text:
    Joseph Carneghi, Administrator, Appellee, v. Theodore P. Gerlach, Appellant.
    Gen. No. 6,379.
    1. Automobiles and gabages, § 3

      —when contributory negligence of city street sweeper is question for jury. Whether a city street sweeper engaged at his work in a street was negligent because he was paying attention to.his work and not.to the approach of an automobile or because his back was to such approaching car, held to be questions for the jury, in an action to recover damages for injuries sustained by him.
    2. Automobiles and gabages, § 3*—when evidence shows negligent operation of automobile strilcing city street sweeper. Evidence held sufficient to show that defendant’s chauffeur w-as negligent in the management of his automobile by running it at a greater rate of speed than was consistent with the safety of plaintiff’s decedent, a city street sweeper engaged at his work in the street, whom the chauffeur' was observing for some time as he approached, and by not turning out soon enough to avoid striking the sweeper, in an action to recover damages for personal injuries.
    3. Limitation of actions, § 68

      —what does not constitute statement of new cause of action. Where a declaration, in an action to recover damages for personal injuries, charging that the defendant, by his agent or servant, so carelessly, negligently, wantonly and wilfully drove, operated and ran his automobile and motor vehicle- and that by such wilful negligence and improper conduct of defendant’s agent and servant the automobile struck the deceased, was amended so as to read that the defendant by his agent or servant so carelessly, negligently, wantonly and wilfully drove, operated and ran his automobile that by and through the wilful negligence and improper conduct and carelessness and negligence aforesaid of defendant by his agent and servant the automobile struck the deceased, held that such amendment did not state a new cause of action but merely amplified the charge in the declaration of the servant’s negligence and carelessness in the operation of the automobile.
    4. Evidence, § 67*—when release not admissible in evidence. A release executed by plaintiff to a city of all claims and demands growing out of the'fact plaintiff’s decedent died as a result of personal injuries received by him while he was employed by the city as a street sweeper by being struck by defendant’s automobile, is properly excluded, in an action to recover damages for such injuries in which the city was not made a party and no liability of the city was charged in the declaration or shown in the evidence.
    5. Instructions, § 151*—when properly refused ■because covered by other instructions. An instruction is properly refused where it sets out a principle of law more clearly and fully embodied in other given instructions.
    6. Instructions, § 120*—when requested instruction properly refused as inapplicable to the evidence. An instruction is" properly refused where it erroneously refers to a certain automobile which caused the injury complained of, in an action to recover damages for personal injuries, as approaching from the west when all the evidence shows it was approaching from the east, as such error might tend to confuse the jury.
    7. Instructions, § 96*—when instruction on credibility of witnesses is properly refused. An instruction that the jury are the judges of the credibility of the witnesses and have no right to dis-, regard the testimony of an unimpeached witness, if any, sworn on behalf of defendant, simply because such witness was an employee of such defendant, but that they should receive the testimony of such "witness in the light of all the evidence the same as' the testimony of any other witness, and determine the credibility of such employee by the same principles and tests by which they determine the credibility of any other witness, held to he of doubtful propriety, and its refusal was not error where the court gave an instruction directing the jury’s attention to the proper and approved tests which apply to all the witnesses.
    8. Instructions, § 159

      —consideration as a series. The giving of an instruction held proper when considered in connection with those preceding and following it, together containing a complete and correct statement of the law concerning the matters embraced therein.
    • Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied July 31, 1917.
    Frederick A. Hill and Shepard, McCormick, Thomason, Kirkland & Patterson, for appellant; Weymouth Kirkland, of counsel.
    Snapp, Heise & Snapp, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment recovered in the Circuit Court of Will county, by the appellee, Joseph Carneghi, administrator of the estate of Angelo Chignoli, against the appellant, Theodore P. Cerlaoh. The recovery is based on the alleged negligence of the appellant’s chauffeur. The declaration originally charged that the appellant, by his agent or servant, so carelessly, negligently, wantonly and wilfully drove, operated and ran his automobile and motor vehicle, and that, by such wilful negligence and improper conduct of appellant’s agent and servant, the automobile struck the deceased. The appellant pleaded the general issue to the declaration.

At the close of all the evidence the declaration was amended by leave of court so that the count containing the charge of negligence was made to read that the appellant, by his agent or servant, so carelessly, negligently, wantonly and wilfully drove, operated and ran his automobile and motor vehicle that by and through the wilful negligence and improper conduct, and carelessness and negligence aforesaid, of the appellant, by his agent and servant, the automobile struck the deceased.

To this amended count, the appellant pleaded the statute of limitations. A demurrer was sustained to the plea, and the appellant elected to stand by the plea. The general issue on file was thereupon allowed to stand to the amended count, upon which the case was submitted to the jury.

A jury trial resulted in a verdict finding the appellant guilty and assessing appellee’s damages at $4,000. Subsequently, after a motion for a new trial by the appellant had been overruled, the court entered judgment for the amount of the verdict and accrued interest thereon amounting to the sum of $4,016, and from this judgment the appellant prosecutes this appeal.

The accident which caused the injuries to appellee’s intestate, Ohignoli, and which resulted finally in Chignoli’s death, occurred between 2 and 4 o’clock in the afternoon of October 3, 1914, on Jefferson street, in the City of Joliet, at a- point slightly to the west of the front of the Masonic Temple building, which is located «on the north side of the street, and about midway between Eastern avenue and Michigan street. The street car tracks of the O. & J. Co. are located in the center of Jefferson street, the eastbound track being on the south side of the center line, and the westbound track being on the north side of the center line of the street. The tracks are of standard width, namely, 4 feet 8y2 inches, and the space between the south track and the north track is about 5 feet. The street is paved with brick, and the pavement between the street car tracks and about 18 inches on either side is somewhat smoother than the pavement on the rest of the street, and therefore preferred and more in use for automobile travel.

The proof shows that appellee’s intestate, Chignoli, was a street sweeper, in the employ of the City of Joliet, and on the .day of his injury was following his occupation at the place where the accident occurred. He was at work sweeping with a push broom at or near the center of the street, with his back turned towards the direction in which appellant’s chauffeur was coming in the automobile which caused the injury. The chauffeur in his testimony says that he turned into Jefferson street from Eastern avenue, and as he approached the Masonic Temple from the east ran astraddle of the north rail of the north street car track; that he noticed the street sweeper right after turning into Jefferson street; that the sweeper was on the south street car track, sweeping, and that while at work on the south track the sweeper was in the path of an automobile which was rapidly approaching from the west; that the driver of this automobile shortly before he reached the street sweeper blew his horn, and that the street sweeper thereupon jumped from where he then was at work quickly and suddenly into the path of his own automobile.

The chauffeur also testified that as he was approaching the sweeper he had a clear view .of the street ahead of Mm from the time he turned into Jefferson street at Eastern avenue; that he distinctly saw the sweeper for the distance of an ordinary block; and he must have taken particular notice of him, and of what he was doing, as he approached him, for in his testimony he emphasized the fact that the sweeper was pushing his broom in all directions; that sometimes he would walk and push, and sometimes he would just stand still and brush. It is clear that under these circumstances it was the duty of the chauffeur to manage his automobile with such a degree of care as not unnecessarily to endanger the sweeper while he was thus attending to his work.

It must be remembered that the sweeper was rightfully in the street, at the place where he was at work, and as to whether or not he was guilty of any negligence because his attention was on his work and not on the approach of appellant’s car, or because, at that time, he had his back to appellant’s car while performing his work on the street, were all questions for the jury to determine; but he had a right to rely on the fact that the drivers of the automobiles using the street, who had knowledge of his presence and saw him at work, would exercise reasonable care in managing their automobiles not to injure him.

In his testimony the chauffeur sought to excuse his act of running into the street sweeper by the statement that the street sweeper suddenly jumped from the path of the automobile approaching from the west into the path of his own automobile, when he was but 20 or 25 feet away, coming at the rate of 10 to 12 miles an hour, and that, on account of this sudden and unexpected jump in front of his automobile he did not have sufficient time to stop his car, or turn it aside to avoid striking the sweeper. The weight of the evidence, however, does not sustain the chauffeur in this statement. The evidence preponderates to show that the street sweeper was not on the south track, as stated by the chauffeur, during the time that the chauffeur was approaching him, but was at work at or near the north track, with his back turned all the time towards the approaching car, and that there was no such sudden change in his position just before he was struck, and that he was struck in the back and knocked down face forward when he was going through the ordinary and usual motions pertaining to his work of sweeping and handling the push broom. Even the witness Til-ton, who was called on the part of the appellant to corroborate the chauffeur concerning the sudden jump of the sweeper into the pathway of the appellant’s automobile, directly contradicts him. He testified that when he first saw the street sweeper, which was just before he was struck, he was near the north rail of the south track, and that upon the approach of an automobile from the west he moved quickly over towards the north, and that when the automobile hit him “he was close to the south rail of the north track,” and 1 ‘ on the south side of the south rail of the north track”: that is to say, the street sweeper was near the middle of the street, within the 5-foot space between the south track and the north track, and stepped and moved within this space from near the north rail of the south track to the south rail of the north track, which would be just an ordinary step which would naturally be taken by a street sweeper at any time in the performance of his work. The position of the sweeper where the witness Tilton first saw him was not in the. path of the automobile coming from the west, which according to the testimony of the chauffeur was coming astraddle of the south rail of the south track; nor did he step into the pathway of appellant’s automobile, which was coming, as the chauffeur states, astraddle of the north rail of the north track.

From the path of the eastbound automobile coming astraddle the south rail of the south track, to the path of the approaching automobile coming astraddle of the north rail of the north track, there was a distance, according to the chauffeur’s own testimony, of 8 or 10 feet. If, as he says, the sweeper was in the path of the eastbound automobile and from there suddenly jumped into the path of his car, he must have covered a distance of at least 8 feet. It is needless to say that a sudden jump of that character made by a man 62 years of age was so remarkable in its character that it would have attracted the attention of every one of the witnesses who were looking that way, yet none of the witnesses in the case appears to have seen it. The statement of the chauffeur, therefore, was inconsistent with, and at variance with the other witnesses in the case, and the jury probably did not believe it to be true, and they were fully justified in disbelieving it. We regard it as a reasonable and just inference from, all the evidence in the case that the chauffeur was negligent in the management of his car, not only in running it at a greater rate of speed than was consistent with the safety of the street sweeper, whom he admits he was observing, but that he was negligent also in not turning out soon enough to avoid striking the sweeper.

The appellant contends that the amendment of the court upon which the case was tried stated a new cause of action, and that the new cause of action was alleged after the statute of limitations had run. We cannot agree with this contention. The declaration in its original form charged appellant’s servant with negligence and carelessness in the operation of the automobile, and the amendment merely amplified this charge, and did not state a new cause of action. The demurrer to the plea was, therefore, properly sustained.

Error is assigned, also, on the refusal of the court to admit in evidence a release executed by the appellee as administrator of the estate of Angelo Chignoli, which by its terms releases the City of Joliet of all claims and demands growing out of the fact that the deceased died as a result of personal injuries received by him in the accident in question and while employed by the City of Joliet as street sweeper. It is evident from the record that there was no liability on the part of the City of Joliet for any tort, with which the appellant was charged in the declaration and shown by the evidence, this tort being the legal basis for a recovery in the case. The City of Joliet was not liable therefore, and it was not a party to the suit, and conld not properly have been made a party to the suit, and the release does not purport to be a release of any liability incurred by the appellant for the tort alleged to have been committed by his chauffeur. It is apparent, therefore, that the release adjusted some liability of the City of Joliet other than the one involved in this case, and hence the release had no bearing upon the issues submitted to the jury. We are of opinion that the release was properly excluded.

The giving and refusal, as well as the modification of certain instructions are assigned as error ; and appellant insists that defendant’s sixteenth instruction, which the court refused to give, correctly states the law, and that it should have been given; that a similar instruction has been sustained as proper in Chicago Union Traction Co. v. Browdy, 206 Ill. 615. Upon the reading of the instruction in the Browdy case, however, it appears that the instrnction passed on there has in it an element which is left out in the instruction under consideration, but which is necessary to an accurate statement of the law involved. The words “unexpectedly and without the knowledge of the defendant,” which are in the instruction in the Browdy case, supra, were left out in the language used in the instruction in this case, and it was therefore properly refused.

Appellant also complains of the refusal of his twenty-first instruction. Inasmuch as the principle of law set out in this instruction was more clearly and fully embodied in the instructions numbers 11 and 15, which were given for appellant, he was not entitled to have the same matter again stated in another instruction. Moreover, this instruction erroneously refers to the automobile, which caused the injury to the deceased, as approaching from the west, when all the evidence shows that it was approaching from the east, and this error of itself might have had a tendency to confuse the jury.

Appellant also complains of the refusal of the seventeenth instruction. The instruction is as follows:

“You are instructed that while you are the judges of the credibility of the witnesses, you have no right to disregard the testimony of an unimpeached witness, if any, sworn on behalf of the defendant, simply because such witness was an employee of the defendant, but it is your duty to receive the testimony of such witness in the light of all the evidence the same as you would receive the testimony of any other witness, and to determine the credibility of such employee by the same principles and tests by which you determine the credibility of any other witness.”

The instruction is of doubtful propriety, and we are of opinion that there was no error in the refusal of the instruction, since the court gave to the jury instruction “G-,” which directs the attention of the jury to the proper and approved tests, which apply to all the witnesses. (Cicero & Proviso St. Ry. Co. v. Rollins, 195 Ill. 219.)

Concerning appellant’s objection to the giving of instruction “E,” it is sufficient to say that this instruction must be Considered in connection with instruction “D,” which preceded it, and instruction “F,” which followed it; these instructions supplement each other, and together contain a complete and correct statement of the law concerning the matters embraced therein. (Chicago & E. I. Ry. Co. v. Hines, 132 Ill. 161; Smith v. Smith, 169 Ill. 623; Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104; Chicago & E. I. Ry. Co. v. Crose, 214 Ill. 602.)

The modification of appellant’s eleventh instruction, by interpolating the words “in time to have avoided being injured” was properly made. The interpolated ' words, used in connection with and after the phrase “or by the exercise of ordinary care and caution on his part, could have known of the approach thereof” (meaning appellant’s auto), more accurately expressed the point of law involved.

The record does not disclose any reversible error, and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    Samuel Freeman, Appellee, v. Chicago & Joliet Electric Railway Company, Appellant.
    Gen. No. 6,395.
    (Not to he reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1410 —-when findings of jury not disturbed. The jury and trial judge are in the best position to consider and pass upon the question of the credibility of the testimony, and the findings of the jury, approved by the trial judge should not be disturbed on appeal unless' they appear to be manifestly against the weight of the evidence.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied July 31, 1917.
    Statement of the Case.
    Action by Samuel Freeman, plaintiff, against Chicago & Joliet Electric Railway Company, defendant, to recover damages for personal injuries and for injuries to plaintiff’s horses and wagon caused by defendant’s alleged negligence. From a judgment for plaintiff, defendant appeals.
    E. Meers, for appellant.
    Snapp, Heise & Snapp, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.


author: Mr. Justice Carnes,

text:
    S. E. Day, Administrator, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 6,358.
    1. Master and servant, § 566

      —when no recovery proper under declaration in action for personal injuries under State law. Recovery cannot be had, in an action to recover damages against an employer for the death of an employee, under a State law on pleadings counting only on that law when the evidence develops that the employee was employed in interstate commerce and was within the Federal Employers’ Liability Act.
    2. Commerce,- § 4*—when employee not engaged in interstate. Where plaintiff’s decedent was killed while employed by defendant railway company in constructing a new pipe line intended for future use in connection with the interstate commerce operation of defendant’s road, he was not at the time of the injury employed in interstate commerce.
    3. Master and servant, § 683*—when evidence shows negligence of operator in failing to look out for employee in turntable pit. Evidence held sufficient to warrant the finding that defendant’s turntable pit had been so often used by defendant’s employees for hiding their tools therein that defendant’s turntable operator ought to have known that one of the defendant’s employees might be there and should look out for him in turning the table, in an action to recover damages for the death of an employee while in the pit after his tools.
    4. Master and servant, § 699*—when evidence shows contributory negligence of employee entering turntable pit. Evidence held sufficient to show that plaintiff’s intestate was contributorily negligent in going into defendant’s turntable pit after Ms tools stored therein without warning the turntable operator and without observing whether the operator’s engine was signaling for adjustment of the table, in an action to recover damages for intestate’s death,
    5. Workmen’s Compensation Act, § 2*—what is effect of contributory negligence of employee on liability of master. Under the Workmen’s Compensation Statute of 1911 (J. & A. jl 5449 et seq.), a negligent employer who has rejected the act is exonerated, by the' contributory negligence of Ms employee, as to a proportional part of the damages corresponding to the amount of negligence attributable to the employee.

      6. Death, § 67

      —when verdict for damages excessive. Judgment for $7,500 for damages on account of death of plaintiff’s intestate while employed by defendant, held excessive in view of evidence showing the intestate was equally negligent with defendant, and remittitur of $3,750 allowed, since, under the Workmen’s Compensation Act of 1911, the contributory negligence of the employee must be considered in reduction of damages in an action against an employer who rejected the act.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied October 4, 1917.
    William A. Meese and Charles S. Roberts, for appellant.
    Searle & Marshall and Ely & Bush, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes,

delivered the opinion of the court.

This is an appeal by the Chicago, Milwaukee & St. Paul Railway Company from a judgment of $7,500 for the death of Joseph T. Clappison, its employee.

For more than a year prior to January 30, 1913, Clappison was in the employ of the appellant railway company as one of a gang or crew of bridge carpenters. Mike Hamet was their foreman, and they went from place to place on the company’s line, as ordered, doing bridge, pile driving, carpenter and pipe line work. In the fall of 1912 they were ordered to Savanna, Illinois, where the company was enlarging its turntable connected with its roundhouse. The old turntable operated over a pit about 70 feet in diameter. The new one was to be 15 or 20 feet longer, which necessitated enlarging the pit by excavation at its circumference, and putting in a new concrete wall. This excavation was done by another crew, but to keep the turntable in operation while the work was in progress temporary woodwork was required at the outer edge, and this work was done by Harnet’s crew. It was completed about the 1st of January except some small repairs from time to time, and during the month of January, 1913, Harnet’s crew was employed about the company’s yards in other work. The turntable was operated by electricity and controlled by an employee of the company situated in a little building near the center. Engines were frequently run over it into and out of the stalls in the roundhouse. The operator usually got his signal to adjust the table for an engine coming out of the roundhouse by the ringing of that engine bell. While Hamet’s crew was working regularly in the pit, the danger of injury to the men was appreciated, and the operator was instructed to look out for them and give warning before he started the machinery, which it seems he usually did by shouting to men in the pit. During all the time that this crew was working at Savanna they used a number of tools, the larger and heavier ones belonging to the company and the smaller ones to the men. Three cars were in the yards for their accommodation. They slept in one, ate in another, and the third was for the storage of tools. These cars were from time to time located at different points as the convenience of train operations required, sometimes half a mile to a mile from the place where the men were working. While Clappison with other members of his crew were engaged in the turntable work they kept some of their tools concealed at various places in the pit, and after that while at other work they kept tools concealed around the yards. The company had besides this car a house provided for keeping the workmen’s tools, but sometimes it was convenient and perhaps necessary to store them in other places that the men of their own motion would select.

January 30, 1913, Clappison and one Peter O’Connell, a member of his crew, were working near this pit laying, as' we understand it, a new pipe line intended for future use in connection with the operation of the road. At about half-past 4 o’clock in the afternoon, Clappison was through with a tool that he was using and told O’Connell that he was going to put it in the pit. O’Connell said all right, or something to that effect, and Clappison went into the pit for that purpose' and while there the table was turned to receive an engine coming out of the roundhouse, and in the operation he was caught and killed. The operator did not know of his presence until he heqrd his cry. The crew had not been working much in the pit for 3 or 4 weeks, and he had no reason to expect one of them there at work. He testified that he did not know they kept.tools there. There is evidence that the engine bell rang as a signal for the operation to adjust the table, although in one part of the testimony the defendant, on cross-examination, asked one of plaintiff’s witnesses what signal was given for the turning of the table at that time, and the court sustained plaintiff’s objection to the1 question.

Peter O’Connell, with whom Clappison was working at the time, had been long in the employ of the company and was usually left by the foreman, Harnet, in charge of the .men when he was absent. Harnet was himself in charge of his gang that day, and it does not appear that O’Connell had any authority at the time in question to direct Clappison, although it is no doubt true that because of his age and experience other members of the crew would naturally seek his advice in any questionable matter.

Clappison at the time was 49 years old, and left him surviving a widow and three minor children. This action was brought by his administrator. A declaration of four counts was filed, to which were added two amended counts. In some counts it was alleged that Clappison was employed in interstate commerce and a recovery sought under the Federal Employers’ Liability Act. Others were framed on the 'theory that he was not so employed and that the Workmen’s Compensation Act of 1911,1912 should apply, alleging that the defendant had rejected the provisions of that act. The general issue was pleaded. At the close of the evidence the court, of its own motion, directed the jury ■ to disregard three counts in the declaration, leaving the issues as presented hy the second and fourth original counts and the first additional count. This eliminated counts under the Federal Employers’ Liability Act. No question is raised by either party as to this action of the court, except appellant insists that under the evidence deceased was employed in interstate commerce and therefore could not recover under the State law.

The trial court indicated by his rulings and instructions to the jury that in his opinion the Workmen’s Compensation Act applied; and it appearing that the defendant had elected not to provide and pay compensation under that act it followed that it could not escape liability on the ground of assumed risk, or the negligence of a fellow-servant, or contributory negligence except, if contributory negligence of deceased was shown, the jury would be required to consider it in reduction of the amount of damages to be assessed. (J. & A. vol. 3, U 5449.)

Appellee contends “it is necessary for defendant to raise issue of interstate commerce by special pleading,” and cites several authorities in support of that contention. At one time there was conflict of authority, but it was settled that a recovery could not be had under a State law on pleadings counting only on that law when the evidence develops that the servant was employed in interstate commerce in St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, and Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, as we held in considering that question in Dunlavy v. Chicago, B. & Q. R. Co., 200 Ill. App. 75, therefore, if the evidence in the present case shows that appellee’s intestate was employed in interstate commerce at the time of his injury there could be no recovery under the three counts of the declaration upon which the case was submitted, and the judgment would have to be reversed for that reason. Chicago, R. I. & P. Ry. Co. v. Industrial Board of Illinois, 273 Ill. 528.

If the pipe line on which Clappison was at work was new, had never been used in interstate commerce, but was intended to be so used in the future, he was not then employed in interstate commerce. The answer would be different if he had been engaged in repairing a bridge, track, or 'pipe line that had been so used and was being repaired for future use. He was employed in interstate commerce when he was working on the turntable. It is admitted that appellant was engaged in interstate commerce. It is obvious that a servant cannot be employed in interstate commerce unless his master is at the time so engaged. It is equally plain that railway companies may be all the time engaged in interstate commerce with their employees so employed a part of the time, and a part of the time in intrastate commerce. A test is: Is the work in question a part of the interstate commerce in which the carrier is engaged? Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 [3 N. C. C. A. 779]. It was held in Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153], that a fireman who was killed while engaged in switching cars loaded with local freight was not employed in interstate commerce, and therefore the injury and death were not within the federal statute; that it was immaterial that he was expected upon the completion of that task to engage in another which would have been a part of interstate commerce; that “the true test is the nature of the work being done at the time of the injury.” These federal cases were reviewed in Chicago, R. I. & P. Ry. Co. v. Industrial Board of Illinois, supra, and a watchman or private detective employed in the railroad yards inspecting cars, some of which were and some were not used in interstate commerce, was not considered employed in interstate commerce in the absence of proof that the11 cars about which he was working contained interstate freight. In Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177 [11 N. C. C. A. 992], the court held that a member of a railway yard switching crew engaged in switching loaded coal cars belonging to the company from a storage track to a coal shed, or chutes, was not then employed in interstate commerce within the meaning of the Federal Employers’ Liability Act. It said: “The question is with respect to the employment of the decedent at the time of the injury (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 [10 N. C. C. A. 153]). It is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed.” The court cited Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558, and quoted from that case that: ‘1 The true test of employment in such commerce in the sense intended is, Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?” and cited Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, holding that an employee of the carrier while he is mining coal in the carrier’s colliery intended to be used by interstate locomotives, is not employed in interstate commerce. The court noted that Great Northern Ry. Co. v. Knapp, 240 U. S. 464, was not to be taken as authority on this question, as the application of the federal statute was there conceded in the State court. In Jackson v. Chicago, M. & St. P. Ry. Co., 210 Fed. 495, the district court held that an employee while engaged in the construction of a tunnel to be used when completed by a railroad in interstate commerce was not so employed, as the Federal Employers’ Liability Act does not apply to a railroad construction which has not yet become.an instrument of commerce, and said: “The building of this cut-off is a facility which is to be used by the defendant, when completed, as an engine or cars, or any other appliance under construction might be considered for use when completed. Can it be said that a person engaged in the building of engines or cars, or any other facilities to be used by a common carrier engaged in interstate commerce, comes within the provisions of the Employers’ Liability Act! The act deals only with the liability of a carrier engaged in interstate commerce for injuries sustained by its employees while engaged in such commerce. ■ Second Employers’ Liability Cases, 223 U. S. 1 [1 N. C. C. A. 875]. The act is not ‘concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumental-. ities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities, and during their use as such.’ Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152 [3 N. C. C. A. 779].” In Bravis v. Chicago, M. & St. P. Ry. Co., 217 Fed. 234, the Circuit Court of Appeals in holding that an employee engaged in the construction of a bridge 600 feet distant from the railroad on a cut-off more than a mile in length, which had never been provided with rails or used as a railroad, is not employed in interstate commerce, although his employer is so engaged and intends to use the cutoff therein when completed, said on page 236: “The argument that the building of a cut-off was'the mere correction or prevention of a defect or insufficiency of the defendant’s instrumentality for conducting interstate commerce is too remote and inconsequential to convince. The building of such a cut-off is new construction for use in interstate commerce, as much as the building of a new engine or car, or plans prescribed ' by the railroad company to run over the cut-off, or to ' take the place of an engine, or car worn out in interstate commerce would be.” In Illinois Cent. R. Co. v. Rogers, 221 Fed. 52, the Court of Appeals held that an employee of a railroad company while cleaning-stencils used by the company to mark cars owned and used by it in interstate commerce, was not employed in interstate commerce. In Raymond v. Chicago, M. & St. P. Ry. Co., 233 Fed. 239, the Court of Appeals held that a laborer in a tunnel, which when completed was intended to be used by a railroad company to shorten its line over which it transported intra and interstate commerce, is not employed in interstate commerce within the meaning of the Employers’ Liability Act. In Coal & Coke Ry. Co. v. Deal, 231 Fed. 604, the Court of Appeals held that an employee injured while attempting to erect a telegraph pole in repairing a line used in interstate commerce was employed in interstate commerce. This case compared with those before cited illustrates the difference between repairing work used in interstate commerce and constructing work to be so used. The Supreme Court of Appeals of West Virginia in holding that an employee of a railroad engaged in interstate commerce, working in an excavation under a wooden trestle on which the employer’s track crosses a small stream and near the supporting' timbers thereof intended for an abutment of a steel bridge to take the place of a trestle, and to be used in lieu thereof when completed, and not repairing or altering the trestle nor otherwise engaged in work on it or the. track or anything else actually used in the operation of the railroad, is not employed in interstate commerce, very thoroughly reviewed and discussed the authorities on that question in McKee v. Ohio Valley Elec. Ry. Co. (W. Va.) 88 S. E. 616. We conclude that deceased was not at the time of his injury employed in interstate commerce, and that the court did not err in his rulings so.far as they were based on the theory that appellant’s liability was to be determined by the laws of this State.

The charges of defendant’s negligence in the three counts of the declaration submitted to the jury were in different counts: (a) That Clappison and other workmen" stored and kept certain of their tools in the excavation under the turntable, and from time to time went in and out of said excavation in the course of their employment to the knowledge of the defendant, and that the servant of the defendant in charge of the turntable, without using ordinary care to ascertain whether any one was in this excavation, and without any warning, turned the same while the plaintiff’s intestate was in-the excavation in the course of his employment, and that he was thereby killed, (b) That the defendant did not furnish a safe place for the workmen to keep their tools, but on the contrary provided and permitted to be used the excavation of this turntable for that purpose, and that as a result of such negligence the plaintiff’s intestate, while in the course of his employment, in and about the tools in said excavation, was killed, (c) That while said gang of workmen was engaged in the work upon said turntable and pipe line, they had kept and stored certain of their tools with which they worked in said excavation, and from time to time went in and out in the course of their employment, all of which was well known to the defendant; that while the‘plaintiff’s intestate was in the excavation, which was then and there known to the defendant, said turntable was carelessly turned by the operator, which resulted in the plaintiff’s intestate’s death.

The facts are sufficiently stated in what we have heretofore said. Any finding of defendant’s negligence must rest on the charges in the declaration that the defendant knew Clappison was in the excavation at the time in question. There is no evidence supporting the allegation that the defendant did not furnisk him a safe place to keep his tools. Perhaps the jury were warranted in finding that workmen’s tools had been so often hidden in the excavation that the defendant ought to have known that one of its servants might be there and look out for him; at least such a finding is not so manifestly against the weight of the evidence as to warrant our ‘ disturbing the verdict on that ground. It would logically follow that the operator of the turntable was not in the exercise of ordinary care in not seeing Clappison and giving warning before turning the table; but if we use the hypothetical prudent man to measure the care required of the turntable operator and find that he falls short in that requirement, we do not see how Clappison in going into the pit without warning the operator, and without observing whether an engine was signaling for the adjustment of the table can, by the same test, be held to measure up to the required standard. It seems too clear for intelligent difference of opinion that Clappison must be held at least as negligent as the operator. The- verdict of $7,500 was quite as large as it should have been had there been no question of Clappison’s negligence contributing to the injury. The statute of 1911 and 1912 (J. & A. vol. 3, j[ 5449), unlike our present act, provides that contributory negligence shall be considered by the jury in reducing the amount of damages. While the language of this statute is not exactly the same as the federal statute under consideration in Norfolk & W. Ry. Co. v. Earnest, 229 U. S. 114, we see no way of giving effect to the provision that contributory negligence of the plaintiff shall be considered in reducing damages except as was said in that case that where the casual negligence is partly attributable to him and partly to the carrier he shall recover for damages, only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both, the purpose being to abrogate the common-law rule, completely exonerating the carrier from liability in such case, and to substitute a new rule confining the exoneration to a proportional part of the damages corresponding to the amount of negligence attributable to the employee. We think a judgment for $3,750 as large as should be allowed.

Other rulings of the court are assigned and argued by appellant as error. We find no substantial error except as above indicated. The defendant on its motion for a new trial assigned as one reason that the verdict was grossly excessive. It assigns and argues error' on that ground, which we think should be sustained.

This opinion will be lodged with the clerk of this court and the appellee notified thereof. If within 7 days thereafter he remits $3,750 of the judgment it will be affirmed at costs of appellee; otherwise the judgment will be reversed and the cause remanded.

Appellee having entered a remittitur herein in the sum of $3,750, the judgment is therefore affirmed in the sum of $3,750 at the costs of appellee.

Affirmed.


author: Mr. Justice Carnes

text:
    Thomas J. Potter, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 6,398.
    1. Railroads, § 461

      —when ordinance as to speed of trains within city limits applies. A city ordinance providing that no corporation shall run a passenger train within the city limits at a greater speed than 10. miles an hour is applicable to the case of a railroad employee injured while at his employment on a railroad right of way within such limits;
    2. Appeal and error, § 1411*—when finding on conflicting evidence not disturbed. Evidence as to the speed of defendant’s train being conflicting, finding of jury indorsed by the court will not be disturbed.
    3. Railroads, § 536*—when evidence shows operation of train at negligent speed. Evidence held sufficient to show, independently of an ordinance limiting the speed of railroad trains within the city limits, that defendant was negligent in operating its train at a high rate of speed at the time and place it was charged with knowledge that the employees, of other roads might rightfully be on its right of way and in danger.
    4. Railroads, § 508*—who is not a trespasser. An employee of another railroad is not a trespasser on a railroad right of way in going thereon in the course of his employment according to an established usage and custom, where the inner rails of the tracks of the two roads are but 8 feet apart and the line between the two rights of way was unmarked halfway between such rails.
    5. Railroads, § 589*—when contributory negligence of switch-man struck by engine of another railroad on parallel track is for jury. Whether the reasons why plaintiff, a switchman, failed to see the approaching engine of another railroad on another track which struck and injured him were sufficient reasons, and whether he was measuring up to the standard of the hypothetical prudent man in stepping off of one side of his engine instead of the other, held to be questions for the jury, in an action to recover damages for personal injuries.
    6. Railroads, § 569*—when no variance in admission of evidence of customs as to use by employees of adjoining roads of respective rights of way of other roads. Evidence of customs in operation of defendant’s trains and in that of other trains on an adjoining track and right of way of another road as to a common use by the employees of each road of the other’s right of way, held competent as bearing not only on the question of plaiptiff’s care hut also on the question of notice to and knowledge of defendant that plaintiff or his fellow-servants might be at the place he was injured, notwithstanding the declaration contained no averment of such customs, in an action to recover damages for such injuries.
    7. Appeal and ebbor, § 438

      —when question of variance may not he raised. A variance between the allegations and the proof cannot be first raised on appeal.
    8. Railroads, § 569*—what does not constitute variance hettoeen declaration in action for negligence against several railroads alleging joint ownership of yards, and proof. A declaration containing positive allegations of defendant’s negligence causing injury to plaintiff, a switchman of one railroad, and due care on his part, with proof supporting such allegations, held good on motion in arrest of judgment, notwithstanding such declaration alleged also the joint ownership, use, operation and maintenance by defendant and four others, original defendants for whom a directed verdict was given at close of plaintiff’s evidence, of the railroad yards in which were located the railroad tracks of all five, of which allegation of joint ownership, use, operation and maintenance there was no proof.
    9. Instructions, § 128*-—when instruction directing verdict is had. An instruction directing a verdict with the court’s reasons therefor held had.
    10. Instructions, § 128*—when court may refuse to pass again on refused instruction for directed verdict. A party cannot require the court to pass again at the close of a case on an instruction for a directed verdict offered and refused at the close of the plaintiff’s evidence.
    11. Instructions, § 135*—duty of party to offer proper requested instructions. A party should offer desired instructions unincumbered by improper matter, and a court is under no duty to so instruct of its own motion.
    12. Instructions, § 153*—duty of court as to modification of. The court may modify or qualify an instruction as tendered or give instructions without request, but a party cannot complain of the court’s failure to do so.
    13. Appeal and error, § 1241*—when party cannot complain of court erroneously treating question as at issue in modifying instruction. A party cannot complain that the court in modifying an instruction erred in treating a question as at issue which was not, where the instruction^ as tendered assumed such an issue, by asking the court to instruct that there was no evidence upon such an issue.

      14. Railuoads—when modification of instruction on right of recovery by employee injured while on right of way of another company without latter’s consent is proper. An instruction that if plaintiff, a switchman of another railroad, was upon defendant’s right of way without defendant’s consent and was struck by defendant’s engine because he was upon such right of way he could not recover, held properly modified by instructing that such consent might be express or implied and that the jury might consider knowledge and acquiescence in any habit and custom proven in-that regard, in an action to recover damages for personal injuries.
    15. Damages, § 110

      -—when for personal injuries not excessive. A judgment for $5,000 held not excessive where plaintiff was seriously and permanently injured and disabled probably for life from performing services as a switchman efficiently as before the injury.
    Appeal from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the October term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied July 31, 1917.
    Walker, Ingram & Sweeney, for appellant; C. S. Jefferson, of counsel.
    Searle & Marshall, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

In 1913 the appellant, Chicago, Milwaukee & St. Paul Railway Company, had a main track 8 feet south of and parallel with a switch track of the Chicago, Rock Island & Pacific Railway Company, in the City of Rock Island, Illinois. The Chicago, Burlington- & Quincy Railroad Company had tracks immediately south of appellant’s, and the Davenport, Rock Island & Northwestern Railway Company tracks were in close proximity. April 6, 1913, in the nighttime, Thomas J. Potter, the appellee, a switchman in the employ of the Rock Island Company, in the course of his employment stepped off from the footboard of an engine running east into the 8-foot space between the Rock Island switch, track and appellant’s main track, and was struck 'and seriously injured by an engine of a passenger train running west on appellant’s main track. He sued the four railroad companies and Sullivan, appellant’s engineer, to recover for the injury. At the close of plaintiff’s evidence each of the defendants moved for a directed verdict. The court denied appellant’s motion, and granted that of each of' the other defendants. Appellant introduced testimony in defense. At the close of the evidence the court denied appellant’s motion to direct a verdict. One of $5,000 for plaintiff was returned, on which, after overruling appellant’s motions for a new trial and in arrest, judgment was entered, from which this appeal is prosecuted. It is claimed that appellee at the time in question was a trespasser on'appellant’s right of way; that he was ■careless in not seeing appellant’s approaching engine and avoiding the danger, and that appellant was guilty of no negligence whatever. It is also argued that the declaration charged joint negligence of all five defendants, and that there is no allegation permitting a recovery on proof of negligence of the appellant alone, and that there was prejudicial error in ruling on the evidence and instructions to the jury.

The declaration is of one count, alleging that all the defendant railroad corporations are engaged in interstate commerce and jointly owned, used, operated and maintained a certain yard in the City of Bock Island; that plaintiff was employed by the Bock'Island Bail-way Company as switchman in said yard in interstate commerce; that it was the duty of the defendant railroad companies so using said yard to exercise reason-. able care to maintain a reasonably safe place and conditions at said yard for the plaintiff to do his work there with reasonable safety; but the defendant companies failed in said city, and the C., M. & St. P. By. Co. (appellant) recklessly and negligently ran one of its passenger trains in charge of defendant Sullivan, engineer, * * * ' over one of the tracks thereof within 8 feet of the track on which was operating the train on which plaintiff was engaged in switching, at a high and unlawful rate of speed, to wit, 35 miles per hour, in violation of an ordinance of the city prohibiting greater speed than 10 miles per hour, and without bell or engine ringing, contrary to ordinance of said city, etc., and without any headlight burning, and without any warning to plaintiff, and on to and over plaintiff who about his work was there necessarily and unavoidably without warning or knowledge of approach of train between said tracks struck and permanently injured. Each defendant pleaded the general issue, and the defendant railroad companies each filed additional pleas denying joint ownership, use, or operation of the tracks and yards. It did not appear in evidence that the four railroad companies jointly owned or operated a yard, or yards, at the place in question. That allegation, and the allegation that they were under a duty to furnish appellee a safe place to work was not ■sustained by the evidence. There was no relation of master and servant existing between appellant and appellee. It is not claimed by appellee that any liability arises except under our State law. The inquiry is whether appellant was guilty of negligence causing the injury, and appellee in the exercise of due care. It appeared that • these several railroad companies were in the use and occupation of certain definite strips of land as rights of way; that the right of way of the Rock Island Company was north of and adjoining that of appellant. Their tracks were parallel at the place in question, with a space of 8 feet between the north rail of appellant’s track and the south rail of the Rock Island track, leaving a clear space of about four feet between two engines standing or passing on the respective tracks. It had been customary for a considerable period of time before the accident for Rock Island crews to do switching at that point. There was nothing indicating the line between appellant’s and the Bock Island rights of way that a casual observer would notice. The proof affirmatively showed what would naturally be presumed under such circumstances ; that the employees of the respective roads exercised no care to keep entirely on their own right of way, but moved around over the grounds as the convenience and necessity of their business required; that this had been a custom for so long a time that appellant was charged with knowledge of it. To this extent the several strips of right of way were used in common. A man could stand in the 4-foot space between engines on the opposite tracks, but he could not safely do so if they were rapidly moving. At the time in question appellee was coming from the west on an engine attached to some cars, and it was his duty to turn a switch north of his employer’s track near the place in question. He rode on the south side of the engine and alighted there. There is evidence that this was according to the prevailing custom. Appellant’s passenger train was coming from the east and appellee did not see it and did not hear any signal of its approach until he stepped from his engine, when his engineer called to him to look out. He was, we assume, over the line on appellant’s right of way at the time although, as we have said before, there was nothing there to indicate exactly where that line was. Appellant’s engineer, Sullivan, saw appellee some 150 feet before the engine .struck him, but assumed that he would get out of the way, and did not slacken his speed or try to stop his engine. It is conceded that there is no charge in the declaration of wilful and wanton negligence, therefore that question is not presented. Appellee offered an ordinance of the City of Bock Island providing that no railroad corporation shall run a passenger train within the city limits at a greater speed than 10 miles per hour. The court overruled appellant’s objection and it was admitted in evidence. Appellant argues that it cannot reasonably be held to apply to a situation like this; that it must be taken as enacted for the benefit of people using the streets and alleys of the city, and not for the benefit of workmen employed about trains in railroad yards, or on the right of way of railroads away from streets and alleys, and invokes the rule that a party cannot avail himself of the provisions of a law or ordinance that was enacted for some purpose and object entirely other and different from that in which he was engaged. This question has been several times before this court and carefully considered and discussed. In Chicago, & N. W. Ry. Co. v. Thomson, 128 Ill. App. 594, 598, authorities in support of á similar contention were noted, and the court said on the authority of several cases there cited that the law was settled in this State “that workmen upon a railroad have a right to expect that the master and its other servants operating trains will obey the statute and the rules of the company and will give signals and warnings as required by the statute and such rules.” In Cook v. Chicago, R. I. & P. Ry. Co., 153 Ill. App. 596, in discussing the question whether such ordinances are only intended to protect the public and have no legal application to cases between the railroad company and its employees relating to injury inflicted by engines on the private grounds of the railroad company, the court reviewed the authorities and said, quoting from Dukeman v. Cleveland, C., C. St. L. Ry. Co., 237 Ill. 104: “The deceased had a right to presume that appellant would not run its train in violation of the ordinance of the city, and contributory negligence could not be imputed to her for a failure to anticipate that appellant would approach this crossing at a rate of speed prohibited by the ordinance.” In Elgin City Banking Co. v. Chicago, M. & St. P. Ry. Co., 160 Ill App. 364, 375, in passing on a similar question, the court again cited several Illinois cases and said: “Deceased had a right to rely on obedience by appellant to the ordinance requiring the bell to be rung,” noting that the' Supreme Court had refused a certiorari in Cook v. Chicago R. I. & P. Ry. Co., supra, in which that law was held. In Ehrlich v. Chicago Great Western R. Co., 160 Ill. App. 379, the authorities were again reviewed and it was said: “That employees and persons lawfully around tracks and trains have a right to rely upon the rules of the railroad company. * * * Have a right to expect the master and its other servants operating trains to observe ordinances and statutes,- and also rules and general customs of the company.” In Lund v. Osborne, 183 Ill. App. 63, 68, it was again said, citing authorities: “A party has a right to presume that - a railway company will obey the statutes and ordinances in force in a given place. ’ ’ We adhere to the rule in those cases announced. The employee must regulate his conduct to conform to what he reasonably presumes will be the acts of his employer and others rightfully around him, and while laws and ordinances under consideration may not have been enacted with any .view to people of his ■class or situation, still he is in the exercise of due care when acting on the presumption that such rules, laws and ordinances will be observed. We conclude that appellant was under a duty to appellee to not operate its train in violation of the speed ordinance at the time and place in question, and that appellee, not knowing of its speed, cannot be held negligent in, not guarding himself against its approach at a rate of more than 10 miles an hour.

Appellee’s evidence was to the effect that appellant’s train was running at the rate of 25 to 30 miles an hour. Appellant’s evidence is that it was running from 7 to 9 miles an hour. Appellant strongly insists that the weight of the evidence is decidedly against a finding that it was running in violation of the speed ordinance, and calls our attention to various facts and circumstances, as well as the testimony of its own witnesses in support of that contention. We have carefully considered the evidence on that point and conclude that there is a conflict of such character that a jury might have reasonably believed the witnesses of either party and found accordingly; that reasonable men, from reading the record, would very likely differ in their conclusions. Therefore, we must accept the finding of the jury, indorsed by the trial court on that question. It follows that appellant must be held guilty of negligence in operating its train in violation of the speed ordinance, and we think the jury might fairly have found from the evidence, independent of the ordinance, that it was negligent in operating its train at a high rate of speed at the time and place when it was charged with knowledge that the employees of other roads might rightfully be on its right of way, and therefore in danger.

We see no grounds for holding appellee a trespasser. It was a situation in which, as a matter of course, those little strips of right of way would not and could not be held free from employees of other roads passing over and upon them. We presume it was for the mutual benefit of all the roads concerned that their employees should go upon the right of way of other roads in the course of their employment when necessity or convenience required, and under the proof of such custom and usage we think appellee had as much "right to step over the invisible line of appellant’s right of way as if there had been express contract that he might do so.

But it is argued that even if appellant was negligent in running its train at a high rate of speed and in violation of the city ordinance,, still appellee was guilty of negligence in stepping'into the open space without looking and seeing the approaching engine; that he could have seen it had he looked, or he could have alighted from the other side of his engine and been free from danger. It is true that he might have exercised a degree of care' that would have insured ■ his safety. There are few of the many cases in which recoveries are permitted for injuries sustained by the plaintiff in being struck by an approaching engine in which it cannot be demonstrated that he might, by carefulness, have avoided the danger and injury. It is noted, citing authorities, in Dukemam, v. Cleveland, C., C. (& St. L. Ry. Co., supra,, that a failure to look and listen cannot be said to be negligence as a matter of law, since there may be many circumstances excusing such failure. In the present case the evidence showed several reasons why appellee failed to see the approaching engine. Whether they were sufficient ■ reasons, and whether appellee was measuring up to the standard of the hypothetical prudent man, was a question of fact for the jury. We are required by law to review the facts, but must accept the conclusion of the jury indorsed by the trial court, unless in our opinion their finding is manifestly against the weight of the evidence. We conclude that we are not warranted in disturbing this finding of the jury.

It is argued by appellant that the. court erred in admitting evidence of customs in operating the trains and use of the yards, being the customs hereinbefore mentioned, and it is suggested that there is no averment in the declaration of any such custom.. We think this proof competent bearing not only upon the question of appellee’s care, but also on the question of notice to and knowledge of appellant that appellee, or his fellow-servants, might be at the place in question. It is not material that the declaration contained no such allegation. (Sturm v. Consolidated Coal Co., 248 Ill. 20, 28; North Chicago St. R. Co. v. Irwin, 202 Ill. 345.)

It is strongly urged that there is a variance between the declaration and the proof; that the charge is of an injury committed by five defendants, and the proof only tends to sustain the allegation as to appellant; therefore, that the court erred in overruling appellant’s motion in arrest of judgment. We do not find in the abstract that the question of variance was presented to the trial court. It is familiar law that it-cannot be first raised here. But we see no reason for holding the declaration bad on motion in arrest”. It contained positive allegations of appellant’s negligence causing the injury and due care on the part of appellee. The proof, as we have said, supported those allegations. The injury was inflicted in the manner stated in the declaration, therefore, the case does not fall within the rule announced where the manner of inflicting the injury was materially different from that averred in the pleadings.

The court modified, and gave, as modified, appellant’s ninth instruction. As offered it read:

“The jury are further instructed that the statute providing for and authorizing ordinances regulating speed and requiring warning to be given on the approach of trains within city limits are intended for the protection of persons desiring to cross the railroad in front of such approaching train on public highways, and are not intended for the protection of trespassers or persons who are upon the private right of way of a railroad company without its consent, and that as to any person upon such right of way without its consent, the railroad company owes it no duty except not to wantonly injure such person after it has actually noticed that such person is on the track in front of the approaching train; (and since there is no averment in plaintiff’s declaration and no evidence in this case, that the said defendant Sullivan wantonly and intentionally ran upon the plaintiff, your verdict should find the defendant not guilty).”

The court drew his pen through the lines here inclosed in parentheses, and added the following:

“And if you believe from the evidence in this case that the plaintiff was a trespasser upon defendant’s right of way, or that he was not there by consent either express or implied from the defendant, and that defendant through its engineer did not wantonly and intentionally injure plaintiff after he saw him on defendant’s right of way if you believe from the evidence he did so see him, then your verdict should be for the defendant. ’ ’

It is urged that there was material prejudicial error in the instruction as given, in putting the question to the jury whether the engineer wantonly and intentionally injured appellee, because it is said there is no averment in the declaration that he so injured him. Counsel say the error was aggravated by striking out the clause in such a way that the jury could still read it and know that the court did not approve of that statement; that the instruction was proper and should have been given as offered. The instruction should have been refused. It asked the court to direct a verdict for appellant and accompany that direction with his reasons for so doing. He had refused appellant’s instruction directing a verdict offered at the close of the evidence unaccompanied by other instructions. Appellant could not require the court to pass on the same instruction again, and could not complain if it had been refused when offered with other instructions, even if it had not before been acted on. It has been repeatedly held from Morgan v. Peet, 32 Ill. 281, down to Nelson v. Fehd, 203 Ill. 120, and later cases, that it is not the duty of the court to put a bad instruction "in form or modify it. But it is said appellant was entitled to an instruction that there was no averment in the declaration that its engineer wantonly and intentionally ran upon appellee. If such an instruction was desired, it should have been requested unincumbered by improper matter. The court was under no duty to so instruct of its own motion. (Yeates v. Illinois Cent. R. Co., 241 Ill. 205.) “A party cannot complain that the court has not given an instruction unless it has been prepared and tendered for that purpose. * * * The only duty of the court is to give or refuse such instructions as are asked by. the parties.” Osgood v. Skinner, 211 Ill. 229. The court may niodify or qualify an instruction as tendered, or give instruction without .request, but a party cannot complain of his failure to do so. But it is said that the court in modifying the instruction treated the question whether appellant’s engineer wantonly injured appellee as one at issue, when in fact it was not at issue under the pleadings. We do not think appellant can complain if there was error in that respect. It assumed in its instruction offered that such an issue was involved, and asked the court to instruct the jury that there was no evidence in support of such an allegation. It is true it asked the court to instruct that there was no allegation, but it went further and asked him to consider the evidence and determine whether there was any evidence of that character. He might well conclude if it was material whether there was any such evidence, there was enough in the record to require its submission to the jury. The practice of erasing words and clauses in modifying an instruction leaving them so they can be read by the jury has been condemned. In some instances it would be plain that it could not influence the jury, and in others it might be equally plain that it might improperly influence them. In the present case we are of the opinion there was no substantial error of the court in modifying said instruction of which appellant should be heard to complain. The court modified other of appellant’s instructions intended, as offered, to advise the jury if •appellee was upon appellant’s right of way without appellant’s consent and was struck because he was upon such right of way, he could not recover, so that they would mean, as modified and given, that such consent might be express or implied, and that the jury might consider knowledge and acquiescence in any habit and custom proven in that regard. That modification was in accordance with the views we have before expressed.

It is suggested, but not much argued, that the damages are excessive. Appellee was seriously and permanently injured and disabled, probably for life, from performing such services efficiently as he was theretofore able to perform. The damages awarded were so much within the province of the jury to determine that we would not be justified in disturbing the judgment on that ground.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    Edward I. Rubendall, Appellee, v. Horace Tarbox et al., Appellants.
    Gen. No. 6,261.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Stephenson county; the Hon. James S. Batjme, Judge, presiding. Heard in this court at the April term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied October 10, 1917.
    Statement of the Case.
    Action by' Edward I. Rubendall, plaintiff, against Horace Tarbox and others, defendants, to recover under a contract for the construction by the plaintiff as contractor of certain buildings for the defendants. From a judgment for plaintiff for $2,982.87, defendants appeal.
    For the opinion on appeal in a former case in which plaintiff obtained a mechanic’s lien against the property, see Rubendall v. Tarbox, 200 Ill. App. 260.
    Cuthbert D. Potts and Edward Roby, for appellants.

      Abstract of the Decision.
    1. Judgment, § 252

      —when court may amend at later term so as to strike out name of party. Where a party was named as one of several defendants In a prcedpe for summons and in the summons, and was served but her name was omitted from the original declaration and an amended declaration, held that plaintiff by omitting such party’s name from his declaration abandoned his suit as to her, and the entry, of her name in the judgment after verdict against the defendants without naming them upon pleas by the defendants without naming them was a mistake of the clerk which the court had power to correct by amending the judgment at a later term after notice to the opposite party, although such omitted party joined in praying an appeal and in executing an appeal bond.
    2. Contracts, § 53*—when contract deemed to be that of parties signing. Where a written contract named several persons as parties thereto, but was not signed by one of them and all parties knew she had not signed it, and the contract was carried out by the parties signing same and was by stipulation of such parties in an action based thereon introduced in evidence as such contract between them without denial of joint liability because she had not signed it, or instruction asked to such effect, held that such contract would be treated as the contract of those who signed it.
    3. Building and construction contracts, § 103*—when shown that one party to contract acted as agent for other owners in construction of building. Evidence held sufficient to show that one of the parties named in a certain building contract sued on as owners of the building acted in the construction of the building as the agent for the other owners without objection by them and pursuant to the terms of the contract that the building should be erected and completed “to the entire satisfaction and under the direction of” such party.
    4. Appeal and error, § 1712*—when objections to instructions waived. Objections to instructions that are not argued are waived.
    Burrell & James, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.


author: Mr. Presiding Justice Carnes

text:
    Burt Zaiser Company, Defendant in Error, v. Herman Claussen and William Knight, trading as Claussen & Knight. William Knight, Plaintiff in Error.
    Gen. No. 6,231.
    1. Partnership, § 51

      —when declarations of partner as to the existence of are inadmissible. The declarations and acts of an alleged partner are not admissible, in an action against the alleged copartners, upon the question of the existence of a partnership where such alleged partner was not served and did not appear.
    2. Witnesses, § 43*—when wife of alleged partner is incompetent as a witness. The wife of an alleged partner who was not served and did not appear is incompetent under section 5 of the Evidence Act (J. & A. If 5522) to testify to conversations between him and his alleged copartner and a third person, in an action against the alleged copartners, since the husband is interested in the event.
    Error to the City Court of Kewanee; the Hon H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    James N. Cummings, for plaintiff in error.
    Sturtz & Ewan, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Burt Zaiser Company, a corporation, sued Herman Claussen and William Knight, as partners, in assumpsit, on a bill for $416.80 for a scale and groceries claimed to have been furnished by the plaintiff to the defendants. Claussen was not served and did not appear either as a party or as a witness. There was a verdict and judgment for the full amount ag*ainst Knight, and he prosecutes this writ of error. The controlling questions are whether Knight was a partner of Claussen at the time the goods were contracted for, and whether he had held himself out to plaintiff’s salesman as such partner, or knowingly permitted Claussen to so. hold him out and would be estopped to deny the partnership. Plaintiff’s salesman testified to a conversation between himself and Knight and Claussen at the time the first order*for the goods was taken, which testimony, if true, proved the partnership, or at least proved declarations of Claussen acquiesced in by Knight that would estop Knight from denying that the partnership existed. The court then, over Knight’s objection, permitted the plaintiff to prove various subsequent statements and acts of Claussen out of the presence of Knight and without his knowledge, tending to prove the partnership.

Counsel for Knight say that the general rule is that after a prima facie case has been made, then acts, declarations and admissions of one alleged partner may be offered in evidence in aid of such prima facie case; that the rule is so held in Conlan v. Mead, 172 Ill. 13, and Daugherty v. Heckard, 189 Ill. 239, but that it does not apply in a case like this where one of the alleged partners is not served and does not appear. That rule of evidence is announced by the Supreme Court in the two cases above cited, and has been followed by this court in Reynolds v. Radke, 112 Ill. App. 575; Hohnadel v. Ellsworth, 154 Ill. App. 484; and Flock v. Williams, 175 Ill. App. 319.

Smith v. Hulett, 65 Ill. 495, is relied on in support of the proposition that because Claussen was not served and did not appear his declarations were not competent evidence. The question seems to be there raised and decided and the judgment reversed, because, under those circumstances, the declarations of a partner not served were admitted in evidence. It does not appear whether a prima facie case of partnership was made, but the evidence was held incompetent because the alleged partner, not served, was not a party to the action. That case is cited in Montgomery v. Black, 124 Ill. 57, 63, to the point that the declarations of an alleged partner, not served, are not competent in support of the allegation of partnership. In Gardner v. Northwestern Mfg. Co., 52 Ill. 367, it is said: “Where the existence of a partnership is the very issue which the jury are to try, * * #, and where the statements are offered merely to prove such issue, it is manifestly illogical to say the court may first decide the partnership has already been proven by evidence aliunde, and then decide that such statements are admissible in order to prove a partnership.” In the present case Knight, as a witness, denied the material part of the conversation testified to by plaintiff’s salesman. If Knight’s testimony was to be believed, he was not at the time in question a partner of Claussen, and neither said nor did nor acquiesced in anything Claussen said furnishing grounds for the assumption that he was a partner. The testimony of each salesman and Knight was to some extent corroborated by other evidence, leaving a fair question of fact for the jury to decide. Under that state of evidence the contention of defendant in error is that Claussen’s. declarations and acts were admissible, and might serve to turn the scale in favor of the proposition of partnership in weighing evidence that would otherwise be equally balanced, or preponderate in favor of the reverse. This position is not much controverted by plaintiff in error, except on the ground that Claussen was not served and did not appear. There seems to be a conflict in the Illinois eases, but whatever the rule might have been had Claussen been served or appeared on the trial, we conclude that the coui*t erred in admitting that character of proof, because he was not served and did not appear.

The wife of Claussen was present and heard the conversation in question between her husband and Knight and the plaintiff’s salesman. Knight offered her as a witness in support of his testimony as to what her husband and he said on that occasion. The court properly sustained an objection on the ground that she was the wife of Claussen. It can hardly be said that Claussen was not interested in the event of the suit. Under section 5 of our Evidence Act (J. & A. 5522) she was not competent to testify to admissions or conversations of her husband made by him to a third person.

Error is well assigned on the third instruction given for plaintiff in error, which is not in accord with our conclusions of law before stated.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frances E. Thomas, Administratrix, Appellee, v. Wells Fargo & Company, Appellant.
    Gen. No. 6,371.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of facts.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Francés E. Thomas, administratrix of the estate of Harry Eussell Thomas, deceased, plaintiff, against Wells Fargo & Company, defendant, to recover damages for the death of decedent. From a judgment for plaintiff for $14,250, defendant appeals.
    Holt, Cutting & Sidley, for appellant.

      Abstract of the Decision.
    1. Courts, § 83

      —ivhen Circuit Court no jurisdiction of action under Federal Employers’ Liability Act. The Circuit Courts of the State have no jurisdiction in cases brought under the Federal Employers’ Liability Act to recover damages for a death occurring outside the State.
    2. Courts, § 150*—binding effect of decisions of Supreme Court. The decisions of the Supreme Court on the same point are binding in the Appellate Court.
    3. Appeal and error, § 1772*—when case reversed without remanding. Where the Supreme Court renders a decision on appeal, in an action under the Federal Employers’ Liability Act in the Circuit Court to recover damages for the death of a nonresident, that the Circuit Court has no jurisdiction of such a case, while a similar case-is pending in the Appellate Court, a judgment against defendant will he reversed without remanding the case.
    C. Helmer Johnson and James G. Welch, for appellee; Arthur H. Chetlain, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Dime Savings & Trust Company et al., Appellees, v. Julia Ballance Watson et al., Appellants.
    Gen. No. 6,409.
    1. Wills, § 435

      —when solicitors’ fees and expenses not allowed to beneficiaries out of estate in action to construe will. In a suit brought by the trustees under a will for a construction of the will, making the heirs at law and the beneficiaries under the will parties, who appear by counsel, solicitors’ fees and expenses in the Supreme Court on • appeal by the beneficiaries from the decree of the trial court construing the will are not allowable to the beneficiaries out of the estate.

      2. Costs, § 75

      —what does not constitute laches in reinstating and redocketing petition for solicitors’ fees in Supreme Court. A petition for allowance of solicitors’ fees and expenses in the Supreme Court on an appeal which was stricken from the docket with leave to reinstate on a peremptory call, held not dismissihle for laches when reinstated and redocketed on motion of the petitioner 3 years later.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stoke, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Montgomery, Hart, Smith & Steers, for appellants.
    Stevens, Miller & Elliott, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

The trustees under the will of John Creen Ballance filed a bill for its construction. The heirs at law and beneficiaries appeared by counsel. There was a decree finding certain paragraphs in violation of the rule against perpetuities and the property there referred to intestate. Six of the beneficiaries appealed to the Supreme Court where the decree was affirmed. A statement of the case may be found, in Dime Savings & Trust Co. v. Watson, 254 Ill. 419. The decree ordered $2,500 to be paid from the trust fund for fees and expenses of appellants’ solicitors in the trial court. This provision was not questioned on appeal. A copy of the order of affirmance was filed in the Circuit Court June 21, 1912, and at the same term of court appellants filed their petition for an allowance for expenses and solicitors’ fees incurred in the Supreme Court. The hearing on that petition was continued until the next term, and thereafter, on March 13, 1913, on a peremptory call, the case was stricken from the docket with leave to reinstate. More than 3 years afterwards, June 10, 1916, on motion of appellants, the case was rédocketed and reinstated. The trustees filed a motion to strike the petition from the -docket on the grounds (a) that petitioners were not entitled to an allowance for solicitors’ fees and expenses in the Supreme Court; and (b) that they were guilty of laches in allowing their petition to be stricken from the docket for want of prosecution and no action taken therein for more than 3 years. The chancellor sustained the motion and entered an order that the petition be dismissed for want of equity, and that the cause be stricken from the docket of the -court, from which order this appeal is prosecuted.

The petition set up in detail the facts with reference to the appeal to and trial in the Supreme Court. Grave and difficult questions and a large amount of property were involved. The decree was affirmed by a divided court. It is clearly a case in which prudent business men, in appellants’ position, guided by competent legal counsel, would not submit to the decree of the trial court .without appeal. The question here is whether in cases of difficulty to determine the legal effect of wills, making it necessary to go into a court of equity for a construction, attorneys’ fees and expenses of the defeated party in an unsuccessful appeal should be borne by the estate. It is settled by repeated decisions in this State that in such cases attorneys’ fees for services in the trial court are to be so borne. (Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338; Ingraham v. Ingraham, 169 Ill. 432; Lombard v. Witbeck, 173 Ill. 396; Arnold v. Alden, 173 Ill. 229; Lewis v. Sedgwick, 223 Ill. 213; Dean v. Northern Trust Co., 266 Ill. 205; Guerin v. Guerin, 270 Ill. 239; Strickland v. Strickland, 271 Ill. 614.) In Ingraham v. Ingraham, supra, there was a .motion in the Supreme Court for allowance - of attorneys’ fees in that court, which was denied. The court held fees properly allowed in the trial court, but said it had no jurisdiction to determine or pass upon the reasonableness of attorneys’ fees not adjudicated upon by the court below.

In Lewis v. Sedgwick, supra, it was assigned as error that the court refused to allow an attorney’s fee for services to be rendered on appeal. It did allow a fee of $500, to be paid to the solicitor of the unsuccessful party for services in the trial court. The Supreme Court said there was no showing that would justify interference with the action of the trial court in regard to the allowance or disallowance of fees. It therefore seems that solicitors’ fees for services to be rendered in the Supreme Court in cases like this cannot be fixed and allowed in advance by the trial court, and that the question cannot be determined by motion in the Supreme Court;. therefore the question whether they are or are not allowable is here raised in the only available place. It is not claimed by appellants that any decision of our Supreme Court settles that question, but they suggest that in Guerin v. Guerin, supra, and Strickland v. Strickland, supra, the Supreme Court instructed the lower court to allow reasonable solicitor’s fees, and that it is a fair inference that solicitor’s fees on appeal were intended and included. We do not think those cases capable of that construction. In each ease the court was passing on the allowance of solicitor’s fees for work performed in the court below, and if it had intended to decide the further question of solicitor’s fees in the Supreme Court it would have clearly said so. G

In Sherman v. Leman, 137 Ill. 94, it was held that the expenses and costs of prosecuting appeals by the trustee from the Circuit Court to the Appellate Court and Supreme Court were not expenses of administering the estate; that the expenses and costs in determining the validity of the will were rendered necessary by the language employed by the testator and were therefore a proper charge on the corpus of the estate, but that matter was determined by the decree of the Circuit Court, which had full jurisdiction. Its orders and decrees in respect to the removal and appointment of the trustee, and the administration of the trust, were ample protection to all persons acting under them, and the interest of the estate did not require the prosecution of appeals; that Leman had the rig’ht to appeal, but the exercise of that right involved considerations affecting him personally only, and not such as materially affected the trust estate.

It is said in Perry on Trusts, sec. 920: “The trustee himself will be protected by the decree of any court having jurisdiction iegularly upon proper notice given, but if he appeals from such decree to a higher cohrt he may be compelled to pay costs.” It is familiar law that a decree of a trial court protects parties acting under it before a writ of error is sued out, notwithstanding it is afterwards reversed. (Kuzak v. Anderson, 267 Ill. 609, and cases there cited.) In the present case it was for the benefit of the estate that an authoritative decree be obtained to guide the executors and trustees in its administration and distribution. Appellants named as beneficiaries in the will were necessary parties' in that suit. Expenses incurred by them were a part of the outlay in reaching a decree on which the trustees could properly act: therefore it seems equitable that the estate should bear the burden of those expenses; but when that decree was rendered there was no further obstacle in the way of administering the estate and distributing the property; it was then of importance to individuals only whether the decree should be affirmed or reversed. Perhaps cases may be imagined where appeal may be necessary for the benefit of the estate, but under the circumstances of this case we think on principle as well as authority appellants should be considered as prosecuting the appeal for their own interests, and at their own risk, and therefore the court did not err in dismissing.the petition for want of equity.

Consideration of the question of laches is not necessary to the decision of this case. The trial court apparently did not rest his decision on that ground. We are inclined to the opinion that on this record the petition could not have been dismissed for that reason. The decree is affirmed.

Affirmed.