text:
    Lucinda Stailey, Appellee, v. Illinois Midland Coal Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict clearly -and manifestly against the weight of the evidence will be set aside on review.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    Brown, Wheeler, Brown & Hat, for appellant; Mastín & Sherlock, of counsel.
    Drennan, Bernard & Lawler and O. F. Mortimer, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by defendant from a judgment for the sum of $5000 rendered against it in favor of the plaintiff, who sued as widow and next of kin of Thomas Stailey, deceased. The action is predicated upon the alleged wilful violation of the Statute relative to Mines and Miners, whereby the death of the said Thomas Stailey, who was a shot firer employed in the mine of the defendant, resulted.

The first count of the declaration, avers the necessity for plaintiff’s husband to fire shots placed by miners; the duty of miners to leave pillars of sufficient strength between rooms and the violation of such duty; the wilful failure by the mine manager to instruct said miners to so run rooms as to leave pillars of sufficient size, and to visit working places as often as practicable. The second count avers wilful failure by the mine examiner to discover the dangerous condition of a certain pillar between certain specified rooms and to report as to the same. The third count avers the failure of the mine examiner to visit, inspect, mark, report, record, and to keep Stailey from entering the mine. The fourth count avers a wilful failure by the mine manager to cause certain dangerous conditions then existent to be properly marked, and a wilful failure to display a danger signal where there was a weak pillar of coal.

The evidence discloses that Stailey, a coal miner 33 years of age, was on January 25, 3908, and had been for six months prior thereto, employed at the defendant’s mine as a shot firer. About two o’clock in the afternoon of said day, he, in company with one Outcabbage, a companion shot firer, visited and inspected the shots which had been drilled and prepared by the miners in rooms 5 and 6 of a certain entry. Prior to that time, three shots had been prepared in room 6, one of which was placed on the left side of the “face,” one near the center, and one about five or six feet back of the “fa.ee” on the right or north rib or pillar of said room. The latter shot was driven not directly toward the face of the mine but in a northeasterly direction, toward room Mo. 5 on the north. At the time of Stailey’s inspection, room Mo. 6 had been driven west about 198 feet from the entrance, and room Mo. 5 had been driven west about 206 feet. Somewhere from 12 to 25 feet back of the shot in question, a “horseback” had been passed. The last cross-cut in the pillar between the rooms was from 70< to 90 feet east or back of the shot in question, but there was a cross-cut in the north pillar of rooms 4 and 5, about 58 feet back of said shot. After Stailey and Outcabbage had finished their inspection of all shots prepared, they started at about five o’clock to fire the same. The method pursued was that known as continuous firing; that is to say, one of them would go ahead and shorten the fuses while the other would fire the shots. Outcabbage testified that when they reached room 6 he lighted two shots on the left side of the room while Stailey lighted the shot in the pillar between rooms 5 and 6; that then Stailey went toward the face of room 5 and Outcabbage through the cross-cut to room 4; that there were only two shots in room 5, both in the “facethat Stailey lighted the one on the right-hand side first, and then went to the one on the left-hand side, and as he was kneeling down to light it, the shot lighted by him in room 6 exploded and blew him over toward the shot he had lighted in room 5, which when it exploded threw him back toward the center of room 5, instantly killing him.

The disputed questions of fact in the case, upon which the evidence is exceedingly conflicting, are as to the width and inclination of the rooms, the width of the pillar between rooms 5 and 6, the position and direction of the shot in the rib, and the distance of the nearest cross-cut, all of which questions are material as tending to show the condition of the shot at the time of its inspection and firing, and the purpose for which said shot was placed, it being the contention of the defendant that the same was placed preparatory to making a cross-cut, which was required by good mining by reason of the fact that a “horseback” had just been passed; that it was not a practicable shot for any other purpose, and that the deceased as an experienced miner should have so known. The plaintiff insists that by reason of the two rooms not being driven parallel but toward each other, an unusually thin rib was left between the two rooms, thus creating a dangerous condition which should have been discovered by the mine manager and mine examiner in the proper performance of their statutory duties. It is obvious if the shot in question was so placed as to indicate to a practical miner that the same was designed to blow through the rib and make a cross-cut, no dangerous place within the meaning of the Statute existed, and there was no violation of the Statute as charged in the declaration, and hence could be no recovery. If, however, the contention of the plaintiff is warranted by the evidence, the defendant was guilty of a wilful violation of the statute, for it is admitted that the mine examiner did not inspect or mark the place in question, nor make any report or record of its being in an unsafe condition. ISTor did the mine manager see that the place was properly marked and that danger signals were displayed as required by the statute.

A careful examination and consideration of the evidence, which we shall not undertake to rehearse or discuss at length, impels us to the conclusion that the evidence was insufficient to warrant the jury in finding a dangerous condition, within the meaning of the statute, at the time Stailey and the other miners went down to work on the morning of, the accident. The greater weight of the evidence clearly shows that the shot placed in the thin pillar in question was preparatory to making a cross-cut. As it has been said, a “horseback” in both rooms had just been passed, and after passing that both rooms were widened. The testimony of witnesses experienced and expert in mining was to the effect that it was the usual and better practice to make cross-cuts after passing through a “horseback.” Furthermore, the statute requires cross-cuts to be made not less than 60 feet apart, and there is evidence tending to show that the end of the hole where the shot was placed was approximately that distance from the last cross-cut in room 5. Moreover, the mine manager testified, without direct contradiction, that he had ordered a cross-cut made at that particular place. The rough drawings or plats offered in evidence, we think, tend to support this theory. The only evidence introduced by the plaintiff to overcome the circumstances above detailed, and the testimony of the mine manager, is the testimony of Albert Stailey and the mine inspector to the effect that the shot was a lifting shot; that is, a shot placed for the purpose of lifting the coal out of room 6.

Feeling satisfied that the verdict was clearly against the weight of the evidence, it becomes our duty to reverse the judgment rendered thereon and to remand the cause for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Albertina Leischner, Appellee, v. Simon Kaiser, Executor, Appellant.
    1. Dower—sections 10 and 12 of Act construed. By virtue of the Statutes of Descent and Dower the legislature intended that in the distribution of the assets of deceased persons where there are no children or descendants of children the surviving spouse shall receive a greater share than otherwise; therefore, in such condition of heirship, said acts being construed together, a widow is entitled to take one-half of the personal property of her deceased husband, who has died testate without making provision for her, under section 12 of the Dower Act, irrespective of the fact that she has made no renunciation, an election to take under section 12 being sufficient to fix the rights of such widow.
    2. Interest—when properly allowed against executor. An executor who illegally withholds the distributive share of a widow, or a portion thereof, is properly chargeable with interest.
    3. Tender—when does not stop running of interest. A tender if not unconditional is unavailing to stop the running of interest.
    4. Costs—when should he paid in course of administration. If an executor has prosecuted appeals in good faith, the costs incurred in connection therewith are properly ordered paid by such executor in due course of administration.
    Appeal from Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge presiding,
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Schumacher & Busch, for appellant.
    Elim J. Hawbaker, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

The only question presented for determination by this appeal is one of law, arising out of the following undisputed facts: Simon Leisehner died on or about July 8, 1907, leaving Albertina Leisehner his widow, but no children or descendants of children surviving him. At the time of his death he owned no real estate whatever. By his will, which was admitted to probate by the county court August 19, 1907, he made no provision for his wife Albertina Leisehner, nor was her name mentioned in said instrument. Letters testamentary were issued to Simon Kaiser as Executor of said will. Said executor proceeded to reduce said estate to his possession, and realized therefrom the sum of $15,228.48 in cash, out of which he paid to Albertina Leisehner the sum of $2,000 in full of her award as widow. He afterward tendered to said widow the sum of $4092.75, being one-third of the amount remaining in his hands for .distribution, upon condition that she accept the same in full payment of her distributive share of said estate. She refused to accept said sum upon such condition, and claimed the right to and did elect to take in lieu of dower, under section 12 chapter 31 of the State, one-half of the remaining personal estate, all of the debts and claims against said estate having been paid in full. Thereafter she filed her petition in the county court, praying that she be allowed her legal share in said estate and that said executor be cited to appear and make final report. Upon a hearing on said petition the county court decreed that Albertina Leisehner as widow was entitled to have half of' said estate, and further that the executor pay interest at the rate of five per cent, per annum upon the net amount found to be due her, from and after August 3, 1908. Upon an appeal by the executor the circuit court affirmed such order, and decreed further that the costs of the proceeding be paid by the executor in due course of administration.

It is contended by appellant, that to entitle appellee to elect under section 12, there must have been in her a subsisting right of dower in her husband’s estate; and further, that the election provided for in said section can he made only in case of a renunciation, and there being no provision, devise or bequest for or to her under the will there was nothing that she could renounce; and that the failure of her husband to provide for her merely operated to nullify the will to the extent of her “legal rights”, which is to take one-third of the personal estate after payment of debts and costs, under section 10 of the “Dower Act”. Appellee’s contention is that she was entitled under the" circumstances to elect whether to take under the provisions of either section 12 or section 10 of said Act.

The sections in question read as follows:

“Dower Barred By Devises, Etc.—Election And Renunciation. § 10. Any devise of land, or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wrife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts.”

“In Case Will Renounced—Election To Take In Lieu Oe Dower. § 12. If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized, (whether the right to such dower has accrued by renunciation as hereinbefore provided, or otherwise,) and of any share of the personal estate which he or she may be entitled to take with such dower, absolutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife. The election herein provided for may be made whether dower has been assigned or not, and at any time before or within two months after notification to the survivor of the payment of debts and claims, and not afterwards.”

The precise question thus presented has not been directly adjudicated by our Supreme Court. Appellant relies chiefly upon Laurence v. Balch, 195 Ill. 626, in which the facts were almost identical with those here presented. In that case Laura J. Laurence died testate leaving a surviving husband but no child or descendant of a child or children. By her will she disposed of her .entire estate, which consisted wholly of personal property, but made no provision for her surviving husband. He claimed that under this state of facts he took her entire estate after payment of debts and costs, under the provisions of section 1, of the Statute of Descent. The court held that there being a will the estate was not intestate property, and the effect of failing to provide for the surviving husband merely operated to nullify the will to the extent of the legal right of the husband, under section 10 of the Dower Act, to take one-third of the personal estate after the payment of debts and costs, and further that inasmuch as the wife had the right to dispose of her property by will as she saw fit, except that she could not deprive her surviving husband of the right conferred upon him by sections 10 and 12 of the Dower Act, and she having disposed of her entire estate by will, the Statute of Descent had no application. The opinion, after Inciting that it was “conceded by both parties that the only question presented for decision here is whether the appellant is entitled to the whole or only to one-third of his deceased wife’s estate remaining after the payment of debts and costs,” holds that the estate of the wife was not intestate property and that the appellant was only entitled to one-third of such estate remaining after payment of debts and costs. While such holding seems to support the position of appellant, we do not regard it as controlling in the present case. The appellant in the case cited having conceded that if the Statute of Descent was inapplicable he was only entitled to one-third, and it not being the province or duty of the court to protect or award to him greater rights than he himself asserted, it only remained to adopt the conceded alternative.

In Giger v. Bishop, 231 Ill. 472, in stating the case, the writer of opinion says: “Jacob Busch died in Mercer County leaving Mary Busch his widow. He had no children. The widow renounced the will and elected to take under the statute. The entire estate being personal property, the widow become entitled to one-half of the estate under the statute.” The Appellate Court in its opinion in the same case (135 Ill. App. 448) says: “Jacob Busch died testate. He left a widow but left no children. The estate was composed of personalty only. The widow renounced the will and thereby became entitled to one-half the estate. Revised Statutes, chapter 41, section 12.”

In Gullett v. Farley, 164 Ill. 566, it is held that upon renouncing the provisions of her husband’s will, a widow, where no child or descendant of a child is living, may either claim dower and one-third of the personal estate under section 10 of the Dower Act, or one-half the real and personal estate under section 12 of the same act, but that she is not entitled to both.

In Scheible v. Rinck, 195 Ill. 636, the court in referring to Section 12 of the Dower Act, says: “It has no application to the case of a surviving husband or wife who has accepted the provisions of a will and thereby takes property by devise and not by right of dower. It applies only to a husband or wife whose right of dower has not been barred, —as, for instance, the husband or wife to whom nothing has been devised or bequeathed by the will of the deceased or to whom a devise or bequest is given accompanied by an expression in the will showing it was not the intention of the testator or testatrix that the devise or bequest should be in bar of the right of dower, or who has renounced in accordance with the statutory requirements the devise or bequest. There must be a subsisting right of dower to entitle a surviving wife or hushed to make the election provided for in said section 12.”

In Blankenship v. Hall, 233 Ill. 116, the court says: “If he (the husband) dies testate, she (his widow) has a dower interest in all the lands of which he was seized during coverture and which he has not relinquished in legal form; and she may under section 12 of said Dower Act, where there is no child or descendant of a child, elect to take in lieu of dower in the statute of which the husband died seized, and of any share of the personal estate which she may be entitled to take with such dower, one-half of all the real and personal estate which shall remain after the payment of the just debts and claims against the estate of her deceased husband.” The court further says: “There has been a manifest desire on the part of the law makers of this state, to provide for the support of the wife not only during the lifetime of the husband, but also after his death. As this court said in re Taylor’s will, 55 Ill. 252, on page 259, ‘We do not go too far when we say that it has become a sort of common law in this state that this support shall be in all cases one-third of the husband’s real estate for life and one-third of the personal estate forever which shall remain after the payment of debts.’ ”

In Richardson v. Trubey, 240 Ill. 476, it appears from the opinion that Mrs. Trubey died testate, leaving a husband surviving her but no descendants. At the time of her death she owned certain real and personal estate. By her will she devised and bequeathed to her husband, “whatever interest in my estate he may be entitled to under the laws and statutes of the State of Illinois.” The remainder of her estate she devised and bequeathed to certain brothers, sisters and nieces. It was held that whether under the language quoted, the surviving husband was entitled to the interest he would have taken at law had his wife died intestate, or the interest he would have taken had she died testate as to all her property without providing for him, depended wholly upon the testatrix’s intention as expressed in the whole will, as the words had no fixed meaning. In its opinion the court says: “W<$think it clear that what the testatrix intended her husband to have, was such interest in her estate as he would take under the laws of the state, she dying testate as to all her property, and making no provision for him by her will. The property to which he would then be entitled would be, first, one-third of her personal property after the payment of debts; second, homestead; third, dower in the remainder of her real estate. In such event, he could, of course, alter his rights by making election under Section 12, supra, just as he might have done here by such an election or by renouncing and making such an election.”

In view of the foregoing authorities, and what we are convinced is a fair construction of the Statute, we are of opinion that the position of appellant is untenable, and that the chancellor properly held that appellee was entitled to one-half of the estate. It is obvious from the provisions of the acts relative to Descent and Dower, that the legislature intended, and'reason and justice would seem to dictate, that in the distribution of the estate of deceased persons, where there are no children or descendants of children, the surviving spouse shall receive a greater share than otherwise.

It was not error to allow interest on the amount due appellee under the circumstances disclosed by the evidence. Gullett v. Farley, supra; Warner v. Warner, 235 Ill. 448. The tender relied upon was unavailing to stop interest, as it. was not unconditional. Pulsifer v. Shepard, 36 Ill. 513. We are satisfied that the respective appeals by the executor were prosecuted in good faith, and it was. therefore not improper to order the costs occasioned thereby to be paid by the executor in due course of administration.

The decree of the circuit court is affirmed.

Affirmed.

Mr. Justice Philbrick took no part.


text:
    Bernard McDermott, Appellee, v. Springfield Coal Mining Company, Appellant.
    1. Instructions—when peremptory properly refused. A peremptory instruction is properly refused if there is evidence tending to establish a right of recovery.
    2. Instructions—must not ignore element essential to recovery. In an action for personal injuries an instruction which authorizes the jury to find a verdict for the plaintiff if certain facts are found, is erroneous if it ignores .any element essential to a recovery.
    3. Master and servant—doctrine of assumed rish defined. A servant assumes not only the ordinary risks incident to his employment but also all dangers which are obvious and apparent notwithstanding the master may have failed in his duty to furnish the servant with a place ordinarily safe in which to work.
    4. ISTegligence—what not as a matter of law. In an action for personal injuries suffered by a mule driver while employed in a mine, held, that it was not negligence, as a matter of law, to fail to provide a car with a bumper.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. R. B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    Conkling & Irwin, and J. C. McBride, for appellant.
    A. Salzenstein and T. J. Condon, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of damages sustained hy the plaintiff through the alleged negligence of the defendant company while he was employed as a mule-driver in its mine. A judgment was rendered in favor of the plaintiff for $900 to reverse which this 'appeal was prosecuted by the defendant.

The declaration alleges that on August 18, 1908, the defendant operated a coal mine; that the plaintiff ivas employed as a driver in said mine, and hauled loaded cars, drawn by mules, from the parting to the bottom, and empty cars from the bottom to the parting; that it was the duty of the defendant to use reasonable care to provide the plaintiff reasonably safe cars having bumpers on the ends of them; that while in the course of his employment the plaintiff was driving a team of mules tandem, attached to eleven coal cars, from the south main entry to the bottom of the mine, it became necessary, on account of conditions existing on the roadway, for him to get off of the car on which he was seated and from the ground urge the mules forward over certain obstructions; that after he had done so he started to get on the forward car on which he was riding; that in so doing, “he attempted to place his foot where the bumpers of said car should have been, as was the usual and customary manner of mounting from the ground to such cars, and said bumpers being gone, of which he had no knowledge, and using ordinary care and caution had not discovered, he was sliding and falling toward the railroad track and in danger of falling thereon and having the cars run over him, and in order to save himself, using reasonable care and caution for his own safety, his face and head with great force and violence came in contact with some hard substance which the defendant had placed or allowed to he and remain near said track,” whereby he was injured.

The evidence shows that McDermott had been driving mules in mines for twelve years prior to the accident, and had driven the same team, on the same run, in defendant’s mine for about three months, and was hauling empty cars to and loaded cars from the parting in the main west entry. On the morning of the accident he had brought a trip of empties to the parting from the bottom, and placed them on the empty parting track. He then unhitched his mules and drove them through a cross-cut, to the loaded parting track and hitched them on to a trip of loaded cars, by fastening the tail-chain to the draw-bar which was attached to the middle bottom board of the front car and was about ten inches above the entry floor. The bottom of the cars was 32 inches wide and constructed of three boards laid lengthwise. The bumpers on the cars were made by the projection of the two outer boards of the car bottom, each of which projected out three or four inches beyond the middle board of the bottom, and would, had they been in place, have been on a level with and four or five inches from the hole in the draw-bar, into which the tail-chain was hooked.

McDermott testified that after he had hitched his team to the trip, he went back along the south side of the trip, put the tail-light on the rear car, and then returned along the same side and went up in front of the mules to keep the leader from going into the cross-cut; that after the mules-had passed the cross-cut he stepped on the south'bumper on the car, sat down on the seat facing south, and rode in this position about three hundred yards until he came to a place where there was some dirt in the entry, where he got off the trip to start the team, which had stopped; that he crossed over in front of the cars, and when up along the north side of the entry until he “had started the team; that he then stopped and stood waiting until the front car was about four feet from him, when he stepped for the north bumper to get on the seat; that he did not think anything about the bumper, but when he stepped for the bumper and missed it, he knew it was not there; that when he stepped and missed the bumper he started to fall, grabbed the front of the car with his left hand and the side of the car with his right hand and dragged himself up; that he did not go under the car and that he was caught by something along the side of the car, but what it was he did not know, and that the next he knew -he was laying in front of his trip, in the middle of the track, and the front of the trip was from twenty to thirty feet from where he fell.

The evidence for defendant tends to show that the plaintiff, after the accident, stated that the bumper was off of the car and that he was caught by a bar over the track, called the low-bar, when he attempted to jump on the car while it was in motion. The evidence for the defendant further tends to show that there was no prop along where the plaintiff was injured, nor any debris along the side of the car by which he could have been injured; that an examination made after the accident indicated that he had not been caught along the side of the track as he claimed, but had been knocked off the car by a low cross-bar under which he had passed; that the seat on such car was only about twenty-six inches above the ground, so that it.was unnecessary to use the bumper; that bumpers were placed on the cars for the sole purpose of protecting the draw-bars and the ends of the cars and to prevent the cars locking on turns, and further, that there was no necessity for the plaintiff getting on the trip while it was in motion, as he had full control of the trip.

■ There was evidence tending to establish a right of recovery, and the court properly refused to direct a verdict for the defendant.

.The first instruction given for the plaintiff tells the jury that if they found from the evidence that the plaintiff had made out his case as laid in the declaration, by the preponderance of the evidence, they should find the issues against the defendant. In order to recover it was essential that the plaintiff should prove that the defendant knew or in the exercise of ordinary care should have known, that the bumper was missing from the car when it furnished him ivith the same. The alleged defect was not one of original construction. The effect of the foregoing instruction was to eliminate this question from the case as it is not charged in the declaration, either expressly or by implication, that the defendant had or should have had knowledge of the condition of the car. The jury, if they followed such instruction, might have found the averments of the declaration to have been fully established by the evidence and based their verdict thereon, although they may have further believed that the evidence failed to show that the defendant had or should have had notice of the defective condition of the car. Lumber Co. v. Hanley, 214 Ill. 243. The instruction was peremptory in form and the error was not cured by others given. Krieger v. R. R. Co., 242 Ill. 544.

The third instruction reads as follows: “The court instructs the jury that it is the duty of a coal company to furnish reasonably safe cars to its drivers, operating and handling such cars, and that such drivers have a right to rely that the coal company has performed such duty, and the failure of the coal company to perform such duty is not a risk assumed by such driver in the ordinary course of his employment.” This instruction was misleading and prejudicial. From it the jury might readily understand not only as a matter of law that the car in question was not reasonably safe, but that the law relative to the doctrine of assumed risk was as therein stated. A servant assumes not only the ordinary risks incident -to his employment, but also all dangers which are obvious and apparent, notwithstanding the master may have failed in his duty to furnish the servant with a place ordinarily safe in,which to work. Cichowicz v. Packing Co., 206 Ill. 346; McCormick Machine Co. v. Zakzewski, 220 Ill. 522.

The fourth instruction, in substance, told the jury that if the plaintiff was injured “by reason of one of the bumpers on one of the cars furnished him and on which his seat was placed, being gone, while he was attempting to take his seat by stepping thereon, as alleged in his declaration,” they should find the defendant guilty. The instruction stated in effect that as a matter of law the failure to have a bumper on the car was negligence per se. Whether the absence of a bumper was negligence was a question of fact to be determined by the jury under all the facts and circumstances. The instruction therefore invaded the province of the jury.

The evidence in the case was close and conflicting upon all material issues. Under such circumstances it was essential that the instructions be free from substantial error. The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Frank D. Knox, Appellee, v. J. H. Despain, Appellant.
    Vendor and vendee—what constitutes merchantable title. In order that a title to real estate be merchantable, it must be good beyond a reasonable doubt, and this must appear from the abstract itself. It is not sufficient that the title may, in fact, be good, or that it may be made good. The abstract on its face must show that there is no reasonable doubt about it. It is not sufficient if the court has a favorable opinion of it, or thinks that it is probably good. It must be such a title as will not detract from the salability of the land, or depreciate its value on the market, or expose the vendee to possible litigation or to the danger of being defeated in an action concerning it. On the other hand, an objection cannot be founded on unsubstantial trifles; a bare possibility that the title may be affected by the existing causes which may subsequently be developed, when the highest evidence of which the case admits, amounting to a moral certainty, is given that no such cause exists, is not to be regarded as a sufficient ground for a refusal to perform the contract of purchase.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed and rehearing denied May 18, 1910.
    O. M. Jores and A. A. Partlow, for appellant.
    Actor & Actor, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

The appellee, Knox, recovered a judgment in the Circuit court against appellant Despain, for the sum of $1000, being the amount of the penalty provided in a written contract between the parties entered into May 22, 1908,- in and by which Despain agreed in substance to purchase from Knox a farm of 257 acres in Indiana for the sum of $32,125, for which the said Knox agreed to accept in exchange of said Despain, certain residence properties in the city of Danville, at an agreed valuation of $16,500. The contract further provided that in case either party should fail to carry out the agreement, he should forfeit and pay to the other the sum of $1,000, and further, that each party was to furnish the other a “merchantable abstract and warranty deed and that the property should be cleared up to date.” Shortly after the contract was signed the parties exchanged abstracts. Despain submitted the one furnished by Knox, to an attorney for examination. The attorney reported that the abstract failed to show a merchantable title in Knox. Upon being notified of such objections the attorney for Knox sought to cure the defects pointed out by supplying several affidavits in support of the title shown by the abstract. Despain thereafter tendered to Knox a deed for the property to be conveyed to him, together with the abstracts of title therefor, and announced that he was ready to comply with the terms of the contract, but that he was not willing to accept the title to Knox’s land, for the reason that the same was defective, and, notwithstanding the affidavits furnished, failed to show a merchantable title in Knox as provided in the contract. Knox failed to cure the alleged defects in the title, whereupon Despain refused to consummate the deal, and Knox instituted the present suit. While other questions are involved and argued, the only one we deem it necessary to consider is whether or not the abstract of title tendered by Knox, together with the affidavits in support thereof, showed a merchantable title in him to the property which he agreed to convey.

For the purpose of shortening the record, the parties upon the trial agreed upon a statement as to what was shown by the abstracts of title in question. It appears therefrom that the fee to a part of the land was in the year 1880 . held by Henry Skinner and Horman Skinner as tenants in common, the last deed to Henry Skinner being dated in 1880; that there was no subsequent conveyance from Henry Skinner, but that the entire fee was subsequently conveyed by Horman Skinner. To supply such deficiency appellee furnished as a part of the abstract, an affidavit of Ellen ¡Reynolds, a daughter of Horman Skinner, which he claims shows that such conveyance by Horman Skinner of the whole title was followed by actual, open, notorious, exclusive, continuous, adverse and hostile possession for fanning purposes under claim of title, and payment of taxes, with the general reputation in the community that his grantee was the owner of said land. He insists that the facts as established constituted such an ouster or disseizin of the other co-tenants, that the statute of limitations had become a bar to an action by them for the recovery of the land. To further cure such defects, appellee relies upon the fact that it appears from one of the abstracts that certain lands of which Henry Skinner died seized, were partitioned hy the circuit court of Vermilion county, Indiana, in the year 1895, and that the tract referred to was not included in the proceeding for that purpose.

It appears that another tract was in 1829 devised by John Billings, who originally entered the land, to his sons Archibald Billings and David Billings, but there is no subsequent conveyance shown in the abstract by David Billings, and nothing to show that he ever parted with his title. In many conveyances shown by the abstracts, the grantors are not described, nor is it shown what interest they possessed, nor whether the interest of all of the others of the particular tract was conveyed. To supply the absence of a conveyance from David Billings, appellee relies upon an affidavit made by himself, that there is a tomb-stone upon a grave on the land in question inscribed “David Billings, son of John and Annie, died A. D. 1837, age 20 years.” Such fact has little probative force and may be regarded as but a makeweight.

In order that a title be merchantable,, it must be good beyond a reasonable doubt, and this must appear from the abstract itself. It is not sufficient that the title may, in fact, be good, or that it may be made good. The abstract on its face must show that there is no reasonable doubt about it. It is not sufficient if the court has a favorable opinion of it, or thinks that it is probably good. It must be such a title as will not detract from the salability of the land, or depreciate its value on the market, or expose the vendee to possible litigation or to the danger of being defeated in an action concerning it. If there is a reasonable doubt as to the title, it will be resolved in favor of the vendee. If there is even a color of outstanding title which may prove substantial, a purchaser will not be required to take it and thus encounter the hazard of litigation with an adverse claimant over whom the court has no jurisdiction. Howe v. Coates, 97 Minn. 385.

In Smith v. Hunter, 241 Ill. 514, it is held that where the vendor in a contract for the sale of land, has agreed to furnish an abstract of title showing good merchantable title in him, all the vendee need do to defeat a bill by the vendor for specific performance, is to show that that title which the vendor was prepared to convey was doubtful in character. It is there said: “The law is well settled that a court of chancery will not force upon a vendee a title clouded with substantial defects, or one that a purchaser may be required to engage in litigation to defend, or one that he cannot readily dispose of by reason of defects therein.” On the other hand, an objection cannot be founded on unsubstantial trifles; and a bare possibility that the title may be affected by the existing causes which may subsequently be developed, when the highest evidence of which the case admits, amounting to a moral certainty, is given that no such cause exists, is not to be regarded as a sufficient ground for a refusal to perform the contract. 26 Am. & Eng. Ency. of Law, 2d Ed. 109; I Warvelle on Vendors, pages 303-304-310.

■ The abstracts of the record of conveyances do not of themselves show a merchantable title in appellee, but he claims that the affidavits accompanying the abstracts and made a part 'thereof, show good title by adverse possession under color of title, and that the same may be properly considered in connection with the record title in determining whether or not a merchantable title which appellant was bound to accept, was shown. It is contended by appellant that defects in title cannot be cured by ex parte affidavits showing adverse possession; that they have no weight as evidence, and cannot be offered in evidence in any proceeding; that not being made in a judicial proceeding, or any other matter where by law an oath is required, they cannot be made the basis of perjury if untrue; that they are not binding upon the maker or any party in interest; and therefore have no more force or effect than the unsworn statement of the person making the affidavits.

There is much force in such contention, but it is not necessary for us now to determine the question. We are of opinion that even if the defective titles here involved could he so cured by affidavits as to make them merchantable, those offered in evidence are insufficient for that purpose, for' the reason that they state conclusions instead of facts. , They fail to negative the fact that some of the parties interested in the so-called defective titles were not tenants in common and were not under legal age, or not laboring under disability, whereas all of these possibilities should be negatived by stating the facts. The affidavits presented with the abstracts were ex parte statements, and those making them were not subjected to cross examination, and hence the statements therein contained should have left nothing to conjecture. In Clark v. Jackson, 222 Ill. 13, the dangér of accepting the conclusion of an affidavit in such cases is pointed out by the court in its opinion. It will be seen that but 28 years have elapsed since the deed to Henry Skinner, and only 13 years since his death. It cannot be assumed in the absence of any evidence other than the affidavits, which state conclusions only, that the statute of limitations did run against these tenants in common and that the interest of Henry Skinner and his heirs is barred. The law is that the statute of limitations does not run as against tenants in common until there has been a disseizin, and there is nothing in these affivavits showing any such disseizin, nor is there anything in them to show that any of the parties in interest were not infants, nor were not laboring under disability. If such was the case, the mere fact that the statutory period had elapsed and that the person in possession had been in the open, notorious, adverse, hostile and continuous possession for over the statutory period, would not bar tenants in common or persons who were laboring under disability of infancy, insanity or any similar defect.

It is true that it appears from the record that the statute of Indiana provides that actions for the recovery of the possession of real estate shall be commenced within a period of twenty years after the cause of action has accrued, and not afterward, and that it does not appear that any exceptions exist in favor of infants, insane persons or other persons under disability. But if it be assumed that defects in title appearing in an abstract, can be cured by ex parte affidavits, and that the affidavits here in question can be held to state facts instead of the conclusions of the affiants, and that the laws of Indiana are as shown by the record, we nevertheless are of the opinion that the abstracts, together with the affidavits, failed to show a merchantable title in. appellee. While it is possible that, if the title were attacked in the future, those making the affidavits, or others who might be found, would testify in any legal proceeding which might be instituted, to the facts which appellee claims the affidavits conclusively show, and that the holder of the title might successfully defend against adverse claimants, it is manifest that protracted and expensive litigation might possibly be necessary. This possibility is sufficient, we think, to warrant the conclusion that the title shown by the abstracts and accompanying affidavits was not a merchantable one within the intendment of the contract between the parties. We are unable to say that the defects pointed out may not prove substantial, or that there is no reasonable, doubt that the holder of the title may not be required at some time in the future to encounter the hazard of litigation. ■ We are therefore of opinion that appellant was not bound to accept the title offered.

The court erred in refusing to direct a verdict for the defendant at the close of all the evidence, and the judgment will be reversed without remanding the cause.

Reversed.


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    Matthew Poreba, Appellee, v. Illinois Midland Coal Company, Appellant.
    1. Evidence—when statements made by witness in writing incompetent as exhibit. If a witness by reason of his unfamiliarity with the English language is unable to express clearly a fact or condition with respect to which he is testifying and he does so in writing, such writing is not a competent exhibit, but held in this case, that its admission was not prejudicial error.
    2. Mines and minees—when instruction as to demand for props appropriate. Held, that an instruction was good which told the jury that if under the custom established by the defendant in its mine the manner in which miners made demands for props was by writing or causing to be written by chalk on a blackboard placed near the mouth of the shaft for that purpose the props and caps he wanted and the length of the props, and if they further believed from the evidence that the plaintiff, or his brother, caused to be written on such blackboard a demand for props 7-4 feet long for a certain room, then it became and it was the duty of the defendant to furnish the same for said room.
    3. Verdicts—when excessive. Held, that a verdict was excessive which apparently contained an allowance of at least $2,000 for pain and suffering.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the- Hon. James A. Ckeighton, Judge, presiding,
    Heard in this court at the November term, 1909.
    Affirmed upon remittitur.
    Opinion filed May 28, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Brown, Wheeler, Brown & Hat, for appellant; Mas-tin & Sherlock, of counsel.
    T. J. Condon, and A. Salzenstein, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case to recover damages for injuries alleged to have been received by the plaintiff in the coal mine of the defendant. A trial by jury resulted in a judgment for $2,500 in favor of the plaintiff, to reverse which the defendant appeals. The declaration charges a wilful' failure by the defendant to furnish props of the size and character demanded by the plaintiff for, use in propping the roof of the mine, as provided by section 16a of the Mines and Miners Act, and that in consequence thereof slats or dirt fell from the roof of the room where the plaintiff was working as a miner, and injured him.

There is evidence tending to show the following facts: On'January 21, 1908, the plaintiff and his brother, Prank Poreba, were working together in what was designated as room 28 of stub entry 8. The customary way of ordering propr in the mine in question was for the miner to write or cause to he written with chalk, on a black-board placed on the wall at the bottom of the shaft, an order for the same, giving the length and number of timbers and the place where the same were desired. This was usually done at night, as the miners were leaving the mine, and the timbers so demanded were delivered that same night by the timber men, so as to be on hand for use the next morning.

The chief witnesses in behalf of the plaintiff were his brother, one Greaser, a fellow miner, and himself. Neither could speak, read or write the English language, and testified through an interpreter. Their testimony as it appears in the record is incoherent and indefinite, and its purport difficult to determine. We are able nevertheless to glean from it that on the evening the plaintiff was injured, he and his brother wanted props, and, being unable to write, they requested Greaser to order 7-J foot props for the room in which they were working, and that Greaser on the same evening, pursuant to such request, wrote on the blackboard an order for the props. Greaser testified that he had forgotten the number of the room for which' he ordered them, but that it was the one in which the plaintiff and his brother were working; that he did not remember how many props he asked for, and thought that he ordered 7-J foot props. The plaintiff and his brother testified that they sounded the roof of the room with their picks before going to work, and found the same to be apparently solid.

About three o’clock that afternoon, while the plaintiff was loading coal into a car, a large clod or lump of solid dirt fell from the roof, striking him upon his back and injuring him. The evidence adduced by the plaintiff tended to show further that all the props then in the room were in use and that others were necessary in order to guard against what are termed “clods,” which overlaid the coal or strata, and were liable to fall at any time after they had been exposed to the air for several days. The evidence introduced by the defendant tended to show not only that no demand was made for props but that .immediately prior to and after the accident, there were sufficient props of proper size in the room for use if needed, and further that there were apparently no dangerous conditions in the room prior to the fall, and consequently no necessity for additional props. It is urged that it was not shown that the props were in fact necessary or that the failure to furnish them was the proximate cause of the fall. While the evidence shoivs that at the time the plaintiff claims he demanded the props, the roof was apparently safe, it further appears from the evidence that when “clods” were present in the roof, they were liable to fall at any time unless properly propped. A dangerous place or condition in a mine need not be present or immediately impending. Safe and proper mining demands that probable as well as present conditions be guarded against. There was sufficient evidence to warrant the court in submitting these questions to the jury, and we cannot say that the findings thereupon were clearly against the evidence.

The court admitted in evidence over the objection of the defendant, the following writing, marked “Exhibit E,” which Greaser had prepared during the trial and which he testified was like what he had written upon the black-board:

“4 Est 8 Stab”

“Room 28”

“I fit i pragg”

The exhibit was clearly incompetent as evidence, but its admission under the circumstances was not prejudicial as to warrant a reversal of the judgment. It was in effect a statement by the witness in writing, of what he was unable to clearly express orally, by reason of his unfamiliarity Avith the English language. The jury with their superior advantages, doubtless drew the same conclusions from his testimony as we have, and treated the writing as but a repetition of his testimony.

It is contended that the court erred in instructing the jury at the request of the plaintiff, that if under the custom established by the defendant in its mine, the manner in which miners made demands for props was by writing or causing to be written with chalk on a. black-board placed near the mouth of the shaft for that purpose, the props and caps he wanted, and the length of the props, and if they further believed that the plaintiff or his brother caused to be written on said black-board, a demand for props feet long, for said room, then it became and was the duty of the defendant to furnish the same for said room; and further, by another instruction, that if the established custom was that when a miner required or desired to have props, to write or' cause to he written upon the said black-board what he desired in that respect, then this would he a sufficient demand for such props under the law.

Counsel argue that inasmuch as neither of the requests assumed specifies when, where or in what number, nor the latter instruction what length of props were desired, the rule announced.would leave the demand controlled solely by the fancy of the miner. The custom referred to was doubtless established by the defendant for its own advantage and convenience in the operation of the mine, as well as that of the miners. The evidence shows that the greater number of miners employed by it were of foreign birth and unfamiliar with the English language—many of them unable to read or speak the same. It would be manifestly unreasonable to require that orders so given by them for props should orthographieally correct or contain full and precise details. We think that when the operator of a mine is advised that props are desired in a particular place it is the duty of such operator, through the proper servants, to ascertain, by further inquiry, the number and sizes of the props desired, and whether the same are in fact necessary. The assumption that .in this view the operator would frequently he subjected to whimsical or capricious demands by the miners, is unwarranted and unreasonable. The court therefore did not err in giving the instruction in question.

The evidence shows that by reason of his injury the plaintiff lost $480, the amount of wages he probably would have earned had he not been injured. There is no proof that he became liable for the expenses incurred by reason of his injuries. On the contrary it appears that the labor union of which he was a member paid the same. 'His physician testified that at the time of the trial he “seemed to have gotten well.” It is evident that the jury allowed at least $2,000 as damages for the pain and suffering undergone by him. We are of opinion that the damages are therefore clearly excessive. If the plaintiff shall, within ten days from the date of filing of this opinion, remit the sum of one thousand dollars, the judgment will be affirmed; otherwise reversed and the cause remanded.

Affirmed upon remittitur.


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    Harry S. Nall v. Robert C. Taylor et al., Appellants.
    1. Criminal code—section 18 relating to setting fire to woods, etc., construed. Section 18 of the Criminal Code relating to the setting on fire of “any woods, prairies or other grounds whatsoever” applies not only to prairies but to cultivated grounds, etc.
    2. Torts—violation of Criminal Code. If a person sets fire to a prairie or cultivated ground contrary to the provisions of section 18 of the Criminal Code, he is liable for any damages wftlch proximately results to the property of another.
    Action in case. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Mills & Neiger, for appellants.
    J. N. Gridley and Milton McClure, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

.In an action in case the plaintiff Nall recovered a judgment against the defendants Taylor and Cline, for the sum of $250, from which they have appealed to this court. The first count of the declaration, upon which the cause was tried, charges in substance that, on October 13, 1908, the plaintiff was lawfully possessed of a certain tract of land therein described, upon which he then had certain personal property, and that on said date, “on the prairie near to and adjoining the said premises of the plaintiff in the county aforesaid and on the lands owned by the defendant Taylor, which land was then and there thickly grown over with dry grass and weeds, and while there was a strong wind blowing from the direction of the said prairie toward the premises of the plaintiff where his said property was located, the defendants negligently, carelessly and intentionally set out and kindled a fire in the dry grass and weeds on said prairie and so negligently and carelessly tended and watched the said fire that the same communicated and extended into and upon said premises of the plaintiff and consumed the above described goods and chattels.” The second count charges that on the same day the plaintiff was possessed of the same piece of land on which he had certain goods and chattels, and that at the time aforesaid and “on the prairie near to and adjoining the premises so in the possession of the plaintiff, in the county aforesaid, and on the lands owned by the defendant Taylor, and without notice to the plaintiff, the defendants wilfully and intentionally set on fire the dry grass and weeds on the prairie so owned by the defendant Taylor and immediately adjoining the said premises of the plaintiff, when the setting out of said fire was not required for the preservation of the said premises of the defendant Taylor from accidents by fire; and said prairie fire so wilfully and intentionally set out by the defendants communicated with and extended into and upon the said premises of the plaintiff and consumed his said above described property.” Defendants filed a plea of not guilty upon which issue was joined. There was practically no controversy about any of the material facts in the case.

The evidence discloses that the defendant Taylor, on October 13, 1908, was and had been for some time the owner of an enclosed and cultivated farm, which was bounded on the north by a drainage ditch 24 feet wide, so separating Táylor’s land from the land of the plaintiff; on the east by pasture land belonging to one Schaad; on the west by a corn-field, and on the south by another drainage ditch. S¿id tract of land had been overflowed in the year 1908, through a break in the levee, in consequence of which all but a small part of it grew up in weeds, and considerable debris accumulated as the water subsided. The north part of the tract had been leased for the season of 1909 to the defendant Cline, and the south part to Schaad. Upon the part-leased by Cline there was a dwelling house and barn situated about 400 feet south of the drainage ditch first mentioned. On the day in question, Cline and Schaad determined to burn the weeds upon the land occupied by them, and so informed defendant Taylor, their landlord. Before setting a fire for the purpose mentioned, Taylor, Cline, and Schaad, to protect the house and barn upon the land occupied by Cline, set a back-fire around such buildings. When the circuit of the buildings was nearly completed, the wind, which had at the time the fire was set and since been blowing steadily from the south or a trifle west of south, suddenly veered to the west, causing Cline’s barn and afterward his dwelling house, to catch fire, and both were destroyed. While the parties were watching the burning buildings, smoke was noticed near the barn on the premises of the plaintiff Hall. Upon investigation they found that fire had been started in a pile of rubbish near such barn, which in turn was communicated to a stack of hay and thence to a barn and implement shed, all of which were eventually totally destroyed. It is not disputed that they used every effort to extinguish the fires and to preserve the property destroyed. The evidence warranted the jury in finding that the latter fire was the result of burning embers being carried by the wind from Cline’s buildings.

At the close of all the evidence the defendants asked the court to instruct the jury that the evidence failed to support the allegation of the second count in the declaration, which is based upon an alleged violation of section 18 of the Criminal Code, for the reason that the fire shown by the evidence to have been set, was not set in a prairie and was not a prairie fire within the meaning of said section 18, which reads as follows:

“If any person shall, at any time, hereafter, wilfully and intentionally, or negligently and carelessly set on fire, or cause to be set on fire any woods, prairies, or other grounds whatsoever, he shall be fined not less than $5, nor more than $100; Provided, this section shall not extend to any person who shall set on fire or cause to be set on fire any woods or prairies adjoining his own farni, plantation or enclosure, for the necessary preservation thereof from accident by fire between the last day of ¡November and the first day of ¡March, by giving to his neighbors and the owner or occupant of such land, and any person likely to be affected thereby, two days notice of such intention; provided, also, this section shall not be construed to take away any civil remedy which any person may be entitled to for any injury which may be done or received in consequence of any such firing.” (Rev. Stat. 1908, p. 708.)

The court refused to give such instruction, but did instruct the jury “that it is positively unlawful for any person in this state to wilfully and intentionally or negligently and carelessly set on fire or cause to be set on fire any woods, prairies or other grounds whatsoever, between the first day of March and the last day of ¡November, unless in a case of necessity,” as provided by the statute; and further, that if they found from the evidence that “the defendants set out a fire on the premises or other ground adjoining the premises occupied by the plaintiff, or that the defendants directed such fire to be set out, at a time when a high wind was blowing toward the premises of the plaintiff and when the ground where the fire was set out was covered with dead grass and weeds, which had grown high and thick, and if they further found from the evidence that a reasonably prudent person would have recognized that in view of all the surroundings, if fire was set out it might probably get beyond control, then the defendants set out such a fire or directed it to be set out at their peril, and became responsible in law for all damages naturally and proximately resulting from such fire.”

Appellants insist that the judgment should be reversed for the following reasons: First, that the allegations of both counts of the declaration that the fire “communicated with and extended into and upon the said premises of the plaintiff,” was not sustained by proof of a fire started by burning embers carried by the wind a quarter of a mile. Second, that the fire set out by appellants was not the proximate-cause of the injury. Third, that section 18 of the Criminal Code has no application to fires started in cultivated fields or door yards. Fourth, that the court improperly tried the case and instructed the jury on the theory that such statute was applicable and that appellants having unlawfully started a fire, were responsible for all injuries directly or indirectly resulting therefrom.

It is obvious that if the statute above quoted is applicable to fire started in cultivated fields or other enclosed grounds, that is to say, other than wild, uncultivated and unenclosed lands, and that, appellants were guilty of a violation of the same, they are liable under the second count of the declaration, and become responsible in law for all damages naturally and proximately resulting to the plaintiff by reason of such violation. The question involved has never been decided by our court of last resort. Notwithstanding there are decisions in other jurisdictions which seem to support the contention of appellants, we think the trend of authority in this state tends to support the not unreasonable theory that the purpose of the statute prohibiting the setting out of fire “on any woods, prairies or other grounds whatsoever” was to prevent the setting of fire to the natural growth of vegetation upon the premises; that is, fires of matter grown upon and being on the soil itself, except under the conditions named in the statute, and that this is so without regard to whether or not the land upon which the fire is set is enclosed, unenclosed, cultivated or uncultivated. McNemar v. Cohn, 115 Ill. App. 31; Dunleavy v. Stockwell, 45 Ill. App. 230; Sweeney v. Connaughton, 100 Ill. App. 79; Johnson v. Barber, 10 Ill. 425. The act of appellants was therefore wrongful and they were accordingly liable for any damages which were the proximate and natural result of such act.

Counsel for appellants claim in argument that the chain of causation between the setting of the back-fire and the burning of appellee’s property was broken by two things; first, the accidental burning of Taylor’s building, and second, the intervention of the wind carrying the embers to a great distance. They strenuously insist that appellants could not have reasonably anticipated this result from the back-firing about the house and that appellee’s loss was therefore not the proximate result of the back-firing, and no right of recovery could exist under any theory. In Seith v. Electric Co., 241 Ill. 252, the court says: “To constitute proximate cause, the negligent act or omission need not be the sole cause nor the last or nearest cause, but it is sufficient if it concurs with some other cause acting at the same time, which in combination with it produces the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence unbroken by a new or independent cause. While it is not necessary to constitute proximate cause, that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, yet it must appear that the injury was the natural and probable result of his negligence, and the question is not determined by the existence or non-existence of intervening events but by the character thereof and the natural connection between the original act and the injurious consequences. The test in determining the question of proximate cause, is whether the person guilty of the first negligent act or omission might have reasonably anticipated the intervening cause as a natural and probable result of his own negligence, and if so the connection between such negligence and the injury is not broken by the intervening cause.”

The evidence tends to prove that appellants set out the fire in question without making any investigation as to the probable result; that at the time a high wind was blowing from the south; that there was a dense growth of dead weeds and grass for a distance of some 400 feet north of the point where the fire was set and in a line with the wind then blowing, and further that beyond the ditch appellee’s pasture was covered with a heavy growth of dead and combustible vegetation. In view of the foregoing evidence we cannot say as a matter of law, nor that the jury was not justified in finding, that appellants might reasonably have anticipated not only that Taylor’s building might burn, but that the wind was likely to carry embers to a great distance and thus set fire to surrounding property, nor that the setting of the backfire was not the proximate cause of appellee’s loss.

It is contended that since the declaration charges that the fire set out by appellants “communicated and extended” to appellee’s property, it was necessary to prove a continuous burning. Such is not the law. If a fire is negligently and carelessly set out or tended, and sparks, whether from a building or growing vegetation, are blown to adjoining property under conditions where any reasonable person could see what might have ensued, then certainly the fire is “communicated.” Fent v. Ry. Co., 59 Ill. 349.

The rulings of the trial court upon the instructions were in substantial harmony with the foregoing views as to the law, and we find no error in them which we consider so prejudicial as to warrant a reversal of the judgment.

It is urged that a conversation relating to an offer to settle or compromise was improperly admitted in evidence. Such conversation is not'set out or identified either in the statement of the facts or in argument.

The judgment of the circuit court is affirmed.

Affirmed.


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    Charles Taylor, Defendant in Error, v. Peoria & Eastern Railway Company, Plaintiff in Error.
    1. Pleading—what admitted by general issue. Where a liability is charged against a railway company on account of acts of negligence committed by its lessee, unless tliere is a special plea denying the relationship of lessor and lessee the defendant will be regarded as having admitted the relationship.
    2. Pleading—when declaration sufficient after verdict. A declaration though informal is sufficient after verdict.
    Action in case. Error to the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed June 4, 1910.

      George B. Gillespie, for plaintiff in error; L. J. Hack-net, Hamlin, Gillespie & Fitzgerald, and J. P. Bindley, of counsel.
    Welty, Sterling & Whitmore, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

It is sought by this writ of error to procure the reversal of a judgment for $2,500 rendered against plaintiff in error in an action in case. The first and second counts of the declaration charge substantially that while the plaintiff, in the exercise of due care, was driving across the railway of the defendant upon Morris avenue in the city of Bloomington, about June 30, 1907, a passenger train, negligently operated by the servants of the C. C. C. & St. L. Railway Company, the lessee of the defendant, run upon and against the vehicle in which the plaintiff was riding and that he was thereby thrown to the ground and injured. The third count is hereinafter set forth. In addition to the general issue, the defendant filed special pleas, denying, first, that the Peoria & Eastern Railway Company on June 30, 1907, the time of the supposed injuries, owned the said railroad, road-bed, right of yvay or locomotive engine and cars attached; and, second, denying that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company was at the time operating said railroad or said engine and cars; to which special demurrer was sustained. At the close of the plaintiff’s evidence, and again at the close of all the evidence, motions by the defendant to direct a verdict in its favor were overruled.

The evidence discloses that at about five o’clock on the evening of Sunday, June 30, 1907, the plaintiff, Charles Taylor, in company with one Ferris, was riding north on Morris avenue in the city of Bloomington, in a buggy drawn by a horse owned and driven by Taylor, and that while crossing the railroad tracks of defendant at Morris avenue, the vehicle was struck by a regular west-bound passenger train on said road. Taylor was severely injured, Ferris instantly killed, and the horse also was killed and the buggy demolished. Morris avenue leads south to one of the main entrances to Miller Park, to which it is the main thoroughfare for that part of the city. The railroad enters the city of Bloomington at the southwest, running westward, and a little to the north, through the city. The evidence further shows that after crossing Allin street, which runs north and south three blocks east of Morris avenue, it turns somewhat sharply to the north, crossing Front street, which runs east and west, and then turns sharply toward the west, striking Morris avenue, about midway between Front street on the south, and Washington street, the first street north, and then follows the line of the alley in those blocks between Front street and Washington street and west of Allin street.

The evidence adduced by the plaintiff tends to show that upon the lots south of the railroad tracks and between the tracks and Front street, were situated residences, trees, coal sheds, fences, etc., which completely obstructed all view of the railroad right of way to a person on Morris avenue anywhere north of Front street, and that a person on Morris avenue would have to be practically on the track before he could see a train approaching from the east any distance beyond the east line of Morris avenue. Such evidence further tends to show that as Taylor approached the crossing, but before reaching it, he slowed the horse down from a trot to a walk, and looked west along the line of the railroad to see if any train was coming from that direction, then turned to look east, and that just as he turned the train coming from that direction appeared behind a coal house, and struck the buggy. A number of witnesses who were traveling toward the crossing at the time testified that they did not hear any alarm sounded.

The evidence introduced by the defendant upon these issues tended to show that by looking toward the east, the plaintiff could have seen this train as it crossed Grove street and as it crossed Front street; that from the time he passed the northeast corner of Front street and Morris avenue, he could have seen the train while he was driving a distance of fifteen feet, as it was traversing a stretch of track about one hundred feet long; that by looking toward the east, at a distance of nineteen feet from the track, he could have seen the train eight or nine hundred feet distant, and that he drove immediately upon the track without seeing the train, which was within ten feet of the crossing, moving so slowly that it was stopped within sixty feet after the accident occurred ; that about the time the plaintiff started from Grove street, which is two blocks south of the crossing, the train in question was whistling for Allin street crossing, which was just west of Grove street crossing; that about the time the plaintiff reached Front street the train was passing Front street crossing, a distance of 1040 feet east of the crossing of that street with Morris avenue; that the bell on the locomotive was ringing as it crossed Grove, Front and Howard streets and the locomotive whistled two crossing whistles of four blasts each between Main street and the crossing with Front street, and that the train was running at the rate of not greater than ten miles per hour.

It further appears from the evidence that in 1905 the city council of the city of Bloomington passed an ordinance requiring the defendant to establish and maintain gates at this crossing, and that such gates should be operated by a gate-man every day in the week from seven o’clock A. M. to seven o’clock P. M.; that the defendant thereafter established such gates, and a tower from which to operate them, but that it failed to operate them on Sundays. The plaintiff testified that while he knew the gates were there and had seen them operated, he was not aware that they were not operated on Sunday.

The complaint that the court erred in sustaining demurrers to the special pleas is well-founded. It is the settled rule of practice in this state that where a liability is charged against a railway company on account of acts of negligence committed by its lessee, unless there is a special plea denying the relationship of lessor and lessee the defendant will be regarded as having admitted the relationship. In other words, if the defendant wishes to challenge the right in which the plaintiff sues or the character in which the defendant is sued, it must be done by special pleas. McNulta v. Lockridge, 137 Ill. 270; Pa. Co. v. Chapman, 220 Ill. 428; Union Traction Co. v. Jerka, 227 Ill. 95. The plaintiff, however, introduced competent evidence to establish affirmatively the facts controverted by such pleas, and thus fully assumed the burden cast upon him by their interposition, rendering the error harmless.

It is insisted that in view of the fact that the declaration failed to charge a failure to ring the bell or sound the whistle of the locomotive, it was error to allow the plaintiff to make a feature of that issue by emphasizing the same, and thus lead the jury to believe that the failure to do so established of itself a substantive right of recovery; that such evidence was competent only as an incident to the accident but did not constitute a distinct and separate ground of action. The evidence in question was not only competent as part of the res gestee, but as well as tending, as it did, to establish the general charge of common law negligence in the first and second counts of the declaration, and, further, upon the question of due care on the part of the plaintiff. I. C. R. R. Co. v. Aland, 192 Ill. 37; Malott v. Schlosser, 119 Ill. App. 259. In this view it was not error to permit the plaintiff to make as full proof as he desired upon the question.

It is further insisted that the evidence as to the effect of the alleged injuries upon the kidneys and eyes of the plaintiff was improperly admitted; that such conditions were not natural and necessary consequences of the injuries, and thus constituted special damages not specifically charged in the declaration. The error, if any, could only have affected the amount of the verdict and judgment, and it is not urged or argued that the same is excessive. The same may be said as to the claim that a new trial should have been granted because of the newly discovered evidence .of Dr. Eogers, which related solely to the extent of the plaintiff’s injuries. It is conceded in argument that the fact that by reason of the intoxication of Willard he was rendered unable to appear at the trial, and the defendant thus deprived of the benefit of his testimony, was not of itself a sufficient reason for granting another trial.

It is further contended that a verdict for the defendant should have been directed, for the reason that there was no evidence tending to prove the negligence charged in the first and second counts in the declaration, and that the third count is fatally defective because it is not therein charged that the failure to operate the gate caused the plaintiff’s injury, nor that such failure on that particular occasion constituted negligence. What has been already said disposes of such contention so far as the first and second counts are concerned.

The third count, after alleging the ownership of the railroad by the defendant, the possession and operation of the same by the C. C. C. & St. L. Ry. Co., as lessee of the defendant, the possession and operation by the servants of the former road as lessee as aforesaid, of a passenger train, in the city of Bloomington, on the day of the accident, reads as follows: “and the plaintiff avers that upon said date aforesaid there was in force in said city of Bloomington an ordinance requiring the said C. C. C. & St. L. Ry. Co. to place and keep in operation a gate at Morris avenue in said city of Bloomington and that the same was to be in operation on every day of the week from seven o’clock in the morning until seven o’clock in the evening, and plaintiff avers that the said railway company had installed such a gate at said Morris avenue and that at the time aforesaid the said plaintiff, while in the exercise of' due care for his own safety and while the said gates were open, so as to invite people to cross the said railroad, the plaintiff, while attempting to cross said railway in a vehicle or buggy, in which he was then riding, the said vehicle or buggy in which said plaintiff was riding was struck by said engine and train of cars then in charge of the servants of the said C. C. C. & St. L. Ry. Co., and the said plaintiff was then and there, by the cause aforesaid, thrown with great force and violence out of said vehicle to and upon the ground, and he was thereby then and there greatly bruised, hurt and wounded,” etc. While the count is informal and not to be commended as a precedent in pleading, we think it is sufficient in substance, to uphold a verdict.

The alleged failure to operate the gate in conformity to the ordinance was negligence per se. R. R. Co. v. Voelker, 129 Ill. 540. The words “by the cause aforesaid” in the sense they are employed in the count, obviously refer to such negligence as being the proximate cause of the injury to the plaintiff. The trial court therefore did not err in refusing to direct a verdict.

It is further urged that the court erred in refusing the 26th instruction offered by the defendant, whereby the jury were informed that there was no count in the declaration charging a. failure to ring a bell or blow a whistle in approaching Morris avenue at the time the plaintiff was injured, and instructing them that there could be no recovery in this action for any alleged failure on the part of the train crew to blow a whistle or ring a bell. Such instruction, if given, would have taken from the jury the question of the negligent management of the train as charged in the first and second counts of the declaration, in support of which, as we have said the evidence of the failure to give the statutory signals was competent.

Under the evidence, which we have hereinbefore stated in substance, the question of due care on the part of the plaintiff was peculiarly one for the determination of the jury, and notwithstanding the conflict in the evidence, we are disposed to hold that their finding was not unwarranted. The jury was clearly warranted in finding that the defendant was negligent in failing to operate the gates, and that such negligence was the proximate cause of the plaintiff’s injuries. A right of recovery was therefore established.

We find no prejudicial error in the record, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Philbrick

text:
    Wilbur R. Brittin, Appellee, v. R. E. McClelland et al., Appellants.
    1. Corporations—what does not establish fact of having ceased to do business. A certificate of the secretary of state that the charter of a corporation has been canceled is a circumstance which tends to show that it is no longer acting as a corporation but such certificate does not conclusively establish such fact.
    2. Appeals and errors—when remarks of counsel not subject to review. Unless the remarks of counsel complained of are preserved in the bill of exceptions they will not be considered on review.
    3. Variances—when objection for comes too late. An objection of variance first made in the Appellate Court comes too late and will be deemed to have been waived.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed March 30, 1910.
    Rehearing denied May 24, 1910.
    Gillespie & Fitzgerald, for appellants; Steele & Thompson, and Charles E. Selby, of counsel.
    Barber & Barber, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee entered into a contract with appellants as follows : •

“Party of the first part for and in consideration of the party of the second part in subscribing and actually taking and paying for fifty (50) shares of stock of $100.00 each in an incorporated company of Illinois, with offices in Chicago, Ill., known as the ¡National School of ¡Railroading (which said first parties are directors of said above mentioned'incorporated company) that said first party agrees for the above consideration of purchase to guarantee and does hereby covenant to pay said second party $2,500.00, in case of any failure on the part of the above incorporated company to do business, or fails to pay the $100.00 per month referred to in contract of date May 27th, A. D. 1907, between the ¡National School of Railroading and Wilbur R. Brittin (the same being the first contract entered into by said corporation and Wilbur R. Brittin); but this contract shall be void in case the party of the second part receives as salary from said incorporated company $100.00 per month for 25 consecutive months commencing July 1st, 1907, the amount guaranteed in consideration of the purchase of $5,000.00 worth of stock in said National School of Railroading, heretofore mentioned.”

The contract referred to as the one having been entered into with the National School of Railroading of date May 27, 1907, so far as it relates to the matters in controversy is as follows:

“The said first party agrees to sell and said second party agrees to buy 50 shares of the capital stock of said corporation at the par value of $100.00 per share to be paid for by said second party in cash in hand at the time said shares are delivered to him. And as a further consideration to said second party for 'the payment of said sum of money as aforesaid, said first party agrees to employ and does hereby employ said second party to work for it, the said first party, as a solicitor for a period of fifty consecutive months, commencing July 1st, 1907; and said first party agrees to pay said second party for his said services the sum of one hundred dollars ($100.00) per month and all necessary expenses incurred by said second party in the course of his said employment.”

Appellee subscribed for the fifty shares of stock in said corporation and commenced his work for said corporation on July 1, 1907. After this contract had been in force for six months and appellee had received $600 of the salary provided he brought suit for $2,500 alleging that the corporation, National School of Railroading, had ceased to do business.

Appellee obtained a judgment in the court below for $1,900. Appellants prosecute this appeal from that judgment.

The errors urged are that the court admitted improper evidence on behalf of appellee; that the court erred in giving instructions to the jury on behalf of appellee; refused proper instructions asked by the appellant; that counsel for appellee used improper remarks in his closing argument to the jury, and that the jury was influenced by remarks of the court.

The improper evidence alleged to have been admitted by the trial court relates to the question of the National School of Railroading ceasing to do business. The evidence thus objected to was hearsay evidence as to what appellee and the other witnesses had heard concerning the question of the failure of the National School of Railroading to do business, and upon cross-examination, when it was brought to the attention of the court that these witnesses did not have personal knowledge of this matter, their evidence regarding it was excluded upon motion of appellants. The only evidence of this fact that was objected to and not excluded upon their motion was the certificate from the Secretary of State, certifying that the charter of the corporation had been cancelled. The record contains other evidence which was admitted without objection by appellants, showing that this National School of Railroading had ceased to do business, that its assets had been turned over and were now held by a corporation known as the National Correspondence School of Railroading, and that the National School of Railroading had ceased to do business as a corporation; that this occurred in February, 1908. We are of the opinion that the admission of this certificate of the Secretary of State was proper as a circumstance showing that the National School of Railroading was1 no longer acting as a corporation, but the certificate was not conclusive of the fact and its admission did no harm as the fact was fully established by competent evidence, not objected to.

Appellants also insist that the court erred in not permitting them to show that the new corporation, the National Correspondence School of Railroading, had succeeded to all the rights and obligations and had assumed all the contracts, obligations and liabilities of the National School of Railroading. Appellee’s contract had no relation to this corporation and the fact that it may have assumed the obligations of the corporation with which he had contracted and to which his contract related was wholly immaterial and would have been no defense to this action and the court did not err in sustaining objections to such evidence.

Upon the question of the prejudicial remarks made by appellee’s counsel to the jury and statements alleged to have been made by the court upon the trial, neither the remarks of the counsel nor the remarks of the court, complained of, have been preserved in the bill of exceptions, consequently they cannot be reviewed or considered by this court.

Appellants seek to raise a question of variance between the contract of appellee and the evidence offered in support thereof. Appellants insist that the contract provided that appellee should subscribe and pay for fifty shares of stock at $100 each and that the evidence discloses that instead of paying for fifty shares he paid for only forty and that five shares of the fifty which he claims he subscribed for were paid for respectively by Bell and Bich, each, and that this was not a compliance with the contract. This question of variance is attempted to be raised first in this court. In order to take advantage of a variance, if one existed, it must have been taken advantage of in the trial court and the variance specifically pointed out. It cannot be raised for the first time either in motion for new trial or on error or appeal. The evidence that a part of the stock subscribed for was paid for by Bell and Bich and was settled for in this manner was admitted in the trial court without objection, and objection cannot be raised thereto for the first time in this court.

Upon the question of instructions complained of upon examination we find that the jury was properly instructed in this cause and that no error was committed by the court either in the giving or refusing of the instructions and finding no prejudicial error in this record, the judgment is affirmed.

Affirmed.


text:
    Mary Flannagan, Appellee, v. City of Bloomington, Appellant.
    1. Tobts—what not defense to actions of. Wrongful acts of the same kind and character by other persons are no defense to a person equally guilty.
    2. Tobts—liability of city for dumping of garbage. If a city provides for the dumping of garbage at a particular place and it is there dumped to the' injury of private property, the city is liable; and the defense of independent contractor does not lie.
    Action in case. Appeal from the Circuit Court of. McLean county; the Hon. Colostin D. Myebs, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Louis FitzHenby, for appellant.
    M. A. Bbennan, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant in which she recovered damages against the appellant on a declaration charging appellant of depriving appellee of the comfortable use and enjoyment of her home, located in the city of Bloomington, by reason of the city, by its agents and employes, dumping and disposing of garbage and refuse matter, adjacent to her property.

• The home of appellee consists of five lots. To the rear of her property is an alley and on the property lying immediately west of appellee’s property and north of alley were premises used as a dumping ground upon which decayed fruit, vegetables, dead animals, refuse matter and garbage, collected from the streets and alleys of the city of Bloomington, were carted and dumped. Some of the cartmen and persons who used these premises as a dumping ground were employed by the city in the collection of garbage and refuse matter from the streets. The placing of this garbage and refuse matter upon these premises adjacent to and adjoining the property of appellee caused foul air, gases and stenches to emanate therefrom which passed to, over and upon the premises of appellee and were so offensive and nauseating that at times it was necessary for appellee to keep her windows and doors closed or leave the premises. Complaint was made by appellee but no steps were taken to remedy the condition of affairs and this action is the result thereof.

Upon the trial below the jury awarded appellee a verdict for $500 on which judgment was rendered. This appeal is prosecuted to reverse that judgment.

The grounds urged for the reversal of the judgment are that the collection and removal of the refuse matter and garbage from the streets of the city of Bloomington is an exercise of the police power of the city and that the persons engaged by the city for doing this work, being employed by the city in the exercise of its police power, no liability exists as against the municipality; also on the ground that the city has provided an ordinance which prohibits any person from using any premises within the corporate limits of the city as a dumping ground.

The evidence in this case fully warranted the verdict of the jury.

There is no denial that persons in the employ of the city used these premises as a dumping ground for garbage and refuse matter but it is contended that other persons, not in the employ, also used these premises and dumped refuse and offensive matter thereon; that fact could in no way tend to relieve the city from the liability for the acts done by it or its servants, agents or employes. The doctrine is too well settled that ivrongful acts of the same kind and character by other persons is no defense to a person equally guilty.

Upon the contention of appellant that this was an exercise of the police power for which there is no liability, in the case of City of Chicago v. Seben, 165 Ill. 371, the Supreme Court holds the contrary to appellant’s contention; the court there uses this language:

“The powers of such corporations have also been divided into those which embrace governmental duties, such as are delegated to the municipality by the legislature, and in the exercise of which the municipality is an agent of the State; and those powers which embrace quasi private or corporate duties, exercised for the advantage of the municipal locality and its inhabitants. Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature, and become ministerial. Official action is judicial where it is the result of judgment or discretion. Official duty is ministerial, when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it, prescribes and defines the time, mode and occasion of its performance with such certainty, that nothing remains for judgment or discretion. A corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out that plan, it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner.”

Applying the doctrine there laid down, the determination by the council of the city of Bloomington as to how and in what manner the garbage and refuse matter might be removed from the streets, was for the determination of the city authorities but the selection of the place of' the dumping ground and the dumping of the refuse matter in a place where it caused the injury or damage to another was an action for which the city became liable and it must exercise its duty of disposing of this garbage and refuse matter in such a manner as not to injure or expose others to danger and a failure to do so renders it liable.

The fact that the city provided an ordinance prohibiting the doing of the acts which it is complained of here were done, is no defense where the violation of the ordinance is permitted and committed by the servants and employes of the city; while there may be a penalty imposed upon a person for violation of the ordinance, this does not relieve the city from any liability for its negligence and wrongful acts.

The fact that the city may have employed an independent contractor to remove the garbage and refuse matter from the streets and that he, under his contract, used this place as a dumping ground without authority or direction from the city so to do, cannot in any manner affect the liability of the city for his actions in carrying out a contract with the city in the execution of the power given the city to remove and dispose of garbage and refuse matter from the streets. The contractor was performing a ministerial duty in executing the contract to do this work and he was the agent of the city. The evidence discloses that the sanitary policeman employed by the city in the Health Department was informed of the condition which existed here and that the officers of the city knew the place was used for a dumping ground and the city cannot shield itself by showing it had contracted with another person or persons to do this work.

The verdict of the jury is warranted by the evidence and is not excessive in amount, and the judgment of the Circuit Court will be affirmed.

Affirmed.