author: Mr. Justice F. A. Smith

text:
    Clara Johnson, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,411.
    1. Carriers—duty to warn passenger. A verdict, finding a street railroad company guilty of negligence in not warning passenger of danger in standing on step facing another track on which cars were passing, based on evidence, will not be disturbed.
    2. Carriers—question for the jury. The question of whether a street railway company is guilty of negligence in not warning a passenger of danger from passing cars while he is standing on the step, is for the jury, and the same is true with reference to the question of whether the passenger is guilty of contributory negligence.
    3. Carriers—negligence. It is negligent operation for a street railway company to have a car door open which leads out upon tracks upon which cars are passing, and it is a violation of the degree of care which it is bound to exercise towards passengers.
    4. Contributory negligence—standing on step of street car. A verdict finding a passenger not guilty of contributory negligence in standing on step of a street car preparatory to getting off, when he is not warned of danger from passing cars, will not be disturbed.
    5. Evidence—location of street railway tracks. In an action by next of kin of intestate for damages caused by reason of his death, it is not error to admit testimony showing location of car tracks at the place of accident and the character and width of cars.
    6. Appeals and errors—admission of immaterial testimony. In a street railroad accident case the admission of testimony to the effect that witness .had passed the location of the accident several times a day in his run on that street extending over a period of several years and had seen work done on the tracks, although apparently immaterial, is not reversible error.
    7. Argument oe counsel—when ground for reversal. Violent and extravagant language used by counsel in his closing address to the jury is not a ground for reversal where it in no manner affects the verdict.
    Action in case for death by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 22, 1912.

      S. S. Page and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Leonard Goodwin and Blaisdell & Whitney, for appellee; Guerin, Gallagher & Barrett, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

In an action under the statute, appellee recovered damages to the next of kin of Warner W. Johnson, which they sustained by reason of his death, alleged to have been caused through the negligence of appellant. The action was originally brought against appellant and the Chicago Railways Company, but after-wards discontinued as to the latter.

The accident occurred on May 9, 1908, on State street, between Lake and Randolph streets, in the City of Chicago. There were three street railway tracks in State street at this point, on the most easterly of which appellant operated its cars in a southerly direction; on the other two tracks, the middle and the most westerly one of the three, the Chicago Railways Company ran its cars in a northerly direction. Appellant’s cars ran north on State street to Washington street, thence east to Wabash avenue, thence north on Wabash avenue to Lake street, thence on Lake street back to State street, thence south on State street. The evidence shows that as appellant’s cars ran around this loop, the entrance and step faced the street-curb nearest to it, except when they ran south from Lake street at which time the step and entrance faced west toward the middle track on State street. At the point of the accident, midway between Lake and Randolph streets, the two tracks were about four feet and eight inches apart. The cars operated by the appellant were nine feet in width, extending two feet one and one-half inches beyond each side of the track, while the cars operated by the Chicago Railways Company were about eight feet and eight inches wide, and extended one foot ten and three-fourths inches beyond each side of the track. It thus appears that the easterly track and the middle track were so placed and arranged in the street that the north- and south-bound cars, in passing each other on said tracks, ran so close to each other that a person standing on the step of the south-bound car would be liable to be struck by any passing northbound car running on the middle track. The declaration alleges, and the evidence tends to show, that on the day in question, in the night time, plaintiff’s intestate was a passenger on a south-bound car of the defendant, the Chicago City Railway Company, being, operated on the said easterly track, and was standing on the step on the west side of the car, and at some point between Lake and Randolph streets, while thus standing on the step, he was struck by a north-bound car of the Chicago Railways Company running on the middle track.

Appellant urges as grounds for reversal of the judgment that the verdict is against the weight of the evidence and is not justified by it; that the court erred in its rulings upon the admission of evidence; that counsel for appellee made improper remarks in his closing argument to the jury, and that the damages awarded are excessive.

Upon the question of liability, we first consider whether or not the evidence shows the negligence on the part of defendant averred in the declaration.

The first count of the declaration, after setting out the location of the tracks of the defendant with reference to each other and the directions in which the cars were operated on each track, and that the cars of the defendant were approaching each other on the tracks, the position of the deceased on the car of appellant, avers the duty of the defendant to warn the plaintiff’s intestate of the approach of the car of the Chicago Railways Company, and that the- appellant negligently failed to give any warning. The second count avers that the defendants and each of them so carelessly, negligently and improperly ran, managed, operated and controlled the car upon which the plaintiff’s intestate was riding and the north-bound car; that thereby plaintiff’s intestate was struck and killed.

There is no conflict in the evidence. It appears without controversy that up to the time that appellant’s car reached the intersection of State and Lake streets, the door on the right-hand side of the car was open for entrance and exit of passengers, and that there was, up to that point, no track between the door and the curb of the streets on which the car ran. When the car reached the intersection of State and Lake streets, it stopped for some moments. Plaintiff’s intestate was standing bn the rear platform. When the car turned into State street, the right-hand door of the car remained open and was the only exit from that end of the car. As the car ran south from Lake street, the door thus opened upon the north-bound track of the Chicago Railways Company, on which cars were operated running north. The door on the left-hand side of the car, nearest to the curb, remained closed and thus the door on the right-hand side of the platform opening upon the track of the Chicago Railways Company was the only exit. After the car had started south on State street, and had reached a point about midway between Lake and Randolph streets, plaintiff’s intestate stepped down from the platform to the step of the car, and, as he did so, a north-bound car of the Railways Company, which was at that moment passing, struck him and knocked him off appellant’s car. No warning was given to plaintiff’s intestate of the approach of the Chicago Railways Company’s car; the instant that plaintiff’s intestate put his foot down, or stepped upon the step from the platform, he was struck.

Upon this evidence we are constrained to agree with the jury in its verdict that the defendant was guilty of the negligence averred in the declaration. It was a question for the jury, and we see no reason for disturbing its verdict upon that question.

The next question is,—was the plaintiff’s intestate guilty of contributory negligence at the time he was injured? The testimony of the appellant’s conductor as to what the plaintiff’s intestate did at the time of the accident is as follows:

“What next happened, he stepped out to get off and I spoke to him and told him not to get off, 1 You will get hurt.’ When I said that to him, he didn’t say a word.
“Q. Now, at the time when he stepped down, did he take a long time about it,' or did he do it quickly? A. It was all in just an instant, that quick. (indicating a snap of the fingers). I would not be positive whether he got both feet down or not; I see one foot down, that is all; I would not be positive about the other. When I spoke to him and told him not to do that he did not make any effort to get back on the platform again; there was no time for that; it happened that quick (indicating); the instant he put his foot down there he was gone. It knocked him clear off my car.”

The warning, and the only warning, which was given to plaintiff’s intestate was not to get off the car. There is no evidence in the record that he intended to leave the car at the point where he was struck; the evidence tended to show, if anything, that he perhaps intended to leave the car when it reached Randolph street. He was not warned of the proximity of the railroad tracks to each other, or of the approach of the Chicago Railways Company car; he was simply warned not to get off; he was not restrained in any way from stepping upon the step of the car, and there is no evidence that he knew of the danger caused by the passing of the cars within less than a foot of each other.

It is not negligence per se for a passenger to step upon the foot-board or step of a moving street car as it approaches his destination. Peterson v. Chicago Consol. Traction Co., 231 Ill. 324. In the absence of a barrier or warning, a passenger is not bound to presume that other cars will pass so closely as barely to miss the car in which he is riding, or that he will be in danger from a passing car if he stands upon the step of his car preparatory to leaving it. Pell v. Joliet, P. & A. R. Co., 238 Ill. 510.

It was likewise a question for the jury whether, without warning of the peril which existed and without any effort to prevent him from stepping upon the step in a place of danger, when the door leading to the step was open and was the only exit from the car, the plaintiff’s intestate was guilty of contributory negligence. We find no reason in the facts shown by the evidence to disturb the verdict of the jury on the question of contributory negligence. In our opinion, the open door of the car leading out upon street car tracks upon which cars were passing, and were liable to pass, in the opposite direction, upon the facts in this case, was negligent management and operation of the car, and in violation of the degree of care which the appellant was bound to exercise toward the plaintiff’s intestate while a passenger; and plaintiff’s intestate was not guilty of contributory negligence in stepping upon the step of the car preparatory to leaving the same at the next stopping place which we think the evidence tended to show. The evidence fairly tends to show that the danger which the plaintiff’s intestate encountered was an unknown danger to him; and it is a matter of common knowledge that passengers frequently step upon the step of a car some distance before the car arrives at the point where the passenger intends to alight, so that they may leave the car promptly as soon as it stops. By the open door the plaintiff’s intestate was invited to leave the car through that door, and we think the verdict of the jury, in effect holding that he was not guilty of contributory negligence, ought not to be disturbed.

We do not think the trial court erred in admitting the testimony of the witness Amet as to the locations of the track, the character and width of appellant’s and the Chicago Railways Company’s cars, and the distance they overhung their respective tracks. We do not think that the admission of the testimony of the witness Elberson was error, to the effect that he had passed the location of the accident many times a day from October 17, 1907, to the day of the accident, and continued to run on that street until March 13, 1910, and that, during that time, he had seen work done on the east' track. The materiality of the evidence is not apparent, but its admission is not reversible error.

The following question was also put to the same witness :

“Q. I will ask you in direct if the tracks, and the distance, etc., and the general location and the situation of them was the same on the night of the accident that they were on or about October of 1907?
“A. Tes, sir; there had been no changes during that period of time in the situation of those tracks as I described them.”

We do not think it was error to admit the evidence.

The alleged improper conduct of counsel for appellee in his closing address to the jury is urged as a ground for reversal. The language used was extravagant and violent. The court sustained an objection made to the language used by counsel as referring to things that were outside of the evidence in the case, and directed the jury to disregard any statements of counsel that were not founded upon the evidence. We think the language used by counsel is open to severe criticism, but we cannot see from the record that the character of the address of counsel in any manner affected the verdict of the jury, or that the passions of the jury were aroused and inflamed thereby.

In our opinion, the verdict and judgment is not excessive in amount.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John E. Geohegan et al., Appellants, v. Union Elevated Railroad Company et al., Appellees.
    Gen. No. 17,429.
    1. Elevated railroads—damages. In an action on the case, where plaintiff avers damage to real estate resulting from the construction and operation of an elevated railway, he cannot contend that the issues are limited to damage from construction.
    2. Elevated railroads—instructions with reference to damage. In an action on the case, where the issues are as to the damage to realty from an elevated railway, instructions using the words “operation and maintenance” will be construed to include “construction,” and the omission of the word “construction” is not error.
    3. Elevated railroads—instructions as to damages. Instructions giving a “before and after” rule of benefit or damage in an action for damages to realty by an elevated railway are not erroneous because they fail to eliminate other elements, such as increase of population, better business conditions, etc.
    4. Elevated railroads—damages. In an action for damages to real estate by an elevated railway, it is not error to refuse instructions which exclude from the consideration of the jury travel benefits or so much of the travel benefits as the property shared with other property in the neighborhood.
    5. Elevated railroads—evidence of damage. In an action for damage to real estate by an elevated railway, it is not error to exclude testimony tending to show that benefits to property a block away would be greater.
    6. Elevated railroads—evidence as to damages. It is not error to exclude testimony of a witness as to depreciation in the market value of property, considering the railway alone and without operation, when the action was for damages caused by construction and operation.
    7. Evidence—testimony of agent that he signed petition for construction of railway. In an action for damage to real estate by an elevated railway, it is not error to permit a witness to be asked as to whether, as agent for plaintiff, he signed a consent petition, to have the railway constructed.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 22, 1912.

      Harry S. Mecartney, for appellants.
    James J. Barbour, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An action on the case was brought in the Superior Court of Cook County by appellants (plaintiffs below), to recover damages to real estate resulting from the construction and operation of an elevated railroad by the appellee (defendants below), in Fifth avenue, in the city of Chicago, in front of appellants’ premises, known as Nos. 47 and 49 Fifth avenue (old numbers), a frontage of 38 feet, and located about halfway between Lake and Randolph streets. A four-story and basement brick building occupied the premises.

The declaration, consisting of one count, alleges that this building was and is occupied by tenants for short terms, and is particularly adapted for hotel, lodging house, office and mercantile business; that the construction and operation of the elevated railroad aforesaid by appellees permitted and caused to be thrown from their cars, trains and station platform upon said premises and said street in front of said premises, soot, smoke, steam, cinders, sparks, ashes, coal, dirt, water, snow, ice, grease, oil and filth; and caused the air in and about, said premises to be filled with disagreeable and harmful odors, steam, vapors and gases; and caused great noises, rumblings, creakings, uproar and confusion,—thus interfering with the use of the premises for which they were adapted and causing a depreciation in their value.

Upon trial the jury returned a verdict of not guilty.

Appellants urge as grounds for reversal that the court erred in giving certain instructions on behalf of defendants and in refusing certain instructions tendered by plaintiffs; that the conduct of appellees’ counsel was unfair and prejudiced the jury against appellants; that the verdict and judgment are against the law and weight of evidence.

Counsel for appellants, in his brief, urges that the case is brought for the construction of the elevated railroad for railroad uses, not for the construction, maintenance and operation. With this contention we cannot agree for the reason that the declaration avers that upon the completion of the elevated railway structure, station house, connections, etc., the defendants then and there proceeded to and did operate, and from thence hitherto have continued, and will henceforth continue to operate, over and upon and along said elevated railway structure in front of said premises a large number of engines, cars and trains of cars, and by the construction and operation of the road, defendants permitted and caused to be thrown from said cars and trains and said structure upon said premises and said street in front of said premises, large quantities of soot, smoke, steam, cinders, sparks, ashes, coal, dirt, water, snow, ice, grease, oil and filth, etc., and caused great noises, rumblings, creakings, uproar, and confusion, and disturbed and prevented rest and sleep of the occupants of said premises in the night time and daytime as well, etc.

It is urged that some twelve of the instructions tell the jury that the issue is whether the premises in question have been damaged or benefited by the maintenance and operation or operation alone, and only a few of the instructions have the word “construction” in them, while one instruction directly charges plaintiffs with future benefits. We think operation and maintenance of the road necessarily includes construction, and that if the word “construction” had been added in all of the instructions, no new or different meaning would have been conveyed. Maintenance means allowing the structure to stand as it is, and in all fairness, coupled with the other instructions given in the case, includes the acts of defendants in building the structure and keeping it in the street.

The argument of counsel with reference to these instructions and to all of the instructions objected to is peculiar in this,—that no instruction is selected for discussion, nor is it shown to the court in what connection the words “maintenance and operation” are used in any particular instruction,—simply the number of the instruction is given to the court, and counsel proceeds no. further in the argument, than to state generally his objection; in fact, he opens 'his argument in the case as follows: “The points made against the instructions are so many and so obvious that argument upon them would be simply ‘carrying coals to Newcastle,’ and we forbear.”

We are of the opinion that the omission of the word “construction” in the instructions designated was not material error.

It is urged that four instructions, which aim at giving “a before and after” rule of benefit or damage, do not eliminate other elements, as increase of population, better business conditions, etc. These instructions, Nos. (7), (16), (23) and (32), are pointed out simply by numbers as falling within the above objection. We do not think that the instructions are objectionable because of their failure to eliminate increase of population, better business conditions, etc., from the consideration of the jury.

Instructions Nos. (9), (li), (15), (17), (19), (21), (24) and (26) are complained of as containing the vice of singling out portions or elements of the evidence and thus giving undue prominence to them. In our opinion the criticism is not well taken.

We have examined the other instructions given and find no error therein, and none are pointed out to us.

Complaint is also made of the refusal of instruction No. 7, asked by the plaintiffs. That instruction would have told the jury to exclude from their consideration all travel benefits or so much of the travel benefits as the property shared with other property in the general neighborhood of the structure in offsetting benefits to damages. This is not the law as we understand. Metropolitan W. S. El. R. Co. v. Stickney, 150 Ill. 362. We are, however, urged to overrule the Stickney case and establish a different rule, or the rule announced in refused instruction No. 7. It is not our province to directly or in effect overrule decisions of the Supreme Court. It is our duty to follow them.

Complaints are made with reference to rulings of the court upon evidence in the exclusion of material testimony offered by the plaintiffs. We understand the reference on this point to be to the cross-examination of the witness Wood. It appears that the question asked was in what respect the beneficial effect of the elevated railroad to the property on La Salle street differed as to the property on Fifth avenue. This question called for a comparison of benefits for the purpose of showing that the road would bring more benefit to a piece of property a block away than it would to property fronting the elevated structure. We think the exclusion of the evidence was proper. Chicago & P. R. Co. v. Francis, 70 Ill. 238.

The only other portion of the record to which our attention is called, where the ruling on evidence is claimed to be erroneous, is the attempted recall of the witness Winston on cross-examination for the purpose of asking him the same questions as to comparative effects of the road on property on La Salle and Clark streets, which were ruled out while the witness Wood was on the stand.

Complaint is also made that Mr. Getchell, a witness for the defense, was asked on cross-examination his estimate of the depreciation in market value which this structure, considered alone and without operation, would have upon these premises, or would have had in 1897. The court sustained defendants’ objection to the question upon the ground that no such condition was shown to exist. The declaration asks for damages not only for the construction,, but for the operation of the road. It asks damages because of the erection of the structure for the purpose of its permanent operation as an elevated road. Appellants, however, had the benefit of the witness’ statement to the effect that the structure itself would be an objection in front of business property. The witness further said that whatever damage of the structure as to the light and air on the premises there might have been, was offset by the benefit from the transportation facilities of the structure. The jury, therefore, was possessed quite fully of the views of the witness as to whether or not the property was damaged by the structure in 1897, and no possible harm came to plaintiffs from the ruling on his cross-examination.

In our opinion, the court did not err in permitting the question to be asked of Mr. Fitch as to whether he had signed a consent petition as agent for appellants to have the railroad constructed.

It is urged on behalf of appellants that the verdict is against the weight of the evidence, and the court is asked to do the. unprecedented thing of entering judgment for the plaintiffs here in this action of unliquidated damages.

The evidence on behalf of appellants consists of a number of photographs, showing the premises from different points of view; the testimony of Judge Fitch as to rents, values and damages; the testimony of William B. Gibbs, who testified as to property twenty feet south of the property in question sold in 1892 for $26,000 for the land and $12,000 for the building; the testimony of Oscar Wolf, who was a tenant of the building from 1895 to 1898, and stated the effect in his opinion of the operation of the trains upon the use of the premises resulting from the noise, the lessening of light, etc. Judge Fitch’s testimony related largely to the rents from 1892 on, and the diminution or decrease in the rental values. His method of arriving at the results which he gave was by deducting insurance and taxes from the toal amount of rents received, and then capitalizing the net balance at five per cent interest.

On the part of the defense the testimony .was received of Mr. Griffin, secretary and treasurer of the Northwestern Elevated R. R. Co. and the Chicago & Oak Park Elevated R. R. Co., as to the number of passengers carried by the four elevated roads from and to the.loop; also the witnesses Howe, Wood, Winston, Bechtel, Kesner, White, Whedon, Davis, Getchell and Stevens. Upon consideration of the testimony in the record, we cannot say that the verdict of the jury is contrary to the evidence. We find no reversible error in the record, and the judgment is affirmed.

Affirmed.


text:
    John F. Boyer, Administrator, Appellant, v. Northwestern Elevated Railroad Company, Appellee.
    Gen. No. 17,461.
    1. Death—cause of action. In an action to recover damages to a widow and next of kin for death by wrongful act, proof that the widow was dependent upon deceased and that children were born to them makes out a cause of action based on the leaving of a surviving widow and next of kin.
    2. Death—number of children left surviving may be proved. In an action by a widow and next of kin to recover damages for death by wrongful act, it is error to refuse to admit evidence as to the number of children left surviving by the deceased.
    3. Appeals and errors—when refusal to admit proof is harmless error. Where a jury in an action for death by wrongful act, by their general verdict and answer to a special interrogatory, find for defendant, refusal to admit proof as to the number of children left surviving by the deceased is harmless error.
    4. Death—when instruction on meeting burden of proof is not objectionable. Where objection has been sustained to evidence as to next of kin in an action to recover damages to a widow and next of kin for death by wrongful act, an instruction that if the plaintiff has not met the burden to prove the facts alleged in the declaration the defendant shall be found not guilty, is not in effect a peremptory instruction to find for the defendant.

      5. Instructions—when jury does not determine facts relied on by plaintiff. An instruction requiring plaintiff to prove the facts alleged in his declaration and relied upon by him in the case is not objectionable as leaving it to the jury to determine the facts upon which the plaintiff relies.
    6. Instruction—burden of proof. Where a man was killed on crossing a railroad track, an instruction that the jury are not permitted to assume that the decedent had used due care, but that the burden is upon the plaintiff to prove such fact by a preponderance of evidence, is not objectionable.
    7. Executors and administrators—when judgment for costs in improper form. WThere an administrator sues as plaintiff in an action for death by wrongful act, and judgment is given for the defendant, the fact that the judgment awards an execution against the administrator for costs without requiring them to be paid in due course of administration is a purely technical error and may be corrected by a proper form of judgment entered in the appellate court.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. William B. Scholfield, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed October 22, 1912.
    Charles S. Graves, for appellant.
    Sheriff, Dent, Dobyns & Freeman, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Suit was brought in the Circuit Court of Cook County by the administrator of the estate of Philip A. Ohneth, to recover damages to the widow and next of kin caused by the death of said Ohneth, who was killed while crossing the tracks of the railroad company.

The accident occurred in the city of Evanston at the railroad crossing at Foster street. This street runs east and west, while the tracks run north and south and, at this point, on the surface. There are three, tracks crossing the street; the east track for southbound trains, the center track for northbound trains, and the west track was used simply for switching. On September 11, 1909, at about four o’clock in the afternoon, Ohneth, on a bicycle, was riding west on Foster street approaching the railroad crossing. A southbound train had stopped in the center of Foster -street; another southbound train had just preceded it and was drawing slowly away. As Ohneth on his bicycle approached defendant’s tracks, the train which had stopped, began to move south slowly, and Ohneth rode behind it across the tracks and was struck and instantly killed by a rapidly moving northbound train on the center track. The jury found defendant not guilty.

Amanda Ohneth, widow of the deceased testified that she was married to the deceased April 14, 1896, in Chicago, and that they lived together as husband and wife up to the time of his death, September 11, 1909. She was then asked, “How many children were born to you and Philip A. Ohneth?” and objection to this question was sustained by the court. She was then asked, “At the time of Mr. Ohneth’s death, did you and Mr. Ohneth have any children?” Objection to the question on the ground of immateriality was sustained by the court. The court also sustained an objection to the question whether a child or children were born to the witness after the death of Mr. Ohneth. She testified that she was supported by Mr. Ohneth at the time of his death. She was then asked, “Were any children born to you and Philip Ohneth? ’ ’ To that question the court overruled an objection, and she answered in the affirmative. She was then asked, “How many?” and an objection was sustained. In our opinion the court erred in excluding the evidence. The evidence was manifestly proper. The admitted evidence shows, however, that Mrs. Ohneth was dependent upon the deceased for her support and that children were born to them. The record, therefore, shows that the deceased left him surviving a widow, and, in the absence of proof that the children born to them had died, that he left him surviving next of kin. This proof, in our opinion, made out a cause of action, as to the leaving of a surviving widow and next of kin, and the proof in that respect answered the requirements of the statute upon that branch of the plaintiff’s case.

The jury returned a general verdict of not guilty and answered in the negative the following special interrogatory:

“Was the deceased, Philip A. Ohneth, in the exercise of due and proper care for his own safety at the time of the accident which resulted in his death?”

If the proof as to the number of children left surviving by the deceased had been admitted, it could, therefore, have added nothing to the case, unless it would have been to augment the damages. The general verdict and the answer to the special interrogatory shows that the jury never reached the question of damages. It decided the question of negligence in favor of the defendant, and it therefore became unnecessary for it to consider the question of damages. We think, in view of the verdict of the jury, the error in excluding the evidence offered was harmless. Stevens v. Brown, 14 Ill. App. 173. Had the evidence been admitted, it would have made no difference in the result reached by the jury, for the reason that, having found that there was no liability, the evidence as to the amount of damages could not have affected their decision. Hill v. Parsons, 110 Ill. 107.

It is urged that the court erred in giving to the jury, at the request of defendant, the following instruction :

“The burden of proof is on the plaintiff to prove by a preponderance of the evidence, the facts alleged in his declaration, and relied upon by him in this case, and if the plaintiff has failed to prove said allegations by a preponderance of the evidence, or if the evidence is evenly balanced or preponderates in favor of the defendant, then you should find the defendant not guilty.”

This instruction, it is urged, was in effect a peremptory instruction to find the issues for the defendant, in view of the fact that the court had sustained objections to evidence as to next of kin, which was an essential averment in the declaration. Prendergast v. Chicago City Ry. Co., 114 Ill App. 156 is cited as authority for this position. In that .case the deceased was unmarried and the court refused to permit the plaintiff to prove that the deceased contributed to the support of his father. There was in that case, therefore, no proof in the record of any one to suffer any financial injury by the death of the deceased, or of any one who would be entitled to receive damages if they had been awarded by the jury. We think the case not . applicable to the case at bar.

It is further urged in support of the objection to the instruction, that it leaves to the jury to determine the facts upon which the plaintiff relies in the case. We do not think the instruction can be so construed as to leave the question of the materiality of the allegations in the declaration to the jury, or any other question of law. It simply directs the jury to look to the declaration for a statement of the facts in plaintiff’s case. Beference to the declaration in instructions is common, ordinary practice in this jurisdiction, and it has been repeatedly held that while it is objectionable it is not error. We do not think this instruction makes the jury judges of the effect of the averments in the declaration, but merely empowers them to determine whether the proof introduced sustains the issues made by the pleadings in the ease. This practice has been upheld in Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322; Ohio & M. R. Co. v. Porter, 92 Ill. 437; Central R. Co. v. Bannister, 195 Ill. 48, and many other cases cited. In our opinion, the instruction stated to the jury that the burden of proof was on the plaintiff to prove by a preponderance of the evidence the facts alleged in the declaration, and the addition of the words, “and relied upon by him in this case” was harmless.

Error is assigned upon the giving of instruction No. 5 at the request of defendant. That instruction reads as follows:

“You are not permitted to assume that the deceased, Philip A. Ohneth, was exercising due and proper care for his own safety at and about the time of the accident, but the burden is on the plaintiff to prove such fact by a preponderance of the evidence, and if he has failed to make such proof as is required by this instruction, then your verdict should be in favor of the defendant. ’ ’ We do not think the court committed error in giving the instruction.

Upon a study and examination of the evidence in the case, and without citing and analyzing it, we think that the evidence sustains the verdict of the jury.

Error is assigned upon the judgment in that it awards an execution against the plaintiff, and administrator, -for costs, and omits the proper direction to be paid in due course of administration. This is a purely technical error as to form of judgment, and may be corrected by a proper form of judgment entered in this court. Church v. Jewett, 2 Ill. (1 Scam.) 55; Masters v. Masters, 13 Ill. App. 611; Robinson v. Kirkwood, 91 Ill. App. 54.

The judgment of the Circuit Court is reversed and modified here so as to affect the plaintiff only in his representative character as administrator.

Reversed.


text:
    Mary Miller, Appellant, v. Louis Mandel, Administrator, et al., Appellees.
    Gen. No. 17,500.
    1. Mobtqages—what establishes prima facie case for foreclosure. Where it is sought to foreclose a deed of trust which is contended to have been given only to secure the payment of an annuity, and neither the execution of the deed nor its proper transfer to its holder is put in issue by the pleadings, and the execution and transfer is proved and substantially admitted by the grantor, a prima facie case for a decree of foreclosure is established.
    2. Mortgages—presumed to be what it is. The presumption is that a mortgage or deed of trust is what it purports to be, security for the note evidencing the indebtedness secured thereby.
    3. Mortgages—burden to establish that it is not what it purports to be. A person asserting that a trust deed and note are only collateral security for the payment of an annuity, and that an instrument in writing was executed which changed and modified the purport of the note and trust deed, has the burden of establishing that claim by proof sufficiently clear, satisfactory and convincing to overcome the presumption arising upon the execution and delivery of the papers.
    4. Mortgages—when evidence insufficent to establish that trust deed was not for a debt. It was attempted to alter and avoid a trust deed and note by proof of a collateral, contemporaneous agreement executed between a parent and children that the deed be given as collateral security for the payment of an annuity to the father. Witnesses testified that a contract was made, but could not state positively that an annuity was mentioned, and there was other testimony by a person who did not see the agreement after it was executed. Held, the testimony was too loose, indefinite and unsatisfactory to justify a court of equity in decreeing that the trust deed was given as security for the annuity.
    5. Mortgages—when evidence as to conversation is inadmissible in avoiding a trust deed. In establishing that a trust deed was given merely as security for the payment of an annuity as evidenced by an agreement, a person who was present when the agreement was being drawn may not testify as to a conversation between the alleged annuitant and a justice of the peace who drew the papers.
    6. Mortgages—when evidence as to collateral agreement is inadmissible. In establishing that a trust deed was given merely as security for the payment of an annuity as evidenced by an agreement, a person who advised the making of the agreement, who was not present when it was signed and who did not know that it was in the same condition when signed, cannot testify whether a conversation he had with the alleged annuitant and another was embodied in the agreement.
    Foreclosure of trust deed. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honroe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 22, 1912.

      F. J. Griffen, for appellant.
    Rosenthal & Hamill, for appellee, Dorothea Klatt; Lessing Rosenthal and Leo F. Wobmser, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an appeal from a decree of foreclosure entered in accordance with the prayer of the cross-bill of Dorothea Klatt, defendant and cross-complainant below and one of the appellees here, upon a trust deed securing a $1,700.00 note made by Henry and Augusta Mandel.

The original bill of complaint, filed February 2, 1904, by appellant states that the complainant is the owner of the real estate in question, containing 131 acres more or less, and that she derived title to the land by the will of her former husband, Henry Mandel, which will was duly admitted to probate in the Probate Court of Cook County, Illinois, on September 7,1909; that the said Henry Mandel went into possession of the land as owner on February 1, 1894, and continued in such possession until the time of his death on March 24, 1900, at which time complainant went into possession thereof as owner and has ever since been in exclusive possession of all the land. The bill avers that Henry Mandel derived title to the land by warranty deed from his father, Christian Mandel, dated February 1,1894, and duly recorded; that at the time of making the deed, Christian Mandel was in feeble health and undertook to make a distribution and division of all his property among his children, and conveyed the land in question to Henry Mandel, his son. At the same time he conveyed his other lands to his other sons. At the time of the conveyance of the land to Henry Mandel for the purpose of making said distribution of the property of said Christian Mandel among Ms children, Henry Mandel and his wife made their promissory note for $4,500.00, due August 12, 1899, bearing interest at four per cent, per annum, and to secure the same, said Henry Mandel and his wife made a trust deed to Frederick Mandel, Sr., which note and trust deed were delivered to Theodore Mandel, a son of Christian Mandel, as his share of the property of his father, and Christian Mandel made a full distribution of his property among his children, giving each what said Christian Mandel deemed to be an equal share thereof, and the children who received real estate as and for their share of the estate, namely, Henry Mandel, Louis Mandel, August Mandel and Christian Mandel, Jr., made, in consideration of the conveyance of land to them, an agreement with said Christian Mandel whereby each agreed to pay said Christian Mandel $100.00 per year during his life, and to secure the said payments, the said Henry, Louis, August and Christian, each executed and delivered to Christian Mandel their promissory note, dated February 1, 1894, for $1,700.00 purporting to bear interest at the rate of six per cent, and secured by trust deeds to Frederick Mandel, Sr., to the lands respectively conveyed to them; that the notes and trust deeds were made solely and only as security for' the payment of said annuity of $100.00 to Christian Mandel during his life.

The bill avers that Christian Mandel died June 9, 1900, and that Henry Mandel paid to said Christian Mandel $100.00 per year during his life with the possible exception of the year 1900, the year in which both said Christian and Henry Mandel died; that said annuity was paid for the year 1899 by board and care, and the annual payments for the previous years were by Christian Mandel endorsed on said note for $1,700.00, as appears by a copy attached as “Exhibit C” to the bill and made a part thereof. The bill tenders and brings into court $200.00 for any unpaid part of annuity found by the court. The bill prays that an account may be taken and that the trust deed to Frederick Mandel, Sr., may be declared a cloud on complainant’s land and removed. The bill makes Louis Mandel administrator of the estate of Christian Mandel, deceased, Louis Mandel and August Mandel executors under the last will and testament of Theodore Mandel, deceased, Louis Mandel, August Mandel, Dorothea Klatt, Fred Mandel, Sr., trustee, and William Schultz, successor in trust, parties defendant. Louis Mandel individually and as administrator, Dorothea Klatt and Fred Mandel, Sr., trustee, filed a joint and several answer to the bill, admitting many facts stated in the bill as to the execution of the papers set forth therein, and denying the payment of the annuity of $100.00 per year during the life of Christian Mandel as averred in the bill. The answer admits that the trustee has refused to release the trust deed for $1,700.00, unless $1,700.00 and interest thereon is fully paid; and that the administrator demands payment in full of the $1,700.00 note and interest thereon.

Defendant, appellee Dorothea Klatt, on September 14, 1904, filed her cross-bill in the usual form for foreclosure of the $1,700.00 note and the trust deed. To the cross-bill, complainant answered, and the chief and only defense set up in the answer is the alleged agreement set up in her original bill of complaint, that the note and mortgage were given Christian Mandel, Sr., as security only for the payment by Henry Mandel to him of an annuity of $100.00 per year during his life.

By an amendment to the original bill, the allegations are changed so as to read that the note and trust deed were given as security for the payment of $100.00 annuity only for ten years and not during the entire life of Christian Mandel, and 'that the arrangement was embodied in a contemporaneous written contract executed by Christian Mandel, Sr., and his children.

The cause was put at issue and on the trial the court entered a decree dismissing the complainant’s bill and decreeing a foreclosure of the $1,700.00 note and trust deed in favor of the cross-complainant, the chancellor finding that the material allegations of the bill were not supported and sustained by the evidence and proof, and that the $1,700.00 trust deed were given to secure indebtedness which had not been paid.

Neither the execution of the $1,700.00 note and trust deed by Henry and Augusta Mandel and their delivery to Christian Mandel, Sr., or the proper transfer thereof to Dorothea Klatt, the holder of the note at the time of the filing of her cross-bill, were put in issue by the pleadings. These facts were proven and substantially admitted in the evidence offered on behalf of appellant. This established a prima facie case for a decree of foreclosure upon the note and trust deed. Boudinot v. Winter, 190 Ill. 394.

The presumption is that a mortgage or trust deed is what it purports to be,—security for the note evidencing the indebtedness secured thereby. The original bill of complaint asserts that the trust deed and note are not what they purport to be, but are collateral security only for the payment of an annuity of $100.00 a year to Christian Mandel, Sr., for ten years, and that an instrument in writing was executed which changed and modified the purport of the note and trust deed. Upon this issue, the burden of establishing that claim by proof sufficiently clear, satisfactory and convincing to overcome the presumption arising upon the execution and delivery of the papers, was upon the complainant, appellant. When one claims that a deed, purporting upon its face to be an absolute conveyance, was intended only as a mortgage, or when one seeks to prevent the collection of a promissory note on the ground that the note, despite its provisions, was made and given only as collateral security, this rule of law is applicable. Courts will not lightly unmake or disturb the effect of a written document. They require proof that is convincing to justify interposition. In Eames v. Hardin, 111 Ill. 634, it was said: “It is never done on vague and inconclusive evidence. It may be proved by verbal testimony, but it must be entirely satisfactory, if not conclusive.”

The attempt in the original bill of complainant and by answer to the cross-bill is to alter and avoid the effect of the $1,700.00 note and mortgage by proof of a collateral agreement executed between the father and the children at the time the $1,700.00 note and mortgage were executed and delivered. Whether the claim be, as here, that a note and trust deed was in fact not intended as such, or that a deed was in fact not intended as an absolute conveyance, but only as a mortgage, or that a note was in fact not intended to evidence the debt it recites, but was only collateral security to secure some other debt or obligation, the rule of law as to the burden of proof is in all cases the same. In Rankin v. Rankin, 216 Ill. 132, the bill sought to have a warranty deed declared a mortgage with the right of redemption. The court said:

“The burden of proof, however, is upon the person asserting such fact, and before a deed absolute in form can be declared to be a mortgage, the proof showing that fact must be clear, satisfactory and convincing. Sutphen v. Cushman, 35 Ill. 186; Lindauer v. Cummings, 57 Ill. 195; Bentley v. O’Bryan, 111 Ill. 53; Burgett v. Osborne, 172 Ill. 227; Heaton v. Gaines, 198 Ill. 479.”

The same rule was announced in Gannon v. Moles, 209 Ill. 180; and in Bentley v. O’Bryan, 111 Ill. 53, the court said: “Loose, indefinite and unsatisfactory evidence will never suffice.” In Wilson v. McDowell, 78 Ill. 514, the appellant was seeking to redeem certain lands claiming that the appellee had purchased the title only to hold the same as security for the money expended by appellee for such purchase. The agreement was denied by appellee. The court in affirming the decree and dismissing the bill said at page 517:

11 When contracts of this character are set np to overcome and defeat a deed, the evidence must be clear and convincing in its character.”

Many other decisions of onr court to the same effect might be cited, and we think there are none to the contrary.

The burden assumed by appellant in her appeal is twofold. She must not only overcome by satisfactory evidence the presumption that the note and trust deed, executed by Henry and Augusta Mandel, was evidence of an original indebtedness, but she was compelled to establish this by adequate parol proof of the contents of the lost collateral agreement upon which she relied.

What then does the complainant’s evidence show? Her main reliance is upon the testimony of Mr. Enraman as to the lost agreement and its contents. Mr. Kemman’s testimony is in substance that he is a farmer at La Grange, Illinois, and knew Christian Mandel, Sir., in his lifetime, and knew his sons, and daughters; that he was a justice of the peace in 1894, and that about February 1st, he was consulted by Christian Mandel and prepared the papers referred to in the pleadings, including the lost contract in question. He says that the contract stated that each of the four sons was to have a farm and Henry Mandel 130 acres in Cook County, and Louis Mandel 130 acres in Cook County, and Theodore and August each 80 acres in DuPage- County; that Louis Mandel was to give a trust deed back for $4,500.00 to his uncle to secure that amount to Theodore, and Henry Mandel the same; he was to give a trust deed for $4,500.00 for security to Christian Mandel and also a trust deed for $1,700.00 to Fred Mandel to secure payment of $100.00 each year to old Mr. Mandel, payable for ten years, and that Mrs. Klatt was to have her notes made before that time, in possession of Christian Mandel, Sr., returned to her; that the $1,700.00 note and trust deed was to secure $100.00 to the old man each year; that the contract was for the purpose of making a division of the entire estate, although he would not state that there were words in the contract to that effect. He further states, “I don’t know anything more than just what the note and trust deed states.” On cross-examination he testified:

“Q. Now did that agreement say anything about surrendering or cancelling or discharging of the $1,700.00 notes and trust deeds? A. I don’t think it said anything further than it was to run for ten years.
“Q. That is all it said? A. Yes.
“Q. Now is your recollection absolutely clear as to whether that agreement stated that it was to pay that note,—these notes—$100.00 a year was to be paid to Christian Mandel, or that it read that the interest on these notes was to be paid to Christian Mandel? A. I would not state, I could not state that hardly.
“Q. It is not absolutely clear? A. No, sir.
“Q. You are absolutely clear on the point that the contract said nothing about the surrender of this note and trust deed at any time? A. Well, I am pretty sure that it did not state anything about a surrender at any time,—it was just left open, that is all.”

He further said: “I don’t think the word ‘annuity’ was in it at all.”

Mr. Holmes was called as a witness by the complainant, and testified that he advised the drawing of the agreement; that Christian Mandel consulted him in regard to it, and that his memory is more definite as to what he advised than about the division of the estate. He testified that he did not see the agreement after it was executed. This is substantially all of the evidence offered by complainant in support of her bill, and in defense to the cross-bilk

The deposition of W. J. Springer was read on behalf of the defense. He testified that in the early part of 1894 Dorothea Klatt and her husband came to his office with an agreement between Christian Mandel, Sr., and his children, and he examined the paper and remembers its general import. He testifies that it was a settlement between Dorothea Klatt’s father and his children in relation to some land. Some of the children gave him notes secured on the land, but he could not remember the amount of the notes and when due. Some fixed amount was to be paid to the father by certain of the children; that he is unable to remember which ones, and these amounts were secured either by trust deed or mortgage on land. The notes were like ordinary notes given and secured by trust deed. They were payable at a certain time, drawing a certain rate of interest. He says, “I don’t think there was any provision for the payment by the children to Christian Mandel of an annuity.”

In our opinion the testimony as to the contents and provisions of the agreement is too loose, indefinite and unsatisfactory to justify a court of equity in decreeing that the note in question and trust deed securing it, were given as collateral security simply to secure the payment of an annuity to Christian Mandel, Sr., for ten years; and we think the court properly found that the evidence failed to support the material allegations of the original bill of complaint.

The evidence in regard to the inventory and accounts in the Probate Court does not, in our opinion, furnish any proof of a common understanding between the heirs and the administrator of Christian Mandel that there was any such agreement or that the securities held by Christian Mandel, Sr., were subject to the provisons of the alleged collateral agreement.

It is urged that the court erred in refusing to receive the evidence of Thomas J. Holmes as to the statement of Christian Mandel to him at the time that Holmes advised the making of the agreement as to what he was going to do. The question ruled out by the court was the following:

“Q. You may state what they told you they were going to do,—Mr. Mandel and Mr. Kemman.”

We think the ruling of the court was proper. The following question was then asked the witness:

“Q. Now assume that you prepared this document that has been testified to, you may state whether or not the conversation which you had with Christian Handel and Mr. Kemman was embodied,—the agreement and talk there were embodied in this agreement.”

The court sustained an objection to this question, the witness having testified that he was not present when the agreement was signed, and was unable to say whether the agreement in question was in the same condition when it was signed. We think the ruling of the court in sustaining the objections to the above questions was clearly right. The evidence sought to be introduced in response to the question would not prove or tend to prove the contents of the agreement when it was signed.

In our opinion the decree of the court is supported by the evidence, and is affirmed.

Affirmed.


text:
    Boleslav Jirmalowicz, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 17,513.
    1. Pleading—what is admitted by general issue. Where it is alleged that gates at a public street or crossing were not closed while a train was passing between them as required by an ordinance of the City of Chicago, the ownership and operation of. such gates is admitted by the general issue.
    2. Railboads—liability for failure to operate gates at crossing. Where gates are maintained at a public street and required by ordinance to be operated, a railway company is legally bound to operate them or cause them to be operated when its trains pass, and it may be negligent in failing to so operate them whether they are in charge of a servant paid by it or by some other road.

      3. Railroads—when count avers general negligence. A count sufficiently and properly avers general negligence when it alleges that defendant by its servants, etc., “so negligently and without warning to plaintiff managed its locomotive,” etc.
    4. Railroads—ordinance requiring gates at crossing to he closed construed. The ordinance of the city of Chicago, section 2478, which requires gates at public streets and crossings to be closed when a train or locomotive is crossing between such gates, cannot be construed to require such gates to be closed only when trains or locomotives are so crossing, but requires that they be closed on the approach thereof.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed on remittitur.
    Opinion filed October 22, 1912.
    Kretzinger, Rooney & Keetzinger, for appellant.
    Francis X. Busch, Frank A. Rockhold and Henry Poleenz, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee recovered damages in the court below for personal injuries received as alleged, by being struck by appellant’s engine. The declaration alleged that the appellant controlled and operated a railroad in an easterly and westerly direction along Forty-ninth street in the city of Chicago, and that on the day of the accident, as plaintiff was crossing the tracks at the intersection of Loomis and Forty-ninth streets, defendant so carelessly and negligently operated a certain engine and cars running east, that plaintiff was struck; the negligence alleged being that, contrary to the ordinance of the city of Chicago, defendant did not ring a bell on its locomotive while approaching Loomis street, nor blow a whistle, nor have its gates closed at the crossing in question at the time of the accident.

There is a conflict in the evidence as to the exact place of the accident and as to whether any warning was given of the approach of the train. Testimony in behalf of plaintiff showed that he, his brother, the brother’s wife and child, while returning to their home, walked along a sidewalk on the north side of Forty-ninth street to Loomis street, then turned south on Loomis street to cross the tracks; plaintiff was at this time about six or seven paces ahead of those with him. It was so dark that they could see only a few feet before them. When they reached the tracks a freight train was passing east; after it had passed, plaintiff immediately walked on and was just stepping over the last rail, when the engine of a passenger train going very fast in a westerly direction, caught in plaintiff’s clothing and dragged him some distance. Plaintiff’s witnesses also testified that they heard no bell or whistle warning them of the approach of the train; also, that, while there was a watch-tower at about the middle of the street at this crossing, with tracks on each side, the gates were left open. Defendant’s witnesses testified that the train which struck plaintiff consisted only of an engine and a caboose car; that it was running at about six miles per hour; and that the bell was ringing while they were passing Loomis street ; and' that plaintiff was struck about the middle of the block west of Loomis street.

It is urged as a ground for reversal that the great weight and preponderance of the evidence was with appellant, and that appellee was guilty of contributory negligence which bars his right of recovery. We have given the evidence in the case careful consideration, both as to the alleged negligence of the defendant, appellant, and the contributory negligence, if any, of appellee. The evidence is conflicting as stated above, and it is not possible to reconcile it. Without discussing it in detail, we do not find that it preponderates in favor of appellant, or that the jury, were not justified in reaching the conclusion expressed in their verdict. It was a question for the jury as to whether the conduct of appellee just before and at the time of the accident, as disclosed by the evidence, showed want of ordinary care for Ms personal safety. On tMs question it is important to consider that when appellee’s party reached the Loomis street crossing, a freight train was passing east; immediately after the freight train passed, or while it was passing, the train which struck appellee aproached the Loomis street crossing. If its hell was ringing, or its whistle blowing, the noise produced by the freight train may have prevented appellee, or his party, from hearing the bell or whistle. At any rate, it is a conceded fact that the gates were open, thus giving an implied assurance to the appellee and ids party that no train was approaching, or about to cross Loomis street. Appellee testified that he looked both ways; it was dark and he failed to see or hear any train. Under the circumstances, we are of the opinion that the verdict of the jury was warranted on the issue of contributory negligence, as well as upon the issue of defendant’s negligence.

It is urged that there is no evidence in the case as to the ownersMp and operation of the gates at Loomis street; that the evidence shows that there are two tracks, the Michigan Central and Grand Trunk railway tracks, and that the train of the defendant was on the south side of the right of way, and that, therefore, the MicMgan Central tracks must have been on the side nearest to appellee. The city ordinance was admitted without objection. The ownership and operation of the gates were not put in issue, we think, but was admitted by the general issue. Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446; Chicago Union Traction Co, v. Jerka, 227 Ill. 95; McNulta v. Lockridge, 137 Ill. 270. The gates were maintained and the ordinance required their operation. The appellant was legally bound to operate them or cause them to be operated when its trains passed. Appellant was negligent, we tMnk, in failing to operate the gates whether the gates were in charge of a servant paid by it, or by some other road. Wabash, St. L. & P. R. Co. v. Peyton, 106 Ill. 534.

It is urged that the court erred in giving instructions 2, 3 and 4 at the request of appellee. The second instruction told the jury that if they found from the evidence under the instructions of the court that the plaintiff had made out his case by preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty; and it is urged that the first count of the declaration is defective in that the breach of duty alleged of appellant is that by its servants, etc., “it so carelessly and negligently and without notice or warning to the plaintiff managed and controlled its locomotive,” etc., as to injure the appellee. In our opinion, the first count sufficiently and properly avers general negligence, and that the declaration and the evidence in question formed a proper foundation for the court to give the instruction complained of. It is further urged in support of the objection to the instructions that the fourth count of the declaration, which sets out section 2478 of the ordinances of the city of Chicago, requiring that the gates at public streets or crossings shall be left closed whenever a train or locomotive is crossing any track or tracks between such gates, and averring that it thereby became the duty of appellant to keep said gates closed at such crossing upon the approach of any locomotive, and the failure of appellant so to do, is defective. Appellant insists upon a construction of the ordinance to the effect that the gates were to be closed only when trains are crossing between such gates and that, therefore, the count is defective because, under the instructions given, the jury could find defendant guilty for not lowering the gates on the approach of a train, regardless of the terms of the ordinance set out, and without any requirement of law to that effect. We cannot consent to such a construction of the ordinance. In our opinion the court did not err in the instructions complained of.

It is further contended that the damages awarded by the jury are excessive. With this contention we are inclined to agree upon an examination of the evidence relating thereto. The judgment will be affirmed upon the plaintiff, appellee, filing a written remittitur of all damages in excess of $1,400 within ten days; otherwise the judgment will be reversed.

Affirmed on remittitur.

Remittitur filed and judgment affirmed October 24, 1912.


text:
    Mercantile Credit Company, Appellant, v. Michael Richman et al., Appellees.
    Gen. No. 17,522.
    Appeals and ebbobs—final orders. Orders quashing a writ “of capias ad respondendum and discharging defendant’s hail, and overruling motion to impose terms in connection with the order quashing the capias, are not final and appealable.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Appeal dismissed.
    Opinion filed October 22, 1912.
    Frank Schoenfeld, for appellant.
    Samuels & Samuels, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

In this case a capias ad respondendum was issued for the arrest of appellees, defendants. On their motion the court entered an order quashing the writ and discharging the bail of defendants. Appellant prosecutes this appeal from that order, and from orders overruling its motion for leave to file an amended affidavit for capias and its motion for the imposition of terms in connection with the order quashing the capias.

The orders appealed from are not final. Appeals lie from final orders, judgments and decrees only, except in cases specially provided for by statute. The record discloses no final judgment in the case. The motion of appellees to dismiss the appeal is sustained. Fitzsimmons v. Giddings, 89 Ill. App. 434; Farson v. Gorham, 117 Ill. 137.

Appeal dismissed.


author: Mr. Presiding Justice Gridley

text:
    Leo Kravitz, a minor, by Julius Kravitz, his next friend, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 16,886.
    1. Street railways—instructions must be accurate where evidence is conflicting. Where evidence as to cause of a street railway accident is sharply conflicting, it is of particular importance that the instructions shall be accurate.
    2. Street railways—where giving of thirty-nine instructions in accident case is prejudicial. Where thirty-nine instructions are given for a defendant in a street railway accident case, eighteen of which direct a verdict and some of which are somewhat long and involved, and the entire thirty-nine tend to confuse the jury, the giving of such a number is prejudicial error.
    3. Street railways—when instruction relating to accident at crossing in populous locality is misleading. When a boy is killed by an electric car at a street crossing in a populous locality, and the case is tried on conflicting theories that he was struck while crossing the street by a car negligently operated and that he was struck after he had been “flipping” the car,- an instruction for defendants as to their duty to anticipate attempts to cross, to the effect that the law did not require their servants to be all the while upon their guard against dangers “not reasonably to be expected, the unusual or extraordinary,” which omits any reference to the character of the locality, is misleading and unwarranted under the defendant’s theory.
    4. Street railways—where instructions ignoring age of boy are misleading. Where a boy of twelve or thirteen years is killed at a street crossing by an electric car, instructions on his contributory negligence in failing to discover the approach of the car and to avoid being struck by it, under which the jury may believe that the same degree of care to avoid the accident was required to be exercised by the plaintiff as would be required of an adult, are misleading.
    5. Instructions—when correct on preponderance of evidence. An instruction that the preponderance of evidence “is not alone necessarily determined by the number of witnesses,” with an enumeration following of the matters proper to be considered by the jury, in which enumeration are the words “besides such number of witnesses,” is not faulty.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Louis Bebnbeutee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 31, 1912.
    Rose, Symmes & Kirkland, for plaintiff in error; F. 0. Floberg, of counsel.
    James G. Condon and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action begun in the Superior Court of Cook County by Leo Kravitz, a minor, by Julius Kravitz, his next friend, plaintiff in error and hereinafter called plaintiff, against the Chicago Railways Company and the Chicago City Railway Company, defendant in error and hereinafter called defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of his being struck by a car of defendant in Halsted street at its intersection with 14th place in the city of Chicago. During the trial the action was discontinued as to the Chicago Railways Company and the case proceeded against the defendant upon the first and third counts of the declaration. The jury found the defendant not guilty, and judgment was entered upon the verdict. This writ is prosecuted to reverse that judgment.

The facts, briefly stated, are: Halsted street runs north and south in the city of Chicago. It is intersected at right angles by the following streets, beginning at the north: 14th street, 14th place (also called Henry street), and 15th street. The last named street does not, however, cross Halsted street. South of 15th street are two viaducts crossing Halsted street, the most northerly of which viaducts is 131 feet south of the south building line of 15th street. At the time of the accident there were two street ear tracks on Halsted street,—north-bound cars running on the east track and south-bound cars running on the west track. The accident occurred on May 12, 1908, at about six o’clock in the evening. At that time plaintiff was a minor, between twelve and thirteen years of age, and was attending the public schools. According to his testimony, after he had had his supper he went to Klein’s store, located on the northeast corner of Halsted & 14th streets, to buy a composition book; that after leaving the store he walked south on the east side of Halsted street until he reached the southeast comer of 14th place and Halsted street; that then he started west to cross Halsted street on the south cross-walk of 14th place; that he noticed a car approaching from the south on the east track and he waited until that car had passed, when he advanced toward the west on said cross-walk; that when he reached the west track he was struck by a south-bound car and his right leg was run over; that he was taken to the county hospital where he remained one night; that he was then taken to the Michael Reese hospital, where he remained for about sixteen weeks; that there his leg was operated upon four times and finally was amputated about two inches above the ankle, and that he was laid up about one year as a result of the accident. The testimony of certain witnesses on behalf of plaintiff tended to show that when plaintiff was struck by said south-bound car it was running on the' west track at a high rate of speed without any gong being sounded.

The case was tried on two distinct and opposing theories as to the accident—plaintiff vigorously maintaining one and defendant maintaining with equal vigor the other. At the request of defendant the court gave to the jury an instruction as to these opposing theories in part as follows:

‘‘You are instructed that it is the theory of the plaintiff in this case that he, Leo Kravitz, was attempting to cross Halsted street at or near the intersection of 14th place and that while he was crossing Halsted street at that point as a pedestrian and while in the exercise of due care for his own safety, the defendant so carelessly and improperly drove and managed the car in question that by and through the negligence, mismanagement and unsMllfulness of the defendant’s servant or servants in charge of the car the said car struck the plaintiff and thereby injured him. * * * ”
“You are further instructed that it is the theory of the defendant in this case that the plaintiff, Leo Kravitz, was not so injured while attempting to cross Halsted street as a pedestrian at the place alleged and that he was not struck by the car in question while so attempting to cross the street as a pedestrian, but that he, Leo Kravitz, just prior to the time of the accident, had been flipping the car as defined in another instruction, and had been riding upon the front step of the blind side of the car and that he either fell or jumped off the car while it was in motion, and was thereby injured, * * * .”

The evidence is very conflicting. Six witnesses, including plaintiff, testified in plaintiff’s behalf and their testimony tended to support plaintiff’s theory. Fifteen witnesses were called on behalf of defendant, and the testimony of nine of them tended to support defendant’s theory. Counsel for defendant directs this court’s attention to what they term incongruities and contradictions in the testimony on behalf of plaintiff. And counsel for plaintiff do likewise as to defendant’s testimony. In view of the fact that, after a careful examination of the record and of the briefs of the respective counsel, we have reached the conclusion that there should be a new trial of this case, we do not express any opinion as to the weight of the evidence, although plaintiff’s counsel urge, as one of two grounds why the judgment of the trial court should be reversed, that the verdict is against the great weight of the evidence.

Counsel for plaintiff also urge a reversal of the judgment on the ground that the trial court erred in giving certain instructions offered by defendant. "Where evidence is as conflicting as in this case it is of particular importance that the instructions shall be accurate. Illinois Cent. R. Co. v. Maffit, 67 Ill. 431; Lyons v. Ryerson & Son, 242 Ill. 409, 416.

At the conclusion of plaintiff’s case the court refused on motion of defendant to instruct the jury to bring in a verdict in its favor, and at the conclusion of all the evidence refused a like motion. The court then gave one instruction on behalf of plaintiff, and thirty-nine instructions offered by the defendant, eighteen of which directed a verdict for defendant, and some of which were somewhat long and involved, and the entire thirty-nine tended, we think, to confuse the jury. "While it has been held to be error for the trial court to arbitrarily restrict the number of instructions to be asked by the parties or given to the jury (Chicago City Ry. Co. v. Sandusky, 198 Ill. 400, 403; Chicago Union Traction Co. v. Olsen, 211 Ill. 255, 256), and while it is also error to refuse to give a correct requested instruction where no other specific instruction covers the subject (Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267, 276) still, “it was never contemplated, under the provisions of the practice act, that the court should be required to give a vast number of instructions, amounting, in the aggregate, to a lengthy address,” and such a practice is “mischievous and ought to be discontinued,” and “does not enlighten the minds of a jury on the issues submitted to them, but rather tends to introduce confusion.” Adams v. Smith, 58 Ill. 417, 419; Chicago City Ry. Co. v. Sandusky, 99 Ill. App. 164, 168; Chicago, P. & M. R. Co. v. Mitchell, 159 Ill. 406, 407; West Chicago St. R. Co. v. Petters, 196 Ill. 298,-302; Donnelly v. Chicago City Ry. Co., 235 Ill. 35, 39. Under the facts of this case we are inclined to the opinion that the giving of such a large number of instructions, many of which directed a verdict for defendant, constituted prejudicial error.

Counsel for plaintiff urge that the court erred in giving instruction No. 17 offered by defendant. It advised the jury that the preponderance of the evidence in a case “is not alone necessarily determined by the number of witnesses,” and then follows an enumeration of the matters proper to be considered by the jury, in which enumeration were the words “besides such number of witnesses.” We do not think the instruction is faulty under the rule announced in Lyons v. Ryerson & Son, 242 Ill. 409, 417, and the cases there cited.

Counsel for plaintiff contend that the court erred in giving instructions Nos. 20, 21 and 22, offered by defendant. They were to the effect that the law did not require that the servants of defendant should be all the while upon their guard against dangers “not reasonably to be expected,” the “unusual or extraordinary.” Instruction No. 22 directed a verdict and is as follows:

“The court instructs the jury that while the defendant in operating its car in question was bound to have regard to the rights and safety of others, yet it is not obliged to be all the while on its guard against the not reasonably to be expected, the unusual or extraordinary, and if you believe from the evidence, under the instructions of the court, that the plaintiff suddenly started to run across the street in front of defendant’s car and was struck by the defendant’s car and was thereby injured, and if you further believe from the evidence that the plaintiff’s suddenly starting to run across the street in front of defendant’s car, if he did so run, was under all the circumstances in evidence in this case, extraordinary, not reasonably to be expected, or unusual, and that as the car approached the place in question it was being operated with ordinary care by the servant or servants in charge thereof, then it became the duty of the defendant to stop its car only as soon as the servant or servants in charge thereof had, or in the exercise of ordinary care should have had, notice or knowledge of the apparent intention of the plaintiff to- do as he did. And if you believe from the evidence under the instructions of the court that such notice or knowledge came too late for the said servant or servants in the exercise of ordinary care to stop the said car without injuring the plaintiff, then you must find the defendant, Chicago City Railway Company, not guilty.”

Counsel for plaintiff urge that this • instruction is not applicable either to the theory of the defendant as to the accident, or to the theory of the plaintiff. “Drivers, gripmen and motormen of street cars are obliged to exercise a more exacting attention, when they approach street crossings in a crowded city, where vehicles and pedestrians may always be expected in front of them.” Chicago City Ry. Co. v. Fennimore, 199 Ill. 9, 14; Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, 413. And counsel contend that a motorman in charge of a street car, when approaching a crossing in a busy street like Halsted street, should have his car under proper control and should anticipate that persons might attempt to cross his track immediately after or soon after a car running in the opposite direction had passed said crossing, that this is an occurrence reasonably to be expected, that this instruction tended to mislead the jury into believing that defendant’s motorman was required to exercise no greater degree of care in approaching the crossing in question than would be required of him while propelling his car in the middle of a block, and that it also tended to mislead the jury into believing that, even though the car in question was running at a high rate of speed and no gong was being sounded, if defendant’s motorman used ordinary care to stop the car as soon as he had knowledge of plaintiff’s intention to cross his track, the defendant was not liable for the injuries sustained. We are inclined to agree with counsel’s contention. West Chicago St. Ry. Co. v. Petters, 196 Ill. 298, 302; Chicago City Ry. Co. v. Hackett, 136 Ill. App. 594, 599, rev’d 235 Ill. 116, 129. Substantially the same instruction was refused in West Chicago St. Ry. Co. v. Petters, supra, and the court said there was no error in refusing it. In Scanlan v. Chicago Union Traction Co., 127 Ill. App. 406, 410, substantially the same instruction was given and it was held that under the defendant’s theory in that case the giving of the instruction was not error. But in the present case we think it tended to mislead the jury and was unwarranted under defendant’s theory.

We are also of the opinion that instructions Nos. 28, 31 and 32, offered by the defendant and given, all of which directed a verdict for the defendant, and which were on the subject of the contributory negligence of plaintiff in failing to discover the approach of the car in question and avoiding being struck by it, tended to mislead the jury into believing that the same degree of care to avoid the accident was required to be exercised by plaintiff, a boy of twelve or thirteen years, as would be required of an adult. Illinois Iron & Metal Co. v. Weber, 196 Ill. 526; Star Brewery Co. v. Hauck, 222 Ill. 348; Lake Erie & W. R. Co. v. Klinkrath, 227 Ill. 439; McGuire v. Guthmann Transfer Co., 234 Ill. 125; Ratner v. Chicago City Ry. Co., 233 Ill. 169, 173.

The judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.