text:
    Joseph Comerford et al., Appellees, v. W. W. Morrison, Appellant.
    1. Drainage—section l¡ of Farm Drainage Act construed. This section does not justify the diversion of the natural flow of surface water and the construction of a tile drain is not authorized thereby which does not drain the land sought to be drained in the general course of the natural drainage of the land.
    2. Instructions—when containing abstract proposition of law will not reverse. An instruction which contains a correct abstract proposition of law will not reverse unless misleading.

      3. Iktstbuctions—when error cannot he predicated upon. A party cannot be heard to complain of an instruction where he has procured one of like character to be given on his own behalf.
    4. Measube oe damages—in action for wrongful diversion of surface water. In such case the true measure of damages is the rental value of the land in question together with the cost of seed and labor expended in and about the crop claimed to have been lost by reason of such diversion.
    5. Measube oe damages—when inaccurate instruction will not reverse. If the damages awarded are not excessive and fairly represent the damages shown by the evidence, an inaccurate instruction upon the measure of damages will not reverse.
    Action on the case. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    James M. Taylor, Leslie J. Taylor and Hogan & Wallace, for appellant.
    Frank P. Drennan and J. C. & W. B. McBride, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellees against appellant to recover damages alleged to have been occasioned by the act of appellant in wrongfully diverting the flow of surface water from his land to and upon the land of appellees, whereby the land of appellees was rendered unfit for tillage and the crops growing thereon were injured. A trial by jury in the Circuit Court of Christian county resulted in a verdict and judgment against appellant for $500.

Appellees are the owners of the east half of the southeast quarter of section 36 in Locust township, and appellant is the owner of the northwest quarter of section 6, in Pana township. The south boundary line of appellees’ land extended east from the southeast corner of said land forms the north boundary line of appellant’s land and the west boundary line of appellant’s land extended north from the northwest corner of said land forms the east boundary line of appellee’s land. Upon these boundary lines are two public highways, one running east and west and the other north and south, which highways at their intersection separate the northwest corner of appellant’s land from the southeast corner of appellees’ land. Sunning diagonally in a northwesterly direction through the west half of appellant’s land is the right of way and track of the Baltimore and Ohio Bailroad, southwest of which lies about thirty-five acres of appellant’s land. There is also a public highway adjoining the railroad right of way on the south, which public highway intersects the north and south public highway before mentioned, at the west line of appellant’s tract of land.

In the spring of 1901 appellant constructed a tile drain beginning a short distance north of the south line of his tract at a point on the south side of the public highway which runs parallel with the railroad right of way, thence running northwesterly on the south side of said highway to a point near the west line of his land, thence north, crossing said highway and railroad right of way, to the northwest corner of his land where it was discharged into an open ditch on the east side of the north and south highways. Into this main tile drain as so constructed of seven and eight inch tile appellant ran small lateral tiles through the portion of his land lying south and west of the railroad right of way. The open ditch on the east side of the highway was of insufficient capacity to carry the water discharged into it by the tile drain and in consequence thereof the water overflowed said ditch and ran west across said highway to and upon appellees’ land, thereby causing the injury complained of.

It is urged that the jury were actuated by passion and prejudice, and that the verdict is against the manifect weight of the evidence. A careful examination of the voluminous record in this case fails to disclose anything which could have operated to arouse the passion or prejudice of the jury against appellant. The case appears to have’been tried in the same manner as cases of like character are generally tried. It is shown by a clear preponderance of the evidence that the general course of the natural drainage of surface water upon that portion of the land of appellant which lies northeast of the' railroad right of way, and of the land immediately north thereof, owned by one Smith, is toward the northwest over and across the land belonging to appellees, and we do not understand that appellees are seeking to recover any damages for injury resulting to their land by reason of the flow of surface water on their land from that portion of appellant’s land which lies northeast of the railroad. The declaration merely charges the wrongful diversion by appellant of the surface water from that portion of his land which lies southwest of the railroad. "Whether the general course of natural drainage of surface water upon the land of appellant which lies southwest of the railroad is toward the north over and across the land of appellees or toward the west, over and across the land belonging to one Higgins, is the crucial question of fact in the case, the solution of which question involved the examination of numerous expert and other witnesses called on behalf of the respective parties. The evidence clearly tends to show that there is a perceptible rise in appellant’s land at a point where the railroad right of way crosses the west line of his land. This situation is manifest from the fact that the tile drain constructed by appellant was laid at a much greater depth at the point indicated than at any other point in the line of said drain.

Beginning at a point a short distance north of the center of the Higgins tract of land, described as the northeast quarter of section 1, in Rosemond township, and which is immediately west of appellant’s land, there is a well-defined watercourse in which surface water flows in a northwesterly direction, and the character of the depression which forms said watercourse clearly indicates that it has served as a natural outlet for surface water from a considerable territory lying southwest of the railroad right of way. Without unduly extending this opinion by a detailed consideration and discussion of the testimony of the several witnesses called by the respective parties, as the same appears in the record, we are persuaded that the jury were not unwarranted in finding that the natural course of drainage of surface water from the land of appellant which lies southwest of the railroad right of way is toward the west across the Higgins tract of land, and not toward the north across the land of appellees.

It is uncontroverted that prior to the construction by appellant of the tile drain in question appellees’ land was not injuriously affected by the flow thereon of surface water to the extent it was so affected after the construction of such a tile drain.

In justification of his right to construct the tile drain in question, appellant cites section 4 of the Farm Drainage Act, which is as follows: ‘ ‘ Owners of land may drain the same in the general course of natural drainage by constructing open or covered drains discharging the same into any natural watercourse or into any natural depression whereby the water will be carried into some natural watercourse or into some drain on the public highway, with the consent of the commissioners thereto; and when such drainage is wholly upon the owner’s land he shall not be liable in damages therefor to any person or persons or corporation. ’’ Hurd’s Stat. 1905,800. This section of the statute is ineffectual to aid appellant because the tile drain constructed by him did not drain the portion of the land sought to be drained thereby in the general course of natural drainage of said land. Owners of land are not thereby authorized to drain the same otherwise than in the general course of natural drainage, and the right of such owners, with the consent of the commissioners, to discharge their drains into some drain in the public highway, is limited to cases in which such drainage is attempted to be affected in the general course of natural drainage of the land. It is not claimed on behalf of appellant that the drain constructed by him discharged the water into any natural watercourse, or into any natural depression whereby the same would be carried into some natural watercourse, but it is insisted that appellant obtained the consent of the commissioners to discharge his drain into a drain upon the highway. This claim, even if it was supported by the evidence, could not avail appellant anything in the absence of a showing that he thereby drained his land in the general course of natural drainage, but we think the evidence fails to support the claim so made by appellant. While it appears from the evidence that the commissioners consented to the construction by appellant of a tile drain along the highway south of the railroad right of way, and that for the purpose of benefiting said highway said commissioners contributed a portion of the cost of the tile there used by appellant in constructing a drain, it does not appear that it was contemplated by said commissioners that appellant would construct his drain across the railroad right of way and discharge it into the ditch on the east side of the north and south highway.

Appellees’ first instruction, while abstract in form, is an accurate statement of the law applicable to the case and contains nothing which could have operated to the prejudice of appellant. There was no pretense that the drain constructed by appellant collected the surface water from his entire quarter section and discharged such surface water into the ditch in the highway. The declaration merely charges appellant with wrongfully diverting the surface water from that portion of his land, which lies southwest of the railroad right of way, and the reference in appellees’ second, fourth, fifth and sixth instructions to the collection and diversion by appellant of surface water upon his land could only have been understood by the jury as relating to the collection and diversion of surface water from the land of appellant lying southwest of the railroad right of way.

It is urged that appellees’ third and fifth instructions improperly informed the jury that appellant would be liable, notwithstanding he obtained the consent of the commissioners to discharge his drain into a drain in the public highway, if such drain in the public highway was insufficient to carry the water into some natural watereouse. It is a sufficient answer to this objection to say "that by the first instruction given at his instance appellant assumed the burden of proving that the ditch in the highway into which he discharged his tile drain was of sufficient capacity to carry all the water coming into it. A - party cannot be heard to complain of an instruction where he has procured one of like character to be given on his own behalf. Chicago City Ry. Co. v. Pural, 224 Ill. 324; Purtle v. Bell, 225 Ill. 523; Chicago City Ry. Co. v. Hagenback, 228 Ill. 290.

The several instructions offered by appellant and refused by the court were sufficiently covered by the given instructions in the case, and appellant was not in any manner prejudiced by the refusal of the court to give such instructions.

It is urged that the seventh instruction given at the instance of appellees states an incorrect rule as to the measure of damages for the injury, if any, sustained by appellees, and that it improperly assumes that appellees’ land suffered damages by the alleged wrongful act of appellant. By that instruction the jury were only authorized to consider the question of damages if they should find for appellees.

The only issue to be determined by the jury preliminary to the assessment of damages was whether or not appellant had wrongfully diverted the flow of surface water upon the land of appellees as alleged in the declaration, and a finding by the jury in favor of appellees upon that issue necessarily, under the evidence, determined the liability of appellant for some damages. The instruction as given, therefore, cannot be said to have improperly assumed that appellees had suffered damage by the alleged wrongful act of appellant. The measure of damages in the case is stated in the instruction, to be the difference in the market value of the crops raised upon the premises and the market value of the crops which would ordinarily have been raised upon the premises had they not been damaged as alleged in the declaration less the cost of harvesting and delivering such crops to the market. As applied to the facts in this case the measure of damages stated in the instruction is inaccurate, but in addition to showing the rental value of their submerged lands appellees offered evidence to establish the amount of their damages based upon the rule as stated in the instruction and appellant offered no objection thereto upon the ground that such evidence was improper to be considered by the jury in determining the amount of appellees’ damages. Appellees claimed damages to thirty-five acres of their land and to their crops grown and attempted to be grown thereon for the years 1901, 1902, 1903 and 1904. Estimating appellees’ damages upon the basis of the rental value of the land at from $3.50 to $4.00 per acre, as shown by the evidence, together with the cost of seed and value of labor expended, which we think is the true measure of damages applicable to the facts in this case, the amount of damages awarded to appellees by the jury approximates the amount actually recoverable by appellees and is not excessive.

In this state of the record the giving of an instruction announcing an incorrect rule as to the measure of damages should not operate to reverse the judgment and the error in that regard was harmless. Mantonya v. Emerich Outfitting Co., 172 Ill. 92; Berry v. Campbell, 118 Ill. App. 646; Luick v. Scheffel, 32 Ill. App. 17; City of Pana v. Broadman, 117 Ill. App. 139.

When crops planted are destroyed before coming up the measure of damages is the rental value of the land, the cost of the seed and the value of the labor expended. Young v. West, 130 Ill. App. 216. In B. & O. S. W. R. R. Co. v. Stewart, 128 Ill. App. 270, the rule governing the measure of damages in such cases is stated thus: “When the crop is not up, the damage should be estimated upon the basis of the rental value and the cost of the seed and labor in preparing the ground and planting the crop; where the crop is up but not so far matured that the product can be fairly determined, the injured party can recover, in addition to the above, the cost of any labor bestowed after the planting; where the crop is more or less matured so that the produce can be fairly determined, the value of the crop at the time of the loss is the measure of damages, and it is only where the crop is fully matured and ready to be harvested that damages can be determined by the market value of the crop less the cost of harvesting and marketing, which must include all care and preparation for marketing, such as packing, crating, baling, threshing and the like, according to the nature of the crop.” In Economy L. & P. Co. v. Cutting, 49 Ill. App. 422, it was held, that the measure of damages for the destruction of a growing crop is the value of the crop as it was when destroyed, with the right to the owner to mature or harvest and gather it at the proper time, and .that the value of the crop is a matter of estimate or conclusion of the mind to be arrived at from all the facts that would affect it. The rule as stated in the case last cited is approved and followed in St. L., M. B. T. Ry. Ass’n v. Schultz, 226 Ill. 409.

There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    J. C. Watson, Appellant, v. E. R. Mickleberry, Appellee.
    1. Contracts—when default in performance providing for sale of real estate does not appear. A default in the performance of a contract providing for the sale and conveyance of real estate which will justify an action at law is not established where it appears that the contract contains mutual obligations and the plaintiff does not show that those obligations which it was incumbent upon him to perform have been carried out.
    2. Contracts—right to reasonable time to correct defects of title. A party to a contract for the sale and conveyance of land is entitled to a reasonable time after being notified of defects in his title to cure such defects, and until such time has elapsed with a failure to cure such defects no default can be successfully urged."
    Action in debt. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Calvin Rayburn, for appellant.
    Charles I. Will and Barry & Morrissey, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellant brought his action in debt ag’ainst appellee to recover $2,500 as a stipulated penalty, for the alleged breach of a contract for the exchange of real estate. Upon the trial of the cause by the court without a jury, the court upon motion of appellee, made at the close of appellant’s evidence, found the issues in favor of appellee, and rendered judgment against appellant for costs.

By the terms of a written contract bearing date October 16, 1906, appellee agreed to convey to-appellant by warranty deed, on or before November 1, 1906, and upon the payment by the latter of $600, 245 acres of land, free and clear of all liens, except a mortgage ¿or $12,000 with interest from February 24, 1906, and to pay the taxes on said land for the year 1906, appellee to receive one-half of the crop then growing thereon, and appellant agreed to convey to appellee by warranty deed on or before said date, certain property in the city of Bloomington, free and clear of all encumbrances except a mortgage for $6,000 and interest from July 1, 1906, and to furnish a certain bond as indemnity against a certain judgment for $2,000, which judgment was a lien against the property.

It was further thereby agreed that each party should furnish to the other an abstract brought down to date showing merchantable title in the grantor to the premises involved; that time should be of the essence of the agreement; that upon the failure or refusal of either party to comply with the provisions of the agreement, the party so failing or refusing should forfeit and pay to the other the sum of $2,500 as liquidated damages; and that in case the abstract of title furnished by either party should be found upon examination to be defective, such party should have a reasonable time to have said abstract corrected.

The only witness in the case was Charles M. Buck, called on behalf of appellant, who testified that about a week prior to November 1, 1906, appellant placed the papers in the case in his hands and authorized him to perform the agreement; that on the morning of November 1, 1906, appellee called him over the telephone and inquired if appellant was in town; that he told appellee that appellant was not and would not be in town, and that appellant then said: “This is the day the deal is to be closed;” that he replied to appellee that appellant had placed the papers in his hands and they were ready to perform; that appellee said he would get his attorney and would be over in fifteen minutes; that shortly thereafter, while the witness was engaged in figuring on the account between the parties, appellee with his attorney, Hamilton, came into Ms office; that appellee told the witness that Hamilton had the abstract and that it had better be passed upon first; that the witness told appellee to take the abstract to his partner Mr. Rayburn and" have him pass on it, and that he would then accept it; that appellee and Hamilton went into Mr. Rayburn’s room, where they remained about fifteen minutes, while the witness continued figuring on the account; that upon the return of appellee, the witness said: “I will soon be through with this” (referring to his figuring on the account), and that appellee then said “There is a mortgage appearing on my abstract—I will have to get a release for, it will take me four or five days;” that the witness said “I am ready to close it up now,” and that appellee replied “It will take four or five days, ’ ’ and went out of the office. The witness further testified that appellee came to his office five or six days later with his abstract of title and said he had obtained a release of the mortgage; that witness replied he didn’t think it would do any good to examine the abstract or have it examined then, because he was only authorized to perform the contract as it was and not to make a new contract.

Upon his cross-examination the witness testified that four or five days after he received the abstract of title to the lands owned by appellant he went to appellee and inquired what appellee would take to let appellant out of the contract; that a certain assessment which was then a lien against appellant’s property had not been paid on November 1, 1906; and that appellee had never refused to perform the contract on his part.

A careful examination of the evidence of this witness as it appears in the record persuades us that both parties to the contract desired to avoid performance, and that each was seeking to .gain á technical advantage of the other for the purpose of declaring a forfeiture of the same and enforcing the penalty.

It does not appear that appellee refused to perform the contract on November 1, 1906, when it is insisted a forfeiture was incurred, and we do not think that appellant then made a bona fide tender or offer to perform on his part. Neither the deed to the premises owned by appellant, nor the bond provided in the contract to be given by appellant to appellee as indemnity against a certain judgment for $2,000, which was then a lien upon said premises, was exhibited or tendered to appellee, and the fact that an assessment against the property of appellant, which was a lien thereon, was then unpaid shows that appellant was not then able to perform the contract on his part. It is uncontrovert'ed that there was a defect in the abstract of title to appellee’s property, in that it failed to show a release of a certain mortgage, and it is fairly infer-able from the evidence that such defect in the abstract was noted by the attorney for the appellant, and that appellee was required to have the same corrected. By the express terms of the contract either party, in the event that his abstract was found to be defective, was entitled to a reasonable time to have the same corrected. This provision of the contract is to be given effect, in connection with the provision fixing November 1, 1906, as the time of its performance, in construing the entire contract, and we are of opinion that appellee was entitled to a reasonable time after the discovery by appellant of the defect in the abstract, to have the same corrected, and that a default in the terms of the contract could not be imputed to appellee until the expiration of such reasonable time.

Where the undertakings of the parties to a contract are mutual and dependent, it is incumbent upon the plaintiff to comply with that which he has undertaken to do (unless non-compliance is excused or justified), before he can be permitted to maintain an action to recover damages for a failure on the part of the defendant to comply with the obligations of the contract on his part. Tichenor v. Newman, 186 Ill. 264.

Applying this principle of law to the facts in the case at bar, we concur in the finding of the trial court, and the judgment will be affirmed. Affirmed.


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    Joseph Henry et al., Appellees, v. Samuel M. Miller, Appellant.
    1. Mechanic’s liens—when owner liable for repairs made by lessee. A lien will be enforced against the owner of land for repairs made by his lessee where the lease provided that the lessee shall make such improvements and that the same shall become the property of the lessor at the expiration of the lease.
    2. Mechanic’s liens—what not subject of. Labor performed in mining coal in the regular course of operating a mine is not performed in the making of any improvement within the meaning of the statute providing for mechanic’s liens and therefore cannot be made the basis of mechanic’s lien relief.
    3. Mechanic’s liens—allowance of solicitor's fees improper. The mechanic’s lien statute which provides for the allowance of solicitor’s fees to the plaintiff’s solicitor, is unconstitutional and such an allowance is improper.
    Bill in equity. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed in part and reversed in part and remanded.
    Opinion filed November 17, 1908.
    Jett & Kinder, for appellant.
    Lane & Cooper, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On June 30, 1906, the appellant, Samuel M. Miller, leased to Louis J. Robertson certain lands and premises, including buildings, improvements and machinery, to be operated as a coal mine, for a term ending April 1, 1912. The lease provided that Robertson should put in a good boiler and electric bells within ninety days from the date thereof at his own expense, and also make any other improvements he might desire, such improvements to become the property of Miller at the expiration of the lease. The lease further provided that Robertson should have the privilege of purchasing the leased premises at any time during the life of the lease for the sum of $20,000 in cash. Robertson went into possession of the premises- under the lease and thereafter employed laborers and mechanics to do necessary work in and about the construction and repair of the tipple and top works at the coal mine. Robertson also employed miners to dig coal. On November 29 or 30, 1906, the lessor, Miller, declared a forfeiture of the lease for non-payment of rent and took possession of the premises. Thereafter appellees filed their bill in equity against Miller and Robertson to establish and enforce a mechanic’s lien upon the premises for work performed and material furnished by them in repairing and constructing said tipple and top works at the mine, and for labor performed in mining coal therein. On the hearing before the chancellor upon the evidence taken and reported by the master in chancery, a decree was entered finding that the several petitioners were entitled to a mechanic’s lien upon the premises involved for the several amounts due said petitioners, aggregating the sum of $304.53, together with the sum of $60 as their reasonable solicitor’s fees to be taxed as costs. To reverse this decree Samuel M. Miller appeals to this court.

Appellees predicate their right to the enforcement of a lien in said case upon the provisions of section 1 of the Mechanic’s Lien Act of this state. Hurd’s Stat. 1905, 1317. The evidence tends to show that the top works and tipple at the mine in question, at the time Robertson took possession under his lease from appellant, were dilapidated and out of repair, and that it was necessary to construct and repair the same to properly operate the mine. The evidence further tends to show that appellant was present while the work of construction and repair was being performed and that he made no objection thereto. The conduct of appellant in this regard taken in connection with the provisions of the lease, which authorized the making of improvements by the lessee, which improvements were to become the property of the lessor at the expiration of the term, entitles appellees to a lien therefor within the terms of the statute, which provides that, the person furnishing material or performing labor under contract with the owner, “or with one whom such owner has authorized or knowingly permitted to contract for the improvements,” shall have a lien, etc.

In so far as the several amounts awarded to appellees include pay for their labor in mining coal the decree cannot be sustained. The labor performed in mining coal in the regular course of operating the mine was not performed in the making of any improvement within the meaning of the statute providing for a lien. The allowance of solicitor’s fees to be taxed as costs was also erroneous. Manowsky v. Stephan, 233 Ill. 409.

The decree of the Circuit Court awarding a lien to appellees for labor performed and material furnished in constructing and repairing the top works and tipple at the mine will be affirmed, and such decree will be reversed wherein it awards to appellees a lien for labor performed in mining coal, and wherein it provides for the payment of solicitor’s fees by appellant. One half of the costs herein will be taxed against appellant and one-half against the appellees.

Decree affirmed in part and reversed in part and ' the cause remanded for further proceedings not inconsistent with the views here expressed.

Affirmed in part, reversed in part and remanded.


text:
    Grant Whitsett, Appellant, v. Wellington Starch Company, Appellee.
    Master and servant—when doctrine of assumed risk applies. A servant of mature years is barred from a recovery for injuries sustained while in the service of his master if such injuries were the result of a risk open and obvious and understood by him, and of the existence of which he had made no complaint.
    Action in case for personal injuries. Appeal from the Circuit, Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Buckingham & Gray, for appellant.
    Le Forgee & Vail and Beach, Hodnett & Trapp, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action on the case by appellant against appellee to recover damages for a personal injury resulting from the alleged negligence of appellee. At the close of the plaintiff’s evidence the trial court, upon the motion of defendant, instructed the jury to find the defendant not guilty, and upon the verdict so returned judgment was entered against plaintiff for costs.

The declaration contains two counts. The first count alleges that on April 9, 1907, appellee was operating a starch-mill wherein there was an elevator used in carrying unfinished starch from the first floor to the floors above; that the starch was placed in receptacles which were packed in a crate which was three feet wide, five feet long and seven feet six inches high, equipped with two wheels upon an axle near the center and bottom and smaller wheels at each end, which crate when loaded weighed about 3,000 pounds; that when the crate was so loaded it was wheeled from the first floor of the mill onto the platform of the elevator, whereby it was carried to the floor above; that the elevator platform was five feet ten inches in width and six feet ten inches in length; that in ascending and descending the elevator passed through, openings in the floors and that the space between the sides of such openings and the platform of the elevator was about % of an inch; that it was the duty of appellee to use due care to provide and maintain suitable appliances and guards upon the elevator and about the openings in the floors, to prevent persons from slipping off the elevator and being caught between it and the sides of the openings in the floor; that appellee not regarding its said duty negligently permitted the said elevator to be used and operated by appellant and its other employes, and negligently omitted to provide and maintain such appliances or guard; that on the day aforesaid appellant was in the employ of appellee, and the latter by its agents and servants negligently ordered and directed appellant to go upon the platform of said elevator with a crate, and to ascend with the said elevator and crate to the upper floor; that in pursuance to such order appellant got upon the elevator and started to ascend to such upper floor; that while such elevator was so ascending and while appellant was exercising due care for his own safety, by reason of the failure of appellee to provide and maintain proper appliances and guards his. right foot slipped and was caught between the platform of the elevator and the side of the opening in the floor, and was thereby so crushed and mangled as to necessitate amputation between the ankle and knee.

The second count charges the same duty and breach and further alleges that the platform of the elevator was covered with starch and water thereby making the said platform slippery, and that appellee negligently permitted such starch and water to be upon the platform of said elevator.

It appears from the undisputed evidence that on Friday, April 5, 1907, appellant applied to the superintendent of appellee for work, and that such superintendent then introduced appellant to the foreman with directions to the latter to put appellant to work; that said foreman took appellant to the first floor of the mill and said to the latter ‘‘ Come in here and you can go to work, the boys will show you what to do;” that thereupon appellant with three other employes of appellee proceeded with their work which consisted in filling certain receptacles with starch, loading such receptacles into a crate, wheeling the crate on the platform of the elevator, and riding on the elevator to the upper-floor of the mill. The platform of the elevator was constructed of wood, was perfectly level, and when the elevator was in position on the first floor the surface of the platform was flush with the surface of the floor, with a space between the edge of the floor and the edge of the platform of about % of an inch. Neither the platform of the elevator nor the floor of the building was equipped with gates or guards.

After the crate as described in the declaration was filled, it was wheeled directly from the floor of the building onto the platform of the elevator and four employes of appellee, including appellant, rode on the elevator to the upper floor for the purpose of steadying the crate while it was being lifted and unloading it when the upper floor was reached. Appellant was thus employed continuously for four days and had made twenty or thirty trips per day on the elevator up to the time he was injured. When the crate was in position on the platform of the elevator there was an unoccupied space of about fifteen inches on each side of the platform and about eleven inches at each end. Some starch sifted through the crate upon the elevator platform, and the evidence tends to show that employes of appellee occasionally washed screens or shakers near the elevator with a hose, and that some of the water so used sprayed upon the elevator platform.

On the occasion of his injury, while appellant was standing erect riding upon the elevator and when the elevator had ascended to a point about eight inches below the opening in the second floor of the mill, his right foot slipped off the edge of the platform and before he could regain his footing or the elevator could be stopped his foot was crushed between the edge of the elevator platform and the second floor of the mill.

Appellant testified that he had not been cautioned or warned with reference to any danger attending the use of the elevator, and that upon one occasion he remarked to one of his companions that it looked to him as if the elevator might not be perfectly safe. Whether this remark of appellant related to the slippery condition of the elevator platform or to the strength of the cable by which the elevator was operated, is not entirely clear from the evidence. It does not, however, appear from the evidence that there was any wet starch upon the portion of the platform where appellant was standing when he was injured.

The action of the trial court in giving to the jury a peremptory instruction to find appellee not guilty raises the decisive question in the case, viz., whether or not as a matter of law upon the evidence disclosed by the record appellant assumed the risk whereby he was injured. It is insisted on behalf of appellant that the rule that the servant assumes all ordinary risks incident to the business presumes that the master has performed the duties of caution, care and vigilance which the law requires of him; that it is those risks alone which cannot be obviated by the adoption of reasonable measures of precaution that the servant assumes. This is not a correct statement of the rule governing the doctrine of assumed risk. In Cichowicz v. International Packing Co., 206 Ill. 346, it is said: ‘‘ To say that the servant assumes no risk except such as cannot be obviated by the adoption of reasonable measures of precaution by the master is to abolish the

doctrine altogether. Under such a rule the master is liable in every case where he has been negligent, although the servant knows of the danger and voluntarily encounters it without objection, and if the master has been guilty of no negligence he has a complete defense, regardless of any question of the assumption of risk by the servant.” In McCormick Machine Co. v. Zakzewski, 220 Ill. 522, it is said: “The true rule in this regard is, that the servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent, and if he voluntarily enters into or continues in the service, knowing or having the means of knowing its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting from such dangers.”

In I. C. R. R. Co. v. Fitzpatrick, 227 Ill. 478, the judgment was reversed for error in giving an instruction which informed the jury that the servant did not assume dangers arising from the master’s negligence.

In Klofski v. Railroad Supply Co., 235 Ill. 146, the court recognized the apparent confusion arising from the statement of the true rule as above, and the rule as sometimes stated, that the servant does not assume risks arising from the master’s negligence, and in reconciling the authorities in this regard, said: “It will be found that the cases which exclude from the risks assumed by the servant such dangers as arise from the master’s negligence are cases involving a consideration of the usual and ordinary hazards of the employment which are assumed by the original contract of hiring, and that the other line of cases which hold that the servant may assume dangers arising from the master’s negligence are cases where the assumption of danger depends not upon the contract of hiring but upon the knowledge of the servant of the existence of danger.” It was there further said: “If the servant has, or by the exercise of reasonable care would have, knowledge of the existence of a particular danger and continues in the employment without complaint he will be deemed to have assumed the danger; and in respect to such dangers it is wholly immaterial whether they arise from the negligence of the master or from other causes. The master’s negligence is not an ordinary and usual risk of the employment, hence the servant does not assume dangers arising therefrom by his contract of hiring, but the servant knowing of such negligence may assume it, and in such cases he assumes it because he knows of it, and not because it has become an ordinary risk.”

In the case at bar appellant’s assumption of the risks involved must be predicated upon his knowledge of appellee’s alleged negligence in failing to equip the elevator platform with some appliance or guard and in permitting wet starch to he upon the platform, and appellant’s knowledge of the dangers incident to the use of the elevator without such appliance or guard and with wet starch upon the surface of said platform, and upon his continuance in the employment of appellee without complaint or protest. Appellant at the time of his injury was of mature years and had had a varied experience in several departments of labor and in working with and about machinery. The absence of an appliance or guard upon the platform of the elevator and the danger incident to the use of the elevator without such appliance or guard was open and obvious to appellant, and he must be held chargeable with full knowledge both of the defect and of the danger. He also had like knowledge with respect to the presence of wet starch upon the surface of the elevator platform. It is not claimed on behalf of appellant that he made any complaint or entered any protest to any one sustaining the relation of vice-principal to appellee, with respect to the existing conditions, having full knowledge of the alleged defects and of the dangers incident thereto, and having continued in the employment of appellee without complaint or protest, appellant must be held to have assumed the risks, and the court did not err in giving, to the jury a peremptory instruction to find appellee not guilty. The judgment will, therefore, accordingly, be affirmed.

Affirmed.


text:
    John M. Henderson, Appellee, v. Moweaqua Coal Mining & Manufacturing Company, Appellant.
    Statute of Limitations—when amended count sens up new cause of action. An amended count sets up a new cause of action where it differs from the original count in that under the count as originally filed it was necessary in order to recover that the plaintiff should prove the negligence of the defendant as charged and that he himself had not assumed the risk and was in the exercise of due care for his own safety, and under the count as amended it was incumbent upon the plaintiff to prove that his injury resulted from the wilful failure of the defendant to comply with some one or more of the provisions of the Mines and Miners Act and in the latter case the defense of qssumed risk and contributory negligence were not available to the defendant.
    Action in case for personal injuries. Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    J. C. & W. B. McBride, for appellant; John Ridgely, Jr., and W. C. Kelly, of counsel.
    Chafee & Chew and S. S. Clapper, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries sustained by appellee on November 24, 1904, in the coal mine of appellant. A trial by jury in the Circuit Court of Shelby county resulted in a verdict and judgment against appellant for $3,000. The original declaration filed by appellee on November 3, 1905, contained three counts. The first count alleges that appellant had contracted with the miners’ union, of which appellee was a member, to furnish to the miners for use in the mine a certain kind of powder branded “ C. C. C. Alton Powder,” which powder was all large-grained and slow in combustion, said grains exploding so as not to greatly jar or disintegrate the roof of the room wherein the same was used, and that under such contract it became the duty of appellant to furnish to appellee said brand of powder for his use in the mine; that appellant, without notice to appellee, procured another and different kind of powder and negligently and wilfully furnished such other powder to appellee, and that appellee without knowledge of any change in the character of the powder, and while exercising due care for his own safety, used such powder so furnished to him and thereby caused the roof of his working place to be so affected that it thereafter fell upon him.

The second count alleges the same contract with reference to the brand of powder to be used in the mine, and further alleges an agreement between appellant and the miners’ union that no change should be made in the character of the powder without the consent of appellee and the miners working in the mine; that not regarding its obligation in that regard, appellant, without the knowledge or consent of appellee and said miners, caused another and different kind of powder to be falsely marked and branded ‘‘ C. C. C. Alton Powder,” with intent to deceive appellee and said miners, and that appellee without knowledge of such change in the character of such powder, while exercising due care for his own safety, used the same, whereby the roof of his working place was so affected that it thereafter fell upon him.

The third count alleges that it was the duty of appellant to have all places where men were expected to work in said mine carefully inspected and to cause to he marked upon the walls or roof of the said mine with a chalk mark that could be seen and understood a mark which would indicate the dangerous condition of such part of the mine, so that men working therein might notice the same and keep out of danger, and to cause a daily record of the condition of said mine to be made in a book kept for that purpose, and such record should be made in the morning before the miners descended into the mine; that appellant not regarding its obligations or duty in this behalf, did not cause the roof of the mine where appellee was engaged to be marked in any way to show that it was in a dangerous condition; that appellee while exercising due care and caution for his own safety and having no notice from the record required to be kept by appellant of the dangerous condition of the mine where he was about to engage at work and having no notice of any mark upon the ceiling or wall near where he was about to engage at work, although the roof of the room was then in a dangerous condition and the inspector might have discovered it if he had carefully performed his duties in that behalf, and while appellee was at work by reason of such defective roof and of there being no marks to warn appellee, the roof then and there fell upon appellee, etc. Thereafter appellee filed an additional count which alleged that appellant was operating a coal mine and that appellee was employed as a miner therein; that it was the duty of appellant to provide a proper and careful examination of said mine and to have sufficient mine examiners there employed so that the mine might be properly inspected and all places where men were expected to pass or work should be found to be in safe condition or any dangerous condition marked as indicated, and to cause a careful examination of the edges and accessible parts of recent falls and to cause all dangerous and unsafe places upon the walls or roof of the said mine to be marked as indicated, so that the dangerous and unsafe condition thereof could be seen and understood, and to cause a daily record of the condition to he made in a book for that purpose; that appellant did not provide sufficient competent mine examiners in the said mine to permit or allow a proper or careful examination of said mine or to allow reasonable inspection of all places in said mine where the men were expected to pass or to work, or to allow a proper observation of the condition of recent falls made in the mine or the roof and walls of the working places to be made; that on November 25, 1904, appellant procured a careless and negligent examination and inspection of said mine and the working parts thereof and the roof and walls thereof in the rooms and passageways therein to be made, and permitted and allowed inaccurate and false marks to be made in the roof and walls of said mine whereby a condition of safety appeared; that appellee relying upon the performance in a proper manner by appellant of its duty to inspect, examine and mark the mine as aforesaid, and while exercising due care and caution for his own safety, and the record of appellant not indicating any dangerous condition where appellee was about to work, and appellee having no notice of chalk marks on the roof or walls near the place where he was about to work, notwithstanding the roof of the mine at that place was then and there in a dangerous and unsafe condition, which dangerous and unsafe condition might have been readily discovered by due and reasonable inspection, and while appellee was engaged in his said employment, by reason of a defective and unsafe and dangerous condition of said roof, and for want of a careful examination and inspection thereof by appellant, and the failure of the appellant to mark such unsafe condition, the roof fell upon appellee, etc.

On November 13, 1907, appellee by leave of court amended the third count of his declaration by striking out the italicized words “did not,” appearing therein after the word “behalf,” and before the word “cause,” and inserting in lieu thereof the words “wilfully failed to,” and on the same day by like leave of court appellee amended his additional count by striking out the italicized words “did not” which appeared therein after the word “behalf” and before the word “provide,” and inserting in lieu thereof the words “wilfully failed to.”

To the third and additional counts as thus amended appellant filed its plea of the Statute of Limitations, averring that the cause of action alleged in said third and additional counts did not accrue to appellee within two years next before the filing thereof.

A demurrer interposed by appellee to said plea of the Statute of Limitations was sustained by the court and thereupon appellant elected to abide its said plea.

The third and additional counts of the declaration as originally filed charged appellant with common law negligence merely. They contained no reference whatever to the statute, a wilful failure to comply with the provisions of which gives a party injured the right to recover damages for such injury, and they contained no allegation that appellant had wilfully failed to comply with any provision of the statute. The breach of the several duties alleged some of which were imposed by statute and some of which had no reference to the statute, was the failure of appellant to carefully perform such duties. Both of those counts further alleged that appellee was in the exercise of due care for Ms own safety when he was injured. This allegation had no place in a declaration which predicated a right of recovery upon the wilful failure of a mine operator to comply with the provisions of the Mines and Miners Act.

The amendments to the third and additional counts of the declaration were made more than two years after the cause of action accrued, and as thus amended said counts of the declaration stated other and different causes of action from those which were alleged in said counts as originally filed. Under the counts as originally filed, it was necessary in order to recover that appellee should prove the negligence of appellant as charged and that he, himself, had not assumed the risk and was in the exercise of due care for his own safety; and under the counts as amended it was incumbent upon appellee to prove that his injury resulted from the wilful failure of appellant to comply with some one or more of the provisions of the Mines and Miners Act, and in the latter case the defenses of assumed risk and contributory negligence were not available to appellant.

When an amendment states a new or different cause of action than that which was originally stated, it is to be regarded as a new suit begun when such amendment is filed; and the Statute of Limitations may be pleaded in bar of the cause of action introduced by the amendment. Heffron v. Rochester Ins. Co., 220 Ill. 514. In Bradley v. Chicago-Virden Coal Co., 231 Ill. 622, it was held that a cause of action which predicated a right of recovery upon the wilful violation of the provisions of the Mines and Miners Act was different and distinct from a cause of action based upon a common law liability, and that such change in the cause of action affected by amendment was barred by the Statute of Limitations. In the case at bar the demurrer interposed by appellee to appellant’s plea of the Statute of Limitations to the third and additional counts of the declaration as amended should have been overruled.

Even conceding that appellant failed to furnish a particular brand of powder and that it substituted therefor another and different brand of powder, as is alleged in the first and second counts of the declaration, and this concession is not warranted by the evidence, the evidence wholly fails to show that such conduct on the part of appellant was the proximate cause of the injury to appellee.

Considering the evidence bearing upon that question as it appears in the record, most favorably for appellee, it tends to show that in May, 1904, a committee of the Miners Union made complaint on behalf of the miners employed in the mine, to the superintendent of appellant in regard to the powder then used in the mine; that the powder then in use in the mine was known as “C. C. Alton Powder,” and the objection urged to its use was that it was too fine and that the shots fired by it did not produce sufficient lump coal; that appellant’s superintendent told said committee he would furnish any kind of powder which would produce the best results in that regard, and proposed to the committee that he would send for Louis Berner, the traveling salesman of the Equitable Powder Co. at Alton, for a conference upon the subject; that upon the arrival of said Berner at the mine, he had a conference with the committee and that said committee thereafter visited the powder works at Alton and inspected the various brands of powder manufactured by the company; that the committee there selected a powder branded “C. C. C,” as being best suited to produce the desired results, and took a keg of said powder to the mine for the purpose of testing the same; that said powder was tested by the committee in competition with another brand of powder and was selected by said committee for use in the mine; that in pursuance of the request of said committee, appellant ordered and furnished to the miners for use in the mine the powder branded “C. C. C.”; that said powder although thus branded was not all of the same grade, some of the kegs containing a finer grade of powder than the original sample; that in the latter part of October, 1904, a committee of the miners again called upon the superintendent of appellant and complained that the powder was a finer grade than it should be, and at the suggestion of the superintendent, several of the kegs of powder stored in the magazine and branded “C. C. C.” were opened and examined and found to contain a finer grade of powder than the original sample; that it was then agreed between said committee and said superintendent that after, the stock of powder then on hand was exhausted, efforts should be made to procure a more uniformly coarse grade of powder; that prior to firing the shot which loosened the slate in the roof of appellee’s working place he said to appellant’s superintendent with reference to the powder branded “C. C. C,” which he was then using, that he would carry it back out to him, and the superintendent replied that if he. (appellee) carried it out he would carry it back.

The evidence shows conclusively that the powder branded “C. C. C.” was selected by. a committee of the Miners Union of which appellee was a member, and that appellant procured the powder so selected, and was not in any way responsible for the fact that the powder was not of uniform grade.

It is further conclusively established by the evidence that the objection to the powder was not based upon any claim that its use was attended with greater danger to the miners, but that the sole ground of the objection to its use was that it did not produce sufficient lump coal. The fact that the fine grade of powder fires more rapidly and is more liable to disintegrate the roof of a working place in a mine than a coarse grade of powder is a mere incident in the case, which, under the evidence, cannot be held to have had any relation as an approximate cause of the injury to appellee.

In view of what has been heretofore said it is unnecessary to consider the various objections urged by appellant to the instructions given to the jury at the instance of appellee. It is sufficient to say upon this subject that even if the third and additional counts to the declaration were proper to be .considered in the case, many of the instructions so given are erroneous and would necessarily require a reversal of the judgment.

The judgment of the circuit court will be reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


text:
    Charles L. Kolp, Administrator, v. Decatur Railway & Light Company, Appellant.
    1. Master and servant—when direction to servant does not fasten liability. If a particular work which a servant is directed by his master to perform is within the scope of the general employment of such servant, the mere fact that the servant is directed by the master to do such work does not operate to absolve the servant from the assumption of the risk involved.
    2. Master and servant—duty to furnish safe place. It is the duty of the master to exercise reasonable care to provide his servant with a reasonably safe place in which to work, and this duty being a continuing one, it necessarily involves upon the master the duty of reasonable inspection to see that the working place of his servant is maintained in a reasonably safe condition.
    3. Evidence—what experts incompetent as to. Where witnesses called as experts have properly expressed their opinions relative to questions involving expert knowledge of electricity, the instrumentalities by which it is communicated, conveyed and controlled, the manner in which these instrumentalities perform their several functions, the effect produced upon one coming in contact simultaneously with a wire charged with electricity and a grounded telephone wire, the jury are as well qualified as are such witnesses to determine whether or not a particular place is a dangerous place to work, and to permit such witnesses to give their opinions upon that question is to invade the province of the jury.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 24, 1908.
    Le Forgee & Vail, for appellant.
    Whitley & Fitzgerald, for appellee,
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for wrongfully causing the death of appellee’s intestate, Oscar S. Kolp. Upon the trial of the cause in the circuit court of Macon county the jury returned a verdict against appellant for $4,250, upon which verdict the court entered judgment and this appeal followed.

The declaration contains six counts and charges in substance that appellant was the owner of and operated a certain electric light and power plant, and that the deceased was employed by appellant as a lineman; that upon a certain pole belonging to appellant it negligently permitted a large number of telephone wires to be attached; that certain electric wires were uninsulated and came in too close contact with the telephone wires'on said pole; that a certain cut-off box attached to said pole was negligently allowed by appellant to become decayed, uninsulated and unsafe; that it then and .there became the duty of appellant to exercise resonable care to provide and. maintain a reasonably safe and suitable place for the deceased in which to perform the work assigned to him, and to warn inexperienced employes of dangers not obvious to them at places where they might be required to work; that the deceased was inexperienced and ignorant of the dangers to which he might be exposed in working upon said pole; that a certain foreman of appellant negligently directed the deceased to go upon said pole and to perform certain work there, without warning the deceased of the dangers incident to the performance of such work; that in consequence thereof the deceased while so at work upon said pole and while in the exercise of due care for his own safety was necessarily brought into contact with said uninsulated wire and said cut-off and received a shock of electricity which caused his death.

The evidence tends to show that upon the day of the accident which resulted in his death, the deceased was one of a gang of men employed under the directions of one Hornbeck, a foreman of appellant, in stringing wires and making certain connections with the electric wires and apparatus owned and operated by appellant; that upon one of the poles of appellant, .a few inches below its top, was attached a cross-arm upon each end of which was strung a wire called a primary wire which, when charged with electricity, carried a current of about 2,280 volts; that about 4 feet below said upper cross-arm and at right angles therewith was another cross-arm,upon which were strung four wires, viz., two primary wires, one at each end of said cross-arm, which wires when charged carried a current of 2,280 volts, and two secondary wires which when charged carried 110 volts; that the primary wires upon the two cross-arms were connected by cut-off or junction boxes, which were located upon the lower cross-arms; that the primary wires from both cross-arms entered at the bottom of said junction boxes, where they were connected by porcelain plugs inserted in the boxes; that when the plugs were inserted in the boxes the current of electricity in the primary wires upon the upper cross-arms was thereby communicated to the primary wires on the lower cross-arm, and when the plugs were withdrawn the connection between said primary wires was thereby cut off; that some time prior to the accident which resulted in the death of appellee’s intestate, the plugs had been taken out of the boxes and the connection between the two sets of primary wires thereby broken; that there were two other cross-arms upon said pole, one being about four feet below the second cross-arm and one about 14 inches below the third cross-arm, upon each of which there were a number of wires owned and operated by a telephone company; that these telephone wires were grounded so that if a person came In contact simultaneously with such telephone wires and with any uninsulated portion of the primary wires on the cross-arms above or with any uninsulated portion of said cut-off boxes, when the same were charged with electricity, a circuit would be completed through the body of such person sufficient to produce death.

The evidence further tends to show that the deceased entered the employment of appellant on August 31, 1907, and worked in the capacity of a groundman until September 19th following, when he was promoted to the position of lineman and was working in that capacity when he was killed on October 5, 1907; that for several years prior to his employment by appellant the deceased had been employed by a telephone company as a lineman; that about fifteen minutes before the accident which resulted in his death, the deceased was directed by Hornbeck, the foreman of appellant, to take a couple of plugs and insert them in the cut-off boxes, heretofore mentioned, in order to make the connection between the two sets of primary wires; that for the purpose of complying with such direction the deceased climbed the pole by means of spurs with which he was equipped; that shortly after he ascended the pole and after he had inserted a plug in one of the cut-off boxes, he fell to the ground and died within a few minutes thereafter. An examination of the person of the deceased immediately after he fell disclosed burns produced by electricity on the forefinger of his left hand and on his left leg below the knee which indicated that he had come in contact simultaneously with the grounded telephone wires and with some portion of the cut-off box or the primary wires leading into it. There was evidence tending to show that the deceased had climbed a pole and inserted a plug in a cut-off box on the day preceding his death; that when the deceased ceased work as a groundman he applied for the position of lineman and told the superintendent of appellant that he had had three years’ experience as a lineman; that when the foreman of appellant directed the deceased to climb the pole, he told the deceased to be careful not to take hold of the wires. There is also evidence tending to show that the insulation upon the primary wire on the upper cross-arm was decayed and hanging in strips and that some portion of the primary wire near to and leading into one of the cut-off boxes was uninsulated; that one of the telephone wires on the lower cross-arm presented the appearance of having burned flesh upon it; that the cut-off boxes were of a standard pattern and such as were commonly used for the purpose.

Appellee’s theory as to the cause of the death of his intestate, is that the cut-off box was so worn that it afforded inadequate or imperfect insulation from the high tension current running into it, or that the primary wires entering into said cut-off box at a point near said box were uninsulated, so that when the deceased was in contact with the grounded telephone wires upon the lower cross-arm a current of electricity was carried through his body.

Appellant’s theory of the case is that the deceased in inserting the plug in the cut-off box carelessly extended the forefinger of the hand with which he grasped the plug above the flange, which protected the handle below in such manner that the finger was thrust into the interior of the cut-off box when the plug was inserted, and that the shock which caused his death was occasioned by the end of his finger coming in contact with some of the metallic apparatus on the inside of said box.

The argument of appellant here is mainly directed to a criticism of the action of the trial court in refusing to give to the jury any of the instructions tendered upon its behalf purporting to declare the law governing the doctrine of assumed risk as applied to the facts in the ease which there was evidence in the record tending to prove.

It is insisted by appellee that the doctrine of assumed risk is not involved in the case because the declaration alleges and the uncontroverted evidence discloses that the deceased at the time of his death was engaged in performing a duty specifically imposed upon him by the direction of appellant’s foreman, and an examination of the record suggests that the trial court adopted the theory of appellee in this respect.

It must be conceded that the several allegations in the declaration, that the deceased was inexperienced in the duties of a lineman and of the danger incident to the performance of such duties, that appellant had knowledge of the inexperience of the deceased in that regard, that the alleged dangerous conditions existing at the place where the deceased was directed to work and the risk involved in performing such work was unknown to the deceased and could not have been ascertained by him by the exercise of ordinary care, negative the deceased’s assumption of the risk involved in doing the work, but the evidence bearing upon the several issues of fact is conflicting and the determination of such issues was for the jury under proper instructions.

If the particular work which a servant is directed by his master to perform is within the scope of the general employment of such servant the mere fact that the servant is directed by the master to do such work, does not operate to absolve the servant from assumption of the risk involved, and our attention has not been called to any case which announces a contrary doctrine. If the rule contended for by appellee is the true rule, the mere direction by a carpenter’s foreman to one employed to do general carpenter work, to frame a portion of a building, or to construct a scaffold or to shingle a roof or to hang a door would operate to absolve such workman, from assumption of the risk involved in doing that particular work. Numerous like illustrations involving particular work done by tradesmen and laborers by the direction of one in general charge of the work might be cited. The adoption of such a rule would practically result in the abolishment of the doctrine of assumed risk as it now exists in this state. Among other cases in which a direction by the master to a servant to perform particular work within the general scope of the servant’s employment has not operated to absolve the servant from assumption of the risk involved in doing such work, are the following: Ill. Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Montgomery Coal Co. v. Barringer, 218 Ill. 327; McCormick Harv. Co. v. Zakzewski, 220 Ill. 522. The language of the court in Republic Iron Co. v. Lee, 227 Ill. 246, is pertinent to the question of assumed risk arising under the facts of the case at bar. It is there said: “An exception to the doctrine of assumed risk exists where a servant is ordered by his master to do certain work which is attended with danger of which he is not fully cognizant, and he relies upon the order to do the work as an assurance that he may safely perform the task. It is only where the servant has been misled by the order of the master that the exception exists. ’’

There is evidence in this case tending to show that the specific work which the deceased was directed to perform was within the general scope of his duties as a lineman; that he was experienced in the duties of his employment; and that the defects, if any, and the dangers incident thereto, in connection with the work which he was performing immediately before his death were open and obvious, or that he could, by the exercise of ordinary care, have had knowledge of the same.

The 12th, 13th, 14th, 15th and 17th instructions offered by appellant were refused by the court and the action of the court in this regard is assigned as error. All of these instructions relate to some phase of the law governing the doctrine of assumed risk. We do not deem it now necessary to analyze and discuss these several refused instructions in detail. While each of said instructions, except the 13th, is subject to some objections which may have occasioned its refusal by the trial court, the 13th instruction states a correct rule of law governing the doctrine of assumed risk as applicable to the facts in the case, and it was error to refuse the same.

It is urged on behalf of appellant that the 10th instruction given at the instance of appellee is erroneous, because it imposes upon the master the duty to inspect the place where he puts his servant to work, to see that his servant is not exposed to unusual dangers. It is the duty of the master to exercise reasonable care to provide his servant with a reasonably safe place in which to work, and this duty, being a continuing one, it necessarily involves upon the master the duty of reasonable inspection to see that the working place of his servant is maintained in a reasonably safe condition. The phraseology of the instruction in the particular referred to is not altogether free from criticism, but taken in connection with the latter clause of the instruction we do not think it was so harmful to appellant as to require a reversal of the judgment upon that ground.

The witnesses Jordan and Mitchell called to testify on behalf of appellee, after describing in detail the office and position of the wires and apparatus upon the pole, and the precise manner in which danger was to be apprehended by a person working on said pole, were permitted to state that in their opinion the pole as thus equipped was a dangerous pole. This was error. These witnesses, called as experts, having properly expressed their opinions relative to questions involving expert knowledge of electricity, the instrumentalities by which it is communicated, conveyed and controlled, the manner in which these instrumentalities perform their several functions, the effect produced upon one coming in contact simultaneously with a' wire charged with electricity and a grounded telephone wire, the jury were as well qualified as were the witnesses, to determine whether or not the pole as equipped, was a dangerous place to work, and the opinions of the witnesses upon that question infringed the province of the jury. Yarber v. C. & A. Ry. Co., 235 Ill. 589.

We do not consider the other objections urged of sufficient importance to merit further discussion. For the errors indicated the judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


text:
    F. R. Carter et al., Appellees, v. Cairo, Vincennes & Chicago Railway Company, Appellant.
    1. Measure of damages—in action for failure to drain pursuant to contract. In an action by the owner of a leasehold interest in a mine to recover damages for the failure to drain pursuant to contract so that such mine was flooded, the correct measure of damages is the cost of the restoration of the mine to its condition before it was flooded, providing such cost does not exceed the fair cash market value of the plaintiff’s leasehold right for the unexpired term, antj in the event that such cost of restoring such mine to its condition before the breach of the contract exceeds the fair cash market value of the plaintiff’s leasehold right at the time of such breach, the plaintiff is only entitled to recover the fair cash market value of his leasehold right.
    2. Evidence—when witness competent to estimate cost of repairs. Meld, that the witnesses in this case had sufficiently qualified to justify the court in permitting them to give their opinions as to the proper cost of restoring a mine to its condition prior to its being flooded.
    3. Evidence—when profits may he shown. It is competent to permit evidence of profits earned in the conduct of a mine under a leasehold interest where such evidence is limited to the purpose of showing merely that the leasehold interest had some value.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    James Vause, Jr., and Rearick & Meeks, for appellant.

      O. M. Jones and Lindley, Penwell & Lindley, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit by appellees against appellant to recover damages for the alleged breach of a contract entered into between the parties on July 8, 1905. The said contract recites that, whereas, appellees hold a lease of certain coal lands in Vermilion county, Illinois, of the Danville Consumers Coal Company; and, whereas, appellant desires to locate its right of way over and across said lands and to construct and operate its railroad thereon; and, whereas, each of said parties will be benefited by the location of said right of way by appellant and the construction and operation of said railroad; and, whereas, said parties mutually desire to make an amicable settlement of all matters pertaining thereto, and in consideration of the payment by appellant to appellees of the sum of $1,350 cash in hand, it is mutually agreed in substance, as follows:

1. That appellant shall have the right to enter immediately upon said lands for the purpose of constructing its said railroad.

2. That appellant shall provide and maintain a permanent drain extending from the south of the present entry to the mine of appellees on the premises,' easterly to the limits of the embankment of appellant, and also provide and maintain a ten-inch tile drain extending from the east end of said cast iron pipe, northerly along the bed of the new ditch to be constructed by appellant, to a point opposite Wilkinson’s scale house.

3. That appellant shall remove from its right of way the blacksmith shop, scale and scale house, tipple track, brick from the air shaft and other movable property thereon belonging to appellees to some convenient, practicable point to be designated by appellees. The declaration alleges preformance of the contract on the part of appellees and that appellant has not provided and maintained a permanent drain consisting of a ten-inch cast-iron pipe and a ten-inch drain tile as required by clause 2 of said contract, and that in consequence of such breach of said contract by appellant the mine of appellees on said premises has not been drained but has been flooded and rendered wholly untenantable and unusable to the damage of appellees, etc.

A trial by jury in the circuit court of Vermilion county resulted in a verdict and judgment against appellant for $1,500.

When the contract in question was made appellees were operating a coal mine by means of a drift or slope which extends into a bluff from the east side thereof. The main drift or entry ran into the bluff in a westerly direction a distance of 700 to 800 feet and from said main entry or drift two lateral entries or drifts were driven in a southerly direction a distance of about 300 feet. The mouth of the main entry or drift was on the east side of the bluff and the mine was drained by gravity by means of the tile drains and open ditches to the mouth of said main entry and thence east and north into one or more ravines. The construction of appellant’s railroad required the building of an embankment from 30 to 50 feet in height immediately above or adjacent to the mouth of the main entry, and the contract required appellant to provide and maintain a permanent drain, consisting of a ten-inch cast-iron pipe, to extend from the mouth of the said entry easterly through the said embankment of appellant, and a ten-inch tile drain to extend from the east end of said cast-iron pipe northerly along the bed of a new ditch to be constructed by appellant, whereby the water in appellees ’ mine might continue to be drained by gravity. Shortly after making the said contract appellant commenced the construction of its railroad and caused a trench about 2½ feet in depth to be dug from a point some distance from the mouth of the mine entry westward to the mouth of the said entry, in which trench were laid six or seven lengths of ten-inch cast-iron pipe. Thereafter appellant made the fill for its said embankment which embankment, when completed, entirely covered up the east end of said cast-iron pipe to a depth of from 15 to 20 feet. No further effort was made by appellant to comply with the provisions of said contract with reference to providing a drain until after the commencement of the suit in July, 1907. As to the character and efficiency of the work then done by appellant in an effort to comply with the requirements of said contract there is a sharp conflict in the evidence.

The evidence offered on behalf of appellant tends to show that upon complaint made to it by one of the appellees that the drain tile had not been laid and connected with the cast-iron pipe as required by the contract, it sank test holes into the embankment for the purpose of locating the east end of the cast iron pipe; that after the same was located, it laid the ten-inch drain tile from Wilkinson’s scale house to the end of said cast-iron pipe and connected said pipe and said drain tile by means of a large wooden box.

The evidence introduced on behalf of appellees tends to show that the tile drain which was then laid by appellant was not in fact connected with the cast-iron pipe which had been laid by appellant in the first instance and covered by the embankment, but that said drain tile was connected with the cast-iron pipe which was subsequently laid by appellant some distance east of the end of the pipe which was covered by the embankment; and that the joint of cast-iron pipe last laid by appellant was connected, if at all, at its west end with an old tile drain which had formerly served to drain appellees’ mine. However this may be, it is uncontroverted that the water in appellees’ mine ceased to drain therefrom after the construction of appellant’s embankment and that said mine was then thereby flooded and has since so continued to be flooded. Some time after the construction of appellant’s railroad appellees drove a new entry into the side of the bluff a distance of about 50 yards north of the mouth of the old entry and mined coal therein until January, 1908, when a shot fired in said new entry blew a hole through into the old entry and the water therefrom ran into said new entry. No damages were claimed or allowed to appellees for any injury resulting to the new entry.

In proof of their tenure appellees introduced in evidence, together with the indorsements thereon, a written lease dated September 5, 1903, of the real estate upon which said mine was located from the Consolidated Coal Company of St. Louis, the then owner of the fee, to the appellees, F. R. and W. B. Carter, for the term of twelve months beginning October 1, 1903, whereby said lessees were given the right to dig, mine, remove and dispose of the coal in the seam known as the Danville Seam, from a drift-working located in the west side of a ravine, west of the old Paris and Danville Railroad grading and south of the drift then worked by one Wilkinson. Said lease further provided that the lessees should pay to lessor as rent or royalty on or before the fifth day of each month, 11¼ cents per ton on each and every ton of mine run coal, mined during the preceding calendar month, and that in no case should any payment be less than $15 for each of the months from September to April inclusive, and $7.50 for each of the months from May to August inclusive, whether the actual coal mined during the said months at the said rate should equal such amount or not.

Appellees also offered in evidence the record of a deed bearing date January 1, 1904, from the Consolidated Coal Company to one L. E. Fischer, conveying the real estate described in said lease, and also offered in evidence a deed to said premises dated October 12, 1904, from Louis E. Fischer and wife to the Danville Consumers Coal Company. The said lease bore a written indorsement signed by L. E. Fischer, renewing the same for a period of five years from the date of its expiration, and also a further written indorsement under date of September 1, 1904, whereby the appellees, W. B. and F. R. Carter, assigned a one-third interest therein to the appellee, J. M. Carter, and thereby designated said lease and all interest therein as the property of Carter Brothers, a co-partnership consisting of the appellees.

It is not controverted by appellant that there was a breach by it of that provision of the contract which required it to provide and maintain the iron pipe and tile drain, whereby the mine operated by appellees might be drained, but it is insisted that a clear preponderance of the evidence tends to show that a performance of the said contract in that particular was waived by the appellee, J. M. Carter. The evidence bearing upon this issue is conflicting and might reasonably support a finding for either party, but we are unable to say that appellant established a waiver as claimed by a clear preponderance of the evidence. Upon this issue the verdict of the jury must be held in this case to be decisive.

Conceding, for the sake of the argument, that the record of the deed from the Consolidated Coal Company to L. E. Fischer was improperly. admitted in evidence, because no proper foundation was laid for the admission of said record as secondary evidence, its admission was not harmful to appellant. It appears from the evidence that the Danville Consumers Coal Company at the time it purchased the real estate from Fischer had actual knowledge of the terms of the lease of said premises by the Consolidated Coal Company to appellees and of the extension of such lease by Fischer, and had collected from appellees the royalties and rents under the said lease.

The Danville Consumers Coal Company was, therefore, bound by the terms of the said lease and the recital in the contract sued on, that the appellees held a lease of the premises from the Danville Consumers Coal Company operates to estop appellant from denying that the said lease was binding upon the Danville Consumers Coal Company and from contesting the rights of the appellees under said lease.

By the terms of the lease appellees had a certain fixed tenure of the premises. They were bound to pay a certain royalty upon all coal mined, and in any event they were bound to pay a certain monthly rental during the term of the lease. The trial court- determined the correct measure of damages for the breach of the contract to be the cost of the restoration of the mine to its condition before it was flooded, providing the cost of such restoration did not exceed the fair cash market value of appellees’ leasehold right, for the unexpired term, and in the event that the cost of restoring-said mine to its condition before the breach of the contract exceeded the fair cash market value of appellees’ leasehold right at the time of such breach, that appellees were only entitled to recover the fair cash market value of their said leasehold right. The rule so announced by the trial court as to the proper measure of damages in the case at bar was correct. Kankakee & Seneca R. R. Co. v. Horan, 22 Ill. App. 145; Kellyville Coal Co. v. O ’Connell, 134 Ill. App. 311.

It is urged that the witnesses John M. Carter and John O’Connell were not qualified to testify to the probable cost of restoring the mine to its former condition, or to the fair cash market value of appellees’ leasehold right in the mine. Carter testified that he had been engaged in the business of coal mining- for ten years; that after the breach of the contract by appellant there was no means by which the mine could be drained except by installing- a pump of large capacity; that he was familiar with the price of mining- pumps and the cost of operating the same; that he was familiar with the method of timbering required to properly support the roof of a mine which had been flooded with water and with the cost of such timbering, and that he was familiar with the fair cash market value of coal lands and of leaseholds in coal lands.

The witness O’Connell testified that he had been a coal mine operator since 1891; that he knew the mine in question and had examined it; that he was acquainted with the value of coal lands and with the fair cash market value of leasehold interests in coal lands in the vicinity of the mine in question. It was established by the testimony of these witnesses that the probable cost of restoring the mine to its former condition was from six to ten thousand dollars, and that the fair cash market value of the leasehold interest of appellees in said mine was from $4,000 to $10,000. The witnesses appear to have been qualified to testify in respect to the matters inquired of and the court did not err in permitting them to so testify. ' The weight to be given their testimony was a question for the jury. As to the cost of restoring the mine to its former condition and as to the fair cash market value of appellees’ leasehold interest in said mine appellant introduced no countervailing evidence.

It is urged that the witness Carter was improperly permitted to state that the profit on the coal mined by appellees during the time the mine in question was operated by them was 75 cents per ton. This testimony was expressly limited by the court to stand as tending to show that the leasehold interest of appellees in the mine had some value. Appellees did not attempt to show the quantity of coal which had been mined by them or the probable amount of coal then in place in the mine, and the limited purpose for which the evidence complained of was admitted could not have operated to the prejudice of appellant.

The instructions given by the court, taken as a series, state the law applicable to the case with substantial accuracy, and the instructions given at its instance are as favorable to appellant as the most liberal construction of the rules invoked by them would permit. The amount of damages awarded to appellees by the jury is clearly within the range of the competent evidence in the record upon that issue.

There is- no error in the record prejudicial to appellant and the judgment of the circuit court will be affirmed. Affirmed.


author: Me. Justice Baume

text:
    Freedom E. Hobart, Appellant, v. VanAernam Brothers, Appellees.
    1. Evidence—what competent upon question of handwriting. If a witness has stated that a certain signature in issue is not his, pointing out the points of difference existing therein from his regular signature, it is competent upon cross-examination to show him a signature claimed not to contain such points of difference and ask him if such signature is not his.
    2. Evidence—collateral matters incompetent. It is improper to permit a witness to testify to a controversial conversation had between the plaintiff to a suit and a third party, such conversation in nowise pertaining to the issues of the cause.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Hancock county; the Hon. George W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 24, 1908.
    Charles J. Scofield, for appellant.
    S. L. McCrory and W. H. Hartzell, for appellees.
   Me. Justice Baume

delivered the opinion of the court.

Appellant brought suit against the appellees before a justice of the peace to recover the sum of $15.00 upon an order purporting to be signed by appellees for one copy of the ‘ ‘ Biographical Review of Hancock County, Illinois.” The appellees, Ransom D. Van Aernam and Charles H. Van Aernam, partners as Van Aernam Brothers, filed an affidavit denying the execution by them of the order sued on. Upon the appeal by appellees to the circuit court of Hancock county, a, trial by jury resulted in a verdict and judgment against appellant. The evidence bearing upon the issue whether or not Ransom D. Van Aernam signed the firm name to the order sued on, is so close and conflicting that the verdict of the jury is very likely to have been prejudicially affected by any errors of law upon the trial of the case. The witness Ransom D. Van Aernam having testified in his direct examination that the signature to the order was not in his handwriting and having stated several alleged points of difference between the signature as it appeared upon the order and as written by him, counsel for appellant upon cross-examination of the witness produced a certain hotel register, whereon appeared the signature “R. Van Aernam,” and inquired of the witness whether or not such signature was in his handwriting. Upon objection interposed by counsel for appellees the witness was not permitted to answer the question. It was claimed on behalf of appellant that the signature appearing upon the hotel register did not present the point of difference between the signature to the order and his genuine signature as testified to by the witness, and that the question was competent for the purpose of refreshing the recollection of the witness and as tending to test the accuracy of his statement made upon direct examination. For this purpose we think the question was competent, and that the court erred in sustaining the objection thereto. Bevan v. Atlanta Nat. Bank, 142 Ill. 302. If the witness had denied that the signature upon the local register was in his handwriting, no further examination of the witness upon that subject would have been proper, but if the witness had answered the question in the affirmative and admitted that the signature upon the hotel register was in his handwriting, counsel for appellant could have pursued a line of cross-examination for the purpose indicated.

Upon this record as made the court properly refused to permit the hotel register to be admitted in evidence. It was wholly collateral to the issue involved, and its admission could have only served to enable the jury to compare the signature thereon with the signature upon the order in question, which is not permissible. Himrod v. Gilman, 147 Ill. 293.

Upon the preliminary cross-examination of E. E. Wallace, who was called as a witness upon behalf of appellees, he testified that he had no feeling against appellant, but that a year or so prior thereto, in consequence of some difference between himself and appellant, he had ordered appellant out of his place of business and had expedited the exit of appellant by putting his hand on him. Upon the re-direct examination of the witness, he was permitted, over the objection of counsel for appellant, to detail a controversial conversation had in Ms place of business between appellant and one Marshall, relative to a claim by appellant against said Marshall arising out of a transaction similar to the one involved in the case at bar. This was clearly improper and prejudicial to appellant.

Other objections are urged by appellant, but we do not consider the same of sufficient importance to merit discussion.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remmded.