text:
    John A. Grant, Administrator, Plaintiff in Error, v. Chicago and Northwestern Railroad Company, Defendant in Error.
    Gen. No. 17,834.
    1. Instructions—repetitions. An instruction as to the distinction between "the satisfaction of the jury beyond all reasonable doubt” and their “satisfaction by a preponderance of the evidence," which is sufficiently covered by other instructions, need not be given.

      2. Evidence—when photographs of scene of accident inadmissible. Photographs caused to be taken by a party to a suit of the scene of an accident, but with objects alleged to have been placed in the different positions the several witnesses testified they were in at the time the accident occurred, are not admissible, as the other party has not an equal opportunity and as their admission must be based upon testimony which the other party had no power or opportunity to refute.
    3. Evidence—when evidence at a coroner’s inquest is admissible. Depositions taken before a coroner are not competent for any purpose unless it be to show that a witness at the trial contradicted what he stated before the coroner.
    4. Evidence—cannot be shown that verdict of coroner’s jury was based upon defendant’s evidence. In an action for the death of a person killed in a railroad accident, evidence that the verdict of a coroner’s jury was based upon evidence of the defendant’s employees is immaterial, particularly where the jury was instructed that the verdict of the coroner’s jury was not conclusive upon the plaintiff.
    Error to the Superior Court of Cook county; the Hon. Richasd E. Bubke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed January 14, 1913.
    Modified and refiled and rehearing denied February 4, 1913.
    Francis J. Woolley, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendant in error; Edward M. Hyzer, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit, which is an action for the recovery of damages arising out of the death of Thomas Kiess, resulted in a verdict in favor of the defendant Railway Company. From a judgment for costs entered upon the verdict this writ of error is prosecuted by the plaintiff, as administrator.

The deceased met his death at or near a crossing of defendant’s railroad and Lincoln Avenue in the Village of Glencoe on October 18, 1909. Negligence is charged in the alleged failure of the defendant to manage, operate and control its train with proper care, specifically in failing to use a bell or whistle, and in running at a dangerous rate of speed. Negligence is also charged in the alleged failure of the defendant to station a flagman or watchman upon the crossing to give warning of the approach of the train.

The plaintiff insists that the verdict was contrary to the manifest weight of the evidence; that there were errors in the giving of instructions as tendered by the defendant, and in the refusal to give an instruction requested by the plaintiff; that there were errors in the admission and exclusion of evidence; that improper statements to the jury were made by counsel for defendant, and that counsel for plaintiff was improperly refused permission to give to the jury in his opening statement the application of the law to the facts under the declaration as counsel conceived it to be.

It is urged by the plaintiff that the facts disclosed by the record show so manifestly the right of the plaintiff to recover, that the court should have granted a new trial. On the other hand, the claim is made by the defendant that the facts are so manifestly with the defendant that even if error occurred' in the trial the judgment should not be reversed, substantial justice having been done.'

After a painstaking examination of the record, we have reached the conclusion that the eas’b was one that properly should have been, as it was, submitted to the jury. We are also of the opinion that the court did not err in refusing to grant a new trial, based upon the proposition that the manifest weight of the evidence was with the plaintiff.

A large part of the argument is devoted to questions presented by the instructions. Thirty-five instructions were read to the jury, fifteen as proffered by the plaintiff and twenty as requested by the defendant. These instructions presented to the jury, with more detail than seems to have been necessary, the respective theo-< ries of the parties and the law of the case as applicable to such theories, respectively. • There were also the usual general instructions upon the questions of reasonable doubt, burden of proof, as to what constitutes preponderance of the evidence, etc. We have carefully considered the objections made by counsel for plaintiff to the instructions given at the request of defendant, and are unable to say that the instructions are erroneous to such an extent as to require reversal of the judgment. We think the instruction offered by the plaintiff but not given, which had to do with the distinction between “the satisfaction of the jury beyond all reasonable doubt” and their “satisfaction by a preponderance of the evidence,” was sufficiently covered by other instructions. Each one of nine or more instructions tendered by the defendant directed the jury to find a verdict for the defendant provided the jury found the facts to be as stated in an earlier part of the instruction. We think the instructions should have been much fewer in number. However, the charge of the court, taken as a whole, we think fairly advised the jury as to the relative duties and rights of the parties.

The plaintiff offered in evidence a photograph showing Lincoln Avenue and the two main tracks of the railroad crossing the same. It was at or near this crossing that the accident occurred. The photograph also shows the two main tracks of an electric road at Lincoln Avenue, running nearly parallel with defendant’s tracks. This photograph seems to have been received in evidence without objection. There was also introduced in evidence, by agreement, blue prints of a plat which shows Lincoln Avenue and also the tracks extending north and south of Lincoln Avenue, and a number of streets crossed by the tracks, as well as other nearby streets running in a northerly and southerly direction. There was also offered by the defendant, and received in evidence without objection, a picture described as a “panoramic picture,” showing the location of the tracks, crossing, etc., as they existed at the time of the accident.

During the course of the trial, which took place about twenty months after the accident, the defendant caused to be placed on its tracks at Glencoe certain engines and cars in what was said to be substantially the location of the engines and cars which were on the tracks at the time of the accident, and had six pictures taken. These pictures were received in evidence over the objection of the plaintiff. The allowance of their introduction is strenuously argued by plaintiff to be an error on account of which the judgment should be reversed. From the photographer’s testimony it would seem that exhibit 8 was taken from a point on the sidewalk on the south side of Lincoln Avenue, six feet west of the west rail of the southbound main track, the front of the engine standing at a point thirty feet north of the line of the north crosswalk, which does not cross the track; that exhibit 9 was taken with the engine in the same place, the camera standing on the same walk, eight feet and ten inches west of the west rail of the southbound main track; that exhibit 10 was taken from the center of the same sidewalk, at a point 50% feet west of the west rail of the southbound main track, with the engine in the same place as in the former ones; that exhibit 11 was taken from the same point as No. 10, 50% feet west of the west rail of the southbound main track, the front end of the engine standing ten feet north of the north edge of the sidewalk, which is on the south side of the street; that exhibit 12 was taken from a point on the south sidewalk, 36% feet west of the west rail of the soutbound main track, with the front end of the engine ten feet north of the north edge of the sidewalk on the south side of Lincoln Avenue; that exhibit 13 was taken with the camera pointing to the north, the camera being in the center of the south sidewalk seven feet west of the west rail of the southbound main track, and the engine ten feet north of the north edge of the south sidewalk. On cross-examination the photographer stated that the various positions of the cars and engines were selooted by an attorney for the defendant, as were the various positions in which the camera was placed; that a station agent of the defendant took the measurements ; that he, the photographer, could form no judgment as to distances by looldng at the picture, and that in his opinion no other person looking at the picture could judge the distances accurately. He further testified, “The photograph simply shows it as it is in proportion, the same as it would be to a person standing on the crossing there between the tracks. It would be just as it is in the photograph.” The station agent testified that the photographs were taken at the various places heretofore mentioned, and it is the contention of the defendant that these places were such as to cause the pictures to show the standing train, located as it was by the different witnesses, respectively, in their testimony.

In Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89, the general rule is stated to be “that photographs stand on the same footing as a diagram, map, plan or model, and that a photograph is a legitimate mode of proving a condition which can be shown by a representation of that sort. It rests, to some extent, upon the credit of witnesses, in the same way as a map, plat or plan; but that fact furnishes no reason for excluding it as evidence. # * * Each party has the same opportunity to offer evidence as to whether the picture correctly represents the appearances. The preliminary proof of the correctness of the picture, the ability of. the operator and the accuracy of the instrument is addressed to the court, and it is not error to exclude photographs taken a long time after an accident, where the situation has been changed and the operator is shown to be inexperienced.” The exclusion of a photograph made under circumstances coming, as the court held, under the general rule as above set forth, was declared to be erroneous.

In the case now under consideration the two photographs offered, one each by the parties, respectively, and received without objection, as well as the blueprint introduced by agreement, come strictly within the rule. We do not think the same may be said as to the six photographs offered for purposes of illustration.

In the case of Chicago & E. I. R. Co. v. Crose, 214 Ill. 602, it is said that photographs offered in evidence for the purpose of contradicting witnesses or explaining a transaction are only competent when they are shown to have been so taken as correctly to exemplify the actual situation, circumstances and surroundings at the time. “When the situation and surrounding circumstances are subject to change, photographs, to be of any value as evidence, must be shown to have been taken at the time when the situation and surroundings are unchanged.”

Plaintiff had no power to cause like pictures to be taken; he had no control over the engine and cars, and no one representing him was present at the time the pictures were taken. He did not have (to make use of language similar to that employed in the case of Lake Erie & W. R. Co. v. Wilson, supra) opportunity to offer evidence as to whether the pictures correctly represented the situations as they were severally presented. The record bears out the statement of defendant’s counsel that it was admitted by both parties that an engine and train of cars stood just north of the north sidewalk on Lincoln Avenue; that plaintiff’s witnesses claimed that this engine and train of cars were about ten feet north of said sidewalk, and that defendant’s witnesses stated that the engine and train of cars stood thirty feet north of said sidewalk. It was not admitted, however, by the plaintiff that when the two sets of pictures were taken the engine and train of cars were placed respectively about ten feet north of the sidewalk and thirty, feet north of the sidewalk. Defendant’s station agent testified that they were so placed, but the plaintiff had no means of ascertaining the accuracy of this statement..

In the case of Ellis v. Flannigan, 253 Ill. 397, it was sought to corroborate the testimony of a witness (that the testatrix of a will when sitting in a certain chair could not, by turning her head and body, see any object which was directly behind her) by showing a photograph of the room taken four weeks after the death of the testatrix. The photograph showed the table and the chair in which the testatrix sat, arranged, as the witness testified, in the relative positions which they occupied on the day the will was attested. The witness was the sister of the contestant of the will, and testified that the latter assisted her in arranging the furniture in the position she claimed each piece occupied on the day of the execution of the will. It was held that, made under these circumstances, the photograph was improperly admitted. As we understand the case, the fact that the witness was a sister of the contestant could have been important only as showing her interest in the matter. We do not understand (as has been suggested) the court in using the phrase “under such circumstances” to base the decision merely upon the fact that the witness was a sister of contestant, and that the contestant assisted in arranging the scene, but upon the broader ground of lack of equal opportunity, as more fully discussed in Chicago & E. I. R. Co. v. Crose, supra.

When a deputy coroner was upon the stand the plaintiff offered to show by him' that the verdict of the coroner’s jury was based upon the testimony of John A. Green, John D. Johnson, Ben Sutor and Oscar Anderson. These are the names as given in the record, but we are asked to assume that the person's referred to are John A. Grant, the plaintiff, John D. Dickson, locomotive engineer, Ben Swetters, defendant’s conductor, and Oscar Anderson, locomotive fireman. • The three persons last named were witnesses for the defendant, but the plaintiff’s testimony was not taken. An objection made to the proof offered was sustained, and error is predicated upon this action of the court. We do not think snch ruling cause for reversal. The jury were instructed at the request of the plaintiff to the effect that the verdict of the coroner’s jury was only prima facie proof of the various circumstances therein stated, and that if after considering the evidence as a whole the jury, from a preponderance of the evidence, found any fact differently from the way it was stated in the coroner’s verdict, they had the right to find in such respect contrary to the coroner’s verdict and were not concluded thereby. Depositions taken before a coroner are not competent for any purpose, unless it be to show that a witness at the trial contradicted what he stated before the coroner. Knights Templar & Masons’ Life Indemnity Co. v. Crayton, 209 Ill. 550. It was not important to the jury to know that Grant, the plaintiff, was a witness before the coroner’s jury. Dickson, Swetters and Anderson were all called by the defendant, and the plaintiff had an opportunity to question them upon the evidence given before the coroner’s jury, and to some extent availed himself of this privilege. We think the fact, if it was a fact, that they and Grant were the only witnesses at the inquest immaterial.

We find it unnecessary to cónsider other points discussed in the briefs. For the error pointed out the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    Mayer Brothers Company, Appellee, v. John Parenti, Appellant.
    Gen. No. 17,858.
    1. Judgments—slight grammatical error. Judgment will not be reversed for slight grammatical error in the order.
    2. Damages—appeal prosecuted for delay. The appellate court will assess damages when a frivolous appeal is taken for delay.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed with damages.
    Opinion filed January 14, 1913.
    Albert O. N. Gualano, for appellant.
    William S. Newburger, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of the appellee and against the appellant for $1,033.93 (erroneously stated in the abstract to be $10,033.93). No bill of exceptions is included in the record. The only error complained of is that in the closing part of the judgment order the language used is, “together with Ms costs and charges in this behalf expended,” etc., instead of “together with its costs and charges in this behalf expended,” etc.

We do not regard this slight grammatical error as sufficient to warrant a reversal of the judgment. The judgment will therefore be affirmed, and the court, being of the opinion that the appeal herein was prosecuted for delay, assesses damages in favor of the said appellee and against the said appellant in the sum of one hundred dollars for such delay, for which sum the said appellee shall have judgment in addition to the costs.

Affirmed with additional costs*


author: Mr. Justice Barnes

text:
    J. B. Inderrieden Company v. Owen V. Allen et al. J. B. Inderrieden Company, Plaintiff in Error, v. United States National Bank of Newberg, Oregon, et al., Defendants in Error.
    Gen. No. 17,752.
    1. Attachment—priorities between creditors. Where money Is advanced by a bank under a verbal agreement that certain fruit is to become its property, and such fruit is sold and the bills of lading and drafts in its favor are delivered to the bank and sent to its agents, who collect the proceeds, an equitable lien exists in behalf of the bank superior to that of a subsequent attaching creditor.
    2. Garnishment—rights of equitable owners. In garnishment courts of law will notice and protect the interests of equitable owners.
    3. Pledges—rights of pledgee who makes advances. Where fruit and the proceeds therefrom are pledged to a bank as security for advances and on sale thereof the bills of lading with drafts attached are delivered to the bank, a special property is vested in the bank entitling it to the proceeds of the sale to the extent required for the payment of such advances.
    4. Pledges—what shows intention that pledgee receive proceeds of sale of goods. It is the intention, where fruit and the proceeds therefrom are pledged as security for advances, that the pledgee shall receive the proceeds of the sale thereof in payment of such advances, when drafts attached to the bills of lading are made out to the pledgee, and on rejection of the fruit, a sale is made on his orders, the.proceeds are garnisheed in the hands of his agents, and the pledgor exercises no independent authority over the fruit after the delivery of the bills of lading to the pledgee.
    5. Pledges—attaching creditor of pledgor. Where goods and the proceeds therefrom are pledged and the proceeds are collected by the pledgee’s agent, the possession thereof so far as an attaching creditor of the pledgor is concerned is the possession of the pledgee.
    6. Attachment—nonresidence of debtor. Where attachment is on the mere ground of nonresidence of the debtor, the attaching creditor can acquire only the debtor’s rights existing when attachment was levied and the question of the ownership of the property at that time is raised.
    7. Pledges-—rights of pledgee to proceeds of sale of goods pledged. Where fruit and its proceeds are pledged for advances for which notes are given, 'and a creditor of the pledgor attaches the proceeds in the hands of an agent of the pledgee, the pledgor cannot assert rights thereto as against the pledgee, and such pledgee’s right is not affected by taking additional evidence of the indebtedness from the pledgor while title to the proceeds is in controversy.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    Miller, Starr, Packard & Peckham, for plaintiff in error; Charles L. Cobb, of counsel.
    Silber, Isaacs, Silber & Woley, for defendant in error, U. S. Nat. Bank; Frederick D. Silber and James D. Woley, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

The sole question here involved is whether or not, on the facts disclosed, the funds in the hands of the First National Bank of Chicago, garnishee in an attachment suit brought by plaintiff in error against one W. G-. Allen, a nonresident, doing business as the Allen Fruit Company, were properly awarded to defendant in error, a bank of Newberg, Oregon, on its interplea.

The undisputed facts are that said Newberg bank advanced $3,125.45 to said Allen for purchasing, caring for and marketing prunes gathered in the fall of 1907, for which he gave his notes as the advances were made. The loans were made on a verbal agreement that the prunes should become the property of said bank, should be stored in a warehouse and insured for its account, sold by Allen, and when sold, that the drafts with bills of lading attached should be delivered to it for collection and application to the payment of such notes, the excess, if any, to be applied to another unpaid note previously given for $2,420.15. All the money advanced was employed in securing the fruit in the manner aforesaid, and later, when a sale thereof was made to Tooker & Company of Chicago, the Allen Fruit Company, through its authorized agents made drafts for $4,649.15 on Tooker & Company payable to the order of intervener and delivered them to it together with the bills of lading attached, acknowledging receipt by the railway company from the Allen Fruit Company of the prunes consigned to its order with directions to notify Tooker & Company. The drafts, with bills of lading attached, were forwarded to Ladd & Tilton, bankers and correspondents of intervener at Portland, Oregon, and by them to the First National Bank of Chicago, for collection. The fruit was rejected by Tooker & Company, and Allen, having received an offer of $3,000 therefor from one Frost, communicated the fact to intervener, and it thereupon instructed its correspondents at Portland to accept Frost’s offer, deliver the bills of lading and return the drafts—all of which was done, and it still holds the dishonored drafts. After the First National Bank of Chicago surrendered the bills of lading and received the $3,000 it was summoned as garnishee. In the meantime Allen had renewed his notes to the bank and no credit was given him on its books for the $3,000 in question.

It is urged in view of these facts that no title to the prunes or the proceeds therefrom passed to intervener. As we view them, it matters little whether it got title or not, for if the legal title did not pass, the transaction manifestly would have created an equitable lien in favor of intervener which could have been enforced in equity (3 Pom. Eq. Jur. secs. 1235, 1236, 1283), and its right under such lien would be superior to that of a subsequent attaching creditor (Morris v. Cheney, 51 Ill. 451; Carr v. Waugh, 28 Ill. 418; Savage v. Gregg, 150 Ill. 161); and courts of law will notice and protect the interests of equitable owners in a garnishment proceeding (Hodson v. McConnel, 12 Ill. 169; Dressor v. McCord, 96 Ill. 389). But the facts render it unnecessary for intervener to assert its claim under an equitable lien. Under the agreement Allen pledged not only the fruit but the proceeds therefrom as security for the advances made to him, and when he delivered to intervener the bills of lading he thereby made a symbolical delivery of the fruit, vesting in the bank a special property therein, entitling it to the proceeds of the sale to the extent required for the payment of such advances. Taylor v. Turner, 87 Ill. 296; Lewis v. Springville Banking Co., 166 Ill. 311; Walsh, Boyle & Co. v. First Nat. Bank of Hiawatha, 228 Ill. 446. And there can be no question that such was the intention of the parties, for not only were the drafts made payable to the order of intervener, but when their payment was refused and the fruit rejected, intervener’s title to the bills of lading was so far recognized that it was through its directions that they were delivered to Frost, and the sale made for $3,000, —a sum less than it advanced, and the proceeds were collected by and garnished in the hands of its agents and not Allen’s. The latter exercised no independent authority over the fruit after his delivery of bills of lading to intervener. On the contrary everything he did indicated an intention to fulfill his agreement to sell the same for the account of the intervener to whom he had pledged the proceeds, which, being in the hands of its agents, were, so far as the attaching creditor was concerned, in possession of intervener, and to which, as against the rest of the world, it had the right to a possessory action.

The attachment having been made on the mere ground of the nonresidence of the debtor and there being no question of fraudulent intent, the attaching creditor could acquire only the rights of the debtor as they existed when the attachment was levied and only the question of ownership of the property at that time is raised. Walsh, Boyle & Co. v. First Nat. Bank of Hiawatha, supra. Fo right to the proceeds as against the intervener could have been asserted by Allen, and in our judgment its right thereto is not at all affected by the fact that subsequently, while the title to these funds was in controversy, it saw fit to take from Allen further evidence of his indebtedness.

Whether, therefore, intervener’s rights rested upon an equitable lien or a legal title, they were superior to the attaching creditor’s, and the judgment in its favor will be affirmed.

Affirmed.


text:
    John C. Moninger Company, Appellee, v. Richard F. Gloede, Appellant.
    Gen. No. 17,773.
    Appeals and errors—judgment. Where on trial before a court the record shows appellant is entitled to a credit, the judgment may be reversed and, after making the deduction, judgment entered for the balance, each party to pay his own costs.
    Appeal from the Circuit Court of Cook county; the Hon. William B. Soholfield, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and judgment here.
    Opinion filed January 14, 1913.
    Byron W. Wright, for appellant.
    Dillard B. Baker, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.'

Appellant was indebted to appellee for building material. He claimed that the amount sued for was excessive; that some of the material was defective and some broken; that it was to be delivered at his place of business; that he was entitled to credit for thirty-one dollars paid for freight charges and teaming in making deliveries, and that he had demanded but had not received itemized statements of the account. The court’s finding and judgment were for $466.55.

The record sufficiently shows that statements of the account were not only mailed to appellant and that he afterwards promised payment, but that he was told the amount of the balance and promised to pay it. The evidence, however,. supports his claim for the credit of thirty-one dollars. There was no proof of the amount of loss, if any, from broken or defective material. The finding of the court was justified except so far as it failed to give appellant credit for thirty-one dollars. As such credit should have been given, and as no errors were committed that would justify us in remanding the case for a new trial, the judgment will be reversed and judgment entered here for $435.55, each party to pay his own costs

Reversed and judgment here.


text:
    Mary A. Seery, Plaintiff in Error, v. Catholic Order of Foresters, Defendant in Error.
    Gen. No. 17,796.
    1. Reformation of instruments—benefit certificates. Complainant beneficiary named in a benefit certificate issued by defendant, a fraternal society, in order to sustain a bill to reform the contract for mutual mistake, must show by clear and satisfactory evidence that the mistake was made by both parties at the time the certificate was issued.
    2. Fraternal benefit societies—estoppel. In a suit to reform a certificate of insurance, a mistake of a subordinate officer in collecting assessments does not estop defendant, a fraternal society, from denying there was a mistake by its high court in issuing the certificate.
    3. Fraternal benefit societies—reformation of certificate. "Where deceased in applying for membership to a fraternal society fills in the amount of insurance as $1,000 and tells the local secretary his insurance is for $2,000, who not having looked at the initiation card accepts assessments on $2,000, and the high court issues the certificate for $1,000, there is not a mutual mistake in issuing the certificate, and a bill by the beneficiary for reformation is properly dismissed.
    Error to the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    O’Bryan & Marshall, for plaintiff in error; Edw. O’Bryan, of counsel.
    Edmund S. Cummings, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Complainant is the widow of Thomas F. Seery and the beneficiary named in a benefit certificate for $1,000 issued to said Seery by the defendant, a fraternal beneficiary society organized under the lodge or subordinate court plan. Upon the theory that a mutual mistake was made as to the amount of said certificate, the bill was filed praying that the contract of insuranee be reformed so that the amount would read $2,000 instead of $1,000, and that defendant be decreed to pay the full $2,000.

Following the regular procedure, it appears that Seery signed a written application for membership, dated June 6,1907, made out for a benefit of $1,000 by the local medical examiner by whom he was examined; that a report of the examination was forwarded with the application to the high medical examiner for his approval; that the latter approved of such report June 8, 1907, and on the same day signed and forwarded to the subordinate court a card called “the certificate of initiation,” by which it was advised that he had approved said medical examination for the amount of $1,000; that Seery was initiated July 3, 1907, and the fact thereof together with the facts of his place of birth and age, and payment of a benefit fee of $2.10 (the amount required for $2,000), were indorsed on said card, which was then returned to the high court, and from which notations were made on the books of the high court that the amount of his insurance was $1,000 and the rate of assessment $1.05; and that thereupon a benefit certificate of insurance for $1,000 was issued and transmitted to the subordinate court. Through negligence or inadvertence the certificate remained there undelivered until Seery’s death about five months later.

Seery manifestly intended to apply for a benefit of $2,000, and paid the advance fee and assessment rate ($2.10) for that amount of insurance. This happened because the local recording secretary, instead of consulting the “initiation card” for the amount of Seery’s insurance, when he was initiated, acted upon his statement that it was for $2,000. The high court, however, called for and received from the subordinate court assessments against Seery on the basis of $1,000 only.

Assuming that Seery intended to apply for a benefit of $2,000, and that the local medical examiner, by Ms mistake and not Seery’s, inserted the wrong amount in the application, and that complainant can properly ask for the relief prayed for, yet it was incumbent upon complainant to show by clear and satisfactory evidence that the issuance of the certificate for $1,000 only was the result of a mistake by both parties,—that is, that the mistake was mutual (Emery v. Mohler, 69 Ill. 221; Seeley v. Baldwin, 185 Ill. 211); and the evidence of mutuality in the mistake should relate to the time of its issuance, and show “that at that particular time the parties intended to say a different thing and by mistake of fact expressed another.” Matthews v. Whitethorn, 220 Ill. 36.

It appears that the high medical examiner is the officer who passes upon the amount for which a certificate shall issue, and that he may even approve of the application for an amount less than the sum asked for. His approval calls for the exercise of Ms judgment as a physician upon the medical examination and local examiner’s report, and is not controlled by the terms of the application or amount of fees advanced. And the Mgh court is governed solely by Ms approval in fixing the amount for wMch the certificate shall issue. Unless, therefore, he made a mistake, the defendant society made none in issuing the certificate. No claim is made that he made a mistake or that there was anything before him to suggest that one had been made by others.

But it is urged that the high court is estopped from denying that it made a mistake; that it was bound to take notice that the applicant had paid a benefit fee for $2,000 insurance before it issued the certificate. Notwithstanding such fact, it was bound to issue to the applicant insurance for only such amount as the high medical examiner had approved. It cannot be said that Seery was induced to take a different course of action to his detriment by reason of anytMng done by the high court, or for that matter by the subordinate court. He was required to pay more money than neeessary but money paid out by mistake is recoverable. He could not claim a right to any greater insurance than the defendant’s agents authorized so to act would allow on the face of the papers regularly submitted.

Estoppel is also urged on the ground that the subordinate court continued to receive assessment fees from Seery on the basis of $2,000, and that the relationship of agency existing between the society and its subordinate court makes the acts of the latter in collecting such assessments binding upon it. The case at bar is not analogous to cases cited in support of the proposition. In those cases the society was not permitted to claim exemption from liability to pay a benefit on the ground that a member had violated its rules or by-laws when such violation was with the full knowledge of the subordinate lodge. No such question arises here. The question here is whether a mistake was actually made by the high court in the issuance of the benefit certificate, and it is not precluded from showing the real facts connected with its issuance. To show a mistake on its part, it would have to appear that those called upon to act in issuing it intended to issue it for $2,000 and by mistake of fact made it for $1,000 (Matthews v. Whitethorn, supra); but in view of the course of procedure followed, this cannot be said.

Seery himself made the first mistake when he signed his application for a different amount than he intended to apply for. He was bound to know its contents in the absence of any fraud practiced upon him. As a. result of his mistake he told the recording secretary that his benefit insurance was $2,000. The secretary, instead of consulting his ‘1 initiation card,” made a mistake in acting on his statement and collecting from Trim an advance fee and assessments at the rates for $2,000. But all mistakes of the subordinate officers were made after the official action on the question of the amount of insurance had been regularly taken by the high court, and have no tendency to show that a mistake was made at the particular time of issuing the benefit certificate. The facts of the case, in our judgment, are not such as call for an application of the doctrine of agency or the doctrine of estoppel, so as to bind the defendant society for any other amount than the certificate called for.

The decree dismissing the the bill for want of equity is affirmed.

Affirmed.


text:
    Mary Bottigliero et al., on appeal of Mary Bottigliero, Appellants, v. Felicia Cozzi, Appellee.
    Gen. No. 17,829.
    1. Appears and errors—master's report. A master’s report inserted in an alleged certificate of evidence, certified as an original document and by stipulation incorporated into the transcript of record, is not properly in the record and is not considered by the court of review.
    2. Judgments—vacation. A decree or judgment may be vacated at a subsequent term where the motion is made during the term at which it is entered and continued.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    H. F. Dickinson and William Tatge, for appellants.
    George H. Mason, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The decree appealed from is based entirely upon the master’s report including the evidence submitted therewith and made a part thereof, which, of course, became a part of the record when filed, and which we cannot review except when presented in the form of a transcript of record. Instead of being so presented, it has been inserted in an alleged certificate of evidence which has been certified here as an original document, and incorporated into the transcript of record by stipulation.

In Beth Hammidrash, etc. v. Oakwoods Cemetery Ass’n, 200 Ill. 480, the original master’s report and evidence submitted therewith were incorporated into the transcript by stipulation. The court held that the statute does not authorize such practice and that the original papers should have remained in the files, and that only a transcript thereof could be considered. In Martin v. Todd, 211 Ill. 105, the master’s report was, as in the case at bar, included in the certificate of evidence. The court said that as the master’s report was already a part of the record, the certificate of evidence had no proper place in the record, and that, with-the exceptions there cited, a court of review acts upon the transcript of the record and not the record itself.

The want of a complete record, therefore, prevents us from considering* the case upon its merits, and, following the authorities above cited, the decree will have to be affirmed unless there is manifest error in that part of the record properly before us. It is urged that there is.

The contention is that the court was without jurisdiction to vacate a former decree entered at the prior October term. The decree was vacated at the December term on a motion made during the October term, and continued by different orders until the December term. Counsel cites Radge v. Berner, 30 Ill. App. 182, which alludes to the English Chancery practice. But there is no question that by our practice a decree, as well as a common law 'judgment, is under the control of the court during the term at which it is entered, and may be set aside or vacated during the term, or subsequently upon motion, made during the term and continued to a subsequent term. Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369; 17 Am. & Eng. Enc. Law (2nd Ed.) 815.

The clerk of this court is directed to detach from the transcript in this cause, on request of either party, the original papers constituting a part of the record of the court below, and return them to the clerk of the Superior Court of Cook County.

Affirmed.


text:
    Arthur J. Calder, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 17,837.
    1. Pensions—retired) member of fire department. To entitle a retired member of the fire department to a pension under Act of May 24, 1877, section 7, he must show, besides ten years’ service, the payment of all assessments before ceasing to be an active member, compliance with all of the rules and regulations lawfully established by the board and payment of all assessments after he ceased to be a member.
    2. Mandamus—firemen’s pensions. On a petition for mandamus to compel the trustees of a firemen’s pension fund to enroll petitioner, where the only averment with respect to the action of the board and the matters before it is that petitioner made application to be enrolled “showing that at the time of his retirement his salary was $1,200 per annum and that he was entitled to a pension of $600 per annum,” a general demurrer to the petition is improperly overruled.
    3. Mandamus—firemen’s pensions. A petition for mandamus does not lie where it is not shown that the board of trustees in refusing petitioner’s application for a firemen’s pension either exceeded or abused its powers.
    4. Mandamus—control of discretion. While a writ of mandamus lies to compel a subordinate or quasi judicial tribunal to act where it is its duty to act, it cannot require it to decide a matter in a particular manner.
    5. Mandamus—decision of board of trustees on application for fireman’s pension is final. Under section 3 of the Act of 1887 as amended by the Act of 1907, the decision of the board of trustees on.an application for fireman’s pension is final unless subsequently set aside by the board, and its action when within the authority and power conferred by statute cannot be reviewed on a petition for mandamus.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed January 14, 1913.
    Rehearing denied January 28, 1913.
    William H. Sexton, for plaintiff in error; Joseph F. Grossman, of counsel.
    William A. Doyle, for defendant in error; Joseph J. Thompson, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Defendant in error, Calder, filed a petition for mandamus May 25, 1908, to compel the board of trustees of the fireman’s pension fund of the City of Chicago forthwith to enroll his name as one of the beneficiaries thereof, and order payment of a pension of six hundred dollars per annum to him out of said fund so long as he shall live, and to require said board and other respondents to perform certain formal acts to effect such purpose. Bespondents (plaintiffs in error) elected to stand by their general demurrer to said petition, and error-is assigned to the order overruling said demurrer and granting the writ prayed for.

The petition sets forth that Calder was a member of the fire department of the City of Chicago from May 9,1868, to July 5,1884, the date of his retirement, and it is his contention that by virtue of such service he comes within the class of “retired members” provided for by section 9 of the Act approved May 13, 1887, as amended by the Act approved June 1, 1907, in force July 1, 1907 (Hurd’s B. S. (Ed. 1911), chap. 24, par. 411), said action saving the benefits of said act to “retired members of the department” then entitled to pension or annuity under the provisions of the Act of May 24,1877, as amended.

It is petitioner’s theory that the term “retired members” used.in said section, includes those referred to in section 7 of said Act of May 24, 1877 (Hurd’s R S. (Ed. 1911), chap. 24, par. 388), and that petitioner comes within the purview of such section by virtue of service alone in the department for the full term of ten years.

It is apparent from examination of said section 7 that to bring the applicant within the class therein provided for, he would be required to show service for ten years, and that he had continued his membership aforesaid by (1) payment of gdl assessments before ceasing to be an active member; (2) compliance with all of said rules and regulations lawfully established by the board; and (3) payment of all assessments after he ceased to be a member. Averments of all these matters are essential to show that petitioner comes within the class to which he assumes to belong.

But the petition contains no averment of his compliance with the rules and regulations of the department, and sets forth inadequately the payment of all assessments. As to the latter it avers that he paid “all of the regular fees, dues and assessments while he was a member of the fire department, or of which he has been notified, or that have been brought to his attention. ’ ’ This averment can hardly be construed to mean that he even attempted to continue membership in the organization, or had paid any assessments since his retirement from the fire department some twenty-four years before.

And, too, if the petitioner was entitled to a pension under section 9 of the Act of 1887 as amended, it was incumbent upon him to show that he was entitled to the same when said act went into effect. His petition does not set forth facts from which that may be inferred. Said section saved the rights of only such persons as were entitled to the benefits of the Act of 1877 as amended. Whether he should also show, as contended for by plaintiff in error, that he had become permanently disabled, it is unnecessary to decide.

But even if the petition set forth adequately the conditions that he must have complied with to entitle bim to a pension under the statute, yet it is fatally defective in that it sets forth no facts to show that the board of trustees exceeded its powers, or even that it did not properly reject the application.

The only averment in the petition with respect to the action of the board and the matters before it, is that on August 1, 1907, petitioner made application to the board to be placed on the roll of the pension fund “showing that at the time of his retirement his salary was $1,200 per annum, and that he was entitled to a pension of six hundred dollars per annum,” and that the board refused his request. In other words, the only averment as to what the board acted on is that he made an application showing a solitary fact that when he retired he drew a certain- salary, and his conclusion of law that he was entitled to a pension.

It is fundamental that a petition for mandamus must show a clear right to have the thing done which it seeks to compel, and it must set forth facts and not conclusions of fact or law, showing the petitioner’s right to the writ. It is equally well settled too that while such writ will lie to compel a subordinate or quasi judicial tribunal to act where it is its duty to act, it will not require it to decide a matter in a particular manner, as the writ in this case directs. People v. Henry, 236 Ill. 124; People v. Dental Examiners, 110 Ill. 180; People v. City of Chicago, 234 Ill. 416; People v. Webb, 256 Ill. 364.

Section 3 of the Act of 1887, as amended by the Act of 1907 (Hurd’s R. S. (Ed. 1911), ch. 24, par. 405) re-enacted the provision of the Act of 1877 that the decision of the board of trustees on applications “shaff be final and conclusive, and not subject to review or reversal except by the board.” As held in Eddy v. People, 218 Ill. 611, said board exercised quasi judicial powers, and its finding, when made, was binding upon all the world, unless subsequently set aside by said board. If it acted within the authority and power conferred by statute, its action upon the application could not be reviewed on a petition for mandamus, and it is manifest that the petition presented nothing with respect to the action of said board of trustees or the exercise of its power that conferred any authority upon the court to issue the writ.

It was for that board to decide on proof properly submitted whether there was a compliance with the conditions precedent to the applicant’s right to pension,—whether he had paid the necessary assessments and complied with its rules and regulations, and whether the facts were such as to entitle him to such pension when the Act of 1887 went into effect. For aught that appears from the petition, the board may have rejected the application because of failure to comply with any of these conditions, and if petitioner, in support of his application before said board, proved no other facts than those set up in his petition, the board properly refused it. At any rate, the petition does not show that the board either exceeded or abused its powers. Without such a showing the court had no right to entertain it, much less the power to review the board’s decision.

The demurrer should have been sustained, and the judgment will be reversed and the cause remanded with .directions to sustain the demurrer.

Reversed and remanded with directions.


text:
    Mathias Benner, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 17,838.
    1. Mandamus—firemen’s pension fund. A petition to compel the board of trustees of a firemen’s pension fund to enroll petitioner as a beneficiary, which fails to aver facts showing that the board exceeded or abused its powers, or improperly refused his application, is insufficient.
    2. Pensions—"board of trustees. Whether a fireman is entitled to become a beneficiary of a pension fund is to be decided by the hoard of trustees and not by courts.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed January 14, 1913.
    Rehearing denied January 28, 1913.
    William H. Sexton, for plaintiffs in error; Joseph F. Grossman, of counsel.
    William A. Doyle, for defendant in error; Joseph J. Thompson, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Defendant in error, Benner, filed a petition for mandamus May 25, 1908, to compel the board of trustees of the firemen’s pension fund of the City of Chicago forthwith to enroll his name as one of the beneficiaries thereof, and to order payment to him out of said fund from the date of entry of the order of a pension of $1,800 per annum so long as he shall live. Respondents (plaintiffs in error) elected to stand by their general demurrer to said petition, and error is assigned to the order overruling said demurrer and granting the writ prayed for.

The petition is the same in form and substance as that in the C alder case ante, p. 313, and the judgment must be reversed for the reasons therein stated. It is enough to say, regardless of whether or not said Benner was as a matter of fact entitled to such pension, that that was a matter to be decided by the board of trustees, and not by the trial court in a mandamus proceeding. Eddy v. People, 218 Ill. 611; Hurd’s R. S. (Ed. 1911), chap. 24, par. 405.

There is no averment in the petition that the board exceeded or abused its powers in refusing Benner’s application, or any statement of facts that would support such an averment. The only averment in the petition as to the nature and contents of the application is that it showed “that at the time of his retirement his salary was $3,600 per annum, and that he was entitled to a pension of $1,800 per annum.” "What was before the board for its action in refusing the application is not made to appear. For aught that appears, the board not only did not exceed or abuse its powers, but properly refused the application. The demurrer should have 'been sustained.

The judgment will, therefore, be reversed and the cause remanded with directions to sustain the demurrer.

Reversed and remande$ with directions.


text:
    Adolph Wilke, Defendant in Error, v. W. H. Wilson et al., Plaintiffs in Error.
    Gen. No. 17,840.
    1. Mandamus—quasi judicial tribunals. Courts will by mandamus compel quasi judicial tribunals n to act where it becomes their duty to act, but not in a particular manner, nor will they review decisions of such bodies on merits where these are made final by the Acts constituting them.
    2. Pensions—board of trustees. A petition for mandamus to compel the board of trustees of a firemen’s pension fund to enroll petitioner as a beneficiary, which fails to aver facts showing that the board exceeded its powers or improperly refused his application, is insufficient.
    3. Pensions—firemen’s pension fund. The decision of the bo'ard of trustees of a firemen’s pension fund on an application is made final by statute and is not subject to review except by the board.
    4. Mandamus—conclusions. The averment in a petition for a writ of mandamus that petitioner “was entitled” to a certain pension is a mere conclusion.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed January 14, 1913.
    Rehearing denied January 28, 1913.

      William H. Sexton, for plaintiffs in error; Joseph F. Grossman, of counsel.
    William A. Doyle, for defendant in error; Joseph J. Thompson, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Defendant in error, Wilke, filed a petition for mandamus April 21, 1909, to compel the board of trustees of the firemen’s pension fund of the City of Chicago forthwith to enroll his name as one of the beneficiaries thereof, and to order payment to him out of said fund of $37.50 monthly so long as he shall live. Respondents (plaintiffs in error) elected to stand by their general demurrer to said petition, and error is assigned to the order overruling said demurrer and granting the writ prayed for.

While the facts set forth in the petition are somewhat different from those in similar petitions in the Calder and Benner cases ante, pp. 313, 317, held to be insufficient, yet it is defective in the same fatal particular, in that it fails to set forth any facts showing that the board of trustees of the firemen’s pension fund exceeded its authority in refusing petitioner’s application for a pension. What we said in those cases need not be repeated here. Said board’s decision upon such application is made final by statute, and is not subject to review except by the board. Hurd’s R. S. (Ed. 1911), chap. 24, par. 405; Eddy v. People, 218 Ill. 611. It clearly is not the office of a proceeding for mandamus to review decisions of quasi judicial tribunals on the merits of matters with respect to which these decisions are made final. The extent to which the power of the court can be exercised by mandamus is to compel such tribunal to act where it becomes its duty to act, but not in a particular manner. People v. Webb, 256 Ill. 364.

The only averment in. Wilke’s petition with regard to what was before the board for its consideration is, that he had at various times made application to be placed on the pension roll, “showing that at the dime of his retirement his salary was seventy-five dollars per month, and that he was entitled to a pension of $37.50 per month.” The averment that he was entitled to such pension, of course, is a conclusion. His petition contains no averments (with respect to the action of the board from which it could be determined that it exceeded its powers, or that it did not properly refuse his application, even if its action in that respect could be reviewed in a proper proceeding.

Because of the failure of the petition to show that the board had exceeded its powers in refusing petitioner’s application, the demurrer should have been sustained. Its judgment, therefore, will be reversed and the cause remanded with directions to sustain the demurrer.

Reversed and remanded with directions.


author: Mr. Justice F. A. Smith

text:
    Hollingshead & Blei Company, Defendant in Error, v. V. J. Blow et al., Plaintiffs in Error.
    Gen. No. 17,777.
    1. Attachment—evidence. In attachment for the value of certain property, held, that title was in plaintiff when possession thereof was wrongfully taken and a sale made to defendants, and that defendants had notice of plaintiff’s title.
    2. Attachment—evidence. In attachment to recover the value of property alleged to belong to plaintiff, it is not error to admit the bond signed by plaintiff and a member of the firm of defendants, which was given to-secure payment for such property to a trustee in bankruptcy at the sale thereof to plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    Boyle, Mott & Haight, for plaintiffs in error.

      Abler & Lederer, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An attachment suit was brought by defendant in error, Hollingshead & Blei Company, against plaintiffs in error, a copartnership under the name of Hiram Blow & Company, to recover the value of 8,905 staves which plaintiffs in error admitted they received, but which they claim were sold to them by H. W. Lowder, and that they did not belong to defendant in error. Plaintiffs in error gave a forthcoming bond in the action and the attachment issue was admitted.

There is no contention in the record that the plaintiffs in error did not receive the staves or that they paid for them to defendant in error. The case was tried by the court without a jury, and the issue of fact submitted to the court was whether the staves in question were the property of defendant in error.

The evidence without contradiction was that the Greenup Cooperage Company bought from H. W. Lowder, the same man who shipped the staves involved in this suit to plaintiffs in error, about 35,000 staves located on the lands of Allen Stegel in Elliott County, Kentucky, and that the title to the same passed to the Greenup Cooperage Company. It also appears that prior to the date of the bankruptcy of the Greenup Cooperage Company, and prior to the alleged sale by H. W. Lowder of the staves in question to plaintiffs in error, one Wilbur Chaffen, in the employ of the Greenup Cooperage Company, went to the lands of Allen Stegel where the 35,000 staves belonging to the Greenup Cooperage Company were located. Chaffen counted the staves in question. H. W. Lowder was present and pointed out the staves, and said to Chaffen that he had sold all the staves on the lands of Stegel to the Greenup Cooperage Company. It further appears that 8,905 of the staves that were counted out from those upon the lands in question by Chaffen and Lowder were taken to Jacob Switch for the Greenup Cooperage Company, and that these were the staves that were subsequently sold by the trustee of the Greenup Cooperage Company to defendant in error. The evidence shows where these staves were located and that they were the same staves that Chaff en had hauled to Jacob Switch for the Cooperage Company. The evidence further shows that the trustee in bankruptcy of the Cooperage Company sold the staves and that Chaffen bought them at the trustee’s sale for defendant in error, and that the witness Stegel took possession of the staves at Jacob Switch for defendant in error. The evidence also shows that after the sale in question and after Stegel had taken possession for the defendant in error, the staves were loaded at the order of Lowder and shipped and billed to plaintiffs in error.

In our opinion, the clear preponderance of the evidence in the record is in favor of the defendant in error, and that the title to the staves in question was in defendant in error at the time the staves were wrongfully taken possession of by Lowder and shipped to plaintiffs in error. We think that plaintiffs in error had notice of the title of defendant in error when they purchased the property of Lowder. This is shown among other things by the fact that V. J. Blow, one of the plaintiffs in error and the senior member of the firm, signed the bond of the defendant in error to the trustee in bankruptcy securing to the trustee the purchase money of the staves sold by him. This bond was executed at the time of the sale and at the time that the defendant in error took possession of the staves in question. In our opinion, based upon a study of the evidence, the title of defendant in error to the staves is clearly shown, and that the plaintiffs in error were informed of that title before they purchased the staves of Lowder, and were, therefore, not innocent purchasers for value.

In our opinion the court did not err in admitting the bond signed by defendant in error and Mr. Blow of the firm of the plaintiffs in error given to the trustee in bankruptcy at the sale to secure payment for the staves. We think justice has been done in the case by the finding and judgment of the trial court. The judgment is affirmed.

Affirmed.


text:
    Heinrich Ohlwein, Administrator, Defendant in Error, v. W. Irving Osborne et al., Plaintiffs in Error.
    Gen. No. 17,798.
    1. Contributory negligence—instructions. Where there is serious doubt whether plaintiff’s intestate, who was injured when one of defendant’s cars collided with his wagon, was not guilty of contributory negligence, and none of the instructions attempt to apply the law to the evidence, it is error to refuse an instruction that if from the evidence the jury belieye that ordinary care required deceased to stop and look and listen to ascertain whether a car was approaching the crossing so as to make it unsafe to drive thereon, and deceased failed to do so, and that if he had he would have discovered the approach of said car in time to have avoided the injury, then plaintiff cannot recover.
    2. Street railroads—instructions. Where plaintiff’s intestate was injured when one of defendant’s cars collided with his wagon, and there is serious doubt whether intestate was not guilty of contributory negligence, and none of the instructions attempt to apply the law to the evidence, it is error to refuse an instruction that if the jury believe from the evidence that just before driving on defendant’s track deceased heard the crossing bell or saw the reflection of the car headlight, or would have heard such bell or seen said reflection had he been exercising ordinary care, but drove on the track without stopping, then defendant should be found not guilty.
    Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed January 14, 1913.
    Tenney, Coffeen, Harding & Sherman, for plaintiffs in error.

      Walter A. Brendecke, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment entered February 25,1911, in the Superior Court of Cook County, in favor of the defendant in error, Heinrich Ohlwein, administrator, and against the plaintiffs in error, W. Irving Osborne, D. B. Hanna and George G. Moore, as receivers of the Chicago & Milwaukee Electric Bailroad Company for the death of Ditmar Ohlwein.

The defendant in error filed a motion in this cause December 10, 1912, to strike the supplemental record theretofore filed by the plaintiffs in error, purporting to amend the original bill of exceptions, from the files, and that the defendant in error have leave to file a supplemental record showing his exceptions to the order amending the original bill of exceptions. Hpon consideration, the motion to strike the supplemental record amending the original bill of exceptions from the files is denied, and the defendant in error is given leave to file a supplemental record showing his exceptions’ to the order.

The declaration contains one count only, and the negligence averred is that the servants of defendants, plaintiffs in error, were operating an electric car across Elm Place and so carelessly, negligently and improperly drove, controlled, operated, managed and ran said par that by reason of such negligence the car struck the milk wagon in which Ditmar Ohlwein was driving with great force and crushed it and injured and killed Ohlwein.

The principal grounds urged for a reversal of the judgment are, first, that the deceased, Ditmar Ohlwein, was guilty of contributory negligence, and, second, that the court erred in refusing instructions offered by defendants, plaintiffs in error.

The evidence shows that the crossing where the accident occurred was at the intersection of Elm Place in Highland Park and the tracks of the Chicago & Milwaukee Electric Railroad Company. The defendant in error’s intestate was driving east; the car was going south. The tracks at this point run north and south. Elm Place runs east and west. Immediately west of the tracks and north of Elm Place is a power house belonging to the North Shore Electric Company about 130 feet long on its east face and forty-six feet wide on its south face. The east' face of the power house is a little over eight feet from the west rail of the tracks of the Electric Railroad Company. Immediately west of the power house is the right of way and tracks of the Chicago & Northwestern Railroad. Immediately west of the Northwestern right of way is First Street which runs parallel with the railroad track.

At about 6:16 a. m. on the morning of December 18, 1908, Ohlwein was driving east, on Elm Place toward the crossing of the Chicago & Milwaukee Electric Railroad tracks. It was before daylight, cold, very dark and quiet. He was driving an ordinary covered milk wagon with sliding doors on both sides and a window in front. The doors on the sides were closed.. The doors had glass in the top half. At this time in the morning there were no lights at the crossing-. Ohlwein was driving at a slow walk, and the evidence tends to show that he continued at the same rate toward the tracks and upon them. Just as the wagon got squarely on the tracks, it was struck by a southbound car on the west track of the defendants’ railroad. Ohlwein made no attempt to avoid the accident, either by stopping, looking out or hurrying. Hp to the time of the collision the lines were hanging loosely out of the front of the wagon and below the shafts of the wagon. At the time of the accident, Ohlwein was about thirty years old, physically sound and healthy, and had good sight and hearing.

The evidence further tends to show that a person driving a wagon east on Elm Place had an opportunity to see a lighted car approaching from the north when on the road of the Chicago & Milwaukee Electric Railway between First Street and the Northwestern Railroad tracks. It further appears in evidence that there was an automatic safety device, consisting of a red light, suspended over the center of Elm Place and, beside the track at the north side of Elm Place was an electric bell with two gongs about ten and eleven inches in diameter. The light and gongs were operated by electricity, and when a car reached a point about two hundred feet north of Elm Place, by a device called a “cut-in” mechanism, the light was lighted and the gongs started to ring.

The evidence tends to show that the headlight of the car was burning, and that the motorman blew a long blast of his whistle of several seconds’ duration and rang his foot-gong when about two hundred or three hundred feet north of the crossing.

The evidence as to the speed of the car was conflicting. Two witnesses for defendant in error gave their opinions that the car was going at the rate of thirty-five miles per hour. The motorman and conductor on the car testified it was going at about twelve miles per hour.

It is unnecessary for us to state further the evidence in view of our decision to reverse the judgment and remand the case solely for errors of the trial court in refusing instructions requested by the plaintiffs in error.

The evidence shows that the right of plaintiff to recover, because of contributory negligence or the failure to exercise due care on the part of the plaintiff, is involved in very serious doubt. For that reason the jury should have been accurately and fully instructed upon the question of contributory negligence. No instructions were .requested by the defendant in error. A few instructions were given at the request of plaintiffs in error stating the general rule of law as to ordinary care applicable to the plaintiff’s decedent while approaching the crossing and in crossing the railroad tracks, bnt none of them attempted to apply the law of the evidence before the jury, or in any way or to any extent covered the grounds of the refused instructions hereinafter set forth.

Plaintiffs in error, defendants below, offered the following instruction upon the question of contributory negligence, which the court refused. The instruction is as follows:

“If the jury believe from the evidence that under all the facts and circumstances surrounding said Ohlwein shown by the evidence when he was driving along the said highway mentioned by the witnesses, approaching in near proximity to the crossing of said highway and said railroad, ordinary care and caution required that he should stop and look and listen to ascertain whether any car was approaching said crossing on said railroad within such distance as to make it dangerous or unsafe to drive upon the said railroad at such crossing, then it was the duty of the said Ditmar Ohlwein to stop, look and listen before driving upon the said railroad at said crossing; and if the jury believe from the evidence that the said Ditmar Ohlwein neglected or failed to do so, and that if he had so stopped, looked and listened, he would have discovered or ascertained the approach of said car in time sufficient to have avoided the injury, then the plaintiff cannot recover in this case.”

This instruction was approved by this court in Weber v. Chicago, B. & Q. R. Co., 142 Ill. App. 550. In our opinion it was error to refuse the instruction. Chicago City R. Co. v. O’Donnell, 208 Ill. 267; Fowler v. Chicago & E. I. R. Co., 234 Ill. 619.

The court erroneously refused to give to the jury the following instruction requested by plaintiffs in error:

“The court instructs the jury that if you believe from the evidence that just before driving upon the' defendant’s track the deceased heard the electric bell at the crossing in question or saw the reflection of the headlight of defendant’s car in the street ahead or would have heard said bell or seen the reflection of said light had he been in the exercise of ordinary care and nevertheless drove on to the track without stopping, then you should find the defendant not guilty.”

The evidence tends to show that at the time of the accident the headlight on the car was burning; it was a very dark morning and the reflection from this headlight must have been very conspicuous as the car passed from the curve on the straight stretch of track immediately north of Elm Place and approached the crossing. If the deceased was exercising ordinary care and looking ahead it would seem that he would have observed the reflection of the headlight. At least one or the other of these instructions should have been given.

For errors in refusing these instructions the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Elizabeth Humason, Administratrix, Appellee, v. Michigan Central Railroad Company et al., on appeal of Michigan Central Railroad Company, Appellant.
    Gen. No. 17,830.
    1. Master and servant—questions for jury. In an action for the death of a railway employee struck by defendant’s engine, where there is evidence which creates a presumption that deceased did not carelessly expose himself to danger, the question as to whether he exercised ordinary care for his own safety is for the jury.
    2. Railroads—duty of railroad to employees crossing tracks. Where a railroad company operates its locomotives and trains on another company’s tracks, there is a duty to keep them under such control that they may be stopped in time to prevent injury to employees of the company owning the tracks who are in the habit of crossing at a recognized passageway.

      3. Torts—res adjudícala. In an action for the death of a railway employee struck by an engine, a verdict of not guilty against one of two defendants who used the tracks jointly does not preclude a recovery against the other where they are not jointly negligent.
    4. Railroads—where declaration states cause of action. Where a declaration avers that a railway company using tracks jointly with defendant had provided a certain place for deceased, an employee, to cross, which was known to defendant or in the exercise of reasonable care should have been known, and that defendant negligently propelled an engine upon said tracks over the place provided for deceased to cross without giving him reasonable and necessary warning, by reason whereof deceased in the exercise of reasonable care for hisi own safety was struck and killed, a cause of action is stated.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    Modified and refiled and rehearing denied January 31, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; West & Eckhart, Ralph M. Shaw and John C. Slade, of counsel.
    Charles J. Trainor, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This was an action in the Circuit Court of Cook County against the Michigan Central Railroad Company and the Illinois Central Railroad Company to recover damages for the death of Edwin A. Humason, an employee of the Illinois Central at its Twelfth Street station in Chicago. At the close of the plaintiff’s case, the jury, under an instruction to that effect, found the Illinois Central Railroad Company not guilty. The question of appellant’s negligence was submitted to the jury and a verdict of $10,000 returned. Judgment was entered on the verdict.

The original declaration contained six counts. After the verdict finding the Illinois Central not guilty was entered, the first, second, third and fifth counts were withdrawn upon motion of the plaintiff’s counsel, and the case against appellant was submitted to the jury upon the fourth and sixth counts only.

The fourth count averred that the defendants were using jointly certain tracks in the City of Chicago, and negligently and carelessly propelled upon and along said tracks a locomotive engine without a headlight thereon; that Humason was in the employ of the Illinois Central Railroad Company and in the discharge of his duties had to cross the tracks over which said engine was being propelled; that in so doing he was exercising reasonable care for his own safety, but because of the negligence of the defendant was struck by the locomotive engine and killed.

The sixth count alleged that the Illinois Central Railroad Company had provided for Humason a certain place to cross the tracks which was then and there known to the said Michigan Central Railroad Company, or in the exercise of reasonable care should have been known; that the Michigan Central Railroad Company carelessly and negligently propelled a certain locomotive engine upon and along said track and over said place so provided by said Illinois Central Railroad Company for Humason to cross said tracks without giving him reasonable and necessary warning of the approach thereof, by reason whereof, Humason, while in the exercise of reasonable care for his own safety, was struck and killed.

Both defendants pleaded the general issue, and appellant also filed a special plea denying ownership, operation or control of the tracks and right of way.

The evidence shows that Humason had been assistant station master for the Illinois Central Railroad Company for eight years and had worked for the same company in various capacities for six or seven years before that. He had his office with the station master, which was at the north end of the Twelfth Street passenger station of the Illinois Central, between the suburban and one of the main tracks of the road.

Beginning at a point opposite the office and east of it, an inclined elevation led south to the tracks of the St. Charles Air Line. This incline carried two tracks, the east track being for northbound and the west track for southbound traffic. At Thirteenth Street the incline reached a height of nine or ten feet, and a flight of wooden steps had been built on each side of the elevated incline by the Illinois Central for the use of its employees who had to cross the elevation in going from one part of the yard to the other. The stairs merely enabled the employees to get to the top of the elevation on one side and descend on the other. There was no walk of any kind across the two sets of tracks. From this point the elevation continued south to Sixteenth Street, about three-fourths of a mile.

It appears that the work of making up trains was done on the east side of the elevated tracks. Humason as assistant station master had charge of the making up of these trains, and from morning to night was walking around the numerous tracks in the yard and had been doing so for years. In going from his office to the east yard, where trains were made up, he had to cross this incline.

Appellant made a written motion for a directed verdict at the close of plaintiff’s case, and renewed the motion after plaintiff’s counsel had withdrawn the first, second, third and fifth counts of the declaration. It is urged as a ground of reversal that the record fails to show whether Humason’s death was caused by the engines of appellant or by some other of the numerous engines and trains operated over the tracks in question, or in fact that he was killed by a train at all. Without reviewing the evidence in detail, but after careful consideration of it, we have reached the conclusion that the testimony shows with sufficient clearness that Humason was killed by the locomotive engines of appellant which left the roundhouse at 5:10 p. m. and were seen standing just north of the body of the deceased at 5:30 p. m., with the engineers on the ground by the side of the body of the deceased. Shreds of clothing of the deceased were found on the east drive wheel of the foremost engine. The mangled body of the deceased was lying on the east rail of the east track behind the locomotive. These, with other facts and circumstances shown in the evidence, we think form a sufficient basis for the finding of the jury that the deceased met his death as a result of being run over by appellant’s locomotives. No evidence was offered by appellant. The evidence on behalf of the plaintiff stands uncontradicted.

It is next urged that the evidence conclusively shows that Humason could not have been struck and killed by appellant’s engine and at the same time have been in the exercise of ordinary care for his own safety. The record contains evidence of several witnesses to the effect that he was a careful and prudent man, a man of good habits and character, and that he was fond of his family,—and these facts create a presumption that he did not carelessly expose himself to danger of injury or death. He was a sober man, and engaged in the performance of his duties in the regular way on the afternoon of his death and up to a short time before he was killed. The locomotives came down the incline and over the crossing. It is apparent that Humason came up the steps leading to the east side of the incline, with his back toward the locomotives, and when he was at the top of the steps he was within a foot or two of the track on which his body was found. There is evidence that there was considerable noise produced by freight engines at work directly opposite the steps to the" east, and that there were three locomotives attached to trains in the train shed throwing off steam and smoke to the west of the steps, and that local trains passed to the east of the steps every few minutes and also local trains passed to the west of the steps every five minutes, so that at the crossing there was considerable noise which tended to distract the attention of the deceased from any noise produced by the locomotives of appellant as they moved down the incline. It was a question for the jury whether under all the circumstances and conditions existing at the time of the accident the deceased was in the exercise of ordinary care for his own safety, and we do not find in the record substantial reasons for differing from the conclusion of the jury as to the exercise of care by the deceased for his own safety.

It is next urged that the record fails to show any negligence on the part of appellant. In our opinion, appellant and its employees were chargeable with notice of the use made of the elevated tracks by the employees of the Illinois Central Bailroad Company, and it was the duty of appellant to so operate and handle its locomotives and trains, at this recognized passageway, under such control that if an employee of the Illinois Central was crossing the tracks at this point, the locomotives or trains could be stopped in time to prevent injury to persons rightfully crossing there. The evidence, in our opinion, tends to show that Humason was struck at this crossing and that his body and clothing were carried forward by the locomotive some distance north of the crossing. We think if the servants of appellant had been on the lookout for persons crossing at this point, they could have seen the deceased before he stepped on the track, and could have warned him of their approach by the sound of a whistle. The negligence on the part of appellant was a fair question for the jury upon the evidence, and we see no reason to disturb the verdict upon that ground.

The contention is made that the plaintiff's declaration averred that the defendant, Illinois Central Bail-road Company, was one of the joint owners of the tracks and right of way upon which the accident occurred, and that the judgment finding that that company was not guilty was conclusive against the plaintiff’s right to recover from appellant, and in support of this contention appellant’s counsel cite Anderson v. West Chicago St. R. Co., 200 Ill. 329; Pennsylvania Co. v. Chapman, 220 Ill. 428; Chicago v. Union Traction Co. v. Jerka, 227 Ill. 95.

The first, second and third counts of the declaration aver joint ownership and- user of the tracks upon which the accident occurred. The fourth, fifth and sixth counts averred that the defendants “were using jointly certain tracks in the City of Chicago.” Upon these averments and the proofs the trial court instructed the jury at the close of plaintiff’s case to find the defendant Illinois Central Railroad Company not guilty. The jury returned a verdict accordingly as to the defendant Illinois Central Railroad Company, and a judgment in favor of that company was entered thereon.

We think that upon the averments of the declaration there was no relation of principal and agent as between the defendants, alleged or shown, and no such question was involved unless the joint owners were jointly • negligent. This case does not come within the doctrine of the Anderson case, supra, because there is no allegation of the relationship of lessor and lessee or any similar relation upon which such liability can be predicated.

Aside from that consideration there could not have been any claim of estoppel by verdict interposed by appellant in favor of the Michigan Central. The evidence does not show that defendants were joint tort feasors. The verdicts and judgments were together the disposition of the case against both defendants. So far as appellant is concerned, if this mode of disposing of the case was irregular, it is an irregularity which works no prejudice to appellant. Postal Tel. Cable Co. v. Likes, 225 Ill. 249, 257.

As a further ground for reversal it is contended that neither the fourth nor the sixth count of the declaration stated a cause of action, and that appellant’s motion in arrest of judgment should have been allowed. In our opinion the sixth count stated a cause of action against appellant. As to that count, the motion in arrest was properly overruled,

The judgment is affirmed.

Affirmed,


text:
    A. G. Goldsmith, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 17,854.
    1. Railroads—imputed negligence. In an action for the destruction of personal property struck by defendant’s engine, the negligence of a teamster, an independent contractor engaged in hauling the property, is not chargeable against plaintiff with whom he is under contract.
    2. Railroads—negligence at crossings. The question of whether defendant railroad was guilty of negligence in crossing a country road at a high rate of speed without giving an effective warning is for the jury.
    3. Railroads—negligence. In an action for personal property struck and destroyed by defendant’s engine, the mere performance of all the statutory duties does not necessarily relieve defendant of negligence.
    4. Negligence—concurrent. Where an injury is the result of the negligence of defendant and a third person, the plaintiff may recover if the negligence of the defendant is an efficient cause of the injury.
    5. Railroads—concurrent negligence. Where plaintiff’s . goods, while being hauled by an independent contractor, are destroyed by defendant’s engine, and the contractor and defendant are both negligent, yet defendant’s negligence contributed directly to the accident, plaintiff is entitled to recover.
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    O. W. Dynes and C. S. Jefferson, for appellant.
    Moses, Rosenthal & Kennedy, for appellee; Walter Bachrach and E. Dorsey Wallace, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

A. G. Goldsmith, appellee, brought an action against the Chicago, Milwaukee & St. Paul Railway Company, appellant, to recover damages for the destruction of certain personal property. The trial resulted in a verdict and judgment for appellee, plaintiff, in the sum of $750.

Appellee had been living in Crystal Lake, Illinois, and was desirous of moving his household furniture and effects from that place to Wheaton. For this purpose he engaged Hiram B. Rice, the owner of a team of horses and wagon, to haul his goods for twenty-five dollars. On the 29th day of September, 1908, Rice loaded his wagon with the goods and effects of appellee and left Crystal Lake about five o’clock p. m. on that day for Wheaton. While Rice was crossing the tracks of appellant at a point where the highway, known as Wilcox Road, crosses the tracks, he together with his horses, wagon and contents thereof, was struck by one of appellant’s trains, and Rice and the horses were killed and the wagon and its contents were demolished. Wilcox Road at the crossing approaches appellant’s railroad diagonally, and before reaching the crossing runs south of the tracks in a direction nearly parallel to the railroad. In the angle between the highway and the railroad there was at the time of the accident a field of growing corn about twelve feet in height. When the accident occurred the train in question was approaching Chicago from the west and was running at about forty-five miles per hour. Immediately before the crossing the railroad tracks curved sharply to the north, the curve extending to within twenty or twenty-five feet of the crossing. The accident occurred at about nine o ’clock, or a few minutes thereafter, in the evening. The night was still, quite dark and no moonlight. There were neither gates, flagmen, signals nor lights at the crossing for the purpose of warning approaching travelers. The engineer and fireman, who were in charge of the locomotive and train in question, had previously on numerous other occasions passed over the same crossing when conditions were the same as they were at the time of the accident. They knew of the presence of the curve west of the highway at the point of the crossing and knew of the presence of the field of standing corn, and of the absence of gates, flagmen, lights and warning signals at the crossing. While rounding the curve the position of the engineer was on the outer side of the curve, the opposite side from that along which Eice had approached, and although the engineer was looking out of the window he could not, because of Ms position, see the crossing. The curve of the track was such as to prevent Mm from having any view of the crossing until he was within a few feet of it. Eighty rods west of the crossing and in the direction from which the train was approacMng, there was a wMstling post and when the locomotive passed tMs point the fireman was engaged in shoveling coal into the fire box of the locomotive and so remained until up to within a few minutes of the happening of the accident. While shoveling the coal he was forced to bend down so that it was impossible for him to see out of the window of the cab, Ms fire box being four feet below the level of the window. Immediately prior to the time the wagon was struck the fireman got up on the seat and had just attempted to put his head out of the window when he was struck by flying debris.

The negligence averred in the first count of the declaration is that the appellant by its servants so carelessly, negligently and improperly drove and managed the locomotive engine and train that by and through the negligence and improper conduct of the defendant, by its said servants, the locomotive and train then and there ran and struck with great force and violence upon and against the said horses and wagon, and the goods and chattels and other property then and there belonging to the plaintiff, whereby the property was injured and destroyed.

The second count charges negligence in that the appellant at a public highway crossing appellant’s railroad had no bell of at least thirty pounds weight, or steam whistle placed on said locomotive engine, rung or whistled by the engineer or fireman thereof at the distance of at least eighty rods from the said crossing, and kept ringing and whistling until the said crossing was reached by the said locomotive engine.

It is urged in behalf of appellant that the proximate cause of the accident was the negligence of the wagon driver and not the negligence of the defendant. This point may be considered in connection with the further contention of appellant that the defendant was not guilty of the negligence charged in the plaintiff’s declaration. We have read and examined the evidence in the case, and while it does not appear that Bice was free from negligence in attempting to cross the tracks under all the circumstances, it does appear beyond controversy, we think, that Bice was an independent-contractor and had undertaken as such to transport the goods of appellee from Crystal Lake to Wheaton in his own way for a specified sum of money; and even though the evidence may tend to show that Bice was guilty of negligence and that his negligence together with that of appellant combined to bring about the accident, this would not affect appellee’s right of action against appellant. The negligence of an independent contractor is not chargeable against the person with whom he contracts.

As to the negligence of the appellant or its servants, we think the evidence shows that the train was running at a high rate of speed over the crossing of a country road where, because of growing corn and bushes, the view of the road was obstructed. The testimony also tends to show that no whistle was blown or bell rung far enough away from the crossing to be effective as a warning, although there is testimony in the case by the engineer and fireman that the whistle was blown immediately before reaching the crossing, when it was too late to be availing. Under these circumstances it was, in our opinion, a question for the jury to determine whether appellant was guilty of negligence. The mere performance of all the statutory duties does not necessarily relieve the appellant of negligence. Indianapolis & St. L. R. Co. v. Stables, 62 Ill. 313; Continental Improvement Co. v. Stead, 95 U. S. 161; Rockford, R. I. & St. L. R. Co. v. Hillmer, 72 Ill. 235; Chicago, B. & Q. R. Co. v. Lee, 87 Ill. 454.

Appellant had no right to operate its train at a high rate of speed under conditions which made that a negligent act so far as persons crossing the tracks are concerned. And as to whether the circumstances are such as to cause the speed at which a train is driven to amount to negligence is a question for the jury under all the evidence, and their verdict will not be set aside upon appeal if there is sufficient credible evidence to support it.

As to the question urged in argument on behalf of appellant that the negligence of the driver, Rice, in driving upon the railroad crossing in front of the approaching train was the proximate cause of the accident and, therefore, that the plaintiff cannot recover because of Rice’s negligence,—we are of the opinion that where an injury is the result of the negligence of the defendant and that of a third person the plaintiff may recover if the negligence of the defendant was an efficient cause of the injury. Pullman Palace Oar Co. v. Laack, 143 Ill. 242, 261. In this case the negligence of the defendant, appellant, and Rice, which resulted in the injury to the plaintiff’s goods and chattels was the negligence of two independent persons, and the negligence of the defendant was an efficient cause- of the injury. Rice was not the servant of appellee; he was an independent contractor, as we have held above, and appellee was not chargeable with his negligence. If the preponderance of the evidence shows, as we think it does, that the servants of the defendant were negligent and that their negligence directly contributed to the accident, the plaintiff, appellee, would be entitled to recover against appellant.

In our opinion, the remarks of counsel for appellee, made in the presence of the jury, do not constitute reversible error. We think the court did not err in refusing to direct a verdict for the defendant, appellant. There was no contention in the pleadings or on the trial that the defendant was guilty of negligence because the speed of forty-five miles an hour was prohibited by law; hence, the refusal of an instruction tendered to the effect that the jury was not at liberty to find a verdict against the defendant on any theory that a speed of forty-five miles an hour was prohibited by law, was proper. In our opinion, the court did not err in its rulings on evidence; nor did it err in overruling defendant’s motion in arrest of judgment.

The judgment is affirmed.

Affirmed.