text:
    Howard L. Eaton, Appellee, v. St. Louis & Northeastern Ry. Co. et al., Appellants.
    1. Master and servant—explosion of fusee. A railway company is not liable for injuries sustained by a motorman, as a result of the explosion of a fuzee caused by a hidden defect, where it does not appear that the company was negligent in the purchase of them from the manufacturers.
    2. Master and servant—failure of master to inspect defective appliances. The mere failure of the master to inspect defective appliances, is not negligence unless it further appears that a reasonable inspection thereof would have revealed the defect causing the injury.
    3. Master and servant—res ipsa loquitur. The doctrine of res ipsa loquitur is not applicable in a suit by a motorman against the railway company to recover for injuries sustained as a result of the explosion of a fuzee.
    4. Master and servant—directing verdict. Where the evidence in a suit against a railway company to recover for injuries, sustained by plaintiff, a motorman, on the explosion of a fuzee, does not show that the defendant knew or ought to have known of such defect on a reasonable inspection, nor that the company was negligent in the purchase of fuzees, it is error to refuse to direct a verdict for the defendant.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1911. Reversed with finding of facts.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    Terry & Gueltig and H. C. Dillon, for appellant; George W. Burton and George W. Black, of counsel.
    C. H. Burton, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This was a suit to recover damages for an injury to appellee occasioned by the premature explosion of an appliance called a fuzee used as an emergency signal to secure safe distances between trains on the same track. Appellee at the time was employed by the appellant St. Louis & Northeastern Bailway as a motorman and was engaged in running one of its electric cars. The declaration was in the usual form charging appellants with the duty to use reasonable care to furnish appellee with reasonably safe appliances, and as a breach of such duty it was charged appellants furnished him with a fuzee dangerous and unsafe, which condition was known, or should have been known to appellants and was unknown to appellee. It was further averred that in lighting the fuzee in the exercise of care, it exploded in his hand, whereby he sustained an injury to his face and one of his eyes. There was substantially no conflict in the evidence.

Appellee at the time he was injured was the motorman on a car of appellant, St. L. & N. E. Ry. He left East St. Louis late at night and was followed by another car due to leave the same station ten minutes later. The power being weak he found when a short distance south of Edwardsville that he would have to stop, and to protect his car from a rear end collision from the car following, he lighted a fuzee in the usual way, intending to throw it off as a signal, when it exploded, lacerating his face and injuring to some extent his left eye.

The car was supplied with fuzees for the purpose of signalling when occasion required. The fuzees are round hollow tubes about an inch in diameter and from eight to ten inches in length with a metal spike at one end to drive into the ground when set up or thrown from the car. At the other end there is a cap which is removed, and the exposed end covered with a composition, which when struck or rubbed by the cap, lights the material inside the tube. This was done by appellee on this occasion with one of the fuzees taken from the supply on the car, and before it could be thrown from the car it exploded.

There was no evidence in the case tending to prove appellants had any notice either actual or constructive of any defect in the fuzees supplied to that car, and from which appellee selected the one that exploded. The fuzees were manufactured by the Western Ry. Signal Co., a concern engaged in the manufacture of railroad signals of various kinds, and the evidence showed their fuzees had been in use for years by many of the large railway systems of the country. Indeed the evidence shows they are used by nearly all the great trunk lines. In addition to this, witnesses engaged in the railroad service for years testified to their use. A conductor on the Illinois Central stating he had used something like two thousand and none exploded. Another conductor on the C. & A. R. R. stated he had used as many as one thousand and but one exploded, caused by striking a rail. The evidence further shows that it is not possible to tell the condition of the contents of the fuzee by observing the outside portion, and there is no way of examining the contents except by destroying it. Appellee testified that during his service for appellants he had used fifty or more of this same make, and he further said he looked at the one which exploded, and so far as he could observe it was in good condition and all right. A witness Dye testified he had been a conductor on the same system of which appellants are a part for six years and had used seventy-five or one hundred of the fuzees; that he threw a lighted one out and it exploded about the time it struck the ground and may have struck a tie. Another witness testified to the explosion of a fuzee two years before, but the evidence does not show what make of fuzee it was.

Taking this evidence altogether it does not furnish any proof that appellants had any notice either actual or constructive of any defect in the fuzees supplied to that car, nor does it tend to prove any negligence on their part in the purchase of them from the manufacturers.

It is argued that it was the duty of appellants to furnish fuzees which would not explode. It is the duty of the master to inspect and repair appliances, to make all needed inspections, and to apply all reasonable and usual tests to discover defects, but a mere failure to inspect appliances is not negligence, unless it further appears that in the proper exercise of that duty the actual defect which caused the injury would have been discovered. (Bailey’s Personal Injuries Relating to Master and Servant, 2621.) In the absence of such evidence it does not appear that the master in the exercise of reasonable care would have known of the defect.

As before stated, appellee looked at the fuzee and found it in good condition and all right, and there is no evidence of any defect that might have been discovered by a reasonable inspection. If the fuzee was defective it was a hidden defect inside the tube that no inspection would discover without going inside the fuzee and destroying it, which would be impracticable and which the law does not require.

“There can certainly be no negligence imputed to appellants where a defect is not discoverable.” Taylor v. Centralia Coal Co., 155 Ill. App. 331. Sack v. Dolese, 137 Ill. 129. The master to be liable must know or ought to know of the defects. Sack v. Dolese, supra; C. C. & I. C. Ry. v. Troesch, 68 Ill. 545; C. & A. R. R. v. Platt, 89 Ill. 141.

The foregoing portion of this opinion has been based upon the general and well established rules of the law of Master and'Servant which require the servant to aver and prove among other things that the master knew or ought to have known of the defect as averred in appellee’s declaration, but it is contended by appellee that the doctrine of res ipsa loquitur is applicable and that proof of the happening of the accident is evidence in the absence of explanation by appellants that the accident arose from want of care.

Without extending this opinion in a discussion of the doctrine of res ipsa loquitur we are satisfied that it has no application to this case. The opinions in the cases of the Diamond Glue Co. v. Wietzychowski, 227 Ill. 342, and Spring Valley Coal Co. v. Buzis, 213 Ill. 341, being on principle decisive of the question here. There was no circumstance under which the injury was received which furnished any proof of negligence, and in such case the mere fact that the employe was injured is not sufficient to establish that the employer was so guilty.

The court should have allowed appellant’s motion to instruct the jury to find the defendants not guilty at the close of the evidence, and it was error to refuse the instruction.

It is unnecessary in this view of the case to determine other alleged errors assigned in the record.

The judgment will be reversed.

Reversed.

Finding of facts to be incorporated in the record: We find as an ultimate fact that appellants were not guilty of the negligence averred in the declaration.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    County of Schuyler and Commissioners of Highways of Brooklyn Township, Appellees, v. Missouri Bridge & Iron Company, Appellant.
    1. Appeals and errors—when evidence may be reviewed. Where the bill of exceptions shows that an exception was made to the finding and entry of the judgment, the appellate court may review the evidence, to determine the sufficiency thereof, although there were no propositions of law submitted.
    2. Appeals and errors—presumption of exclusion of incompetent evidence. Where evidence, subsequently found to be incompetent, is admitted subject to an objection, it will be presumed, on appeal, that the court rejected the same, where there is sufficient competent evidence to sustain the judgment.
    3. Municipal corporations—amendment of records. A clerk may amend the record of a municipal corporation, according to his knowledge of the truth, so long as he has the custody thereof, although he was not continuously in office, and such amendment was made after reappointment.
    4. Municipal corporations—amendment of records. A clerk may amend the record of a municipal corporation, according to the truth, without the necessity of some memorandum, or the direction of the officer whose actions were recorded by such record.
    5. Municipal corporations—amendment of records. The finding of the trial judge, that a clerk of a board of highway commissioners had an independent recollection of certain proceedings recorded in a record amended by him, is sustained by the evidence where it tends to show, that although an attorney furnished typewritten statements, from which the amendments were made, he received his data from the clerk.
    6. Roads and bridges—records of commissioners. Where all the meetings of the highway commissioners are proceedings on the same subject, such proceedings comprise but one record, and a signature by the president at the last meeting is a sufficient signing, under Chap. 121, Sec. 10, R. S., requiring that all records of the commissioners shall be signed by the president of the board, so as to make the records admissible in evidence.
    7. Roads and bridges—petition for county aid. Where the petition to the board of supervisors for aid in building a bridge is referred to a committee, as required by Sec. 19, Chap. 121 R. S., the fact that such committee is also a standing committee on roads and bridges is immaterial.
    8. Roads and bridges—county aid. Where a petition to the board of supervisors for aid in building a bridge is referred to a standing committee on roads and bridges, appointment of a new standing committee does not take away the jurisdiction of the old committee to act in regard to such petition.
    9. Roads and bridges—county aid. Under sec. 110 of the Road and Bridge Act of 1879, it was necessary, or a condition precedent to asking aid of the county toward building a bridge, that the records of the highway commissioners show their determination as to the necessity for the bridge; that its construction would be an unreasonable burden on the town, that the cost would exceed such sum as could be raised in one year by ordinary taxation for that purpose, and that one-half the necessary fund had been provided by the town.
    10. Roads and bridges—county and. Section 110 of the Road and Bridge Act, as amended by the Act of June 17, 1891, only requires as a condition precedent to asking aid of the county toward building a bridge that the records show the necessity thereof, and that the cost will be more than twenty cents on the one hundred dollars on the latest assessment roll, and that the road and bridge tax for two years last past in said town was for the full amount of forty cents on the one hundred dollars allowed by law, the major part of which was needed for ordinary repair of roads and bridges.
    11. Roads and bridges—contracts. In a suit for the breach of a contract to build a bridge, defendant cannot complain that the plans were not attached to the contract as provided therein and that they were not filed with the contract set out in the declaration, where a copy of such plans was attached to the contract at the time of the letting, and were not objected to.
    12. Damages—breach of contract to build bridge. Where the lowest bidder at the letting of a public contract to build a bridge refuses to perform, the amount of damages in a suit for such breach is the difference between the defendant’s bid and the amount of the subsequent letting.
    Appeal from the Circuit Court of St. Clair county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 12, 1912.
    Rehearing denied June 13, 1912.
    Bishop & Cobbs and D. J. Sullivan, for appellant.
    Herman H. Brown, George B. Steele and B. O. Willard, for appellees; F. J. Tecklenburg, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

Considerable space in appellees’ brief is devoted to a discussion of the alleged failure of appellant to except to the judgment of the court, and as there were no propositions of law submitted it is insisted this court cannot review the questions whether the judgment is supported by the evidence, or whether the court applied rules of law. As the record comes to us we find in the bill of exceptions an exception to the finding and entry of the judgment, and we may determine the sufficiency of the evidence to sustain it.

This was a suit by appellees to recover damages for an alleged breach of contract to build a bridge. The declaration declared specially for the breach of the contract, and also upon the common counts. The parties waived a jury; the trial was had before the court, all proper pleas being regarded as in by a stipulation, and there was a finding and judgment in favor of appellees for the sum of nine hundred and five dollars.

The errors assigned and complained of are that the court erred in passing upon the admissibility of evidence, and in its finding and judgment in favor of appellees.

On June 18, 1909, as appears from the evidence, appellant entered into a written agreement with appellees to erect the bridge ready for travel (except the earth approaches or fills), and to complete it by September 20,1909, for which it was to be paid in cash on completion the sum of three thousand and ninety-five dollars. The agreement was signed by appellant by its agent B. B. Kilgore, and on behalf of appellees by Amos L. Curry, Wm. J. Thompson and J. F. Bartlow, committee of the Board of Supervisors, and W. H. Fowler, C. C. Bussell and Chas. Barrett, Commissioners.

On June 29, Appellant sent to Mr. Curry the following letter:

“St. Louis, Mo., June 29th, 1909.
Mr. Amos Curry, R. F. D., Frederick, Ill.
Dear Sir:—Mr. Kilgore made a mistake in his figures in figuring on your work on June 18th. He is so low that this company does not feel justified in accepting the contract. We cannot, therefore, give bond, and we are returning the contract herewith.
Can you not give the contract to the next bidder, whoever that may be, and thus save another letting? If you cannot, we do not want you to lose anything on our account, and we will pay the expenses of another meeting, which I presume will be in the neighborhood of $15.00 to $17.00. Or we will take the contract at $3,350.00 and allow the expenses of another meeting to ratify it.
We-are awfully sorry that this has happened, but we do not want to take the job and lose money on it, and we do not believe that you want us to do so. I hope you can see your way clear to let us have the contract at $3,350.00. It is worth more money to do the work, but we are willing, to do it cheap, inasmuch as Mr. Kilgore made this mistake.
(Signed) Mo. Bridge and Iron Co.,
Per J. G. Garrett, Pres.”

Subsequently appellees let the contract to build the bridge to the Springfield Bridge Company for four thousand dollars. This company built the bridge at that price, and this suit was brought to recover the difference between the price so paid, and the amount fixed by the agreement of appellant.

The court admitted evidence offered by appellees over the objection of appellant, subject to the objection. If there was sufficient competent evidence to sustain the judgment it will be presumed the court rejected the incompetent evidence, and there was no error in admitting it. To show the contract sued on was legally authorized to be entered into by appellees, the records of the proceedings of the Highway Commissioners and the Bridge Committee of the Board of Supervisors were introduced in evidence by appellees over appellant’s objection. The records of the Board of Supervisors recited that on March 9, 1909, the Board received a petition from the Commissioners for aid in building a bridge in Brooklyn township, which was referred to the standing committee on roads and bridges with power to act; that on June 11th following, the Board appointed a new standing committee on roads and bridges. On the same - day two of the members of the old standing committee reported that after meeting the Commissioners’ they had decided to build a bridge, and that on June 18, the old committee let the contract to appellant to construct the bridge.

The original records of the Commissioners made preliminary to asking the County Board for aid were defective, and to cure the defects in the original records, appellees introduced in evidence what purported to be the amended records of the commissioners. These amended records were made by the same person who was clerk at the time of the making of the original records. This clerk meanwhile had been succeeded by another clerk, but shortly before the trial of this cause his successor resigned, and he was appointed to fill the vacancy, and new Commissioners had been elected. A clerk may amend the record of a municipal corporation so long as he has the custody thereof according to his knowledge of the truth. (Ryder’s Estate v. City of Alton, 175 Ill. 94.) And this he may do while in office or after a re-election to the same office. (Dillon’s Mun. Corp. 294.)

It is true as contended by appellant that the validity of the contract depends upon the sufficiency of the records introduced in evidence, and it is urged that the evidence does not show they were valid and regular. We do not agree with counsel for appellant that the record can only be amended by the authority of the parties who took the original action, or that it must be made from some official memorandum of that action. The clerk’s right to amend does not depend upon the direction of the Commissioners, arid it is immaterial whether there were new Commissioners or whether they directed Mm to make it. Nor is it necessary he should have some memorandum to amend from. The clerk as custodian and keeper may, and he has the right under the power derived from his official character, to amend the record according to the truth without direction. (Dillon Mun. Corp. 294, 295, 296.)

It is claimed here that the clerk could not amend according to the truth because he had no independent recollection of the proceedings, and because there was no official memorandum to make the amendments by.

The evidence of the clerk on tMs point is, that by direction of the new Commissioners he with one of the attorneys for appellees amended the records so they would be all right, and that he was furnished a typewritten statement of the amendments to he made by the attorney which he used in writing up the amended records, but while such aid was furnished him, and while he makes statements in connection with the proceeding that leave some doubt whether he had any independent recollection so he could record the truth, or whether he took the attorney’s statement for his data, yet he testified that the attorney helped him amend the record; that the statement was dictated by the attorney under his direction, and from his statement of the facts, and further says that the amended records speak the truth. We would not be justified in holding adversely to the trial judge that the amendments were not properly made.

Chap. 121, Sec. 10 Rev. Statutes, requires that all records of the Commissioners shall be signed by the president of the Board, and this is necessary to make the records admissible in evidence. (Gillett v. Taylor, 48 Ill. App. 403.) It is urged the records here were not so signed. This is a misapprehension. The original and amended records recite the original petition of March 8, 1909, the proceedings on the petition on February 23 and March 6, 1909, and a further meeting on April 1, 1909, reciting a joint meeting of the Commissioners and the Committee of the Board of Supervisors at which it was voted to build the bridge and to let the contract, after which appears the signature of the President of the Board. All these meetings were proceedings upon the same subject, and the signature at the last meeting was a sufficient signing by the President, as the proceedings on the several days comprised but one record.

It is further contended that the petition to the Supervisors for aid was referred to a standing committee to represent the county in the matter of petitions asking for aid; that this was not authorized by law, and that the Statute contemplates the appointment of a special committee none of whom reside in the town asking for aid. Sec. 19, Chap. 121, Rev. Stat. provides that when the petition for aid is presented to the board it shall appoint three members of the board none of whom shall reside in the town to represent the County in the matter. In this case there was a standing committee composed of three members to which the petition was referred with power to act. The law does not provide for a standing committee, and this was in effect referring the matter to three members of the board, and it was immaterial that they had been appointed a standing committee. They had jurisdiction as members of the board to act.

Before the contract was let on June 18th, a new standing committee was appointed by the board but the old committee acted in letting and signing the contract, and for this reason it is claimed the old committee had lost jurisdiction. As the matter had been referred to the old committee they were still the committee as members of the board, and it was not material that a “standing” committee consisting of other members had been appointed on roads and bridges.

It is further contended that it was necessary as a condition precedent to asking aid of the county that the records of the commissioners should show that they had determined that a necessity ■ existed for the bridge; that its construction would be an unreasonable burden on the town; that the cost would exceed such sum as could be raised in one year by ordinary taxation for that purpose in the town and that one-half the necessary fund had been provided by the town. Under Sec. 110 of the road and bridge act of 1879 these conditions were necessary before aid could be furnished by the county and it was held in the case of the People v. Madison County, 125 Ill. 334, that these facts under such section of the statute were jurisdictional and must appear to have been found by the record.

Section 110, supra, was amended by the Act of June 17, 1891, and this proceeding was under the amended act. Sec. 19 of the act provided in substance that when it is necessary to construct a bridge, in which work the town is wholly or in part responsible, and the cost of which will be more than twenty cents on the one hundred dollars on the latest assessment roll and the road and bridge tax for two years last past in said town was for the full amount of forty cents on the one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the County Board for aid, and if the foregoing facts appear the County shall furnish one-half the cost.

An examination of the original and amended records shows that all the jurisdictional facts required by this section of the Statute were found and made a matter of record, the contract was therefore legally authorized and was not void for want of mutuality.

Complaint is made that the contract provides for a bridge “according to plans and specifications hereunto attached and made part of this contract,” and that the plans were not attached and filed with the contract set out in the declaration, and were copies and are not sufficient to show how the bridge was to be built. The evidence shows the plans were present when appellant’s agent bid. No objection was made to them then, and appellant does not base its refusal to perform on the ground it did not see or understand the plans.

After appellant refused to build the bridge the evidence shows that ten days’ notice was given to again let the contract, and three bridge companies were present and bid to build a bridge upon the same plans and specifications upon which appellant had bid, and the contract was let to the lowest bidder for $4,000. Appellant did not bid at that letting. It was appellant’s duty to protect itself at that letting if the bid of $4,000 was too high, and not having done so it cannot complain.

The measure of damages was the difference between appellant’s bid and the amount of the subsequent letting for which the bridge was built. This was the measure fixed by the court.

Perceiving no error the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    William L. Eaton, Appellee, v. Marion County Coal Company, Appellant.
    1. Mines and miners—directing verdict. In a suit to recover for injuries sustained in a mine, a directed verdict for the defendant on the ground that the plaintiff was not in his working place at the time he received his injury, is properly refused where the evidence shows that he was employed to sprag the wheels of coal cars, and that on being called on to catch the front end of a car, to hold it hack, he attempted to do so (the wheels being solid, thus preventing spragging) and in the effort, followed it into a narrow place, where he was crushed.
    2. Mines and miners—working place. Where injury results because of the fact that a track is laid closer to one rib in a mine than another, no liability arises from such condition, where the party injured thereby was not in his working place.
    ■ 3. Mines and miners—working place. Whether a working place is dangerous, must be determined in view of the character of the work to he performed and the hazards of the employment.
    4. Mines and miners—working places. Where the working place in which to sprag cars in a mine is from two and a half to three feet wide, narrowing down to twelve inches at one end, the court will not hold as a matter of law, that it was not a dangerous place in which to work.
    5. Negligence—proximate cause. The general test as to whether negligence is the proximate cause of an injury, is whether it is such that a person of ordinary intelligence could have foreseen that an accident was liable to be produced thereby.
    6. Mines and miners—proximate cause. Where an employe in a mine is engaged in spragging cars in a space from two and one-half to three feet wide, which narrows down to about twelve inches at one end, the court cannot say as a matter of law, that the small space was not the proximate cause of an injury sustained by being crushed in the narrow end thereof, where the evidence shows that the driver ordered him to “catch the front end,” but having misunderstood, he attempted to sprag the front wheels, which were solid, and that then realizing what the order was, he was jammed in the narrow end in an effort to carry out such order.
    7. Appeals and errors—harmless error. The admission of immaterial evidence is harmless error, where it is not prejudicial.
    ’ 8. Instructions—setting forth entire section of statute. Setting forth the entire section of a statute in an instruction even though the evidence shows a violation of but some of its provisions is not improper.
    9. Mines and miners—instructions. An instruction that where an operator of a mine wilfully disregards a duty enjoined upon him by law, and places in danger the lives of his employes, he cannot defend on the ground of contributory negligence, is not improper as assuming that the defendant disregarded the law.
    10. Instructions—abstract proposition of law. An instruction stating an abstract proposition of law based on the evidence in the case is not erroneous.
    11. Instructions—mines and miners. Where suit is brought by an employe of a mine to recover for injuries sustained while attempting to sprag a car, an instruction to the effect that there could be no recovery, if the jury believed from the evidence that there was sufficient clear space to sprag cars in safety, although it was narrow and dangerous at one end, is properly excluded, as it omits the element of safety under all the circumstances surrounding the plaintiff at the time of the injury.
    Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 12, 1912.
    Rehearing denied June 12, 1912.
    W. F. Bundy and Noleman & Smith, for appellant; Denison & Spiller, of counsel.
    Logan B. Skipper, Charles F. Dew and Charles H. Holt, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment for eleven hundred dollars damages alleged to have resulted to him through the wilful failure of appellant to comply with the provisions of the statute in relation to Mines and Miners.

There were several counts in the declaration averring divers breaches of duty required by the statute, and among these it was alleged that appellee was employed in the coal mine of appellant as an assistant driver in an entry called the main west; that in the entry there was an incline of such nature that it was necessary to sprag: the wheels of coal cars in order to control the cars, and properly perform the work; that it became the duty of appellant not to permit said entry to become obstructed narrow and dangerous, and through its mine examiner to inspect it, and observe whether there were unsafe or dangerous conditions, and mark them as notice to keep out and report his findings to the mine manager, and not to permit appellee to enter there to work except under the direction of the mine manager until the dangerous conditions were made safe. It was further averred that the entry was suffered to become narrow and dangerous, and that appellant wilfully failed to mark the same, and wilfully permitted appellee to enter the said entry to work not under the direction of the mine manager, and that while appellee was so engaged as assistant driver and while he was endeavoring to sprag the wheels of a car, by reason of such dangerous conditions and obstructions he came in contact with the obstructions in said entry, by means whereof he was unable to get around the side of the car by reason of the narrow and obstructed condition of the entry, and the car ran over him and he was crushed and injured.

There was evidence showing or tending to show that the main west entry in appellant’s mine extended from the bottom of the shaft in a westerly direction. At some distance, from the bottom turning off the main west towards the north was an entry called the fifth north. The usual track of ties and rails used in mines to run coal cars over, extended along the west main, and when it reached the fifth north another track switched from it into the fifth north. Both entries were about twelve feet wide. The tracks were three feet wide and the cars extended over the tracks six or eight inches. We have not been furnished with a map or plat of the tracks and ribs showing distances where these entries connect, but we gather from the testimony that as the track comes out of fifth north it is about two and a half feet from the west wall and about five feet from the east wall of that entry. The track then curves east in the main west and connects there with the track in that entry. The main track in the main west is two or three feet from the rib on the south side. The opposite side was wider, was called the gob side, and gob was piled up between the rib and the track five or six feet high, leaving no room to sprag on that side. Coming out of the fifth north entry into and along the main west towards the east was a down grade where it was necessary to sprag loaded cars to hold them back off the mules. This was done by inserting sticks between the spokes of the wheels. Some of the cars had what are called one or more solid wheels that could not be spragged. Appellee was assisting one Osborne in spragging cars coming out of the fifth north. Osborne being the driver. Appellee was in the main west entry at the junction of the fifth north at the switch point waiting for Osborne to come out with a load. Appellee’s duty there was to assist the driver in spragging the car and he was in a place called the spragging place. As testified by the mine examiner, this place was a space on the south or right side of the car as it came out from fifth north on a curve onto the main west entry track and between the car and the rib the space was about two and a half or three feet wide and ten feet long. At the east end of the space it narrows to twelve or fourteen inches between the track and the rib or six or eight inches between the car and the rib. As Osborne came out with a loaded car he had spragged the two hind wheels before reaching appellee. He had attempted to sprag the front wheel but found it was solid. Finding no further spragging could be done he called to appellee to catch the front end of the car to hold it back. Appellee misunderstood him and attempted to sprag the front wheel, the car moving'down the grade but finding it solid he attempted to catch the front end of the car and in the effort, he followed it into the narrow place, where he was squeezed and rolled between the rib and the car and seriously injured.

The court refused at the close of the evidence to direct a verdict for defendant.

It is contended this action of the court was error. It is urged that the place where appellee was injured was not his working place. Appellee says that he was told to sprag at that place, and that was his place to stand. Appellant’s mine examiner says that coming out of the fifth north entry there was a spragging place on the left side two and a half feet wide and about thirty feet long and a space on the right hand (or south) side about ten feet long and three feet wide. The evidence shows the place on the left was obstructed by gob piled up on the side from the track, and the evidence fairly shows the space occupied by appellee was a spragging place and as it was his duty to sprag, it was his working place.

It is further urged there is no law prohibiting laying tracks closer to one rib than another in a mine, and that doing so does not constitute a dangerous condition. This is true as a general rule, and as held in Cook v. Big Muddy Min. Co., 249 Ill. 41, no liability would arise from such condition where the party injured thereby was not in his working place. We think the principles announced there are not applicable to the facts here. As the evidence here shows appellee was in his working place.

It is also contended there was ample room to sprag a car there wherefore the place was not dangerous, and there could be no violation of the statute by appellant in failing to mark the place or. permitting appellee to enter not under the direction of the mine manager, and in this connection it is further said a failure to observe and obey the order of the driver was the proximate cause of appellee’s injury.

We have already set forth in detail the evidence describing the place and the circumstances under which appellee was injured, and we are of opinion the court should not hold as a matter of law that a space so small as that provided for spragging cars coming down that incline was not a dangerous place for that work. Whether a place is dangerous must be determined in view of the character of the work to be performed and the hazards of the employment, (Pressed Steel Car Co. v. Herath, 110 Ill. App. 601) and such question is peculiarly for the jury.

When appellee was standing in the space with the stick in his hand ready to sprag the car, the driver twenty feet away and who had tried to sprag the front wheel, and found it solid, called to him to “catch the front end,” appellee misunderstood the order and as the car came by he attempted to sprag the front wheel. Finding it solid he says he realized at once that the driver had told him to ride the front end. This he immediately attempted to do and before he could get around the front end he was jammed between the car and the rib at the end of the spragging place. In City of Joliet v. Shufeldt, 144 Ill. 403, the general doctrine was announced in discussing the question of proximate cause, that it was not a defense to an action for injuries occurring by reason of the negligent act of the defendant, that the negligence of a third person, or an inevitable accident, or an inanimate thing contributed to cause the injury to the plaintiff if the negligence of the defendant was an efficient cause and without which the injury would not have occurred.

“The general test as to whether negligence is the proximate cause of an accident is therefore said to be whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. Proximate cause is therefore probable cause and remote cause is improbable cause.” (Thompson on Negligence, Vol. 1, Sec. 50.) Tested by these rules and applying them to the size of the space for spragging and the work to be performed there, and the manner of its performance, the court could not say the small space provided for the work was not the proximate cause of appellee’s injury and the question was for the jury.

There was no error in refusing to direct a verdict for appellant.

It is complained that the court overruled an objection of appellant to the testimony of a witness that the gob on the gob side of the track extended from the switch in main west entry around as far as twenty feet into the fifth north. The condition of the fifth north in that particular was immaterial but we cannot see that the testimony was prejudicial. The same may be said of admitting evidence that car bolts had worn into the props on the side of the entry.

Complaint is made of the ruling of the court on instructions. Instruction No. 3 given for appellee contains' the entire section of the statute which has many more provisions than the one upon which this judgment rests. It is said it tends to divert the minds of the jury from the issue. The practice of setting forth the whole of the section even though the evidence shows a violation of but some of its provisions has been held not improper. (Mertens v. Southern Coal Co., 235 Ill. 540.)

The fifth instruction given for appellee told the jury that where the operator wilfully disregards a duty enjoined upon him by law and places in danger the lives and limbs of those employed therein he cannot defend on the ground of the contributory negligence of the employe. We think there was no assumption in the instruction that appellant disregarded the law. The instruction states an abstract proposition of law based on evidence in the case and was not erroneous.

Appellant’s refused instruction No. 1 was as follows :

“You are further instructed that if you believe from the evidence there was sufficient clear space on the main west entry after a car came out of fifth north entry for a car to be spragged by the plaintiff in safety, then although you may believe from the evidence that at a point further east on said main west entry there was not sufficient space between the rail and the south rib of the entry for the plaintiff, or the drivers to sprag a car, or pass between the cars or the rib yet this would not of itself constitute such a dangerous condition as to require the mine examiner to make a chalk mark there at said point and keep the plaintiff and all other drivers from passing said point until such condition was removed.”

This instruction in effect directed a verdict as there could be no liability in the case, if appellant did not owe the duties specified in the instruction. In such case the instruction must not ignore material elements in the case. This instruction says appellant would not owe these duties if there was a sufficient clear space in the entry for a car to be spragged by the plaintiff in safety. This ignores all the circumstances surrounding appellee at the time. It might be perfectly safe if the car was standing or moving slowly or with no solid wheels to mislead in an effort to sprag them, but under other circumstances such as are shown in evidence here there might not be sufficient space to sprag safely. The instruction should have contained the element of safety under all the circumstances surrounding appellee at the time. Metropolitan El. R. R. v. Skola, 183 Ill. 454; Chicago City Ry. v. Schmidt, 217 Ill. 396; Chicago Sub. Water Co. v. Hyslop, 227 Ill. 308.

Instructions Nos. 2 and 3 refused for appellant as we view them are both based upon the contributory negligence of appellee.

Refused instruction No. 4 was substantially given in No. 5 given for appellant, besides we think they were not applicable to the issues involved. Refused instruction No. 6 was properly refused for the reason that there was no evidence in the case tending to show any liability on account of gob, on the north side of the main west entry. All the evidence showed or tended to show a liability for a dangerous place to sprag cars at the spragging- place on the south side. We think the instruction was not based on any evidence.

The damages are not so large as to require a reversal.

We have given this case a careful consideration and conclude there was no error of the trial court warranting a reversal, and that the verdict and judgment was supported by the evidence.

The judgment will be affirmed.

Affirmed.


author: Mr: Justice Shirley

text:
    William J. Flannigan et al., Appellants, v. P. F. Erwin, Constable, for use of Clara Gravens, Appellee.
    1. Replevin—when action involuntarily discontinued. A replevin suit is involuntarily discontinued when change of venue is granted and the second justice is not found, and the third justice, after delivery of the papers and transcript from the first, refuses to take jurisdiction.
    2. Replevin bond—when condition broken. The condition of a replevin bond is broken where the plaintiff suffers an involuntary' nonsuit, dismissal, or discontinuance.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    Holly & Graybill, for appellants.
    Webb & Webb, for appellee.
   Mr: Justice Shirley

delivered the opinion of the court.

This cause was submitted to the trial court on an agreed statement of facts which were in substance; that one Edna Greer sued out before a justice a writ of replevin against certain described goods alleged to be the property of appellee Clara Gravens; that Erwin the constable to- whom the writ was delivered took the property described from appellee; that appellee was granted a change of venue from the justice who issued the writ to another justice to whom the transcript and papers were sent; that the latter justice was not found whereupon the first justice delivered the papers and transcript to a third justice who refused to take jurisdiction of the case or to docket and try it; that the statutory replevin bond in the sum of four hundred dollars for the use of appellee was still with the papers; that the principal and sureties on the bond were the plaintiff in the replevin suit and the appellants ; that there had never been a final trial of the replevin suit, and no judgment had been rendered therein against either party and no order made for the return of the property and that said Edna Greer still had possession thereof. It was further agreed that the value of the property was one hundred and ninety dollars and if judgment was rendered in favor of appellee it should be for that amount.

The court found the issues for the plaintiff and assessed appellee’s damages at the sum of one hundred and ninety dollars.

The breach of the bond claimed is that the plaintiff in replevin failed to prosecute her suit with effect and without delay and appellants contend that if that is the breach relied on the value of the property replevined cannot be recovered; that there can be no recovery for the value of the property without proof of a judgment awarding its return. However, that may be in the absence of a stipulation, that question was disposed of by the agreement, by the terms of which if appellee was entitled to any judgment at all the damages were fixed at the sum of one hundred and ninety dollars. ■

The sole question to determine is, whether there was a breach of the bond in failing to prosecute the suit with effect and without delay.

When the transcript and papers were taken by change of venue to the third justice who refused to take jurisdiction of and try the case, the result was a discontinuance of the case. It does not appear whether the justice refused to try the case capriciously or whether he was not the nearest justice, not of kin to either party or interested in the event of the suit as counsel or otherwise, but whatever may have been his excuse his failure to try it resulted in a discontinuance and the cause was out of court. The court in which the suit was filed had lost jurisdiction of the case, (Goodhue v. People, 94 Ill. 47) and no other court’ acquired it.

The discontinuance was not voluntary on the part ' of the plaintiff in the suit, but the rule is that the condition of the bond is broken where the plaintiff suffers an involuntary nonsuit dismissal or discontinuance of the action. (Am. & Eng. Ency. of Law, Vol. 24, page 540 and cases cited.)

In our opinion there was a breach of the bond in this case and the judgment for one hundred and ninety dollars as provided in the stipulation was right. No error appearing in the ruling of the court on propositions of law, the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Elza Weaver and William E. Cook, Plaintiffs in Error.
    1. Dramshops—when count need not conclude in violation of act. A count of an information charging sales in violation of the Dram Shop Act, need not conclude in violation of such act, where it is averred therein that the sales were in violation of the act.
    2. Dramshops—prosecution by information. The offense of keeping a common nuisance in violation of the act for the creation of anti-saloon territory may be prosecuted by information.
    3. Dramshops—power to abate nuisance not part of punishment for offense. The power to abate the nuisance defined by the act relating to anti-saloon territory, Section 14, is not part of the punishment for the offense, but is a power, incidental to the punishment, to suppress a business unlawfully conducted.
    4. Dramshops—power to abate premises. On conviction on an information charging the selling of liquor in anti-saloon territory the court has power to abate the premises, under Section 14 of the act providing for the creation of such territory.
    5. Evidence—when copy of government license to sell liquors admissible. On prosecution by information for selling liquor in anti-saloon territory, it is not necessary that notice to produce the original license or government stamp issued to the defendants be given, before a copy thereof can be received in evidence, since the records of the office of the Collector of Internal Revenue may be proved by a witness who has examined the copy and original, and found them to correspond.
    6. Dramshops—verdicts. Where a count of an information charges defendants with keeping a common nuisance, in keeping a place where intoxicating liquors were sold in anti-saloon territory and with selling liquors at such place, a verdict of guilty on such count is not inconsistent with a verdict of not guilty on counts alleging unlawful sales of liquor in anti-saloon territory.
    7. Criminal law—when not error to try defendants after co-defendants plead guilty. It is not error to try certain defendants charged with selling liquor in anti-saloon territory and with being the keepers of the place, though their co-defendants pleaded guilty since their guilt or innocence is not affected by such plea.
    8. Dramshops—informations. Where there is no proof that premises in anti-saloon territory in which intoxicating liquors are sold are not sufficiently Ideated thereby, a description of the building as located on lot 7, block 5, of “J. A. Hudleson’s Second Addition” is sufficient, though the government license was transferred to lot 7, blk. 5, of “Hudleson’s Ad.”
    9. Drahshops— informations. A description of a place in anti-saloon territory, in which it is charged that intoxicating liquors are sold, must be sufficiently particular to guide and protect the officer executing the judgment of abatement.
    10. Dramshops—instructions. An instruction on prosecution for keeping a common nuisance by keeping a place in anti-saloon territory where intoxicating liquors were sold, and for selling liquors, to the effect that jury could not convict unless they believe beyond a reasonable doubt that the defendants were the actual keepers, and that it was not sufficient if they only aided and abetted in the keeping, or if the sales were made as servants or employes of the place, is improperly refused.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.
    Mooneyham & Seeber, for plaintiffs in error.
    G. A. Hickman, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

The state’s attorney of Franklin county filed an information containing eighteen counts against plaintiffs in error and three others charging them in all the counts except the eighteenth with selling intoxicating liquor, in anti-saloon territory. The eighteenth count charged them with keeping a common nuisance in being the keepers of a place where intoxicating liquors were sold (describing the place) in anti-saloon territory, and that they unlawfully sold intoxicating liquors in said place. The three other defendants entered pleas of guilty. Upon a trial plaintiffs in error were acquitted upon all the counts except the eighteenth and upon that count they were found guilty. The court entered judgment upon the verdict and sentenced plaintiffs in error to pay a fine and to imprison.ment in the county jail, and abated the place as a common nuisance until a bond of five hundred dollars be given.

The evidence established that intoxicating liquors were sold to divers persons at the place sufficiently described in the information, and that it was a place where such liquors were unlawfully sold. There was also evidence that plaintiffs in error were frequently at the place and one witness testified he bought a drink from plaintiff in error Weaver on one occasion. It was further shown that during the time of the alleged sales a government license to retail liquor had been issued to plaintiffs in error and Noble Weaver and Roy Carter describing a business location in said territory, and which was transferred to East forty feet of Lot seven, Block five, Hudleson’s Addition to Benton. It further appeared that one W. H. Dirden was a wholesale liquor dealer in East St. Louis and that plaintiff in error Elza Weaver had purchased at the local bank a number of drafts payable to his order. This evidence tended to show that plaintiffs in error were the keepers of the place.

Plaintiffs in error both testified they had no interest whatever in the business and had nothing to do with it. Elza Weaver said he did not authorize his name placed in the government license; that he was in jail at the time and knew nothing about it. Cook testified he knew his name was in the application for the license at which time he thought he might go into the business but afterwards concluded not to do so. The other persons named in the license, Noble Weaver and Roy Carter, corroborated plaintiffs in error and testified plaintiffs in error had nothing to do with the business, had no interest in it, and received no profit from it.

A motion was made to quash the count of the information upon which plaintiffs in error were found guilty on the ground the count does not aver that sales were made in the town of Benton, and also that the count does not conclude in violation of the Dram Shop Act of the state of Illinois.

Neither position is correct. The count sufficiently avers the sales were made in the town of Benton and it was not necessary the count should conclude “in violation of the Dram Shop Act of the State of Illinois.” It is averred in the count that the sales were made in violation of the act providing for the creation of anti-saloon territory and prohibiting the licensing and sale of intoxicating liquors therein. This was sufficient and meets the objection made to the count in this respect.

Counsel argue that the judgment of the court abating the alleged nuisance and ordering the building closed until a bond should be given was in the nature of a punishment and was an order which could not be'made under the information since by Art. 2, Sec. 8 of the Constitution of 1870, cases punishable by fine and imprisonment only, can be prosecuted by information.

Sec. 14 of the act providing for the creation of anti-saloon territory and prohibiting the licensing and sale of intoxicating liquors therein provides that all places where intoxicating liquors are sold in violation of the act shall be held and declared to be common nuisances and abated as such and in case of the conviction of the keeper the place where the liquor is sold shall be abated until the keeper give bond, etc.

It has been held that cases in which the punishment consists of fine and imprisonment and the additional punishment which was an infamous punishment must be prosecuted by presentment or indictment by a grand jury. People v. Kipley, 171 Ill. 73.

The only punishment provided by Sec. 14 of the ■statute supra is one of fine and imprisonment. The offense of keeping a common nuisance is not one of the crimes enumerated in Sec. 458 of the criminal code as infamous, and it may be prosecuted by information. The power lodged in the court to abate the nuisance upon conviction is not a part of the punishment but is a power incidental to the punishment to suppress a business unlawfully conducted that is peculiarly the subject of police regulation. The court has the power under sec. 14 of the statute, supra, upon conviction on information to abate the premises as a common nuisance.

Objection was made to the admission in evidence of an examined copy of a license or government stamp issued in the names of plaintiffs in error and Noble Weaver and Boy Carter, on the ground no notice was given to produce the original. The records of the office of the Collector of Internal Bevenue are public records and may be proved by the oral evidence of a witness who has examined the original and copy and found them to correspond. (Jones on Evidence, Secs. 534, 535.) And as this proof was made notice to produce the original was not necessary.

It is urged that the verdict of the jury finding plaintiffs in error not guilty on the seventeen counts charging them with the unlawful sales of intoxicating liquor was inconsistent with a verdict of guilty on the eighteenth count and was equivalent to a verdict of not guilty on that count. The eighteenth count contained a charge of unlawful selling in addition to being the keepers, and the verdict of guilty on that count was not inconsistent with the verdict of not guilty on the other counts. It is argued it was error to try plaintiffs in error on the count after their codefendants had pleaded guilty. There was no error in this. The plea of guilty or any disposition made of the others did not affect the question of the guilt or innocence of plaintiffs in error.

The information described the building as located on the East forty feet of Lot seven, Block five of J. A. Hudleson’s Second Addition to the City of Benton while the license was transferred after it was issued to E. 40 ft. Lot 7, Blk. 5, Hudleson’s Ad. Benton. This is claimed to have been a fatal variance between the averment and the proof.

In describing the place it is necessary if it is to be abated as a nuisance, to describe it with such particularity that the officer executing the judgment of abatement shall be both guided and protected. Grom v. People, 135 Ill. App. 457. As there was nothing in the proof to indicate the description did not sufficiently locate the place it was a sufficient description.

Error is claimed in giving the tenth instruction on the part of the People. It was a stock instruction on the subject of a reasonable doubt and we discover no objection to it.

Plaintiffs in error asked and were refused an instruction that before the jury could convict under the count charging the keeping of a nuisance they must believe beyond a reasonable doubt they were the actual keepers of the place and it was not sufficient that they should believe from the evidence some one else was the keeper and that they aided and abetted in the keeping, or that they made sales of liquor in the place as the servants or employes of the place in question.

It is not denied this instruction was proper under the eighteenth count and under the evidence. It correctly stated the law under that count and should have been given unless given in another instruction. We have carefully examined all instructions given and find none covering this feature of the case. All the given instructions were based on the other counts charging unlawful sales and none on the subject of keeping a nuisance. It was prejudicial error to refuse it and for this reason the judgment will be reversed and the cause remanded. .

Reversed and remanded.


text:
    S. L. Russell et al., Appellees, v. E. C. Clark, Appellant.
    1. Landlord and tenant—when no implied covenants. There is no implied covenant by the landlord that the premises are tenant-able when let, or that the condition thereof will remain unchanged during the term, especially when the tenant inspects, unless there is fraudulent concealment of hidden defects.
    . 2. Landlord and tenant—when covenant for quiet enjoyment implied. If there is no express covenant in a lease relating to quiet enjoyment the law implies one.
    Action begun before a justice of the peace. Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    George P. Ramsey, for appellant.
    E. B. Greer and Theodore G. Risley, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This suit was instituted before a justice to recover from appellant three months rent for certain premises occupied by him. On appeal to the Circuit Court there was a trial by the court and a judgment in favor of appellees.

On the 29th of January, 1908, appellees being the owners of a building in the City of Mt. Carmel under which there was a basement entered into a written agreement with appellant whereby appellees leased him a portion of the basement for a term of five years beginning April 1, 1908. The further covenants in the lease were that appellees should prepare the premises in the manner and to the extent as agreed to by the parties, and after so prepared it was agreed that all repairs and betterments needed should be made by appellant at his expense, except that such repairs as should become necessary by reason of natural decay should be made by appellees.

Appellant went into possession under the lease at the beginning of the term April 1, 1908, and continued to occupy the premises until April 1, 1911, when he vacated and refused to pay any further rent.- This suit was to recover three months rent claimed to have accrued after appellant moved out.

Appellant claims he had the right to abandon the premises and refuse to pay any further rent on the ground of a breach by appellees of the expressed and implied covenants in the lease which amounted to a constructive eviction.

The evidence shows appellant leased the basement for the purpose of occupying it for a barber shop. It was not at the time the lease was executed fitted or prepared for the business, so the lease provided the term should begin on April 1st, following its execution. Appellant had a plan of the work to be done in preparing the basement for the business, and much of the time gave the work of preparation his personal attention. There was evidence that appellees did the work of preparation -according to the wishes of appellant by putting in a number of repairs at a cost of about one thousand dollars, and that when the work was completed appellant expressed himself satisfied with it. He had full knowledge of all conditions existing there from the date of the lease two months before, and took possession under his lease.

Appellant made no complaint of the premises until February, 1910. He testified that water would percolate through the walls making the room damp and that the water would occasionally come in to the extent that it would in places cover the floor caused by leakage of a down spout from the roof which would also cause ice to form on the uncovered stairway leading from the basement.

Appellant’s chief complaint however was about the water that came in through the walls. Where this water came from was not shown by the evidence.

Appellant notified appellees that on account of the water repeatedly coining into his shop and making it untenantable he would vacate unless repairs were made. The repairs so requested were not made.

Appellant further testified that before he entered into the agreement appellee Charles Bussell told him they had never been bothered with water in the room and when they finished fixing it up it would be absolutely dry and sanitary.

A witness Ott also testified that before appellant took possession appellee Charles Bussell told him that appellees were to prepare the room so it would be sanitary and dry. These conversations were denied by Charles Bussell.

By the terms of the lease all repairs and betterments needed were required to be made by appellant except such as might bcome necessary from natural decay. The only evidence of such decay was. some decayed guttering which was repaired by appellees. We are unable to find from the evidence any breach of the express covenants in the lease on the part of appellees. In the absence of an express covenant upon the subject, the law will raise an implied covenant for quiet enjoyment which means that the lessor will indemnify the tenant against disturbance by his own act or the acts of those who claim under or paramount to the lessor. (Smith’s Landlord and Tenant 211.) There is no implied covenant on the part of the landlord that the premises at the time of the letting are in a tenantable condition, nor that the physical condition of the premises shall remain unchanged during the term and especially so when the tenant inspects them before executing the lease, except in cases of fraudulent concealment of hidden defects .of which there was no sufficient evidence here. (Am. & Eng. Ency. 2nd Ed. Vol. 18, page 613, et seq.) In some jurisdictions it had been held there is an implied covenant that the premises are fit for habitation at the beginning of the term unless there is an express covenant in the lease that the tenant receives them in good repair, but in those cases this applies only to the condition of the premises at the beginning of the tenancy, and hot to defects arising subsequently, and where the lessee inspects the premises as in this case, there is no reason for implying the covenant. (Ibid. 615.)

The evidence shows that at the beginning of the tenancy and for a long time afterwards the premises were habitable and if there were any defects they arose subsequently.

The court was warranted under all the evidence in holding there was no breach of any express or implied covenant by appellees, and the judgment will be accordingly affirmed.

^firmed.


text:
    City of Cairo for use of Harvey Robinson, Appellant, v. William T. Sheehan et al., Appellees.
    1. Pleading—surplusage. Facts necessary to a cause of complaint or ground of defense must be stated in the pleading, and all in addition is surplusage.
    2. Pleading—anticipating defenses. A declaration which establishes a prima facie case is sufficient and it is unnecessary to anticipate and remove every answer which may exist or be opposed to it. •
    3. Official bonds—pleading. A declaration in debt on a police constable’s bond, for assault while acting as such officer, need not aver an ordinance creating the office, nor for what violation of law the plaintiff was arrested, nor whether the officer had a warrant, or was acting under the color of his office, or arrested on view, nor the existence of an ordinance requiring police constables to give bonds, such are matters of defense.
    4. Official bonds—police constables. Though a statute providing for police constable bonds does not provide that they shall be given for the benefit of third persons, such officers are liable on such bonds to third persons for unlawful acts towards them.
    5. Official bonds—declarations. A declaration in debt on a police constable’s bond sufficiently avers that the acts complained of were committed by virtue of the office and while engaged in the performance of its duties where it is charged that the wrongs were committed while he was acting as such constable and while the plaintiff was in his custody.
    6. Official bonds—police constables. Where a police officer gives a bond to the city for the faithful performance of his duties, the condition will be construed for the benefit of third persons assaulted hy the officer while making arrests, or while they are under arrest, since the city is not interested in such malfeasance and is not liable therefor.
    7. Official bonds—pleading. A declaration in debt on a police constable’s bond states a cause of action where it avers the appointment to an office provided for by law, the execution of the bond and its approval, an unlawful assault while acting as such officer, and consequent damage.
    Action in debt. Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 5, 1912.
    C. S. Miller and Charles D. Rice, for appellant.
    Argus Leek and M. J. O’Shea, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant’s declaration in debt charged in substance that appellees on May 2, 1911, executed their writing obligatory in the penal sum of one thousand dollars reciting therein that said writing was subject to the condition that appellee Sheehan had been appointed by the mayor of the City of Cairo police constable of said city; that if said Sheehan should well and faithfully perform the duties enjoined on him as such police constable and pay over all moneys that might come into his hands by virtue of his office and well and truly observe all ordinances of the said city, then said writing obligatory should be void, otherwise to remain in full force. It was further charged that said writing was duly approved by the finance committee of the city council and approved by the city clerk and that thereupon said writing became the official bond of said Sheehan and he qualified by. taking the oaths prescribed by law and took upon himself the performance of the duties of police constable and so continued.

It was further averred that said Sheehan did not well and faithfully perform his said duties as such police constable and as a breach of the condition of said bond it was charged, that while acting as such police constable he wrongfully assaulted, struck and beat the plaintiff Harvey Robinson, arrested him without reasonable cause and while so under arrest and in his custody the said Sheehan struck and beat him and imprisoned and detained him without reasonable cause, to bis damage of one thousand dollars.

A copy of the bond signed and sealed by appellees is attached to the declaration and made part thereof.

Appellees filed a general demurrer which being sustained by the court appellant elected to stand by the declaration, whereupon the court rendered judgment against appellant for costs, and he prosecutes this appeal.

The error assigned is the action of the court in sustaining the demurrer, and in rendering a judgment against plaintiff for costs.

It is first insisted in appellees’ argument that the declaration fails to state any cause of action for the reason it fails to set out any ordinance showing the city council ever created any such office as police constable; that it fails to show whether appellant Robinson was arrested for a violation of a city ordinance, or of a law of the state, or was arrested on view while committing such violation, or whether the constable had a warrant for his arrest; that no facts are stated from which it appeared the constable was acting in the color of his office; and that there is no averment there was any ordinance requiring police constables of the city to give bonds.

It is an elementary rule of pleading that whatever facts are necessary to constitute the cause of complaint or ground of defense must be stated in the pleading and all beyond is surplusage. If the declaration establishes a prima facie case it is sufficient, and it is not necessary the pleader should anticipate and remove every objection or answer which may exist and with which he may be opposed. (Chit, on Pl. Vol. 1, 222.)

“It is a general rule of pleading that matter which should come more properly from the other side need not be stated.” (Ibid.)

It is not necessary the declaration should aver an ordinance of the council creating the office of police constable nor for what violation of law appellant was arrested, or whether the constable had a warrant, or was acting in color of his office, or arrested on view or that there was any ordinance requiring police constables to give bonds. All these matters, if defenses, (which is not now determined) were matters of defense to be interposed by plea.

It is also contended by appellees that as the statute requiring a bond to be given by a police constable does not provide the bond shall be given for the use and benefit of a third person, no recovery can be had, and this question is proper to be determined on the demurrer. The section of the statute requiring such bonds is Sec. 25 of Chap. 24 Hurd’s Statutes, which after providing for the oath, provides: That “All such officers * * * shall before entering upon the duties of their respective offices execute a bond with security to be approved by the city council * * * in such penal sum as may, by resolution or ordinance be directed, conditioned for the faithful performance of the duties of the office and the payment of all moneys received by such officer according to law and the ordinances of said village.” It will be observed the above statute does not expressly provide that the bond shall be for the benefit of third persons, and in the absence of such provision it is earnestly insisted the bond is not for the benefit of third persons who may be injured by the act or misconduct of the police constable. Some statutes providing for the execution of official bonds expressly provide they shall be for the benefit of all persons aggrieved by the official acts of the officer, and where there is such provision no such question can arise, but where such express provision is absent the authorities are not in harmony upon the question of liability. In U. S. Fidelity & Guaranty Co. v. Jasper, 56 Tex. Civ. App. 236, it was held that in the absence of an ordinance authorizing suits upon official bonds by persons injured by the unlawful acts ■of policemen, and the bond being given to secure the faithful and impartial discharge of the officers ’ duties, ho liability arose for the unlawful acts of the officer to third persons. This case is'in point, but the weight of authority and the better reasoning is to the contrary. One of the conditions of the bond here is that the principal shall well and faithfully perform the duties enjoined on him as such police constable. It is charged in the declaration that while acting as such constable he committed the wrongs complained of while appellant was in his custody as such constable, and under arrest. This is a sufficient averment that he committed the wrongs by virtue of his office and while engaged in the performance of its duties. His duties as police constable were to conserve the peace and to arrest with or without process all persons who broke the peace, or who were found violating" any ordinance or criminal law, and if necessary detain such persons in custody over night or Sunday until they could be brought before the magistrate. (Sec. 84, Chap. 23, Art. 6, Rev. Stat.)

If while making an arrest or while a prisoner is in his custody as such policeman, he unlawfully assaults him that would be a breach of the condition that he should well and faithfully perform his duties. It ist, difficult to understand for whose benefit the condition i was made if not for those whom he might unlawfully assault while being arrested or while under arrest. The obligee city would have no interest in such malfeasance of the officer and would not be liable therefor. Board of Trustees v. Schroeder, 58 Ill. 353. “The object of requiring official bonds is to obtain indemnity against the use of an official position for wrongful acts done under color of office.” Campbell v. People, 154 Ill. 601. In Murfree on Official Bonds, Sec. 323, it is said: “It is usually provided in statutes authorizing official bonds to be required of state, county and municipal officers, that suits may be brought upon them in the name of the official obligee ‘upon the relation’ or ‘to the use’ of the party injured by the breach of the bond, or interested in its enforcement. Whenever however this express provision is omitted in the statute itself, the deficiency is supplied by the construction given to such statutes by the courts whenever a proper case for such ruling is presented.” It is further said by the same author that “such bonds are designed to secure the faithful performance of official duties, in the discharge of which individuals and corporations have a deep interest and therefore they should have the privilege of suing such bonds for injuries sustained by them through the negligence and malconduct of the officers.” See also City of East St. Louis v. Flannigan, 26 Ill. App. 464. Howard v. U. S., 184 U. S. 676; Stephenson v. Monmouth Min. & Mfg. Co., 84 Fed. 114, 28 C. C. A. 292. The reasoning of the court in Campbell v. People, 154 Ill. supra, and in Greenberg v. People, 225 Ill. 174, is to the like effect.

The declaration in this case averred the appointment of Sheehan to an office provided for by law; the execution of the bond and its approval; the unlawful assault while acting as such officer and the consequent damages. The declaration stated a cause of action and the court erred in sustaining the demurrer.

The judgment is reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


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    B. E. Cooper, Appellee, v. City of Johnston City, Appellant. Joseph Barham, Appellee, v. City of Johnston City, Appellant.
    1. Judgments—one good count sufficient to sustain. One good count in a declaration supported hy the evidence is sufficient to sustain a judgment, though other counts are not supported hy the evidence.
    2. City—when liable for damages from filling street. Where the property of an abutting owner is damaged as a result of filling the street without providing sufficient openings to carry off the surface water, as it flowed in a state of nature, the city is liable for such damages.
    3. Damages—change of grade. Where the evidence as to the extent the property of an abutting owner was damaged by the filling of a street is conflicting, but the verdict was well within the amounts fixed by a number of the witnesses, the judgment on such verdict will not be disturbed. ^
    4. Damages—injuries to Tots, due to filling of street. An assessment of $200 and $230 respectively as damages sustained by the owners of two lots abutting on a street, the filling in of which caused the said lots to he overflowed, leaving a deposit of filth and sediment and polluting the water in the wells is not excessive.
    Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    William H. Warder, for appellant.
    Hartwell & White, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

These were separate actions brought by appellees to recover damages alleged to have resulted to their sev~' eral premises by raising the grade of a street in the appellant city. The cases were consolidated and tried together, and there was a verdict and judgment in favor of appellee Cooper for the sum of two hundred and thirty dollars and in favor of appellee Barham for the sum of two hundred dollars.

The only questions argued by appellant in this court are, that the court erred in not giving a peremptory instruction to disregard the third counts in each declaration, and in not sustaining a motion for a new trial on the ground the verdicts were clearly against the weight of the evidence. No objection was or is made to the sufficiency of the first and second counts of each declaration to sustain the judgments, and it follows that if the third counts were not supported by the evidence, the judgments must stand if the first and second counts were so supported. One good count in a declaration supported by the evidence is sufficient to sustain a judgment although other counts are not supported by the evidence. Olson v. Kelly Coal Co., 236 Ill. 504.

The evidence discloses that appellees each owned a lot fronting on Trout street in J olmston City. Each lot was improved by a small dwelling house in which appellees respectively lived with their families. There were also some small buildings or outhouses on each lot. The dwellings fronted west and the west line of the lots abutted on the east line of the street. The street was crossed by other streets at both ends of the block on which the lots were located.

Between the cross streets the natural surface was lower along Trout street and the city filled it all the way between the cross streets to a depth of from one to two and a half feet leaving a culvert across the street which was there before the street was filled. Prior to the filling done by appellant the street and appellees’ lots were practically on the same level but the ground sloped to the west and surface water falling upon appellees’ lots which were adjoining each other and located in a low place, ran off along the surface of the ground to the west and through the culvert mentioned.

It was claimed by appellees that the filling and grading of Trout street without sufficient openings to carry the water had the effect of backing the water on their premises ivhich had been accustomed to flow off rapidly over Trout street. A number of witnesses testified in support of this claim and it was shown that before the grading the water after a rainfall would flow off in a few moments and that since the street was graded the water is higher and stands and accumulates filth and sediment on the premises. Appellee Cooper testified that the well on his premises had been overflowed and the water rendered unfit to use on one occasion.

The decided weight of the evidence shows that the property had been damaged as a result of filling the street without providing sufficient openings to carry off the surface water falling there as it flowed in a state of nature. This injury to private property showed a clear liability to respond in damages if any resulted.

The city has the right to make improvements of its streets but if an abutting owner is damaged thereby he is entitled to just compensation. Const. 1870; A. H. 2, Sec. 13; City of Bloomington v. Pollock, 141 Ill. 346; Village of Grant Park v. Trah, 218 Ill. 516.

On the measure of damages there was conflict in the evidence. Some witnesses testifying to larger sums than were recovered and some on behalf of appellant that the property was not damaged in any degree. The question was for the jury. The verdicts were well within the amounts fixed by a number of witnesses and we perceive no reason why the judgments should not be affirmed and they are each affirmed accordingly.

Affirmed.


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    A. A. Root et al., Appellants, v. John C. Utter, Appellee.
    1. Chattel mortgage—third person. The “third person” mentioned in section one, of the Chattel Mortgage Act, must be a creditor, incumbrancer, or purchaser.
    2. Chattel mortgage—extension of note. Where a surety on a note accepts a chattel mortgage as security and does not extend the mortgage in compliance with sec. 4 of the Chattel Mortgage Act, on a renewal of the note, nor take possession of the property when the same becomes due, the divorced wife of the mortgagor to whom the mortgaged property was awarded by the decree as alimony, after the note became due and before demand was made for the property, is not entitled thereto, as against the mortgagee. '
    3. Animals—agister's lien. Where a mortgagor as tenant of his father-in-law is restrained by an injunction gotten by his wife from removing the stock covered by the mortgage pending a divorce proceeding, the landlord is not entitled to an agister’s lien, there being no evidence tending to show that an agreement was made relative to feeding the stock, etc., and no account being kept of the amount of feed used and the amount of work done by the horses.
    Replevin. Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.
    E. B. Green and Theodore G. Risley, for appellants.
    M. H. Mundy and George P. Ramsey, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellants brought suit in replevin to recover the possession of certain horses and colts also some harness and a cultivator allegéd in the declaration to have been wrongfully detained by appellee. Pleas of non cepit, non detinet, property in Marie Harbin, and of an agister’s lien in favor of appellee were filed, all of which were traversed. A jury being waived, the court found the right of property and ownership to be in Marie Harbin, subject to a lien for feed in favor of appellee for three hundred ánd fifty dollars, assessed the further sum of one hundred and thirty dollars damages against appellants in favor of appellee, awarded a writ of retorno habendo, and entered judgment upon the findings and order.

It appeared from the evidence that on July 24, 1909, one Hugh Harbin executed a chattel mortgage on the property in controversy to appellants reciting therein that it was given to indemnify appellants in becoming sureties for Harbin on a promissory note for the sum of fifteen hundred and fifty dollars, executed by him to H. Brokerage and Son, dated April 13, 1909, and due October 13, 1909. It was further recited that the mortgage was intended to cover the property described, for the term of two years, and that the property should remain in the possession of Harbin until default, or if the mortgagees felt insecure with or without apparent cause, they might take possession of the property, sell the same at public or private sale, retain the amount of the note and all expenses and pay the surplus to the mortgagor.

It further appeared the note was not paid when due and was renewed by the mortgagor and appellants as sureties on October 13,1910, by the execution of a new note for the same indebtedness payable six months after date to one C. H. Brocksmith. No demand was made for the property when this note became due on April 13, 1911, nor until the first part of May following, when demand was made by appellants of appellee who was in possession. Appellee refusing to deliver possession, appellants filed this suit on May 6, 1911, and paid off and discharged the note to Brocksmith on May 27th following. On April 26, 1911, said Marie Harbin, the wife of Hugh Harbin, was granted a decree for divorce from Hugh Harbin and by the decree the property described in the mortgage was awarded to her in full of alimony for herself and child.

The first question presented by the assignment of errors is that part of the decree which finds the right of property in Marie Harbin.

The extension of the mortgage was not made in compliance with Sec. 4 of the chattel mortgage act, nor was possession taken of the property by the mortgagees on the maturity of the note. If this was fraudulent as to third persons which it is not necessary to determine it was valid and binding on the mortgagor Hugh Harbin. Marie Harbin was the wife of the mortgagor but it is urged that when she was divorced and the marriage relation dissolved she occupied the relation of a “third person” and therefore the decree awarding the property to her for alimony is superior to the rights of the mortgagees and the mortgage fraudulent as to her.

It was held in Sumner v. McKee, 89 Ill. 127, that the “third persons” mentioned in Sec. 1 of the chattel mortgage act must be creditors, encumbrancers, or purchasers and that the mortgagor’s widow, heir and administrator, were not “third persons” as to whom the mortgage would be void but were identified with the mortgagor.

In that case the property was permitted to remain in the possession of the mortgagor after default. Upon the death of the mortgagor his widow in the administration of his estate filed a relinquishment and selected the mortgaged property on her award. The court held that the widow stood in the shoes of the mortgagor and as to her the property after default was no longer the property of the mortgagor, and that as his widow she must be required to take the property as the mortgagor left it cumbered by a lien which as to him and his widow became absolute on default of payment. On principle we are unable to see any distinction in the relation of the parties between that case and this.

In this case the marriage relation was dissolved by divorce instead of by death. The divorced widow was entitled to alimony out of property belonging to the husband. She was not a creditor, encumbrancer or purchaser in any sense, and she was not entitled to property for alimony not belonging to the husband. The property on default was not the property of the husband but of the mortgagees subject only to the claims of creditors, encumbrancers and purchasers. Marie occupied the same position as her husband and it was error to find the right of property in her as against appellants and to order a writ of retorno.

Error is also assigned on the finding of the chancellor that appellee was entitled to a lien upon the property in the sum of three hundred and fifty dollars for feed furnished the stock.

Marie Harbin was the daughter of appellee. Hugh Harbin; the mortgagor, took the property to the farm of appellee the first of the year 1910 where Harbin was to plant a crop as a tenant of appellee. Soon afterwards in the same month Harbin and his wife Marie had trouble and separated. Harbin left the farm leaving the property there. The next day after the separation Marie filed a suit for divorce and secured a writ of injunction restraining Harbin from selling or taking away the property.

The property remained on the farm under the restraining order until the decree for divorce was granted April 26,1911. The stock was fed by appellee at the farm during the time, and the work animals were used by him on the farm whenever their services were required. Appellee was never requested by Harbin or the mortgagees to pasture and feed the stock and there is no evidence they were left there for that purpose. Appellee knew Harbin had been restrained at the instance of Ms daughter from removing the stock. He never during the fifteen months the stock was on Ms farm claimed or demanded pay for feed or pasture, and he made no such claim when appellants demanded the property in this smt. The only claim made by him was that the mortgage was not worth a d—n and appellants would have to get the stock by law. He kept no account of the feed of the horses nor how much of the time he worked them. It is apparent from this testimony that appellee if he was keeping the stock for anybody it was his daughter whose injunction writ restrained Harbin from taking it away and not as an agister for Harbin. Aside from this, however, an agister is defined to be “one who receives and pastures cattle for hire.” Howard Com. Co. v. Nat. Live Stock Bank, 93 Ill. App. 475. There was no hiring here. It is elementary that one person cannot create another his debtor without that other’s consent. Dedman v. Williams, 2 Ill. (1 Scam.) 154; Durant v. Rogers, 71 Ill. 121; Wilton v. Tazwell, 86 Ill. 29. “A person cannot make another his debtor by performing labor for him against his wish and without his assent.” Alton v. Mulledy, 21 Ill. 76. Appellee did not under the evidence come within the definition of an agister entitling him to a lien upon the property and it was error to give him such lien.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Della Stewart, Appellee, v. East St. Louis Railway Company, Appellant.
    1. Common carriers—duty to alighting passenger. If a street railway company stops a car at a crossing which is a reasonably safe place for a passenger to alight and such passenger alights safely and leaves the car, such company has performed its full duty and is not responsible for injuries received, when afterward the passenger falls into an open sewer.
    2. Common carriers—duty to stop cars at usual place. Though a street is covered with water making it necessary for passengers

      alighting from street cars to wade through it to reach the sidewalk, such condition, if reasonably safe, does not relieve the street railway company from its duty to stop its car at the usual place to discharge or receive passengers.
    3. Common carriers—evidence. A declaration charging that a street railway company negligently stopped its car a few feet from a crossing, that the street was unsafe because of the presence of piles of brick and holes filled with water, and that the plaintiff in alighting, fell against piles of brick and into an open sewer, is not supported where the weight of the evidence showed that the car stopped at the street intersection which was reasonably safe, that plaintiff alighted safely, and that the accident happened a few feet east of the crossing after she had taken several steps.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1912.

    Reversed and remanded.
    Opinion filed June 27, 1912.
    Barthel, Farmer & Klingel, for appellant.
    Dan McGlynn, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action by appellee to recover damages alleged to have resulted to her by reason of the negligence of appellant in discharging her from one of its cars in the City of East St. Louis. It was charged in the declaration that on and immediately east of the line of Sixteenth street where the same intersects and crosses Cleveland avenue between the south track of appellant and the south curb of said avenue, for some distance east of said intersection was a dangerous and unsafe place for a person to alight from cars going in an easterly direction by reason of the rough and uneven surface of the ground, and the presence of large quantities of paving brick thrown about in irregular piles, and because also of the presence of an open sewer and a large pool of water at said place which said dangerous conditions were or. might have been known to appellant by the exercise of reasonable care. It was further charged that appellant negligently stopped the car east of the easterly line of Sixteenth street at said intersection and at a place where Cleveland avenue was rough and uneven and where quantities of paving brick were thrown about loosely in piles and where said open sewer and a large pool of water existed so that appellee with due care and without notice of the conditions after alighting from said car and while endeavoring to get off of Cleveland avenue, onto the sidewalk, fell against such loose brick and into said open sewer and pool of water whereby she was injured.

Appellee at about eleven o’clock on the night of the accident became a passenger on one of the electric cars of appellant running on Cleveland avenue, to be carried to Sixteenth street which intersects Cleveland avenue. There had been during the evening a heavy fall of rain which had filled the sewers and gutters to overflowing, and covered the streets with water. Appellee was accompanied by her husband. The car was going east and it was the custom for cars to stop on the far side of the street crossing to receive and discharge passengers. Cleveland avenue was paved up to the west side of the Sixteenth street crossing but from there easterly there was no pavement between appellant’s tracks and the curb of the street. Appellant’s tracks were being paved and it had distributed piles of loose bricks along the south side of and near its tracks for that purpose. There were no bricks piled on the crossing used by pedestrians on Sixteenth street over Cleveland avenue. Appellee notified the conductor of the car that she desired to alight at Sixteenth street. The car stopped, she and her husband and some other passengers alighted. Appellee fell into a hole of water in the street and appellant’s liability for the injuries she claims to have sustained by the fall, depends upon whether the breach of duty charged in the declaration has been fairly established by the evidence. The crossing for foot passengers on the far or east side of Sixteenth street not being paved, a number of bricks had been taken from the piles by persons not connected with, appellant and placed on the crossing at intervals to serve as stepping stones to pedestrians crossing over the street. There were no piles of brick as an obstacle to foot travel on the crossing. There was no hole of water on the crossing, and if appellant stopped the car on the crossing and it was a reasonably safe place for appellee to alight and she alighted safely and left the car, appellant had performed its full duty to appellee and it is not responsible for an accident that befell her on the street in falling into one of the city’s sewers. All the witnesses agree there had been an unusually heavy rain and that the surface of the ground at the crossing and all the country around was under water. Assuming the street was covered with water so it was necessary to wade through it to reach the sidewalk, this condition of itself if reasonably safe did not relieve appellant from the duty to stop its car- at the usual place for passengers to alight or to get aboard. Appellee claims to have fallen and slipped into the hole of water just as she was removing her left foot from the car, her right foot resting on bricks or a rock, and that the car stopped on the east side of the crossing, and her husband testified the car stopped six or eight feet east of Sixteenth street. The manifest weight of the evidence shows she fell into the open sewer next the curb on the south side of the street and just east of the crossing, and that she took several steps before she reached the place and that the edge of the sewer was ten feet from the nearest rail in the track as shown by actual measurements. The decided weight of the testimony as shown not only by witnesses introduced by appellant but also by witnesses introduced by appellee is that the rear end of the car stopped on the crossing exactly at the place where it was appellant’s duty to stop and appellee alighted from it there. The evidence does not fairly prove the charge of negligence in the declaration hut the great preponderance of it does show that appellant violated no duty it owed appellee as a passenger. It shows she alighted at the proper place safely and that her misfortune came to her after she ceased to be a passenger, and was one for which appellant is in no wise responsible.

“The relation of carrier and passenger with respect to a passenger on a street car does not continue during his passage to the sidewalk after he leaves the car, (West Chi. St. Rwy. v. Walsh, 78 App. 599; Chat. El. R. R. v. Boddy, 105 Tenn. 666, 51 L. R. A. 885; Creamer v. West End Street R. Co., 156 Mass. 320.)

It is not necessary to consider other errors assigned. The judgment is reversed and the cause remanded.

Reversed, and remanded.