author: Mu. Presiding Justice Clark

text:
    John Gilbert, Appellant, v. L. D. Croshaw et al., Defendants, George Green Lumber Company and Henry Enos, Appellees.
    Gen. No. 17,989.
    1. Mechanics’ liens — objections to master’s report. In a suit under the Mechanic’s Lien Law an order disposing of complainants’ objections to the master’s report is not necessary.
    2. Mechanics’ liens — cross-bill. Under the Mechanic’s Lien Act, §9, affirmative relief may be obtained upon an answer, and a cross-bill is not necessary.
    3. Mechanics’ liens — stipulations. It cannot be urged that no notice of a mechanic’s lien was served as provided by the act where it appears that a stipulation was entered into to the effect that such notice was given.
    4. Mechanics’ liens — sworn statements. An owner of premises upon which a mechanic’s lien is claimed cannot contend that one who furnished material is not entitled to a lien because no sworn statement was sent upon request as required by the Mechanic’s Lien Act, §22, since such section relates to material furnished to a subcontractor and not that furnished to the original contractor, and Act of 1905, §5, provides that “merchants and dealers in material only shall not be required to make statements herein provided for.”
    5. Mechanics’ liens — excess of contract price. An owner who has paid a contractor without requiring a statement as to the amounts due for labor and material cannot complain that in lien proceedings he is compelled to pay more than the contract price.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 4, 1913.
    George J. Gilbert, for appellant.
    Adams, Bobb & Adams, for appellee.
   Mu. Presiding Justice Clark

The appellant (complainant) brought suit in the Circuit Court apparently under section 30 of the mechanic’s lien law, which provides for the bringing of a suit by the owner (or any person having a lien nnder sections 21 and 22) in the nature of a bill of interpleader, for a general settlement of the liens. The section provides that the premises may be sold as in other cases nnder the act, and that the parties to the suit shall prosecute the same nnder like requirements as are directed in section 11' of the act. The appellee, the George Green Lumber Company filed its answer. Such proceedings were had that a decree of sale was entered, and from this decree the appellant, who is the owner, has prosecuted this appeal.

The first point urged as ground for reversal is that no order was entered disposing of the exceptions of the appellant to the master’s report. This was not necessary. (Thomas v. Coultas, 76 Ill. 493; Anderson v. Henderson, 124 Ill. 164.)

It is next urged that no affirmative relief could be granted in the absence of a cross-bill. Under section 9 of the mechanic’s lien act affirmative relief may be obtained upon an answer, and a cross-bill is not necessary, if not improper. (Thielman v. Carr, 75 Ill. 385.)

The third point raised is the alleged fact that notice of the mechanic’s lien was not served as provided by the statute. The record shows that a stipulation was entered into to the effect that such a notice was given.

It is next objected that Henry Enos, one of the defendants to the bill, who made a claim as a material man, did not give notice of his lien within the sixty days provided by the statute. The master held differently, and in the decree it is recited that he did cause notice of the mechanic’s lien to be served on the appellant within sixty days as required by the statute, and that within four months after the last work was done caused his answer and intervening petition to be filed in the cause. After careful examination of the record we think the report of the master and the decree of the court in this respect are supported by the evidence.

It is next contended that the appellee the George Green Lumber Company is not entitled to its lien because it did not send a sworn statement to tbe appellant in accordance with Ms request, which it is asserted it was its duty to do, under section 22 of the act. Section 22 of the act relates to material furnished to a subcontractor, and not material furnished to the principal contractor. By section 5 of the act of 1905 it is provided that “merchants and dealers in material only shall not be required to make statements herein provided for.” We think the point raised is not well taken.

It is next asserted that certain payments made should have been applied upon the claim which has now ripened into an established lien against the property by virtue of the decree. We think the evidence justifies the decree in respect to the fact that the amount found due is exclusive of the amounts so paid by the appellant.

Section 5 of the act provides that “it shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect or superintendent, shall pay or cause to be paid to said contractor or to his order any moneys or other consideration, due or to become due such contractor, or make or cause to be made to such contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names of all parties furnishing materials and labor, and of the amounts due or to become due each. Merchants and dealers in materials only shall not be required to make statements herein provided for.” We do not find that any such notice was required by the owner to be made by the contractor in pursuance of the provisions of this section. In the ease of Butler v. Gain, 128 Ill. 23, it was held that a payment of the original contractor is in violation of the interests and rights of the subcontractor or person furnishing materials, when the owner has notice of such person’s rights, either under section 30, or from the sworn statement of the original contractor provided by section 35. If appellant is required to pay more than the original contract price it will be because he has not complied with the provisions of the statute referred to.

We have carefully considered all the.evidence in the record, and are unable to say that the decree is erroneous. It will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    John F. Devine, Administrator, Appellee, v. Justin Rothschild, Appellant.
    Gen. No. 18,007.
    1. CORONERS — verdict of jury on unsworn statements. Where plaintiff's intestate, while unloading a wagon from the rear, was run into and crushed by an automobile, and died five months later, and an unsworn written statement of the attending physician to the effect that death resulted from enlargement of the heart following external violence is read at the inquest before the coroner’s jury, and the verdict of such jury finding that death resulted from enlargement of the heart following external violence due to such accident is admitted in evidence “for what it is worth,” with permission for defendant to put any additional evidence in as to its value, and the court in charging the jury points out the lack of the sworn statement of such physician at the inquest, the rights of defendant are fully protected in the admission of such verdict.
    2. Coroners — verdict of jury. The verdict of a coroner’s jury is competent but not conclusive evidence in another proceeding as tending to prove any matter properly before the coroner which appeared at the inquest.
    3. Evidence — expert. An attending physician may testify what the patient said in describing his bodily condition and suffering and may base his opinion in part on the narrative of the case by the patient, the rule being otherwise as to an expert whose examination was merely for the purpose of testifying.
    4. Damages — for death dy wrongful act. Where plaintiff’s intestate, twenty-three years old, had been earning fifteen dollars per week and contributing ten dollars to twelve dollars per week for the support of his parents and brothers and sisters, some minors, with whom he was living, a verdict for $4,000 damages is not excessive.
    Appeal from the Circuit Court of Cook county; the Hon. Maz-zotx Slusseb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 4, 1913.
    Charles C. Arnold, for appellant.
    Bowles & Bowles, for appellee; Dan Morgan Smith, of counsel.
   Mr. Presiding Justice Clark

delivered tlie opinion of the court.

Becovery was had in this case for damages on account of the death of plaintiffs intestate alleged to have been caused by the wrongful act of the defendant. It is alleged by the plaintiff, and not denied by the defendant, that the deceased, who was standing at the rear end of a wagon in the act of taking off a portion of the load, was run into by the automobile of the defendant. It is further alleged by the plaintiff that the crushing received by the deceased at that time resulted in his death. The accident happened on May 3,1909, and the death occurred October 1st following, and it is the contention of the defendant that it was caused by disease and not by the injuries received.

The verdict of the coroner’s jury was read in evidence. The jury found that “Prank Powers came to his death on the 1st day of October, 1909, from enlargement of the heart, liver and spleen following external violence due to being caught and crushed between the front of an automobile owned and driven by Justin Bothschild and the tail gate of a wagon at which the deceased was standing unloading goods in front of premises No. 75 Monroe street, on May 3, 1909.” The admission of the verdict in evidence is alleged to be error. It is the well established rule that the verdict of a coroner’s jnry is competent evidence in another proceeding tending to prove any matter properly before the coroner which appeared at the inquest; that the evidence is not conclusive, but only competent. (United States Life Ins. Co. v. Vocke, 129 Ill. 557; Stollery v. Cicero & P. St. Ry. Co., 243 Ill 290.) It is especially objected that because the court did not admit in evidence this verdict until all the witnesses had been examined (although it was offered three times) the defendant was thus precluded “from an adequate treatment of the verdict by the use of expert evidence or otherwise without a reopening of the trial and a calling or recalling of witnesses not then in court.”

Dr. R. W. Carter was the attending physician of the deceased, and was a witness upon the trial. It appears he was not a witness before the coroner’s jury but that he left an unsworn statement with Dr. Springer, the coroner’s physician, to be used at the inquest. This fact having been disclosed at the trial before the verdict was offered, the trial judge expressed his doubt as to the admissibility of the verdict, and excluded it for the time being. Practically ■ at the close of the case the court permitted its introduction “for'what it is worth,” with permission to the defendant to put any additional evidence in he might desire as to the value of it, and with the further proviso that there should be attached to the verdict such statements as counsel for the defendant might desire to have admitted. Thereupon the statement of Dr. Carter appears to have been attached to the document, as well as that of Dr. Springer, the coroner’s physician, both of which tended to show that in the opinion of the physicians the deceased came to his death from enlargement of the heart, liver and spleen, following external violence. The record further shows that the court stated to counsel for the defendant that if further time was desired in which to introduce evidence which seemed to be made necessary because of the introduction of the coroner’s jury’s verdict at the time it was offered, court would be adjourned until the following morning in order that opportunity might be given. Counsel for the defendant thereupon stated that the only further evidence would be the recalling of an expert.

The court in his instructions to the jury at the request of the defendant, advised them that in determining the weight to be given the coroner’s jury’s verdict they were at liberty to take into account the fact that Dr. Carter did not testify before the coroner’s jury, and the further fact that the coroner’s jury had before it the unsworn statement only of Dr. Carter. It appeared that there were other witnesses before the coroner’s jury, including Dr. Springer, and there was a stipulation entered into by counsel to the effect that no other physicians testified at the inquest than Dr. Springer, and that no statements by physicians were taken or heard except those of Drs. Springer and Carter.

We think no error was committed in permitting the introduction of the verdict, and are of opinion that the rights of the defendant with respect to the weight to be given to it as evidence were fully protected in the manner indicated.

It is argued by the defendant that .the verdict upon which judgment was entered was against the manifest weight of the evidence upon the proposition that death was caused by external violence, or traumatism. Immediately after the accident, at the instance of the defendant, plaintiff’s intestate was taken to the office of Dr. Sweeney. Later on he was treated by his own physician, Dr. Carter. At the trial Dr. Sweeney was a witness for the defendant, and Dr. Carter for the plaintiff. The testimony of Dr. Zeit, an expert witness, was also offered by defendant. We have carefully read the testimony of these three witnesses, and are unable to come to the conclusion that the decision of the jury in respect to the cause of death, as reflected in its verdict, was against the manifest weight of the evidence.

It is next urged by the defendant that the opinion of Dr. Carter as to what caused the pleurisy which he testified he found to exist, was improperly received because based in part on a narrative of the accident made by the injured man. Dr. Carter was the attending physician, and in such cases it has been held that inasmuch as a physician, in forming his opinion as to the cause of a patient’s bodily condition, must necessarily, to some extent, be guided by what the patient tells him, in detailing his sufferings, not only is the opinion thus formed in part upon such data admissible but the physician may state what the patient said in describing his bodily condition. The rule is otherwise as to statements made to an expert who examines merely for the purpose of testifying. (Illinois Cent. R. Co. v. Sutton, 42 Ill. 438; Greinke v. Chicago City Ry. Co., 234 Ill. 564.)

The verdict and judgment were for $4,000, and it is urged that this is excessive. The evidence tends to show that-the plaintiff’s intestate was in receipt of a salary of $15 per week; that he left a mother and father and brothers and sisters, some of them being minors; that he contributed $10 to $12 per week to his mother for the support of herself and other members of the family; that he was 23 years of age, unmarried and lived with his parents. The judgment in our opinion is not excessive.

"We find no error in the record which should cause a reversal, and the judgment will therefore be affirmed.

Affirmed.


text:
    Mike Bosanac, Plaintiff in Error, v. American Car & Foundry Company, Defendant in Error.
    Gen. No. 18,087.
    1. MasteR and servant — negligence. Where the electric light went out in a hoiler room of defendant and plaintiff, an employe, in going after a lantern unnecessarily undertook to climb a pile of coal and in doing so received injuries, no negligence of defendant being shown, a directed verdict for defendant is proper.
    2. Master and servant — negligence not -presumed from accident. The mere happening of an accident raises no presumption that it was caused hy negligence of the defendant.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 4, 1913.
    Frank H. Bicek, for plaintiff in error; Otto 0. BiENTNer, of counsel.
    Frank M. Cos and R. J. Fellingham, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Plaintiff in error brought suit against the defendant in error in an action of the fourth class in the Municipal Court of Chicago. The statement of claim filed shows that it was one “for personal injuries sustained by him while in the employ of the defendant, on or about February 15, 1911, through the negligence of the defendant.”

The facts shown by the record are, that the plaintiff was working in the boiler room of the defendant as foreman. The accident occurred about midnight. The plaintiff’s testimony was to the effect that the electric lights went out about midnight of the day of the accident; that there was a car of coal standing near a window of the boiler room, where he was employed, and that he intended to go to the car in order to get a lantern to enable him to see the steam gauges upon the boilers; that he might have reached this car by going around a pile of coal, which was next the window, and through a door; that instead of doing so, however, hé undertook to climb over the coal which was next the window, and in doing so received the injuries on account of which he brought suit for damages.

Upon the conclusion of the plaintiff’s testimony the, trial court, on motion, directed a verdict for the defendant. We think that the action of the court in so doing was proper. The record is barren of any evidence tending to show any negligence on the part of the defendant. The mere happening of the accident raises no presumption that it was caused by the negligence of the defendant. Spring Valley Coal Co. v. Buzis, 213 Ill. 341.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice F. A. Smith

text:
    Benjamin A. Leafgreen, Trading as Leafgreen Construction Company, Appellee, v. Hyman Yablonsky, Appellant.
    Gen. No. 17,051.
    1. Mechanics’ liens — extra work. Where a contractor flies a bill to enforce a mechanic’s lien for extra work, and a clause of the contract provides that no extra work or material will be paid for without a written agreement made and approved by the owner, an indorsement allowing for extra work made on the contract by the superintendent and not ratified by the owner is not binding.
    2. Contbacts — extra work. Where a contractor sues the owner for extra work he has the burden of proving that the work was extra and that it was ordered' by defendant.
    3. Agenct — authority of superintendent of building. It is not within the scope of authority of a superintendent of a building to make an indorsement on the contract allowing the contractor extra pay for additional work.

      4. Contracts — consideration for agreement for extra work. Where by the specifications, which are made a part of a building contract, the contractor is obliged to go to the depth required to secure a solid bottom for the foundation if the ground is not solid at the depth shown on the plans, a promise by the superintendent to pay extra therefor is without consideration.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 4, 1913.
    Louis T. Orr, for appellant; Harvey L. Cavender, of counsel.
    Parker & Hagan, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Benjamin A. Leafgreen, doing business as Leaf-green Construction Company, hereinafter called the complainant, filed his bill of complaint to enforce a mechanic’s lien against the real estate in question owend by appellant, Hyman Yablonsky, hereinafter called defendant, for the sum of $1,030, $277 of which amount he claimed for extra work. Yablonsky, owner of the real estate, was made a party defendant together with Moses E. Greenbaum and the unknown owners of certain notes. Upon confession of a demurrer on September 28, 1908, the suit was dismissed as to all defendants except Yablonsky, and an amended bill was filed which set out a contract entered into between the complainant and the defendant by which complainant undertook to do all the mason and cut-stone work in the erection of. a certain building upon the real estate in question at an agreed price of $8,200, according to certain plans and specifications declared to be a part of the contract, to the satisfaction of and under the direction of the superintendent. The fifth clause of the contract provided that ‘no extra work or material will be paid for without a written agreement made and approved by the owner.”

The bill further sets out that on the second day of December, 1908, the contract was modified by attaching a further agreement as follows: “The contractor to go one foot and eight inches deeper than original plan shows with rear wall of both buildings, and there is to he allowed to this contractor $265 above the contract price mentioned herein.” The bill represents that the contractor performed this extra work. The specifications referred to in the contract provided: “The contractor to go on the ground, carefully examine the same and determine how deep it will be necessary to go to solid bottom with footings. No extras will be allowed for going deeper or for extra wall necessary to bring the bottom of the water table up to grade.”

The answer denied that the contract was modified by the defendant on the second day of December, and averred that if any endorsements or modifications were made on said contract by any person on behalf of the defendant, they were made without his consent or authority, and denied that the complainant had completed the work according to the terms of the contract and specifications, and denied complainant’s right to a lien.

The decree included $265 for extra work in going one foot and eight inches deeper with the foundation of the rear part of both buildings. This item is the only matter seriously disputed in the case. The evidence shows that on or about November 7th or 10th, the complainant, Leafgreen, had an interview with defendant, Yablonsky, in the office of Hecht, the architect, Mr. Buttas, the superintendent, was present at the interview. Yablonsky asked Buttas if it was necessary to go one foot eight inches below the depth that the plans called for and Buttas told Yablonsky it was, and Yablonsky said “All right.” Complainant testified that he had done the extra work at the time this conversation took place.

In our opinion the defendant is not liable for any extra or additional work ordered by the superintendent under the provision of the contract above quoted. The evidence does not show any order for extra work from the defendant, nor does it show that the provisions of the contract were waived by him. The order for the $265 written upon the contract by the superintendent was without any authority given by the defendant, and, as stated above, was not called to the knowledge of the defendant until after the alleged extra work had been performed. Adlard v. Muldoon, 45 Ill. 193, 195.

According to the specifications, which were made a part of the contract above quoted, Leafgreen was obliged to go to solid bottom with the foundation of the buildings. If the ground was not solid at the depth shown on the plans for the rear part of the buildings, under the terms of -his contract, the complainant was obliged to go to the depth required to secure solid bottom for the footings, and any promise to pay him extra therefor by the superintendent was without any consideration to support it. Stuart v. Cambridge, 125 Mass. 102; 9 Cyc. p. 349.

Before complainant could recover for extra work, the burden was upon him to show that the work was extra and that it had been ordered by the defendant. Dickinson v. Prince, 61 Ill. App. 335. The evidence does not show that the work done was extra work or that it was ordered by the defendant. The act of the superintendent in making the endorsement on the contract and allowing $265 therefor was unauthorized. It was beyond the scope of his authority, and it was never ratified by the defendant. We find no testimony in the record touching the other item of $12 for extra work.

The decree was erroneous in allowing $265 for extra work on the foundation in the rear part of the buildings and for the brick piers in front of each building, and it is therefore reversed and the cause remanded with directions to the trial court to enter a decree not inconsistent with the views herein expressed.

jReversed and remanded with directions.


text:
    Cornelius Collins, Appellee, v. Western Electric Company, Appellant.
    Gen. No. 17,073.

    1. Masteb and servant — safe appliances. Where defendant furnishes planks to be used by plaintiff, a painter in its employ, it is not bound to furnish an absolutely safe plank, its duty being fulfilled if it uses reasonable care to furnish a reasonably safe plank.
    2. Masteb and servant — assumed rish where scaffold is already in position. The fact that plaintiff, a painter employed by defend"-ant, is ordered to work on a scaffold already in position, does not relieve him from the assumption of risk.
    3. Masteb and servant — simple appliances. A plank and stepladders used by plaintiff in defendant’s employ are simple appliances the danger from the use of which the servant assumes.
    Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact.
    Opinion filed March 4, 1913.
    Holt, Wheeler & Sidley, for appellant.
    Horton, Wickett, Miller & Meier, for appellee; JohN H. Miller, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee, Cornelius Collins, hereinafter called plaintiff, recovered-judgment in the Superior Court against appellant, Western Electric Company, hereinafter called defendant, for damages for personal injuries alleged to have been sustained November '30, 1906, while working for defendant as a painter.

The declaration originally consisted of four counts. The second count was withdrawn from the consideration of the jury by the court. The first, third and fourth counts charged the defendant with failure to furnish plaintiff a reasonably safe place to work and negligence in frirnishing a plank which, was defective by reason of a knot and a cross-grained portion or section.

Plaintiff was fifty years of age and a competent painter of thirty years’ experience. At the time of his alleged injury he was in the employ of defendant as a painter, calciminer and whitewashes and had been so employed for about a month as a member of a gang of ten or fifteen men engaged in general work abont the defendant’s premises. On November 30, 1906, the gang, including the plaintiff, were working on the eighth floor of defendant’s building, whitewashing the ceiling of the room. In performing the work, the men stood npon scaffolding formed of planks strung on step,ladders. The planks were of various lengths — 10, 12, 14 and 16 feet. They were furnished by the defendant and it was the custom of the men in the gang, in constructing their scaffolding, to move them forward in the room from time to time and change their position as the work progressed. Plaintiff began the whitewashing work sometime between 7:30 and 9:00 in the morning of November 30th. About 3:30 in the afternoon of that day, the plank on which he and a fellow-laborer named Menth were working, broke under them and plaintiff fell to the floor, alighting upon his heels, receiving injuries causing, as he claimed, a flat-footed condition in both feet.

The theory of the plaintiff’s case, as developed in the evidence, was that the plank which broke under the plaintiff in the afternoon was the same plank which cracked in the morning while the witnesses Grouhle and Prank Carlstrom were working upon it. It appears from the evidence that a plank upon which these men were working had cracked in the morning, and that the assistant foreman, Gearhart, had an employe named Heckler place a stepladder beneath the plank in order to support it at the point where it had cracked. But it also appears that the plank which cracked in the morning was removed shortly after it proved defective and placed npon tlie elevator and taken to a scrap room on the second floor 'of the building. Plaintiff’s theory of the case involves.the alleged fact that the plank was again removed from the scrap room and taken back to the room on the eighth floor of the building where the whitewashing was being done. This theory of the plaintiff is relied upon to bring to the notice of the defendant the defective condition of the plank. In our opinion the manifest weight of the evidence is that the plank which cracked in the morning was removed to the scrap room located on the second floor and was never returned to the eighth floor where the work was being done and the alleged injury sustained. In other words, the clear weight of the evidence is that the plank which broke under the plaintiff in the afternoon was not the same plank that cracked in the morning.

The preponderance of the evidence shows that in the morning when the gang commenced work they selected from a pile of planks such as they desired for use on the stepladders and began stretching the planks upon the stepladders in the aisles between the machines located on that floor, and as the work progressed, the painters and calciminers shifted their stepladders and planks; that the planks and ladders were constantly being moved forward by the painters who were working upon them. The plaintiff testified that it was his custom, whenever he got upon a plank, to make an inspection of it for his own safety; that before going upon the plank which broke with him he saw that it rested fairly upon the stepladders; that he tested its strength by walking across it and by observing its condition, and that there was no rock or giving away in the plank when he walked across it, nor any features about the plank which suggested that it might be dangerous and that this plank looked like a good and safe plank. Defendant was not obliged to furnish the plaintiff with an absolutely safe plank. Its duty was fulfilled if it used reasonable care to furnish the plaintiff with a reasonably safe plank. It was not an insurer of the safety of the plaintiff while he was working upon the planks furnished by it. The plank in question was an old plank which had been used for sometime and was covered more or less with calcimine. The plaintiff claims that he was ordered to work on this particular plank, and at the time the order was given the plank was already in position. This order is denied by his foreman, but if given it would not relieve him from the assumption of the risk incident to working upon the plank. The order in no way misled the plaintiff, for it was such an order as was usually given in the employment in which the plaintiff was engaged. Republic Iron & Steel Co. v. Lee, 237 Ill. 246; Kolp v. Decatur R. & L. Co., 145 Ill. App. 645. It appears from the evidence, we think, that the plaintiff inspected the plank before using it and had better opportunities to know its condition than the defendant. If it contained such a knot or such a breakage at any point as was testified to by the plaintiff, it must have been obvious to the plaintiff and to the man who was on the plank with him. The plank and the stepladders upon which it rested composed a simple appliance with everything about it open and obvious to the most casual inspection, and we think it clearly falls within the doctrine of simple appliances, the danger from the use of which the servant assumes. Webster Mfg. Co. v. Nisbett, 205 Ill. 273; Dauchy Iron Works v. Nevin, 130 Ill. App. 475.

In our opinion the evidence in the case fails to prove negligence on the part of the defendant, and it clearly shows that the plaintiff assumed the risks of his employment.

In view of our conclusion above stated it is unnecessary for us to consider the other grounds relied upon for reversal of the judgment.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.


text:
    Dwight Jackson and J. Howard Holbrook, Plaintiffs in Error, v. George E. Marshall et al., Defendants in Error.
    Gen. No. 17,915.
    1. CoNtkacts — when intent must he gathered, from, instrument. Where there are no allegations in a hill that there was error or mistake in reducing a contract to writing, and there is no prayer for its reformation, matters set up in such bill to the effect that the parties intended something not expressed are immaterial, and the intent must he gathered from the language of the instrument.
    2. Contracts — negative enforcement where contract lacios mutuality. No relief can he granted under a hill praying that defendants he enjoined from passing resolutions depriving complainant of his office as treasurer of defendant company in alleged violation of a contract, since complainant could not he compelled to serve as treasurer or render the service contemplated hy the contract.
    3. Contracts — when not properly signed to hind parties. Where two' companies are consolidated hy agreement and a contract to the effect that complainant shall be elected treasurer of the new company is signed hy complainant and defendant as presidents of their respective consolidating companies, complainant did not personally agree to serve the new company nor did such company agree to employ him.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate
    Court at the March term, 1912.

    Affirmed.
    Opinion filed March 4, 1913.
    Pringle & Fearing, for plaintiffs in error.
    C. H. Poppenhusen, Joseph L. McNab and Edward E. Johnston, for defendants in error; S. S. Gregory, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiffs in error, Dwight Jackson, Edward A. Waldschmidt and J. Howard Holbrook filed their bill of complaint against defendants in error, George E, Marshall, Newton Lull, J. Harry Jones, Lewis T. Marshall, Oscar T. Willard, Mary Marshall, E. E. Spath and the Mar shall-Jackson Company, a corporation, setting forth that prior to Jnne 6,1904, complainants and certain other persons owned the total capital stock of the Thayer & Jackson Stationery Company, an Illinois corporation, which company had been np to June 6th engaged in the stationery business in Chicago, and was in a prosperous condition; that George E. Marshall & Company was on that date engaged in the stationery business in the city of Chicago, and that George E. Marshall, Newton Lull, J. Harry Jones, Lewis T. Marshall and Oscar T. Willard, defendants, were the owners of the capital stock of George E. Marshall & Company, a corporation.

That on June 6th, and prior thereto, the directors, stockholders and officers of the said companies negotiated concerning the 'consolidation of the companies, and the negotiations culminated on that day in the execution of á contract between George E. Marshall & Company and the Thayer & Jackson Stationery Company, which provided that George E. Marshall & Company should change its corporate name to Marshall-Jackson Company, and increase its capital stock from the sum of $100,000 to $250,000, of which the new capital stock of $150,000 should be 6% cumulative preferred stock, and the remaining $100,000 should be common stock, and that the stockholders of both companies should surrender the stock which they held in their respective companies, and in lieu thereof should receive stock of the new company, naming the proportion of stock which the stockholders of the Thayer & Jackson Stationery Company should receive and the stockholders of said George E. Marshall & Company should receive.

The contract further provided that the number of directors of said George E. Marshall & Company should be increased to five, and that complainant Dwight Jackson and one other of the then holders of the stock of the Thayer & Jackson Stationery Company should be elected as members of the board of directors. The contract further contained the following clause, which is particularly involved in this controversy :

“That Dwight Jackson shall be elected treasurer of said Marshall-Jackson Company at a salary of four thousand dollars ($4,000) per annum. His specific duties being to promote the general welfare of the business and especially to strive for the increase and development of the business now controlled by the Thayer & Jackson Stationery Company.”

The contract was signed “George E. Marshall & Company, by George E. Marshall, President. Thayer & Jackson Stationery Company, by Dwight Jackson, President,” and it seems to have been approved by the shareholders of the latter company.

The bill avers that the agreement set forth for the consolidation of the two companies was carried out as agreed, and that all the assets of the companies were transferred to the new company, called the Marshall-Jackson Company, which was organized instead of increasing the stock of George E. Marshall '& Company, and that the new company assumed all the obligations’ and debts of the respective companies, and that Dwight Jackson, the complainant, was chosen treasurer of the new company in accordance with the agreement until June 8, 1910, when George E. Marshall, as president of the said Marshall-Jackson Company, notified Jackson that at the meeting of directors to be held immediately following the next annual meeting of the stockholders of the Marshall-Jackson Company, complainant, Jackson, would not be elected treasurer of the company, and that the emoluments of said office would not be paid to him.

The bill prayed a decree be entered restraining and enjoining the defendants from passing any resolution at the meeting to be held on June 15, 1910, or at any date thereafter, whereby Dwight Jackson, complainant, will be deprived of Ms office of treasurer in the Mar shall-Jacks on Company, or whereby any other person will be elected in his place, and preventing and enjoining the defendants from passing any resolution at such meeting of stockholders or directors on June 15, 1910, or subsequent thereto, wMch will in any manner deprive said Jackson of his salary of $4,000 per annum as treasurer, and restraining and preventing the corporation, its officers, agents and employes from interfering with or hindering the said Jackson from the full knowledge of the business and affairs of the Marshall-Jacks on Company, and from participating therein, and for such other and further relief in the premises as should seem agreeable to equity and good conscience.

Some amendments were filed to the bill which will be referred to later, and a demurrer to the bill as amended was sustained by the court and the bill dismissed for want of equity. From the decree, Jackson and Holbrook prosecuted this writ of error.

It will be noted that the contract set out in the bill was between the corporation, George E. Marshall & Company and the Thayer & Jackson Stationery Company. Neither of the complainants was a party to it, nor were the stockholders of the respective companies parties to the agreement. It will be further noted that the agreement does not provide for the time or period during which Mr. Jackson was to be elected and re-elected to the office of treasurer and paid the' stipulated salary. It may be further stated that the bill contains no averments to the effect that there was any fraud or misrepresentation or concealment in the making of the contract by either party.

Two amendments were filed to the bill, one on June 17, 1910, and the second on July 29, 1910. The first amendment alleges that it was the intent of the parties that the contract should be entire and not to separate any part or make any part of the contract divisible from the balance of the contract, and that at and before tlie time of tlie making of tlie contract it was tlie intention of tlie parties tliat the position of treasurer of the said Mar shall-Jacks on Company should he held by Mr. Jackson so long as he should he capacitated to perform the duties mentioned in the contract. By the second amendment, it was alleged that at the time the contract was entered into, the consideration which induced Mr. Jackson and the other stockholders of the Thayer & Jackson Stationery Company to relinquish their stock for stock in the Mar shall-Jackson Company, was the fact that Jackson was to become and remain the treasurer of the company with the duties specified in the contract so long as he should he able to perform such duties, and that he entered into the contract upon that consideration, and that the consideration of $4,000 per annum was not a distinct and separate consideration for such service alone; hut that the exchange of stock of the Thayer & Jackson Stationery Company was based partly upon the consideration that Mr. Jackson was to be and remain treasurer of the Marshall-Jackson Company with the duties and responsibilities and at the salary mentioned.

In our opinion, the matters set up in the original bill and in the amendments thereto to the effect that the parties intended something not expressed by the contract are immaterial and cannot be considered. The intent must be gathered from the language of the instrument relied upon. Adams & Westlake Mfg. Co. v. Cook, 16 Ill. App. 161; Fuchs & L. Mfg. Co. v. Kittredge & Co., 242 Ill. 88; Murphy v. Schnell, 248 Ill. 182. In the absence of any allegations in the bill that there was any error or mistake in reducing the contract to writing and in the absence of any prayer for its reformation, the court cannot consider anything outside the contract itself for any purpose in this case.

If the contract be considered as a contract between the complainants and the defendants, we do not think the complainants, or either of them, are entitled to any relief under the bill for the reason that it is settled in this state that the jurisdiction of equity to enjoin a breach of a contract is substantially coincident with its jurisdiction to compel specific performance, and that the contract cannot be negatively enforced by injunction restraining’ its breach, because of the want of mutuality in its terms and requirements. In Welty v. Jacobs, 171 Ill. 624, the court laid down the principle, that before a contract can be specifically enforced there must be mutuality in its terms so that it can be enforced by either party. The court held it was plain that to enjoin one from doing something in violation of his contract was an indirect mode of enforcing its affirmative provisions. It was, therefore, held that the manager of a theatrical company could not enjoin the proprietor of a theatre from refusing to furnish his theatre, stage hands, music, etc., according to the terms of a contract, as such contract could not be specifically enforced, and because the proprietor of the theatre, Jacobs, could not have specific performance against Welty, the manager. The defendants, or either of them, in the case at bar, could not enforce the contract set out in the bill against Jackson. He could not be compelled to serve as treasurer or render the personal service contemplated in the contract. In Arthur v. Oakes, 63 Fed. 310, which was a case to enjoin trainmen of a railroad from striking or quitting in a body, the court said: -“It would be an invasion of one’s natural liberty to compel him to work for or to remain in the personal service of another. One who is placed under such constraint is in a condition of involuntary servitude — a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. * * * The rule, wé think, is without exception that equity will not compel the actual, affirmative performance by an employe of merely personal services any more than it will compel an employer to retain in his personal service one who, no matter for what cause, is not acceptable to Mm for service of that character.” Specific performance will not be decreed at the suit of a party against whom the other party to the contract has no reciprocal right to enforce the contract. Tryce v. Dittus, 199 Ill. 189; Bauer v. Lnmaghe Coal Co., 209 Ill. 316. The question here involved and the cases above cited were exhaustively examined and passed upon in Ulrey v. Keith, 237 Ill. 284, and we think the law, as stated above, too well settled in tMs state to warrant further discussion, or the citation of further authorities.

Upon the face of the contract, however, Mr. Jackson did not sign it, or purport to sign it, as an individual. He only signed it as president or stockholder of the Thayer & Jackson Stationery Company. He did not, therefore, personally agree to serve the defendant company in the capacity mentioned in the contract, nor did the defendant company agree to employ the complainant Jackson in such capacity. It seems, therefore, unnecessary for us to discuss the validity in equity of a contract to elect a corporate officer for a period of years, for whether such a contract can be made which will control the board of directors of a corporation in such a matter does not necessarily arise upon this writ of error. The bill does not set up any ground for equitable relief, and the decree is therefore affirmed.

Affirmed.


text:
    Lena B. Mathes, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,956.
    1. Evidence — hearsay. In an action for personal injuries testimony of a gymnasium instructor as to exercises taken hy plaintiff previous to the accident should he stricken where such instructor testifies that she did not teach plaintiff’s section of the class and had never taught her and that she did not know the name of any other person in such section.
    2. Evidence — statements of bystanders at time of an accident. In an action for personal injuries a statement hy plaintiff that those around her a few minutes after the accident said “you are badly hurt” is no part of the res gestee and its admission is prejudicial error.
    3. Evidence — cross-examination of physician as to plaintiff’s description of accident to him improper. On cross-examination of a physician called hy defendant to attend plaintiff who was injured when alighting from a street car, it is error to admit testimony to the effect that plaintiff told him that she was injured on a certain car at a certain street and that the car started while she was getting off and she fell forward.
    Appeal from the Superior Court of Cook County; the Hon. Habey C. Moean, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 4, 1913.
    Rehearing denied March 25, 1913.
    JohN E. Kehoe and WatsoN J. Perry, for appellant; Leonard A. Busby, of counsel.
    Pope, Hoig, Puller & Nichols, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Lena B. Mathes, appellee, hereinafter called plaintiff, recovered a judgment in the Superior Court against appellant, Chicago City Railway Company, hereinafter called defendant, for damages for personal injuries alleged to have been sustained through negligence in operating a street car on which plaintiff was a passenger. The verdict was for $8,000. The court required a remittitur of $4,000, and entered a judgment for $4,000.

It appears that plaintiff and a Mrs. Hess, who both lived in the southern part of the city of Chicago, on November 27, 1908, entered a “pay-as-you-enter” car of the defendant at "Wabash avenue and Randolph street,- intending to go to Sixty-first street and there transfer to an east-bound street car which would take them near their homes. Plaintiff stepped off the car and fell to the ground at a point about 100 or 110 feet north of Sixty-first street. Plaintiff testified that she was thrown forward, the front part of her body only striking the ground. It is claimed that as a result of the accident plaintiff suffered severe and permanent injuries to her pelvic organs and that uterine hemorrhage followed and nervous disorders and other injuries.

The negligence averred in the original count and additional counts is that the defendant carelessly and negligently caused the car to be suddenly and violently started and moved while the plaintiff was in the act of alighting therefrom.

Upon the evidence produced on the trial, the question of liability of the defendant is extremely doubtful. That the plaintiff received the injuries claimed by her as a result of the accident is denied. It, therefore, became especially important that the cause should be submitted to the jury upon proper evidence and correct instruction as to the law.

Gertrude Dudley, the director of the women’s gymnasium of the University of Chicago, was called as a witness by plaintiff. She testified that she knew the plaintiff; that she was registered in the gymnasium department October 5, 1908, and her last attendance was November 25, 1908; that when she became a student she was subjected to the regular physical examination, and thereupon entered the elementary class and did gymnastic work. She then described the ■work which plaintiff did. On cross-examination she testified that the plaintiff was in the elementary class which varied in number from 225 to 350, and was in four sections. She did not- know the name of any other person who was in the plaintiff’s section and did not remember whether the plaintiff told her previous physical history in her examination; that the witness was not the only teacher of gymnastics at that time; that she had three assistants and that she personally tanght one of the sections; but not the one plaintiff was in, and had never tanght her. Counsel for the defendant then moved to strike ont the witness’ testimony as to what exercises the plaintiff took and which she had described in her direct examination. This motion was overruled by the court, and, in our opinion, it was an improper ruling. The only inference deducible from the testimony of the witness was that she had no knowledge of the exercises and gymnastic work which the plaintiff did, except such as was acquired by hearsay.

In the examination in chief of plaintiff she described the accident, the manner in which it occurred and the immediate results in her fall; she stated that the first she clearly remembered after the accident was that she was standing with a crowd around her and saw Mrs. Hess and the conductor of the car coming toward her, and that the conductor asked her questions which Mrs. Hess answered. She further testified that “some one wanted to take me somewhere; I do not know who it was and I do not know where they wanted to take me, but they said ‘you are badly hurt.’ ” Counsel for defendant moved to strike from the record the words “You are badly hurt,” but this motion was overruled by the court. We think the ruling was erroneous. It was a self-serving statement which was not proper to be submitted to the jury. It was no part of the res gestae. It was made after plaintiff had fallen to the ground and after the car had moved ten or fifteen feet, and after plaintiff had been assisted to her feet and Mrs. Hess had returned from the point near Sixty-first street where she was when she first learned of the accident. In onr opinion, its admission was prejudicial error. Lecklieder v. Chicago City Ry. Co., 142 Ill. App. 139; Chicago City Ry. Co. v. White, 110 Ill. App. 23; Boyd v. West Chicago St. R. Co., 112 Ill. App. 50. “An act or declaration can only be considered as a part of the res gestos when it illustrates, explains, or interprets other parts of the transaction, of which it is itself a part.” Chicago City Ry. Co. v. Uhter, 212 Ill. 174, 183. “That which occurs before, or aft¿r the act is done, is not a part of the res gestos, although the interval of separation is very brief.” Pennsylvania Co. v. McCaffrey, 173 Ill. 169.

Dr. Tillotson was called by the defendant and testified that on the evening of the occurrence, and at the request of defendant, he called upon plaintiff and examined her. He testified to the conditions he found present, and inquired of her as to her previous health, and was informed that she had been subject to some uterine trouble in the past, and that an operation had been performed in Georgia to repair a tear of the uterus; that for years she had been subject to nervous exhaustion and hemorrhages that were sometimes grave and dangerous. On cross-examination he testified that the plaintiff described the accident to him. He was then asked:

“Q. How did she describe it to you?”

And over objection of counsel for defendant as being immaterial, incompetent and not being proper cross-examination, he was permitted to answer, “She stated that she was hurt on a Cottage Grove avenue car at Sixty-first street; that the car started as she was getting off and she fell forward.” A motion by counsel for defendant to strike out the answer as being improper cross-examination, and as enabling plaintiff to get self-serving declarations into the record, was overruled. We think the ruling was erroneous. The admission of the evidence was error for the reasons assigned m tlie motion. It permitted the plaintiff to get before the jury, to be considered by them as evidence, a self-serving statement of her theory of the controverted question of the manner in which the accident occurred. Geinke v. Chicago City Ry. Co., 234 Ill. 564.

In our opinion, the seventh instruction, submitted to the jury at the request of the plaintiff, was erroneous and misleading. It was not based on the theory of the evidence of either side. It suggests to the jury that if upon or before the arrival of the car at about 110 feet from Sixty-first street the conductor of the car called out to the plaintiff and to the passengers in the car, “Sixty-first street,” and opened the door of the car and left the same open, it was an invitation to the plaintiff to get off while the car was in motion, and leaves out of consideration the warning of the conductor not to get off the car until it stopped, and then instructs the jury that the fact of her stepping from the car while the same was in motion would not prevent the plaintiff from recovery. The instruction is involved and misleading, and ignored undisputed evidence in the case.

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

Reversed and remanded.


author: Per Curiam.

text:
    Moritz Ertl et al. v. Samuel Lehmann et al. Mathias Freres, Appellee, v. Samuel Lehmann et al., on appeal of Louis Henry et al., Appellants.
    Gen. No. 19,168.

      Receivers — substitution of. Under R. S. eh. 110, §123, limiting appeals from interlocutory orders regarding receivers to orders “appointing a receiver or giving other or further powers or property to a receiver already appointed,” the discharge of one receiver and. substitution of another is not subject to review.

      Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavakagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Appeal dismissed.
    Opinion filed March 4, 1913.
    Joseph Kohh and Hektrt & RobiusoN, for certain appellants.
    Fred Plotke and George E. Swartz, for appellee.
   Per Curiam.

— In this case an appeal has been attempted to he perfected from an order entered discharging a receiver appointed on a hill of foreclosure, and appointing another in his place.

We have no jurisdiction. The statute with respect to appeals from interlocutory orders regarding receivers (section 123, chapter 110, R. S.) is limited to an order “appointing a receiver, or giving other or further powers or property to a receiver already appointed.” The court, having appointed a receiver, has authority to substitute another for the one originally named, and his action in so doing is not subject to review. The "appeal will therefore he dismissed.

Appeal dismissed.


author: Mr. Justice Graves

text:
    John F. Devine, Administrator, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 16,706.
    1. Streets and ailets — degree of care required, from, pedestrian. While a person using a street must exercise care proportionate to defects and dangers known to him, he has the right to assume that the city will perform its duty in regard to keeping its streets in reasonably safe condition for travel, and is not bound to guard against unknown dangers, even though such unknown dangers would have been disclosed by investigation.

      2. Streets and aheeys — unknown dangers. An instruction predicating tlie degree of care which plaintiff should exercise in traveling on a city street on whether hy the exercise of reasonable care to ascertain its condition she would have known that it was not in a reasonably safe condition, in so far as it imposes on plaintiff a duty to exercise care for her own safety in proportion to defects and dangers of which she did not know, is erroneous.
    3. Instructions — preponderance of evidence. An instruction which, after stating that the preponderance of the evidence does not necessarily depend on the number of witnesses testifying on either side, undertakes to enumerate the things the jury may take into consideration in determining on which side the preponderance of the evidence is, and in such enumeration entirely omits any reference to the number of the witnesses as one of those elements, where the number of witnesses is important, is reversible error as tending to lead the jury to believe that such number is not to be considered at all.
    4. Instructions — withdrawal. Under Practice Act, §74, providing that the judge “shall in no case after instructions are given, qualify, modify or in any manner explain the same to the jury, otherwise than in writing,” where an erroneous instruction has been inadvertently given and has been formally withdrawn from the consideration of the jury in any way, so the jury understand it is no longer to be considered by them in determining the case, it is no longer an instruction, and its withdrawal cannot be treated as a qualification, modification or explanation of a given instruction or a violation of the statute.
    Error to the Circuit Court of Cook county; the Hon. M. W. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded.
    Opinion filed October 16, 1912.
    Opinion withdrawn and refiled with amendment as to title March 4, 1913.
    John C. King and James D. Power, for plaintiff in error.
    Edward J. Brundage and Clyde L. Day, for defendant in error; Edward C. Fitch, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun by plaintiff in error to recover for personal injuries claimed to have been received by her because of the defective streets of defendant in error. The jury found the defendant not guilty and judgment followed.

The only errors complained of relate to several instructions given at the instance of defendant in error.

Instruction No. 7, after stating the rule to be that the preponderance of the evidence does not necessarily depend on the number of witnesses testifying on either side, undertakes to enumerate the things the jury may take into consideration in determining on which side the preponderence of the evidence is, and in that enumeration entirely omits any reference to the number of witnesses as one of those elements. The number of witnesses testifying on the respective sides is frequently one of the important things a jury should take into consideration in determining the question of the preponderance of the evidence, and by omitting it from the enumerated elements to be considered the jury might well understand that it was not to be considered at all. Instructions of this character have been condemned in Chicago Union Traction Co. v. Hampe, 228 Ill. 346; Hays v. Johnson, 92 Ill. App. 80, and in Elgin J. & E. R. Co. v. Lawlor, 229 Ill. 621. In the latter case, it is held, in substance, that while it is not always reversible error to give an instruction of that character, it is so, when the number of witnesses is important, and the omission is not cured by others given in the case. On some of the material issues in this case the number of witnesses was an important element to be considered, and there was no other instruction given that supplied the omission in this one. This instruction should not have been given.

Instruction No. 13 has reference to the duty of plaintiff in error in regard to the exercise of reasonable care for her own safety, and predicates the degree of care she should exercise in traveling on the street on whether by the exercise of reasonable care to ascertain the condition of the street she would have known that it was not in a reasonably safe condition. While it is the law that a person using a street must, exercise care proportionate to defects and dangers known to him, he has the right to assume that the city will perform its duty in regard to keeping its streets in reasonably safe condition for travel, and is not bound to guard against unknown dangers, even though such dangers would have been disclosed by investigation. Vocke v. City of Chicago, 208 Ill. 192; Weinberg v. City of Chicago, 172 Ill. App. 77. This instruction, as given, in so far as it imposed upon plaintiff a duty to exercise care for her own safety in proportion to defects and dangers of which she did not know is erroneous.

Instructions Nos. 9, 11, and 15 might be improved in phraseology, but as given they announce the law with substantial accuracy.

While reading his charge to the jury, the judge read one instruction and then withdrew it, saying, “that instruction is not given to you gentlemen; there is an element in there that is not the law.” It is claimed by plaintiff in error that this action of the court violated section 74 of the Practice Act, by which it is provided that the judge “shall in no case after instructions are given, qualify, modify, or in any manner explain the same to the jury otherwise than in writing.” An instruction within the meaning of section 74 of the Practice Act is an announcement by the court to the jury of what the principles of law are that must be applied by the jury to the facts in the case in the determination of the issues involved. When an erroneous instruction has been inadvertently given and has been formally withdrawn from the consideration of the jury in any way so the jury understands it is not to be considered by them in determining the case, it is no longer an instruction, and the act of withdrawing it is not a modification, qualification or explanation of a given instruction. The right of the court to orally withdraw from the consideration of the jury an erroneous instruction inadvertently given is not prohibited by the section referred to and has been recognized by the courts of this state in at least two cases, viz., Chicago & E. I. R. Co. v. Zapp, 110 Ill. App. 553, and Roberts v. Patterson, 77 Ill. App. 394, while in the case of North Chicago St. E. Co. v. Johnson, 84 Ill. App. 670, a contrary rule seems to have been laid down. We consider the holding in the first two cases cited to be the more accurate announcement of the law and adhere to the doctrine there proclaimed. What was said by the court in withdrawing the instruction in the case at bar was nothing the jury were called upon to consider in determining the issues in the case, and cannot be treated as a qualification, modification or explanation of a given instruction or a violation of section 74 of the Practice Act. Even if the action of the court in withdrawing the instruction in question was a violation of section 74 of the Practice Act, it would not be an error that plaintiff in error could take advantage of in this case. The instruction in question was one defendant in error requested the court to give, and was incorrect for the reason that it placed upon plaintiff in error a duty to act with reference to dangers not known to her, which, as heretofore stated, is not the law. The error, therefore, if error there had been in withdrawing the instruction, was to the advantage of plaintiff in error, of which she cannot be heard to complain.

For the error of the court below in giving of instructions numbered 7 and 13, the judgment of the Circuit Court is reversed and the cause is remanded to that court.

Reversed and remanded.


author: Mr. Justice Fitch

text:
    Adolph Weise, Appellee, v. Conrad Seipp Brewing Company, Appellant.
    Gen. No. 17,879.
    1. Mastbe and servant — defective machinery. In an action by a servant to recover for injury from defective machinery, be must prove, first, that the appliance was defective; second, that the master bad notice thereof or knowledge, or ought to have had; and third, that the servant did not know of the defect and had not equal means of knowing with the master.
    2. Master and servant — duty of master the same with regard to place or appliance. The duty and liability of a master to his servant are the same with regard to the place of work and the appliance with which the work is done.
    3. Master and servant — where Knowledge of defective appliance or unsafe place is sufficient. In an action by a servant for personal injury, where the defect in the appliance or place is known to the servant, it is not necessary to relieve the master from liability that it appear that the servant had knowledge of the danger, where the danger is obvious to a man of ordinary intelligence.
    4. Master and servant — where servant assumes risk of obvious dangers though master violates duty. While the master’s duty requires him to furnish the servant a place ordinarily safe in which to work and machinery which is ordinarily safe, and the servant has a right to assume that he has performed this duty, yet, even if the master fails in such duty and there are, to the knowledge of the servant, defects in such machinery which render its use hazardous, he assumes the hazard.
    5. Master and servant — servant assumes obvious and apparent dangers. In an action by a brewery employe for injury received while shoveling malt into a conveyor, where the danger of standing near the conveyor is obvious, the risk will be held to be assumed.
    6. Master and servant — general order not sufficient to relieve servant from assumption of ffislc. In an action by an employe in a brewery for personal injury, an order to “go down there and shove the malt right into the conveyor” is a mere direction to go to work as usual, and does not amount to an assurance of safety which operates to relieve him of assumption of risk.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of fact.
    Opinion filed March 6, 1913.

      Statement by tlie Court. In this ease a ¡judgment for $2,500 was entered against appellant for damages for personal injuries sustained by appellee while'be was in the employ of appellant. In substance, the several counts of the declaration charge negligence on the part of appellant in failing to use reasonable care to provide appellee with a reasonably safe place to work and reasonably safe appliances and instru-mentalities with which to work, and also that appellant negligently ordered appellee to work in a dangerous place, where he was exposed to perils not ordinarily incident to his employment and extra-hazardous, which were known to appellant and unknown to appellee. Four of the counts also allege a violation of a city ordinance, but no such ordinance was introduced in evidence.
    The following facts are shown by a clear preponderance of the evidence. Appellant operates a brewery in a building seven stories high, the basement and first floor of which are used as part of its “malt house.” In the basement is a room 98 feet in length from east to west and 54 feet wide from north to south. The west 90 feet of this room is divided into three rectangular bins, with aisles between them, formed by partitions, three and a half feet in height. These are called “malt bins,” and each is capable of holding 1,500 to 1,800 bushels of malt. The east eight feet of the room is an open space, in the cement floor of which, some 16 or 17 inches from the east wall of the room and parallel therewith, is a trough 14 inches wide, and about the same depth, extending the whole width of the room from north to south, except about seven feet at the north end. In this trough is a spiral or screw conveyor of steel, and just above it, at the top of the trough and flush with the basement floor, is an iron grating resembling a ladder with rungs four and one-half inches apart. When the conveyor is not running, thin iron plates are laid upon the grating, covering it completely; but when the conveyor is in operation, a section of these iron plates is removed, leaving that part of the conveyor exposed and uncovered, except by the iron grating. In the northeast corner of the room, a small flight of stairs leads from the basement floor to a door opening into another room, the floor of which is four and a half feet higher than the basement floor. The distance from the foot of the stairs to the bearings of the conveyor, in the north end of the trough, is 18 or 19 inches, and from the foot of the stairs to the first spiral of the conveyor is two feet and eight inches. Near the ceiling, in the middle of the open space at the east end of the room, is an arrangement of shafting, pulleys and a winding drum, and attached to the east wall, a couple of feet above the floor and about opposite the center line of each of the malt bins, is a block and pulley, through which a rope passes from the winding drum to a shovel or scraper used to scrape the malt from the bins into the conveyor. On the floor above the basement are three other bins, similar to those in the basement. The barley used in the process of making malt is first cleaned and soaked in water in one of the upper floors of the building, and is then passed through a pipe or chute into the bins above described. There it is kept for a week at a temperature which causes it to sprout. Then it is transferred to the conveyor, which carries it along in the trough to another department of the brewery. In doing this work in appellant’s brewery, six men constituted a “gang.” Two of these worked on the upper floors, and four in the basement. Of the latter, one stood near the winding drum and operated the machinery which controlled the movement of the scraper forward and backward, another handled the scraper, a third handled the slack rope attached to it and helped to pull it back, and the fourth stood near the uncovered section of the conveyor and, with an instrument resembling a garden fork, tore apart the matted malt and shoveled and sifted into the conveyor such of the malt as did not readily fall through, the iron grating. It took about an hour and a half to empty one of the bins in this manner, and one of such bins was thus emptied each working day so long as the barley held out. All the men in the “gang” except the one who operated the machinery shifted their positions frequently, so that each in turn did the work which one of the others had done a day or two before.
    In September, 1906, appellee, then about twenty-five years of age, entered the employ of appellant, intending to learn the trade of a brewer and malster. He was first put to work in the “wash house.” Then in succession, he worked in the “filling room,” the “fermenting room,” the “chips room,” and finally, about a year after he first began, in the malt house. For three weeks in September and October, 1907, he worked as one of the “gang” above described, during which time he took his turn at the different positions above mentioned and did the work of shoveling malt into the conveyor at least twice. Apparently the work in the malt house then ceased for awhile for lack of barley, but was resumed in the latter part of January, 1908. Appellee again took his place in the “gang,” and at least once during the following week, he did the work of shoveling the malt into the conveyor, as it was scraped out of the bins. He claimed, however, that he only did this work opposite the middle and south bins, and never at the north bin. On the morning of the sixth day, he began work at seven o’clock; upon one of the upper floors, “getting the grain down.” When that was finished, about 7:50 a. m., he, with the other men, started for the basement. He testified that he first went to a toilet room, and while returning to the basement he met the foreman, who told him to “go down there and shove that malt right into the conveyor,” to which he made no reply. He testified: “I knew what that work was; I ought to know. ’ ’ He then went down the stairs leading into the basement, and saw that the other men had begun to empty the malt out of the north bin, and that they had already scraped out part of the malt from that bin. This malt was piled two or three feet high at the foot of the stairs. He found a fork standing at the head of the stairs and at once began shoveling the malt into the conveyor, standing upon the pile of malt for that purpose. . He testified that he did not see or know just where the north end of the conveyor was; that the scraper kept bringing up more malt and he kept shoveling it into the conveyor, moving around, as occasion required, to keep out of the way of the scraper. He continued at this work for about twenty minutes, when his foot slipped and went down between the bars of the grating into the conveyor. Another witness testified that at the time of the accident, ap-pellee had his left foot on the space between the conveyor and the east wall, and his right foot on the space north of the north end of the conveyor near the stairs. He received injuries which required his left leg to be amputated two or three inches below the knee.
    Frank M. Cos and R. J. Fellingham, for appellant.
    J. S. Reynolds, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

In Goldie v. Werner, 151 Ill. 551, 556, it is said: “The rule of law in respect to the burden of proof that is imposed upon a servant in a suit against his master, for injuries resulting from defective machinery, etc., is thus stated in section 414 of Wood on tbe Law of Master and Servant: ‘The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1st, that the appliance was defective; 2d, that the master had notice thereof, or knowledge, or ought to have had; 3d, that the servant did not know of the defect, and had not equal means of knowing with the master.’ ”

The rule thus announced has been followed in many-subsequent cases, among which are the following: Chicago & A. R. Co. v. Scanlan, 170 Ill. 106; Edward Hines Lumber Co. v. Ligas, 172 Ill. 315, 320; Howe v. Medaris, 183 Ill. 288, 293; Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89, 98; Armour v. Brazeau, 191 Ill. 117; John S. Metcalf Co. v. Nystedt, 203 Ill. 333, 337; Momence Stone Co. v. Turrell, 205 Ill. 515, 522; Sargent Co. v. Baublis, 215 Ill. 428, 433; Montgomery Coal Co. v. Barringer, 218 Ill. 327; McCormick Harvesting Machine Co. v. Zakzewski, 220 Ill. 522, 526; Christiansen v. Graver Tank Works, 223 Ill. 142; Elgin J. & E. R. Co. v. Myers, 226 Ill. 358, 363; Galloway v. Chicago, R. I. & P. R. Co., 234 Ill. 474; Pinkley v. Chicago & E. I. R. Co., 246 Ill. 370, 377.

In Lake Erie & W. R. Co. v. Wilson, supra, it is said that “The duty and liability are the same with regard to the place of work and the appliance with which the work is done.” To the same effect are Hess v. Rosenthal, 160 Ill. 621; John S. Metcalf Co. v. Nystedt, supra, and Montgomery Coal Co. v. Barringer, supra. In the last case, it is said that the rules announced in the cases of Goldie v. Werner, supra, and Metcalf Co. v. Nystedt, supra, “have been repeatedly approved and reaffirmed by this court * * * and are the settled law of this state.” In the same case, the court recognizes a modification or exception to the third subdivision of the rule in the following language (p. 331): “The servant must not only have knowledge of the defect in the appliance or place, but must appreciate the danger to him when using the appliance or working in the place, in order to relieve the master from liability when the servant has been furnished a defective appliance or is directed to perform service in an unsafe place and. is injured;” but as to this exception the court said, (p. 332) : “This qualification to the third rule above referred to is a wholesome one in many instances, and should be enforced when the danger from the use of the appliance or the performance of work in an unsafe place is not obvious to the servant from a knowledge of the defect in the appliance or place,'but where the defect in the appliance or place is known and the danger is obvious to a man of ordinary intelligence such exception to said rule ought not to be applied. All persons of mature years and ordinary experience, and endowed with their natural faculties, must be held to understand the ordinary laws of nature, such as that water will run down hill, a falling body will strike the ground, etc., and it must be presumed, when such persons have knowledge of obvious defects in appliances or places with or in which they are engaged in performing ordinary labor and with which they are entirely familiar, they will also comprehend the natural and probable results which will follow from a use of such appliance or from working in such place.” (Italics ours.) The same exception is recognized in the case of Galloway v. Chicago, R. I. & P. E. Co., supra, where the court adds the qualification to its statement of the rule, in substance as follows: that if it appears that the servant had knowledge of the physical condition and defect which created the danger, then he is required to prove “that he did not know, and was not chargeable with knowledge of, the danger resulting from the existence of the defect.”

Applying these well established principles to the facts of this case, there is little doubt that the first two essentials to a recovery were proved, viz: that an unsafe and even dangerous condition existed, and that appellant knew that fact. The serious question is whether the preponderance of the evidence - shows either that appellee did not know, and did not have equal means of knowing, of the defective condition at the place of the accident, or if he did have knowledge of the physical condition complained of, that he did not know, and was not chargeable with knowledge of the danger resulting from the existence of that condition, It was shown that appellee knew the general location of the conveyor, the manner of its construction and the way it was used and operated; that for three weeks in September and October, and six days immediately prior to the accident, he had participated daily in the work of transferring malt from the bins to and through the conveyor; that every day except three or four during that time — twenty-four days in all — one of the men with whom he was working shoveled malt into the conveyor in appellee’s presence, and on those three or four days, appellee himself did that work; that while the work was going on, the uncovered section of the conveyor could be seen revolving and carrying away the malt, and that the conveyor made a noise as it revolved which could be plainly heard by anyone working near it. He knew that it was customary to remove about nine feet of the iron plates opposite the bin that was being emptied. He admitted that he saw the conveyer uncovered and revolving about five feet beyond the place where he stood just before the accident. In doing his work and seeing the other men do their work, he could not fail to see that each movement of the scraper brought up to and over the uncovered section of the conveyor a pile of wet and matted malt and to see that these piles of malt were carried away when they either sank into the conveyor by their own weight or were “shoved in” by the man with the fork. It appears that fifteen or twenty of such piles were thus brought up to and carried away by the conveyor during the twenty minutes immediately prior to the accident. Under these circumstances, any man of ordinary intelligence would certainly know that if he stood upon such a pile of malt at, or very near to, the opening above the conveyor and shoveled part of the pile at his feet into the conveyor the remainder would be likely to sink at- any moment under his weight. He would also know that the floor adjoining the conveyor would be more or less slippery after several of such piles of malt had passed over it. These were dangers that were perfectly obvious. They were apparent from mere casual observation, and therefore were risks which were assumed by appellee by continuing in his employment without objection after he had knowledge thereof or such means of knowledge as the evidence shows he had. In Browne v. Siegel, Cooper & Co., 191 Ill. 226, 233, it is said: “The master’s duty requires him to furnish the servant a place ordinarily safe in which to work, and that the machinery, means and appliances which he provides for the service shall be ordinarily safe and free from danger to the servant in their use, and the servant has the right to assume that he has performed this duty. But even if the master fails in such duty, and there are, to the knowledge of the servant, defects in such machinery, means and appliances which render their use hazardous, he is held to have assumed the hazard, for he cannot go on with knowledge of the danger, without complaint, until he is injured and then hold the master liable. The servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent.” See also McCormick Harvesting Machine Co. v. Zakzewski, 220 Ill. 522, 530.

It is urged, however, that appellee was negligently ordered to work at the place where he was injured, and that for this reason he did not assume the risk of injury while obeying the order. The alleged negligent order consisted in the foreman’s telling appel-lee, while he was on his way to the place, to “go down there and shove the malt right into the conveyor.” Appellee made no objection to this. He said that he understood the meaning of the order, that he “ought to know” what work was to be done. He was not told to do the work in any particular manner or to do anything other than the customary work.' The order amounted to nothing more than a mere direction to go to work, as usual. Such an order is not the kind of an order which will operate to relieve the servant- of an assumption of risk. .To have that effect, the alleged negligent order must be an order which amounts to an assurance of safety upon which the servant may rely. In Elgin, J. & E. R. Co. v. Myers, supra, it is said: “Where the servant knows of a defect or what the danger is, he cannot he said to rely upon the assurance that the danger does not exist. It is only where the servant has been misled by the assurance of the master, or some one standing in the master’s place, that he can excuse himself from the assumption of the risk on the ground that he has been assured by the master that there is no danger in the use of the appliance or piece of machinery which he knows, as a matter of fact, is defective and the use thereof attended with danger.” The same doctrine was repeated in Republic Iron & Steel Co. v. Lee, 227 Ill. 246, 259. There is nothing about the alleged order given to appellee which could have misled him in any way, or which could have been regarded by him as an assurance of safety upon which he could rely, contrary to his own knowledge of the danger. Nor is there any evidence that he was in any manner coerced into doing work he would otherwise not have done, or would have done in any different manner.

After a careful consideration of all the facts and circumstances shown by the record in this case, we are unable to escape the conclusion that appellee had full knowledge of the physical conditions surrounding the place where he was working and of the danger incident thereto, and that he was not misled by any negligent order of appellant’s foreman. It follows, as a matter of law, under the authorities above cited, that he assumed the risk of injury and cannot recover.

The judgment of the Superior Court will therefore be reversed with a finding of facts.

Reversed with findmg of facts.

Finding of facts to be incorporated in the judgment. The court finds from the evidence that at the time of his injury, appellee had full knowledge of the facts regarding the place in which he was working and was chargeable with knowledge of the defects and danger complained of in the declaration, and assumed the risk of injury therefrom.