text:
    W. E. Haines, Plaintiff in Error, v. Wallace L. DeWolf, Defendant in Error
    Gen. No. 15,797.

      Contracts—when question of what is reasonable time is one of law. The facts being uncontroverted, it is for the court to determine as a matter of law whether the terms of an agreement are executed according to its terms in a reasonable time.
    Error to the Municipal Court of Chicago; the Hon. Judson E. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Stedman, Soelke & Shutan, for plaintiff in error.
    Tenney, Coffeen, Harding & Sherman, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

For some time'prior to April, 1903, litigation had been pending in the Superior Court of Cook county, wherein Frances DeWolf was complainant, and Warren Springer and others, were defendants, relative to the foreclosure of a ninety-nine year lease of certain real estate. A decree of sale had been entered June 22, 1900, whereunder the master had made two fruitless efforts to sell the leasehold. Further progress in the proceedings was halted upon objections by Springer until April, 1903, when W. E. Haines, a former employe of Springer, was approached by Wallace L. DeWolf, acting for Frances DeWolf, with a view to securing his services in effecting a settlement of the litigation. The outcome of the negotiations between the parties was an agreement whereby Springer should consent to the entry of a decree against him in favor of Frances DeWolf for $12,500, and in satisfaction of which decree Springer should convey to her a lot on Canal street, clear of encumbrance, and pay her $2,500 in cash, in installments of $500 each, every fifteen days. The settlement was to be finally concluded within a reasonable time, and for his services in procuring and consummating such settlement Wallace DeWolf agreed to pay Haines $500. Presumably in pursuance of the terms of said settlement a decree was entered on April 13, 1903, in the Superior Court in favor of Frances DeWolf and against Springer for $12,876.13, from which decree Springer did not appeal. No reason is assigned by either party why the amount of the decree was in excess of the amount agreed upon.

On or about April 20th, following, Haines tendered to Wallace L. DeWolf a deed from Springer of the lot on Canal street together with $500, which tenders were refused by DeWolf, because the said lot was then encumbered by a mortgage for $4,000 or $5,000. Haines thereupon demanded the payment to him by DeWolf of $500 for his services in effecting a settlement of the litigation, with which demand DeWolf refused to comply. Nothing further was done by Haines in relation to the matter until April 1, 1904, when he tendered to DeWolf a deed from Springer of the lot on Canal street together with $2,500 in cash, which tenders were refused by DeWolf. At .the time of the last tender the lot on Canal street had been cleared of all encumbrances, save that of the decree entered April 13,1903. Thereafter Haines brought suit against DeWolf in the Municipal Court to recover $500 claimed to be due him for his services in effecting a settlement of the litigation. Upon the trial of the case before a jury after the facts heretofore recited had been disclosed by the evidence offered by the plaintiff the court gave to the jury a peremptory instruction to return a verdict finding the issues for the defendant, and upon such verdict so returned, judgment was entered against the plaintiff and for costs. .

This writ of error to reverse said judgment presents for our consideration and determination but one question, namely: whether or not, upon the facts stated, plaintiff in error was instrumental, in executing ‘the terms of settlement of the litigation between Frances DeWolf and Warren Springer, within a reasonable time after the agreement as to the terms of such settlement was entered into between the parties.

The facts being uncontroverted it was for the court to determine as a matter of law whether the terms of the agreement in question were excuted by plaintiff in error within a reasonable time. Loeb v. Stern, 198 Ill. 371.

It is certain that on April 20, 1903, when plaintiff in error tendered the deed and $500 to defendant in error, the former was not entitled to be paid for his services under the agreement, because the lot was not then clear of encumbrance. The agreement provided that the lot.'should'’ be conveyed clear of encumbrance and that Springer should pay $2,500 in cash, in installments of $500 each every fifteen days. The terms of the agreement, considered in connection with its subject-matter, clearly evidence the intention of the parties that it should be speedily consummated—the lot conveyed clear of encumbrance, and the money paid within seventy-five days, or within a reasonable time thereafter. Plaintiff in error did nothing from April 20, 1903, until April 1, 1904, to effectuate the terms of the agreement, and the court did not err in concluding as a matter of law that the terms of the agreement were not executed within a reasonable time, and that plaintiff in error was not entitled to recover. The peremptory instruction was not improperly given to the jury, and the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    John D. Casey, Administrator, Appellant, v. Sawyer Biscuit Company, Appellee.
    Gen. No. 15,809.
    1. Animals—what competent as to knowledge of viciousness. A statement of an employe of the owner having apparent authority to hire drivers, which tends to establish knowledge of viciousness, is competent. Held, however, that the exclusion of such statement was harmless error as the same was merely cumulative of other testimony given.
    2. Evidence—as to what opinion competent. It is competent to admit an opinion as to the effect of suddenly slapping a horse on the back while standing in a stall, such matter not being one of common knowledge and experience.
    3. Evidence—when officer of corporation competent. Where the adverse party sues in a representative capacity an officer of a corporation who is not also a stockholder is competent on behalf of the corporation.
    4. - Master and servant—when doctrine of assumed rislc does not apply. The doctrine of assumed risk has no place where the relation of master and servant does not exist.
    5. Master and servant—burden to establish non-assumption of rislc. The burden is upon the servant or his representative to show that the risk which resulted in the injury was not assumed.
    6. Trial—when incident will not effect reversal. An incident of a trial claimed as prejudicial will not reverse where at the time of its occurrence no complaint was made with respect thereto.

      7. New trial—when newly discovered evidence does not require. A party is not entitled to a new trial on the ground of newly discovered evidence if during the trial he knew of the absence of some of his witnesses and refused an opportunity then offered to continue the case.
    Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Cunningham, Cunningham & Quinlan, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellant against appellee to recover damages for wrongfully, causing the death of appellant’s intestate, Albert Yonkers. A trial by jury resulted in a verdict finding appellant not guilty and judgment upon the verdict.

The declaration contains three counts. The. first count alleges that appellee kept a'mare in its stables, which mare was known to appellee, or might by the exercise of ordinary care have been known, to be vicious and dangerous; that the decedent, was employed by appellee as a hostler and appellee negligently failed to inform him of the vicious habits of said mare; that while the decedent was discharging his duties as a hostler and was using due care for his own safety, he was kicked by said mare and thereby so seriously injured that he died, etc. The second count alleges a duty on the part of appellee to provide a safe place in which the decedent could perform the duties of his employment with safety, and “to provide safe appliances and safe horses to be fed and cared for” by him) that appellee failed to perform said duties, but negligently used in its business a vicious and dangerous mare, which was known, or by reasonable diligence could have been known, to appellee to be a kicker, and negligently failed to inform the decedent of the vicious habits of said mare; that while the decedent in the line of his employment and in the exercise of due care for his own safety, and “while in ignorance of any danger in said stables ’ ’ was passing said mare, he was kicked by said mare and thereby so seriously injured that he died, etc. The third count alleges substantially the'same facts set forth in the first count, and further alleges a duty on the part of appellee to adopt measures to prevent the said mare from kicking persons, and to cease to use said mare in its wagons and in its business.

The only uncontroverted material facts in the record are that the mare in question belonged to appellee; that she was kept with other truck horses in the stable of appellee on Center avenue; that in the same stable appellee kept other horses known as “cracker wagon horses;” that one John Kuble was employed by appellee as “barn boss” under an arrangement whereby appellee allowed him a certain gross sum per week as wages for himself and the hostlers hired by him to work in the stable; that on June 28, 1907, while the decedent was employed in said stable as a hostler for the ‘ ‘ cracker wagon horses, ’ ’ he was kicked by said mare, and thereby so seriously injured that he died. The evidence bearing upon the other material issues in the case is in hopeless conflict. The testimony of the witnesses called on behalf of appellant tends to show that the mare was possessed of a most vicious disposition, which she habitually manifested by kicking whenever she was hitched or unhitched, or was approached in her stall, or was driven single or double, and that appellee had both constructive and actual notice of her said disposition and habits; that upon the occasion he was injured the decedent had only been employed in the stable three days, although he had been employed in the same stable as'a hostler on one or more previous occasions; that at the time the decedent was injured the mare had run into the stall before her bridle had been removed, and decedent said to one Culp, “You ought to take it off,” to which Culp replied, “I aint going to, you can take it off if you like; ’ ’ that decedent then took or attempted to take off the bridle, and while doing so was kicked.

The testimony of the witnesses called on behalf of appellee tends to show that the mare in question was quiet and easily handled; that at the time he was injured decedent had been in the employment of appellee for three weeks as a hostler caring for the “cracker wagon horses; ’ ’ that it was part of his duty to care for the truck horses; that the decedent had been employed in the same barn as a hostler on previous occasions; that upon the occasion in question the decedent while passing the stall in which the mare was kept, slapped her suddenly and without any warning upon her rump, whereupon she kicked him; that if he was kicked under the circumstances detailed by appellant’s witness, Culp, the decedent was a mere volunteer, as he was not expected or required to care for the truck horses. The cross-examination of the witness Culp discloses that upon a previous trial of the case he testified that when the decedent asked him why he did not take the bridle off the mare, he replied: “I know the horse, I drove him a day or so, he is liable to kick me. I wont take the chance. You can take it off if you wish.”

In this state of the proof the verdict was not unwarranted, and should not be set aside unless the record discloses errors of law, which were prejudicial to appellant.

It is urged that the court improperly permitted appellee to show that the mare was docile during the period subsequent to the time when the decedent was injured, and before she was sold by appellee. We are unable to find any such evidence in the record, but on the contrary the record discloses that the trial court ruled such evidence offered by appellee to be incompetent. It does appear that the mare was used by appellee subsequent to the time she kicked the decedent, and that when she was sold she was “heavy,” but admission of this evidence did not constitute the error complained of.

It is insisted that the court erred in excluding a statement alleged to have been made by Corcoran, a shipping clerk employed by the appellee, to McNamara, one of the drivers, who had been hired by Corcoran to drive a team, that he should be careful of the black mare, as she kicked. Corcoran, having apparent authority to hire the drivers, his alleged statement to Me-' Ñamara was competent and should have been admitted, but in view of the fact that the evidence, if admitted, would have been merely cumulative of much other like evidence introduced by appellant tending to show actual knowledge by appellee’s “barn boss” of the disposition of the mare to kick, we do not think appellant was injured by its exclusion. Upon that issue the jury evidently either did not believe the testimony of appellant’s witnesses, or in view of the other issues involved, did not consider it as controlling.

The court did not err in permitting appellee’s “barn boss,” Kuble, to give his opinion, as to the effect of suddenly slapping a horse on the back while standing in a stall. The witness had shown himself .to have had long experience in the care of horses, and the subject-matter of the inquiry was not necessarily one of common knowledge and experience.

During the trial counsel for appellee offered to show what amount of money it had paid to the widow of the decedent “for the burial,” etc. Notwithstanding an objection to the admission of such evidence was sustained by the court it is claimed that the mere offer was prejudicial to appellant. In view of the fact that the verdict of the jury absolved appellee from any liability we are unable to perceive how appellant could have been harmed by the offer, as he might have been if damages had been awarded which it was claimed were inadequate.

The twelfth, thirteenth and fourteenth instructions, given at the instance of appellee, relate to the doctrine of assumed risk, and are substantially correct statements of the law upon that subject. The doctrine of assumed risk has no place where the relation of master and servant does not exist, and the cases cited by counsel for appellant in support of their objections to the instructions, are wholly inapplicable. The cases cited are City of Flora v. Naney, 136 Ill. 45, and City of Streator v. Chrisman, 182 Ill. 215, where it was held, that although a person passing along a sidewalk may know it is out of repair, he may, notwithstanding such knowledge recover for a personal injury occasioned by a defective walk, if he uses ordinary and reasonable care. If the testimony of appellant’s witnesses as to the disposition and habits of the mare was true, it tended to charge the decedent with actual notice of such disposition and habits. There was no lack of evidence to warrant giving the instructions.

Appellant’s criticism of the fifteenth instruction, given at the request of appellee, arises out of a confusion of the doctrines of assumed risk and contributory negligence. The instruction properly imposed the burden upon appellant to show that the decedent did not assume the risk of the injury which resulted in his death. It has no relation to the issue of contributory negligence.

By the twenty-fourth instruction, given at the instance of appellee, the court informed the jury that as a matter of law no officer or stockholder of the appellee corporation was a competent witness to testify on its behalf, when called by or on its behalf. The instruction is inaccurate as applied to ■ an officer of appellee corporation, not also a stockholder, and should have been refused for that reason, and for the further reasons that it is abstract in form and is not based upon any evidence in the record. The instruction could not, however, have misled the jury to the prejudice of appellant.

It is further urged that the verdict should be set aside because of the improper conduct of one Eoger Sullivan, who, during the direct examination of a witness for appellant when counsel had asked the witness a leading and suggestive question, said: “You are doing this all the time, and it is pretty near time it stopped. This is a job put up by a band of fellows over there.” The witness thereupon said: “This is not a job, Mr. Sullivan.” Counsel for appellant interposed no objection to the language, but the court on its own motion said: ‘‘ Those remarks will be stricken out, and they will be disregarded by the jury.” The connection, if any, which Eoger Sullivan sustained to the litigation is not disclosed by the record, but we are disposed to think the language used by him taken in connection with the statement of the witness in reply was and they will be disregarded by the jury. ’ ’ The connecfailure of counsel for appellant to interpose any objection to the language used by Sullivan, or enter any protest as to his conduct, is significant that they did not then consider the colloquy harmful to their client. The incident does not call for a reversal of the judgment.

It is finally urged that the trial court improperly overruled appellant’s motion for a new trial upon the ground of newly discovered evidence, and because certain of the servants or agents of appellee had corruptly prevented appellant from procuring the testimony of a certain witness.

We have carefully considered the affidavits filed in support of such motion, together with the testimony of witnesses heard by the trial court upon the issues raised by said motion, and find nothing therein which should have moved the court to set aside the verdict and grant a new trial. The record discloses that during the trial of the case, after several witnesses for appellant had been examined, counsel for appellant was aware of the absence of some witnesses whom he desired to examine, and thereupon counsel for appellee proposed to consent to a continuance and re-trial of the case, which proposal counsel for appellant refused to accept and act upon.

There is no substantial error in the record and the judgment is affirmed.

Judgment Affirmed.


text:
    Charles Cromwell, Appellant, v. Thomas Davies, Appellee.
    Gen. No. 15,828.
    1. Instructions—when giving of peremptory erroneous. On a motion to direct a verdict the trial court may not weigh the evidence and if there is any evidence which with all reasonable inferences to be drawn therefrom fairly tends to prove the plaintiff’s case it should be submitted to the jury.
    2. Gambling—when transaction in stock not. Held, under the evidence, that the transaction in question in this case, did not appear to be gambling in nature and that the evidence introduced upon the part of the plaintiff was sufficient to cast the burden upon the defendant to show that the transaction in question was illegal and void.
    Trover. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.

      James Todd and Hayes McKinney, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action in trover brought by appellant against appellee to recover damages for the alleged wrongful conversion of two hundred shares of the common stock of the Southern Bailway Company, represented by two certificates for one hundred shares each. The declaration contains six counts, of which the second additional count after alleging the ownership and possession by appellant of said shares of stock, further alleges, in substance, that on June 12, 1903, appellant delivered the same to appellee as collateral security for such amounts, if any, as thereafter might be due and owing from appellant to appellee; that thereafter appellant and appellee had certain transactions whereby appellant was on April 3, 1906, indebted to appellee in $1,000, but that appellee by means of false and fictitious charges, entries and accounts claimed there w;as then due to him $2,534.76; that on the day last aforesaid appellant demanded of appellee the return to appellant of said certificates and shares-of stock, and that appellee wrongfully converted the same to his own use, etc. Prior to the taking of any testimony in the case it was stipulated at the trial that the action was not brought under sections 130, 131 and 132 of the Criminal Code in relation to the recovery of money upon gambling contracts. At the close of the evidence for appellant the trial court gave to the jury a peremptory instruction to find appellee not guilty, and judgment was entered upon such verdict. There is no appearance for appellee in this court, and counsel for appellant state in their brief that the trial court was moved to give the peremptory instruction upon the ground that the evidence on behalf of appellant showed the transaction to be a gambling one within the meaning of the statute, and therefore appellant was precluded from a recovery.

Briefly stated the evidence discloses the following state of facts:

In June, 1903, appellee who was engaged in the brokerage business in Chicago having ascertained that appellant was buying and selling shares of the common stock of the Southern Railway Company, solicited his business in that line, and as an inducement offered appellant the benefit of a purchase and sale of 'one hundred shares of said stock which appellee had then consummated. Appellant was then the owner of two hundred shares of said stock, represented by two certificates for one hundred shares each, one of which certificates was held by a brokerage firm as collateral security for advancements to appellant amounting to $700, and the other certificate was then held by another brokerage firm as collateral security for like advancements amounting to $2300. Appellee proposed that if appellant would furnish $500 in cash, he (appellee) would advance the $3000 necessary to take up the two certificates. This proposition was accepted by appellant and having obtained appellee’s.check for $3,000, he therewith obtained the two certificates and delivered them, together with $500, to appellee. Separate receipts for each of said certificates were given by appellee to appellant, which receipts contained a printed recital as follows: “As security for margin account.” Commencing June 8, 1903, and continuing at intervals thereafter until September 22, 1905, appellee conducted for the account of appellant twenty-one transactions purporting to involve the purchase of shares of the common stock of the Southern Railway Company and twenty-three transactions purporting to involve the sale of like shares of stock, and one trans-1 action purporting to involve the return of two hundred shares previously borrowed to cover a short sale. In each instance save one, wherein the purported purchase of two hundred shares was involved, the transaction purported to involve the purchase or sale of either one hundred shares or fifty shares. Upon the purported consummation of each transaction, whether of purchase or sale, except as to one of two hundred shares claimed to have been purchased September 22, 1905, appellee mailed to appellant a bought or sold confirmation, in part, as follows: “We have bought this day for your account and risk,” or “We have sold this day for your account and risk, ’ ’ and wherein was also stated the number of shares purported to have been bought or sold and the price. These confirmations were accepted by appellant without objection. During the pendency of these transactions appellee submitted to appellant seven statements wherein appellant was charged with the amount purported to have been paid for shares purchased, together with broker’s commission and interest on any balance due appellee, and wherein appellant was credited with the amount purporting to have been received for shares sold, less broker’s commission. The last of said statements purported to show a balance due appellee of $2,534.76, which amount appellant tendered to him, and demanded the return of the two certificates which had been delivered by appellant to appellee at the beginning of their transactions.

Appellant "testified that when he delivered the two certificates for two hundred shares to appellee, he told appellee the stock was to be held by the latter as collateral and. that appellee was to buy and sell shares for appellant’s account; that the stock represented by said two certificates was not put up for margin account, but was given to appellee as collateral against anything he might buy or sell for appellant; that the two hundred shares were then worth about $4,400; that he understood and believed appellee was actually buying and selling the shares involved in the transactions represented by the several confirmations, and that when a purchase was made appellee actually paid the purchase price in money and received the shares; that he was paying interest on money advanced by appellee upon his account; that he was not permitting appellee to buy and sell on the market and settling with him on differences, and that the transactions were not settled on differences; that he had not received any of the shares purchased in his possession, and had not asked for them for the reason that he was constantly buying and selling through appellee as his agent; that during all of the transactions involved he was financially able to pay for all of the shares purchased for him by appellee ; that the purchases and sales were made by appellee under a general direction to use his own discretion.

It was stipulated at the trial that the market value of the common stock of the Southern Railway Company on April 3, 1906, being the day upon which the tender was made and the return of the certificates in question was demanded, was at least, $41.25 per share.

On a motion to direct a verdict the trial court may not weigh the evidence, and if there is any evidence which, with all reasonable inferences to be drawn therefrom, fairly tends to prove the plaintiff’s case it should be submitted to the jury. Alton Manufacturing Company v. Garrett Biblical Institute, 243 Ill. 298. The trial court was bound to assume that the evidence favorable to appellant was true. Savage v. C. & J. Railway Company, 238 Ill. 392.

Assuming the testimony of appellant in the case at bar to be true the purchases and sales of the shares of stock by appellee for the account of appellant were not gambling transactions. The several transactions involving the purchase and sale of shares of stock were not mere option contracts for delivery in the future, hut were contracts involving a delivery of the shares to appellee as the agent of appellant in presenti. Neither was there an agreement nor an understanding that the transactions should be settled by the payment of the difference between the contract price of the shares and their market value at the time fixed or at some future time. The presence of the elements which are wanting in this case are essential to constitute dealings in stocks or other commodities, gambling transactions within the law. Jamieson v. Wallace, 167 Ill. 388; Pratt v. Ashmore, 224 Ill. 587; Pelouze v. Slaughter, 241 Ill. 215; Johnson v. Milmine, 150 Ill. App. 208.

The showing made by the testimony and proofs offered on behalf of appellant was sufficient to cast the burden upon appellee to show that the transactions were illegal and void. Clews v. Jamieson, 182 U. S. 461; Pelouze v. Slaughter, supra.

In Pelouze v. Slaughter, supra, where the transactions involved were held not to have been illegal and void, the attendant facts and circumstances are so akin to those disclosed by the record in the case at bar, that it is conclusive authority in favor of the position 'here taken by appellant.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Joseph Domando, Appellant, v. The Parker-Washington Company, Appellee.
    Gen. No. 15,856.
    1. Instructions-—when submission of question of assumed rislc to jury as one of fact cannot be complained of. A party cannot complain of the action of the court in submitting the question of assumed risk to the jury as one of fact where he has induced the court to give other instructions submitting such question in like manner.
    2. Instructions—invasion of province of jury. An instruction should not be given which invades the province of the jury.
    3. Instructions—as to absence of rules of law. It is proper for the court to refuse an instruction which tells the jury that there are no rules of law applicable to the case.
    4. Master and servant—extent of liability of former. A master is not an insurer of the safety of his servant.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Edwin C. Crawford, for appellant.
    Frank L. Childs and Ode L. Rankin, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellant brought this suit to recover damages for personal injuries alleged to have been occasioned by the negligence of appellee. A trial by jury resulted in a verdict finding appellee not guilty, and judgment upon the verdict and against appellant for costs.

The declaration alleges that on January 25,1908, appellee was engaged in blasting rock under ground by means of dynamite for the purpose of constructing a tunnel, and that appellant was employed by appellee in and about such work; that fragments of rock which were blown out in the tunnel were hoisted to the surface and loaded into cars which traveled upon a track on the dump; that appellant had nothing to do with the blasting of rock underground, or with hoisting the fragments to the surface; that it was the duty of appellee to use reasonable care in furnishing appellant with a reasonably sáfe place in which to work and to have the fragments of rock inspected in the tunnel before hoisting them to the surface to ascertain whether any dynamite or exploder caps were left therein, and that appellee negligently failed to perform such duty; that appellant was employed to operate a dump car and to raise the track to a higher level whenever it became necessary; that on the day aforesaid appellee negligently sent up from the tunnel with the fragments of rock a certain piece of dynamite and an exploder cap which were emptied out of the car onto the dump; that said dynamite and cap were concealed in the fragments of rock so that appellant had no knowledge, and was unable to learn of their presence in said rock; that ice had formed and bound the movable track to the dump, so that appellant when, in the performance of his duty, and while in the exercise of due care, struck a pick axe into the mass of rocks which formed the dump, in order to break the ice and raise the track, he struck a piece of dynamite and exploder thereon which thereby exploded and drove fragments of rock against his body, causing the injuries complained of.

The evidence discloses that the broken rock which was driven out from the face of. the tunnel by the force of the explosion was called “muck”; that the “muck” consisted of fragments of rock varying in size from fine screenings to pieces 12 to 18 inches in diameter; that the “muck” was shoveled up by laborers called “muckers” and loaded into small cars which were hoisted to the surface and there dumped into á larger car operating on a track upon the dump, where it was unloáded; that an electric exploding cap consisted of a tube about two inches long and one-fourth of an inch in diameter filled with a powerful explosive, which cap was placed in a stick of dynamite before being taken into the tunnel; that the cap was exploded by means of a current of electricity which heated or burned out the platinum wire attached thereto, and was also liable to explode if struck with a hammer or like tool; that occasionally a cap would fail to explode because of some defect, or would be blown out by a fissure in the rock, or because of the weakness of the helping holes; that when such a cap, together with the dynamite to which it was attached, was in the “muck” it was difficult to find; that the “muckers” were instructed by appellee’s superintendent to remove all caps and dynamite found by them and turn the same over to the foreman ; that when the small cars reached the surface, the “muck” was unloaded therefrom into the larger cars operating upon the dump, and the employe who loaded the latter cars removed any caps or dynamite which he might find; that it was the duty of appellant to receive the cars upon the dump after they were loaded, and unload the same upon the dump, and also to raise the track upon which said cars were operated as occasion required; that at the time he was injured appellant was engaged in attempting to raise the track, which had become frozen fast to the material composing the dump, and to that end was loosening such material with a pick axe, which struck a cap, causing the piece of dynamite to which it was attached to explode and throw fragments of rock into the face and eyes of appellant.

The testimony of witnesses called on behalf of appellant tends to show that appellant was familiar with the situation; that he had actual knowledge of the fact that caps and pieces of dynamite were frequently intermixed with the “muck,” and that he might reasonably expect to find caps and dynamite when unloading the “muck” from the cars, or upon the dump; that -appellant was present upon an occasion a few days, prior to his injury when a fellow servant was injured in like manner. Upon these questions the testimony of appellant is very unsatisfactory and justifies the inference that he was decidedly disingenuous.

Upon the main questions involved, namely, whether appellant assumed the risk, and whether he was in the exercise of due care for his own safety, the verdict of the jury was not unwarranted by the evidence.

It is insisted it must be held as a matter of law that appellant did not assume the risk, and counsel cites Stephen v. Duffy, 237 Ill. 549, in support of such insistence. The facts in the two cases are wholly dissimilar. It was there held, however, that the question was properly submitted to the jury as one of fact. In the case at bar as appellant induced the court to give two instructions submitting the question of assumed risk to the jury, as a question of fact, he cannot be heard to say that the court should have determined the question as one of law.

It is urged that the 8th and 9th instructions given at the instance of appellee are erroneous. The 8th instruction is not a model, but it does not direct a verdict, and when read in connection with the 9th instruction, which is an accurate statement of the law applicable to the case, it could not have misled the jury. The instructions relate to the doctrine of assumed risk, and not to contributory negligence, as counsel seems to imply by citing Devine, Admr., v. Nat’l. Saf. Dep. Co., 240 Ill. 369, where the relation of master and servant, to which relation the doctrine of assumed risk

The first, second and seventh instructions offered is alone applicable, did not exist. by appellant and refused by the court were properly refused because they made appellee an insurer of the safety of appellant. The third instruction tendered by appellant was properly refused because it infringed upon the province of the jury. The fourth instruction requested by appellant would have informed the jury that there were no rules of law applicable to the case. The sole province of an instruction is to inform the jury as to the law of the case. If the case is one to which no rules of law are applicable, there is no place for an instruction.

The record is free from error and the judgment is affirmed.

Affirmed.


text:
    William Rosinski, Plaintiff in Error, v. Charles A. Burton, Defendant in Error.
    Gen. No. 15,870.
    1. Practice—when special interrogatories should not he submitted. Special interrogatories which do not relate to ultimate facts should not be submitted to the jury.
    2. Instructions—undue prominence to particular facts. Instructions should not be given which single out and give undue prominence to particular facts in evidence.
    3. Instructions'—ignoring counts. An instruction is erroneous which excludes from the jury certain counts of a declaration which if proven would entitle a recovery.
    4. Instructions—invasion of province of jury.' An instruction should not be given which invades the province of the jury.
    5. Instructions—assumption of facts. An instruction is erroneous which assumes that a servant has acquired knowledge by experience as to the operation of a machine which resulted in his injury.

      6. Istructions—reference to declaration. It is not improper for the court to refuse an instruction which refers the jury to- the declaration for the issues involved in the cause.
    7. Master and servant—extent of doctrine of assumed rislc. A servant sometimes is held to assume even the negligence of his master. This rule is applied as against a servant where with knowledge of his master’s negligence he continues in his employ without complaint.
    Action in case for personal injuries. Error to Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.
    Rehearing denied October 25, 1911.
    N. L. Piotrowski and Cyrus J. Wood, for plaintiff in error.
    F. J. Canty and R. J. Folonie, for defendant in error; J. C. M. Clow, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff in error, a minor, by his next friend, brought suit against defendant in error to recover damages for personal injuries alleged to have been sustained by the negligence of the latter. A trial by jury resulted in a verdict for defendant in error and judgment upon such verdict, to reverse which judgment this .writ of error is prosecuted.

The declaration consists of three counts. The first or original count alleges that defendant in error owned and operated in his shop a certain punching or stamping machine which plaintiff in error was employed to operate; that plaintiff in error was ignorant of the workings of said machine, and it was the duty of defendant in error to give him proper and sufficient instructions in regard to the operation of said machine; that defendant in error negligently ordered plaintiff in error to operate said machine without giving him such instructions whereby while in the exercise of due care he was injured, etc. The first additional count alleges that defendant in error negligently permitted said machine to be and remain in a defective condition in that the stamp or die was liable to fall prematurely and before being released by the operator, of all of which defendant in error had notice and plaintiff in error was unaware; that while plaintiff in error was operating said machine under the directions of defendant in error, and while in the exercise of ordinary care to be expected of one of his age and experience, the said die or stamp fell prematurely and unexpectedly on plaintiff in error. The second additional count alleges a failure of defendant in error to exercise reasonable care to provide a reasonably safe place for plaintiff in eror to work, in this, that the place was not sufficiently and properly lighted, etc.

It is first urged that the verdict was against the manifest weight of the evidence. Inasmuch as the judgment must be reversed and the cause remanded for error in instructions, it is sufficient to say that in the absence of errors of law we would not be justified in reversing the judgment.

At the instance of defendant in error the trial court submitted to the jury four special interrogatories, none of which related to such ultimate facts as would control a general verdict. While the submission of these instructions was not sufficiently harmful to plaintiff in error to require a reversal of the judgment, they should have been refused.

The 3rd, 4th, 5th, 6th, 7th, 9th, 12th, 13th, 15th, 17t,h and 18th instructions given at the request of defendant in error, it is urged are erroneous.

The 3rd and 4th instructions are faulty in this, that they single out and give undue prominence to particular facts in evidence. The 5th instruction casts the burden on the plaintiff in error to show that at and before the time of his injury he was in the exercise of such care for his safety as might reasonably be expected of a person of his age, capacity and experience under the same or similar circumstances. The instruction is an accurate statement of the law. The 6th instruction directs a verdict of not guilty generally upon the failure of plaintiff in error to prove the negligence alleged in the first count of the declaration, wholly eliminating the first and second additional counts. The instruction should have been limited in its application to the first count of the declaration, or should have been refused. It could not have been otherwise than harmful to plaintiff in error. The 7th instruction relates to the question of assumed risk and states the law applicable thereto with substantial accuracy. The 9th instruction, directs a verdict and ignores the first count of the declaration. It should have been refused as offered. The 12th instruction is subject to the same objection. The 13th instruction, in part, infringes upon the province of the jury, and is further objectionable because while directing a verdict it ignores the first .count of the declaration. The 15th instruction improperly assumes that plaintiff in error had acquired knowledge as to the operation of the machine by experience. The instruction directs' a verdict and is further objectionable because it ignores the grounds of recovery alleged in the first and second additional counts of the declaration. The 17th instruction is not open to the criticism made and was properly given. The specific objection urged to the 18th instruction is, in substance, that it contravenes the supposed rule, that a servant does not assume risks due to the negligence of the master. In Kath v. East St. L. Sub. Ry. Co., 232 Ill. 126, it was held that an employe assumes all risks connected with the business in which he is employed of which he has notice, even though they are produced by the negligence of the master, if such employe continues in the employment.

It is lastly urged that the court improperly refused the instruction indicated as No. 26 offered by plaintiff in error. The practice of referring the jury to the declaration to ascertain the issues involved is not to be commended, and the instruction was not improperly refused. Waschow v. Kelly Coal Co., 245 Ill. 517.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Charles Eichler, Appellee, v. Gottfried Hoeft et al., Appellants.
    Gen. No. 15,883.
    1. Judgments—when not subject to collateral attack. A judgment upon which a creditor’s bill is predicated, cannot be attacked as invalid in such creditor’s bill proceeding. The proper practice is for the defendants to apply to the chancellor to stay the proceedings until such time as resort could be had to a court of law to set aside the judgment.
    2. Creditor’s bills—when conveyance fraudulent. A conveyance based upon the consideration of future support and maintenance is void as against creditors. Held, in this ease, that the conveyance in question was not supported by any valid consideration and was void as against the rights of the complainant creditor.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 4, 1911.

      Seymour Stedman and Arthur J. Shutan, for appellants.
    John A. Bloomingston, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This appeal is prosecuted to reverse a decree of the Superior Court whereby certain conveyances of real estate are set aside as to the judgment lien of the appellee, Charles Eichler, and said real estate is ordered to be sold to satisfy such judgment.

The bill alleges, in substance, that Gottfried Hoeft, one of the appellants, owned certain real estate in Chicago, which on April 29, 1907, he conveyed to one Charles H. Soe'lke, who thereafter conveyed the same to Edward A., William F. and Clara W. Hoeft, the other appellants, as joint tenants; that subsequent to said conveyances appellee recovered a judgment in the Circuit Court of Cook county against said Gottfried Hoeft and one Adolph Hoeft for $1,140.60 and costs, upon which judgment execution was afterwards issued and returned, no part satisfied; that said conveyance from Gottfried Hoeft to Soelke, and the conveyance from the latter to Edward A. Hoeft and others, were mere shams—unsupported by any valid consideration whatsoever, and were made with the intention of defrauding appellee, who was then a creditor of Gottfried Hoeft. In their joint and several answer to said hill the appellants denied all of its material allegations, and charged that said judgment was entered by confession without the knowledge or consent of Gottfried Hoeft; that the judgment note upon which judgment was predicated was executed by said Gottfried Hoeft as guarantor for Adolph Hoeft, and that said appellee, after maturity thereof, for a valuable consideration repeatedly extended the time of payment thereof without the knowledge or consent of said Gottfried Hoeft, and that thereby said • Gottfried Hoeft ceased to be liable and was not liable on said note at the time said judgment was entered thereon; that during the period of said extensions of said note, said Adolph Hoeft became insolvent and was adjudged a bankrupt; that sufficient time elapsed from the original maturity of said note until the insolvency of said Adolph Hoeft, for appellee to have collected said note from said Adolph, who until then was well able to pay the same; that in consequence of the negligence of appellee in failing to collect said note from said Adolph, he was chargeable with laches; that by reason thereof, and of the subsequent insolvency of said Adolph, said G-ottfried had lost and been deprived of any indemnity which he might otherwise have obtained from said Adolph, and had, therefore ceased to be liable on said note long before the rendition of said judgment. Appellee filed his general replication to said answer, and the cause was thereupon heard by the chancellor upon oral testimony and documentary evidence.

Appellants were permitted to introduce evidence tending to support the averments of their answer with respect to the invalidity of the judgment upon which the bill was predicated, but it was held by the chancellor, and properly so, that said judgment was not open to attack in this proceeding. Newman v. Willitts, 60 Ill. 519; Sawyer v. Moyer, 109 Ill. 461; Davidson v. Burke, 143 Ill. 139. In the former case it was said:

“Upon a creditor’s bill filed to obtain satisfaction of a judgment, after the return of an execution at law unsatisfied, a court of chancery is not authorized to decide upon the regularity of the judgment and execution in the court of law, but in a proper cause the proceedings upon the creditor’s bill will be stayed a sufficient length of time to enable the defendant to apply _ to the court at law for an order to set aside the judgment or execution for irregularity. ’ ’

No action was taken on behalf of appellants for any stay of the proceedings for the purpose of enabling them to attack the judgment.

At or about the time of the transactions here involved Gottfried Hoeft was about 70 years of age, and resided with his wife, his sons Adolph, William and Edward, and his daughter Clara, at 784 Milwaukee avenue, which property he owned in fee. He was also the owner in fee of a lot on the corner of Leavitt and Lubeclc streets, and certain premises in Lake View. The judgment in question for $1,140.60 was recovered by appellee against Gottfried and Adolph Hoeft on May 6, 1907, upon a note for $1,000 executed by said judgment debtors October 3, 1903, payable six months after date, which note was given to appellee for money borrowed and used by said Adolph in his business as a merchant tailor. On February 11, 1904, for money borrowed for the same purpose said Gottfried and Adolph gave to one McKay, a judgment note for $500, payable six months after date, which note was endorsed by the payee October 31, 1904, to the order of Edward Hoeft. On September 30, 1904, said Gottfried and wife executed their judgment note for $500 payable to the order of themselves four months after date, which note was endorsed by themselves, and negotiated to one Soelke. The property in Lake View was encumbered by a mortgage for $1,500. On January 2, 1906, Gottfried executed a judgment note to his son Edward for $5,500 payable on demand. April 11, 1907, Gottfried and wife executed and acknowledged a quit claim deed of all the real estate owned by them to their son Edward, for the expressed consideration of $1.00, and other good and valuable considerations, which deed appears not to have been delivered. April 16,1907, Gottfried and wife by quit claim deed conveyed the same real estate, for the like expressed consideration, to one Soelke, who, on April 20. 1907, conveyed the said real estate to Edward, William and Clara Hoeft, children of Gottfried, as joint tenants.

Appellants’ main contention, and the only one seriously argued, is that the decree is contrary to the evidence and to equity and good conscience.

There was some effort on the part of appellants to show that Gottfried and his sons Edward and William believed that the note upon which judgment was subsequently entered in favor of appellee had been paid at the time the conveyance in question was. made, but the evidence not only wholly fails in that regard, but clearly tends to show that the conveyance was made shortly after appellee had threatened to collect the note by legal process, and in view of such threat by appellee.

Whether the conveyance was made at the suggestion of Gottfried, or upon the request of his sons Edward and William, is not of controlling significance, although the evidence bearing upon that question is contradictory.

Edward, who held the position of auditor in a bank, appears to have been relied upon by the members of the family to look after their financial affairs, and he was named as sole grantee in the first deed executed by his father, who had confidence in him that he would deal equitably with the other members of the family. In view of the fact, however, that the son Adolph had been rendered financial assistance by his father and brothers to an amount which was thought to be equal to, or in excess of his share of the father’s property, the real estate was subsequently conveyed by Gottfried and wife to Soelke, who was a mere vehicle therefor, and who immediately conveyed it to the children other than Adolph.

It is conceded that the actual consideration for such conveyance to Edward, William and Clara was the liquidation of the $5,500 note held by Edward; the assumption by Edward of the mortgage for $1,500 on the Lake View property; the assumption by Edward of a note of Gottfried for $1,400, upon which Edward was liable as endorser, and designated in the record as the Kutz note; the payment of certain debts claimed to be owing to William; the payment to Clara for her services as housekeeper in the family; and an agreement by the three children, grantees, to support and maintain their parents, the grantors, in the future.

At the time of the conveyance the property on Milwaukee avenue was worth from $8,000 to $11,000, the lot on the comer of Leavitt and Lubeck streets was worth $900, and the premises in Lake View were worth $2,500, making a total valuation of .from $11,400 to $14,400. The conveyance of this real estate by Gottfried left him without any property in excess of his exemptions.

If the agreement on the part of the grantees to support or maintain the grantors constituted a substantial element of the consideration for the conveyance, such conveyance was fraudulent in law as to creditors of the grantor Gottfried, whether or not any fraudulent intention was present in the minds of the parties. Lawson v. Funk, 108 Ill. 502; Gordon v. Reynolds, 114 Ill. 118; Moore v. Wood, 100 Ill. 451. The same rale would be applicable as to so much of the consideration for the conveyance as relates to the payment to Clara for her services as housekeeper in the family (Guffin v. First Nat’l. Bank, 74 Ill. 259), and also as to so much of the consideration as involved the mere assumption by Edward of the payment of the mortgage on the property in Lake View. Priest v. Conklin, 38 Ill. App. 180.

It remains to be considered whether the claim on the part of appellants, that Gottfried was actually indebted to his sons Edward and William in an amount sufficient to constitute an adequate consideration for the conveyance, is supported by the evidence.

As heretofore stated, the family of Gottfried during the greater portion of the time involved consisted of himself, his wife and his four adult children. They resided at 784 Milwaukee avenue in rooms above the store, and lived frugally. The store was rented for $65 a month, and from the Lake View property a rental of $22 a month was realized. The sons Edward and William each paid $35 a month for their board. What amount, if any, Adolph paid for his board does not appear. Adolph was unsuccessful in business, and from time to time during his business career he received financial assistance from his father and his brothers. He'was adjudged a bankrupt in 1904, and claims were filed against his estate by his father, Gottfried, for $500, by his brother Edward for $2,903.62, and by his brother William for $558.50. The claim of Gottfried was secured by the assignment of certain accounts, and a dividend of two per cent was realized by Edward and William upon their claims.

William testified that at the time of the conveyance in question his father was indebted to him in the sum of $1,600; that he arrived at this amount by charging his father with the sum in excess of $35 a month, which he had contributed to the support of the family, aggregating $750,-.and also $400 he had paid for his brother Adolph in July, 1905, or 1906, and $400 he had let his father have in 1903. He does not appear to have kept any account or made any memorandum relative to the alleged indebtedness of his father to himself, and the record fails to disclose that the relation of debtor and creditor, as between his father and himself, was ever recognized as existing until the conveyance was made. We are fully persuaded that the claim on. the part of- William, that his father was indebted to him in any amount, was a mere afterthought designed to meet the suppled exigencies of the case.

The claim of Edward rests upon a judgment note for $5,500, purporting to have been executed by his father January 2, 1906. He testified that the amount of the note was arrived at by charging his father with various items, as follows: $3,000 advanced by him on different "occasions to his father and to his brother, Adolph, at his father’s request; $511.83 paid by him on the note of his father and mother negotiated to Soelke; $500 paid by him on the note of his father and his brother Adolph to McKay; $21.60 paid by him on his note for that amount to McKay for interest on the $500 note; $683.06 paid by him on account of sundry bills owed by his father, and $800 advanced by him to his father on various occasions.

The evidence discloses that for several years prior to the conveyance in question, Edward collected all the rents from the property without accounting therefor to his father; that for $2,903.62 of the amount included in the note for $5,500 he filed a claim against the estate of Adolph, his bankrupt brother; that he kept no account of the bills which he claims to have paid for his father, or of the various amounts he claims to have advanced to his father, but that the aggregate of such amounts was arrived at by a process of “lumping.” If it be conceded, however, that the note to Edward for $5,500 represented a bona fide indebtedness from his father to himself, the payment of the note Was so grossly inadequate a consideration for the conveyance as to render the latter fraudulent as to creditors.

The conveyance in question was" properly held by the chancellor to be fraudulent as to appellee, and the decree is affirmed.

Decree affirmed.


text:
    Valborg Sogn, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,890.

      Instructions—when upon proximate cause erroneous. Where the negligence charged and which the evidence tended to establish was the defective condition of a sidewalk by reason of holes, etc., it is error to direct a verdict for the defendant if the jury believe from the evidence “that the proximate cause of the plaintiff’s fall was slipperiness of the sidewalk, occasioned by ice and snow.’’
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.
    Brandt & Hoffman, for appellant.
    Edward J. Brundage and John B. Caverly, for appellee ; Edward C. Pitch, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellant against appellee to recover damages for personal injuries alleged to have been sustained by reason of a defective sidewalk. A trial by jury resulted in a verdict finding appellee not guilty, and a judgment upon such verdict and against appellant for costs.

The only error assigned and argued relates to the action of the trial court in giving an instruction at the instance of appellee, as follows:

‘ The jury are instructed that if you believe from the evidence that the proximate cause of the plaintiff’s fall was slipperiness of the sidewalk, occasioned by ice and snow, then you should find the defendant, City of Chicago, not guilty.”

That the sidewalk was defective and unsafe by reason of holes or openings therein caused by the absence of boards is beyond question under the evidence, and the negligence of appellee in that respect is clearly established. There is evidence tending to show that at the time appellant was injured there was snow upon the walk; that snow was then falling; and that appellant may have slipped upon the snow and thus been thrown into a hole in the walk and sustained the injuries complained of.

The instruction directed a verdict and was clearly erroneous and prejudicial to appellant. The question at issue for the jury to determine was whether the hole in the walk was the proximate cause of the injury, not whether the hole in the walk was the proximate cause of appellant’s fall. There was no averment in the declaration charging appellee with negligence in respect to snow or ice hpon the walk. Because the proximate cause of appellant’s fall may have been the ‘‘ slipperiness of the sidewalk,’’ it does not follow that the proximate cause of appellant’s injury was not the hole in the walk. The fall and the injury were distinct elements in the case.

The cases cited by counsel for appellee where instructions, making it incumbent upon the plaintiff to show that the proximate cause of the injury complained of was the negligence alleged in the declaration, are not in point.

A somewhat similar instruction was involved in Forney v. Village of Melvin, 130 Ill. App, 203, and held to be erroneous and misleading for additional reasons there stated, which seem to us to be conclusive of the question.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    William McCauley, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,912.
    1. Trial—when rulings as to manner of exercise of peremptory challenge will not reverse. If the parties have waived their right to pass upon and accept the jurors in panels of four as is provided by the statute, it is within the province of the trial court in the exercise of its judicial discretion to indicate the manner in which the right to challenge should be exercised and in the absence of a showing that such discretion was abused or resulted in prejudice to the party complaining, the exercise of such discretion will not be reviewed.
    2. Evidence—when cross-examination not unduly restricted. If the defendant upon cross-examination of the plaintiff suing for personal injuries has been permitted to inquire at length as to his addiction to drink, a slight limitation imposed by the court in refusing to allow a particular question is not prejudicial and will not reverse.
    3. Evidence—competency of observations made by X-ray. A witness who has qualified as an expert in the use of the X-ray and fluoroscope may properly be permitted to give the result of his observations.
    4. Evidence—effect of general objection to hypothetical question. A general objection does not save for review the completeness or accuracy of the recital of facts contained in a hypothetical question.
    5. Verdicts—when not excessive. Meld, in an action on the case for personal injuries that a verdict for $6500 was not excessive where it appeared that the plaintiff suffered severe pain for many months and will continue to suffer pain in the future and as a result of his injuries was so seriously and permanently injured that he cannot hereafter work at his trade or perform ordinary manual labor.
    6. Damages—when exemplary may be awarded. Exemplary damages are proper where the action is predicated upon a wilful and malicious assault.
    Action in case for personal injuries. Appeal from the Circuit- Court of Cook county; the Hon. John A. Gray, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    John E. Kehoe and Watson J. Ferry, for appellant.

      James L. Bynum, D. Ryan Twomey and Hiram Blaisdell, for appellee; Guerin, Gallagher and Barrett, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the Circuit Court of Cook county for $6,-500, as damages for personal injuries. The case was submitted to the jury upon the second count as amended and the first additional count of the declaration. These counts allege in substance that on March 24, 1904, while appellee was a passenger being carried on one of appellant’s cars operated on Thirty-first street in the city of Chicago, and while standing upon the rear platform of said car, exercising due care for his own safety, appellant, through its conductor wantonly, wilfully, maliciously and recklessly pushed him off the car, whereby he was thrown with great force and violence on the street and ground, and severely injured, etc.

The first question raised relates to the alleged erroneous ruling of the trial court in denying the request of appellant to exercise its peremptory challenge of a juror upon the voir dire examination. The record discloses that both parties waived their right to pass upon and accept the jury in panels of four; that thereafter Mr. Bynum, of counsel for appellee, sought to challenge a juror for cause before the twelve jurors then in the box had been passed upon by him, and in response to this request to be then allowed to exercise such challenge, the court said: “Well, when the time comes, but I require you to pass on the twelve. The statute provides for the acceptance of jurors by fours. When the parties don’t take them by fours you go on and take them by twelve. Now, I am in the habit of requiring you to pass on twelve. I understand the practice here is to excuse one at a time. I don’t like that and I don’t think it is the way to do.” The following colloquy was then had:

“Mr. Bynum: And then, your Honor, if there are any that we feel we should excuse we will excuse all at one time?
“The Court: Yes, all I mean is that you will make your entire challenge, whatever you want to do, and I will pass on it; that is all I mean. I allowed one man to go a while ago because he was excused by consent.
“Mr. Bynum. Yes, I understand your Honor’s ruling, and that is satisfactory.”

To the procedure indicated by the court appellant interposed no objection.- Counsel for appellee then tendered twelve jurors to counsel for appellant, who, after examining all of said jurors, challenged two peremptorily, and two others were called into the box. Of the two jurors so called, counsel for appellent excused one, and another juror was called who was examined by counsel for appellant. Thereupon the following occurred:

“Mr. Kehoe. If your Honor please, I desire to exercise one further challenge; in view of what your Honor said a little while ago, why, I call it to your Honor’s attention.
The Court. What?
Mr. Kehoe. I want to exercise the right to peremptorily challenge one juror who is in the box, was . in the box when I exercised my first challenge.
The Court. Any special reason for it?
Mr. Kehoe. Simply I want to exercise a peremptory challenge for reasons that I prefer not to state.
The Court. Overruled.
Mr. Kehoe. The reason is, that before exercising it I desired a full jury box and the opportunity of—
The Court. There was nothing said to me about it, and the jury box has been full all .the time.
Mr. Kehoe. That is true, your Honor, that I said nothing about it.
The Court. The challenge is overruled.
Mr. Kehoe. In view of that fact, I don’t wish to state the name, but I want the record to show the matter, if your Honor please ?
The Court. Yes, I suppose the record will show whatever happens.
Mr. Kehoe. Subject to the exception I have just taken, if your Honor please, I will accept the other eleven and bow to the judgment of the court, as I am obliged to bow to it.
The Court. Yes, yes, pass on these two.
Mr. Bynum. Just a moment, your Honor, it is all right as far as we are concerned.
The Court. No, no, there won’t be any trouble about that. ’ ’

Proper objection was made and exception preserved to the ruling of the court in the respect indicated.

The parties having waived their right to pass upon and accept the jurors in panels of four, as is provided by the statute, it was within the province of the trial court in the exercise of its judicial discretion to indicate the manner in which the right of challenge should be exercised, and in the absence of a showing that such discretion was abused, or resulted in prejudice to the party complaining, the exercise of such discretion will not be reviewed. In the case at bar the trial court did not assume to limit the number of peremptory challenges to which appellant was entitled, but merely designated the manner in which and the time when the right of such challenge should be exercised. The record discloses' that counsel for appellant did not misunderstand or fail to comprehend the ruling of the court when made, but rather that they acquiesced in such ruling, which they now seek to challenge upon purely academic grounds. Counsel did not indicate to the court which juror they desired to challenge, and when asked by the court whether any special reason existed for the exercise of the challenge contrary to the rule announced, they refrained from stating any, save that they desired a full jury box, which they had. In Gordon v. City of Chicago, 201 Ill. 623, it was held that the details as to the manner in which parties shall interpose their peremptory challenges is a matter in the discretion of the trial judge, and will not be reviewed unless for abuse of such discretion.

It is urged that the verdict is not justified by the evidence; that there was but a scintilla of evidence, if any, in support of appellee’s case, and appellant was entitled to a peremptory instruction; and that the verdict is against the manifest weight of the evidence.

The case is designated by counsel for appellant as a “blind” one,—as to which it had no knowledge or information. Appellee was the only witness who testified to the facts upon which his right of recovery is predicated. He testified in substance that at the time he was injured he was 42 years of age, was a plumber by occupation, and resided at No. 9 Thirtieth place, a little west of Shields -avenue; that on March 24,1904, he quit work and left the shop on Dearborn street near Jackson, about 5 o’clock; that he rode in a street car to Archer and State, where he went into a restaurant and saloon and had something to eat and drink; that after remaining there about half an hour he walked to Thirty-first street and State, where it started to rain very hard and he went into a saloon; that he remained in the saloon a little while, and drank one or two glasses of beer; that upon coming out of the saloon he met one Dennis, with whom he returned to the saloon and had two or three glasses of beer; that about half past eight o’clock he boarded one of appellant’s closed electric street cars on Thirty-first street, for the purpose of riding west, a distance of about six blocks, to Shields avenue; that he took the first seat next to the rear door of the car, and just before reaching Princeton avenue, which he mistook for Shields avenue, he motioned the conductor, who was inside and towards the front of the car, to stop the car; that the conductor walked to the rear platform where he gave the stop signal and he (appellee) followed him out to the platform, where he ascertained his mistake, and told the conductor he did not want to get off there; that the conductor gave the signal to go ahead and said, “Didn’t you motion me to stop?” and he replied, “Yes sir, I did;” that the conductor got “flaring mad,” and he (appellee) who was then standing down on the steps with his hands on the hand holds, facing the platform, ready to get off at Shields avenue, said, “You are one of those men who never made a mistake in your life;” that the conductor then said, “Yes, God damn you, get off anyhow,” and at the same time put his hand on or against his (appellee’s) breast and shoved him off the car; that the car was then a little west of the center of the block between Princeton and Shields avenues, and was traveling at an ordinary speed. Appellee further testified that when he fell off the car he struck the street with his left side, on his hip; that he got up in some way and hopped to the curb where he tried to sit or lie down and remained less than a minute, when four boys carried him to his home; that as soon as he reached home he asked his wife to get some gin, of which he took a drink; that Dr. Sperry arrived in ten or fifteen minutes and examined him, as he lay on a comforter on the kitchen floor; that the doctor said he had a bad sprain, put him to bed and prescribed the use of hot water applications and liniments; that he followed the prescriptions and was in bed for eight or nine weeks ; that he then consulted Dr. Budde, who told him to continue the use of the remedies prescribed by Dr. Sperry; that he was on crutches for over two years; that later he consulted Dr. Dillon, who examined him with an X-ray machine and gave him electric treatments; that six or seven months after the injury he went to the HahnemamTHospital and later to the County Hospital for examination and treatment; that he had suffered intense pain; that he was then using a crutch and a cane in walking; that prior to the injury his wages averaged $20 a week, and since the injury he had only earned three or four dollars. Dr. Cox, called as a witness on behalf of appellee, testified that he examined appellee in March, 1909, and found a shortening of an inch and a half in his left leg; that he looked at appellee’s hip bon’es through the X-ray and fluoroscope, and saw the outline shadow of both bones; that the great trochanter on the left side appeared to be an inch and a half higher than the one on the right side, and appeared to be a little higher than the head of the femur in the socket; that the neck of the femur appeared to be almost at right angles with the shaft of the bone, so that it was touching only the upper portion of the acetabulum; that there appeared to be a thickening of the neck of the femur from above downward on the left side; that appellee’s condition was caused by a fracture of the neck of the femur; that such condition was permanent and incurable; that the leg was weak, the. muscles smaller and the mal-position interfered with motion.

The witnesses Casey, Hart and Hurley testified that • they saw appellee at the curb of Thirty-first street immediately after he claims to have been pushed off the car, and with the assistance of one Lavery carried appellee home. Hoskins, a witness called by appellee, testified that he saw the latter at the curb. Dennis, a witness for appellee, corroborates the latter as to being with him in a saloon at the corner of Thirty-first and State streets, and testified that he saw appellee board a west bound car on Thirty-first street at about 8:30 o’clock on the evening appellee claims to have been injured.

In this state of the record it is manifest that the court would have been wholly unwarranted in giving to the jury the peremptory instruction tendered by appellant.

We have considered and weighed all the evidence with the care which the importance of the case demands and are unable to say that it fails to support the verdict. True, there are apparent inconsistencies and contradictions in the testimony of some of thq witnesses relative to time, distance, location, the extent of appellee’s injuries and the like, but they are not insurmountable, and it was the peculiar province of the jury to reconcile such inconsistencies and contradictions, and their verdict, approved by the trial judge, must, upon this record, be held to be conclusive as to the issues of fact involved.

It is urged that the court improperly refused to permit counsel for appellant in cross-examination of appellee to ask if he ever drank so much that it affected him,—that he felt it. Within reasonable limits the inquiry was not impertinent, but as counsel exercised a wide latitude in the examination of appellee, relative to his custom of frequenting saloons, and the quantity of liquor he drank during the evening in question, prior and subsequent to the time he was injured, we do not think the ruling of the court with reference to the inquiry in question was harmful to appellant.

Appellee detailed at length and in full the facts and circumstances relating to hi's controversy with the conductor, and testified that he had no prior acquaintance or trouble with the conductor, and that what he had stated as occurring at the time in question was all that took place. The further inquiry as to whether he knew any reason in the world why the conductor should have thrown him off the car for what had occurred called for a mere speculative conjecture by appellee and was properly excluded.

It is insisted that Dr. Cox was improperly permitted to state his observations of appellee’s injury as seen by him through or by means of the X-ray and fluoroscope. The witness qualified as an expert in the use of the X-ray and fluoroscope, and the mere fact that observation by such means discloses the shadow of the object in question, and not the object itself, does not make the statement as to what was observed incompetent. X-ray photographs, sciagraphs or radio-graphs which are no less representations of the shadow and not the substance, are properly admissible in evidence. Chicago City Ry. Co. v. Smith, 226 Ill. 178. The objection that no connection was shown between the accident in question and the conditions the witness claimed to have observed is met by the testimony of appellee that he sustained no injury other than upon the occasion in question. The testimony of Dr. Cox to the effect that the obdurator and sciatic nerves were involved in the injury to appellee was not objectionable as having relation to merely subjective symptons. As we read his testimony the nature and extent of the injury he observed necessarily involved said nerves.

It is insisted that the hypothetical . question propounded by Dr. Cox was predicated upon and involved mistaken and inaccurate hypotheses of facts. The evidence does not improperly bear the construction placed upon it by the facts hypothesized, in the particulars mentioned, and the general objection to the question was properly overruled.

The error assigned upon the action of the court in sustaining an objection to a question propounded to the witness Bartholomae, is not of sufficient merit to warrant discussion.

It is lastly urged that the damages awarded by the jury are excessive. Appellee suffered severe pain for many months and will continue to suffer pain in the future, as a result of his injuries; he is so seriously and permanently injured that he cannot hereafter work at his trade, or perform ordinary manual labor. Furthermore, the case is one in which exemplary damages were properly allowed. Amann v. Chicago Trac. Co., 243 Ill. 263.

There is no prejudicial error in the record and the judgment is affirmed.

Affirmed.


text:
    Ella Fleming, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,922.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Trial—when conduct of counsel will not reverse. While references to the plaintiff as a “widow” getting “her nickels by pulling a thread,” perhaps, are improper, yet they will not reverse where they did not inform the jury of the existence of facts not reasonably dedueible by them from the record as made.
    3. Evidence—whew proof of value of services sufficient. The value of medical services is sufficiently established if the physician states that there is no usual and customary fee for such services as he rendered but that the charges made by him were fair and reasonable.
    4. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in other instructions given.
    5. Instructions—abstract in form. It is not error to refuse a correct instruction if abstract in form.
    6. Instructions—when refusal, presenting defendant’s theory of case, will not reverse. Notwithstanding an instruction was erroneously refused which presented the defendant’s theory of the ease, such refusal will not reverse where the jury were sufficiently impressed by the given instructions with the issues which they were called upon to determine.
    7. Instructions—when modification cannot be complained of. A modification though erroneous will not reverse if the instruction to which the modification was made might have been refused as a whole.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    George W. Miller, for appellant.
    Samuel J. Howe, for appellee; Cameron Barber and Wilbur C. Bacon, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In this action in ease to recover damages for personal injuries the declaration contains three counts. The first count alleges that plaintiff was a passenger on one of defendant’s, cars operating on Indiana avenue; that before said car reached Forty-second street she gave the conductor a signal to stop said car at the intersection of said street and Indiana avenue so that she might alight there; that after giving said signal she went upon the rear platform of said car and waited for the same to stop so she might alight therefrom in safety; that said conductor permitted said car to be run without stopping until it reached the north side of Forty-second street, when it came almost to a standstill; that while plaintiff, in the exercise of due care, was then and there standing on said platform, said car was suddenly and violently jerked and started forward, whereby plaintiff was thrown from said platform to the ground, etc. The second count is substantially like the first. The third count further alleges that before the plaintiff had been given a reasonable time to alight the said car was suddenly and violently jerked and started forward, etc. A trial by jury resulted in a verdict and judgment against the defendant for $1,500 and this appeal followed.

It is first urged Tby appellant that the verdict is against the manifest weight of the evidence.

Appellee testified that shortly after 6 o’clock on the evening of January 9,1908, she boarded a south bound car operated by appellant on Indiana avenue at Thirty-first street, intending to alight at • Forty-second street; that she sat facing west on the end seat nearest the rear door of the car; that when the car passed Forty-first street, she said to the conductor, who was standing inside of the car near her, “Forty-second, please;” that the conductor made no response; that when the car reached Forty-second street, it was going very fast, and the conductor did not call the street "until the car had gone a quarter of a block; that upon his calling the street, she said, “Well, why didn’t you let me off at Forty-second,” and he said, “Did you ask me?” to which she replied, “I certainly did,” whereupon he said, “I never heard you;” that the car was then coming to a standstill, and she stood up, took hold of the door and said, “It does not make any difference, it just gives me a block further to walk; ’ ’ that the conductor was then putting his book, in which he had been making out his report, in his pocket; that she thought the car was just moving and she pulled the door back and stepped out onto the platform, the conductor following her; that she stepped to the rear end of the platform, between the upright iron bar and the end of the platform, and took hold of the bar with her left hand; that she had some books in her right hand; that she so stood on the platform waiting for the car to stop, when it gave a sudden jerk which threw her back and forwards and she fell on her head on the street; that when she went out on the platform there was no one there other than the conductor, but that a lady came out after she did and stood on the platform next to the car. On cross examination appellee testified she did not stand on the extreme edge of the platform, but about a foot back; that the car moved faster after she came out on the platform than it did when she left her seat; that she did not step down on the step at any time or make any effort to do so; that she did not stand on the platform more than two minutes before she was thrown off.

George D. Mason, a witness called on behalf of appellee, testified that as he was going to his place of business at the corner of Indiana avenue and Forty-third street, he heard some one “holler” and saw appellee fall off the car, which was then immediately opposite him; that when he first saw'the car it was standing still, waiting for a car, a half a car length ahead of it, to pull out, and that it then started up; that he could not say whether the car started with a jerk or not—did not know; that he heard appellee cry after the car started, and as he remembered it, the starting of the car and the falling of appellee were at the same time; that as far as he saw, the car started in the ordinary way.

Anna Anderson, a witness for plaintiff, testified, when she went on the platform, at or near Forty-third street, appellee and the conductor were there; that the car was slackening up to stop; that the car was going when appellee fell off; that the car started suddenly with a jerky motion after she went out on the platform, and she steadied herself by taking hold of the iron bar; that she started back to the door after the car jerked, and at that time appellee was still on the platform; that she stood with her back to the door looking east until the car stopped, when she got off, and at that time appellee was back in the street; that she did not see appellee when she fell off the car.

Oliver Jackson, a witness for appellee, testified that he was employed by the witness, Mason; that he saw appellee standing on the platform holding the iron; that it appeared to him she was just leaving the door of the car; that just the instant the car gave a ^sudden jerk and knocked appellee on her face forward on the ground; that she was on the. platform, of the car; that the car was standing still when he first noticed it; and was just behind a car which started south immediately before it started with a jerk; that there was another car about an arm’s length behind the car in question; that the car ran about two feet after appellee fell off.

John C. Hall, a witness for appellant, testified that he was a passenger standing on the rear platform of the car near the door when appellee fell off; that the first he noticed, he saw the skirts flip off the car; that the car was then going at a pretty good rate—the usual rate—and had not slowed down or stopped before that; that after appellee fell off the car ran forty or fifty feet; that he did not notice any jerk or lurch of the car when appellee fell off or before that.

W. Clay Davis, a witness for appellee, testified that he was a passenger on the car, sitting directly opposite appellee; that he saw her leave her seat and go on the platform and step off or fall off and lay on the ground; that the car was going at a pretty good speed, and there was no sudden jerk or lurch in its movement just before or at the time appellee fell off; that there was no one on the platform other than appellee when she fell off.

M. J. Kowalski testified that he was the motor-man on the car; that he ran full speed—between ten and twelve miles an hour—from Forty-third street to the middle of the block, where he threw off the current; that he put it on again to the fifth notch, and was going about six miles an hour when he got three bells to stop quick, and then ran about fifty feet before the car stopped.

Mrs. W. C. Davis, a passenger, testified that she sat with her husband directly opposite appellee; that all of a sudden appellee jumped up quickly and walked onto the platform and walked deliberately off the car while it was going in full motion; that the conductor was then inside the car.

Coakley, who was the conductor on the car, testified he had no recollection of having had any conversation with appellee; that he saw her when she went out of the car onto the platform; thát he thought he was on platform and didn’t think there was any one else on the platform after she came out and before she fell; that as the car was slowing down for Forty-third street she stepped from the platform to the steps and from the step to the ground in the proper way if the car was stationary, but was thrown to the ground; that he was not inside the car when the accident happened; that appellee did not come out with any noticeable haste, as though she was in a hurry or excited; that the car was running about four or four and a half miles an hour when appellee deliberately stepped onto the step and then took another step down on the ground.

It will be observed that the evidence bearing upon the material issues of fact in the case is hopelessly and irreconcilably conflicting. There is also much conflict in the evidence relating to the proximity of the car in question to Forty-third street, the number of cars then on the track in the immediate locality, and the order and method of movement of said cars. These matters we deem of minor importance, although counsel for appellant devotes considerable space to their discussion.

All of the witnesses who claim to have observed appellee when she fell, except Coakley, the conductor, and Mrs. Davis, testified that she fell directly from the platform to the ground. Mrs. Davis testified that appellee deliberately jumped from the platform. In the absence of evidence to the contrary it must be presumed appellee was of sound mind. She testified that she used the cars habitually in going to and from her work. It is claimed by appellant that she was injured while attempting to alight from the car in the usual manner, but three of appellant’s own witnesses positively disprove such claim. A careful consideration of the evidence impels us to the conclusion that the verdict is not against the manifest weight of the evidence.

In the course of his opening statement to the jury counsel for appellee used the following language: “The plaintiff in this case, gentlemen of the jury, we expect to show you is a widow who has been engaged for many years—; ’ ’ and in his closing argument counsel said: “Now, gentlemen of the jury, a few words as to the injuries and the question of damages: Brother Miller says that there was nothing except a little abrasion on the forehead, and he says why didn’t she see—why didn’t she bring in the doctors ? Because she gets her nickels by pulling a thread perhaps.” Counsel for appellant in each instance objected to the language quoted and the objections were sustained by the court. It is nevertheless urged that the reference to appellee as being a “widow,” who, perhaps, “gets her nickels by pulling a thread,” “drew a picture in the minds of the jury of a poor widow woman who was obliged, to eke out her living” by “pulling a thread,” which was calculated to and did arouse their sympathies to the prejudice of appellant.

The record discloses that repeatedly during the progress of the trial appellee was referred to as “Mrs. Fleming” and that in answer to cross-interrogatories propounded to her she testified that she was fifty years of age and had been following the occupation of a seamstress for twenty-five years; did sewing and fine needle work, working long hours of the day, and at night for over a period of fifteen years. If she had had a husband he would doubtless have been called as a witness in her behalf to testify, at least, to the extent of her injuries. That she had been for many years and was then obliged to work for a living was in evidence brought out by appellant. We are not inclined to believe the jury were so obtuse that they failed to draw the reasonable inference from the facts and circumstances in evidence, without objection, that appellee was a widow, who was obliged to work long hours to eke out a living. While the language in question was improperly employed by counsel for appellee with a view to arousing the sympathies of the jury in her behalf, it did not inform the jury of the existence of facts not reasonably deducible by them from the record as made. The action of the court in sustaining the objections interposed by counsel for appellant to the language used, and in instructing the jury that sympathy for appellee should not influence them in determining whether or not appellant was liable, we think fully neutralized the harmful effect, if any, of such language.

It is insisted that in the absence of proof that a charge by Dr. Aimes of $34 was the usual and customary charge for professional services rendered by him to appellee, evidence of such charge was improperly admitted. The doctor testified that he did not think there was a usual and customary fee for services of physicians and surgeons in Chicago; that he made a charge for his services to appellee, which charge was fair and reasonable for the services performed; that he charged $10 for the first dressing and $2 a visit for subsequent visits, making a total of $34. Proof is usually available in such cases to establish a usual and customary charge, but where, as here, it appeared there was no usual and customary charge for such services, it was sufficient for appellee to show that'the medical and surgical services rendered were necessary and that the charge for such services was fair and reasonable. Amann v. Chicago Trac. Co., 243 Ill. 263. The question sought to be raised is not of sufficient significance in this case to merit either the extended discussion accorded it by counsel, or a reference to it on review.

Complaint is next made of the refusal of the court to give to the jury several instructions tendered by appellant. The eighth instruction does not designate the specific negligence alleged in the declaration, as counsel seem to assume, and was sufficiently covered by the fourteenth given instruction. The ninth instruction was covered by the twenty-third and twenty-fourth instructions given to the jury. The eleventh instruction had no place in the case. There was no pretense either under the pleadings, or upon the trial, that appellee sought a recovery upon the ground that she was carried beyond Forty-second street. The twelfth instruction was abstract in form and was not improperly refused. The thirteenth instruction tendered by appellant was erroneously refused. It embodied appellant’s theory of the case and should have been given to the jury. We are not disposed to hold, however, that the refusal to give said instruction requires a reversal of the judgment. While there was evidence in the case tending to show that appellee was injured while attempting to alight from the car, it was sufficiently impressed upon the jury by the given instructions that the negligence charged did not relate to a failure on the part of appellant to afford appellee reasonable time and opportunity to alight from the car. If, however, the instruction was intended to refer to the question of contributory negligence, it was properly refused as invading the province of the jury.

There is no force in appellant’s objection to the fourth instruction given at the instance of appellee. There is no reference in the instruction to mental suffering or humiliation as an element of damage. What we have heretofore said relative to the competency of the evidence of Dr. Aimes with reference to his charge for medical and surgical services, is a sufficient answer to another objection urged to the instruction. The jury were sufficiently limited by the instruction to the assessment of damages for such pain and suffering, the direct result of the accident, as the evidence showed she had endured.

The fifth instruction given at the request of appellee is in substance like the fourth instruction approved in Keokuk Bridge Co. v. Wetzel, 228 Ill. 253.

Appellant was not harmed in the court’s modification of its seventeenth instruction by striking out the paragraph wherein the jury were informed they should find appellant not guilty if the evidence was evenly balanced as between the contention of the parties on the material issues. The last paragraph of the instruction as given was equivalent to the one stricken out. Moreover, the instruction might have been properly refused, because taken as a whole it submitted to the jury a question of law by permitting the jury to determine the material allegations of the declaration.

The damages are not excessive.

There is no substantial error in the record and the judgment is affirmed.

Affirmed.