text:
    Martin Ryan, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,498.
    1. Verdicts—when not disturbed. Notwithstanding the record shows manifest contradictions a judgment will not be set aside if the Appellate Court cannot say that the verdict is not sustained by the evidence.
    2. Verdicts—when not excessive. Held, in an action on the case for personal injuries that a verdict for $1,500 was not excessive where it appeared that the plaintiff, a child of 11 years, suffered severe injuries to his stomach and spleen resulting in his growth being stunted and causing impaired nutrition.
    3. Evidence—what questions immaterial. Various questions set forth in the opinion bearing upon the question of the injury complained of, considered, and held immaterial.
    4. Instructions—what upon preponderance of evidence will not reverse. Notwithstanding the ensuing instruction has often been criticised, it has been uniformly held that its giving does not constitute reversible error.
    "The court 'instructs the jury that while as a matter of law the burden of proof is upon the plaintiff, and it is for him to prove his case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it will be sufficient for the jury to find the issues in his favor.”
    5. Instructions—when upon condition of sidewalk properly refused, If the evidence is disputed that for at least six weeks before an accident the sidewalk in question had been out of repair, it is proper to refuse an instruction based upon the hypothesis that at the time of the injury the sidewalk appeared to be in proper and safe condition.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. James W. Craig, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 16, 1911.
    Edward J. Brundage and John R. Caverly, for appellant.
    John C. King and James D. Power, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

On the 19th of December, 1908, appellee recovered a judgment in the Circuit Court of Cook County, against appellant, for $1,500. The declaration charged that Martin Ryan, then about eleven years of age, was injured by falling through a hole, caused by the absence of one or two planks from a sidewalk on the north side of Forty-third place, west of Princeton avenue, in the City of Chicago. The accident is said to have occurred about eight o’clock the evening of June 19th, and the defect in the sidewalk is said to have existed for a period of from six weeks to two or three months. It was claimed that plaintiff suffered severe injuries to his stomach and spleen, resulting in his growth being stunted because of impaired nutrition, and that the injury was permanent in its effect.

Appellant contends that the judgment should be reversed because, (1) the verdict was clearly against the weight of the evidence; (2) the trial court excluded proper evidence offered by the defendant; (3 and 4) the trial court erred in giving and refusing instructions, and (5) the verdict is excessive.

Though the declaration alleged, and the mother testified, that the accident occurred upon the 19th of June, 1904,. it clearly appears from the testimony of the boy’s school teacher that he was in school on Monday and Tuesday, June -20th and 21st, and all day Thursday, the 23rd, which was the last day of school.

The attending physician declared that he first visited the patient on the morning of the 26th of June, 1904, and that the bruises then seemed several days old.

The police officer reported to his superior on the 28th of June the alleged accident as having occurred on the 26th.

The mother testified that she saw Martin fall into the hole where he was struck by the edge of the boards across his stomach, and that he at once became unconscious; that an older brother, Michael, (who testified to 'the same conditions) then carried him home; that they were up with the injured boy all night; that he was some better the next morning, (which she says was Sunday) but worse in the evening; that on Sunday he passed blood from his bowels, and on Monday morning he was better, but when they got him up into the bath-room he vomited blood.

The attending physician testified that when he made his first visit, which he said was on the 26th of June, the boy was vomiting blood; that he found him to be injured in the stomach and spleen by contusion and bruising, and the physician spoke of the injury as a rupture of the spleen. He further testified that while the functions of the spleen were not clearly understood or defined, yet it was generally agreed by physiologists that it had to do with the nutrition of the blood. He further testified that he visited the boy professionally about seventeen times before August 4th, when further visits were unnecessary, and that from examinations made by him shortly before the trial he considered the boy stunted, and suffering a permanent nutritional injury.

Martin and his mother testified to the serious character of the injury, and his great suffering for a long time, and that his health permanently was impaired, and that he had never been able to work continuously, since the accident.

It is true that the evidence on behalf of the plaintiff is neither clear nor altogether satisfactory, and that there are manifestly some errors in it as to dates, and some of the details of the affair, but it is not disputed by the city but what the planks had for weeks been out of the walk, and it affirmatively appeared that the police officer had at about its date reported to his superior officer the alleged accident, and the school teacher, testifying on behalf of the city, stated that Mrs. Byan was a good woman.

From a consideration of all the testimony in the case, and notwithstanding its manifest contradictions in some particulars, we cannot say that the verdict is not sustained by the evidence, and in the light of the testimony as to the suffering endured by plaintiff, and the serious effects of the injury, we cannot say that the verdict is excessive in amount.

It is claimed that the court erred in not permitting a physician called as a witness by the City to answer the following questions:

“Now, doctor, in your opinion, as to the case such as I have described, that is a blow sufficient to cause rupture of the spleen, would it be necessary, in your opinion, to call a physician right away or immediately thereafter?” “Did you ever know of a case of rupture of the spleen, doctor, which rupture had been produced by external violence of some kind, where an operation was not necessary immediately?” “Well, doctor, in your opinion, in a case of rupture of the spleen caused by external violence, would an operation be necessary immediately thereafter ?” And further that the court erred in striking out the answer of the witness to the following question:
“Well, doctor, in your opinion, in a case of rupture of the spleen caused by internal violence, would an operation be necessary immediate thereafter ?”

We do not think the action of the court in respect to these questions constituted reversible error. Indeed, the court would hardly have been justified in ruling otherwise upon any of them. The questions raised immaterial issues, and answers could not throw any light upon the real issues in the case; nor was there any substantial error in the court’s ruling against the city upon the other three questions asked, which were: “And, while he worked there, (for Swift & Co.) did he do his work in a satisfactory manner ?” And, “What was the cause of his quitting work there ?” And, “Did he quit the job there, or did he get fired ?”

Appellant complains of the following instruction, given by the court:

“The. court instructs the jury that while as a matter of law the burden of proof is upon the plaintiff, and it is for him to prove his case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it will be sufficient for the jury to find the issue in his favor.”

While this instruction has often been criticised in this court, and in the Supreme Court, yet that court has expressly held it was not reversible error to give the instruction. Taylor v. Felsing, 164 Ill. 331; C. C. Ry. Co. v. Bundy, 210 Ill. 39.

Appellant also complains that the court erred in refusing to give instruction number 13 offered by it. The instruction reads:

“If the jury believe, from the evidence, that the sidewalk in which the defect is alleged to have been, and where the plaintiff is alleged to have been injured, was properly and safely constructed and laid down, and that prior and up to or about the time of the alleged injury, it appeared to be in a proper and safe condition, then, if there be no evidence that the defendant had actual knowledge of such defect, or that the defect existed for such length of time before the injury, that the defendant, if exercising proper care and diligence, would have known of it, the jury should find the defendant not guilty.”

This instruction is clearly objectionable. The evidence was undisputed that for at least six weeks before the accident, the sidewalk had been out of repair, and accordingly the court had nó right to give an instruction based upon the hypothesis that, at the time of the injury, the sidewalk appeared to be in proper and safe condition.

Upon the whole record before us, we think the judgment of the court below must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Homer G. Howard, Appellant, v. Charles Anderson, Appellee.
    Gen. No. 15,475.
    1. Appeals and errors—when rulings upon evidence not subject to review. In the absence of objection made in the trial court rulings upon evidence are not subject to review.

      2. Evidence—when letters incompetent. Letters written by the party offering them, not replied to, which are mere self-serving declarations, are not competent.
    3. Evidence—when reliance upon false representations constitutes defense. The owner of property dealing with a real estate agent in the matter of exchange of properties may rely upon representations of such agent as to the title of the property to be acquired and may urge reliance upon such representations, if shown to be false, as a defense to an action for commissions without showing that he exercised ordinary prudence.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. C. M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 16, 1911.
    Louis T. Orr, for appellant.
    Marion Miller, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the appellant, the plaintiff below, for commissions alleged to be due on the exchange brought about by appellant of appellee’s interest in real estate in Chicago, consisting of an apartment house, for a farm in Iroquois and Kankakee Counties, Illinois, together with the personal property thereon. The owner of the farm and personal property was W. C. Thompson, and his agent in Chicago was W. F. Poole.

The record discloses that the appellant, doing business under the firm name of H. Gr. Howard & Co., had negotiated the exchange of the apartment house for property in Michigan. This transaction, however, was not consummated and resulted in a suit brought in the name of Anderson against the owner of the Michigan property. This suit was compromised for the sum of $3,000, of which $1,150 was paid to the appellant.

Anderson’s transaction with Howard was conducted through one A. D. Pitcher, an employe of Howard. Anderson in his testimony insists that Pitcher said to him that as the Michigan deal, known as the Peters deal, did not go through he would charge hut a nominal commission for conducting negotiations for the exchange of the apartment house for the Illinois farm owned by Thompson. Pitcher, on the other hand, testifies that he told Anderson that Howard & Co. would expect the regular commission of two and one-half per cent, of $55,000; that Anderson thought that that was too much, but offered to pay $900; that he (Pitcher) thereupon said that if Anderson would make it an even $1,000 he would take the matter up with Mr. Howard and see what could be done.

The declaration consists of the common counts with a copy of account, to which was filed a special plea, alleging that the plaintiff was not a regularly licensed real estate broker, and a second plea setting out with considerable fullness the claim of the defendant, who is the appellee here, that at the time of the transaction the appellant represented to the appellee that the only incumbrance on the Illinois farm was a mortgage of $7,500, whereas at that time the appellant knew that there was an additional incumbrance of about $1,500 in the form of a special assessment, and that “the plaintiff well knowing that the defendant would not make the exchange and assume said special assessment, had he knowledge thereof, and for the purpose of inducing the defendant to sign the contract and thereby obligate himself to make the exchange and for the purpose of getting a commission out of said transaction, designedly and fraudulently concealed from the knowledge of said defendant the fact of said special assessment and falsely and fraudulently represented to said defendant that the only incumbrance against said farm was for the sum of $7,500; that by reason of said false and fraudulent representation so made by the plaintiff the defendant was induced to sign said contract and thereby obligated himself to make said exchange and to assume said assessments.”

The record shows three trials, one resulting in favor of the plaintiff, and the other two in favor of the defendant. The last trial was before a jury, which rendered a verdict in favor of the defendant and against the plaintiff of $1,875.22, upon which judgment was entered.

The special assessment referred to was for a drainage tax. In order to prove the amount of the tax, the appellee introduced the certificate of the County Clerk for the County of Kankakee, reciting “the above and foregoing to be a true, perfect and complete copy of a certain petition to form the Little Beaver Special Drainage District filed in my office January 4, 1897, * * * the same being a complete record of the levy of said special assessment by ‘Little Beaver Special Drainage District’ in the Counties of Kankakee and Iroquois in the State of Illinois, so far as the same relate to,” etc., describing then the farm referred to.

Error is predicated by the appellant upon the admission of the record, because of the alleged informality, etc., of the certificate. An examination of the bill of exceptions, however, shows that no objection was offered to the introduction of this proof, and of course no error assigned on its admission can be considered by us.

Three letters were offered in evidence by the appellant, and excluded. These letters, however, appear to be demands by the appellant for the balance of what he claimed to be due him for commissions. They were not replied to and were merely self-serving declarations and were properly excluded.

There had been a payment made by the appellee to the appellant of $400, the appellee insisting that it was made by him upon the promise of the appellant that the latter would clear up the assessment, and he asserts that instead of doing so the appellant converted the sum to his own use. This payment of $400 was the subject of the second plea of set-off interposed by the appellee.

The special assessment was payable in installments and bore interest, bonds having been issued by the Drainage District. Payment of these bonds could not be anticipated. We think, therefore, that no error was committed in allowing the interest to he computed upon the same up to the dates that they respectively fell due.

Complaint is made that by the verdict the jury did not allow the appellant the sum of $26.00 theretofore paid out by him for an abstract on the appellee’s property. The amount of the verdict is not such that this court can say that the sum was not taken into consideration by the jury in arriving at its verdict. The appellee insists that if the jury had given him- the full amount of his claim the verdict would have been for considerably more than $1,900.

We next take up the errors to which the argument of appellant is chiefly addressed, that ’is to say, the refusal to give four instructions tendered by the appellant, and the giving of several instructions tendered by the appellee and alleged to be erroneous. We have carefully read the instructions as given—three as requested by the appellant, and fourteen on behalf of the appellee. We think that three of the four refused instructions tendered by the appellant were properly refused, because they required that the defendant must have shown that he exercised ordinary prudence in relying upon the alleged misrepresentations of the plaintiff as to the incumbrances upon the property proposed to be acquired. The proof tended to show that the appellant’s authorized agent knew of the special assessment.

Thompson, the man who owned the farm, testified that he made a memorandum of the assessment and the dates of maturity, which he delivered to either Mr. Pitcher or Mr. Poole, (Pitcher representing Howard as agent for Anderson, and Poole representing Thompson) ; that this was done in Thompson’s office when Pitcher and Poole were present, and that he was advised to conceal from Anderson the fact that there was a special assessment upon the farm, and that he did not disclose it to him. .

Poole (Thompson’s agent) testified that he and Pitcher were in Thompson’s office twice; that he had a conversation with Pitcher about the special assessment; that he told Thompson that he had talked with Pitcher about the special assessment. He testified: “When I first took the matter up with Mr. Pitcher I told him there was a heavy drainage tax upon the farm and that whoever took it up would have to assume that. He said that that would interfere with any deal. After that we talked about it nearly every day.” All of this was before the contract was signed.

Anderson testified that he first learned of the assessment in the office of his attorney about ten days after he signed the contract.

We think that appellee was justified in relying upon the statement of Pitcher in regard to the assessment, and it also appears quite clear that the matter of the assessment was kept from him designedly by Pitcher and by Howard, the latter apparently having been in charge of the transaction when it was closed. Whatever may be the duty of a proposed vendee of property in dealing with his vendor with regard to investigating for himself matters of this sort, the same rule does not prevail where the relation is that of principal and agent, attorney and client, trustee and cestui que trust. We think, therefore, that the instructions referred to were properly refused. We have also carefully considered the other instruction tendered by the appellant which was not given, and also the objections raised to those given at .the request of the appellee, upon which error is predicated in the assignments, and find no such error as, in our opinion, should occasion a reversal of the judgment.

Judgment affirmed.


text:
    Kate Glaich, Appellee, v. Hogan Envelope Company, Appellant.
    Gen. No. 15,517.
    1. Negligence—when, for failure to instruct inexperienced servant, established. Held, under the evidence, that it was proper to submit to the jury the question as to whether the master was guilty of negligence in placing an inexperienced servant, sixteen years of age, at work upon a printing press without instructing such servant in the dangers of the employment, in the methods of doing the work and in the ways of avoiding injury.
    2. Instructions—when refusal to interest of plaintiff not error,
      If there is no dispute as to the facts of a case, it is not error to refuse to give to the jury an instruction which calls attention to the interest of the plaintiff as bearing upon the question of credibility.
    Smith, P. J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 16, 1911.

      Certiorari denied by Supremo Court (mailing opinion final).
    Winston, Payne, Strawn & Shaw, for appellant.
    A. D. Gash, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Appellee became sixteen years of age in Hovember, 1906, and a few days thereafter entered the employ of the appellant, which maintained a printing establishment. Prior to this employment she had been at work for two years or thereabouts in two or more box factories, but had never worked around machinery until her employment by the appellant.

Appellant had among others five printing presses known as Gordon presses, one small one and four large ones. The work of appellee was tending one of these machines. She had been in that sort of employment for five weeks, and had been in charge of first one and then another of the presses. The work on all of the machines was practically the same, and consisted of the printing of envelopes and paper.

On the morning of December 24, 1906, she was instructed by the foreman to work at a particular press which, as the evidence discloses, was run at a higher rate of speed than any that she had theretofore operated. On this day she met with an accident which resulted in the loss of her right hand, it being so crushed that amputation above the wrist was necessary.

There was a trial before a court and jury, the verdict being for $7,000, judgment upon which was rendered. The only witnesses heard at the trial were the appellee herself find Polly MerMortb, who wag sixteen years of age at the time of the accident, and who was working at another press near appellee.

The only description of the construction and operation of the press was given by the appellee, being brought out in her cross-examination. She apparently was not a particularly bright girl, and her description is not as clear as we could wish. The record contains a photograph of the press, which gives an idea of its construction. In operating the press the appellee faced the machine directly in front of a feed board about the height of her waist, two and one-half feet long and a foot to fourteen inches in depth or width, which ran across the machine. On the right hand a little higher was another feed board upon which was placed the unprinted envelopes. A big fly-wheel was low down on the left side of the press and the shaft from this ran to the right hand side of the machine where a belt came down from the power shaft at the ceiling. A shifting lever was at the left hand of the operator near enough to be reached without changing position, except by bending down. This lever started or stopped the machine. The feed boards were not movable. On the side opposite the operator was a flat movable board or leaf, called a platen, upon which the blank paper was placed. When the wheels revolved this platen was forced against the type and the paper thereby received the impression; the platen then swung back towards the feed board. The method was for the operator to take a blank envelope with the right hand, place it on the platen, wait for the machine to make the impression, and then remove the printed envelope with the left hand, at the same time placing in another envelope with the right hand. On the platen there were ordinary guides (whether made of paper or some other material is not shown). These guides were to keep the envelopes in position so that the impression of the type would be in the proper place. The record does not disclose whether the power was steam or electric, but presumably it was the former.

On the day of the accident appellee was set to work, as heretofore stated, on one of the larger presses, which the testimony shows was being operated at a much greater rate of speed then any she had previously worked on. The only testimony as to any instructions having been given her is that of the appellee, who testifies that there were none; that she noticed how the other girls started and stopped the presses; that she usually worked on the small press, and on the day in question was working on the small one from seven to eight in the morning, but that a little before eight she was set to work on the big press. She says, “He” (referring to the foreman) “told me that this was a rush order and not to waste any envelopes, and that I should get them out.” She further testifies, that when she first went to work she was asked if she had ever run a machine, and she said, “Ho.” On her cross-examination the appellee made a fuller statement of the way the accident happened, which was substantially as follows: From seven to nearly eight o’clock in the morning she was working on a small press, but at eight o’clock the foreman put her to work on the larger press, which was running faster than she had ever seen it run before. The foreman said to appellee when putting her to work that it was a rush order and not to waste any envelopes. The foreman then went away and appellee worked from five minutes of eight until nine o’clock printing envelopes right along, without any trouble whatever, and with the machine running at the same rate of speed during all the time. Ho employe of appellant spoke to her at all during the time. About nine o’clock appellee put one of the envelopes in the press for printing, and it in some manner dropped down inside of the machine. She did not know whether it “slid down” over the front edge of the platen or whether she put it in behind. She looked underneath the machine and saw the envelope in the curved part of the “J” shaped casting down near the axle or driving shaft, and without attempting to stop the machine reached in underneath to get the envelope. Her own language is about as follows:

“I was going to get my hand out and I couldn’t get it out fast enough. I had reached in- to get this envelope that was down, in the machinery near the axle, and as it was down iii there I kept looking at the envelope to get it out and couldn’t get it out. I kept trying to get the envelope out and the machine came right down and I couldn’t get it out fast enough. The machine worked right back the way it had been working before and caught my hand * * * I knew that if I got my hand into the wheels and got caught it would be hurt. I could see that, that if I got my hand caught in the machinery it was going to be hurt.”

While the appellee had been working on these printing presses for five weeks, it is quite apparent from her testimony that she did not know much about their construction or operation. She testifies that she did not know whether there was a treadle on the machine or not; that if there was one she had never used it. There was one on the press. From the picture offered in evidence it would appear that there was also a foot brake, the object of which apparently was to shut off the power, but she testifies that she did not know there was such a contrivance on the machine. She never looked in to see what the machinery looked like. She testifies that she never before had had envelopes drop into the machine in the way the one did which she tried to get out. On the other hand, the witness Polly Mehrforth states that she had seen appellee quite often before the accident reach in to get envelopes out.

While the knowledge that appellee received as to the dangers of her employment and as to the manner in which she was to do her work appears to have been gained from watching the other girls, it does not appear whether or not these other girls had been in the habit of taking out envelopes from the curved part of the “J” shaped casting near the axle or driving shaft. For does it appear whether it could have been done without being hazardous when the employe was working at a slow running press. However, it would seem to be much more hazardous with a fast running machine.

We are asked by the appellant to reverse the case on two grounds: first, that there was no evidence of negligence on the part of the appellant, and second, because of contributory negligence 'on the part of the appellee,

Many cases of this nature have been before the courts of this and other states, and the decisions are not by any means uniform. In Cooley on Torts, Section 652 et seq., it is stated:

“The master may also be guilty of actionable negligence in exposing persons to perils in his service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in the employment of infants. It has been repeatedly held that the case of an infant is no exception to the general rule which exempts the master from responsibility for injuries arising from the hazards of the service. But while this is unquestionably true as a rule, it would be gross injustice, not to say absurdity, to apply in the case of infants the same tests of the master’s culpable negligence which are applied in the case of persons of maturity and experience. It may be ordinary caution in one case to apprise the servant of the danger he must guard against, while in the case of another, not yet beyond the years of thoughtless childhood, it would be gross and most culpable, if not criminal, carelessness for the master to content himself with pointing out dangers which were not likely to be appreciated, or if appreciated, not likely to be kept with sufficient distinctness and caution in mind, and against which, therefore, effectual protections ought to be provided. The duty of the employer to take special precautions in such cases, has sometimes been very emphatically asserted by the courts.”

In Coombs v. New Bedford Cordage Co., 102 Mass. 512, it was said:

“The notice which the defendants were bound to give the plaintiff of the nature of the risks incident to the service which he undertook must be such as to enable a person of his youth and inexperience in the business intelligently to appreciate the nature of the danger attending its performance. The question, indeed, on this branch of the case is not of due care on the part of the plaintiff, but whether the cause of the injury was one of which, by reason of his incapacity to understand and appreciate its dangerous character, or the neglect of the defendants to take due precautions to effectually inform him thereof, the defendants were bound to indemnify him against the consequences. But in determining this question it is proper and necessary to take into consideration not only the plaintiff’s youth and inexperience, but also the nature of the service which he was to perform, and the degree to which his attention, while at work, would need to be devoted to its performance. The obligation of the defendants would not necessarily be discharged by merely informing the boy that the employment itself, or a particular place or machine in the building or room in which he was set to work, was dangerous. Mere representation in advance that the service generally, or a particular thing connected with it, was dangerous, might give him no adequate notice or understanding of the kind and degree of the danger which would necessarily attend the actual performance of his work.”

In Lynchburg Cotton Mills v. Stanley, 102 Va. 590, it is held:

“If it is to the interests of manufacturing establishments to employ infants of such tender years, with their immature judgment and lack of experience, not only the dictates of humanity, but public policy, demands that they should be held to the highest degree of responsibility for their care and protection. They must take knowledge of their childish disposition to play, and to play with fire, and of their inability to recognize danger, although open and obvious to those of riper years. They must instruct them as to the many dangers with which they are surrounded, and the way to avoid such dangers; and they must continue to repeat such instruction until they know the danger is fully understood and appreciated. And in view of the proneness of children to forget, they must from time to time renew these instructions, warnings and cautions.”

The Supreme Court of Michigan held in Allen v. Jakel, 115 Mich. 484, as stated in the syllabus:

“In an action against the owner of a paper mill for injuries resulting to an inexperienced employe 14 years of age from having her hand caught between the rollers of a machine about which she was employed, it was a question for the jury whether the owner, in view of the plaintiff’s youth and inexperience, was in duty bound to instruct her how to do her work, or was justified in leaving her to learn the proper method from observation and experience, inasmuch as it was obvious that her hand would be injured if it should get between the rollers.”

In Norton et al. v. Volzke, 158 Ill. 402, it was held:

“The law requires of one of tender years only that degree of care which one of that age would ordinarily and reasonably use in the same situation and under like circumstances.” And further that “Among the duties of a master that are nonassignable are the exercise of reasonable care as to the safety of tools, appliances and machinery and the place where' a servant works, as well as the giving of information of special danger of the situation and of the machinery and appliances, where the servant is not informed.”

In Chicago-Anderson Pressed Brick Co. v. Reinneiger, 140 Ill. 334, it is held:

“Employers owe it as a duty to inexperienced servants to point out the dangers of which they themselves have or ought to have knowledge, and to give such warnings as may lead to the avoidance of injury by the exercise of ordinary care. More especially is this so when the danger and the means of avoiding it are not apparent or fully within the comprehension of the servant. But the burden is upon the injured servant to prove the existence and breach of such duty. It is a general rule that when a contract of employment is made with a minor, he assumes the ordinary hazard of such employment in the same manner as an adult assumes them. But the rule is modified in case of young persons of inexperience and immature judgment, who are not capable of understanding and appreciating the perils to which they are exposed. They are entitled to recover for injuries which result from such perils, unless they have been instructed how to avoid them,”

Appellant insists that the case from which the last quotation is made is not applicable because in that case the machine had u jerky motion different from other machines of the same manufacture, so that it would suddenly pull the mould and hand under the frame, and these things were not called to the boy’s attention.

In the case before us the girl testified, and there was no other evidence on the subject, that she had never looked into the machinery and had never been told about it. She was evidently given no warning as to the danger of putting her hands in for the envelope, nor advised to stop her press before attempting such an act.

In the case of Hanson v. Ludlow Manfg. Co., 162 Mass. 187, the court had before it the case of a seventeen years old boy, who was sawing boxwood logs into blocks about one inch and a quarter thick. A log which he was manipulating by detaching a partially severed block with a hatchet was thrown suddenly forward, carrying his hand, which fell upon the saw, and he received the injuries complained of. The court, in sustaining a judgment against the employer, held that while the general danger of contact with a circular saw in operation is obvious, the particular danger arising from the liability of the saw suddenly and forcibly to so throw upward and forward objects which touch it in the rear that they may fall upon the front of the saw is an obscure danger, of which it is the duty of the master to give warning if he has reason to suppose that a servant set at work upon such a saw is ignorant of it; and in an action for personal injuries caused by such movement of the saw it may be a question for the jury whether the servant was so ignorant of this danger that the master ought to have warned him of it. See also Cobb Chocolate Co. v. Knudson, 207 Ill. 452.

Our attention is called by appellant to, and we have carefully examined, the cases of Swift & Co. v. Arndt in this court (not reported) ; Kolb v. Chicago Stamping Co., 33 Ill. App. 488, Jones v. Roberts, 57 Ill. App. 56; Ward v. Daniels, 114 Ill. App. 374; Hickey v. Taaffe, 105 N. Y. 26, all of which were cases of minors, and are of the opinion that the case before us is distinguishable, by reason of the evidence in the case that the appellee had not been properly instructed as to the danger of doing what she did do, and her inexperience in working with the press running at the high rate of speed at which it was shown in the record to have been running.

We hold that no error was committed in submitting the case to the jury on the questions as to the negligence of the defendant and as to whether or not there was contributory negligence on the part of the plaintiff.

Objection is made on account of the refusal to give an instruction offered by appellant, which reads as follows:

“Ton are instructed that while the law permits the plaintiff to testify as a witness in her own behalf, still in considering her testimony you may take into consideration the fact that she is the plaintiff in this suit, and is interested in its results. If you believe from the evidence in this case that any witness has wilfully sworn falsely as to any material fact or matter at issue in the case, then you are instructed that you are at liberty to disregard the entire testimony of such witness except in so far, if at all, as it corroborated by other credible evidence, or by facts and circumstances shown on the trial.”

This instruction is a proper one to be given where there is any dispute as to the facts in the case. The only reason assigned by the appellant why it should have been given in the case before us is that the appellee stated she did not remember whether she had ever worked in any other printing establishment. There was no evidence that she had ever worked in any other printing establishment. Ho witness was placed upon the stand by the defendant to contradict any of the testimony given by the appellee and the one witness whose testimony was introduced by her. We think that a refusal to give the instruction was not reversible error.

Judgment affirmed.

Mr. Presiding Justice Smith dissents.


text:
    Rumah A. Crouse, Appellee, v. The Barber Asphalt Paving Company, Appellant.
    Gen. No. 15,523.
    1. Variance—when objection comes too late. An objection on account of an alleged variance between the allegations of the declaration and the evidence comes too late on a motion for a new trial, and the point is not preserved for the consideration of the reviewing court where no motion was made to exclude all objectionable evidence at the trial.
    2. Negligence—when obstruction in public street constitutes. If a contractor engaged in making an improvement upon a public street places a barricade in such manner that it becomes a menace and not a protection, negligence is established, and as bearing upon the question as to whether the barricade became a menace it is competent to show an absence of lights even though the absence of lights was not specifically relied upon as a basis for the action.
    3. Instructions—approved form as to quantum of proof. An instruction upon this subject as follows, approved: “The plaintiff is not bound to prove her case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.”
    4. -Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $6,000 was not excessive where it appeared that the plaintiff was an associate principal of a kindergarten college and that as a result of the injury, suffered a fracture of the neck of the left femur, which occasioned a shortening of the left leg and which required and would continue to require for an indefinite period the use of crutches.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. T. G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Affirmed.
    Opinion filed May 16, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Calhoun, Lyford & Sheean and Ralph F. Potter, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellant at the time of the accident which is the foundation, of this proceeding, was engaged in installing a concrete pavement on 'Cottage Grove avenue, at and north of the intersection of Seventy-first street, under contract with the City of Chicago. It had placed near Seventy-first street a cross-piece or “horse,” consisting of two pieces of plank about five feet in length, in substantially the form of a sawhorse, at a distance of three or four feet from the outer rails of the street car tracks near Seventy-first street, upon which a plank was placed slanting towards and extending to the curb line of Cottage Grove avenue. The evidence tended to show that this “horse” was on its side and was not being used for the purpose intended at the time of the accident; that it had been placed there as a barricade about noon of the day of the accident and had either fallen or been thrown over.

Appellee, who at that time was about sixty-five .years of age, alighted from a southbound car some distance north of Seventy-first street, which at that time was the terminus of what was known as the Cottage Grove run, between eight and nine o’clock in the evening of September 4th, 1906.

The declaration charges in the first count that the appellant “wrongfully, negligently and unjustly caused to be placed” said “horse,” etc., whereby without fault on her part she caught her foot in the obstruction and was thrown with great force and violence to the ground, thus sustaining a fracture of her left leg. The second count is substantially the same as the first excepting that the averment is that appellant “left said obstruction in Cottage Grove avenue and failed to remove the same,” whereby the appellee was injured, etc.

A trial before the court and a jury resulted in a verdict and judgment for $6,000. This judgment we are asked to reverse because, as alleged by the appellant, there was no evidence tending to establish the particular negligence charged in either count of the plaintiff’s declaration; second, because of a refusal of the court to give certain instructions tendered by the appellant and in the giving of one erroneous instruction at the instance of the appellee. The contention of the appellant is that inasmuch as the work was being done by it for the City of Chicago, it was not in law a “wrongful, negligent or unjust” act to attempt to withdraw from pubilc use the portion of the street which was being repaired; nor was it a “wrongful, negligent or unjust” act to permit a bar designed to protect the public from injury to remain upon the public street. This contention by the appellant is coupled with a statement of the negligence charged in the two counts of the declaration and upon the proposition that there was no evidence to establish the particular negligence charged in either count.

We do not find that any motion to exclude the objectionable evidence was made at the trial. The point was made upon a motion for a new trial. Objection on account of an alleged variance between the allegations of the declaration and the evidence comes too late on a motion for a new trial, and the point is not preserved for the consideration of a reviewing court when no motion was made to exclude the objectionable evidence at the trial. Gascoigne v. Metropolitan El. R. R. Co., 239 Ill. 18.

As we understand the matter, appellant does not rely upon an express license obtained from the City, but insists rather that it became its duty to place the obstruction upon the street in order to protect from injury the public improvement which was in process of construction. As heretofore stated, the evidence tended to show that instead of performing its function as a barrier, the “horse” and plank were down and became a menace to persons using the street. As stated by the Supreme Court in Kenyon v. Chicago City R'y Co., 235 Ill. 406:

“In any event, placing an obstruction, such as the one involved in this case, in the street, is prima facie unlawful. If the person so placing the obstruction relies upon an express license obtained from the city, the burden is upon him to show the existence of the permit; or, if it is his contention that the obstruction is of a character such as he may lawfully place in the street without any express permission from the city authorities, then such circumstances must appear in proof. Here there was no evidence of such license or of such circumstances.”

If the appellant permitted the “horse” to be upon the street without a light upon it, and otherwise in such a manner that it became a menace and not a protection, we are of the opinion that it was responsible for the injury sustained by one who was rightfully using the street and who in his use of the street was in the exercise of due care and caution.

We think the trial court did not err in refusing to give the peremptory instruction requiring the jury to find their verdict for the defendant.

The court gave to the jury without modification sixteen instructions tendered by the appellant. The appellant requested the court to give the following instruction:

“Even though you may believe from the evidence in this case that at the time of the occurrence in question the defendant did not have any lights or lanterns at or near the place of the accident, yet, the court instructs you that it is not alleged in this case that the defendant was guilty of negligence in failing to have such lights or lanterns at or near such place; and therefore in passing upon the question whether or not the defendant was guilty of negligence as charged in the plaintiff’s declaration, you must entirely disregard the question of lights or lanterns.”

The instruction was given, but with the following words added:

“Except as a circumstance, in connection with all the other evidence, at the time and place of the accident in question.”

An exception was taken to the modification made by the court to this instruction, and the alleged error in so modifying it is discussed in the briefs in connection with the alleged error in admitting proof as to the absence of signal lights. It is contended by the appellant that such proof should not have been introduced because the declaration does not charge the absence of such lights as one of the elements of negligence chargeable to the appellant. We do not think the court erred in making the modification and in admitting the testimony.

The charge in the second count of the declaration is that the appellant “wrongfully, negligently and unjustly left said obstruction,” etc. The proof that there was no light there tended to establish this general averment of the declaration. The barrier was placed in the street at noon, with the expectation of leaving it there until the following morning, and the appellant might, to some extent at least, have relieved itself of this charge if it had placed lights upon or around or near the barrier. If lights had been there, that fact also would have a bearing upon the question of whether or not the appellee was herself guilty of negligence. It was a circumstance or fact tending to prove that the obstruction was left in the street wrongfully and negligently. I. C. R. R. Co. v. Aland, 192 Ill. 37.

Complaint is made because of the giving of the following instruction at the request of the appellee:

“The plaintiff is not bound to prove her case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.”

A similar instruction seems to have been approved in the following cases: Consolidated Traction Co. v. Schritter, 124 Ill. App. 578; S. C. 222 Ill. 364; Pierson v. Lyon & Healy, 150 Ill. App. 116; Chicago City R’y. Co. v. Nelson, 215 Ill. 443; North Chicago St. R. R. Co. v. Polkey, 203 Ill. 225.

Complaint is also made because the court refused another instruction tendered by the defendant. We have carefully read that instruction, and think it was properly refused as having been fully covered otherwise in the charge.

We do not think that the damages are excessive. Appellee was an associate principal of the Chicago Kindergarten College, with which she had been connected for many years. The surgeon’s testimony disclosed the fact that there was a fracture of the neck of the left femur, which occasioned a shortening of the left leg of an inch to an inch and a quarter. The accident occurred on September 4, 1906, and the trial in December, 1908. At this trial the surgeon further said that as a precautionary measure the appellee should use a crutch for years, and possibly forever; that he could not tell whether there was a complete union or not—while one of the other doctors thought that the X-Ray indicated that perhaps one-third or one-half of the union was “bony.” The evidence also discloses what naturally might have been expected, that the appellee was confined to her bed for many weeks and that she suffered pain constantly from the date of the accident to the date of the trial of the case.

Judgment affirmed.


text:
    Peter Mygreen, Appellee, v. F. P. Smith, doing business as F. P. Smith Wire & Iron Works, Appellant.
    Gen. No. 15,494.
    1. Evidence—when impeaching question sufficiently definite. If the alleged contradictory testimony was not given at a previous “trial” but in a deposition which was used at a previous trial, the foundation thus laid though slightly inaccurate is sufficient to support the impeaching evidence.
    2. Evidence—when question does not call for a conclusion. A question as follows, “Was it in plain sight?” does not call for a conclusion.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. A. M. Rose, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 16, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty and J. C. M. Clow, for appellant.
    J. A. Bloomingston, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This case is before this court a second time. There have been three trials in the Circuit Court. On the second trial the Circuit Court directed a verdict in favor of the defendant, and on appeal to this court the judgment of the Circuit Court was reversed. (Peter Mygreen v. F. P. Smith, doing business, etc., 127 Ill. App. 426.) An examination of the statement of facts as set forth in the opinion of Mr. Justice Baker, and of the record in the case now before us, indicates that the evidence on the two trials was substantially identical. We will therefore, in this opinion, not restate the facts in the case.

A large part of appellant’s brief is devoted to a discussion of the proposition that a verdict for the defendant should have been directed. As it has already been held by this court that the facts and circumstances were such that the case should have been submitted to the jury, both on the question of the defendant’s negligence and on the question of contributory negligence on the part of the plaintiff, additional discussion of this contention at this time, is unnecessary.

It is further asserted on the appeal before us that the court committed reversible error in its ruling on the admission and exclusion of testimony; in giving and refusing certain instructions; and in not granting a new trial, on the further ground that the preponderance of the evidence was with the defendant.

By reference to the statement of facts hereinbefore referred to, it will be seen that this accident occurred in the taking off of iron plates from a wagon by the plaintiff, working with another. This was done by the two men putting hooks into holes in the plates, then walking backward, dragging them.

A witness on-behalf of the plaintiff was asked the question, “How long had those hooks been in use that were in the Tribune Building there?” An objection was made to the same, and it was stated by the plaintiff that no claim was made that there was anything the matter with the hooks. The witness answered: “I know we used them ever since we began to lay plates.” In answer to other questions the witness stated that he had seen the hooks slip before, when the same kind of work was being done. Motions to strike these answers from the record were overruled and exceptions taken.

We do not think that any error was committed in these rulings. The purpose of the testimony evidently was to show that it was not uncommon for the hooks to slip in the ordinary course of such work, and that knowing that fact the defendant should have anticipated that they might slip, and therefore should have protected the workmen from falling into the elevator shaft, that being the particular act of negligence upon which the right to recovery was claimed.

On the cross-examination of the witness Gustave Anderson, he was asked whether on a previous trial he had not answered a question as to whether or not it was perfectly light, by saying, “perfectly light,” and the answer of the witness was, “Ho, sir, not that I remember.” The appellant later asked to offer in evidence a part of a deposition which was filed and in which the question and answer appeared to be as contained in the question made the ground of impeachment. The question put evidently referred to an oral examination had at a trial in 1904. The impeaching question appears in a written deposition filed. We think that that portion of the deposition, notwithstanding this fact, ought to have been allowed to go to the jury, but we do not regard the error as sufficient to warrant a reversal on that ground.

Exception is taken to the action of the court in sustaining an objection to a question referring to the hoist: “Was it in plain sight ?” Witness had previously stated, “You could see the hoist from the alley; in the alley is where I would be.” While the question might not be improper as calling for a conclusion, still we do not think that the case should be reversed because the question was not allowed to be answered.

It is next contended by the appellant that the open hoist-way door was not the proximate cause of the accident. As heretofore stated, this court has previously determined, upon a record substantially the same as the one before us, that the case was one to be submitted to the jury, and so in effect held that it was for the jury to say whether or not the open hoist-way door was the proximate cause of the accident; and that conclusion is adhered to in the present appeal.

Twenty-one instructions were given to the jury, five at the instance of the plaintiff and sixteen at the instance of the defendant. Complaint is made of one instruction given on behalf of the plaintiff, and to the modifying of certain of the instructions and the refusing to give certain other instructions as requested by the appellant. We have carefully examined the instructions as given, and are satisfied that they correctly advised the jury as to the legal questions involved in the case and were in consonance with the opinion of this court rendered at the time when the case was last before it.

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

'Judgment Affirmed.


author: Mr. Presiding Justice Smith

text:
    Chicago Die & Electric Company, Appellee, v. Walter R. Brown et al., Louis T. Orr, Appellant.
    Gen. No. 15,476.

      Replevin—when peremptory instruction should he given for defendant. In an action for replevin in which counts in trover and detinue arc filed a peremptory instruction should be given for the defendant who (1) did not illegally take the property in question, (2) who never liad possession thereof and (3) who never detained the same.
    Replevin. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of facts.
    Opinion filed May 31, 1911.
    McCabe, Cloyes & Kull, for appellant.
    Emery S. Walked and John L. Davidson, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal is from a judgment in an action of replevin brought by the Chicago Die & Electric Company, appellee, hereinafter referred to as the plaintiff, against Louis T. Orr, appellant, hereinafter referred to as defendant, Walter E. Brown, Walter Merchant, Kemplin Crusher & Pulverizer Company and Charles Liebrandt. The defendant Brown was not served with process in the action. The Kemplin Crusher & Pulverizer Company was defaulted, and at the close of the plaintiff’s case the Circuit Court directed a verdict as to the defendant, Walter Merchant; and at the close of all the testimony it directed a verdict as to the defendant, Charles Liebrandt.

On the trial the jury returned a verdict against the defendant, Louis T. Orr, for $415, on which verdict, after overruling the defendant’s motion for a new trial, the court entered judgment.

The original declaration, consisted of three counts, namely, a count in replevin, one in detinue and one in trover. On October 3d, 1908, the court gave the plaintiff leave to file, and it did file, an additional count, the order providing that the pleas on file should stand as pleas to the declaration as amended. The additional count is in trover, and avers that at the request of the Kemplin Crusher & Pulverizer Company, plaintiff manufactured and constructed the machine in question out of its own materials, and at its own expense, and being possessed thereof had a lien thereon for the labor and material when it lost said machine.

Defendant Orr, among other pleas, filed a plea alleging that the property in question belonged to the defendant, Walter E. Brown, and that it was not the property of the plaintiff; that the machine in question was the property of the Kemplin Crusher & Pulverizer Company, and that it, on November 21, 1904, mortgaged the same to the defendant, Walter E. Brown, to secure its note for $925, which mortgage was duly acknowledged and recorded in the recorder’s office of Cook county, November 23, 1904; that the said Kemplin Crusher & Pulverizer Company failed to pay said note, and on December 22, 1904, said mortgage was properly foreclosed and said machine became and was the property of Walter E. Brown. Plaintiff by its replication averred that the machine was the property of the plaintiff and not the property of Brown, and that the Kemplin Crusher & Pulverizer Company did not execute at any time a chattel mortgage on said machine, and that the same was not foreclosed.

The evidence offered at the trial discloses that the plaintiff, the Chicago Die & Electric Company, does special work and builds experimental machinery, and that in 1904, it entered into a contract with Kemplin Crusher & Pulverizer Company to build for it a machine to be used to crush ore. The Kemplin Crusher & Pulverizer Company furnished the pattern and the plaintiff furnished the materials and was to receive an agreed sum per hour for the time put upon the machine by its workmen in the building of the machine. The machine was practically completed on November 24, 1904. The Pulverizer Company on that date made its note whereby it promised to pay to the order of Walter E. Brown, thirty' days after date, $925 with interest at six per cent, per annum. The note recites that it is secured by a chattel mortgage, and to secure this note the Kemplin Crusher & Pulverizer Company by a chattel mortgage in the usual form bearing even date therewith, pledged its personal property of every kind and nature, including a lot of patterns and a lot of office furniture and three crushers and a lot of drawings and stock on hand. This note was not paid at maturity.

On December 22, 1904, Walter E. Brown took possession under the chattel mortgage and note above described. In the taking of possession of the property described in the chattel mortgage the defendant Orr, who is an attorney at law, acted as the attorney for the defendant Brown. He had never seen the chattel mortgage in question, prior to the morning of December 22, 1904. Mr. Brown, as holder of the note and chattel mortgage, stated to Mr. Orr the nature of his business and what he desired to be done, and the defendant Orr after communicating this to defendant Liebrandt by telephone introduced Brown to Liebrandt, and Brown requested Liebrandt to go with him to the plaintiff’s place of business for the purpose of foreclosing the mortgage and taking possession of Avhatever machinery he could find there which was described in the mortgage. Thereupon Brown, Liebrandt and the defendant Orr went first to the office of the mortgagor, Kemplin Crusher & Pulverizer Company, in the Chicago Title & Trust Company Building, and after tailing possession of the office of the mortgagor, Liebrandt, Brown and Orr, proceeded to the place of business of the plaintiff, and there met Mr. Hogg, the president of the plaintiff. Mr. Orr informed Mr. Hogg that they had come to foreclose the chattel mortgage given by the Kemplin Crusher & Pulverizer Company, and that they understood that one of the machines described in the mortgage was in the plaintiff’s place of business. Mr. Brown handed the chattel mortgage to Mr. Hogg, Avho examined it. He said that he had one of the machines that was mentioned in the mortgage, and indicated the machine and Brown told him he had come for it. After some discussion, in which Hogg claimed a lien upon the machine, he told Brown that he might take the machine, and subsequently ordered his employees to assist in loading it. At that interview the defendant Orr, at the request of Mr. Hogg, prepared a receipt for the machine, which was signed by Brown as mortgagee, and was by him delivered to the plaintiff. The defendant Orr did not touch the machine, never had the machine in his possession, and never assumed any control over it, according to the evidence.

At the conclusion of the plaintiff’s evidence, the defendant Orr requested a peremptory instruction in his favor, which was denied, and at the conclusion of all the evidence a like request was made and denied. It is contended on the part of the appellant that the court erred in denying these requests for peremptory instructions, and in refusing certain other instructions, requested by the defendant, and modifying certain other instructions requested by the defendant, and giving same as modified, and that the verdict is against the weight of the evidence.

Upon an examination of the evidence in the record, we are of the opinion that it fails to make out a case against the defendant Orr. There was no illegal taking of the machine in question by him. He never had it in his possession or control; he never detained it, and never assumed any authority over it for which he can be held liable under the original or additional counts of the declaration. We have stated in substance the evidence produced on the trial of the case shown in the record, and in our opinion it fails to make out a case against the defendant Orr under either of the comits of the declaration. The court should have instructed the jury at the close of the evidence in the case as requested by the defendant Orr. The judgment is therefore reversed with a finding of fact.

Reversed with finding of facts.


text:
    George Fenno, Appellee, v. Matthew Cullen, Appellant.
    Gen. No. 15,492.
    1. Landlord and tenant.-—when former liable for personal injuries. A’ landlord is liable for personal injuries sustained by a child of a tenant injured through his negligent failure to keep in repair a railing upon a stairway in his possession and control which railing formed no part of the demised premises and was used in common by the various tenants occupying the apartment building in question.
    .2 Appeals and errors—When question not presented for review. Rulings upon instructions, upon evidence, etc., are not preserved for review in the absence of assignment of error predicated thereon.
    3. Verdicts—when not excessive. A verdict of $11,000, reduced by remittitur to $9,000, will not be disturbed on review where it appears from the evidence that the plaintiff, a child of seven years at the time of the accident, suffered as a result thereof various severe injuries, including broken bones, and was so permanently injured as to become afflicted with curvature of the spine and a shortened leg.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Shope, Zane, Busby & Weber, for appellant.
    Quin O’Brien, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff below, George Fenno, was a seven-year-old boy at the time of the injuries hereinafter described. He lived with his mother, who was a tenant of Matthew Cullen, in a large 48-apartment building in Chicago. The apartments in question consisted of four buildings, two on either side of an east and west court. The north two buildings were connected by a system of stairways and porches. The buildings were five stories high and had a porch at each story, and between these porches on the stairway were small, level landings. The stairways and landings had a wooden hand-railing or guard on the sides. Alongside of these stairways and porches there was the open space or court. The flats were leased to forty-eight or more different tenants and the defendant, Cullen, as landlord and owner of the buildings, retained control and charge of the stairways, landings, porches and all other parts which were used in common by his tenants.

The plaintiff lived on the top floor of the north building, in the rear on the court, and to go to his home used the stairways in question. On February 6, 1904, he was going up the stairway to his home, and at about the second floor of the building stopped to talk to the janitor of the buildiugs below, and in doing so he leaned against a railing which gave way, and he fell down to the bottom of the court below. By the fall he was rendered unconscious, his kneecap was broken, his femur also was broken, his teeth were knocked out, and as a result of his injuries he was compelled to undergo operations, and now has a stiff, crooked leg, which is two and a half inches shorter than the other and will become comparatively shorter as he reaches maturity. He has a curvature of the spine and is permanently lamed and deformed. This action was brought to recover for the injuries sustained. The trial below resulted in a verdict of the jury in favor of the plaintiff for $11,000. The plaintiff entered a remittitur of $2,000 and judgment was rendered for $9,000.

The judgment is brought here for review by appeal and appellant assigns four errors on the record, as follows: First, the court erred in not giving to the jury the peremptory instruction requested by the defendant; second, the court erred in overruling defendant’s motion for a new trial; third, the court erred in overruling defendant’s motion in arrest of judgment; fourth, the court erred in entering judgment upon the verdict.

On behalf of the plaintiff seven witnesses testified as to the condition of the railing in question. Their evidence tends to show that the stairway was used by all tenants in common and by delivery men of all kinds, and by the public generally, having occasion to go to the different apartments. It shows that the rail or banister that gave way was about three feet long, two inches wide and three or four inches thick and was made of pine; that it was old and rotten at the ends, and would not hold nails and that it had been in that condition for a long time. Before the accident there was only one nail holding the railing at each end, and the evidence for the plaintiff shows that the nails were badly rusted.

On the part of the defendant only one witness was introduced; he was an employee of the agents of the landlord. He stated that his duties as such were to inspect and care for the repairing of the porches, stairways, railings, etc., and that before the accident he had observed that the railing “was breaking right away” in places; and “in other places you would shake the railings and it would be a little loose.” He repaired them once but did not know when or what year it was. He did not know whether the rail in question, which gave way, was ever repaired, or if so, when.

The assistant janitor of the buildings testified that he knew this very rail in question to be rotten and defective during the time he worked in that building, before the accident, for a period of about two years.

We are of the opinion that the evidence offered on the trial proves the necessary averments of the declaration, and shows a good cause of action in favor of the plaintiff and against the defendant for negligence in failing to properly maintain the railing.

It is urged that the court erred in refusing to instruct the jury for defendant. We find no assignment of error on which this point can be based. We are of the opinion, however, that the court did not err in refusing to direct the verdict.

It is urged that the evidence shows no agreement by the landlord to repair the railing or banisters upon the stairways or to keep them in repair, and therefore he is not liable for damages sustained because of the alleged failure to do so. We find no assignment of error upon which this proposition can be advanced or urged to the court; but, waiving that, the evidence shows clearly that the stairway and the railing thereto which gave way, were used in common by the tenants and occupants-of the apartment building and that they were no part of the premises demised to the different tenants, but were reserved for the general use of the tenants, and were under the control of the landlord, and that the landlord recognized his duty to repair and care for the stairway and railing ; and whether he recognized it or not, they were under his exclusive control and management, and he was bound in law to use reasonable diligence to keep them in reasonable repair for the use of his tenants. Payne v. Irvin, 14 Ill. 482; Burke v. Hulett, 216 Ill. 545.

Appellant urges that instruction number 2 given at the request of the plaintiff was erroneous, in that it imposed a higher duty upon the landlord than is required by law. We do not find any assignment of error upon the record which-raises any question upon any of the instructions, and the in-.structions are, therefore, not before us for consideration.

It is next urged in the brief of appellant that the court erred in admitting the testimony of James Langston upon the condition of the banister the day following the accident. This question cannot be raised on this appeal, for the reason that there is no assignment of error on the record calling in question rulings upon evidence.

It is next urged that the verdict is excessive and the error was not cured by the remittitur of $2,000. We do not find that this question can properly be raised upon the assignments of error. We have, however, no hesitancy in saying that if the question were properly raised on the record, we should not regard the judgment as excessive, in view of the injuries shown by the record.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Benjamin F. Reed, Appellant, v. Hearst’s Chicago American, Appellant.
    Gen. No. 15,511.
    1. Master and servant—when negligence to fail to warn. Held, that a cause of action on the part of the servant was shown in that without instruction and without warning, he, being a minor, was ordered to work on a particular portion of a press where he was subject to special dangers which were not obvious to him, and that the master was negligent in failing to inform him of the special dangers to which he was subjected.
    2. Master and servant—when doctrine of assumed rish does not apply. The doctrine of assumed risk does not apply where a servant is injured as the result of a special danger, knowledge of which he did not have and could not have acquired by the exercise of ordinary care,
    3. Trial—what conduct of judge not prejudicial. Held, that the conduct of the trial judge in making repeated complaints in the presence of the ¡jury in regard to the consumption of time in the trial of the cause was not improper or prejudicial.
    4. Trial—what conduct of counsel and judge not prejudicial. Held, that the suggestions of the court and counsel for the successful party, made in the presence- of the jury, in regard to the location of certain lights at the place where the plaintiff was injured and that it was a proper matter for agreement between counsel, were not so improper as to call for a reversal.
    5. Trial—duty of judge to pass upon and, not postpone determination of issues presented hy motion for peremptory instruction. It is the duty of the trial judge to hear argument and pass upon, at the time when made, a motion for a peremptory instruction properly interposed.
    6. Trial—when improper question of counsel will not reverse. In the absence of prejudice appearing the asking of an improper question will not reverse where objection thereto was sustained.
    7. Appeals and errors—when assignments of error upon instructions not considered. Assignments of error predicated upon instructions will not be considered in the absence of specific objections and arguments made in the brief.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Rehearing denied and opinion modified and refiled June 16, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. The plaintiff, appellee, was employed by the defendant, Hearst’s Chicago American, appellant, in its press room as a carrier of papers from a table located at the end of the carrier to a dummy elevator near hy. He had worked in that capacity for upwards of four months before the accident hereinafter described. At the time of the accident he was working under" the directions of his foreman as a fly boy, taking papers off from a revolving cylinder in a printing press and carrying them and piling them on a table. The plaintiff lost his hand in the press while working as a fly hoy on the south half of press known as Humber 6 in appellant’s press room. The press upon which the plaintiff was injured was a double or twin press, located in the rear of the large press room of appellant. On each side of the double press was a large cylinder, about thirty inches long and eighteen inches in diameter, and two sets of small folding rollers about four inches in diameter. These cylinders and rollers extended in an easterly and westerly direction. The proper place for the fly boy to perform his work was on the north side of the north half of the press, or on the south side of the south half of the press, and as he stood at his work he would he located about five feet from the large cylinder on either half of the press. On the north side of the north half of the press, just immediately below and slightly in front of the center of the large revolving cylinder, were located two small folding rollers. Under the folding rollers was located a carrier, which extended toward the north about five feet and carried out the papers that came through the folding rollers. The large revolving cylinder and the small folding roller on this side of the press revolved so that the bottom of the small roller and the bottom of the large cylinder came out towards the operator. On the south side of the press, just immediately below and slightly in front of the perpendicular center of the large revolving cylinder, there was a small folding roller, and the cylinder and roller revolved toward each other. Under the folding rollers was also located a carrier extending toward the south about five feet, which carried out the papers from the folding rollers. Immediately in front of the horizontal center of the large cylinder, on the south half of the press, was located a cutting cylinder, about one-half the size in diameter of the large cylinder, so that only a part of the top and bottom of the large cylinder was visible. The greater part of the top and bottom of this large cylinder when in operation was covered with a continuous sheet of paper twenty-one inches wide, which came down over the south surface of the cylinder. Appellee’s hand was caught between the bottom of the large revolving cylinder and the top of the small folding roller on the south side of the south half of the press.
    On the day of the accident, after the usual work had been finished, at the direction of the foreman the persons in charge of the press undertook the experiment of putting new leaves of paper through the press. While doing this work the press was run at a slow speed. While the machine was being operated on slow speed the papers were more apt to roll around the cylinder, the machinery working somewhat differently on slow speed than on full speed, and the papers have a tendency to lag around as they are carried around the roller, and have to he removed by hand. On this day appellee was sent to work at the Franklin street press room, and was directed by foreman Morrison to carry papers away from the press in the rear of the room. After the run was off and the work finished foreman Clark said to appellee: “While we have a little time we will try a few leaves through the press.” Foreman Morrison then placed appellee at work on the north side of press 6, and told him to keep the papers out of the folder so that they would not wind around the roller, “and in case the fly boy wants to be relieved you relieve him.” After appellee had worked about twenty minutes as fly boy on the north side of press 6 he was sent to relieve the fly boy on the south side of the press. After he had been at work there from five to ten minutes, in removing the paper out of the folder so that it would not wind around the roller his hand was caught between the large cylinder and the small roller underneath it and crushed. He had never worked as fly boy on the south side of the press before the occasion of his injury.
    Appellee was given no instructions as to the manner in which he was to do the work, nor was he informed of the difference in the operation of the machinery on the south side of the press from that on the north side. There was no danger of his hand being drawn in between the cylinder and roller on the north side of the press, for the reason that they turned outwardly, toward him. On the south side of the press they revolved from him, and there was danger of his hand being drawn in between the roller and the cylinder.
    A trial was had before court and jury, which resulted in a verdict and judgment in favor of appellee against appellant for $10,000, and appellant prosecutes this appeal to reverse the judgment.
    Frank M. Cox, R. J. Fellingham and Darrow, Masters & Wilson, for appellant
    John S. Hummer and Charles A. McDonald, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellant has favored the court with a very elaborate and clear argument, in which many grounds for reversal are urged, based upon the contributory negligence of the plaintiff ; the assumption of risk by the plaintiff; that the verdict was against the weight of the evidence; that appellant’s rights were prejudiced by the trial court’s repeated complaints in the presence of the jury as to the consumption of time in the trial of the cause while producing its evidence, and by suggestions in the presence and hearing of the jury that the location of the lights at the place where appellee was injured was a proper subject-matter of agreement between counsel; and in permitting counsel for the plaintiff to offer in the presence of the jury to have the jury go upon the premises and view the same with reference to the situation and lights. Alleged improper remarks by counsel for appellee during the trial, and in the argument of the case, are also relied upon as grounds for reversal.

We have studied with care the evidence in the case and the arguments of counsel, and without taking up the evidence in detail or entering into a particular discussion of the same, we are of the opinion that a cause of action on the part of appellee was shown, in that without instruction and without warning, appellee, a minor, was ordered to work on the south half of the press, where he was subject to special dangers which were not obvious to him, and that appellant was negligent in failing to inform appellee of the special dangers which the revolving cylinder and rollers created when appellee was removing paper from the roller. There is no controversy in the evidence as to the fact that he was taken from a comparatively safe position on the north side of the press and transferred to doing the same kind of work on the south side of the press, but under conditions which made the work far more dangerous than he had been accustomed to. He testifies that he did not know and was not informed that the large cylinder and the roller were revolving from him instead of toward him, and that the action of the machine would tend to draw his hand in between the bottom of the large cylinder and the top of the roller underneath, unless great care and dexterity were used by him in removing the paper which he was ordered to remove from the roller. The questions of negligence of appellant, and contributory negligence of appellee, were for the jury to decide under the conditions and circumstances shown. Am. Ex. Co. v. Risley, 179 Ill. 295.

In our opinion the plaintiff, appellee, cannot be held'to have assumed the additional risks of the work upon the south half of the machine, when, as he testifies, he did not know the direction in which the cylinder and roller were revolving until he was injured. According to the evidence, there was imperfect light thrown upon the machine from the south side, and appellee states in his evidence that he was unable to see and did not know the direction in which the cylinder and the roller were revolving. We do not think that we would be justified in finding the facts on this issue in the case different from the finding of the jury. We see nothing unreasonable in the plaintiff’s testimony and in his theory of the case, that by the exercise of ordinary care and without any information or caution on the part of appellant’s foreman he might not notice and did not know of the danger attendant upon his work on the south side of the press. He had been there but a few moments prior to his injury. Cobb Chocolate Co. v. Kundson, 207 Ill. 452; Ide v. Fratcher, 194 id. 552.

It is urged that appellant’s rights were unduly prejudiced by the repeated complaints of the court in the presence of the jury in regard to the consumption of time in the trial of the case by appellant in producing its testimony. Upon an examination of the record as set forth in the abstract, we do not find anything improper or unusual in the remarks of the court upon this subject, and clearly they do not constitute reversible error.

While we think that the suggestions of the court and cotinsel for appellee in regard to the location of the lights at the place where appellee was injured, and that that was a proper matter for agreement between counsel, might more properly have been made out of the hearing of the jury, and perhaps not in the presence of the jury, still we cannot say that there was reversible error in the suggestions made by court or counsel upon that subject.

At the conclusion of appellee’s evidence in chief, appellant in writing moved the court to direct a verdict of not guilty, and tendered to the court an instruction in writing to that effect. Thereupon, after considerable argument between the court and counsel, the court suggested that he was called upon to decide a legal proposition which required the study of authorities and instructions on various points of law, and in order to avoid taking the time to decide the questions involved in the instruction at that stage of the trial, suggested that he would overrule the motion for the instruction and mark the instruction “Refused” without argument, provided the plaintiff would enter into a stipulation with the court that in case the court should submit the case to the jury and a verdict should result in favor of the plaintiff, if the court should on the motion for a new trial become convinced that an error had been committed in not taking the case from the jury, the court might make up a record at that time showing that the court did, at the conclusion of the plaintiff’s evidence, instruct the jury to find the defendant not guilty, and that the jury did so' find, and upon such agreement on the part of plaintiff’s counsel the court would defer the full consideration of, and a ruling on the motion to take the case from the jury and order the trial to proceed. Counsel for appellant objected to this manner of proceeding, and now urges that the appellant was injured by the fact that the court did not pass upon the motion for peremptory instruction upon a full consideration of the case, but overruled the motion for the instruction in form, reserving the real question for further argument. The court then called plaintiff to the bar of the court, over the objection of counsel for appellant, and entered into a stipulation with plaintiff as the court had suggested, and the court then agreed with plaintiff and his counsel that he would not then pass upon the motion, hut reserve it for some future stage of the case, and treat the motion at that time as having been decided at the proper time and before defendant’s evidence was presented to the jury. ¡Notwithstanding the stipulation thus insisted upon and entered into between the court and appellee and his counsel that the trial might proceed in that manner and upon those conditions, counsel for appellant insisted upon arguing h'is motion for a peremptory instruction, and while the court listened to him, counsel for appellant now insists that it was not with a mind open to conviction, and that appellant lost the benefit of a proper hearing and decision of the motion at the time it was made.

To state the matter mildly, the course pursued by the court was unusual, extraordinary, and without any legal right. Appellant was entitled to a full hearing upon the motion presented, for the purpose of having the question considered by the court at that time. Appellant’s rights were preserved for review, we think, by the formal action of the court in overruling its motion, and we are unable to see that upon the facts of this case any material rights of appellant were lost by the extraordinary and legally impossible scheme or plan of the court to avoid deciding the motion at the time it was made, in the ordinary way of trials at law. But the record shows that the court did hear argument of appellant’s counsel at length and ruled on the motion, and thereby appellant’s rights were preserved, and gave the motion all the consideration to which it was entitled.

It is insisted on behalf of appellant that the court erred in refusing to give to the jury instructions 26, 27, 28, 30, 36 and 37. We find in appellant’s brief, however, no specification of reasons or specific grounds for claiming that the instructions should have been given in view of the evidence and the other instructions in the case. And we do not regard it as the duty of the court to take up the general objection raised by counsel for appellant to the action of the court in the refusal of instructions, in the absence of specific objections and arguments made in the briefs.

It is alleged that counsel for appellee made improper and prejudicial remarks during the course of the trial in the presence and hearing of the jury, and also improper and lire judicial arguments in his address to the jury. And it is urged in support of this contention that a number of photographs were brought to the attention of the jury during the examination of appellee’s witnesses and put in evidence, showing the character of the machine upon which appellee was injured. And notwithstanding the fact that the photographs made the questions being tried in respect to the location of the rollers and the operation of the machine clear, as it is urged, counsel for appellee stated in the hearing and presence of the jury that he was willing to have the jury go to the Franklin street plant and look over the machine in question, and that this statement necessarily placed appellant’s counsel in a position before the jury where they had either to accede to the offer on the part of counsel for appellee or decline it. It is urged also and the record shows that the court was favorably disposed to this offer and practically indicated that it would be a good idea for the jury to see the machine. It was claimed that the jury were likely to draw the conclusion that appellant had something to conceal and was not honest in its efforts to present the facts to the jury, since its counsel was compelled for good reasons in open court and in the hearing of the jury to decline to agree to have the jury view the premises and the machine. We do not regard the statements and offers of counsel as reversible error.

It is further suggested in argument by the appellant that counsel for appellee used unwarranted and prejudicial language, in which he reflected upon appellant and its counsel in the presentation of the case, and quotes in his argument the language objected to. We have read the language quoted as used by counsel in argument. We think it was of an improper character and was subject to the criticism made upon it by counsel for appellant. But the court sustained counsel’s objection to the language used, and, we think that the sustaining of the objection by the court, under the circumstances of this case, removed any wrong impression which was conveyed to the jury by the language of counsel. We cannot consider it as reversible error. Swift & Co. v. Rutkowski, 182 Ill. 18.

Finding no reversible error in the case, and no reason for disturbing the finding of the jury, the judgment must be affirmed.

Affirmed.