiff must aver and prove by a preponderance of the evidence that'he was in the exercise of due care at the time the injury was received.

The argument of appellee made in reply to the foregoing contention is that because the defect in the declaration was not tested by a demurrer or motion in arrest of judgment, the verdict and judgment cure the defect. That proposition would be correct if the instruction had correctly informed the jury what facts were material and must be proved to entitle appellee to recover, but this instruction, in effect, informed the jury that it was not necessary for appellee to prove that she was in the exercise of ordinary care.

Appellant has argued very strenuously that on the facts as disclosed by the evidence he is not liable. The entire argument is however based on the claim that appellant did not place the bottles about appellee and that they were placed by Dr. Strode. Appellant testified that he suggested some physician be called to give the anaesthetic and that he tried to get Dr. Davis and Dr. Oren, but they were out; that he put the matter in charge of one of the women to locate a physician and get him as soon as possible and they were about to proceed with one of the women administering the anaesthetic when Dr. Strode was seen passing and called to come in, and appellant said, “all right, glad to have him.” The evidence tends to show that the bottles were at the suggestion of appellant placed about appellee’s person immediately after the delivery, just after a hypodermic injection had been.given before she had' revived from the anaesthetic, and while she was in a sinking, very weak and desperate condition. There is evidence tending to show appellant said, “Yes, she is burned through a mistake.” No claim is made by appellant that appellee did not exercise ordinary care or that there was any contributory negligence on her part when the burns were inflicted.

The evidence discloses that she was not in a condition mentally or physically to exercise any control over herself, so that while the instruction was technically erroneous in omitting the necessary requirements of ordinary care on her part, the proof shows beyond a doubt that she was in the exercise of ordinary care of a person in her situation and that she was not guilty of any contributory negligence, so that the error was harmless. In Krauss v. Ballinger, 171 Ill. App. 534, a malpractice case, the declaration had the same fault as in the present case, a similar instruction was given and a judgment for plaintiff was affirmed and a certiorari was denied by the Supreme Court.

The third instruction given for appellee informed the jury that if it finds the issues for the plaintiff “and that the plaintiff has sustained damages as charged in the declaration, or some count thereof, then to enable the jury to estimate the amount of damages to the plaintiff for her injury to her person, if any has been shown, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury themselves must make such estimate from the facts and circumstances in proof,” etc, The instruction is misleading in referring to the damages as charged in the declaration, which enumerates physicians ’ bills, nurse hire, medicines, and being hindered, and prevented from transacting her business affairs as well as pain and suffering and weakness of body and mind caused by the injury. The damages for liabilities incurred and damages to her business affairs must be based on evidence, of debts necessarily incurred and evidence showing the value of her time and business lost, while damages for pain and suffering and the weakening of her mind and body are to be estimated by the jury in connection with their knowledge and experience in such matters. It is also contended that under the rule announced in Sims v. Parker, 41 Ill. App. 284, and Moline v. Christie, 180 Ill. App. 334, affirmative testimony by a medical expert was necessary to show that the burns inflicted were the result of negligent treatment. Since the case must be reversed and remanded, we do not deem it necessary to express any opinion on this contention.

The judgment is reversed for the errors pointed out and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Patrick McCormick, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,821.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Coubtnet, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action by Patrick McCormick, plaintiff, against the Chicago City Bailway Company, defendant, to recover for personal injuries sustained by plaintiff as the re-suit of the horse on which he was riding being struck by one of defendant’s street cars and throwing plaintiff off, while he was riding between the tracks and a standing automobile in the same direction as the car. From a judgment for plaintiff for $150, defendant appeals.
    William H. Symmes and Frank L. Kriete, for appellant; J. R. Guilliams and C. C. Cunningham of counsel.
    Burkhalter, Grossberg & Newfield, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Street baieboads, § 131 —when evidence insufficient to show negligence in running into horse being ridden near track. In an action by a laborer who was riding on his horse on a street on his way home from work, where tlie horse either shied towards a street car track when passing between it and a standing automobile upon the approach of a street car from the rear, or the car struck the horse as it was walking normally alongside the track, evidence held insufficient to show negligence of the motorman in running into plaintiff’s horse and injuring plaintiff, where there was no evidence that there was not plenty of room for safe passage between the track and automobile.

2. Street railroads, § 131*—when evidence sufficient to show that contributory negligence of person riding horse was proximate cause of accident. In an action by a laborer for personal injuries sustained as the result of his horse being struck by one of defendant’s street cars and throwing plaintiff off, while he was riding between the tracks and a standing automobile in the same direction as the car, evidence held sufficient to show that the accident was due to plaintiff permitting his horse to move in the way of the approaching car at a time when it was impossible for the motorman to avoid striking it, and that plaintiff was guilty of negligence which was the proximate cause of the accident.

3. Street railroads, § 63*—what care required of motorman in operation of car. A street car motorman is not required to anticipate or to guard against anything not reasonably to be expected, in the operation of his car, nor to guard constantly against unusual or extraordinary occurrences or conduct on the part of others, but is required to exercise only ordinary care, measured by the apparent situation and the dangers naturally incident to the business.

4. Street railroads, § 111*—when burden of proof is on plaintiff. Where the alleged negligence of a street railroad company consists of an omission of duty suddenly and unexpectedly arising, it is incumbent upon plaintiff to show that the circumstances were such that the servants of defendant had an opportunity to become conscious of the facts giving rise to the duty, and a reasonable opportunity to perform it.


text:
    Nicholas Pleimling, Appellee, v. Perry Pipe Company and John R. Perry, Appellants.
    Gen. No. 22,831.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 297

      —when decree is final. A decree in a suit for an accounting which construes the contract between the parties and fixes the rights of the respective parties thereto is final and appealable where nothing remains except an accounting.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. WIndes, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Nicholas Pleimling, complainant, against the Perry Pipe Company and John R. Perry, the holder of a majority of stock in the Perry Pipe Company, defendants, for an accounting under a contract with the defendants whereby the Pipe Company agreed to set aside ,a certain portion of its stock in settlement of a debt owed complainant, and fill from such stock all orders from specified, exclusive territory, or, if such orders could not be filled from such stock, to substitute therefor goods of defendant and take in payment an equal value of goods from complainant’s stock, and make all collections and deposit all moneys received in the name of complainant. From a decree for complainant, defendants appeal.
    Charles P. Molthrop, for appellants.
    Jonas O. Hoover, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Appeal and error, § 1272 —when accotmting will he presumed to he correct. A statement of account made by a master in chancery and incorporated in a decree will be presumed to be correct where no specific errors are pointed out by defendants with respect to the items contained in the accounting.


text:
    Andrew Kutlik, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 22,838.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action -by Andrew Kutlik, plaintiff, against the Chicago, Bock Island & Pacific Bailway Company, defendant, to recover damages for personal injuries received due to the falling of a flat car which was being jacked up, during the process of dismantling, in defendant’s yards. Prom a judgment for plaintiff for $10,000, defendant brings error.
    M. L. Bell and A. B. Enoch; for plaintiff in error.
    James C. McShane, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

' 1. Master and servant, § 693 —when evidence is sufficient to sustain finding as to proper method of jacking up fiat car. In an action by an employee against a railroad company for damages for personal injuries received due to the falling of the body of a flat car, resulting from the side sill of the car giving way while the car was being jacked up by placing jacks under the end sills, evidence held sufficient to show that the only way the car could be jacked up was by putting jacks under the end sills.

2. Master and servant, § 565*—what- does not constitute variance between declaration and proof in action for personal injuries. In an action by an employee against a railroad company for damages for personal injuries received due to the falling of the body of a flat car which was being jacked up by plaintiff and another employee, held that evidence that plaintiff was a helper of such other employee did not negative the allegation in the declaration that plaintiff and such other employee were fellow workmen, where it appeared that the work was done pursuant to an order of a foreman.

3. Master and servant, § 188*—when master giving orders for performance of dangerous work is liable. Where a servant is injured while taking the orders of his master to perform work in a dangerous manner, the master is liable unless the danger is so imminent that a man of ordinary prudence would not incur it.

4. Master and servant, § 746*—when question whether danger of work is so apparent that careful person would not have incurred it is. for jury. In an action by an employee against a railroad company to recover damages for personal injuries due to the falling of the body of a flat car, resulting from a side sill giving way while the car was being jacked up from the trucks at the end sills, where it appeared that the truss rods, which held the end sills in place, had been taken out, and plaintiff had had little experience, held that it was a question for the jury whether or not the danger of doing the work in the manner ordered by the foreman, a man of many years’ experience, was so apparent and imminent that the plaintiff in the exercise of ordinary prudence should not have incurred it.

5. Master and servant, § 649*—when evidence as to plaintiff receiving orders from coemployee is admissible. In an action by an employee against a railroad company to recover for injuries received due to the falling of the car while plaintiff and another employee were jacking the body of the car up from the trucks for the purpose of dismantling the car, held that evidence as to plaintiff having received orders from the other employee was admissible as bearing upon plaintiff’s freedom from contributory negligence, where such employee merely repeated the instructions of the foreman who had ordered them to do the work.


author: Mr. Presiding Justice McSukely

text:
    Morris Casty, Appellee, v. Lanzit Corrugated Box Company, Appellant.
    Gen. No. 22,847.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action by Morris Casty, plaintiff, against the Lanzit Corrugated Box Company, a corporation, defendant, to recover on an account for teaming and hauling goods and set-off by defendant to recover for an alleged overpayment, consisting of a balance due after allowance being made for extras out of a sum paid to plaintiff for services and extras. From a judgment for plaintiff for $79.05, defendant appeals.
    Maurice Markowitz and John F. Tyrrell, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice McSukely

delivered the opinion of the court.

Abstract of the Decision.

Set-off and recoupment, § 40 —when evidence is sufficient to warrant judgment on set-off in action on contract. In an action on an account for teaming and hauling where defendant interposed a set-off to recover an overpayment, consisting of a balance due after allowance being made for extras out of a sum paid to plaintiff for services and extras, evidence held insufficient to sustain a judgment for plaintiff and to warrant a judgment for defendant on. his set-off.


text:
    Minnie E. Donnelly, Appellant, v. Hugh B. Donnelly, Appellee.
    Gen. No. 22,854.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at October term, 1916.
    Reversed and remanded with directions.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Bill for divorce on the ground of cruelty by Minnie Ei. Donnelly, complainant, and against Hugh B. Donnelly, defendant, and cross-bill for divorce on ground of desertion by defendant. From a decree denying leave to complainant to file an amended bill for separate maintenance, and dismissing her bill for divorce without equity, complainant appeals.
    Charles S. Knudson, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Divobce—when leave to file amended hill for separate maintenance is improperly denied. Where a complainant in an action for separate maintenance filed an amended bill asking for a decree of divore.e, held that the court erred in refusing to allow defendant to withdraw her bill for divorce and file an amended bill for separate maintenance.
    2. HusBAsrn Aim wiee, § 264*—when evidence is sufficient to sustain decree for separate maintenance. On a bill by a wife for a divorce in which the complainant asked leave to file an amended bill for separate maintenance, evidence held sufficient to warrant a decree for separate maintenance on the ground of cruelty.
    3. Divobce—when decree of separate maintenance will not he entered. A bill seeking a divorce and one seeking separate maintenance are separate and distinct proceedings under separate statutes, and where a bill asks for a divorce, although leave to file an amended bill for separate maintenance is improperly denied, and the evidence is sufficient to warrant a decree for separate maintenance, the Appellate Court will not direct such "a decree to be entered under the prayer of the bill for general relief.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Margaret Hirschberg, Appellee, v. Thomas Cusack Company, Appellant.
    Gen. No. 22,875.
    1. Contracts, § 173

      —when construction which will make contract legal will be adopted. Where one construction will make a contract legal and another will make it contrary to law or public policy, the former construction will be adopted, if reasonable.
    2. Municipal corporations, § 833*—what is purpose of ordinance of City of Chicago regulating signboards on tops of buildings. Article XXIII of the Ordinances of the City of Chicago, relative to billboards and signboards, must be construed as being intended for the purpose of permitting such signboards on the tops of buildings as are built so as ' to minimize or avoid the danger from exposure of a large flat surface- to wind pressure.
    3. Landlord and tenant—when construction adopted which will make lease of space for signboards valid. Where one construction of a lease of a portion of the top of a building for the purpose of erecting and maintaining “electrical advertising signboards” would make it invalid under a city ordinance and another as permitting the kind of a signboard permitted by the ordinance, the latter construction will be adopted.
    Appeal from the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.
    John S. Hummer, for appellant.
    William Slack, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing suit for rent due under a contract with the defendant for advertising space, upon trial by the court had judgment for $200 from which the defendant appeals.

By the contract in question the defendant was given the right to erect and maintain on the roof of a building in Chicago ‘ electrical advertising signboards thereon from the first day of June, 1913, to the thirtieth day of April, 1918.” The defense asserted is that this agreement is void for the reason that at the time of its execution there was in force and effect in the City of Chicago a certain ordinance relating to billboards, signboards, signs and fences, “Article XXIII”; that by section 695 thereof it was provided that “no billboard or signboard shall be erected or placed upon or above the roof of any building or structúre within the limits of the City of Chicago”; that this made illegal the erection and maintenance of the kind of signboards permitted by the lease to be erected on plaintiff’s property.

Attention is particularly directed to the word “signboards” contained in the lease, and evidence was introduced tending to show that this kind of advertising boards comes within the inhibition of the ordinance. Plaintiff replies that the same ordinance contains another section which permits certain kinds of electrical signs to be erected upon roofs in Chicago, and that under the permission of this section the kind of signs mentioned in the lease could be erected and maintained; hence the instrument is valid and binding.

The rule is that “where one construction will make the contract legal and another will make it contrary to law or public policy, the former construction will be adopted, if reasonable.” 9 Cyc., p. 586. And it was said in Crittenden v. French, 21 Ill. 598, 600: “The law will not give the construction that the parties intended to violate its requirement * * * when the instrument will bear a different construction, making it legal, when it will as well bear that as the other construction.”

Examining section 710, it is apparent that it contemplates permission to erect, under certain limitations and conditions, electrical roof signs or signboards. The kind of roof signs permitted are those “which have all or any part of its letters of which said signs maybe constructed either-in an outline of incandescent lamps or which have painted, flush or raised letters where the face of the sign presents a surface to be affected by wind pressure not in excess of the requirements hereinafter contained; or signs having a border of incandescent lights attached thereto and reflecting light thereon; or transparent glass signs where they are lighted by electricity or other illuminant. Every such sign as hereinabove described shall be constructed with steel skeleton construction so as to present a surface to be affected by wind pressure which shall not exceed 50 per cent, of the face of the sign.” A sign so constructed might reasonably be called a signboard; -at least we must construe these words as used in the lease as meaning to describe the kind of a sign which would be permitted under the ordinance. In so doing we are following the rule of construction above stated.

Even if we should be confined to the strict meaning of the words employed, it occurs to us that there is considerable difference between the ordinary solid wooden surface of the ordinary signboard and the electrical signs or signboards which are in evidence on so many roofs in this and other cities. It would be reasonable to hold that an electrical signboard was one with illuminated letters or pictures, with a comparatively small surface presented -to wind pressure. It is evident from inspection of the entire ordinance that the danger sought to be avoided is the exposure of a large flat surface to wind pressure, and that the ordinance is designed to permit such signboards which may be constructed so as to minimize or avoid such danger.

Whatever error there may have been in the admission of the testimony of the witness Greenberg is not of sufficient importance to justify a reversal:

Under the construction we have given to the lease in question, a legal use of the demised premises was. granted to the defendant, and for this use it is obligated to pay the amount stipulated. The judgment is affirmed.

Affirmed.


text:
    O. F. Smith et al., Trustees, Appellees, v. Sidney McBowe, Appellant.
    Gen. No. 22,881.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action of forcible entry and detainer by O. F. Smith, Hugo Sonnenschein and Edward Sonnenschein, trustees of the estate of Rudolph J. Busch, deceased, against Sidney McBowe, defendant, to recover premises originally sold to one Frans Robert Ryd and assigned, through successive assignments, with the consent of the trustees, to Helma M. McBowe and Sidney McBowe. From a judgment 'against defendant on an instructed verdict, he appeals.
    O. D. Olson, for appellant.
    Sonnenschein, Berkson & Fishell, for appellees; Herbert M. Lautmann, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Attoeney and client, § 74 —when act of attorney in giving consent to assignment of assignee’s interest in land contract is ratified. Where the trustees of the estate of a vendor of land under contract receive a payment of an instalment due on the contract, after the giving of a written consent to the assignment of an assignee’s interest in the contract to other assignees by an attorney for the trustees, and after such assignees have entered into possession, the action of the attorney must be deemed to have been ratified.


text:
    Vincent Buszkiewicz, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 22,894.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Vincent Buszkiewicz, administrator of the estate of Josef Swajkowski, deceased, plaintiff, against the Chicago & Alton Railroad Company, defendant, to recover for the death of deceased, who was killed by a freight train belonging to defendant at .a street crossing. From a judgment for plaintiff for $4,250, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and John Irving Pearce, of counsel.
    Frank P. Sadler, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Railroads, § 733 — when evidence is sufficient to show negligence in operation of train approaching street crossing. In an action to recover for the death of a pedestrian who was killed as he stepped on a westbound track on the northeast side of a railroad crossing by a train at night, the sight of which was obstructed by the building, which was situated at a curve in the track, where it appeared that it was the custom of defendant not to operate its crossing gates at the hour of the. accident, evidence held sufficient to show thitt the accident was caused by the negligence of defendant in maintaining at such a dangerous crossing no device to warn or guard pedestrians of the approach of a train, and also in running the particular train at an illegal rate of speed without warning signals.

2. Railroads, § 755* — when contributory negligence of deceased in crossing tracks is question for jury. In an action to recover for the death of a pedestrian who was kill,ed at night as he stepped on a westbound track on the northeast side of a railroad crossing by a westbound train, the view of which was obstructed by a building and telegraph pole on the corner at. a curve in the track, so that an approaching train could not be seen until it was very near the crosswalk, where there was evidence that deceased had been in a saloon but was not intoxicated; that he looked in the direction from which the train was coming before he stepped on the tracks; that he was not familiar with the crossing and not accustomed to crossing it at night, and it was not shown that he was aware of the custom of defendant not to operate the gates at the hour in the evening of the accident, held that it was a question for the jury whether deceased was guilty of contributory negligence, and that the evidence was sufficient to sustain such a finding.


author: Mr. Justice Dever

text:
    Lawndale Sash & Door Company for use of Joseph Silverman, v. West Side Trust & Savings Bank et al. Joseph Silverman, Plaintiff in Error, v. North Side Sash & Door Company et al., Defendants in Error.
    Gen. No. 22,479.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Cobpobations, § 170

       — When sale and purchase of business of corporation by stockholders is made with sufficient authority. The sale of the business of one corporation to another corporation and the purchase thereof are made with sufficient authority where the sale and purchase of the stock by the respective corporations are made by stockholders who are in fact the owners of the stock, the outstanding shares in each corporation by nonparticipating stockholders being held merely for the purpose of organizing the boards of directors.
    Error to the Municipal Court of Chicago; the Hon. John E. Stems, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action of garnishment by the Lawndale Sash & Door Company for use of Joseph Silverman, plaintiff, against West Side Trust & Savings Bank and others, defendants, the North Side Sash & Door Company, intervening petitioner. From a judgment finding the garnisheed funds to be in the intervening petitioner, and dismissing the suit as against the garnishees, Silverman brings error.
    Samuels & Samuels, for plaintiff in error.
    Samuel W. Newman, for North Side Sash & Door Company.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Fraudulent conveyances — toben sale of business of corporation is valid as against third person becoming creditor of seller. A contract for the sale of the business of a corporation to another corporation entered into between stockholders of the respective corporations holding all of the corporate stock except that held by others for the sole purpose of organizing the boards of directors, under the terms of which the purchaser agrees to take over all of the physical assets of the selling corporation for their then market value, and to pay all debts and receive all accounts receivable, is, where entered into and carried out in good faith, valid as against a third person who becomes a creditor of the seller after the sale.

-3. Fraudulent conveyances, § 186 — who is not a creditor. One who leases premises to a corporation is not a creditor of a corporation at the time of the sale of the business of the corporation to another, where there is no rent due under the lease at the time of the sale.

4. Corporations — when evidence is sufficient to show ratification of sale and purchase of business by corporation through stockholders. Evidence held sufficient to show a ratification by the respective corporations of the sale of the business of one corporation to another and of the purchase thereof, effected by stockholders of the respective corporations holding all of the shares of the stock in such corporations, except shares held merely for the purposes of organization of the respective boards of directors.

5. Fraudulent conveyances, § 180* — mho are other persons within statute. The use of the term “other persons” in Rev. St. ch. 59, sec. 4 (J. & A. IT 5870), providing that in every conveyance made with the intent of disturbing, hindering or defrauding creditors or other persons shall be void as against such creditors and other persons, refers to persons having a substantial existing claim against parties or property sought to be brought within the terms of the statute.

6. Fraudulent conveyances, § 15* — when Bulk Sales Act is inapplicable. The Bulk Sales Act [Callaghan’s 1916 St. Supp. If 10021(1) et seq.J has no application where a person is not a creditor at the time the sale of the business of a corporation is effected.


text:
    Bertha M. Doyle, Appellant, v. Samuel Fallows et al., Appellees.
    Gen. No. 22,628.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Coubt op Chicago, § 19

       — what is error of law not warranting setting aside of judgment by default on petition. The rendition of a judgment in the Municipal Court of Chicago by default against the members of an exposition commission individually instead of in their capacity as commissioners is an error of law which cannot be taken advantage of by a petition to vacate the judgment, under section 21 of the Municipal Court Act (J. & A. H 3333), after thirty days from the date of the rendition of the judgment.

      Appeal from the Municipal Court of Chicago; the Hon. Willtam N. Gejimill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action in the Municipal Court of Chicago by Bertha M. Doyle, plaintiff against Samuel Fallows, Mary Fitzbutler Waring, A. J. Carey and B. B. Jackson, defendants, to recover for services as stenographer and secretary of the Illinois Commission of Lincoln Jubilee and Half-Century Anniversary Exposition, of. which defendants were commissioners, and for money advanced. From an order vacating a. judgment by default nearly five months after its entry, plaintiff appeals.
    D. K. Cochrane, for appellant.
    John Dailey, Richard J. Cooney and John A. Verhoeven, for appellees.

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

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Municipal Coubt of Chicago, § 19 — what is sufficient excuse for failure to appear to warrant setting aside of judgment by default on petition. Where the defendants in an action in the Municipal Court of Chicago are personally served with summons in the cause, the mere fact that plaintiff’s husband had also sued the defendants on the same day that she brought suit agaiilst them, and the failure to appear in the action brought by plaintiff may have been caused by confusion resulting from the similarity in names, is not sufficient excuse for the failure of defendants to appear and contest the claim of plaintiff upon the merits so as to warrant the setting aside of a judgment by default on petition more than thirty days after the rendition of the judgment, under section 21 of the Municipal Court Act (J. & A. If 3333).

3. Municipal Court of Chicago, § 19* — what is effect of petition to set aside judgment by default. A petition in the Municipal Court of Chicago to set aside and vacate a judgment after thirty days is, in effect, the beginning of a new suit.

4. Municipal Court of Chicago, § 19* — when judgment by default may not be vacated. The trial judge in the Municipal Court of Chicago has no jurisdiction to vacate a judgment by default after thirty days for an error which appears on the face of the record.

5. Municipal Coubt of Chicago, § 19* — what is not error of fact which may be corrected on motion to vacate judgment by default. The error of fact which can be corrected by a judge of the Municipal Court of Chicago, on a motion to vacate a judgment by default, after the expiration of thirty days, under section 89 of the Practice Act (J. & A. If 8626), must relate to a fact which is unknown to the court, and which, if known, would have precluded the entry of the judgment, and does not include the fact that through a confusion of names of plaintiffs in two different actions who had sued defendants on the same day they had neglected to file their appearance in the action by plaintiff begun against them.

6. Municipal Court of Chicago, § 19* — what is nature of proceeding to vacate judgment by default. A proceeding in the Municipal Court of Chicago by petition to vacate a judgment by default is in the nature of a bill in equity.

7. Judgment, § 306* — when equity will not interfere with enforcement of judgment at law. Equity will not interfere with the enforcement of a judgment at law, unless the judgment debtor could not have availed himself of his defense at law, or was prevented from so doing by the fraud of the opposite party, or by accident or mistake unmixed with fault or negligence on his own part.

8. Municipal Court op Chicago, § 24 — when writ of error only remedy for review of judgment. A writ of error is the only method for the review of the alleged variance in the entry of a judgment by default in the Municipal Court of Chicago against defendants in personam instead of in their official capacity, with limitation to funds lawfully in their hands as such officials.


author: Me. Justice Devee

text:
    Wojciech Stolarcz by Henry Pollenz, Appellee, v. Interstate Iron & Steel Company, Appellant.
    Gen. No. 22,814.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.
    Rehearing denied June 25, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Wojciech. Stolarcz, a minor, twenty years of age, by Henry Pollenz, his next friend, plaintiff, against the Interstate Iron & Steel Company, a corporation, defendant, for personal injuries due to the explosion of hot iron slag which plaintiff was wheeling away from defendant’s ore smelting furnaces in a wheelbarrow. From-a verdict for plaintiff for $25,000, defendant appeals.
    Benjamin B. Morris and Aaron B. Eppstein, for appellant.
    David K. Tone and Frank A. Bockhold, for appellee.

      Abstract of the Decision.
    1. Statutes, § 280

       — when unnecessary that foreign statute be read to jury. A foreign statute of a State where a contract of employment is made relative to the defenses of assumed risk, etc., is admissible in an action by a servant for personal injuries for the guidance of the court, but it is unnecessary that it be read to the jury.
    2. Master and servant, § 95* — what law governs in action for personal injuries where contract made in foreign State. The law of the State where a contract of employment is made governs as to the law of assumed risk, burden of proof, etc., in an action for personal injuries against a master by a servant.
    3. Master and servant, § 629* — when evidence of previous explosions is admissible in action for personal injuries. In an action by a servant for damages for personal injuries due to the explosion of hot slag which plaintiff was hauling away from one of defendant’s ore smelting furnaces in a wheelbarrow, evidence tending to prove that several months next preceding the time of the accident explosions had taken place in slag removed from cinder pots on defendant’s premises under circumstances generally similar to the explosion in question, held admissible for the purpose of showing that defendant had, or in the exercise of reasonable care could have had, notice that slag, when insufficiently or improperly cooled, was apt to explode.
    4. Master and servant, § 695* — when evidence is sufficient to show that master in exercise of due care could have had notice of danger of worlc. In an action by a servant for damages for personal injuries due to the explosion of hot slag which plaintiff was hauling away from one of defendant’s ore smelting furnaces, evidence that six or more similar explosions had previously occurred, held sufficient to sustain a finding that defendant, in the exercise of due care, could have had notice of the dangers attending the work which plaintiff was directed to perform.
    5. Master and servant, § 191* — when duty incumbent on master to use reasonable care to warn servant. Where a master has knowledge, or is charged with knowledge, of the fact that slag removed from ore smelting furnaces is liable to explode when improperly or insufficiently cooled, it becomes as a matter of law his duty to warn a servant, engaged at the task of removing slag from the furnaces in a wheelbarrow while it is yet hot, of the danger incident to the work.

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

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

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

   Me. Justice Devee

delivered the opinion of the court.

6. Damages, § 188 — when evidence sufficient to show that blindness is due to accident. In an action by a servant for damages for injuries received due to the explosion of hot slag causing burns and the loss of his eyes, where it appeared that plaintiff, immediately following his injuries, went to a hospital and remained there three months, and there was no evidence that he did not receive competent treatment; that five months after the accident a physician found some suppuration in both eyes and cured them; that plaintiff’s eyes were perfectly normal before the accident and he was practically blind thereafter, evidence held sufficient to show that plaintiff’s blindness was caused by the explosion and that he had not been guilty of negligence in his efforts to be cured of his injuries.

7. Master and servant, § 802* — when instruction on duty of employer to warn servant is erroneous. The elimination of the portion of an instruction, in an action by a servant against a master for personal injuries, that it is not the duty of the employer to warn the servant of an open and obvious danger and of which he had as good an opportunity of knowing as the employer, is not error where there is no evidence that would warrant a finding that the employee had any knowledge of the danger of the explosion of hot slag while hauling it away from ore smelting furnaces in a wheelbarrow.

8. Master and servant, § 699* — when evidence insufficient to show Knowledge by employee of likelihood of hot iron slag exploding. Evidence held insufficient to show that an employee, engaged at the tasks of hauling away from ore smelting furnaces hot iron slag in a wheelbarrow, had any knowledge that such slag was likely to explode.

9. Master and servant, § 804* — when instruction that act of fellow-servant contributing to produce accident does not bar recovery is correct. In an action by an employee for damages for personal injuries where the contract of employment was made in another State, in which the defence that the injuries were caused by the act of a fellow-servant was unavailable, an instruction that if the jury found from the evidence, under the instructions of the court, that defendant was guilty and that plaintiff had proved his case as laid in the declaration, although the act of a fellow-servant contributed to produce the accident, plaintiff could recover, held' to be correct.

10. Instructions, § 25* — when instruction referring to declaration is not erroneous. In an action for damages for personal injuries, held that an instruction permitting recovery .if plaintiff had proved his case as laid in the declaration was not erroneous, although, the declaration had originally consisted of three counts, two counts having been dismissed out of the case, as the word “declaration’' must have referred to the count on which the case was tried.

11. Damages, § 200 — when instruction on is not erroneous. In an action for damages for personal injuries, an instruction held not erroneous on the “ground that it informed the jury that damages might be allowed plaintiff “as the direct and proximate result of the accident in question, described in plaintiff’s declaration,” where the clause, when read with the balance of the instruction, informed the jury that the damages to he awarded were to be limited to the “physical injuries and physical suffering, if any, you find from the evidence the plaintiff has sustained as the direct and proximate result of the accident in question, described in plaintiff’s declaration, in so far as said damages are charged against the defendant in the plaintiff’s declaration and proved by a preponderance of the evidence in this case.”

12. New tbial, § 69* — when on ground of newly-discovered evidence is properly denied. A new trial on the ground of newly-discovered evidence is properly denied where the affidavits therefor tending to show that plaintiff had sustained other injuries prior to the accident in question, would not have materially modified the verdict of the jury.

13. Damages, § 145* — when verdict for personal injuries not excessive. A verdict for $25,000 damages for personal injuries to a boy twenty years of age, consisting of the loss of both eyes and other injuries due to burns caused by the explosion of hot slag, held not excessive where the earning capacity of plaintiff was practically destroyed and his past sufferings were great and would continue so.


text:
    Northern Trust Company, Administrator, Appellee, v. Grand Trunk Western Railroad Company, Appellant.
    Gen. No. 22,945.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.
    Rehearing denied June 25, 1917.
    Statement of the Case.
    Action under the Federal Employers ’ Liability Act by the Northern Trust Company, administrator of the estate of F. Parks, deceased, plaintiff, against the Grand Trunk Western Bailway Company and Grand Trunk Bailway Company, defendants, to recover the sum' of $18,000 for the death of plaintiff’s intestate, a railroad switchman, who was killed by being crushed between the end of a car 75 feet long and the center of a platform connected with a hay barn. From a judgment for plaintiff for $18,000, to be apportioned $12,000 to Blanche Parks, widow of plaintiff’s intestate, and $6,000 to William Francis Parks, the 8-year-old son of deceased, defendant Grand Trunk Western Bailway Company appeals, the case having been dismissed as to the other defendant.
    The platform and track were curved so that 36-foot cars came within 12 to 15 inches of the center of the platform, but 70 and 60-foot cars came within 5 to 7 inches of the center of the platform. The longer cars were of the more unusual type. The rail nearest the platform was about 15 inches therefrom for its entire length.
    Kretzinger & Kretzinger and L. L. Smith, for appellant; G. W. Kretzinger, Jr., of counsel.

      Abstract of the Decision.
    1. Master and servant — when negligence in locating platform near track is question for jury. In an action under the Federal Employers’ Liability Act to recover for the death of a railroad switchman who was crushed between a car seventy feet long, moving on a curved track, and the center of the edge of a curved platform, the edge of which was fifteen inches from the nearest fail, where it appeared that bcaúse of the unusual length of the car it came within five inches of' the platform at the center, held that it was a question for the jury whether defendant was guilty of negligence in the location of the platform.
    2. Master and servant, § 759

       — when contributory negligence of switchman is question for jury. In an action to recover for the death of a railroad switchman under the Federal Employers’ Liability Act, due to his being caught between a car seventy feet long, an unusual type, and the center of the outer edge of a curved platform, the edge of which was fifteen inches from the nearest rail, while waiting to give a signal to the engineer, held that it was a question for the jury whether plaintiff was guilty of contributory negligence.
    3. Master and servant, § 126* — what care required in furnishing safe place to work. It is the duty of a master to use reasonable care to furnish his servant a safe place in which to perform hia work.
    4. Master and servant, § 447* — when servant may assume that master has exercised care to protect him in his work. A servant has the right to assume, in doing his work, that reasonable care has been exercised by the master to protect him from danger of being injured.
    5. Master and servant, § 699* — when evidence insufficient to charge switchman with knowledge of conditions causing his death. In an action to recover for the death of a railroad switchman who was killed by being crushed between an unusually long freight car, moving on a curved track, the rails of which were equidistant from the edge of a curved platform, and the center edge of such platform, where it appeared that at the ends of the platform there was room for a man’s body to pass; that deceased had worked at other similar places for defendant and at or near the particular platform before, but the circumstances were not disclosed, evidence held insufficient to charge deceased with knowledge of the conditions causing his death.

      C. Helmer Johnson and D. D. Root, for appellee; Arthur H. Chetlain, of counsel.

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

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

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

   Mr. Justice Dever

delivered the opinion of the court.

6. Master and servant, § 430 — when defense of contributory negligence allowable in action under Federal Employers’ Liability Act. Under the Federal Employers' Liability Act the defense of contributory negligence is only allowable for the purpose of reducing the damages which might otherwise be recoverable.

7. Master and servant, § 537* — what plaintiff in action under Federal Employers’ Liability Act must plead and prove. In an action under the Federal Employers’ Liability Act, it is necessary for a plaintiff seeking the benefits of the act to allege and prove that the injured employee was engaged in interstate commerce at the time of the alleged injury.

8. Removal of causes, § 1* — what is right to remove cause to federal court. The right to remove a cause to the federal court is a statutory right, and one seeking to enforce it must bring himself within the terms of the statute.

9. Removal of causes, § 2* — what cause is not removable to federal court. Under section 28 of the Judicial Code of the United States, no cause arising under the Federal Employers’ Liability Act of 1908 is removable to a federal court.

10. Death, § 80* — when increasing of ad damnum in declaration in presence and hearing of jury is not reversible error. In an action for death of a railroad switchman, held that the action of the court in permitting plaintiff to increase the ad damnum of its declaration in the hearing and presence of the jury was not reversible error.

11. Death, § 80* — when error in directing jury to apportion damages in action for under Federal Employers’ Liability Act is not reversible error. In an action by the administrator of the estate of a railroad switchman to recover for the latter’s death, held that the action of the court in directing the jury to apportion the damages allowed between the widow and child of the deceased was not reversible error, as the widow and child would, in any event, have the legal right to participate in any sum awarded plaintiff.

12. Death, $ 67* — when verdict not excessive. A verdict of $18,000 for the death of a railroad switchman twenty-eight years of age who had been • earning $125 per month, held not excessive.

13. Death, § 78* — what considered in determining excessiveness of verdict. The fact that the money value of life and health is appreciating and the earning capacity of money is steadily depreciating is a factor to be considered in determining whether or not a verdict for death is excessive, and the result of passion and prejudice on the part of the jury.

14: Master and servant, § 801 — when instruction in language of statute is not reversibly erroneous. An instruction in the language of the statute, in an action under the Federal Employers’ Liability Act, held not reversibly erroneous.

15. Master and servant, § 430* — contributory negligence under Federal Employers’ Liability Act. The Federal Employers’ Liabilbility Act does not limit contributory negligence to that which proximately contributes to the accident.

16. Master and servant, § 777* — when instruction on contributory negligence in reduction of damages in action under Federal Employers’ Liability Act is not materially misleading. In action for death of a railroad switchman under the Federal Employers’ Liability Act, an instruction that required that any negligence of the deceased must have proximately contributed to his death before such negligence could be considered in reduction of damages, held not materially misleading.

17. Negligence, § 66* — what constitutes contributory. The words “contributory negligence” include such negligence as proximately contributes to an occurrence which causes an injury.

18. Death, § 73* — when instruction on damages in action for death under Federal Employers’ Liability Act is proper. In an action for death under the Federal Employers’ Liability Act, an instruction that plaintiff was limited to a recovery for the actual pecuniary loss sustained as the result of the death of deceased, less such amount as the jury might deduct by reason of contributory negligence, if any, of the deceased, held proper.

19. Master and servant, § 800* — when instruction on liability of railroad for construction of platform too near track is not erroneous. In an action under the Federal Employers’ Liability Act for the death of a railroad switchman who was killed by being crushed between an unusually long freight car, moving on a curved track, the rails of which were fifteen inches equidistant from the edge of a curved platform, and the center edge of such platform, an instruction that the proximity of the track to the platform was an engineering question for the defendant to determine and that no negligence was to be imputed, to the defendant by reason of such proximity of the platform to the track, held not erroneous.

20. Master and servant, § 126* — what care reqtiired in construction of unloading platform near track. A railroad is only required to exercise reasonable care in the construction of an unloading platform along a track in the interests of those who may be lawfully required to use such works or premises.


author: Mr. Justice Holdom

text:
    Antonio Manzello, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,827.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Evidence, § 475

       — what constitutes preponderance. The preponderance of evidence held to be in defendant’s favor, in an action for personal injuries alleged to be due to the sudden starting of a street car before plaintiff had time to get safely on board, where plaintiff testified in his own behalf and also another witness, who was not in position to see what occurred, and the conductor and two credible witnesses for defendant supported defendant’s contention.
    2. Instructions, § 88* — when instruction on determination of weight of evidence is erroneous. An instruction that the greater weight of evidence is not alone determined by the greater number of witnesses testifying to any fact or set of facts, but, in determining where the greater weight of evidence is, the jury should take into consideration the opportunities of the witnesses for seeing or knowing what they testified to or about, the probabilities or improbabilities of the truth of such testimony, and also take into consideration the connection, if any, between the witnesses and the parties and their interest in the result of the case, Held erroneous because the element of numbers, as well as of candor, fairness and intelligence, did not appear, and it had no reference to the consideration by the jury of all of the evidence in the case in arriving at their verdict.

      Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honors, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action by Antonio Manzello, plaintiff, against the Chicago City Railway Company, defendant, to recover for personal injuries alleged to be due to the sudden starting of the car before plaintiff had an opportunity to place himself safely on the car. From a judgment for plaintiff for $1,725, defendant appeals.
    Busby, Weber & Miller, Benjamin F. Richolson and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    Thompson, Turrell & Chambers, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Evidence, § 475 — what considered in determining preponderance. In a personal injury action, where the evidence was directly conflicting as to the manner -of the occurrence of the accident, held that the number of witnesses was an important element in determining where was the preponderance of evidence.

4. Negligence, § 228* — when instruction on contributory negligence is erroneous. An instruction, in an action for damages for personal injuries, which states in a negative way the duty of the plaintiff in regard to his being in the exercise of ordinary care for his own safety at and previous to the time of the accident is erroneous.

5. Negligence, § 157*- — when burden of proof is on plaintiff. In an action for damages for personal injuries, the burden of proof is on plaintiff to aver and prove that at the time of the accident he was in the exercise of ordinary care for his own safety.

6. Negligence, § 126* — what is effect of failure to aver and prdve freedom from contributory negligence. Failure to aver and prove freedom from contributory negligence, in an action for damages for personal injuries, precludes a recovery, regardless of the negligence proven against the defendant, unless such negligence is proven to be wilful, wanton or reckless.

7. Appeal and error, § 1637* — when error in instruction is not cured by correct instruction. An error in an instruction in stating in a negative way the duty of plaintiff in regard to his being in the exercise of ordinary care for his own safety at and previous to the time of the accident is not cured by a correct instruction where it is impossible to determine which instruction was followed.


text:
    Advance Terra Cotta Company, Appellant, v. Michael B. Moran et al., Appellees.
    Gen. No. 22,834.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 136

       — when contract not construed as waiving right to lien for unpaid portion of price due contractor. A provision in a contract to. furnish certain terra cotta for buildings by which the contractor agreed “to complete same free and clear of any liens or encumbrances” cannot be construed as waiving any right to a lien for any unpaid portion of the contract price due the contractor.
    2. Mechanics’ liens, § 62* — who protected by provision in contract whereby contractor agrees to complete worle clear of liens or incumbrances. A provision in a contract to furnish terra cotta work for buildings by which the contractor agrees “to complete same free and clear of any liens or encumbrances” is, in effect, limited to the liens of subcontractors and others claiming under the contractor, and in a measure a guarantee by him against subordinate liens.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Bill for mechanic’s lien by the Advance Terra Cotta Company, a corporation, complainant, against Michael B. Moran, Sarah E. Moran and Simon W. Strans, trustee, defendants. From a decree sustaining a demurrer to the bill and dismissing the bill, complainant appeals.
    Buell & Abbey, for appellant.
    Maurice J. Moriarty and Nicholas B. Jones, for appellees; Maurice J. Moriarty, of counsel.

      See Illinois Notes Direst, Vols. XI to XV, and Cumulative Quarterly, same topip and section number.

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Mechanics’ liens, § 135 — what is essential to waiver hy contract of right to mechanic’s lien. To waive by contract the right to a mechanic’s lien, there must be an express covenant or a covenant resulting by implication from the language used so plain that a mechanic can so understand without seeking professional interpretation as to its legal effect.


text:
    Lillie A. Milligan, Appellee, v. Charles J. Milligan, Appellant.
    Glen. No. 22,841.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. G-eobge Kebsten, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed without remanding.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Bill for divorce by Lillie A. Milligan, complainant, against Charles J. Milligan, defendant. From an order for the payment of solicitor’s fees and of alimony pendente lite, defendant appeals.
    John M. Hess, for appellant.
    Longenecker & Heise, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision^

Divorce, § 79 — when decree reversed pro forma without remanding. Where, after an appeal by defendant from an order for the payment of solicitor’s fees and of alimony pendente lite is prayed and perfected, it is made- to appear to the Appellate Court that a plea by defendant to the jurisdiction of the trial court, entered before the order appealed from was entered, was heard and sustained after the entry of such order, and the bill dismissed for lack of jurisdiction, the order of dismissal disposes of the order for fees and alimony, and the decree awarding them will be reversed pro forma but not remanded.


text:
    Sunshine Laundry Company, Appellee, v. Rhodes Avenue Hospital. George J. Hinn et al., Appellants.
    Gen. No. 22,851.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Garnishment proceedings by the Sunshine Laundry Company, plaintiff, against George J. Hinn, A. K. Hinn and W. E. Swanson, garnishee defendants, in the suit of the same plaintiff against Rhodes Avenue Hospital, defendant. From a judgment for plaintiff, the garnishee defendants appeal.
    Eugene Stewart, for appellants.
    Louis Ziv, for appellee,

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the. Decision.

1. Corporations, § 234 — when articles of incorporation are admissible to show names of subscribers to corporate stock. In a garnishee proceeding to compel the garnishee defendants to respond for the amounts unpaid upon their several subscriptions to stock in the corporation defendant in the main action, a certified copy of the articles of incorporation is admissible to show who were subscribers to the capital stock of such corporation.

2. Corporations, § 234*- — when evidence sufficient to show that garnishee defendants are stockholders of corporation and that subscriptions are unpaid. In a proceeding to garnishee amounts alleged to be unpaid upon subscriptions to corporate stock, evidence held to support a finding that the garnishees were subscribers to the stock for which their subscriptions appeared upon a certified copy of the articles of incorporation received in evidence and that their subscriptions were unpaid.

3. Corporations, § 284* — when officer may not charge unpaid salary against unpaid stock subscription. In a proceeding to garnishee an amount claimed to be due upon a subscription to stock in the corporation defendant in the main action, a credit claimed for salary as secretary cannot be charged against such subscription where there is no proof that any salary was authorized by the board of directors.

4. Garnishment, § 100* — when no presumption indulged from garnishee’s denial of liability. No presumption will be indulged in a garnishee's denial of liability where, at the time of the trial against him, he is in default for want of an answer.

5. Costs, § 73* — when cost of additional abstract is properly taxed against appellant. Where matter material to a decision of the cause is omitted from the abstract on appeal, an additional abstract filed by appellee will be taxed as costs against appellant.


text:
    Lillian Rasmussen, Appellee, v. Joseph T. Meilinger et al. Thomas Brisch and Andreas Brisch, Appellants.
    Gen. No. 22,870.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 129

       — when plea in action for personal injuries due to excavating too near public sidewalk is sufficient. Where, in an action for personal injuries, the declaration alleges that the injury was caused by the act of defendants, while constructing a building, in digging an excavation near a public sidewalk and in negligently failing to safeguard it and that defendants were partners, and defendants interposed a special plea that they were not engaged in erecting the building, did not dig the excavation and did not maintain it and were not guilty of the negligence charged, such plea is sufficient to put plaintiff on proof of her averment that they dug the excavation, even though the plea does not deny the partnership averred in the declaration.

      Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action for personal injuries by Lillian Rasmussen, plaintiff, against Joseph T. Meilinger and his wife, Thomas Brisch, Andreas Brisch and the City of Chicago, defendants. Defendants Meilinger were not served and the jury found the City of Chicago not guilty. There was a verdict and judgment against defendants Brisch for $1,250, from'which they appeal.
    Daniel M. Healy, for appellants,
    McCaskill & MoCaskill, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion.of the court.

2. Negligence, § 187 — when evidence sufficient to show that excavation was not made by defendants. In action for personal injuries alleged to have been caused by defendants’ acts in creating and negligently maintaining an excavation, evidence held sufficient to show that the excavation was not dug by defendants.

3. Negligence, § 131* — when no recovery for failure to prove connection with ownership or operation of agencies causing accident. In an action for personal injuries, there can be no recovery where there is a total failure to prove that defendants were connected with the ownership or operation of the agencies which caused the accident for injuries from which recovery is sought.


text:
    John H. Leslie and George H. Leslie, copartners, trading as John H. Leslie & Company, Appellants, v. J. W. Gillaspie, Appellee.
    Gen. No. 22,878.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action by John H. Leslie and George H. Leslie, co-partners, trading as John H. Leslie & Company, plaintiffs, against J. W. Gillaspie, defendant, to recover damages for a breach of contract. From a judgment of nil capiat and for costs in favor of defendant, plaintiffs appeal.
    Busby, Weber & Miller, Warner H. Robinson and Arthur A. Anderson, for appellants.

      Abstract of the Decision.
    1. Sales, § 59

       — when contract is severable and not entire. A contract of sale by which the vendor agrees to sell the vendee a certain number of cases of canned goods at a specified price per dozen cans, to be delivered at the vendee’s factory, and under which the shipment is made in two cars, each containing a half of the goods and under separate invoice and sight draft, is not an entire but a severable contract.
    2. Sales, § 59* — what constitutes severance of entire contract of sale. If the vendee of a specific quantity of goods sold under an entire contract receives a part thereof and retains it after the vendor has refused to deliver the residue, there is a severance of the entirety of the contract, and the vendee becomes liable to the vendor for the price of such part, but may reduce the vendor’s claim by showing that he has sustained damage by the vendor’s breach.
    3. Sales, § 376* — what is measure of damages for breach of contrdct for sale of goods. In an action for breach of contract for the sale of goods, the measure of damages is the difference between the contract price and the price at the time of the breach.
    No appearance for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Evelyn Harkins, Appellee, v. G. J. Sherwood et al. C. E. Kirk, Appellant.
    Gen. No. 22,885.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 29

       — what is subject of review where stenographic report is stricken from record. On appeal from a judgment, of the Municipal Court of Chicago, where the Appellate Court allows a motion to strike the stenographic report from the record, the only question for decision is the sufficiency of the pleading to sustain the judgment.
    2. Municipal Court op Chicago, § 29* — when presumed that evidence was sufficient to sustain judgment. On appeal from a judgment of the Municipal Court of Chicago, in the absence of a stenographic repprt, it .will be presumed that the evidence was sufficient to sustain the judgment.
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action by Evelyn Harkins, plaintiff, against Gr. J. Sherwood', C. E. Kirk and others, defendants, to recover for a breach of-contract of employment. From a verdict and judgment for plaintiff for $319.96, defendant Kirk appeals.
    M. M. Jacobs, for. appellant.
    Elmer A. Roat, for appellee; Thomas E. D. Bradley, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Master and servant, § 44* — when employee may commence action for damages for breach of contract of employment. In an action to recover for breach of a contract of employment, where the employer has breached the contract by repudiating it, the employee has the right to commence an action for such damages as he may have suffered by reason of the breach and repudiation, regardless of the date when the contract by its terms expires.


text:
    Michael Connelly, Appellee, v. Michigan Central Railroad Company, Appellant.
    Gen. No. 22,895.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Commerce, § 4

       — when railroad employee is engaged in interstate commerce. A checker employed by a railroad company is engaged in interstate commerce when checking freight out of a car which had been loaded in another State and brought therefrom into Illinois by such company.

      Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Proceeding under Workmen’s Compensation Act by Michael Connelly, plaintiff, against the Michigan Central Eailroad Company, a corporation, defendant, to recover compensation for personal injuries. From a judgment of the Circuit Court awarding compensation, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Leslie M. O’Connor and J. Sidney Condit, of counsel.
    No appearance for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Commerce, § 4 — when railroad is engaged in interstate commerce. A railroad company engaged in hauling freight from a point in one State to a point in another State is engaged in interstate commerce.

3. Workmen’s Compensation Act, § 4* — where remedy of employee is not under. Under section 2 of the Workmen’s Compensation Act (J. & A. 5450), the remedy of an employee injured while engaged in interstate commerce, and while in the employ of a carrier by land engaged in interstate commerce, is under the Federal Employers’ Liability Act and not under the Workmen’s Compensation Act of 1911.


text:
    Benjamin J. Hedger, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,928.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in this court at the October term, 1916. Reversed and remanded.
    Opinion filed June 11, 1917.
    Rehearing denied June 25, 1917.
    Statement of the Case.
    Action by Benjamin J. Hedger, plaintiff, against the Chicago City Railway Company, a corporation, and Chicago Railways Company, defendants, to recover for personal injuries. The cause was discontinued as to the latter defendant and a verdict and judgment for plaintiff for $2,250 was had against the Chicago City Railway Company, from which it appeals.
    Watson J. Ferry, for appellant; W. W. Gurley, J. R. Guilliams and T. J. Symhes, of counsel.

      Abstract of the Decision.
    1. Instructions, § 95

       — what is proper instruction on credibility of plaintiff as witness. In an action for personal injuries, an instruction is vicious which tells the jury that they shall treat plaintiff's evidence in the same way as that of any other witness and subject his testimony to the same tests only as are applicable to other witnesses, the proper instruction being that the jury have the right, in weighing plaintiff’s evidence, to determine how much credence should be given to it, and, in so doing, take into consideration that he is the plaintiff and interested in the result of the suit.
    2. Carriers, § 485* — when instruction in action by passenger for assault is erroneous as not conforming to pleading. In an action by a passenger for injuries alleged to have been caused by an assault by defendant’s conductor, the declaration in which does not aver any assault by the conductor after he and plaintiff were off the car, it is not proper to instruct that defendant was liable for an assault by the conductor after he had ejected plaintiff and that it would be liable for injuries sustained by an assault by the conductor after plaintiff was off the car.
    3. Carriers, § 344* — when carrier is not liable for injuries caused by conductor. A carrier is not liable for injuries to a passenger sustained by reason of a personal difficulty of a passenger with its conductor committed after he and the conductor were off its car.
    4. Assault and battery, § 17* — when instruction is erroneous as not conforming to declaration. Where the declaration in an action for personal injuries charges an assault, an instruction grounded upon negligence, which is not charged in the declaration, is improper.
    Vincent G. Gallagher and Ernest Messner, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,929.
    (Not to be reported in full.)
    Abstract of the Decision.
    Street railroads, § 131

      - — when evidence shows that intestate's negligence is proximate cause of injury. In an action to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligent operation of defendant’s street car, evidence held to show that the intestate’s negligence was the proximate cause of the injury and that defendant was free from actionable negligence.
    Appeal from the Superior Court of Cook county; the Hon. Hucq Pam, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed June 11, 1917.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Harry Robinson, deceased, plaintiff, against the Chicago City Railway Company, defendant, to recover" damages for the death of plaintiff’s intestate. From a verdict and judgment for $2,000 for plaintiff, defendant appeals.
    Busby, Weber & Miller, John E. Kehoe and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    James D. Power, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of: the court.


author: Mr. Presiding Justice Goodwin

text:
    Walter Neske, Defendant in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 21,783.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Telegraphs and telephones, § 37

       — when evidence sustains verdict in action for negligence in transmission of telegram. In an action to recover damages for negligence in the transmission of a telegram, evidence held to support a verdict for plaintiff.
    2. Telegraphs and telephones, § 31* — when evidence shows that damages were direct result of negligence in transmission of telegram. In an action to recover damages for negligence in transmitting a telegram, evidence held sufficient to show that the amount of the verdict for plaintiff was for the damages which he had suffered as a direct result of defendant’s negligence, and that such damages were of the sort which might reasonably have been supposed to have been in the contemplation of the sender of the message and the telegraph company at the time the message was sent.

      Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed June 27, 1917.
    Rehearing denied July -13, 1917.
    Statement of the Case.
    Action by Walter Neslce, plaintiff, against the Western Union Telegraph Company, a corporation, defendant, to recover damages alleged to have been caused by negligence in transmitting a telegram. To reverse a judgment for plaintiff for $53.50, defendant prosecutes this writ of error.
    West & Eckhart, for plaintiff in error.
    Joseph R. Burres, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

3. Telegraphs and telephones, § 37* — when contributory negligence of plaintiff sending telegram not shown. In an action to recover for damages caused by the negligent transmission of a telegram, evidence held not to show contributory negligence of plaintiff.