author: Mr. Justice Baume

text:
    Carrie Brodie, Appellee, v. City of Lewistown, Appellant.
    1. Negligence—what evidence competent to show notice of defective condition of sidewalk. Evidence as to the defective condition of a sidewalk adjoining that upon which an injury occurs is competent upon the question of constructive notice to the city if it was constructed at the same time and was in the same generally defective condition as the sidewalk in particular question.
    2. Evidence—how effect of should be limited^ If evidence is competent for one purpose and incompetent for another a party cannot complain if such evidence is received generally unless by motion or instruction he calls upon the court to limit its application.
    3. Evidence—when medical and surgical books incompetent. Statements contained in medical and surgical books are incompetent as independent evidence.
    4. Damages—when admission of erroneous evidence will not reverse. The erroneous admission of evidence which could only affect the question of damages will not reverse if the verdict rendered was not excessive.
    5. Appeals and errors—when rulings upon evidence not saved for

      review. In the absence of objections having been made rulings upon evidence are not saved for review.
    Action in case of personal injuries. Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    Lawrence W. James and Marvin T. Robison, for appellant; M. P. Rice, of counsel.
    Harvey H. Atherton, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

In this suit by appellee against appellant to recover damages for personal injuries alleged to have been caused by a defective sidewalk there was a verdict and judgment against appellant for $4,000.

That the sidewalk in question, which was constructed of boards or planks, was defective as alleged; that appellant had both actual and constructive notice of its condition in that regard; and that at the time appellee was injured as alleged she was in the exercise of due care and caution for her own safety are facts so clearly established by the competent evidence in the case that it would serve no useful purpose to enter into an extended discussion of such evidence.

The notice of the injury, required by the statute to be given to appellant, was in apt time and fully conformed with the requirements of the statute. The sidewalk adjoining the premises of P. E. Bailey and the Misses Barber was constructed at the same time and was in the same generally defective condition, and proof of such defective condition was proper as tending to show constructive notice thereof to ajopellant. City of Taylorville v. Stafford, 196 Ill. 288; City of Elgin v. Nofs, 200 Ill. 252; Same, 212 Ill. 20. Appellant concedes the propriety of the evidence for the purpose indicated, but insists that the evidence should have been limited to such purpose. If appellant had offered an instruction to that effect it would doubtless have been given to the jury. Evidence of accidents of a similar character upon the same sidewalk to other persons than appellee, while not competent for the purpose of showing independent acts of negligence, was competent as tending to show notice to appellant and also that the common cause of the accidents was a dangerous and unsafe thing. City of Taylorville v. Stafford, supra; City of Chicago v. Jarvis, 226 Ill. 614.

Over the objection of appellant, appellee was permitted to show that her family consisted of her husband and two children, a girl and boy, aged respectively ten and eight years. This evidence was improperly admitted, but as its admission in this case could have only affected the amount of damages, and the damages as hereafter considered, are not excessive, the error was harmless. The same may be said regarding the admission of evidence of the expenditure by appellee of $25 for clothing. It is also urged that certain other evidence relating to mental suffering endured by appellee as a result of her injuries, and as to the occupation of appellee and the amount of her earnings prior to her injuries, was improperly admitted. As this evidence was admitted without objection the question of its competency is not preserved for review. The court did not err in excluding the offer of appellant to show the statements contained in certain medical and surgical books relative to the character of the injuries sustained by appellee. City of Bloomington v. Schrock, 110 Ill. 219; Chicago City Ry. Co. v. Douglas, 104 Ill. App. 41; Weyh v. Chicago City Ry. Co., 148 Ill. App. 165.

The objections to the instructions given at the instance of appellee are wholly hypercritical. They state the law with substantial accuracy and have been repeatedly approved. Town of Normal v. Bright, 223 Ill. 9; Graham v. City of Rockford, 238 Ill. 214; Donk Bros. Coal Co. v. Thil, 228 Ill. 233; Wallace v. City of Farmington, 231 Ill. 232; Guianios v. DeCamp Coal Co., 242 Ill. 278.

Appellee’s injuries consisted of a fracture of the ulna, a dislocation of the radius, a stiffening of the wrist and fingers and injury to the nerves of her right arm and hand. The injuries were especially severe, difficult and obstinate of treatment, attended with great pain and suffering and are permanent in character.

• Appellee has expended more than $900 for necessary surgical and hospital attendance and charges, and at the time of the trial was still under'treatment by a physician and surgeon, and the' evidence shows that she would necessarily incur further expense for such treatment. We cannot say that the damages awarded are more than compensatory.

There is no prejudicial error in the record and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John Kamp, Appellee, v. William H. Bartlett et al., Appellants.
    1. Practice—section 13 of act pertaining to service upon non-resident partnerships construed. Held, that the word ‘ ‘ non-residents ’ ’ as used in this section of the Practice Act applied as well to non-residents of the county as to non-residents of the State. Watson v. Coon, 247 Ill. 414, followed.
    2. Pleading—nature of plea to jurisdiction. A plea to the jurisdiction of the court is a meritorious plea and is not, strictly speaking, a plea in abatement although it is in the nature of such a plea.
    3. Pleading—when requiring plea to merits error. A party who files a plea to the jurisdiction of the court over his person is entitled to have the issue presented by such plea determined by a jury and before such issue has been determined it is error for the court to require a plea on the merits, and the fact that a plea to the merits is filed pursuant to such an order, does not estop the party injured from assigning error.
    4. Waiver—what does not waive plea to jurisdiction. Held, that a plea to the jurisdiction duly filed was not waived (a) by agreement that the case should be passed at the defendants’ costs, or (b) by the filing of an aifidavit of the non-residence of a material witness, or (c) by a motion for leave to amend such plea to the jurisdiction; each of said steps having been taken with reference to the pending plea but without a limitation as to the purpose of appearance.
    Trover. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    George P. Merrick and William C. McHenry, for appellants.
    Pay & Dobbins and Herrick & Herrick, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in trover by appellee, John Kamp, against the appellants, William H. Bartlett, Frank P. Frazier, William T. Carrington, James A. Patten, George W. Patten, Henry J. Patten, Charles B. Pierce, John Grier and William F. Zeller, partners doing business as Bartlett, Frazier & Carrington, to recover the value of certain corn and oats alleged to have been stored by appellee in an elevator or warehouse conducted by appellants at Tolono, Champaign county, Illinois. In pursuance to a praecipe filed October 17, 1908, a summons was issued out of the circuit court of DeWitt county directed to the sheriff of said county to execute by serving the same on said appellants, and on October 19 said sheriff returned- said writ as having been duly served on appellants by reading the same to and at the same time delivering a true copy thereof to Amos Weedman, agent of said co-partnership, at its place of business in DeWitt county. It further appeared from the return on said summons that the appellants constituting the co-partnership were non-residents of, and were not found in DeWitt county. On October 30, 1908, appellee filed his declaration, and on November 16 following, appellants filed their plea to the jurisdiction of the court, wherein they averred that before and at the time of the commencement of the action the appellants, excepting John P. Grier, William T. Carrington and William P. Zeller, were and each of them was and from thence thitherto had been, and then still were, residing in the county of Cook in the State of Illinois and not in the county of DeWitt, and that the said Carrington, Grier and Zeller were and each of them was at the time of the commencement of the action and from thence thitherto had been and then were non-residents of the State of Illinois; that appellants were not nor were any of them found of served with process in DeWitt county but that service was pretended to have been had on them by process served upon one Amos Weedman, an agent of a co-partnership known as Bartlett, Patten & Company, but not an agent of the co-partnership doing business as Bartlett, Frazier & Carrington.

On November 17, following, appellee filed three additional counts to his declaration. Under date of November 18, 1908, there appears in the clerk’s record of the proceedings in this case an entry, as follows: “And now on this day come the parties to this cause and by agreement here made in open court this cause is passed at the defendants’ costs. Therefore it is considered by the court that the plaintiff do have and recover of and from the defendants in form as aforesaid by the order of the court his costs and charges in this behalf expended.” On November 21 appellants limiting their appearance for that purpose and purporting to have obtained leave of court so to do, filed their amended plea to the jurisdiction of the court wherein they averred the same facts stated in their original plea, omitting however the averment that Amos Weedman was an agent of a co-partnership known as Bartlett, Patten & Company, and further averred that the said Weedman was not at the time of said service of said process upon him, nor had he been at any time since said service of said process upon him, an agent of the appellants, partners doing business as Bartlett, Frazier & Carrington. Thereafter appellee by his several replications replied to said plea as follows: First, that the said appellants were engaged in business as a co-partnership, at the time of the service of said process, under the firm name of Bartlett, Frazier & Carrington, doing business in the said county of DeWitt, and that Amos Weedman was the agent of said co-partnership within said county and state at the time service of the said process in this cause was had upon him; second, that it was not true that the said firm of Bartlett, Patten & Company was any other or different than the said firm of Bartlett,'Frazier & Carrington, or that the said agent of the said firm of Bartlett, Patten & Company was any other than the agent of the appellants, and was transacting the business of the said appellants under the firm name and style of Bartlett, Patten & Company; third, that, on to-wit, the-day of November, A. D. 1908, the same being one of the regular days of the November term, A. D. 1908, of the circuit court of the said county of DeWitt, appellants, by their attorneys, did then and there, without limiting or in any wise restricting their appearance in said cause, enter their motion in said court before the trial judge thereof, asking for leave of said court to amend the plea theretofore filed by said appellants in said cause in said court, whereby said appellants did then and there submit themselves to the jurisdiction of said court, etc.; fourth, that since the filing of said plea, and on, to-wit, the 23rd day of November, A. D. 1908, the same being one of the regular days of the November term, A. D. 1908, of the circuit court of said county of DeWitt, said cause was called for trial on the issue made by the appellants ’ said plea, and appellants not then and there being ready for trial, said cause was, by agreement of the parties, then and there made in open court, without any of said parties in any wise restricting or limiting their appearance in said cause, passed by the said court at the cost of appellants, all of which will appear by the record thereof in said court remaining etc. On December 11, 1908, appellants further amended their plea to the jurisdiction by averring that at the time of the alleged service of said summons, the firm of Bartlett, Frazier & Carrington did not have a place of business in DeWitt county. On December 28, 1908, a trial by jury upon the issues made by the plea to the jurisdiction and the replications thereto resulted in a verdict for the appellee, which verdict was thereafter set aside by the court and a new trial awarded upon such issues. On June 21, 1909, appellee filed an additional replication to appellants’ plea to the jurisdiction wherein appellee averred that since the filing of said plea and on, to-wit, the 23rd day of November, A. D. 1908, the same being one of the regular days of the November term, A. D. 1908, of the circuit court of the said county of DeWitt said cause was called for trial on the issue made by the appellants’ said plea, and thereupon by the agreement of the parties then and there made in open court, without any of said parties to said cause in any wise restricting or limiting their appearance in said cause, said cause was passed by the said trial court at the cost of appellants and there and then the court did render judgment against appellants for said costs, whereby, etc. The replication was not signed by appellee or by his counsel. On July 17, 1909, appellants limiting their appearance for that purpose moved the court to strike said additional replication from the files, which motion was denied by the court, and upon its own motion the court ruled appellants to plead to the merits. Thereafter, appellants’ motion, under their special and limited appearance, to set aside the order requiring them to plead to the merits was denied and appellants thereupon protesting that the court should not take jurisdiction of their persons, and in obedience to the rule entered against them to plead to the merits, filed their plea of the general issue. A trial of the cause upon the merits resulted in a verdict and judgment against appellants for $3332.81.

It is first urged on behalf of appellants that, conceding Wéedman was their agent in DeWitt county, at the time service of summons was had upon him, such service did not give the court jurisdiction of their persons, because they were then and since, all non-residents of said county. In other words appellants insist that the word “non-residents” as employed in section 13 chapter 110 of the Revised Statutes, which provides for the service of process upon a co-partnership, the members of which are all non-residents, by service of process upon an agent of such co-partnership within this State means non-residents of the state and not non-residents of the county in which such co-partnership has a place of business. Upon this point it is sufficient to say that since this appeal was taken this court has held that the word “non-residents” as employed in the section of the Statute in question, means nonresidents of the county as well as non-residents of the State, and that such holding was affirmed by the Supreme Court in Watson v. Coon, 247 Ill. 414.

On behalf of appellee it is insisted that the appellants had submitted their persons to the jurisdiction of the court by entering their general appearance in the cause, and that the action of the circuit court requiring appellants, in consideration thereof, to plead to the merits was proper. In support of this insistence appellee relies, first, upon the recital in the record under date of November 18, 1908, heretofore quoted, to the effect that on that day came the parties to said cause and by agreement there made in open court said cause was passed at the defendants’ c@sts; second, that on November 25,1908, one of the attorneys for the appellants without specially limiting his appearance for that purpose made and filed his affidavit of the non-residence of a material witness whose deposition was desired; and third, that appellants without specially limiting their appearance moved the court for leave to amend their plea to the jurisdiction.

A plea to the jurisdiction of the court is a meritorious plea and is not, strictly speaking, a plea in abatement, although it is in the nature of such a plea. Safford v. Sangomo Ins. Co., 88 Ill. 296.

At the time the agreement was entered into by appellants that the cause might be passed at their costs, the only plea filed by them was their plea to the jurisdiction and the issues of fact raised by said plea were the only issues then presented for trial. The said agreement was referable solely to the cause upon such issues and did not operate as a waiver by appellants of their plea to the jurisdiction, or amount to a general appearance by them whereby the court acquired jurisdiction of their persons. That appellee understood said agreement was referable solely to the issues raised by the plea to the jurisdiction is apparent from an inspection of the replication to said plea wherein it is expressly set forth that said cause being called for trial on the issue made by said plea and appellants not then and there being ready for trial, said cause was by agreement of the parties passed by the court. The record does not disclose that appellants consented to the entry of a judgment against them for costs, hut merely that the cause would he passed at their costs. In contemplation of law the costs in a proceeding are paid as they accrue.

The affidavit of one of the attorneys for appellants as to the non-residence of a material witness who deposition was desired, cannot he held upon this record to have constituted a general appearance hy appellants. It was stipulated by the parties that the testimony of the witness in said deposition was solely upon the question raised hy the plea to the jurisdiction.

Appellants’ motion for leave to amend their plea to the jurisdiction was referable solely to said plea and did not operate to waive said plea. Pooler v. Southwick, 126 Ill. App. 264.

Appellants were entitled to a trial hy jury upon the issues of fact raised hy their plea to the jurisdiction of the court over their persons, and the court improperly required them to plead to- the merits until such issues were determined. The order of the court requiring appellants to plead, to the merits was equivalent to a judgment quod respondeat ouster, and the fact that in response thereto they pleaded over to the merits does not estop them from assigning for error the said judgment of the court. Brotherhood of Firemen v. Cramer, 164 Ill. 9.

The foregoing conclusions render it unnecessary to consider and determine the other errors assigned.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.

Mr. Justice Philbrick took no part.


author: Per Curiam:

text:
    John Leslie, Appellee, v. William H. Bartlett et al., Appellants.
    This case is controlled by the decision in Kamp v. Bartlett et al., ante, p. 338.
    Appeal from the Circuit Court of De "Witt county; the Hon. W. Gr. Cochran, Judge, presiding. Heard in this court at the May tei’m, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    George P. Merrick and William C. McHenry, for appellants.
    Ray & Dobbins and Herrick & Herrick, for appellee.
   Per Curiam:

The record on this appeal, so far as the same relates to the questions raised by appellants by their plea to the jurisdiction of the court over their persons, is precisely the same as the record in Kamp v. Bartlett, et al., wherein an opinion has this day been filed. Ante, p. 338. For the reasons stated in the Kamp case the judgment of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with the views there expressed.

Reversed and remanded.

Mr. Justice Philbrick took no part.


text:
    Robert Leslie, Appellee, v. William H. Bartlett et al., Appellants.
    This ease is controlled by the decision in Kamp v. Bartlett, ante, p. 338.
    Appeal from the Circuit Court of De Witt county; the Hon. W. G-. Cochean, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    George P. Merrick and William 0. McHenry, for appellants.
    Ray & Dobbins- and Herrick & Herrick, for appellee.
   Per Curiam:

The "record on this appeal, so far as the same relates to the questions raised by appellants by their plea to the jurisdiction of the court over their persons, is precisely the same as the record in Kamp v. Bartlett et al., wherein an opinion has this day been filed. Ante, p. 338. For the reasons stated in the Kamp case the judgment of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with the views there expressed.

Reversed and remanded.

Mr. Justice Philbrick took no part.


text:
    Carl F. Taylor, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Master and servant—how question of fellow-servants determined. Whether servants of the same master are fellow servants is ordinarily a question of fact to be determined by the jury under instructions by the eoui't.
    2. Master and servant—when doctrine of fellow-servants does not apply. While a master is not liable for an injury resulting to his servant from the negligence of a fellow-servant if such injury results from the negligence of the master concurring with the negligence of a fellow-servant, the servant can recover.
    3. Master and servant—what evidence tends to establish incompetency of servant. Evidence as to the general reputation of a servant, through whose negligence an injury is claimed to have occurred, for drinking intoxicating liquors to excess, is properly admitted.
    4. Personal injuries—what not essential to recovery. In order to recover in an action for personal injuries it is not essential that the plaintiff prove each and every count of his declaration.
    5. Instructions—when need not sum up enture case. An instruction which does not direct a verdict need not sum up the entire case.
    Philbrick, P. J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    Rehearing denied October 24, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Strawn & Strawn and Blinn & Covey, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Beach & Trapp, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Within the limits of its yards at Dwight the appellant, Chicago & Alton Eailroad Company, had, on April 24, 1907, several tracks running in a northeasterly and southwesterly direction, which from east to west were known as the business track, the north-hound main track, the south bound main track, a switch track known as No. 2, the main track of the Peoria division and a coal track. West of the coal track were located a round-house and turn-table, and between the main Peoria track and the south-bound main track were located a water tank and the depot. A track running in a southeasterly direction from the round-house and over the turn-table connected the coal track with the main Peoria track, and the coal track at its north end was also connected with the main Peoria track. The latter track was also connected with the main south-bound track by a switch track which crossed track No. 2 at its north end. At the point where said switch track connected with the main south-bound track there was a switch stand equipped with green and red lights for use at night, the green lights appearing when the switch was closed and the red lights appearing when the switch was open. There was also a cross-over track connecting the main south-bound track with the main north-bound track, the switch stand for which crossover track was located eight feet north of the switch stand last before mentioned, and was similarly equipped with green and red lights. Both of said switch stands were located on the west side of the main southbound track. At the point where said cross-over track connected with the main north-bound track there was a switch stand located on the east side of said track, which switch stand was also equipped with green and red lights. All of the levers which operated the switches at the above designated switch stands, were locked with similar locks, to which there were two keys, one being kept by the foreman of appellant’s yards and one by George Goodman, the night foreman at the round-house. At appellant’s station in Dwight an electric block signal system was operated, whereby when a train running at night on the main north-bound track entered the yard limits, about a mile and a quarter south of the station, the semaphore indicated a green light if the main north-bound track was clear and a, red light if said track was occupied. There was no automatic connection between the signals upon the switch stands and the semaphore signal.

At 12:45 o’clock a. m. on April 24,1907, an extra coal train, known as “extra 403,” with Charles Tyner as engineer and appellee, Carl F. Taylor, as fireman, left Bloomington with orders to proceed to Brighton Park. Extra 403 arrived at Dwight at 3:45 o ’clock a. m. The morning was very dark, and as said train was running at a speed of from 15 to 30 miles an hour on the main north-bound track, the engine collided with the tender of engine No. 230, which was then running backwards on the cross-over track connecting the main southbound and main north-bound tracks. At the time of the collision the tender of engine No. 230 was projected northeasterly within such close proximity to the west rail of the main north-bound track that it was struck about four feet from its east or rear end. Engine No. 230 was a freight engine which had arrived at Dwight from Peoria at 2:15 o’clock a. m., and was then taken in charge by George Goodman and John Brown, his helper. It was the duty of Goodman and Brown to supply the engine with coal and water and to use the same in moving cars when necessary and for these purposes they had the right to operate it within the yard limits, subject to rules, as follows:

“Yard engines have the right to work within the yard limits, regardless of second or inferior class trains, but will give way as soon as possible on their approach.”
“Yard engines will display the headlight in front and rear by night. When not provided with a headlight at rear, two white lights must be displayed. Yard engines will not display markers.”

While engine No. 230 was not a yard engine in the strict sense of the term, it was subject to be so used by Goodman and Brown and the rules governing the conduct of yard engines were either applicable to it or its conduct was governed by no- rules whatever, and it was an intruder upon the tracks at -the place of the collision. Extra 403 was running as an inferior class train and its movements were governed by the rules applicable to such trains, as follows:

“An inferior train must keep at least ten minutes off the time of a superior train in the same direction.”
“All trains except first class trains must approach all regular watering or coaling stations with great care, expecting to find preceding trains occupying the main track, whether it be a stopping place per timetable for such trains or not, and must approach the yard limits with train under control and run carefully through the yards. The responsibility for collisions at such points will rest with the approaching train.-”

As a result of the collision of extra 403 with engine No. 230, Goodman and Brown were killed, Tyner was slightly• injured, and appellee, Taylor, sustained very severe injuries, which in part required the amputation of his left leg below the knee. A trial of the case in the circuit court of Logan county resulted in a verdict and judgment against appellant for $15,000, from which judgment it prosecutes this appeal.

The acts of negligence alleged in the five several counts of the declaration upon which the case was submitted to the jury are, as follows: First, that appellant by its agents and servants, not fellow-servants of appellee, negligently ran engine No. 230 upon and along the cross-over track as extra 403 approached on the main north-bound track; second, that appellant negligently employed and retained in its employment careless, reckless and incompetent servants, viz: Goodman and Brown; third, that appellant left open and kept open the switch at the south- end of the crossover track whereby engine No. 230 when running north on the main south-bound track ran into said open switch and upon the cross-over track to the main north-bound track where said engine was struck by the engine of extra 403; fourth, that appellant negligently permitted its said reckless, careless and incompetent servants to so, as aforesaid, run said engine No. 230; and fifth, that appellant negligently maintained the lever of the switch connecting the side track with the south-bound main track and the lever of the switch connecting the south-bound main track with the crossover to the north-bound main track in too close proximity, to-wiit: a distance of eight feet, and also negligently failed to connect and operate said switches with its electric block signal so that when the switch connecting the south-bound main track with the cross-over to the north-bound main track was open the electric block' signal showed clear on the north-bound main track instead of showing the danger signal.

A passenger train known as No. 6 left Bloomington going north at 2:10 a. m. and gradually gained upon extra 403 so that when the latter train reached Odell, the first station south of Dwight, it was only four minutes ahead of the schedule time of No. 6 at Odell. As extra 403 approached Odell the rear brakeman, anticipating that the train would take the side track there, jumped off and ran back for the purpose of flagging No. 6. The semaphore at Odell then indicated a clear track and an implied direction to proceed, and in view of the fact that his train was, as he says, on short time ahead of No. 6, and that No. 6 had certain work to do at Dwight, the engineer, Tyner, did not take the side track at Odell but ran to Dwight. The rear brakeman on extra 403 flagged No. 6 before it reached Odell and rode in the engine cab until it reached Dwight shortly after the collision. Tyner doubtless contemplated taking the side track at Dwight, and having passed the switch point there, he decided to ran on to Mazonia about eleven miles north of Dwight and permit No. 6 to pass, rather than back his heavy train on an upgrade and thus cause a delay which would further encroach upon the schedule time of No. 6.

Counsel for appellant insist that the failure of the engineer of extra 403 to take the side track at either Odell or Dwight together with his failure to observe the rule requiring an inferior train to keep at least ten minutes off the time of a superior train in the same direction, was the proximate cause of the collision with No. 230 at Dwight, but we cannot so regard it. The failure in those respects is only to be considered as bearing upon the question of the rate of speed at which extra 403 was running through the yards at Dwight in the effort of the engineer to reach a side track, some distance north of Dwight, in time to enable No. 6 to pass.

It must be conceded that extra 403 when it entered and was running through the yards at Dwight was exceeding the speed limit fixed by the rules of appellant, and that if the negligence in that regard of the engineer, Tyner, was the sole proximate cause of the collision, appellee cannot recover, because Tyner and appellee were fellow-servants as a matter of law. The situation, however, as it existed at and immediately prior to the time of the collision, was, substantially as follows: The location of engine No. 230 upon the cross-over track was such that it obscured a view of the lights upon the switch stands located west of the main south-bound track, to appellee and the engineer of extra 403, as it ran north on the main north-bound track. Engine No. 230 was being operated by Gloodman and Brown without lights at either its head or rear end. The light on the switch stand located on the east side of the main north-bound track at the north end of the cross-over track was green, indicating that the switch was closed and that the main north-bound track was clear. The light in the semaphore was green, indicating that the main north-bound track was clear and that a train approaching on that track from the south might proceed with safety. Appellee and Tyner were on the lookout as they ran north, and observed these green lights a long distance in advance of the train, and before the point of the collision was reached,. and thus being assured of a clear track they proceeded with a sense of safety. As extra 403 ran into Dwight the bell on the engine was ringing, several crossing signal whistles were sounded, and the engine was equipped with a conspicuous head-light. Looking south from the cross-over track upon which engine No. 230 was running, the view of a train on the main north-bound track was unobstructed for a distance of from two to four miles. The purpose of Goodman and Brown in running engine No. 230 on the cross-over track at the time in question is not disclosed by the evidence and can, therefore, only be conjectured. On behalf of appellee it is suggested that the engine was run on the cross-over track by inadvertence on the part of Brown who was evidently operating the switches; that Goodman and Brown purposed to run north on the main south-bound track to water the engine, but that by reason of the two switch stands being only eight feet apart Brown inadvertently or carelessly opened the north'switch instead of the south switch and the engine was thus about to run on the main north-bound track when it was struck by the engine hauling extra 403. The cross-over track ran between and so nearly parallel with the two main tracks that in the darkness Goodman might not unreasonably have supposed he was about to run north on the main south-bound track. Counsel for appellant suggest that engine No 230 was intentionally being about to be run on the main north-bound track for the purpose of taking water from a spout which was looated some distance north of the cross-over track and on the east side of said main track. The theory advanced by appellee appears much the more plausible. Goodman and Brown knew the schedule time for the arrival at Dwight of the north-bound passenger train No. 6, and that it was then within only five minutes of such time. Having this knowledge it is altogether improbable that they would have run engine No. 230 on the main northbound track for the purpose of taking water.

Whether or not Goodman and Brown were negligent in the respects mentioned was properly submitted to the jury, as was also the question whether or not they were fellow-servants with appellee. It cannot be said that such relation of fellow-servants existed as a matter of law (Aldrich v. Ill. Cen. R. R. Co., 241 Ill. 402), and we are not disposed to hold that the finding of the jury against appellant on that issue is unwarranted as a matter of fact.

While appellant would not be liable for an injury resulting to appellee through the negligence of Tyner, his fellow-servant, it is well settled that if such injury resulted from the negligence of appellant*or its servants, not fellow-servants of appellee, concurring with the negligence of Tyner, a fellow-servant of appellee, the latter can recover. Yarber v. C. & A. Ry. Co., 235 Ill. 589.

Within thé rule stated it was also a question of fact for the jury whether or not appellant was negligent in failing to connect the switch leading to the main north-bound track with the semaphore signal, so that the latter would indicate an obstruction on the crossover track to the movement of trains on said main track. To determine this question against appellant it was neither necessary nor proper that any witness should have testified that the failure of appellant to make such a connection constituted negligence. There is evidence in the record tending to show that snch connection was practicable.

Appellee in order to recover was not bound to prove each and every count of his declaration, and it may be conceded that the proof was insufficient to sustain a recovery under the counts which allege the employment by appellant of incompetent servants. As bearing upon this issue, however, evidence as to the general reputation of Brown for drinking intoxicating liquors to excess was not improperly admitted. Western Stone Co. v. Whalen, 151 Ill. 472.

The first instruction given at the instance of appellee does not direct a verdict, and it was not necessary that it should require proof of all the elements requisite to a recovery by appellee. The instruction relates solely to the fellow-servant question and is substantially accurate. P. C. C. & St. L. Ry. Co. v. Bovard, 223 Ill. 176. As to form the fifth instruction given at the instance of appellee is approved in Klofski v. R. R. Supply Co., 235 Ill. 146. The objection that certain count's in the declaration to which demurrers had been sustained might have been considered by the jury under the language of the instruction is not tenable in the absence of any showing in the record that such counts of the declaration were brought to the attention of the jury. The other objections to the instruction are disposed of in Scott v. P. & O. Co., 245 Ill. 460.

As to the first instruction tendered by appellant and refused by the court, it is merely generally asserted that the instruction should have been given. The instruction was properly refused because while it directs a verdict it excludes the element of liability resulting from the concurring negligence of appellant and a fellow-servant of appellee.

While the amount of damages awarded by the jury is large, we are not prepared to say, after a careful consideration of the evidence relating to the character and permanency of the injuries, the repeated surgical operations made necessary by sucb injuries, and tbe pain and suffering endured by appellee, that tbe amount is so excessive as to require a remittitur.

There is no error in tbe record prejudicial to appellant and tbe judgment will be affirmed.

Affirmed.

Philbeick, P. J., dissenting.


author: Mr. Justice Dibell

text:
    Frank Giehl, Jr., Appellee, v. Christian Winkler, Appellant.
    Gen. No. 5,375.
    1. Slander and libel—what not competent upon question of malice. An independent slander, that is to say, slanderous words not in substance or effect the repetition of the slander for which the action is brought, is not competent upon the question of malice.
    2. Verdicts—when not cured by remittitur. A verdict which appears to have resulted from passion and prejudice cannot be cured by remittitur.

    Appeal from the Circuit Court of Woodford county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Osman Ridgely, for appellant.
    Thom:as Kennedy and E. J. Abersol, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Each count of the declaration charged that appellee had a g’ood reputation and had a wife and a child; and that Emma Reising was unmarried and, on July 2, 1905, gave birth to an illegitimate child. Each count set up a different set of words, alleged to have been spoken by appellant of appellee which charged that appellee was the father of said illegitimate child, and each count charged that appellant thereby meant to accuse appellee of having committed adultery with said Emma Beising. Defendant pleaded the general issue. There was a .trial and a verdict of not guilty and a new trial was awarded, and, on the second trial, appellee had a verdict, assessing his damages at $1950. He remitted $950 therefrom and had judgment for $1,000 from which defendant below appeals.

The proof showed that appellant did speak words concerning appellee, which charged appellee with being the father of the child. After appellee had proved one such conversation by his first witness, he was permitted to prove by the same witness a conversation with appellant after this suit was begun, in which appellant said:

‘ ‘ That man G-iehl is a bad man: he has had trouble of that kind before; I have been doing a little detective work over at Peoria, and I found some eight or thirteen cases where he had instituted suits for damages, standing in with some girls, alleging somebody was the father of the child; Giehl had grown rich out of the business; he had hunted up the records of Peoria.”

The witness continued in the same answer:

“That was substantially the statement; whether it was at the time he was served with subpoena or not I cannot tell. He impressed it upon me that Mr. Giehl was a bad man, carrying on this kind of business, through people, and Winkler had discovered these things. ’ ’

Appellant then moved to exclude this answer as incompetent, immaterial and irrelevant, and this motion was denied and appellant excepted. Appellee contends that this evidence was competent as tending to show malice; and that, if otherwise incompetent, yet that which preceded showed that the conversation was connected with this charge. In any action for slander, after proof has been introduced of the cause of action stated in the declaration, it is competent to show that the slander has been repeated, even after the commencement of the suit. Hatch v. Potter, 2 Gilm. 725; Dexter v. Harrison, 146 Ill. 169. But it is implied in the latter case that it was incompetent to prove that defendant had insulted plaintiff on the streets, such insults not being a repetition of the slanderous words. In Ball v. Evening American Publishing Company, 237 Ill. 592, the court refused to pass upon the question whether subsequent publications of independent libels, differing in character from the first, not connected therewith and not counted upon, may be proven for the purpose of showing malice; but the court there cites, with approval, Root v. Lowndes, 6 Hill 518, the reasoning of which is against the admission of such testimony. On principle, it seems to us that evidence of an independent slander ought not to- be admitted. Defendant may well be presumed not to have come to the trial prepared to meet such proof. He might not be prepared with the witnesses by whom he could prove that he was not at the place alleged at the time named, or that he did not speak the words alleged, or that the words were true. The answer above quoted did not imply that appellant was the father of this child, nor did it profess to connect appellant in any way with Emma Beising. What it did charge was that appellee had instituted numerous suits at Peoria in behalf of young women who were the mothers of illegitimate children to recover damages therefor, and that by promoting such suits appellee had grown rich in that business. As the proof showed that appellee was a hardware merchant, instead of a lawyer, the charge meant that he was engaged in the unlawful promotion of suits of that character. This was entirely different from the charge alleged in the declaration and was well calculated to aggravate the damages which the jury might award. If the Statute of Limitations had not run against an action for the speaking of the words above quoted then appellant would still be liable to another award of damages in another action for the speaking of those words, and thus be exposed to the risk of two awards of damages for the same words.. If the statute had run, then, by the admission of those words in evidence here, appellee was virtually given an opportunity to recover damages in this action for another slander not declared upon and which was outlawed. The opportunity for such unjust results seems to us to demonstrate that the evidence was incompetent. As to the actual damages caused to appellee by the slanders declared upon, appellee testified that on account of this charge he had lain awake till three o’clock A. M. twenty-five nights and till midnight one hundred nights; that certain customers of his in his hardware business had ceased to trade with him and he suspected that this was because of these charges, though no one had ever told him so; and that another hardware store had been opened in his village. The damages awarded were chiefly punitive and may well have been affected by the testimony above set out. But appellee contends that the testimony of said first witness connected this conversation with the prior conversation, wherein the charge sued upon was made. It is true that before the witness made the answer above quoted he was asked if he had a conversation with appellant afterwards about this matter, and he answered that he did, after the filing of the declaration. This justified the court in permitting the question to be answered. But, when the answer came in, it was very obvious that it had no relation to Emma Beising nor to the charge made months before that appellee was the father of her illegitimate child. The words in the answer, “he has had trouble of that kind before,” could not make the new charge contained in this answer competent, when it appeared that in fact it had no relation to the charge about Emma Eeising. We are of opinion that it was error to refuse to exclude the answer, and that the large verdict rendered may very well have been in part caused by the proof that appellant had charged appellee with getting rich out of the business of promoting suits by unmarried mothers against the alleged fathers of their offspring. On a rehearing appellee asks us to require another remittitur, rather than to reverse and remand the cause for another trial, but we conclude that the verdict appears to be so far affected by passion and prejudice that the cause should be submitted to another jury.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    W. H. Bennett, Appellee, v. Myer Karasik. A. E. Levy, Appellant.
    Gen. No. 5,386.
    1. Dismissals—when presumption of propriety indulged. A dismissal made by a court oí general jurisdiction will be presumed to have been predicated upon sufficient grounds where the record does not show the grounds acted upon.
    2. Appeals and errors—effect of failure to file bond in apt time. If an appeal bond is not filed within the time prescribed by statute, neither the regularity of the proceedings nor the jurisdiction of the lower court can be inquired into and the appeal cannot be considered but must be dismissed.

      3. Appeals and errors—when denial of leave to file new bond proper. If tie original bond was not filed within the time prescribed by statute the court is without jurisdiction to permit the filing of a second bond.
    4. Justices op the peace—what not order of judgment. An entry as follows: "Case called and above judgment rendered" is not a judgment and if entered in a cause in which a proper judgment has been previously rendered is a nullity; a justice has not power to enter a second judgment nor to vacate the first judgment entered by him.
    5. Jurisdiction—how submission to, must be established. If a party relies upon a waiver to the question of jurisdiction upon failure to file an appeal bond in apt time he must show by the bill of exceptions that some step was taken prior to the motion to dismiss which effected such waiver.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 13, 1911.
    Nathan D. Kaplan and Cooper & Hobbie, for appellant.
    E. P. Harney, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Bennett sued Karasik in attachment before a justice of the peace and garnished P. C. Brown & Co. Karasik was served by publication. The garnishees answered that they owed Karasik $200. There were continuances and a change of venue, and a trial on February 8, 1909, at which Bennett and the garnishees appeared, and A. K. Levy intervened and claimed the money garnished in the hands of Brown & Co. There was a judgment on that date that Karasik for the use of Bennett recover of Brown & Co. $200 and costs. After-wards Levy filed an appeal bond with the clerk of the circuit court, who approved the same. The circuit court dismissed the appeal, and Levy prosecutes this appeal from that judgment.

The bill of exceptions shows that Bennett moved to dismiss the appeal, and that the circuit court granted the motion, and that Levy excepted. It does not set forth what showing was made in support of or against the motion to dismiss the appeal. It must therefore be presumed, in support of the judgment of the circuit court, that the showing made authorized and required the circuit court to dismiss Levy’s appeal. This disposes of the case. We, however, find in the record an adequate reason for dismissing the appeal. As already stated, the judgment before the justice was entered on February 8,1909. The appeal bond of Levy was dated and filed in the circuit court and approved, on March 3, 1909, more than twenty days after the date of the judgment. The statute requires the party desiring to take an appeal from the judgment of a justice of the peace to file a bond either in the office of the justice of the peace rendering the judgment or with the clerk of the court to which the appeal is taken and secure its approval within twenty days from the rendition of the judgment. Statutes limiting the time for taking the appeal are mandatory and jurisdictional, and if the appeal is not taken within the statutory period, neither the regularity of the proceedings nor the jurisdiction of the lower court can he inquired into, and the appeal cannot be considered, hut must be dismissed. 4 Ency. P. & P. 115, title, “Appeal;” Sholty v. McIntyre, 136 Ill. 33; Vickers v. Tyndall, 168 Ill. 616. The judgment of February 8, 1909, may have been irregular as to Karasik, but it disposed of the fund in the hands of Brown & Co. adversely to Levy, the inter-pleader.

Levy’s appeal bond from the judgment of the justice recited that the judgment was rendered on February 15, 1909. The bond was filed within twenty days after that date. He contends that the judgment was on February 15th instead of February 8th. After the entry in full detail of the judgment on February 8th, occurs the following entry: “1909 Feb. 8th. 1 o’clock P. M. case continued to February 15th, 1 o’clock P. M. 1909. 1909 Feb. 15th. 1 o’clock P. M. case called and above judgment rendered.” The entry on February 15th, “Case called and above judgment rendered” was not a judgment, and had none of the qualities of a judgment, as we hold on the authority of Fitzsimmons v. Munch, 74 Ill. App. 259, and the cases there cited; to which may be added, Meyer v. Village of Teutopolis, 131 Ill. 552; Metzger v. Wooldridge, 183 Ill. 174; Metzger v. Morley, 184 Ill. 81; City of Alton v. Heidrick, 248 Ill. 76. The justice had no power to enter a second judgment, nor to vacate his first judgment, a week after it was entered, and such a reference to the former judgment did not incorporate it into the latter entry. The only judgment which the justice rendered was on February 8th. Levy did not appeal therefrom within twenty days. His filing an appeal bond on the 23rd day thereafter was unauthorized and did not give the circuit court jurisdiction. The bill of exceptions shows that Levy asked leave to file a new appeal bond in the circuit court, and the court denied that motion. If an imperfect appeal bond had been filed and approved within the twenty days, Levy would have had a right to afterwards cure its imperfections by filing another, but his failure to take an appeal within the time fixed by law could not afterwards be cured by a new appeal bond. But appellant contends that Bennett had entered a general appearance in the circuit court before he moved to dismiss the appeal, and that thereby he gave the court jurisdiction of the case, notwithstanding the appeal bond had not been filed within twenty days after the judgment. This position is not sustained by the bill of exceptions, which shows than on February 1, 1910, Bennett entered his motion to dismiss the appeal; that on February 16th Bennett entered a motion to strike the appearance of Karasik from the files, and •Levy entered a motion for leave to file a new appeal bond,- and that on February 21st Levy’s motion was denied, the appearance of Karasik was stricken from the files, and the motion to dismiss the appeal was allowed. Therefore, according to the bill of exceptions, Bennett’s first action in court was his motion to dismiss the appeal; and we cannot hold that he waived his motion to dismiss the appeal by afterwards moving to strike the appearance of Karasik from the files. Appellant relies upon the record written by the clerk to show that Bennett had already appeared generally. That record recites that on January 31, 1910, the parties came by their attorneys and the jury was called and evidence heard, and that on the next day, February 1st, the parties came by their attorneys, and the jury came, and the court discharged the jury. This record does not recite what parties came, nor what attorneys. We ere of opinion that if Levy desired to show that Bennett had taken some affirmative action before he moved to dismiss the appeal by which he waived the failure to file an appeal bond within twenty days and submitted himself generally to the jurisdiction of the court, it should have been made to appear in the bill of exceptions. The judgment is therefore affirmed.

Affirmed.


text:
    Fred A. Bevan, Defendant in Error, v. Don J. Bevan, Plaintiff in Error.
    Gen. No. 5,456.
    1. Partition—when allowance of fees of solicitor proper. If the bill correctly state the rights and interests of the parties and no substantial defense is interposed, the allowance of the complainant’s solicitor’s fee is not improperly made merely because the complainant in the negotiations for an agreement of partition may have acted, unreasonably.
    2. Partition—when amount allowed for complainant’s solicitor’s fees not excessive. Held, in this case, under the evidence, that $400 was not an excessive allowance.
    3. Partition—when costs of publication properly taxed. Held, that the action of the court in refusing to tax costs of publication against the complainant was not improper where such costs were incurred in bringing in parties essential to the jurisdiction of the court in order to remove clouds.
    Partition. Error to the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    A. L. Granger, for plaintiff in error.
    Cooper & Hobb'ie, for defendant in error.
   Mr. Justice Dibell

delivered the opinion of the court.

This writ of error brings before us for review the record in a partition suit brought in the Kankakee circuit court by Fred A. Bevan against Don J. Bevan for the partition of 240 acres of land in said county, which resulted in a decree of partition. Don J. Bevan assigns for error that no solicitor’s fee should have been awarded complainant, that the sum awarded as a solicitor’s fee was excessive, and that the court should have taxed against the complainant the costs of publication for non-resident defendants.

Thé answer of Don J. Bevan conceded that the bill of complaint correctly stated the rights and interests of the parties, which were an undivided two-thirds interest in the complainant and an undivided one-third interest in Don J. Bevan. The bill alleged that the parties could not agree on a partition, and the answer denied that they could not agree. Don J. Bevan testified on this subject and his evidence makes it clear that they could not agree. His claim virtually is that complainant was unreasonable, and that if he had been reasonable they could have agreed. This only shows the necessity for this suit. The chief bone of contention seems to have been the one dwelling house on the property. Don J. Bevan wanted that part of the land, because he had no dwelling house, while Fred A. Bevan had a dwelling house on other lands. Fred A. Bevan was willing Don J. Bevan should have the house, but insisted that if he took the house he should have less land than Don J. Bevan demanded. However reasonable Don. J. Bevan’s position may have been, Fred A. Bevan was not obliged to consent to the partition proposed to him. We cannot conceive it to be the law that if a part owner of land will not agree to- a particular reasonable proposition made to him for a partition, he cannot maintain a bill for a partition by a court. No one owner of land can force upon another owner any particular division. Indeed, it is not necessary to either allege or prove that the tenants in common cannot agree upon a partition. Trainor v. Greenough, 145 Ill. 543. As the rights of the parties were correctly stated in the bill and no good and substantial defense was interposed, the statute (B. S. 1909, chap. 106, sec. 40) authorized the court to apportion the costs between the parties, including a reasonable solicitor’s fee. Washburn v. Scott, 233 Ill. 569; Stollard v. Nycum, 240 Ill. 472.

The land was worth from $12,000 to $14,000 and there were numerous imperfections in the title which complainant’s solicitor removed, and the preponderance of the evidence is that $400 was the usual, reasonable and customary fee for such services in that county. Complaint is made that complainant’s solicitor did not show how much time he spent. The petition for an allowance stated what work the solicitor had done. The proof shows that the witnesses examined the files before testifying to the usual and customary charge for such services in that county. We do not feel warranted in disturbing the conclusion of the court that $400 was a reasonable solicitor’s fee for complainant.

After the original bill had been filed and answered complainant filed an amended bill, setting up many defects in the title and seeking to have the same removed as clouds, and to that bill numerous non-resident parties were made defendants. Ten days after the amended bill was filed the 'solicitor for Don J. Bevan filed for record instruments removing or curing two of the most serious defects; and thereupon he moved the court that complainant be required to proceed to a hearing at once, without waiting to bring- in the new defendants by publication, and that unless he did .so the bill should be dismissed. This motion was denied; and thereafter publication was had as to said non-resident defendants, such notice being returnable at the next term; and at said next term the cause was heard, the clouds removed and partition decreed. Don J. Bevan then moved that the cost of publication be taxed against the complainant only. The court denied this, and taxed two-thirds of all the costs, including the solicitor’s fee and the cost of publication, against complainant and one-third against Don J. Bevan. Section one of the Partition Act authorizes the removal of clouds upon the title to the premises sought to be partitioned. It is optional with complainant whether he shall so frame his bill. Sanford v. Sanford, 157 Ill. App. 350. As Don J. Bevan did not file the instruments curing certain defects till ten days after the amended bill was filed, that action only shows that it was proper to file the amended bill. If Don J. Bevan had thereby cured all the defects, the subsequent publication as to non-resident defendants would have been improper, but he thereby cured only two out of some fourteen defects. lie contends that certain of the other alleged defects were not really such, and that, as to the remaining defects, they could have been more cheaply cured by filing for record an affidavit stating the facts. Such an instrument possesses no legal validity (Warville on Abstracts, 2nd Ed., chap. 21, sec. 11) though often used by common consent to satisfy, intending purchasers what the facts really are, without resort to legal proceedings to clear the cloud. Such affidavits are often accepted in real estate transactions as evidence of the facts therein stated, and perhaps they are just as likely to be reliable and satisfactory as statements of alleged facts by grantors in deeds or ■ by officers“in certificates of acknowledgment, where the grantor or officer has no authority to bind third parties by 'such statements. Attebery v. Blair, 244 Ill. 363. But neither affidavits nor unauthorized statements in deeds or certificates of acknowledgment bind third parties, and they do not in fact remove the clouds. They only tend to satisfy persons thereafter dealing with the property that the clouds do not really exist. If a grantor states in his deed that he is unmarried, or if the officer states in his certificate of acknowledgment that the grantor is unmarried, or if an affidavit is filed saying the grantor is unmarried, the grantor’s living wife is not affected by such statements. Her rights remain the same after as before such statements are placed of record. Attempts to remove clouds from title by affidavits mu'st necessarily be much less satisfactory and valuable to intending purchasers than their removal by legal proceedings, after the parties holding the clouds have been brought into court in the manner provided by law and given an opportunity to establish their rights in the property. Inasmuch as complainant had a bill pending, we think that when these defects were discovered, it was entirely proper to bring into that suit the parties who held those clouds, and to have the clouds removed by legal proceedings binding upon the parties. This was for the benefit of both owners. The title to the land set-off to Don J. Bevan has been improved. If partition had been found impracticable a better title would have been offered to bidders, and it is reasonable to presume that a better price would have been obtained at a sale.

The decree is therefore affirmed.

Affirmed.


text:
    Christ Kugel, Plaintiff in Error, v. City of Sterling, Defendant in Error.
    Gen. No. 5,460.
    1. Appeals and errors—what abstract should, show. An abstract of a declaration should be sufficiently full as to show the statement of a cause of action.
    2. Evidence—what not offer of compromise. A claim of damage for the purpose of obtaining payment thereof is not an offer of compromise and is competent against the party making the same for the purpose of showing that subsequent claims by him are fictitious or exaggerated.
    3. Instructions—when erroneous upon question of damages will not reverse. An erroneous instruction given at the instance of the defendant which only tended to reduce the amount of damages which the jury should allow will not reverse if the jury found against the plaintiff on the merits.
    4. Explosives—what damnum absque injuria. A party buying or building a home adjacent to a city street, underneath the surface of which is solid rock, must buy with the knowledge that it may be necessary to blast out the rock for sewers and other public improvements and that he and his family may be subjected to annoyance from the noise which will thereby be occasioned, and when a city has taken reasonable precautions to muffle the noise, the unavoidable noise does not create a cause Of action against the city in favor of one whose nerves are unpleasantly affected thereby.
    Action in ease. Error to the Circuit Court of Whiteside county; the Hon. Emery G. Craves, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.
    Jarvis Dinsmoor, for plaintiff in error.
    C. L. & O. E. Sheldon, for defendant in error.
   Mr. Justice Dibell

delivered' the opinion of the court.

For the purposes of this opinion, the streets in that part of the city of Sterling involved in -this case will be treated as running north and south or east and west, though that description is not strictly accurate. Sixteenth avenue runs north and south. Fifteenth avenue is the next street west of it and there is a sharp descent to the west at the place here in controversy. Second street runs east and west. Christ Kugel owns two lots facing east on Sixteenth avenue, lot seven, fifty feet wide, next north of Second street, and lot eight next north of that. He lived on lot seven, having a house facing Sixteenth avenue, and a barn on the rear of the lot facing Second street, both buildings a few feet north of Second street. A tenant occupied another house facing east on Sixteenth avenue. The city of Sterling, through its Board of Local Improvements, let a contract to W. N. Nevins to construct a sewer in the center of Second street arid a cross sewer on Sixteenth avenue and various other sewers in a sewer system for that part of the city. The sewer trench in Second street along Kugel’s property was about 12 feet deep and from 30 to 36 inches wide, and the greater part of this was rock, and blasts of dynamite were used to loosen the rock so that it could be removed. .At the northeast corner of Second street and Sixteenth avenue, opposite Kugel’s home property, an excavation was made and a catch basin was put in. The contract with Kevins was to be performed under the direction of the Board of Local Improvements and in obedience to the orders of the city engineer, and all surplus earth was to be the property of the city and to be removed to such locality as the engineer specified. The city engineer had a right to compel the discharge of incompetent workmen and, in various other ways, to control the work. Thereafter Kugel brought an action on the case against the city and filed a declaration consisting of four counts. The court sustained a demurrer to the third count. There was a plea of not guilty as to the other counts and a jury trial and a verdict for the city. A motion for a new trial was denied. Judgment was entered on the verdict and plaintiff below has sued out this writ of error to review the judgment.

Plaintiff claims, among other things, that by the blasting, rock was thrown into the air and came down upon his house and broke the shingles so that he had to reshingle his roof; and broke the plaster inside the house so that he had to replaster; that the noise of the blasting terrified his wife and family, so that they were unable properly to discharge their household duties; and terrified his horse in the barn so that he jumped into the manger and was injured; and that in putting in said catch basin a ridge of earth was left about the catch basin and that during a heavy flood thereafter, this earth diverted the water over plaintiff’s lot and filled his well and cellar and washed dirt off his lot, and that he was otherwise injured thereby.

The assignments of error question the ruling of the court in sustaining the demurrer to the third count. To present this question for review, the third count should have been sufficiently abstracted to show that it stated a good cause of action. The abstract contains a very meagre statement of the third count, and does not show that it states a cause of action. Moreover, that which the abstract shows was contained in the third count was stated in other counts on which issue of fact was joined, and all proof which plaintiff could have introduced under the third count was introduced under other counts. Plaintiff therefore was not injured by the order sustaining a demurrer to the third count.

Plaintiff had witnesses who testified that rock was thrown upon his house and lot by the blasting in the sewer. Defendant had witnesses who showed that the place where the blasting was to be. done was covered by timbers and by plank before the blasting, and that rock was not thrown therefrom, and that it could not be thrown from so narrow a sewer so as to reach the roof of plaintiff’s house at the distance it stood from the center of the street. Plaintiff’s important witnesses were related to or connected with him. Some of defendant’s witnesses were disinterested. The testimony of plaintiff’s witnesses was in many respects improbable and unreasonable. The injury by blasting, if any, was between July 10, and August 31, 1907, and the injury by water, if any, was clearly in the fall of 1907, though plaintiff testified it was in June, 1908. Plaintiff was working all this time for the city and in daily contact with its officers in the street department. He made no complaint, except of the slightest character, till January, 1909, when he presented to an aider-man a bill against the city and requested the alderman to present it to the city council, which he did. The body of said bill was as follows:

“The City of Sterling,
To Christ Kugel, Dr.
1907.
Sept. & Oct.
To damages done to my property on lots 7 and 8 in Block 33 East of Broadway, in the City of Sterling, Illinois, by blasting stone in the pathway of a proposed sewer, $50.00.”

This was a year and a half after the alleged injuries. He did not then claim any injury to his wife and family or to his horse or by an overflow of water. He only claimed $50 then, while now he claims $500. His testimony as to the horse was that during the noon hour, while his horse was feeding in the barn, a blast was fired and he then heard a noise in the barn and he went out and found the fore feet of his horse in the manger and one hind foot in the partition; that he sawed out the manger to release the horse and that the horse was somewhat bruised, and thereafter the horse was “scary,” and decreased in value $60. It was his conclusion only that the noise of the blast caused the horse to get into the manger. Other blasts, both before and after that, had no such effect upon the horse. Defendant proved that no blasting was done during the noon hour. This horse was one of a team which plaintiff was using-in the service of the city, and the proof showed that he kept right on working- for the city with this team, the same after as before the alleged blast. These and various other matters tended to show that this was a trumped-up claim against the city. The overflow of water was during a very heavy fall of rain. Plaintiff testified that it was in June, 1908, but the clear preponderance of the evidence was that it was in the fall of 1907. It is a fair inference from the proof that the city was not responsible for the overflow and that plaintiff greatly magnified its effect upon his property. Not only did plaintiff make no claim till a year and a half after the blasting was done, bnt he did not begin suit till February 28, 1910, two years and a half after the alleged injury. If the jury had found a small verdict for plaintiff and thereby shown that it believed plaintiff’s witnesses, the evidence is such that it would have been sustained, though plaintiff did not prove the proper basis for the allowance of his damages, under City of Joliet v. Donnelly, 129 Ill. App. 119, if the jury had found in his favor, but as the jury found against plaintiff, thereby finding that the liability of the city was not established by a preponderance of the evidence, it is unnecessary to discuss the defects in his proof as to the amount of his alleged damages.

Plaintiff contends that it was error to admit in evidence the bill he presented the city. This was not, as plaintiff claims, an effort at a compromise of a disputed claim. He had never before presented any claim against the city nor notified its officers that there was anything to compromise. The bill was competent as tending to show that he did not then claim that his horse or his wife and family had been injured, and did not then claim any damage for overflow of water, and that he then estimated his damages at a much less sum than he now demands. These all went to the genuineness and good faith of the claim made in this suit. The bills against the city for plaintiff’s services which defendant introduced, may not have been specially material, but they tended to show that the horse was not so badly injured but that he could earn money from the city for plaintiff directly after as well as before the injury.

Plaintiff complains of defendant’s third given instruction. It authorizes the jury to consider plaintiff’s claim presented to the city, and his omission therefrom of various matters for which he now claims damages, in determining whether he did sustain injuries on account of these other matters. The only objection to this is that it singles out one feature of the case. But as the instruction only tended to reduce the amount of damages the jury should allow plaintiff in case they found for plaintiff, and as they found against plaintiff, this instruction did not injure plaintiff. Plaintiff complains of the fourth instruction, given at defendant’s request, which was to the effect that if the jury found that the use of blasting powder or dynamite was necessary in the construction of the sewer, and that defendant did not use any larger charges than were reasonably necessary, and that defendant took reasonable precautions to prevent any greater noise than was reasonably necessary, then, though plaintiff’s horse was frightened and jumped into a manger, or the family was frightened by the noise, yet this would not create any liability against defendant. Plaintiff’s position is that if a city uses an explosive for blasting rock to construct a sewer in a street, the city is liable in damages to any person residing in the vicinity whose nerves may be disturbed by the noise of the explosion. We cannot sustain this view. A party buying or building a home adjacent to a city street, underneath the surface of which is solid rock, must buy with the knowledge that it may be necessary to blast out the rock for sewers and other public improvements and that he and his family may be subjected to annoyance from the noise which will thereby be occasioned. The principle plaintiff contends for would practically prevent sewer improvements. We are of opinion that when a city has taken reasonable precautions to muffle the noise, the unavoidable noise does not create a cause of action against the city in favor of one whose nerves are unpleasantly affected thereby. We approve the principle of the instruction. Defendant’s sixth given instruction was that, if water from any rain fall caused damage to plaintiff without negligence on the part of the defendant, then defendant would not be liable for such'damages. We see no objection to this instruction. The other two instructions given for defendant, of which complaint was made, related to the amount of damages plaintiff could recover if he obtained a verdict, and are unimportant, as the jury found against the plaintiff.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Ella L. Houdeshell, Appellee, v. Yeomen of America, Appellant.
    Gen. No. 5.465.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Boone county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the April term, 1911?
    Affirmed.
    Opinion filed October 13, 1911.
    Fred B. Silsbee and William C. DeWolp, for appellant.
    William L. Pierce,- for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellant in assumpsit in the circuit court and filed the common counts. She was ruled to file a bill of particulars and did so. The first three items of said bill were $100 for salary for tbe month of June, 1909, as per contract; $100 for reasonable value of services rendered in August, 1909; and $66 for reasonable value of services from September 1 to September 20, 1909. Tbe remaining items of tbe bill of particulars were for various expenses. Sbe either abandoned them at tbe trial or tbe jury rejected them. Appellant pleaded tbe general issue and there was a jury trial and appellee bad a verdict for $266, being tbe amount of tbe first three items of tbe bill of particulars. Appellee bad judgment and defendant below appeals.

It is not argued that tbe court erred in any ruling except in failing to grant a new trial. No instructions were requested or given. Tbe main question is one of fact. Appellee bad worked for appellant a number of years, and in tbe first half of 1909 was working under a contract which gave her a salary of $100 per month and commissions on certain business secured by her. Appellant cancelled this contract, effective on July 1, 1909, and sent her two copies of a proposed contract which omitted tbe salary and which sbe did not execute. This change was due to financial difficulties of appellant, and not to any apparent dissatisfaction with appellee’s services. Appellee’s proof tends to show that Judd, vice president and field manager of appellant, a beneficiary society, then told appellee to keep on as sbe bad been doing and appellant would pay her tbe same salary for July, 1909, as sbe bad been receiving under the former contract. There was evidence tending to show that this was acquiesced in by tbe president. The proof tends to show that after July sbe was requested by both tbe president and tbe field manager to keep on and was assured by them that sbe would be paid tbe reasonable value of her services. Sbe did continue to serve till September 20,1909. There was proof that tbe reasonable value of her services for July, August and tbe first twenty days of September, was $150 per month. The foregoing testimony was practically nncontradicted. Appellant produced checks paid to appellee during the period covered by this suit. There was no plea of payment, and the evidence tends to show that these checks were issued to appellee for various items of commissions earned during several months preceding July 1, 1909. Appellant, produced statements of account rendered to appellee at the close of July and at the close of August, in which no salary for appellee was included and appellant insists that these became accounts stated and defeat her claim for compensation for July and August. The evidence tended to show that these statements related to the commission business and other matters occurring prior to July 1,1909. Under appellee’s contract, in force up to July 1, 1909, her commissions were not immediately payable, hut came along from time to time for a considerable period after they were actually earned. The proof makes it plain that appellee rendered the services for which she sues, and that she was to have a salary of $100 for July, and that thereafter she was promised what her services were reasonably worth, and that they were worth more than the amount of this judgment. The questions whether she had been paid by the checks she received, or whether the facts created an account stated which barred her claim, were not preserved as questions of law to he réviewed, but were presented as matters of fact to he determined by the jury. We do not feel warranted in disturbing their verdict, approved by the trial judge.

The judgment is therefore affirmed.

Affirmed.


text:
    Henry W. Williams, Appellee, v. W. W. Hixson, Appellant.
    Gen. No. 5,468.

      Insurance—when insured liable for premiums. Acceptance and bolding of policies by a trustee and agent of the insured is binding upon bim so as to render bim liable for premiums.
    Assumpsit. Appeal from tbe Circuit Court of Winnebago county; tbe Hon. Arthur H. Erost, Judge, presiding. Heard in this court at tbe April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    F. E. Carpenter and E. M. St. John, for appellant.
    E. P. Lathrop and Robert Lathrop, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee, an insurance agent, sued appellant for the premiums upon various policies of insurance written by him as agent for various insurance companies upon certain machinery and lithographing appliances, located in the city of Rockford. Appellee filed the common counts and appellant the general issue and the cause was tried by the court without a jury, and there was a finding and a judgment in favor of appellee for $847.41 from which judgment defendant below appeals.

The proof shows that on August 3, 1906, appellant entered into a contract with the Hixson Map & Lithographing Company, hereinafter called the lithographing company, which recited that the lithographing company was indebted approximately $15,000 as indicated by a schedule attached to the contract, and that the lithographing company agreed to sell its plant to appellant in consideration that appellant would pay its debts; that the Rockford National Bank should act as trustee and appellant should pay it not less than a certain specified sum per month until the indebtedness was all paid; and that appellant should keep the property well insured in reputable insurance companies for the benefit of the lithographing company. The proof shows without dispute that at the time this contract was made the insurance policies on the property had been written by-appellee. Appellant had been a stockholder and officer in the lithographing company, and he had induced appellee to buy a certain amount of the capital stock of the lithographing company upon the promise that appellee should have the insurance on the plant, which appellee had accordingly written and which was in force on August 3, 1906. The proof is clear that that insurance expired on November 10,1906; that appellee thereupon wrote insurance in. favor of appellant for $15,000 upon said property and delivered the policies to the trustee, the Rockford National Bank; that during the next year appellant directed that the insurance be reduced to $10,000 and that appellee so reduced it. On December 30, 1909, appellee started this suit to recover said premiums, and the summons was served on appellant the next day and on that day, December 31, 1909, appellant procured other policies of insurance and delivered them to the Rockford National Bank, which till that date had had no other policies of insurance to answer appellant’s contract with the lithographing company to keep the property well insured, except the policies furnished by appellee; and the proof shows that the 'sum here recovered was the reasonable and customary charge for such insurance for that timé.

Appellee testified that he wrote this insurance by direction of appellant. Appellant denied that he directed that these policies be written, and testified that he refused to permit appellant to carry the insurance on this property because he considered the rate too high. Several matters tended to throw doubt upon the testimony of appellant. He was under contract to keep this property well insured for the benefit of the lithographing company. These policies were the only ones which the trustee held from November 10, 1906, to December 31, 1909. Appellant testified that he obtained policies on this property, covering the latter part of that period, through a relative who lived at a cross roads out in the country fourteen or fifteen miles west of Kankakee who sold farm machinery and whose whereabouts at the time of the trial he did not know. Appellant could not give the name of any company in which he was so insured, nor the amount of any such policy, nor could he produce any such policy, which he explained by testifying that as fast as the policies expired he burned them. Kankakee was a great distance from Rockford. It was not shown that appellant’s relative had ever seen the property. It did not appear that appellant had made any effort to procure the attendance of said relative as a witness. No reason was shown why appellant did not deliver the alleged policies to-the trustee. His conduct on December 31, 1909, shows that he knew that the trustee should hold them. It is not easy to believe that responsible insurance companies would write policies at the instance of a cross roads agent so far distant from the property, nor that appellant would destroy the policies immediately. Again, during the life of the policies written by appellee appellant wrote to several of the companies to ascertain whether appellee had duly paid the premiums to such company, and he testified that in such letters he repudiated the policies. One of those letters was presented to him on the witness stand and he identified his signature thereto, and said letter did not contain any repudiation of the policy. These and other circumstances tended to destroy confidence in his testimony.

It is contended that no contract between appellee and appellant was made, because their conversation as testified to by appellee did not specify the rate nor the amount of tbe several policies, nor in wbat companies they should be written. When appellee was told by appellant to take care of the insurance on this property, it was already covered by policies written by appellee by arrangement with appellant as an officer of the lithographing company, and it may well be presumed that it was the intention of the parties that a like amount should be written in the same or. like companies to be selected by appellee and at the same rate. The policies were delivered to the Eockford National Bank. They showed on their face every detail, including the names of the companies, the amounts insured, the term of the insurance and the rate. The Bank was the trustee and agent of appellant as well as of the lithographing company. Its acceptance and holding of these policies was just as binding on appellant as if he himself had received and held them. He could not have received and held these policies and been protected by them from November 10, 1906, to December 31, 1909, and then have escaped liability to pay premiums for that insurance. Their possession by his trustee and agent was equally binding upon him.

The judgment is affirmed.

Affirmed.


text:
    Nellie Fuller, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 5,471.
    1. Railroads—functions of flagmen and gates. The functions of a flagman and of gates and of lights are to warn travelers of approaching trains. It is not the duty of a flagman to hold the heads of horses while a train is passing by or to wave his flag while the train is passing. It is not required that gates shall be so strong that a team cannot be driven through them, nor that they shall form an impassible barrier while a train is passing. After a passing train has reached a crossing and the parties riding in a vehicle approaching the crossing know that the train is upon the crossing, flagman and gates and lights have performed their functions.
    2. Evidence—of what judicial notice talcen. Courts take judicial notice of the course of the heavenly bodies.
    3. Negligence—when absence of flagman or gates or lights does not confer cause of action. Absence of a flagman and gates at a railroad crossing, likewise insufficiency of lights, will not confer a cause of action if the injury sued for did not proximately result therefrom.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed.
    Opinion filed October 13, 1911.
    Stevens, Miller & Elliott, for appellant.
    Robert N. McCormick and Dailey & Miller, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

In the extreme southerly part of the city of Peoria Krause avenue and the railway tracks -of appellant cross each other diagonally. On September 27, 1909, Marcel Koebel was driving a light wagon on Krause avenue and had in front a high seat on which he was sitting and with him Mrs. Nellie Fuller and Mrs. Pearl Zerwekh. This was a brewery wagon and it was used by Koebel at the brewery and it was drawn by two horses owned by Koebel. Mrs. Fuller and her children and Mrs. Zerwekh had been camping by the river, and Koebel had come for them and their camping equipment and had the children and the equipment in the back of the wagon, including beer bottles. The time was about seven or eight o ’clock p. m. As this vehicle approached the railroad crossing a train of the Iowa Central Railroad Company was going over the crossing and Koebel stopped about 100 feet from the crossing. There was an arc light 230 feet west of the crossing and another 280 feet east of the crossing, both throwing their light upon the crossing. The train was going northeasterly. There were a number of coal cars near the engine, then a number of box cars, then seven flat cars, then more box cars. A brakeman was riding on top of the rear car carrying a lighted lantern. There was no flagman and there were no gates. When the coal cars and box cars had gone over the crossing Koebel started his team and drove them sideways into one of the flat cars, thus injuring the shoulder of one of the horses. The team then turned, tipped over the wagon, tipped out the contents and ran away. Mrs. Fuller was injured and brought this suit against the company having control of the railway tracks to recover damages for her injuries, and on a jury trial had a verdict and a judgment for $1,500 from which defendant below appeals.

Each count of the declaration stated the condition of the crossing and that it was dangerous. The first count charged as negligence the failure to have a flagman at the crossing; the second count a failure to have the crossing properly lighted; the third count a failure to erect gates, barriers or some signal device; the fourth count general negligence on the part of those operating the train. Each count charged that the injury was caused by the locomotive or locomotive and train of cars running upon and against and striking the team or vehicle. At the close of plaintiff’s evidence and again at the close of all the evidence appellant moved to direct a verdict in its favor because of a variance between the declaration and the proof, in that the declaration averred that the train and engine ran into and struck the team and vehicle, while the evidence showed that the team ran into and struck the side of one of the cars. By these motions the attention of appellee was called to the variance. She did not offer to amend her declaration, but the motions were denied. Apparently, in the absence of any amendment by appellee, these motions should have been granted. If the driver had brought this suit, it is obvious that his contributory negligence in driving into the train would have prevented his recovery, for the reasons and upon the authorities given by us in Metropolitan Trust & Savings Bank v. C. B. & Q. R. R. Co., 150 Ill. App. 407. But appellee contends that her right to recover is not affected by the negligence of the driver, and, without passing upon that question, we prefer to place our decision upon another ground.

The office of a flagman and of gates and of lights is to warn travellers of approaching trains. It is not the duty of a flagman to hold the heads of the horses while a train passes by or to wave his flag while the train is passing. ■ It is not required that gates shall be so strong that a team cannot be driven through them, nor that they shall form an impassible barrier while a train is passing. After a passing train has reached the crossing, and the parties riding in a vehicle approaching- the crossing know that the train is upon the crossing, flagman and gates and lights have performed their function. If this vehicle had been driven upon the tracks and struck by the approaching train, and the party injured did not know that the train was approaching, then the absence of a flagman or of gates or of some other warning might well have been held to be negligence, giving a canse of action to the party injured. But here the train was on the crossing, and all the parties on that front seat saw it and knew it was going by. If they could not see the flat cars as they passed by, and the box cars still approaching and the brakeman and lighted lantern on the rear car, it is entirely improbable that they could have seen the flagman, if there had been one there. The two lights already described and the moon were strong enough so that after the accident people were able to see and pick up the beer bottles scattered on the ground. The calendar shows that at the time of this accident the moon was about half way from the horizon to the zenith, and was within two days of being a full moon. Courts take judicial notice of the course of the heavenly bodies. 1 Greenleaf on Evidence, sec. 5; Reynolds’ Stephens’ Digest of the Law of Evidence, Art. 58; Brown v. Piper, 91 U. S. 37. As there was light enough to show beer bottles on the ground there must have been light enough to show flat cars passing over the crossing. In other words, the accident was not caused by the absence of a flagman or of gates or by the insufficiency of the lights. We do not need to determine whether the presence of the beer bottles explains why the team was driven into the passing train.

The judgment is therefore reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find that appellant was not guilty of any negligence which caused the injury of which appellee complains.