author: Mr. Presiding Justice Baume

text:
    Isador Judejko, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,976.
    1. Instructions — what not considered upon motion for peremptory. In considering the question whether or not a peremptory instruction should he given, it is not within the province of the court to weigh the evidence.
    2. Evidence — as to what expert testimony competent. It is proper to permit a duly qualified expert to state his individual conclusions or ideas of what a sciagraph shows.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Duptjt, Judge, presiding. Heard in tke Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 15, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    James J. CoNDON and WatsoN J. Ferry, for appellant.
    JOHNSON & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment for $4,000 entered against appellant in the Superior Court upon the verdict of a jury, in an action in case to recover damages for personal injuries alleged to have been sustained by appellee through the negligence of appellant. The declaration contains two counts, the first of which charges that while appellee was a passenger on one of appellant’s cars, said car stopped at the intersection of Archer avenue and Clark street, at a usual and customary place, for passengers to alight; and that while appellee in the exercise of due care was attempting to alight from said car, appellant negligently started, moved and jerked said car suddenly, violently, and without any warning or notice, whereby appellee was thrown therefrom and injured. The second count is substantially like the first, save that it omits the allegation that the car had stopped before appellee attempted to alight therefrom.

The grounds urged for a reversal of the judgment are: That the verdict is not justified by the evidence; that the verdict is against the manifest weight of the evidence; that the trial court erred in admitting improper evidence; and the verdict is excessive.

Under the first assignment of error appellant insists that a- peremptory instruction should have been given to the jury at the close of the evidence for ap-pellee, and proceeds to support such insistence by an argument ■which, necessarily involves the weighing of such evidence and determining its probability or improbability. In considering the question whether or not the peremptory instruction tendered by appellant should have been given, it is not within the province of this court, as it was not within the province of the trial court, to weigh the evidence. The evidence offered by appellee discloses a state of facts, which required the submission of the case to the jury, and the giving of the peremptory instruction tendered by appellant would have been flagrant error.

Sometime between 9 :30 and 11:30 o ’clock, on the night of August 8, 1907, appellee and a number of his co-laborers left their boarding house on Illinois court, for the purpose of going to their working place in the Jackson tunnel, near State street, where they were supposed to commence work at midnight. They boarded one of appellant’s cars at Thirty-second and Halsted streets, rode north in Halsted street to Archer avenue and thence in said avenue to a point near its intersection with Clark street, where they intended to change to another of appellant’s cars for the purpose of being carried to State street. Appellee and his fellow laborers are Lithuanians, unable to speak the English language intelligibly, and all testified through an interpreter to the facts and circumstances relating to the accident, and the manner of its happening. There is no direct countervailing evidence in the record upon that subject. The testimony of these witnesses for ap-pellee is not wholly consistent in some minor particulars, but in the main it is readily reconcilable, and bears the impress of genuineness, even upon the printed page.

Their testimony tends to show that upon the occasion in question the car, before it reached the switch on the west side of Clark street, stopped upon a slight incline, for the purpose of discharging and receiving passengers; that all of appellee’s companions alighted from the car in advance of him; that as appellee was in the act of alighting from the rear platform, his left hand grasping the rail, his right holding his lunch and his overalls, his left foot on the lower step, his right foot ah'ont to touch the ground, the car suddenly started forward with a jerk, and he fell to the ground, striking his left side. Some of the witnesses designate the incline, at the point where the car stopped, as a “hill,” and it is insisted that it is impossible that the ear could have been brought to a stop upon a hill. The word “hill” is the simplest form of expression in the language to designate an elevation, ascent, or incline, and its use by the witnesses for appellee is of no significance, in view of the fact that the evidence tends to show the cars of appellant customarily stopped at the place where the accident in question occurred, to enable passengers to transfer to other cars.

A careful consideration of the evidence impels us to the conclusion that the jury were not unwarranted in finding that appellant was guilty of the negligence alleged; that appellee was not guilty of negligence contributing to his injury; and that appellee sustained an injury as the proximate cause of appellant’s negligence.

The evidence bearing upon the extent of appellee’s injury is in hopeless conflict. It is claimed on behalf of appellee that his resultant injury consisted of an impacted fracture of the neck of his left femur, while appellant insists that the abnormal condition of ap-pellee’s left hip was induced by some undefined disease akin to tuberculosis, scrofula or syphilis, as evidenced by scars on appellee’s legs and back.

It appears from the evidence that immediately after the accident appellee was conveyed to his boarding house in a police patrol wagon; that he was there treated by a physician three or four times, such treatment consisting merely of prescriptions for medicine, procured at a drug store; that during the five days be remained in bis boarding bouse be suffered severe pain in bis left side, couldn’t stand, couldn’t lay or couldn’t sit;” that on August 13, 1907, be was taken to tbe County Hospital where be remained until October 15th following; that upon bis arrival at tbe hospital be was put to bed, a board was placed at bis side extending from bis arm to bis foot, his foot was bandaged and a board was placed across and under it, and two boards were placed beneath him; that be laid straight and still with tbe boards in tbe position indicated for six weeks; that tbe boards were then removed and be remained in bed altogether eight or ten weeks; that when be left tbe hospital be walked with crutches, and went to tbe bouse of a friend where be remained five months, during which time be was unable to work and suffered much pain; that thereafter be went to tbe County Institution at Dunning where be was an inmate at the time of tbe trial in February, 1909; that be then continued to suffer pain, could not walk without limping and was unable to perform any bard manual labor. Tbe foregoing statement is taken largely from tbe testimony of appellee, which not only stands un-contradicted in tbe respects mentioned, but is corroborated by tbe testimony of other witnesses in some essential particulars.

It is manifest from tbe testimony of tbe physician and surgeon, who bad general charge of appellee’s case when the latter was taken to tbe Cook County Hospital, that be bad no independent recollection of making a diagnosis of appellee’s injury, or of tbe treatment prescribed, and that both diagnosis and treatment were entrusted to an interne in tbe hospital, whose whereabouts at tbe time of tbe trial was unknown. One physician and surgeon called as an expert on behalf óf appellant testified that be examined appellee on January 3, 1908, and that in bis opinion appellee bad not suffered a fracture of tbe neck of bis left femur. Another witness of tbe same profession called on behalf of appellee testified that he examined appellee on January 17 and 18, 1909, and that, in his opinion, based on snch examination, appellee had suffered a fracture of the neck of his left femur. It is conceded that the treatment prescribed for appellee in the hospital was the proper treatment for immobilizing his limb, and that the limb should be immobilized in the proper treatment of a fracture, of the neck of the femur, but based upon the testimony of one expert witness that in the treatment of such a fracture the limb should be immobilized for eight weeks; and a weight should be attached to the foot, and the testimony of another expert witness that he would not use the method just as described by appellee in the fracture of a thigh, it is argued that it is improbable that appellee was treated for the injury he claims to have sustained. We are not impressed with the force of the argument. The difference between'the treatment actually prescribed for appellee, and the treatment suggested by the witnesses called by appellant is so slight, that it may readily be accounted for in the ordinary variation, due to individual judgment and discretion, as to the precise method of treatment to be adopted in a particular case.

Over the objection of appellant, two X-Ray scia-graphs of appellee’s hips, taken a year and five months subsequent to the accident, were admitted in evidence. It was shown that appellee had sustained no intervening injury or illness, and the integrity of the sciagraphs was clearly established. They , were properly admitted.

Two physicians called as expert witnesses by appel-lee were asked, in substance, to state if they knew what the sciagraph of appellee’s left hip indicated with reference to a fracture. The witnesses replied, in substance, that the sciagraph or picture showed there was a shortening of the neck of the femur, and there could be seen a thickening in the more dense part of the picture, which indicated a deposit of bone substance,— a formation of callus or new bone, — and that the cause of the condition shown would be a fracture. It is urged that this evidence was improperly admitted because it permitted the witnesses to state their individual conclusions or ideas of what the picture represented, or to state what the picture proved or tended to prove, thus invading the province of the jury.

The ordinary layman is unfamiliar with the structure in detail of the human anatomy, and with the appearance and normal relation to each other of the bones, muscles, etc., and is also unfamiliar with the method of operation of an X-Ray machine, and with the manifestation of the effects produced by it and the significance of the same. All these matters are, as yet, within the sphere of expert knowledge and opinion, and properly the subject of inquiry of expert witnesses. The evidence was properly admitted, and the record discloses that appellant’s expert witnesses were subjected to the like examination by its counsel.

The jury were not unwarranted in finding that appel-lee sustained the injuries claimed by him.

Under the proof the damages are not excessive. There is no error in the record and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Me. PeesidiNg Justice Baume

license: Public Domain

text:
    Antonia Starcke, Administratrix, Appellee, v. Plattduetsche Grot Gilde of the United States, Appellant.
    Gen. No. 15,988.
    Fraternal benefit societies — to whom certificate payable in absence of designation of beneficiary. In the absence of the designation of a beneficiary in a certificate and in the further absence of any proof as to the provisions of the constitution and by-laws of the society, such certificate is payable to tbe beneficiary or beneficiaries designated in tbe act providing for tbe organization of fraternal benefit societies. Held, in tbis case, that tbe right of action was in tbe widow of tbe member in her individual rather than in her capacity of administratrix.
    Assumpsit. Appeal from tbe Circuit Court of Cook county; the Host. Heney G. Ereeman, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1909.
    Reversed and remanded.
    Opinion filed November 15, 1911.
    FeaNic F. Aring, for appellant.
    James B. Ward, for appellee.
   Me. PeesidiNg Justice Baume

delivered tbe opinion of tbe court.

Tbis is a suit by Antonia Starcke, as administratrix of tbe estate of ber deceased bnsband, Albert Starcke, to recover tbe amount of a benefit certificate issued to said Albert Starcke, by tbe Plattduetscbe Grot Gilde of tbe United States of North America, a fraternal beneficiary society organized under tbe laws of Illinois. A trial by jury in tbe Circuit Court resulted in a verdict and judgment against tbe society for $583.33, and tbis appeal followed.

Tbe benefit certificate in question is in tbe German language, a correct translation of wbicb, it is agreed, is as follows:

“No. 23. Chicago, Ill.
Plattduetsche Grot-Gilde oe the United States oe North America.
Through my name underwritten I obligate myself, the Statutes of tbe Plattduetscbe Grot-Gilde of tbe United States of North America, and in like manner those of tbe Plattduetsche Lodges, to acknowledge, and in case I am received in tbe Plattduetscbe Lodge, Wachtel No. 13, and have made false statements, I herewith release all assurances on tbe part of the Plattduetscbe Lodges. Further I direct tbe Plattduet-sebe Grot-Gilde after my death to pay the sum of five hundred dollars coming to me to $500 .
Albert Stareke,
Members’ Signature.
The Plattduetsche Grot-Gilde of the United States of North America pledges itself to pay after the death of Albert Stareke Member of the Plattduetsche Lodge Wachtel No. 13, if such member shall be in good standing at his death, five hundred dollars to the above named heirs.
Henry G. Martens, Grot-Meister.
August Waldau, Grot-Schriewer.
Showing that Albert Stareke by the making of this certificate No. 23 was a member of P. G. Wachtel No. 13, in good standing.
(seal.)
Wilhelm Lehmann, Meister.
Jul. Dreyer, Schriewer.”

It will be observed that in the portion of the certificate preceding the member’s signature, there is a blank space evidently intended to be filled in with the name of the beneficiary, but which was omitted, presumably by inadvertence. Following the member’s signature appears the obligation of the society, to pay at his death “five hundred dollars to the above named heirs. ” In the absence of any proof in the record as to the provisions of the constitution and by-laws of the society, and considering the certificate alone, it must be' construed as naming no beneficiary, and as being payable to the beneficiary or beneficiaries designated in the act providing for the organization of such societies. The certificate bears no date, but there is some evidence in the record tending to show it was issued to the insured in 1888. By the Act of 1887, relating to fraternal beneficiary societies, it was provided' that such societies might be organized for the purpose of furnishing benefits, upon the death of a member, “to the widow, heirs, relatives, legal representatives, or the designated beneficiaries of such deceased member.” The Act of 1887 is controlling. Voigt v. Kersten, 164 Ill. 314.

Appellant insists that, as the insured failed to designate a beneficiary in the certificate, the same is void and no recovery can he had thereon. It is sufficient to say that the contrary has been held in Chicago Guaranty Fund Life Society v. Wheeler, 79 Ill. App. 241, and in Knights of Honor v. Menkhausen, 209 Ill. 277, and the cases there cited.

Appellee, however, in her capacity as administratrix of the estate of the insured, cannot recover upon the certificate. As the widow of the insured, she, in her individual capacity, is, under the Act of 1887, entitled to priority of right in the fund (Chicago Guaranty Fund Life Society v. Wheeler, supra,) and an action on the certificate must be maintained in her name. People v. Petrie, 191 Ill. 497; Knights of Honor v. Menkhausen, supra.

The cases cited by appellee, in which it was held that the right of action was zested in the personal representative of the insured, are clearly distinguishable from the case at bar. In Heubner v. Metropolitan Life Ins. Co., 146 Ill. App. 282, it was held that the right of action upon a policy payable to a person equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for her burial, was in the personal representative of the insured. In Marlitt Deutscher Frauen Verein v. Mueller, 140 Ill. App. 621, funeral benefits only were recoverable. In Mass. Mut. Life Ins. Co. v. Robinson, 98 Ill. 324, and U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305, the policies were expressly made payable to the “assured, his executors, administrators or assignees.”

In the case at bar, upon the record as made, the widow of the insured, and not the administratrix of his estate, is the proper party plaintiff.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice DitNcaN

text:
    Loretta R. McMechen, Appellee, v. Chicago, Burlington & Quincy Railway Company et al., Appellants.
    Gen. No. 15,940.
    1. Non-suit — when may he taleen. A plaintiff has the absolute right to a non-suit after his side of the case has been closed in a jury trial and a motion for a peremptory instruction has been made and argued and a decision announced that a motion will be sustained, provided the motion for a non-suit is made before the court actually gives the instruction and before the court has entered the order and judgment on his docket.
    2. Practice — amendment to section 70 of act construed. The intent of the legislature in amending section 70 of the Practice Act by inserting at the conclusion thereof the words, “or if the ease is tried before the court without a jury, before the case is submitted for final decision,” was to leave the rule as to non-suits exactly as it was originally in all trials wherein there was a jury but changed the rule in cases where trials were had before the court without a jury.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 15, 1911.
    Statement by the Court. This is an appeal by the Chicago, Burlington & Quincy Railway Company and The Pullman Company from an order of the Circuit Court and the judgment entered pursuant thereto permitting appellee to take a non-suit.
    Action was brought by appellee against appellants to recover for personal injuries. The trial was begun before the court and a jury. At the close of appellee’s evidence appellants moved for a peremptory instruction. The jury was excused, the motion was fully argued on both sides, and at the conclusion of the argument, the court announced that he would give the peremptory instruction. The jury were sent for, but before it returned to the box, counsel for appellee asked leave to take a non-suit. Appellants objected, the motion for non-suit was denied, and tlie jury returned a-verdict pursuant to the peremptory instruction of the court. Appellee moved for a new trial, and after full argument, the motion for a new trial was withdrawn and the court sustained appellee’s motion to set aside the verdict, and granted her leave to take a non-suit, and appellants excepted.
    William Buery, F. B. JohNstoNe and C. M. Dawes, for appellants.
    StedmaN, Soelke & Shutan, for appellee.
   Mr. Justice DitNcaN

delivered the opinion of the court.

The sole question presented to this court on this appeal is as to the right of a plaintiff to a non-suit after the plaintiff’s side of the case has been closed in a jury trial, and the motion for a peremptory instruction has been made and argued, and a decision has been announced by the court that the motion will be sustained, the motion for a non-suit having been made before the court actually gives the instruction, and before the court has entered the order and judgment on his docket. This question under the practice in this state is governed by statute. Under the statute before it was amended, as construed by our Supreme Court, in order to bar the plaintiff’s right to submit to a non-suit, the jury must have the whole of the case down to and including the instructions of the court. If for any reason the jury retired from the bar without having the whole of the case, the evidence, arguments and the law as announced in the court’s instructions, the plaintiff’s right to a voluntary non-suit was not taken away. This rule secured to a plaintiff not only the right of knowing the whole of the evidence in the case, but also of having the benefit of the arguments of opposite counsel, and the law of the case as given by the court, so that he might judiciously- determine whether or not to take a non-snit in a jury trial. In*a trial before the court without a jury, the Supreme Court held under the old statute that the plaintiff could take a non-suit after the court had announced its opinion and before a note thereof had been entered. The plaintiff was thus permitted in a trial before the court without a jury to have even the benefit of the court’s finding on questions of facts, in cases where such findings were necessary to a decision, before being required to determine whether or not he would submit to a non-suit. In all jury trials, therefore, prior to July, 1907, the plaintiff was entitled to take a non-suit, even in cases wherein motions for peremptory instructions were made, provided he elected to do so prior to the reading of the peremptory instruction to the jury. Berry v. Savage, 2 Scam. 261; Howe v. Harroun, 17 Ill. 494; Brown v. Lawler, 130 Ill. App. 540.

The old law and the amendment to the statute which appellant claims has changed the foregoing rules of law in jury trials, wherein the motion to direct a verdict is made, is found in section 70 of the Practice Act, which reads as follows: “Every person desirous of suffering a non-suit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.” The words of the statute quoted in italics is the amendment in full. The other words quoted from the present statute, and not in italics, are identical with the old statute except that the old act contained the additional words, “on trial,” just after the word, “non-suit,” which may be treated as mere surplusage. It has long been recognized under our practice in this state that it was not altogether fair in trials before the court without a jury, for the plaintiff to be allowed a complete trial and decision of his whole case, before he was required to make his election of whether or not he would take a non-suit. He could not obtain tbe verdict of tbe jury before making sucb election, but in a trial before tbe court without a jury it was possible to know tbe verdict or finding of tbe court, and bis bolding as to tbe law, before losing tbe right to take a non-suit. It was with some reluctance that tbe Supreme Court so decided in Howe v. Harroun, supra, but it was forced to either so decide or to take away tbe right of tbe plaintiff to know tbe court’s bolding as to tbe law, before electing to take a non-suit. Tbe Supreme Court left it to tbe legislature to correct this inconsistency in trials before courts, and tbe statute was evidently amended with that view. While our present Practice Act is a revision of all our laws on tbe subject, and tbe old act was entirely repealed by it, yet those portions that are re-enacted are- to be regarded as continuations and to receive tbe same construction as formerly, unless there is something added by way of amendment that is necessarily inconsistent with tbe old statute. Tbe general rule is that courts will follow tbe interpretation of re-enacted statutes which they have previously received. Tbe legislature is presumed to know the effect which sucb statutes originally bad, and by re-enactment to intend that they should again have the same effect. Sutherland on Statutory Construction, secs. 269, 271, 273 and 403 (2nd Edition).

As Ve view tbe present statute, the intent of tbe legislature, as therein expressed, was simply to provide for what tbe rule should be in trials before tbe court “without a jury,” and to leave tbe rule exactly as it was originally in all trials wherein there is a jury. In this case, there was a jury, and, therefore, in the strict sense and within tbe meaning of tbe statute, it did not become a trial before tbe court without a jury at any stage of tbe trial. True it is that, after tbe motion to direct a verdict, whether or not that motion should prevail is a question of law. It is always so. . But in a jury trial tbe plaintiff is entitled to know tbe law from the court before electing to take a non-suit. The court may or may not direct a verdict, and if he does not direct a verdict, the case is finished as a jury case in every sense of that term. The plaintiff, we think, is entitled to notice that there is no longer a jury in the case before he be forced to make his election, and that there is not within the meaning of this statute a “trial before the court without a jury” in any case where a jury is impaneled until after it has been completely discharged from the case, and the matter voluntarily submitted for the decision of the court. The judgment of the lower court is right, and it is, therefore, affirmed.

Affirmed.


author: Mb. Justice DuNcaN

text:
    Joseph H. View, Appellee, v. The Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 15,973.
    1. Contributory negligence — when person injured by falling into basement not guilty of. Held, that the plaintiff in this ease, who was injured while endeavoring to reach a toilet maintained by the defendant, was not guilty of contributory negligence, it appearing that the arrangement of doors was such that he might readily mistake the door leading into the basement for that leading into the toilef, and this notwithstanding that there was sufficient light to have enabled him to have avoided the injury if he had been anticipating danger.
    2. Contributory negligence — what does not render person guilty of. The law does not charge one with anticipating dangerous and negligent conditions, but a person may assume that others have done their duty to give proper warnings of hidden dangers.
    3. Negligence — what arrangement of doors constitutes. Held, under the evidence, that the arrangement of a door leading to a basement, in close proximity to another door leading to a toilet maintained by the defendant for the use of those properly upon its premises, was such, together with the fact that no proper designation of such doors had been made, as to render one unacquainted with the premises who is injured, by falling into a basement, entitled to recover.
    4. Negligence — obligation to guard stairways, etc. One who invites the public to come and patronize his business has no right to permit the existence of dangerous stairways, elevator shafts, or other dangerous openings, unless suitably guarded so that slight mistakes may not prove disastrous.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 15, 1911.
    Statement by the Court. This appeal is prosecuted by The 'Metropolitan "West Side Elevated Railway Company to reverse a judgment rendered against it in the Circuit Court of Cook county, in favor of appellee for $2,500 for personal injuries.
    About noon on the 8th day of August, 1904, appellee, as a passenger from one of appellant’s elevated trains, was passing oiit of appellant’s Canal street station, when he undertook to make use of the toilet room maintained by appellant on the ground floor of that station. The station itself was on the west side of Canal street and had a rear passageway, or entrance, twelve feet in length by six feet in width, leading from the waiting room to Clinton street, from the north side of which passageway a door opened into the toilet room. Immediately above the station there were four tracks and two platforms for the reception and discharge of passengers, each having roofs overhead. The toilet room in question was about three fee,t east of the west end of the passageway in question, but between the door to the toilet room and the west end of the passageway there was another door opening onto a steep stairway leading to the basement. The two doors were entirely similar in appearance, except that the toilet room door had the word “men” on it, and a door check or spring near its top, the knobs of the two doors being only about twelve inches apart. From the waiting room the passageway is entered through two swinging-doors, the npper panels of which are of clear glass each 19x33 inches. At the other end of the hallway two swinging doors, the npper panels of which are also of clear glass of the same dimensions, lead to the rear of the station. Above these ontside doors is a transom of clear glass 54x12 inches. These doors open upon an open area a hnndred feet or more wide, extending west clear throngh to Clinton street, free of obstructions to light except for the elevated railway structure overhead. Two incandescent lamps in the ceiling at about the center of the hallway give additional light. Appellee, who had used the toilet room a few times before the time in question, opened the basement door by mistake, and when he stepped inside fell into the basement and was severely and permanently injured.
    The declaration charged, in substance, that by reason of the similarity and the proximity of said door opening into said basement to said door opening into said toilet room, persons desiring to enter said toilet room were liable to mistake said door opening into said basement for the one opening into said toilet, and to fall into said basement; and that appellant was guilty of negligence in permitting said basement door to so remain unfastened and unlocked, and by reason thereof appellee was injured.
    AddisoN L. GardNer, for appellant; W. W. Gurley, of counsel.
    James C. McShaNe, for appellee.
   Mb. Justice DuNcaN

delivered the opinion of the court.

Only two grounds are urged by appellant in its brief ánd argument for the reversal of this judgment, (1) that appellee was guilty of contributory negligence, and (2) that the defendant was not guilty of the negligence charged.

First. No one saw appellee fall into the basement. He gave the only testimony explaining’ how he came to be injured, in substance as follows:

“On the day of the accident I boarded the Metropolitan train at Laflin street station. I paid my fare and rode to Canal street. I got off the train, came down the stairs and walked through the room, the little room in the hallway, and I was looking for the toilet, that is, I passed out as far as the door and I opened the door and I fell down in. I didn’t notice whether I opened the first or the second door that I came to. This was the only door I noticed. I didn’t see any other door at all. It was around twelve o ’clock about, I have no recollection of the kind of day. I did not know at all at the time that there was any opening there except to the toilet room. When I opened that door, I went to step in, and I thought I saw the floor, and I went to step in and missed my hold on the door knob, and fell down, and that is the last I knew of it. I don’t know what I fell on; I know it was down stairs. I couldn’t tell you where I struck. I didn’t know anything until I got home. I don’t remember going out of the basement. I don’t know how I got out of the basement. As I opened this door just before I fell, it was dark in that room. There was a light there and I thought I could see the floor. It looked like a floor. I saw just what I thought was the floor. I knew where the toilet was. I opened the door and went to step in and as I stepped in I let go of the door knob, and I fell. I never noticed which way the door opened, in or out. I had been there probably three or four times in four years. I didn’t have to ask anybody where to go that morning. I didn’t inquire where the water closet was. The first time I ever went in this door, I did not see the word ‘men’ on the door. I saw a man coming out of that door, that is before I fell, probably two months before. The man was coming out of the toilet door and as he came out I stepped in. It was the first time I went into that closet.”

• The other evidence in this case shows that there was a window in the west wall of the building just above the level of the door and above the stairway that gave light to the stairway and basement, and that there was another such window on the north side of the basement. The evidence also shows that there was a sixteen candle power electric light that usually burned in the basement, but the evidence does not disclose as to whether or not it was burning at the time of appellee’s injury. The basement door was hung flush with thé south side of the door frame and opened out towards the hall. The toilet door was set in about flush with the door facings on the inside and opened into the toilet. The basement in question was used by the lunch and the cigar counters in that station for storing articles, washing and hanging table linen, and was the headquarters for the janitor of the station who stored his tools therein. The lunch and cigar rooms were rented to the proprietors thereof by appellant, and everyone who used the basement appears to have had a key to the door. The floor of this station was about on a level with the ground on the outside, and there was no other business except as above named, and the railroad business, carried on in this building. It was a passenger station, and there was nothing about the business conducted in this one story building, or about the surroundings, that suggested the idea that there was a basement, or any such place in or under the building. As aptly suggested by appellee’s counsel, this injury occurred on the inside of a passenger station, “a place where a person ordinarily has no reason to expect danger, or to anticipate that a very high degree of watchfulness is required on his part to discover atíd avoid danger.” The appearances were that it was a place of rest and refreshment for passengers while waiting for, or retiring, from trains, and without hidden dangers of any character. There was no sign or designation of any kind on the basement door to warn or acquaint tbe public with tbe fact tbat there was a basement there, and the only way to learn such fact was either by opening’ the basement door or specially inquiring as to what use was made of the door. It is true that the toilet door had on it in good sized letters the word “Men.” This was a sufficient designation for all ordinary persons to understand that behind that door there was a toilet for men; but the two doors being in such close proximity, with the knobs only ten or twelve inches apart, it was not entirely unreasonable for one looking at the doors so simliar in appearance to conclude that they were both doors to the toilet. The very place they occupied and the general appearances would lend weight to this conclusion. The appearance, positions and surroundings of the doors were such also as to make it very probable that persons might by mistake open' the wrong door. As appellee had no knowledge of it at all, there is little ground for saying that he ought to have been on the lookout for such a danger or any danger at all in that part of the building.

The law does not charge one with anticipating dangerous and negligent conditions, but he may assume that others have done their duty to give proper warnings of hidden dangers. C. C. Ry. Co. v. Fennimore, 199 Ill. 9.

Appellant argues that there was plenty of light for appellee to see that it was a basement when he opened the door and not a toilet, had he stopped to look; that appellee knew where the toilet was and that there was no excuse for him plunging into the stairway without looking. This is one of the instances in which knowledge of where the toilet was did not aid him in apprehending the danger. If he had had no knowledge at all as to what either door led to, he would have been very much less excusable for putting himself hastily through this door. The similarity and position of the doors and Ms knowledge that there was a toilet there, and his lack of knowledge of the existence of the basement or any other danger, are the exact apparent reasons why this injury did so occur. Had he been entirely uninformed as to what either door led to, and had the stairway been dark, these facts would furnish strong reasons and incentives for caution and investigation before entering into the door. As is said, in substance, in several cases cited by appellant: “There is no presumption that a person can walk through any door he comes to in a strange house without taking proper precautionary measures.” Van Ness v. Murphy, 107 N. Y. Supplement, 99; Hilsenbeck v. Guhring, 131 N. Y. (86 Sickels), 674.

In the last case cited, the court said: “He says it was dark, and after he got hold of the door in question, it was so dark he could not see into the space in front of him. He had never'been there before, and he had no information which might mislead him, or cause him to think there was but one and that the door into the closet. He knew nothing about it, and in that state of ignorance he opens a door which he thought was the one leading to. the closet, but, it being dark, he could not be certain, and notwithstanding the darkness he walks ahead and, while supposing himself in the closet, steps to the head of the stairway and falls down the cellar stairs. In such ease and in the darkness he should not have proceeded in a perfectly strange place without a light, or in some way taking precautions which-would have enabled him to proceed in safety.”

In the case at bar, appellee knew where the toilet was, and had no knowledge or notice of danger at all, actual or constructive, had no occasion to look for a name on the door, knew nothing of the existence of two doors, and, relying on his knowledge, went hastily through the door and fell down the- steps. This presents quite a different question to the one in the foregoing cases, in which the injuries were shown to have occurred in apartment houses-or hotels wherein cellars and cellar doors and elevator shafts may be expected to be found. ‘ ‘ The same precautionary means requisite to relieve a party from the charge of negligence when he approaches known places of danger, or places where danger may he apprehended, may not be required of him when he has no occasion to suppose that danger may be encountered.” McRickard v. Flint, 114 N. Y., 222. It is true, perhaps, that the evidence shows that there was sufficient light for appellee to see the stairway, and protect himself against it, had he stopped and taken a survey of it before stepping into it. We do not think that ordinarily prudent persons at all times or generally would stop and look for danger before entering a toilet with which they supposed themselves to be fairly well acquainted. The toilet door in question opened into the toilet in a manner to conceal all the fixtures therein from view until the door was passed. The stairway was steep and the steps only six inches wide while the risers were eight inches high, and the first step down was right at the door step. To enter in haste without actual knowledge of the conditions meant almost certain iüjury to the one so entering.

Second. All that we have said upon the first ques-' tion is necessarily an argument more or less upon the question of appellant’s negligence, and we so refer to it here. The authorities are numerous to tlie effect that no one who invites the public to come and patronize his business has a right to permit the existence of dangerous stairways, elevator shafts, or other dangerous openings, unless suitably guarded so that slight mistake may not prove disastrous. What is said in Hayward v. Merrill, 94 Ill. 349, in an elevator case, applies with equal force here, to-wit: “Had plaintiff been intent upon observing the number on the room door he might have discovered the room he wished to enter, but by the merest accident he opened the next door, and this slight inattention was the cause of his severe injuries. The opening ought to have been better protected than it was, and the omission to do so, under the circumstances proven, may well he attributed to the defendant as gross negligence.” In that case the elevator door and plaintiff’s room door were both numbered, and the plaintiff had occupied the room before and was somewhat familiar with it, and knew the number of the room he sought at the time he fell. But the doors were very similar, very close together, about two and one-half feet apart, and had no other marks to designate them and both were unlocked. The elevator door in that case was hung on the outside of the door jambs and opened outward, while the door to plaintiff’s room was set in and opened inward. The basement door of appellant not being marked in any way, so as to disclose the danger behind it, it was very necessary to keep it locked or otherwise secured, so that it could not be easily opened by patrons of the place, and we think the jury were warranted under the evidence in finding the appellant guilty of negligence in failing to so lock or secure it. The question of the contributory negligence of appellee was also a question of fact for the jury under the evidence, and we do not think.that finding is manifestly against the weight of the evidence.

The judgment of the lower court is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice DuNcaN

text:
    Gregorio Noceto, Appellee, v. Maurice Weill et al., Appellants.
    Gen. No. 15,990.
    1. Damages — withdrawal of lateral support. If the building of an adjacent owner is injured in consequence of the withdrawal of lateral support there can he no recovery provided the soil was withdrawn with reasonable care and skill to avoid unnecessary injury.
    2. Damages — withdrawal of lateral support. If the building of an adjacent owner is injured by the careless and negligent manner in which the adjacent soil is withdrawn, or if it is injured by the removal of soil from under the wall of such adjoining owner, a recovery will be allowed.
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 15, 1911.
    Statement by the Court. In this case G-regorio Noceto recovered a verdict in a jury trial of $1,000, as damages to Ms building and against Manrice Weill. A remittitur of five dollars being entered by Noceto, judgment was rendered in bis favor and against Weill for $995, from wbicb tbe latter has appealed.
    Appellant bnilt a brick building with a basement adjoining tbat of appellee on North Peoria street, Chicago. Appellant’s building was built up to the building line of Peoria street, while that of appellee stood back seven and one-half feet with a brick wall running from the front of the building to the sidewalk. The original count of the declaration charged that on May 1, 1907, appellant with force and arms, broke and entered the close of appellee, and removed the earth from under the building of appellee, thereby causing the walls of said building to settle and crack and bulge in many places, and also causing the brick work, stone work, mortar work, wood work and other materials to crack and separate in many places. Other counts charge that appellant negligently failed to use reasonable care in removing the earth from and adjacent to appellee’s building, and negligently failed to notify appellee of his intention to excavate on the lot adjoining appellee so that he could protect against it, thereby causing the damages aforesaid.
    Louis S. Gibson, for appellants.

      Waltes J. Watts and Wm. Elmore Foster, for ap-pellee.
   Mr. Justice DuNcaN

delivered the opinion of tlie court.

Appellants’ contention that the court erred in refusing to direct a verdict of not guilty at the close of all the evidence, cannot be sustained under the evidence in this record. A number of appellee’s witnesses testified that the excavations in several places did not stop at the outer wall line of appellee, but extended under the wall several inches, and that shortly thereafter the wall of appellee’s building began to crack and to bulge. About two witnesses testified for appellant that his excavations did not extend under the wall of appellee, and some four or five witnesses testified that there were cracks in appellee’s building before the excavations in question were made. The greater number of witnesses on these questions testified for appellee, and we can find no reason in the evidence for saying that they were less credible or less worthy of belief than those of appellant. We cannot hold, therefore, that the verdict is against the manifest weight of the evidence. If appellant did extend his excavations under the wall of appellee and cause his wall to crack in several places, and to bulge in one place some two or three inches, as appellee’s witnesses testify and as the jury evidently found, appellee was clearly entitled to recover, and his damages are not excessive.

It is the law that, if appellee’s building was injured by appellant in consequence of the withdrawal of the lateral support of the adjacent soil, that there can he no recovery therefor, provided the soil was withdrawn with reasonable care and skill to avoid unnecessary injury. It is- also true that, if the building was injured by the careless and negligent manner in which the soil was withdrawn, or if injured by removing the soil of appellee from under his wall, that in such cases appel-lee would be entitled to recover to the extent of the injury thus occasioned. The court stated the law applicable to this case, as thus laid down in apt language in the instructions given for appellant, and positively instructed the jury that appellee could not recover any damages except such damages as might be shown by the evidence to be the result of such negligence of appellant in removing lateral support, or from his unlawful act in removing appellee’s soil from under his building wall. It is insisted, however, by appellant that the first instruction given for appellee had a tendency to lead the jury to believe that, if the removal of appellant’s earth caused the damage, he would be liable without regard to the question of whether or not appellant was guilty of negligence. We do not think the instruction is subject to that criticism. The instruction simply informed the jury that, if appellant, or its agents, unlawfully removed the dirt from under the plaintiff’s building, and thereby caused the damage, he should be found guilty. The appellant had no right to remove earth by digging under appellee’s house, and if he did so, and thereby caused the injury, he was liable. The same idea is embodied in appellant’s instruction No. 11. The second instruction of appellee was correct for the same reason, and the evidence as to the plans and specifications is sufficient, in view of the other evidence that digging was actually done under appellee’s wall, to submit the question to the jury as to whether or not such digging was authorized by appellant.

Appellee' had no notice of any intent to dig or excavate soil under his building, but, on the contrary, he was assured in the notice given him by appellant that no such excavation would be made. He, therefore, had no reason to anticipate, or protect against, such excavation. The third instruction of appellee is, therefore, not without evidence to support it. Evidence was also introduced by appellant tending to show that appellee’s building was over the line and on appellant’s lot. The fourth instruction of appellee is for that reason not subject to appellant’s objection that it is not based on the evidence.

There is no valid objection to appellee’s fifth instruction, which simply informs the jury that, if they found that he was entitled to recover, the measure of his damages would not be less than the amount they found from the evidence that his building was diminished in value, as a result of the wrongful acts complained of in the declaration. It is not, at any rate, subject to the objection made to it by appellant.

We do not think the appellant ’s claim that improper evidence was admitted is tenable. As appellee’s building wall was proven to be a sound wall, it was proper for witnesses to base their estimate of damages on that condition, leaving the jury to say from the evidence whether or not it was sound.

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

Judgment affirmed.


author: Mr. Justice Craves

text:
    The W. A. Jones Foundry & Machinery Company, Appellee, v. The Aurora, Elgin & Chicago Railway Company, Appellant.
    Gen. No. 15,916.
    1. Judgments — when motion coram nobis lies. Where a valid defense exists in fact, but which, without negligence on the part of the party who complains of the action of the court, is not made, the motion, substituted by statute for the writ of error, coram nobis, may be invoked.
    2. Practice — what essential to invocation of motion coram nobis. Diligence on the part of the party complaining is as essential to the right to relief by means of such motion, as it is that a good defense to the action on the merits shall exist.

      Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 15, 1911.
    Hopkins, Peppers & HopkiNs, for appellant.
    Elmer Allen Kimball, for appellee.
   Mr. Justice Craves

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court denying a motion of appellant to vacate an order dismissing its appeal from a justice of the peace to the Circuit Court. The summons issued by the justice of the peace was returnable September 13, 1904, at which time neither the appellant, nor any one for it, appearing, judgment was rendered by default against it. On September 30, 1904, appellant filed its appeal bond with the justice of the peace. The justice’s transcript of the judgment was filed in the office of the clerk of the Circuit Court January 31, 1907. On February 3, 1909, the case was reached for trial, and neither appellant nor any one for it appearing, the appeal was dismissed by the court for want of prosecution. Up to that time no attorney had entered his appearance for appellant in this case. On April 17, 1909, which was more than four years after the appeal bond was filed with the justice of the peace, more than two years after the transcript was filed with the Clerk of the Circuit Court, and more than two months after the appeal had been dismissed by the Circuit Court, and at a subsequent term of that court, appellant, by its attorneys, filed its motion to vacate and set aside the order dismissing the appeal, and this motion was denied.

It is this action of the court that forms the basis of this appeal.

"Where a valid defense exists in fact, but which, without negligence on the part of the party who complains of the action of the conrt, is not made, the motion, substituted by statute for the writ of error, coram nobis (E. S. Chapter 110, Section 89), may be invoked. Pisa v. Rezek, 206 Ill. 344.

Diligence on the part of the party complaining is as essential to the right to relief by means of such motion, as it is that a good defense to the action on its merits shall exist.

The affidavits and evidence presented in support of the motion in this case signally fail to overcome the imputation of negligence on the part of appellant, arising from the facts shown by this record.

That appellant was aware of the judgment entered by the justice of the peace, and of the pendency of that case in the Circuit Court on appeal, is conclusively shown by the fact that it filed its appeal bond with the .justice of the peace. Plaving knowledge that the case was pending on the docket of the Circuit Court, it was the duty of appellant to keep itself advised as to when it would be reached for trial and to present its defense when it was so reached. There is no showing that appellant ever employed attorneys to attend to this case, until after the appeal had been dismissed, for more than two months. The affidavits so filed do state that Hopkins, Peffer and Hopkins are its attorneys; that a firm of reporters, are under contract to notify such attorneys of all cases in which appellant is interested; that one Ashworth has charge of the trial dockets and calendars in the office of such attorneys, but there is no proof that Hopkins, Peffer and Hopkins were appellant ’s attorneys on the date the appeal was dismissed, or that the firm of reporters were in the employ of that law firm at that time, or that Ashworth at that time had charge of the trial dockets and calendars for that law firm.

The court cannot assume from the fact that Hopkins, Peffer and Hopkins were the attorneys for appellant at the time the motion to vacate the order of dismissal was made, that they had been its attorneys prior to the dismissal of the appeal.

There being no showing that appellants had employed attorneys to attend to this case, it must he assumed either that it intended to make its defense without an attorney, or that for some reason best known to it, it intended to make no defense. Whatever was the intention of appellant, there is nothing in the record to indicate that any attention was paid to the case by it, after it filed its appeal bond in 1904, more than four years and six months before its appeal was dismissed. That being true, it is impossible that the fact that the title of the case was not correctly published in the Daily Law Bulletin could have misled appellant, or have been the cause of its failure to present its defense.

The conclusion is, therefore, irresistible that appellant was negligent in failing to present its defense and that the Circuit Court committed no error in denying the motion of appellant to set aside and vacate the order dismissing the appeal.

The judgment of the Circuit Court is, therefore, affirmed.

Affirmed.


author: Mr. Justice Graves

text:
    Grand Opera House Company, Appellee, v. Herbert Ripley et al., Appellants.
    Gen. No. 17,753.
    1. Appeals and errors — what interlocutory order not appealable. An order overruling a motion to dissolve an injunction is not appeal-able.
    2. Injunctions — what waives notice of granting preliminary.0 A general appearance, demurrer and motion to dissolve an injunction on the face of the bill, waives want of notice.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 15, 1911.
    Foeeman, Levin & Bobertson, for appellants.
    McArdle & McArdle and Thomas J. O’Hare, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court overruling a motion to dissolve an injunction. Two errors are assigned: “1. For that the court erred in granting the injunction order of May 4,1911.” “2. For that the court erred in overruling the motion of defendant, Herbert Bipley, to dissolve the injunction theretofore granted in this cause.”

As to the first assignment of error, it is sufficient to say that the granting of the preliminary injunction was an interlocutory order, and even if it was improperly entered, the error cannot be availed of on an appeal from an order overruling a motion to dissolve it. If appellant desired to have the correctness of the order granting tlie preliminary injunction reviewed, lie should have appealed from that order, as provided by section 123, chapter 110, R. S. Keeley v. Hargreaves, 236 Ill. 316.

The bill in this case was filed May 4, 1911, and a temporary injunction was ordered and summons was issued. On May 8, 1911, the general appearance of defendant by his solicitors, and his demurrer to the bill, were filed, and on May 17, 1911, the motion of defendant to dissolve the injunction on the face of the bill was, after a hearing, overruled.

The only reason under the second assignment of error urged here for a reversal of that order is that the order granting the injunction was entered without notice to appellant. Want of notice of an application for a temporary injunction can be taken advantage of either by an appeal from the order granting the injunction or by a motion to discharge the order, but is waived by the general appearance, demurrer and motion to dissolve the injunction on the face of the bill. Williams v. Chicago Exhibition Co., 188 Ill. 19, and authorities there, cited. Adams v. Oberndorf, 121 Ill. App. 497.

It follows that the Circuit Court committed no error in overruling the motion to dissolve the injunction. The order is, therefore, affirmed.

Order affirmed.


author: Mr. Presiding Justice Brown

text:
    Hannah Allport, Defendant in Error, v. Charles Meutsch et al., Plaintiffs in Error.
    Gen. No. 15,739.
    1. Judgments — when amount sufficiently definite in, entered by confession. Held, that it sufficiently appeared from the entire transcript in this ease that the failure to designate dollars in certain parts thereof did not render the amount for which the judgment was rendered uncertain.
    2. Judgments — when, entered by confession, not invalid. Failure to fill with an amount, a blank authorizing attorney’s fees in a warrant of attorney to confess judgment does not render invalid a judgment by confession which does not include attorney’s fees.
    3. Judgments — when entered by confession not premature. Notwithstanding the note was not due at the time of the entry of judgment by confession, its entry was not premature if the warrant of at-orney provides for confession of judgment at any time after the date of the note.
    ■ 4. Judgments — when usury does not affect, entered by confession. In the absence of an attempt to open a judgment for usury and in view of a release of errors contained in the warrant of attorney, inclusion of usury in the judgment entered by confession will not effect its reversal on review.
    5. Judgments — effect of entry of second. If the first judgment in the case be valid a second judgment entered upon the same cause of action will be reversed.
    Judgment by confession. Writ of error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1909.
    Eeversed.
    Opinion filed November 20, 1911.
    PeeNtiss, Putney, Meek & Solberg, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

May 5, 1909, judgment by confession was entered in the Circuit Court of Cook county in favor of Hannah Allport against Charles Meutseh and Martha Meutseh for $535 and costs. The narr or declaration, which was in the usual form for a suit on a promissory note (except as hereinafter stated), was accompanied by a cognovit signed by an attorney. It admitted that the plaintiff had “sustained damages * # including'the sum of twenty-five dollars for her reasonable attorney’s fees for entering up this judgment over and above her other costs and charges by her about her suit in this behalf expended to the amount of five hundred and thirty-five dollars ”, * * * and recited that “the said defendants — further agree— # * that — he— hereby release — all errors that may intervene in entering up the” judgment. * # *

A note with a warrant of attorney, drawn in the following terms, was annexed to the narr and cognovit:

“No. 1. April 29, 1908.

Two years after date for Value Received we promise to pay to the order of Mrs. Hannah Allport Five Hundred Dollars at 3517 Dearborn St., with interest thereon at the rate of 10 per cent, per annum, payable-

This note is for money loaned for "Wm. Meutseh Defense.

And to secure the payment of said amount. hereby' authorize, irrevocably, any 'attorney of any Court of Record to appear for...in such Court, in term time or vacation, at any time hereafter and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and. dollars attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that. said attorney may do by virtue hereof.

Chas. Muetsch.

$500. Martha Muetsch. ’ ’

The narr and cognovit was endorsed with an affidavit of a third person to the genuineness of the signatures to the note, and a judge of the Circuit Court of Cook county had also, evidently before the judgment was entered of record in due form for $535 and costs, made and signed a memorandum thereon as follows :

“Let judgment be entered in the sum of five hundred thirty-five, principal and interest, and leave given to withdraw original note upon filing a certified copy thereof with the Clerk of this Court.”

June 3, 1909, another judgment in the same cause was entered of record in the following terms:

“Hannah Allport vs. Charles Meutsch and Hannah Meutsch.
Confession.

This day comes the plaintiff herein and remits the sum of thirty-five dollars interest from the judgment heretofore on May 5, 1909, rendered herein by confession.

“And it is ordered by the Court that the sum of fifty dollars attorney’s fees be taxed herein, and that final judgment be entered herein accordingly.
“Therefore it is considered by the Court that the plaintiff do have and recover of and from the defendants the sum of Five Hundred and Fifty Dollars, being the residue of the amount of the original judgment heretofore by confession on May 5, 1909, entered herein and the amount of attorney’s fee so taxed by the Court, and that the plaintiff have execution against the defendants for said judgment, together with her costs and charges in this behalf expended.”

On this record the plaintiffs in error have made four assignments of ¿rror:

First: That the Judgment entered on May 5, 1909, is void. Second: That the court erred in entering judgment on the power of attorney contained in the note filed. Third: That the court erred in entering-judgment against the defendants herein, or either of them, for attorney’s fees on Jnne 3, 1909. Fourth: That the judgment entered June 3, 1909, is void.

The plaintiff in error — the defendant below — points out in argument here that certain spaces left blank in the body of the note (which was on a printed form), together with the amount of the attorney’s fees authorized to be paid, “appear to have been disregarded by the parties to the instrument,” and also that in what plaintiff in error calls “a judgment order entered in said suit by one of the judges of the Circuit Court,” the sum of the said judgment was named at “five hundred and thirty-five,” without any denomination in terms of money, and that this absence of any definite statement of amount exists also in the declaration.

But an inspection of the transcript of the narr shows that while the denomination of “dollars” after the “five hundred and thirty-five” in the “ad■ damnum clause” has been carelessly omitted, there follows in figures, “535” preceded by the dollar sign. It also appears from a careful reading of the note and the warrant of attorney appended to it, that the non-filing of the blanks does not render the terms of the note in-consequent, unmeaning, or even ambiguous. The failure to fill up the amount of attorney’s fees authorized, in our opinion renders a confession of judgment under the note by an attorney nugatory so far as such fees are concerned, but not otherwise.

As there is no allowance for attorney’s fees in the judgment of May 5, 1909, but only interest at- 7 per cent for one year in addition to the principal, the blanks in the warrant of attorney do not affect the validity of that judgment.

It is a misnomer to speak of the memorandum of the judge on the back of the narr and cognovit as “the judgment order.” The “judgment order” appears in the transcript as it was formally entered in the records of the court, and contains a proper denomination of the amount for which it was entered. That the note was not dne does not render the judgment erroneous. The warrant of attorney provides for the confession of judgment at any time after the date'.

It is true that on its face the note provided for interest usurious under the law of Illinois; hut in the absence of any attempt to open the judgment of May 5, 1909, on that account, and in view of the release of errors contained in the warrant of attorney, this does not authorize us to interfere with that judgment. The face of the note indeed does not show where it was made or where it was payable.

We make no order regarding the judgment of May 5, 1909.

As we have not been favored by the defendant in error with a brief or argument, we do not know on what she relies to sustain the subsequent judgment in this cause, entered on June 3, 1909. It appears to be wholly without warrant or authority of any kind. The statement of the proceedings in the court below, with which this opinion is introduced, sufficiently shows, without further explanation, why it cannot stand. This judgment of June 3, 1909, to reverse which only this writ of error (according to the praecipe filed for it) seems to have been sued out, is reversed.

As hereinbefore stated, we make no order of any kind as to the judgment of May 5, 1909.

Reversed.


text:
    John Devine, Administrator of the Estate of Elizabeth Lampert, Deceased, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,866.
    1. Negligence — declaration charging, construed. Eeld, that the declaration in this case charged negligence in failing to observe an ordinance requiring the fender to be not only substantially attached to the front end of the ear but so attached as to guard passengers and pedestrians from being injured or being thrown under the wheels in case of collision or other accident.
    2. Evidence — when entire ordinance, notwithstanding restrictions in offer, considered as having heen received. Eeld, that under the rulings of the trial court the entire ordinance in question in this ease, was to be considered as received in evidence notwithstanding the offer of such ordinance was limited to certain sections thereof.
    3. Instructions — what does not create presumption that all are not included in transcript. The mere omission of an express certificate that all instructions are included in the bill of exceptions will not create a presumption that some instructions are omitted. Eeld, in tMs case, that it appeared from the entire transcript that all instructions offered were included in the bill of exceptions.
    . Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 20, 1911.
    Edward C. Higgins and Watson J. Ferrt, for appellant.
    Henry S. Wilcox, for appellee; Charles C. Spencer and Jesse Wilcox, of connsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff in this case is the administrator of Elizabeth Lampert, who was killed July 20, 1904, by a street car operated by the defendant corporation. She was fifty-three years of age. She left surviving her a husband and as next of kin six daughters, the oldest twenty-eight years of age and the youngest sixteen. The administrator, claiming that the death of his intestate was caused by “the wrongful act, neglect or default” of the Chicago City Railway Company, brought suit, in the Superior Court of Cook county under the “Campbell Act” of the State of Illinois, against the company for the benefit of said surviving husband and next of kin. He obtained from a jury in that court a verdict in his favor for $2,000. After a motion for a new trial and a motion in arrest of judgment made by the defendant company had been overruled by the court, judgment was rendered on this verdict.

An appeal followed to this court, in which, of the numerous alleged errors assigned, the counsel for the company insist on the following:

First. That there was no evidence so tending to support the plaintiff’s case as to justify the submission of it to a jury. Therefore the court should have granted defendant’s motion, made at the close of the plaintiff’s evidence and renewed at the close of all the evidence, for a directed verdict, and erred in not doing so.

Second. That as this was not done, the court should have granted the motion for a new trial on the ground that the verdict was manifestly against the weight of the evidence, and erred in denying it.

Third. That the court erred in admitting improper evidence, namely, certain sections of an ordinance of the city of Chicago, hereinafter set forth.

Fourth. That the court erred in refusing each of three certain instructions (other than the requested peremptory instruction) tendered by the defendant.

Fifth. The court erred in allowing the jury to carry into the jury room and have in their possession during their deliberations a portion, which, it is alleged was not in evidence, of the city ordinance hereinbefore referred to, and erred in not granting a new trial because the jury thus had said portion of the ordinance with tbem in the jury room.

The declaration in the cause contained three counts.

As amended the first alleged that the defendant company was operating on July 20, 1904, a street railroad along Wentworth avenue and across 48th place in Chicago; that the plaintiff’s intestate was on that date, in the exercise of ordinary care for her own safety, walking along 48th place and across Wentworth avenue; that the defendant company so negligently and carelessly ran and managed a car on its line that it then and there struck the deceased and killed her. The count also contained the necessary allegations as to the character in which the plaintiff sued and the kinship of the beneficiaries for whom he sued.

The second count made the gist of the action the allegation that by reason as well of the carelessness and negligence of the defendant in permitting Wentworth avenue (at the crossing of 48th place) to be between the rails of its northbound track, in violation of an ordinance under which it was there operating its road, rough and broken up, with a large stone projecting above the surface of the street, — as of its carelessness and negligence in running said car over the crossing, the deceased was, after unavoidably stumbling over said stone, struck and killed. As the court below instructed the jury that there could be no recovery on account of any defect in the street at the place of the accident, this count may be disregarded in our consideration of this appeal.

The third count, in addition to the formal allegations sets up an ordinance of the city, of Chicago known as the “Fender Ordinance.” This ordinance provides that each car on a street railroad shall be provided with “fenders of steel and of the basket kind, which shall be substantially attached to the front end thereof so as to guard passengers and pedestrians from being injured or thrown under the wheels in case of a collision or other accident.” It is made unlawful by the said ordinance to use upon any street railroad in Chicago, after September 1,1898, any car not so equipped.

The count then alleges that the defendant “ carelessly and negligently failed and neglected to provide” the car which struck and killed Elizabeth Lampert “with a fender of steel and of the basket kind which was substantially attached to the front end thereof, so as to guard passengers and pedestrians from being injured or thrown under the wheels in case of collision or other a/ccident”, but * * “carelessly and negligently, contrary to the provisions of said ordinance * * attached a fender to the said car * * in such manner that said fender was tilted upward and away from the street, so that when a person would fall in front of said car said person would not strike said fender * * but would fall under the wheels of said car.”

By reason of this and of the negligence of the defendant in running said car, the count charges that the plaintiff’s intestate, without negligence on her part, fell under the wheels of the car and was run over, the said fender failing “to catch the plaintiff and to prevent her from being thrown under the wheels.”

To this declaration the defendant company pleaded the general issue. A further plea that the plaintiff is not the administrator of the deceased was filed, but no such issue was made at the trial or is presented here.

There was evidence at the trial, proper and competent for submission to the jury, that Mrs. Lampert, the deceased, came to her death by being struck by a car of the defendant corporation running in a northerly direction on Wentworth avenue at the crossing of 48th place, and that the front trucks of the car behind the fender were on her body when the car came to a stop.

. The evidence further tended to show that Mrs. Lam-pert was desirous of taking this car which struck her: that she started to cross Wentworth avenue diagonally from the southwest to the northeast corner of 48th place, the northeast corner being the regular stopping place of the car; that in doing so she signalled with her hand for the car to stop; that she crossed the westerly or south-bound track and was between that and the easterly or north-bound track at a point just south of the northerly crosswalk of 48th place, when she stumbled and fell, her body falling across the north-bound track. It was when she was in that position the car struck her and crushed her, the forward trucks passing onto her body and killing her. The body was carried a considerable distance by the car before it stopped. The distance of the car from the crosswalk (at which the great weight of the evidence shows Mrs. Lampert fell) both when she started to cross the street and when she stumbled, and the speed at which the car was running up to and at the point at which it struck her, are variously stated and estimated by the respective witnesses, and were proper subjects for argument to the jury; but there was certainly testimony tending to show that when the deceased started to cross the street the car was far enough away to the south to make the attempt one consistent with ordinary care, — that her stumbling and falling was not the result of the want of such care, — and that the car in approaching a place where passengers might be generally expected and where it had been signalled to stop, was running at a rate of speed which the jury had a right to find negligent, in that it prevented the stopping of the car before it reached the prostrate body of the deceased.

The contention that a peremptory instruction for the defendant should have been given, must, on this ground alone, have been overruled. But there was also evidence sustaining the third count of the declaration. Counsel for appellant argue that the specific negligence charged in that third count was that the car was not equipped with a fender of steel and of the basket kind, or, at the most, that it was not equipped with a fender of steel and of the basket kind ‘ ‘ substantially attached to the front of the car,” and then claims that there is no evidence to show that the car did not have such a fender substantially attached. We think there was no such evidence, but we do not agree with counsel in his construction of the declaration.

The declaration does not charge the defendant with failure and neglect to provide the car with a fender of steel and of the basket kind substantially attached to the front end of the car, but with a failure and neglect to provide such a fender ‘1 substantially attached to the front end, so as to guard passengers and pedestrians from being injured or thrown under the wheels in case of collision or other accident.” This is the language of the ordinance. The fender is to be not only substantially attached to the front end of the car, but so attached (that is attached in such a manner) as to guard passengers and pedestrians from being injured or thrown under the wheels in case of collision or other accident.

There was conflicting testimony at the trial as to the position or arrangement of the fender when the accident occurred; but in conjunction with the facts that the body must have passed beneath and behind the fender before the front truck wheels could have run upon it, the testimony of one of the witnessess of the occurrence that “the fender was up far enough to let her pass underneath and not catch her ’ ’ and ‘ ‘ the fender went over her body,” “It never touched her,” and of another that “I saw the fender a little before the car hit her. It was raised up a little bit;” and of a third, “The fender did not touch her — the end of it was up,” in our opinion furnished evidence proper and sufficient to go to the jury on the liability of the defendant under the third count of the declaration. It tended to show negligence in an arrangement or “attachment” of the fender and that it did not conform to the ordinance.

Nor do we think that the evidence offered on the part of the defendant company, which contradicts the testimony for the plaintiff which we have noted, or the impeachment of plaintiff’s witnesses by evidence of contradictory statements, justifies ns in setting aside the decision of the jury, to whom all these factors of the question were undoubtedly presented and argued. We cannot say that the verdict for the plaintiff was without support in the evidence nor clearly and manifestly against the weight of the evidence.

Nor do the other grounds urged for our reversal of the judgment seem to ns sufficient. It is argued that only sections 1, 2 and 3 of the “Fender' Ordinance” were offered or received in evidence, and that the omission in the offer and reception of sections 4, 5 and 6, left the portion which was offered and received without anything to show when it took effect, and without any proof that there was a penalty attached to its violation — each of which defects, it is insisted^ made the ordinance or the proof of it invalid. Connected with this contention of the appellant is the further one that the whole ordinance, and not merely the first three sections, were given to the jury and taken by them to the jury room.

This purely technical objection falls if the whole ordinance be considered in evidence, and we see no escape from the position that it must be so considered. It is true that the plaintiff’s counsel expressly limited his offer to sections 1, 2 and 3, but the court asked, “What is the nature of it?” and being told that it was “an ordinance” ruled that it might “be admitted in evidence.” Thereupon the entire ordinance, consisting of the six sections and certified to as an entirety by the city clerk as having been duly passed on July 6, 1908, approved on July 11, 1898, and published on July 23,1898, was marked “Exhibit B”, and is as such exhibit made a part of the record. No objection to the offer of the three sections because the others were not included in it, was made, nor was any specific objection made to the marking of the six sections as one exhibit.

In addition to this, the certificate and the third section show when the ordinance was passed and when it went into effect. There is no harmful error committed in relation to this ordinance.

Complaint is made by appellant that certain instructions tendered by the defendant were refused by the court. The appellee insists that this point “cannot be made on this record, for the record does not contain nor does it purport to contain all the instructions given by the Court, and under such circumstances the presumption is that the giving of the omitted instructions cured the error, if any, in refusing the refused instructions. ’ ’

If the plaintiff’s counsel has warrant for his assertion in this argument, that the record does not contain all the instructions given by the court, some indication of it should appear in the record in some form. If it did, the appellee’s answer to the alleged error in instructing the jury would be sufficient. But every indication in the record favors the presumption that all the instructions given or refused are therein included, and there is no claim that, as in the cases in the Supreme Court cited by appellee, the abstract does not contain all the instructions found in the record. This court has frequently held that neither with reference to evidence nor instructions will the mere omission of an express certificate that they are all included in the bill of exceptions, prevent in proper cases an assumption, from the arrangement and recitals of the record, that they are all so included.

Whether or not, in view of the direct statement of appellee’s brief, that 24 instructions were given at the request of the defendant, although but 23 appear, this is such, a case, it is not necessary for ns to decide, for we have given the appellant the benefit of any donbt and considered the record and abstract as containing all the instructions given or refused. We do not find, however, in that view that there was any reversible error in the refusal, of which complaint is made, of certain instructions tendered by the the defendant.

The instructions which would have taken the consideration of the third count of the declaration and the alleged negligence concerning the fender from the jury, are disposed of by what we have already said in relation to the sufficiency of the evidence to sustain the third count and in relation to the admission of the “Fender” ordinance.

As to the instruction which is numbered 34 in the abstract, we think it would have been well to give it and thus have covered and rendered unnecessary other instructions which were given at the request of the defendant and were not so concisely or compendiously put. But those others apparently were first offered, and in any event they cover, in our opinion, in their variety all the necessary phases of the case, and fully and fairly informed the jury of the law applicable thereto. We cannot hold the refusal of the more systematic statement of propositions already covered as reversible error.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Helen M. Clark Burdette, Plaintiff in Error, v. The Chicago Auditorium Association, Defendant in Error.
    Gen. No. 15,873.
    1. Vekdicts — when set aside as against the evidence. A verdict will "be set aside- as against the evidence if clearly and manifestly so.
    2. Negligence — when presumption of, arises. A presumption arises against the owner and operator of a passenger lift in a building, in favor of a person injured while in transportation under ordinary conditions.
    3. Negligence — when declaration charges general. Seld, that the declaration in this case charged negligence so generally that the plaintiff might avail of the presumption of negligence arising against- the defendant.
    4. Instructions — test upon review. In considering rulings “the proper question as to instructions on appeal is: ‘Were the jury fully and fairly instructed on the law of the ease, or on the other hand, were they either misinformed or misled?' “
    5. Instructions — should not single out testimony upon one side. Instructions should not single out and place emphasis upon the testimony of one side of the case.
    Action in case for personal injuries. Error to the Circuit Court of Cools county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 20, 1911.
    JOHN W. Burdette, for plaintiff in error.
    E. E. Gray, F. J. Canty and J. C. M. Clow, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In this case the plaintiff, Helen M. Clark Burdette, sued the defendant, The Chicago Auditorium Association, for a personal injury alleged to have been suffered by her through the negligence of the defendant corporation, or its servants, while she was a passenger in an elevator or lift of the defendant corporation in the part of its building devoted to business offices.

The first count of her declaration makes the gist of her complaint that “the defendant caused said car to descend with great speed and momentum and negligently and carelessly caused said car to stop in its descent with great force and violence, ” by which action the plaintiff was injured.

The second count alleged that the defendant “negligently and carelessly suffered the machinery and appliances by which said car was operated to become and be defective, unsafe and insecure, by reason whereof said car was not capable of being controlled and fell a great distance, and suddenly stopped with great force and violence.”

The third count asserted that the defendant “employed unskilful, careless and incompetent servants and employees to manage, control and operate said car,” by reason whereof “said car was, while descending at great speed, caused to stop suddenly and with great force and violence.”

The fourth count made the general charge that the defendant “negligently and carelessly so operated said car” that the plaintiff was injured.

The defendant pleaded not guilty, and on a trial a jury so found it. A motion for a new trial and one in arrest of judgment were made by the plaintiff and denied by the court. A judgment of nil capiat and for costs was rendered against the plaintiff and this appeal followed. The plaintiff complains in her first ten assignments of errors of certain specific rulings on evidence, none of which we think contains reversible error. In other assignments she complains of the giving of one of the instructions tendered by the defendant and of the refusal of three, hereinafter referred to, offered by the plaintiff.

The overruling of the motion for a new trial being' also assigned for error, there is before ns the proposition, vigorously insisted on in argument, that the verdict was manifestly and clearly against the weight of the evidence.

On this point counsel for appellee well say in their argument:

“The question is, can this Court say that the verdict is clearly and manifestly against the weight of the evidence and therefore the verdict should he set aside? There is only one way to settle this question, and that is to examine the testimony on both sides as shown in the abstract and record. It is not possible, within the legitimate limits of a brief, to so fully argue this question as to obviate the necessity of the court examining the testimony itself.”

This we have done, reading and rereading the evidence as set forth in the record, and we are forced to the conclusion that the contention of the plaintiff is justifiably made, and that the verdict was clearly against its weight. We are reluctant at all times to disturb the verdict of a jury on this ground, but it is sometimes our duty, and it is as much so in a proper case (although such cases are more infrequent) when, in an action of this kind, the verdict is against the plaintiff, as when it is in his favor.

As this case may very probably he tried again, we do not purpose to discuss the evidence. It is enough for us to say that we think that the testimony on both sides establishes an accident of some sort in the operation of an elevator of the defendant in which the plaintiff was a passenger. We may say that we agree with the counsel for appellee that the accident, of which differing versions were given by the respective witnesses for the contending parties, was clearly identified. The parties were testifying as to the same occurrence. We have no doubt of this.

And nothing was offered in contradiction of the presumption that arises that the accident was the result of negligence in the construction, maintenance or operation of the elevator. That presumption arises against the owner and operator of a passenger lift in a building, in favor of a person injured while in transportation under the ordinary conditions, as well as against the owner and operator of a railroad in favor of a passenger injured in transportation. Springer v. Ford, 189 Ill. 430; N. Y., Chicago & St. L. R. R. Co. v. Blumenthal, 160 Ill. 40.

Counsel for appellee argue indeed, in another connection, that in this cause the presumption does not arise, or at least cannot be held effective because each count of the declaration charges a specific act of negligence, and one of them must be specifically proved. But if the first count is to be considered as charging a specific negligent act in the operation of the car by the “elevator man,” and the second, negligence of the defendant company in the maintenance of the machinery or appliances of the elevator, and the third, the negligence of that company in the employment of an incompetent “elevator man,” the fourth, which simply says that it “was the duty of the defendant to operate and manage said car in a reasonably safe manner,” and that “not regarding its duty in that behalf” it “negligently and carelessly so operated said car that plaintiff, exercising due care and caution for her own safety, .was violently thrown upon the floor of said car,” etc., is a general enough statement of the negligence to require, if the accident and damage were proven, some refutation of a presumption that they occurred through the negligence of the defendant.

As we have said, we think that an accident of some kind, in which the plaintiff was involved, but the slightness or gravity of which was a subject in dispute to be judged by the jury, was testified to by both parties ; and we think that the clear and manifest preponder-anee of the evidence is that some injury and damage thereby resulted to the plaintiff. Had the question in this appeal been the amount of damages to which the plaintiff was entitled, we should not have interfered with a finding of the jury minimizing them to any extent that they thought right; nor, on the other hand, with any assessment of them within reason, conforming to the testimony offered on behalf of the plaintiff. On the subject of damages we should have accepted, in view of the conflicting evidence, the judgment of the jury. But we cannot escape from the conviction that in finding the issues for the defendant on this record, the jury, in view of the rules of law applicable to the case, found contrary to the clear weight of the evidence. This may well be explained, as counsel for appellant suggests, by the failure of the instructions to present to the jury more than one aspect of the plaintiff ’s case. We think that the jury might well have supposed, from the only instruction which was given on the liability of the defendant, that it depended entirely on a specifically careless act by the elevator man at the time of the accident. This was not the case. The defendant was equally liable if the accident were caused by defective appliances or by the general incompetence of the elevator man. Indeed, in the absence of any refutation in the evidence of the presumption of negligence arising from the accident, it was liable under the fourth count of the declaration whatever in the management or operation of the elevator was the cause.

Appellee insists that the first, third, fourth and fifth instructions tendered by the plaintiff, which presented these aspects of her ease, were erroneous in not containing limitations which should have been placed in them, and that this justified their rejection. We are not prepared to say that they should have been given in the exact form tendered, but if they were objectionable in the manner pointed out by the defendant, they should have been modified by the court and given. As we had occasion to say in the opinion in Tomlinson v. Chicago & Eastern Illinois Railroad Company, No. 11712 in this court, (unreported):

“The proper question as to instructions on appeal is: ‘Were the jury fully and fairly instructed on the law of the ease, or, on the other hand, were they either misinformed or misled?’ That they should have been misled is quite as bad as that they should have been misinformed, — in most cases perhaps even worse in its results.”

Moreover, although we might not, on that account alone, have reversed this judgment, we deem the seventh given instruction tendered “on behalf of the defendant” objectionable. It was as follows:

“The court instructs the jury that you are not required to believe any statement to be a fact simply because the plaintiff or any other witness or witnesses has or have sworn it to be a fact, if you believe from the evidence that such witness or witnesses has or have wilfully or knowingly sworn falsely to any alleged fact, even if such witnesses do not directly contradict each other with respect to such matters.”

We cannot approve the singling out and placing the emphasis on the plaintiff’s testimony, as that which the jury may disregard. The proposition is true enough abstractly, but it had a tendency to be misleading and prejudicial on this case. We do not think the mere placing of the words “or any other witness or witnesses” after the words “the plaintiff” redeems it from this vice.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.