text:
    John H. Herath, Administrator, Appellee, v. Elgin, Joliet & Eastern Railway Company, Appellant.
    Gen. No. 5,065.
    1. Ordinary case—when evidence does not tend to establish exercise of. Held, that the evidence in this case did not fairly tend to prove that the plaintiff’s intestate, who was a car repairer, was at the time of the occasion in question in the exercise of ordinary care for his own safety.
    2. Contributory negligence—effect upon right of recovery. Contributory negligence bars the right of recovery notwithstanding negligence upon the part of the defendant may likewise have contributed to the accident in question.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Horran ce Dibell, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed March 24, 1909.
    J. L. O’Donnell and T. F. Donovan, for appellant; Knapp, Haynie & Campbell, of counsel.
    Barr, Barr & Barr, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is an action on the case brought by appellee, as administrator of the estate of Thomas H. Menary, deceased, to recover from appellant, the Elgin, Joliet, and Eastern Railway Company, damages resulting to the widow of said Menary from his death while in the employ of appellant as car repairer in its yards at East Joliet. The declaration upon which the case was tried contained three counts. They all made the same charges. They alleged that Menary was employed by appellant in the work of repairing cars; that on July 21, 1904, he was repairing a car on a track in appellant’s yards, which in one count was called the “wire mill track” and in other counts a “switch track”; that he was in the exercise of due care for Ms own safety, and that appellant negligently pushed other cars upon the track against the car on wMch he was at work and injured him so that he died. The plea was not guilty and there was a verdict for $8,000. A remittitur of $1,000 was entered and the judgment given for $7,000 and this court affirmed that judgment. E. J. & E. Ry. Co. v. Herath, 129 Ill. App. 416. Afterwards the Supreme Court reversed such judgment and remanded the cause on the ground that “there was an utter lack of evidence to prove the averment that Menary was in the exercise of due care and caution, but that the evidence affirmatively proved the want of any care.” E. J. & E. Ry. Co. v. Herath, 230 Ill. 117. After remandment there was another trial and a verdict and judgment for appellee for $6,000. A motion for a new trial was denied. Judgment was entered on the verdict and tMs appeal taken by the company.

At the close of all the proof, appellant moved the court to exclude the evidence and instruct the jury to return a verdict of not guilty. The motion was denied and the instruction refused. From the view we take of the evidence, the error assigned on the refusal of the court to direct a verdict is the only one we deem necessary to consider in determining the merits of the judgment.

To entitle appellee to a verdict, it was necessary for him to prove: First, that appellant was guilty of the negligence charged in some count of the declaration, and second, that Menary was in the exercise of due care for his own safety when killed.

On the question of whether appellant was guilty of the negligence charged, the evidence is undisputed that on July 21, 1904, Thomas H. Menary had been in the employ of appellant as a car repairer in its yards in East Joliet six months. There were about two hundred and fifty men employed in the yards, divided into gangs of four. Charles H. Emerson was appellant’s master car builder and general car foreman at its yards north of Jackson street in East Joliet. Menary, Louis Johnson, John Peterson and Aaron Carlson constituted one of these gangs. Menary and Carlson were carpenters, Johnson and Peterson were helpers. Emerson directed Menary where to work and what to do, and Menary directed the other men who were required to work as they told them. Menary was furnished with a book, and when a car was finished he checked the car and turned the book into the office. Emerson and Carlson testified that Menary also kept the time of the men, but Johnson testified that each man kept his own time. Menary had been acting in this capacity about three months before his death. Appellant had in its repair yards, a number of tracks for repairing cars. Two of such tracks were used in the general overhauling of cars or repairing cars that required sills. These were called “sill tracks” and there was another track for light repairs. There was also a track that was called the “wire mill track.” Cars were not put in on the sill tracks except at night. .On the repair tracks, the rule was, if a switch engine came in with cars, a man walked down ahead of the cars to see that nobody was working there. The cars were not allowed to go in and touch one another. When a car was brought in in bad order, the men were required to “spot the car” as it was called, so as not to rub against another car. The track where the accident occurred was known as the “wire mill track” and was about three blocks from, the repair tracks and the above rule did not apply to it. It was used for the storage of cars, and cars that were in bad order were put in there at any time in the usual way, sometimes every day and at other times once in two or three days. On the morning of the accident, about 8 o’clock, Menary, Peterson, Johnson and Carlson were working together at the north end of the east sill track, when Emerson came to them and told them to come over with him to the wire mill track, that he had something there for them to do. Emerson went with them over the tracks and pointed out a box car and told Menary or the gang to strip that car down and load it on a flat car. Menary and the other men of his gang went over to the wire ■mill track and Emerson went back to the repair tracks. There was a flat car standing about four feet from the box car towards the switch connection with the other tracks, and no sign or signal was put up to indicate that the men were about the box car, and no provision was made for keeping watch for engines or cars. Menary, Johnson, Peterson and Carlson went to work dismantling the car and loading it on the flat car. Peterson was with Menary at the end next the flat car and Carlson was with Johnson at the other end. They had the coupler down and the bolster off and had taken out some parts underneath and Johnson and Carlson were taking out the brake beam. The end of the car where Menary and Peterson were at work had been jacked up, and Johnson came around the car and spoke to Menary about a jack. Johnson stooped over, and when he straightened up he noticed the flat ear moving slowly, being pushed by coal cars being switched in. The first coal car struck the flat car and pushed it against the box car, causing Menary’s death. There was evidence on the part of appellee that there was no signal, by bell or whistle or otherwise, of the approach of the engine with cars that were being pushed in, and there was no one on the first car which was being pushed down towards where Menary was working. There is no statutory requirement that a bell shall be rung or whistle sounded in doing switching work in railroad yards, unless in approaching a street or highway. There was some evidence in this record of a custom to have brakemen ride on the cars when they were switched in, but when the coal cars were set in on this occasion the switchman was walking on the right hand side of the cars, and they were moving about as fast as a man would ordinarily walk. The switchman testified that there was not anything to indicate that men were working on any cars and that he saw nothing to indicate their presence. There was also evidence for appellant that if any repairs were made on that track a flag was put up as a warning, and there was a red flag lying on a pile of ties by the side of the track, between the flat car and the switch. On the other hand, there'was evidence that the end of the box car where Menary was at work was jacked up about a foot above its ordinary height, raising it about four feet from the ground, thus making it high enough so that the men putting in the coal cars ought to have seen it. Although the wire mill track was not a repair track, light repairs were occasionally made upon cars standing on it, so there was a possibility of men being at work on it. Upon substantially the same evidence, the Supreme Court said, on a former appeal of this cause, it would have been sufficient to require submission to a jury of the question, whether under the circumstances the manner in which the cars were put upon the track and pushed against the flat car was negligence if there had also been evidence fairly tending to prove that Menary was in the exercise of reasonable care and caution for his own safety. E. J. & E. Ry. Co. v. Herath, 230 Ill. 117.

On the question whether Menary was exercising the care and caution required of him, the evidence is practically the same as in the former record, although admitted on appellant’s offer and through a different witness. The only witness who gave any direct testimony on that subject, on the trial after remandment of the cause, was Aaron Carlson, one of the two helpers who helped to strip and load the car. He testified that, when they had been working on the car about two hours, he heard Johnson say to Menary, “We want to have a flag over there,” and that he heard Menary say, “We have only one flat car; we can watch when they switch in.” It appears from the opinion in E. J. & E. Ry. Co. v. Herath, 230 Ill. 117, that on the former trial, Johnson testified that he, Johnson, said to Me nary, “Tom, don’t you suppose we ought to have a flag?” and Menary answered, “No,” that they could look out for themselves. The opinion also states that the account of the same conversation which Johnson said he gave to another person and which was not materially different, was that he said, “Tom, don’t you suppose we ought to put out some kind of a sign?” and that Menary said he did not think it was necessary; that they had only that one car and they could look out for themselves. On this trial, Johnson was not examined in chief relative to this conversation with Menary, and on appellee’s objection, appellant was not allowed to inquire about it on Johnson’s cross-examination. To this ruling appellant excepted, and here urges it as erroneous for several reasons; principally, however, on the ground that the conversation between Menary and Johnson relative to the work upon which they were engaged, although occurring after they had been set to work and before Menary’s death, was a part of the res gestae and therefore a proper topic ef cross-examination. As before indicated, we do not deem it necessary to decide this question in arriving at our conclusion. The gang working under Menary’s direction were sent to the car about 8 o’clock, and the accident occurred about 10. Nothing whatever was done by Menary, either to give notice that he and the other men were working on the car or to keep any watch or lookout for cars or engines. A red signal flag was lying on a pile of ties about two hundred and fifty feet distant from the box car, towards the switch. Menary’s saying, “We have only one flat car; we can watch when they switch in,” showed that he knew the necessity of adopting some sort of precaution, while as a matter of fact he took no precautions whatever to protect himself. On the former trial there was no claim that Menary relied, or had a right to rely upon Emerson as a general foreman of the yards, either to put up a flag or signal or to do anything else to protect him; but from the evidence in this record, counsel for appellee argues that Menary was in no sense a foreman and that his gang was taken from a track where no flag was necessary for safety, to a track where it was necessary to have out a flag, and that none of the men in the gang knew anything about putting out a flag at that time and had never been advised that it was necessary to put out a flag on any track, and had never worked upon tracks where a flag was necessary, before that morning; that Emerson, without any warning, took them over and directed them to work upon this car which was stationed behind several coal cars so that it was impossible for them, while working upon the box car, to see the car approaching from the main track, while Emerson knew the flag was lying on the pile of ties near the head of the switch and knew that these men knew nothing about the flag or that the flag was necessary, and went away knowing that trains were likely to be backed in on this track. These inferences are not fairly deducible from the evidence, and were evidently resorted to by counsel for the purpose of answering the suggestions on that topic appearing in the former opinion of the Supreme Court in this case. Menary was in a sense a foreman, and if he were in no sense a foreman, his duty was to use reasonable care and caution for his own safety would not be affected in any degree by that fact. Due care and caution on his part were indispensable to the right of appellee to recover against appellant for the injury, even if other servants of appellant were guilty, of negligence. Elgin, Joliet and Eastern Railway Company v. Herath, 230 Ill. 117. There was no dispute in the evidence that Menary took no precaution whatever for his own safety, but went to "work at the car without giving any attention to the surroundings or the dangers of his situation, and so continued in his disregard of such surroundings after Johnson had called his attention to the possible danger of his situation. There was no evidence whatever tending to prove the averment that Menary was in the exercise of due care and caution for his own safety, but the evidence affirmatively established the want of any care and caution; and the court erred in refusing to give appellant’s instruction directing the verdict of not guilty, at the close of all the evidence.

The judgment is reversed.

Reversed.

Finding of facts to he incorporated in the judgment:

We find that the deceased, Thomas H. Menary, was guilty of negligence which contributed to the injury that caused his death.

Me. Justice Dibell having presided at the trial of this cause, took no part in its consideration here.


source: Caselaw Access Project

author: Mr. Justice Willis Mr. Justice Dibell

license: Public Domain

text:
    Patrick McCarthy, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 5,086.
    1. Master and servant—what risks assumed. It is only such injuries as arise after the master has used reasonable care to make the place reasonably safe in which he directs a servant to work, of which the servant impliedly agrees to assume the risk, and for which the master is not liable.
    2. Master Arm servant—what risk not assumed. Held, that the servant in this case did not assume the risk arising from a dangerous condition of the roof of a mine, the falling of which caused the injury in question.
    3. Contributory negligence—when remaining in place of danger does not constitute. Held, that a servant who was injured by the falling of the roof of a mine was not guilty of contributory negligence in remaining in a place of danger, it not appearing that he knew or was presumed to know the conditions which resulted in the accident in question.
    4. Instructions—when upon question of allowance for medical expenses in personal injury action-not erroneous. Where the evidence shows that medical services were performed and the value thereof, the presumption is that the plaintiff to whom such services were rendered is liable therefor and an instruction which authorized the jury to consider them is therefore not erroneous.
    5. Verdicts—how cannot he impeached. Affidavits of the jurors themselves as to things that took place in their retirement while considering their verdict, will not he received to impeach such verdict as returned into court.
    Dibell, J., dissenting in part.
    Action in case for. personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 28, 1909.
    McDougall, Chapman & Bayne, for appellant.
    Duncan, Doyle & O’Conor, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant operated a coal mine in Seatonville, Bureau county, Illinois, in which appellee was employed as a driver, working nights. On one of his trips on the evening of August 14, 1906, a quantity of rock and earth fell upon him from the roof, inflicting serious injuries upon him. To recover damages for these injuries, he brought this suit. The amended declaration contained four counts. The first charged that appellant negligently permitted an entry at that place to he and remain in an unsafe and dangerous condition on that day and for a long time prior thereto, and negligently permitted the roof, at that place, to become cracked and broken and in danger of falling, as appellant well knew or, by the exercise of reasonable care, would have known, and which condition was unknown to appellee, nor was appellee possessed of equal means with appellant of knowing of said dangerous condition of the roof, and while appellee was at said entry way in the discharge of his duty and in the exercise of ordinary care for his own safety, through the negligence of appellant a mass of stone and dirt, composing a part of the roof, fell upon appellee and caused said injuries. The second count was similar. The third count charged that appellant negligently failed to prop, timber or support the roof at that place, which was in a broken and dangerous condition as appellant well knew, etc., as in the first and second counts stated. The fourth count charged a wilful violation of the mining act in failing to have a mine examiner perform the duties prescribed by said act and to place a conspicuous mark where there was danger. Appellant pleaded not guilty, and there was a jury trial. At the close of the evidence, the fourth count was dismissed. Appellee had a verdict and a judgment for $10,000. On an appeal to this court, that judgment was ordered affirmed on the condition that appellee remit $2,000. This remittitwr was ordered because, in his opening statement to the jury, appellee’s attorney stated that appellee had a wife and five children. A remittitur was filed and the judgment was affirmed for $8,000. Spring Valley Coal Co. v. McCarthy, 136 Ill. App. 473. The Supreme Court afterwards reversed such judgment on account of this statement of counsel. McCarthy v. Spring Valley Coal Co., 232 Ill. 473. Later, there was another trial, and a verdict and a judgment for appellee for $11,500. A motion for a new trial was denied. Judgment was entered on the verdict and the company prosecutes this appeal.

The pleadings in this are the same as in the former record, after the dismissal of the fourth count; and a careful reading of this record discloses that the evidence bearing upon the issues tendered by the pleadings is substantially the same.

It is insisted that the evidence does not establish the negligence charged in the declaration. It does show that appellee was employed by appellant as a driver in its mine at night; and that about 3 o’clock in the afternoon of August 14, 1906, he entered the mine and was told by appellant’s night boss that he would have men at the face of the coal in an entry known as “the second right off the main north east off the main east, ’ ’ and at a gob room. Appellee’s duty was to go to the face of the coal in the entry with a mule and haul out to the gob room such cars loaded with rock and earth as might be ready for him. He made three trips before supper. After supper, about 8 o ’clock, as he was going along the entry towards the face of the coal, a quantity of rock and earth, variously estimated by the witnesses at from 1,800 pounds to four tons, fell'from the roof of the entry, a part striking him. His right arm was crushed between the rock and the rail of the track over which the car was being drawn, so that it had to be amputated between the wrist and the elbow; and he sustained injuries about his hips and back over the kidneys. These latter enumerated injuries were not shown to be of a permanent nature. The evidence also showed that a considerable quantity of rock had fallen from the roof of the entry, at or near the place of the accident, during the previous day or night, and also a like fall at the same place two or three days before; and that on the day of the accident the roof was cracked and broken. One wide and deep crack was caused by rock falling from the roof, and had been there for some days. This condition was known to the employes of appellant whose duty it was to look after the roof and mark dangerous places. The mine examiner, after the last fall of rock on the night before the accident, examined at the place of the accident, and, notwithstanding the fact that there had been a fall of rock prior to his examination, did not put up a danger signal. There was also evidence tending to show that the roof of the entry at the place where appellee was injured was safe just prior to the accident, and proof to the effect that it did not need to be supported by timbers or otherwise; and opinions by certain witnesses that it was safe, and proof to the effect that appellant did not know of the dangerous condition of the roof as testified to by certain witnesses for appellee; and proof to the effect that appellant had performed all the duties required of it by law for the safety of appellee. This pronounced conflict in the evidence presented a question of fact for the consideration of the jury. Therefore there was no error in the refusal of the court to direct a verdict for appellant.

It is argued that the fall of the roof was a risk of appellee’s employment and therefore assumed by him. This contention is supported by the argument that the fall of the rock was the result of what is known in mines as a squeeze or settling caused by undermining, which could not he foreseen and avoided, and that appellee was aware of the probability of injury from a squeeze, and therefore assumed such risk and cannot recover for his injuries. There is evidence to the effect that on the day of the accident there was a squeeze in the mine, and that some of the men quit work on that account, but the evidence is indefinite as to the extent of the squeeze and its effect in various parts of the mine, and there is no evidence that appellee had knowledge that there was a squeeze in the mine. It is only such injuries as arise after the master has used reasonable care to make the place reasonably safe in which he directs the servant to work, of which the servant impliedly agrees to assume the risk, and for which the master is not liable. Himrod Coal Co. v. Clark, 197 Ill. 514; Spring Valley Coal Company v. McCarthy, 136 Ill. App. 473. Whether the accident was caused by the squeeze or by the negligence of appellant in suffering the roof to become and remain dangerous, was a question of fact for the jury. Two juries have found that the accident resulted from appellant’s negligence in permitting the roof to become and remain in a dangerous condition, and we are of the opinion that the evidence supports their finding.

It is urged that the danger was apparent, and that appellee was guilty of contributory negligence. Appellee had never been at the place where the accident occurred prior to 3 o’clock on that afternoon and was unacquainted with the locality. While he was hound to take notice of defects which were patent, he was not required to make an examination for defects. Leonard v. Kinnare, 174 Ill. 532. In the absence of notice or information of danger, he was warranted in acting on the presumption that appellant had used reasonable care in furnishing him with a reasonably safe place in which to work. Hess v. Rosenthal, 160 Ill. 621. He had not been notified of the fall of rock. He knew that appellant had servants whose duty it was to inspect and repair the mine. The only light he had was a lamp on the front of his cap. It was necessary to keep that light turned towards the path along which the mule was to walk. He did use the light in the roof sufficiently to see that no chalk marks had been placed there by the mine examiner to indicate danger. In our opinion, the jury were justified by the evidence in finding appellee was not guilty of negligence contributing to the injury.

Evidence was admitted to show the condition of the roof at the place of the accident, for a number of days prior thereto. It is insisted this was error, for the reason that there had been a fall of rock and dirt the night before, and the condition of the roof of the entry had been thereby changed. While by reason of the fall of rock on the night prior to the accident, the eon•dition of the. roof of the entry was not precisely the same as it was some days prior thereto, the evidence was competent for the purpose of showing that an unsafe or dangerous condition of the roof of the entry had existed for some time, and that appellant had, or by the exercise of reasonable care, might have had notice of it. If rock and earth were falling from the roof of the entry way at intervals, it certainly tended to prove an unsafe condition, though the condition of the roof was somewhat changed with each fall.

The second instruction given for appellee told the jury, if they found for appellee, in determining the amount of their verdict, to take into consideration his health and physical condition since the injury, and any necessary expense he might have been put to, in and about caring for himself. This, appellant argues, was erroneous, because there was no evidence showing that appellee’s health and physical condition were impaired since the accident, with the exception of the loss of his hand; and that there was no proof whatever showing that he had incurred any expense in his efforts to be cured. Appellant’s admission that appellee had lost a hand as a result of the accident, in our opinion, obviates further discussion of the first objection to the instruction. As to the second objection, the physician who amputated the hand and attended him and rendered all the medical services appellee needed thereafter, testified that the value of such services was from $50 to $100. He did not testify that he made a charge against appellee or that appellee paid him. The presumption is, that appellee was liable for such services. As another instruction told the jury that this expense had to he proved by direct evidence, we are of opinion that the second element of the instruction complained of, does not amount to harmful error.

During the trial an article was published in the Bureau County Bepublican calling attention to the case, telling of its supposed merits and the reason for its previous reversal. It appeared that eleven of the jurors were subscribers to the paper. There was no proof, however, that any of the jurymen saw the paper or read or heard read the article. On the motion for a new trial, appellant offered to show that after verdict, the foreman of the jury stated that in deliberation in the jury room, before a verdict was arrived at, the article appearing in the Bureau County Bepublican was discussed. To this offer', an objection was properly sustained. This offer involved a matter which took place while the jury were considering their verdict. Affidavits of the jurors themselves as to things that took place in their retirement while considering their verdict, will not be received to impeach such verdict as returned into court. City of Chicago v. Saldman, 225 111. 629. The policy of this rule is too evident to require any citation of authorities. For the same reason that the affidavit of the juror is not admissible, any statement by him showing his own misconduct must also be excluded. In Allison v. People, 45 Ill. 39, the court said: “We therefore perceive no difference in the effect, whether the facts are sworn to by the jurymen or by persons learning them from the jurymen.” A juror will not be permitted to make evidence by statements not under oath which he would not be permitted to make under oath. Niccolls v. Foster, 89 Ill. 386; City of Chicago v. Saldman, supra. There was, then, no competent evidence offered tending to show that the article published in the Bureau County Republican in any way influenced the verdict of the jury, and there was no error in denying a new trial on that ground.

On the former hearing we indicated our opinion that the damages should be reduced to $8,000. We see no reason to change that conclusion. To permit the present judgment to stand for its full amount would be to enable appellee to profit to the extent of $1,500 by the misconduct of his counsel at the former trial. We cannot approve that result.

This opinion will be lodged with the clerk, and if within seven days appellee files herein a remittitur of $3,500 of the judgment, it will be affirmed in the sum of $8,000, at the costs of appellee. If such remittitur is not filed, the judgment will be reversed and the cause remanded for a new trial.

Thereafter appellee filed herein a remittitur of $3,500 of the judgment and it is therefore affirmed in the sum of $8,000 at the costs of the appellee.

Affirmed upon remittitur.

Mr. Justice Dibell

dissents from so much of the foregoing opinion as requires a remittitur.


author: Mr. Justice Willis

text:
    People, for use of Roy O. Durham et al., Appellee, v. George W. Buck, Appellant.
    Gen. No. 5,121.
    1. Appeals and ebbobs—appeal by guardian. The right of a guardian to appeal from an order of removal is doubtful.
    2. Guardian and ward—power of removal. The court of probate has power to remove a guardian for failure to file an inventory of his ward’s estate within the time fixed by statute.
    3. Guardian and ward—power of removal. The court of probate has power to remove a guardian who undertakes to sell and convey without authority real estate belonging to his ward.
    4. Guardian and ward—power of removal. The statute specifies certain causes which authorize the removal of a guardian but in addition to such specified causes the court of probate has a discretion which if reasonably exercised will be sustained upon review.
    Petition for removal of guardian. Appeal from the Circuit Court of De Kalb county; the Hon. Mazzini Slusseb, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    J. B. Stephens, for appellant; A. G. Briggs, of counsel.
    Earle W. Brown and George Brown, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a petition filed in the County Court of DeKalb county, December 9, 1907, by Milton Durham, father of Boy O. Durham, Floyd C. Durham and Harold Durham, minor heirs of May Durham, deceased, for the removal of George W. Buck as guardian of said minors. The said Boy O. Durham requested that the prayer of the petition be granted. The petition alleged that George W. Buck, was, on April 26, 1907, appointed guardian of the minor heirs of May Durham, deceased; and that sixty days had elapsed and such guardian had not filed an inventory of the estate of said minors as required by the statute; and that on November 2, 1907, said guardian executed and delivered a quit claim deed of said minors’ interest in certain real estate therein described, to O. W. McCormick, and concluded with a prayer that such guardian be removed, and that D. S. Brown be appointed in his stead. Later, the petition was amended by adding that theretofore said D. 'S. Brown had been appointed guardian of the said Boy O. Durham by the Probate Court of Kane county. The court heard the cause and ordered the letters of guardianship issued to George W. Buck revoked, and that he be removed as such guardian. The guardian appealed to the Circuit Court of DeKalb county, where a jury was waived and a trial was had by the court, and an order was entered revoking the letters of guardianship, removing the guardian and directing him to account for and pay over to his successors the proceeds of the estate of said minors. From this order the guardian prosecutes this appeal.

There was no judgment for costs against said guardian and, as he had no vested right to the appointment, or to retain the office of guardian after appointment, it is difficult to see how he was injured by the order. His right to an appeal is doubtful, but, as appellee hag joined in argument, without raising that question, we shall treat the appeal as properly taken. Neither the petition nor the proof presented a question of fact requiring the verdict of a jury; therefore the stipulation waiving a jury was unnecessary. Appellant confessed all the allegations of the petition and sought to avoid their effect by subsequently filing an inventory and obtaining a reconveyance to the minors of the real estate he had previously conveyed to McCormick.

Section 12, chapter 64, Hurd’s B. S. 1905, provides that, “The guardian shall, within sixty days after his appointment, or if the court is not in session at the expiration of that time, at the next term thereafter, return to the court a true and perfect inventory of the real estate and personal estate of the ward.” Section 37 of that chapter, among other things, provides that, “The County Court may remove a guardian for his failure to give bond * * * or for failure to make inventory * * * or for failure to discharge any duty required of him by law or the order of the court, or for other good causes.” Letters of guardianship were issued to appellant April 26,1907. He was served with process on December 17, 1907, and filed his inventory December 18, 1907. The County Court of DeKalb county had a term for the transaction of probate and guardianship matters each calendar month. The sixty days allowed appellant in which to file an inventory and five terms of court had elapsed before the filing of this petition for removal. This delinquency or neglect by appellant of the requirements of section 37 justified the court in removing him. Moreover, the court had power to remove appellant for reasons designated by the statute, “or for other good causes.”

It is urged that this proceeding was not brought in the interest of the minors, but that Brown might retain possession of the moneys held by him as guardian by appointment of the Kane County Probate Court. It is admitted by appellant that, without authority, he undertook to sell and convey real estate belonging to his wards, and executed and delivered a deed to the same. This deed, although it did not convey the interest of said minors, might cloud their title to the same. After the commencement of this proceeding he repurchased their interest in the real estate and caused a deed to be executed conveyinv it back to the minors, but up to the time of the hearing in the Circuit Court the deed had not been filed for record. It is thus apparent that appellant not only neglected his statutory duties, but exceeded his authority in dealing with the estate of his wards, and for this reason we deem the court justified in ordering his removal.

The proof showed that the guardian was unwilling to pay the father the sum directed by the court to be paid him for the support of the minors, but insisted that he take the money in trade in stores designated by the guardian. While this does not come under the head of the causes specifically enumerated in the statute for the removal of a guardian, yet it is a circumstance that the court would be warranted in considering in exercising his discretion.

A guardianship matter is, to a considerable extent, within the sound discretion of the court administering the estate; and if, for reasons satisfactory to the court, though not designated in the statute, it deems that the interest of the estate will be best served by the removal of the guardian and the appointment of another, a court of review will very reluctantly interfere with its action in that particular.

Appellant argues that to affirm the holding of the lower court would bring disgrace upon an innocent man. A guardian has no vested right in the appointment. He is but the hand of the court in administering the estate, and the court may remove him whenever, in its sound discretion, the interest of the ward will be better served; and it matters not from what source the information comes upon which the court acts.

The judgment of the lower court is affirmed.

Affirmed.


author: Mr. Justice Willis Mr. Presiding Justice Thompson,

text:
    Julia A. Ross, Administratrix, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5,101.
    1. Appeals and errors—when order sustaining demurrer not subject to review. There being no motion in arrest of judgment in the trial court and no assignment of error filed in the Appellate Court having any reference to the pleadings or to any action of the trial court thereon, the action of such trial court in sustaining a demurrer to counts of the declaration is not subject to review.
    2. Appeals and errors—what not considered on review. The record of a former appeal in the cause not embodied in the transcript will not he considered in order to determine whether a particular criticism was made of an instruction upon such former hearing.
    3. Master and servant—when negligence of fellow-servants will not defeat recovery. If the negligence of the master was the efficient cause of the death of the servant the fact that fellow-servants of such servant may have been negligent, will not relieve the master from responsibility for the damages of which the master’s negligence was the cause.
    4. Evidence—when habits of care competent. If no eye-witness saw the accident in its entirety which resulted in the death of the plaintiff’s intestate, evidence of the habits of carefulness of such deceased is competent as bearing upon the question of his exercise of ordinary care at the time of the accident in question.
    5. Instructions—upon measure of damages in action for death caused by alleged wrongful act, approved. In this case an instruction is approved which tells the jury that:
    “If they find for the plaintiff then in estimating plaintiff’s damages they may take into consideration the prospective life of said George Ross, his opportunities, abilities and habits with reference to the making and saving of money to be estimated by the jury from all the facts and circumstances proved, and the jury may assess such damages as from the evidence will be a fair compensation for the pecuniary loss suffered by the next of kin, if any, from the death of deceased.”
    6. Pleading—aider by verdict. If a particular allegation be not contained in the declaration its absence will be cured after verdict if proof has been made of such facts not alleged.
    7. Verdicts—when not excessive. Held, in an action for death caused by alleged wrongful act, that a verdict of $7,500 was not excessive where it appeared that the deceased at the time of his death was a man 30 years of age, steady, industrious, sober and healthy, had been earning from $85 to $110 per month and for years had been contributing to his mother from $25 to $45 per month, etc., the next of kin being the parents, brothers and sisters of the deceased.
    Thompson, P. J., dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    Jackson, Hurst & Stafford, for appellant; Benjamin S. Cable, of counsel.
    Ludolph & Reynolds and S. R. Kenworthy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee sued appellant to recover damages sustained by the death of George H. Boss, deceased, by the next of kin, being the parents, brother and sister.

The death of the deceased is alleged to have been caused by the negligence of the appellant on March 13, 1905. This case was before this court at a former term by an appeal, prosecuted by the present appellant, from a judgment in favor of appellee for $6,000 and the opinion rendered on that appeal reversing the judgment because of error in instructions and remanding the case for a new trial may be found in 136 111. App. 518. On the second trial a verdict was returned and judgment rendered in favor of appellee for $7,500. From that judgment this appeal is prosecuted.

No change has been made in the pleadings since the former appeal, and the facts disclosed by the evidence are substantially the same as appear in the statement of facts on the former appeal.

The deceased was an employe of appellant in its switch yards at Bock Island. The negligence alleged in the declaration in brief is that it failed and neglected to have a reasonably safe and sufficient headlight on a locomotive switch engine, by reason of which negligence the deceased, while in the exercise of due care in the performance of his duties, was by a collision thrown from a car and killed. Demurrers to the original declaration and to an additional count were overruled, after which appellant filed pleas and the issues were joined.

It is contended by counsel for appellant in their argument that the court erred in not sustaining the demurrer to the counts of the declaration. There was no motion in arrest of judgment in the trial court, and there is no assignment of error filed in this court having any reference to the pleadings or to any action of the trial court thereon, therefore the questions argued in that respect are not before us for review.

It is also insisted that the verdict cannot be sustained under the evidence. The evidence shows that the deceased was a switchman in the employ of appellant. He is described as the foreman of a switching crew composed of the foreman, an engineer, a fireman and a switchman. The yard in which the crew worked is a double yard composed of two yards lying adjoining and parallel with each other. They cover a strip of ground extending east and west about 1,400 feet along the river front in Bock Island and between 200 and 300 feet north and south. The main track of appellant’s railroad runs east and west through the center of these grounds. On each side of the main track is a lead or ladder track. From the south lead track, switch tracks branch off at intervals to the south and west; the west ends of these switch tracks do not connect with any track but end in bumping posts. The south switch yard is known as the Twenty-fourth street yard. The switch yard north of the main track is known as the Twentieth street yard, and the switch tracks in this yard connect with the lead track at both ends. George Boss with his switching crew worked in the Twentieth street yard with engine No. 156, sometimes described as the Twentieth street engine. Charles Boss, a brother of George Boss, was foreman of a crew that worked in the Twenty-fourth street yard with engine No. 106, sometimes described as the Twenty-fourth street engine. These engines, while their work was mainly confined to their respective yards, yet occasionally had to cross over and do some work in the other yard. It was the duty of the foreman to hunt up the cars that were required to be moved, from the many cars that stood on the various switch tracks, and to indicate to the switching crews what cars were to be moved and where they were to be moved to, for loading or unloading or in making up trains. Knight was the switchman with the crew of which George Boss was the foreman. It was Knight’s duty to follow the engine, throw switches, couple and uncouple cars; and at times George Boss did some work similar to that done by Knight. On the night of the injury and on the preceding night the evidence shows that George Boss was working around the yard checking up cars to such an extent that he was not near engine 156, except on two occasions. On the night preceding that of the injury the crew of engine 156, except George Boss, went to the roundhouse, a mile east of the switch yard, for their engine. While near the roundhouse the front or east headlight of that engine burned out and broke the glass in front of the headlight so that the lamp in it would not burn. The foreman of the roundhouse directed that a switchman’s lantern showing a white light should be hung beneath the place for the headlight. There was a proper headlight on the rear or west end of the engine, so that when it backed west toward the Twentieth street depot, the yard where George Boss was, it showed a headlight as it approached him. When the engine and crew reached Boss, while the engine was standing under an electric street light and the engine was still east of Boss, he asked why they were so late and was told the headlight had burned out. After Boss was told the headlight had burned out he went into the depot. The proof, however, fails to show either that George Boss was told or saw that the headlight had not been repaired, or that he actually knew or saw that the engine was being run with a common lantern instead of a regular headlight at its east end, or that he was east of the engine that night, so that it does not appear that he must have seen it was working without the east headlight. The engine worked all that night with a common lantern in front in the place of a headlight on its east end. On March 13th this engine was again sent out with its crew, except the foreman, about 7 o’clock, without a front headlight but with a lantern hanging below the broken glass. On this night, Boss was waiting for the engine at the Twentieth street depot and when it came up he gave the crew some instructions; the engine then backed west and Boss crossed the tracks six to ten feet east of it under the street electric light, followed it west a short distance, and then disappeared amongst the cars on the tracks, attending to his duties. This is the only time Boss is shown to have been east of the engine while the headlight was out. On the night of the injury, engine 106 had been in appellant’s Natick yards several miles east of Bock Island and did not return to the Bock Island yards until just before Boss was injured. The crew of engine 106 knew nothing about the headlight being out on engine 156. About 10:30 on the night of the 13th engine 106 came from the Natick yards pushing a string of cars to the Bock Island yards. The train was stopped and the switchman of the crew looked down into the yard west of the viaduct for the headlight of engine 156, the course of business being such that engine 156 went often into the west end of the yard for work customarily done there about that time. The switchman not seeing the headlight of engine 156, a string of cars was cut loose and kicked down the lead track with one man on it to set the brakes. Engine 156 was in the Twenty-fourth street yard on what is called the Peoria house track, with the switch from that track to the lead track open, showing a green light, the engine having gone on the Peoria house track to get a car for train No. 398, that was being made up for Peoria. George Boss had thrown the switch for engine 156 to back its train of cars west on the Peoria house track, and then had gone west. This appears to have been the only time engine 156 was in the Twenty-fourth street yard that night. When Boss went west at that time he was going to call the crew, who were in the caboose, for train No. 398. After engine 156 had accomplished what it went on the Peoria house track for, Boss returned from calling the crew for train 398 and gave the signal to the switchman and the switchman passed it to the engineer of engine 156 to move east, and Boss got on the side of the west car of the string of cars attached to this engine. The switchman on the cars attached to engine 156 could see that Boss was on the west end of this train from seeing his lantern. As engine 156 was pulling out east, from the Peoria house track, it collided with the west end of the string of cars that had been kicked down the lead by engine 106. The switchman on the string of cars saw the engine without the headlight, with a lantern in place of a headlight, but too late to stop the cars and avoid the collision. The collision knocked the car Boss was on off its trucks and Boss was thrown to the ground and injured to such an extent that he died shortly thereafter.

There is little conflict in the evidence. The burden was on appellee to show that the deceased did not know that engine 156 was being run without the front headlight. Swift & Co. v. G-aylord, 229 111. 330. He being dead, the only proof available is proof of the circumstances surrounding the transaction and conversations connected with the work. The proofs show that on the 12th of March Boss was told that the headlight had burned out, and that that was the reason for the delay. It does not show that he was told at that time that it had not been repaired, nor does it show that he was east of the engine so as to have necessarily seen that it was not repaired and that its place was supplied by a small switchman’s lantern. The only time he is shown to have been east of the engine, when the headlight was out, was when he crossed the track in front of it on the night of the 13 th, when it backed from the Twentieth street depot from under a street electric light. It is a debatable question whether the absence of a headlight would be so obvious that a person simply crossing the track in front of an engine under a strong street light must have observed its absence. The proof clearly shows that appellant knew of the broken headlight and that the engine was run supplied at its front end with only an ordinary lantern, because the foreman of appellant’s roundhouse sent the engine out and directed it to be used with the lantern instead of a headlight. It was a question of fact for the jury to pass upon, from all the evidence, whether the deceased 'knew of the defect and was in the exercise of ordinary care and whether the appellant was guilty of the negligence alleged in permitting an engine to be used in the dangerous work of switching without a headlight. We cannot say on a review of all the evidence that the jury were not reasonably justified in finding the issues for the appellee.

It is further contended that the deceased was killed because of the negligence of fellow-servants. If it be conceded that the switching crew with engine 106 were fellow-servants with the deceased, and that the crew of that engine were negligent in “kicking” the cars down the lead track while the switch to the Peoria house track was open and engine 156 was coming out on that track to the lead track, still it is a question of fact whether the negligence of the appellant in permitting its engine to be used without a headlight but with only an ordinary lantern, or the negligence of the fellow-servants, was the proximate cause of the death of the deceased. If the negligence of appellant was the efficient cause of the death of deceased, then the fact that fellow-servants of the deceased may also have been negligent will not relieve appellant from responsibility for the damages of which its negligence was the cause. ‘ ‘ The law is well settled that although the negligence of a fellow-servant of appellee contributes to his injury, still, if such injury was caused, in part by the negligence of appellant, the appellee may recover, as the general rule is that where a servant is injured through the part negligence of the master and a fellow-servant, the master cannot escape liability on the ground that the fellow-servant also contributed to the injury.” Kennedy v. Swift & Co., 234 Ill. 606; North Chicago Street R. R. Co. v. Dudgeon, 184 Ill. 477; Malleable Iron Co. v. Dillon, 206 Ill. 145; C. & A. R. R. Co. v. A verill, 224 Ill. 516. The jury were fully instructed on this question at the instance of appellant and, there being evidence that appellant was clearly negligent, we would not be justified in saying that the jury was not right in its finding.

It is also insisted that the court erred in admitting, evidence as to the deceased’s habits of carefulness. This question was disposed of in the former opinion of this court and the evidence held proper “because no one saw him at the time of the collision, and no one knew just what he was doing at that time or just how he came to be hurt.” His lantern was seen on the side of the car but the deceased himself was not seen except as he was supposed to be there from the presence of his lantern; and even the lantern was not seen at the instant of the collision. There was no error in the admission of the evidence as to his careful habits.

It is urged there was error in giving the second instruction given at the request of the appellee. The instruction told the jury that if they “believe from the evidence that the said defendant failed to use reasonable care in supplying the engine in question on the night in question with a reasonably safe and sufficient headlight as stated in the declaration in this case and that said engine was not supplied or equipped with a reasonably safe and sufficient headlight but that the headlight on said engine by reason of the defective and broken condition of the headlight fixture on said engine would not burn and was then out and that plaintiff’s intestate, George Boss, had no knowledge that said engine was not so equipped or that the light on said engine was out * * * and by the exercise of due care on his part would not have known that it was out, if it was so out * * * and if you further believe from the evidence that the proximate cause of said collision was the failure of said defendant to provide the engine in question with a reasonably safe and sufficient headlight, if it was not so equipped”, etc. It is argued that there is no statute requiring a headlight upon engines. The instruction left it to the jury to say whether such facts constituted negligence. Appellee insists that the instruction is proper and that it was given on the former trial and that the criticism of the instruction now made was not urged on the former appeal. The record of the former appeal is-not in this record and we have no means of knowing whether any question was raised concerning such instruction if it was given on the former trial. The instruction however is not erroneous for any reason urged by appellant.

It is urged that the third instruction is erroneous. This instruction tells the jury that “if they find for plaintiff then in estimating plaintiff’s damages they may take into consideration the prospective life of said George Boss, his opportunities, abilities and habits with reference to the making and saving of money to be estimated by the jury from all the facts and circumstances proved, and the jury may assess such damages as from the evidence will be a fair compensation for the pecuniary loss suffered by the next of kin, if any, from the death of deceased.” The contention of appellant is that “the jury are not told they must do this from the evidence in the case.” The instruction clearly tells the jury such estimate is to be made “from all the facts and circumstances proved” and “as from the evidence will be a fair compensation”. We see no error in this instruction.

Complaint is made of the refusal of the third and fourth instructions asked by appellant. These instructions were framed to tell the jury that there could be no recovery; that they must not consider the first additional count or the original declaration because it was not alleged that the deceased did not know that the headlight on the front of the engine was not burning at the time of the accident. There was proof tending to show that he did not know that fact. The question raised is one of pleading that should have been raised in some other way; there being proof on the question, the verdict cures the defect in the pleading. Ide v. Fratcher, 194 Ill. 552; Sargent Co. v. Baublis. 215 Ill. 428.

The remaining question argued is .that the judgment is excessive. The deceased was a man thirty years of age, steady, industrious, sober and healthy. He had been earning from $85 to $110 per month, and for years had been contributing to his mother from $25 to $45 per month, and saving some money by depositing it in a bank. The next of kin were the parents, brothers and sisters of the deceased. When there are amongst the next of kin lineal heirs such as parents or children “the amount to be recovered is what the statute regards as the pecuniary value of the addition to such estate left as the deceased, in reasonable probability, would have made to it, and left, if his death had not been so wrongfully caused. It is to be estimated by the jury from all the facts and circumstances proved, his prospect of life, and his means, opportunities, ability and habits, with reference to the making and saving of money or money’s worth.” C., P. & St. L. R. R. v. Woolridge, 174 Ill. 330. We are not disposed to say $7,500 is an excessive compensation for the loss to the means of support of the parents resulting from the death of such a man as the evidence shows the deceased to have been. Finding no error in the case the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Thompson,

dissenting.

In order for the appellee to secure a verdict it was necessary that it should be shown by a preponderance of the evidence that the deceased did not know that engine 156 was being run without the front headlight. Swift & Co. v. Gaylord, 229 Ill. 330. He being dead, the only proof available is proof of the circumstances surrounding the occurrence and conversations connected with the work. The proof shows that the deceased was the foreman of the switching crew of engine 156. The sole business of the crew was moving cars from place to place either for the purpose of being loaded or unloaded, or taking them out of trains or placing them in trains. The deceased was the member of the crew who hunted up the cars that were to be moved, and gave the orders to the balance of the crew as to the moving of the cars. The evidence is very limited in amount as to the work that was done by the switching crew of engine 156 during the whole of the night of March 12th and concerns only the moving of a very few cars on the night of the 13th. The form of a locomotive headlight is a matter of common knowledge; the sides and back of the headlight are opaque and at the back of the headlight behind the lamp there is a reflecter which focuses the light and throws it forward in front of the engine. The lamp cannot be seen in the headlight except by a person somewhat in front of the engine; all that can be seen by a person at the side of the headlight or behind it is the reflected light in front. The proof shows that engine 156 was run with an ordinary lantern hung about sixteen inches below the front of the headlight, the lantern being uncovered and clearly visible to a person at the side of the headlight or back of it until a point would be reached where the angle of the boiler head would conceal it. The common lantern hung in front of the engine below the frame of the headlight would attract the attention of an ordinary person at the side of the engine. To a railroad man it would be very noticeable because of its very unusual occurrence. The lantern was so obvious that it could not but attract the attention of a person at the side of the engine as it would back past a person standing by its side. The deceased stood by the side of engine 156 at the Twentieth street depot while it backed past him; then he crossed over the track a very few feet in front of the engine and turned and followed the engine a short distance with this lantern hanging in front of him. It would seem impossible for a man with the ordinary faculties, in the exercise of ordinary care, not to see this lantern and not to know of the defective headlight. It was so obvious and open to observation and the opportunities to know of the defect were such that the deceased was chargeable with knowledge of the defect. Armour v. Brazeau, 191 Ill. 117; L. E. & W. R. Co. v. Wilson, 189 Ill. 95; Swift & Co. v. Zerwick, 88 Ill. App. 558. The deceased knowing of the defect and continuing to work with it, assumed the risk, and there should be no recovery. Chichowicz v. International Packing Co., 206 Ill. 349; Herdman Harrison Milling Co. v. Spehr, 145 Ill. 333. From all the evidence—the length of time he worked with the engine giving orders while it was without a headlight, being all the preceding night and several hours that night, the fact that he was in front of the engine shortly before his death and that he walked behind it as it backed away from him—it is apparent that he was a man of ordinary intelligence using his faculties with the opportunities he had to know of the defect, and he must be held to have known of the defect in the engine and to have assumed the risk, and that he was killed because of a risk which he assumed; hence the verdict and judgment should not be sustained. I am of opinion that the judgment should be reversed.


text:
    Florence McFadden, Appellee, v. Chicago, Rock Island & Pacific Railroad Company, Appellant.
    Gen. No. 5,103.
    1. Passenger and cabrier—extent of latter's responsibility. A carrier owes to its passengers the duty of furnishing a suitable and safe platform and steps, sufficiently lighted, upon which to leave the car, so far as it can reasonably do so by the exercise of the highest degree of care and' diligence; and for any defect therein or absence of light, causing an injury, which human care, vigilance and forethought reasonably exercised could have discovered and guarded against and provided for, consistent with the practical operation of its road, the law holds the carrier responsible; but such rule dbes not require the carrier to foresee and provide against accidents never before known and not reasonably to be apprehended.
    2. Passenger and carrier—when doctrine res ipsa loquitur does not apply. The doctrine res ipsa loquitur has no general application to injuries resulting to a passenger. If, however, an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, or by some defect in machinery, cars or track, and the accident is of such a character as does not ordinarily occur if due care is used, the law comes to the aid of the passenger and raises a presumption of negligence.
    3. Appeals and errors—when disregard of number of witnesses will reverse. The number of witnesses testifying to a given fact or state of facts is an element to be considered and the jury are bound to take it into consideration in determining the credibility of the witnesses and the existence of a fact; held, in this case, that the apparent failure of the jury so to do constituted ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 10, 1909.
    Jackson, Hurst & Stafford, for appellant; Benjamin S. Cable, of counsel.
    Kenworthy & Kenworthy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The Chicago, Bock Island & Pacific Railroad Company, appellant, operates a railroad from Chicago, Illinois, westward through Kansas. On the evening of January 4, 1905, Florence McFadden, appellee, boarded a train of appellant as a passenger at Moline, Illinois, to go to Keats, Kansas. At McFarland, she changed cars to take a train that would stop at Keats. The one she boarded at McFarland consisted of an engine, a combination mail and baggage car, a chair car and two Pullman cars, named the Tampa and the Palm Beach, and did not stop at Keats, but did stop at Manhattan, a station some ten miles west of Keats. As there were no vacant seats in the chair car which appellee entered, the conductor took her into the Pullman car Tampa. The train left McFarland about 9 o’clock on the evening of January 4, 1905, and arrived at Manhattan at 10:20 the same evening. Appellee left the train through the front door of the car, and in stepping from the bottom step, in some way fell and was injured about the right knee. She brought this suit to recover damages for the injuries alleged to have been sustained thereby.

The second amended declaration upon which the case was tried, consisted of three counts. The first count alleged that appellant failed and omitted to furnish appellee a reasonably safe place to alight, but on the contrary stopped its train in the night time where there was no light, and at a place where the ground was a great distance below the step of the car from which appellee was alighting. The second count charged that appellant negligently failed to maintain lights at or near the place where its train was stopped, and also negligently failed to maintain a suitable platform to afford appellee an opportunity to safely alight from its train, but on the contrary maintained a platform at the place where said train was stopped which was a great distance from the step of the car. The third count charged that there was a broken step on the car, by reason whereof appellee fell. Each count alleged that appellee was in the exercise of due care for her own safety while alighting from said car. The third count was excluded from the consideration of the jury for lack of evidence to support it. Appellant pleaded the statute of limitations to each of these counts, and to each of these pleas a demurrer was sustained. A plea of not guilty was interposed. There was a trial and a verdict for appellee for $6,000. A motion for a new trial was overruled, and judgment was entered on the verdict for $6,024. The $24 was interest from date of verdict to date of judgment. The company prosecutes this appeal.

The evidence shows that at Manhattan, appellant’s tracks run east and west on the south side of the depot platform, which is elevated sixteen and three-fourths inches above the top of the ties on which the rails are laid and is constructed of brick and curbed with stone. Near its east end stands the depot building, which is one hundred and fifteen feet long, having projecting eaves and a bay window on the south side overlooking the platform. The car Tampa stopped with the front steps about seventy-five feet west of the west end of the depot, and so that the surface of the bottom step was ten inches higher than the surface of the platform, and its outer edge was nine and one-fourth inches from the platform in a horizontal direction.

It is not denied that the relation of passenger and carrier continued to exist until appellee had alighted from the car; therefore appellant owed her the duty of furnishing a suitable and safe platform and steps, sufficiently lighted, and upon which to leave the car, so far as it could reasonably do so by the exercise of the highest degree of care and diligence; and for any defect therein or absence of light, causing her injury, which human care, vigilance and forethought reasonably exercised could have discovered. and guarded against and provided for, consistent with the practical operation of its road, the law holds it responsible. I. C. R. R. Co. v. O’Connell, 160 Ill. 636. It is true that this rule does not require the carrier to foresee and provide against accidents never before known and not reasonably to be apprehended. Redfield on Negligence, sec. 496.

In our opinion, the evidence failed to show any defect in the platform, either in design, construction or state of repair.

Appellee testified that when she was alighting at Manhattan, it was very dark, and she saw no lights and did not see any lantern that the train men might have had; that she could not distinguish any train men because it was too dark; that a train man took one of her grips and that she took hold of the railing with her right hand and carried a grip in her left; that as she went to step on what she supposed was the bottom step, she went down under the step and struck her knee; that the platform was from two and one-half to three feet from the ground, and she fell two and one-half or three feet on to her hands and knees, and was under the steps of the car after she fell, between the trucks of the car and the stone curbing of the platform; that when she endeavored to get up she was struck in the back by the bottom of the car steps. On cross-examination she said she was familiar with the surroundings there; had been there frequently and knew that it was an elevated platform and that it had a stone coping with a brick platform inside; that she had gotten off there a number of times before.

The train conductor testified for appellant that the .car Tampa was lighted with Pintsch gas; that there was a four burner light above the door; that the chair car next the Tampa had a vestibule light, and that the door of the chair car was open; that there was a light at each end of the depot building, and that there were good bright lights in the ticket office. Both, the Pullman and train conductors testified that they stood one on each side of the car steps when appellee alighted; that each of them had a lighted lantern, and that they caught appellee so that she did not quite fall. The Pullman conductor testified that there was a four jet light burning just inside the west door of the Tampa, and a two-jet light in the ceiling of the vestibule. The telegraph operator testified that a light was burning at each corner of the south side of the depot; that two lights were burning in the office and one in the waiting room. The flagman said that the lights at the depot were lighted.

It will be observed that the evidence bearing upon the averment that the place where the train stopped was not properly lighted, so as to afford appellee a safe place to alight, is conflicting, with a clear preponderance favoring appellant’s contention that it was sufficiently lighted. The jury evidently did not take into consideration the number of witnesses contradicting appellee on'this question. The number of witnesses is an element to be considered, and the jury are bound to take it into consideration in determining the credibility of the witnesses and the existence of a fact. In C. & N. W. Ry. Co. v. Smith, 81 Ill. App. 366, it is said: “While the jury are the judges of the credibility of the witnesses and the weight to be given to their testimony, yet this is to be taken in a reasonable sense, with the limitation that they may not from caprice or prejudice wholly disregard the number of wdtnesses or the weight of the evidence.” In Peaslee v. Glass, 61 Ill. 94, it is said: “That although a judgment may not be reversed where the verdict is based on the evidence of a plaintiff contradicted by the defendant, and neither supported by other testimony, yet the court will reverse where the verdict rests alone on the testimony of the plaintiff and he is positively contradicted by the defendant, who is corroborated by an unprejudiced witness.” Eastman v. West Chicago Street Railway Co., 79 Ill. App. 598; Hays v. Johnson, 92 Ill. App. 83.

Appellee urges that proof of the injury made a prima facie case, shifting the burden upon appellant, under the application of the maxim of res ipsa loquitur, and relies upon Chicago City Railway Co. v. Carroll, 206 Ill. 318; 3 Thompson on Negligence, sec. 2754; 2 Wharton on Negligence, sec. 661; Galena and Chicago Union Railroad Co. v. Yarwood, 17 Ill. 509; Pittsburg, Cincinnati and St. Louis Railway Co. v. Thompson, 56 id. 138; Peoria, Pekin and Jacksonville Railroad Co. v. Reynolds, 88 id. 418; Eagle Packet Co. v. Defries, 94 id. 598; North Chicago Street Railway Co. v. Cotton, 140 id. 486. “The maxim res ipsa loquitur has a proper and legitimate application in actions of negligence, including an action against carrier of passengers for an injury to a passenger, but the maxim does not apply upon mere proof that an accident to the passenger has happened.” Barnes v. Danville Street Ry. Co., 235 Ill. 566. “The general rule may be said to be, that where an injury happens to the passenger in consequence of the breaking or failure of the vehicle, roadway or other appliance owned or controlled by the carrier, and used by him in making the transit, or in consequence of the act, omission or mistake of his servants, the person entitled to sue for the injury makes out a prima facie case for damages against the carrier, by proving the contract of carriage, that the accident happened in consequence of such breaking or failure, or such act, omission or mistake of his servants, and that, in consequence of the accident, the plaintiff sustained damages.” 3 Thompson on Negligence, sec. 2754. “This presumption arises, not from the happening of the accident, but from a consideration of the cause of the accident.” Sec. 2756 id. “It does not apply where the defect, deficiency, or peculiarity in the carrier’s means of transportation or accommodation, which was the occasion of the accident, was visible to, seen by or known to the passenger, as well as the carrier, and where the accident took place either before the actual commencement of the transit or after its termination, and while the passenger was in the affirmative act of boarding the carrier’s vehicle, or alighting' therefrom, or coming upon or passing from the grounds of the carrier, in all of which cases the carrier is not the exclusive bailee of the passenger, but the passenger is required under the principles of law, to take reasonable care for his own safety.” Sec. 2763 id. “Nor does the foregoing rule apply where the occasion of the hurt of the passenger was an active voluntary movement on his part, combined with some alleged deficiency in the carrier’s means of transporation or accommodation; and the reason is that in such cases it is necessary to consider whether there may not have been contributory negligence on the part of the passenger. It is only in respect of those accidents which happen to the passenger while he passively trusts himself to the safety of the carrier’s means of transportation, or to the skill, diligence, and care of his servants, that the rule applies.” Sec. 2764 id. An examination of the authorities relied upon by appellee to sustain her contention that the burden shifted to appellant under the application of the maxim of res ipsa loquitur, shows that in each case the accident happened in consequence of the breaking or failure of the vehicle, roadway, or other appliance owned or controlled by the carrier, and used by him in making the transit, or in consequence of the act, omission or mistake of his servants. In Chicago City Ry. Co. v. Carroll, supra, the cause of the injury was the falling of a trolley pole. In Galena and Chicago Union R. R. Co. v. Yarwood, supra, the cars ran off the track and Yarwood, under the excitement of the occasion, was injured by leaping from the car. In Pittsburg, Cincinnati and St. Louis By. Co. v. Thompson, supra, Thompson was injured by the car in which he was riding being precipitated from the track in consequence of a defective road bed or by reason of the inexplicable breaking of an axle. In Peoria, Pekin and Jacksonville B. B. Co. v. Beynolds, supra, the car in which Beynolds was riding was thrown from the track down an embankment and turned bottom side up and he was injured. In Eagle Packet Co. v. Defries, supra, plaintiff was injured by the breaking of the stage plank which she was crossing in leaving defendant’s boat. In North Chicago Street By. Co. v. Cotton, supra, plaintiff was standing on the rear platform of one of defendant’s cars, and was run into by another car of defendant following on the same track.

None of these cases are similar to the one at bar. Here the deficiency or peculiarity, if any, which was the occasion of the accident was known to appellee as well as to appellant. Moreover, she was in the act of voluntary movement, of alighting from the train, and appellant was no longer her exclusive bailee. These features take the case out of the rule of res ipsa loquitur, and leave the burden with appellee to establish the material averments of her declaration by a preponderance of the evidence, which, we hold from an examination of the entire evidence in this record, she failed to do.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


text:
    Robert E. Blair, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5,110.

      Instruction—when peremptory should not he given. A peremptory instruction for the defendant in an action on the case for personal injuries should not he given where the evidence introduced on hehalf of the plaintiff when taken to be true, together with all legitimate inferences which may he drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in the declaration.
    Action in case for personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard'in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    W. R. Hunter, for appellant; John G. Drennan, of counsel.
    Pease, Smietanka & Polkey and Johnson & Molthrop, for appellee; Warren Pease and Charles P. Molthrop, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

Robert E. Baird, the appellee herein, was a switch-man in the employ of the Illinois Central Railroad Company at Kankakee. He was about twenty-three years of age and had formerly been employed by appellant as a freight brakeman, but about one week before the accident here complained of he had been taken from the road and sent to the yards at Kankakee to work with a switching crew and with switch engine No. 109. On the 7th day of October, 1906, at about two o’clock in the afternoon, the switching crew of which Blair was a member was proceeding north on one of the switch tracks in the yard at Kankakee, the engine pushing one car ahead of it. It was the intention of those in charge of the work to make what is known as a “flying switch”, and therefore Blair was stationed on the foot board of the engine, next to the car which was being pushed, for the purpose of uncoupling this car at the proper time while the engine was in motion. The engine was going about five or six miles per hour, and in passing over a switch connecting this track with what is known as the “lead” track, became derailed, and Blair’s toes and a portion of his foot were so crushed between the foot-board and the rail that amputation of the entire foot became necessary. Appellee brought this suit to recover damages for the injuries sustained by him. His declaration contained three counts, of which the first was dismissed on his motion, and later leave was given to file an additional count. The second count alleged that while appellee was emploved by appellant as a switch-man, appellant negligently supplied an engine upon which the brake shoes had become so worn and thin that they were liable to break when in use, as defendant knew; that appellee in the exercise of due care, and in the performance of his duty, was standing on the footboard of said engine, when one of said brake shoes became broken and fell on the track and derailed the engine and injured the appellee. The third count alleged that the switch engine provided by appellant was so worn out, broken and defective, that certain parts thereof were liable to break and become loose and derail the engine, and that a certain portion of said engine did so become loose and fall while the engine was in motion and derailed the engine and injured the plaintiff, while he was in the exercise of due care. The additional count alleged that the rails of the track over which appellee was obliged to travel on said engine while in the performance of his duty were so improperly placed and so insecurely fastened that they became shifted and spread and that the feet of appellee were thereby caught between a portion of the engine and the track and thereby injured, while appellee was in the exercise of due care. A plea of the general issue was filed to the original declaration, and was ordered to stand to the additional count. Upon a jury trial, a verdict was returned in favor of appellee for $5,000. A new trial was granted, and upon a second trial appellee again had a verdict for $5,000. A motion for a new trial was overruled and judgment was entered on the second verdict, from which defendant below prosecutes this appeal.

The principal errors assigned by appellant are based upon the refusal of the trial court to give a peremptory instruction for the defendant at the close of plaintiff’s proofs and again at the close, of all the evidence, and also upon the refusal of certain other instructions offered by the defendant. A peremptory instruction for defendant should not be given where the evidence introduced on behalf of the plaintiff, when taken to be true, together with all legitimate inferences which may be drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in the declaration. Libby, McNeil & Libby v. Cook, 222 Ill. 206. It therefore becomes our first duty to consider whether the evidence tends to prove the allegations of the declaration.

Engine No. 109 had three driving wheels on each side of the engine, about the center of the body of the engine. The engine had no other support than the driving wheels, that is, it had no “pony truck”. A brake shoe hung in front of each of these driving wheels, and the examination made after the derailment of the engine revealed the fact that on the right side of the engine the brake shoe was broken off from the front driving wheel and that the lower portion of the brake shoe on the center wheel was also missing. These missing portions were afterwards found on the ground under the engine. At the time of the accident the engine was pushing a freight car ahead of it, and the fact that this car did not leave the rails tends to show that the cause of the derailment of the engine intervened after the car had passed the point where the derailment occurred. The front and the main or center driving wheels left the rails, while- the rear driving wheel and the wheels of the tender remained on the track. This would seem to show conclusively that the cause of the derailment of the front and main driving wheels was removed from the rail by such derailment itself or else was so blocked by those wheels as to be incapable of interfering with the rear driver and the tender wheels. The evidence shows that one Van Horn, the regular engineer of engine No. 109, on the 23rd day of September, two weeks before this accident, entered an order in the complaint book, kept in the roundhouse at Kankakee for that purpose, for a new right main brake shoe to be put on this engine. He testified that to his knowledge this shoe needed replacing. He continued to run this engine from the 23rd to the 29th of that month, and on the latter date again reported this same brake shoe in the same manner. He ran this engine from thence up to and including the 5th of October, and was unable to testify that the shoe had been replaced during the time he continued to run the engine, nor did any other witness testify that such work had been done. One of the company’s machinists testified that a pencil line which was drawn through the engineer’s complaint of September 29th indicated that the work had been done, but no record was kept of the work done, and this machinist could not say positively that it had been done. Another of the machinists testified that the night before the accident he found the shoe about half worn, and it does not seem possible that the shoe could have become so worn if it had been renewed on the 29th of September, not much more than one week before appellee was injured. Another machinist testified very particularly to various repairs which he made to this engine on the night of September 29th. He made an entry on the machinist’s book of each of these repairs but among those items he could not find one pertaining to the replacing of such a brake shoe. It seems clear from the evidence that this shoe had not been replaced since the date of the engineer’s first complaint regarding it. In view of this condition of the proofs and the further testimony by one of appellant’s witnesses that a broken brake shoe might cause the derailment of an engine, it seems clear to us that the evidence did tend to prove the allegations of the declaration and should have been submitted to the jury, and that the trial judge did not error in overruling appellant’s motions for a peremptory instruction.

Appellant complains of the refusal of the trial judge to give to the jury the following instruction:

“If you believe from the evidence that the defendant, prior to and up to the time of the accident, had in its employ experienced and competent machinists in its round house for the purpose of inspecting and repairing its locomotives, and that said machinists or either of them inspected the brake shoes of engine No. 109 on the 6th day of October, 1906, and determined from such an inspection in their or his judgment that said brake shoes were in good serviceable condition for use on said engine, then under the law the defendant would not be liable, even though you may believe from the evidence that the condition of the brake shoe caused the derailment.”

This instruction was properly refused for the reason that it would take away from the jury the question of negligence on the part of the defendant. Even if appellant did keep in its employ experienced and competent machinists for the purpose of inspecting and repairing locomotives, and even if they inspected the brake shoes of this engine on the night before the accident and determined from such an inspection that said brake shoes were in a good and serviceable condition, that would not necessarily relieve the appellant from liability, for these machinists might have overlooked some defect, through carelessness or negligence. The negligence of these machinists, if they were negligent in inspecting and repairing would be the negligence of the appellant. If the appellant had not used ordinary care to furnish the appellee with reasonably safe appliance and the appellee was injured because of such negligence, the fact that its machinists were competent and experienced would not relieve appellant from liability. The jury were properly instructed on this point in other instructions given, and we find no error in the refusal of the instruction quoted above.

The judgment is therefore affirmed.

Affirmed.


text:
    Jerome B. Tole, Appellant, v. Edward Tole, Appellee.
    Gen. No. 5,123.
    1. Landlord and tenant—what tenancy from year to year. If the original letting was for a year, a hold-over continuing for a period of one year and four months establishes, as a matter of law, that a tenancy from year to year exists.
    2. Landlord and tenant—when 60 days’ notice essential to terminate tenancy. Where a tenancy from year to year arises, its termination by the landlord must be by a sixty days’ notice as required by statute.
    3. Landlobd and tenant—when notice to terminate tenancy not essential. A landlord need not serve a notice to terminate a tenancy before commencing forcible entry and detainer if the tenant has repudiated the tenancy and asserted title in himself.
    4. Tbiai.—when conduct of counsel ground for reversal. If an improper statement is made by counsel and improper questions asked by him and rulings of the court disregarded, all for the purpose of casting an imputation of unlawful conduct against one of the parties, such unlawful conduct not being a question material to the issue, such harm is done as requires the setting aside of the verdict obtained by such means.
    Forcible detainer. Appeal from the County Court of La Salle county; the Hon. W. H. Hinebauoh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 10, 1909.
    McDougall & Chapman and Duncan, Doyle & O’Conor, for appellant.
    Browne & Wiley, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action in forcible detainer brought on July 6,1907, by appellant, Jerome B. Tole, against appellee, Edward Tole, his son, before a justice of the peace of La Salle county under clause 4 of section 2, chapter 57, Hurd’s B. S. 1905, to recover possession of two tracts of land, one containing three acres, of which appellee had been in possession over two years and four months, and the other four acres, of which he had been in possession about two years and four months, and had paid no rent for either. On the trial, appellant obtained a judgment to the effect that he was entitled to the possession of the premises in controversy. On an appeal to the County Court of said county, appellee obtained a verdict and judgment to the effect that he was not guilty of wrongfully withholding the possession of the premises, and plaintiff below prosecutes this appeal.

Appellant’s testimony was to the effect that he made a verbal agreement by which he was to lease to appellee the three acre tract on which were situated the buildings, from March 1, 1905, to March 1, 1906, at a rental of $40 and that in February, 1905, he rented to appellee the four acre tract for the year at $4 per acre; and that on March 1, 1906, he had a conversation with appellee in which he stated to appellee, that if he wished to stay another year, he would have to enter into a written contract. This, appellee refused to do, and appellant told him to get off the premises.-

Appellee’s proof tended to show that in February, 1905, he went to appellant and asked to be permitted to move on the three-acre tract, and appellant told appellee he would have to see another party before he could give him an answer. Appellee had one other conversation with appellant in which appellant told him he had not decided whether he could have it or not. Appellee afterwards called up appellant’s house by telephone when he was absent and had a conversation with appellant’s wife, in consequence of which he moved onto the three-acre tract on March 1, 1905. A few days later appellee asked appellant if he could also occupy the four-acre tract and appellant told him he would have to see another party, and afterwards told him he could take it; and that after he took possession of the four acres, appellant told him it would be $4 per acre and that he said “All right”. Two witnesses testified that appellant told them that the lease for the four acres was indefinite as to time. Appellant denied making such statement.

Appellee contends that appellant has not made a case because the evidence shows that the tenancy was either from year to year or at will, and that if the tenancy was originally for one year, yet by permitting the holding over another year and four months on the third year, it was turned into a tenancy from year to year, and the tenant was entitled to written notice to terminate the tenancy at least sixty days before the end of the year, and that such notice not having heen proven, the landlord was not entitled to recover possession; and also, if, as to both tracts, or as to the four-acre tract, it was only a tenancy at will, then he was entitled to a written demand for possession before suit was brought, and as no such demand was proven, appellant was not entitled to recover. To these contentions, appellant replies: First, that the admission made by counsel for appellee in his opening statement to the jury that a demand had been made for possession, made it unnecessary to introduce any proof of the service of demand for possession or notice of the landlord’s election to terminate the tenancy. Appellee’s counsel did state to the jury that appellant made demand for possession of the premises before starting the suit, but he did not admit that the demand was in writing or that it was made sixty days before the end of the year, and we conclude that it was not a sufficient admission to supply the necessary proof. Second, that this was a leasing from year to year only, and no notice or demand for possession was necessary, but counsel argues that when the tenant stayed in after the end of the first year, it was for the landlord alone to determine whether the tenant should be treated as a trespasser or as a tenant for another year and that as the landlord never had any further arrangement with him, or told him he could stay longer, he remained a trespasser during the next year and four months and was not entitled to any demand or notice. We think this position of appellant untenable. That might be true if only a few days had elapsed after the expiration of the term, but when he permitted the tenant to crop the land and remain another year, it became a tenancy from year to year, and a sixty days’ notice of the landlord’s election to terminate the tenancy would have been required by chapter 80, section 5, Hurd’s E. S. 1905, had appellee not repudiated the tenancy and asserted title in himself and sister. Appellee testified that he told appellant that he did not consider that he owed him a dollar, but that he considered that appellant owed him and his sister, or owed him rent for eighty acres of which these two tracts formed a part, for the last thirty years. As appellee disputed appellant’s title, repudiated the tenancy and asserted title in himself and sister, he was not entitled to any notice before a suit in forcible detainer could be brought.

In Doty v. Burdick, 83 Ill. 473, a forcible detainer suit, it is said: ‘ Where the tenant denies the landlord’s title and resists his right, he thereby forfeits his lease, and the landlord may sue for, and recover possession. He, by claiming the premises adversely for himself or another, thereby renders his possession tortious.” In McGinnis v. Fernandes, 126 Ill. 228, a suit in ejectment, it is said: “The rule is, that where a defendant in ejectment repudiates his tenancy, and claims a title in fee, he dispenses with the necessity of a notice to quit.”

Appellee’s counsel, in his opening statement to the jury, said, in spite of the court’s ruling that it was improper and immaterial, that appellant was not, in fact, the lawful owner of an eighty acre farm of which the two tracts involved were a part, but that appellee expected to prove that it had been conveyed by the maternal grandfather of appellee in trust for the mother of appellee, and the heirs of her body, and that the contents of that deed he was unable to state because it was either in the possession of appellant or had been destroyed; and that the mother of appellee died in 1875, and that he expected to show that under the deed the title to the property involved came absolutely to appellee and his sister; and that appellant, by some means, got possession of the property when appellee and his sister were young children and knew nothing about it; and that appellee and his sister, with another child, a half brother, were the lawful owners of the property. Appellee’s counsel, on the cross-examination of appellant, asked nine questions, the purport of which was to establish the statement that the title to the premises was in appellee and his sister and half brother, to all of which objections were properly sustained. After objections had been sustained to a number of these questions, the court said to counsel for appellee, that if he desired to make a record on a proposition where court and counsel differed in view, he might make the offer in the absence of the jury, to which counsel replied that he had no offer to make, and then renewed a question involving the subject already ruled improper by the court. It is obvious that the object of the improper statement and questions was to picture appellant to the jury as a man who had cheated his children out of their farm, and thereby obtain a verdict regardless of the real merits of the case. Against this imputation, appellant could not take the stand and rebut the impression such conduct may have made upon the jury, because the subject was entirely foreign to the issue being, tried.

The rulings of the trial court, disregarded by counsel, were correct and should have been enforced. In West Chicago St. R. R. Co. v. Annis, 165 Ill. 475, the court said: “Trial courts should not hesitate to use their authority to restrain all efforts of attorneys to obtain verdicts by using unfair means, * * * and whenever such restraining influences do not effect the purpose, the fruits of such unprofessional conduct ought to be taken away by granting a new trial.” “It is the duty of the court * * * to compel obedience to rulings and decisions.” Lipsey v. The People, 227 Ill. 364.

This being a suit for possession only, the title to the premises was not involved. Appellee had received possession from appellant. If his tenancy had expired, then appellant was entitled to recover possession irrespective of whether he was the real owner or whether appellee and his sister and half brother were the owners. If appellee repudiated the tenancy, appellant had a right to regain possession in this suit.

A verdict obtained as was the verdict in this case should not have received the sanction of the trial judge and cannot be permitted to stand.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.