author: Mr. Justice Taylor

text:
    Richard J. Keefe, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 23,853.
    1. Master and servant, § 683

      —when negligence shown in causing injury to engineer due to engine colliding with train buckled on track from adjoining track. In an action by a passenger engineer for personal injuries received when his engine collided with freight cars which were thrown upon the track by the buckling of a freight train on an adjoining track, evidence held sufficient to show negligence on the part of some officer, agent or employee of the carrier, so as to satisfy the requirement of the Federal Employers’ Liability Act, and to prevent the Appellate Court from holding that a verdict for plaintiff was against the weight of evidence.
    2. Master and servant, § 683

      —when shown that freight train was negligently run on main track after extra had entered Mock upon clear signal. In an action by a passenger engineer for injuries received when his engine collided with freight cars which had been thrown on the track by the buckling of an extra freight train on an adjoining track, when it was suddenly stopped because of the unexpected appearance against it of the block signal and of the tail lights of a way freight train immediately ahead, evidence held to justify the jury in finding that the way freight train was not on the main track all the time, as testified to by its crew, but that it was negligently run thereon after the extra had entered the block upon receiving a clear signal.
    3. Master and servant, § 584

      —when doctrine of res ipsa loquitur in modified form applies to collision of engine vMh freight cars. In an action by a passenger engineer for injuries received when his engine collided with freight cars thrown on the track by the buckling of an extra freight train on an adjoining track in making an emergency stop upon the unexpected appearance of the block signal against it, a modified form of the doctrine of res ipsa loquitur held available so that the facts of the wreck in connection with all the circumstances, such as the condition of the signals, the length of the train, its speed, the grade, the sudden discovery of the red signal, and the effort of the engineer of the extra to stop, left the inference of negligence on the part of defendant’s employees, the only reasonable one to be drawn, so that the jury were justified in finding defendant liable, though no defect in the train, road or equipment was shown.

      4. Instructions, § 125

      —when evidence sufficient as basis for. Where the evidence tended to establish the negligence referred to in instructions, to which objections were taken, they were properly given.
    5. Damages, § Ul

      -:-when verdict for personal injuries excessive. Where a passenger engineer, 50 years old, who was in good health and earning $2,396 a year, was so injured that he suffered greatly and his capacity for valuable work was practically destroyed, he being broken down and unfit to do much work, even of a simple character, a verdict for $30,000 was held excessive and reduced to $20,000.
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed January 29, 1919.
    Rehearing denied February 10, 1919.
    J. A. Connell and Thomas J. Lawless, for appellant.
    Thomas J. Symmes and Morse Ives, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

Richard J. Keefe, as plaintiff, brought suit against the defendant for personal injuries and on August 3, 1917, recovered judgment in the sum of $30,000. From that judgment this appeal is taken.

The declaration contains six counts. The first count avers that while the plaintiff, as engineer, was operating a locomotive hauling a passenger train belonging to the defendant, the latter so negligently operated a freight train belonging to it that a certain car near the middle of said freight train was broken and crushed and thrown on the track on which plaintiff was running his train, by reason of which the engine which the plaintiff was operating was thrown from the track and the plaintiff thereby injured.

The second count avers that the defendant negligently caused the speed of said freight train to be so suddenly and abruptly retarded as to break and crush a car in the middle of the freight train, and cause it to be thrown upon the track in front of the engine that was operated by the plaintiff; by reason of which the engine operated by plaintiff was thrown over and the plaintiff thereby injured.

The third count avers that the defendant negligently permitted a certain train of freight cars to block the road at a certain point without sufficient notice to the engineer of the eastbound freight, and that, as a result, the engineer of the latter train was compelled to slacken the speed of his train in such a sudden and violent manner that a car near the middle was broken and thrown over upon the track on which the plaintiff was operating his train, and as a result his engine was thrown over and he was injured.

The fourth count avers that the defendant negligently managed certain freight trains so that the engineer of one, in order to avoid a collision with the other, was compelled to so suddenly and violently slacken the speed of his train that a car was crushed and thrown out upon the track on which the plaintiff was running his engine; the result being that the latter was thrown over and the plaintiff injured.

The fifth count avers that the defendant so negligently managed its signals that the engineer of the eastbound freight received no warning that another freight was ahead of him until he was so close that in order to avoid a collision he was compelled to so suddenly slacken the speed of his train that one of the cars in his train was crushed and thrown out, and the engine operated by plaintiff was thereby thrown over and the plaintiff injured.

The sixth count avers that the wreck occurred by reason of a defective car constituting part of the freight train.

About 6:10 p. m. on September 20,1916, the date of the injury, the plaintiff, an experienced engineer who had been employed by the defendant as such for 24 years, left Chicago as engineer of a passenger train known as the Chicago & Kansas City Limited, bound for Kansas City. He had been hauling that train for 2 months. His run was from Chicago to Galesburg. The train contained 9 cars. The engine was known as the S-l Pacific type. He stopped the train at Canal and 16th Streets for a railroad crossing, and then went on intending to make the next regular stop, which was Aurora. At La Grange there are two stations, Fifth avenue and Stone avenue, the latter being further west. There were three main tracks, the middle track being the westbound track and the one on which the plaintiff was running his train. When he was in the neighborhood of Stone avenue, La Grange, he saw a block signal west of Stone avenue, and from 20 to 25 car lengths east of that signal he saw a train going east, the engine of which was headed east, and after passing Stone avenue and that train he saw another train east of Western Springs, which station is the next station west of La Grange, and that train' was also headed east and was on the track south of the one he was on. When he reached Clyde, which is known as the west end of the freight yards of the Burlington and is just outside of Chicago and about 3 miles east of La Grange, he was 4 minutes late. His train was going about 40 miles an hour. After lie passed the second engine, a distance equal to about 15 or 20 cars, he heard a crashing of cars, and looking-ahead he saw fire flying from the wheels of the freight train—which was on the track just left of him—about 200 or 300 feet ahead. He leaned out of the cab window and then saw a box car come out of the train on the track in front of him. It came out over the south rail of the track his engine was running on. He called out to his fireman and pushed the brake out upon the emergency and set the air brakes, He then grabbed for the throttle, and then the crash came. The engine was thrown over and the engineer burned by escaping steam and otherwise very seriously injured.

The wreck occurred at 6:40 p. m.—after dark— about halfway between La Grange and Western Springs, which towns are about a mile and a half apart. In that vicinity the defendant railroad consists of three main parallel tracks, running in a general easterly and westerly direction, together with two switch tracks which are to the south, the first of which holds about 24 cars, and the other 9 cars. The 24-car switch track leaves the main south track at a point just west of Brainard avenue in La Grange, and south from that 24-car switch track the 9-car switch runs in front of the freight house.

The movement of trains on the railroad of the defendant at the place in question was regulated by a system of automatic signals which were displayed, over each main track, upon a suspended structure called a signal bridge. For use in the daytime the signals were two extended arms, the upper red and the lower green. When both were up, that is, at horizontal, they meant “stop,” and when the green board alone was up it meant “caution”; and when both were halfway down, that is oblique, they meant “clear block. ’ ’ At night, the signal for 11 stop ’ ’ was a red and green light; for “caution” a green light, and for “clear block” a white light: The mechanism which operated the boards or arms, and therefore the lights, was electrical and was set in motion by the wheels of an engine or car passing over what are called insulated joints in the rails located within a few feet of each block—the latter being the extension of track between two signal bridges. Each train set two signals, that first back of it being set at “stop,” that is, at night, red and green lights, and the second back of the train being set at “caution,” that is, at night, a green light. There were two signal bridges about 4,000 feet apart, between Stone avenue on the east and Western Springs on the west. They will be referred to hereafter as the Stone avenue and Western Springs signals. The signals were so arranged that when the block just east of the signal near Stone avenue was actually occupied, that signal would show “stop,” and the signal near Western Springs, being the next west, would show “caution”; that is, after dark, the signal at Western Springs would be green and the next signal east, being the first signal west of Stone avenue, would be red and green.

The freight train, which was the physical cause of the wreck, was known as an extra freight. It was made up on the morning of September 20, 1915, at Galesburg and was fully inspected there and subsequently at Buda and Mendota. It was a long train, consisting of an engine and 84 cars, most of which were loaded with merchandise. It had been running well all the way from Galesburg. There is a down grade all the way east from the Western Springs signal to and beyond Stone avenue. Before reaching Hinsdale, one and six-tenths miles west of Western Springs, the steam had been shut off owing to the down grade, and was not again put on. It passed the Hinsdale tower at 6:35 p. m. Going through Western Springs it was running about 20 miles an hour. The men in charge of the extra freight were Malloy, Conductor, Cratty, engineer, Soloski, fireman, and Waegle and Nelson, brakemen. Malloy stated that after leaving Aurora the greatest speed of the extra freight was from 30 to 35 miles an hour and that at G-regg’s Hill the train was running about 25 miles an hour. Nelson, the head brakeman, testified that just west of Western Springs they were going down hill at about 20 miles an hour. Cratty, the engineer, puts it at 20 miles an hour. Soloski, the fireman, testified that just east of Western Springs they were going from 20 to 25 miles an hour. Waegle testified that the speed was 20 miles an hour up to the time of the wreck.

At 6:16 p. m., from 15 to 20 minutes ahead of the extra freight, there had gone out east from Hinsdale a way freight, of which one Joos was the conductor. The latter, before leaving, had been informed by the train dispatcher at Hinsdale that the extra freight was following him.. That information, according to the train dispatcher, was given him “so that he might be able to govern himself accordingly, * * * to notify him just what to do when he got to Stone avenue, so that he might get into the clear for the same.” The way freight went east through Western Springs and stopped on the south main track east of the Stone avenue signal bridge. Joos, its conductor, then began picking up and setting out cars and unloading merchandise. That was done on the 24-car switch and the 9-car freight house switch. The 24-car switch leads off the main eastbound south track just west of Brainard avenue, and runs west. Joos testified that before the wreck they picked up cars off the 24-car track and off the 9-car track and also put cars back on the 9-car track, and that they-also took some cars off both those tracks and put them on the train; that at the time of the wreck there must have been 9 or 10 cars in his train, all coupled together, standing on the eastbound track west of the switch; that the Stone avenue signal bridge was 7 or 9 cars west of the rear end of his train, and the signal had been at “stop” from the time his engine reached the block until the wreck; that he knew the extra freight was following him; that while his crew were working he saw the headlight of the extra freight show up; that they were ready to leave town; that they had all their work done; that he thinks he said “we pull back in the clear and let the freight clear”; that one Tangney, his rear brakeman, was back of his train 8 or 10 car lengths with the proper signals; that having finished his work he was figuring on getting down in the clear; that his whole train, with the engine attached, was on the main line; that he was under the impression that he had started to back in, evidently meaning off the main line onto the 24-car switch. Moyer, a brakeman on the way freight, testified that the caboose of the way freight stood on the main track 8 or 9 car lengths east of the Stone avenne signal bridge all the time until the wreck occurred. Carr, a brakeman on the way freight, testified that the way car of the way freight and those cars that were going through stood on the main track; that the way car was in the same place all the time; that the first signal back was “danger” and the next “caution” as long as he stood there. Tangney, a brakeman on the way freight, testified that when the way freight arrived at Stone avenue, they left the way car on the main track; that they cut the engine off and went in and loaded merchandise; that the way car stood opposite the depot on the main track all the time; that when the engine was cut off he went back of the way car 12 to 15 car lengths to flag*; that he was east of the signal bridge; that he saw the red and green signals both up; that when the passenger train was passing, his train pulled out and backed in; that the way car •stood there until the passenger train passed; that the way freight did not continue to stand there until the freight train came up behind; that when the passenger train passed they threw the switch and backed in; that when the extra freight came to a stop the caboose of the way freight was backing in; that part of the way freight was on the main track; that the way car was just about at the switch; that he could see the tail lights on the main track!

Cratty, the engineer of the extra freight, when his train, running about 20 to 25 miles an hour, was about 20 car lengths east of Western Springs, put on, according to his testimony, 10 pounds of air, which he testified was customary with him on that train. Whether or not at the time his engine passed the Western Springs signal that signal showed green or white is disputed. The engineer stated that when he reached the block at Western Springs there was not any green bar up and there did not seem to be any green light; that he thinks he would have seen it had it been there; that he knew if there was no green bar up at Western Springs that he would have a clear track for 2 blocks ahead. As to the Stone avenue signal, he stated that he did not notice the signal go up but that when he had just passed the Western Springs signal, about 40 car lengths, he first saw the Stone avenue signal and that it was red and green; that at that time he could see the red lights on the caboose of the way freight but could not tell whether it was on the sidetrack or on the main track in front of him.; that as he approached it he saw a white light which he supposed was that of a brakeman; that it was giving a signal to back in, a back-up signal; that it was a lantern whirling around; whirling around means to hurry; that as soon as he saw the way car ahead of him and saw the tail lights and markers red he made the application of air so as to stop at the Stone avenue signal. The extra freight at that time carried between 65 and 70 pounds of air. Cratty testified, further, that at the time he made the first application of air the passenger engine was east of him; that when the passenger engine passed his engine he was about 30 or 40 ear lengths east of Western Springs signal and was running about 20 to 25 miles an hour, slowing down; that as soon as he saw the way car ahead of him and saw the tail lights and markers red he made a 10-pound application of air so as to stop at Stone avenue signal; that the air went on gradually and the train began to slow down; that it went about 30 or 35 car lengths slowing down; that at the end of 20 car lengths after applying the air he had slowed down to 12 or 15 miles an hour and the train was running smoothly; that when he undertook to put on air a second time, “we got a jar from the hind end”; that he thinks he made the other application. His language is: “I put it on, but that did the whole thing. They gave us a pretty hard jar.” He further testified that after the air went away he could not control the speed of the train; that he let it go on as far as it would and stop; that it went about 4 or 5 car lengths before it stopped; that when the bump came that was the last of his control of the engine; that slacking up might cause a bump; that he supposed the bump was caused by the slack coming up; that he does not know what happened ; that his train traveled about 800 feet after putting on the first application of air before the “bump” came; that he was then about 20 car lengths from the Stone avenue block. He gave it as his opinion that his train, going from 10 to 15 miles an hour, and having the brake shoes on, would have reached a stop west of the Stone avenue block. He also testified that he did not tliink he used sand before coming to a stop and that he did not reverse the engine before the train stopped.

The evidence of Soloski, the fireman on the extra freight, is to the effect that when they passed the Western Springs signal there was no board up and no green light showing; that it was white; that when the first application of air was put on, the engine was about 1,200 or 1,300 feet east of Western Springs signal ; that he thought the application was made because the engineer saw the block ahead and they were going down grade. He further testified that he saw a caboose on the sidetrack with tail lights or markers burning red; that that was just prior to the first application of air. On cross-examination Soloski stated that he did not see the engineer reverse the engine at the time he made the application of air and that he did not know whether the engineer opened the sand valve and that he did not know whether the engineer m making the second application of air put on all the air he had. As a matter of impeachment, there was offered in evidence a signed written statement by him which contains the following: “After leaving Aurora we got dear blocks at all blocks including the block at Western Springs, and when we came to the block at Stone avenue it was against us, or set at ‘stop.’ There was also a caboose on the sidetrack with tail lights or markers turned red. Engineer Cratty applied the air to stop, but, when he saw he was not going to make the stop, he reversed his engine, opened the sand valve to put sand on the rail, and put on all -the air he had on the second application. He went past the block some but I do not know how far.”

Nelson, the brakeman on the extra freight, and who was on the engine standing near the firebox door, testified that as the passenger train went by—at about 30 to 35 car lengths west of the Stone avenue signal— he heard the engineer of the extra freight make an application of air; that he stepped to the gangway but the smoke from the passenger engine obscured his view; that as it cleared away he saw the signal board just west of Stone avenue and “we stopped instantly”.; that he said to the engineer “the way freight is down ahead of us”; that the light on the caboose of the way freight was on the main line; that he saw the signal near Stone avenue go red; that the way freight backed in and he saw the “switch go red” on the sidetrack; that after he stepped to the gangway and saw the light go red and said the freight must be ahead on the track, Cratty applied the air; that when the extra freight stopped it was west of the Stone avenue signal bridge; that the drawbars of some cars west of the engine were shoved in.

The plaintiff testified in regard to statements made by Nelson—which were incorporated in a writing signed by Nelson and offered in evidence but which does not appear to have been preserved in the record —that Nelson stated that the main track switch that leads to the sidetracks was open; that he, Nelson, saw someone giving a signal for the way freight to back up and that the way freight backed into the sidetrack off the main track; and, further, that he did not know how far Engineer Cratty went past the block. Whereas, in his testimony, he claimed that the extra freight stopped short of the Stone avenue signal.

Shortly after Cratty, on the extra freight, made the first application of air, after he had passed the Western Springs signal, one of the cars of his train was crushed out; and then about 20 seconds later after the second shock, which according to Malloy was severe, cars began to go out first on one side and then on the other. The first car that went out on the northerly side went over on the main westbound track and was the physical cause of wrecking the passenger engine which the plaintiff was running. When the extra freight finally stopped, the 27 cars, next to the way car of the extra freight, were on the track. The next 6 cars east were badly smashed up. Beyond them to the east there were 4 cars still on the track and uninjured; following them to the east there were 7 more cars that were badly crushed. The track remained intact save where the 17 cars—being the 13 that were crushed and the 4 intermediate that were uninjured— had been, and there it was tom up. The 41 cars beyond, and up to the engine, were practically uninjured, save that some of the drawbars of those near the engine were shoved in. Nearly all the cars were loaded with either grain, coal or lumber. The evidence'does not show whether the first car that was crashed out was one of the 7 or of the 6. There was 1 empty car among the 7, a “Penn. Car,” which was all smashed up. It had a steel underframe, and according to Malloy did not seem to be a bad car.

The evidence shows that, as far as known, the extra freight was properly made up and had been carefully inspected a number of times as to the condition of the cars, air brakes, etc., and was found to be in first-class condition; also that the tracks and roadbed were in good repair and good working order.

Immediately after the derailment of the passenger engine, the plaintiff was taken out of the wreck' and to a drug store at Western Springs; from there he was taken to a sanitarium at La Grange where his wounds were dressed. Eight days afterwards, on a stretcher, he traveled to Galesburg and was there placed in the hospital, where he remained until some time in March, 1916, when he went home. At the time of the wreck he was burned on the face, ears, right hand, right arm, back and both legs, the right leg from the knee down being very seriously and permanently injured. The evidence shows that at the time of the trial the use of the right leg was almost entirely destroyed; that his health was very much impaired, his nervous system affected and that there were various other injuries which were permanent. At the time of the injury the plaintiff was 50 years old, in good health, and just prior thereto was earning as engineer about $2,396 a year.

At the close of the plaintiff’s evidence, and also at the close of all the evidence, the defendant moved the court to instruct the jury to find the defendant not guilty. Both motions were overruled. The jury returned a verdict finding the defendant guilty and assessed the plaintiff’s damages in the sum of $30,000, and on August 3, 1917, after the motions of the defendant to vacate and set aside the verdict and to grant a new trial had been overruled, the trial court entered judgment on the verdict in favor of the plaintiff and against the defendant in the sum of $30,000. From that judgment this appeal was taken.

The plaintiff’s cause of action is based on the Federal Employers’ Liability Act. Pursuant to that act a defendant is liable in damages to an employee for injuries “resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, * * * or other equipment.” Employers’ Liability Act of April 22, 1908, 35 U. S. Stat. 65. The liability of the defendant, therefore, is dependent upon the negligence of some officer, agent or employee, or upon any defect or insufficiency in its cars, engines, track, or other equipment due to its negligence. Seaboard Air Line Ry. v. Horton, 233 U. S. 492 [8 N. C. C. A. 834]; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 38 Sup. Ct. 535. .

Inasmuch as it is practically admitted that no defect or insufficiency in the ears, track or other railroad equipment was shown, it became necessary for the plaintiff to prove that the injury he suffered was caused in whole or in part by reason of the negligence of some one or more of the employees of the defendant who were in charge of the way freight, of the extra freight, or both.

It is the theory of the plaintiff: First, that when the extra freight passed the Western Springs signal it was white; that Cratty, the engineer, therefore, received no caution; that shortly after passing that signal he saw the Stone avenue signal red and green; that he saw red lights on the caboose on the way freight but could not tell whether the caboose was on the sidetrack or on the main track in front of him; that as soon as he saw the way car ahead of him and saw the red light at the Stone avenue signal, he suddenly found it was necessary to stop before reaching the Stone avenue block; that, under the circumstances, he was impelled to put on air so as to stop before reaching the Stone avenue signal; that he did so, and as a result,- by reason of going down grade and having a heavy train traveling at 20 to 25 miles an hour, his train was wrecked; second, that Joos, the conductor of the way freight, having been informed by the train dispatcher that the extra freight was following him, by keeping his train on the main track, and therefore blocking the movement of the extra freight, was guilty of negligence. On the other hand, it is the theory of the defendant that whether or not the Western Springs signal showed white or green, it was of no importance, inasmuch as, if it had been green, it would only have operated as an admonition to Cratty to have his train under control, and as a matter of fact—according to defendant’s claim—the evidence shows that Cratty had reduced the speed of his train and did have control immediately after passing that signal; that Cratty undertook to stop his train upon seeing the red signal at Stone avenue, and in doing so put on an amount of air which under the circumstances was reasonable and normal; that the breaking of the train and the throwing out of the cars onto the westbound track and precipitating the wreck and causing the injury to the plaintiff took place without any dereliction of duty and without any evidence of defect or insufficiency in the engine and cars of the extra freight.

The distance between Western Springs and Stone avenue signals was about 4,000 feet, or the equivalent of 100 ear lengths; the extra freight, being composed of 84 cars together with the engine, was approximately 3,400 feet long.

The following facts, some of which are in dispute, are important: (1) The signals at Western Springs. (2) The signals at Stone avenue. (3) The speed of the extra through Western Springs and at the time the air was first applied. (4) The point arrived at after passing the Western Springs signals when the air was first applied. (5) The application of air. (6) The place where the engine of the extra was when the train finally stopped. (7) The effect of taking up the slack in the train after putting on the air. (8) The movements of the way freight.

(1) As to the signals at Western Springs: Nelson, the brakeman on the extra freight, being on the engine at the time the extra went through Western Springs, stated that he did not notice whether the the green board was up or not. Soloski, who was fireman on the extra, testified positively that the signal at Western Springs was white with no boards up. Cratty, the engineer who, as may be assumed, was doing his duty and knowing his responsibility in controlling the running of a train of such size, was on the lookout, testified that when the extra reached the signal at Western Springs there was no green bar up; that if there had been he thinks he could have seen it; that he knew how the signals worked and that as there was no green bar up at Western Springs he knew that the two blocks ahead were both unoccupied.

(2) As to the signals at Stone avenue: Cratty testified that he did not see them go up but that just after he had passed the Western Springs signal he saw them and they were red and green; that also he saw the red lights on the way freight caboose but did not know if the way freight was on the main or the sidetrack. Soloski testified that after the extra passed the Western Springs signal about 1,200 or 1,300 feet, he saw the Stone avenue signal was red. Nelson was on the engine of the extra and testified that ‘ ‘ after the smoke that obscured us, obscured our view, had passed away” that he saw the light go red and said to the engineer that the way freight must be down ahead on the'track. Nelson further testified “as the smoke cleared away I saw the board signal. We stopped instantly. ’ ’

(3) As to the speed of the extra through Western Springs and until it stopped: According to Cratty, when going through Western Springs the speed of the train was from 20 to 25 miles an hour. Malloy puts it at 22 miles. Nelson and Waegle at 20. The evidence justifies the conclusion that when Cratty first put on the air the extra was traveling between 20 and 25 miles an hour.

(4) As to the point arrived at after passing the Western Springs signals when the air was first applied: The evidence is somewhat confusing as to just what point between the Western Springs and Stone avenue signals the engine of the extra freight had reached when the air was first applied. Cratty, the engineer, says that 55 was east of him, not a great ways; that he was at least 30, perhaps 40, car lengths east of the Western Springs signal—though in one place he put it at 20; that he went 25 car lengths after putting it on. Nelson says that there was an application of air at or just after the extra passed the Western Springs signal; that as 55 went by he heard Cratty put on the air, and Keefe says he passed the extra when he was about halfway between the two signals. Malloy says that the air was put on when the way car of the extra freight was about 40 car lengths west of Western Springs, so that the engine must then have been 44 or 45 car lengths east of the Western Springs signal. Waegle does not state where the train was at that time.

(5) As to the application of air: Cratty testified that he put on 10 pounds and was doubtful about a second application. Malloy, who was in the cupola of the caboose at the rear of the extra, testified that there were three applications and that the first was about 15 pounds; that 20 seconds later there was a second application and then a third. Nelson, who was on the engine, testified that there were two applications.

(6) As to the place where the engine of the extra was when it came to a stop. Cratty puts it at 20 car lengths west- of Stone avenue signal: Moyer, the brakeman, from 20 to 25 car lengths west of Stone avenue. Malloy says that when the wreck occurred the way car was 10 ear lengths west of Western Springs depot. Joos places it at from 15 to 20 car lengths west of the Stone avenue signal. Nelson, according to his testimony stated that it was short of the Stone avenue signal, but he was impeached on that subject as il was shown that he had stated at a prior time to that of giving his testimony that the extra freight went past the Stone avenue signal.

(7) As to the slack and its relation to the wreck: Waegle, the brakeman on the extra, testified that between the cars there is always some inches of play in the movement of the drawbar; that with 84 cars it would be considerable. Malloy testified that the first shock caused the wreck; that the other shocks came from the cars being mashed np and then the different parts of the train going together again. Cratty testified that when he went to make the second application of air, his train having gone from 20 to 25 car lengths after the first application—he fixes it at from 30 to 35 car lengths in another part of his testimony—and having slowed down from 25 to 12 or 15 miles an hour, “we got a jar from the hind end.” That he supposed “it was the slack coming up” which did it; that after the “bump” his engine went 4 or 5 car lengths and then stopped.

(8) As to movements of the way freight: Joos stated that he had been east of the Stone avenue signal about 15 minutes, picking up and setting out cars and unloading merchandise; that originally, and at the time of the wreck, there were 9 or 10 cars in his train; that at the time of the wreck they were all coupled together, standing on the eastbound track west of the switch at Brainard avenue; that the signal at Stone avenue was at “stop” all the time after his train reached that block; that, when he saw the headlight of the extra freight, his work was done and he was ready to leave; that he was under the impression he had started to back in. Moyer, that the way freight caboose was on the main track all the time and the Stone avenue signal set at “stop.” Carr and Tangney, also, say that the caboose stood on the main track all the time. Tangney further stated that he saw both boards up at the Stone avenue signal; that when the engine of the extra came to a stop, the way freight was backing in, part of it being on the main track and part of it on the switch track.

In analyzing the evidence, the striking circumstance, of course, is what the two signals did actually show. And, as to that, we are of the opinion that the jury were well justified in believing that Cratty, the engineer of the extra, got into the block where the wreck occurred under what might be called false representations. Seeing that the signal at Western Springs was neither green nor red—and such the evidence sufficiently proves—he was entitled to assume that immediately east of the Western Springs signal there were two clear blocks. The train he was handling being three-quarters of a mile long and traveling through Western Springs from 20 to 25 miles an hour, and going down grade, was not very easily controlled or stopped, and what the signals showed at Western Springs was of vital importance to him. When, therefore, after he passed the Western Springs signal, about 40 car lengths, and suddenly saw the Stone avenue signal set at red and then knew, and for the first time, that, as a matter of safety, he must stop in that very block, of course he put on air. He says he put on 10 pounds, a normal amount. Malloy says 15 pounds. But, whatever it was, we feel bound to infer, as a matter of common sense, that it in all probability resulted in breaking the train and precipitating the wreck.

The fact that while the Western Springs signal showed white, the engine of the extra freight passed it, and while in that block the Stone avenue signal showed red, tends to prove that some employees of the defendant were negligent; and further, tends strongly to persuade the mind that in all probability the engineer, being without prior warning and suddenly confronted with imminent danger, put on air in such a way as to stop quickly, and, in so doing, broke the train. Such evidence does not, of course, conclusively prove that putting on air as he did broke the train, but, considering what the physical circumstances themselves speak, which is a rightful use of a modified form of the doctrine of res ipsa loquitur, also, the speed and size of the train and that it was going down grade, together with the evidence in regard to the signals, all taken together, we are of the opinion that there was sufficient evidence, involving negligence, both to fulfil the requirements of the Federal Employees’ Liability Act and, further, sufficient evidence to prevent us from holding that the verdict of the jury was clearly against the weight of the evidence. The evidence showed a condition so abnormal, so fraught with unnecessary danger, as to admit of no other reasonable inference but that of negligence. And what answer does the defendant make? Merely that the signals, track, extra freight and equipment were in good order; that part of the way freight was, all the time, on the main east track; and that Cratty on the extra freight only put on a normal amount of air. But all that does not refute the evidence of Cratty and Soloski that the extra freight was caught in a trap and, unexpectedly, had to be quickly stopped. Nelson said, “as the smoke cleared away I saw the board signal. We stopped instantly.” Counsel for the defendant urge that the signal at Western Springs was of no importance because they say Cratty had his train under control. We do not think, however, that the evidence justifies the conclusion that he had his train under control.

Cratty and Malloy both say, substantially, that the air was first applied when the extra was 40 car lengths east of Western Springs signal, which would leave only about 60 car lengths between the engine of the extra and the Stone avenue signal. There was a train composed of an engine and 84 freight cars, most of the latter loaded, going down grade at not less, probably more—Cratty himself puts it in one place at 25 miles an hour—than 20 miles an hour, and when within 60 car lengths of the Stone avenue signal the engineer for the first time sees that it is red, is informed that there is danger ahead and he must stop.

Further, considering on one hand the evidence of the defendant’s witnesses, Cratty and Soloski, that the signal at Western Springs showed white, and on the other hand, the evidence of the witnesses as to the way freight being in whole or in part on the main east track all the time, which would have made the Western Springs signal show green, and having in mind the discrepancies in the testimony of the different witnesses as to the position and movements of the way freight, and bearing in mind also the testimony of Cratty and Soloski and Nelson as to the Stone avenue signal going red, it may well be that the jury came to the conclusion that, at the time the extra freight came up and passed Western Springs signal, the way freight had gone in off the main track and that shortly after-wards—for Joos said that the way freight was ready to leave, that they had all their work done—when the engine of the extra freight had gone some distance past the Western Springs signal, the way freight went out on the main track and set the Stone avenue signal red, making it necessary for Cratty, without any prior caution or warning, to undertake to stop his train somewhat suddenly, and that in so doing, considering the speed at which his long, heavy train was going down hill, he put on, under the circumstances, an unusual amount of air and so broke his train and precipitated the wreck.

Bearing in mind that Cratty was entitled to conclude, when he saw no red or green signal at the Western Springs bridge, that he had a clear track for two blocks, he must have been suddenly surprised after traveling some distance in the block between Western Springs and Stone avenue to see the Stone avenue signal “red”; and if we assume—as we are entitled to from the evidence—that the automatic signals were in good working order, we are bound then to infer that the Stone avenue signal became red after Cratty had passed the Western Springs signal, and became red as the result of some movement of the way freight which took place after Cratty passed the Western Springs signal; and although Cratty did not know until he saw the tail lights of the way freight that it was ahead of him, Joos, the conductor of the way freight, who was switching east of the Stone avenue signal, knew from the time he left Hinsdale that the extra freight was following and only a few minutes behind him. It is true that many of the witnesses say that the way ear of the way freight, or some part of the way freight, remained on the main track from the time the way freight passed east of the Stone avenue signal, but in view of the fact testified to by Cratty, that there was' no green bar up or green light at the Western Springs bridge, and that of Soloski, that there were no boards up and that the signal was white, the jury may have given credit to the latter testimony in preference to that concerning the way freight remaining on the main track; and, if they did, they were justified in concluding that some part of the way freight went out on the main track east of the Stone avenue bridge after Cratty on the extra freight had passed the Western Springs signal, and that the defendant was guilty of negligence.

As to the operation of the doctrine of res ipsa loquitur, there seems to be no doubt but that the principle therein involved may be considered here available for what under the circumstances it is worth. As said in Southern Ry. Co. v. Derr, 240 Fed. 73: “When we concede that the maxim may apply to such an action, it by no means follows that it does apply to the same extent and with the same force as in a passenger action. * * * We think we give the plaintiff in an employee’s case all the benefit of the maxim to which he is entitled when we say that it may apply to aid him; but whether the event does speak, and what it says, depend upon the facts of the particular case.” The wreck itself does not necessarily imply negligence, but the facts of the wreck considered in conjunction with all the circumstances of the case, such as the condition of the signals at Western Springs and at Stone avenue, the length of the train, the grade, the speed of the train, the sudden discovery of the red signal at Stone avenue, and the effort of the engineer of the extra freight to stop, are all to be taken together. And as the only reasonable inference therefrom is that of negligence, we are of the opinion that the jury were warranted in finding the defendant liable.

In view of the foregoing, we do not deem it necessary to discuss the conduct of Joos in the management of the way freight, as to whether, using ordinary care, and knowing as he did that the extra freight was only about 15 or 16 minutes behind him, he was justified in holding, as he claims he did, the main east track.

As to the contention of counsel that instructions numbers 15 and 16 were objectionable, inasmuch as we are of the opinion that the evidence did tend to show the negligence referred to in each of those instructions, it follows that they were properly given.

As to the contention that the verdict was excessive; the plaintiff was 50 years old, in good health just prior to the injury and earned for his last year’s work, as engineer, $2,396. The mass of evidence concerning his injuries need not be analyzed here, especially as this opinion is already too voluminous. The plaintiff’s capacity for any valuable kind of service is not only greatly impaired but practically destroyed. He is evidently broken down and unfit to do much work, even of a simple character. His suffering has been very great. However, after considering the matter carefully, we are of the opinion that the verdict is excessive. Under the circumstances, for the plaintiff’s pain and suffering and also as a fair recompense for the loss of what he would otherwise have earned in his occupation and has been deprived of the capacity of earning by the wrongful act of the defendant, it is our judgment that $20,000 is a reasonable sum. Provided, therefore, that the plaintiff files a remittitur of all the judgment above the sum of $20,000 within 15 days of the filing of this opinion, the judgment of the Circuit Court will be affirmed; otherwise it will be reversed and the cause remanded for a new trial.

Affirmed on remittitur; otherwise reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    Rose L. Abraham, Appellee, v. Christian L. Ibsen, Appellant.
    Gen. No. 24,155.
    1. Animals, $ 43

      —when shown that dog was roaming at targe in violation of ordinance. In an action for injuries suffered by plaintiff as a result of being bitten- by a dog, evidence that the dog had been taken out on the street -without a muzzle and had attacked plaintiff as she was about to enter her home, held to establish that the dog was roaming at large, on a street or other public place, within the meaning of an ordinance of the City of Chicago.
    2. Animals, § 43

      —when shown that dog was taken out of house with permission. That defendant knew a dog was being kept in his house by his son, and that it necessarily would have to be taken out by the son, sufficiently established that the dog was out with defendant’s permission, though he testified that he did not know that the son had taken the dog out upon the occasion in question.
    3. Animals, § 43

      —when finding proper that owner of premises is keeper of dog of another. While the mere fact that a dog is kept by its owner on the premises of another with his knowledge, acquiescence or permission does not of itself make the owner of the premises liable as such, it is also true that a dog may be upon the premises of another under such circumstances that a jury would be warranted in finding that the owner of the premises was its keeper.
    4. Animals, § 47

      —when question for jury whether owner of premises is keeper of dog of another. Where defendant’s son brought to the home of defendant a bull dog belonging to his college fraternity and it had remained there with defendant’s knowledge, and after it had inflicted the injury complained of defendant had arranged for medical care for plaintiff and had twice interfered to prevent the dog being taken away by the police, the material facts being undisputed but some of the facts with the inferences therefrom being in controversy, the trial court properly submitted to the jury the issue as to whether defendant was the keeper of the dog.
    5. Animals, § 14

      —what is immaterial upon question of liability of owner of premises for injuries by dog kept on premises. The facts that defendant did not affirmatively consent to the presence of a dog in his house but merely acquiesced in it, and that the dog had been brought there only the day previous to the occurrence involved, were immaterial upon the question of his liability as the keeper of the dog, due to its biting plaintiff.
    Taylob, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Oscab Hebel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed January 29, 1919.
    Fred H. Atwood, Charles O. Loucks and Vernon R. Loucks, for appellant.
    Jacob Levy, for appellee; Josiah Burnham, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same toplp and section number.

   Mr. Justice Thomson

delivered the opinion of the court.

This was an action for damages for injuries suffered by the plaintiff as the result of being bitten by a dog which the plaintiff alleges was being kept by the defendant and which had been permitted to roam at large on the street without a muzzle. The jury found the issues for the plaintiff and assessed her damages at the sum of $750. From a judgment for that amount, the defendant has appealed.

In addition to their general verdict, the jury returned four special findings, submitted at the request of the defendant, to the following effect:

Was the dog running at large with the permission of the defendant? Yes.

Was the dog on a street, alley or other public place? Yes.

Was the dog at or immediately before the time of the accident, running at large? Yes.

Was the defendant the owner or keeper of the dog? Yes.

It is appellant’s contention that the verdict is contrary to. the evidence and that the trial court erred in refusing to instruct the jury to find the defendant not guilty.

There is no material conflict in the evidence as to the facts involved. The plaintiff lived in an apartment building, the entrance to which was within a few feet of the sidewalk. On the evening in question, as she was about to enter the building and was on the steps leading to the outer doorway, with a pet poodle in her arms, she was attacked by a bull dog and severely bitten on both arms. The bull dog was pulled off by defendant’s son who appeared just after the dog had attacked the plaintiff. The defendant’s home was located a few doors away. His son had returned from Ann Arbor, Michigan, on the previous day bringing this dog with him. It was owned by the college fraternity of which he was a member at Ann Arbor. The dog had remained at defendant’s home, with his knowledge, and, on the occasion in question, the son had taken the dog out without a muzzle. After the occurrence referred to, the defendant had a conversation with the doctor who had. been called to attend the plaintiff and told him to take care of her and he would pay the bill. Immediately after the occurrence, plaintiff’s father called a policeman and accompanied him to the defendant’s home. The policeman was going to take the dog to the police station but defendant requested him to leave the dog at his home over night, which was done. On the following day, the policeman and plaintiff’s father again went to defendant’s home and defendant requested that the dog be left there that day, but plaintiff’s father objected and the defendant and his son removed the dog to a veterinary hospital, where it remained for some time, and was never returned to the defendant’s premises.

The counts of the declaration on which the judgment is based alleged the existence of an ordinance of the City of Chicago, providing that “No person shall cause or permit any dog owned or kept by him to roam at large on any street, alley or other public place within the city, at any time, unless such dog shall be securely muzzled so as to effectually prevent it from biting any person or animal,” and such ordinance was properly proven.

In our opinion, the evidence establishes that the bull dog, upon the occasion in question, was roaming at large, on a street or other public place, within the meaning of the ordinance. Although the defendant testified that he did not know that his son had taken the dog out, upon the occasion in question, he admitted he knew that the dog was in his house, that necessarily it would have to be taken out and that his son would be the one who would take it out, which sufficiently establishes that the dog was out with the defendant’s permission. That he was without a muzzle is admitted. That he was “at large,” though accompanied by defendant’s son, is sufficiently established by the fact that he made a vicious attack upon the plaintiff. Counsel for defendant have urged upon our attention a number of authorities, which they contend, require us to hold the contrary. They are not in point. They are to the general effect that an animal is not “at large” if it is under the control of a person having the right of control, or if it has escaped from an inclosure without the owner’s knowledge or fault. The latter point is not involved here at all, and the evidence shows that the dog was not within the control of anybody having the right of control. But a more serious question is, was the bull dog owned or kept by the defendant? Of course he did not own it. Can it be said that the evidence establishes that the dog was being “kept” by the defendant?

In contending for the negative of that proposition, counsel for the defendant has called our attention to McCosker v. Weatherbee, 100 Me. 25; Collingill v. City of Haverhill, 128 Mass. 218; Boylan v. Everett, 172 Mass. 453, citing Whittemore v. Thomas, 153 Mass. 347, and Muller v. Shufeldt, 114 N. Y. Supp. 1012.

In McCosker v. Weatherbee, supra, the defendant was sued as the keeper of a dog, by which plaintiff had been bitten. The dog in question was. kept at the defendant’s stable and was about the premises more or less. It was owned by defendant’s son, who was 33 years of age. The defendant both forbade and prevented the dog’s presence in the house. The son had care, custody and control of the dog and, whenever absent from home, employed the hostler to take charge of him. The court held that inasmuch as the defendant was shown not to have the care, custody and control of the dog, he could not be charged as keeper, and a directed verdict for the defendant was upheld.

In Collingill v. City of Haverhill, supra, the plaintiff was bitten by a dog owned by and licensed in the name of the superintendent of the poor farm of the defendant city. It was kept at the farm with the knowledge of, and "without objection by, one of the overseers of the poor of the city, and was allowed the run of the farm. The court held that the defendant was not liable as the keeper of the dog, it not having been shown that it was given the run of the farm for the benefit of or in the interest of the defendant.

Boylan v. Everett, supra, was an action in tort for injuries caused by the bite of a dog, which plaintiff alleged was kept by the defendant. The evidence showed that the defendant was a widow and was the owner of the premises in question. Her nephew, who was over 21" years of age, boarded and lived with her and he was the owner of the dog and kept him on defendant’s premises with the latter’s consent, and she testified that she fed and caressed the dog, called it in and sent it out, and that it was treated the same as anybody would treat a dog which they had in their home, and that she took care of it when her nephew was away. There was a verdict for the defendant from which the plaintiff appealed, contending that, on the facts presented, the court should have ruled, as a matter of law, that the defendant was liable as the keeper of the dog, bait the court held that, while the facts testified to were evidence of keepership, they were not conclusive and the judgment was affirmed.

In Whittemore v. Thomas, supra, the dog in question belonged to one Rogers, who was an employee of the defendant, and lived with him on his farm. Rogers bought the dog and brought it to the farm and kept it there without any permission from the defendant other than mere acquiescence. The dog had the run of the farm, including defendant’s house. The defendant testified that he never exercised any control over the dog and had nothing to do with it in any way. The trial court held that the defendant was the keeper of the dog and directed a verdict for the plaintiff, leaving only the question of damages to the jury. The court, on appeal, held that no doubt a dog may be upon the premises of another under such circumstances that a jury would be warranted in finding that the owner of such premises was the keeper of it, citing Barrett v. Malden & M. R. Co., 3 Allen (Mass.) 101. The court further pointed out that there was no direct testimony that the dog was on the premises in question “for the benefit or in the interest of the defendant,” although the jury might have so inferred from the testimony. The court said they could not say that the jury would not have found that the defendant was not the keeper of the dog, and that the trial court had erred in not leaving the issue of liability to the jury on all the facts in evidence. Under an agreement of the parties that, if the trial court was not upheld, judgment was to be for the defendant, the court, on appeal, entered that judgment, although the court expressed the “fear that this agreement does not sufficiently protect the plaintiff’s rights,” thus intimating that the verdict of a jury for the plaintiff, on the facts presented, would have been upheld.

In Muller v, Shufeldt, supra, the dog in question was owned by a son of the defendants, who were Mr. and Mrs. Shufeldt. The premises where the family lived were owned by the mother and the dog was kept in the family. The plaintiff recovered and the defendants appealed. It was held that the father was not liable as the ownership of the premises in question was in his wife and not in him, and scienter was not proven as to him, citing Quilty v. Battie, 135 N. Y. 201, a similar case where it was held that the wife was liable, because it was shown she kept and harbored the dog, knowing it was vicious, and a judgment against the husband, based on his marital liability for the acts of his wife, was error as it was not shown that he knew of the vicious propensities of the dog.

None of these cases can be said to be authority for the proposition that, on all the facts in evidence in the case at bar, it should be held, as a matter of law, that the defendant was not the keeper of the dog here involved, although none of the material facts seem to be in dispute.

Other cases in which the courts of this country have had occasion to pass upon the question here under consideration are the following:

In Bundschuh v. Mayer, 81 Hun (N. Y.) 111, the plaintiff sued to recover damages for injuries resulting from an attack by dogs, alleging they were kept by the defendant. The defendant was a householder, occupying, with his family, premises belonging to his wife. He was a milkman and kept horses and wagons and cows on the premises and also the dogs in question. -He testified that he did not own the premises or the dogs. The court distinguished the case from Quilty v. Battie, supra, cited and followed in Muller v. Shufeldt, supra, where a husband was sought to be held liable on the ground of his marital liability for the torts of his wife and held that the evidence established that the dogs were kept and harbored by the defendant, and the court affirmed the judgment against him, saying: ‘4 The cardinal facts which determine his liability are that he was the head of the household ; that as such he occupied the premises; that he supported his family, and with them the dogs which were kept on the place. They were, as to the public, his dogs, and they were unquestionably kept and harbored by him.”

The case of Cummings v. Riley, 52 N. H. 368, called for construction of the term “keeper of a dog,” as used in a statute under which the action was brought, and which authorized a recovery, from the owner or keeper of a dog, of double damages for an injury inflicted by such dog. The dog was owned by defendant’s son. As to what would constitute one the keeper of a dog, the trial court, among other things, told the jury that if the head of a family, having the possession and control of a house or premises, suffer or permit a dog to be kept on the premises, in the way such domestic animals are usually kept as a member of the family, so to speak (in so far as the house dog may be termed a member of one’s family) such head of a family may be regarded the keeper of the dog, within the meaning of the statute. The defendant appealed from a judgment for the plaintiff, contending that the dog was the property of his son and was not owned or kept by him but was only harbored and suffered to remain on his premises; that if he is held liable, then every person who keeps boarders for pay, and suffers or permits such boarders to have or keep a dog on his premises, is a keeper of such dog. But the court held that, under the instruction given, one could not be held liable who harbors a dog and permits it to remain temporarily upon his premises, in the manner the defendant had suggested. The court said further that they did not understand the language of the trial court as furnishing or that it was intended to furnish a legal definition of the term “keeper of a dog,” but merely as furnishing an illustration which should assist the jury in their duty of deciding, as a question of fact, whether, under all the circumstances of the case, the defendant was in reality the keeper of the dog; that the instruction was extremely favorable to defendant and that the verdict of the jury was conclusive of the fact that the defendant was, in the strictest and most unequivocal sense, the keeper of the dog. The court further said that it was “immaterial whether the defendant’s son was a minor or not, and whether he was the owner of the dog or not. The defendant was the head of the family in which the dog was kept. He had absolute control of the premises, and he had the power to expel the dog and its owner; instead of which he suffered-the dog to remain, as a member of his family. ’ ’

' In Jenkinson v. Coggins, 123 Mich. 7, a woman who owned the house in which she lived, and who exercised absolute control over it and over all the property connected with it, was held to be the keeper of a dog belonging to an adult son who lived with her.

In Plummer v. Ricker, 71 Vt. 114, the dog in question belonged to the defendant’s minor son. The trial court told the jury that if the son was stopping at the defendant’s house and the defendant permitted bim to have the dog there, and permitted the dog to make that place his home and to be, as much as a dog can, a member of his, the defendant’s, family, then the dog would not be there casually and that the duty would rest upon the defendant to see that while he was thus there he was properly restrained, if he knew that he was accustomed to bite persons, and that under the circumstances named, the defendant would be, within the meaning of the law, the keeper of the dog. What the court says in that case seems to us to be applicable to the facts here involved, although the element of sci-enter was necessary to be shown, under the issues made in the case cited, but is not involved in the case at bar.

In Jacobsmeyer v. Poggeweller, 47 Mo. App. 560, it was held that if a person harbors a dog, or permits his servant to keep such an animal on his premises, this will constitute such person a keeper of the animal within the meaning of the law.

Buswell, in his work on Personal Injuries, sec. 128, says: “Generally, if one permits his servants or agents to keep an animal upon his premises, he will himself be responsible as a keeper of such animal; and if he knows that it is so kept, his assent to the keeping will be implied.” In Bay on Negligence of Imposed Duties, at page 621, the author says: “If a person harbors a dog accustomed to bite, or allows it to frequent his premises, he is liable under the same conditions as if he were the owner.”

In Barrett v. Malden & M. R. Co., supra, a'verdict for damages, incurred by the bite of a dog kept by servants of the defendant, was sustained, under a statute rendering the keeper as well as the owner of a dog liable to any person injured by him.

In Chicago & A. R. Co. v. Kuckkuck, 98 Ill. App. 252, the authorities last referred to, were cited with approval, and are applicable here, although in that case the issue was one of common-law liability. Shearman & Redfield on Negligence (6th Ed.), sec. 635, p. 1671, is to the same effect.

While it is true that the mere fact that a dog is kept by its owner on the premises of another with the knowledge, or acquiescence or permission of the owner of such premises, does not of itself make the owner of said premises the keeper of the dog and liable as such, it is also true that a dog may be upon the premises of another under such circumstances that a jury would be warranted in finding that the owner of such premises was the keeper of it. While the material facts were undisputed in the case at bar, some of the facts in evidence, with the inferences to be drawn therefrom, were in controversy and we think the issues were properly submitted to the jury, and under the authorities we have referred to rather fully (as the exact issue involved seems not to have been passed upon in this State), we are of the opinion that the trial court properly overruled defendant’s motion to instruct the jury to find him not guilty.

The fact that the defendant did not affirmatively consent to the presence of the dog, but merely acquiesced in it, and that the dog had been brought home only the day previous to the occurrence here involved, is quite immaterial.

For the reasons stated the judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice Taylor dissents.


author: Mr. Presiding Justice McDonald

text:
    Decatur Creamery Company, Appellant, v. The West Side Trust and Savings Bank, Appellee.
    Gen. No. 24,092.
    Banks and banking, § 85

      —when special deposit created which is binding on bank. A special deposit, with directions to apply same in payment of two checks, is created, which the bank, in accepting, is in duty bound to obey, where, upon presentation of such checks and discovery of insufficient funds to pay both, it is expressly agreed between the bank and depositor that if she will deposit a sufficient amount to meet said checks before one o’clock of the day of presentation the balance then on deposit, together with the additional deposit, will be applied to pay such check's, and such special deposit includes not only the amount deposited pursuant to the agreement on such day, but also the balance already on deposit.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and judgment here.
    Opinion filed February 11, 1919.
    Rehearing denied February 26, 1919.

      Benjamin F. J. Odell, for appellant.
    M. W. Borders and Norman Gr. Collins, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to reverse a judgment in favor of defendant, the West Side Trust and Savings Bank, in an action brought against it for its failure to pay certain checks in favor of plaintiff.

Plaintiff operated a creamery at Decatur, Michigan. One Mrs. H. Rosenthal, a Chicago commission merchant, doing business under the style of H. Rosenthal Commission Merchant, purchased goods from plaintiff, and in payment thereof gave her checks drawn on the defendant hank.

On the morning of May 11, 1917, two checks drawn by the said Mrs. Rosenthal in favor of plaintiff—one for $824.56 and the other for $887.03—were presented to the defendant bank for payment, through the clearing house. At this time the said Mrs. Rosenthal had on deposit in the defendant bank only $902.94. The defendant bank immediately communicated with the said Mrs. Rosenthal and informed her that she had insufficient funds on deposit to meet the two checks in question and stated that they would hold the said checks until one o ’clock p. m. that day to afford her an opportunity to deposit sufficient funds to meet them. Accordingly she, through her agent, agreed to make the required deposit, and before the hour designated did deposit the sum of $1,052.89, which amount, together with the said balance of $902.94 already on deposit, was ample to enable the defendant to pay the two said checks in favor of plaintiff.

On the day in question, the said Mrs. Rosenthal was indebted to the defendant bank in the sum of $5,000, which said indebtedness was evidenced by her three promissory notes, none of which had at that time matured.

Immediately after the aforesaid deposit of $1,052.89 was made, the defendant applied same, together with the $902.94 already on deposit, on her said notes, and refused to honor the said two checks in favor of plaintiff, which then went to protest.

Plaintiff’s statement of claim consisted of the common counts and two special counts, the second of which was in part as follows: “That defendant though well knowing that said money was placed on deposit for the sole purpose of paying said checks, wrongfully appropriated said moneys of its depositor and refused to honor plaintiff’s checks, and which checks were then and there protested for nonpayment and returned to plaintiff,” etc.

Our Negotiable Instruments Act (J. & A. 7828) provides that a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies it in writing. The checks in question had not been so accepted or certified by the defendant bank, and, because of this fact, the court found for the defendant.

Without detailing the evidence, we deem it sufficient to say that it clearly shows that when the two checks in question were presented to the defendant bank and it was discovered that Mrs. Rosenthal had insufficient funds on deposit to meet them, it was expressly agreed between the bank and Mrs. Rosenthal that if she would deposit a sufficient amount to meet the said checks before one o’clock that day, the balance then on deposit, together with such additional deposit, would be applied in payment of them. This is substantially in accord with the finding of facts made by the trial court.

This, therefore, constituted a special deposit with directions to apply same in payment of the checks in question, which the bank, in accepting same, was in duty bound to obey. Morse on Banks and Banking (5th Ed.), sec. 208, vol. 1, p. 439; Eshbach v. Byers, 164 Ill. App. 449; Marsh v. First State Bank & Trust Co. of Canton, 185 Ill. App. 29, in each of which cases the Supreme Court denied a certiorari. And what we have just stated applies with equal force to the balance of $902.94 already on deposit when the said two checks were presented to defendant for payment, for the defendant by its express agreement made that a special deposit for a like purpose also. Clearly, therefore, under the evidence in this case, defendant had no legal right to appropriate the said fund in part payment of Mrs. Rosenthal’s indebtedness, irrespective of the question whether such indebtedness was then due or not.

Accordingly, the judgment of the Municipal Court will be reversed and judgment entered here for $1,891.30, this being the amount of the two said checks, with interest at the rate of 6 per cent from the date of presentation for payment to the date of the filing of this opinion.

Reversed cmd judgment here.


text:
    Franklin Marling, Appellee, v. H. M. Allison, Appellant
    Gen. No. 24,157.
    1. Landlord and tenant—when duty of landlord to relet vacated premises in order to minimize. A landlord is under the duty to use reasonable diligence to relet an apartment in order to minimize the damages of the lessee, where the latter fails to give notice of his intention to vacate the premises prior to 60 days before the expiration of his term and the lease is thus automatically extended for a like term, pursuant to the terms of the lease, but, after notice by the tenant within the 60-day period, of his intention to vacate at the end of the term and before actual vacation of the premises, the landlord re-enters the premises and posts a sign indicating that the apartment is for rent.
    2. Landlord and tenant—when evidence as to landlord’s refusal to relet premises erroneously excluded. In an action by a landlord against a tenant to recover for rent for the portion of a second term that an apartment was unoccupied, after breach by the tenant of provisions of the lease making him liable for rent for the second term, due to failure to give timely notice of intention to vacate before the expiration of the first term, evidence that the landlord re-entered the apartment for the purpose of re-letting it before actual abandonment by the tenant, but after latter’s declaration of intention to vacate at expiration of the term, and that thereafter the landlord refused to rent the premises for a lesser sum to suitable prospective tenants, was erroneously excluded.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed February 11, 1919.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Winters, Price & Stevens and J. C. Bisk, for appellee; George M. Stevens, of counsel.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.

This is an action for rent alleged to be due under a lease on a certain apartment located in the City of Chicago. The court directed a verdict for the plaintiff, Franklin Marling, for the sum of $285, and from the judgment entered thereon this appeal has been prosecuted.

By the terms of the lease in question, plaintiff demised said apartment to the defendant for a term of one year from May 1, 1916, at an annual rental of $1,140, payable in monthly instalments of $95 each. Said lease also contained a provision requiring the lessee to give the lessor written notice of his intention to vacate the premises 60 days prior to the expiration of the term, in the absence of which it would be automatically renewed for a further period of one year, at the option of the lessor.

On March 12, 1917, defendant notified plaintiff in writing that he would vacate the said apartment on April 30, 1917. This notice having been given less than 60 days prior to the expiration of the term, plaintiff upon receipt thereof informed defendant that he would hold him for another year’s rent, in strict conformity with the terms of the lease.

Defendant vacated the said apartment on April 30, 1917.

The judgment appealed from is for rent accruing for the months of May, June and July, 1917.

It appeared from the testimony of one Both, a witness called on behalf of the defendant, that he saw a “for rent” sign in the apartment in question bearing the name of W. K. Young & Bro., plaintiff’s renting agents; that thereupon he called at the office of the said agents and had a conversation with one Marsh, manager thereof, regarding the apartment in question; that this conversation took place during the latter part of March or the first week in April, 1917; that he inquired of said Marsh about the renting of the said apartment and informed him that he wo>uld be willing to pay $85 per month therefor; that at Ms request the said Marsh called plaintiff on the telephone and informed him that he had a desirable and suitable tenant for the said apartment, who would take it for one year from May 1, 1917, at a monthly rental of $85; that at the conclusion of said telephone conversation the said Marsh informed the witness that it could not be done; that plaintiff was very much incensed about the matter; that he was determined to cause defendant all the trouble he could, and would force him to carry out the terms of the lease, and would not rent the said apartment to anybody else for less than $95 per month.

After both parties had rested, all the aforesaid testimony was, on motion of the plaintiff, stricken from the record, and thereupon the court' directed a verdict for the plaintiff in the sum aforesaid.

It is urged by the defendant that the court erred in so doing; that plaintiff was, under the evidence here presented, required to use reasonable diligence to re-let the said apartment in order to minimize defendant’s damages.

The precise question here presented for determination has never been directly passed upon by our Supreme Court, and an examination of our Appellate Court reports discloses that the decisions therein reported in which this question arose are not in harmony.

Under a provision of the said lease, if the said apartment was vacated by the tenant during its term, plaintiff had the right to re-enter and relet same, as the agent of the' defendant, who would nevertheless remain liable for any deficiency in rent.

While there is some conflict in the decisions on the question whether or not it is the duty of the landlord to re-enter and exercise reasonable diligence to relet the premises after an abandonment of such a lease in order to minimize the damages, yet it is well settled that where the landlord does so re-enter, the law imposes this duty upon him. International Trust Co. v. Weeks, 203 U. S. 364; Woodbury v. Sparrell Print, 198 Mass. 1, 84 N. E. 441.

In the Woodbury case, supra, the landlord re-entered the demised premises after an abandonment of the lease by the tenant, and the court, in passing upon the question now confronting us, used the following language, which we think is applicable to the case at bar:

“At the trial the only defense relied upon was that the plaintiffs ‘did not use due, proper and reasonable diligence to relet. ’ Upon this question the court ruled in substance that the plaintiffs owed to the defendants the duty to use reasonable diligence and to make the loss or damage to the defendants as light as they reasonably could. As a statement of a general rule applicable to cases like this, the ruling was correct.”

The testimony stricken from the record tended to show that plaintiff re-entered the said apartment for the purpose of reletting same before the defendant actually abandoned it, but after he had declared his intention to vacate April 30, 1917; that thereafter plaintiff declined to accept a tenant whom his agents regarded as suitable and desirable and who, the evidence showed, was ready, able and willing to lease the apartment for one year at a rental of $85 per month. Such testimony presented two ultimate questions of fact for the determination of the jury, viz.: (1) "Whether or not plaintiff had re-entered the said apartment and had undertaken to relet same; and (2) if so, whether under the circumstances he acted reasonably in rejecting the said offer of $85 per month, which would have minimized the damages to that extent. It is clear, therefore, that the court erred in striking the foregoing testimony from the record and in directing a verdict for the plaintiff.

For the reasons hereinabove assigned, the judgment will be reversed and the cause remanded.

Reversed cmd remanded,


author: Mr. Justice Barnes

text:
    Edward Baird, Appellee, v. James King et al., Appellants.
    Gen. No. 23,883.
    1. Corporations, § 179

      -—immateriality of motive of stockholder seeking to compel corporation to allow inspection of hooks. The motive and purpose of a stockholder seeking by writ of mandamus to compel a corporation and its officers to allow him to inspect the corporate books cannot be inquired into for purpose of defeating the writ.
    2. Corporations, § 179

      —when corporation proper party to proceedings to compel allowance of inspection of hooks to stockholders. The corporation is a proper party defendant to mandamus proceedings by a stockholder against the corporation and corporate officers to require them to allow him to inspect the corporate hooks.
    3. Corporations, § 179

      —when president proper party in' proceedings to compel allowance to stockholder of inspection of hooks. The president of a corporation was properly made a party defendant to mandamus proceedings by a stockholder against the corporation and officers, including the president and secretary, to allow an inspection of the corporate books, where, although the by-laws gave custody of the books to the secretary, the president, in the latter’s presence, assumed to exercise control over the matter for the corporation.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 11, 1919.
    Scott, Bancroft, Martin & Stephens, for appellants ; John E. MacLeish and Walter S. Underwood, of counsel.
    (Jassoday, Butler, Lamb & Foster, for appellee; Ernest 0. Best, Harry Eugene Kelly and Fletcher Lewis, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from an order directing the issuance of a writ of mandamus against appellants to admit appellee (the petitioner), as a stockholder of the defendant corporation, and his attorneys to its offices, and to give him and them complete access to all its books of account and records, which he charged in his petition was denied him both by its manager after he had consulted defendant King, its president, and later by the latter and Morrison, its secretary, after a demand had been made upon them.

Defendants offered to show that the petitioner, though a stockholder, sought examination of such books and records, not for his own benefit as a stockholder, but as the agent of a competing corporation and in pursuance of a conspiracy of its officers to injure defendant-corporation’s business. The court rejected such offers, and no testimony having been introduced in behalf of defendants, the court directed a verdict for petitioner upon his motion therefor.

The rejection of such offers is urged as error on the ground that the evidence offered would disclose that the examination was sought for an unlawful as distinguished from an improper purpose, and that such evidence would tend to present a question of fact for the jury, namely, whether the examination was sought by petitioner as a stockholder, to whom alone the statute gives the right, or as an agent for another not a stockholder and, therefore, not entitled to the writ.

Both points may be reduced to the simple proposition whether the motive and purpose of a stockholder seeking such a writ can be inquired into for the purpose of defeating it. That question has been conclusively settled by Venner v. Chicago City Ry. Co., 246 Ill. 170, and Furst v. W. T. Rawleigh Medical Co., 282 Ill. 366. Appellant urges that language was used in Stone v. Kellogg, 165 Ill. 192, which recognizes a distinction between an unlawful and an improper purpose. The same point was made in Maremont v. Old Colony Life Ins. Co., 189 Ill. App. 231, in which the court suggested that any modification of the doctrine as laid down in the Venner case, supra, in the direction it is contended the case of Stone v. Kellogg, supra, points, should appropriately be left to the Supreme Court to make. Since that time the Furst case, supra, has been decided, in which similar facts to those included in the rejected offers were pleaded and held unavailing, the court saying, “that it was no defense in such action to allege that the stockholder was actuated by improper motives or that the information was sought in order to injure the business of the company.”

It is also urged that the corporation is not a proper party to the proceeding, that the order should be directed only to the party having custody of the books sought to be examined, which the by-laws of the corporation gave to its secretary, Morrison, one of the parties defendant. In similar cases, including the Venner and Furst cases and others that might be cited, it has been the practice to make the corporation a party defendant, and while the propriety thereof was not questioned in those cases, we think it is the usual and proper practice. As it is the corporation that is required to keep such books and give each stockholder a right to examine them, it would seem to be at least a proper party to the proceeding, and while it must, of course, act through its agents, who may also properly be made parties, the remedy seemingly ought to be complete if directed against the corporation alone, as the custodians might change during the progress of the action, thus causing unnecessary delay and embarrassment.

As to the propriety of making the president as well as the secretary a party while the by-laws gave the custody of said books to the secretary, the record discloses that the president in his presence assumed to exercise control over the matter for the corporation. By reason of his assumed, if not his actual, authority, we think he was properly made a party. We find no error.

Affirmed.


text:
    Bowman & Bull Company, Appellant, v. Postal Telegraph-Cable Company, Appellee.
    Gen. No. 23,996.
    1. Telegraphs and telephones, § 15

      —power of Interstate Commerce Commission to regulate interstate telegrams as exclusive. Jurisdiction of interstate telegrams has been taken over by Congress by the Act of June 18, 1910, amending the act to regulate commerce, and by virtue thereof the Interstate Commerce Commission has assumed to pass upon the reasonableness of rates and regulations for the same, and hence the regulating power of the State is at an end.
    2. Telegraphs and telephones, § 21

      —when omission in unrepeated message not gross negligence. A mistake in an unrepeated telegraph message in omitting the word “three” in “twenty-three,” relating to the price per dozen of eggs offered to the receiver of the message by the sender, is mere ordinary negligence and not gross negligence.
    3. Telegraphs and telephones, § 27

      —when telegraph company not liable to sender for damages due to omission in unrepeated message. A telegraph company is not liable to the sender of a message for a mistake in omitting the word “three" in “twenty-three,” relating to the price per dozen of eggs offered to the receiver of the message by the sender, where the blank used contains provisions that the company shall not be liable for an unrepeated message beyond the amount received for sending the same, and the charges for the message have not been collected.
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding.. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed February 11, 1919.

      Sheriff, Gilbert & Krimbill, for appellant; Barry Gilbert, of counsel.
    Leon A. Berezniak and Bankin, Dittus & Lesemann, for appellee; Jacob E. Dittus, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

The plaintiff in this action delivered to the defendant company a written message on one of its blanks, to be telegraphed from Chicago to Columbus, Ohio, offering eggs to a customer at twenty-three cents a dozen. As delivered to the party the word “three” was omitted. Other minor errors that have no real bearing on the proposition, or defendant’s liability, need not be referred to. In the form thus delivered the offer was accepted and the shipment made before discovery of the error. Settlement was subsequently made between the parties to the telegrams wherein plaintiff took the alleged loss of three cents a dozen, amounting to $360, to recover which this suit was brought. The finding and judgment were for defendant and plaintiff appeals.

The telegraph blank furnished by defendant and used by plaintiff contained a direction on its face that the message be sent without repeating, subject to the terms and conditions on the back thereof, to which the sender agrees. On the back it is stated that the telegraph company shall not be liable for an unrepeated message “beyond the amount received for sending the same,” nor for a repeated message beyond a certain amount unless specially insured, etc., and designates the telegram as an “unrepeated” message sent under these and other conditions made binding on the sender.

As defendant never received pay for the telegram and canceled the obligation, the main question is whether the court erred in holding that on these facts plaintiff had no cause of action. We think that question has been removed from the field of controversy. State and federal courts have frequently recognized that jurisdiction of interstate telegrams was taken over by Congress by the Act of June 18, 1910, amending the act to regulate commerce, and by virtue thereof the Interstate Commerce Commission has already assumed to pass upon the reasonableness of rates and regulations for the same (see Cultra v. Western U. Tel. Co., 44 I. C. C. 670), and it is settled law that when Congress exercises its authority over contracts involving interstate matters, the regulating power of the State is at an end. (Adams Exp. Co. v. Croninger, 226 U. S. 491.) Appellant’s contention, therefore, that until further legislation on the subject of interstate telegrams the matter remains subject to the State common law and policies is wholly untenable, in view of the adjudications that Congress has by said act already occupied the field of regulation with respect to them. (Gardner v. Western U. Tel. Co., 231 Fed. 405; Western U. Tel. Co. v. Lee, 174 Ky. 210 [15 N. C. C. A. 1], 192 S. W. 70; Western U. Tel. Co. v. Bilisely, 116 Va. 562, 82 S. E. 91; Western U. Tel. Co. v. Hawkins, — Ala. —, 73 So. 975; Western U. Tel. Co. v. Petteway, 21 Ga. App. 725. Most of the decisions relied on by appellant, were rendered prior to the passage of said act and were based on the absence at that time of congressional legislation on the subject, but since its passage they are no longer authoritative in matters relating to interstate telegrams. (Western U. Tel. Co. v. Lee, supra; Haskell Implement & Seed Co. v. Postal Tel.-Cable Co., 114 Me. 277; Meadows v. Postal Telegraph & Cable Co., 173 N. C. 240, 91 S. E. 1009.)

Even prior to the passage of said act it was said in Primrose v. Western U. Tel. Co., 154 U. S. 1, that a stipulation between a telegraph company and the sender of a message that the company shall not be liable for mistakes in the transmission or delivery of a message beyond, the sum received for sending it, to-less the sender orders it repeated by being telegraphed back for comparison and pays half that sum in addition, was reasonable and valid. Now the act itself expressly authorizes different classifications of messages—including repeated and unrepeated—and the charge of different rates for the different classes. Referring to repeated and unrepeated messages, it was said in Western U. Tel. Co. v. Dant, 42 App. Cas. (D. C.), L. R. A. 1915 B 685:

“They were well known to the art, and, of course, it must be presumed that Congress intended the words to be given their ordinary meaning. * * * Congress, therefore, in express terms, has sanctioned the practice theretofore existing. * * * In enacting this legislation Congress in effect has said to the defendant that it may permit the public to elect the class of services desired, and that the company’s liability will be according to the class of service paid for.”

In that and also the Primrose case, supra, a mistake of a similar nature in an unrepeated message was regarded as nothing more than ordinary negligence. We think that the same must be said in the instant case. Considering that mistakes in transmitting messages' are incidental to the nature of the work, we find nothing in the mistakes in the case at bar to indicate a wilful and intentional act, or such absence of care as would constitute gross negligence.

The plaintiff agreed and, as said in the Dant case, supra, upon both principle and authority was bound by the agreement, that in the event of mistake or delay in transmission or delivery the defendant would not be liable beyond the amount received for sending the message. As before stated, that amount was never paid and the obligation has been canceled. We think the judgment should be affirmed.

Affirmed.