text:
    David C. Herndon, Defendant in Error, v. Germania Mutual Savings Society, Plaintiff in Error.
    Gen. No. 14,321.

      Verdict—when set aside. A verdict rendered against a party who does not appear by the evidence to have assumed in anywise the obligation of payment sought to be enforced, will be reversed.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed January 26, 1909.
    Cratty Bros. & Jarvis, and Charles S. Knudson, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court plaintiff had judgment against the defendant for $584.25, to reverse which the defendant prosecutes this writ of error. Plaintiff’s “Statement of claim” is as follows:

“Plaintiff claim is for six hundred & six dollars & fifty-eight cents being balance due him as salary for services as secretary of Defendant Company Germania Mutual 'Saving Society (a corporation) the date of which said services commenced on January 15” 1906 and continued until Aug. 20” 1906 said balance is the amount due after all proper & just credits have been allowed.”

It appears from the evidence that there are two corporations, each under the name of the “Germania Mutual Savings Society.” One of said corporations, called by the witnesses the “old company,” was incorporated under the laws of Arizona in 1905; the other, called by the witnesses the “new company,” was incorporated under the laws of Arizona in 1901 under the name of the Boanoke Investment Company. May 9, 1906, by resolution of the stockholders, ratified by the board of directors of said Boanoke Company, its name was changed to the Germania Mutual Savings Society. August 20, 1906, the “new company” began to do business in Chicago.

The evidence for the plaintiff tended to show that the “old company” was indebted to plaintiff in the sum of $584.25 for services rendered by him to that company from January 15 to August 20, 1906, and that the “new company” was indebted to him in a small amount, less than forty dollars, for services rendered by bim to that company after August 20, 1906. The recovery was therefore against the “new company” for services rendered by the plaintiff to the “old company.”

Defendant in error has filed no brief.

We are unable, from an examination of the record, to discover any ground upon which such recovery can be sustained.

The court instructed the jury as follows, “unless you believe from a preponderance of the evidence that the defendant, (the 4new company’) expressly assumed the liabilities of the Germania Mutual Savings Society of Arizona, (the 6old company’) then your verdict will he for the defendant. ’ ’

We find in the record no evidence tending to prove that the “new company” expressly assumed the liabilities of the “old company,” and no facts proven from which such assumption can be inferred or implied.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Chytraus Per Curiam.

license: Public Domain

text:
    City of Chicago, Plaintiff in Error, v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company, Defendant in Error.
    Gen. No. 14,258.
    1. Assumpsit—what essential to maintenance of. The classifications of liability sustainable in assumpsit are, (a) liability upon express promises or contracts and (b) liability upon implied promises or contracts. Implied promises are divided into promises implied in fact and promises implied in law. Contracts based upon promises implied in fact arise upon circumstances being proven which, according to the ordinary course of dealing and the common understanding of men, show what is in law regarded as sufficient for a mutual intent to contract, that is, circumstances from which the intent to contract can be inferred. Contracts based upon promises implied in law are a legal fiction adopted for the purpose of enforcing legal duties by actions ex contractu when no contract, either express or implied, in fact exists.
    2. Assumpsit—when lies hy municipality against railroad to recover amount expended for repairs upon approaches to viaduct; when not. If a city is in possession and control of streets which form approaches to a railroad viaduct and repairs the same, it may recover the amount expended in assumpsit of the railroad company which is under obligation to keep such approaches in repair. If, however, such city has parted with its possession and control of such streets, in making such expenditures it is a mere volunteer and cannot recover of such railroad.
    3. Railroads—what duties of, cannot he waived hy municipality. A city cannot bind itself by a contract that it will not require a railroad company to maintain a viaduct in a street and approaches to such viaduct across the company’s tracks.
    4. Railroads—how duty of, to construct and maintain viaducts determined. Where the duty of a railroad company to construct viaducts and keep the same in repair is imposed by statute the statute must be looked to, to determine just what that duty is. If the statute only imposes the obligation of construction, then there is no duty to repair.
    5. Railroads1—duty of, to construct and maintain viaducts. Under the. common law as in force in this state there is a duty and obligation imposed upon railroads to construct and maintain crossings over highways, including viaducts and approaches, when the highway existed before the railroad at the place of crossing.
    6. Railroads—section 20, paragraph 5, chapter 114 construed. Held, that the above provision does not apply to railroad corporations not formed under the Railroad and Warehouse Act.
    7. Railroads—what determines necessity for construction and maintenance of viaducts. The passage of an ordinance requiring the construction and maintenance of a viaduct determines the existence of a necessity for the kind and character of viaduct and approaches according to the resolution or ordinance in the particular case. The burden to establish the reasonableness of such an ordinance is not upon the city, but it is incumbent upon a railroad, if it would avoid obedience to such an ordinance, to show that it is unreasonable and invalid.
    8. Streets—limit of power of municipality with respect to. The authorities of cities and villages have no power even by their affirmative acts, much .less by waiver or passive conduct, to surrender or grant away to railroads the public’s rights in streets or highways.
    9. Streets—when city ceases to have legal possession and control. After park commissioners have assumed jurisdiction with respect to a particular street, the city no longer, in contemplation of law, has legal possession and control thereof.
    10. Public policy—how may he ascertained. The public policy of the State may be determined by reference to its legislative enactments existing and in force, notwithstanding the same do not apply to the particular party involved in litigation before the court.
    11. Statutory law—effect given to legislative enactments. Statutory enactments cannot be enlarged by the court in their application beyond what is expressed and what must be included by necessary implication.
    12. Cities, villages and towns—provisions of act with reference to power of city council, etc., construed. The provisions of article 5 of the City and Village Act constitute grants of power to the city and in nowise impose duties upon railroad companies with reference to street crossings, viaducts or approaches.
    13. Cities, villages and towns—effect of adoption of act upon special charter of city of Chicago. The charter powers with respect to streets conferred upon the city of Chicago by its special charter became abrogated upon the adoption by such city of the general provisions of the City and Village Act.
    14. Definitions—“highway.” Except in special instances where the context indicates otherwise, “a street” is included in the term “highway” and a sidewalk is as much a part of the highway as is the roadway for driving or the street itself.
    15. Viaducts—police power of municipality with respect to. The city in the exercise of its police power may require a railroad company to repair a viaduct and the approaches thereto when the railroad was upon the ground which became the crossing before the highway existed.
    16. Ordinances—effect of. An ordinance passed by a city within its legislative power has the same force and effect within its corporate limits as a law passed by the legislature.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Rehearing denied February 5, 1909.
    Statement by tie Court. On March 14, 1907, the City of Chicago brought suit in the Municipal Court against the Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company and other railway companies to recover certain moneys alleged to have been paid, laid out and expended in repairing several sidewalks upon approaches to the Ogden avenue viaduct. These moneys, it is contended, were paid, laid out and expended on behalf of the railroad companies. The suit was later dismissed as to all the companies except the Pittsburg, Cincinhati, Chicago & St. Louis Railroad Company. As to this company there was a trial without a jury, finding for the defendant and, on September 23,1907, a judgment against the plaintiff for costs. To reverse that judgment the city sued out this writ of error.
    There is substantially no controversy of fact. The parties might readily have had this case disposed of upon pleadings alone.
    Ogden avenue runs- northeast and southwest. Between Western avenue and Rockwell street, which streets run north and south, Ogden avenue is crossed, northwest and southeast, by numerous railroad tracks, converging at this point and making a very wide crossing. The railroad tracks, belong to the defendant and other railroads. Coming from the northwest at right angles with Ogden avenue, Campbell avenue runs into Ogden avenue so close to the railroads as to head against some of the converging railroad tracks, which come from an easterly direction south of Ogden avenue. The travel and traffic of Campbell avenue, which stops at Ogden avenue, necessarily, as stipulated, passes to and from that street into Ogden avenue.
    There is a viaduct in Ogden avenue across the railroad tracks. The approach to this viaduct on the west begins its rise a short distance west of Rockwell street and the approach on the east begins its rise a short distance west of Western avenue. When the viaduct was built, in order not to shut off the Campbell avenue traffic desiring to cross the numerous railroad tracks in either direction, a viaduct approach was- built in Campbell avenue beginning its rise back some distance in Campbell avenue, northwest of Ogden avenue. The tracks appear to be much used by the railroads and the viaduct to be also much used by public travel and traffic. The sidewalks that have been repaired, for the cost of which repairs this suit was brought, are the one on the north side of the east approach on Ogden avenue and the two—both sides—on the Campbell avenue approach. The record does not show whether Campbell avenue was a public highway before there was any railroad where the crossing now is; but Ogden avenue, it is stipulated, was a public highway at the present railroad crossing before there was any railroad there. Ogden avenue was originally a street or highway eighty feet wide, but was widened so that it became one hundred and fifty feet wide, in the manner hereinafter stated.
    By an ordinance passed January 17, 1887, the City of Chicago consented that the Board of West Chicago Park Commissioners should “take, regulate, control and improve * * * the center seventy (70) feet” of a certain length, including the part herein involved, of Ogden avenue. This ordinance was passed in accordance with a legislative enactment approved June 27, 1885, and was accepted by the Park Commissioners on January 24, 1887. The legislative enactment (Session Laws 1885, p. 225) so far as material, is as follows:
    “Section 1. That every board of park commissioners shall have power to connect any public park, boulevard or driveway under its control, with any part of any incorporated city, town or village, by selecting and taking any connecting street or streets or part thereof, leading to such park.”

    “Section 2. That such board of park commissioners, or such corporate authorities as are by law authorized to levy taxes or assessments for the maintenance of such parks, shall have power to improve, maintain and repair such street or streets in such manner as they may deem best; and for that purpose they are hereby authorized to pay for the improvement thereof, and from time to time to levy or cause to be levied and collected a special tax or-assessment on contiguous property, abutting upon such street so improved, for a sum of money not exceeding the estimated cost of such improvement or improvements and for the further maintenance and repair thereof, as shall be ordered and estimated by such board of park commissioners. ’ ’
    After the passage of the ordinance of January 17, 1887, and the acceptance thereof, but before the construction of .the viaduct, the Park Oommissioners caused Ogden avenue to be widened to one hundred and fifty feet by adding thirty-five feet to each side thereof. It is agreed that the center of the original eighty foot street is the center of the present one hundred and fifty foot street and that the Ogden avenue sidewalk which was repaired is not on the original eighty feet.
    In the ordinance passed by the city of Chicago it was provided that no viaduct should be constructed except with the consent of the city. During the period of time between July, 1890 and August 1, 1892, as nearly as we can ascertain from the record, the city of Chicago constructed a viaduct in Ogden avenue over this railroad crossing. The measurements given upon a plat introduced in evidence show the east approach of the viaduct on Ogden avenue to be 123.5 feet between the sidewalks, so that the sidewalk on the north side of the east approach on Odgen avenue is entirely on that part of the street or highway added by the West Chicago Park Commissioners.
    It appears that before the construction of the viaduct there was some negotiation between the Commissioner of Public Works and engineers of the city and the defendant herein as to what part of the cost of the viaduct the defendant should pay. The defendant did agree to pay a portion of the cost and, in a letter to the acting City Engineer, whereby it agreed to pay a portion of such cost, it endeavored with the greatest care to limit its liability, for it says: “this company will pay towards the construction of a viaduct on Ogden avenue, an amount equal to our share of a viaduct eighty feet wide—this amount to consist in the total cost of a superstructure over the tracks of this company, one-half the cost of the adjacent piers and one-half the cost of the west abutment.”
    In October, 1904, the sidewalks we are concerned with had become out of repair for the first time, and on October 31, 1904, the city passed an ordinance requiring the defendant and other railroad companies using the tracks under the» viaduct to repair these sidewalks. The railroads were also notified to make such repairs, but they neglected and refused to do so. Then the city itself repaired these sidewalks at a cost of $3,189.18, the fairness and reasonableness of which amount is not disputed, and it has demanded from the railroads reimbursement of this amount. The amount includes the cost of repairing the sidewalks on Campbell avenue and on the north side of the east approach on Ogden avenue, inclusive, without any separation showing the cost of the Campbell avenue sidewalks separately.
    Charles M. Haft, George W. Miller and Emil C. Wetten, for plaintiff in error; Edward J. Brundage, of counsel.
    Loesch, Scofield & Loesch, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

The question as to the liability of the defendant railroad company in this action is considerably involved. The action is predicated upon liability in assumpsit. It is not controverted that the city has paid out and expended the sum of $3,189.18 for the repairs upon the sidewalks in question. But, on the other hand, there is no pretense that the defendant has made any express, either oral or written, request of, or promise to, the city in relation to the expenditure.

The defendant has at all times denied liability and continuously maintained a position inconsistent with any request or promise of or to the plaintiff. How, then, can the defendant be liable to the plaintiff? How can assumpsit be maintained? The classifications of liability sustainable in assumpsit are: liability upon express promises or contracts and liability upon implied promises or contracts. Here we have no express promise. Implied promises are divided into promises implied in fact and promises implied in law. -Contracts based upon promises implied in fact arise upon circumstances being proven which, according to the ordinary course of dealing and the common understanding of men, show what is in law regarded as sufficient for a mutual intent to contract — that is, circumstances from which the intent to contract can be inferred. The law in such case presumes or implies a promise in fact from the acts and conduct of the party. For instance, when one procures labor to be done for him or accepts the benefit of labor, or procures goods, wares or merchandise, or accepts such, without any express request or promise of payment therefor, under such circumstances that in equity and good conscience he ought to make payment therefor, the law will imply a promise to pay whatever the same may reasonably be worth. Such contracts are implied from the facts and circumstances, although there may be no privity between the parties. First Nat. Bank v. Gatton, 172 Ill. 625. But there can be no assumpsit based upon a promise implied in fact against the expressed intent of a party. Here the defendant’s attitude has been such that it must be regarded as having consistently expressed its intent not to be bound and, therefore, the action does not lie upon the theory of a promise implied in fact. Contracts based upon promises implied in law are a legal fiction adopted for the purpose of enforcing legal duties by actions ex contractu when no contract, either express or implied, in fact exists. Concerning this class of contracts it is, under the head of “Contracts,” in Bouvier’s Law Dictionary, said: “ ‘Contract implied in law’ is, however, a term used to cover a class of obligations, where the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him, notwithstanding the absence of intention on his part, and, in many cases, in spite of his actual dissent.” In the case of a contract implied in law no evidence of an express promise or of facts and circumstances—conduct—, from which an intent to promise may be inferred, is necessary, for such contract does not rest on evidence of any promise. It can, however, never exist except where there is shown a plain duty and a consideration, which consideration may consist in a parting with something by the party seeking to enforce such implied contract. Intention is not sought for or regarded. The ordinary privity of contract is here unnecessary as the privity is regarded as existing through the relative duty or obligation. The necessary promise is conclusively presumed in order that there may not be a failure of justice. In this class of assumptual obligations the duty defines and limits the contract, while in the classes of express contracts and contracts implied in fact the contract defines and limits the duty. In this class of action in assumpsit a delinquent husband is at common law bound to pay for the necessaries of his wife. And in I Chitty on Pleading, 351, in a note, in connection with this form of assumpsit, it is said: “It is clear, however, that if money be paid by a person in consequence of a legal liability to which he is subject, but from which a third person ought to have relieved bim by himself paying, the amount, a request by the party primarily in duty bound to lay out and expend the money,- that it be laid out and expended, will be implied.” Authorities cited, which upon inspection are found to fully sustain this rule in principle, are: Hales v. Freeman, 1 Br. & Bing. 391; Spragg v. Hammond, 2 Br. & Bing. 59; Pownal v. Ferrand, 6 Barn. & Cress. 439. Other cases in point are: Port Jarvis v. First Nat. Bank, 96 N. Y. 550; Churchill v. Holt, 127 Mass. 165; Sceva v. True, 53 N. H. 627; Hertzog v. Hertzog, 29 Pa. St. 465; Hunt v. Amidon, 4 Hill (N. Y.) 345; Jacobs v. Pollard, 10 Cush. (Mass.) 287. The cases of Village of Port Jarvis v. First Nat. Bank and Jacobs v. Pollard are interesting as exceptions to the general rule that contribution between tort-feasors will not be compelled. These contracts, implied in law, are sometimes designated ‘‘constructive contracts.” Speaking generally of the theory of implied contracts as a basis for an action in assumpsit, Prof. Walker, in Walker’s American Law, sec. 179, says: “There is, perhaps no branch of the law, which the mind of an unprejudiced person will contemplate with more satisfaction than that which regulates implied contracts. The broad principle which governs them may be thus stated: Every member of society has impliedly contracted to do whatever the law requires of him.”

Only, then, if we find in the case at bar a co-existent duty on the part of the plaintiff and on the part of the defendant, to make the sidewalk repairs in question, and if, as between the two, the duty rests primarily upon the defendant, will there be a liability on the part of the defendant to the plaintiff.

Consequently, it becomes necessary to inquire into the legal duties and obligations of the city and of the railroad company, relatively considered, in connection with this viaduct and the approaches thereto, and from these duties and obligations to determine whether the law raises an implied contract on the part of the railroad company to pay or refund to the plaintiff city the money it has paid out and expended.

The defendant contends for a contract, with the city, of exoneration from liability. For several reasons, however, we attach no importance to this agreement or “contract,” between the city and the defendant, so strenuously contended for and much argued upon by counsel for defendant. Clearly, under Northern Pacific Railway v. Duluth, 208 U. S. 583, the city could not bind itself by a contract that it would not require the defendant railroad company to maintain a viaduct in a street, and approaches to such viaduct, across the defendant’s railroad tracks. So far as can be seen from the correspondence in the record, contended to constitute the contract, neither party had in contemplation during the correspondence more than the construction of the viaduct. The repair or maintenanee of the viaduct or approaches was in nowise in the minds of the parties, as is plainly deducible. Waiver and surrender by a municipality of substantial rights is not to be lightly or readily inferred. No principle of the doctrine of estoppel in pais, upon which doctrine defendant would have to rely in this regard, sustains the defendant in its contention. The city officials, the commissioner of public works and city engineers, who acted in this matter, are not in such positions that they. can, even expressly, waive and surrender the city’s right and, moreover, duty to exercise its police power in the protection of the safety and welfare of its citizens. If the law imposed any duty or obligation, present or potential, upon the defendant in respect to the maintenance of the viaduct and approaches, we cannot accede to the proposition that these city officials waived or surrendered the city’s right to call upon the defendant for performance, when, in the future, the occasion for performance should arise. The authorities of cities and villages do not seem to have power, even by their affirmative acts, much less by waiver or passive conduct, to surrender or grant away to railroads the public rights in streets or highways. Town of Rice v. C., B. & Q. R. Co., 30 Ill. App. 481.

It is, among other things, contended by the city to be the rule, broadly, that the duty to construct a viaduct carries with it the duty to repair it. That is the common law rule, but, in the same connection, it must not be overlooked that at common law it is the duty of the railroad company to construct a viaduct at a crossing only when the railroad is constructed over a previously existing highway. If a highway be constructed over a previously existing railroad then, according to the common law rule, there is no duty upon the railroad in respect to the maintenance of the highway. In all cases of the enactment of a statute on the subject, the statute itself must be looked to for the limitations upon the duty of the railroad. Unless the statute provides for repairing and maintaining, of course, there is no statutory duty in that regard. We do not now have reference, however, to the exercise of the police power. When a statute requires merely the constructions of viaducts at crossings, hy railroads, there is no principle of statutory construction that would permit courts, hy mere construction, so to extend the statute as to include maintenance as a requirement. Hence the rule is not accurately stated by counsel for plaintiff in error. None of the numerous authorities cited sustains the rule as stated by counsel.

Since time immemorial, it appears, the predominant interest in a highway has been the free and unobstructed use thereof by the general public. A street is but a highway. Never has it been within the contemplation of the common law that any person or corporation should be permitted so to use the public highway or any part thereof, by crossing or otherwise, as to interfere with or destroy the free and unobstructed use thereof by the public.

Any obstruction to the traffic and travel of the general public upon the highway, through crossings by private persons or corporations, is a public nuisance at common law; and the common law is in force in this state in that respect. At common law, whenever any person or corporation for his or its own gain or advantage, convenience or necessity, interferes with, cuts into or across the highway, it devolves upon that person or corporation, at his or its own cost and expense, to restore the highway to as good condition as before. When a cut across a highway is so made as to require a bridge, it becomes obligatory upon the one making such cut not only to construct such bridge, but, also, thereafter to maintain the bridge in repair so that travel and traffic will not be unnecessarily obstructed or even inconvenienced. Dygert v. Schenck, 23 Wend. 446. The obligation is a continuing one. At common law any failure in respect thereof renders the offender liable not only in civil proceedings bnt criminally as well. This rule, relative to interference with highways and thereby inconveniencing the public, is, on principle, the same whether the interference be completed, in its physicial extent, upon one occasion, as by the digging of a trench or cut across the highway, or the interference be by an encroachment at first insignificant which becomes seriously objectionable only by slow and gradual enlargement, as, for instance, by a railroad beginning with but one track built across a highway upon which one train a day is run and thereafter adding to the encroachment until there are a dozen tracks at the crossing and innumerable trains run daily, so as to practically appropriate the highway at the crossing. Although, in the latter case, the encroachment is of gradual and barely perceptible growth and the public authorities, therefore, are less likely to be upon guard against it, yet, when the time of action arises, the law is none the less en-forcible, for the offender cannot plead laches in respect to his own wrong and against the public.

Since the appearance of railroads the common law rules relating to interference with highways have been applied to the crossings of streets and highways by them, apparently universally. There is no abatement of the common law rules in favor of railroads. The compulsory construction of viaducts may be enforced against them where, in the opinion of the proper public authorities, the convenience of the public or the safety of lives and property may so require. The common law makes no arbitrary rules, but always follows along lines of sound reasoning, and the reason for applying to a railroad the general rule and compelling it to construct a viaduct where, owing to its crossing a highway, a viaduct is required, is stated to be that the situation and the necessity in regard to the viaduct has arisen solely from the construction of the railroad. The highway was there, and the general public travel and traffic had need of no viaduct but for the action of the railroad company in constructing and maintaining for its gain and advantage railway tracks over the highway.. Thus, also, is occasioned the necessity for the continuance of the viaduct in repair, so that it be safe for use. The duty of maintenance, under the common law, follows upon the duty of construction. In People v. C. & A. R. R. Co., 67 Ill. 118, our Supreme Court said: “It is a well settled principle of the common law resting upon the most obvious considerations of justice, that any person or corporation that cuts through a highway for the benefit of such person or corporation must furnish to the public a proper crossing.” That case is a leading case on the subject and has frequently been cited with approval by other courts. The opinion in the case was unanimous and when it again came before the court, in 72 Ill. 83, there was no dissatisfaction expressed with' the doctrine. In Bloomington v. I. C. R. R. Co., 154 Ill. 539, the case is approvingly quoted, and in C., B. & Q. Ry. v. Drainage Comm’rs., 200 U. S. 561, 589, it is also approvingly cited.

The doctrine, as stated, is well sustained by authorities. Haines v. People, 19 Ill. App. 354; Dyer County v. Railroad, 87 Tenn. 712; City v. St. P., M. & M. Ry. Co., 35 Minn. 131, 140; Eyler v. County Comm’rs., 49 Md. 268; N. C. R. R. Co. v. Baltimore, 46 Md. 425; Town v. Rutland, 75 Vt. 6; Zanesville v. Fannan, 53 Ohio, 605; Palatka etc. R. R. Co. v. State, 23 Fla. 546; Maltby v. West Mich. Ry. Co., 52 Mich. 108; Penn. Ry. Co. v. Duquesne Borough, 46 Pa. St. 223; People v. U. P. Ry. Co., 20 Col. 186; Masterson v. A. Y. etc. R. R. Co., 84 N. Y. 247; 3 Elliott on Railroads, sec. 1102. The case of Dyer County v. Bailroad supra is of interest as it goes fully into the subject and the Supreme Court of Tennessee therein acknowledges its error in formerly holding to the contrary. In Cooke v. Boston etc. R. R. Co., 133 Mass. 185, it was held that the railroad must so keep and maintain its crossing that it will continue to meet the needs and requirements of an increasing population in respect to safety of person and property. This is also the doctrine of Northern Pacific v. Duluth, 208 U. S. 583.

But the common law rule is different when the railroad existed upon the ground before there was any highway there. I. C. R. R. Co. v. Bloomington, 76 Ill. 447. In such case there would be no duty or obligation upon the railroad in respect to furnishing or maintaining a crossing. Here Ogden avenue existed at the place of the crossing before the railroad came, except that part made a highway by the West Chicago Park Commissioners. There is nothing in the record as to when Campbell avenue was first made a highway.

That the approaches to a viaduct, be they longer or shorter, according to the circumstances and requirements of the particular case, are a part of the viaduct, and, also, that the sidewalks upon the approaches, as well as the sidewalks upon the viaduct proper-, are a part of the viaduct, are propositions, too self-evident and too plainly in accordance with the dictates of common sense to require any reference to the authorities on the subject. The common law does not permit itself to be confined or limited, on a subject such as the convenience of the public or the safety of person or property, by any such arbitrary lines as the lines of “right óf way” of a railroad. At common law the duty or obligation in respect to providing for the safety of the person and property of the traveling public is not limited to the area upon the highway within the lines of its right of way. The distance between these lines may be altogether too short to make it feasible to construct a viaduct with necessary approaches, or it may be very much too long for it to be reasonable that it should all be covered with viaduct or approaches in order to sufficiently protect the public. In Bloomington v. I. C. R. R. Co., 154 Ill. 539, 547, our Supreme Court said, relating to this subject: “What would be regarded as the approaches to the -crossing would largely depend upon the demands of the traveling public, upon the action of the local authorities, and upon what would be reasonable under the circumstances and local situation in each case. It is manifest that they do not and should not, in all cases, include all that part of the right of way that is covered by the street or highway.” And, later: “What is to be considered as the extent of the approaches to the railroad crossing must be determined by what is reasonable in the particular case, and this is fixed, for the time being, at least, by the actual approach or structure made by the railroad company, with the acquiescence of the public and the public authorities.” What is said with reference to crossing approaches is entirely applicable to viaduct approaches, and when a railroad has voluntarily contributed toward the construction of a particular viaduct that is, prima facie at least, evidence of its acquiescence in its extent, the same as if the railroad had itself built the viaduct.

From the foregoing it is clear that under the common law as in force in this state, there is a duty and obligation imposed upon railroads to construct and maintain crossings over highways, including viaducts and approaches, when the highway existed before the railroad at the place of crossing.

We are referred to Wetherbee v. Mich Cent. R. Co., 122 Mich. 1, by counsel for defendant, as holding that a railway company is under no obligations to repair a viaduct, or its approaches, which carries a street over its tracks. It is true that, by holding the railway not to be liable to one injured upon such a viaduct, by reason of a defect therein, the case does hold with the defendant herein in its contention. The holding in that case is upon the ground that as the city had possession and control of the viaduct therefore the railroad was not liable in a suit against it by one injured on the viaduct because of defects in the planking thereon. The ease is squarely against the decisions in this state, in the Supreme Court of the United States and all decisions elsewhere, based upon the authority of the common law. Furthermore, the decision in that ease, as appears, was rendered without citation of authority or the reference to any statutory provision in support of the rule announced. We cannot follow that case as authority.

We also have in this state a legislative enactment on the subject. The railroad and warehouse act, Rev. Stats., chap. 114, sec. 20, par. 5, provides that railways may be constructed across any street or highway that their routes may intersect or touch, but they shall restore the street or highway intersected or touched “to its former state, or to such state as not unnecessarily to have impaired its usefulness, and keep such crossing in repair.” In the beginning of the section it is indicated that the subject of the section is the grant of powers to railroad corporations “formed under this act,” and as the record herein shows the defendant is not incorporated under that act, we cannot apply this statutory enactment to this defendant.' Yet the enactment indicates that the policy of the state is neither inconsistent nor in conflict with the common law. The enactment, of course, cannot by judicial enlargement be made to embrace corporations other than those it in terms embraces.

In the same chapter we find “An Act in relation to fencing and operating railroads” in force July 1, 1874. Paragraphs 8-11 are enactments relating to the same subject. This paragraph 8 is urged upon our attention in argument. It is true it provides that the several railroads in this state shall construct and maintain all the railroad crossings of highways and streets in this state, so that these crossings shall at all times be safe as to persons and property. But this paragraph in nowise aids or assists plaintiff in error, for the duty and obligation it lays upon these railroads is expressly limited “within their respective rights of way.” The record herein does not show that any of the repairs made by the plaintiff in error, for which it now seeks to be reimbursed by the defendant in error, were made within the right of way of the defendant in error. And again we say, statutory enactments cannot be enlarged by the courts, in their application, beyond what is expressed and what must be included by necessary implication.

There is no duty imposed upon defendant by either of these two last mentioned statutory enactments, with reference to the viaduct and approaches here in question. Therefore, the plaintiff in error obtains no comfort from these enactments in the prosecution of its present claim.

The city advances various provisions of Article V of the Cities and Villages Act and various provisions of the special charter of the city as tending to sustain its contention that it is entitled to recover from the defendant railroad company the money laid out and expended for repairs of the sidewalks, The numerous provisions of Article V advanced are all in section one thereof, and they all relate to the power of the city with reference to the streets, sidewalks, railroads and crossings within the city. These provisions are all provisions granting power—provisions of empowerization—not provisions which, of and by themselves alone, create duty on the part of this defendant. Section one of Article V begins: “The city council in cities, and the president and the board of trustees in villages, shall have the following powers:” and then follow the. provisions advanced by counsel. This Article V is an instrument of grant of power to the city, but in nowise does it directly impose any duty upon the defendant with reference to street crossings, viaducts or approaches.

The provisions of the special charter which are invoked are paragraphs the thirtieth, forty-ninth, fifty-fourth and the sixty-fourth of section 8, chapter IV of the charter of Chicago, passed February 13, 1863, Session laws of 1863; also to be found in the Laws and Ordinances of Chicago of 1873.

The subjects of these special charter provisions are the same as of Article V of the Cities and Villages Act above mentioned, and we are of opinion that the charter provisions became inoperative when the City of Chicago adopted the Cities and Villages Act in 1872. But had they not become abrogated by such action of the city, what we have said with reference to the provisions of Article V would all have been applicable in respect to these charter provisions. This statutory empowerization of the city in Article V above is, however, in harmony with the common law principles regarding the duty and obligations of the defendant railroad and the city, relatively, in respect to railroad crossings within the city. Thereby is granted both legislative power and police power, and thereby the city is enabled to legislate as to the duty of railroads in the respect mentioned and to enforce both the common law and its own legislation by the exercise of the police power of the state. When the city, in conformity with these statutory enactments, has passed ordinances or resolutions it becomes the duty of the railroads, under the law, to comply with such ordinances and resolutions. The passage of an ordinance or resolution" is legislation which determines the existence of a necessity for the kind and character of viaduct and approaches according to the resolution or ordinance in the particular case. If the powers of the city are exercised in respect to a locality within the jurisdiction of the city, the ordinance or resolution is valid and conclusive until overthrown in some manner and for some reason sufficient in the law. If an ordinance be resisted as invalid because unreasonable, the burden is not upon the city to show its reasonableness, but it is upon the resisting party to show that in its requirements it is unreasonable. We must assume that when this viaduct was built the existing conditions were such that a viaduct and approaches of the kind and character constructed were necessary for the safety of persons and property, by reason of the conditions created in the street by the railroads. The only conclusion we can arrive at is that this viaduct and these approaches were rendered necessary and owe their existence solely to the railroad tracks that cross Ogden avenue and the trains run upon these tracks by the railroads.

Excepting special instances where the context indicates otherwise, we hold that a “street” is inlcuded in the term “highway” on the principle of M. & O. R. R. Co. v. Davis, 130 Ill. 146, and that the sidewalk is as much a part of the highway as is the roadway for driving or the street itself, upon the authority of Gridley v. Bloomington, 88 Ill. 554. The duties and obligations of the railroad and of the city, respectively, toward the public, with reference to keeping in repair the sidewalk, are of the like nature and extent as with reference to the street or roadway, so far as the general questions in this case are concerned.

As appears from decisions of our Supreme Court, presently to he cited, and from Northern Pacific v. Duluth, 208 U. S. 583, clearly expressing the law in harmony with those decisions, it is a legitimate exercise of the police power for a city to require a railway company to repair a viaduct and the approaches thereto. In that case the power was exercised with reference to a place where the railroad existed before the highway. As the case deals with the principles governing the exercise of the police power in respect to constructing and repairing viaducts and approaches and also the principles governing the bar of a contract, as contended for by this defendant, we shall refer to the case at some length. The Northern Pacific, the litigating company, set up a contract by virtue of a provision in the charter of a predecessor whose charter rights and obligations had devolved upon the Northern Pacific and a contract with the city, as exonerating it from the duty of making the repairs required by the city and as restricting the exercise of the police power. The Lake Superior <fe Mississippi Eailroad Company, the predecessor in title, had the following provision in its charter:

“Sec. 6. The said company may construct the said railroad across any public or private road, highway * * if the same be necessary: Provided, * * * said company shall return the same to their present state, or in a sufficient manner so as not to impair the usefulness of such road, highway, stream of water or watercourse, to the owner or to the public.”

6 6 Sec. 17. This act is hereby declared to be a public act, and may be amended by any subsequent legislative assembly in any manner not destroying or impairing the vested right of said corporation.”

In 1869 the Lake Superior & Mississippi Eailroad laid its track, in Duluth, across the strip of land that afterwards became Lake avenue. In 1871 that avenue was laid out and has since been in continuous use as a public street. In 1901 the amount of business on Lake avenue and the number of tracks therein had become so great that the constant passage of cars and engines endangered the safety of the public. The city of Duluth then prepared plans and specifications for the construction of a viaduct in Lake avenue to carry the street over the railroad tracks and demanded that the railroad company construct the same. The company denied any obligation to build the viaduct but, after considerable negotiations, made a contract under date of September 2, 1891, which contract was set up as a full defense to the right of the city of Duluth to require the repair of the viaduct at the company’s expense. The contract provided that the city should build the viaduct and carry it over the tracks and the company would contribute $50,000. The city undertook to maintain that part over the railroad’s right of way for fifteen years and to perpetually maintain the approaches. The viaduct cost $23,000 in addition to the $50,000 which the company contributed. In 1903 the viaduct and its approaches became dangerous for public use and the city of Duluth, purporting to act within the general power conferred on it by law to require railroad companies to construct bridges and viaducts at their own expense at public railroad crossings, passed a resolution for certain repairs of the viaduct and the approaches. The resolution specified the repairs, set forth the necessity thereof, demanded that the railway company immediately proceed to make the repairs and provided that upon refusal the city attorney institute such action as he might deem proper to compel the company to make the repairs. Upon refusal by the company a mandamus proceeding was accordingly instituted. The Supreme Court of Minnesota affirmed a judgment awarding a mandamus. The case was brought to the United States Supreme Court and that court, in holding that it had jurisdiction, said: “We are of the opinion that it [the resolution] is legislative action which impairs the obligation of the contract, if the contract is of binding force, which is a question to be determined upon the merits.” And, later: “If the contract was of binding force and effect it would relieve the railroad company from making such improvements within the right of way for the period of fifteen years and permanently relieve it of other improvements upon the viaduct. To require.that it shall make these improvements within the period named, as this legislation does, is to require the railroad to incur expenses for things which the city has expressly contracted to relieve it from during the period mentioned. ’ ’

The question was thus squarely before the United States Supreme Court whether a city, in the exercise of its police power, can require a railroad company to repair—i. e., maintain—a viaduct and the approaches thereto, when the railroad was upon the ground, which became the crossing, before the highway existed. And this question arose in a case where the city had expressly contracted with the railroad not to require the repairs to be done at the expense of the railroad. By a unanimous opinion, the court held that the city could, even under these circumstances, require the railroad company to repair the viaduct and approaches thereto at its own expense. Among other things the court, in so holding, said (p. 596) : “There can be no question as to the attitude of this court upon this question, as it has been uniformly held that the right to exercise the police power is a continuing one; that it cannot be contracted away, and that a requirement that a company or individual comply with reasonable police regulations without compensation is the legitimate exercise of the power and not in violation of the constitutional inhibition against the impairment of the obligation of contracts.” After citing certain authorities the court further said (p. 597): “The result of these cases is to establish the doctrine of this court to be that the exercise of the police power in the interest of public health and safety is to be maintained unhampered by contracts in private interests, and that uncompensated obedience to laws passed in its exercise is not violative of property rights protected by the Federal Constitution.” And, in conclusion, replying to certain contentions on the part of the railroad company, the court said: “But the exercise of the police power cannot be limited by contract for reasons of public policy, nor can it be destroyed by compromise, and it is immaterial upon what consideration the contracts rest, as it is beyond the authority of the State or the municipality to abrogate this power so necessary to the public safety.”

The United States Supreme Court cites and follows C. & A. R. R. Co. v. J., L. & A. Ry. Co., 105 Ill. 388, 400. In C. & N. W. Ry. Co. v. Chicago, 140 Ill. 309, 317, it is said: “Government owes to its citizens the duty of providing and preserving safe and convenient highways. From this duty results the right of public control over public highways. Bailroads are public highways, and in their relation as such to the public are subject to legislative supervision, though the interests of their shareholders are private property.” And, later, p. 319•: “Railroad corporations may be required to fence their tracks, to put in cattle guards * * * and do other things for the protection of life and property, although their charters contain no such requirements.” This case sustains, generally, the doctrine of the case of Northern Pacific v. Duluth. So, also, I. C. R. R. Co. v. Willenborg, 117 Ill. 203. To the same effect as to the extent of the police power is C., B. & Q. R. R. Co. v. People, 200 U. S. 561.

In Elliott on Roads, section 600, it is said:' “If the railway company is bound to keep a crossing in repair and fails or refuses to perform that duty, the officers of the city or town required to see that it is kept safe for travel may repair it and recover the cost thereof from the railway.”

We find nothing in People v. I. C. R. R. Co., 235 Ill. 374, denying the existence of the police power in the city with reference to railroads crossing streets or highways or curtailing its extent as laid down in the former decisions of the Supreme Court of this state or, by the Supreme Court of the United States, in Northern Pacific v. Duluth and C., B. & Q. R. R. v. Chicago. On the contrary, the existence and extent of the power is reiterated. The only question in that case was with reference to its application. It was held a railroad corporation may be required to do anything reasonably necessary for the protection and safety of persons and property crossing its railroad and that there, where the street did not pass over but under the tracks, the railroad corporation was “required to maintain its structures supporting the tracks in such condition as to render it safe for persons and property passing underneath them;” but that, in such case, the company was not required to maintain the pavement and sidewalks in the subway and approaches. In the opinion it is said that if section 8, hereinbefore referred to, were applicable to the facts, then the city would be correct in its contention for the duty , of maintenance and, later, that as the duty of maintenance was imposed on the corporation neither by its charter nor by any law passed in the exercise of the police power of the state the company’s duty ended with the elevation by it of its tracks and the restoration by it of the street and sidewalks to proper condition, when the crossing was changed from one at grade to a subway; on the ground, evidently, of the absence of “any law passed in the exercise of the police power of the state” and because the company’s charter only required that it “restore” the highway.to its former state. It is to be observed that in that case it is stated: “At the time the Illinois Central Railroad Company was constructed, there was no Sixty-third street and no crossing at the place where it is now located;” hence the common law rule applicable when a crossing is created by the location of a highway after the railroad tracks are on the ground was applicable in that case. The common law rules as hereinbefore stated are not in conflict with anything held or said in that case.

From what has been said it is plain,that under the common law it is and has been the duty of this defendant, as well as of certain other railroad companies, to keep in repair the Ogden avenue viaduct and approaches. Whether it be more or less the duty of the defendant than the duty of some of the other roads is a question that cannot be permitted to defeat recovery in such case. When several railroads cut into a highway, or maintain an obstruction to travel thereon, at the same place, we may not be able to say that they are equally liable, but it is the act of each in conjunction with the act of each and every of the others that makes the obstruction as a whole. It is the act of each jointly with all the others that makes the viaduct and approaches necessary. This does not make the railroads liable jointly only, for at common law the interference with the highway is a tort and even a crime. Joint tort-feasors are liable jointly and severally, and ont of such tort as this an assumpsit grows.

On October 31, 1904, the city passed an ordinance requiring the immediate repair, by the defendant and other railroad companies, of the sidewalks here involved and other sidewalks. If the city had jurisdiction of the location, which is a question we shall presently come to, then, immediately upon the passage of the ordinance, a duty and obligation to comply therewith arose on the part of this defendant. This duty would have its source in the statutory enactments of the state. The police power of a city existing, like Chicago, under the Cities and Villages Act extends to and embraces all subjects of police regulation under the general police power of the State. McPherson v. Village, 114 Ill. 46. And, an ordinance passed by a city, within its legislative power, has the same force and effect within the corporate limits as a law passed by the legislature. Hope v. Alton, 214 Ill. 102, 105. There has been no performance by the defendant of its duty and obligation existing under the common law, nor, if the city had jurisdiction of the locality, under the legislative enactments of the state and the city.

On January 17, 1887, Ogden avenue was 80 feet wide. By an ordinance of the city passed on that day and accepted by the West Chicago Park Commissioners on January 24, 1887, the possession and control of the center 70 feet of that 80 foot street was turned over to the Park Commissioners. This transfer was made in accordance with a previous legislative enactment, approved June 27, 1885. After that transfer the city had control only over a strip five feet wide on each side of the center 70 feet of Ogden avenue. There is no sidewalk on any part of either of these five-foot strips nor has any repair been made upon either of these. The Park Commissioners increased the width of Ogden avenue to 150 feet by adding 35 feet to each side thereof.

The duty of the city in respect to its streets and sidewalks is to keep the same reasonably safe for ordinary use, so far as this can be done by the exercise of ordinary care. Hence, the Ogden avenue viaduct and approaches being within the corporate limits of the city, we find, as a general proposition, in respect thereto, that there would be a co-existence of duty on the part of the city and on the part of the defendant to maintain the same, with the duty resting primarily upon the defendant. So,far we find the conditions to exist which would permit the plaintiff herein to recover in assumpsit. But we also find that, under legislative sanction, the city divested itself of the possession and control of the greater part of Ogden avenue at the place in question, and that the part thereof upon which the repaired sidewalk rests is not now and never was in the possession or control of the city, therefore there has been no duty or obligation upon the city to keep in repair this particular sidewalk on Ogden avenue. And, hence, so far as the city laid out and expended any money for the repair of this particular sidewalk,, it was a mere volunteer in the payment of another’s debt or performance of his obligation and cannot recover the amount- so laid out and expended upon an assumpsit implied in law. At the time of the expenditure of the $3,189.18, the Park Commissioners were, under the law, in absolute control of the Ogden avenue viaduct and approaches, except the two strips of five feet each. They had full power, and it was their duty, under the law, to maintain in repair that part in their possession and control They had the power of levying taxes or special assessments for that purpose. Hence the defendant is under no obligation to reimburse the city for its expenditure upon the Ogden avenue sidewalk. The situation may be different with respect to the sidewalk on the Campbell avenue approach, but as the trial judge, under the stipulation and evidence in this case, did not and could not, upon this record, know how much was expended for repairs to the sidewalks on Campbell avenue, the judgment rendered is- correct.

The judgment of the Municipal Court of Chicago will be affirmed.

Affirmed.

Opinion on Petition por Behearing.

Per Curiam.

The city petitions for a rehearing and bases its application upon three propositions:

First : It is supposed the court overlooked the parties’ stipulations: that Ogden avenue “was and is now a public street and highway used and occupied by the City of Chicago and the various inhabitants thereof for the purposes of public traffic and travel;” that the “viaduct, including the approaches thereto, was constructed by the City of Chicago for street cars,” and that defendant entered into a contract with the city relative to the viaduct. We overlooked none of all this". It is clear that when, under and in accordance with a legislative enactment, the city, through its own ordinance and the acceptance by the Park Commissioners, parted with the right to the possession and control of the part of a highway involved, the possession and control thereof, in contemplation of law, no longer continued in the city. Thereafter the city’s duty in respect thereto was not the same as in respect to other streets in the city. That surrendered highway might thereafter continue to be “used and occupied” by the city “and the various inhabitants thereof for the purposes of public traffic and travel.” Such use and occupation of a highway is not in the slightest degree inconsistent with possession and control thereof by another municipality, viz.: the Park Commissioners. Possession and control of a highway by a municipality does not mean the exclusion of the traffic and travel of other municipalities and the inhabitants thereof; on the contrary, the very fact that it is a highway implies the privileges of such traffic and travel. Occupation by one has never been considered inconsistent with possession in another. We ignored totally any question of title. For the purpose of passing upon the city’s right of recovery in assumpsit (assumpsit being possibly the only theory upon which there could be a recovery by the city of the money paid out by it), it was necessary for us to ascertain if any relative duty existed under the law in regard to making the repairs in question. In that connection we did determine that the possession and control of this public highway, under the law, was in the Park Commissioners, and not in the City of Chicago, at the time these repairs were made. The municipal duty of repair followed the possession and control. There being no duty upon the city to repair, there could be no duty upon the city and the defendant railway company relatively, and, consequently, the city cannot recover in assumpsit. We fail to see how it is material who constructed the viaduct and approaches or with whom the city contracted in connection with such construction.

Second : It is urged that the adoption by Chicago of the Cities and Villages Act did not operate to repeal provisions of Chicago’s special charter inconsistent with that act. We do not wish to be understood as holding the contrary. But the invoked provisions of the special charter are completely covered by the Cities and Villages Act and, furthermore, there is no conflict; so that the retention of those particular provisions would neither add to nor detract from the law as enacted by the Cities and Villages Act. The general subject of those particular provisions being covered by the later act, they were abrogated when the city adopted the later act.

Thibd : It is urged that a railroad is bound to maintain a crossing whether the highway existed first or not. Such is not the common law and no statute is adduced to that effect. Whence, then, can such a rule arise? Very clearly counsel misapprehend the authorities cited by them to sustain the proposition. True, whether the highway or the railroad existed first, a railroad may be compelled to maintain crossings, by the exercise of the police power; but that is a proposition very different from that urged by counsel. When the railroad exists first it is not, in this state, so bounden either by the common law or by statute; but, although it exist first, the railroad may be compelled by the exercise of the police power to maintain a crossing, when it is reasonable that it should do so. But in such case, no duty exists until the police power is exerted, and when the state or the municipality exercises its police power, then, first, does the duty arise. As we understand the law, however, a city or other municipality cannot, by the exercise of the police power, compel the construction of a bridge or viaduct in a highway, or the repair of either, when the highway is not in the possession or control of that municipality. The petition for a rehearing is denied.


author: Mr. Justice Chytraus

text:
    City of Chicago, Plaintiff in Error, v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company et al., Defendants in Error.
    Gen. No. 14,259.
    This case is controlled by the decision in Chicago v. P., C., C. & St. L. R. R. Co., ante, p. 403.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Rehearing denied February 5, 1909.
    Charles M. Haft, Emil C. Wetten, George W. Miller, for plaintiff in error; Edward J. Brundage, of counsel.

      S. A. Lynde and Frederic Burnham, for defendant in error, C. & N. W. Ry. Co.
   Mr. Justice Chytraus

delivered the opinion of the court.

The judgment this writ of error was sued out to reverse was rendered against the plaintiff in error in an action by it against the Pittsburg, Cincinnati, Chicago & St. Louis Bailroad Company, the Union Stock Yards & Transit Company, the Chicago & Northwestern Bailroad Company and the Chicago Terminal Transfer Bailroad Company. Findings in the trial court were in favor of the defendants and judgment was entered upon the findings and against the plaintiff for costs. The suit was brought by the city to recover from the defendants $716.46, being for money laid out and expended for repairs of the sidewalks on each side of the west approach of the Ogden avenue viaduct. The viaduct is the same one referred to in Chicago v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company, General Number 14258, ante, p. 403. As the facts and circumstances are alike in the two cases, except that here we are concerned with the west approach, while in the other case the east approach, including a part thereof running into Campbell avenue, was involved, what we there said must control the decision in this case. The judgment of the Municipal Court will therefore be affirmed.

Affirmed.


author: Me. Presiding Justice Adams

text:
    J. Gerbig, Defendant in Error, v. T. B. Moore, Plaintiff in Error.
    Gen. No. 13,456.

      Tendee—what essential to effectiveness. A withdrawal of a tender destroys its effectiveness; to avail a tender must be kept good.
    Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tdthill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 4, 1908.
    Rehearing denied February 18, 1909.
    Cantwell & Both, for plaintiff in error.
    John E. Van Natta, for defendant in error.
   Me. Presiding Justice Adams

delivered the opinion of the court.

The defendant in error was plaintiff and the plaintiff in error was defendant in the trial court. The plaintiff sued the defendant before a justice of the peace, and recovered judgment for $64; and the defendant appealed to the Circuit Court, where the cause was tried by the court and a jury. The jury found for the plaintiff and assessed the plaintiff’s damages at the sum of $42.83. The defendant moved for a new trial, which motion was overruled and judgment was rendered on the verdict.

The parties are both women. The defendant is, or was, a dressmaker. The evidence tends to prove the following facts: The plaintiff went to defendant and told her that she wanted a double-breasted gown made, and that she, plaintiff, would furnish the cloth and other necessary materials. The dress was to be of black chiffon broadcloth. On defendant suggesting that she, being a dressmaker, could get the cloth and other things necessary more cheaply than could the plaintiff, plaintiff consented that 'she might do so, and paid her $20, the balance to be paid when the gown should be finished, which was to be in about two weeks. Defendant guaranteed that the workmanship would-be first-class, and the gown a perfect fit and satisfactory in every way. There was a great deal of delay in making the gown; but finally defendant sent it to plaintiff, by a boy, early on a Sunday morning. Plaintiff asked the boy to permit her to see the gown, which he refused, and said his instructions were not to let the gown go out of his hands till he should get the money for it, for which he had a bill for the sum of $40.83. Plaintiff paid the bill and went back to her bed, from which she had arisen when the boy came with the gown. The gown did not fit the plaintiff; defendant tried to alter it so that it would fit, but failed. Hence this litigation. The foregoing facts are supported by the greater weight of the1 evidence.

The plaintiff, at the commencement of the trial, tendered the gown to the defendant in open court, but, on the hearing of the motion for a new trial, plaintiff’s counsel “stated to the court that the plaintiff had taken the garment which had been produced in evidence on the trial; and counsel for plaintiff thereupon stated to the court that he had the said garment in his possession, and did not think that he should be compelled to deliver it up to the defendant unless they paid the total sum of $60.83 to the plaintiff,” etc. This was equivalent to a withdrawal of the tender, which, had it occurred in the presence of the jury, on the trial, would have left the suit to stand as one for damages. The jury evidently, by their verdict, treated the suit as one for damages, as they deducted $20, the price of the materials of the gown, from the total amount paid by the plaintiff. The plaintiff has the gown and a judgment for $42.83. We think substantial justice has been done, and the judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Adams

text:
    John C. P. Rurup, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 14,171.

      Verdict—when not disturbed. Where the evidence is conflicting a verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifeobd, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    Rehearing denied, opinion modified and refiled February 18, 1909.
    John A. Rose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    Walter A. Brendecke, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellee, plaintiff below, sued appellant for damages, for an injury to his person, alleged to have been caused by appellant’s negligence. The sufficiency of the declaration is not questioned. The defendant pleaded the general issue. The jury found for the plaintiff and assessed his damages at the sum of $10,-000, and the court overruled the defendant’s motions for a new trial and in arrest of judgment and rendered judgment on the verdict.

The plaintiff was a passenger on one of defendant’s street cars, bound northwest on Elston avenue, a street of the city of Chicago lying northeast and southeast. The train in which the car was consisted of a closed motor car and a trailer, an open summer car. The motive power of the train was electricity. The plaintiff was on the rear platform of the front or motor car. When the train reached the intersection of Elston avenue and Kedzie avenue, an east and west street, it was stopped to permit passengers to alight, and the plaintiff, when attempting to alight, fell or was thrown from the car and was seriously and, as the evidence tends to prove, permanently injured. The plaintiff’s claim is, that when the car stopped and was standing, he attempted to alight from it, and that while he was so attempting, and before he had sufficient time to alight, the car was suddenly and violently started, with a jerk, throwing him to the ground. The defendant’s contention is, that plaintiff attempted to alight from the car while it was in motion, after having stopped at Elston and Kedzie avenues to discharge passengers, and after it had started from there.

There was a former trial of the cause, resulting in a judgment for $9,500, from which an appeal was taken to this court, and we reversed the judgment and remanded the cause. On the last trial the witnesses were the same as on the first, with the exception that the plaintiff produced three additional witnesses and the defendant one additional witness. The defendant’s counsel contend that the verdict is contrary to the preponderance of the evidence, and that the trial court erred in modifying instructions requested by the de fendant, and in giving them as modified.

As the question whether the verdict is against the weight of the evidence can only be determined by an examination of the evidence, we have carefully read and examined the evidence, and the arguments of counsel in respect to it. On the main issue in the ease, namely, whether the plaintiff attempted to alight when the car had stopped to permit passengers to alight, or whether he so attempted after the ear had started from the place where it had stopped, and was moving-on its way to its terminus, the evidence is directly conflicting and utterly irreconcilable. The same is true of other material and controverted matters. The plaintiff called eight and defendant seven witnesses. In this state of the evidence it was for the jury to determine which witnesses were entitled to credence, those for the plaintiff or those for the defendant. Western Insurance Co. v. Weaver, 23 Ill. App. 95; McKichan v. McBean, 45 Ill. 228; Hope Ins. Co. v. Lonergan, 48 ib. 49; McCarthy v. Mooney, 49 ib. 247.

In Shevalier v. Seager, 121 Ill. 564, which was a contested will case, the court, after stating the rule in the case of conflicting evidence, say: “The truth is, the rule could not be otherwise, without invading the province of the jury to determine the credibility of witnesses, and to say which of them are to be believed in case of a conflict.” Ib. 569. See, also, page 570, where it is clearly stated that, in ease of a conflict, it is for the jury to determine what witnesses are to be believed.

We are not forgetful that it is our duty to set aside a verdict when it is manifestly against the weight of the evidence; but in this case the evidence is so conflicting that if the verdict were for the defendant, we would not feel warranted in setting it aside. The verdict is supported by the evidence, and we cannot say that it is manifestly against its weight.

Two juries have found for the plaintiff, and the trial court refused, in each instance, to set aside the verdict. This indicates the improbability of a different result should another trial be awarded. Three instructions requested by defendant concluded with the words, “you should find the defendant not guilty. ’’ The court struck out these words and gave the instructions without them. The meaning of each of the instructions was substantially the same after the words were stricken out as before. We find no reversible error in the court’s action in the premises, or in the record.

The judgment will be affirmed.

Affirmed.


author: Mb. Pbesedihg Justice Adams

text:
    Joseph Kendzior, Appellant, v. Illinois Steel Company, Appellee.
    Gen. No. 14,182.
    Master and servant—when instructions need not he given inexperienced servant. A master is not obliged to instruct an inexperienced servant as to dangers which are obvious or known to him.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Axel Chytratts, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    F. Ho Teude and. Joseph EL McMahoh, for appellant.
    Khapp, Hayhie & Campbell, GL B. Call and William Beye, for appellee.
   Mb. Pbesedihg Justice Adams

delivered the opinion

of the court.

The plaintiff, Kendzior, sued the defendant, the Illinois Steel Company in case, averring that he was injured by the defendant’s negligence. No question is presented in. respect to the pleadings. The court, at the close of the plaintiff’s evidence, directed the jury to find the defendant not guilty, which the jury did, and judgment was rendered on the verdict.

The contentions of the plaintiff, by his counsel, are, that the court erred in instructing the jury' to find for the defendant, and in overruling plaintiff’s motion for a new trial.

The plaintiff was employed by defendant June 24, 1904. At that time he was nearly twenty-four years of age, and had been employed about two years and three or four months at blast furnaces. He seems to have been employed by the defendant as a common laborer, and was first put to work about nine o’clock in the morning of June 24, 1904, cleaning up. Next, and about two o ’clock of the same day, he was put to work knocking out castings from the flasks, or cases, in which they were. After he had knocked out about twenty' of the castings he was put to work knocking out a larger casting from a case or flask, in doing which the.accident occurred. The following statement, taken from appellee’s argument, we find from the record to be substantially correct:

“The casting that was being knocked out at the time of the accident had been made by filling a mold with .metal. The casting was incased in a flask.

The flask consisted of what is known as the truck and the cope. The truck was the lower part of the flask, the cope the upper part of the flask. The truck and the flask were twelve feet long; about two or three feet wide at the top, and each about eighteen inches deep; an iron frame two inches thick, without top or bottom. Across the top of the cope, which was the top part of the flask, bars ran from side to side. These bars were bolted to the sides of the cope. There were no bars in the truck or lower part of the flask.

The mold was made as follows:. The lower part of the flask or truck was placed upon the ground, then partially filled with sand, which was rammed in tight. In this sand was placed a pattern which formed the shape for the mold. Then sand was placed around the pattern and rammed in tight even with the top of the truck. Then on top of the truck was placed the cope and clamped into position, and then sand was placed in the cope and rammed and packed down about the pattern, over the pattern and on a level with the top of the cope, at times covering the bars that extended from side to side of the cope. The cope was then lifted off, the pattern removed, the cope then replaced upon the truck. The cope and the truck being then clamped together, the mold was complete in form, made by the sand within the truck and the cope. The completed mold in the flask was then taken to an oven and baked until the sand was of the proper hardness. Then the casting took place, there having been left what are known as risers in the sand in the cope through which the metal could be poured into the mold. After the metal had been poured into the mold, which was making the casting, the flask with the casting in it was permitted to stand until time to knock out the casting.

The casting would be knocked out of the flask as follows : The crane would hold the flask suspended. The men would then pound upon the sand and the casting and the sides of the flask, so as to loosen the sand within the flask, and the loosening of the sand would cause the casting to drop through the bottom of the flask or truck, the sand falling out at the same time that the casting would come. Bars were sometimes used, when working at the sand from underneath the casting, in order to more readily loosen the sand about the casting.

At the top of the cope and running around the outside was a flange four inches and a half wide and two inches thick.

Plaintiff had assisted in knocking out about twenty castings before the accident. These castings were called small castings, in that they were not as large as the casting upon which he was working at the time of the accident. The small castings were fitted into the flasks just the same as the large castings were. The small castings that plaintiff had emptied had sand around and over them and whenever the castings were broke out the sand also fell. Some of the men used sledge hammers and others used crowbars in knocking these small castings out of . the flasks. Whenever the casting came out the sand came out also, and after that if any sand remained in it, it had to be knocked out. At the time the small castings were knocked out of the flask they were held suspended by the crane, the men standing upon the ground. They were held suspended from the crane just high enough from the floor so that the men would have a good swing and give them a chance to strike with their hammers.

The flask upon which plaintiff was working at the time he was injured was at first resting upon the ground. It was desired to knock the casting out so that it would fall in a place where there was a pile of other castings. The foreman told plaintiff and his partner to get upon the flask when it was moved, and to knock out the casting. The flask was then moved over and above the pile of castings and plaintiff proceeded to knock out the casting. At the time of the accident he says that he was standing on the sand within the flask and pounding on the sand, when the sand caved in and he fell through between the sides of the flask. The flask was suspended from the crane by a chain running to the crane hook from either corner of the flask. The partner of plaintiff at the time the casting dropped through had hold of the chain.”

We think it clear from the evidence that the accident occurred by reason of plaintiff’s negligence, in standing on the sand, when pounding on it, for the purpose of loosening it, so that it and the casting enclosed in it would fall out, instead of standing on the flange which surrounded it. The order given to him by his foreman was to stand on the flask. Plaintiff testified: “He told me to get on top of that flask there, and got me that sledge, and told me to knock right on the sand, so as to get the sand out the same as the casting.” He further testified: “I then stood right on that sand, and pounded on that sand five or six times, maybe more, then all dropped out under me.”

Appellant’s counsel say that the plaintiff was inexperienced in the kind of work in which he was engaged, and should have been instructed, and was not informed' that the flask was bottomless, and that its contents would fall to the ground. He had knocked out the sand and casting from twenty flasks before he was directed to knock the larger casting and the sand from the flask at which the accident occurred. He testified: “The small castings that I had emptied had sand around and over them, and whenever the castings were broke out the sand fell.” This he had witnessed at least twenty times. Knowing that the sand and castings would fall out of the flask together, he needed no instruction that if he should stand on the sand, over the casting, and pound it till it would become loose and fall down, he would go down with it.

Beasonable minds could reach only one conclusion, viz: that the accident was occasioned by the plaintiff’s carelessness.

The judgment will be affirmed.

Affirmed.


text:
    William A. Chenoweth, Appellee v. Bradley Burr, Appellant.
    Gen. No. 14,188.
    1. Pleading—effect of general issue to supply omissions of declaration. If the defendant does not demur to the declaration hut pleads the general issue, he thereby impliedly admits the sufficiency of such declaration.
    2. Pleading—when declaration sufficient after verdict. A declaration which states defectively a good cause of action is sufficient after verdict.
    3. Verdict—when not disturbed. Where the evidence is conflicting a verdict will not be set aside as against the evidence unless clearly and manifestly so.
    4. Master and servant—when latter does not assume risk when acting in obedience to orders. A servant in obeying the orders of his superior does not assume the risk of injury, unless the danger of obedience is so obvious that a man of ordinary prudence and caution would not incur it.
    5. Master and servant—when doctrine of assumed risk does not apply, notwithstanding servant’s knowledge of danger. A knowledge of defects is not inconsistent with a lack of appreciation of the attendant danger; both must concur in order that the doctrine of assumed risk apply to preclude a recovery.

      6. Master and servant—under what form, of declaration proof of order may be given. Under the general averments of a declaration it is competent to permit a servant to prove that at the time of his injury he was acting in obedience to an order of his superior.
    7. Fellow-servants—what does not establish relation of. If the relation of fellow-servants did not exist before the giving of an order in obeying which the injury complained of resulted, the fact of obedience and the association with the servant giving the order in doing the work in question, does not establish such relation.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    William A. Doyle, for appellant.
    T. F. Laramie, and Wolfe & Rothschild, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellee was plaintiff and appellant defendant in the trial court and will be so referred to in this opinion.

The declaration consists of three counts.

It is averred in the first count that the defendant owned and operated a certain factory and a certain revolving circular saw therein, and plaintiff was in defendant’s employ as general repair man in said factory, and, June 10, 1903, plaintiff, in the course of his employment, was working at and about said saw, and while so engaged and exercising due care for his safety, his right hand, by defendant’s negligence, was drawn and forced against said saw, and was greatly hurt and injured.

In the second count it is averred that the saw at which plaintiff was engaged was in a defective and unsafe condition, of which defendant had knowledge, and by reason thereof, and while plaintiff was exercising due care, his right hand was drawn against said saw and injured.

It is averred in the third count that one Charles Burr was the general superintendent and foreman of the factory, and was using said saw, and plaintiff, in the discharge of his duty, was assisting said Charles Burr, and while so doing, and exercising due care, the plaintiff’s right hand was, by reason of the negligence of said Charles Burr, drawn or forced against said saw and injured.

The defendant pleaded the general issue; the jury found the defendant guilty and assessed plaintiff’s damages at the sum of $1,500, and the court overruled motions of the defendant for a new trial and in arrest of judgment, and rendered judgment on the verdict.

Appellant contends that the declaration does not state a cause of action; that there is a variance between the declaration and the evidence; that there is no evidence tending to prove negligence of the defendant; that plaintiff assumed the risk and was guilty of contributory negligence; and that the court erred in ruling on instructions. The defendant did not demur to the declaration, but pleaded the general issue, thereby impliedly admitting the sufficiency of the declaration. It cannot be reasonably said that the declaration states a defective cause of action, and it is good after verdict. Grace & Hyde Co. v. Sanborn, 225 Ill. 138.

There were only two witnesses of the accident— Chenoweth, the plaintiff, and Charles C. Burr. The plaintiff testified, in substance, as follows: He is a wagon woodworker and had worked as such about nine years, and was employed as general repair man by Charles Burr, the defendant’s son. When a wagon came in with broken parts, it was his duty to do the wooden work in repairing it. When Charles Burr hired him he said to him that he wanted a man who, in case the mill man could not get out the work for him, could, himself, use the machines and get it out, who could handle the machines, so as not to bother the machine man; and asked him whether he could do that, and on his saying that he could, Charles said, ‘ ‘ Come on and go to work then.” June 10, 1903, he was repairing a wagon and Charles Burr came to him and told him that, when he finished that job, to rim up a pair of wheels which were not finished, to fix up a pair of wheels for John, the blacksmith, for inch and a half tires, and he, plaintiff, picked up four rims, two by two, and took them to the rip-saw to rip them down to one inch and a half, for the tires. He could not make the saw work, so he stopped it, or shoved the lever, and as he so did he saw Charles Burr coming and waited till he came up, when he said to him, “Charley, I cannot do this job until this saw is fixed. It is in very bad condition.” He said nothing, but shoved the lever and started the saw, and picked a rim from the floor and tried to run it through. He crowded the saw and the belt jumped off the pulley. We put the belt back, and I said, “Charley, that saw is in awful bad condition,” and he said, “Oh, well, we can make it go; it is a small job. You go around and steady the rim up against the guide, and we will pull it through.” “After he had pushed the rim through far enough for me to take hold back of the saw, I took hold as he had instructed me to do, and the rim suddenly jerked forward, jerking my hand between the rim and the saw, and cut my fingers.” The little finger was cut, leaving part of the nail hanging. Three of the fingers were cut off back of the nails. Asked by the court to state the facts about the saw, plaintiff said: “The set was knocked out of the saw, and the points of the teeth were knocked off, so that it would not work.” In another part of his testimony he says the sharp points of the teeth were off.

In respect to the testimony of Charles C. Burr it may be said that he directly contradicted almost every material matter testified to by the plaintiff, except that the plaintiff was in defendant’s employ and that he, Charles, hired him. He denied that he told plaintiff that he would be expected to work on the machines, and said that he never told him to use any of them; but forbade Ms doing so; and denied that plaintiff ever assisted him on a machine, or that he gave him any directions at the time in question. He says that the saw, at the time in question, worked nice and smooth. He was questioned and answered as follows:

“Q. While you were sawing there, after his hand was injured, did you examine the saw?

A. I did not examine it particularly; no sir.55

Bradley Burr, defendant, testified that he looked at the saw five minutes after the 'accident, and that no teeth were broken off, and that it was in g’ood condition; that no ends were broken off it. The following occurred in his examination:

6‘The Court: As to its being set right—you heard the evidence of the plaintiff here?

A. The teeth were set not for sawing stuff of that kind, dry stuff.

Q. How closely did you examine the saw on that day, Mr. Burr? What did you do in making your examination?

A. Well, I simply looked at it. Our tools are always in good order.55

There does not seem to have been any occasion for an examination of the saw, by the witness, at the time in question. He went there, as he says, after the accident, and met plaintiff within twenty feet of the saw, comiug from it, and there is no evidence that, at that time, he had heard any complaint of the saw. Although Charles C. Burr testified that there was a machine man at the factory all the time plaintiff was there, and that he told plaintiff to have the machine man get out work for him, when he wanted it, the machine man was not called to testify as to the condition of the saw. Several witnesses were called by the defendant, who testified that there could be no kick back of the rim while being sawed, as plaintiff had testified.

It was a question for the jury on the conflict of evidence between plaintiff and Charles C. Burr, which witness should be believed, the plaintiff or Burr, and we cannot interfere with the verdict on the ground that it is contrary to the weight of the evidence.

The jury were instructed by defendant’s first and seventh instructions that it was incumbent on the plaintiff to exercise ordinary care, and that, if they found from the evidence that he did not exercise such care, they should find for the defendant. Whether the plaintiff was guilty of negligence which contributed to the accident, was a question for the jury, and we perceive no good reason for dissenting from their finding on that question. The evidence shows that Charles C. Burr, defendant’s son, hired plaintiff and superintended him and gave him orders in regard to his work. This is testified to both by the plaintiff and Charles C. Burr. Therefore when the latter ordered plaintiff to assist him. when he was sawing the rim, it was plaintiff’s duty to obey him, and in obeying him he assumed no risk, unless the danger of obeying was so obvious that a man of ordinary prudence and caution would not have incurred it. Offutt v. World’s Columbian Exposition, 175 Ill. 472; Springfield Boiler Co. v. Parks, 222 Ill. 355.

Counsel urge that plaintiff knew of the defects of the saw, if any there were. This may be true, yet entirely consistent with non-appreciation on his part of any danger in obeying his superintendent’s order. In the Offutt case cited, - supra, the plaintiff objected to the order given him, saying, in substance, that it was unsafe to obey it; yet a recovery was sustained.

The declaration contains no averment of any order to plaintiff, but the evidence shows an order. This is relied on as a variance. We think the proof competent under the general averments of negligence.

. Defendant’s counsel objects that plaintiff’s instructions numbered 1 and 2 are erroneous, and that the court erred in refusing instructions numbered 4, 5, 8, 9,10,11 and 12. The court did not err in giving either of plaintiff’s instructions 1 and 2.' Befused instruction 4 is included in defendant’s given instructions 1, 5 and 10. Befused instruction 5 purports to inform the jury of the fellow servant doctrine. Defendant’s counsel says, in his argument, that the court should have given the instruction, “because, under the authorities, the appellee became, at the time he attempted to take hold of the half-round, the fellow-servant of Charles Burr.” This is the only ground on which counsel claims that the plaintiff: and Burr were fellow-servants, and, by necessary implication, is an admission that, before plaintiff took hold of the half round, in obedience to Burr’s order, he and Burr were not fellow-servants. Obedience by plaintiff of the order of Burr, his superintendent, did not constitute Burr and the plaintiff fellow-servants. Although they were engaged in the same work, the order given by Burr was within the scope of his authority, and plaintiff was bound to obey it, at the risk of losing his situation, unless the danger of obeying was such that a man of ordinary prudence and caution would not have incurred it, and the accident was the immediate result of obedience to the order. C. & A. R. R. Co. v. May, 108 Ill. 288, 300; Graver Tank Works v. O’Donnell, 191 Ill. 236, 240-1, and cases cited.

Befused instruction 8 in relation to the care which defendant was legally required to exercise, is fully covered by defendant’s given instruction 5. Befused instruction 9 wholly ignores the element that plaintiff was acting in obedience to his superintendent’s order, and was properly refused. Befused instructions 10, 11 and 12 are substantially included in instructions given at defendant’s request. The court gave sixteen instructions asked by the defendant, covering every phase of the case.

This cause has been twice tried and the jury, on each trial, found for the plaintiff. In such case, to warrant a reversal, substantial error, materially prejudicial to the defendant, should appear in the record. We find no reversible error in the record, and the judgment will be affirmed. Affirmed.