author: Mb. Presiding Justice Baldwin

text:
    John F. Devine, Administrator, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 16,124.
    1. Evidence—when hoolc of rules competent. Held, in this case, that a book of rules, established by stipulation as containing the rules of the defendant company, was competent, the same having been in the possession of the plaintiff's intestate for a number of years and found after his death near the place where the accident occurred which resulted in his death. ■
    2. Negligence—effect of rules upon question of. If a railroad company adopt for the operation of ears in its yards, a rule, limiting the speed of the operation of trains in such yard, there is impliedly an admission that such rule is reasonable and necessary for the protection of the public and the employes of the company. .

      3. Negligence—what constitutes. Absence of the exercise of ordinary care constitutes negligence. "What in the exercise of ordinary care differs according to the facts and circumstances of the eases. The general rule, however, is that ordinary care is the exercise of that degree of care which a reasonably prudent man would exercise under the same circumstances.
    4. Negligence—moving of cars contrary to rule. If it be negligent to move cars at a rate of speed in excess of the maximum limit fixed by the rules of the company, it is none the less negligent frequently to pursue such a practice.
    5. Contributory negligence—when not question of law. The conduct of a person cannot be said as a matter of law to be contributorily negligent unless such conduct has been shown by legal and competent evidence to be so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent.
    6. Pleading—when defective declaration cured hy verdict. A declaration which defectively states a good cause of action is cured by verdict. Held, in this case, that the declaration states a good cause of action.
    Smith, J., dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    Rehearing denied February 20, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Winston, Payne, Stbawn & Shaw, for appellant; John D. Black and John C. Slade, of counsel.
    Chables J. Tbainob, for appellee.
   Mb. Presiding Justice Baldwin

delivered the opin ion of the court.

This is an appeal from" a judgment for $4,500 against appellant rendered in the Superior Court of Cook county, in a suit brought to recover for the alleged wrongful killing of one Leavitt, a conductor of a switching crew of the Chicago & Northwestern Bail-way Company, which last named company was originally a joint defendant with appellant, but, upon payment of $500, was given a covenant not to sue, and dismissed out of the case.

The accident occurred in a private switch-yard, known as the “Bast 47th Street Yard,” located at the southern extremity of the Union Stock Yards in Chicago, just east of Center avenue,—a north and south street,—and directly north of 47th street, which extends east and west. The yard consists of some sixteen east and west parallel tracks, all of which, at their western extremities, curve to the northwest where they are connected by a series of converging leads and switches with two north and south tracks, known as the east and west main tracks. The sixteen tracks are numbered across the yard consecutively, beginning with “Number 1” at the north. The accident occurred on track 3.

The yard was used for the delivery of cars by the appellant company and their receipt by the various other railroads to which they were consigned; each company being assigned one or more tracks for the receipt of freight consigned to it. Track No. 1 was assigned to the Burlington road, while tracks Nos-. 2 and 3 were the regular receiving tracks of the Northwestern,—and the Chicago, Milwaukee & St. Paul Railway Company had track No. 4. Bach afternoon, the engines from the various companies would come into the yard shortly before five o’clock to get what was known as the “meat” train intended for that company. These various engines would wait until the meat cars were “kicked” or pushed in on the various tracks by appellant’s engines, after which they would draw the cars on their respective tracks out of the yard, and upon the east main track,—the crew for each company striving to get away as early as possible.

Leavitt’s crew came into the yard with its engine and caboose shortly before five o’clock on the afternoon of the day of the accident, and backed in on track No. 2, opposite the switch leading into track No. 3, to wait until their meat train should be made up. Shortly after their arrival, seven cars were, by the appellant company, “kicked” back on track No. 3, and three or four others on track No. 4, in the same movement. Before these seven cars were pnt in, there were two meat cars standing on track No. 3, somewhere about 600 feet east of the switch. As conductor of the train, Leavitt’s duty was to take the number and destination of each car in his train. When these were obtained, he brought them to the office of the clerk of the Chicago & Northwestern Bailway,Company, one Waldron by name. Waldron would have a list of the cars as furnished him by the appellant company, and he and Leavitt would compare their lists, and thereby ascertain whether all the cars intended for them had been placed on track No. 3. Track No. 3 extends south and east of the switch from the east and west main tracks, and makes an abrupt curve toward the east.

These seven cars, thus thrown in upon track No. 3, were moving with such speed that, after striking the two meat cars already standing upon the track, they "were all driven east about five car lengths. The testimony as to the speed at which the seven cars were “kicked” in upon the track varied from 12 to 20 miles per hour. There was testimony to the effect that, shortly before these seven cars were “kicked” back, Waldron, the clerk whose duty it was to keep tab of the cars thrown in upon track No. 3, had found the two or three cars then upon the track, said to have been located about five car lengths from the switch, or just east of the curve; that, as he had-no bill of consignment of the one of these cars nearest the switch, he took from the north side of the car the bill of consignment thereon, and brought it to his office for the purpose of making a bill therefrom.

The testimony in the case tended to show that in the discharge of his duty to take the respective numbers of the cars and the consignment of each, Leavitt came to take the consignment of this car from its north side from which Waldron had taken the consignment card, so that it became necessary for Leavitt to pass around to the other side of- the car to obtain the consignment card on its south side, there being ordinarily such a card upon each side of the car. No one actually saw the accident, though, shortly before it occurred, Leavitt was seen by Burke, an inspector for the Chicago, Milwaukee & St. Paul Railway Company, who was then testing the wheels of cars being thrown in upon its track No. 4, and he had a few words with Leavitt. At this time Leavitt was standing between tracks No. 2 and No. 3, apparently taking the numbers off the end of the car that was nearest the switch, being the one from which Waldron had taken the destination card. At this time, by the shunting of cars on track No. 4, Burke’s view of Leavitt was shut off, though he saw the cars coming in upon track No. 3, and, almost immediately thereafter, heard Leavitt call out. From the marks in the cinders between the tracks, it appeared that Leavitt had been dragged about three car lengths, after which he was run over by four cars, and killed. It also appeared from the testimony of one Turney, a car inspector for the Northwestern Railway, that it was a part of Leavitt’s duty to see that the cars were sealed, and to enter in his book the condition of the seals of the cars before the trains were pulled out, and that there were seals on both sides of the cars. The accident occurred on the 31st of March, 1905. From the testimony it would appear that at the time of the accident there was still sufficient daylight to see several hundred feet if there were no obstruction.

At the time of his death, Leavitt was sixty-three years of age; for six years preceding he had been engaged in substantially the same manner as on the day of the accident; he was shown to be a man of careful habits, with good eyesight for a man of his age. The court admitted in evidence a “book of rules” of the appellant company, and there was testimony tending to show that this book was picked up, with some other things belonging to Leavitt, near .where his body was found, and that it had been in his possession for some time. Eule 16 on page 40 of this book, provided that the speed of trains in the Stock Yards district should, be “governed by the city ordinances, fixing the speed of trains, extracts of which will be found in the back of this book,” and on page 43 of this book of rules are set out extracts from the city ordinances, which provide that at the point in the district where these yards were located, the cars should not be, operated at a greater speed than nine miles per hour.

The case went to the jury upon two counts: The first count charges that defendants were jointly using and operating under a common arrangement a certain railroad track in the Stock Yards; that under the terms of that arrangement, the appellant company, with its own engines and employes, daily placed on said track all cars received by it for the Northwestern Eailway Company, which last named company, with its own engines and employes, hauled said cars away from said track; that said track was constructed on a sharp and dangerous curve so that employes of the defendants, engaged in the conduct of the joint business done bv said defendants on said track on certain points thereon, were unable to see or hear a train of cars coming around said curve, until too late to escape iniurv therefrom; that it thereupon became the dutv of said defendants to conduct their said business with due care for the safety of the employes of either or both of said defendants, whose duty required them to be on or about said track; that on March 31, 1905, while said Leavitt (who unon this day was, and for some years prior thereto had been, employed by the Northwestern Eailway Company as freight conductor, and as such had charge of cars placed upon said track for said Northwestern Company, and of its engines and employes used in hauling said ears from said track), was in discharge of his duties, and with all due care and caution was upon or crossing said track at a point where he was unable to see or hear a train of cars coming around said curve, until too late to escape injury therefrom, a certain train of cars under the care and management of the servants of the appellant company, and without any engine attached thereto, was suddenly and carelessly “kicked,” propelled and run upon said track by the appellant company, without the knowledge or warning to the deceased, at a high rate of speed, greatly in excess of the customary speed at said place, and against and upoii said deceased, who was thereby then and there killed.

The second count was like the first, except that it contained an additional allegation with respect to the manner in which cars came in “and without any lookout or other person on the foremost of said cars to warn employes of defendants of the approach of said cars. ’ ’

The grounds relied upon for reversal of the judgment are: First,—that the two counts above mentioned do not, nor does either of them, state a cause of action, nor is either of them sufficient to sustain the judgment; second,—that the evidence does not show the appellants guilty of negligence, causing the death of the deceased; third,—that appellee’s intestate was guilty of contributory negligence without which the accident would not have occurred; fourth,—that tb« court erred in admitting in evidence the alleged “book of rules” of the Chicago Junction Ey. Co.

Taking up these propositions in their reverse order, we do not think the court erred in admitting in evidence the “book of rules” of appellant company. The identitv of this book as a book of rules of the company is established bv a stipulation filed in this court at the hearing, in which it is recited, “that it is stipulated between the parties hereto that the book, plaintiff’s Exhibit 1, referred to in the Record herein, is a book issued by the Chicago Junction Ry. Co. as its rule book, or book of rules, and referred to on Record page 368,” and we think the evidence justifies belief that this book had been in possession of the deceased for years, and that, after his death, it was found along the track at the point where he was struck by the car. We also are of the opinion that the facts and circumstances shown made at least a prima facie case to the effect that such rules were in force at the time of the accident.' Rule 16 on page 40 of this book, by reference to page 43 thereof, fixed the rate of speed at which the cars of appellant company should be operated, at not more than nine miles per hour. We think the rules adopted by the company were proper evidence bearing upon the question of ordinary care on the part of the person injured, and also upon the question of negligence on the part of the defendants; indeed, the adoption of such a rule is impliedly a statement by the -company that the rule is reasonable, and that it is necessary for the protection of the public and the employes of the companv. Lake Shore & Michigan Southern R. R. Co. v. Ward, 135 Ill. 511-517; Chicago & Alton R. R. Co. v. Kelly, 182 Ill. 267-270; Chicago & Alton R. R. Co. v. Eaton, 194 Ill. 441. In passing upon the ' Kelly case, supra, the Supreme Court adopted the opinion of the Appellate Court in which, as bearing upon the question of ordinary care of deceased for his own safety, it was said, “it is reasonable to infer from his length of service that he was acquainted with the rules of appellant in respect to the running of its trains, and that he would, in the exer-cise of ordinary care, conform his actions in respect thereto.” In the Eaton case, supra, the court held:

“Whether appellant is guilty of neglect or the deceased of contributory negligence are questions of fact for the jury, and the adoption of the rules above referred to (being the rules of the Chicago & Alton Company) is an admission by appellant that ordinary care required the course of conduct prescribed therein (L. S. & M. S. v. Ward, 135 Ill. 511), and the jury will be justified in finding that if said rule had been obeyed the accident would not have happened. (Chicago, St. Paul & Kansas City Ry. Co. v. Ryan, 165 Ill. 88.) And the court continued and said that, relying upon the rule, deceased had the right to assume that the employes of the company would obey the rule and that had they obeyed the rule he could have proceeded safely in the manner which he did.”

Under these authorities, we think it clear that the rules were competent and admissible upon the question of ordinary care on the part of the deceased, and an admission on the part of the appellant company as to what constituted ordinary care on its part in the movement of its cars under the circumstances disclosed bv the testimonv in this case.

Upon the question of contributory negligence of the deceased, the testimony in the case leaves room for some uneertaintv and doubt. If we were now considering it as an entirely new proposition, and one which we were at libertv to decide from our own impressions. we might reach a different conclusion than that reached by the jurv. There is no question that the deceased was engaged in a hazardous occupation, end one which required a high degree of caution and watchfulness to avoid iniury. He had long experience in the service and was familiar with the yard and the use of the switch tracks. It is not quite clear that there was anv necessity for his being upon the track at the time of the injurv; even upon the assumption that, in the performance of his dutv, he' was required to go upon both sides of track No. 3, he was eertainlv bound to exercise a proper degree of caution in doing so. He must have known, or at least have expected, that other cars than the two which he was apparently inspecting, would he “kicked” or thrown in on the track at about that time. On the other hand, it must be remembered that track No. 3 was being used to receive cars consigned by the Northwestern Company and placed thereon by the appellant company, and it was the duty of the deceased to procure the number of each car, together with its destination. To secure the latter, it was necessary to inspect a consignment, or destination card which is placed in a small wire cage on either side of the car. It was his duty to know when all the cars that were intended to constitute his train, had been received upon his track and to have a complete description of each car and its consignment and destination and compare it with the yard clerk before his train pulled out. We think it a reasonable inference from the testimony, that the deceased was crossing from the north to the south side of track No. 3 to obtain the destination of that car, which would be ascertained by inspecting the card on the south side of the west car, the card on the north side having been removed.

The evidence shows without contradiction that Leavitt was and had been a careful man; that he was a man of family, and was sober and industrious. The fact that he had been in the employ of the Northwestern Eailway Company for many years, in charge of one qf its trains, tends to establish his competency as an employe as well as character, prudence and sobriety. From the evidence it seems to us that Leavitt’s duties fairly contemplated his crossing the tracks. His crossing track No. 3 from one side to the other of the cars to procure the needed information for his report to the yard clerk, although he must have known that it involved some hazard or risk, was not necessarily negligence because he was evidently required to perform this duty, and in so doing, was obliged to use only such care for his own safety as would be usual and ordinary care under the circumstances. If the seven cars, which were “kicked” in, came around the curve at from 15 to 18 miles an hour, and if, when standing immediately north of the north rail of track No. 3 and looking in the direction from which the ears were coming, they would be seen only at a distance of not more than two or three car-lengths, his injury might be attributable to the speed at which the cars were being driven around the curve so much in excess of the speed he had a right to expect, under the rules of the company, they would he moved. Contributory negligence on the part of the deceased is not to be presumed; nor must the proof of due care and caution required, necessarily be made by direct evidence. It has been repeatedly held by our Supreme Court that where there are no eye witnesses to the accident, the jury may consider, as tending to prove due care and caution on the part of the injured party, the instinct of self-preservation, his family ties, usual care and caution, etc. See, among other cases, the following: Illinois Central R. R. Co. v. Prickett, 210 Ill. 140; E. J. & E. Ry. Co. v. Hoadley, 220 Ill. 462.

It is a question of fact for the jury whether the deceased exercised ordinary care, and this court cannot say as a matter of law, that contributory negligence has been established, unless the conduct of the deceased has been shown, by legal and competent evidence, so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitar tion or dissent. Illinois Central R. R. Co. v. Anderson, 81 Ill. App. 137, affirmed in 184 Ill. 294.

As to the negligence of appellant company, this, too, is a question of fact to be determined by a jury. It must be conceded that even assuming that Leavitt’s occupation was a hazardous one, he had a legal right to demand that ordinary care should he taken by the defendants not to unnecessarily inflict any injury upon him. This ordinary care would be different in one case from what might be required in another, but in any event, it must be such care as a reasonably prudent man would exercise under the same circumstances. Absence of such ordinary care would constitute negligence if injury resulted. In this case, it is urged that the deceased knew that appellant company had been accustomed to “kick” in cars upon these tracks at a high rate of speed. Even if the fact be conceded, it still remains true that if it were negligent to move the cars at such a rapid rate of speed in violation of their own rules, it would not cease to be negligence because frequently done. Negligence is the want of that degree of care which the law requires in a given case. Putney v. Keith, 98 Ill. App. 285; Illinois Central R. R. Co. v. Behrens, 101 Ill. App. 33. Under the arrangements shown to exist between the appellant company and the Northwestern Railway Company, we think both companies were liable to the employes of either who, in the absence of contributory negligence, might be injured by the negligence of either of them, and that each company is chargeable with notice as to the employes of the other engaged on its tracks. Illinois Central R. R. Co. v. Frelka, 110 Ill. 498; O’Sullivan v. C. M. & St. P. Ry. Co., 23 Ill. App. 646.

In the case of Pennsylvania Co. v. Conlan, 101 Ill. 93, Conlan was employed by the Chicago & Alton R. R. Co., which company, with the Pennsylvania Co., were jointly using certain tracks. Conlan was in a switching crew of the Chicago & Alton R. R. Co. and was killed by an engine that was owned'and operated by the Pennsylvania Co. He was crossing the track on which the Pennsylvania Company’s engine was running at the time he was killed, and had been taking the numbers of the cars of the train that his crew was making up. In the declaration it was alleged that Conlan was on the track, on which he was killed, in the exercise of his duties as such switchman, and that while in the discharge of snch duty, with due care and caution, and without negligence on his part, while so passing over and along the track, the Pennsylvania Company negligently drove its engine and train without sufficient headlight, and injured the deceased,— and the court held that the gist of the action was the. negligence of the Pennsylvania Company,—and that the motive of the deceased in being upon the track was wholly immaterial, it being sufficient that he was lawfully there. Negligence was held to be a question of fact for the jury in that case; and we do not think the fact that in that case the city ordinance was admitted in evidence, while in the case at bar it was not admitted, is important. In the case at bar the appellant company had adopted a portion of the city ordinance, limiting the speed of trains and cars to nine miles per hour, as a part of its rules; and, as we have before held, these rules were admissible in evidence as an admission of the appellant company of what was necessary on its part to observe ordinary care, as well as tending to show that the deceased was exercising reasonable care. That whether crossing a track under particular circumstances is or is not negligence, is a jury question—see Pennsylvania Company v. Conlan, supra; Village of Clayton v. Brooks, 150 Ill. 97; L. E. & W. R. R. Co. v. Middleton, 142 Ill. 550; L. S. & M. S. Ry. Co. v. Parker, 131 Ill. 557. This question of negligence of appellant company, as well as that of the contributory negligence of deceased are also questions of fact for a jury, whose verdict in relation thereto should not be set aside unless this court finds that such verdict is either unsupported by the evidence, or is against the manifest weight of the evidence upon these questions,—neither of which do we find.

Appellant strenuously insists that the declaration does not state a cause of action and is insufficient to sustain a judgment, and cites in support of its contention McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232, and Mackey v. Northern Milling Co., 210 id. 115. In the McAndrews case it was alleged that plaintiff was upon and about to unload a car standing upon one of the tracks of the defendant railroad, and while exercising ordinary care, etc., the company, without giving the plaintiff any warning, negligently pushed certain other cars against that on which the plaintiff was standing. It was claimed that the declaration did not aver substantive facts showing that the company owed the plaintiff any duty to warn him that it was about to move the cars, and the Supreme Court sustained the contention. It should be noted that-the charge of negligence in the declaration in that case was merely that the. railroad company did not warn the deceased, and the court held that the declaration did not state any facts showing an obligation on its part to do so.

The Mackey case was decided in favor of the defendant upon the ground that the allegation in the declaration that appellant was “lawfully” upon the track, was not sufficient to put the defendant company in the attitude of being negligent; but the court further said that “it is not stated that Mackey’s duties necessarily required him to be on the side-track at the time of the accident, or that he was performing any duty he owed appellee, or that appellee had any reason to believe or suspect that said Mackey would be there in a position of danger.” In the case at bar the declaration alleges the joint operation, and control of the track; that the appellant company placed cars upon that track for the Northwestern Company which the latter hauled away; that the track was constructed upon a sharp curve, and that it became the duty of the defendants in the joint operation of said track to ^conduct their business with due care for the safety of employes of either of said defendants whose duties required them to be on or about said track or to cross same, and that the appellant company failed to do so; that Leavitt, who was an employe of the Northwestern Company, and had charge of the cars placed on the track for it, was in the discharge of his said duties, and, with due care and caution for his own safety, crossing said track. We are of the opinion that the averments in the declaration in the case a\ bar are sufficient to distinguish the case from the Mackey and McAndrews cases, and that appellant’s contention in relation thereto cannot be sustained.

If the declaration in the case at bar states a cause of action, as we think it does, even though the declaration is in such general terms as to constitute a defective statement of the cause of action, appellant should have raised its objection to the sufficiency of the declaration in the court below, and by appropriate action preserved its rights to challenge the declaration upon such grounds in this court. See Chicago & Alton R. R. Co. v. Clausen, 173 Ill. 100, where it is said, “a defect in pleading, in substance or form, which would be fatal on demurrer, is cured by verdict where the issue joined is such as necessarily requires proof of the facts so imperfectly stated or omitted.”

The judgment of the court below will be affirmed.

Judgment affirmed.

Mr. Justice Smith dissents.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    William J. Kelly, Appellee, v. Commonwealth Electric Company, Appellant.
    Gen. No. 16,092.
    1. Contributory negligence—when not, as a matter of law to fail to wear rubber gloves. Held, under the evidence in this case that the question whether the plaintiff in failing to wear rubber gloves in handling dead electric wires was guilty of contributory negligence, was, notwithstanding such .wires were being taken down immediately over live wires, a question of fact for the jury.
    2. Evidence—what not improper in personal injury action. In an action for injury from electric shock, held, that the following question to which the answer “No” was given, was not so improper as to affect a judgment for the plaintiff: “At the time that you took hold of the wire with your right hand and got the shock, or at any time before that, did you know that there was any current of electricity in that?”
    3. Evidence—effect’ where cross-examination may remove prejudice. Notwithstanding evidence may be improper if its baneful effect may be removed by cross-examination reversible error will rarely be held to have been committed.

      4. Instructions—how may be cured. The incompleteness of one instruction may be .supplied by the completeness of another.
    5. Verdicts—when remittitur cures. A remittitur will cure an excessive verdict if such verdict is not apparently the result of passion, prejudice or undue influence.
    6. Verdicts—when not excessive. A verdict reduced by remittitur to $7500 is not excessive where it appears that the plaintiff at the time of his injury was earning $3 per day and sustained as a result of his injury largely, if not entirely, the loss of the use of his right hand.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Robert J. Slater, for appellant.
    John G. King and James D. Power, for appellee.
   Mr. Justice Clark

delivered the opinioin of the court.

The appellee, hereinafter called the plaintiff, was a lineman in the employ of the appellant, hereinafter called the defendant, and on April 5, 1907, was injured while at work on a pole of the defendant by receiving an electric burn from a wire which he was engaged in handling.

There was a trial in the Circuit Court before the court and a jury, which resulted in a verdict for the plaintiff of $12,000. A motion for a new trial was denied upon the plaintiff’s entering a remittitur of $4,500. Thereupon a judgment for $7,500 was rendered, from which judgment this appeal is taken.

We are asked to reverse the judgment, the grounds alleged being that the court erred in refusing to instruct the jury to find the defendant not guilty; that the verdict is against the manifest weight of the evidence; that the court erred in its rulings upon evidence ; that there were errors in the instructions, and that the verdict is excessive.

The accident happened on a pole at the northwest corner of the intersection of Ashland avenue and the alley south of Chicago avenue, in the city of Chicago. The appellant had a line of poles, from 100 to 125 feet apart, located along the west side of Ashland avenue, a north and south street, and extending north from an alley in the block south of Grand avenue, crossing Grand avenue, Chicago ayenue one half mile north of Grand avenue, Division street one half mile north of Chicago avenue, and ending at Baumann avenue, one quarter mile north of Division street. Grand avenue, Chicago avenue, Division street and Baumann avenue all run east and west, and intersect Ashland avenue. On each of these poles were two cross-arms, one above the other, extending east and west, the upper cross-arm being 20 or 22 inches above the lower. Each cross-arm was equipped with four pins ten inches apart on each side of the pole. Attached to the four pins west of the pole, on the upper cross-arms, were four wires, forming a three-phase circuit, designated as circuit No. 59. This circuit consisted of one neutral or return wire, also spoken of as the “east” wire, attached to the first pin west of the pole, and three primary-phase wires, otherwise called simply “primary,” “hot,” “live” or “charged” wires, attached to the second, third and fourth pins west of the pole". These pins are also referred to as pins “1,” “2,” “3” and “4,” from the west end of the cross-arm, pin “4” being the one to which the neutral was attached, next to the pole. Circuit No. 59 was fed from the south through a line of wires leading to it from the alley south of Grand avenue. The three primary-phaq-'e wires were also connected, at Division street, with and fed from the three primary-phase wires of another three-phase circuit, running east and west, along the north side of Division street, which in turn connected with an underground line west of Ashland avenue. This connection was made by means of short tap-wires.

Attached to the pins west of the pole on the lower cross-arm were two wires, forming a single-phase circuit, designated as circuit No. 11. This circuit consisted of one primary-phase wire, also called the “east” wire, attached to the first pin west of the pole, and one neutral wire attached to the second pin west of the pole. Circuit No. 11 was fed from an underground circuit, the two wires of which led up a pole, about 25 feet west of the line of poles above mentioned, in an alley running west from Ashland avenue, in the block immediately south of Chicago avenue, and extending east from that pole to one of the lines of-poles on Ashland avenue, which stood at the northwest corner of the intersection of the alley and Ashland avenue, attached to the third and fourth pins west of the pole, tapped over to the first and second pins west of the pole, and connected with the wires of No. 11 circuit. These pins are also referred to as pins “1,” “2,” “3,” and “4,” from the west end of the cross-arm, pin “4” being the one next to the pole, from which the primary of No. 11 circuit led north and south.

On the afternoon of the day before the accident the plaintiff, with others, working under the immediate direction of a foreman, Noak Johnson, was engaged in taking down wires of circuit No. 59, between Chicago avenue and Gfrand avenue. It was testified to that before starting in on the work the foreman, Noak Johnson, told the plaintiff and the other men working with him that these wires were “dead.” The word “dead” as understood by the linemen meant that the wire was not charged with electricity; it did not mean that it was not grounded. All of the wires were not taken down in the afternoon, and on the following morning the plaintiff, between eight and nine o’clock, started to take down another one and received a shock which caused his injuries..

The contention of the appellant (the defendant below) is that the accident was caused by the plaintiff needlessly placing his right foot on the primary of No. 11 circuit, and at the same time holding in his right hand the east or neutral wire of No. 59 circuit, thereby creating either a complete circuit to ground from the primary-phase of No. 11 circuit through his body and the east wire of No. 59 circuit, as a neutral, or a short circuit between the primary-phase of No. 11 circuit and the east wire of No. 59 circuit, as a charged wire without ground, or in effect a primary wire. On the other hand, it is claimed by the plaintiff that in some way or other the wire on circuit No. 59 was charged with electricity through the negligence of the defendant, and that Kelly’s foot never came in contact with the primary wire of circuit No. 11 until after the accident; that when the accident occurred he changed position, so that when he was found with his shoe in contact with the wire of circuit No. 11 he was in a different position than he was when the accident occurred. The plaintiff testified that he was on the second cross-arm, the lower one, on the west side of the pole; that he thought he had one foot between the pins next to the pole, and the other between the second and third from the pole. He further testified that he did not make it a practice to stand on hot wires that were running along on that cross-arm, but kept pretty clear of them; that he always kept clear of them. He said “I never stand on a wire at all, because you are liable to break it down, and if it is a hot wire you are liable to get a shock.”

It is claimed by the plaintiff to have been shown by the testimony of one Aird, who was a sub-foreman of the defendant and a witness for the plaintiff, that the east wire of circuit No. 59 ran north from the scene of the accident to a transformer; that in the transformer it was in contact with another wire which in turn was in contact with a primary wire on Division street, the result being that the east wire was a live wire throughout its entire length and so remained until it was cut north of Kelly by another workman named Bradd after the accident, which action on the part of Bradd resulted in making it “dead” sonth of the cut. It is admitted by the plaintiff that Aird testified that he made a tap or connection between this wire and the neutral wire of Division street circuit, hut plaintiff insisted that it did not become a dead wire, and in the nature of things could not, for it still ran into the transformer and was still in connection with the primary wire of the Division street circuit, and nothing was done to disconnect it.

It appears from the evidence. that the defendant furnished the plaintiff with rubber gloves, to use when necessary, and that the plaintiff had a pair of these gloves with him at the time of the accident. It was further shown that it was not the custom to wear rubber gloves when handling dead wires, presumably for the reason that they were inconvenient and the workmen could accomplish more without them.

It is further contended by the plaintiff that the negligence of the foreman, Johnson, is shown by his admission that after the' wires of circuit No. 59 had been cut south of Grand avenue by his orders, he told the men that they were then “dead;” and by his further admission that at that time he knew that the cutting of the wires at that point would not make them dead unléss a source of supply to the south which had thus been cut off was the only source of supply, and by the further admission that he at that time did not know whether the source of supply from the south was the only source.

In the case of Commonwealth Electric Co. v. Rose, 214 Ill. 545, the Supreme Court had before it a somewhat similar case. In that case it was charged that the plaintiff’s intestate was negligent in not using a belt which might have prevented his falling to the ground, and also in not using rubber gloves. Mr. Justice Magruder, speaking for the court, after commenting upon the evidence in the case with respect to the non-use of the belt, continues as follows:

“What has been said is also applicable to the question, whether or not the deceased was guilty of negligence in not using rubb'er gloves. There is some proof, tending to show that there were rubber gloves in the wagon, in which the workmen rode, when they came to the point where the deceased and his companions were to do their work. There is, however, proof tending to show that rubber gloves are used entirely in handling what are called “live” wires, that is, wires with a current. The wires, which it was necessary for the deceased to handle in doing the work in which he was engaged, were not charged with any current, as we understand the testimony. In short, there is evidence tending to show that the use of rubber gloves by deceased in the work, which he was doing, would have been an inconvenience.
“We are unable to say that there is no evidence tending to show that the deceased was in the exercise of ordinary care for his own safety. The question whether or not he was in the exercise of such care with reference to the failure to use the belt, or the gloves, or with reference to the position occupied by him while he was engaged in his work, was submitted to the jury by the instructions, asked by and given for both parties.” '

We think the language peculiarly applicable' to the present case.

It is argued by the defendant, that while, as a matter of law, it may not be contributory negligence not to wear rubber gloves in handling dead wires, yet under the circumstances in this case, when such wires were being taken down immediately over live wires, the fact that the plaintiff did not have on such gloves very strongly indicates a want of ordinary care on his part. While it might be admitted that such action of the plaintiff was indicative of the want of ordinary care, it would not, in our opinion, be conclusive proof in that regard. We think that the question was properly left for the jury to determine, and that the verdict should not be set aside, because it cannot be said to be against the manifest weight or preponderance of the evidence.

Complaint is made that the court erred in overruling objections to certain questions that were asked of the plaintiff at the.hearing. On direct examination the plaintiff was asked the question, “Did you know there was any current in them then?”, and answered, “I don’t know; I thought they were dead.” There was an objection to the question, which was overruled by the court and exception taken. No ground for this objection was given at the time.

The plaintiff was then asked: “At the time that you took hold of the wire with your right hand and got the shock, or at any time before that, did you know that there was any current of electricity in that?” Objection was made that the question was leading and suggestive. The objection was overruled and the witness answered: “No.”

The argument is made by counsel for defendant that the questions assumed the very fact in issue, namely, whether there was a current of electricity in the wire, and that framed as the questions were the jury would be very liable to understand from them that the plaintiff testified that there was a current in the wire, although he did not know it when he took hold of the wire. We do not think that the jury could have been misled by the questions or the answers. The plaintiff evidently assumed, and doubtless had the right to do so, that there was no current of electricity in the wire, because he had been told by the foreman that it was “dead.” In any event the admission of the testimony, even if erroneously received, was not of such a character as should cause a reversal of the case.

The witness was asked the question, “Go on and tell us more particularly what was the matter with it” (referring to his hand), and answered, “All the tendon is gone from my wrist there.” A motion to strike out the answer was denied. It is urged that the motion should have been granted and the answer stricken because the witness was not competent to testify as to the condition of the tendon, and because there was no other evidence on the trial showing injury to the plaintiff’s wrist. The defendant had an opportunity to examine the witness as to his competency to testify in the matter, but did not do so, and we do not think that the action of the court in refusing to grant the motion should cause a reversal. We are unable ourselves to determine from the answer whether the witness referred to a tendon of the hand from the wrist down, or a tendon of the wrist itself, and we are not aided in that regard by any cross-examination of the witness by the defendant.

Two instructions were tendered by the plaintiff and given by the court. These had to do with the elements of damage which should be considered by the jury if they found the issues for the plaintiff. The first instruction was apparently approved by the Supreme Court in North Chicago Street Ry. Co. v. Fitzgibbons, 180 Ill. 466, and Bichardson v. Nelson, 221 Ill. 254. It appears to have been criticised in Keokuk Bridge Co. v. Wetzel, 228 Ill. 253, in that it should have been limited so as to apply only to the physical injury which was sustained.

While error is alleged by the defendant on account of the giving of the second instruction tendered by the plaintiff, the instruction is not criticised in the argument. In the closing part of the second instruction the jury were told in substance that if they found for the plaintiff their finding should be in such sum as, under the evidence and instructions of the court in the case, would be a fair compensation for the injuries the plaintiff sustained or would sustain, if any, “but only so far as such damages and injuries, if any, are claimed and alleged in the declaration and proved by the preponderance of the evidence.” We think this portion of the second instruction overcame the criticism of the first instruction, as made in Keokuk Bridge Co. v. Wetzel, supra.

Twenty-four instructions were tendered by the defendant, seventeen of which were given, and seven refused. We think the instructions given as a whole properly advised the jury of the rules by which they should be governed in arriving at their verdict in the case. We have carefully considered the argument of counsel upon the seven instructions which were refused, and in our opinion the court did not err in refusing such instructions. Several of them were covered by instructions given, and others were properly refused as having a tendency to mislead the jury.

The next point suggested by the defendant is that the damages are excessive. It is true that the trial judge thought the verdict of $12,000 too large, and required a remittitur of $4,500 therefrom. It is claimed by the defendant that the verdict can only be accounted for by passion, prejudice or misunderstanding on the part of the jury, and that the trial court must have so considered it in insisting upon so large a remittitur. In the case of Libby, McNeill & Libby v. Scherman, 146 Ill. 540, a judgment rendered for two-thirds of the amount of damages awarded by the jury, the court having required a remittitur of $2,500 from a verdict for $7,500, was sustained in this and the Supreme Court. We do not think the judgment in the present case should be reversed because of the amount. The plaintiff was in receipt of wages amounting to three dollars per day of eight hours, and testimony tends to indicate that he has largely, if not entirely, lost the use of his right hand.

We find no error in the record which should cause a reversal of the judgment, and it is therefore affirmed.

Judgment affirmed.


text:
    Spiros Kavooras, Appellee, v. The Insurance Company of Illinois, Appellant.
    Gen. No. 16,103.

      Insurance—when false swearing vitiates policy. Fraud committed by the insured and false swearing by him in making proofs of loss and in testifying in the action to recover for alleged loss, will vitiate and render absolutely void the policy sued upon if such policy provides that such effect shall result from such conduct.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with a finding of fact.
    Opinion filed February 6, 1912.
    Musgrave & Lee, for appellant.
    Symmes & Kirkland, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

In this case there is brought up for review a judgment for $772.34, entered in favor of the appellee and against the appellant, on an insurance policy. The case was tried before the court and a jury and there was a verdict for $1260.71, being the full amount of plaintiff’s claim. Motion for a new trial was made, which was denied by the court upon the appellee’s entering a remittitur of $488.75. The case was argued in this court in connection with case No. 16104, entitled Spiros Kavooras v. The Royal Insurance Company of Liverpool, (Post, p. 230). The case last mentioned was upon two insurance policies, both of which covered the stock of goods and fixtures of appellee, as did those in the suit now under consideration. One of the policies also contained a clause of $250 upon a glass porch to the store building.

Suit No. 16104 was submitted to the court without a jury on a stipulation upon the evidence adduced at the hearing before the court and jury in the present case. For convenience, therefore, the facts, so far as it may be necessary to set them out, will be recited in this opinion as controlling in the two cases.

The appellee conducted a grocery and meat market in 113th street, Pullman, Illinois, the premises consisting of a two story brick building, the front part of the lower floor of which was used for the grocery and market. It was divided into two rooms of the same size, being about 15x36 feet, the two rooms being separated by a hall 8 feet in width. Behind the grocery store, but in no way connected with it, were bedrooms which had been occupied prior to the time of the second fire by clerks, and behind the meat market there was another room. Appellee procured three policies of insurance, the first being a policy in the Royal Insurance Company of Liverpool for $2,700, divided $1,900 on merchandise, $550 on furniture and fixtures, and $250 on a glass porch on the front of the premises. This policy was issued in October, 1903, for one year, and extended thereafter for an additional year to October, 1905. The second policy was procured in June, 1904, and was issued by the appellant company. Its period was for one year, and it was divided $900 on merchandise and $400 on furniture and fixtures. On August 1, 1904, a third policy was obtained from the Royal Insurance Company for $2,000, divided $1,500 on merchandise and $500 on furniture and fixtures.

There is some testimony to the effect that when each policy was issued the representative of the insurance company supposed it was the only one issued on the property. Verhaar, the agent of the appellant, testified that when the policy of the company he represented was issued Kavooras told him there was no other insurance on the property; that he refuse^ to issue a policy for $2,500 on the merchandise and fixtures as Kavooras desired, but finally consented to issue the one for $1,300 which is the one in issue in this case.

On Thursday night, January 26, 1905, the first fire occurred on the premises. There was a place burned in the floor of the hall about two feet by three or four feet. Appellee testified that “there was no other part of the store where the wood was burned except in the floor and in the partition a little by the door.” The following Monday afternoon, January 30th, a representative of the Koyal' Insurance Company went to the appellee’s store with Mr. Pon, a local agent, to examine the premises, and requested appellee to make an inventory of all the merchandise on the premises. It appears that Kavooras then set about making such an inventory by calling off the items to an employe, Miss Mamie Chadwick, who wrote them down together with the values as indicated by Kavooras. Kavooras insisted at the trial that this list included only the property damaged by smoke at the time of the first fire, but Miss Chadwick testified that it was substantially a complete inventory of the merchandise in the store. The total value of the property in this inventory is shown -to be about $700, while Kavooras in his testimony placed the value of the merchandise in the store at the time of the second fire, two and one half days later, at $4,300. The second fire resulted in the complete destruction of the property. This fire occurred on the night of February 2nd-3rd. Between the dates of. the two fires, and while the inventory was being completed, two representatives of the insurance companies called on Kavooras with reference to an adjustment of the loss caused by smoke at the first fire, and agreed to the payment of $150—$130 on the merchandise and $20 on fixtures. This amount was not paid, apparently because of the occurrence of the second fire so soon thereafter. The statement prepared by Miss Chadwick and the appellee apparently placed the value of the fixtures at $750 and the damage to them at $20. No detailed statement was made of the fixtures, and at the trial of the case the insurance companies made no proof as to their value, so that the value placed upon them by the appellee governed. The fixtures were shown to be largely “second-hand.”

The inventory referred to was checked by Mather and Newmark, the adjusters of the insurance companies, and the substance of their testimony is to the effect that it correctly sets forth in detail substantially all the merchandise in the store two days before the occurrence of the second fire. ' Kavooras, on the other hand, testifies that it includes only a list of property damaged. Miss Chadwick in a criminal suit against Kavooras for arson ■ (her testimony being read into the record in this case), testified that a week before the criminal case was heard Kavooras came to her home and told her when she testified she should testify that “it was just the loss.” “He said when you tell them why you say that the stock you took was the damaged stock.” She further testified “I know of my own knowledge as to whether this was damaged goods or whether it was the entire stock. It was the entire stock.” It ought to be said that in the criminal proceeding Kavooras was acquitted. The jury in the case we are now considering found specially that the plaintiff did not wilfully and intentionally make a false statement to the defendant in the proofs of loss, either as to the merchandise or the furniture and fixtures. In his testimony Kavooras undertook from memory to give the various items of merchandise in his store on February 2nd, and also their value. In-the aggregate the value of the merchandise so sworn by him to have been in the store amounts to about $4,300. On cross-examination he testified that the total value of the merchandise in the store was between five and six thousand dollars. On re-direct he testified that the value was between $4,500 and $5,000. In proofs of loss made by him nearly two months after the fire he placed the value at $4,114. This amount was apparently arrived at by the following computation made by a so-called independent adjuster:

“Mebchandise Statement.
Mdse, as per "bills of purchase from Sept.
24, 1903, to February 3, 1905............$30669.08
Cash purchases from Sept. 24, 1903, to
February 3, 1905....................... 14945.00
$45614.08
Sales.
Mdse, sold from Sept. 24, 1903,
to February 3, 1905...........$49800.00
Less 20 per cent Gross profit..... 8300.00
Mdse, on hand February 3rd, 1905, $4114.08

While there was a verdict of a jury in the present case, the amount of the judgment was practically determined by the court before whom the case was tried, as was the judgment in the case against the Boyal Insurance Company, the judgment in this case being consistent with the finding of facts in the case last referred to. The particular finding on the subject now being considered was as follows:

“1. The court finds from the evidence in this case that the fair market value of all the merchandise in the premises referred to in plaintiff’s declaration in this case was, on January 3l, 1905, the sum of $713.94; that the plaintiff purchased between the date of the fire of January 26, 1905, and February 3, 1905, merchandise of the fair market value of $700.00; that the plaintiff sold during the last 2 1-2 days preceding the fire of February 3, 1905, merchandise of the fair market value of $250; that there was in the premises referred to in plaintiff’s declaration at the date of the fire of February 3, 1905, merchandise of the fair market value of $1,163.94.”

The policies in both cases all contained the following provision: “This entire policy shall be void in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after the loss.”

The contention of the appellant in this case, as well as that of the Boyal Insurance Company in the case against it, is that the policy is void (a) because of the fraud and wilful false swearing of the plaintiff below with regard to the cash value of the merchandise on the premises on the 3rd of February, 1905, and (b) because of the fraud and false swearing of the plaintiff below in the proofs of loss to the effect that the fire did not originate by any act, design or procurement on the part of the insured.

Á careful study of the many cases cited by the parties to the controversy convinces us that the case is unique in many particulars. The court below has found that so far as the merchandise is concerned, the clauses in the policies covering it were in amount nearly four times the actual value of that merchandise. He also finds that the value of the stock in appellee’s store on January 31,1905, was correctly stated in "the inventory prepared by or under the direction of the appellee on that date, namely $713.94. He bases the amount of the judgment in each of the cases upon this inventory, and accepts the testimony of the appellee that within the 2 1-2 days after the inventory was made and the occasion of the second fire appellee had made a net addition of $450 to the value of the stock, thus fixing the value at $1,163.94 on the day of the second fire.

The court in the case against the Boyal Insurance Company held, and we believe correctly, the following proposition of law:

“4. If the court finds from the evidence in this case that the plaintiff, Spiros Kavooras, wilfully and intentionally made false statements to the defendant in sworn statements made by him in certain proofs of loss furnished by the plaintiff to the defendant of the value of the stock of merchandise in the premises referred to in the plaintiff’s declaration, at the time of the fire, namely, February 3, 1905, then each of the polices declared upon by the plaintiff in this suit is void, and the court must enter a finding for the defendant.”

The appellant contends, and yrn think with great reason, that if by his own statement made on January 31,1905, as determined by the court, appellee had fixed the value of his stock at $713.94, and if as he testified he had added only $450 in value to that stock on the following 2 1-2 days, he could not on March 30, 1905, make oath that the value of the stock on February 3, 1905, was $4,114 without being guilty of wilfully and intentionally making a false statement for the purpose of cheating and defrauding the appellant and the Koyal Insurance Company. It is argued also, and again with great persuasiveness, that on the trial of the case four -years later the appellee must have made false statements wilfully and intentionally when he testified at one time in the course of his examination that the value of his stock of merchandise was $4,300; at another from “five to six thousand dollars,” and again when asked by his counsel on re-direct examination, “from $4,500 to $5,000.”

Tbje appellee testified at the trial that he never kept on hand less than $1,400 worth of canned goods, and that canned goods of not less than that value were destroyed in the second fire. The inventory of January 31, 1905, by which the court below held in effect that the appellee was bound, shows canned goods of the value of $173.82. It follows therefore that if his testimony at the trial is to be believed he must have bought canned goods of the value of more than $1,225 during the two days which intervened between the making of the inventory and the occurrence of the second fire, whereas he testified and the court found that his purchases of all kinds of merchandise during that time amounted to $700 only. The aggregate of the canned goods he claimed in his testimony to have been destroyed was more than 7000 cans. The record shows the amount of shelving in the store, and also contains what purports to be a picture of the interior of the store, offered in evidence by the appellee. The argument has been made by counsel for appellant that there could not possibly have been upon the shelves more than between nine and ten hundred cans, and that the picture indicates that there were not as many as that in the store when the picture was taken.

Many discrepancies in the testimony of the appellee are shown, among them the following: On direct examination he testified that the value of all the nuts that he had in the place was between $100 and $125, not less than $100. On cross-examination he placed the value between $50 and $60.

On direct examination he said his stock of tobacco and cigars was worth between $175 and $200, while on cross-examination he placed the value at $125 to $135.

On direct examination he said his stock of candy was worth from $150 to $165, not less than $150; on cross-examination he testified that the value of the candy on hand was $75 to $100.

On direct examination he testified that the total value of flour in sacks and barrels was about $135. On cross-examination he stated that the value was not less than $175, etc.

We have carefully read all the testimony in the case as it appears in the record, and are of the opinion that the court rightly reached the conclusion that the value of all the merchandise in the store did not exceed $1,-163.94. We cannot, however, agree with the trial court in the conclusion that he must have reached in order to justify the entering of the judgments in the two cases,—that the appellee was not guilty of false swearing in the proofs of loss which he made on March 30, 1905, and in the testimony which he gave at the hearing of the case.

The amount of the policies covering the merchandise aggregated more than four times the value of such merchandise. There is a dispute in the testimony as to whether or not the Insurance Company of the State of Illinois knew of the existence of the other two policies. The agent who issued the policy and' fixed the amount testified that when the policy was issued, in his opinion $1,300 was all that should properly be carried upon the stock and fixtures; that he refused to issue a policy for a larger amount, and was told by Kavooras that he had no other insurance. On the other hand, Kavooras testified that he told the agent that he did have other insurance and that the agent then consented to issue and did issue the policy in question.

At the first fire small damage was done, but just before the occurrence of the second fire the clerks who theretofore had been sleeping in the building ceased to occupy the rooms at the suggestion or request of Kavooras. Kavooras says that he made the suggestion because of the extreme cold, although nothing is disclosed in the record tending to show that any effort was made to protect the perishable fruits and vegetables which were in the store, while Kavooras testified that it had been his custom to keep fires in the store theretofore in order to protect these perishable articles.

We think the over-insurance and the other circumstances of the case completely justfy the conclusion that Kavooras, both in the making of the proofs of loss and in his testimony at the trial was guilty of wilful false swearing. In the case of Lycoming Fire Insurance Company v. Rubin, 79 Ill. 402, the false statement alleged was with regard to the amount of stock plaintiff had on hand in his premises. After finding that the evidence showed that the value of the stock was not to exceed $1,500, while he had procured, by his representation, an insurance on a value of $3,-000, the court held that:

“Where a party, by false representations as to the amount and value of his stock of goods, obtains a policy of insurance upon a valuation at twice the value of the goods, this, of itself, renders the policy absolutely void.”

The case of Home Insurance Company v. Mendenhall, 164 Ill. 458, is referred to by the appellee. In that case it appeared that the proofs of loss were made by an adjuster for the Insurance Company, and that the only falsity alleged was as to the condition of the title to the property. The court held that if this had been shown to be a fact by the Insurance Company it would defeat a recovery under the policy. (Page 462.) It appeared in the case, however, that the Appellate Court had found that there was no reason to believe that the assured intended or attempted to commit fraud upon the company, y and that no such fraud was shown.

Some of the authorities bearing on the subject are: Va. Fire & Marine Ins. Co. v. Vaughn, 14 S. E. 754; Clafflin v. Insurance Co., 110 U. S. 81; Gies v. Bechtner, 12 Minn. 183.

We think the case is clearly distinguishable from Commercial Company v. Friedlander, 156 Ill. 595 (57 App. 372), and the other cases cited by appellee.

The judgment will be reversed without remanding and a judgment entered here upon a finding of fact.

Judgment reversed with a finding of fact.


text:
    Spiros Kavooras, Appellee, v. The Royal Insurance Company of Liverpool, Appellant.
    Gen. No. 16,104.

      Insurance—what does not waive forfeiture. Demanding a sworn examination of the insured does not waive a forfeiture effected by the conduct of the assured in swearing falsely to proofs of loss.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Beversed with finding of fact.
    Opinion filed February 6, 1912.
    Musgrave & Lee, for appellant.
    Symmes & Kirkland, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This suit was brought upon two insurance policies covering the same property as that involved in a suit which has been considered on appeal by this court, entitled Spiros Kavooras v. The Insurance Company of the State of Illinois, general number 16103. That case was tried before the court and a jury; the present case was tried before the court without a jury. The facts of this case are stated in the opinion filed this day in that case. (Ante, p. 220.)

In the present proceeding, namely that against the Boyal Insurance Company of Liverpool, it is argued by the appellee that there was a waiver of the forfeiture by the Boyal Insurance Company. This waiver, as alleged, was occasioned by a demand for a sworn examination. It is true this demand was made after the proofs of loss were submitted and after the adjusters for the Insurance Company had become aware of the inventory taken directly after the first fire and a few days prior to the occurrence of the second fire. We do not think, however, that this can be regarded as a waiver of the condition of the policy with reference to the false statements. Before the second fire occurred, and after the inventory was made, it appears from the record that the insured bought a considerable amount of goods, the exact amount not being known. The charge is also made, as stated in the opinion in the case against the Insurance Company of the State of Illinois, that the appellee made false statements at the trial, and we agree with the appellant in this contention.

For the reasons stated in Kavooras v. The Insurance Company of the State of Illinois, supra, and those given in this opinion, the judgment will be reversed without remanding, and a judgment entered here on a finding of fact.

Judgment reversed with finding of fact.


text:
    Chicago Title & Trust Company, Administrator, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    Gen. No. 16,115.

      Instructions—when peremptory should he given predicated upon the opinion rendered upon a former appeal. If an opinion be rendered upon one appeal in which it is held that the doctrine res ipsa loquitur has no application, and otherwise there was no evidence justifying a recovery, upon a succeeding trial, a peremptory instruction should be given for the defendant if the additional evidence offered was merely cumulative of that contained in the previous record.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed February 6, 1912.

      Calhoun, Ltford & Sheean, for appellant; E. H. Seneff, of counsel.
    ' John C. Trainor, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is the second appeal of this case. After this appeal was taken John Beilly died and The Chicago Title & Trust Company, administrator, has been substituted as appellee. On the first trial there was a verdict and judgment for $6,500, which was affirmed by this court. The judgment, however, was reversed by the Supreme Court. C. & E. I. R. R. Co. v. Reilly, 212 Ill. 506. On a second trial of the case in the Circuit Court there was a verdict of a jury for $20,000. A remittitur of $7,500 was filed, and a judgment was entered upon the verdict after such remittitur of $12,-500. The record made at this last trial is now brought before us on appeal for review.

The injuries sustained by the appellee’s intestate are claimed to have been occasioned by his being struck by a piece of timber projecting from a car in a train of the appellant. The accident' happened at the intersection of appellant’s track and Dearborn street, near 115th street, in Chicago, on October 30, 1897, at about 8:00 p. m.

The testimony in the ease is substantiallly the same as that in the previous record, with the exception of the testimony of one witness, namely Joseph E. Farley, which will hereinafter be referred to.

There was no evidence before the court on the last appeal to show how the car of; lumber from which the timber which caused the accident projected was loaded—whether skillfully or otherwise—or whether the projecting timber was the result of accident or negligence, or how long it had been in the position it was when it caused the injury.

The presiding judge at the first trial permitted the verdict to stand, and his decision in that regard was sustained by this court on the theory that the maxim res ipsa loquitur applied. In reversing the case the Supreme Court held that it did not belong to that class of cases where the rule could be applied, and that for that reason the peremptory instruction offered by the Railroad Company, appellant, should have been given. The court in its opinion after making a succinct statement of the facts, used the following language: “There is nothing to show that the projecting timber, even if it can be said it would be evidence of negligence if intentionally allowed to remain in the position it was, had been so long projecting that the appellant could or should have had notice thereof.”

The testimony of Joseph E. Farley was to the effect that he was a private detective by profession; that on the evening of October 30, 1897, he happened to be at the depot in Chicago Heights, a station on the line of appellant’s railroad, thirteen miles south of Kensington ; that while at this station, between six and seven o’clock in the evening, and after it was dark, he saw a freight train go north at a speed too fast for any of the train men to get off and again board the train; that the train did not stop at Chicago Heights; that none of the train men got off to register or do anything of that sort, but as the train went through Chicago Heights the witness observed (to use his own language) “some very heavy timber piled three or four feet high, loaded on two flat cars. The timbers extended over both cars. One thing particularly that my attention was attracted to was three sticks or sleepers placed in between the heavy timbers. One of them stuck out about two and a half or three feet, I should judge, on the left hand side of the car facing the engine. ’ ’ This testimony was taken about twelve years after the accident. The witness, however, claimed to remember the occurrence distinctly because it was Hallowe’en and because about six weeks after the accident he happened to be in Kensington and heard some one talk in a saloon concerning the accident having occurred there. He testified that he talked to no one about the matter until five or six months later, when he was called upon by someone from the office of the attorney for the appellee, and that he had been interviewed in regard to the case not less than twelve or fifteen times before the trial.

The proof shows that Chicago Heights is thirteen miles south of Kensington; that between Chicago Heights and Kensington there was but one side track, and no regular stopping place for freight trains. It was also shown that north from Momence or Danville the first yard or inspection point was north of Kensington, at what was known as Oakdale yard, which is some distance north of where the accident occurred.

In the opinion of the Supreme Court in passing upon the case, the following language is used:

“In the case at bar the plaintiff was standng on a street crossing, and the appellant only owed him the same duty that it owed the public in general,— that is, reasonable diligence and care to avoid injury. So far as any thing in the record discloses, the injury sustained by the plaintiff was the result of a pure accident, and for such the law provides no compensation. (Lewis v. Flint and Pere Marquette Railway Co., 54 Mich. 55.) The only evidence the record contains with reference to the promoting cause of the injury would indicate it to have been the result of accident. Brown, the only eye witness to describe the projecting timber which it is claimed struck the plaintiff, stated: ‘I noticed lumber on the train. The sleepers under the timbers on the car slipped.’ The witness also stated that the night was so dark and foggy and no light near, that he could not see the plaintiff, who was just across the street. So, while he did testify that the timber projected about eighteen inches or two feet beyond the side of the car, the conditions were not such as to preclude the possibility of mistake in the estimate of the witness. There is no evidence as to how, when or where the car was loaded or how long a time the timber had been projecting from the car. The condition can be accounted for as readily on the hypothesis of pure accident and absence of negligence as upon the' ground of negligence, and the rule is well settled that negligence cannot be presumed where nothing is done out of the usual course of business unless that course itself is improper.”

The appellee insists that the testimony of Farley, which is all that differentiates the record from that of the previous trial, warranted the refusal of the trial court to direct a verdict under the law applicable to the case as announced by the Supreme Court in its opinion heretofore referred to.

The declaration is in two counts. The negligence alleged in the first count is that the cars in question were so negligently loaded with timber that a piece thereof projected. Counsel for appellant contend, and in this we agree, that the testimony of Farley would not establish the fact that the cars were negligently loaded, and therefore would not be proof of the negligence averred in the first count.

In the second count the negligence alleged is that the train was so operated and managed that the said piece came to project, and that the defendant well knew of the dangerous and unsafe condition of the said freight train. If the language of the second count is to be construed as though it read: ‘ ‘ The defendant well knew or ought to have Tmown of the dangerous and unsafe condition of its said freight train,” etc., can it be said that the testimony of Farley was of such a character as to establish the charge of negligence as made in this count so construed? As will have been noticed, the testimony of Brown at the first? trial was to the effect that the timber extended from the car eighteen inches to two feet. At the last trial he stated that it extended not less than two and a half feet. Farley’s testimony was to the effect that one of the pieces of timber stuck out two and a half or three feet; that it was on the left hand side of the car facing the engine. It was a dark night and between six and seven o ’clock when Farley claims to have observed the train at Chicago Heights.

The well known rule is conceded by the appellee to be that when a cause is reversed by an appellate tribunal and remanded for a new trial, the principles announced by the appellate tribunal in its opinion on a retrial of the case in the court to which the case is remanded must control. Spring Valley Coal Company v. Patting, 210 Ill. 342. The same rule is of course controlling upon this court on reviewing a ease retried in the court to which it had been remanded by the Supreme Court.

Is the testimony of Farley cumulative merely to the testimony of Brown upon the proposition that the timber was extending out from the car? Or is it to be said that the testimony of Farley that he saw a projecting timber on a car in a train passing Chicago Heights, thirteen miles from the place of the accident, an hour and a half prior to the accident, sufficient to warrant the conclusion or inference that the appellant knew or ought to have known of the condition? If the testimony is merely cumulative, then the trial court should have obeyed the instruction of the Supreme Court and directed a verdict for the appellant. Rising v. Carr, 70 Ill. 596.

After having given the matter most careful consideration, we have come to the conclusion that the testimony of Farley, if taken as true, does not show such a state of things as amounted to notice to the appellant, even if it be assumed that the timber which he says was projecting was the same one Brown observed. The Supreme Court in its opinion, impliedly at least, expresses a doubt as to whether or not it would be evidence of negligence if the appellant had intentionally allowed the projecting timber to remain in the position it was, even if it had had notice thereof. We think the peremptory instruction requested by the appellant should have been given, in order to give effect to the law of the case as established by the Supreme Court. Inasmuch as the testimony of Farley stands uncontradicted in the record, the point we have been discussing becomes, as we understand it, a question of law, and our disposition of it may be reviewed by the Supreme Court if the case is presented to that tribunal for review.

Other grounds for reversal have been urged upon us by the appellant, such as the improper conduct of counsel for the appellee, errors in the giving and refusing of instructions, and the improper admission of 'testimony. We do not wish it to be assumed that by this opinion we have passed upon these questions favorably to the appellee or otherwise. Having taken the view of the case that we have, it is unnecessary for us to discuss the other errors alleged, and we refrain from doing so.

For the reasons stated the judgment of the Circuit Court will be reversed.

Reversed.


author: Mb. Justice Clark

text:
    John Glaza, Appellee, v. Great Northern Moulding Company, Appellant.
    Gen. No. 16,136.
    1. Negligence—what establishes prima facie ease. Non-compliance with an ordinance providing for the protection of machinery, when established, makes a prima facie case of negligence.
    2. Master and servant—when question of assumed rislc not one of law. The question of whether a risk has been assumed does not become one of law unless the evidence is such that no reasonable mind can conclude otherwise than that the risk had been assumed.
    3. Contributory negligence—injury from unguarded machine. If an injury results from an unguarded machine, whether there was contributory negligence by the plaintiff is to be determined by the jury from a consideration of all the facts and circumstances connected with the accident including the matter of alleged insufficient light, the slippery condition of the floor, etc., where the plaintiff was required to work.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty, E. E. Gray and J. C. M. Clow, for appellant.
    Matthew J. Huss and Gallagher & Messneb, for appellee.
   Mb. Justice Clark

delivered the opinion of the court.

The appellee, hereinafter called the plaintiff, recovered a judgment of $1,500 in the Superior Court against the appellant, hereinafter called the defendant, for damag-es for personal injuries received by the plaintiff April 17, 1905, while in the employ of the defendant. The case was tried before the court and a jury, the jury rendering a verdict in the amount for which judgment was afterwards entered.

The record shows that the plaintiff was a man of about sixty years of age. He was born in Poland, and had lived in the' city of Chicago about eighteen years prior to the accident. ' During twelve years of this time he had been in the employ of the defendant. For six years previous to the time of the accident he had worked on the fifth floor of the defendant’s mill, stripping moulding with a rip saw. He was paid nine dollars per week for this service. On the day of the accident he was told by the superintendent of the mill to go to the basement or first floor and ask the foreman to get some lumber. This was about eight o’clock in the forenoon. It would appear that some lumber was furnished him, but about 12:30 at noon he again saw the foreman and told him he did not have lumber enough. The foreman then said to him, according to the testimony of the plaintiff, that he should go down and rip the lumber himself, as the foreman did not have any man he could send for that purpose. Plaintiff testified that he told the foreman he was not well acquainted with the machine, and thereupon the foreman went with him and showed him how to work the machine and directed the plaintiff and his helper to proceed with the new work. There was a platform in front of the machine about four feet long. The machine had two or four rollers in front and two in the back on the table of the machine and there was a saw extending about eight inches above the table back of the rollers. The machine was operated by a belt from an overhead shaft which came down around a pulley on the right hand side of the machine. The cog-wheels operating the rolls were on the left hand side and on the edge of the machine, and had no covering or protection of any kind; they were four inches in diameter. The evidence tended to show that the room was poorly lighted, the light being mainly from a skylight about four or five feet square; that this skylight was not clean; that broken glass had been replaced by wood and sheet iron; that the skylight was covered with a wire screen, upon which were a lot of stones, bricks and other things, which tended to cut off the light. It appears that there were electric lamps hanging from wires in the room, but that it had not been the custom in the mill to use these electric lamps except in the winter time. The plaintiff testified that he did not know how to turn on the lamps, and that the conditions in respect to the light were the same when the foreman showed him how to operate the machine as when he worked upon it later. The right side of the machine was close to pipes which were covered by a box or boxes about 3 1-2 feet wide. About two feet from the machine on the left side there was a truck of lumber, and also a lumber pile about three feet high, and another lumber pile back of where the plaintiff stood of a similar height. At the back of the machine and in front of the platform there were sawdust and sticks on the floor. Plaintiff testified that he had never worked on the machine before the day on which he was injured, and that he had never seen it run by anyone before the day in question. He further testified that- he complained to the foreman because of the conditions there,- and especially about not having enough light. The manner in which the plaintiff was injured, as related by himself, is as follows:

“I had a board about ten inches wide, and the saw didn’t want to take that; then I went on the left hand side, and had to turn around, and when I was about to pull it out,—I was to make a step and my left foot caught, and I fell on the machine, and when I fell my hand caught on the two wheels on the edge of the machine; it was kind of dark and I couldn’t see the cog wheels. I couldn’t see them before I got hurt; I couldn’t see the wheels because when I fell I just fell on those two wheels.
“What caused me to fall was that I kind of caught my foot on a two foot stick and tripped; the strip my foot caught on was on the left hand side of the machine. It was under the lumber and near the machine, about two feet away from it. The lumber was piled up this way, and the stick came out from the lumber towards the machine about four inches. The stick was about two feet long, an inch thick and about 1 3-8 inches wide. There was saw-dust on the end of the stick and from the stick. The stick was covered with sawdust. At thé time I tripped on this piece of lumber, it was not kicked or knocked away. It remained in the same place where I kicked it. I had not seen this stick before I tripped and fell. It was covered with sawdust. I saw it for the first time when I fell. I saw it under my foot. I afterwards saw that it was between my feet. When I slipped, the helper was just pulling this board out, so as to hand it back to me, and I wanted to pass then, and my foot was caught, and I fell. The stick didn’t stand up, it was laying flat (indicating). I didn’t see it because it was covered with sawdust.”

He further testified that he was confined to his home for a year and seven months, and it appears that the accident necessitated the amputation of three fingers, plaintiff losing an inch and a half of his middle finger, two inches of the third finger and an inch of the small finger.

We are asked to reverse the judgment on the ground that the court erred in refusing to direct a verdict for the defendant, and because of alleged erroneous instructions given at the request of the plaintiff, and the refusal to give certain instructions as tendered by the defendant.

It is argued, first, that the defendant was not negligent in its conduct towards the plaintiff, and second, that plaintiff assumed the risk.

In the declaration the charge is made that the defendant was guilty of negligence in failing to comply with an ordinance of the city of Chicago. This ordinance was offered in evidence, and reads as follows:

“In every factory, work shop or other place where machinery is employed, the belting, shafting, gearing, elevators and every other portion of the machinery when so located as to endanger the lives and limbs of those employed therein while in the discharge of their duties, shall be, as far as practicable, so covered or guarded as to make them reasonably safe and to prevent injury to such employees. ’ ’

No attempt appears to have been made by the defendant to show that this ordinance was complied with. Non-compliance with the ordinance would seem to make a prima facie case of negligence. Commonwealth Elec. Co. v. Rose, 214 Ill. 545; C. & E. I. R. R. Co. v. Crose, 214 Ill. 602; U. S. Brg. Co. v. Stoltenberg, 211 Ill. 531; C. & E. I. R. R. Co. v. Monchell, 193 Ill. 208. In the case last mentioned the court held that it was not error to instruct the jury that the running of a train through a city in excess of the speed authorized by an ordinance of the city is negligence as a matter of law. The matter was dismissed by the appellant in its brief in the case before us by the mere statement that even with the existence of the ordinance shown, the law is clear that the plaintiff assumed the risk, and cites Browne v. Siegel, Cooper & Co., 191 Ill. 226, as being conclusive upon that point. In that case it was held that the owner of a building was not liable for the death of a servant caused by his falling down an open elevator shaft, where although the plaintiff’s evidence is sufficient to sustain the finding that the defendant was negligent in failing to safeguard the elevator entrance, as required by ordinance, yet the same evidence shows not only that deceased assumed the risk but was guilty of contributory negligence. It was further held that ordinarily whether a servant has assumed the danger which he encounters or has been guilty , of contributory negligence are questions of fact, but that they become questions of law when all reasonable minds could draw but one conclusion from the evidence. In our opinion, the case cited does not sustain the position of the defendant in the case now under consideration. We think it was .clearly within the province of the jury to determine whether under all the circumstances the plaintiff was guilty of contributory negligence. In determining this question they should have taken into consideration all the facts and circumstances connected with the accident, including the matter of alleged insufficient light, the slippery condition of the floor, etc., where the plaintiff was required to work. As said in Ames & Frost v. Strachurski, 145 Ill. 192:

“If by reason of the slippery condition of the floor, there was greater danger of employes losing their footing and falling against the machine, there was greater occasion for care and diligence in so guarding the machinery as to make it safe.for their workmen to be about it.”

The language used by the Supreme Court in Rock Island Sash Works v. Pohlman, 210 Ill. 133, might, we think, be used with propriety in the present case:

“The state of the proof as to the charge of negligence on the part of the appellant company was such as to warrant recovery unless the unprotected condition of the cog wheel was so well known to the appellee or was so plain and obvious that he should be charged with knowledge of it, and be regarded as having voluntarily incurred and assumed the risk of attempting to work in such close proximity to it. We are unable to find any proof in the record that the appellee knew there was an uncovered cog wheel there.”

The question of assumed risk was properly left to the jury to determine. Ross v. Shanley, 185 Ill. 390.

Complaint is made of the action of the court in giving three instructions tendered by the plaintiff, as well as the refusal of the court to give five instructions offered by the defendant. We think no error was committed by the court in these respects. Thirty-eight instructions were given to the jury, having been tendered in about equal proportions by the two parties to the litigation. These instructions we think fully advised the jury of the law by which it should be governed in reaching a verdict.

The judgment will be affirmed.

Judgment affirmed.