text:
    William F. Wagner, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 6,141.
    1. Master and servant, § 98

      —when Federal Employers’ Liability Act applies. The Federal Employers’ Liability Act applies only when the carriers and their servants are both engaged in interstate commerce.
    2. Master and servant, § 302*—when defense of assumed risk unavailable. The defense of assumed risk is unavailable in an action by an employee engaged in interstate commerce, where the injuries are the result of failure to comply with the Federal Safety Appliance Act.
    3. Master and servant, § 98*—when declaration in action under Federal Employers’ Liability Act must allege parties engaged in interstate commerce. In an action by a railroad employee for damages for personal injuries, in order that plaintiff may bring himself within the requirements of the Federal Employers’ Liability Act, he must aver in his declaration that the parties were at the time engaged in interstate commerce.
    4. Pleading, § 476*—when defective and ambiguous allegation Cured after verdict. A defective and ambiguous allegation in a declaration in an action for personal injuries by a railroad employee against a railroad engaged in interstate commerce under the Federal Employers’ Liability Act, as to the plaintiff and defendant being engaged in interstate commerce, is cured after verdict.
    5. Commerce, § 4

      —When evidence sufficient to establish prima facie case that employee engaged in interstate commerce. In an action by a railroad switching foreman for damages for injuries sustained as the result of his foot being crushed between two loaded foreign cars while attempting to loosen a coupler of one of them by kicking it, evidence held sufficient to establish a prima facie case that plaintiff was engaged in interstate commerce.
    6. Appeal and error, § 1618*—when error in admitting secondary evidence cured. Any error in admitting secondary evidence as to the contents of documents without first laying a proper foundation therefor is cured where it subsequently appears that the party offering such evidence caused a subpoena duces tecum to issue for such documents and was unable to find them.
    7. Master and servant, § 704*—when noncompliance with Safety Appliance Act proximate cause. In an action by a railroad switching foreman for damages for personal injuries sustained as the result of his foot being crushed between two cars used in interstate commerce, while attempting to kick loose a defective coupler for the purpose of coupling such cars, evidence held sufficient to show that the failure of the railroad company to comply with the Federal Appliance Act contributed to and was the proximate cause of the injury to plaintiff.
    8. Master and servant, § 801*—when instruction stating Federal statute in action under Federal Employers’ Liability Act correct. In an action under the Federal Employers’ Liability Act by a railroad switchman engaged in interstate commerce, for injuries sustained due to a defective car coupler, an instruction stating the Federal statute approved.
    9. Evidence, § 74*—when evidence as to defective condition of coupler on car other than one alleged to be defective admissible as part of res gestee. In an action under the Federal Employers’ Liability Act by a railroad switchman, for damages for injuries sustained as the result of the crushing of his foot while attempting to kick loose a defective coupler on one of two cars engaged in interstate commerce, which he was attempting to couple, evidence as to the defective condition of the coupler on the other car held admissible as part of the res gestos, although the condition of the coupler of the other car was alone complained of in the pleadings.
    10. Evidence, § 74*—when evidence as to manner of cars being coupled coming together admissible as part of res gestee. In an action under the Federal Employers’ Liability Act for damages for personal injuries to a railroad switchman, sustained as the result of the defective condition of a coupler on one of two interstate cars which he was attempting to kick loose for the purpose of coupling the cars, held that evidence as to the manner of the cars coming together was admissible as part of the res gestea.

    11. Evidence, § 148

      —when plaintiff may exhibit injured limb to jury in action for personal injuries. In an action for damages for personal injuries to a leg of a person negligently caused, it is permissible for the plaintiff to exhibit the injured limb to the jury.
    12. Damages, § 122*—when verdict for injury to foot of railroad suñtchman not excessive. In an action by a railroad switchman under the Federal Employers’ Liability Act for damages for injury to his foot while attempting to kick loose a defective car coupler, held that a verdict for $8,000 was not excessive.
    13. Appeal and erbor, § 1772*—when judgment not reversed. A judgment will not be reversed for slight errors.
    14. Master and servant, § 430*—when defense of contributory negligence unavailable. In an action under the Federal Employers’ Liability Act, the defense of contributory negligence is unavailable where the injuries are the result of the failure to comply with the Federal Safety Appliance Act.
    15. Master and servant, § 567*—when presumed that railroad performing duty to deliver car to destination at time of injury to employee. In an action under the Federal Employers’ Liability Act by a railroad switchman for damages for personal injuries sustained while attempting to kick loose a defective coupler on one of two cars alleged to be in use in interstate commerce, where it appeared that the car with the defective coupler was on a side track and was partly unloaded, but that plaintiff was about to move it to the building of the consignee where it was to be loaded for shipment to another State, held that it would be presumed that it was the duty of the defendant to deliver the car to the consignee and that defendant was delivering it at the time of the accident, notwithstanding defendant had permitted it to be opened before it reached its final destination.
    Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Rehearing denied May 24, 1916.
    William: D. Fullerton and A. B. Enoch, for plaintiff in error.

      Frank H. Hayes and Butters & Clark, for defendant in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.

August 21, 1912, William F. Wagner, about thirty-six years old, plaintiff below (defendant in error here), was employed by the Chicago, Bock Island and Pacific Bailway Company, defendant below (plaintiff in error here), as foreman of a switching crew operating in its yards at Morris, Illinois. In the course of his employment that day he undertook to couple two cars, one of them equipped with a “Major” coupler, and the other with a “Gould” coupler. He had before discovered that the knuckle of the Major coupler was not in'working order, and had closed it. It was only necessary to have the knuckle of one of the couplers in order. As the Major car was moved by the engine towards the Gould car he went to the Gould coupler and attempted to adjust the knuckle so that the coupling would be made. The knuckle was defective, and failing to adjust it with his hand he stepped back and kicked the coupler to loosen it. His foot was caught and crushed between the two cars. He brought this action to recover for that injury. The case was submitted to a jury on two counts of the declaration. The first intended to charge negligence arising from a violation of the Federal Safety Appliance Act, the second charging liability under the Federal Employers’ Liability Act, and its amendments, but counting on a failure of the defendant to equip a car with such a coupler as is required by the Safety Appliance Act as the cause of the injury. Each' count alleged, and the proof showed, that the defendant was engaged in interstate commerce. Whether the declaration sufficiently avers that the plaintiff was at the time and place employed by the defendant in interstate commerce, and whether the evidence shows that to be the fact, are questions much controverted by counsel. The jury returned a verdict in favor of the plaintiff for $8,000 and the court, after overruling motions by the defendant for a new trial and in arrest of judgment, entered judgment for that amount.

It is obvious if a servant is employed in interstate commerce at any given time and place, his master is also then and there so engaged. But the converse is not necessarily true. The defendant in this case is all the time engaged in interstate commerce, but many of its employees are at different times and places not so employed. The Federal Act applies only when the carriers and their employees are both engaged in interstate commerce. (Second Employers’ Liability Cases, 223 U. S. 1, 49 [1 N. C. C. A. 875]; Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153].) If at the time in question the plaintiff was employed in interstate commerce and his injury resulted from a failure of the defendant to comply with the Federal Safety Appliance Act, the questions of contributory negligence and assumed risk are eliminated. The Federal Employers’ Liability Act is quoted in part, and many questions arising thereunder discussed in Staley v. Illinois Cent. R. Co., 268 Ill. 356. It is provided in section 3 of the Act that the employee shall not be held “guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” And in section 4, that the employee “shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

It is argued that the Federal Employers’ Liability Act gives a new right or privilege and that the party claiming such right must bring himself within the requirement of the statute in his pleading; must show that he comes within the circumstances or possesses the conditions or qualifications named by the statute as requisite to the right or privilege claimed; and Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, is cited in support of that general rule, and said that under that rule it is imperative that the plaintiff should aver in his declaration, in words or substance, that he was, at the time and place in question, engaged in interstate commerce. We think it true that the declaration must show facts from which it appears that the parties were engaged in interstate commerce. There has been conflict and diversity of opinion in the State courts in relation to necessary pleadings under the statute, as will be seen by reference to Roberts Injuries Interstate Employees, section 150, and following sections, and in Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, language is used which carelessly read might indicate that there could be no recovery without the averment. In that case the pleadings contained no reference to the Employers’ Liability Act. The trial court denied the defendant’s right to interpose a defense under that act. The United States Supreme Court held that the defendant had a right to disprove liability by showing that the injury had been inflicted while the plaintiff was employed in interstate business, and said: “If without amendment, the case, proceeded with the proof showing that the right of the plaintiff and the liability of the defendant had to be measured by the Federal statute, it was error not to apply and enforce the provisions of that law;” but it did not say that the case, without amendment, might proceed to judgment for the plaintiff. And in the earlier case of Brinkmeier v. Missouri Pac. Ry. Co., 224 U. S. 268, it was held in an action under the Safety Appliance Act that it was necessary to allege that the car involved was engaged in interstate commerce, and that in the absence of such an allegation the pleadings did not state a cause of aotion under the original act. But it is enough, if it was sufficiently averred, to be good after verdict.

The second count is admitted to sufficiently charge that the defendant was engaged in interstate commerce. After so alleging, it charges the defendant’s duty to equip its cars with couplers coupling automatically by impact, and which could be coupled or uncoupled without the necessity of a person going between the ends of the cars to couple or uncouple the same, and its duty not to use or permit to be used on its said railroad cars not so equipped. It then refers to the Act of Congress creating liability in damages to persons suffering injury while employed by such carriers in such commerce resulting from any defect or insufficiency due to its negligence; avers that at the time and place in question the defendant used the car with the defective coupler in question, and adds: “That it then and there became and was the duty of the plaintiff, as such switchman and employee of the defendant engaged in interstate commerce, as aforesaid, at to-wit: the City of Morris, aforesaid, to couple such car so equipped with said defective, broken and inoperative coupler, onto a certain other car then upon the track of the defendant.” The clause “as such switchman and employee of the defendant engaged in interstate commerce,” may be read signifying that the plaintiff was so engaged, or that the defendant was so engaged. The pleading is ambiguous and would have been bad on demurrer, but we are inclined to hold it good after verdict on the authority of Sargent Co. v. Baublis, 215 Ill. 428, and authorities there cited, and other authorities cited by us in Jacobson v. Ramey, Gen. No. 6,076, 200 Ill. App. 96; and Paden v. Chicago, R. I. & P. Ry. Co., Gen. No. 6,142, 200 Ill. App. 100. Therefore, the motion in arrest of judgment based on the assumed insufficiency of the declaration was properly overruled.

It is contended that the evidence does not show that the plaintiff was employed in interstate commerce. He testified that the car with the Major coupler was delivered in the yards on the morning of the accident or the evening before; that it was billed from Tennessee and loaded with cotton seed meal to be delivered to the Quaker Oats people; that the car with the Gould coupler was shipped from Tennessee to the Quaker Oats people and loaded with cotton seed, and was being unloaded and that he was about to move it from where it stood on the track down to the Quaker Oats building, where it was to be loaded for Pennsylvania shipment; that there were then in the yard cars to deal with from all the railroads, the New York Central, the Wabash, the Pere Marquette, and from all over the United States; that the car with the Major coupler was a foreign car. This evidence, if competent, was sufficient to make a prima facie case. Mattocks v. Chicago & A. Ry. Co., 187 Ill. App. 529; Devine v. Chicago, R. 1. db P. Ry. Co., 185 Ill. App. 488. In the latter case there was only the testimony that there were some cars in the train going out of the State and some going to points in the State. The Appellate Court said the evidence was slight, but was not contradicted, and held it sufficient. The case was affirmed by the Supreme Court and reported in 266 Ill. 248. But it is claimed that this evidence was not competent because plaintiff testified on cross-examination that he obtained his information as to the origin of the cars from waybills that he inspected in the course of his duty as switchman for the company. The court overruled the defendant’s motion to exclude this testimony. Appellee argues that the testimony was competent as a fact coming to the witness’ knowledge in his usual course of business, falling within the rule announced in First Nat. Bank of Decatur v. Priest, 50 Ill. 321; Weaver v. Crocker, 49 Ill. 461, 464; and the Chicago, B. & Q. R. Co. v. George, 19 Ill. 510. But we think it unnecessary to determine that question, because it afterwards appeared during the trial that the plaintiff had caused a subpoena duces tecwn to issue for the production of papers, including such waybills, and the defendant was unable to find them. If this testimony had been first introduced, secondary evidence of the waybills would have been proper when offered, and if it should have been excluded when offered because of the lack of such evidence at that time, the error was cured when it afterwards appeared that the originals were lost.

We conclude that the allegations and proofs each sufficiently show that the plaintiff was employed in interstate commerce; that the failure of the defendant to comply with the Federal Appliance Act contributed to and was the proximate cause of the injury. It follows that under sections 3.and 4 of the Federal Employers’ Liability Act there is no question of contributory negligence or assumed risk involved. (Lucas v. Peoria & E. Ry. Co., 171 Ill. App. 1, in which certiorari was denied by the court.)

Plaintiff’s second instruction is complained of. It undertook to state the Federal statute and was patterned after a similar instruction that was approved by the court in Devine v. Chicago, R. I. & P. Ry. Co., 185 Ill. App. 488, 496. That case was affirmed by the Supreme Court (266 Ill. 248), and the instruction held good. The reasoning of the Supreme Court in that case applies to the objections raised here. It is argued that the court erred in refusing instructions offered by defendant. We are of the opinion that the instructions, as a whole, presented the law to the jury quite as favorably as the defendant could ask. We find no error in giving or refusing of instructions.

It is argued that the court erred in permitting evidence as to the defective condition of the Major coupler, because it is said it was the Gould coupler that was complained of in the pleadings and the jury’s attention should have been confined to that. A similar question is raised as to the introduction of evidence as to the manner of the cars coming together. This testimoney was a part of the res gestee. It was necessary to describe the occurrence, and how it happened.

It is assigned as error that the plaintiff was permitted to exhibit the injured limb to the jury. Such evidence is permissible. Chicago Terminal Transfer R. Co. v. Kotoshi, 199 Ill. 383. There are some exceptions and modifications to the rule. The Illinois cases are collected in HacNeil’s Illinois Evidence, page 505. We find nothing in the action of the court in that regard contrary to established rules.

It is also argued that the G-ould ear had reached its destination because it stood on a side track and had been partly unloaded. We assume that the defendant’s duty was to deliver it to the Quaker Oats people, and that it was performing that duty, notwithstanding it had permitted it to be opened before it reached its final destination.

It is urged that error was committed in statements of plaintiff’s counsel in their argument to the jury. We find no serious error in that respect. There is little controversy about the facts. If we have reached the right conclusion as to the law there is not much doubt of the plaintiff’s right of recovery, and slight errors should not affect the judgment. We cannot say from the evidence that the damages were excessive. We find no substantial error in the record, and the judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    John Hancock Mutual Life Insurance Company and C. R. Miller, Receiver, et al., Appellees, v. William H. Watson, Appellant.
    Gen. No. 6,145.
    1. Landlord and tenant, § 526

      —when landlord renting on shares has title to crop. Where a landlord is to receive as rent a share of the crop, which is to he delivered to him, he has no title to the crop until it is delivered.
    2. Landlord and tenant, § 526*—when presumed that landlord has title to crops mortgaged by him. In the absence of evidence to the contrary, it will be presumed that a landlord who mortgages growing crops has title to them.
    3. Mortgages, § 134*—when crops covered by mortgage on land. Crops growing upon mortgaged lands are covered by the mortgage, whether planted before or after its execution, and until they are severed the mortgage attaches as well to the crops as to the land, and if the land be sold for condition broken before severance, the purchaser is entitled to the growing crops, not only as against the mortgagor but as against all persons claiming in any manner through or under him subsequent to the recording of the mortgage.
    4. Mortgages, § 134*—when mortgagor entitled to crops. Until foreclosure or possession taken by a mortgagee of crops for the breach of condition, the mortgagor is entitled to the crops.
    5. Mortgages, § 134*—what interest mortgagee of growing crops receives. The mortgagor in possession before condition broken cannot, by mortgage, convey to a mortgagee a better title to a greater right in growing crops than he, the mortgagor, has.
    6. Receivers, § 18*—what interest receiver for real estate acquires. A receiver for mortgaged real property acquires only the rights of the mortgagor therein.
    7. Mortgages, § 134*—what does not constitute severance of crops from realty. The giving of a chattel mortgage upon growing crops does not constitute a severance of the crops from the real estate as between the mortgagee of the crop and the holder of the real estate mortgage on the land.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.

      Edward P. Harney, for appellant.
    Dyer & Whittemore and Bearick & Meeks, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.

June 9,1914, Gertrude Gordon was the owner of 875 acres of farm land in the County of Kankakee, subject to a mortgage of $27,000 to the appellee, John Hancock Mutual Life Insurance Company, and a junior mortgage to another party for $38,700. The land was rented by her in parcels to different tenants at share rent. (The terms of the leasing are not disclosed.) On that day she executed a chattel mortgage to William H. Watson, the appellant, on her interest in acreage of growing crops déscribed as: of 50 acres of timothy meadow; 40 per cent, of 200 acres planted in oats; 40 per cent, of 300 acres planted in com.” Each of these mortgages was properly acknowledged and recorded.

September 4, 1914, a bill was filed to foreclose the junior real estate mortgage. October 31,1914, the John Hancock Company filed its bill to foreclose the senior mortgage; and on November 5, 1914, the court on petition of the John Hancock Company, appointed appellee, C. B. Miller, receiver for the purpose of collecting the rents, issues and profits of the premises pending the foreclosure proceeding. The mortgage contained an express provision authorizing such appointment and the application of the rents to the payment of the mortgage indebtedness. The receiver immediately qualified and entered upon his duties. Watson got possession, of the oats described in his mortgage and sold them about August 21, 1914, and applied the proceeds on his debt, leaving about $560 unpaid, and November 21, 1914, he filed an intervening petition in the foreclosure suit setting out his chattel mortgage, his right under its terms to take possession of the property if he should feel himself insecure, alleging that there was then unpaid $580 of the indebtedness; that the security was scant and unsafe, alleging that Miller, the receiver, had assumed control and ownership over the crops mentioned in the chattel mortgage, and averring that he, Watson, by virtue of his said chattel mortgage, had a prior lien upon said chattel property, praying that the receiver be ordered to harvest and market the property, and apply the proceeds, so far as necessary, to the payment of the chattel mortgage debt. The receiver answered, denying Watson’s prior right. The court, on a hearing, denied the petition, and Watson appeals.

On the hearing it developed that corn described in the chattel mortgage had been harvested and sold for $696.80 after the intervening petition was filed, and the inquiry was directed to the title to this com. There is no question that the receiver was properly appointed and had full power to act, and no controversy about the facts. In addition to those above stated, appellant testified that the oats were delivered to him for shipment (August 21, 1914) by John Battin, who was a tenant on one parcel of the real estate, whether the parcel on which the corn was grown does not appear, and that he, appellant, then told Battin about his chattel mortgage, what property it covered, and asked him to look after the property, and that he did nothing further by way of taking possession of it. There is no evidence that Battin, did anything whatever by way of exercising any acts indicating ownership of appellant except that appellant testified that Battin looked after the property for him, evidently referring to the fact that he told him to and the assumption that he might have done it. There is nothing in the record that shows, or tends to show, that appellant took possession of the corn in question before he filed his intervening petition.

It is suggested by appellee that Gertrude Gordon had no title to the crop that she mortgaged; that the rule is that when the landlord receives as rent a share of the crop he has no title to the crop until it is harvested. This is true in ordinary cases where rent is paid by delivering a share of the crop. (24 Cyc. 1067.) But there are many kinds of contracts under which tenants occupy land and divide the proceeds with their landlords. (24 Cyc. 1464.) The record does not show whether the several tenants of the land in question were operating under a lease where the share of the crop was to be harvested and delivered in payment of rent. The assumption most favorable 'to appellant is that Gertrude Gordon owned that part of the crop which she mortgaged to appellant. We„ will consider the case on that presumption.

Appellant correctly says that the rule is: “That the crops growing upon mortgaged lands are covered by the mortgage, whether planted before or after-its execution, and until they are severed the mortgage attaches as well to the crops as to the land. And if the land be sold for condition broken before severance, the purchaser is entitled to the growing crops, not only as against the mortgagor, but as against all persons claiming in any manner through or under him subsequent to the recording of the mortgage.” (27 Cyc. 1144.) It is also true, as he says, that until foreclosure or possession taken by the mortgagee for breach of condition, the mortgagor is entitled to the crops. But we think he is in error in assuming from this undoubted statement of the law that the mortgagor in possession before condition broken may, by sale or mortgage, convey to a purchaser or mortgagee a better title to and.greater rights in the growing crops than he, the mortgagor, has. We suppose no one would contend that Gertrude Gordon, had she not mortgaged the corn in question, could have prevented the receiver from taking possession of it and converting the proceeds under his receivership. It is no doubt true that the receiver acquires only the right of the mortgagor in the property, but it is equally true that a mortgagee can take no better title than the mortgagor himself had. It is said in 27 Cyc. 1729: “It has been held," however, that there must be an actual severance of the crop, and that the mortgagor cannot defeat the right of the foreclosure purchaser to the crop by selling it, without cutting, before the foreclosure, nor by giving a chattel mortgage on it.” While the author states this proposition as though there might be doubt about it, he cites Rankin v. Kinsey, 7 Ill. App. 215, among other cases supporting that doctrine, and the case supports the text. It was reaffirmed by the same court in Sugden v. Beasley, 9 Ill. App. 71, 77: “That if the land be sold for condition broken before severance, the purchaser will be entitled to the growing crops, not only as against the mortgagor, but against all persons claiming in any manner through or under him subsequent to the recording of the mortgage.” And again in Yates v. Smith, 11 Ill. App. 459, the same court, by the same judge, affirmed the right of the purchaser at a foreclosure sale against all persons claiming in any manner through or under the mortgagor subsequent to the recording of the mortgage, citing many authorities. It was held in Anderson v. Strauss, 98 Ill. 485, that while between the parties to a judgment the seizure and sale of growing wheat upon execution issued upon the judgment will constitute a severance of the crop from the realty, yet as to a grantee in a deed of trust given by the execution debtor before the execution became a lien, such seizure and sale will not work a severance, and that the purchaser at the sheriff’s sale takes subject to the rights of the grantee under the trust deed, which will not be cut off or affected by such sale. If there was no severance of the crop before the receiver was appointed in the present case, there is no question under the authorities that the court was right in dismissing appellant’s petition. Authorities may be found to the effect that a sale or mortgage of a growing crop works a severance and is to be treated as such on contest between the purchaser, or mortgagee of the crop, and the holder of the real estate mortgage on the land. But we are referred to no case in this State so holding, and know of none, and it seems inconsistent with the rule announced in Anderson v. Strauss, supra. We are of the opinion that the court did not err in dismissing the petition, and that .the order and judgment should be affirmed.

Affirmed.


text:
    Richard J. Blemaster, Appellee, v. Thomas Rockey, Appellant.
    Gen. No. 6,149.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Stephenson county; the Hon. Richabd S. Fabbatto, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Rehearing denied May 24, 1916.
    Statement of the Case.
    Action in assumpsit by Richard J. Blemaster, plaintiff, against Thomas Rockey, defendant, to recover the market value of his equity in residence property conveyed to defendant under an alleged oral agreement claimed to have not been performed on defendant’s part. From a judgment for plaintiff, defendant appeals.
    In November, 1910, the plaintiff purchased from the defendant a residence property in the City of Free-port, and in consideration therefor conveyed him an equity in an eighty acre tract of land in Michigan, and paid him $3,300. Plaintiff obtained a loan of the $3,300 by mortgaging the Freeport property. February 21, 1911, he executed a warranty deed of that property to defendant for an expressed consideration of $4,300. This deed was never recorded, and plaintiff testified that it was executed as a security for a $200 obligation incurred for him by the defendant. In May, 1913, plaintiff executed another warranty deed of the premises, which was delivered to the defendant. The consideration expressed in the deed was $4,500, and it recited that the grantee assumed and promised to pay mortgage incumbrances of $3,300 and $100 respectively. Plaintiff’s claim was that this last conveyance was made in pursuance of an oral agreement that he would convey the premises to defendant and pay him $400 in money, and that defendant should assume and pay the mortgage indebtedness and convey to plaintiff the equity in the eighty acre tract of land in Michigan and cancel plaintiff’s two notes of $100 and $200, respectively, which defendant had discounted at a bank; that he executed and delivered the deed and afterwards tendered appellant $400, hut defendant refused to accept the money and refused to convey the Michigan property, and failed or refused to cancel or cause to be canceled the two notes.
    Defendant’s claim was that plaintiff was involved in debts and financial difficulties and he was endeavoring to aid him, and for that purpose took the deed of the Freeport property and assumed the mortgage indebtedness thereon that the creditor might have the benefit of his responsibility; that nothing was said about the Michigan land or about plaintiff’s paying him $400 at that time; that he had at other times offered to convey the Michigan property for $400, and at one time had a deed executed to be delivered on payment of that sum, but the money was never offered him; that he held the deed of the Freeport property as a mortgage and there was never any agreement, intent or purpose that it should operate as a conveyance evidencing a bargain and sale. He did not deny plaintiff’s statement that the prior deed of February 21, 1911, was intended as a mortgage, but insisted that it operated as an estoppel on plaintiff to clhim that the later deed was to convey the title.
    The court, at the instance of the plaintiff, gave the jury the following instruction:
    “You are instructed that if you believe from a preponderance of all the evidence, that the plaintiff and defendant entered into an oral agreement whereby the plaintiff was to convey to the defendant all his interest in the house and lot in question in this suit, and in addition thereto was to pay the defendant the sum of four hundred dollars and in consideration thereof the defendant agreed to convey to the plaintiff a certain eighty acre tract of land in Michigan, and if you further believe, from a preponderance of all the evidence that the plaintiff did convey the house and lot in question to the defendant and in addition thereto offered to the defendant the sum of four hundred dollars legal tender of the United States of America, and if you further believe, from a preponderance of all the evidence, that the defendant refused to convey to the plaintiff the said eighty acre tract of land in Michigan and refused to accept the said sum of four hundred dollars, then you will find the issues for the plaintiff and assess the plaintiff’s damages against the defendant at such sum, if any as you may believe, from a preponderance of the evidence, the fair cash market value of plaintiff’s interest in said house and lot in the city of Freeport, at the time of such conveyance thereof, exceeded the incumbrance thereon.”
    Robebt P. Eokebt, for appellant.
    Elwyn R. Shaw, for appellee.

      Abstract of the Decision.
    1. Estoppel, § 33

      —when giving of deed as mortgage does not estop grantor to claim that later deed not mortgage. The fact that the owner of property gives one deed as a mortgage to cover indebtedness does not estop him from claiming that another deed reciting that the grantee assumes and promises to pay other mortgage incumbrances was not intended as a mortgage.
    2. Mortgages, § 38*—when evidence sufficient to establish absolute conveyance and not mortgage of real property. In an action of assumpsit to recover the market value of an equity in residence property which was conveyed by deed from plaintiff to defendant under an alleged oral agreement not performed by defendant, evidence held sufficient to sustain a finding that the deed was intended as an absolute conveyance of the property as claimed by plaintiff, and not as a mortgage, as contended by defendant.
    3. Damages, § 66*—what is measure of for breach of oral contract to convey property. In an action of assumpsit to recover the market value of an equity in residence property which was conveyed by deed to defendant by plaintiff under an alleged oral agreement by which plaintiff was to convey such property, subject to the mortgages thereon, to defendant and pay a certain sum of money equivalent to three notes against plaintiff which had been held by defendant, but had been transferred to another person, in consideration of the cancellation of such notes and the conveyance of other property, an instruction that if the jury found that the agreement was as stated and defendant refused to perform the contract they should find for the plaintiff and assess his damages at such sum as they believed, from a preponderance of the evidence, the fair market value of plaintiff’s interest in such property exceeded the incumbrance thereon, approved.
    4. Courts, 138*—when cause not transferred to equity side of court. A vendee sued at law for the purchase price of real estate cannot transfer the action to the equity side of the court by pleading and attempting to prove that the deed was given as a mortgage unless he succeeds in establishing the truth of his statements.
    5. Assumpsit, action of, § 6*—when lies to recover value of property conveyed under oral agreement. Where land is conveyed to another under an alleged oral agreement by which the vendor is to convey such property, subject to incumbrances, to the vendee and to pay a certain sum equivalent to outstanding notes of vendor’s in favor of vendee, in consideration of the cancellation of such notes and the conveyance of other property, the refusal of vendee to convey such other property constitutes a termination of the express contract and authorizes an action in assumpsit to recover on an implied agreement.

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

   Mr. Justice Carnes

delivered the opinion of the court.

6. Assumpsit, action of, § 89*—when evidence sufficient to sustain verdict as to value of property. In an action of assumpsit to recover the market value of residence property conveyed to defendant under an oral contract, which was breached by defendant, evidence held sufficient to sustain the verdict as to the value of such property.

7. Appeal and erbob, § 1447*—when error in refusing leave to file special pleas and in sustaining demurrers to special pleas harmless. Any error in an action of assumpsit in refusing defendant leave to file special pleas and in sustaining demurrers to special pleas is harmless where defendant is not deprived in the introduction of evidence, or in the instructions to the jury, of any legal right to which he is entitled under the facts.


text:
    John C. Wallin, Appellee, v. James A. Mitchell, Appellant.
    Gen. No. 6,152.
    1. Roads and bbidges, § 241

      —when instruction on liability for leaving wagon on street misleading. In an action to recover damages for personal injuries sustained as the result of plaintiff's right leg coming in contact with a wagon and rock left upon a street, but off the graveled portion, while riding on a horse, an instruction that if the jury believed from the greater weight of evidence that the defendant placed, caused, or knowingly permitted his wagon to be placed upon the street, or knowingly permitted and suffered such wagon to remain upon said street as charged in plaintiff’s declaration, and that said wagon so being placed or knowingly permitted to remain upon said street was the proximate cause of the alleged injuries to plaintiff, and that plaintiff was injured while in the exercise of due care as the result of such negligence on the part of defendant as charged in plaintiff’s declaration in placing or knowingly permitting said wagon to he or remain upon said street, they should find defendant guilty, held erroneous as tending to mislead the jury into believing that if the wagon was within the street lines it was, as a matter of law, a nuisance.
    2. Municipal corporations, § 887

      —when fitting entire width of road for travel question for local authorities. While a whole street is primarily devoted to public use for travel and to that use all other rights must be subordinate, still, whether it is or not necessary to fit the entire width of the road for travel is usually a question for the decision of the local authorities.
    3. Roads and bridges, § 240*—when question whether leaving of farm wagon within street lines is nuisance is for jury. Whether a farm wagon left within street lines is a nuisance and an obstruction to public travel cannot ordinarily be determined as a matter of law, but should be left to the jury under appropriate instructions to find as a matter of fact.
    4. Trial, § 144*-—-when conduct of counsel improver and ground for reversal. Misconduct of counsel in acting boisterously, coupled with contemptuous treatment of the opposing counsel and witnesses and with disrespect to the court, held ground for reversal.
    5. Roads and bridges, § 239*—when evidence as to disposition of horse admissible on question of contributory negligence of rider. In an action to recover damages for personal injuries sustained as the result of plaintiff’s leg coming in contact with a farm wagon within the street lines, but off the graveled portion, evidence as to the vicious disposition of the horse and its tendency to balk is admissible on the question of due care of the rider.
    Appeal from the Circuit Court of La Salle county; the Hop. Jos A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 14, 1916.
    McDougall & Chapman, for appellant.
    Butters & Clark and H. M. Kelly, 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 Carnes

delivered the opinion of the court.

Appellee, John C. Wallin, and one Pruess, May 18, 1912, after dark, were riding horses along Mill street, a public highway extending through the Village of Utica. Appellee’s right leg came in contact with some object at or near the roadside and was broken. He brought this suit against James A. Mitchell, the appellant, charging that the defendant had left a wagon with a rack on the highway, which was a dangerous obstruction to public travel, and the cause of the injury. He had verdict and judgment for $5,000. The defendant appeals.

Htica is a small village, and the street at- the place in question has the appearance of an ordinary roadway in the country. It is about sixty-six feet wide, with a graveled roadway twenty to twenty-two feet wide in the center, leaving on each side of the graveled way seventeen to twenty feet within the street limits. Appellant was carrying on quite extensive farming operations in that vicinity, and a wagon and rack was left by one of his servants at the roadside the day before the accident. There is a conflict in the evidence whether it was left four or five feet from the graveled way, or entirely in the field beyond the street line, or at some place between those two point's. There were telephone poles at the side of the street, and, as is usual with country roads, the part not graveled did not invite public travel and was not so used.

Appellee’s theory supported by evidence introduced by him is that he was riding along the highway in a reasonable manner; that the comer of the hayrack was within three or four feet of the graveled way; that his horse shied and brought his leg against it.

Appellant’s theory supported by evidence introduced by him is that appellee and his companion, Pruess, were racing on the highway; that appellee was intoxicated and riding a horse that he knew was vicious and likely to leave the road; that the horse bolted at that place and carried appellee beyond the street line where the wagon was left, or if not beyond the street line to a point so near that line that the wagon was not a danger to public travel. The jury had to determine the questions of appellant’s negligence and appellee’s care on very conflicting testimony, and a judgment based on their verdict should not be permitted to stand if there were material errors of law.

The court, at the instance of the plaintiff, instructed the jury: “If they believe, from the greater weight of the evidence, that the defendant placed or caused or knowingly permitted his said wagon to be placed upon the street in question or knowingly permitted and suffered said wagon to remain upon said street as charged in the plaintiff ?s declaration, and that said wagon so being placed or knowingly permitted to remain upon said street, was the proximate cause of the alleged injuries of the plaintiff, and that the plaintiff, without notice or knowledge of the presence of said wagon there upon said street, and while in the exercise of due and ordinary care for his own safety, was injured on account of said alleged negligence on the part of the defendant as charged in plaintiff’s declaration, in placing or knowingly permitting said wagon to be and remain upon said street, then the jury should find the defendant guilty.”

In the above instruction “knowingly permitted the wagon to remain in the street” is qualified by the words “as charged in the declaration,” but “knowingly permitting the wagon to be placed upon the street” is not so qualified. If the wagon was within the street lines a very material question was whether it was at such a place as to obstruct travel. The jury were likely to understand from the instruction that if the wagon was within the street lines it was, as matter of law, a'nuisance, the instruction should not have been given in that form.

While the whole way is primarily devoted to public use for travel and to that use all other rights may be subordinate, still whether it is or not necessary to fit the entire width of the road for travel must, in the great majority of cases, be a question for the decision of the local authorities. (Elliott on Eoads and'Streets, section 491, citing English v. City of Danville, 170 Ill. 131.)

Many things may be'authorized by proper municipal authorities, which, to a greater or less extent, interfere with the free and entire use of the street, which, if not so authorized would be deemed nuisances. Custom or usage may sometimes sanction an act which would otherwise be deemed a nuisance and relieve it from that construction, McDonald v. English, 85 Ill. 232, 235, citing Nelson v. Godfrey, 12 Ill. 20, where the court said on page 23 in speaking of the right of an abutter to excavate under the sidewalk for a coal cellar: “As such a privilege is of great convenience in a city and may, with proper care, be exercised with little or no inconvenience to the public, we think that authority to make such cellars may be implied in the absence of any acts of the corporate authorities to the contrary, they having been aware of the progress of the work.” The latter case is cited in McCormick v. South Park Com’rs, 150 Ill. 516, 529, where the court said: “Undoubtedly, the owners of lots bordering upon streets or ways have the right to make all proper and reasonable use of such part of the street for the convenience of their lots, not inconsistent with the paramount right of the public to the use of the street in all its parts. (Smith v. McDowell, 148 Ill. 51, and cases cited.) In the absence of legislative direction or municipal declaration of what such rights shall be, what is to be deemed a reasonable and proper use will depend, in a large degree, upon the public usage in like instances, and upon the local situation. General use by lot owners, and acquiescence therein by the public and private authorities, may always be resorted to as evidence of what is a reasonable and proper use and of the existence of the right.” 'In Gregsten v. City of Chicago, 145 Ill. 451, 461, it is said: “It is the general doctrine that municipalities, under the power of exclusive control of their streets, may allow any use of them consistent with the public objects for which they are held.” Authorities are collected in Sears v. City of Chicago, 247 Ill. 204, 216, where it is said: “Whatever may be the rule in other jurisdictions, the law is settled in this State that a city may, under the power of exclusive control of its streets, allow any use of them which is not inconsistent with the public objects for which they are held.” In People v. Marshall Field & Co., 266 Ill. 609, 623, the court, citing authorities said: “That the owner of abutting premises may make a reasonable use of the street to convey goods from his premises, and for that purpose may place temporary obstacles to travel, such as skids, across the sidewalk.” It is clear from the above authorities that whether a farm wagon left within street lines is a nuisance and obstruction to public travel cannot ordinarily be determined as matter of law, but should be left to the jury under appropriate instructions to find as a matter of fact.

Appellant well says that the court erred in not permitting him to prove the character of the horse that appellee was riding after permitting appellee to testify to its disposition. If the horse was vicious and liable to bolt to the side of the street and appellee knew it before he attempted to ride him at that time and place, that fact had some bearing in the consideration of appellee’s exercise of care in the manner he was riding.

What, however, seems to us the most serious objection is that appellee’s counsel conducted themselves improperly in the trial of the cause. There was much tumult and confusion in the introduction of the evidence, and while ordinarily that is a matter in which the judgment of the trial court should not be reversed because he is in much better position than the reviewing court to know the provocation for doing the things complained of, and the effect upon the jury, still, in this case, the record shows a failure of appellee’s eoun-. sel to observe rules necessary to a fair investigation of a controversy in a court of law that should not be excused. During the examination of witnesses one of appellee’s attorneys said “bosh” to a ruling of the court against him. At another time he, without apparent provocation, told opposite counsel to “shut up. ’ ’ Much occurred that might well be expected from an attorney trying a law suit in the mood that these expressions indicate. His associate was not free from criticism in the manner in which he cross-examined witnesses. The court, at times, admonished counsel with little effect. They excuse themselves here by suggesting the zeal that overcomes attorneys in the quest of truth and desire to suppress falsehood. Good trial lawyers often see their own side of the case very strongly, and in the heat of a jury trial are not able to judge calmly of what the fact is, and what the law is. Witnesses testify to the facts as they understand them, perhaps mistakenly. Opposing counsel contend for the law as they understand it. The jury listen to the facts. The court rules on the law. All parties are entitled to courteous treatment, and nothing is more likely to defeat the ends of justice in the trial of a case than boisterous conduct of counsel, coupled with contemptuous treatment of opposing counsel and witnesses, and disrespect to the court. The fact that counsel for appellee in this case are experienced lawyers and courteous gentlemen, ordinarily conducting themselves with propriety in the trial of cases, should not have deterred the trial court from enforcing order in the court room, and should not influence us to refuse to let a judgment stand that there is much reason to suppose was influenced by such misconduct.

Other errors are assigned and argued. They are of minor character, and, if errors, will probably not occur on another trial. For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Herbert Heater, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 6,160.
    1. Roads and bridges, § 11

      —when way by prescription over railroad right of way established. To establish a public highway by prescription across a railroad right of way connecting the divided portions of a public street, the use of the. public must have been adverse, under claim of right, continuous, uninterrupted, with the knowledge of the owner of the estate, and not with the mere acquiescence of the owner, and it must appear that a certain and well-defined line of travel existed over the property for fifteen years.
    2. Dedication, § 9*—when dedication of way over railroad tracks not established. A dedication of a way over railroad tracks connecting the divided portions of a street is not established when it appears that the space is used for switching purposes and the railroad company has simply acquiesced in the use of the tracks as a way by the public.
    3. Roads and bridges, § 21*—what does not constitute admission as to existence of street over railroad right of way. A railroad company which, with other companies occupying parallel tracks, merely accepts an ordinance purporting to vacate a portion of a public street which the railroads’ rights of way intersected, as a. part of an arrangement by the city to elevate the tracks, does not admit that a street formerly existed over its portion of the right of way at the time of an injury to a pedestrian using such alleged street.
    4. Roads and bridges, § 23*—when evidence insufficient to show existence of highway over railroad right of way. In an action by a pedestrian for damages for personal injuries sustained by a pedestrian while attempting to cross railroad tracks at a point connecting two divided portions of a public street, over which the public had been accustomed to pass, evidence held insufficient to establish that plaintiff was injured on a public street.
    5. Railroads, § 516*—what duty owed to licensee on right of way. A mere licensee has no greater rights on a railroad right of way than a mere trespasser, and the only duty the railroad company owes him is not to wilfully or wantonly injure him.
    6. Appeal and error, § 1300*—when presumed that record contains all producible evidence as to existence of way across railroad right of way. Where no street existed at the time of the establishment of a railroad right of way, and there is no evidence in the record that the railroad company consented or acquiesced in the establishment of a way over its right of way connecting the divided portions of a public street, it will be presumed on appeal that the record contains all the evidence that could be produced tending to show such consent or acquiescence.
    7. Appeal and error, § 1802

      —when cause reversed without remanding. Where the record in an action by a mere licensee for damages for personal injuries sustained while attempting to cross a railroad track presumptively contained all the evidence as to the existence of a way by prescription over the railroad right of way and it was insufficient to establish such- way, and there was no evidence that the defendant wantonly or wilfully injured the plaintiff, held that the cause should be reversed without remanding.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed April 14, 1916.
    J. L. 0 ’Donnell, T. F. Donovan and J. A. Bray, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Kelly & Orr, for appellee; Paul E. Prutsman, of counsel.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

September 27, 1905, appellee, Herbert Heater, then a boy thirteen years old, while walking across the tracks of the Chicago & Alton Eailroad Company, the appellant, was struck by an engine backing towards him. His right leg was cut off below the knee and he was otherwise seriously injured. About eight years later, after he became of legal age, he brought this suit to recover for that injury, and filed a declaration of four counts, each drawn on the theory that he was struck while upon a public street of the City of Joliet. The charges in different counts are negligence, in general terms, in operating the engine upon said street, failure to comply with an ordinance of the city requiring that a man be stationed at the end of an approaching car to warn people of danger, and another ordinance of the city requiring the right of way of a railroad to be planked where it crosses a street, and suitable grade approaches at the crossing of streets. The general issue was pleaded. A jury trial resulted in a judgment for plaintiff for $1,500. The defendant prosecutes this appeal.

The controlling question is whether appellee was, at the time and place in question, upon a public street, whether he was rightfully at the place, or was a trespasser or a licensee to whom appellant owed no duty except not to wilfully injure him.

Appellant’s railroad runs practically north and south through the City of Joliet. It was constructed in 1853. About 1887 the Santa Fe railroad was built with its right of way adjacent to and just east of appellant’s. At the time of the accident there was, so far as a view of the ground would show, a public street known as Third avenue, beginning about three-quarters of a mile east of the right of way of these two railroad companies, traveled by vehicles and pedestrians to a point about half a block east of the Santa Fe right of way. Proceeding west there was no visible sign of a street, but there was an embankment from six to ten feet high upon which were laid, first, two tracks of the Santa Fe road, then five tracks of appellant’s road, being appellant’s two main tracks and three switch tracks. The right of way of the two roads combined was about one hundred fifty feet wide, perhaps one hundred feet used for these seven tracks. There were across this right of way marks of foot travel which some of appellant’s witnesses say amounted to a beaten path connecting the two ends of Third avenue. The greater weight of the testimony shows that there were footprints in various directions above and below, as well as on the space indicated by an extension of the street lines, with no visible defined path connecting the ends of the street. There had been no attempt by the railroad companies to treat the space as a street by way of marks, or signs, or grading, or planking between their tracks, or in any other manner. The space was used by appellant for switching purposes, as well as for the passage of its trains on its main line, and had the general appearance of a railway yard maintained and operated with no reference to public travel therein or thereon. No evidence was introduced that it had ever been dedicated as a public street by a plat or other writing. It is clear that it was not used, and could not be used, for the passage of vehicles, and also clear that there had been some foot travel across the right of way by people approaching from one side or the other on Third avenue, sometimes going straight across and sometimes up and down the tracks. But Third avenue at these adjacent points was not much traveled.

Appellee at the time in question was approaching the right of way from the east on Third avenue. He went up the embankment and proceeded to cross the tracks. After he had crossed the Santa Fe rails and reached appellant’s switch track he says he saw an engine north of him headed north, and supposed it was moving north. In fact it was backing south pulling a string of cars from the north. He says he stumbled on one of the rails of appellant’s switch track and fell, and the wheels of the tender passed over him cutting off his right, foot; that he caught a bar of the engine underneath; that the engine backed south to or near Fourth avenue and then returned and came back nearly to Third avenue, when he attracted the attention of the crew by his cries and he was taken out. None of the engine crew saw him until after they heard his cries. They stopped south of the south line of Third avenue as they were going north and took him from under the engine; found that his leg had been cut off and went back south about one hundred fifty feet and found the foot and signs of blood and shreds of clothing at that point, and no signs of blood on the track north of where the foot was found. Appellee was probably not within the extension of Third avenue at the time he was injured, but as he testifies •that he was in that space at the time he was struck, it is necessary to inquire whether Third avenue can reasonably be held to extend across the right of way. Appellee bases his claim that it did, on the argument that there was a user that established a way by prescription. There is some evidence, as we have before said, that there was sufficient travel from east to west on that space to make a visible beaten path, but the decided weight of the testimony, even that offered by appellee, is that there was no such visible beaten path. It is true, we presume, that a prescribed right of travel across a railway right of way might arise as across other private property, but a prescriptive right could not come from a permissive use. Mere travel by the public is not sufficient to establish a prescriptive right as a user. It must be under a claim of right by the public and not by the mere acquiescence of the owner. (Palmer v. City of Chicago, 248 Ill. 201.) Neither can appellant be supposed to have dedicated the strip to public travel because of mere acquiescence in the use here shown for that purpose. (Id.) It is clear, from the use that appellant devoted this space to as a yard for switching cars, that it never intended it to become a public street, and without that intention it cannot be said to have devoted it and dedicated it to that use. (City of Chicago v. Wildman, 240 Ill. 215.) To establish a public highway by prescription the use of the public must have been adverse, under nlflim of right, continuous, uninterrupted and with the knowledge of the owner of the estate. Occasional travel, such as is shown here, is not sufficient. (Id.) It must appear that a certain and well-defined line of travel has existed over the property for fifteen years. (City of Chicago v. Galt, 224 Ill. 421; Doss v. Bunyan, 262 Ill. 101,108.)

Some time after the accident in question, track elevation ordinances were passed by the City of Joliet and certain portions of streets were vacated to enable appellant and several other railroad companies to elevate their tracks in accordance with the provision of the ordinance. Appellee offered in evidence an ordinance of the City of Joliet which purported to vacate a part of Third avenue beginning a few feet east of the Santa Fe right of way and ending a few feet west of appellant’s right oí way, with proof that appellant accepted this ordinance as a part of its arrangement with the city to elevate its tracks, and argues that this action of appellant is an admission that Third avenue did, before the vacation ordinance, extend across its tracks. Only the ordinance mentioned appears in the record here, but the acceptance offered in evidence was by appellant, the Santa Fe road, and four other railroads. We assume that it was a part of the general plan of track elevation in the city, and that this particular piece of ground was a comparatively small incident. It appears that some time before the accident the city authorities of Joliet had endeavored to make appellant prepare the crossing at that place for public travel, and appellant bad successfully resisted. It may well be that any road, wishing to use this space in elevation of its tracks, would desire to relieve the situation of any claim, however unfounded, that there was a public street there. But whatever the motive may have been, it is not reasonable to suppose that appellant intended by joining in the acceptance of the ordinance to admit that there was a public street there. The transaction could only be given that effect and meaning- by a strained, technical construction, which might be well answered by saying that an admission by appellant some time after the accident that a street existed there at the time of the admission did not mean that it existed at the time of the accident.

We conclude that the record entirely fails to show that appellee was on a public street or highway at the time in question, and that the only reasonable construction of the evidence is that he was on the private right of way of appellant. It does not matter so far as the decision of this case is concerned whether he was there as a trespasser or a mere licensee. A mere licensee has no greater rights than a trespasser. The only duty which appellant owed him was not to wilfully or wantonly injure him. (Cunningham v. Toledo, St. L. & W. R. Co., 260 Ill. 589). There is no charge in the declaration, nor claim in the argument, that the action of appellant was wilful and wanton, and we see no ground for such claim. The judgment must be reversed.

We see no reason to suppose that proof could be introduced on another trial showing the space in question to be a public street. There was no street there at the time appellant secured its right of way, nor could have been created there after the time without the consent or acquiescence of appellant, and we presume the proof in this record is all that could be produced tending to show such consent or acquiescence. Therefore the cause is not remanded.

Reversed with finding of facts.

Finding of facts. We find that the place where the injury occurred was not a public street and that the plaintiff in error was not guilty of the negligence charged in the declaration.


text:
    Evalyn Kingman, Appellee, v. Louis Kingman, Appellant.
    Gen. No. 6,178.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divobce, § 109

      —what orders relative to. alimony may he made. The court may, from time to time, make such orders as to the amount of alimony that shall be paid as the exigencies of the • case require.
    2. Divobce, § 110*—when amount of alimony properly reduced. Where, owing to financial reverses, the defendant’s income had been very much reduced, alimony was reduced from $20 to $5 per week, and an order committing him for contempt for not paying alimony past due, reversed.
    3. Divorce, § 110*—when refusal to reduce alimony erroneous. Refusal of the court to reduce alimony because the defendant was in contempt for failure to pay alimony past due, held error.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodobe N. Green, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Petition filed by Evalyn Kingman, petitioner, against Lonis Kingman, respondent, asking for a rule to show cause why the respondent should not be ■ attacked for contempt of court for refusal to pay alimony. From an order entered against him, the defendant appeals.
    Evans & Evans, for appellant.
    Robert H. Lovett and Weil & Bartley, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Carees

text:
    Matthew Donaghue, Appellee, v. Edward J. Fraikin, Appellant.
    Gen. No. 6,192.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Rehearing denied May 12, 1916.
    Statement of the Case.
    Action by Matthew Donaghue, plaintiff, against Edward J. Fraikin, defendant, to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.
    Matthew Donaghue, the plaintiff, was riding along a public highway north of Ottawa just after dark July 9, 1909, driving a single horse attached to a top buggy. He was in a beaten path a little to the side of the center of the road because the center had been recently graded. As he was passing the premises of Edward J. Fraikin, the defendant, his buggy ran over a cow lying in the road and was overturned. Plaintiff was injured quite seriously. Both bones of his ankle were broken,—a compound, comminuted fracture. He was confined to his house for a long time, suffering considerable pain and incurring considerable expense for doctors’ bills. His injuries were-to some extent permanent. He brought this action to recover for that injury, and had verdict and judgment for five hundred dollars.
    The issues of fact were stated to the jury at the instance of the defendant in the following instructions:
    “The court instructs the jury that before they can find the defendant guilty, they must believe, from a preponderance of the evidence,
    “First, that the plaintiff received the injuries complained of by him by having his buggy upset or overturned by a cow lying in the public highway ;
    “Second, that the plaintiff himself was not guilty of a want of ordinary care for his own safety;
    “Third, that the defendant was the owner of said .cow;
    “Fourth, that the defendant carelessly, negligently or unlawfully permitted said cow to run at large on said public highway; and,
    “Fifth, that the injury to the plaintiff was one which an ordinary prudent person should have foreseen would likely happen as a consequence of permitting a cow to run at large on a public highway, and unless the jury find from the evidence that the plaintiff has proved each of said requirements by a preponderance of the evidence, the jury should find the defendant not guilty.”
    The evidence sustained affirmative findings on the first and second propositions. There was a decided conflict of evidence as to the third whether the defendant-was the owner of the cow. The evidence showed that he had a number of cows kept on his premises; that at different times before the accident they had been pastured in the road. One witness that appeared at the scene of the accident immediately after it happened testified that there were two cows in the road there that he had before seen in defendant’s herd. The doctor that was called to the place said that defendant then and there said he felt sorry to think it was his cow that was the cause of plaintiff’s breaking his leg. It was so dark that plaintiff did not identify the cow at the time of the accident, but he testified that he had a conversation with defendant afterwards in which defendant told him that after taking him, plaintiff, home that night he saw two of his cows coming down the road from the north.
    George P. Hills and Butters & Clark, for appellant.

      Abstract of the Decision.
    1. Animals, § 43

      —when evidence sufficient to show ownership. In an action for personal injuries sustained by the plaintiff as a result of his driving over a cow lying in a highway, evidence held sufficient to sustain a finding that the cow belonged to the defendant.
    2. Animals, § 42*—when evidence of custom in allowing animals to run at large admissible. In an action for personal injuries sustained as a result of the plaintiff running over the defendant’s cow lying in a highway, where the defendant claimed that a cow which had escaped from its inclosure without the owner’s fault was not running at large within the meaning of J. & A. If 322, evidence of a custom of the defendant to permit his domestic animals to run in the highway, and that they had been seen there unattended shortly before the accident, held admissible on the question of knowledge and care of defendant.
    3. Animals, § 14*—when allowing to run at large constitutes negligence. A cow permitted to run at large in a public highway in the nighttime may be reasonably expected to lie down in the road and' become a danger and menace to travel.
    4. Roads and bridges, § 241*—when modification of instruction as to contributory negligence of driver of horse proper. In an action for personal injuries resulting from the plaintiff driving over a cow lying in the highway, a modification of an instruction that the plaintiff could not recover if he “could by the exercise of reasonable and ordinary care have so driven his horse and buggy prior to and at the time in question as to have avoided the accident,” by inserting the word “just” before "prior,” held proper and not to exclude consideration of the question whether the plaintiff was intoxicated, since if he could not have seen the cow because he was intoxicated he would not have been exercising due care.
    E. C. Swift and L. W. Brewer, for appellee.

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

   Mr. Justice Carees

delivered the opinion of the court.


text:
    Ellen H. Laughlin, Appellant, v. William G. Dalton, Appellee.
    Gen. No. 6,200.
    1. Frauds, statute of, § 3

      —when promise to repay money loaned to promisor’s wife within statute. A promise to repay money loaned to the promisor’s wife to pay a hill, held within the Statute of Frauds and unenforceable in the absence of a new consideration moving to the promisor.
    2. Assumpsit, action of, § 89*—when evidence insufficient to sustain judgment for plaintiff in action on promise to pay debt of another. In an action based on the promise of one to pay the debt of another when he should be able, held that a judgment for the plaintiff could not have been sustained in the absence of proof that the defendant was able to pay the debt when the action was brought.
    3. Husband and wife, § 75*—when husband not liable for money loaned to wife. A husband held not liable for money loaned to his wife to pay a butcher’s bill so as to facilitate the husband’s obtaining a loan.
    Appeal from the County Court of Lake county; the Hon. Persy L. Persons, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    John W. Welch and George E. Phillips, for appellant.
    Ernest S. Gail, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellant, Ellen H. Laughlin, sued the appellee, William G. Dalton, the husband of her deceased sister, in a justice court to recover one hundred dollars which she loaned his wife, her sister, in her lifetime. The ease was tried in the County Court on appeal. At the close of the plaintiff’s evidence, the court directed a verdict for the defendant and entered judgment thereon, from which this appeal is taken.

The court excluded a letter offered by the plaintiff in evidence and error is assigned thereon. We will consider the evidence, including that letter, in determining whether a verdict could reasonably be found for the plaintiff.

Appellant testified that in November, 1912, she sent, or caused to be paid to her sister, one hundred dollars; that her sister died February 8, 1913, and at the time of her death was living with appellee at Lake Forest, Illinois; that she received a letter from her sister November 8, 1912, in which she, the sister, was speaking of a loan that her husband was about to obtain from a bank, and said she was afraid the bank would inquire if the bills were paid, and if they learned they were not they might refuse the loan, and that she had asked “Rosie” to get the money from appellant until everything would be settled down again and then she would pay it back, but that Rosie said she could not get it on appellant’s book and gave it to her from her own, and she would pay Rosie as soon as the house was settled. This is the letter that was excluded, and if material at all it is because it tends to show the purpose for which the money was desired. It is not clear how this transaction developed into the one hundred dollar loan in question here, but it does appear that appellant loaned her sister one hundred dollars in November and that the money was used to pay a butcher’s bill, and there is an inference in the testimony that the butcher’s bill was a family expense that had been incurred before the payment. Appellant testified that she did not loan the money to appellee and never told him of the transaction during the life of her sister, but that immediately after her sister’s death appellee spoke to her of bills that he had to pay and she said to him: “ ‘You can’t be so much in debt, because I gave you one hundred dollars to straighten out all those debts,’ and he said, ‘You did,’ and I said, ‘Yes, I did,’ and he said, ‘Well, I will see that you get your money back, Ellen,’ and I said, ‘I did not ask for the money, but I can’t understand how you are so much in debt, ’ and he said, ‘ That is all right, you need your money and I will see that you get it.’ ” She introduced in evidence a letter afterwards written by appellee apparently to her and signed by him after calling appellee to the stand to identify the letter and his testifying that he wrote it but never sent it to her, in which letter is said: “As for the money you claim Delia owed you, it will be impossible for me to pay it for some time. I have drawn notes to settle other accounts which I had to settle or have suit started against me, and still owe the doctors, all three, but it will all have to wait until I can get it, so there is no use of you making a special trip to see me.” The foregoing is all the testimony upon which appellant' can rely for a recovery.

The one hundred dollar loan was unquestionably made to appellee’s wife and not to him. It was therefore the debt of “another” and appellee’s promise to pay it was within the Statute of Frauds. We see nothing in the facts to remove it from the operation of that statute. It is said in 20 Cyc. 188:

“A promise to pay the debt of another is within the statute unless it is founded on a new and independent consideration passing between the newly contracting parties and independent of the original contract. In the absence of such a consideration the promise is collateral.”

That is a fair statement of the law as held in Illinois. (Eddy v. Roberts, 17 Ill. 505; Resseter v. Waterman, 151 Ill. 169; Borchsenius v. Canutson, 100 Ill. 82, 92.) A collateral promise whether made before or after or contemporaneous with the promise of the primary or original debtor is void unless in writing. (20 Cyc. 163.) The above statement of the law as to the effect of a consideration in taking the case out of the statute seems to dispose of any query that may arise under the facts in the present case, whether the fact that the one hundred dollars was borrowed and used to pay a debt for which appellant was liable would furnish a consideration to support his oral promise to pay it. There was no “new and independent consideration” to support the promise. If we read the letter signed by appellee as a promise to pay if he became able, it still would not support a judgment, because there is no proof that his condition had changed, or that he was able to pay the debt when the suit was brought.

Appellant cites a number of authorities from other jurisdictions to support the proposition that: “Money loaned to a wife when its application can be traced to the purchase of necessaries, is necessaries for which the husband is liable.” There is an interesting field of inquiry presented in that statement; but assume it to be the law without qualification, still we do not see its bearing on the question here. If a husband fails to supply his wife with necessaries she may, while cobabitating with him, or upon his desertion of her, bind him by her contracts with third persons for such purpose. (21 Cyc. 1216.) But there is no proof or inference in the record that appellee failed to provide his wife with necessaries. No proof that the butcher’s bill was for articles furnished that would fall within the meaning of the term “necessaries.” It may or may not have been for necessary food for the family. Assume that it was, still this action is not for necessary food furnished the wife. It is not even.for money required to pay a bill that would enable the wife to procure necessary food. It is for money loaned to pay a debt and keep the husband’s credit good enough so he could obtain a loan from a bank for another purpose, probably the purchase of a home.

Appellant argues that section 15 of chapter 68 of our Revised Statutes (J. & A., vol. 3, j[ 6152) in some way aids in making appellee liable to pay the debt. We do not see the application. This statute makes the “expenses of the family” chargeable upon the property of both husband and wife and provides that they may be sued therefor jointly or separately. If . the debt paid with the one hundred dollars loaned was for a family expense it was one for which appellee and his wife were liable, and appellant would have no greater rights than if it paid a debt for which appellee was liable. It is not argued, and we see no ground for argument, that from the mere fact that a party desires to pay the debt of another and borrows the money from a third party for that purpose and pays the debt, that an action at law can be maintained by the party loaning the money against the original debtor to recover the amount so loaned and used. It still remains the debt of the party borrowing the money and not of the party whose debt was paid. And whatever the law may be as to the liability of a husband for money loaned Ms wife to purchase necessaries or to purchase articles for family use, we see no right of recovery here, and conclude that the trial court did not err in directing a verdict for the defendant. The judgment is affirmed.

Affirmed.


text:
    Mueller Grain Company, Appellee, v. Chicago, Peoria & St. Louis Railroad Company, Appellant.
    Gen. No. 6,209.
    1. Commerce, § 5

      —what is effect of Carmack amendment to Interstate Commerce Act. Since the passage of the Carmack amendment to the Interstate Commerce Act, State legislation, regulations and policies, concerning interstate commence, are superseded and controlled by such act.
    2. Negligence, § 191*—when question of law. When there is no doubt about whether or not an act is negligent, such question becomes one of law.
    3. Negligence, § 51*—when recovery may be had for damage caused by act of Cod. Recovery may be had for damage caused by act of God where, but for the negligence of the defendant, such damage would not have occurred.
    4. Carriers, § 114*—when liable for loss of goods by flood due to failure to transport promptly. In an action for damages to a shipment caused by a flood, a recovery held proper where evidence showed that but for a delay in transportation the shipment would not have been so damaged, and there was no evidence that the carrier was not negligent in failing to promptly transport.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Stevens, Miller & Elliott, for appellant; Wilson, Warren & Child, of counsel.
    Clarence W. PIeyl and Harry C. Heyl, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of1 the court.

March 7, 1913, Mueller Grain Company, appellee, shipped a carload of oats on the appellant’s railroad billed “rush time freight shipment,” to Altoona, Pennsylvania, a distance of about seven hundred miles. The ordinary time required for the arrival of such freight at that destination was about seven days. The car arrived at Dayton, Ohio, March 24,1913, seventeen days after the shipment, on its way to its final destination. Flood conditions at Dayton were at that time bad and became worse for several days, and it was impossible to remove the car until the water went down, at which time it was found that the oats were wet and damaged. This action was begun before a justice of the peace to recover for that loss and tried on appeal in the Circuit Court, appellee’s theory being that appellant was liable for unreasonable delay of the car while en route and for placing the car in Dayton, Ohio, in the railroad yards at a point where the carrier knew the car would be in danger because of the flood; that notwithstanding the actual damage from the flood was the act of God, the defendant because of such negligence was liable. Appellant defended on the theory, as expressed by it in its brief here, that: “A carrier is not liable for a loss of property in shipment through an act of God which could not reasonably have been foreseen, although but for its previous negligence, by which the shipment was delayed, the property would have escaped the danger and the loss would not have occurred.” The court adopted appellee’s theory of the law in its instructions to the jury, and there was a verdict and judgment for the plaintiff of $160.60, from which judgment the defendant appeals.

Appellant correctly says that: “Since the Carmack amendment to the Interstate Commerce Act, State legislation, regulations and policies are superseded and controlled by the Interstate Commerce Act.” Michelson v. Judson Freight Forwarding Co., 268 Ill. 546. Appellant says that decisions of the United States Supreme Court are controlling, and relies on Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co., 210 U. S. 1, to sustain its proposition of law that a carrier is not liable for loss occasioned by an act of God notwithstanding its previous negligence exposed the goods to the danger. We regard that case as decisive authority to the contrary. The court was there considering the loss of some cattle occasioned by the flood that engulfed portions of Kansas City in May and June, 1903, and after disposing of a question of practice devoted eight pages of the opinion to a statement of facts to determine whether or not any negligence of the defendant contributed to the injury, and discussed the claim of the plaintiff that the defendant was guilty of negligence in locating the cattle in that field of danger at that time, and concluded that there was an entire absence of all negligence in selecting the route and that there was no evidence of negligence that would justify the submission of the case to a jury. It is very plain that the question whether the defendant’s negligence had contributed to the proximate cause of the injury complained of was regarded by the court as controlling, and the fact that the court concluded there was no such negligence, and no evidence of such negligence that required a submission of the question to a jury, certainly furnishes no ground for refusing to consider the question of defendant’s negligence in another case. Negligence is always a question of fact, unless like any other question of fact it becomes so certain that there was or was not negligence that there can be no reasonble dispute about it, then, like any other question of fact, it may be treated by the courts as- matter of law. There was no negligence of the carrier in the case of. Kansas City flood, therefore the loss was by the act of God. If there was no negligence of appellant that contributed to the proximate cause of the injury, the loss in this case by the Dayton flood was by the act of God. Under the title “Act of God,” 1 Corpus Juris, page 1172, the authorities are very thoroughly collected and discussed, and it is there said on page 1174: “The principle embodied in all the definitions is that the act must be one occasioned exclusively by the violence of nature and all human agency is to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God.”

There was no effort in the court below to show that the defendant was not negligent in failing to ship the car to its destination in a reasonable and ordinary time. The delay in shipment was sufficient evidence of negligence of the defendant to require a submission of that question to a jury. But for that delay tie oats would not have been damaged, therefore, under the authority of the Federal courts and what seems to be a general rule of law (Sandy v. Lake Street El. R. Co., 235 Ill. 194, 202), we are of the opinion that the court did not err in construing the law, therefore the judgment is.affirmed.

Affirmed.


text:
    John D. Connors, Appellant, v. Henry Winke, Appellee.
    Gen. No. 6,219.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. New trial, § 52

      —when proper because verdict against evidence. "When the weight of evidence is clearly and manifestly against the verdict, it is the duty of the trial court to grant a new trial, failing in which the judgment will he reversed upon appeal.

      Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by John D. Connors, plaintiff, against Henry Winke, defendant, to recover for injuries to his automobile. From a judgment for defendant, plaintiff appeals.
    John D. Connors and Henry Winke were riding on a public street in the City of Joliet, each driving his own automobile. They met at the intersection of another street, and there was a collision in which plaintiff’s car was injured.
    Each of the parties testified on the trial, and made it quite plain that he was driving his car slowly and with care, and the other party was driving in a reckless manner and entirely responsible for the collision. Each party was corroborated by other witnesses, and there was a conflict of evidence as to what happened, and where and why.
    E. Meers, for appellant.
    Garnsey, Wood & Lennon, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

2. Evidence, § 315*—what is purpose of documentary evidence. Photographs, diagrams and drawings are often proper, not as evidence within themselves, hut for the purpose of enabling the jury to understand and apply the testimony.

3. New trial, § 79*—when motion for on ground of newly-discovered evidence properly denied. A motion for a new trial on the ground of newly-discovered evidence, held properly denied where no reason was given why certain witnesses, whose testimony was relied on, were not produced at the trial.