text:
    Stanislaw Jvanowski, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 18,451.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 20, 1913.

      Abstract of the Decision.
    1. Mines and minerals, § 90

      —when a demand for props may be made of driver. Where there is a rule that the men are required to make their demand for props of the manager, a demand made upon the driver for such props is sufficient where there is a custom established in the mine to ask the driver therefor.
    2. Mines and minerals, § 156

      —when evidence of custom to demand props of driver admissible. Evidence of a custom to demand props of the driver, instead of the manager, is admissible though, such custom is not pleaded.
    3. Mines and minerals, § 194

      —when refusal of requested instruction reversible error. In an action for injuries sustained for wilful failure of mine owner to furnish props, where plaintiff relies on his demand upon the driver therefor in accordance with an established custom, refusal of a requested instruction informing the jury as to the legal effect of the evidence relating to the alleged custom, field error where such requested instruction was not covered by other instructions given.
    Statement of the Case.
    Action by Stanislaw Jvanowski against Spring Valley Coal Company to recover for personal injuries sustained by plaintiff while employed as a miner in . defendant’s mines, on account of defendant’s wilful failure to supply plaintiff with props. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.
    Mastín & Sherlock, for appellant; Frank Crozier, of counsel.
    Johnson & Belasco, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    George Gough, Defendant in Error, v. A. W. Bensinger, Plaintiff in Error.
    Gen. No. 18,472.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict affirmed on conflicting evidence. A verdict for a plaintiff on conflicting evidence will be affirmed where the court finds no fact or circumstance from the record which gives more weight to defendant’s denials than to plaintiff’s assertions.
    2. Master and servant, § 88

      —when entitled to attorney's fees without proving service of demand. A plaintiff suing for wages is entitled to an allowance for attorney’s fees without affirmative proof that a written demand was served three days before the bringing of suit, where such fact is alleged in the verified statement of claim and is not denied by the affidavit of merits of defense.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    Statement of the Case.
    Action by George Gough against A. W. Bensinger for wages. From judgment against defendant for $46.50 and $10 attorney’s fees, taxed as costs, defendant brings error.
    Goodman, Frank & Colbert, for plaintiff in error; Charles Goodman, of counsel.
    Stahl & LeWald, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    M. E. Graves, Defendant in Error, v. George A. Neeves, Plaintiff in Error.
    Gen. No. 18,500.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 184

      —when accommodation indorser is not guarantor of maker. Where an indorser of a promissory note writes his name underneath the name of the payee so that a bank will discount the note for the payee, and is obliged to pay the amount due the hank and receives the note, he is the owner by purchase from the bank, can recover against the maker and is not a mere volunteer as being a guarantor without the request of the maker.
    2. Bills and notes, § 184

      —when guarantor by indorsement can recover against maker. If an accommodation indorser of a note for the payee is a guarantor, on his being obliged to pay the amount due a discounting bank and receiving the note, the payment is in discharge of his own obligation and not of the maker’s, and he takes title by assignment with right to recover against the maker.
    3. Bills and notes, § 477

      —when attorney’s fees are recoverable. Where a promissory note provides for attorney’s fee if it is not paid when due, it is proper to include the amount thereof in the finding and judgment.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    Statement of the Case.
    Action by M. E. Graves against George A. Neeves on a promissory note. From a judgment for plaintiff for $138.37, which included $25 attorney’s fees, defendant brings error.
    George A. Neeves, Jr. and Leland K. Neeves, for plaintiff in error.
    Charles S. McNett, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Northwestern University, Defendant in Error, v. John Hughes, Plaintiff in Error.
    Gen. No. 18,551.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 94*—when occupant under voidable lease is tenant from month to month. A tenant entering into possession and paying rent monthly under a lease voidable under the statute of frauds is a tenant from month to month and is entitled to a thirty days’ notice to quit.
    2. Landlord and tenant, § 503

      —when verdict for possession may be directed. Where it appears in an action of forcible detainepthat the occupant is in possession under a lease voidable under the statute of frauds and is a tenant from month to month and thirty days’ notice has been given, the question is one of law and a verdict for the plaintiff may be directed.
    3. Frauds, statute of, § 96

      —When part performance of invalid contract will not avoid statute. Where a written lease under seal for five years is signed by the lessor’s agent, having only verbal authority, receipt of rent by the lessor amounts to nothing more than a partial performance of a contract invalid under the statute of frauds, which will not, in a court of law, avoid the statute.

      Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    Statement of the Case.
    Action of forcible detainer by Northwestern University, a corporation, against John Hughes to recover possession of leased property. From a judgment of possession for plaintiff, defendant brings error.
    Montgomery, Hart & Smith, for plaintiff in error.
    F. L. Salisbury and M. Marso, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

4. Frauds, statute of, § 41*—when want of authority of agent will not prevent recovery of leased property. In the absence of any fiduciary relations between parties, neglect to notify a tenant that the agent of landlord had no written authority to execute a lease for five, years is not a fraud, and coupled with the fact that the lessor supposed the lease was for one or two years will not support a contention that to permit a recovery of the possession of the premises, after thirty days’ notice to the tenant as a monthly tenant under an invalid lease, permits the statute of frauds to be used to perpetrate a fraud.

5. Principal and agent, § 102*—duty to ascertain agent’s authority to sign a lease. Party dealing with an agent of a lessor is bound to take notice that the agent’s authority to sign lessor’s name to a lease for five years must be in writing.

Mr. Justice Gridlby took no part in the decision of this case.


text:
    Anton Jaggle, Plaintiff in Error, v. Otto Nagle, Defendant in Error.
    Gen. No. 18,610.
    1. Municipal court of Chicago, § 26

      —judge who must authenticate stenographic report. By analogy with Practice Act, § 81, J. & A., if 8618, application to have the stenographic report of the proceedings at the trial of a cause in the Municipal Court of Chicago signed and filed must be made to the judge who entered the judgment, unless he is sick, dead or otherwise disabled.
    2. Municipal court of Chicago, § 26

      —when judge is not disabled from authenticating stenographic report. That the judge who entered a judgment in the Municipal Court of Chicago is presiding in another branch of the court at the time of an application to have the stenographic report of proceedings authenticated is not such disability as is contemplated by the Practice Act, § 81, J. & A., If 8618, as would excuse not making the application to him.
    3. Municipal court of Chicago, § 29

      —judicial notice not taken of rules of court. The Appellate Court cannot take judicial notice of the rules of the Municipal Court of Chicago.
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.

      E. A. Aborn, for plaintiff in error.
    Lorenz & Reddy, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error was sued out to reverse a judgment of the Municipal Court in a suit of the fourth class. A motion has been interposed to strike the stenographic report from the record and files and to affirm the judgment. This motion was reserved to the hearing.

The transcript of the record shows that the case was heard and the judgment entered on May 3, .1912, by Rufus F, Robinson, County Judge of Henderson County, then holding a branch of the Municipal Court at the request of the judges of said court. On May 31, 1912, an order was entered extending, for thirty days, “the plaintiff’s time within which to file a bill of exceptions.” On July 2, 1912, a document called “a correct stenographic report of the proceedings at the trial of said cause” was presented to Judge Martin of the Municipal Court, and he indorsed upon the same the following: “It appearing that Judge Robinson, the Judge who tried the above ease, is sitting in the criminal branch of the said court in second district thereof, I hereby certify that the foregoing document was presented to me in open court to be signed and placed on file in the above entitled cause, this- 2nd day of July, 1912. James C. Martin, Judge of the Municipal Court of Chicago.” On July 17, 1912, the document so indorsed was certified by Judge Robinson to be a correct stenographic report of the proceedings at the trial. Immediately above his signature to the certificate are the words “signed nunc pro tunc as of July 2nd, 1912. Dated this 17th day of July, 1912.” Be-' neath his signature appears the clerk’s file mark of July 17, 1912. The question raised by the motion to strike is whether a stenographic report which is thus authenticated meets the requirements of the sixth paragraph of section 23 of the Municipal Court Act. (J. &A. ft 3335).

If the document in question had been presented on July 2, 1912, to Judge Robinson and he had then marked thereon the fact and date of such presentation, then, under the authority of Hill Co. v. U. S. Guaranty Co., 250 Ill. 242, and the cases therein cited, Judge Robinson would have had the right, within a reasonable time thereafter, to sign the document and place it on file nunc pro tunc as of the date of such presentation. But it was not presented to Judge Robinson within the time limited, and the only reason given for not presenting it to him for his signature is the statement of Judge Martin above quoted. The sixth paragraph of section 23 of the Municipal Court Act makes it “the duty of the judge by whom such final order or judgment was entered” to sign and place on file either a correct statement of the facts, or a correct stenographic report of the proceedings, upon .application made within thirty days after the judgment is entered or within such further time as may be allowed by the court upon application therefor within said thirty days. The language of this provision of the statute clearly implies that the “application” to have such a document signed and placed on file shall be made to the judge whose duty it is, under the statute, to grant such an application; that is, to the judge “by whom the judgment is entered.” The reason for this is apparent. Such an .application must necessarily be made to the judge, who, from his personal knowledge of the facts, will be able to certify to the correctness of the document submitted: No judge other than the judge who heard the case and entered the judgment is in a position to so certify. By expressly imposing the duty to act upon a particular judge, the statute impliedly takes from all other judges of the court the power to act.

To meet a somewhat similar situation that occasionally arises in the Circuit Courts, section 81 of the Practice Act (J. & A. jf 8618) was adopted in 1907. It is possible that under some circumstances, that section would apply to' proceedings in the Municipal Court. (See section 19 of the Municipal Court Act, J. & A. 3331.) That section of the Practice Act cannot be made to apply in this case, however, for the reason that it appears from the document filed in this case that at the time of its presentation, Judge Robinson, the judge by whom the case was tried, was neither dead, sick nor otherwise disabled, but was then presiding in another branch of the same court. No reason appears why the stenographic report could not have been presented to him, other than the suggested inconvenience of going from the first to the second district in the city of Chicago. That fact does not present any such disability as is contemplated by section 81 of the Practice Act. It would appear from the argument of appellant’s counsel that he relied on certain rules of the Municipal Court. These rules are' not in the record, and under a recent decision of the Supreme Court, we cannot take judicial notice of them. Sixby v. Chicago City Ry. Co., 260 Ill. 478.

We conclude, therefore, that the stenographic report was not properly authenticated in accordance with the Municipal Court Act, and the motion to strike it from the record will be allowed; and no error being shown to exist in the remainder of the record, the judgment must be affirmed.

Affirmed.


text:
    Anton Jaggle, Plaintiff in Error, v. P. G. Kaiser, Defendant in Error.
    Gen. No. 18,611.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robixsox, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    This case is controlled by the decision in Jaggle v. Nagle, No. 18,610, ante, p. 237.
    E. A. Aborn, for plaintiff in error.
    Lorenz & Reddy, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.


author: Mr. Justice G-ridley

text:
    James Taylor and Mildred J. Taylor, Appellees, v. Simon Hamberg, Appellant.
    Gen. No. 18,426.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook County; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    Rehearing denied December 4, 1913.
    Statement of the Case.
    Action for fraud and deceit by James Taylor and Mildred J. Taylor against Simon Hamberg for damages sustained from false and fraudulent representations on the sale of land. From a judgment for plaintiffs for $24,212.63, defendant appeals.

      Abstract of the Decision.
    1. Vendor and purchaser, § 351

      —when election between' different theories of fraud is not required. Where a vendee’s declaration against a vendor in an action for fraud proceeds on three theories for a recovery, false representations as to the character, quality and value of the land, false representations as to incumbrances thereon and false representations as to existence of title, the theories are not inconsistent as making applicable different rules as to the measure of damages; and plaintiff will not be required to elect between the theories; even if different rules of damages obtained, an election would not be required.
    2. Vendor and purchaser, § 348

      -—-measure of damages in fraud by vendor. In an action for fraud in the sale of land, where the representations are as to the character, quality and value of the land, the measure of damages is the difference between the actual value of the land and what it would be worth if the representations had been true, together with lawful interest on such difference.
    3. Vendor and purchaser, § 348

      —measure of damages in fraud by vendor. In an action for fraud in the sale of land, where the false representation is that there is no incumbrance on the land, the measure of damages is the amount of the incumbrance, if less than the value of the land.
    4. Vendor and purchaser, § 348

      —measure of damages in fraud by vendor. In an action for fraud in the sale of land where the false representation is regarding the existence of title, which title totally fails, the measure of damages is no different than where other false representations are made; it is not the price paid by the purchaser of the land nor the value of the consideration given him therefor.
    5. Vendor and purchaser, § 355

      —evidence admissible in fraud by vendor. In an action for fraud to recover damages for false representation in the sale of land as to the existence of title, which title has totally failed, a decree in a receivership proceeding decreeing a certain sum to be a charge upon the land and evidence that no redemption of the lands had been made in accordance with its terms, are competent.
    Wheelock, Shattuck & Newey, for appellant.
    Musgrave, Oppenheim & Lee, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice G-ridley

delivered the opinion of the court.

6. Vendos and purchaser, § 357*-—when improper instruction on fraud will not reverse. In an action for fraud as to making false representations in the sale of land, an instruction for the plaintiff seemingly directory in form and objectionable in ignoring that the representations must have been material and relied upon will not reverse where the instruction could be construed as not directory, was one of a series, was covered by other instructions and there was no real dispute of the fact that plaintiff did rely upon the representations.


author: Mr. Justice Gridley Mr. Presiding Justice Mc Surely:

text:
    William McComb, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,434.
    1. Municipal corporations, § 1225

      —when notice of claim for injury sufficient. Written notice of claim for injury required by R. S., 70, § 7, J. & A. V 6190, to he filed in the offices of the city attorney and the city clerk within six months from the date of the injury, held sufficiently to designate the place of the accident, where it describes the place “at or near the corner of 39th street and Campbell avenue” and also states that the plaintiff was taken charge of by the police of the city and was brought in a patrol wagon to a certain hospital.
    McSurely, P. J., dissenting.
    2. Municipal corporations, § 1098

      —when evidence sufficient to sustain verdict. In an action against a city for personal injuries sustained by plaintiff by falling into a hole of frost and snow in a sidewalk, a verdict for plaintiff held not against the weight of the evidence.
    3. Damages, § 124

      —when verdict for injury to leg not excessive. Verdict for $3,000 for personal injuries, held not excessive where both bones of the right leg were fractured and a portion of one of them protruded through the flesh, and the evidence shows permanent injury in the leg.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.

      William H. Sexton and N. L. Piotrowski, for appellant; John L. Fogle, of counsel.
    James A. Russell, for appellee; William H. Holly, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook county for three thousand dollars rendered against the City of Chicago in an action for damages for personal injuries received by William McComb, plaintiff below, from a fall on the sidewalk at the southeast corner of 39th street and Campbell avenue, in said City.

According to the testimony of the plaintiff, on January 29, 1910, about 5:30 o’clock in the afternoon, he was walking east on the south side of 39th street and was crossing Campbell avenue over the crosswalk used by pedestrians. Just before reaching the sidewalk on the east side of Campbell avenue, and on the south side of 39th street, he put his left foot on the curbstone and made a step forward with his right foot, when his “heel hit the grade where they had backed the curbstone,” and he slid into “a hole of frost and snow,” and fell on his right leg, and “the foot went south and the bone came north.” It was. “dark or dusk” at the time and the wind had blown snow off of the asphalt street onto the sidewalk. Shortly after plaintiff had fallen, two men came to his assistance and they subsequently called a patrol wagon, and plaintiff was taken to the county hospital, where he remained until March 8th following. Both bones of his right leg were fractured and a portion of one of them protruded through the flesh. There was evidence tending to show that he had sustained a permanent injury in his leg which interfered with his performing manual labor as formerly. The evidence as to the condition of the sidewalk where plaintiff fell was conflicting. The testimony of plaintiff’s witnesses tended to show that several months prior to the accident the City had had a new asphalt pavement on 39th street, which was from eighteen to twenty-four inches higher than the former street level; that there was a hole or depression in the cinder sidewalk south of the south curb of 39th street and immediately east of the east curb of Campbell avenue; that this hole or depression was about six feet in length along Campbell avenue and about two feet deep, and that this condition had existed for three or four months prior to the accident. Several witnesses called by the City testified that there was no “hole” in the cinder sidewalk. One of these witnesses, however, testified that “stepping from the street onto the sidewalk there is a slight depression,” and another testified that there might have been at the time “a hill or a slope” where one steps off the curb. Several witnesses for the City, including the police officer in charge of the patrol wagon which conveyed plaintiff to the hospital, testified that plaintiff was in an intoxicated condition. Plaintiff, however, testified he had not been drinking that day and in this he was corroborated by the testimony of other witnesses.

It is urged by counsel for the City that the verdict is clearly against the weight of the evidence, and is excessive. In view of the conflict in the testimony on material points we think that the case was one peculiarly within the province of the jury to decide. They saw the witnesses and observed their conduct and demeanor while testifying. We cannot say that the verdict is against the weight of the evidence, nor can we say that the verdict is excessive.

The main point relied upon by counsel for the City as warranting a reversal of the judgment is that the written statement required by the statute (chapter 70, § 7, Hurd’s St. J. & A. j[ 6190) to be filed in the offices of the city attorney and the city clerk, within six months from the date of injury, failed to sufficiently designate the place of the accident. The statute provides inter alia that said written statement shall give “the date and about the hour of the accident” and “the place or location where such accident occurred.” At the trial a written notice, served on the City on June 16, 1910, was received in evidence over objection, and counsel for the City moved that plaintiff’s suit be dismissed for want of a sufficient notice, which motion was denied. The notice is as follows (italics ours):

“Chicago, June 15, 1910.
To the City of Chicago:
(A Municipal Corporation of Cook County, Illinois.)
You are hereby notified that one William McComb of No. 4101 Artesian Avenue in the City of Chicago, County of Cook and State of Illinois, sustained injuries to his person by being injured at or near the corner of 39th Street and Campbell Avenue in said City of Chicago, on, to-wit: the 29th day of January, A. D. 1910 at about 5:30 p. m., in the afternoon of said day, and ivas taken in charge of by the police of the City of Chicago and brought in a patrol wagon to the Cook County Hospital and was placed in one of the wards, known as Ward No. 9. The doctor’s name is unknown to said William McComb and on account of said injuries, he claims damages against the said City of Chicago.
James A. Russell,
Atty. for William McComb.”

It is argued that the statement in the notice that plaintiff was injured “at or near the corner of 39th street and Campbell avenue” is not sufficiently definite because this description of the place applies equally to the four corners formed by the intersection of the two streets.

It is well settled by the decisions of our Supreme Court that the statute is mandatory, and that the giving of the notice must be alleged and proved and is a condition precedent to the right to maintain the suit against the municipality. Erford v. City of Peoria, 229 Ill. 546, 553; Walters v. City of Ottawa, 240 Ill. 259, 262; Ouimette v. City of Chicago, 242 Ill. 501, 506. In the Ouimette case it was decided that a notice giving the date of the accident as occurring on November 10, 1905, where the uncontradicted proof showed that it took place on October 10th, was in effect the same as if no date at all had been given and was insufficient to permit a recovery by plaintiff. In the present case there is no question as to date of the accident. The proof showed that the accident occurred on the day and about the hour mentioned in the notice. The sole question is as to whether the place of the accident is stated with sufficient definiteness. Our attention has not been called to any decisions of our Supreme Court where it has been decided what is or what is not a sufficiently definite notice under the statute as to the place of the accident, and the decisions of the courts of other states in cases arising on similar statutes are somewhat conflicting. In Karczenska v. City of Chicago, 239 Ill. 483, it was held that where the declaration averred that a sidewalk accident occurred on “Elston avenue, near, to-wit, Webster avenue,” proof that the injury occurred on Elston avenue, nearer to either of two other streets than to Webster avenue, was not a fatal variance. The Court said (p. 485): “The word ‘near’ is a relative term, which depends for its meaning, in the particular case, upon the surrounding facts and circumstances. The appellant elected to go to trial without requiring a more definite description of the place. The evidence tended to prove the allegation of the declaration, and the court properly overruled the objection of a variance.” In Wikel v. City of Decatur, 146 Ill. App. 51, where plaintiff recovered a verdict and judgment against, the city for injuries resulting from a fall upon a defective sidewalk, it was contended that the notice was insufficient in that it did not designate the place where the injury occurred with reasonable certainty. The notice designated the sidewalk in question as “being situate upon the west side of a certain public street originally laid out and designated as Chisholm street but now commonly known as and called East avenue; said street being between Stone and Stock streets in the said city, and that the place where the said sidewalk was out of repair was at a place where a certain alley intersects said street between the Wabash railroad right of way and East Eldorado street and near the residence of the undersigned, Amanda J. Wikel,” which is No. 541 East avenue in said city. The Appellate Court of the third district held that the sufficiency of the notice was a question of law for the court, that the objection to the notice urged by counsel was “hypercritical,” and that a description of the place of the accident “is sufficient if it will enable the municipal authorities to ascertain the place by the exercise of reasonable diligence, and such description may be by reference to particular buildings, or to another street, or to natural objects. 15 Am. & Eng. Encyc. of Law (2nd Ed.) 485.” In 28 Cyc. 1454, it is said: “A reasonable or substantial compliance with the terms of the statute is all that is required; and where an effort to comply with such requirements has been made and the notice, statement or presentation when reasonably construed is such as to accomplish the object of the statute, it should be regarded as sufficient. In accordance with this principle, such notice or presentation is to be construed with liberality.” In Thompson on Negligence (vol. 5, sec. 6330) it is said: “It is manifestly sufficient if, in such a notice, the place where the accident took place is described so as to identify it with reasonable certainty, and so that the proper investigating officer can find it from the description, aided by a reasonable inquiry, and that it is not calculated to mislead.” In Ellis v. City of Seattle, 47 Wash. 578, it was stated in the notice that the accident was caused by the front wheels of plaintiff’s'wagon going into a hole ‘on the west side of Westlake avenue, on and near the west trackage of the Seattle Electric Company and near No. 228 Westlake avenue” in said city of Seattle. On the trial it was ascertained that the accident occurred on the east side of the street, instead of the west side, and that the building known as No. 228 Westlake avenue was on the east side of the street. The trial court dismissed plaintiff’s suit on the ground that the notice was not reasonably sufficient to notify the city authorities of the place of the accident. The Supreme Court reversed and remanded the case, saying: “This court has uniformly placed a liberal construction upon the requirements of such notice, holding that the notice has a common-sense object, viz., to apprise the officers of the municipality of the location, so that it might be examined with a view to preparing a defense to the action if it was thought a defense should be made; that if it directs the attention of said officers with reasonable certainty to the place of the accident, the requirements of the notice have been met; and that it was not intended that the terms of the notice should be used as a stumbling block or pitfall to prevent recovery by meritorious claimants. ’ ’

In Buchmeier v. City of Davenport, 138 Iowa 623, it appears that the motion for a directed verdict in favor of the city was sustained on the ground that the notice did not sufficiently describe the “place where the injury occurred” as required by the statute. The notice stated that plaintiff was injured (on a date named) “by falling on a crossing at Ninth and Warren streets, in the said city, the said crossing being at the time, very icy and in a dangerous condition. ’ ’ The Supreme Court, in reversing the judgment, said: “A notice which in fact points out the place of the accident with sufficient definiteness to reasonably enable the officers of the city to investigate the conditions under which it is alleged to have happened sufficiently complies with the purpose of the statute. * * * On the face of it the notice is somewhat ambiguous, as it does not indicate whether the accident occurred while plaintiff was on one of four sidewalk crossings which might have existed at the intersection of said streets. But it does not appear that there were four sidewalk crossings, and it has frequently been held that the sufficiency of the notice must be determined in view of the circumstances.” (Citing cases.)

In the present case the proof showed that the accident happened on the cinder sidewalk at the southeast comer of the two streets; that the witness Matthews saw plaintiff lying there and with the assistance of another man picked him up and leaned him against a nearby tree until the patrol wagon came; that two police officers of the City on said wagon found him.at said southeast corner and conveyed him to the hospital; and that one of said officers, in accordance with Ms duties, shortly thereafter made a report of the accident to the City. One of the City’s witnesses, Nulty; who was in the grocery business at the northwest corner of the two streets, testified that at the time of the accident there was a cement sidewalk “on all corners with the exception of the intersection of the southeast comer,” where there “was a cinder walk, it was filled in with cinders or stuff taken off the streets.” The written notice given to the City in the present case, in addition to describing the place of the accident as “at or near the corner” of the two streets, stated that plaintiff “was taken charge of by the police of the City of CMcago and brought in a patrol wagon to the Cook County Hospital.”

In Sargent v. City of Lynn, 138 Mass. 599, the place of the accident was stated in the notice to be “at the corner of Washmgton and Oxford streets.” It was further stated that plaintiff was injured “in consequence of the defective condition of the sidewalk at said point, the concrete having been taken up part of the way and the remainder left, which stood up above the other part of the walk.” At the trial the lower court ruled that the notice was insufficient and entered judgment for the city. In reversing the case the Supreme Court held that the omission to mention the particular corner did not render the notice invalid, for the reason that the minute description of the nature of the defect contained in the notice was an aid to the city in locating the place of the accident.

In Carr v. Ashland, 62 N. H. 665, 669, it is said: “If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can, by the exercise of reasonable diligence, and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient because it fully answers the purpose of the statute.”

Other cases may with propriety here be cited, viz: Connor v. Salt Lake City, 28 Utah 248, 260; City and County of Denver v. Perkins, 50 Colo. 159; Fuller v. Inhabitants of Hyde Park, 162 Mass. 51; Hutchings v. Inhabitants of Sullivan, 90 Me. 131, 138; City of Lincoln v. O’Brien, 56 Neb. 761, 770; Brown v. Town of Southbury, 53 Conn. 212.

In view of all of the facts stated in the notice to the City in this case, and under the circumstances, we think that the proper officials of the City could from this notice, by the exercise of reasonable diligence, have ascertained at which of the four corners the accident occurred, and, under the prevailing current of the authorities, we are of the opinion that the notice was not so insufficient in the designation of the place of the accident as to warrant a dismissal of plaintiff’s action.

The statute of this State does not require that the notice to the municipality should state the cause of the injury and the nature thereof, as is required by the statutes of some States, and we are not unaware of certain cases, decided by the courts of appeal of those other States, which at first blush seem to have construed the requirements, of those statutes as to the designation of the place more strictly in favor of the municipality, but on careful examination of some of those cases it will be seen that other deficiencies in the notice than that of the designation of the place were deemed of controlling importance. Among these cases may be mentioned Benson v. City of Madison, 101 Wis. 312; Barribeau v. City of Detroit, 147 Mich. 119, and Lee v. Village of Greenwich, 48 App. Div. (N. Y.) 391. In the Benson case supra, the notice, in addition to describing the alleged defect in the crosswalk, stated its location to be “on the south side of State street at the intersection of State and Fairchild street,” and the Court held that the notice was insufficient. The Court said on page 317 (italics ours): “This court has been very liberal in upholding such notices where it ivas evident that the municipal authorities had not been deceived or misled thereby. (Citing cases.) But there is a limit beyond which we cannot pass. The notice in this case is most vague, uncertain, and indefinite, when applied to the facts proven on the trial and found by the jury. * * * This description of the location might have been sufficient if the remainder of the notice had described the insufficiency in such terms as to enable the city authorities to determine on which side of Fairchild street it was to be found.” In the Barribeau case, supra, the notice, in addition to describing the nature of plaintiff’s injury, stated that she “was injured by falling on a defective and improperly constructed sidewalk at corner of Howard and Twenty-first streets.” It will be seen that in this notice the plaintiff did not state wherein the sidewalk was defective or improperly constructed. At the trial, objection was made to the sufficiency of the notice on .this ground, and, also, on the ground that the place where the injury occurred was not located with sufficient certainty, and the trial court sustained the objection and directed a verdict for the Qity. On appeal this action was affirmed, the Court saying (147 Mich. p. 125, italics ours): “In determining the sufficiency of the notice, excepting perhaps as to the time of the injury, the whole notice and all of the facts stated therein may be used and be considered to'determine whether it reasonably apprises the officer upon whom it is required to be served of the place and the cause of the alleged injury. The nature of the defect stated may aid in locating the place, and the place may be stated with such particularity that a very general statement of the defect (cause of the injury) may be aided. But to be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice itself. * * * When parol evidence is required to determine both the place and the nature of the defect, a reasonable notice has not been given to the city.” In the Lee case, supra (48 App. Div. 391), the notice given by plaintiff to the village stated the time of the injury to be “on or about March 6, 1897,” and the place of the injury as “on the street popularly known as ‘Barber avenue’ in said village,” which street, the proof showed, was over a quarter of a mile long, and had a sidewalk all the way on one side of the street and part of the way on the other side. The notice stated the nature of the defect in the sidewalk in most general terms, viz: “that because of ice made to form, accumulate, and continue upon the sidewalk of said street through the negligence * * * of said corporation, so that the same became dangerous,” plaintiff was injured, etc. The lower court sustained a motion to dismiss the suit because of the insufficiency of the notice, and this ruling was sustained on appeal on the ground, not only that the place of the accident was not stated with sufficient definiteness, but also that the time and nature of the defect was not sufficiently stated. In Murphy v. Village of Seneca Falls, 57 App. Div. (N. Y.) 438, that portion of the decision in the Lee case as to the place of the accident mentioned in the notice was distinguished. In said Murphy case the statement in the notice as to the place was “on the west side of Bridge street, in said village, between William street and Haigh street, and in front of or near the premises owned and occupied by James Gilmore,” and this was held to be sufficient, taken in connection with the further allegations of the statement as to the time and circumstances attending the accident. See also Werner v. City of Rochester, 77 Hun (N. Y.) 33, affirmed, 149 N. Y. 563; Beyer v. City of North Tonawanda, 183 N. Y. 338; Romanowski v. City of Tonawanda, 127 App. Div. (N. Y.) 814.

But counsel for the City contend that the case of Reichert v. City of Chicago, 169 Ill. App. 493, decided by branch “B” of the Appellate Court for the first district, is decisive of the point here raised. In that case, upon the trial , the city objected to the notice because'it did not sufficiently state the place of the accident. The trial court sustained the objection and entered judgment for the city, which judgment was affirmed. The notice stated that Reichert “was injured by a defective street lamp of the said city * * * at and near the intersection of La Salle street with Madison street, in the said city of Chicago.” The Court in its opinion seemingly based its decision largely on the Benson, Barribeau and Lee cases above referred to. Furthermore, we think that the other facts stated in the notice in the present case as above mentioned, in addition to the statement that the place of the accident was “at or near the corner of 39th street and Campbell avenue,” distinguished the Reichert case supra, from the present case.

The judgment of the Circuit Court is affirmed.

Affirmed.

Dissenting opinion by

Mr. Presiding Justice Mc Surely:

I am of the opinion that the notice which was given to the City does not comply with the statute requiring such a notice to give “the place or location where such an accident occurred;” to say merely that the accident occurred “at or near the comer” of two intersecting streets neither indicates which of the four comers nor whether the accident occurred on the sidewalk, on the street or from a falling object erected in or suspended over the sidewalk or street, and therefore, fails to meet the requirement of the statute. I must respectfully dissent from the majority opinion.


author: Mr. Justice Gridley

text:
    Arthur B. Wright, Appellee, v. John P. Wilson et al., Appellants.
    Gen. No. 18,446.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Costs, § 64

      —decree construed as to award of solicitors’ fees. A decree in a proceeding to confirm a settlement made between the parties in a will contest, construed as awarding solicitors’ fees directly to the solicitors.
    2. Costs. § 64

      —when decree awarding solicitors’ fees not subject to collateral attack. Attorneys accepting an allowance of solicitors’ fees and giving a receipt therefor cannot be heard to say in a collateral proceeding that the decree was erroneous in awarding same to the solicitors instead of to the parties.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 20, 1913.
    Statement of the Case.
    Action by Arthur B. Wright against John P. Wilson, Nathan G. Moore and William B. Mcllvaine, as co-partners engaged in the practice of law under the firm name of Wilson, Moore & Mcllvaine, to recover plaintiff’s share of solicitors’ fees allowed by a decree in a proceeding in which plaintiff was associate counsel. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendants appeal.
    Scott, Bancroft & Stephens, for appellants; Frank H. Scott and Lester L. Falk, of counsel.
    C. H. Poppenhusen, Joseph L. McNab and E. R. Johnston, for appellee; Elbridge Hanecy and S. S. Gregory, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

3. Costs, § 64*-—when an order .for solicitors may direct payment to solicitors directly. Decree in a chancery proceeding to confirm a settlement of an estate by the parties to a suit in a will contest may award solicitors’ fees payable directly to the solicitors of the complainants from the fund, where the services of the solicitors were for the benefit of the fund and all parties in interest.

4. Appeal and error, § 487*—when objection to special interrogatories not preserved. Objection to action of court in submitting interrogatories to the jury, not preserved for review unless urged in the trial court.

5. Appeal and error, § 1521*—when submission of special interrogatories harmless. Error of court in submitting special interrogatories to the jury on immaterial facts, held not cause for reversal.

6. Appeal and error, § 499*—when objection to allowance of solicitors’ fees must be urged. In an action by an attorney for his share of solicitors’ fees awarded by a decree, objection that plaintiff had from time to time been paid for services under a contract and should not be entitled in equity to additional pay from other persons with whom he had no contractual relations, merely because those persons happened to be benefited thereby, must be urged in the chancery court at the time the allowances were made.


author: Mr. Presiding Justice Graves

text:
    Harley Meek, by Mattie Gerbaum, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,034.
    1. Negligence, § 112

      —when negligence of driver of vehicle not imputable to occupant. Where a boy riding on the tailboard of a wagon is injured by a street car colliding with the wagon, the negligence of the driver in turning across the street in violation of a city ordinance at the time of the accident, cannot be imputed to the boy, the relation of master and servant not existing between the boy and driver and the boy having no control over the driver.
    2. Damages, § 123

      —when not excessive. Verdict for ten thousand dollars for injury to a leg, making it shorter than the other, held not excessive.
    3. Appeal and error, § 833

      —extension of time for filing bill-of exceptions. The court may, at a term subsequent to the judgment term, enter an order extending the time in which to file a bill of exceptions provided the order granting the extension was within the time originally given therefor.

      4. Appeal and error, g 839

      —when hill of exceptions not filed in apt time may not he stricken. Where a bill of exceptions is presented to and signed by "the trial judge within the time given for filing and the attorney negligently fails to file it within that time, it may be stricken from the files; but where the failure to file it within the proper time is not due to neglect but is due to circumstances over which he has no control, such as the unexpected closing of office of the clerk of court for a holiday, the trial court may order it to be filed nunc pro tunc as of the proper time.
    5. Appeal and error, § 839

      —when hill of exceptions may he fi.led. The rule seems to be that if a bill of exceptions is filed within a reasonable time after it is signed it should not be stricken from the files.
    6. Appeal and error, g 1611*—when declaration sufficient after verdict. Declaration in an action for personal injuries, held sufficiently to negative contributory negligence of plaintiff so as to be sufficient after verdict to sustain judgment for plaintiff.
    7. Appeal and error, g 1016

      —when exception to ruling on instructions must he preserved in record. Refusal of court to give requested instructions cannot be considered when no exception to such refusal is preserved in the record.
    8. Appeal and error, g 549

      —when objection to conduct of counsel preserved. An objection to conduct of counsel in asking improper questions of witnesses is not, saved for review unless objection is made at the time and a ruling thereon is had or insisted upon.
    9. Appeal and error, § 551

      —necessity of exceptions. Objection that court permitted appellee to exhibit the condition of his legs to the jury is not saved for review when no exception is taken to the action of the court.
    10. Mandamus, g 24

      —when court may he compelled to make proper record of appeal. Where exceptions were in fact taken to refusal of trial court to give instructions, trial court may be compelled by mandamus to cause the record to show such fact.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed November 21, 1913.
    Frank L. Kriete and William H. Symmes, for appellant ; John R. Guilliams, of counsel.
    Roy D. Keehn, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

On June 3,1911, the same being during’ the May term of the Circuit Court for Cook County, appellee obtained a judgment in that court against appellant for ten thousand dollars for personal injuries. Appellant prayed an appeal and was given sixty days in which to file its bill of exceptions. On August 2, 1911, the time for filing the bill of exceptions was extended to August 15th. On August 12th it was extended to September 18th. On September 18th it was extended to September 25th.. On September 25th it was extended to October 4th. On October 4th it was extended to October 9th, and on October 9th it was extended to October 12th. All of these orders were entered in term time, but none except that of June 3, 1911, were entered during the term at which the appeal was prayed and allowed. On October 11, 1911, in the afternoon, the bill of exceptions was presented to the trial judge and was signed by him. The office of the clerk of the Circuit Court was not open on October 12, 1911, that day being treated by the clerk and his office force as a holiday. Neither appellant nor its attorneys had any notice that the clerk’s office would not be open on that day. The bill of exceptions was filed October 13, 1911. On December 14, 1911, by order of court, it was refiled nunc pro tunc as of October 12,1911. A motion of appellee to strike from the files of this court the bill of exceptions was taken with the case. In support of this motion it is contended that the bill of exceptions is void, because it was not filed within the term at which final judgment was entered, or within a time fixed by an order of court entered at that term; because, even if it be held that the court had power to enter the various orders extending the time in which to file it, it was not filed within the time limited by the last order of extension; because the failure to file it within the limited time was not due to the inaction of the trial judge, but was due to the negligence of appellant; and because the order of December 14, 1911, directing the filing of it nunc pro tunc as of October 32,1911, was void.

The first contention is based on the provisions of section 81 of the Practice Act, as amended by an act in force July 1, 1911 (J. & A. 8618.) While the argument of counsel is not very explicit on this point, it seems to be assumed that the language in the amendment, “ * * * at any time during the term of the court at which judgment was entered or within such time thereafter, as shall, during such term, be fixed by the court, any party desiring to prosecute a writ of error to or appeal from any such judgment, may submit to the court a stenographic report of the trial containing the evidence, and the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge thereof, * * * ” applies to bills of exceptions and limits the time in which one may be filed, to the term at which judgment is entered, or within a time thereafter to be fixed by the court by an order entered at the judgment term, and in support of that contention cites the case of Wurlitzer Co. v. Dickinson, 247 Ill. 27, in which a somewhat similar provision found in the Municipal Court Act is construed to limit the power of the court in fixing the time for filing a “stenographic report” to that expressly given by the terms of that act.

It is not contended that the file which is mentioned in the motion to strike as “a bill of exceptions,” would not be a valid bill of exceptions, if it had been filed at the judgment term, or within some further time fixed by the court at that term.

Section 81 of the Practice Act (J. & A. 8618), so far as it relates to the matters here involved, as amended by the Laws of 1911, with the part added by the amendment in italics, is as follows:

“If, during the progress of any trial in any civil or criminal cause, either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such ruling shall be deemed a matter for revieiv in cmy court to which the same cause may be thereafter taken upon appeal or by writ of error without formal exception thereto, and after judgment, at any time during the term of the court at which judgment was entered or within such time thereafter as shall, during such term, be fixed by the court, cmy party desiring to prosecute a writ of error to or appeal from any such judgment, may submit to the court a stenographic report of the trial containing the evidence mid the rulings of the court upon all or cmy of the questions submitted to and ruled upon by the judge thereof, and he shall examine the same, and, if correct, officially certify to the correctness of such report, and the same shall thereupon be filed in said cou,rt and become a part of the record in said cause, and all matters and things contained in such stenographic report shall become as effectually a part of said record as if duly certified in a formal bill or bills of exception, or if, during the progress of any trial in any civil or criminal case, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception and sign the same, and the said exception shall thereupon become a part of the record of such cause. A bill of exceptions, (or) certificate of evidence, or report of trial allowed -in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried or by the presiding judge thereof, if more than one judge sat at the trial of the cause, without any seal of the court or judge annexed thereto. And in case the judge before whom the cause has heretofore been, or may hereafter be tried, is, by reason of death, sickness, or other disability, unable to hear and pass upon a motion for a new trial in a case at law, and allow and sign a bill of exceptions, (or) certificate of evidence or report of trial, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such case has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion in a case at law, and allow a true bill of exceptions, (or) certificate of evidence, or report of trial, shall pass upon said motion, in a case at law, and allow and sign such bill of exceptions, (or) certificate of evidence or report of trial; and his ruling upon such motion in a case at law, and allowance and signing such bill of exceptions, (or) certificate of evidence, or report of trial, shall be as valid as if such ruling and allowance and signing had been made by the judge before whom such cause was tried; but in case said judge is satisfied that owing to the fact that he did not preside at the trial, or, for any other cause, he cannot fairly pass upon said motion in a case at law and allow and sign said bill of exceptions, (or) certificate of evidence, or report of trial, then he may, in his discretion, grant a new trial to the party moving therefor.”

The part shown in Roman letters is the old section as it existed before the amendment. The two parts are separated by the disjunctive “or.” The word “or” enclosed in parentheses and found in several places in the old section between the words “bill of exceptions” and the words “certificate of evidence” is omitted from the section as amended, and in each instance where the word “or” is so omitted in the amended section the words “or report of trial” follows the words certificate of evidence, so that in each case, where in the old section the words “bill of exceptions or certificate of evidence” is found, in the section as amended the words “bill of exceptions, certificate of evidence or report of trial” appeals. In the part of the Municipal Court Act under consideration in the Wurlitser Co. case, supra, no provisions similar to the provisions in original section 81 of the Practice Act appear. That case has no bearing on section 81, except as to that part of it relating to a stenographic report of the trial.

A consideration of section 81, as amended and as it existed prior thereto, discloses no reason, and none has been suggested, for bolding that by the amendment it was intended to substitute a stenographic report for a bill of exceptions, but does disclose a manifest intention to provide two co-ordinate methods of preserving for review rulings on questions arising in common law courts. The first by means of a stenographic report of the trial and the second by means of a bill of exceptions, as theretofore. These two methods are as distinct from each other in every essential particular as language could well make them. The part of this amended section providing for bills of exceptions is the original provision without change. Section 2 of chapter 131, R. S., (J. & A. 11103), provides: “The provisions of any statute, so far as they are the same as those in prior statutes, shall be construed as a continuation of such prior provisions and not as a new enactment.” See also Endlich on Interpretation of Statutes, page 515 (Ed. 1888); Kirby v. Runals, 140 Ill. 289; Kelley v. Northern Trust Co., 190 Ill. 401; McGann v. People, 194 Ill. 526.

When the legislature re-enacted that part of original section 81 relating to bills of exemptions, it must be presumed they did so in the light of the judicial construction that had been given to it, and of the rights of litigants existing under it and regardless of it, as declared by the courts, as well as in the light of section 2 of chapter 131, above quoted.

In the case of Haines v. Knowlton Danderine Co., 248 Ill. 259, the Supreme Court, in distinguishing the provisions of the Municipal Court Act relating to stenographic reports provided for in cases of the fourth class, and which that court had held in Lassers v. North-German Lloyd Steamship Co., 244 Ill. 570, must be filed within thirty days from the date of the judgment, from the provisions of that act relating to bills of exceptions in cases of the first class, said:

“The claim is made on behalf of the appellant that the court may grant repeated extensions indefinitely after the expiration of such sixty days, provided, only, that the original extension shall have been granted within such sixty days and the subsequent extensions within the limit of a prior extension and by an agreement of the parties. The bill of exceptions, which was before unknown, had its origin in the statute of Westminster 2, (13 Edw. 1, chap. 31,) which directed the justices to allow and put their seals to an exception when he that alleges the exception writes the same and requires them to do so. The statute did not appoint the time when the exception should be allowed and sealed, but the practice was, as the nature of the thing required, that the substance of the exception should be reduced to writing when taken, though it need not then be drawn up in form. (2 Tidd’s Pr. 863.) By the statute of February 4, 1819, (which is now chapter 28 of the Revised Statutes,) this statute became a part of the law of Illinois. Section 19 of the act of January 29, 1827, concerning practice in courts of law, which with slight changes is the first sentence of section 81 of the present Practice Act, introduced no change, but is substantially the same as the statute of Westminster 2 and is declaratory of the law as it has existed since the 'State was organized. It seems never to have been regarded as necessary to reduce the bill of exceptions to form at the trial but it was sufficient if this was done during the term, though it was essential that the bill should show that the exception was alleged at the trial. (Gibbons v. Johnson, 3 Scam. 61; Evans v. Fisher, 5 Gilm. 453; Burst v. Wayne, 13 Ill. 664; Walton v. United States, 9 Wheat. 651; Ex-parte Bradstreet, 4 Pet. 102.) On account of the inconvenience or necessity of the case, the practice seems always to have obtained, in cases where the parties agreed or the court so ordered, to permit the bill of exceptions to be prepared and signed in vacation or at a subsequent term. (Evans v. Fisher, supra; Burst v. Wayne, supra; Ex-parte Bradstreet, supra.) 'This practice was not founded upon the statute but grew out of the action of the courts. ’ ’

By the language quoted the Supreme Court recognizes the settled rule to be that, while section 81 of the Practice Act, as it originally existed, was in force, the court had the right at a term subsequent to the judgment term to enter an order extending the time in which to file a bill of exceptions, provided the order granting the extension was within the time originally given therefor. To the same effect are the holdings in Pieser v. Minkota Milling Co., 222 Ill. 139; Shults v. Shults, 229 Ill. 420; and Hill v. City of Chicago, 218 Ill. 178. The orders of the trial court granting the various extensions were, therefore, properly entered. By successive proper orders of the trial court the time for filing the bill of exceptions was extended to and including October 12, 1911. It was presented to the trial judge and signed by him on the day before the expiration of the time given by the last order of extension. It was actually filed the day after the expiration of that time. By a subsequent order of court it was refiled nunc pro tunc as of the day when the time expired.

Where a bill of exceptions is presented to and signed by the trial judge within the time given for its filing and the attorney negligently fails to file it within that time, it does not become a part of the record, and should be stricken from the files. Hall v. Royal Neighbors, 231 Ill. 185. But where the failure to file it within the time is not due to such neglect, but is due to circumstances over which he has no control, it is the proper practice for the trial court to order it to be filed nunc pro tunc as of the proper time. Hill Co. v. U. S. Guaranty Co., 250 Ill. 242. When the bill of exceptions in the ease at bar was signed, it was turned over to the attorney for appellant. He then had all the following day in which to file it in the office of the clerk of the Circuit Court. He neither knew nor had reason to expect that on the following day, on which the time expired and which was a holiday only as to the maturing of commercial paper, the clerk’s office would not be open. It has never been held, so far as we are aware, that it was necessary to file a bill of exceptions instantly after it is signed, or that a failure to do so was such negligence as would deprive a party of the right to have it made a part of the record. The rule seems to be that, if it is filed within a reasonable time after it is signed, it should not be stricken from the files. In Hill Co. v. U. S. Guaranty Co., supra, the time for filing the bill of exceptions expired August 26th. It was in fact signed and filed on and as of September 28th, more than thirty days after the time given had expired, and the court held that, while the proper practice would have been to obtain an order to file it, and file it nunc pro tunc as of the date it was presented to the judge, the failure to obtain such an order was a mere irregularity and did not render the bill of exceptions void. The holding in that case was based, as we understand it, on the fact that it was not the fault of the party that the bill of exceptions was not filed in time. We think the record .in this ease discloses that it was not the fault of appellant that the bill of exceptions was not filed in time. The court was fully warranted in entering the order directing the filing of it as of October 12, 1911. The motion of appellee to strike the bill of exceptions from the files is, therefore, denied.

Appellee was at the time of the occurrence here involved a lad of about sixteen years of age. He was employed as a messenger boy for the Chicago Examiner. He was on the south side of Madison street between Halsted and , Union streets. Union street extends north from Madison street, but does not extend south of it. He had just executed an errand and started to return to the office of his employer which was about a mile due east. He was not supplied with carfare and was supposed to walk. A one-horse wagon with a tailboard that was down on a level with the bottom of the box approached from the west on the south side of Madison street. As it passed appellee, he boarded it. Efe seated himself on the tailboard facing west. At that point on Madison street there are two street car tracks belonging to and operated by appellant. The cars of appellant pass east on the south track and west on the north track. Before the wagon had reached the west side of Union street the driver turned his horse to the northeast and crossed the south or eastbound track, and was crossing the north or westbound track, but before his wagon had cleared the track a westbound car of appellant struck the right hind part of the wagon with sufficient force to throw appellee from it to the pavement. The bones of one of the legs of appellee were badly fractured. That leg is now about three inches shorter than the other one. An ordinance of the city of Chicago, introduced in evidence, prohibits drivers of vehicles from turning from the right hand side of the street on which they are driving into intersecting streets before reaching a point to the right of the center of such intersecting street.

It may be conceded for the purposes of this case that the act of the driver in turning across Madison street in violation of the provisions of the ordinances of the city was such negligence as would prevent him from recovering damages from appellant, if he had been injured by the collision. However that may be, the negligence of the driver could not be imputed to appellee under the facts in this case, for the reason that the relation of master and servant did not exist between the driver and appellee; neither did appellee have any control over or right to direct the driver as to where or how he should drive. Buckler v. City of Newman, 116 Ill. App. 546; Chicago & A. R. Co. v. Vipond, 212 Ill. 199; Eckels v. Muttschall, 230 Ill. 462; Chicago Union Traction Co. v. Leach, 215 Ill. 184; Illinois Southern Ry. Co. v. Hamill, 226 Ill. 88; Dudley v. Peoria Ry. Co., 153 Ill. App. 619-621, 623. Expressions are sometimes found in opinions and textbooks to the effect that under certain circumstances the negligence of one will not be imputed to another, unless that other is himself negligent. Such expressions are confusing. Of course, if one injured is himself negligent, and his negligence is the cause of the injury, he cannot recover, but that is because of his own negligence and not that of another imputed to him. It is also axiomatic that if the negligence of the driver of a rig in which one is riding is the sole cause of an injury to the passenger resulting from a collision with a street car, the passenger cannot recover against the street car company, not because the negligence of the driver is imputed to the passenger, but because the injury was not the result of the negligence of the street car company; but the negligence of the driver of a wagon will not prevent one injured while riding thereon from recovering against the street car company, if its negligence was an efficient cause of the injury. Nonn v. Chicago City Ry. Co., 232 Ill. 378; Chicago Union Traction Co. v. Leach, 215 Ill. 184; Springfield Consol. Ry. Co. v. Puntenny, 200 Ill. 9; Seith v. Commonwealth Electric Co., 241 Ill. 252-259.

There is evidence fairly tending to show that the driver of the wagon turned his horse in a northerly direction and started across the north or west bound track at a point some distance west of Union street; that when he did so the car of appellant that later collided with the wagon was some distance east of Union street; that there was nothing to prevent the motorman from seeing the rig as it came onto the north track, and that in fact he did see it and slackened the speed of the car, while he was yet east of Union street; that after the wagon had nearly cleared the north track he increased the speed of the car and maintained the increased speed until about the time it collided with the wagon. If this evidence was true it was sufficient to warrant a finding by the jury that the car was negligently operated and that such negligence was the cause of the injury. While this was contradicted by appellant’s witnesses, it was for the jury to weigh the evidence and determine which story was true. In the exercise of that duty the jury evidently believed appellee’s evidence and disbelieved that offered by appellant, for they found it guilty. We have carefully scanned this record, and while a different verdict might well have been sustained, we are unable to say that the verdict returned is manifestly against the weight of evidence.

Whether appellee was guilty of contributory negligence was, as it usually is, a question of fact for the jury, and depended on whether in the mind of the jury, the evidence showed that he was at and just before the injury in the exercise of such care and caution for his own safety as an ordinarily careful and prudent person of his age, experience, capacity, knowledge, discretion and intelligence would exercise under the same or similar circumstances, and we are constrained to believe the verdict in that regard was fully warranted by the evidence.

When appellee’s witness, Simmons, was on the stand, he was asked several questions on his direct examination as to the speed of the car that collided with the wagon on which appellee was riding. Appellant objected to all these questions and its objections were all sustained. On cross-examination he was asked if it was not a fact that it was much harder to judge of the speed of an object that was coming towards a person than if it was moving by. To this inquiry the court properly sustained an objection. It was not cross-examination.

Appellee’s witness, Aerts, testified that when he first saw the car it was going at a “pretty good rate of speed,” and when it struck the wagon it “seemed to have slowed up * * * it had slackened up-some, not very much.” On cross-examination he was asked, “Did you ever test the difference between the case of judging the speed of a moving object when it is passing by you and when it is coming toward you?” Objection to the question was sustained. The opinion of the witness as to the speed of the car had been based on his observation of it as it passed by him, and not as it carne towards him. The object of the cross-examination preceding the question to which objection was sustained was to show that one could judge less accurately of the speed of the car as it approached than as it passed. If the question had been answered in a way to sustain the theory of appellant, it would have strengthened rather than weakened the opinion evidence of the witness as to the speed of the car. If there was error in the ruling, it was not one of which appellant can complain.

While appellee was on the stand, his counsel said to him: “Just step down, if you will, and then stand up on your left leg—stand up straight and let the jury see where your left leg comes.” Appellee then removed both his shoes, left the witness chair and stood before the jury. Appellant insists this was error for the reason that appellee ‘ ‘was thereby given an opportunity to simulate an injury which may not, in fact, have existed to the extent claimed. ’ ’ While the Court had just previous to the exhibition referred to announced that such a course would be a proper one, no exception was taken to such announcement, and the question is in no way preserved for review by this court.

Appellee’s witness, Dr. Friend, was asked on direct examination, “What is your judgment as to the future, as to whether that condition of the limb—as to his being able to use it again?” The objection of appellant to this question was overruled, and it is insisted that this was error, because “the question assumes that plaintiff (appellee) was unable to use the leg, when as a matter of fa,ct he was there and had been using it in the presence of the jury.” We do not think the question is subject to the objection made, and even if it should be so construed, such an assumption could have done no harm, if, as the objection assumes, he was in fact there using the leg in the presence and plain view of the jury.

Complaint is made of the refusal of the court to give several instructions asked by appellant. No exceptions to such refusal are preserved in the record. The correctness of the rulings of the court therein is, therefore, not presented for review. Mayville v. French, 246 Ill. 434. If exceptions were, in fact, taken, as appellant contends, the trial court could have been compelled by mandamus to cause the record to show the fact, but the Appellate Court has no power to settle the question on this appeal. On appeal this court can consider only such matters as the trial judge has certified occurred in that court.

Complaint is made by appellant of the conduct of counsel for appellee in many instances for asking conceivably improper questions of witnesses. To review each of the instances would serve no useful purpose. It is enough to say we have given each of them careful consideration and find that in some of them counsel for appellee was clearly within his rights. In others, no objection was made at the time by counsel for appellant. In others, objections were interposed, but no rulings were made by the court or insisted upon by appellant. In others, objections and rulings were made, but no exceptions to such rulings were preserved. In still others, the record shows objections and rulings were made and exceptions taken. In no instance, however, whether the point has been properly preserved for review or not, was there any such misconduct of counsel as, in our judgment, could have worked any mischief to the rights of appellant or affected the verdict.

It is contended that the verdict was excessive. While it was for a substantial amount, we do not think it was more than compensatory. It certainly was not so excessive as to warrant a finding that it was the result of passion, prejudice or other improper influence.

It is lastly contended that the declaration is not sufficient to sustain the verdict and judgment, because the language used in attempting to negative contributory negligence on the part of appellee was limited to the time appellee was riding across the track, and did not include the time immediately before. Counsel cites Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. In that case the Court was passing upon the sufficiency of the following instruction: “If you believe, from * * * the evidence, that the plaintiff has proved his case as laid in his declaration, then you will find the issues for the plaintiff.”

By that means averments of the declaration were, in effect, incorporated in and made a part of the instruction. It has been frequently held that an instruction by which the doctrine of contributory negligence is defined is defective that does not require due care to be exercised by the injured party at and immediately before the injury. Applying that rule the court held that this instruction was bad, because neither in the instruction itself, nor the declaration referred to in it, due care immediately before the injury was mentioned. It is not there held that the declaration was insufficient after a verdict to sustain the judgment. In Chicago City Ry. Co. v. Cooney, 196 Ill. 466, and in Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535, declarations which contained no specific averment of due care on the part of the plaintiff were held sufficient after verdict. See also Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill., 586.

In Jorgenson v. Johnson Chair Co., 169 Ill. 429; Gerke v. Fancher, 158 Ill. 375; and Walters v. City of Ottawa, 240 Ill. 259, the rule is announced that, in order to recover for personal injuries from negligence, the plaintiff must aver and prove that at the time of the injury he was in the exercise of due and ordinary care for his own safety. In discussing the apparent conflict in these two lines of cases the Supreme Court, in Walters v. City of Ottawa, supra, call attention to the fact that in the cases holding that a declaration that did not contain a specific averment of due care on the part of the plaintiff for his own safety was sufficient to sustain a verdict, there were averments of facts from which such due care could be reasonably inferred, and hold that, while, without a specific averment of such due care, or averments of fact from which such due care can be reasonably inferred, a declaration does not state a cause of action and is not cured by a verdict, yet where such averments are made, although defectively, it is sufficient after a verdict, See also Kelleher v. Chicago City Ry. Co., 256 Ill. 454.

The declaration in the case at bar with respect to the care exercised by appellee contains the averment “* * * while the plaintiff who was then and there a minor, was, with all due care and diligence, then and there riding in a certain wagon * * * No case has been cited and we believe none can be found holding that such an averment is even defective. It certainly was sufficient when issue was joined on it to put appellee to proof of the exercise by him of such due care and caution for his own safety, in regard to the circumstances under which he was injured, as would entitle him to a verdict, and was sufficient after a verdict to warrant a judgment thereon.

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

Judgment affirmed.


text:
    Harley Meek, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 18,321.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Dismissed.
    Opinion filed November 21, 1913.

      Abstract of the Decision.
    Appeal and error, § 12

      —when writ of error is affected by appeal. Where orders as to the filing of a bill of exceptions sought to be reviewed by a writ of error were properly involved in and were considered and disposed of in the same case on appeal, the writ of error will be dismissed.
    Statement of the Case.
    Action by Harley Meelc, a.minor, by Mattie Gerbaum, Ms mother and next friend, against the Chicago Railways Company, a corporation, to recover damages for personal injuries. During the pendency of defendant’s appeal from a judgment for ten thousand dollars (Gen. No. 18,034, ante, p. 256), plaintiff brings error to test correctness of orders as to filing a bill of exceptions.
    Roy D. Keehn, for plaintiff in error.
    Frank L. Kriete and William H. Symmes, for defendant in error; John R. Guilliams, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Philipp Werner, Defendant in Error, v. Henry Wietor and Nicholas J. Wietor, copartners, Plaintiffs in Error.
    Gen. No. 18,039.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.

      Abstract of the Decision.
    1. Master and servant, § 126

      —care required furnishing place to work. It is the duty of the master to use reasonable care to furnish his servant a reasonably safe place in which to work.
    2. Master and servant, § 196

      —duty to warn of danger. It is the duty of the master to warn his servant of any dangers connected with the work which he is directed to perform that are not known to him or reasonably obvious on ordinary observation.
    3. Master and servant, § 196

      —when servant must be warned of danger. Where an employe in performance of a general direction to unload a load of oats goes into a dimly lighted loft and not being familiar with the bin, steps into it, misses an eighteen inch walk and falls to the bottom of the bin, the servant not having been informed of the conditions the master is liable.
    4. Master and servant, § 709

      —when question whether bin is dangerous is for the jury. Where an employe in performance of a general direction to unload a load of oats goes into a dimly lighted loft, steps into a bin and in attempting the next step misses an eighteen inch walk and falls to the bottom of the bin, whether the bin is a dangerous place is a question for the jury.
    5. Master and servant, § ,447

      —when servant may assume he will not be exposed to danger. A servant has a right to assume that the master will not expose him unnecessarily and without warning to dangers of which he is ignorant; and when directed to perform a service he has a right to rest assured that there is no danger in its performance of which the master has not advised him.
    Statement of the Case.
    Action by Philipp Werner against Henry Wietor and Nicholas J. Wietor, copartners trading as Wietor Brothers, for personal injuries from falling into a bin. From a judgment for plaintiff for five hundred dollars, defendants bring error.
    Bulkley, Gray & More, for plaintiffs in error.
    ■ Francis X. Busch and Frank A. Rockhold, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

6. Master and servant, § 759*—when contributory negligence is for the jury. Where an employe, ignorant of the conditions of a bin, in performance of a general direction and without warning entered into the bin, which was so dark that he could not see the conditions and missed an eighteen inch walk, falling to the bottom of the bin, whether he exercised such care for his safety at and just before the time of. injury as a reasonably prudent person would exercise under similar conditions is for the jury.


text:
    Siegfried Schulein, Jr., Plaintiff in Error, v. Michael T. Tully, Defendant in Error.
    Gen. No. 18,199.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1035

      —necessity of assigning error. Error in instructions that is not assigned as error will not be considered.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 21, 1913.
    Statement of the Case.
    Action by Siegfried Schulein, Jr., against Michael T. Tully to recover damages from failure of a landlord to have the demised premises ready for occupancy by the stipulated time. From a judgment for plaintiff for twenty-five dollars, plaintiff brings error.
    Charles R. Napier and Charles S. McIlvaine, for plaintiff in error.
    Flynn & Lyon, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Landlord and tenant, § 164 —Measure of damages for lessor’s failure to complete premises in time. A lessee kept out of occupancy of the demised premises hy the failure of the lessor to complete it by the stipulated time may recover the cash market value of the leasehold interest for the time he was kept out of possession by reason of the fact that it was not ready for occupancy.

3. Landlord and tenant, § 164 —evidence admissible where premises not completed in time. On an issue of fact whether leased premises were ready for occupancy by the stipulated time, evidence is admissible to corroborate the tenant’s own evidence on such issue.

4. Landlord and tenant, § 216 —remedy for failure to furnish fixtures. If a landlord fails to furnish fixtures that he agreed to furnish, the tenant has the right to buy and install the same and recover of the landlord the necessary costs of so doing.


text:
    G. W. Overall, Plaintiff in Error, v. Chicago Motor Car Company, Defendant in Error.
    Gen. No. 18,278.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 21, 1913.
    Statement of the Case.
    Action by G. W. Overall against Chicago Motor Car Company, a corporation, to recover damages for the breach of a warranty in the sale of an automobile body. From a judgment for plaintiff for $5.78, on a peremptory instruction to find such an amount, the plaintiff brings error.
    Bulkley, Gray & More, for plaintiff in error.
    Mayer,Meyer, Austrian & Platt, for defendant in error.

      Abstract of the Decision.
    1. Sales, § 399

      —what must be shown to recover for breach of warranty. In an action by a purchaser of an automobile body to recover damages for a breach of warranty, it is necessary to establish the purchase, the warranty, a breach of the warranty and damages.
    2. Sales, § 404

      —measure of damages for breach of vjarranty. The measure of damage for a breach of warranty in the sale of an automobile body is the actual value of the.property at the time and place of delivery and what it would have been worth if it had been as warranted.
    3. Evidence, § 421

      —expert may give opinion on value. A witness properly qualified may give an opinion as to the value of an automobile body at the time and place of its delivery to the purchaser.
    4. Evidence, § 430

      —when expert on value is competent. The plaintiff in an action to recover for a breach of warranty in the sale of an automobile body, testifying that he knew the cost of such bodies, what they sold for on the market, that he had been familiar with them for ten years and had examined and priced nearly every make in the city of its delivery, is a competent witness to testify as to the value of the body.
    5. Trial, § 192

      —when peremptory instruction is proper. A peremptory instruction to find the issues for the defendant is proper where there is no evidence which, standing alone with all reasonable inferences to be drawn therefrom, fairly tends to support the plaintiff’s case.
    6. Sales, § 401

      —damage must be proved in breach of warranty. Where in an action for a breach of warranty in the sale of an automobile body there is no evidence of the damage sustained by the breach, it is proper to give a peremptory instruction.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.