author: Mu- Justice Thompson

text:
    W. E. Swift and Frank Beatty, Trading as Swift & Beatty, Appellees, v. Louisville & Nashville Railroad Company, Appellant.
    1. Carriers—limitation of liability. Under the Carmack amendment of June 29, 1906, to section 20 of the Interstate Commerce Act, the initial carrier may contract with the shipper that in case of loss or injury to the property the liability shall not exceed a stated amount.
    2. Carriers—common law liability. The carrier cannot by agreement abrogate the common law rule as to damage for negligence but may by contract reduce the amount of its liability caused by such negligence.
    3. Carriers—when provision limiting liability is invalid. Where plaintiffs shipped cattle over defendant’s road and no bill of lading was issued until plaintiffs telegraphed for one when the cattle did not arrive at the proper time, a provision limiting the liability in case of loss or injury is not effective since the evidence shows the plaintiff’s agents had no authority to make such an agreement.
    4. Cashiers—when verbal contract of shipment is governed by common law. Where a shipment of cattle under a verbal contract is unreasonably delayed enroute and not properly cared for, the carrier’s liability is governed by rules of the common law.
    5. Conversion—when initial carrier is liable for. Where consignee refuses to sign a receipt stating that a load of cattle were delivered in good condition, when in fact they had been unreasonably delayed and improperly cared for enroute and the connecting carrier keeps them for sixteen days and sells them, the initial carrier is liable for conversion.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1913.
    J. M. Hamill, and C. P. Hamill, for appellant.
    James C. McHale and D. J. Sullivan, for appellees.
   Mu- Justice Thompson

delivered the opinion of the court.

This .is an action of trespass on the case, brought by appellees, Swift & Beatty, against appellant, the Louisville & Nashville Railroad Company, to recover

damages for an alleged conversion of a carload of cattle shipped by appellee from Pulaski, Tennessee, to Normal, Illinois.

The following facts appear from the evidence. Appellees were stock dealers living at Waverly, Illinois, and as such had occasionally shipped a few car loads of stock from Pulaski, Tennessee, to different places in central Illinois. In purchasing these cattle at Pulaski, appellees engaged the. services of a Mr. Stone, a member of the firm of Stone, Porter <& White, stock dealers at Pulaski, to assist them in finding and buying such cattle as they desired to purchase, and for such service paid Mr. Stone $2.50 per head. Stone, Porter & White were not otherwise interested in the cattle. When purchased, the cattle were paid for by Swift & Beatty, and placed in a pasture near Pulaski, until a load was gathered together. On the 4th day of November, 1910, appellees having a sufficient number of cattle to make a car load, they were taken from the pasture by Beatty, one of the appellees, and delivered to appellant by placing them in the stock pens at Pulaski. These stock pens were the property of Stone, Porter & White, but they were used by appellant to receive cattle intended for shipment over its road. Stone, Porter & White were and had been for some time previous to the receipt of this car of cattle the agents of the appellant in the loading for shipment of cattle at that point. Mr. Stone, of said firm notified Mr. Barrack, appellant’s agent, that these cattle were in the pens ready for shipment for Swift & Beatty & Company, at Normal, Illinois, and inquired when they could load them. Stone told Barrack the number of cattle, whose they were, and to what place they were, to be shipped, and Barrack telephoned to Stone to load the cattle for the eight o’clock train that evening. The cattle were loaded and shipped out on the train which left Pulaski at eight o’clock in the evening. No bill of lading was issued at the time and on the following morning when Mr. Beatty, one of the appellees, called at appellant’s freight office to get the bill of lading, bnt found no agent there. Beatty did not wait until the agent arrived but took the early morning train for his home. No bill of lading or written contract was issued to appellees at the time these cattle were shipped. The cattle were mostly Jersey heifers, cows, and a few calves. Among the lot was one bull which was tied in the end of the car. The other cattle were all loose. These cattle left Pulaski on Friday evening, November 4th, arrived at East St. Louis on Sunday, November 6th at 11:20 a. m., and were turned over to the stock yards at 2:35 p. m. on that day. They remained in East St. Louis until Tuesday, November 8th, at 2:20 p. m., when they -were shipped over the Illinois Central Eailroad to their destination at Normal, Illinois. Ordinarily these cattle would have arrived at Normal either Sunday or Monday morning. The delay in the arrival of the cattle caused appellees to make inquiry concerning them. They telegraphed appellant’s agent at Pulaski, to send them a bill of lading. On receipt of the telegram appellant’s agent sent appellees a combined bill of lad-. ing and contract dated November 4, 1910. This paper named Stone, Porter & White as consignors and also as consignees of the cattle (care of Swift & Beatty) and fixed the shipping rate at $64 to East St. Louis. A few days after the shipment at the request of appellees, Stone, Porter & White called on appellant’s agent at Pulaski for a copy of the contract above mentioned and this copy as furnished named Stone, Porter & White as consignors and Swift & Beatty as consignees, and provided a through freight rate to Normal of $64. This contract produced by appellant was not signed by appellees or any one authorized to act for them.

When the cattle reached Normal, Illinois, Mr. Swift, one of the appellees, was notified of their arrival about four o’clock on Wednesday afternoon. When the cattle were unloaded it was discovered one cow was missing and others were gaunt, weak and wobbly from want of food. Swift, one of the appellees, complained to the agent of the Illinois Central at Normal about the condition in which the cattle were in, and said agent notified appellees that they would not be allowed to take the cattle until they had signed a receipt for the entire shipment, showing them to have been received by appellees in good condition. The number of cattle shipped from Pulaski was forty-nine. There were thirty-nine cows, one bull and nine calves. The agent of the Illinois - Central (the connecting line) at Normal claimed that the billing his company had, called for only thirty-eight cows, one bull and the calves. This agent also demanded of appellees that they surrender to him the bill of lading. Appellee had not been furnished a bill of lading by the agent at Pulaski. Appellees offered to accept the cattle and pay the charges, but refused to sign a receipt showing the condition and number to be satisfactory and correct. The cattle were taken by the Illinois Central Eailroad Company to a lot nearby, where they were kept for sixteen days and then sold by the railroad company.

The cattle were not well fed during these sixteen days. They were poorly cared for. At the end of the sixteen days they were sold by the railroad company for $720. No part of the $720 so received has been offered or paid to appellees.

It further appears that the paper introduced in evidence by appellants, claimed by it to be the bill of lading of the cattle shipped, states that the cattle were shipped at a reduced rate and in consideration thereof the appellees had agreed to limit the carriers liability to an amount not exceeding $35 for a cow and calf and $30 per head for the other cattle. In their arguments opposing counsel do not disagree on the law so much as on the facts. Bach side has argued from his own view point and each seems to have supported his theory by the citation of authorities, if the facts were found his way. The real contention however arises over a disagreement concerning the contract of shipment.

If there was a hill of lading issued to appellees as claimed by appellants the case would come within the so-called Carmack amendment of June 29, 1906, to section 20 of the Interstate Commerce Act, which provides: “that any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to 'the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

The cattle having been received at Pulaski, Tennessee, to be shipped to Normal, Illinois, gives the transaction the character of interstate transportation. By the amendment above referred to the initial carrier may contract with the shipper to limit its liability for damages to an agreed or designated valuation of the property shipped. In other words the carrier may agree with the shipper on a reduced freight charge that in case of loss or injury to the property the damages shall not exceed a stated amount. The carrier cannot by agreement abrogate the common-law rule as to damages for neglig'ence, but may by contract reduce the amount of its liability caused by such negligence. Fry v. Southern Pac. Co., 247 Ill. 571; Hart v. Pennsylvania R. Co., 112 U. S. 331.

In the case of the Adams Exp. Co. v. Croninger, decided at the October Term, 1912, of the Supreme Court of the United States (33 Sup. Ct. Bep. 148), the court in discussing this question there said: “It has therefore become an established rule of the common law, as declared by this court in many cases, that such a carrier may, by fair, open, just and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk. * * * That such a carrier might fix his charges somewhat in proportion to the value of the property is quite as reasonable and just as a rate measured by the character of the shipment. The principle is that the charge should bear some reasonable relation to the responsibility, and that the care to be exercised shall be in some degree measured by the bulk, weight, character and value of the property carried. * * * The statutory liability, aside from responsibility for the default of a connecting carrier in the route, is not beyond the liability imposed by the common law, as that body of law applicable to carriers has been interpreted by this court, as well as many courts of the states.”

From the above holding of the Supreme Court of the United States it will be seen that the common carrier may graduate its charges to value and that a stipulation made by the shipper limiting recovery in case of loss or damage to an agreed value is an enforcible contract. Hence it follows that if appellant issued to appellees the bill of lading introduced in evidence and that the same was understandingly accepted by appellees, then appellees’ right of recovery in this case would be limited to an amount not exceeding $35 for a cow and calf and $30 per head for the other cattle. Counsel for appellees, while not controverting’ the rules of law which are claimed to apply in cases where shipments have been made under the Interstate Commerce Act and a bill of lading issued according to its provisions, insist that the Interstate Commerce Act does not apply in this case for the reason that the suit is grounded upon the common-law liability and not upon statutory enactment. Appellees contend further that the contract of.shipment was a verbal one and the carrier having received the cattle and fmdertaken to transport them from Pulaski to Normal, brings the transaction under the rules of common law which require a common carrier to deliver goods at the point it contracts to convey them within a reasonable time, and if it fails to do so is liable whether it knew that its connecting line could not without unreasonable delay forward the goods or not; that the duty devolved upon the initial carrier to make necessary arrangements with connecting lines to complete the delivery.

The rules of law contended for by both appellant and appellees are beyond controversy. It only remains for the court to determine which is right under the evidence as to the nature of the contract that was made between the parties when the cattle were shipped. From a careful examination of the record in this case we have been unable to find sufficient evidence to show that any bill of lading was issued by appellant to appellees at the time the arrangement was made for the shipment of the cattle. The evidence shows that the only arrangement made with reference to the shipment was made by a Mr. Stone, of the firm of Stone, Porter .& White, and the arrangement which was made by him was with appellant’s agent over the telephone. Stone testified that he notified the agent that there was a car load of cattle at the yards which were to be shipped to Swift & Beatty at Normal, Illinois, that he told the agent the number of the cattle and that the agent replied over the telephone that he would let him know when to load them and later, during the same evening, he notified Mr. Stone to load the cattle for eight o’clock. The cattle were loaded and sent out on the evening of November 4, 1910, under the contract as made between Stone and the agent, as testified to by Stone and not disputed by the agent. The evidence also shows that Mr. Beatty, one of the appellees, applied at the office of appellant the next morning for the bill of lading, but that the man in charge of the office advised him that the agent was out, that he could not get it until he came. Mr. Beatty left for his home on the early train and did not receive any bill of lading. The evidence shows without controversy that no writing of any kind was issued by appellant or received by appellees, nor by Stone, Porter & White, with reference to this shipment. There is no evidence to show that anything was said by the agent of appellant to appellees, nor to Stone, Porter & White, concerning a lower rate of shipment or a limitation of the amount of damages. There is no evidence tending to show that the appellees knew that appellant made different ratings for shipments. When the cattle failed to arrive at Normal within a reasonable time Swift, being there to receive the cattle, telegraphed to appellant’s agent at Pulaski, requesting him, to forward a bill of lading. Appellant’s agent admits he received .such telegram, and in response to such telegram appellant forwarded what it claims in this case to be the bill of lading. At the request of appellees Mr. Stone went to the office of appellant at Pulaski for the purpose of seeing about the bill of lading. This was a few days after the shipment. The agent gave him at that time a bill of lading or contract marked “copy.” This copy is also in evidence. The copy, named Stone, Porter & White as consignors and Swift & Beatty, Normal, Illinois, as consignees, giving, the number and character of the stock shipped as being forty cows and nine calves; the freight charge $64. This copy so-called, was signed by the appellant by T. B. Barrack, agent. No other name was signed to the paper. The other paper claimed by appellant to be the real contract of shipment named Stone, Porter & White as consignors and Stone, Porter & White, consignees, care of Swift & Beatty, Normal, Illinois. The freight charge was fixed at $64 to East St. Lonis. This contract was signed by the Louisville & Nashville B. Company, by T. B. Barrack, agent, and purports to be signed by Stone, Porter & White. The evidence is however that neither Stone, Porter nor White signed this contract.

The evidence further shows that Stone, Porter & White were not the general agents of Swift & Beatty and had no authority to make any agreement or stipulations to relieve appellant from damages on account of a reduced freight charge. We can only conclude therefore that the contract of shipment was a verbal contract and being such is governed by the rules of common law. The evidence clearly shows that the cattle were unreasonably delayed enroute and were not properly eared for; that they were held in East St. Louis without sufficient food for more than forty-eight hours; and arrived in Normal in a gaunt and weakened condition; that one of the cattle had been lost somewhere along the road. Some controversy arose on the trial as to whether the lost animal was a cow or a bull. The evidence is sufficiently clear to show that the bull was received at Normal; that the lost animal was one of the cows.

When appellees called on the agent of the Illinois Central at Normal to receive the cattle they were met' with the demand from the agent that a receipt be signed showing the cattle all arrived in good condition, and on appellees’ refusal to sign such receipt the said agent refused to deliver the cattle to them.

The railroad agent at Normal had no right to exact from appellees a receipt of that character and appellees were clearly within their rights when they refused to sign such a receipt, because it did not truthfully state the fact and conditions concerning the cattle. The Illinois Central being a connecting line to appellants’, by their conduct in refusing to deliver the cattle to appellees on their request without condition, and their subsequent acts in selling the cattle at public auction, made the appellant under the law liable to appellees for damages for conversion of the cattle, and under the evidence in this case the court cannot say that the amount of damages awarded to plaintiff by the jury was excessive.

Many errors have been assigned on this record which appellant claims there should be a reversal in this case, many of them being based on refused instructions. There were forty-eight instructions offered on behalf of the defendant; twenty-seven of these were given by the court and every phase of the case proper for the jury to consider was fully covered by the instructions given. Any attempt to discuss the twenty-one refused would carry this opinion beyond reasonable limits. We fail to find there was any prejudicial error in refusing the instructions complained of.

Holding under the law and evidence in this case that the plaintiff had a clear right of recovery and that the damages are not excessive, the judgment of the lower court will be therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Fernando Meunier, Appellee, v. Chicago & Carterville Coal Company, Appellant.
    1. Mines and minees—when no liability for injury from falling of coal. If falling coal which injured a miner came from the face of the room in which he was working and was of a kind which would have been taken down by him in the usual course of his work, there is no legal liability for the injury received.
    2. Instructions—when should be accurate. Where the question whether props and caps for use in a mine were demanded and whether they were furnished on demand is vital, instructions concerning that question should be accurately drawn and given.
    3. Mines and miners—what instruction as to delivering props as required erroneous. An instruction to the effect that the owner, etc., of every coal mine shall keep props and cap pieces on hand and deliver them as required, is erroneous when the accident in question occurred when the Act of 1899 was in force, since under that act the demand for the props must come from the miner.
    4. Mines and miners—instructions as to props. An instruction is not accurate under the evidence where it states that the mine manager shall always provide a sufficient supply of props on the miners’ cars, when demanded, as nearly as possible in suitable lengths and dimensions for securing the roof, when the evidence does not show that any particular length of props was demanded though the statute requires the miner to designate the length and size thereof.
    5. Mines and minees—when miner cannot complain if timbers are not of suitable length. The Mines and Miners’ Act requires a miner to designate the length and size of timbers he wishes to use and, if no timbers of a particular length are demanded, the miner cannot be heard to complain if the timbers are not of suitable length.
    6. Damages—suffering or pain. In an action for personal injuries, an instruction that the jury in passing on the question of damages can consider any future suffering or pain is not accurate since the element of pain should be confined to physical pain.
    7. Instructions—preponderance of evidence. Where witnesses in an action by a miner for personal injuries give directly opposite testimony and the greater number support defendant’s theory, it is error to instruct that the preponderance of the evidence is not determined alone by the number of witnesses who testify, but that the jury are to determine the preponderance “in accordance with the way in which it appears to their minds.”

      Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 23, 1913.
    Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.
    Neely, Gallimore, Cook & Potter, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of case brought by appellee against the Chicago & Carterville Coal. Company, appellant, to recover damages for an injury to appellee while he was employed as a miner by appellant.

The case was tried on issues formed on the first, third and fourth counts of the declaration, each of which alleges a wilful violation of the mining statute. The first count charges that the defendant wilfully failed to provide a sufficient supply of props, caps and timbers at the usual place in plaintiff’s room when demanded and that as a result thereof a great quantity of coal, slate and rock fell from the roof of the said room striking the plaintiff and injured him. The third count charges that the defendant wilfully failed to place a conspicuous mark at room 6 (plaintiff’s room) as notice to all men to keep out, and that by reason thereof plaintiff entered the room to work and was injured. The fourth count charges that the defendant wilfully permitted the plaintiff to enter said room to work therein, under the direction of the mine manager while the same was in dangerous condition and that as a result thereof the plaintiff was injured.

Upon the trial of the case in the Circuit Court of Williamson county, the jury found appellant guilty and assessed appellee’s damages at $3,000. Motion for new trial was overruled and judgment rendered upon the verdict, from which judgment an appeal is prosecuted to this court.

From the evidence it appears that plaintiff, Fernando Meunier, and his brother, Emil Meunier, were employed as coal miners and worked in room No. 6, on the fourth southeast entry in defendant’s mine; that room No. 6 had been driven in about 120 feet from the entry and connected with the adjoining room by cross-cuts; that the top coal was left up for a roof to protect the miners in the rooms off the entry and in this particular room the top coal was from eighteen inches to two feet in thickness; that it was of a brittle nature, or as was termed by some of the miners, it was “tender,” so that it required propping for safety.

The evidence on the part of the plaintiff tended to prove that the injury was caused by the fall of top coal from a point in the roof twelve or fourteen feet back from the face of the room- and two or three feet to the right of the track; that upon the morning of the injury the plaintiff and his brother had loaded six cars of coal and had commenced to load another car when the accident happened, shortly after noon. Plaintiff testified that he was entering the room after lunch when the top coal fell on him just as he was passing the car; that the coal fell on the car and bounced off and struck him on the leg, breaking it. The plaintiff, his brother and a witness by name of Peter Boland testified that about half a car of top coal fell on the right hand side of the track, twelve or fourteen feet back from the face and caused the injury; they also testified that there were no cap pieces in the room, and plaintiff testified there were no long props in the room. Plaintiff and his brother testified they had ordered caps from the mine manager several days before the accident but none had been delivered. No one testified that props of any particular length had been ordered.

The evidence on the part of the defendant directly contradicts the evidence of the plaintiff’s witnesses in essential points. The mine manager, Bob Waugh, testified he was in the room with the witness Boland, above referred to, and that said Boland pointed out to him a piece of coal about 75 or 100 pounds weight, that had fallen out of the face of the room near the right hand corner, and told the mine manager that it was the coal that injured the plaintiff. Waugh also testified that that was the only piece of coal there was down in the room, and that it had fallen out of the face of the room at a point just under the regular top coal.

The superintendent, James G. Ney, the mine examiner William Maxwell, and two miners, George Sirles and Harry Jarvis, all went into the room with the mine manager shortly after the accident and made an examination of the room to determine the cause of the accident. They all testified that the coal fell out of the face of the room at a point just under the top coal and that the coal which had- fallen would weigh from 75 to 150 pounds, and that it was not a part of the coal that would be left up for a roof, but it was a part of the face of the coal that would have been mined down by the miner in the progress of his work. These witnesses said that they found the room was well propped up to within six feet of the face by actual measurements. They also testified of a pile of eighteen props lying at the usual place in the room about nine feet long. Two of these witnesses, Mr. Buiney. and Mr. Waugh, testified they counted ten or twelve cap pieces lying in the room near the props.

A trial was had of this case once before in which the jury failed to agree. At the last trial of this ease a brother of plaintiff testified that theje were no nine foot props in the room. As impeaching evidence the defendant called the official reporter as a witness and she testified from her stenographic notes that on the first trial the plaintiff and his brother made different statements from the ones made at the last trial concerning the length and number of props. There were three witnesses for the plaintiff who testified to the conditions of the room and the place where the coal fell and the number of props. On material points there were five witnesses for the defendant who testified directly contrary to the testimony of the plaintiff’s witnesses.

It was very important to a proper determination of the case to know where the coal that fell upon the plaintiff came from; whether it came from the face of the room, as claimed by the defendant, or twelve or fourteen feet back from the face, as claimed by plaintiff. It is not claimed by the defendant that the mine manager placed any conspicuous marks indicating dangerous conditions anywhere in that room. The mine manager testified there were, no dangerous conditions appearing when he examined the room. If, as contended by the defendant, the falling coal which injured the plaintiff came from the face of the room and was of the kind which would be taken down by the miner in the usual course of his work in mining coal, there could be no legal liability for the injury received. This contention is tacitly admitted by the plaintiff.. The evidence clearly shows that there were sufficient number of props in the room at the time plaintiff was injured. When all the evidence on that question is considered there can be no other conclusion of a reasonable mind than that the props were there in sufficient numbers. The evidence is not so conclusive with reference to caps.

Under the statute in force at the time of this accident it was the duty of the coal company to furnish props, caps or timbers to the miner whenever demanded, but it was the duty of the miner to properly prop and secure his place with the material when furnished. The question whether or not props and caps had been demanded and whether or not they had been furnished on demand was a very vital one, and the instructions directed to that branch of the case should have been accurately drawn and given. Witt v. Gallemore, 163 Ill. App. 649; City of Chicago v. Sutton, 136 Ill. App. 221; Chicago, R. I. & P. R. Co. v. Turck, 131 Ill. App. 128.

Appellant complains of instruction No. 3, given for appellee. This instruction tells the jury “that the law provides that the owner, agent or operator of every coal mine shall keep a supply of timber constantly on hand of sufficient lengths and dimensions to be used as props and cap pieces and shall deliver the same as required on the miner’s cars, at the usual place, so that the workmen may at all times be able to properly secure the workings for their own safety, and that a right of action shall accrue to a party injured for or because of a wilful violation or wilful failure to comply with the provisions of this law.” This instruction does not correctly state the law as it existed at the time of the accident. The Statute of 1899 was then applicable which provides that “the mine manager shall always provide a sufficient supply of props, caps and timbers delivered on the miner’s cars at the usual place when demanded.” The demand must come from the miner. He must designate the kind of timber he needs to prop his room. Under this instruction the jury could readily have found that the defendant had wilfully violated the statute because there was need of props and caps, although no demand had been made for them by the miner.

The Appellate Court of the Third District in the case of Thompson v. Dering Coal Co., 158 Ill. App. 289, when considering an instruction in which the words “required” and “demanded” were used interchangeably as relating to the statutory duty of the owner or operator of a coal mine, said: “In its common acceptation the word ‘required’ is not a synonym for the word ‘demanded’ as employed by .the statute. The former may relate to a condition arising by implication, and is more commonly used as synonymous with ‘necessary,’ while the latter in the sense in which it is employed in the statute relates to an express overt act.” The court there holding that an instruction where the word “required” was used instead of the word “demanded” constituted error.

Complaint is also made of the ninth instruction which was given at the instance of the plaintiff. This instruction told the jury that “the mine manager shall always provide a sufficient supply of props, caps and timbers on the miner’s cars at the usual place when demanded as nearly as possible in suitable lengths and dimensions for the securing of the roof by the miners.” It is contendéd by appellant there is no evidence from any witness that any particular length of props, caps and timbers were demanded, and that this instruction telling the jury that they should be of suitable lengths would leave it for the jury to determine what lengths were needed. The statute requires the miner to designate the length and sizes of the timbers he wishes to use in his room and if no timbers are demanded of a particular length the miner cannot be heard to complain if the timbéis are not of the length suitable to properly prop the roof. This instruction was not accurate under the evidence.

The tenth instruction given for the plaintiff told the jury that in passing upon the question of damages they could consider “permanent disability, if any, of the plaintiff, caused by said injuries and any future suffering or pain,” etc. This instruction should have confined the element of pain to physical suffering. Mental suffering occasioned by crippled condition is not a proper .element to be considered in estimating damages in such a case. This instruction was not accurate.

Complaint is also urged against instruction No. 11, wherein it was sought to tell the jury the meaning of the expression “preponderance of the evidence.” This instruction states, “The preponderance of the evidence is not determined alone by the number of witnesses who testify, but this is an element to be considered; but you are to determine where the preponderance of the evidence is, in accordance with the way in which it appears to your minds; and when you can say the greater weight of the evidence is upon one side or the other, then you have determined upon which side the evidence preponderates.” No test is given in this instruction by which the jury could determine the weight to be given to the testimony of the various witnesses. They are not told all of the elements which should be taken into consideration in weighing the testimony of witnesses. They are simply left to determine where the preponderance of the evidence is “in accordance with the way in which it appears to their minds,” which is equivalent to telling the jury they may find the evidence preponderates according to their notion as to what tests should be applied in passing upon the weight of evidence.

If the juries are told that the law permits them to find the preponderance of the evidence “in accordance with the way it appears to their minds,” it would free them from the rule which requires the consideration of many elements that are essential to determine where the preponderance of the evidence lies. The greater number of witnesses testifying in the case supported the theory of the defendant that the coal which injured the plaintiff fell from the face of the room, that there were plenty of props, and that the room was well propped to within six feet of the face of the coal. The witnesses for the plaintiff, being fewer in number, testified opposite to those testifying for the defendant. Under this state of facts the law requires that the instructions should accurately state the rules of law which should govern the jury in passing upon the weight of the evidence. This instruction as given was clearly erroneous. Sullivan v. Sullivan, 139 Ill. App. 378; Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 621; Lyons v. Ryerson & Son, 242 Ill. 409.

' Complaint is made of a number of other instructions which were given on behalf of the plaintiff, some of which are not accurately drawn so as to present a correct rule of law to govern the jury in passing upon the evidence, but the considerations above expressed are deemed by this court sufficient to require a reversal of this case and we will not enter at length in a discussion of the further instructions or other errors assigned on this record, since the case will have to be remanded for another trial.

For the errors indicated, the judgment of the Circuit Court is reversed and the cause remanded.

jReversed and remanded.


text:
    John B. Jinkinson, Appellee, v. Albert Owens, Appellant.
    1. Landlord and tenant—when tenant estopped to deny title of widow of his deceased landlord. When a tenant recognizes the widow of his deceased landlord, to whom a life estate is given, as his landlord and attorns by the payment of rent, he is estopped from denying her title.
    2. Landlord and tenant—notice to quit. Where a tenancy from' year to year ends in March a notice to quit served the preceding December is sufficient notice.
    3. .Appeals and errors—presumption that court rejected incompetent evidence. Where a case is tried by a court without a jury, if there is sufficient competent evidence to sustain the findings it is presumed that the court rejected all incompetent evidence.
    4. Landlord and tenant—when relation exists. The relation of landlord and tenant exists between a tenant and the widow of h'is deceased landlord who owns the life estate.in the premises where such tenant recognizes her as his landlord and pays rent to her.
    5. Forcible detainer—who may maintain. Though neither the owner of a life estate in certain premises nor a sublessee under her have ever had actual possession, the sublessee has a right to demand and receive possession from a tenant from year to year who has been in continuous possession since the death of the owner of the fee and such sublessee may maintain forcible detainer to obtain possession.

      Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1913.
    Warnock, Williamson & Burroughs, for appellant.
    Springer & Buckley, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of forcible detainer, brought by appellee, against appellant, to obtain possession of so much of the Wiley G. Preuitt farm, as was included in the pasture and so much thereof as was planted in corn, in the year 1911.

The evidence shows that the Wiley G. Preuitt farm contains approximately one hundred acres; that the land herein sued for is described as containing approximately sixty-four acres; that the appellant Albert Owens, by oral agreement, rented the land in question from Wiley G. Preuitt in the fall of 1903, for the term of one year; that the possession of the wheat land was given that fall, and the corn and pasture land the following spring; that since that agreement the appellant has held as tenant from year to year.

The evidence further shows that since the death of Mr. Preuitt, in 1908, the appellant has recognized and attorned to Mrs. Preuitt, wife of the deceased, as his landlord; that on the 14th day of August, 1911, Mrs. Preuitt owner of the life estate, made a written lease to Ida May Pritchett, her daughter, to have and hold said premises as follows: “All wheat and oats land from the 1st day of August, 1912, to the 1st day of August, 1917: and all the rest and residue of said premises from the first day of March, 1912, to the first day of March, 1918, ’ ’ and that the premises or any portion thereof might be sublet.

The evidence further shows that on the 21st day of August, 1911, Mrs. Pritchett sublet the premises to appellee John B. Jinkinson; that before the premises were leased to appellee, Mr. Pritchett, husband of Ida May Pritchett, verbally notified appellant, “not to make arrangements in regard to the tenancy, beyond that crop he was putting in, he was then plowing for wheat,” and that on the day the premises were leased to appellee, appellant was notified that the premises had been leased, to which he did not reply.

On the 11th day of December, 1911, written notice to quit and deliver up possession of above mentioned premises was served upon appellant, by Martha H. Preuitt and Ida May Pritchett; that on the 9th day of March, 1912, written demand for possession was served by above named parties upon appellant; that on the 30th day of March, 1912, written demand for immediate possession was served upon appellant by appellee, John B. Jinkinson. That the appellant declined to comply with either the notice or demands aforesaid and failed to deliver up possession of the corn and pasture lands, and suit was instituted in the justice court, to recover possession of the said premises in controversy, resulting in judgment for plaintiff, from which finding an appeal was taken to the Circuit Court, where the cause was tried before the court without a jury, and the court gave judgment in favor of the plaintiff, the defendant thereupon perfected Ms appeal to this court.

The appellant contends that the sublessee of the heirs of a deceased owner, neither of whom have been in actual possession of the premises in controversy, cannot maintain an action of forcible detainer for the recovery of possession of such premises, against the tenant who has been in continuous possession since the death of the owner. Under section 2 of the Forcible Entry and Detainer Act (chapter 57, Hurd’s Revised Statutes of Illinois, 1911), provides: “The person entitled to the possession of lands or tenements may be restored thereto in the manner hereinafter provided.” The appellant contends that the party who can maintain an action of forcible detainer is one who is “entitled to the possession,” of the premises, and to whom such possession may be “restored,” and cite cases where the courts have held the statute should be strictly construed, claiming the word “restored,” means to reinstate again, one who has had actual possession, which is being unlawfully withheld by the party sought to be dispossessed. And that a constructive possession is not a possession which may be “restored” by this action to which they cite Whitehill v. Cooke, 140 Ill. App. 520.

In Whitehill v. Cooke, supra, the facts are not similar to the case at bar. Cooke .was in possession at the' death of the owner but not as tenant and the suit was brought against him by the heirs of the former owner.

In the case at bar the appellant had recognized Martha H. Preuitt as his landlord and attorned to her by the payments of rent. The appellant is therefore estopped from denying her title, and when the premises were leased to Ida May Pritchett, and sublet to appellee, the appellant is estopped from denying the appellee’s right to possession, since he had all the rights of possession that landlord had. Carter v. Marshall, 72 Ill. 609.

“Where certain premises were leased by the owner to a tenant, and the tenant was unable to obtain possession on account of a former tenant holding over after his term expired, it was held that the right of possession was alone in the lessee, and he must bring the action.” Gazzolo v. Chambers, 73 Ill. 75; Walsh & Co. v. Taylor, 142 Ill. App. 46.

The contention of the appellant that the original lease began with the putting in of the wheat in the fall and therefore the notice to deliver up possession served on appellant in December was not legal notice is not sustained by the evidence.

Appellant testified that the original landlord Mr. Prenitt wanted him to take his farm, except the house, a little cemetery and pasture for the following’ year, that the possession of the wheat land for the fall wheat would be given the 1st of August and the corn and pasture land the first of March. We quote the following from his testimony: “Q. Mr. Owens, in the neighborhood of this property when tenants rent land for a term or from year to year what is the custom with reference to when the lease begins. Court. Taking the farm as a whole. A. Taking the farm as a whole all together? Q. No what is the custom with reference to when possession of the land is first taken or when the year begins? A. When the year begins? Q. Tes. A. I think it should be March when the year begins on the whole farm—would be March, first go to work and put wheat in on the farm that’s the first thing you do when you rent a farm, you are never supposed to get possession until spring to the rest of the farm and a farmer always sows wheat first and wouldn’t sow wheat if he wasn’t expected to get the corn land in the spring, that’s the way we always rent in the neighborhood I live for twenty years and never rent any other way.”

Tailing the appellant’s own construction of the tenancy the lease began and ended in March. Under the evidence we hold that the notice to deliver up possession served upon appellant in December was a sufficient notice.

It is contended that the court erred in the admission of incompetent evidence. The case however was tried by the court without a jury and in such case if there is competent evidence to sustain the findings it will be presumed the court rejected all incompetent evidence. Ranson v. Ranson, 115 Ill. App. 1; Merchants’ Desp. Transp. Co. v. Joesting, 89 Ill. 152.

We hold that the relation of landlord and tenant existed between Mrs. Prenitt and appellant. That the lease from Mrs. Prenitt to Ida May Pritchett and the sublease from Ida May Pritchett, to appellee, gave appellee the right to demand and receive possession of the premises and possession was refused him, he could maintain forcible detainer to obtain possession.

Finding no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.


text:
    Henrietta Roloff, Administratrix, Appellee, v. Luer Bros. Packing & Ice Company, Appellant.
    1. Negligence—material Questions on vital issues all for jury. Where plaintiff’s intestate, while engaged in painting the inside of a packing plant, tripped on an iron plate, and was in consequence caught by a fly wheel in a crank pit and killed, the questions as to negligence in faulty construction of the machinery, in failure properly to guard or light the same, or in protecting persons rightfully coming in contact therewith, the acquaintance of deceased with the danger in connection with such machinery, and assumption of risk and contributing negligence on his part, are all for the jury, and this court will not say, there being no case of hazardous employment, and no errors appearing in the record, where the employment of deceased did not require him to be near the engine, and where all reasonable minds would not come to the conclusion that deceased was guilty of contributory negligence, that a verdict and judgment under a count, charging faulty construction is error.
    2. Master and servant—oivious clanger. A servant is regarded as voluntarily incurring the risk resulting from the use of defective machinery if the defects are as well known to him as to the master.
    3. Contributory negligence—oivious danger. To see the structure of machinery is equivalent to knowledge of its dangers to a person of ordinary intelligence.
    4. Practice—directing verdict. If the evidence, introduced by plaintiff, when taken to be true, together with all its legitimate inferences, tends to support the cause of action, the case should be submitted to the jury.
    McBride, J., dissenting.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1913.
    Rehearing denied May 29, 1913.

      Wise, Keefe & Wheeler, for appellant.
    Merritt U. Hayden and C. H. Burton, for appellee.
   Mr. Justice Thompson

delivered the opinion of the

court.

This is a suit brought by appellee as administratrix of the estate of her deceased husband, William J. Boloff, against appellant to recover damages for alleged negligence resulting in the death of her intestate.

The accident which resulted in the death of William J. Boloff, occurred on the seventh day of May, 1908. At that time the deceased was employed by the appellant to paint and whitewash the interior walls and ceilings of its packing and ice manufacturing plant in the city of Alton. He had been so engaged for about three or four months prior to his death. Appellant’s plant is quite extensive, having a number of departments. Among the departments is one for machinery and this is divided into what is designated by the witnesses in the case as the old engine room and the new engine room. The size of the old engine room is about thirty feet long by thirty feet wide, and the new engine room is about sixty feet long and thirty feet wide. Immediately before the accident the deceased was taking down and removing a scaffold upon which he had been whitewashing the ceiling of appellant’s old engine room. He had removed two planks of this platform and had placed them on the stairway at the north end of the engine room preparatory to taking them to the second story, and the third plank lying on the granitoid floor at a large sixteen foot doorway connecting the old and the new engine rooms. In the new engine room is what is called a Ball ice machine. The engine was about twenty feet long extending north and south. The fourteen foot fly wheel was located between the engine and the es st portion of the ice machine. The crank shaft operated on the west of the fly wheel and directly underneath the crank shaft was the crank shaft pit. The bottom of the engine sat flush with the floor of the new engine room. Along a portion of the west side of the engine extended a solid cast iron bed plate of the engine at a height of about twelve inches from the floor. This plate at the south end of the engine rose to the height of about four and one-half feet. The bed plate was about twenty-two inches west of the line of the crank shaft. When the deceased picked up the third plank and was moving backwards in his attempt to place the plank on the stairway, his foot struck against the iron bed plate, causing him to trip and fall backwards in a sitting position on the top of the bed plate with the plank across his lap, and while in this position the revolving crank shaft struck him and dragged him into the pit, and instantly killed him.

There were four counts in the declaration.

The first count charged the negligence of the defendant in failing to construct or place a guard or railing in front of the crank shaft and other parts of the machinery;

The second; that it failed to have the engine room sufficiently lighted;

The third; that the defendant failed to furnish sufficient help to aid the deceased in moving the scaffold;

The fourth; that the deceased was ordered and directed by the appellant to carry certain planks to a certain engine room and while deceased was attempting to carry out the orders of the appellant he came in contact with the moving machinery of the ice machine and was thereby killed.

The trial of this case resulted in a judgment in favor of appellee for $6,247.22. This case was before us on appeal from a former judgment in favor of appellee for $5,000, and was on the 12th day of November, 1910, reversed and remanded (158 Ill. App. 614) because of certain errors appearing in the record in the admission of evidence. On a retrial of the case the judgment resulted as above stated, and the appellant prosecutes this appeal and again urges reversal of the judgment of the trial court.

Appellant insists that the evidence in this case is wholly insufficient to warrant the verdict and uphold the judgment against it. There was no proofs even tending to support the allegations of the third and fourth counts in the declaration. The third count charging that appellant failed to furnish deceased with sufficient help to remove the scaffolding fails because the evidence does not show that any help was needed, requested or required. The fourth count charging that the deceased was ordered and directed by one of the officers of the appellant to carry the planks fails for want of evidence to show that any order was given through any officer or any one authorized to give orders and directions for the appellant.

Whether it was negligence on the part of appellant to fail to protect people rightfully passing near to the crank shaft, from coining in contact therewith and being injured was a question to be submitted to the jury.

Was. it negligence in appellant in having such a construction at that place where dangerous machinery was operated? Under the rule that where the evidence fairly tends to support the allegations of the declaration the court is required to submit the case to the jury to determine the fact.

The first count must be held to have been sustained by the evidence unless the court can say that the verdict of the-jury is so manifestly against the weight of the evidence that all reasonable minds would reach the conclusion that it was so, this court would not be authorized to interfere with the verdict and judgment. There was also evidence tending to show that there was an insufficient lighting of the engine room as charged in the second count of the declaration. Here there was quite a conflict in the evidence. Witnesses for appellee gave sufficient testimony to show a failure to have the engine room properly lighted,' if their evidence is worthy of credence. On the part of appellant, its witnesses testified to enough facts to show that the place was well lighted if their evidence was worthy of credence. As to where the truth of this matter rested it was the duty of the jury to find and unless their finding appears to be manifestly against the weight of the evidence, it will be upheld.

When this case was before this court on appeal from the-former judgment and was reversed and remanded, we held there was sufficient evidence to go to the jury as to the first two counts of the declaration. We then said: ‘‘If the evidence showed clearly that he [deceased] had been frequently close by this crank-shaft and base of the machine so that he must have been familiar with their construction, we would be compelled to say that the manifest weight of the evidence showed that he assumed the risk, for to see this structure and machinery is equivalent to knowledge of its dangers to one of ordinary intelligence.” Roloff v. Luer Bros. Packing & Ice Co., 158 Ill. App. 614.

The statement then made is correct in reasoning now as it comes to us for the second time. It was purely a question under the evidence for the jury to say whether the deceased could by the exercise of ordinary care have seen the bed plate or iron base, which tripped deceased and caused him to fall into the pit, and also how well the deceased was acquainted with the machine and its surroundings, prior to the time of the accident. All of these facts were material in determining the question of contributory negligence and assumed risk. In a general way deceased may have known the engine was there. He had been passing through or near to the engine room a sufficient number of times to have somewhat of a general knowledge of the location of the engine. Were his duties such as to bring him so near to the crank pit that he would become familiar or should have been familiar with its surroundings?

These were the very material questions which were presented to the jury and the answer to which the jury gave adversely to the contention of appellant. This court cannot say as a matter of law when all of the evidence is considered that the deceased was familiar with the location of the bed plate.

Counsel for appellant insist that this case should be reversed for the reason that the deceased knew of the location of the engine or at least had an opportunity to know of it, and that he assumed the risk which might result from the particular construction of the engine base.

A number of cases are cited by appellant where the doctrine of assumed risk is discussed. Among them is the case of Chicago & E. I. R. Co. v. Geary, 110 Ill. 383, where the court said: “The rule is, as contended by counsel for appellant, namely, where an employe, after having the opportunity to become acquainted with the risks of his situation, accepts them, he cannot complain if he is subsequently injured by such exposure. One may, if he chooses, contract to take the risks of a known danger.” Another case cited was that of Chicago Drop Forge & Foundry Co. v. Van Dam, 149 Ill. 337, where it was said: “As a general rule, the servant will be regarded as voluntarily incurring the risk resulting from the use of defective machinery, if its defects are as well known to him as to the master. ’ ’

The case at bar however is easily distinguished from the cases cited, since it appears from the evidence that the deceased was not employed to work with or near to the engine and crank pit. His employment did not require him to be near the engine. There is no contention of defective machinery. It is not a case of hazardous employment. The contention of appellee is grounded on the faulty construction of the base plate in not being of sufficient height to serve as a guard rail for the protection of persons passing along and near by the engine from falling into the crank pit and receiving injury, and that its height and location rendered it an obstruction.

Where contributory negligence is relied on to defeat an action the question is usually one for the jury. It becomes one of law only in cases where reasonable men in the light of all of the facts and circumstances proven on the trial and all reasonable inferences to be drawn therefrom would reach the conclusion that the injured party had negligently contributed to such injury. Mueller v. Phelps, 252 Ill. 630; Illinois Cent. R. Co. v. Anderson, 184 Ill. 294.

One of the contentions of appellant arises on the denial of the motion made to direct a verdict for the defendant. In consideration of such a motion courts are not authorized to pass on the credibility of the witnesses, nor the weight of the evidence. “If the evidence introduced on behalf of defendant in error, when taken to be true, together with all its legitimate inferences, tends to support the cause of action, then it was properly submitted to the jury.” Waschow v. Kelly Coal Co., 245 Ill. 516; Libby, McNeill & Libby v. Cook, 222 Ill. 206.

The material facts in this case have been presented to two juries and each time the jury has found in favor of the plaintiff. Each verdict has had the sanction of the judge who tried the case. No question of law arises on this record requiring a reversal. No errors appear in the record in the admission of evidence or the giving or refusing of instructions which can be held prejudicial to the defendant. The case was fairly submitted on the vital issues of fact and there is evidence which fairly tends to uphold the contention of plaintiff as set forth in the first and second counts of the declaration.

The judgment of the trial court will therefore be affirmed.

Affirmed.

Mr. Justice McBride dissents.


text:
    Albert C. Clark, Appellee, v. American Bridge Company of New York, Appellant.
    1. Release—effect. A release signed by an employe injured, in full settlement of his claim, with full mental capacity to understand the nature of the transaction and what he is doing, bars his action and a verdict for defendant should he directed.
    2. Release—validity. Evidence held to show that a release was valid.
    Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 23, 1913.
    Wise, Keefe & Wheeler and William Beye, for appellant; Knapp & Campbell, of counsel.
    F. C. Smith, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought by appellee, Albert C. Clark, against the appellant, The American Bridge Company of New York, to recover damages for an injury received by him on January 5, 1912, while in the employ of the appellant.

The declaration consisted of one count alleging that the plaintiff was in defendant’s employ in the capacity of switchman; that his duties required him to ride on a certain locomotive engine; that the defendant negligently had provided an engineer to operate said locomotive engine who was inexperienced and incompetent for that kind of service; that the plaintiff had complained to the master mechanic who had control of the said engineer that said engineer was inexperienced and incompetent and plaintiff was ordered by said master mechanic to continue at his work and that said master mechanic promised to make a change of engineers; that pursuant to said order and in pursuanoe of such promise he did continue at the said work; that by reason of said engineer’s inexperience and incompetency, not understanding the signals given him he ran said engine back on the inbound track instead of taking the cross over to the outbound track, by reason whereof the engine was made to collide with an inbound engine, resulting in injuries to the plaintiff.

Defendant filed a plea of not guilty. The casé was tried by the court and jury, and resulted in a judgment against the defendant, from which this appeal is prosecuted.

It appears from the evidence in this case that the plaintiff was about sixty-four years of age; that he had been employed in railroad work as a switchman and conductor for forty-three years; that for about one year prior to the accident he was employed by the defendant as a switchman; that the crew working with him consisted of an engineer and fireman and a switch-man (who was the plaintiff); it was the duty of the plaintiff as switchman to give all directions for the movement of the engine. It appears that the Southern railroad had two main tracks which ran into the north end of the yards used by the defendant; these tracks rah substantially in a north and south direction; the west track was known as the inbound track and the east track was known as the outbound track; engines running south should take the left hand or inbound track; engines running north should take the right hand or outbound track.

On the morning of the accident the plaintiff, who was the switchman in charge of the engine, had occasion to go to the warehouse for some knuckle locks. To reach this warehouse he intended to go along the southern tracks, from defendant’s yards to the warehouse, which was located some considerable distance to the north of the crossings of the Illinois Central and Southern Railway tracks. Plaintiff told the engineer where he was going; he gave the signal to the engineer to go north along the inbound track. Going north along the inbound track was against the current of the traffic; the engine should be under control so that it could be stopped by the engineer within half the distance of the vision of the engineer on the track or that the engine should be flagged by a switchman preceding the engine so that warning could be given in time to avoid danger. At the direction of plaintiff the engine started about 1,000 feet from the cross over; it was backing up; plaintiff was on the head footboard of the engine. The engine attained a speed of from ten to twelve miles an hour until some distance from the cross over when the speed of the engine was slackened by the engineer. When about one hundred feet from the cross over, the engine being still on the inbound track, plaintiff says he gave the signal to cross over, which signal was a wave of the hand. In order for the train to cross over from the inbound to the outbound track it was necessary to switch at the cross over at its connection with the inbound track. To do this it was necessary for the engine to stop so that the plaintiff could get off and throw the switch. The signal which was given by the plaintiff, was the wave of the hand, which was the signal to cross over. Immediately thereafter the speed of the engine was increased again to about ten or twelve miles an hour. About one hundred feet to the north of the cross over and some two hundred feet from where the plaintiff says he gave the signal to engineer, the in and outbound tracks were covered with smoke, steam and a heavy fog, which came from the rolling mills operating just west of the tracks. The engine was running at about ten or twelve miles an hour through the smoke, steam and fog on the inbound track.

The evidence shows that the atmospheric conditions were so dense that a man could not see his hand before his face. The engine continued to run about nine hundred feet where it collided with an engine of the Southern railroad which had been coining south on the inbound track, but was then stationary, a little distance south of the crossings of the Southern and Illinois tracks. The evidence shows that the plaintiff was standing on the footboard of the engine and was thrown against the engine by the impact of the collision and so received the injury complained of. The plaintiff says that before the collision he tried to attract the attention of the engineer by hallooing at him, but was unable to do so; that he was endeavoring to notify the engineer to stop.

The injury to plaintiff occurred on January 5th. The evidence shows that he was taken to the hospital where he remained for a few weeks. While in the hospital the wages which plaintiff had earned prior to the accident, including the first week in January, were paid to him by the time keeper of the defendant.

The injuries to plaintiff consisted of blackened eyes, an injury in the back of the head, two teeth knocked out, rib broken, and a shoulder out of place. He returned to work as switchman on the 20th of March.

The evidence concerning the alleged negligence of the defendant on account of the incompetency of the engineer is conflicting. In view of the opinion we have on another question presented by this record and which we deem decisive of the case, we will not enter upon a discussion as to the sufficiency of the evidence which is claimed to show the negligence of the defendant. The question referred to arises on the validity of the release signed by the plaintiff on the 14th day of February, 1912, and which was put in evidence by the defendant. The plaintiff does not deny the execution of the release.

The release is as follows:

“The undersigned having sustained certain injuries by reason of an accident, in which he received a contused and lacerated wound at the base of the skull, a badly contused jaw, lacerated right ear, fracture of the fourth rib and a badly contused right shoulder and back, over Scapula, which occurred on or about January 5th, 1912, at Municipal Bridge, St. Louis, Mo., hereby offers to accept Seventy-five and 08/100 ($75.08) Dollars, in full satisfaction of all damages sustained or hereafter to be suffered directly or indirectly by reason of such injuries.
In consideration of the sum of Seventy-five and 08/100 ($75.08) Dollars, to the undersigned in hand paid by or on behalf of American Bridge Co. of New York, the receipt whereof is hereby acknowledged, the undersigned, for himself, his heirs,' executors and administrator, does hereby release and forever discharge said Company, its successors and assigns, and all persons and corporations whomsoever, from all claims and demands and all damages, whatsoever sustained or hereafter suffered, directly or indirectly by reason of injuries received in the casualty above referred to, or in any manner growing out of same; and hereby acknowledge full satisfaction for all damages sustained or suffered in the premises.
In Witness Whereof, the undersigned has hereunto set his hand and seal the 14th day of February, in the year 1912.
Signed, sealed and delivered in the presence of
S. T. Jackson A. C. Clark (L. S.)
Wm. F. Davis
Chas. Hahn.”

The testimony of the plaintiff concerning the release is that Jackson, Davis, and Hahn came together, to his house on the day the release was signed; that he let them in the front room, where they sat down and talked with him about how he was getting along; that Mr. Hahn said to him; “Mr. Clark, I fetched you some money,” and he handed me the check. I said, “I need it bad. I am glad to get it.” “Now,” he said, “sign for it and we will he going,” and he pulled out a paper and handed it to me. Í put on my glasses- and tried to read it. I looked at it fof some time. I could not read it. Everything was blurred.' I handed it back to him and said, “I cannot read that.” He said, “Sign right here.” I signed there. They folded it up and they all went and before they went I said, “Now I am to get fifty-five per cent of my wages until I am able to work?” Mr. Hahn says, “Sure.” Plaintiff claimed that he did not know he signed a release; that nothing was said to him about a release. On cross-examination the plaintiff was asked:

“Q. "Whom did you ask to read it?
A. I didn’t ask anybody to read it.
Q. You just simply took your pencil and signed the paper which he handed you?
A. I was tailing the gentleman’s word.
Q. Now, Mr. Clark, isn’t it a fact when Mr. Hahn produced that release he said, “Shall I read it to you?”
A. I don’t remember him saying anything of the kind.
Q. Isn’t it true that you went over there to a stand or mantel and got your glasses and put them on. Isn’t that true?
A. No, I don’t remember that because I generally have my vest on and have my glasses right in my pocket. I have been wearing glasses for not so many years. Before I was injured I wore glasses.
Q. When you read that over or looked at it, didn’t you say, “This amount seems kind of small?”
A. No, sir, I did not.
Q. Then when you did sign it, Mr. Clark, you understood you were sighing something that on account of the injury you got was going to pay you fifty-five per cent of your wages; you understood that didn’t you?
A. Yes, sir.
Q. And you understood that was going to be in full satisfaction until you could go to work again?
A. I was to get fifty-five per cent, of my wages until I was able to go to work.
Q. And when you was able to go to work, was that the end of the trouble?
A. Yes, sir.
Q. And you so understood it?
A. Yes, sir.
Q. So that when these men came out and presented the paper you understood that because you g’ot hurt and in settlement of it you got fifty-five per cent, of your wages until you were able to go back to work?
A. Until I was able to go back to my usual vocation.
Q. There was not anything said about “Usual;”— until you was able to go back to work.
A. My work was switchman.
Q. I am asking you what was said or not. That was said, until you could go back to work?
A. Yes, sir.
Q. Mr. Clark, before you were given that seventy-five dollars and eight cents, isn’t it true that they first requested you to be examined by a doctor?
A. Yes, sir.
Q. Didn’t you go to St. Louis to see Mr. Madison?
A. No, I didn’t go there to see him. They took me up to see him. I was under Dr. Little’s charge all the time. Dr. Little told me that he thought by the first of March I would be able to take my job again; and that seventy-five dollars and eight cents was fifty-five per cent, of the wages up to the first day of March.
Q. And you understood now in taking this seventy-five dollars and eight cents that that was fifty-five per cent of your wages whenever you could go to work again. You had no other claim against the company—• you understood?
A. No sir. I understood I was to get fifty-five per cent of my wages until I was able to go to work and I am not able to go yet.
Q. I want your understanding about it. When you signed the paper, you signed it with the understanding that that represented fifty-five per cent of your wages until you could go to work? Is that right?
A. Until I was able to go to work, I say, yes.
Q. You were not able to go to work on the first of March?
A. No sir, I was not. On the 20th I went to the job as watchman. I was watching for the American Bridge Co.
It further appears from the evidence that Hahn, one of the witnesses who signed the release offered in evidence, as representative of the defendant, called on the plaintiff while he was at the hospital and told the plaintiff that the company would pay him fifty-five per cent, of his wages up to the time he was able to work as his damages for that injury, and that plaintiff said, “It seemed pretty small for being bunged up that way.”

Afterwards, Hahn, Jackson and Davis visited the plaintiff at his home and obtained the release, Mr. Hahn says: “We talked about various things—at first general topics—about the accident, the weather, etc. Then I handed Mr. Clark the release and told him I had some money for him and the release which I wished he would sign and asked him whether I should read it to him or whether he would read it. Mr. Clark said he would read it. I do not know whether he said it in so many words—at least he signified it by taking the release, and he got his glasses and he looked at it like this—took him three or four minutes. He just read it diligently and I did not say a word so as not to bother him; the three of us were silent so he did not have anything to disturb him. He did not say a word himself. As far as I could observe he read it over. When he read it over lie said, U guess it is all right’ or something like that. He then signed it and the three of us put our names to it as witnesses, I gave him the check for $75.08.”

Wm. F. Davis testified he was in the employ of the American Bridge Company, in the shipment of material; “that he went with Mr. Hahn and Mr. Jackson out to the plaintiff’s home; that he saw a standard form of release shown Mr. Clark there at the time and also a check; Mr. Hahn told the plaintiff that he had a release; this release was handed to Mr. Clark; Mr. Hahn told Mr. Clark he would read it to him if he could not read. Mr. Clark took the release, however, walked to the west side of the room, took a pair of glasses either from the mantel or small table. He sat down in the middle of the room and looked at the paper.” “Whether he read it or not I can’t say. He certainly was in a position of a man reading. After looking for a few minutes, Mr. Clark asked for a pencil and signed it. Then Mr. Hahn gave him the check attached to the release.”- “We were there I should say forty-five or fifty minutes. During that time we had considerable conversation before the release was handed to him regarding the work at the bridge, the accident, and one thing and another about the working down in the yards.” “That the plaintiff said he thought he would be back to work but did not think he would be back to work by the first of March; he seemed to think it would take a week or so longer. There was nothing done there at the -time to induce Mr. Clark to sign the release.”

On cross-examination the witness Davis said, “Mr. Hahn requested him to go out to the plaintiff’s. I understood Mr. Jackson was going. We had the same office. The check was filled out at Hahn’s office and the signatures were put in at Clark’s residence. I had never been at Clark’s house before. The only reason I went was to be a'witness. The $75, in payment of the release came from the casualty department of the bridge company. It is paid any employe that is injured and is not able to work for the first ten days; they pay fifty per cent, and five per cent, for each child under sixteen until they are able to go to work. The plaintiff went to the mantel or small table directly below the mantel. He did not say anything about his not being able to read it because his eyes blurred.”

The other witness to the release, Mr. Jackson, testified that he was in the employ of the bridge company; that his position was that of time keeper; that he went with Hahn and Davis and saw Mr. Clark the plaintiff; in his own home on February 14th. During the conversation thé plaintiff stated that he thought he would be able to come back to work in- about a week; that Hahn told the plaintiff that he had some money for him; plaintiff replied he would be glad to get it; that he could use it to good advantage; that Hahn handed the release to the plaintiff for bim to read; plaintiff got up and went to the mantelpiece and got his glasses and read the paper; that he mused over it three or four minutes anyhow. After he had read it over he asked if we had a pencil to sign it. Mr. Hahn gave him a pencil and he wrote on the back of a picture that he took off the little table near the front window. The plaintiff said that the amount was kind of small-for the accident. We were there thirty or forty minutes. On cross-examination this witness was asked:

“Q. And didn’t Mr. Clark take this over to the mantel and didn’t he tell you that he could not read it?
A. No, sir, he did not.
Q. Did he read it?
A. Yes, sir.
Q. Did you see him read it?
A. He held it up to his face like a person would ordinarily read it.
Q. Didn’t you know he could not see it at that time?
A. Mr. Clark has signed a pay roll every two weeks.
Q. Do you believe he was in his right mind when you were talking to him?
A. Yes, sir.
Q. Isn’t it a fact that when he told yon he could not read it you told him it was all right, to just put his name down there?
A. No, sir.
Q. Did anybody tell him that?
A. No, sir.”

We have set out at considerable length the testimony of the witnesses concerning what transpired at the plaintiff’s home at the time he signed the release. If the appellee was mentally capable of knowing and understanding what he was doing and did know he signed a release, then such release cannot be impeached in this action. In such case before an action at law could be prosecuted resort would have to be had to a court of equity to impeach or set aside the release. If the evidence was sufficient to show the appellee was mentally incompetent to know or understand what he was doing or that he was deceived or tricked into signing the release when he thought he was signing something else, then such facts could be shown in an action of this kind and the release would not be a bar. Turner v. Consumers’ Coal Co., 254 Ill. 187. See also Papke v. Hammond Co., 192 Ill. 631, and cases there referred to.

The evidence in this case wholly fails to show that there was any attempt on the part of Hahn, Davis and Jackson to misrepresent the nature and the character of the instrument or that any trick or deception was resorted, to to obtain the signature of the appellee to the release under the belief that it was something other or different. Counsel for the appellee make no claim whatever that appellee was incompetent to know and understand the meaning of the paper he signed, nor is it claimed that he did not sign the release voluntarily and willingly. We think the testimony of the appellee himself shows conclusively that he signed the paper in full settlement of any claim he had against the appellant for his injury and that he knowingly understood what he was signing at the time. There is little room for doubt upon that question when all the evidence is considered.

Under this view of the case we hold it was error for the trial court to refuse appellant’s instruction to direct a verdict in its favor. The holdings of the courts of review are practically a unit that in such a case the release would be a bar to the action. If the evidence had tended to show a lack of mental capacity on the part of the appellee to understand the nature of the transaction and what he was doing a question would have been presented requiring its submission to a jury. Chicago City Ry. Co. v. Uhter, 212 Ill. 174.

In this case the appellee did understand he was signing a paper which was in full settlement of his claim. He understood that the settlement was based on the probability of-his being able to go to work about the first of March; that by this settlement he was getting fifty-five per cent, of his wages up to the first of March; that his doctor told him he would be able to return to work about the first of March, and that $75.08 was fifty-five per cent, of his wages up to that time. With this release in evidence there was no question of fact arising from the evidence which should have been submitted to the jury for its determination and under the evidence the appellant was entitled to have the peremptory instruction asked.

The judgment of the City Court of Bast St. Louis is reversed and the cause remanded.

Reversed and remanded.


text:
    Peter J. Kennedy, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    1. Inteburban Railroads—injuries at crossings. A judgment in favor of plaintiff for damages to Ms team and wagon from a collision with defendant’s interurban car is reversed without remanding where the evidence shows that plaintiff’s agent in driving upon the tracks was guilty of negligence which contributed to the injury.
    2. Negligence—master charged with negligence of servant. Where plaintiff sues to recover for injury to his team and wagon, the negligence of the driver, plaintiff’s servant, is the negligence of plaintiff.
    Appeal from the Circuit Court of Alton; the Hon. James E. Dunnegan, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed April 23, 1913.
    Williamson, Burroughs & Ryder, for appellant.
    John J. Brenholt, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This suit was brought by appellee against appellant, to recover damages for ah alleged injury to a wagon and the killing of a team of horses in a collision with the appellant’s interurban electric car on February 22, 1911, in Alton, Illinois, at a crossing where Indiana avenue intersects Milton road and appellant’s right of way.

The case was tried by a jury and resulted in a verdict for $350 in favor of the plaintiff, and the court having overruled defendant’s motion for a new trial, entered judgment on the verdict, to reverse which the defendant prosecutes this appeal.

In order to maintain his case the plaintiff under the pleadings is required to establish by the evidence two material averments of his declaration, viz., the negligence of the defendant in the operation of its car, and the exercise of ordinary care by the driver of the team and wagon.

There is some evidence tending to show the negligence charged against the defendant in failing to blow a whistle as the car approached the crossing where the accident occurred and also that the car was running at an unusual and unreasonable rate of speed at that point and on those questions we- would not feel at liberty to say the jury were not warranted in finding against the defendant. When, however, we come to consider the evidence of the due care of the driver of the horses and wagon and whether his conduct at the time shows negligence on his part which contributed to the injury of the team and wagon, the strength of plaintiff’s evidence loses its probative force and clearly fails to show legal liability.

The driver of the team, a brother of the plaintiff, was a man about forty-one years old, who was driving a milk wagon delivering milk to customers. About nine o’clock on a cold, snowy February morning be was driving westward on Milton road on the outskirts of the city of Alton. His milk wagon had doors on each side and a small window in front. The road or street along which he was driving was paved "with brick and he was driving his team near to the curbing, along the south side of the street, as he approached the intersection of said street and Indiana avenue where the collision with defendant’s car took place. The defendant’s right of way is immediately south of the Milton road or street curbing and intersects Indiana avenue where the Milton road and Indiana avenue intersect each other. The defendant’s tracks are not more than ten feet from said curbing. The car which struck the team was going in the same direction as the team, prior to the time the driver turned south at Indiana avenue to cross the defendant’s tracks. The driver’s testimony as to what he did immediately before he drove on to the tracks is, “I opened both doors of the wagon and looked ont. I looked east and saw nothing and I looked west and saw a freight standing about three blocks toward Alton. I had my team under control, driving very slowly, and seen nothing and heard nothing—until my team reared on the track and just as I got on the track the car blew a whistle. In looking eastward I could see about three blocks.”

The testimony of three witnesses, who were standing at the crossing waiting for the car to pass, is,-'that they saw the driver as he was approaching the crossing before he turned south to cross the track and fearing he would attempt to cross in front of the car they sought to attract his attention by waving their arms and hallooing to him; that at that time the car was nearing the crossing and plainly seen by them; that they did not see the driver open the doors of the wagon or look out; that he did not check his team at their warning; that they were not over thirty feet from the team at the time they gave a signal to him. Some of the witnesses testified on behalf of the plaintiff that they saw the accident and did not see the three witnesses above referred to, at the crossing, nor did they hear any one shout to the driver as he started to cross the tracks.

The conductor and motorman who were on the car at the time testified they saw the driver going along the road parallel to their railroad tracks about the time they left the car sheds which are some 1,400 feet east of Indiana avenue. The motorman says that as the car approached to within twenty or twenty-five feet of the crossing the driver of the wagon suddenly turned his team south off of Milton road or straight on to the tracks and at once the collision took place.

The foregoing statements of facts contain substantially all the evidence that bears on the question of due care or the want of due care.

From this evidence it is impossible to reconcile the driver’s statement that he looked eastward just before he attempted to cross the railroad track and did not see the approaching ear, when the car must have been less than one hundred feet from the crossing, at the time when he says he looked. There was nothing to obstruct his view- eastward for eight hundred or more feet.

The people waiting at the crossing saw it and we must conclude from the undisputed evidence that had the driver looked as he claimed he did, he would have seen the car, and seeing it could have avoided the injury.

If he did not look then, under the circumstances he was not exercising due care. Chicago, P. & St. L. R. Co. v. DeFreitas, 109 Ill. App. 104; Michigan Cent. R. Co. v. Cudahy, 119 Ill. App. 331; Chicago, R. I. & P. R. Co. v. Jones, 135 Ill. App. 384.

The nncontroverted facts carry us to the inevitable conclusion to which all reasonable minds must arrive that the driver of the team by his conduct in attempting to cross the tracks at the time and in the manner that he did was guilty of negligence, which contributed to the injury complained of and the established rule of law operates as a bar to any recovery in the case. Wierzbicky v. Illinois Steel Co., 94 Ill. App. 400; Cicero & P. St. Ry. Co. v. Snider, 72 Ill. App. 300; North Chicago St. Ry. Co. v. Eldridge, 151 Ill. 549.

That the negligence of the driver, who was servant of the plaintiff was the negligence of the plaintiff, needs no citation of authority.

The judgment of the Alton City Court is reversed without remanding, with the following finding of facts: We find that the plaintiff by his servant was guilty of negligence which contributed to the injury complained of.

Reversed with finding of facts.