text:
    Elizabeth Bedford, Appellant, v. William T. Harrison, Appellee.
    Gen. No. 5413.
    1. Executions—qualifications of persons appointed to determine value of homestead. Notwithstanding the statute does not specifically so provide th'e fair conclusion from the language thereof is that persons appointed to determine the value of a homestead estate should he capable of acting in a fair and impartial manner.
    2. Executions—when appraisement of value of homestead set aside. If an appraisement of homestead estate he made by persons not qualified to act fairly such appraisement may be set aside upon petition to the court having jurisdiction over the execution.
    Appeal from the Circuit Court of Lee county; the Hon. R. S. Fabband, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 16, 1911.
    Trusdell, Smith & Leech, for appellant.
    Wooster & Edwards, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

In May, 1907, Elizabeth Bedford secured a judgment in the Circuit Court of Lee county against William T. Harrison in the sum of $9,896.74, from which he took no appeal. Up to February, 1910, less than $1,500 had been paid on that judgment and, on the 11th day of that month, a decree was entered in the same court in a chancery proceeding then pending in favor of the said Elizabeth Bedford and against the said William T. Harrison and others, as defendants, wherein and whereby a certain deed of conveyance from said Harrison and wife to one Purdy was set aside, vacated and declared null and of no effect as against the said Elizabeth Bedford. The decree further authorized the said Elizabeth Bedford to cause a writ of fieri facias to be issued and levied upon the real estate described in said deed, for the payment and satisfaction of the judgment secured against Harrison in 1907. On February 12, 1910, Elizabeth Bed-ford caused a writ of fieri facias upon said judgment to be issued and placed in the hands of the sheriff of Lee county for levy. The premises were occupied by Harrison as a homestead, and the sheriff thereupon appointed John P. Harvey, W. P. Long and P. W. Mason as appraisers, under section 10 of chapter 52 of the Revised Statutes, for the purpose of determining the value of the property. The said appraisers fixed the value at $1,400. Thereupon Elizabeth Bed-ford, the plaintiff in execution, petitioned the court to set aside said appraisement on the ground that the appraisers were not impartial and disinterested, that the appraisal was unjust, and that the property was worth very much more than the appraisement. There was a hearing on this petition, the motion to set aside the appraisement was denied, and plaintiff in execution appeals therefrom.

Although the section of the statute which refers to the appointment of appraisers by the officer holding the execution does not expressly state that such appointees shall be persons capable of acting in a fair and impartial manner in their appraisal of the property in question, yet we deem it an entirely just conclusion that both parties to an execution are entitled to have appraisers who are fair and impartial, and we consider the main question to be determined here is whether or not John P. Harvey, W. P. Long and P. W. Mason were such fair and impartial appraisers. Considerable evidence was presented pro and con, as to the value of the premises in question, but it need be considered here only indirectly, as the lower court could not, on this petition, make a new appraisal. Of the three appraisers so chosen by the sheriff of Lee county, John P. Harvey was a client of the attorney for the defendant in the execution and had employed that attorney whenever he had needed legal assistance for the past twenty years. In fact, such attorney was then acting for Harvey in a chancery proceeding then pending in the same court. P. W. Mason though not a lawyer, had been engaged in the practice of law before justices of the peace for a number of years and had been associated with the attorney for the defendant in execution in the trial of many different cases. The relations between Mason and the attorney for defendant in execution were so friendly that said attorney had frequently asked permission of opposing counsel in trials in the Circuit Court to have Mason engage in the conduct of such trials with him. Mason had been prosecuted- on a criminal charge and had been defended by the attorney for defendant in execution. Besides that, Mason had rendered services in this very proceeding, for which he had been paid by appellee. W. P. Long, the third appraiser, had known appellee for twenty years and had frequently employed Mason in the buying of stock. It seems clear to us that two, at least, of these appraisers were so intimately connected with appellee or his counsel that they should not have been called upon to act in that capacity. Besides, the evidence somewhat strongly tends to show that the property in question was in reality worth from $2,000 to $2,500 and appellant offered to bid. $2,500 for it at the execution sale. Section 11 of chapter 52 of the Bevised Statutes provides that the debtor or some one of his family shall have notice of the appraisement and that, unless the debtor shall pay the surplus over and above the sum of $1,000, the premises may be sold after sixty days. It is therefore very important to appellant that the appraisement be made by appraisers who are absolutely disinterested and impartial, for if the present appraisal be allowed to stand, the appellee can retain possession of the premises by paying the sum of $400 and if the premises are in reality worth $2,500 appellant will thereby be defrauded of $1,100.

At the time of this appraisal appellee was a deputy sheriff and, under section 7 of chapter 31 of the Be-vised Statutes, appellant could have had the execution directed to the coroner of the county and the difficulty here arising would not have occurred. But, as appellant went to the sheriff with her execution, it was doubly important to her that fair and impartial appraisers should be selected. We do not consider that the sheriff performed his duty in this respect, and we feel that, irrespective of the real value of the property, the appraisement was unjust to appellant. The order of the lower court will therefore be reversed and the cause remanded with directions to the court below to enter an order setting aside the appraisement.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Willis

license: Public Domain

text:
    The Galena Iron Works Company, Appellant, v. Mary McDonald et al., Appellees.
    Gen. No. 5416.
    1. Fixtures—what are trade. Held, under the evidence, that certain improvements being of a temporary character and made for the purpose of determining whether ore might be properly mined, were trade fixtures and subject to removal by the lessee or his assigns.
    2. Fixtures—when cannot he removed. If the lessee has failed to comply with his lease and abandoned the premises he cannot remove trade fixtures, and a custom of the locality cannot he invoked to change the rights of the parties as fixed by the terms of the lease.
    Replevin. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Sheean & Sheean, for appellant.
    Paul Kerz, for appellee..
   Mr. Presiding Justice Willis

delivered the opinion of the court.

James McDonald owned real estate in the town of West Galena, in Jo Daviess county. On May 16, 1906, he and his wife, Mary McDonald, conveyed the same to J. O. Rankin. The deed was not delivered at that time, hut was deposited in a local bank until certain payments were made. On November 19, 1906, the deed was delivered to Rankin and a mortgage securing the deferred payments was executed by him to McDonald. The mortgage was recorded on November 30 and the deed on December 1, 1906. Meanwhile, on October 3, 1906, Rankin executed a lease to Andrew Lockie to prospect and mine the premises. The lease authorized the lessee to mine the land for lead and zinc ore, and provided that he pay as rental a certain sum on zinc ore, a certain other sum on lead ore, and a certain sum of money; that he carry on mining operations on the land at least ten months in each year; that he erect all necessary buildings and machinery for the purpose of mining and extracting ore; and further that the lease should become ended if the lessee should violate any of its terms, and he should surrender possession of the land and the improvements thereon to the lessor without notice, and the lessor should have the right to the immediate possession of the same; that the lease might be assigned subject to the approval of the lessor. On October 4, 1906, the lease was assigned by Lockie to the Triple Lead and Zinc Mining Co. (hereafter called the Triple Co.) with the consent of the lessor. On December 1, 1906, Ban-kin, the lessor, and his wife, conveyed the premises to the Pacific Gold Co. On October 30, 1906, a contract was made between the Galena Iron Works Co. (hereafter called the Iron Co.) and the Triple Co. for the building of certain improvements and the installment of certain machinery on the leased premises. Among the machinery to be installed were two boilers. The Iron Co. completed the contract in February or March, 1907. McDonald died testate July 27, 1907. His will gave his wife, Mary McDonald, the life use of the estate, and made her executrix. On October 5, 1907, she filed a bill in the Circuit Court of said county to foreclose the mortgage of November 19, 1906. The bill made Bankin, the Triple Co. and the Pacific Gold Co. defendants. They answered, but claimed no right or interest in the improvements placed on the land. On December 27, 1907, a decree was entered, ordering Bankin to pay to Mary McDonald $6,225.85 and solicitor’s fees and costs, and that in default thereof the premises be sold; and that Bankin’s equity of redemption be barred unless redeemed according to law. An appeal was prayed to the Supreme Court, but seems not to have been perfected. On February 28, 1908, Mary McDonald purchased the land. On July 6, 1909, the master conveyed the same to her, and on that day she conveyed the part covered by the lease of October 3, 1906, to William and Michael Keefe. The Iron Co. was not paid in full for the improvements placed on the land, and it notified the Triple Co. it was about to commence mechanic’s lien proceedings. In September or October, 1908, the Triple Co. sold and caused to be removed from the premises a portion of the improvements. About December 20, 1908, the Triple Co. and the Iron Co. entered into an oral contract by which the Iron Co. for a certain consideration was to have the improvements then remaining on the premises. The Iron Co. tore down the remainder of the improvements and carried away the lighter materials, but on account of bad roads, did not remove the boilers and brick. During the time the improvements were being removed Mary McDonald was a non-resident of the state and did not know of their removal. On July 17, 1909, John T. Slattery, agent of Mary McDonald, hauled the boilers and brick to G-alena, where the Iron Co. on a writ issued from the Circuit Court of said county, replevied them. The declaration charged the wrongful taking and the wrongful detention of the boilers and the brick. Mary McDonald and John T. Slattery filed a plea denying their wrongful taking and wrongful detention. The cause was tried by the court without a jury, and it found that Mary McDonald was the owner of, and entitled to the possession of the property, and entered judgment accordingly, and for costs of the suit; and the Iron Co. prosecutes this appeal.

Appellant contends that the improvements were “trade fixtures” and could be removed by the lessee or its assigns. Appellee contends that they were a part of the realty. But if they were “trade fixtures,” appellant could not remove them; first, because the improvements reverted to the lessor, by the lessee’s failure to comply with the terms of the lease, and by the lessor’s breach of the covenants of the mortgage they inured to the benefit of the mortgagee; second, they were not removed during the term of the lease.

The evidence showed that the building erected .on the leased premises was about 30x40 feet, 12 feet high, set on 8 or 10 cement piers sunk about 18 inches in the ground; that therein were installed a hoister, an air compressor, a heater and pump and the boilers in controversy, the boilers being set on a concrete foundation and bricked in; that plants of a like character in that mining district were called “prospect plants;” that if sufficient ores were found to warrant the profitable operation of a mine, more substantial improvements were required, but that about 75% of such plants were removed.

The rule by which to determine when chattels become a part of the realty .is stated in Chapman v. Union Mutual Life Ins. Co., 4 Ill. App. 29, as follows: “Chattels become real estate when they are annexed to the freehold under such circumstances that it clearly appears from an inspection of the property itself, taking into consideration the character of the annexation, the nature and adaptation of the articles annexed to the uses and purposes of the freehold at the time the annexation was made, and the relation of the party making it to the freehold in question, that a permanent accession to the freehold was intended to be made by the annexation.” In case of doubt, great weight must be given to the actual or presumed intention of the parties erecting or placing the articles claimed as fixtures. Dooley v. Crist, 25 Ill. 453; Kelly v. Austin, 46 Ill. 156; Ogden v. Stock, 34 Ill. 522; Sword v. Low, 122 Ill. 487; Baker v. McClurg, 198 Ill. 28; Jones v. Ramsey, 3 Ill. App. 303; Chapman v. Union Mutual Life Ins. Co., supra. We feel impelled to hold that the evidence, when considered in reference to the doctrine of fixtures, as stated in the elementary treatise, upon this subject, as-well as the current of adjudicated cases in the courts of this state, clearly establishes that the improvements were of a temporary character, erected by the tenant for the purpose of prospecting for ores, with no intention on the part of the landlord or tenant that the same were so placed as a permanent attachment or accession to the freehold, unless sufficient ore was found to warrant the profitable operation of the mine, and that they were, therefore, personal property or “trade fixtures.”

“As between landlord and tenant, improvements put upon the demised premises by the latter for the purpose of trade or manufacture, which can he detached without material injury to the estate, may he removed by him before he quits the possession.” Mason v. Penn, 13 Ill. 525; Sanitary District of Chicago v. Cook, 169 Ill. 184. And if not so done, and there is no agreement to the contrary, the right of the tenant to re-enter the premises and sever the fixtures from the realty will he deemed lost and abandoned. Bush v. Havird, 10 Am. and Eng. Ann. p. 907. The evidence shows conclusively that the lessee had failed to comply with the terms of the lease and had abandoned the premises long before Mrs. McDonald removed these boilers. Therefore, it, or its assigns, had no right to remove them unless justified in so doing by the custom of that mining district. We are of the opinion, however, that such custom could not he invoked to change the rights of the parties as fixed by the terms of the lease.

Again, appellant stood in the place of the Triple Co. by virtue of the purchase of the property from it, hut had no title to this property at the time of the foreclosure of the mortgage, nor any lien upon it, so far as appears, and it therefore could not he made a party to the foreclosure. Bankin, The Triple Co. and the Pacific Gold Co. were defendants in the foreclosure suit. They answered, and were defeated by the foreclosure. The decree -was carried into effect by a sale and a deed, and all the interests of Bankin and the Triple Co. in the premises and in the “trade fixtures” left thereon by the Triple Co. when it ceased to perform the terms of the lease, passed to Rankin through the lease and to Mary McDonald through the mortgage. Having had the- opportunity to litigate their rights as to this property in the foreclosure case, Rankin and the Triple Co. cannot, in this proceeding, litigate the same question; nor can the Iron Co. who only took, by its contract with the Triple Co., such rights in the premises as Rankin and the Triple Co. had at the time of the contract, which was made about a year after the decree of foreclosure. Under the provisions of the lease, the Triple Co. lost its right to the boilers and brick work, and could not, therefore, transfer such right to the Iron Co.

It is urged that if the fixtures become the property of the mortgagee, her transfer of the premises to the Keefes carried the boilers with it. If that is true, still there was a contract between Mary McDonald and the Keefes that she might remove them and that divested the Keefes of their interest therein. Moreover, the appellant cannot avail itself of any rights the Keefes may have under her deed to them. Defects in Mrs. McDonald’s title to the boilers does not authorize appellant to replevy them from her.

The judgment is affirmed.

Affirmed.


text:
    Emil Schoeler, Appellee, v. City of Rockford, Appellant.
    Gen. No. 5419.
    1. Notices—when statute requiring giving to municipality not complied with. Held, that the evidence failed to establish that the notice required 'by statute had been given to the municipality.
    2. Notices—effect of failure to give to municipality. In the absence of proof that the plaintiff in an action against a municipality for personal injuries has filed with the city clerk a notice of the time and place of the accident, it is error for the court to refuse an instruction directing a verdict in favor of the municipality.
    3. Contributory negligence—when person injured upon sidewalk guilty of. The jury without evidence of conditions or circumstances which excuso the ordinary precautions which would disclose danger, is not warranted in finding that failure to exercise such precautions is not negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed March 16, 1911.
    A. Philip Smith and Robert Rew, for appellant.
    Frank L. Barry, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Originally, between Cedar street and Kent’s creek Winnebago street, running north and south in the city of Bockford, crossed a low place. Numerous switch tracks of the Burlington and Milwaukee railroads crossed this space making travel inconvenient, and a viaduct was built, over which the public traveled. The south end of the viaduct rested upon a stone abutment about 14 feet high on the south bank of the creek and on a level with Winnebago street at that point. When the Illinois Central Bailway was built through the city, the south end of the viaduct was lifted from the abutment and built further south on Winnebago street. The abutment was left standing. Prior to this extension, three houses had been built on the west side of Winnebago street, south of the creek and directly south of the south end of the viaduct as first constructed. In front of these houses was a cement sidewalk. It ended at about the north line of the north house. Prom such north line to the abutment there was no sidewalk. The distance was about 18 feet and was filled with dirt, stones and rubbish. The top of the abutment was about 5 feet wide, and the bed of the creek was 14 feet below the same. The west end of the abutment is a short distance from the west line of Winnebago street, and west of that line, covered with underbrush and trees, is the bank of the creek. When the viaduct was extended south it was raised in front of the three houses; and access to them from the east was barred. Along the west side of Winnebago street, from the south end of the viaduct, is a cement walk, being a continuation of the south walk in front of the three houses. Along each side of the viaduct from Cedar street at its north end, to its south end, is a sidewalk with a railing. The viaduct being narrower than the street, along the edge of its south end flush with the street is a walk, partly cement and partly wood, running east and west from the end of the sidewalk along the side of the viaduct to the cement walk along the west side of Winnebago street. In front of the last of the three houses is a wooden stairway about 8 feet long the foot of which rests upon the ground outside the east line of the cement walk; and the stairway slopes over the walk to the second story of the house, which- was used as a store, and from which a wide platform extended to the viaduct. Water flows continuously in the creek, and on a still night its rippling can be heard at the last of the three houses. There was a city arc light located on the corner of Winnebago and Cunningham streets about 120 feet south of the junction of the cement walk along the west side of Winnebago street with the piece of walk running east and west along the south edge of the viaduct; and another on the center of the viaduct. Between 8 and 9 o’clock on the evening of September 22, 1909, Tflmil Schoeler, with William Heppner and another companion, walked from the Chick House southward over the viaduct to the house of a friend on Corbin street, and there spent some time with a number of friends. About 11 o’clock, with one companion, William Heppner, he started back to the Chick House the same way he came. They passed the junction of the sidewalk running east and -west along the south edge of the viaduct with the sidewalk running north and south along the west side of Winnebago street, went down the cement walk abreast in front of the three houses, passed the stairway sloping over the sidewalk, and onto the dirt, stones and rubbish between the end of the sidewalk and the abutment, and in some way which Schoeler cannot explain, and at some place between the end of the walk and the abutment which he cannot tell, they both fell off from either the space between the sidewalk and the abutment, or the abutment. He got up to the street and attracted the attention of a person who called an officer. The officer got his companion out and took them both to the police station and afterwards they were taken to a hospital. Schoeler claimed that he sustained injuries by the fall and brought this suit in the Circuit Court of Winnebago county against the city of Rockford to recover damages for such injuries. The. declaration contained five counts; and charged, in substance, that the city negligently suffered the sidewalk ending near the abutment to remain in bad repair, the abutment unguarded and the locality unlighted in the night time; and averred that while Schoeler was passing over the sidewalk in the night time, in the execise of due care for his safety, lie stepped off the end of the sidewalk on to and off from the abutment into the creek and was injured. The declaration also alleged that he filed with the city-attorney and the city clerk the notice of the time and place of the accident as required by paragraph 7, chapter 70 of the Revised Statutes. A plea of not guilty was filed. At the close of Schoeler’s evidence, and again at the close of all the evidence, the city moved the court to exclude all the evidence and instruct the jury to find it not guilty. The motions were denied and the instructions accompanying them refused. The trial resulted in a verdict of $1,000 for Schoeler. A motion for a new trial was denied, judgment was entered on the verdict, and the city prosecutes this appeal.

Paragraph 7, chapter 70 requires “any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of the person injured, the date and the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician (if any).”

“The object of the statute is to furnish timely notice to the city, village or town of the fact that the party claims to have sustained an injury, and that he proposes to enforce his claim for damages against the said city, village or town by suit, and thereby enable said city, village or town to investigate the claim while the facts are fresh and the justice of tbe claim can be readily ascertained.” Donaldson v. Village of Dietrich, 247 Ill. 522. “This statute should he strictly construed.” Donaldson v. Village of Dietrich, supra.

On the trial the notice alleged to have heen served on the city attorney and the city clerk was admitted in evidence over the objection of appellant. Two reasons are here urged against the sufficiency of such notice. The first is: that it was not filed in the office of the city clerk, and the second: that it did not definitely state the place of the accident.

Appellee’s attorney testified that he served the notice “on the city clerk’s office.” The notice showed a receipt for a copy thereof, bearing the name of the city attorney and the city clerk. The city clerk testified that he did not sign the receipt, but that his name was placed there by a young woman employed in his office; that he never saw the notice; that he had made a search for it in the place where such notices were kept and no such notice was there; that it was not filed in his office. Appellee’s attorney did not testify that he left the notice or a copy in the office of the city clerk. The young woman from the office of the city clerk testified that appellee’s attorney came to the office, inquired for the clerk, and on being told that he was not present, asked if anyone signed for him and handed her two papers. She identified the paper admitted in evidence as one of those papers, and testified that the other was a notice in a suit brought by William Heppner, appellee’s companion; that appellee’s attorney took the papers away with him; that so far as she knew, the papers never came back; that all papers of this kind, after they had been seen by the clerk, were filed in an envelope kept for that purpose; that he had looked in the envelope for the paper, and that it was not there; that she had never seen a copy in any place around the office. There was no evidence offered that a notice was filed with the city attorney. In Hamilton v. Beardslee, 51 Ill. 478, it was held that to constitute the filing of a paper in a cause, it must be placed in the hands and under the control of the clerk, must pass into his ex-elusive custody and remain within his power. And this holding was cited as authority in Coles v. Terrell, 162 Ill. 167, and we see no reason why this rule does not control the filing of the notice provided for by chapter 70. We therefore hold that appellee did not file with the city clerk the notice required by the statute.

This also disposes of appellant’s objection as to the sufficiency of the notice.

Paragraph 8 of said act provides that if the notice is not filed as provided to be by paragraph 2, the suit shall be dismissed, and the person to whom such action shall have accrued for a personal injury shall be forever barred from further suing upon said cause of action. The Supreme Court has given the section' a literal construction. Donaldson v. Village of Dietrich, supra. The giving of the notices required by the statute is a condition precedent to the city’s liability, and constitutes an essential element of the plaintiff’s cause of action. Walters v. City of Ottawa, 240 Ill. 259. The giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit (Erford v. City of Peoria, 229 Ill. 546; Walters v. City of Ottawa, supra), and the failure to give proper notice, or to prove it if it had been given, can be raised on the motion to dismiss, or by a motion to direct a verdict. Ouimette v. City of Chicago, 242 Ill. 501. Therefore, in the absence of proof that appellee filed with the city clerk a notice of the time and place of the accident, the court erred in refusing at the conclusion of all the evidence to instruct the jury to find appellant not guilty.

It is also urged that appellee’s negligence contributed to the accident, and for that reason the judgment' must be reversed.

Appellee testified that when, on the way south, they got to the end of the viaduct, they turned a bit to catch the other sidewalk; that there was a piece of cement walk projecting out from the sidewalk on Winnebago street east towards the viaduct; that the lights from •the middle of the viaduct and the corner of Winnebago and Cunningham streets shone on that place; that when he came back the same way two hours later, the lights were still shining on the junction of the sidewalks and he could see the place just as plainly when he came back as when he went over; that he knew he had to make the turn, but did not look for it; that as they got by the junction it was very dark; that they walked straight ahead about 200 or 300 feet; that they could not see anything and did not stop to look around; that he did not notice where the cement walk stopped; that he did not remember walking on the space filled with dirt, stones and rubbish; that he did not notice any obstacles to travel on the way down; that he did not hear the ripple of the water flowing in the creek; and there was no evidence that his senses of sight and hearing were not normal. A witness testified that on the night of the accident she saw a man on the curbing and called an officer. The officer testified that he found appellee hanging onto a tree; that he asked him what kind of a drinking party he had been to, to get into that condition; and he said that he did not know that it was any of the officer’s business. Appellee told the officer he had a partner. The officer asked, “Where is he?” Appellee said, “I don’t know where he is.” The officer asked, “Where do you think he is?” Appellee said, “I don’t know, he fell down a ravine somewhere.” The officer inquired, “Is it west, or is it towards the viaduct?” Appellee said, “I don’t know where it is, we just tumbled off and that is all I know about it.” The officer called the patrol, and he and another officer got appellee’s partner out of the ravine and took them to the station, and from there they were taken to a hospital by two other officers, to whom appellee admitted that he had been drinking. The officers testified that they smelled liquor on him; that he was under its influence. Three of appellee’s friends who were with him at the place on Corbin street testified that he drank some wine, bnt denied that he was drunk when he left there. Appellee’s own testimony and conduct, however, strongly tend to corroborate the evidence of the officers that he was intoxicated, and there can be but little doubt that he was in a drunken condition. Appellant might reasonably expect that intoxicated and reckless persons would have occasion to use its sidewalks, but as it was not an insurer against accidents, it was not bound to have its sidewalks so well lighted or guarded that persons proceeding with a reckless want of care might go safely along. City of Chicago v. Apel, 50 Ill. App. 132.

The evidence shows that appellee did not walk into danger at one step. He knew when he stepped from light to darkness, and must have known when he walked underneath the stairway and the platform, and must have known that some of the distance he walked on rubbish and stones, and that he was out of the traveled way. He walked long enough in the darkness to reflect, investigate and retrace his steps. While his conduct might not indicate negligence per se, it did indicate negligence in fact, as there were no conditions or circumstances which excused him from passing over the sidewalk onto the stones and rubbish between the end of the sidewalk and the abutment in the dark, where the exercise of slight precautions would have disclosed the danger. A jury, without evidence of conditions or circumstances which excuse the ordinary precautions where their exercise would have disclosed the danger, is not warranted in finding that such failure to exercise such precautions is not negligence. I. C. R. R. Co. v. Batson, 81 Ill. App. 142; Cotter v. C. C. Ry. Co., 141 Ill. App. 101. Appellee’s passing the place known to him to be the approach to the viaduct and heedlessly walking the distance he testified to in the dark without taking any precaution for his safety, was, in our opinion, negligence of the most pronounced sort.

We think that appellee’s own testimony shows that he did not exercise ordinary care for his own safety, and that he was guilty of negligence which directly contributed to his injury; and for that reason also, the judgment must be reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find that a notice of the injury was not filed with-the city clerk as required by the statute; and that appellee was guilty of negligence contributing to his injury.


text:
    The People of the State of Illinois, Appellant, v. John Collins, Appellee.
    Gen. No. 5422.

      Railroads—when liable for penalty for obstruction of highway. A railroad company is liable for the penalty provided by statute if it obstructs a substantial portion of a highway for a period of ten minutes; an obstruction of one portion of such highway for a part of the time and another portion of the highway for the remainder of the time is to be regarded as one continuous obstruction.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Paul Kerz, for appellant.
    Hudson & Campbell, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Section 77 of chapter 114 of the Revised Statutes, entitled “Railroads and Warehouses,” contains the following provision: “No railroad corporation shall obstruct any public highway by stopping any train upon, or leaving any car or locomotive engine standing on its track where the same intersects or crosses such public highways, except for the purpose of receiving or discharging passengers or freight, or for taking in or setting out cars, or to receive the necessary fuel and water, and in no case to exceed ten minutes for each train, car or locomotive engine.” Section 78 of the same chapter provides that every engineer or conductor violating such provision shall, for each offense, forfeit the sum of not less than $10 nor more than $100 to be recovered in an action of debt, in the name of the People of the State of Illinois, for the use of any person who may sue for the same, and that the corporation on whose road the offense is committed shall be liable for the like sum. This was an action brought before a justice of the peace in the village of Warren, in Jo Daviess county, in the name of the People of the State of Illinois by one H. O. Puckett against John Collins, at that time a freight conductor employed by the Illinois Central Railroad Company, to recover the aforesaid penalty for an alleged obstruction to one of the public streets of said village. The justice rendered a judgment against Collins and he appealed to the Circuit Court of that county, where, upon a jury trial, he was found not guilty. A motion for a new trial was denied and judgment was entered upon the verdict, and the People prosecute this appeal.

The main line of the Illinois Central Railroad passes through the village of Warren in a northwesterly and southeasterly direction and divides the residence section and the business portion. Main street, which is the principal business street, comes up to the right of way in a diagonal direction from the northwest. Burnett avenue, which is the residence street, and appears to be really a continuation of Main street, comes up to the right of way from the southeast. The highway, where it crosses the railroad and forms a junction between Main street and Burnett avenue, is about 75 feet wide. On the north side of this highway crossing is a cement sidewalk, about four feet wide, used by persons going on foot from Main street to Burnett avenue, and vice versa. That part of the highway crossing which was prepared and intended for the use of vehicles is about 36 feet wide and composed of planking. Nothing is said in the record as to any sidewalk on the south side of this highway crossing and the fair inference is that the sidewalk on the north side of this highway was the only one crossing the railroad at this point. About six o’clock in the evening of January 11, 1909, a’way freight train in charge of appellee as conductor arrived at Warren and proceeded to do some switching and unloading of freight. The evidence is conflicting as to whether or not the entire train, which only consisted of eight or nine cars was placed at once on a side track, or whether part of it was left on the main track for a short time. But the evidence introduced by appellant shows clearly without any particular contradiction by appellee, that the crew of this train, under the direction of appellee as its conductor, in switching a car to the freight house for the purpose of unloading some articles of merchandise freight, left two cars in such a position that the sidewalk above described was entirely obstructed so as to be incapable of use by persons proceeding on foot over this highway crossing, and continued to be so obstructed for considerably more than the ten minutes allowed by the section of the statute above quoted. The evidence shows that this train arrived at Warren about 5:50 p. m. ; that the village marshal found this sidewalk so obstructed by the cars at about 6:15 p. m. ; that the marshal then continued lighting the street lights, which was a part of his duties, and after lighting four lights, went to the depot, found the railroad agent and demanded that the obstruction be removed; and that, a short time thereafter under the direction of the agent, the freight crew moved these cars a short distance away so as to clear the sidewalk and render it open for the nse of passersby. The evidence further shows that, in moving these ears so as to clear the sidewalk, the freight crew left a car directly on and obstructing the planked crossing constructed for the use of vehicles, and left the car in that position for at least twenty-five minutes, during which period of time at least one team and its driver were obliged to cross the railroad at a point between the planked crossing and the sidewalk, where there was no planking and where no provision had been made for the crossing of teams and vehicles. The evidence as to the length of time in which the sidewalk was blocked is somewhat contradictory, as several witnesses for appellee estimate the time to have been less than ten minutes. But, however that may be, we conclude that there can be no doubt, under all the evidence, but what the planked crossing was obstructed by a freight car for at least twenty-five minutes. Two witnesses for appellant stood at that point and took the time with their watches for twenty-five minutes and, when they left at the expiration of that period of time, the plank crossing was still obstructed. It seems clear to us from the evidence that a considerable portion of this highway crossing, and that portion constructed especially for the use of teams and vehicles, was obstructed on the evening .in question for at least twenty-five minutes; and the only serious question in this case, remaining to be determined, is whether or not the fact that some portion of the 75 feet in width of this highway crossing was at all times open for the passage of the public should operate to excuse appellee and it should be held that appellee did not obstruct a public highway within the meaning of the statute.

In our opinion the word “obstruct” as used in the statute, should not be construed to mean an absolute and complete stoppage of all travel, but should be considered to refer to any impediment which in any substantial way retards, hinders, impedes or embarrasses the passage of the public. The statute contemplates that the obstruction may be by a single car, and it is a matter of common knowledge that no car is as long as the width of an ordinary street. We deem it the intention of the law that the entire right of way, where it crosses a highway, shall be left open and unobstructed, and that a railroad company has no right to leave a car standing for more than ten minutes which covers any substantial portion of that highway crossing. The public have the right to use the entire width of the street. Those desiring to cro^s the railroad tracks on foot have a right to use the sidewalk provided for that purpose, and we deem it the intent of the law that such sidewalk shall be left entirely open at all times, except that, when loading or unloading passenger or freight or taking in or setting out cars or taking on fuel and water, a railroad company may block such sidewalk for not to exceed ten minutes. We do not consider it a reasonable construction of the law to say that the railroad company has the right to force persons travelling along the street on foot to take to the middle of the highway in case the company should desire to keep its cars over and upon the sidewalk for a considerable length of time. The same reasoning applies with at least as much force to the planked crossing provided for teams and vehicles. On account of the height of the top of the rail above the ties, the planked portion of the highway crossing is the only part of it which can reasonably be used by vehicles, and we can see no force to the argument of appellee that, so long as some part of the highway is left open, it makes no difference if the rest of the highway crossing is absolutely closed. The people have the right to use the entire width of the street and it is the duty of the railroad company to keep it substantially clear. Great Western R. R. Co. v. City of Decatur, 33 Ill. 381. This does not conflict with the spirit of what we said in I. C. R. R. Co. v. The People, 49 Ill. App. 540, and 59 Ill. App. 256, where the proof was that the car projected but a short distance into the street, and not so as to interfere with public travel, and we said: “Although a car may project slightly upon the highway crossing, if it does not in the least interfere with the public use of the crossing for pedestrians and vehicles the railroad company is not liable.” In the present case the public use of the crossing was obstructed for a space of time much longer than the statute permitted.

The second instruction given at the request of appellee is as follows:

“The court instructs the jury that if you believe from the evidence in this case that at the alleged time and place the defendant set out, or placed, a car on the west side of the crossing in question, and that subsequently the defendant moved or shifted said car to the east side of said crossing, then the jury are instructed that the length of time the said car remained on the said west side of the crossing cannot be added to the time it remained on the east side of said cross-in;g, for the purpose of making out the statutory ten minutes.”

The obstruction was a car, and if the car obstructed one part of the street and then was moved so as to obstruct another part of it, even clearing entirely the portion which was first obstructed, we do not see why such act was not a continuous obstruction. During all the time the car stood in the highway, whether in one part of it or in another, the full and free passage of the public was obstructed, and we must consider the entire presence of the car in that highway, after the expiration of ten minutes, as a continuous violation of the statute. In our view of the evidence however, that point is unimportant, as we consider the evidence conclusive that the planked crossing for teams and vehicles was obstructed that evening for at least twenty-five minutes.

The evidence does not support the verdict. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Nellie Irene Marshall v. Margaret J. Marshall et al., Appellees. Melvin T. Marshall et al., Appellants.
    Gen. No. 5425

      Partition—section 34 of act construed. When a dower, life or homestead interest in land is sold with the assent of the owner thereof the value thereof is to he determined by using the proceeds of the sale as the basis of the computation to he made.
    Bill for partition. Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Ellwood & Meek, for appellants.
    E. J. Riley and Barnes & Magoon, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This is a bill by Nellie Irene Marshall, one of the children and heirs at law of Solomon R. Marshall, deceased, for the partition of certain of the lands left by him, in which Margaret J. Marshall, the widow, and his other children were named as defendants. A former partition proceeding by some of the heirs of said decedent had been had in 1891, and as a result of which, a tract of fifty acres, being only a small portion of all the lands owned by said Solomon E. Marshall at the time of his death, had been set-off and allotted to the said Margaret J. Marshall, his widow, in satisfaction of her homestead and dower in her husband’s estate. No disposition of the fee of said premises was made at that time, and this proceeding, which was commenced by the filing of the bill of complaint on October 30, 1908, sought the partition of said fifty acres, subject to the rights of the widow therein. Issues were joined and the cause was referred to the master who took proofs and reported that the widow had an estate for life in the said tract of fifty acres and that partition should be made thereof, subject to her life estate. He also reported that a minor child also had a certain homestead right in said tract, subject to his mother’s rights therein, but as no question has been presented to us as to the rights and interests of such minor, no discussion of that feature of the case is needed. A decree of partition was entered, commissioners were appointed who reported that the premises were not capable of division and were worth $200 per acre, and the widow consented, in writing, that the premises might be sold free and clear of the encumbrance of her life estate, agreeing to take in lieu of the real estate, the sum which the court might fix as the value of her life estate in cash. There was then a decree of sale and a sale of the premises for $10,750. The cause was then referred again to the master to ascertain the value of the life estate of said Margaret J. Marshall in said fifty acres of land and he reported on January 6,1910, that the present value of said life estate was $2,442.65. Objections by the widow to this report were made and were sustained in part, and the present value of the widow’s life estate was found to be $2,709.45 and her other .objections were overruled, and were treated as exceptions when the matter came before the court.

The court sustained said exceptions and found the value of said life estate to be $5,829.31 and that the widow was entitled to have said sum paid to her out of the proceeds of said premises in satisfaction of the extinguishment of her life estate. Two of the defendants have appealed to this court from that ruling and have assigned for error that the court below erred in the amount it found to be the value of said life estate and also in the method employed in computing the same. The widow has assigned cross-errors and charges that the value of her life estate should be $433.76 more than the sum found by the court.

When reference of this cause was made to the master for the purpose of finding the value of said life estate, certain proofs and stipulations presented showed that the widow was in good health and that she was born on June 26,1853; that the rental value of the premises in question is $250 per year; and that farm loans in that vicinity were then being made for five per cent per annum. The master evidently arrived at the value of the life estate by basing his calculations upon the fact that the land had rented for $250 per year; and appellants contend that this basis of computation was the correct one, and that the widow is not to receive any benefit from the high price brought at the sale; that the widow is simply entitled to the use of the land during her life; and that, if the present value of such use by a person of her age is to be found and paid her, the computation must be based upon the amount she had been receiving each year from the land. When the matter of the computation came before the court, the court held that the widow was entitled to an income of five per cent of the total proceeds of the sale, found that her expectancy of life, from the Carlisle tables, was 16.21 years and then found the present value of such an annual income for the period of her expectancy was the sum of $5,829.31 or $3,119.86 more than the amount given her by the master’s calculations. The only question presented for our consideration here is which of these two methods of computation is the correct one.

Chapter 106 of the Revised Statutes, entitled “Partition” after providing for the sale of a dower, life or homestead interest in land with the land itself, with the written assent of the party entitled thereto, contains the following provision (sec. 34): “When any such interest is sold, the value thereof may be ascertained and paid over in gross, or the proper proportion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate.” This section, in our judgment, settles the question here at issue in favor of the method of computation employed by the court below, as we construe it to mean that the value of the life estate is to be ascertained by figuring upon the proceeds of such sale. If any other meaning should be given to that section, all effect would be taken away from the clause, “when such interest is sold.” This section also refers to “the funds” and such reference, in our opinion, means, the sale being had, the total proceeds thereof are to be used in computing the value of any estate therein, such as dower, homestead or for life. It is true that the sum allowed by the court seems to be large as compared with the amount realized by the sale, but it should be remembered that this sum really represents the value of her dower in all the lands of which her husband died seized. It is a fair presumption that if all his land had been sold at this time it would have brought over $30,000 and then the sum allowed her by the court below would not seem too large.

The widow had a life estate in all the land sold at this time and could not have been forced to consent to a sale of her interest therein if she had not been willing to do so. If she had not consented, the land, if sold at all at this time, would have brought only a very low price, as the purchaser would have taken it encumbered with the life estate which might have lasted for thirty years and for which the expectancy was over sixteen years. If she had not consented to a sale of her interest in the land and the land was not sold, the heirs would have had no benefit out of the land as long as the widow remained alive. Under the present circumstances the heirs get the immediate possession of their share of the value of the land, without having to wait an .uncertain period of time. We do not feel that any injustice has been done the appellants by the method of computation employed by the lower court. While the widow insists that she is entitled to receive several hundred dollars more than the court below allowed her, still the court below has substantially followed the Carlisle tables, and other tables recognized as authority do not produce exactly the same result, and we do not feel required to interfere with the figures of the chancellor.

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

Affirmed.


text:
    Charlie Smith, Appellee, v. Fred A. Brandt, Appellant.
    Gen. No. 5432.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Assumpsit. Appeal from the Circuit Court of Whiteside county; the Hon. F. D. Ramsay, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Henry C. Ward, for appellant.
    J. J. Ludens, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This is an appeal by Fred A. Brandt from a judgxnent rendered against him in the Circuit Court of ."Whiteside county in favor of Charlie Smith for money arising from the sale of a house and lot owned by bim.

In January, 1910, appellee owned, subject to a mortgage of $250, a house and lot in Sterling. He had no money or other property. He could not read or write or transact his own business. He and his wife lived in the house. She died and he went to Chicago to live with a sister. He wanted to sell the Sterling property to pay his debts. Previous to going to live with his sister, she came to Sterling and they placed the property with appellant to sell. He later obtained a deed to the property and exchanged appellee’s equity therein for twenty acres of Lee county land, paid the funeral expenses of appellee’s wife, some taxes, interest, expenses of making the deed, and sent appellee a draft for $15, claiming that after appellee had removed to Chicago it had been agreed that appellee would let the place go for the funeral and other expenses and $15. Appellee denied making such an agreement, did not receive the draft, and brought this suit to recover what he claimed was due him. The case was tried without a jury. No propositions of law were requested. The court found the issues for Smith and entered judgment for $169.72.

The evidence is conflicting as to the terms of the contract, the value of appellee’s property and the value of the property taken by appellant in exchange for the same. There is evidence supporting the amount of the judgment rendered, and other evidence that appellee agreed to take the funeral, other expenses and $15 for the property. The trial judge saw the witnesses, heard them testify, and decided the facts in a way that amounted to a compromise, not giving appellee near as much as his proof would warrant but more than appellant’s proof would warrant.

We see no- reason for disturbing the judgment and it is therefore affirmed.

Affirmed.


text:
    W. D. Honeycutt, Appellee, v. William Logg, Appellant.
    Gen. No. 5447.
    1. Agency—effect of representation of adverse interest. If a person acts as agent of both, principals whose interests are conflicting without the knowledge of either that he is acting for the other, his acts may be avoided by either principal.
    2. Sales—when title to personal property passes. The rule established by the courts of this state is that in the sale of personal property when anything remains to be done to complete the contract, such as ascertaining the quantity or delivering possession, the title does not pass until these things are done.
    Replevin. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed March 16, 1911.
    John E. Erwin, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On the 15th day of February, 1910, William Logg bad a public sale of personal property, including a crib of corn. Tbe terms of sale were: $10 or under, cash, and over that amount, credit of one year on bankable notes. P. W. Mason acted as auctioneer and A. J. Fuller as clerk of the sale. The corn was first offered for sale in bulk, and there being no bids therefor, it was offered by the bushel. W. D. Honeycutt bid fifty-seven cents per bushel with tbe understanding that be could select a man, and Logg another, and whatever result they came to as to tbe number of bushels would be tbe amount to be paid for. On tbe day of tbe sale the auctioneer and clerk were paid for their services. The corn was not measured the day of the sale. Honeycutt claims that on tbe next morning be selected Fuller, and Logg selected Mason, to measure the com. They measured the com and determined that on the basis of 2% cubic feet to the bushel there were 302 bushels. Appellant said that he would not accept these figures until he had somebody else to figure the amount of the corn. Appellee replied; “All right, satisfy yourself and I will settle for the corn.” Appellant procured two persons to measure the corn, and their measurement on the basis of 2 cubic feet to the bushel showed that the crib contained 398% bushels, and on the basis of 2% cubic feet that it contained 320% bushels, and Logg said he would not settle unless they used 2 cubic feet to the bushel instead of 2%. On the 17th of February a note executed by appellee and signed by another party as surety was handed to Fuller, but was not actually tendered to Logg, save that Fuller testified that he said to Logg that if he would accept it he would give it to him; that Logg said he would not take it and Fuller put it in his pocket. This was denied by Logg. The note was placed in the First National Bank of Amboy and never seen by Logg. Honeycutt made a demand on Logg for the corn, which was refused, and he brought this suit in replevin to recover possession of the corn before a justice of the peace of Lee county. On an appeal from the judgment before the justice to the Circuit Court of said county a trial resulted in a verdict finding the right of property in the corn in Honeycutt. From a judgment entered on that verdict Logg prosecutes this appeal.

Appellee claims that he selected Fuller and that appellant selected Mason to measure the corn. Appellant denied this. Mason also testified that he did not remember that he was selected or acted in that capacity for appellant. The evidence shows that Fuller was appellee’s agent and that Mason was not the agent of appellant. If appellee relies upon the fact that Fuller, being the clerk at the sale, was appellant’s agent in the measurement of the corn, this position is not tenable, for the proof is conclusive that Fuller was paid for Ms services as clerk on the day of the sale, and if it were true that he had returned to appellant’s premises on the morning of the day the crib was measured for the purpose of straightening out some of the details of the sale, in the absence of proof that he was especially authorized to represent appellant in the measurement of the corn, it cannot be held that he was appellant’s agent. Moreover, if it were true that he was appellant’s agent for that purpose, since the proof is conclusive that he was also appellee’s agent, Ms action in the premises would not bind appellant, in the absence of proof of Ms approval thereof, for the reason that the interests of Fuller’s principals were conflicting, and he could not be the agent for both parties in the same transaction. If he so acted, the contract may be avoided by either party. The People’s Insurance Co. v. Paddon, 8 Ill. App. 447; Manchester Fire Assurance Co. v. Ins. Co. of the State of Illinois, 91 Ill. App. 609.

The proof shows that the difference of opinion between the parties as to wMch of two rules should be used in the measurement of the corn was never settled and the corn never delivered. Neither does the proof show that appellee ever tendered a note for the price of the number of bushels of corn found to be in the crib by parties authorized to measure the same. Therefore, there was still sometMng to be done before the minds of the parties met.

The rule established by the courts of this state is that in the sale of personal property, when anything” remains to be done to complete the contract, such as ascertaining the quantity or delivering possession, the title does not pass until these things are done. Low v. Freeman, 12 Ill. 467; O’Keefe v. Kellogg, 15 Ill. 347; Schneider v. Westerman, 25 Ill. 424; Frost v. Woodruff, 54 Ill. 155; Richardson v. Rardin, 88 Ill. 124.

In any point of view, we are satisfied that appellee acquired no such interest in the corn in question as would authorize him to maintain replevin for its recovery.

Whether he had an action for a breach of the contract to deliver the corn is not for us to consider here. Neither is it, from the view we hold of the evidence, necessary to determine the contentions presented by other errors urged by appellant.

The judgment is reversed.

Reversed.

Finding of Facts: We find that appellee has no title to the personal property replevied by him in this suit.


author: Me. Presiding Justice Willis

text:
    John H. Smith et al., Appellees, v. Albert H. Sears, Appellant.
    Gen. No. 5448.
    Brokers and factors—when real estate agent entitled to commissions. If an agent is instrumental in bringing the parties together he is entitled to his commissions regardless of the fact that the owner himself concluded the sale upon a price less than and upon terms different from those at which the agent was authorized to sell.
    Assumpsit. Appeal from the Circuit Court of Kendall county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Sears & Solfisburg, for appellant.
    C. A. Darnell and Raymond & Newhall, for appellees.
   Me. Presiding Justice Willis

delivered the opinion of the court.

John H. Smith and Ivan L. Smith brought this suit against Albert H. Sears in the Circuit Court of Kendall county to recover $1037.50 as commissions for the sale of a factory and a portion of the machinery and supplies therein, and $11 for- other services. A trial before the court without a jury resulted in a judgment for $1045.50 and Sears prosecutes this appeal to review the judgment.

Appellees were partners and real estate brokers operating in Plano, in said county. Appellant owned considerable property there. In 1905 appellant placed with appellees for sale a number of pieces of real estate at 2y2% commission and in 1908 a factory known as the Sears Manufacturing Works, including certain land connected therewith, located near the Independent Harvester Co.’s plant. In the fall of 1909 W. C. Thompson, president of the Independent Harvester Co., purchased the Sears factory for $40,000 and some of its machinery and supplies.

Appellees contend that they procured the purchaser; and that they were to receive 2y2% commission. Appellant denies both these claims; and urges that the judgment is excessive if appellees are entitled to recover.

It is undisputed that in March, 1909, appellees negotiated an option for the purchase of the factory by some parties in Iowa. The option was permitted to lapse. Appellees communicated, the fact to appellant. Appellant asked them to try again to sell the factory. Thompson testified that appellee, John H. Smith, first called his attention to the fact that the factory was for sale; that his attention was next called to it by appellant; that appellant proposed to him to incorporate the Sears Harvester Manufacturing Co. for $250,000, he to retain half the stock and Thompson to take the other half; that he told appellant that the price was too high and dropped the matter; that the next time he knew about it was in the fall of 1909 when John H. Smith came to him and said that he had the property for sale at'a certain price, and he replied that he would not consider it at all at that time. Later, the Independent Harvester Co. needed more room; he learned from appellees that they still had the factory for sale at a stated price; that afterwards John H. Smith brought Sears to his office and appellant offered to sell the factory for $50,000; that John H. Smith and appellant came back the following day and a contract was made for the sale of the property for $40,000, and a portion of the machinery and supplies therein, the quantity and also the price to be afterwards determined ; that appellees were not his agents and he paid them no commissions. Appellant testified that he did not authorize anybody to represent him in the sale of the factory, but did not deny that he placed the factory with appellees for sale in 1908 and that he accompanied John H. Smith to Thompson’s office and there talked over the terms of the sale, or that on the following day John H. Smith was present at Thompson’s office when the contract was executed. The evidence, in our opinion, clearly establishes the fact that appellees were instrumental in bringing together Thompson and appellant. This being true, appellees are entitled, as a matter of law, to recover from appellant compensation for their services, regardless of the fact that appellant himself concluded the sale upon a price less and upon terms different from those at which appellees were authorized to sell. Henry v. Stewart, 185 Ill. 448; Wilson v. Mason, 158 Ill. 304; Hafner v. Herron, 165 Ill. 242.

John H. Smith testified that appellant said he would pay 2y2% commission on all sales made by appellees. Appellant did not deny this statement except as to the factory. Ivan L. Smith testified that he was present at a conversation between John H. Smith and Sears before the sale of the factory, in which the sale by appellees of other property belonging to appellant was talked over, and in that conversation appellant said that appellees should have-2%% on everything that was sold. Appellant admitted the conversation in relation to 2y2%, but claimed that it was more in reference to properties other than the factory. We are of the opinion that the evidence clearly establishes appellees’ claim that they were to receive commission.

It is not disputed that the factory sold for $40,000 but the ground of appellants’ claim that the judgment is excessive is that the evidence fails to show the exact amount of the sale of the machinery and supplies. The record shows that appellant was shown a statement of appellees’ account due for commissions on the sale; that he did not dispute the amount of the sale, but said only the commissions were too much. While the proof as to the amount of machinery and supplies included in the sale is, in a manner, indefinite, we think that his failure to dispute the amount of the sale when presented with the statement justified the trial court in finding that the sale included an amount sufficient to warrant the allowance made for commissions.

No error of law appearing in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, ex rel. Theodore Forby, Appellee, v. John H. Sayrs et al., Appellants.
    Gen. No. 5451.

      Stipulations—when court not authorized to adjudicate case. Held, tliat tlie stipulation set forth in this opinion did not authorize the court finally to determine the cause during vacation nor did such stipulation authorize the court to pass upon any question whatever at any time in any county other than that in which the cause was pending.

      Quo warranto. Appeal from the Circuit Court of Late county; the Hon. Robert W. Wriqht, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Rehearing denied April 6, 1911.
    Cooke, Pope & Pope, for appellants.
    Ralph J. Dady and George W. Field, for appellees.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

The People, on the relation of Theodore Forby, filed a petition in quo warranto in the Circuit Court of Lake county against John H. Sayrs and F. E. Welton, the appellants, and Edward G. McArdle, to show by what right they claimed to exercise the office of alderman of the city of Zion in said county. Summons was issued and served upon Sayrs and Welton, but McArdle had moved' into another state, and was never served, and does not participate in this appeal. Sayrs and Welton each filed three pleas, which were all disposed of by motion’s to strike from the files and upon demurrer. Upon leave given to amend said pleas and to file additional pleas, each appellant filed an amended plea and an additional plea. Thereafter there was a stipulation or agreement, entered into by both sides in open court in term time, as follows:

“By-agreement of the said parties by their said attorneys all questions arising on pleadings are to be heard and determined by the court in vacation and the said matter to be determined by the court on three days notice given by either party or by the court to both parties.”

Thereafter, and during the vacation of the Circuit Court of Lake county, a notice was served by appellee upon the attorneys for appellants to appear before the three judges of the circuit at Belvidere, the county seat of Boone county, on August 6, 1910, at which time and place appellee would appear and request said judges to dispose of the plea and amendments thereto which had been filed and the motion and demurrer which had been filed thereto. Appellants did not appear at Belvidere on the date specified in the notice, although they filed with the circuit clerk of Lake county written objections to any action of the court at the proposed hearing at Belvidere except to grant leave to re-file the demurrers. . At the time and place specified in said notice the cause was taken up before the three judges of that circuit and after a hearing in the absence of appellants one of said judges signed an order which was soon thereafter filed in the office of the clerk of the Circuit Court of Lake county and entered of record in vacation, striking the pleas from the files, ordering the demurrers thereto re-filed and sustained the demurrers. This order further contained a judgment of ouster against appellants, and fined each of them $1.00 and costs and awarded execution. This is an appeal by Sayrs and Welt on from said judgment.

Appellee relies upon the stipulation or agreement, quoted above, as a justification of the action of the court in entering a final order in the cause in vacation and in another county than that in which the cause had been commenced and was pending. We cannot agree with the lower court in its reading and interpretation of that stipulation. The language of the agreement is that “all questions arising on pleadings” could be determined by the court in vacation, and it gives no authority to the court to try the cause and determine the issues of fact and law. The further language of the stipulation that “the said matter be determined by the court on three days’ notice” can only be construed, in our judgment, as referring to “all questions arising on pleadings.” Nor do we consider that the said stipulation could be construed as giving the court any power, in vacation or at any other time, to hear and determine even “all questions arising on pleadings” at the county seat of another county. The statutes of this State are very clear as to the precise powers possessed by the several judges of the circuit courts in vacation, and the power to enter a final order or judgment in vacation in a common law action is not included therein. Appellee, in its argument, recognizes this limitation on the vacation powers of the judge, and depends entirely upon the stipulation to justify the entering of the final order, arguing that if the wording of the stipulation means anything, it clearly means that the court in vacation was at liberty to adjust and settle the pleadings and to determine the matter in vacation upon terms of notice indicated in said stipulation. We do not consider the meaning of the stipulation to be as broad as contended for by appellee, and are of opinion that the court erred in entering a final order in this cause in vacation, and also in taking any action whatever in the cause in another county than Lake county. Sections 38 and 60 of Chapter 37 of the Revised Statutes provide that the Circuit Court of the several counties in this state shall be held in the court houses of such counties, and that all suits shall be tried in the county in which they are instituted except as otherwise provided by law. The exceptions referred to do not cover the case at bar, and we can see no ground upon which the court would have been justified in taking any action whatsoever in this cause in Boone county or in any other county outside of Lake county. For these reasons the entire order of August 6, 1910, must be reversed and the cause remanded for further proceedings in conformity with this opinion.

As this order will leave the pleadings undetermined, we deem it proper to make a suggestion at this point for the guidance of counsel. Certain pleas were amended by appellants, by leave of court, by filing a document which stated that certain words were to be inserted on such a page and on such a line and certain other words at such other page and line. The pleas contained in the record before us are not paged to correspond with the paging of the original pleas on file in the court below, and this method of amendment makes it impossible for any court of review to determine where it was intended that the additional matter, or amendment, should be inserted. We are of opinion that the court below should require appellants to prepare their pleas anew, with the additional matter inserted in the proper places, or else that the amendment be written upon the margin of the pleas, indicating specifically the point where the insertion shall be made, so that if the case should again come to this court, we may be able to know how the plea was intended to be read after amendment.

Appellee argues that the pleas in question were bad in that they did not show sufficient title to the offices, while appellants argue that they did show good title. Neither side points out wherein the pleas are either good or bad. This is not that aid from counsel which we shall expect if this case again comes before us upon the pleadings.

Reversed and remanded.


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    Charles A. Larson, Administrator, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5443.

      Damages—when instruction in action for death caused T>y wrongful act erroneous. It is error to authorize the jury to render damages with respect to pecuniary loss for the benefit of those as to whom pecuniary loss is not presumed in the absence of proof that pecuniary loss was sustained.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 6, 1911.
    Jackson, Hurst & Stafford, for appellant; M. L. Bell, of counsel.

      George W. Wood, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

In this action brought to recover damages resulting from the death of Albert V. Erickson, who was alleged to have been killed upon the crossing of a public highway known as 25th street in the city of Moline, which death was alleged to be due to the negligence of the railway company in its manner of running and backing an engine over said highway crossing, and in obstructing the view of said approaching engine by cars standing in the highway, plaintiff had a Verdict and a judgment for $6,000. This is an appeal by the railway company.

It was sharply disputed at the trial whether defendant was negligent as charged, whether 25th street extended across said railway, and whether, if so, it was not confined to a width of sixteen feet or less, and, if so, whether said standing cars were within the limits of the highway, and whether deceased was exercising due care. We deem it unwise to discuss those questions upon this appeal, for the reason that the evidence relating thereto may be- different at another trial, which must be allowed for other reasons.

The first count of the declaration alleged that said Albert Y. Erickson left him surviving Emma M. Erickson, his widow and next of kin, who is still living, and that by reason of the death of Albert Y. Erickson said Emma M. Erickson has been and is deprived of her means of support. The other counts contained substantially the same averments. The proof showed that deceased was forty-nine years old at the time of his death; that he left no child surviving him, but left Emma M. Erickson, his widow, his mother about eighty years of age, and a brother and a sister, and that deceased and his brother, sister and mother owned undivided interests in a farm of eighty acres left them upon the death of the father of deceased. There was no proof whether the mother and brother and sister were or were not in any way dependent upon deceased for support. In this state of the pleadings and proofs, appellee requested instruction No. 2, to the effect that if the jury found for plaintiff, then plaintiff was entitled to recover for the benefit of the widow what the jury deemed from all the evidence a fair and just compensation for whatever pecuniary damages-, if any, the evidence showed the widow had sustained by reason of the death of said deceased. The court modified this instruction by striking out the word “widow” and inserting in lieu thereof the words “next of kin of said deceased.” Appellee also requested instruction No. 3 to the effect that if the jury found the issue for the plaintiff, and if the jury found that the widow of Albert Y. Erickson, deceased, had sustained damages as charged in the declaration, then, to enable the jury to estimate the amount of the damages, it was not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury must make such estimate from the facts and circumstances shown by the evidence, considered in connection with the jury’s knowledge, observation and experience in the ordinary affairs of life. The court changed the word “must” to “may,” and also struck out the word “widow” and inserted in lieu thereof the words “next of kin.” These instructions were given as modified. Appellee excepted to the modifications, and appellant excepted to the instructions as given. There were no other instructions upon these subjects.

This action is brought under chapter 70 of the Revised Statutes, section 2 of which provides that the action shall be brought in the name of the personal representative of the deceased; that the amount recovered shall be for the exclusive benefit of the widow and next of kin of deceased, and shall be distributed to such widow and nest of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and that in such action the jury may give such damages as they deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to such wife and nest of kin of such deceased person. The words “nest of kin” are limited in legal meaning, as in common use, to blood relations. Haraden v. Larrabee, 113 Mass. 430. There was no proof that Emma M. Erickson was any blood relation to her husband, Albert V. Erickson. A wife is not nest of kin to her husband by virtue of the marriage relation. Townsend v. Radcliffe, 44 Ill. 446; Lockwood v. Moffett, 177 Ill. 49; 2 Bouvier’s Law Dict., Title “Nest of Kin.” Where there is a widow of one dying intestate, and no child or descendants of a child, the whole of the personal estate descends to the widow. E. S., chap. 39, sec. 1, par. 3. Therefore, the question which the court should have submitted to the jury, in case plaintiff recovered, was the amount which would justly compensate the widow for the pecuniary injuries resulting from such death; and nothing could be allowed for injury to the nest kin. Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1. These instructions, however, directed the jury to award just compensation, for the pecuniary injury which the mother, brother and sister, had suffered by reason of the death of Albert Y. Erickson; and that this should be determined from facts and circumstances in evidence, considered in connection with the jury’s knowledge, observation and esperience in the ordinary affairs of life. These instructions therefore directed the jury to determine from their own knowledge, observation and experience, what sum would compensate this mother, eighty years of age, for the loss of this one of her two sons, and would compensate this brother and sister for the loss of .their brother. There was no instruction that, even if there had been no widow, collateral kindred could not recover unless the proof showed that they were to some extent dependent upon the deceased. There was no instruction defining next of kin. As the declaration named the widow, and there was evidence specially directed to the widow’s injuries, the jury may well have considered that they were to estimate the damages to her as well as to the mother, brother and sister.

The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.


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    Michael Colesar, Appellee, v. The Star Coal Company, Appellant.
    Gen. No. 5262.
    1. Instructions—when giving of upon issue not in cause will not reverse. Held, that the giving of an instruction upon an issue not in the cause did not constitute ground for reversal as no harm could have resulted, there being no evidence to support such issue.
    2. Instructions—when upon proximate cause properly refused. An instruction upon this subject which would tend to lead the jury to believe that the immediate cause of an injury was necessarily the proximate cause thereof, is properly refused.
    Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 21, 1911.
    Boys, Osborn & Griggs, for appellant.
    Lucey & Larkin and Duncan, Doyle & O’Connor, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Appellee was a coal miner in a mine known as No. 4 at Kangley, Illinois, operated by appellant. About the time he went to work on the morning of November 14, 1907, there was an explosion of gas in the roof of the entry near him and he was thereby injured. He brought this suit to recover damages for the injury so sustained, and had a verdict and a judgment for $10,000 from which the company appeals. The case went to the jury on the three counts of the amended declaration, the second, third, fifth and sixth additional counts, and the second further additional count, and the plea of not guilty. The several counts were very full in their averments, much of which we omit. The first count set up the duty of appellant under the 18th section of the Mines and Miners Act, and charged that appellant wilfully neglected to enter the mine before its miners were permitted to enter and examine the condition of its mine and to make a record in a certain book kept for that purpose of the condition of the mine on that day before the miners, entered the shaft, and that in consequence of such wilful negligence the air current under which appellee passed in going to his place of work was not traveling in its proper course, as a result of which there was a dangerous accumulation of gases in said passageway, of which the plaintiff was unaware, which became ignited from a certain lamp of a certain miner and thereby the explosion was caused and he was injured. The second count was similar, except that it charged that the air current in said passageway was not traveling in a proper quantity. The third count was similar, except that it charged the duty of appellant to inspect and observe whether there were any recent falls or obstructions in its rooms or roadways, or accumulations of gas, etc., and to note the same in a book kept for that purpose before permitting its employes to enter the mine, and that appellant wilfully and negligently made default, in consequence of which while he was passing along a certain passageway, going to his place of work, there was a recent hole in the roof of the mine over said roadway which emitted gas, which condition appellant wilfully failed to note in said hook, thereby causing a dangerous accumulation of gas in said roadway, of which plaintiff was unaware, which gas became ignited from a certain lamp of a certain miner and thereby an explosion was caused, and appellee was injured. The second additional count charged common law negligence in permitting a dangerous accumulation of gas at said hole in said roof over said passageway, and said explosion. The third additional count was similar to the second additional count, and charged common law negligence in permitting a hole in the roof to remain without danger notices posted concerning said dangerous gases, and wilful and negligent failure to note said conditions in the. book before the employes were permitted to enter, and to report such accumulations of gas to the mine manager or pit boss, and the explosion and injury resulting therefrom. The fifth additional' count charged common law negligence in permitting said dangerous accumulation of gas in said passageway, and the explosion and injury. The sixth additional count charged common law negligence in negligently permitting smoke and explosive gases' to accumulate in the roadway in consequence of which negligence the explosion and injury occurred. The second further additional count charged that appellant wilfully and negligently permitted a certain air passageway to cave in and fill up so as to obstruct and shut off the air current in the mine at about the place where appellee was going to his work, and on account of such obstruction of the air passageways the air current was cut off and obstructed and dangerous, and explosive gases accumulated and were permitted by appellant to remain without any notice or warning to appellee, in consequence of which wilful negligence said accumulated gases were exploded by a certain lighted lamp carried by a certain miner as appellee was going to bis work. Tbe common law counts charged that appellee was exercising due care for bis own safety.

The proof shows that this mine was operated by tbe long wall system. It was circular in form. Tbe face of tbe coal was at all points nearly equally distant from tbe bottom of tbe shaft. Tbe miners worked in what were called rooms, consisting of a certain number of feet along tbe face of tbe coal. Tbe coal was only two and a half or three feet thick and it was therefore necessary to take down two feet or more of tbe shale rock overlying tbe coal in tbe entries, to obtain a sufficient height to move tbe cars. This rock was piled along tbe sides of tbe entries, and constituted tbe “buildings.” Tbe dirt and refuse from tbe mine was thrown back of tbe “buildings” and was called “tbe gob.” A settling process, termed “squeezing” commences immediately after tbe coal is taken out, and continues until tbe roof has firmly settled upon tbe “buildings” or “gob.”- During this process, tbe rock overlying tbe coal frequently cracks, and sometimes portions of it fall. Black slate overlies tbe stratum of shale or substance above tbe coal. Gas comes from tbe slate into tbe mine through these cracks, and may continue to do so for some time, or may disappear in a few days. When this gas is pure, it will not explode, but when mixed with some seven to eleven parts of air, it will explode. During November, 1907, tbe air current used in ventilating this mine passed through an entryway about 120 feet long, known as tbe second left off tbe straight east. About two months prior thereto, a part of tbe roof in tbe entryway in question bad fallen leaving a bole about four feet deep in tbe middle, sloping down from above to tbe natural roof at tbe ends and sides, which bole was ten or twelve feet long, and five feet wide. It was timbered immediately after it fell, and a short time thereafter gas was discovered therein, and a canvas curtain was then hung across the entryway under the hole, so that the air current would pass over the top and take the gas out of the hole. On the morning of November 14,1907, appellee went into the mine between 6:30 and 6:50 o’clock, carrying an ordinary miner’s lamp, and passed under this curtain, in going to Ms place of work at the end of this entryway. Shortly thereafter Parsons, a miner who worked in a room next to appellee, came down the entryway. He kept his tool box witMn two or three feet of the curtain, at the side of the entryway, and there changed his clothes each night and morning, each time reaching for and replacing the key to his box, which he kept on one of the timbers in the hole in question. On this morning in question, he had an ordinary miner’s lamp in Ms cap, and stepped on some dirt at the side of the roadway to reach for his key, when an explosion occurred. Appellee was about ten or twelve feet inside the curtain, and, according to the testimony introduced by him, he was blown by the force of the explosion over the top of the coal car that was standing in the entryway, and fell on his back on the ground between the rails, and afterward the car was blown on top of him.

For some time after the canvas curtain had been put up it had so controlled the air current that the gas had been removed from the hole. Though the evidence is conflicting, we conclude the jury was warranted in finding that the greater weight of the evidence showed that recent falls of rock had obstructed tMs air current, and that during the night preceding the explosion the current of air had been weaker than the law required. We conclude that there was no error in submitting the cause to the jury, and that the jury was warranted in finding that gas accumulated in the hole because the air current was weak, and that the explosion occurred through appellant’s wilful disregard of the requirements of section 18 of the Mines and Miners Act.

Among the conditions wMch appellee claims were produced by this injury was the presence of blood and pus in the urine. There was testimony that this might be due to stone in the kidney, and that this condition was present so soon after the accident that it could not have been due to stone in the kidney produced by the accident, but if there were such stone in the kidney at the time it must have been there at the time of this accident. Thereupon X-ray pictures of appellee’s body in the region of the kidneys were taken, and the plates were offered in evidence after proof that they were correct representations of the conditions shown by the X-ray. It appears that from them alone, nothing could be observed, and that it was necessary to put the plates into an illuminating box accompanied by certain apparatus to make the picture visible. Illuminating boxes were not brought into court, nor did appellant make any objection because they were not produced. It is argued that the introduction of the plates was incompetent, but as the jury did not discover anything by looking at them, we think their admission did no harm. It is argued that the testimony of the physician who took the skiographs that they showed no stone in the kidney was incompetent. The objection to it was general only, and therefore properly overruled. Preston v. Davis, 112 Ill. App. 636. If it had been based upon the special ground that the illuminating boxes should have been produced that the jury and opposite counsel might see the pictures, we must assume that that course would have been pursued. Photographs taken by the X-ray process are admissible in evidence, after proper preliminary proof of their correctness and accuracy has been produced. 22 Am. & Eng. Enc. of Law, 755; Chicago & Joliet Electric Railway Company v. Spence, 213 Ill. 220; Chicago City Railway Company v. Smith, 226 Ill. 178.

The first instruction given at the request of appellee is slightly incorrect. It states the duties of appellant under a part of section 18 of the Mines and Miners Act, and amongst these duties is the duty of the mine examiner to measure, with an instrument for that purpose, the amount of air passing in the last cross cut or break through each pair of entryways, or in the last room of each division in a long wall mine, and it tells the jury that if they believe that appellee was injured and thereby sustained damages as stated in the declaration, and that said injury and damages were occasioned by the wilful failure of appellant to comply with the foregoing provision of law set forth in this instruction, they should find the defendant guilty. The count of the declaration which charged a failure to measure the amount of air passing had been withdrawn, and there was no count remaining in the declaration upon a failure to measure the air, and it is urged that therefore this instruction was erroneous. There was no proof of any failure to measure the air, and therefore we conclude this feature of the instruction did not harm appellant. The statute was not exactly quoted in the instruction. One comma was wrongly inserted, and the word “of” was omitted. We are of the opinion that that defect was too slight to disturb the verdict. Complaint is made of the tenth instruction given at appellee’s request, because it authorized a recovery for permanent injuries. There was evidence that appellee had been permanently injured, and therefore the instruction is not justly subject to that criticism. It is argued that the court erred in refusing the 32nd instruction requested by appellant. The substance of it was that, even through appellant was guilty of a wilful violation of the statute, as charged in the declaration, still if the jury believed that the immediate cause of appellee’s injury was the lighting of the gas by the witness Parsons, and that the wilful acts of the defendant were only the remote cause of appellee’s injury, then they should find the defendant not guilty. This was calculated to mislead the jury. The immediate cause of plaintiff’s injury was the explosion, and that was caused by the gas being lighted from the miner’s lamp on the cap of the witness Parsons. But that did not make appellant any the less responsible, for the presence of the gas in the hole, if that presence was dne to a failure to comply with the statute in regard to the quantity of air passing through that hole. The jury would be likely to understand that the presence of the gas and the lack of a sufficient current of air were only the remote causes of the explosion, and no such inference could justly be drawn from the evidence. Moreover, all that was material to appellant in this instruction was contained in the 28th instruction requested by appellant, as modified and given. Appellant contends that the court erred in refusing to instruct the jury to find it not guilty as to particular counts of the declaration. His argument on that subject is answered by Scott v. Parlin & Orendorff Co., 245 Ill. 460; and Klofski v. Railroad Supply Co., 235 Ill. 146.

Appellant contends that the damages are excessive. The appellee alone knows how he was injured, and his testimony indicates that he was confused. He testified that he was thrown over the car ahead of him, and that then the car was thrown so that the front wheels rested upon him; that he crawled out from under it unaided, found his lamp, which was still burning, crawled to the shaft and went up and home, taking hold of fences as he went. That night he was examined by a physician, who found no abrasion of the skin, broken bones, or visible injuries, but found a swollen condition in the region of the abdomen. He was injured November 14, and was removed to a hospital November 17, where he remained until November 30, when he was taken home and remained in bed until April 14, following. He complained of great soreness in the abdominal region, and shortly after the injury blood was found in his urine, and still later a microscopic examination revealed pus. An examination made shortly before and during the trial showed blood in tbe nrine. Tbe appearance of his skin indicated poison in bis system. A physician testified that be was uncertain as to what was tbe matter with appellee, but that apparently be was suffering from a rupture of tbe kidney or of tbe structures around tbe kidney; that be was unable to work, and that bis injuries were likely to be permanent; that tbe only method of ascertaining what was tbe matter with him was to open tbe trunk and region of tbe kidneys, and that such an operation in bis condition might prove fatal. He has been unable to walk at times, and has bad difficulty in going up stairs, and has not worked any since tbe accident. While tbe judgment is for a large sum of money, yet upon a careful re-examination of tbe evidence upon tbe subject of tbe extent of appellee’s injuries, upon this bearing, we are unable to find any proof from which we can say that appellee’s present serious condition is due to any other cause than tbe injuries be received at tbe time of this explosion.

Tbe judgment is therefore affirmed.

Affirmed.