text:
    Margaret Pruett et al., Appellees, v. O’Gara Coal Company, Appellant.
    1. Contracts—how cannot he varied. An oral understanding between the parties to a contract, even if fully proven will not be permitted to vary the terms of the written contract entered into by them, especially as against the assignee of one of the parties.
    2. Contracts—when separate instruments construed together. Where two separate contracts bear the same date and were intended to be considered as one contract, they will in law be so construed.
    3. Contracts—what not synonymous with “coal shaft”. Held, that the term “coal shaft” as used in the mining contract in question in this case, was not synonymous with the term “coal mine”.
    4. Contracts—mining construed. Held, that the certain negative covenants under consideration in this case, did not either expressly or by implication inhibit the party from mining coal on certain premises and hoisting it through a shaft sunk on other premises.
    Bill in chancery. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    William S. Hefferan and M. S. Whitley, for appellant.
    Choisser, Choisser & Kane and W. F. Scott, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellant prosecutes this appeal from a decree, granting a permanent injunction in compliance with the prayer of a bill in chancery filed against it, by appellees, to the June term, 1910, of the Circuit Court of Saline county.

It is alleged in the hill, that on June 13, 1903, the Egyptian Coal & Coke Company entered into a written agreement under seal with John and Margaret Pruett, for the purpose of securing the right to sink a shaft and open a coal mine on certain lands of said John Pruett in said Saline county. Said agreement which is set out in full in the bill, provides among other, things, that said John and Margaret Pruett, in consideration of one dollar paid to them and the further consideration of three cents per ton for all mine run coal, which said Egyptian Coal & Coke Company should mine and hoist from certain premises therein described, grant, bargain, sell and convey to said company all the coal which might be found under and upon said premises, comprising about 296 acres of land in said Saline county; also the right to use and occupy about three acres adjoining said lands for the purpose of manufacturing coke from coal taken from said premises and for locating rail or other roads, for marketing said coal and coke and also for ponds, shafts, tipples and necessary buildings around the same; also two other strips of land fifty feet wide for railroad right of way; that said company should within five months and fifteen days from January 24, 1903, commence to sink a shaft for the purpose of mining coal on said premises and push the same to completion as speedily as practical; and continue the development of said mine to such an extent that after two years the annual output of coal should he not less than 40,000 tons a year, for a period of fifty years, or until all the coal that could be practically mined under said lands, should have been removed; that said company should pay to said Pruetts not less than $1,200 per annum as royalty for the coal taken from under said lands during the continuation of the lease, unless prevented from operating the mine by high water, fire, wind storms or strikes; that the cost of said shaft with tipples, etc. should he not less than $15,000; that no coal should be hoisted from lands other than those above mentioned from the shaft or shafts sunk on said lands, without the written consent of said John Pruett and Margaret Pruett or their heirs or assigns, during the continuation of the lease; that said -party of the first part should have the right to enter said mines “himself” or by representative, for the purpose of inspecting the same and should also have the right to examine the books of said company, for the purpose of ascertaining the amount of coal raised from the mines each day; that said company should have the right to renew the lease on the same terms, if all the coal was not mined and removed therefrom within said term of fifty years; that the company should have the right to terminate the lease upon three months’ notice in writing, to said Pruetts, their heirs or assigns, of its intention so to do, and at the termination of said lease, should have the right to remove all machinery therefrom, leaving the shaft, track, tipple and permanent buildings.

The bill further alleged that in pursuance of said contract, said company began sinking a shaft and opening a mine on said premises, which was known as Egyptian No. 1 and at the same time commenced to sink another shaft about half a' mile southwest of said mine upon lands contiguous thereto and leased from other parties, known as Egyptian No. 2; that while said mines were being developed said parties entered into another contract. This contract which is also dated June 13, 1903, and is likewise set out in full in the bill, includes a leasing by said Pruetts of some five acres of ground adjoining that named in their former contract, in consideration of which, said company agreed to pay the sum of $300 in cash, certain taxes, and to sink on said five acre tract or other land leased for the surface as soon as practical, an escapement shaft. It was further stated in said second contract that said company covenanted with said Pruetts, in consideration of said leasing, that its coal shaft known as No. 1, situated on lands leased from the parties of the first part by the said party of the second part, should never be connected underground with any other coal mine either by it or by its assigns, without the written consent of said Pruetts or their heirs or assigns; also that the company should have the right to use the premises therein described for the purpose of manufacturing coke from coal taken from the premises named in the former lease between the parties and for roads, buildings, shafts or tipples as might be deemed necessary; that in case of the termination of the lease, the company should have the right to remove any machinery it might own, from said premises, which would leave all tipples, shafts and buildings intact and that in case the first lease of the other premises should become void, then the second lease should also immediately become void.

The bill further stated that at the time of the executon of the first lease, said Pruetts were anxious to have, and required said lease to be so drawn that coal from lands other than their own could not and should not be hoisted through any shaft or shafts sunk on their lands or mixed and commingled with coal mined from their lands and to that end caused the negative covenant in regard to that subject above referred to, to be inserted therein; that at the time of the execution of the second lease in order to further guard against mixing and commingling their coal with coal from other lands and to prevent the hoisting of coal mined from their lands through any shafts other than those sunk on their own lands, they caused the negative covenant above referred to upon that subject, to be inserted in the second lease; that on August 21, 1905, it sold its mine known as Egyptian No. 1 and Egyptian No. 2 to appellant, the 0 ’Q-ara Coal Company, and at the same time transferred and assigned both said leases to said appellant and put it in possession of said premises; that during the time the Egyptian Coal & Coke Company operated said mine on the Pruett land, it never hoisted coal of other mines through the Pruett shaft, nor hoisted coal from the Pruett land through other shafts or commingled them together; that after appellant took possession of said mines they were renamed and the mine known as Egyptian No. 1 became and is now O’Grara No. 2 and Egyptian No. 2 became and is now O’Gara No. 3; that appellant has driven an entry in O’Gara No. 3 parallel with the south line of the Pruett land and about 180 feet distant therefrom, and from said entry has driven three pairs of entries in a northerly direction at a distance of about 500 feet apart into the Pruett land, thereby' connecting the mine formerly known as Egyptian No. 1 with the mine formerly known as Egyptian No.- 2 and that such entries were driven without the consent of the Pruetts; that appellant has already taken out a small portion of coal from the Pruett land through the shaft at what is now ■known as O’Gara No. 3 in violation of the spirit and letter of the negative covenants of said leases; that appellant is now threatening to mine and hoist coal from the Pruett lands through its shaft at O’Gara No.-3 in violation of the negative covenants of said leases and will do so unless restrained by an order of the court; that appellant has abandoned the use of the mining shaft at O’Gara No. 2, so-far as mining and hoisting coal is concerned, and is permitting the mine to fill up with water and the entries and passageways to fill with slate, rock and other substances; that the whole mining plant, including permanent buildings, tipple, shaft, entries, rooms and other portions, is fast becoming out of repair and is in a ruinous condition; that if appellant should exercise its election under said lease to terminate the same'by giving three months’ notice of its intention so to do, complainants will be deprived of valuable rights and interests, secured to them by said leases, and will suffer great permanent and irreparable injury; that the said John Pruett died intestate March 3, 1909, leaving surviving him Margaret Pruett his widow, and Albert G., Francis M., and John M. Pruett, his children and only heirs at law.

The prayer of the bill was that appellant be perpetually restrained and enjoined from hoisting the coal to be mined from the Pruett lands described in said leases, through its shaft at O’Gara mine No. 3 or through any other shaft except that at O ’Gara mine No. 2 or other shafts to be located on the lands described in said leases.

Appellant in its answer, admits the execution of the two contracts set out in appellees’ bill, that it has temporarily ceased operating O’Gara No. 2, but states it has not wrecked and abandoned the same; admits driving the entries from O’Gara No. 3 to appellees’ land and that it has taken out a small amount of coal from under the latter and that it intends to mine the coal under appellees’ land and hoist it through the shaft at O’Gara No. 3, but denies that appellees will be injured thereby or that such act will violate any of the provisions of said leases, and saves to itself all manner of exceptions and demurrer to the bill.

Upon the hearing the court below found the issues for appellees and entered a decree for an injunction, as prayed for in their bill of complaint.

The evidence in the case tended .to prove the principal allegations of complainants’ bill to an extent which would have warranted a decree in favor of complainants in case the construction, which they place upon the two contracts in evidence, is the correct one. It is true that evidence was admitted on the trial tending to show the reason why John Pruett caused certain clauses to be inserted in the two contracts and what was said concerning the matter by the parties thereto, at the time the contracts were entered into. We do not think, however, that any oral understanding between the parties, even if fully proven, could be permitted to vary the terms of the written contract entered into by them, especially as against the assignee of one of the parties.

The provisions of the contract which are involved in the controversy, consist of two negative covenants, and at the risk of partial repetition, we will set them out here in full. They are, first, that provision of the first contract which states, “It is further stipulated and agreed that no coal shall be hoisted from lands other than those above mentioned from the shaft or shafts, sunk on said lands, without the written consent of said John Pruett, and Margaret Pruett, or their heirs or assigns, during the continuation of this lease;” and second, the following provision of the second lease: “And the said party of the second part further covenants with the said parties of the first part, that in consideration of said leasing, that its coal shaft known as No. 1, situated on lands leased from the said parties of the first part by the said party of the second part, shall never be connected underground with any other coal mine either by it or by its assigns, without the written consent of the said parties of the first part, or their heirs or assigns.”

It was undisputed that no coal had been hoisted through the shaft on the Pruett lands, which had been mined under any other lands than those mentioned in the Pruett lease, nor does it appear that appellant contemplated hoisting coal from other than the Pruett lands, through said shaft, and the only reason for considering the provision in reference thereto, contained in the first contract, is for the light it may throw upon the construction to be given the provision of the second contract.

It was not contested that appellant had driven three entries under the Pruett land from their workings in the mines located under adjoining lands; that it had taken out some coal from under the Pruett lands through the shaft sunk on adjoining lands, and that it contemplated removing more coal from the Pruett lands through the same shaft.

The reason assigned by appellant for so doing was that under present advanced mining methods, it could remove the coal from the surrounding territory with greater advantage to itself through the shaft they had been using and proposed to use, than by using the Pruett shaft for the coal mined from the Pruett lands and the other shaft for coal mined from the other lands. We think this claim is unimportant as regards the solution of the problem presented here, except perhaps as showing good faith on the part of appellant in the manner of prosecuting its mining operations.

The contention of appellee is that the- negative covenants contained in the two provisions of the contract in question, either expressly or impliedly preclude appellant from mining coal under the Pruett lands, removing it therefrom through entries connecting the lands named in the Pruett lease with other lands, and hoisting it through a shaft sunk upon such other lands.

Appellees rely largely to sustain their position, upon the case of Leavers v. Cleary, 75 Ill. 349, where a bill in equity was brought by Cleary to enjoin Leavers from mining coal on certain lands not embraced in a contract entered into between Leavers’ grantor and Cleary. That contract contained a provision that the grantee of the coal should “work a shaft for the purpose of mining coal.” Under the contract the company, which was Leavers’ grantor, sunk a shaft and proceeded to mine the coal and afterwards sold their interests to Leavers. Subsequently Leavers acquired other coal lands adjoining those embraced in said contract and commenced cutting through the vein of coal between the lands so acquired and the lands named in the contract, with the intent and purpose of abandoning the original mine and working exclusively on the mine in the leased land, and of raising all coal mined through the shaft sunk on the land embraced in the contract.

An injunction was granted against Leavers to prevent him from carrying out the purpose indicated. A number of reasons which do not concern us here, are stated in the opinion of the Supreme Court, why the injunction should be sustained, and it is also said by the court that when Leavers undertook to run an entry from the shaft on the lands in the original contract to the other lands acquired by him, outside of the same, for the purpose of mining such lands and raising the coal through said shaft, he was violating the spirit of the contract and seeking an undue advantage of Cleary, which it was proper for a court of equity to restrain him from doing.

In the case of Consolidated Coal Co. v. Schmisseur, 135 III. 371, the principal question presented, was whether a case was made by appellee that would give a court of equity jurisdiction to interfere by injunction, to prevent appellant from using the entries, shaft and leased ground upon her land, to transport and hoist coal taken from the adjoining lands, owned by appellant. The lease stated that it was “granted for the purpose of enabling said Schuremans to sink pits or shafts and successfully mine and remove the coal conveyed to them by appellee.” In the course of the opinion it is said: “We have been referred to no case holding that a court of equity would exercise its jurisdiction to prevent a breach of a negative covenant unless it was express, dr could fairly be implied from the stipulation of the parties, and injury would result to the complainant by its breach. In the one case, as we have seen, equity jurisdiction proceeds upon the ground of the express stipulation of the parties alone, irrespective of whether substantial injury will be incurred or not. In the other, the parties not having fixed in their agreement, by express covenant, what shall not be done, equity proceeds only to prevent irreparable injury.”

The opinion also discusses the case of Leavers v. Cleary, supra, and declares it is not inconsistent with the views above expressed. The Leavers case cannot in any event be of value as a guide in assisting us to determine this case, for the reason that a different question, in fact almost the converse of the one presented here, was there under consideration. In that case one of the principal questions involved, was the claim of the right to abandon the mining of coal on the leased property, and to mine coal upon adjoining property convey it to the shaft on the leased property and there hoist it. Had the same question been presented here there is no doubt but what an injunction would lie, as such action would be a direct breach of the negative covenants of the leases; but on the contrary the question presented here is the right, not to abandon mining coal on the leased premises but to continue such mining and convey the coal from the leased premises to be hoisted from a shaft on other premises. These conditions the Leavers case does not deal with, nor elucidate.

The two contracts in this case, while made at different times, bear the same date and were no doubt intended to be considered as one contract and they should in law be so construed. It was evidently the intention of the Pruetts, and agreed to by the other party when the first contract was entered into, that no coal should be hoisted from lands'other than those included in the contract from the shaft or shafts sunk on the lands in the contract, without the consent of the Pruetts, their heirs or assigns. When the second contract was entered into, a provision was inserted that the coal shaft situated on the lands leased from the Pruetts should never be connected underground with any other coal mine by said coal and coke company or its assigns, without the written consent of the Pruetts or their heirs or assigns. It appears to us that the purpose of these two sections was the same,—that is, to prevent the mining of coal upon other than the leased lands and hoisting the same through the shaft in question. The provision in the second lease would appear to have been inserted to make it impossible for the coal company to commit a breach of the first provision, by providing that there should be no connection between the shaft and any coal mined outside of the leased premises, and therefore there could be no outside coal to hoist through said shaft.

The charge of the bill is, and it is supported by the proofs, that appellant has abandoned the use of the shaft on the Pruett premises and intends in the future, as it has to some extent in the past, to continue to mine the coal on said premises but to remove it through other premises and hoist it from the shaft on such other premises outside of the Pruetts’ lands.

It appears therefore that the mine on the Pruett premises is not to be abandoned but to be continued in operation and that the shaft itself on the Pruett premises is not to be connected with outside mines but that it has been and is to be abandoned. The terms of the contracts have not therefore been broken and will not be so far as the charges in the bill and the evidence in the case are concerned, unless the term “coal shaft” as used in the contract, must be held to be synonymous with the term “coal mine.”

The Century Dictionary defines a mine as “an excavation in the earth made for the purpose of getting metals, ores or coal” and defines a shaft to be “in mining, a vertical or inclined excavation, made in opening the ground for mining purposes.” Under our Mining Act (Rev. Stat., chap. 93, sec. 34), the words “mine” and “coal mine” are said to “signify any and all parts of the property of a mining plant on the surface or underground which contribute directly or indirectly under one management, to the mining or handling of coal.” And the term “shaft” is said to mean “any vertical opening through the strata which is or may be used for purposes of ventilation or escapement, or for the hoisting or lowering of men and material in connection with the mining of coal.”

It is plain therefore, that the term “shaft” is much more restricted in its signification than the term “mine” and that the two are not synonymous. It might be that the term “coal shaft” could be used in an instrument in such manner as to evidently intend to be understood as meaning “coal mine,” notwithstanding the actual difference in the definition and common understanding of the two terms, but there is nothing in the instruments in question which would indicate that the two were intended to be used as synonymous terms.

We are therefore of opinion that the two negative covenants of the contract under consideration, do not either expressly or impliedly inhibit appellant from mining coal on the Pruett premises and hoisting it from the shaft sunk on other premises.

Some other reasons of minor moment are advanced by appellees why the injunction should be sustained but they do not appear to us to suggest conditions which require the action of a court of equity.

The decree will be reversed and the cause remanded with directions to the court below to dismiss the bill for want of equity.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Ella M. Bartholf, Administratrix, Appellee, v. Wabash, Chester & Western Railroad Company, Appellant.

      Negligence—when special care should he exercised at railroad crossings. Especial care should be taken by a railroad company where its right of way is grown up with weeds, etc., and is so situated with respect to an embankment that a train approaching was almost wholly hidden from one traveling upon the highway which intersected the tracks.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    R. M. Farthing and H. Clay Horner, for appellant.
    G. Gale Gilbert, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by the administratrix of the estate of Andrew Bartholf, deceased, who was killed at a public crossing on appellant’s track in Jefferson county, Illinois.

The declaration charged failure on the part of appellant to blow the whistle or ring the bell on the engine approaching said crossing; negligence and carelessness on the part of appellant’s servants in driving its engine and failure on their part to look forward to see if any one was upon the track at said crossing and failure to keep the right of way free from weeds, briars, brush and trees at and near the said crossing. There was a verdict followed by a judgment in favor of appellee for $840.

On this appeal appellee asks that the judgment of the court below be affirmed and appellant also asks for an affirmance of the judgment unless this court should be of the opinion the judgment should be reversed without remanding the case for a new trial.

The record discloses the following facts bearing upon the case: Near the town of Marco, appellant’s road runs in a northeasterly and southwesterly direction and is crossed by a public highway running east and west at an angle of about thirty degrees. Some forty rods west of the crossing on the south side of the highway are a church and a cemetery. A train approaching from the northeast, is concealed from view of any one traveling along the highway east of the crossing by a heavy growth of timber, until within a quarter of a mile of the crossing. From the church a train could be seen across an open field as it emerged from behind the timber, but as it approached near the crossing, for some distance only the top of the engine and cars could be seen. When within 75 to 100 feet of the crossing, the train was entirely hidden by an embankment and tall weeds on the right of way from one passing along the highway. There were also other points between the timber and the crossing where weeds, saplings, and brush had been permitted to grow and remain along the right of way, which in some degree interfered with the view of the train from the highway. In the forenoon, on August 6, 1910, Andrew Bartholf, a man 66 years of age, in good health and well acquainted with the surroundings, was driving west along the highway towards the crossing, going to Marco. He had a pair of ponies hitched to an open canopy top surrey, on the back seat of which was William Phelps, a young man 22 years of age in his employ. About this time appellant’s passenger train, consisting of a coach, baggage car, two coal cars and an engine came from the northeast towards the crossing. The team was going at the rate of about four miles an hour, and the train at the rate of from eighteen to twenty-two miles an hour. The section boss and four men were working at or near the crossing. One of the men, Oscar Pigg, was cleaning off the track at the crossing as the team and engine approached. He testified that when the team was 100 feet away he motioned to Bartholf to stop and cried out to him and that he kept motioning to him until the team came right up to him in a gallop, when he had to step aside to save himself; that the team went on the track and a collision occurred which caused the death of Bartholf and injured Phelps. The testimony of Pigg is corroborated by the section boss and two of the section men. Phelps, who was in the surrey with Bartholf, testified they were going in a trot and did not notice the train coming; that when they were a short distance from the track he noticed the witness Pigg cleaning off the rails of the track and just as the ponies were ready to step on the track Pigg threw up his hand, Bartholf grabbed his whip and the ponies made a lunge bringing them to the center of the track where the engine struck them.

Appellant introduced several witnesses who testified that Phelps told them soon after the accident, that he tried to get deceased to stop but he could not do so. Phelps admitted conversing with said persons and did not deny their statements but said it was shortly after the accident and he had been injured and was frightened and suffering pain.

It was contended on the part of appellant that Bartholf was guilty of negligence contributing to bring about the collision which caused his death, for the reason that he saw the train for some distance before he reached the crossing and forced his team into a run in an endeavor to pass over the crossing before the train reached him; that he was warned by Pigg by his motions and voice, not to come upon the crossing, but ignored the warnings.

On the other hand it is contended by appellee and testified to by Phelps that Bartholf was a sober, industrious man of mature years; that he was driving, along the highway in a trot and never at any time increased that gait; that neither he nor Phelps saw or heard the train until the ponies were going upon the track; that the motions made by Pigg were as well calculated to lead Bartholf and Phelps to believe he was urging them to pass over the crossing before the train reached it, as to warn them of danger and that they did not hear the warning called out to them by him.

In support of the claim of appellee that Bartholf and Phelps did not see or hear the train, we must also take into consideration the fact that a preponderance of the evidence, shows that the whistle upon the engine was not sounded nor the bell rung, as required by law in approaching the crossing. Upon the whole evidence, the question appears to us to have been a close one as to whether Bartholf was or was not guilty of contributory negligence in approaching and attempting to pass over the crossing at the time he received the injuries which caused his death.

The next question is whether or not appellant was guilty of negligence in approaching the crossing. As above stated a preponderance of the evidence showed that the statutory signals were not given by appellant’s engineer and fireman in approaching the crossing. The right of way was grown up in places with saplings, brush and weeds and there was not far from the crossing, an embankment which entirely hid the train from view on the highway. Ordinary care would require that in a location of such surroundings the warning signals should he given even if the statute did not require them. Certain it is that in the absence of such signals, common caution would require that the engineer or fireman or both of them, should have kept a sharp lookout for danger at the crossing, which does not appear from the evidence to have been done.

The proofs would seem to sustain the charge that appellant was guilty of negligence at the time and before the collision with Bartholf’s vehicle.

We conclude, therefore, that the case was one properly calling for the verdict of a jury. No question is raised by appellant, except those growing out of the facts and therefore for the reasons above given the judgment of the court below will be affirmed.

Judgment affirmed.


text:
    Henry Bachmann, Appellee, v. Southern Coal & Mining Company, Appellant.
    1. Instructions—when, to disregard count, should be given. An instruction to disregard a count in a declaration should be given if there is no evidence which tends to support its averments.
    2. Pleading—when declaration insufflcient to support verdict. A declaration which charges no negligence on the part of the de fendant is insufficient to support a verdict rendered in an action on the case for personal injuries.
    3. Pleading—what declaration in personal injury action must aver. In such an action the declaration should allege the duty of the defendant, the breach of that duty and the resulting injury.
    4. Negligence—when doctrine res ipsa loquitur does not apply. Held, under the circumstances in evidence that the breaking of a cable was not such an occurrence as brought into operation the doctrine res ipsa loquitur.

    Action in case for personal injuries. Appeal from the Circuit . Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Kramer, Kramer & Campbell, for appellant.
    Fred B. Merrills and James A. Farmer, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

There is no controversy concerning the facts in this case, which is a suit for damages occasioned by personal injuries.

Henry Bachmann, appellee, twenty-eight years of age, began working for appellant October 26, 1909, firing and working about the boiler room at its mine at New Baden, Hlinois. This required him to work until three o’clock in the afternoon and as the miners did not quit their work for an hour and a half later, he, by some arrangement with appellant’s foreman, was employed during this hour and a half at extra work, for which he received additional compensation.

Appellant had at this mine a machine shop, where several men were employed, and in this shop was a swinging, circular saw about twenty-six inches in diameter, hung from up-rights coming down from a shaft about seven feet above and communicating the power which kept the saw in motion. The lower edge of the saw went through a slit in the top of the work bench. When the saw was not in use, it was held away from the bench by a wire rope attached to the frame work, and running over a pulley, to which there was fastened an iron weight of about ten pounds. To saw a timber, the workman would take hold of a handle on the side of the frame and pull both the frame and the saw forward against the timber. The cord, weight and pulley were just back of the saw and in full view of the person operating it. At about three o’clock in the afternoon on November 18, 1909, after Ms regular day’s work was done, appellee went to the foreman, asked “what next” and was set to work with the saw in question sawing coal props. He had never.used the saw before and the foreman instructed him how to pull it forward and after sawing off four pieces, left him with directions to saw one hundred pieces. After appellee had sawed some forty-five pieces and was in the act of removing the last piece sawed, the cord or cable which held the saw back from the bench, broke and the saw swinging forward, struck appellee’s right hand, cutting off the index finger and injuring the tendons of the middle finger, so that he cannot close the same. Some weeks before the injury, the cord which had been used on the machine, was replaced by a piece of electric cable. This cable was about half an inch in diameter and was made up of some fifty or sixty small pliable copper wires, over which was a cloth or linen covering, one-sixteenth of an inch thick. The cable broke at a point where it passed back and forth over the pulley. Appellant’s master mechanic, whose duty it was to see the machinery was kept in good order, stated he saw the cable two or three days before the accident and its appearance indicated it was in good condition; that he had never used one like it before for that purpose; that he “knew it would last six or eight months.”

There were five counts in appellee’s declaration. The first charged that appellee was inexperienced in the operation of the machinery in the machine shop, which fact was known to appellant; that the foreman took appellee from his position as fireman and put bim to work in the operation of the circular swinging saw without instructing him as to the nature and extent of its hazards and without instructing him how to do his work so that he would not be subject to danger. The second that the saw was in a defective condition, by reason of which it would not at all times remain in its proper place when not in use, but would at times automatically come forward towards the person who was operating the same, which condition was or should have been known to appellant, but was unknown to appellee. The third count was practically the same as the second. The fourth charged that the rope attached to the saw broke, releasing the weight. The fifth that appellant did not furnish appellee with a reasonably safe place and appliances in and with which to do his work. Each one of the counts charged that the saw automatically came forward while in motion and injured appellee’s right hand.

There was a plea of the general issue and the trial resulted in a verdict and judgment in favor of appellee for $5,000. There was very little evidence in the case, only two witnesses testifying to facts directly connected with the injury.

It was undisputed that the injury was caused solely by the breaking of the cable used, by means of the weight attached to it, to pull the saw back from the bench and hold it until pulled forward by the person in charge for the purpose of putting the saw in operation.

Appellant offered five separate instructions,- directing the jury to disregard the five counts of the declaration, one applicable to each count, all of which we think should have been given. The charge in the first count that the foreman took appellee from his position as fireman and put him in charge of the saw, without instructing him how to do his work so that he would not be subject to danger, is not supported by the proofs. On the contrary it appears from the evidence that the foreman instructed appellee how to do the work and in illustration cut some of the timber himself. Naturally the proof does not show that the foreman instructed him that the cable was likely to break because this, the proof showed, had never happened before and its defects were not known to the foreman. The charge in the second and third counts that the saw was in a defective condition in that it would at times automatically come forward toward the person operating the same, was wholly without proof to sustain it.

The charge in the fourth count that the cable by which the circular saw was held back from the bench broke was proven but there is no charge whatever in the declaration of negligence on the part of appellant in the use of the cable for such purpose or in failing to know that it was in a defective condition, if such was the case.

The charge in this count was wholly insufficient to base a verdict or judgment upon in favor of appellee and we think the instruction offered by appellant that the jury should disregard the same, was intended to reach such infirmity and should have been given. “If one or more of the counts in a declaration be faulty, the defendant may apply to the court to instruct the jury to disregard such faulty count or counts.” Rev. Stat. (1909), sec. 71, chap. 110.

It is contended by appellee that under this count, the doctrine of res ipsa loquitur must be applied. That doctrine, however, does not appear to us to be applicable to the conditions of this case.

In I. C. R. R. Co. v. Swift, 213 Ill. 307, it is said:

“It is further suggested however, that the breaking of the rope in the left hand set of falls, was the proximate cause of the injury and that the doctrine of res ipsa loquitur applies. The meaning of this term, is that the thing itself speaks; that is that the accident itself raises a presumption of negligence on the part of the defendant, which he must rebut, by showing that he took reasonable care to prevent the happening of the accident. The doctrine only applies, however, where the machine, appliance or other thing, from which the injury results, is shown to be under the management of the defendant and the accident is such as in the ordinary course of things, does not happen, if those in control use proper care.”

The fifth count did not comply with the rule of law which requires, in such cases, an allegation of the duty to the party complaining, of a breach of that duty and a- resulting injury. McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232. It was therefore faulty and the instruction offered by appellant to disregard it should have also been given. Rev. Stat. (1909), chap. 110, sec. 71. The doctrine of res ipsa loquitur having no application under the evidence, it was necessary to aver and prove the rope was defective. and that appellant had either actual or constructive notice of the defect. There is no proof of such notice and even if the declaration stated a cause of action defectively as argued by appellee, it was not cured by the verdict for the reason there was no evidence of notice of the defect, in the absence of which there could be no liability.

Appellee lost his index finger on Ms right hand and his second finger was so injured as largely if not wholly to deprive him of the use thereof. We are of opinion, however, that under all the circumstances of the case the verdict of the jury was excessive.

For the reasons above given the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    Neil K. Bond, Appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, Appellant.
    1. Fbatebnal benefit societies—when provision as to liability in event of permanent disability against public policy. It is against the policy of the law to permit a beneficiary society to determine by its own officers whether or not conditions have arisen which entitle a beneficiary under one of its policies to benefits so as to prevent that beneficiary from applying to the courts for relief in case of the neglect or refusal by the society to determine his rights or pay his claim.
    2. Fbatebnal benefit societies—what tends to establish total and permanent disability. Evidence of examinations by railroad surgeons and refusal of employment because of physical disqualification, held, as competent to establish a total and permanent disability under the terms of the policy in suit in this case.

      3. Fraternal benefit societies—effect of admitting portion of section of constitution. Held, that while it would have been proper to have admitted in evidence the entire section of the constitution, yet that it was not reversible error to have received but a portion of such section.
    4. Fraternal benefit societies—how contract of insurance construed. A contract of insurance between the member and the society is to be liberally construed in favor of the member.
    5. Trial—when denial of continuance not error. The denial of a motion for a continuance is not improper where the petition in support of it fails to show diligence in attempting to secure the attendance or deposition of the witness by reason of whose absence the continuance is sought.
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    William G. Wilson, Samuel N. Finn and Charles N. Holt, for appellant.
    Nobleman & Smith and W. F. Bundy, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought suit on a beneficiary certificate issued by appellant, and in his declaration set the same out in full. The certificate, which was dated June 20, 1907, recited that appellee was a member of Elmo Lodge No. 675 of said Brotherhood, entitled to benefits-of the membership and to participate in the beneficiary department class C of the Brotherhood, to the amount-set forth in the constitution, which in the event of his total and permanent disability, should be paid to him or at his death to other persons named. It stated that the certificate was issued upon the express condition that appellee should comply with the constitution, bylaws, rules and regulations then in force or which might thereafter be adopted by the Brotherhood, and that he pay all dues and assessments imposed upon him as provided by the constitution and by-laws.

The' declaration further averred that appellee had paid all dues and assessments imposed upon him in the manner required of him and that on August 15, 1908, while he was in good standing in the Brotherhood, and being in the employ of the Southern Railway Company, as a brakeman, he received a severe injury resulting in the crushing of his left, foot and ankle, whereby he was crippled and received a total and permanent disability; that by reason of his certificate he was entitled to recover of appellant the sum of $1,350.

To this declaration, appellant filed the general issue and two special pleas. The first special plea relied as a defense to the action on sections 68 and 70 of appellant’s constitution, which were as follows:

“Section 68. Any member in good standing suffering, by means of physical separation, either the loss of a hand at or above the wrist joint, or the loss of a foot at or above the ankle joint, or suffering the loss of the sight of both eyes, shall be considered totally and permanently disabled, and shall receive on sufficient and satisfactory proof of the same the full amount of his beneficiary certificate, but not otherwise.
“Section 70. All claims for disability not coming within the provision of Section 68, shall be held to be addressed to the systematic benevolence of the Brotherhood, and shall in no case be made the basis of any legal liability on the part of the Brotherhood. Every such claim shall be referred to a Beneficiary Board, composed of the G-rand Master, Assistant Grand Master and Grand Secretary and Treasurer, who shall prescribe the character and decide as to the sufficiency of the proofs to be furnished by the claimant, and if approved by said board, the claimant shall be paid an amount equal to the full amount of the certificate held by him and such payment shall be considered a surrender and cancellation of such certificate, provided that the approval of said Board shall be required as a condition precedent to the right of any such claimant to benefits hereunder, and it is agreed that this section may be pleaded in bar of any suit or action at law, or in equity, which may be commenced in any court to enforce the payment of any such claim. No appeal shall be allowed from the action of said Board in any cause; but the Grand Secretary and Treasurer shall report all disapproved claims made under this Section to the succeeding biennial convention for such disposition as said convention shall deem just and proper.”

The second special plea relied on section 68 alone and both of them alleged that appellee had not received the injuries described in section 68.

To these special pleas a general demurrer was filed, which was sustained by the court. Appellant elected to stand by his special pleas and went to trial on the general issue. There was a verdict and judgment in favor of appellee for the full amount of his claim and interest.

Appellant assigns 19 errors, which may.be classed and are in effect argued under the five following-heads : (1) That the court erred, in sustaining appellee’s demurrer to the special pleas, (2) in denying a motion for continuance made by appellant, (3) in the admission and exclusion of evidence, (4) in refusing to give appellant’s peremptory instruction and (5) in instructing the jury.

The most important question raised by appellant and the one on which the case more nearly hinges than any other, is that which is concerned with the sustaining of the demurrer to appellant’s two special pleas. The certificate issued by appellant is called by it a “beneficiary certificate.” By its terms appellee, being in good standing as admitted by said pleas, was entitled to participate in the beneficiary department, class C, of said Brotherhood, to the amount set forth in the constitution thereof, which amount, in the event of his total and permanent disability, should be paid to him, or in case of his death to other persons described in the certificate. The plain language of the certificate shows that it is intended by it that the beneficiary should receive the amount mentioned in the constitution for his class in case of his total and permanent disability. Section 70, however, provides that “all claims for disability not coming within the provision of section 68, shall be held to be addressed to the systematic benevolence of the Brotherhood, and shall in no case be made the basis of any legal liability on the part of the .Brotherhood.”

As a matter of fact therefore, if section 70 is to be literally sustained, those beneficiaries who suffer total and permanent disabilities in any manner other than those named in section 68, are totally, without insurance, as their claims for benefits depend entirely upon the benevolence or charity of the Brotherhood, and whether this benevolence or charity shall be exercised, is not a matter of right on the part of a beneficiary who has paid his dues and has afterwards been totally and permanently disabled, but is left en ^ rely to the decision of the beneficiary board of the brotherhood, which may or may not, as it pleases, extend its benevolence or charity in such instance. By the provisions of the constitution, this board would have the right to allow the claim of benefits in one instance, while in another instance, equally meritorious, it would have the right to wholly deny the claim.

One of the objects of the certificate is plainly to insure benefits to the beneficiary in the event of his total and permanent disability and it is reasonable to assume that this is one of the reasons why the beneficiary takes out his certificate and pays his dues and assessments, but the provision of the constitution above referred to, deprives him, except in certain limited cases, of those benefits. That the interpretation sought to be given the certificate and constitution, by appellant, is unjust and unfair to the beneficiary, is obvious and, as it appears to us, cannot be sustained under the holdings of our courts of appellate jurisdiction. A former section of the constitution of appellant, upon this subject, has been before our courts several times. That section contained language in substance the same as the present section No. 68, but the rest of the section, which is now succeeded by section 70, was as follows:

“Other claims for total disability shall be referred to the Grand Master, First Vice Grand Master and Grand Secretary and Treasurer, who shall decide as to whether or not the disability is of such a nature as to totally and permanently incapacitate the claimant from the performance of duty in any department of the train or yard service and if the claim is approved by them, the claimant shall receive the full amount of the beneficiary certificate or certificates held by him.”

There was also another section providing for an the officers above named, to the grand lodge.

In Brotherhood of Railroad Trainmen v. Newton, appeal by a person whose claim had been rejected by 79 Ill. App. 500, and Brotherhood of Railroad Trainmen v. Randolph, 84 Ill. App. 220 (affirmed 186 Ill. 89), the injuries complained of by the beneficiaries were not included in those described in the constitution as total and permanent disabilities, and the beneficiary board had neglected or refused to allow the claims, but judgments in favor of the beneficiaries were sustained by the Appellate Court in both cases.

In Brotherhood of Railroad Trainmen v. Greaser, 108 Ill. App. 598, where the same provisions of the constitution were under consideration, and where again the injury suffered by the beneficiary was not one of those named as a total and permanent disability in the constitution or by-laws, a special plea to the declaration was filed setting up said provisions of the by-laws and regulations of the order, to which a demurrer was filed and sustained by the trial court. The judgment of the Circuit Court was affirmed by the Appellate Court and in the course of the opinion affirming the same, it was said: “The submission of the question of appellee’s total disability, which is the only issue presented by appellant’s pleadings, to a board composed of the grand master, first grand vice-master and grand secretary and treasurer, and on appeal, to the grand lodge, is virtually a submission to the defendant itself. The trend of judicial authority is so decidedly against the propriety of allowing one of the parties or its special representatives, to be judge or arbitrator in its own case that even a strained interpretation will be resorted to, if necessary, to avoid such a result. If a different construction is fairly admissible it should be adopted. Neither the constitution, rules or by-laws of appellant provide that there can be no recovery if the designated officers or grand lodge reject the claim, and we do not consider it our duty to interpolate such a provision into them. * * * We construe the certificate to be a positive agreement to pay in the evént of total and permanent disability. Favorable action upon the claim by the officers designated or by the grand lodge upon appeal is not a condition precedent to the right of recovery.”

Since these cases were decided, the constitution and by-laws of appellant appear to' have been amended and now provide, as above set forth, that - no claim for disability, not coming within the provision of the constitution defining total and permanent disabilities, shall be made the basis of any legal liability on the part of the brotherhood, and that the section of the constitution so providing may be pleaded in bar of any suit or action at law or in equity, which may be commenced in any court to enforce the payment of any such claim.

Appellant contends that under the amended constitution, the special plea above referred to should have been sustained. With this contention, however, we do not agree.

In Great Hive of Modern Maccabees v. Hodge, 130 Ill. App. 1, it was set up as a defense by special plea, that the by-laws provided, the “Great Hive or its executive committee had power to decide as to the validity of all death claims; that its decision should be final and no suit in law or equity should be commenced or maintained, by any beneficiary against the Great Hive.”

A demurrer was sustained by the trial court to this plea and the Appellate Court, which affirmed the judgment in favor of the beneficiary, said in discussing this question: “While such a regulation as that set up in the plea would, perhaps, be a complete bar to a suit, where the arbitration or hearing provided for was to be had before some third party, or some tribunal in no way connected with or a part of the insurance order, yet there can be no doubt that a beneficiary named in the benefit certificate is not bound to submit his claim for adjudication to the tribunal provided for in the rules or by-laws of the insurance order before instituting suit in the courts, when such rule or by-law attempts to make an officer or officers of such association, such arbiter or tribunal.”

It appears to us that it is plainly against the policy of the law to permit a beneficiary society to. determine by its own officers whether or not conditions have arisen which entitle a beneficiary under one of its policies to benefits so as to prevent that beneficiary from applying to the courts for relief in case of the neglect or refusal by the society to determine his rights or to pay his claim. The demurrers to the special pleas, were, in our opinion, properly sustained.

When the case was called for trial,, appellant entered a motion for a continuance, on account of the absence of a witness residing in St. Louis, Missouri. The affidavit in support of the motion, which was made by one of appellant’s attorneys, stated, that appellant expected to prove by this witness, who was a physician, certain facts set forth tending to show that the injuries of appellee were not such as totally to disable him from performing the work of a railroad trainman or otherwise; that affiant and the other attorneys for appellant had made diligent inquiry to procure and ascertain all witnesses who might know of anything in relation to said cause; that the discovery of such evidence came to affiant and his associates but a few hours before the trial and that until such time neither of them knew that said witness was a material witness and that they had been unable, by reason of the short time intervening between the discovery of the evidence, and the commencement of the trial to secure the attendance of such witness.

The trial court did not abuse its discretion in refusing this motion, as it failed to show diligence on the part of appellant in attempting to secure the attendance or deposition of the absent witness. It is true the affidavit states that knowledge of the existence of the evidence referred to did not come to the attorneys for appellant until a few hours before the trial, but there is nothing in the affidavit whatever to show that it had not been long known to appellant itself, through its officers, who had this matter in charge.

The trial court did not err in permitting appellee to show that he had made application to other railroad companies, had been examined by their surgeons and had been refused employment because he was not physically qualified to perform duties in the train service. This evidence was competent as tending to prove appellee’s claim that he was totally and permanently disabled by his injury. Nor did the court commit prejudicial error in refusing to permit appellant to introduce in evidence sections 68 and 70 of the constitution above referred to. These sections were set up in the special pleas and what we have said in reference to sustaining' the demurrer to these pleas, includes the reasons why they would not be proper in evidence.

Appellant objects that the court permitted appellee to introduce a portion of section 60 of its constitution, without the balance of it, the criticism being that the whole section should have been offered together for the reason that that portion following the part introduced in evidence, is necessarily and inseparably connected therewith. The portion of the section introduced was necessary for the purpose of showing the classes into which the beneficiary certificates were divided and how such certificates should be issued. The remainder of the section amplifies and explains the portion of the section which was admitted and might well have been itself admitted in evidence. We do not think, however, that its exclusion was material error.

Appellant again complains that the court erred in refusing to give its peremptory instructions offered at the close of appellee’s evidence and at the close of all the evidence in the case, upon the ground that there was no evidence that appellee had suffered such an injury as contemplated by the contract of insurance. This contention is based upon two propositions, (1) that the total disability must be such as is named in section 68 of the constitution, which objection we have hereinbefore disposed of, and (2) that the disability suffered by appellant was not such as to incapacitate him wholly and permanently from performing or directing any kind of labor or business.

By the provisions of appellant’s constitution,'the membership in the order was restricted to railroad trainmen in road service or yard service and the dues were no doubt fixed with a view of covering the risk incurred by men in such vocation. In construing insurance contracts of organizations such as appellant, it must be remembered, as said in Supreme Lodge v. Meister, 105 Ill. App. 471, that “the predominant intention of the parties in a contract of insurance is indemnity, and this intention is to be kept in view in putting a construction upon policy and by-laws. A contract of insurance is always to be literally construed in favor of the assured, so as. not to defeat without a plain necessity the claim to indemnity.”

It appears to us reasonable that applicants for certificates must, under the circumstances, have been led to believe that in accepting certificates, they would become insured against such injuries as would totally and permanently disable them from following their vocation as railroad trainmen in road or yard service.

With this view it was for the jury to determine whether or not appellee was totally and permanently disabled and the instruction was properly refused.

The principal questions raised by appellant in regard to the instructions have been disposed of by us against appellant’s contention under other assign-, ments of error heretofore considered.

The judgment of the court below will be affirmed.

Affirmed.


text:
    J. D. Roberts, Appellee, v. Village of Mason, Appellant.
    1. Vekdiots—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.
    2. Instructions—when cannot be complained of. A party will not be heard to complain of the vice of an instruction where instructions tendered by him and given contain a like vice.
    Action in case. Appeal from the Circuit Court of Effingham county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    S. F. Gilmore, for appellant.
    George I. Danks and Wright Bros. & Denton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee against the village of Mason, Illinois, on account of alleged negligence of the village board in not keeping one of its streets in a reasonably safe condition, whereby appellee received personal injuries and his automobile was badly damaged. Verdict and judgment for $275.

Appellant here complains that the verdict was not sustained by the evidence and that there was such serious error committed by the court in instructing the jury on behalf of appellee that the judgment should be reversed.

The proofs show the accident to have occurred under the following circumstances: About three weeks prior to October 3, 1909, the village authorities, preparatory to putting in a granitoid crossing, had excavated a strip of ground about six feet wide to a depth of some twelve inches across Main street of appellant, it being a village of some 350 people, and this one of the principal streets. The dirt had been thrown out along each side of the excavation and the street was left in this condition. The street continued to be traveled over by passengers and loaded vehicles, some twenty or thirty going over the dirt on the sides and the edges of the excavation each day until the same were partially worn down. On the above date, appellee, who lived in Terre Haute, Indiana, and had never been over the street before, was passing through the village in an automobile accompanied by one Graff, his driver. It was about the middle of the day and the sun was shining and they saw the dirt oh the edge of the excavation as they approached but did not discover the excavation itself, until within about twelve feet of it. The driver put on the brake but the car went into and across the other side of the excavation. Appellee was thrown by the jolt against the front of the car, his thumb broken and the car so damaged and injured as to require some $300 to repair it, There was no notice to warn persons that the road at that place was in a dangerous condition. Appellee testified they paid no attention to the fresh dirt across the street as they had passed several places in the village where there was fresh dirt in the roadway, but the street at these places had been repaired and made comparatively smooth, and it was only when he saw the excavation beyond the dirt on its edge that he became aware of the condition.

As the city authorities were conducting the work, there was no question of notice to the city of the existence of the excavation. Nor was it questioned that there was no warning of danger at the crossing, nor that appellee and his automobile received injuries in the manner and to the extent claimed. It is contended however by appellant that the crossing was reasonably safe and that appellee and his chauffeur did not use reasonable caré in approaching the same. The evidence upon these questions, which include the rate of speed at which the automobile was traveling, was conflicting and not to be reconciled. We must therefore be content to leave the determination of the contested questions of fact to the jury, which found in favor of appellee.

Appellant complains because the jury were charged on the part of appellee that it was the duty1 of a village to keep its streets in a reasonably safe condition, instead of stating the duty of the village to be, to use reasonable diligence to keep them in a reasonably safe condition. Appellant cannot however take any advantage of the technical defect contained in such instruction for the reason that it gave instructions stating the rule of law to be the same as that laid down by the instructions of appellee complained of. The fourth instruction given for appellee told the jury “that a person using a city or village street has a right to rely upon such street being in a reasonably safe condition and repair for travel and if there is a defect in such street, rendering it unsafe for travel, unless lie knows of or is warned of the defect hy some sign, signal or other means, he cannot he charged with negligence in assuming that the street is reasonably safe for use, but has a right to act upon the presumption that it is reasonably safe.” Appellant asserts this instruction is vicious because it gave undue prominence to the absence of precautions, that the law does not specifically impose and require appellant to guard the excavation by signs, signals or other warnings so as to make the street safe for ordinary travel instead of requiring it to use reasonable care in that regard.

The complaint that this instruction required the city to make the street safe for ordinary travel cannot be availed of by appellant for the reason that appellant adopted the same rule of law in his instructions as above stated. But even if that were not the case, we would not regard this instruction erroneous to such an extent under the circumstances of this case, as to require the reversal of the judgment.

In Salem v. Webster, 95 Ill. App. 120, where an instruction similar in many respects to the one in question was under consideration, this court said: “As an abstract proposition, or as applicable to a large class of cases that have arisen or that may arise, this instruction does not lay down the law correctly as to the duty of a city with respect to its streets. Ordinarily it is not the duty of a city to absolutely keep its streets in reasonably safe repair, but only to exercise reasonable diligence to keep its streets in reasonably safe repair. But in this case appellant, by its voluntary act, converted one of its public streets which was in reasonably safe repair into one that was clearly unsafe and dangerous, and without any lawful excuse therefor kept it in unsafe and dangerous condition for weeks. When applied to such facts the instruction correctly states the duty which the law imposes.”

The Supreme Court in affirming this case (192 Ill. 369) refers to the fact that “there was never any guard, notice or protection to the public at the place of the ditch or in its immediate vicinity to give warning of the danger.”

Upon consideration of the whole record we find no sufficient reason for the reversal of the judgment in this case and the same is therefore affirmed.

Judgment affirmed.

Me. Justice McBride having tried this case in the court below took no part here.


text:
    Carl Althardt, Appellee, v. Consolidated Coal Company, Appellant.
    Master and servant—when doctrine of assumed risje dars recover1!/. If a servant knowing a mule to be vicious continues to use him in connection with his work, and is injured as a result of the viciousness of such mule, he will be barred of a recovery under the doctrine of assumed risk.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed November 11, 1911.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    C. H. Burton, R. G. Kneedler and D. H. Mudge, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee, who was a driver in appellant’s coal mine, was kicked in the face and severely injured by a mule he was driving, brought suit and recovered judgment against appellant, which, on appeal to this court, was reversed and the canse remanded. The pleadings and facts in the case are fully set forth in the opinion filed by this court when the case was here before. Althardt v. Consolidated Coal Co., 155 Ill. App. 364.

We there held that the evidence did not sustain the principal proposition of appellee’s declaration that appellant promised to remove the danger incurred by appellee in the use of the mule in question, by giving him another job; but we also said that as the declaration contained a further allegation that appellee was ordered to drive the mule after appellant had been notified that the mule was dangerous and that appellee was afraid to drive it, as there was some evidence tending to support such allegation, the cause should be remanded for further proceedings.

Upon the next trial in the Circuit Court, the declaration was amended by eliminating that portion of it, which counted upon the promise of appellant to remove the danger by giving appellee another job.

The declaration, as amended, charged that the mule in question was dangerous, unfit for use and would kick at, bite and attempt to injure the men in the mine, especially his driver, and that appellee notified the mine manager of that fact early in the morning of December 30, 1907; that the mine manager directed appellee to drive the mule after said notice during said day; that acting upon the orders of said mine manager, appellee continued to drive the mule and while in the exercise of due care he was on the same day, shortly afterwards, kicked by the mule and injured.

The facts developed on the last trial were, as stated by appellee, the same as they appeared on the former appeal. From these proofs it appears that appellee had driven the mule in question about three weeks and was fully aware of his vicious kicking propensities.

Appellee’s claim and testimony was that on the morning of the day he was injured, he told the mine manager he was afraid of the mule and wished other work; that the mine manager told him he could drive the mule or quit; that he was hired for that work; that he applied to the pit committee and was told by them, after they had talked with the manager, that he had better go on and drive that day as it would make his case better; that he again went to the manager who told him to drive the mule that day and he would give him a change in the morning; that after-wards while continuing his work with the mule complained of, he was injured as aforesaid.

The mine manager denied appellee told him on the day in question he was afraid of the mule or that witness ordered him to go to the pit committee and take up the matter.

The manager’s claim was that appellee wanted to go to work shoveling “at the face” with his brother and he told appellee he would either have to drive or quit. He also denied that he told appellee, after the pit committee took up the matter, to go on and drive that day and he “would give him a better job.”

But even if it be conceded that appellee’s claim was substantiated by the proofs, we are of opinion, upon full consideration of the facts, that the danger of injury from the mule was one of the risks of his employment which he assumed. “If the particular work which a servant is directed by his master to perform, is within the scope of the general employment of such servant," the mere fact that the servant is directed by the master to do such work, does not operate to absolve the servant from the assumption of the risk involved.” Kolp v. Decatur Ry. & L. Co., 145 Ill. App. 645.

Appellee was perfectly well aware, more so probably than any one else, of the dangers incident to the continuance of his work with the vicious mule. He was not misled by his master in regard to the dangers incurred in pursuing his work with the same animal but continued to take chances of injury rather than give up his job.

While the rule which relieves the master of responsibility under such circumstances and makes the servant bear the burden alone would seem to be a harsh one in some respects, yet the proofs in the case appear to call for the application of the doctrine of assumed risk.

The judgment of the court below will be reversed and as there can be no recovery under the facts in the case, the cause will not be remanded.

Judgment reversed.

Finding of facts: We find as ultimate facts in the case that appellee knew the danger incurred by him by continuing to drive the mule mentioned in the proofs and that he assumed the risk of such danger as one of the hazards of his employment.


text:
    John Contratto, Appellee, v. Star Brewery Company, Appellant.
    1. Landlord and tenant—when obligation of former to repair not established. Held, under the facts and circumstances of this case it did not appear that the landlord was under any obligation to make repairs.
    2. Landlord and tenant—duty of former upon abandonment. “Upon the abandonment of the leased premises by the tenant, it was the right and duty of the landlord to take charge of the premises, preserve them from injury, and if it could, re-rent them, thus reducing the damages for which the lessee was liable.”
    Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Turner & Holder and Burroughs & Ryder, for appellant.
    Early & Williamson, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit to recover rent from June 1, to December 1, 1910, at the rate of $35 a month for a building rented by him to appellant for saloon purposes in Maryville, Illinois.

The renting was evidenced by a written lease, the original of which stated that the term was to extend from May 15, 1904, to May 15, 1906; that the rental was to be $420 a year payable in monthly installments of $35 each; that at the expiration of the term the lessee would surrender the premises “in good order and condition as same now is, reasonable wear and tear, fire and unavoidable casualties only excepted.” This lease was subsequently extended for a term of three years and the written memorandum thereof contained the statement that “The Star Brewery Company hereby agrees to keep in good repair, inside and outside of said building.” At the expiration of this extension another agreement in writing was entered into extending the lease from May 15, 1909, to May 15, 1911, containing the provisions that “the said Star Brewery Company hereby agrees to keep said premises in good repair inside and outside in as good condition as they now are the usual wear and accident by fire and the elements excepted.”

To the declaration which set out the lease and the extensions thereof in full, appellant pleaded the general issue, a plea of set-off for money due it from the loss of rents and on account of loss of profits on business, which moneys became due appellant by reason of the neglect and refusal of appellee to make the building on said premises tenantable; and also a plea of eviction stating, that by the terms of said lease, contract and the extensions attached thereto, it became and was the duty of the plaintiff to make such repairs as became necessary by the usual wear and tear, accidents by fire and the elements thereto; that by reason of the natural and usual wear and tear and the action of the elements, the roof upon the building of said leased premises became dilapidated, rotten and out of repair and leaked to such an extent, the house became and was and still is untenantable; and that thereby appellant and its subtenant, were compelled to abandon the premises and surrender to appellee the key for the same. The trial resulted in a verdict and judgment in favor of appellee for $210.

Appellant complains that the court below erred in its rulings concerning the evidence and in regard to the instructions. On the trial it was stipulated that the extensions were attached to and became a part of the original lease and that rent was paid to June 1, 1910, and not thereafter.

It appeared from the evidence that the refusal of appellant to pay.rent on the premises after June 1, 1910, was because the same were as claimed by it, badly out of repair, the condition of the roof being especially complained of. Appellee refused or neglected to make the repairs requested, and early in August appellant and its sub-tenant removed all their effects from the premises and offered the keys to appellee who refused to accept them until the rent was paid.

Appellant offered on the trial to prove that before and at the time of the execution of the last extension of the lease, appellee orally agreed to make such repairs as should be necessary on account of the usual wear and tear arid accident by fire and the elements; that repairs were necessary to such an extent that the premises had become untenantable. The question of the admissibility of this evidence is discussed by counsel on both sides, but it does not appear to us to be pertinent for the reason that it is not raised by the pleadings in the case. Such evidence would virtually permit the setting up of an additional or supplemental oral contract to change or add to the written contract. The right to introduce such evidence would under any condition of the pleadings, be extremely doubtful, but it is certain that the question cannot be raised under the pleas filed by appellant in this case.

Complaint is made by appellant because the court instructed the jury that although they believed from the evidence that plaintiff wrote to defendant he had an opportunity to re-rent the premises to another tenant, yet if they found that appellant did not surrender the premises to the appellee at that time, then there was no mutual agreement between the appellee and the appellant to surrender the lease and appellant was not thereby relieved from the payment of rent, according to the terms of the written lease. This instruction referred to a letter written by appellee on July 1, while the surrender or abandonment of the premises by appellant did not occur until some time in August, 1910. We think this instruction was free from error as appellant could not in law and in right be permitted to occupy the premises for about a month after the receipt of the letter and decline to pay rent for the time he occupied the same. Had it desired to take advantage of any statement contained in the letter, it should have abandoned the premises at once. By the original lease and extensions in writing, no duty was imposed upon appellee to make repairs. Humiston v. Wheeler, 175 Ill. 514; Smith v. McLean, 123 Ill. 210; Watson v. Moulton, 100 Ill. App. 560.

The next and last question raised by appellant, is that the court was in error in refusing it permission to prove by a number of witnesses that the premises in question could have been readily rented by appellee after they were given up by appellant, for from $20 to $25 a month; also in refusing certain instructions offered by it, raising the question of the duty of appellee as landlord to re-rent the premises and thus reduce the damages for which appellant might be liable.

We are of opinion that this evidence was properly admissible and that the instructions should have been given. While the law upon the question has been subject to some controversy in courts of different jurisdictions, we think the true rule is stated in West Side Auction Co. v. Conn. Ins. Co., 186 Ill. 156, where it is said: “Upon the abandonment of the leased premises by the tenant, it was the right and the duty of the landlord to take charge of the premises, preserve them from injury, and if it could, re-rent them, thus reducing the damages for which the lessee was liable. ’ ’ This appears to us to be a just and reasonable rule and was adhered to by us in the case of Hinde v. Madansky, 161 Ill. App. 216. See also Resser v. Corwin, 72 Ill. App. 625.

For the.error in refusing to admit the evidence and give the instructions last referred to, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    Elmer Dockins, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the evidence where the Appellate Court can say that it is manifestly and clearly against its weight.
    Action in case for personal injuries. Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Schaeffer, Farmer & Kruger, for appellant.
    M. R. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Elmer Dockins, a minor, by Katie Dockins, his next friend, brought this suit to recover damages for injuries alleged to have occurred to him,while alighting from a car of the Alton, Granite and St. Louis Traction Company, in Granite City, Illinois, on the night of June 11, 1910.

The negligence charged was the sudden starting of the car while the plaintiff was about to step therefrom, by reason whereof he was thrown with great force and violence from the car on to the street. A verdict in favor of the plaintiff for $500 was sustained by the court below and judgment entered for that amount.

The defendant below brings the case here by appeal and alleges as reasons why the judgment should not be permitted to stand that the verdict is not supported by the evidence and that there was error in one of the instructions given for appellee.

Appellant, as it appears from the proofs, operates an electric car line from St. Louis, Missouri, to Granite City and other points in Illinois. In the afternoon of the day above mentioned, appellee, a minor eighteen years of age, and two companions, J. C. Metcalf and Clarence Smith, all of whom resided in Granite City, went to St. Louis, Missouri, for a pleasure trip and about ten o’clock that night they boarded one of appellant’s cars to return home. Appellee and his companions occupied seats near the middle of the car. When the car reached the intersection of B street and 20th street in Granite City, where the three boys intended to get off, it stopped and certain other passengers there left the car. At or about the same time appellee and the two other boys rose from their seats and went forward to alight by way of the front platform, but were told by the motorman that they must get off at the other end and they thereupon passed back to the rear of the car. Appellee testified that after going to the rear of the car, Metcalf, who was in the lead, stepped to the street; that he, appellee, had descended from the platform to the step for the purpose of stepping down to the ground, when the car started with a sudden jerk and threw him from the step to the ground, causing the injuries complained of; that the conductor rang the hell while he was on the step, thus giving the signal for the car to start.

On behalf of appellant a physician, who treated appellee for his injury, testified that appellee told him that he wanted to get off at the crossing and the car did not stop so he jumped off; that when he got off the car was going “at a pretty fast clip.” Another physician, who appears to have been appellant’s physician, but was treating a member of appellee’s family at the time, stated that the next morning after the injury, appellee told him that he jumped off the car while it was in motion. The conductor swore that he heard the boys jump from the car after it had left 20th street at a point about 150 feet therefrom and gave the signal to stop, and the motorman stated he got the signal to stop about the middle of the block. A passenger who sat in the smoking compartment at the rear of the car, testified he saw the boys jump off while the car was in motion and two other passengers stated that the car started before the boys reached the back end and did not stop until the signal was given by the conductor, after leaving 20th street. All three of the passengers above mentioned also stated that there was no jerk of the car when it started at the intersection of B and 20th streets.

The only question of fact to be determined by the jury, was whether appellee attempted to alight from the car while it was standing still at the crossing of the streets named or whether he jumped therefrom afterwards, while the car was in motion.

We deem it unnecessary to discuss the evidence further than it is above referred to, except to sa> that the testimony of appellee and his companions when considered carefully, was of a very unsatisfactory nature and that the clear preponderance of the evidence, both as to the number of the witnesses and otherwise, was so manifestly in favor of appellant that the judgment should not in justice be permitted to stand.

Our Supreme Court in the case of Donelson v. East St. Louis Sub. Ry. Co., 235 Ill. 625, has approved the doctrine that where a verdict is manifestly and palpably against the weight of the evidence, the judge in the trial court should promptly take the responsibility of setting aside the verdict, and that a failure to do so, is such error as on appeal will demand the setting aside of the judgment.

An instruction given for appellee appeared to authorize him to recover damages for loss of services during minority. Appellee attempted to obviate and overcome the vice of this instruction by a release of services during minority, filed after the motion for new trial had been . argued, by his next friend, Katie Dockins, who stated that she was the mother of appellee and that his father was dead.

The complaint made by appellant of the irregularity of this release and its insufficiency to cure the defect in the instruction-, is not without force but does not demand further consideration here for the reason that the matter can readily be remedied before the next trial of the cause.

The judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    Rena Simpson, Appellee, v. L. D. Simpson, Appellant.
    1. Change oe venue—effect of application. After the petition for change of venue is presented the judge named therein has no power to render any further order therein, except such as may be made in connection with the one which allows the change of venue.
    2. Change oe venue—section 11 of Act construed. By virtue of section 11 of chapter 146, a judge to whom an application for change of venue has been made, is not empowered to impose as condition to the granting of the change the obligation of payment of money and solicitor’s fees.
    Separate maintenance. Appeal from the Circuit Court of Johnson county; the Hon. William W. Butlek, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed November 11, 1911.
    Spann & Spann and O. R. Morgan, for appellant.
    George N. English and T. H. Sheridan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee filed a bill for separate maintenance against appellant, her husband, to the November term, 1910, of the Circuit Court of Johnson county, charging him with extreme and repeated cruelty and other misconduct.

By her bill appellee also asked for the custody of the two minor children of herself and appellant and for temporary alimony, for the support of herself and said minor children, during the pendency of the suit and for solicitor’s fees.

On November 12, 1910, appellant gave notice of an application for a change of venue in the cause, on account of the prejudice of the trial judge. On November 14th, the first day of the term, the petition for change of venue was filed and taken up for consideration by the trial judge named therein, who took the application under advisement. Subsequently on November 17th, - appellee presented her petition for alimony pendente lite, for herself and one of said minor children and for solicitor’s fees, and upon consideration thereof, the court on that day granted the petition and decreed that appellant pay a solicitor’s fee of seventy-five dollars by a time fixed and that he pay the further sum of twenty-four dollars a month on the 21st day of each month commencing on November 21st, to appellee, for the support of herself and said minor child, until the further order of the court. From such decree, appellant has appealed to this court.

It also appears from the record in this case that upon the same day upon which the decree for solicitor’s fees and temporary alimony was made by the court, and subsequent thereto, appellant’s motion for a change of venue was allowed.

The principal question discussed by counsel in this case, and the only one necessary for us to consider, is whether the court below had any authority to enter a decree for solicitor’s fee and temporary alimony, after the petition for a change of venue, on account of the prejudice of the trial judge, worded and verified as required by law, had been presented to the court and due notice thereof had been given to the adverse party.

Where the application for change of venue is made on account of the prejudice of the trial judge, the statute gives no discretion, but such judge if the petition is in proper form and duly verified, must grant the petition and allow the change of venue. After the petition is presented, the judge named therein has no power to render any further order therein, except such as may be made in connection with the one which allows the change of venue.

Appellee relies upon section 11 of chapter 146 of the Eevised Statutes, which provides that, “The order for a change of venue may be made subject to such equitable terms and conditions as safety to the rights of the parties may seem to require and the judge in his discretion may prescribe. ’ ’

The provisions of the decree for a solicitor’s fee and alimony entered by the judge in this case, were evidently not-intended as the equitable terms and conditions on which the order for the change of venue was made. In fact that decree was entered and appealed from as a separate proceeding before the change of venue was allowed and there is nothing in the record to indicate any connection between the decree appealed from and the order for the change of venue.

We are of opinion that after the presentation of the application for a change of venue, the court below was without jurisdiction to enter the decree in regard to the solicitor’s fee and temporary alimony, which was appealed from and that decree is accordingly reversed.

Decree reversed.


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    Emma Johnson, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.

      Negligence—when loilfulness not established. Held, under the evidence, that wilful injury of the plaintiff’s intestate, who was killed while walking upon the railroad tracks of the defendant, was not established, and that the judgment rendered should be reversed with finding of facts.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Bun-can, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed November 11, 1911.
    William W. Clemens, for appellant; W. S. Horton, Blewett Lee and W. W. Barr, of counsel.

      A. D. Morgan and W. P. Lightfoot, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee for damages occasioned by the death of her husband, Daniel Johnson, who was struck and killed by a locomotive engine drawing a passenger train, while he was walking upon appellant’s track near Herrin, Illinois.

The several counts of the declaration alleged that said Johnson was at the time in the exercise of due care and diligence for his own safety and that the servants of defendant were guilty of gross and wanton negligence in driving and managing said locomotive engine and train and striking deceased.

The damages laid in the declaration were $10,000. The verdict and judgment were for $500.

We learn the following facts concerning the case from the record: Daniel Johnson at the time of his death, was 40 years of age and was employed as a top worker for the Big Muddy Coal and Iron Company, was earning from $2.40 to $2.45 a day as wages, and was living in one of the Coal Company’s houses near its mine, located about a mile and a half east of Herrin, Illinois, just south of appellant’s main track. While going home from Herrin about half past 9 o’clock on the night of January 25,1910, and walking in company with one Mark Yeach along appellant’s track at a point about a half a mile east of the city limits and not at a highway crossing, Johnson was struck by the pilot on one of appellant’s passenger engines drawing a regular passenger train, and killed. Appellant’s track running east from the city toward said coal mine is practically straight. Near the city limits on the south side of the track .is a water tank of appellant, from which there extends to the east a dump or fill for a distance of about 600 feet. This dump is about sixteen feet on top and on the center of it is located one of appellant’s main tracks, while on each side there is a pond of water. There is also on each side of the dump a rock wall and the distance from the end of the ties to the rock wall, is about three or four feet. Some 200 feet east of the west end of the dump, there is a trestle under the track, connecting the two ponds of water. The only person testifying on the part of appellee as to what occurred' at the time of the injury, was said Yeaeh. He stated that he overtook Johnson at the city limits as he was walking along the railroad track and continued with him until he was struck by the engine ; that it was a bright moonlight night and as they reached the trestle he looked back and saw the passenger train coming and remarked to Johnson “Let’s hurry up and get off, that is the passenger coming, I think,” that “Johnson said, no, he thought it was a switch engine coming for water;” and after walking about 200 feet further, witness again remarked, “Eight here we had better get off, that is the passenger train coming; it looks like it is running pretty fast” and that Johnson again replied, “No, it is the switch engine;” that he again remarked to Johnson, “There it comes, right there, you had better get off;” that he stepped off of the track, but that Johnson “who was straddling the rails” about eight feet behind him, was struck by the cow catcher and beam and pitched about thirty feet in the pond; that he heard no bell ring, nor whistle sound; that the train was running about twenty miles an hour and the speed was not slackened before Johnson was struck and the train ran some 300 feet beyond that point; that the first time, he saw the train, it was west of the tank where the switch engine got water, but the second time it was 250 to 300 feet east of it; that the last time he spoke to Johnson, it was clearly perceptible that the engine was not a switch engine coming for water. The engineer, Pabst, testified that he saw only one man who was walking on the right side of the track and appeared to be clear of it; that he first discovered this man when the train was 100 to 200 feet away; that he did not see Johnson until after he was struck by the beam of the cow catcher; that there was a mist whidh came from the water and obscured objects on the track.

The fireman testified that he did not see Johnson and he corroborated the engineer as to the presence of a mist over the track. It also appeared from the evidence that there was room for the deceased to step to the side of the track as Veach did and save himself.

It further appeared that persons going from the city to the mine, were accustomed to pass along appellant’s track at the place in question, but there was nothing to show that appellant had given any one permission to do so. It is plain from a consideration of all the proofs, that appellee’s intestate was not at the time he was injured in the exercise of ordinary care for his own safety.

It is charged in the declaration however, that appellant’s servants wantonly and wilfully ran said locomotive against him. It is not contended by appellee that the engineer and fireman of appellant’s engine intended to run Johnson down but the claim is that their management of the engine was so reckless and grossly negligent as to constitute wilfulness and wantonness on their part.

The engineer was proceeding at a moderate rate of speed, outside of the city limits at a place where no signals were required by law to be given, and the record appears to us to be devoid of evidence tending to show that he was gnilty of such gross negligence, carelessness or recklessness as to amount to wantonness or wilfulness, if indeed it could be properly said that he was guilty of any negligence whatever.

The judgment in this case will be reversed and as in our opinion, the evidence in the case does not tend to prove the charge of wilfulness and wantonness, on the part of appellant, the cause will not be remanded.

Reversed.

Finding of ultimate facts: We find as facts that the deceased, Daniel Johnson, was not at the time he received the injuries, which resulted in his death, in the exercise of ordinary care for his own safety; and we further find, that the servants of appellant were not on said occasion, guilty of gross and wanton negligence in driving and managing, appellant’s locomotive engine and train and in striking said Johnson.