text:
    Marcin Wojtonik, Plaintiff in Error, v. Schuttler & Hotz, Defendant in Error.
    Gen. No. 16,536.
    1. Master and servant—rish is not assumed where ordinance requires machinery to be guarded. Where a person in a workshop stumbles and his hand comes in contact with a machine driven by belting that was left unguarded by the master in violation of an ordinance requiring such machines to be guarded for the protection of employees, he cannot be held to have assumed the risk.
    2. Master and servant—evidence admissible to prove violation of safety ordinance. Where an ordinance requires employers to guard machinery driven by belting and an employee is injured by coming in contact with such a machine that is unguarded, evidence that it was practicable to cover and guard the machine is competent and relevant to prove that the employer violated the ordinance.
    3. Trial—violation of ordinance may be proved before the ordinance is proved. Where a servant is injured by coming in contact with an unguarded machine and he relies on an ordinance requiring such machines to be guarded, evidence that it was practicable to cover and guard the machine, to prove a violation of the ordinance by the master, is admissible before the ordinance is put in evidence.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed November 18, 1912.
    Rehearing allowed December 2, 1912.
    Original opinion refiled December 16, 1912.
    F. W. Jaros, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; John Barton Payne and John D. Black, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The plaintiff in error sued the defendant in error for damages on account of injuries to his right hand. At the close of the evidence for the plaintiff the court directed a verdict for the defendant, entered a judgment against the plaintiff and he prosecutes this writ of error. The defendant had a wagon factory in Chicago in which was used power-driven machinery, and employed the defendant as a blacksmith’s helper. His principal work was to rivet iron work to the woodwork of farm wagons and, when required, to assist a blacksmith in welding. When the blacksmith wanted the plaintiff, he gave him a signal to come to him by tapping on his anvil. Plaintiff’s bench was in an open space sixteen by twenty-five feet, and between his bench and the anvil of his blacksmith was an emery wheel supported by a frame and operated at a speed of 2000 revolutions per minute by a belt from a pulley on an overhead shaft. This wheel was used by the blacksmiths and their helpers to sharpen their tools and to smooth and polish iron work on first-class wagons. Just before the accident plaintiff picked up a finished bolster weighing fifty pounds, intending to put it down on the floor three or four feet from the wheel. While on his way with the bolster in his hands, his blacksmith tapped on his anvil and plaintiff started to run to him, still carrying the bolster. The floor was uneven and he stumbled and to prevent falling threw out his hand and put it on the moving emery wheel, thereby sustaining the injuries complained of. No one was using the wheel at the time, plaintiff could not tell by looking at it whether it was running or not, and it was not covered or guarded.

The first count of the declaration alleged that defendant operated in Chicago a wagon factory, in which was used an emery wheel driven by electric power; that at the time when, etc., there was in force the following ordinance:

“In every factory, workshop or other place or structure where machinery is employed and belting, shafting, gearing, elevators and every other portion of machinery when so located as to endanger the lives and limbs of those employed therein while in the discharge of their duties, shall be, as far as practicable, so covered or guarded as to make them reasonably safe and to prevent injury to such employees; ’ ’ that the- defendant negligently, etc., had and used in said factory machinery, etc., so located as to endanger the lives and limbs of those employed therein in the discharge of their duties, and allowed said machinery, etc., to be uncovered and unguarded where it was practicable to have the same so guarded as to prevent injury to its employees, and negligently, etc., failed to cover or guard said emery wheel or to see that the floor near said wheel was in good repair; that plaintiff was in the employ of the defendant as a common servant, was under the control of a vice-principal of the defendant, and while, in pursuance of the orders of such vice-principal, he was carrying manufactured articles from one place to another near said emery wheel, using due caution, etc., he tripped and fell against said emery wheel, which was unguarded and unprotected, etc., and thereby was injured, etc.

On the trial plaintiff called as a witness a machinist and asked him if he knew anything about emery wheels. In answer to the question of the court as to what he was trying to prove, plaintiff’s counsel said that it was whether it was practicable to put a cover on an emery wheel; that plaintiff had a count on an ordinance that provided' that when it was practicable machinery should be covered, etc. The defendant objected on the ground that “such evidence would be entirely incompetent in any aspect of the case,” and the court ruled out the evidence. The plaintiff then offered to prove that it was practicable, without interfering with the use of the emery wheel for grinding, to cover the top of it so that a person could not accidentally come in contact with the top of the wheel, to which the defendant objected on the ground that such evidence was incompetent; the court sustained the objection, excluded the evidence offered, and the plaintiff excepted. The plaintiff had worked for defendant four years, three in its old shop and one in the new. Emery wheels last but a few months, but the same frame and appliances were used in the old shop as in the new, and plaintiff in both shops had worked near the wheel.

The contention of defendant in error here is that the plaintiff assumed the risk of injury from the unguarded condition of the emery wheel. It is also .urged by the defendant in error that the question whether, under the ordinance counted on, the plaintiff assumed the risk incident to the defendant’s violation of the ordinance, is not presented by the record, because the ordinance was neither proved nor offered in evidence on the trial, and because the record fails to show' that the shop in which the plaintiff was injured was in Chicago. The last objection is not sustained by the record, which shows that plaintiff was asked if the shop where he worked was in Chicago, and defendant’s counsel said: “That is admitted.”

To show himself entitled to the protection of the ordinance counted on, plaintiff was bound to prove the ordinance and to prove that it was practicable to cover and guard the wheel so as to make it reasonably safe and prevent injury to employees. We see no reason why the plaintiff might not first offer proof that it was practicable to cover the wheel and then, if he made such proof, prove the ordinance. No question as to the order of proof was made at the trial, and the evidence was objected to and excluded on the ground that it was irrelevant and incompetent and not on the ground that it was offered before the ordinance was put in evidence.

We think that the question whether the plaintiff, by working near the uncovered and unguarded wheel, with full knowledge of the violation by his employer of the ordinance counted on and of the consequent danger to himself, assumed the risk of injury from such violation, is presented by the record in this case.

We see no substantial difference between the statute on which the action in Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, was based, and the ordinance counted on in this case. The statute in that case and the ordinance in this impose a specific duty on employers for the protection of employees. In that case it was held that the employer must not only use reasonable care to furnish a safe place and safe tools and machinery to his employees, but in addition must use in his business the means and methods provided by the statute for the safety of such employees. In the opinion the case of Browne v. Siegel, Cooper & Co., 191 Ill. 226, is distinguished on the ground that the ordinance in that case did not impose a specific duty for the protection of employees. In the opinion in the Streeter case, supra, the cases in different jurisdictions are carefully examined and the conclusion reached that, “Justice requires that the master, and not the servant, should assume the risk of the master’s violation of the law enacted for the servant’s protection. ’ ’

We think that under the rule announced in the Streeter case, supra, a servant does not assume the risk of injury from the master’s violation of the ordinance counted on; that evidence that it was practicable to cover and guard the emery wheel was competent and relevant to prove that' the defendant violated the ordinance; and that such evidence was admissible before the ordinance was put in evidence.

It follows from what has been said that in our opinion the trial court erred in excluding the evidence offered, and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    A. H. Fisher, Defendant in Error, v. Max Tauber, Plaintiff in Error.
    Gen. No. 16,545.
    1. Municipal coubt—form of action. In an action of the fourth class in the Municipal Court of Chicago, the form of action is such as the evidence makes it.
    2. Conteacts—rights of parties when contract of exchange is rescinded. If a contract of exchange is rescinded thé law implies a promise by defendant to return the goods received from plaintiff on receipt of the goods traded to him, and if the value of the goods traded to defendant was agreed on and defendant refuses to return them, it seems that plaintiff may recover the agreed value therof.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Stahl & Lewald, for plaintiff in error; Alexander J. Strom:, of counsel.
    Robert D. Melich, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Fisher traded with defendant Tauber a gray horse for a black and paid Tauber $175 boot. Becoming dissatisfied with the black horse plaintiff returned the horse to defendant, who accepted him and delivered to plaintiff another black horse. The contention of the plaintiff was that the parties agreed that the value of the gray horse was $40 and that of the first mentioned black horse $175; that when he delivered the gray horse he and defendant agreed that the trade be rescinded and that the second black horse was delivered to him by defendant for his temporary use, to give defendant time to see if he could find a horse to suit plaintiff.

Plaintiff also took the second black horse back to defendant and demanded that he return to him the gray horse and the $175 boot money. Defendant refused to accept the second black horse or to return the gray horse or the boot money, and plaintiff brought this action against the defendant and had judgment. for $215, to reverse which defendant prosecutes this writ of error.

The action was one of the fourth class in the Municipal Court, in which no written pleadings are required, and the rule that controls the forms of action before a justice of the peace, that the form of action is such as the evidence makes it, will control as to the form of action. Edgerton v. Chicago, R. I & P. R. Co., 240 Ill. 311.

In order to recover the boot money and the value of the horse he traded to defendant, the plaintiff was bound to prove that the contract of exchange was rescinded and the value of the horses traded by plaintiff to defendant fixed by the agreement of the parties.

The contention of the defendant was that no agreement to rescind the contract was ever made; that when the first black horse was returned the parties agreed that the plaintiff should accept, and that he did accept, said second black horse in the place of the first; that in that respect the original contract was modified, and as so modified remained in force.

If the contract of exchange was rescinded, the law implied a promise on the part of the defendant that on the receipt of the horse he had traded to plaintiff, he would return to plaintiff the horse and money he had received from him, and if the parties agreed on the value of the horse defendant received from plaintiff and the defendant on demand refused to return the horse to plaintiff, we think plaintiff might also recover the agreed value of such horse. There is no evidence tending to show such acts or conduct on the part of the defendant as authorized the plaintiff to rescind the contract of exchange without the consent of the defendant, and the decision therefore turns on the question whether from the evidence the court might properly find that the contract of exchange was rescinded by the agreement of the parties. The testimony was conflicting, and we think that the finding in favor of the contention of the plaintiff must be held conclusive.

The judgment is affirmed.

Affirmed.


text:
    John M. Carlson, Trading as John M. Carlson & Co., Plaintiff in Error, v. Norman B. Marshall, Defendant in Error.
    Gen. No. 16,548.

      Bbokebs—liability for commissions. The vendor, by accepting services of a real estate broker and his employee, adopted their acts and became liable for the commission njcntioned, where the sale was made after the employee informed the vendor who desired to sell, that he was working for the broker and had taken a possible vendee to see the premises, and the vendor was informed by the broker that a certain commission would be charged if the sale was made.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed with judgment.
    Opinion filed November 18, 1912.
    Castle, Williams, Long & Castle, for plaintiff in error; Howard P. Castle, of counsel.
    No appearance for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Carlson, a real estate broker, employed King, who had been employed by Hart, another broker. Defendant Marshall listed with Hart for sale certain real estate. King, while in the employment of plaintiff, called on defendant, told him that he was working for plaintiff attempting to secure a purchaser for defendant’s real estate, and had taken Burkland to see the premises. Defendant and Burkland then went to plaintiff’s office and plaintiff told defendant that he would hold him for a commission of $112.50 if he sold said real estate to Burkland. He afterwards sold the real estate- to Burkland for $4600.

Defendant knew that plaintiff and King, his employee, were conducting negotiations with Burkland with the expectation that defendant would pay plaintiff for such services, and by accepting such services he adopted their acts and became liable to pay plaintiff the usual and reasonable commissions for such services, which, in the absence of any agreement, would be $160. Barber v. Koch, 151 Ill. App. 522; Rockford, R. I. & St. L. R. Co. v. Wilcox, 66 Ill. 417; Wheeler v. Hall, 41 Wis. 447; 15 Am. & Eng. Ency. of Law (2d Ed.), 1082; Mechem on Agency, sec. 964.

We think the plaintiff is entitled to recover from the defendant on the evidence in this record the amount claimed by him, $112.50, and the cause having- been tried without a jury, the judgment of nil capiat will be reversed with judgment here for the plaintiff for one hundred and twelve dollars and fifty cents and costs.

Judgment reversed with judgment here for plaintiff.


text:
    M. L. Greenwald and B. P. Greenwald, Defendants in Error, v. M. Weinberg, Plaintiff in Error.
    Gen. No. 16,567.
    Appeals and ebbobs—conflicting evidence. In an action on a verbal lease defendants’ motion for new trial on the ground that the verdict is contrary to the evidence is properly denied where it does not appear to the court on a review of the evidence that the jury did not find properly on each of the issues,

      Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Statement by the Court. April 23, 1908,- plaintiffs M. L. and B. P. Greenwald leased to defendant Weinberg at a rental of $75 per month one-half of a certain store, plaintiffs retaining and occupying the other half. The defendant occupied his half of the store up to January 30, 1909. The agreement was verbal and the parties disagree as to its terms. Plaintiffs contend that the leasing was for a year from April 23d; that defendant took possession on that day and that after July 1, 1908, defendant was to pay one-half of the cost of the gas and two-thirds of the cost of the electricity consumed in lighting the store except during December, when each party was to pay one-half of the cost of the electric lighting. The defendant contends that the agreement was that he should have gas free and should pay one-half of the cost of the electric lighting after July 1, that the leasing, was from month to month, that he did not take possession April 23, but that it was agreed that he should take possession May 1, and he did not take possession until that day; that he paid no gas bills before November 1; that plaintiffs then notified him that he must pay his own gas bills and that if he did not do so they would give him a thirty days’ notice; that he then said that he would pay for the gas he used during November and December; that he paid for gas and electric lighting during November and December and rent up to the last day of January.
    Plaintiffs brought suit in the Municipal Court for $212.94, had a verdict for $181.03, the court denied defendant’s motion for a new trial and entered judgment on the verdict, to reverse which the defendant prosecutes this writ of error.
    P. J. Murphy and William Graham, for plaintiff in error.

      Noble T. Robbins and John J. Poulton, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

The only ground of reversal urged is that the verdict is so contrary to the evidence that the trial court erred in denying defendant’s motion for a new trial. In the brief for plaintiffs in error it is stated that the questions in dispute are:

“First. Was this a leasing for a year or from month to month?

“Second. If it was a leasing for a year, was the term to begin on the 23d of April, 1908, or on the first of May, 1908?

“Third. What was the agreement as to payment for gas? Was plaintiff in error to get the gas free or was he to pay for it?

“Fourth. Was the gas or electric light bill or either of them paid for the month of December, 1908 ? ’ ’

On each of the disputed questions above stated the testimony is conflicting, and we cannot on a review of the evidence say that the jury might not properly find on each of such disputed questions against the contention of plaintiffs in error. The case is one of conflicting testimony, where the ^erdict is conclusive, and the trial court properly denied defendant’s motion for a new trial.

The judgment is affirmed,

Affirmed.


text:
    J. B. Williams, Defendant in Error, v. Joseph Perlstein, Plaintiff in Error.
    Gen. No. 16,572
    1. Statute of frauds—to pay may 8e implied. In an action by a doct in attending defendant’s daughter-in-law, where defendant pleads the statute of frauds, an original promise to pay may he implied from circumstances, and the question of to whom credit was given is for the jury.
    2. Statute of limitations—where evidence as to new promise is conflicting. In an action hy a doctor for services in attending defendant’s daughter-in-law, where testimony as to a new promise made within five years is conflicting, the finding of the trial court is- conclusive.
    Error to the Municipal Court of Chicago; the Hon. W. H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Louis Zir, for plaintiff in error.
    Cameron & Matson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant in error, Dr. Williams, attended the daughter-in-law of plaintiff in error, Perlstein, from December 26, 1904, to ’January 6, 1905. Claiming that plaintiff in error promised to pay him for such services, he brought an action against him in the Municipal Court and recovered a judgment for $86, and the defendant prosecutes this writ of error.

The grounds of reversal relied on are that the promise, if made, is within the Statute of Frauds and that the action is barred by (the Statute of Limitations.

Plaintiff testified that December 26, 1904, defendant asked him to treat this daughter-in-law, who was about to be confined; thalt nothing was then said about payment, but that December 28, defendant said to plaintiff that his son was not able to pay anything, and that he would see that plaintiff’s services were all paid for. Defendant testified that he sent for plaintiff and said to him: “Mjr son is here on the telephone and wants you to go there Ion a confinement case,” and that he never promised to\ pay plaintiff for his services. Plaintiff attended the patient December 26 and 27 and up to and including January 6, and recovered for all the services so rendered. The finding of the court must therefore have been that there was an implied promise by defendant December 26 to pay plaintiff for his services; for if he made an express promise to pay plaintiff December 28, he would not be liable on such promise for services rendered before it was made.

An original promise to pay may be implied from circumstances, and the question to whom the credit was given is always a question for the jury to determine upon all the circumstances of the case. Moshier v. Kitchell, 87 Ill. 18; Brown on Statute of Frauds, sec. 199.

We cannot say that the court might not properly find from the facts and circumstances shown by the evidence that defendant on December 26 requested plaintiff to attend and treat his daughter-in-law, and that an original promise was implied on the part of the defendant to pay plaintiff for the services rendered in pursuance of such request.

Plaintiff testified that in February, 1905, defendant promised to pay him for the services in question the first of April following, and defendant denied that he ever promised to pay plaintiff for such services. Whether the defendant made such new promise within five years was a question for the trial court on which, in view of the conflicting testimony, its finding must be held conclusive.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Harry Natenberg, Defendant in Error, v. John S. Solak et al., Defendants. George J. Cooke, Plaintiff in Error.
    Gen. No. 16,596.
    1. Justices of the peace—effect where papers on appeal are files in wrong court. Where an appeal bond in a justice’s case recites that the defendants had taken an appeal to the Superior Court of Cook county and the papers are inadvertently filed in the Circuit Court, the Circuit Court has no jurisdiction of the cause, and the fact that the defendants appealed and issues were joined does not aid.
    2. Justices of the peace—when appeal need not be formally prayed. It is not necessary that defendants should pray an appeal when they give an appeal bond which is approved by the justice.
    3. Justices of the peace—when judgment inadmissible in action on appeal bond. Where an appeal bond given by defendants in a forcible detainer suit before a justice recites that defendants had taken an appeal to the Superior Court of Cook county, and the papers are inadvertently filed in the Circuit Court where issue was formed, trial had and judgment obtained, the court had no' jurisdiction, and in an action on the appeal bond a transcript of the judgment is not admissible.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed November 18, 1912.
    Alden, Latham & Young, for plaintiff in error; Charles B, Brown, of counsel.
    J. N. Heldman and Simon La Grou, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

February 2, 1906, Natenberg, the defendant in error here, had judgment for the restitution of possession of certain premises in an action of forcible detainer brought by him before a justice of the peace against Stanislaus and John Solak. The next day an appeal bond executed by said defendants and Cooke, the plaintiff in error here, was presented to the justice and by him “taken and approved.” The recital in the bond is that the defendants had “taken an appeal to the Superior Court of Cook County,” but by some inadvertence the papers were filed in the Circuit Court and the cause docketed in that court. In an action on the bond against the obligors in the Municipal Court, in which Cooke only was served with process, the plaintiff put in evidence, over the objection of defendant Cooke, said appeal bond, justice’s transcript and a transcript of a judgment rendered in the Circuit Court for the restitution of said premises. In a similar case, where the appeal was taken to the Superior Court and the papers filed by mistake in the Circuit Court, it was held that the Circuit Court had no jurisdiction of the cause because the appeal was to a different court. Wadhams v. Hotchkiss, 80 Ill. 437. The fact that the defendants appealed and issues were joined did not confer jurisdiction over the subject-matter of the suit.

It was not necessary that the defendants should pray an appeal. The giving of an appeal bond, which the justice approved, was all the praying of an appeal that was necessary. Fix v. Quinn, 75 Ill. 232.

From the time the bond was accepted and approved by the justice the appeal was taken and the cause was pending in the Superior Court, although the papers were not sent up within the time required by law. Defendants had done all that was required of them, and they are not responsible for the justice’s neglect or mistake. Little v. Smith, 5 Ill. (Scam.) 400; Gallimore v. Dozey, 12 Ill. 143; Frahm v. Commissioners Craig Drain. Dist., 200 Ill. 233.

In Little v. Smith, supra, it was intimated that on failure of the party appealing to apply to the court to which the appeal was taken to compel the justice to file the bond and other papers in that court, the court, in its discretion, might dismiss the appeal. In Wadhams v. Hotchkiss, supra, it was intimated that the proper course was for the Circuit Court to strike the case from the docket, “when appellee could have filed the papers in the Superior Court.” We do not deein it proper at this time to decide or even intimate the steps that should be taken by éither party on the remanding of the cause. All that we decide is that the appeal was taken to the Superior Court; that there was no jurisdiction in the Circuit Court to hear and determine the cause, and that therefore the trial court erred in admitting in evidence the transcript of the judgment entered in that court.

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

Reversed and remanded.


text:
    Louis Goetzke, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,822.
    1. Municipal corporations'—liable for negligence though maintaining electric light plant in public capacity. Where a city so negligently maintains an electric wire charged with a dangerous current, that it owns and maintains for street lighting purposes, as to cause it to fall into the street, injuring a pedestrian coming in contact with it, it is liable, although it maintained the electric light plant in its public, municipal capacity.
    2. Municipal corporations—evidence of negligence in maintaining electric wires. A pedestrian was injured by coming in contact with a municipal electric light wire that had fallen into- a street. The wire was attached to a cross-arm by a sunken wooden pin into which was screwed a glass insulator. The cross-arm was found to be rotten and charred around the pin, which had sunk about an inch and had burned nearly through. The only inspection made was that by “trouble men” in charge of a large district, who in driving around looked at the poles from their vehicles, from which the dangerous condition could not be seen. The insulators were as safe as any when first used five years prior, but since then better and safer ones were in use in other cities. Held, a verdict for the plaintiff was supported by evidence.
    3. Municipal corporations—care required in inspecting electric light wire. In determining what inspection of municipal electric light wires is required, it is to be considered that the use of high voltage electric wires for lighting streets is attended with great danger, and the care required by a city using them must be commensurate with the danger.
    4. Damages—when $25,000 for injury to hands is not excessive. A person came in contact with a high voltage electric light wire, suffered great pain, lost three fingers of his right hand, severely injured the thumb and forefinger and had practically no use of it left. He lost one finger and a part of another on his left hand and had left only the use of the thumb and forefinger. Held, a verdict of $25,000 was not excessive.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the How. Charles A. McDonald, Judge, Certiorari denied by Supreme Court (making opinion final).
    Opinion filed November 18, 1912.
    William H. Sexton and N. L. Protrowski, for appellant; Myer S. Emrich and Joseph B. David, of counsel.
    Theodore Ehler and Johnson & Belasco, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In the Superior Court plaintiff Goetzke recovered a judgment against the defendant the City of Chicago for $25,000 for injuries sustained by him August 13, 1908, by coming in contact with an electric light wire of the city, and the city appealed.

The defendant maintained an electric light pole at the northeast corner of Sixty-fourth, an east and west street, and Carpenter, a north and south street, and a similar pole on Sixty-fourth street, 136 feet west of the pole first mentioned. An electric wire carrying a current that made it highly dangerous ran from the pole on Sixty-fourth street east to a cross-arm at the top of said first mentioned pole, thence down eight or ten feet to an arc light attached to the pole, thence back to the cross-arm and thence to the pole on Sixty-fourth street. This wire extended over the sidewalk a,t the southeast corner of Carpenter and Sixty-fourth. It was attached to the cross-arm by a wooden pin sunk into the cross-arm. Screwed into the pin was a glass insulator, known as a single petticoat, around which the wire passed. The evidence for the plaintiff tended to show that immediately after the accident an inspection showed that the cross-arm was rotten and charred around the pin, which had sunk down in the cross-arm about an inch; that the pin had been burned nearly through and had broke so that one end of it was in the cross-arm and the other in the insulator. By the breaking of the pin the wire was detached from the cross-arm and sagged so that at the southwest corner of Carpenter and Sixty-fourth it was only five feet or less above the sidewalk. Plaintiff was passing along the sidewalk at said comer about 1:30 a. m., came in contact with the wire and his hands were badly burned and injured. For the injuries thus sustained he recovered the judgment appealed from.

The declaration contains the following averments of negligence:

The second count avers that:

“Defendant carelessly, wrongfully and negligently permitted and allowed said pole and poles aforesaid and said cross-arms and said pins aforesaid and the said glass insulators on said pins aforesaid, and the said wire and wires aforesaid, to be and remain weak, rotten, unsafe and dangerous and so that the same was liable to burn, short circuit and to fall.”

The third count that:

‘ ‘ The defendant carelessly, wrongfully and negligently failed to use reasonable care to inspect the said pin and the said cross-arm and the said pole and a certain glass insulator placed upon the said pin, and the said wire aforesaid from time to time, and carelessly, wrongfully and negligently permitted and allowed the pole and the said pin and said cross-arm and the said glass insulator placed thereon to be and remain weak, unsafe, rotten, water soaked and dangerous and so that the said wire and the electricity therein being carried by same, and the said cross-arm, pole, pin and glass insulator placed on said pin were liable to become short circuited and bum, all of which facts the defendant knew or ought to have known by the exercise of ordinary care. And the plaintiff avers that on the day and date aforesaid and prior thereto said wire aforesaid "broke, gave way, and hung suspended in said streets aforesaid, and" said pin, pole, cross-arm and glass insulator and said wire aforesaid and the electricity therein contained became short circuited, then and there permitting said wire aforesaid to be in said certain streets aforesaid, to-wit, Carpenter street and 64th street, and the northwest corner thereof.”

The fourth count that:

“The said defendant so carelessly, wrongfully and negligently maintained, controlled and operated the said pin, pole, cross-arm, wire and the said glass insulator aforesaid as to cause the said wire aforesaid to break, burn and fall into the said street aforesaid, to-wit, the northwest corner of 64th street and Carpenter street, and to be and remain in the said street aforesaid, then and there and thereby causing the said plaintiff, who was then and there on the said streets aforesaid, who was in the exercise of due care and caution for his own personal safety, to be struck and to come in contact with the said wire so charged with electricity aforesaid, then and there and thereby greatly and permanently injuring him, as hereinafter more specifically alleged and set forth in the last count hereof and hereby expressly made a part of this count.”

Appellant contends that the judgment must be reversed because the lighting of streets by the city is a governmental function and there is no liability to one injured through the negligence of the servants of the city in charge of the maintenance and operation of such light plant. "We think that the case of the Village of Palestine v. Siler, 225 Ill. 630, is conclusive against this contention. In that case it was held that the gravamen of plaintiff’s cause of action as set out in the declaration was that plaintiff’s intestate came to his death by reason of “the defendant’s omission of duty in keeping its public streets and sidewalks free from obstructions and the deadly wires of its light plant;” that it was no answer to the allegations of violation of the duty of keeping its streets free from obstructions and dangerous obstacles to say by the pleas that the defendant maintained the electric light plant in its public municipal capacity; that, “whoever owned the plant, whether a municipal corporation, a private corporation or an individual, the village was bound to see that its public streets were not improperly used, encroached upon or rendered dangerous to persons rightfully using the same.”

The declaration in this case alleges that through the negligence of the defendant the electric light wire fell into the street and thereby came in contact with the plaintiff, etc. This is an allegation of a violation by the defendant of its duty of keeping its streets free from obstructions and dangerous obstacles, and if sustained by the evidence entitled the plaintiff to recover under the rule announced in Palestine v. Siler, although the defendant maintained the electric light plant in its public municipal capacity.

Appellant further contends that the verdict is not supported by the evidence. From the evidence the jury might properly find that the rottenness of the cross-arm at the point where the pin went into it caused the pin to sink into the cross-arm and thereby caused the insulator to touch the cross-arm; that the cross-arm became water soaked, and when moisture gathered on the insulator a short circuit was formed between the wire, cross-arm and pin, and this set the wood on fire; that this occurred from time to time until the pin was burned about three-quarters through, when the strain of the wire broke the pin and this caused the sagging of the wire; that the light plant was constructed in 1905, and the only inspection ever made of the pole and wire was that made by two men called “trouble men,” who were in charge of a very large district and were called in case of trouble to any light in the district, and in driving around the district it was their custom to look at the poles from their vehicle; that from their vehicle they could not see that the cross-arm was rotten or charred or that the pin was burned or charred or had sunk down into the hole in the cross-arm. It is plain that the cross-arm must have been rotten and the pin burned and charred a long time before the accident, and that by climbing the pole such condition could have been discovered. In determining what inspection the exercise of reasonable care required, it is to be remembered that the use of high voltage electric wire for lighting streets is attended with great danger, and the care required by those using it must be commensurate with the danger. It was further shown by the evidence that up to 1905 single petticoat insulators were used and were considered as safe as any insulator then known; that about 1905 triple petticoat insulators began to come in use, and from that time were installed by the city in new work and in repair work where a new insulator was required; but except in such cases the city continued to use the single petticoat insulators; that the triple petticoat insulator was a better and safer insulator than the single petticoat. We think that on all the evidence the question whether the defendant was guilty of negligence which caused or contributed to plaintiff’s injury as alleged in the declaration, was a question for the jury, and that it cannot be said that the verdict is against the evidence or is not supported by sufficient evidence.

We find no error in the rulings of the court on questions of evidence nor in the giving of "any instruction given for the plaintiff or in the refusal to give any instruction asked by the defendant, nor in the refusal to grant a new trial on the ground of newly discovered evidence.

As a result of the injury plaintiff lost three fingers of his right hand and the thumb and forefinger were severely burned and their usefulness greatly impaired by scar tissue. He also lost one finger of the left hand, the greater part of another finger, and a third was so burned and is so drawn out of shape that he has little or no use of it. He has practically, no use of his right hand and has only the use of the thumb and forefinger of the left hand. In view of his injuries and the pain suffered by him in consequence thereof, we cannot say that the damages awarded by the jury are so excessive as to warrant or require a reversal of the judgment.

A careful consideration of the questions presented by the record has convinced us that the trial court did not err in denying defendant’s motion for a new trial and giving judgment on the verdict, and the judgment is affirmed.

Affirmed.•


author: Mr. Justice Brown

text:
    City of Chicago, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 16,116.
    1. Municipal cobporations—power to compel railroad to repair viaduct approaches. A city ordinance, requiring a railroad to repair an approach to a viaduct, to be valid must either be referable to a contractual relation between the city and the railroad or be an order by the city council for the enforcement or exceution of a police power belonging to the city.
    2. Municipal corporations—city estopped to require repavement of approach to viaduct. Where a railway agrees with city to erect and maintain a viaduct and construct approaches, it does not thereby become obligated to repave approaches, and the city is estopped, years later in the exercise of its police power, to require repavement of approaches when both parties have acted in reliance on a distinction between approaches and viaduct.
    3. Municipal corporations—authority of city officer. Where a contract between a city and a railway has been followed by the expenditure of thousands of dollars, and both parties have acted under it for many years, it is too late to question the authority of the officer who signed it.
    4. Municipal corporations—city may he estopped to exercise police power. Although a city cannot by contract alienate its police power, yet it may be equitably estopped by circumstances which make it unconformable to right and justice to exercise such power.

      Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed November 18, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. On September 15, 1879, the City Council of Chicago passed an ordinance granting permission to the Chicago & Western Indiana Railroad Company to lay and operate a railroad with one or more tracks and such switches, sidings and turnouts as might be necessary from the southern boundary of Chicago to such terminus as it might establish between the east bank of the south branch of the Chicago river and the west side of State street between Sixteenth street and the south line of Van Burén street in said city.
    The railroad company was given the right to cross any intervening streets or alleys along the line of said route, being subject at all times to the direction of the Department of Public Works or other proper department or officer of said city in the construction of its tracks, in making the crossings or connections with other roads, and in keeping in repair so much of said streets and crossings as might be occupied with its tracks, switches and turnouts.
    Section 4 of said ordinance was:
    “The permission, authority and privileges hereby granted are upon the express condition that the said Railroad Company shall erect and maintain viaducts over any of its said tracks or any street or streets of said city which may be crossed by its said tracks where and as the said City Council may from time to time require, and under the supervision of the Department of Public Works or other proper department or officer of said city, and erect and construct the approaches to all such viaducts with proper areas on either side of said approaches. Provided, however, that where any such viaduct can not be built at any such street crossing without the same be built over the track or tracks of some other railroad company or companies, then the said Chicago and Western Indiana Railroad Company shall only be obliged to join with such other last mentioned railroad company or companies in the construction and maintenance of such viaduct, and to pay their fair proportion of the cost of such viaduct or viaducts, and if such other railroad company or companies shall not join in the erection of any such viaduct, then when the proportion of such other company or companies shall be otherwise provided the said Chicago and Western Indiana Railroad Company shall pay its fair proportion of the cost of any such viaduct.”
    Section 5 was:
    “The said railroad company shall be subject to all general laws and ordinances of the City of Chicago in relation to railroads which are now or may hereafter be in force.”
    March 7, 1881, the city passed another ordinance, granting permission to the Chicago & Western Indiana Railroad Company to raise the bridge over the south branch of the Chicago river not to exceed three and one-half feet, and to erect at the east end of the bridge a suitable viaduct fifty-eight feet long, and to raise the approaches at both ends of the bridge and the approach from Lumber street to connect with the. west approach according to a plan in the office of the Department pf Public Works—provided that the raising of the bridge and the building of the viaduct, together with all of the said approaches should be at the expense and cost of the company.
    The second section of the ordinance made the further condition that whenever the "city should build or erect another bridge or widen the existing one, at that point, then the Chicago & Western Indiana Railroad Company should at its own cost and expense build the abutments at the east end of said bridge and at the east end of said viaduct of stone masonry, and should at its own cost and expense renew the said viaduct of such material and width as might be required by said city, and further should pay to the city the cost and expense of the additional construction required by increased heights of the center pier of said bridge whenever the city should build another bridge or widen the existing one—all of said work to be constructed according to the plans of the Department of Public Works and to be under the superintendence and to the satisfaction of the Commissioner of Public Works.
    The second section ends thus:
    “The viaduct mentioned in the foregoing Sections is to be maintained and kept in repair by and at the cost and expense of said Chicago & Western Indiana Railroad Company, subject to the direction and superintendence of the proper officer authorized by the said City.”
    The third section makes the rights granted conditioned on'the work being so done as not to interfere with travel across the bridge for more than thirty days, and proceeds, “and upon the further condition that nothing herein contained shall operate or in any way be construed as operating to ratify or in any manner confirm the ordinance passed September 15, 1879, purporting to grant to said railroad company permission and authority to lay down, maintain and operate a railroad in said city or as in any manner extending the rights and privileges purported to be granted by said last mentioned ordinance or the time within which such rights or privileges were to be exercised.”
    August 10, 1887, the Chicago & Western Indiana Railroad Company and the City of Chicago entered into a written agreement, which recited that the Company had certain rights and was under certain obligations under ordinances of the City as to the erection and maintenance of a viaduct at 18th street and the approaches thereto and a bridge across the river at said street; that the ordinances provided that the erection of the viaduct' ánd the improvements should be according to plans and specifications of the Department of Public Works, and under the superintendence and to the satisfaction of the Commissioner of Public Works; that it was proposed by the City to erect another bridge at 18th street, and that one of the ordinances required that the Company should pay the entire expense of the eastern, abutment of said bridge and a portion of the expense of building the center pier to said bridge. This agreement provided inter alia:
    ‘1 That a viaduct should be constructed at 18th street, as shown on attached plans, which might be varied by joint consent of engineers for both parties; that the bridge at 18th street and the piers and abutments therefor, should be constructed as indicated by the plans attached, which might be varied by the City Engineer ; that the work done upon and in connection with such bridge, viaduct and approaches should be done under the supervision and control of the Department of Public Works of Chicago; that contracts for the work should be let by the Department of Public Works after having been approved by endorsement by the Company; that the said party of the first part should pay as its proportion of the cost and expense of the work contemplated, one-sixth of the cost of the centre pier of the swing bridge to be constructed * * * and should pay the entire cost of all the work shown upon the plans annexed east of and including the east pier of said bridge, viaducts, piers, abutments, protections and approaches shown upon said plans, and including said protections to said east pier of said bridge and also all other expenses connected with said construction to the end of said approach at the west curb line of Wentworth avenue, excepting only so much of said expense as was agreed to be paid by the Chicago and Alton Railroad Company, by a contract between said Chicago & Alton Railroad Company and the second party hereto of even date herewith, wherein it is agreed that said Chicago & Alton Railroad Company shall pay as its proportion of the expense of said viaduct one-half of the cost of the East pier at Grove street, and one-half of the cost of the West pier -at Grove street, and the entire cost of a bridge or viaduct over the tracks of said Chicago and Alton Railroad Company in Grove street, and extending from said East pier to said West pier over Grove street.”

      It was further agreed that the viaduct from the easternmost pier of said bridge to the éasternmost pier of said viaduct at the point marked X on the plan attached (excepting only the portion thereof mentioned as extending over the tracks of the Chicago & Alton Bailroad Company in Grove street, which was to be built at the cost and expense of said Chicago & Alton Railroad Company) should be forever maintained and kept in repair by and at the cost and expense of said Chicago & Western Indiana Railroad Company, subject to the direction and superintendence of the proper officer authorized by the City.
    A provision was included in said contract, that nothing in it contained should be construed as in any way limiting the liability under the ordinances mentioned in it, save as to the proportion of the cost and expense of the work mentioned in the clauses above quoted.
    September 2, 1887, the City Engineer notified the Chicago & Western Indiana Railroad Company that it might “take down and remove the viaduct with the approaches thereto over” its “tracks on 18th street at” its “earliest convenience.”
    October 10, 1887, a supplemental agreement was entered into between the Chicago & Western Indiana Railroad Company and the City of Chicago, which recited that a certain contract for the erection and completion for public use of a viaduct on 18th street had been entered into between the parties, in which it was stipulated that the Chicago & Alton Railroad Company was to pay for a certain proportionate share of the cost of constructing said viaduct, and that the Chicago and Alton Bailroad Company had refused and failed to sign a contract with the City, and therefore provided that:
    “It is mutually agreed that the City of Chicago will pay the proportionate share of the construction of said viaduct that was by the terms of said contract to be paid by the Chicago and Alton Railroad Company, and the City of Chicago hereby agrees to pay the said proportional share that under said contract was to he paid by the Chicago and Alton Railroad Company upon certificates to be issued by the City Engineer of the City of Chicago, the Chicago and Western Indiana Railroad Company not being in any manner liable for such proportionate share herein assumed by the city of Chicago.”
    It was stipulated in the trial of the case at bar that the viaduct was built about 1887 or 1888, and that the Chicago & Western Indiana Railroad Company paid the expense of building so much of the viaduct as covers the railroad tracks of the Western Indiana; and it appears in evidence that the amount expended by the Railroad Company for the construction required was $23,329.58. It was also admitted by the Railroad Company that the viaduct itself goes over some tracks owned by the Western Indiana, but that it covers as well tracks of other railroads, and that those railroads were the Chicago & Alton, the Santa Fe and the Chicago,' Madison & Northern taken over for use by the Illinois Central. It was also agreed that “after the Chicago & Western Indiana Railroad Company constructed the east approach to the 18th street viaduct the City of Chicago from time to time made repairs on the roadway of that approach as repairs became necessary in the usual course of events, and that the City paid those expenses and never requested or in any way demanded that the Chicago & Western Indimoney paid out on account of the repairs so made, no.r ana Railroad Company compensate the City for the did the City of Chicago ever request the Chicago & Western Indiana Railroad Company to make any repairs when repairs were necessary to be made to the east approach of the 18th street viaduct, until November, 1907.”
    In September, 1907, a plan entitled “Survey of East 18th Street Viaduct Approach” was made by the Bureau of Bridges and Harbors of the City of Chicago, and under it an improvement to the East approach

      to the 18th street viaduct bridge over the South Branch of the Chicago River was made.
    November 4,1907, the City Council of Chicago passed an ordinance entitled “An Ordinance requiring the Chicago and Western Indiana Railroad Company, The Atchison, Topeka and Santa Fe Railway Company, the Chicago & Alton Railway Company and the Illinois Central Railroad Company to repair the east Eighteenth Street Viaduct approach.”
    Its first section declares the work necessary; the second orders the said four roads to proceed within seven days of the passage and approval of the ordinance to repair the East Eighteenth Street viaduct ap>proach in accordance with the plans on file (the one hereinbefore last referred to). It proceeds:
    “ Said repairs to be made as follows:
    “That the roadway on the approach of East Eighteenth street from a point one hundred fifty feet east of the west curb line of Wentworth avenue to the east end of the viaduct, said roadway varying from a width of forty-five (45) feet to a width of thirty-nine (39) feet and the roadways of all intersecting streets extending from the curb' line to the street line produced on each side of said East Eighteenth street and also parts of sidewalks on both sides of said street, as herein specifically provided.”
    Then follow the specifications for the pavement, etc.
    The third section is:
    “In the event that the said The Chicago and Western Indiana Railroad Company, the Atchison, Topeka and Santa Fe Railway Company, Chicago and Alton Railway Company and Illinois Central Railroad Company shall fail to begin the making of said repairs in the manner provided by Section 2 of this ordinance within seven (7) days after they are notified so to do by the Commissioner of Public Works, said Commissioner of Public Works is hereby authorized and directed to immediately proceed to make the repairs provided for by Section 2 of this ordinance, and the expense thereof shall be charged to and paid by the said The Chicago and Western Indiana Railroad Company, The Atchison, Topeka & Santa Fe Railway Company, Chicago and Alton Railway Company and Illinois Central Railroad Company by the City of Chicago in any proper action instituted therefor.”
    Section 4 is:
    “In the event that said The Chicago and Western Indiana Railroad Company, the Atchison, Topeka & Santa Fe Railway Company, Chicago and Alton Railway Company, and Illinois Central Railroad Company shall fail to make said repairs in Section 2 provided for, and in consequence thereof the Commissioner of Public Works shall make said repairs as in Section 3 provided for, then and in such event, said The Chicago and Western Indiana Railroad Company, The Atchison, Topeka & Santa Fe Railway Company, Chicago and Alton Railroad Company, and Illinois Central Railroad Company shall pay to the City of Chicago as compensation for making said repairs ten per cent of the amount so expended, which shall, unless paid by said Railroad Companies, be recovered by said City of Chicago from said Companies in the same manner and together with the amount so expended for said repairs in any action instituted therefor.”
    The 'fifth section is:
    “Unless said Railroad Companies shall• otherwise agree between themselves, they shall defray the expense of making said repairs or pay to the City of Chicago the amount accruing to, it by virtue of this ordinance in case the Commissioner of Public Works shall make said repairs in the following proportion, to-wit:
    The Chicago and Western Indiana Railroad Company, Fifteen Twenty-eighths (15/28).
    The Atchison, Topeka & Santa Fe Railway Company, Nine Twenty-eighths (9/28).
    Chicago and Alton Railway Company, Two Twenty-eighths (2/28).
    Illinois Central Railroad Company, Two Twenty-eighths (2/28).”
    December 13, 1907, the following letter from officers of the City was sent to and received by the Chicago and Western Indiana Railroad Company:
    “You are hereby notified to take steps immediately to repair the east approach to the E. 18th street viaduct, in accordance with an ordinance passed by the City Council on November 4, 1907, page 3000 Council Proceedings, a copy of which is attached hereto. Kindly acknowledge the receipt of this notice and state what stand you will take in regard to the matter. Recommended by John J. Hanberg, •
    Thos. G. Phillipson, Commissioner of Public Works, City Bridge Engineer, By Paul Redieske, Approved John Ericson, Deputy Commissioner. City Engineer. ’ ’
    May 7, 1908, the City of Chicago entered into a contract with the M. H. McGovern Company, whereby the McGovern Company agreed “to furnish all material, appliances, appurtenances, etc., required for the performing of the necessary operations for repairing, constructing and paving the roadway on the east approach to 18th street viaduct, except the strip forming the right of way of the Chicago Railways Company, with granite block pavement.
    Work was done under this contract by the McGovern Company, and the City paid to the said Company, under estimates certifying that the Company had “completed the paving and improvements on the easapproach to the 18th street viaduct bridge over the South Branch of the Chicago River,” the amount of $9,324.49. (This is by an evident misprint in the transcript of the record stated in the declaration as $1,324.29.)
    May 3, 1909, the City of Chicago began in the Municipal Court of Chicago the present suit in assumpsit against the Chicago & Western Indiana Railroad Company. In its declaration it first sets out in haee verba the ordinance of September 15, 1879, and then avers that after the passage of the ordinance the traffic across said railroad authorized by it became so great and the passage of ears thereon so frequent at the intersection of the railroad and 18th street, that said intersection became a dangerous place for persons and vehicles to cross, and it became necessary for the public safety and convenience that a viaduct be built along 18th street across the railroad tracks, and that said viaduct was accordingly constructed in a manner to insure the public safety and convenience at said crossing aforesaid. The declaration then makes the further averment that certain portions of said 18th street viaduct aforesaid became and were out of repair to such an extent as to render said viaduct unsafe and inconvenient for public travel and traffic, thereby making it necessary to repair the same,, and that thereafter on November 4, 1907, the City Council passed the ordinance of that date, which is also set out in haee verba.

    The declaration then alleges that although frequently requested to repair said viaduct in accordance with the terms of said ordinance, each of the Companies therein named refused and neglected to make said repairs, and that therefore the City of Chicago repaired said 18th street viaduct and expended in so doing the sum of $1,324.49-(sic.), which was a fair and reasonable expenditure for the work performed.

    The averment then follows that by reason of the premises, the defendant became obligated to pay to the plaintiff fifteen twenty-eighths of the amount expended by the City in making said repairs, together with ten per cent, of the amount in addition as provided in said ordinance.
    The Railroad Company pleaded the general issue to this declaration, and the cause was tried before the court with a jury.
    Evidence and stipulations were heard, showing the matters herein set forth. The testimony of Mr. Leininger, Engineer of Streets for the City of Chicago, was offered by the City in connection with the estimates and the payments made by the City to the McGovern Company for the work done in 1908, and in connection with the plan under which the said work was done, and which was specified in the ordinance of November 4, 1907.
    He testified that “the beginning, the bottom of the approach to the 18th street viaduct is at the west line of Wentworth avenue.” He further testified that of the total amount, $9,324.49, paid for the work shown by the plans, $2,374.75 was for work done east of the west line of Wentworth avenue, and that the remainder, $6,949.74, was the entire amount in his opinion chargeable to the railroads.
    At the conclusion of all the evidence the Railroad Company rested its defense on three propositions of law, which it tendered to the court. The court refused to hold each of them. They are as follows:
    “1. An agreement dated August 10, 1887, having been entered into by and between the defendant Chicago & Western Indiana Railroad Company, party of the first part, and the City of Chicago, party of the second part, wherein it was agreed that said viaduct, to-wit, from the easternmost pier of said bridge to the easternmost pier of said viaduct at the point marked X on said plan, excepting only that portion thereof above mentioned extending over the tracks of the Chicago & Alton Railroad Company in Grove street (which is to be built at the cost and expense of said Chicago & Alton Railroad Company), shall be forever maintained and kept in repair by and at the cost and expense of said party of the first part, subject to the direction and superintendence of the proper officer, authorized by the City, and further, the City and Railroad Company having acted under said agreement for twenty years and the City having at all times maintained the approaches to said viaduct at 18th street, the defendant was by law under no obligation to maintain such approach and cannot legally be compelled to pay therefor.
    “2. It having been ordained by the City Council of the City of Chicago by section 4 of the ordinance of September 15, 1879, by which ordinance certain rights and privileges were granted to the defendant Chicago & Western Indiana Railroad Company, and which ordinance was approved by the mayor and was accepted by said defendant, as follows:
    “The permission, authority and privileges hereby granted are upon the express condition that the said Railroad Company shall erect and maintain viaducts over any of its said tracks or any street or streets of said city which may he crossed by its said tracks where and as the City Council may from time to time require, and under the supervision of the department of public works or other proper office of said City, and erect and construct the approaches to all such viaducts with proper areas on either side of such approaches, etc.; and further, on the 4th day of November, 1907, the City Council of the City of Chicago having passed and the Mayor of the City of Chicago having approved a certain ordinance, which was in words and figures following :
    “ (Here follows in liaec verba the first and the portion of the second section of the ordinance of November 4,1907, ending with ‘The said roadway of said approach of said East 18th street viaduct shall be paved. ’ # * =£ J

    “Now, therefore, said ordinance of November 4th, 1907, was invalid and not in accordance with the terms of section 4 of the ordinance of September 15, 1879, and consequently did not impose any duty upon defendant to maintain the roadway on the east approach to the viaduct in question at 18th street since it ordered defendant and others to pave the roadway ‘from a point one hundred and fifty feet east of the east curb line of Wentworth avenue to the east end of said viaduct,’ thereby ordering defendant to pave an area which was not part of the approach since said approach begins sixty-six feet west of the east line of Wentworth avenue.
    “3. It having been ordained by the City Council of the City of Chicago by Section 4 of the ordinance of September 15, 1879, by which ordinance certain rights and privileges were granted to the defendant Chicago and Western Indiana Railroad Company, and which ordinance was approved by the Mayor and was accepted by said defendant, as follows: ‘The permission, authority and privileges hereby granted are upon the express condition that the said Railroad Company shall erect and maintam viaducts over any of its said tracks and as the City Council may from time to. time require, and under the supervision of the department of public works or other proper department or officer of said City, and erect and construct the approaches to all such viaducts with proper areas on either side of such approaches, ’ etc., now therefore this defendant was only required by the terms of said ordinance to ‘ erect and construct the approaches to all such viaducts, and was not required to maintain the approaches to such viaducts. ’ ”

    The court rendered judgment for the City of Chicago for $3,728.10, which was 15/28 of $6,949.74, the amount sworn by Mr. Leninger to have been expended by the City under the ordinance of November 4, .1907, for the work west of the west line of Wentworth avenue, and did not include anything for work done east of that line, nor the ten per cent, addition to the actual expenditure mentioned in the ordinance and claimed in .the declaration and the affidavit attached thereto.
    A motion for a new trial and a motion in arrest of judgment having been denied, the Chicago & Western Indiana Railroad Company appealed to this court and in this court, besides merely formal assignments of error, have complained of the refusal of the Municipal Court to hold as law the'propositions of .law before recited ; and argue (a) that the ordinance of November 4, 1907, on which the action is based, is void as being too broad and requiring too much; (b) that its condition was not complied with in giving notice to railroads other than the defendant that repairs were required, and that consequently the City had no right to proceed under it; (c) that it was not consistent with nor justified by the ordinance of September 15,1879, in the matter of the maintenance of approaches; (d) that the defendant having expended large sums of money upon a viaduct erected by virtue of the terms of a contract entered into August 10, 1887, by it and the City, the City is equitably estopped from rejecting said contract—which by exclusion negatives the obligation of the railroad to maintain and repair the eastern approach to the viaduct; and (e) that as an exercise of the police power said ordinance of November 4, 1907, was unreasonable and void.
    William L. Reed and Francis Adams, Jr., for appellant; William J. Henley, of counsel. '
    Edward J. Brundage, Charles M. Haet and James F. Burns, for appellee.

      The proof conclusively showing that $9324.49 was the amount expended by the City, we have treated the sum mentioned in the declaration as though it were this amount.

   Mr. Justice Brown

delivered the opinion of the court.

We are of the opinion that on the facts detailed in the statement hereunto prefixed, no liability can be enforced against the Chicago & Western Indiana Railroad Company under the ordinance of November 4, 1907, or otherwise, for the money or any part of it paid by the said City for repairing, constructing and paving the roadway on the east approach to the 18th street viaduct.

The claim of the City therefor is based on a threefold ground—first on the ordinance of November 4„ 1907, which attempts expressly to impose the asserted liability; secondly, on the ordinance of September'15, 1879, which makes a condition of the privilege granted the Railroad Company of laying its tracks in the city, an undertaking on its part to erect and maintain viaducts over any of its tracks or any street crossed by its tracks where and as the City Council may require, and to erect and construct the approaches to all such viaducts with proper areas on either side of said approaches; and, thirdly, on the general police power which the City asserts over the use, impairment or alteration of its streets by railroad companies.

The first of these grounds may be said to imply the existence of the third; for if the ordinance of November 4,1907, is valid, it must be because it is an order by the City Council for the enforcement or execution of a police power belonging to the City. This is the only ground on which have been sustained such ordinances imposing on particular persons or corporations using a street an expenditure which must otherwise be met by taxation or special assessment. Chicago & N. W. R. Co. v. City of Chicago, 140 Ill. 309-320; City of Bloomington v. Illinois Cent. R. Co., 154 Ill. 539; People v. Illinois Cent. R. Co., 235 Ill. 374.

The second of the grounds on which the City bases its claim may be referred, however, to a purely contractual relation between the Railroad and the City.

Considering first this contractual relation evidenced by the right of way ordinance of September 15, 1879, it seems plain that no obligation based on it alone can exist to pave the roadway on the approaches to the viaduct in question. A distinction seems carefully made between the viaduct and the approaches and between the obligation of the Railroad Company to erect and maintain the viaduct and the obligation only to erect and construct the approaches. The distinction certainly is not an artificial or inequitable one.

The viaduct itself is a bridge, and the necessary repairs on it might reason ably be treated differently in such a contract from the repaving of an approach which consists of a roadway that can be repaved like any other portion of the street, from which it is distinguished only by its being inclined on an embankment rendered necessary by the viaduct. We may, therefore, assume that the language used to express the differing obligations of the city as to the viaduct and the approaches was advisedly and intelligently used.

But the City maintains that the Council by the ordinance of 1879 did not attempt to contract away the inherent police power of the City to compel the repair of the approaches, and in no event could have done so. The utmost that can be argued from the language of the ordinance, it is insisted, is that by accepting the ordinance the Company did not specifically undertake to repave the approaches. It was not, however, relieved from an obligation to conform in relation thereto to the orders of the City in the exercise of its police powers.

This i§ a contention which may be considered in connection with the position taken by the Railroad Company, that if it be granted that the police power of the City would otherwise have allowed it to pass and enforce the ordinance of November 4, 1907, it was es-topped from doing so on various scores.

The City bases its alleged rights on the position that an approach to a viaduct is in the eye of the law a necessary and integral part of the viaduct itself. Therefore, since it is conceded that the City may compel the maintenance and repair of the viaduct, it must necessarily be allowed the right to compel the repair or repaving of the approaches.

Counsel for the City in support of the general proposition that the “approaches” to a viaduct are in the view of the law parts of the viaduct itself, quote the vigorous language of Mr. Justice Chytraus of the Branch Appellate Court to that effect in City of Chicago v. Pittsburg, C., C. & St. L. R. Co., 146 Ill. App. 403. Independently of the fact that the opinion is not binding on us, and that because of the ultimate disposition of the case it is on the point involved obiter dictum, we do not think that even taken in its most literal sense, it implies that by mutual agreement and action a City and a Railroad can not place a definite meaning on the word “viaduct” in any given ease which excludes the “approaches” thereto.

At all events the Supreme Court, whose decisions and considered utterances do bind us, has in City of Chicago v. Pittsburgh, Ft. W. & C. R Co., 247 Ill. 319, used much less decisive language on this point. In the course of an opinion explaining the conclusion reached that the City had no power in that case to compel the defendant to pave 18th street between Canal and Mechanic streets to the west of a viaduct on 18th street connected with the one here involved by the bridge over the river, it said that while “ordinarily an ‘approach’, as that term is used, is considered a part of the viaduct,” yet that “what is a viaduct proper and what is an approach, where one begins and the other ends, and what is a street or highway as distinguished from the approach, are more questions of fact than of law, and are sometimes not easy to decide,” and that the requirement under the police^ power of the municipality that a railroad shall keep and maintain its crossings “does not necessarily require the railroad to keep and maintain that which is for every practical purpose a street or highway, even though incidentally it is used as a part of the ascent or approach to reach the viaduct.”

So far as we can gather from a comparison of the facts stated in the opinion in the case just cited and those which appear in the case at bar, the state of things between the west line of Wentworth avenue and the east end of the viaduct is not very dissimilar from that existing between Canal and Mechanic streets west of the viaduct on the west side of the river, and discussed in the opinion in question.

The ordinance of 1879, as we have noted, makes the distinction between the viaduct proper over the tracks and the approach, which may well be said to be “for every practical purpose a street or highway, even though incidentally used as a part of the ascent or approach to the viaduct.”

Inasmuch as the existence of the viaduct required at a considerable cost the filling in permanently of the street through its full width to a higher grade by material of the same or different nature from that used in the rest of the roadway, while the paving and repairing of the ascending roadway after it was built would not differ materially in nature or cost from that necessary if it was level, the distinction between the obligations was, as we have also noted, a natural and apparently equitable one. It was recognized again in an agreement between the City and the Railroad Company, which was made and acted on by both parties in 1887. The City found it necessary to build a new bridge over the river between the two viaducts on 18th street. This compelled the construction of a new viaduct, and the agreement provided that the railroad company should pay one-sixth of the cost of construction of the centre pier of the bridge and, with an exception noted, the entire cost of the construction of the viaduct and eastern approach “to the end of the approach at the west curb line of Wentworth avenue.” The construction which the Railroad Company thus agreed to pay for was accordingly paid for by it to an amount greater than $123,000; but again the distinction was made between the maintenance and repair of the viaduct proper and of the approach. “From the easternmost pier of the bridge to the easternmost pier of the viaduct” the Railroad Company agrees to keep the work so constructed forever maintained and in repair, but it undertakes nothing as to the maintenance and repair of the roadway over the approach, which all lies east of the easternmost pier of the viaduct.

For twenty years the City from time to time made the usual and necessary repairs on this roadway, but never demanded from the Railroad Company either advance or reimbursement therefor.

The City maintains that the agreement of. 1887 thus acted on was not the contract of the City of Chicago, because it is signed only by “G-eorge B. Swift, Commissioner of Public Works,” and that the record contains no evidence of his authority to execute it. Further it maintains that even if the agreement be treated as the contract of the City, it cannot work an estoppel against the City’s claim made under its police power by the ordinance of 1907.

To neither of these positions can we give our assent. The construction of a new viaduct according to prescribed plans and the participation in the cost of the new bridge over the river, aggregating an expenditure of $123,000, were not matters so plainly within the City’s power to command under the right of way ordinance as to render them not the proper subject of special agreement, and it is too late, when such an agreement has been followed by that expenditure and acquiesced in and acted on in other respects by both parties for twenty years, to question the authority of the officer of the City who signed it.

And while it is true that a municipal government “as a representative of the State” cannot, by a contract, “surrender or alienate a strictly governmental function, which it is required to continue in existence for the welfare of the public” (City of Chicago v. Chicago Union Traction Co., 1991 Ill. 2591, p. 270) it is equally true that a municipal corporation may be equitably estopped, not indeed by mere lapse of time, but by circumstances which make it unconformable to right and justice, from exercising a power over the use and management of some particular highway which would otherwise fall within its police powers considered in their broadest aspect.

This is the doctrine adopted by our Supreme Court in cases like Chicago, R. I. & P. R. Co. v. City of Joliet, 79 Ill. 25; Chicago & N. W. R. Co. v. People, 91 Ill. 251; Martel v. City of East St. Louis, 94 Ill. 67, and City of Chicago v. Sawyer, 166 Ill. 290; and these decisions are in harmony with the general course of decisions in other jurisdictions.

We think that in the present case the distinction which the City had hitherto made by ordinance and contract between the duties of the Bailroad Company as to the viaduct involved, and its duties as to the roadway leading thereto from Wentworth avenue, and the action hy both parties in apparent reliance on that distinction, estopped it from enforcing the ordinance of 1907, which preceded the institution of this suit.

We think, moreover, that the same reasoning, viewed generally, which led the Supreme Court- to deny the validity of the ordinance of October 28, 1907, requiring the Illinois Central Railroad Company to reconstruct the pavement of a subway beneath its tracks (People v. Illinois Cent. R. Co., 235 Ill. 374) and the validity of the ordinance of October 21,1907, requiring the Pittsburgh, Fort Wayne & Chicago Railway Company to repave the “approach” to the viaduct on the west side of the river at Eighteenth street (City of Chicago v. Pittsburgh, Ft. W. & C. R. Co., 247 Ill. 319) applies to the case at bar. This view of the matter renders it unnecessary for us to decide the additional question raised by the defendant, whether the ordinance would be in any case invalid as to the roadway west of Wentworth avenue, because it orders as well the repaving of the roadway one hundred and fifty feet east of Wentworth avenue, which it is conceded is no part of the approach; or the further additional question whether recovery was barred because the plaintiff did not show that other railroads named in the ordinance were, according to its terms, served with notice.

We do not understand that the facts are in dispute in this case. We reverse the judgment of the Municipal Court in acordance with our views of the law.

Reversed.


text:
    M. L. Walker et al., Plaintiffs in Error, v. Barnett Bros., Defendant in Error.
    Gen. No. 16,391.
    1. Sales—acceptance which cannot afterwards be repudiated. In an action for the contract price of a car load of grapes, the defendant, by making inspection through his agent and taking away a wagon load, will be held to have accepted them so that he cannot afterwards repudiate and hold the goods for sale on plaintiff’s account.
    2. Sales—immaterial that inspection is not thorough where there is sufficient opportunity. Where the buyer has a reasonable opportunity for inspection before acceptance and breaking of bulk, he cannot complain that inspection was not thorough.
    Error to the Municipal Court of Chicago; the Holt. W. H. Hinebaugh, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and judgment here.
    Opinion filed November 18, 1912.
    Frederick S. Baker, for plaintiff in error.
    Frederick H. Trude, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment attacked by the plaintiffs in error in this cause, who were also plaintiffs below, is in their favor and against the defendant in error. But it is for $313.12, and the plaintiffs maintain that it should be for $430.08, which was the full amount of the claim for which the suit was brought. The judgment was rendered by the Municipal Court of Chicago, in which the cause was tried without a jury. The defendant was sued in that court for the contracted purchase price of a carload of grapes. The carload consisted of 6144 baskets, the purchase price being seven cents a basket. The grapes were sold to Barnett Bros., a corporation, by the plaintiffs, a copartnership under the name of The Walker-Boals Company. They were sold through a broker in Chicago f. o. b. Naples, New York. They were to be “Fancy labeled Catawbas,” and it was agreed that they should be subject to inspection in Chicago.

The car was loaded at Naples by the Walker-Boals Company, who purchased the grapes in wagonload lots from various growers. Mr. Boals, a member of the firm, testified that all the 6144 baskets were of the first-class quality of grapes in sound condition; and that he personally inspected and passed on each wagonload before purchasing the same and saw the grapes loaded into the car. Mr. Walker, the other member of the firm, says he supervised the loading, and that the grapes were loaded in the car as fast as purchased. He says: “The examination made by me was after the car was loaded, when I checked up the car, and those examined were found to be Catawbas in first-class condition and sound.”

Joseph Widner, another witness for the plaintiff, testified that he had been engaged all his life in handling grapes and was engaged by the plaintiffs to load these grapes into the car; that he personally loaded the entire car and inspected each wagonload while he was loading it in the car; that the grapes were all of first-class quality and sound condition, and that there was no appreciable difference in the grapes placed in any part of the car.

The car after being thus loaded was sent to Chicago, It left Naples on November 13,1909, the day of the sale and the loading, and arrived in Chicago on the morning of November 18,1909, on the Wabash Railroad.

William Nagle, an employee of the defendant corporation, who had been inspecting cars of fruit for it for eight or nine years, immediately inspected the grapes at the order of the defendant. He testified that he examined fifteen or twenty.baskets. He says: “The grapes were piled up about four feet high. I opened the car and got in. I looked at the grapes north, south and west, and all the grapes I examined I found in good condition.”

Nagle returned to Barnett Bros, and told Mr. Barnett, the president of the defendant corporation, that the grapes were all right. Thereupon Barnett Bros. sent down a wagon to the car for a load of the grapes. One wagonload, about 500 baskets, was taken to the store of. Barnett Bros, on November 18, reaching there about noon. Fifty baskets, which had been sold to the Shafton Company before arrival, were at once delivered to that Company, and other baskets were sent to a buyer in Evanston. Mr. Shafton of the Shafton Company met Mr. Barnett of the defendant Company and expressed dissatisfaction with his purchase on account of the quality of the goods. Mr. Barnett directed their return by Shafton, and says that there were mouldy grapes among them. He further says: “I immediately told the boys to pack them” (the whole wagonload) “together and set them aside, not offer them for sale, and telephoned Mr. Case, the broker, that we could not accept the car of grapes, that they were there subject to his order.” Those baskets sent to Evanston, Mr. Leffler, the secretary of Barnett Bros., says he ordered returned and that they were returned. This seems inconsistent, however, with the statement and receipts introduced in evidence by the defendant. In this statement the receipt of $25.00 from a sale of twenty-five boxes on November 18th is noted.

Mr. Barnett also appears to have requested Mr. Shafton and two other fruit dealers having expert knowledge of grapes to look at the grapes brought in this first wagonload on the 18th of November to the store of Barnett Bros., and they confirm his statements and those of Mr. Leffler that the grapes taken as a whole were not of first quality, but poor, in some cases mouldy and not properly to be described as “fancy labeled Catawbas.”

The Walker-Boals Company drew on Barnett Bros, for $430.08 on November 13th, the day of the shipment. The draft was held in Chicago until the arrival of goods, but on the 22nd was refused and ordered returned by Barnett Bros., as shown by memoranda on its face and back.

In the meantime Barnett Bros, requested permission of the Railroad Company to return to the car the grapes taken out and reject the car as not up to contract. The Railroad Company refused to permit this without a bond of indemnity. Thereupon Barnett Bros, on November 20th telegraphed to the Walker-Boals Company.

“Crapes here. Subject to your order. Quality not as ordered. Will handle for whomsoever it may concern unless disposition is given within twenty-four hours. ’ ’ •

To which telegram the plaintiffs replied by wire on November 22nd: “Its your car of grapes, please pay draft,” and on the same day wrote the defendant confirming their telegram and stating their view of the transaction, as follows:

<<* * * ip^-g car wag g0¡¿[ at 7e F. O. B. The stock was fresh packed and in nice condition at the time of shipment. * * * If there has been any deterioration in transit it is up to you to stand same, as they were your grapes from the time of shipment. On the other hand we understand that you sent your man to inspect the car and evidently f<pund same all right at the time, as you drew out one load of same. It would seem to us as though this would constitute an acceptance of the car on your part.”

The defendant company allowed the car to remain on the track after this for some time, but took eventually in instalments all the grapes from the car and sold them at various prices and at various times up to December 20th at an average price of 8% cents a basket. From the amount of the sales, $506.38, it then, on the theory that it was handling the grapes for the plaintiffs, deducted $142.63, which it had paid for freight, car service and cartage, and also $50-.63 as its commission for selling. This left $313.12 which it admitted belonged to the plaintiffs. This was the amount for which the court below rendered judgment.

We think this was erroneous and that the judgment should have been for $430.08, as maintained by the plaintiffs.

We think that the breaking of the bulk and taking the goods by the defendant, after the inspection by its agent and employee, constituted an acceptance of them which it could not afterward repudiate and hold the goods for sale on the plaintiffs’ account.

If, as the defendant’s affidavit of defense in the Municipal Court charged, the plaintiffs, in order to defraud the defendant, in loading said car placed at the door good grapes and in the interior poor grapes, there might be ground for the contentions of defendant, but there is no evidence of any such fraudulent conduct. The evidence is adverse to that hypothesis. The inspection may not have been a thorough one, but it was made by the defendant’s agent according to his chosen method. The question is not whether there actually was a thorough inspection, but whether there was a reasonable opportunity for such an inspection before the acceptance and breaking of bulk. See, for example, Gaylord Mfg. Co. v. Allen, 53 N. Y. 515, which is but one of numberless cases stating this doctrine of the law of sales.

We think the judgment should clearly have been for $430.08. The cause was tried without a jury. We shall reverse the judgment of the Municipal Court and enter judgment here for that amount, with costs for the plaintiffs in this court and the Municipal Court.

Reversed and judgment here.