text:
    Frank Kieshkowski, Appellee, v. H. Bostrom, Appellant.
    Gen. No. 17,525.
    1. Appeals and errors—burden of proving error. The burden of proving error is on the party who avers it since nothing' is to be presumed against a judgment.
    2. Appeals and errors—where appellant does not furnish complete abstract. "Where abstract furnished by appellant does not by his own showing, contain all the evidence necessary to the determination of a question assigned as error, the court will presume that the record evidence, if completely abstracted, would sustain the judgment.
    3. Appeals and errors—appellant required to furnish abstract. Appellant is required to furnish a complete abstract showing everything necessary to a determination of the questions involved on appeal.
    4. Agency—where son of defendant drives wagon. Where defendant, in the teaming and express business, permits his son to drive a wagon in the transaction of that business, and plaintiff is injured through negligent driving of the son, the jury is justified in finding defendant guilty under a declaration with proper averments.
    5. Roads and bridges—what is sufficient to warrant jury in finding plaintiff not guilty of contributory negligence. Where plaintiff is injured from being struck by defendant’s wagon, evidence that before attempting to cross the street he looked across the street and to the south, is sufficient evidence to show he was free from contributory negligence where it appears the wagon was coming from the north on the left side of the street.
    6. Pleading—general issue does not put in issue capacity in which defendant is sued. In a personal injury action where plaintiff was struck by defendant’s wagon, driven by his son, a plea of general issue does not permit him to deny the alleged relation of master and servant.
    7. Pleading—when averment of agency need not be supported by positive proof. In a personal injury action where plaintiff was struck by defendant’s' wagon driven by his son, the relationship of defendant and his driver need not be supported by positive proof by plaintiff where defendant pleads only the general issue.
    8. Pleading—when defendant is not entitled to malee special plea. Defendant is not entitled to make a special defense where he has neglected to plead it until after the statute of limitations has run against a new action.

      Appeal from Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in the Branch Appellate Court_ at the March term, 1911.
    Affirmed.
    Opinion filed April 30, 1913.
    O. C. Peterson, for appellant.
    J. W. Sutton, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

March 26, 1904, Prank Kieshkowski was struck by the shafts or the wheels of a light express wagon coming from the north on Dickson Street, Chicago, while he was attempting to cross that street from the east to the west and about midway between Division and Blackhawk streets. The wagon and the horse hitched thereto was the property of H. Bostrom, appellant, and was driven by his minor son, then about fifteen years old, in response to a telephone message sent by a customer to appellant’s residence to go to the customer’s place of business and get a bill for some lumber. Appellee was knocked down about four feet from the east curb and sustained bodily injuries by reason of which he was unable to work for some time thereafter. Appellee brought this suit against appellant to recover the damages by him thus sustained and charged in his declaration that the driver of the horse and wagon was a servant of appellant, and that appellee was injured by reason of the negligence of appellant by his driver and servant and while appellee was in the exercise of reasonable care for his safety. On the second trial of the cause a verdict and judgment were rendered against appellant in the sum of $700 and from that judgment this appeal is prosecuted.

Appellant’s argument is prefaced by the following statement:

“At the outset, appellant admits that the accident occurred from which the appellee was injured and suffered damages; and therefore no attempt has been made to abstract the testimony of the doctor or the plaintiff in reference thereto. It is further admitted that if the appellant is legally liable for the injuries sustained, the verdict is not excessive; appellant, however, contends that the plaintiff below failed to show that he was free from contributory negligence; * * * and that, therefore, the trial court should, at the end of plaintiff’s evidence, have sustained the defendant’s motion to instruct the jury to find for the defendant.”

The burden is always upon the party who avers error to make the same appear affirmatively. Nothing is to be- presumed against a judgment. The error, if any is charged, must be definitely shown. Chicago & A. R. Co. v. American Strawboard Co., 190 Ill. 268; Graham v. Dixon, 4 Ill. (3 Scam.) 115.

Appellant is required to furnish a complete abstract showing everything necessary to a determination of the questions involved on appeal. The Appellate Court will not examine the transcript for evidence to reverse a judgment, and where it affirmatively appears by the appellant’s own showing that all the evidence bearing upon a question or matter assigned as error is not abstracted, the court will presume that the record evidence, if completely abstracted, would sustain the judgment. Mayer v. Schneider, 112 Ill. App. 628; Gage v. City of Chicago, 211 Ill. 109.

This court would be warranted from the said prelude of appellant’s argument in the conclusion that he has omitted from the abstract evidence of appellee that bears directly upon the happenings or acts of the appellee and appellant’s son that caused the injury, and, therefore, that all the evidence bearing upon the question of appellee’s contributory negligence does not appear in the abstract. Aside from this view, however, the evidence that appears in the abstract is sufficient in our judgment to warrant the jury in their finding that appellee was not guilty of contributory negligence. The evidence shows, as appellant says, that appellee “first looked directly across the street, then south; then while about four feet from the east curb of the street, he was struck by the shafts or the wheels of a light express wagon coming from the north, driven by the defendant’s son.” Appellee could not be held to assume that he was or would be in danger of being struck by a driver coming from the north, on the left side of the street. Drivers, if they observe the law of the road or the street, drive on the right side of the street. The testimony of the driver is to the effect that he was driving south on the right side of the street and behind two other large cooperage wagons being driven abreast on that side of the street, and that he passed them on the left going about six miles an hour to head them and to again pass to the right side of the street, and that he did not know he had struck appellee until he was told so by a man after he had passed the two wagons about one hundred feet. The son of appellee testified that he saw his father injured and that appellant’s son drove in a fast gallop behind the large wagons and cut right across the street to the left and struck appellee just as he was stepping off the curb and knocked Mm into the gutter. This evidence also clearly establishes negligent and wreckless conduct of the driver.

Appellant testified on the trial, in substance, that he was away from home the day appellee was injured and that Ms son had no authority from him at the time to drive the horse and wagon, and that he at all times theretofore had expressly forbidden his son to use or drive the horse and wagon, and did not then remember that he had ever authorized him to do so. Appellant further insists, therefore, that he is not liable in this case, because the evidence fails to show that the relation of master and servant existed between himself and his son at the time of the injury to appellee, as averred in the declaration. The evidence does establish clearly that appellant was the owner of the horse and wagon and that he was in the “teaming and express business,” and that his son was engaged in the transaction of that business for his father at the time of appellee’s injury. Appellant’s said son testified that he sometimes drove a horse for his father, hut not frequently, and only when his father told him to do so, and while seated with his father on the wagon; that he once had a horse out alone about two months before the accident, and that he generally rode in the wagon with his father, and would sit in the wagon while his father would transact the business at the stores and other places. He further testified that on the day in question he was doing odd chores around the house and was acting under orders from his mother; that he answered the telephone call of A. J. Johnson & Co., cabinet makers that “we were doing hauling for at that time,” and that he took the horse and wagon and drove to the cabinet makers’ in answer to their call; that he saw his father that evening, but did not tell him about taking the horse and wagon, until eight or ten days thereafter when his father spoke about it to him. His father further testified that he did not hear of appellee’s injury until about one week thereafter, when appellee complained to him about his being run over. The evidence does not disclose that appellant ever chastised or reprimanded the boy for driving the horse and wagon on that occasion, or that he ever intimated to any one that his son was not authorized or directed by himself to drive the horse and wagon until after appellant heard of appellee’s injury. It is singular that the son never told his father of the unusual circumstance, if it was unusual, of his driving the horse and wagon until, questioned about it by his father ten days thereafter. It is equally singular that his father had not sooner found out that his son had so transacted that business for him, considering that it was the obtaining of a bill for lumber to be hauled by appellant. A jury would be warranted in finding the defendant guilty under a declaration with proper averments. 31 Cyclopedia of Law & Procedure, 1582; Moir v. Hopkins, 16 Ill. 313.

Under the late decisions of our Supreme Court appellant is not in a position to deny Ms alleged relation to Ms son of master and servant, as he only pleaded the general issue. “The general issue alone does not put in issue either the character in which the plaintiff sues or the character or capacity in which the defendant is sued.” By filing only the general issue appellant impliedly admitted that at the time of the alleged injury he was the owner of the horse and wagon in question and that the driver thereof was his servant. Pennsylvania Co. v. Chapman, 220 Ill. 428; Chicago Union Traction Co. v. Jerka, 227 Ill. 95; Winn v. Cleveland C., C. & St. L. R. Co., 239 Ill. 132.

This is not a case of a servant suing the master with the burden upon Mm of introducing evidence proving that relation, as held in Condon v. Schoenfeld, 214 Ill. 226, and Carr v. U. S. Silica Co., 153 Ill. App. 511. The relationship of appellant and Ms driver was a mere matter of inducement peculiarly within the knowledge of appellant, and which was not necessary to be supported by positive proof by appellee under the general issue. As said by the court in Chicago Union Traction Co. v. Jerka, supra, “If a plaintiff is afforded timely notice by a special plea that the want of ownership” or the want of defendant’s relation with the party handling the instrumentalities “is relied upon as a defense, the plaintiff will have an opportunity of making investigation, and if he ascertains that he has sued the wrong party,” or the right party in the wrong capacity, ” “he may, before the Statute of Limitations becomes a defense, bring his suit against the party that is, in fact, liable. ’ ’

The statute of limitations was a bar to any new suit when the second trial was begun in November, 1910. The defendant is not entitled to make its said special defense after failing to specially plead it, as required under the well established law of this state.

The judgment is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    John W. McGuire, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,430.

      1. Appeals and errors—when remarle of counsel is reversible error. In a personal injury action where counsel for plaintiff called as a witness, one who testified he was formerly employed by defendant as a conductor, and was on the street car -upon the occasion that plaintiff was injured, and counsel then remarked, “I don’t care to offer this gentleman as my witness, but I simply want to show the court that he is here in the court room and I will be glad to have the court or the jury ask him any questions they want,” such conduct and language is reversible error.
    2. Street railroads—question for jury. Evidence as to negligence and absence of contributory negligence held to present question for jury in action growing out of collision between street car and wagon.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 30, 1913.
    Rehearing denied May 17, 1913.
    John E. Kehoe and O. LéBoy Brown, for appellant; Leonard A. Busby, of counsel.
    Guerin, Gallagher & Barrett and John B. Harrington, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

In an action on the case by appellee against appellant to recover damages for personal injuries, a third trial in the Circuit Court resulted in a verdict and judgment against appellant for $8,000, and this appeal is prosecuted to reverse such judgment.

On the night of April 12, 1909, as appellee was driving a team of horses hitched to an open wagon and going east on 47th street, an east-bound electric car then being operated on said street collided with said wagon and thereby occasioned the injuries complained of.

The. declaration charges negligence generally in the operation of the car; negligence in failing to give warning of the approach of the car; negligence in driving the car at a high and excessive rate of speed; negligence in employing and retaining an unskillful and incompetent servant, who was then and there operating the car; and negligence in failing to equip the car with proper and sufficient brakes and controller.

On the day in question appellee and one O’Neill, who drove another wagon, left Chicago for Downer’s Grove for the purpose of hauling some furniture. After loading the furniture on the wagons they left Downer’s Grove for Chicago about six o’clock in the evening. When they arrived at Willow Springs it was dark and raining. They continued on their journey until they arrived at Western Avenue, where they went into a saloon and had some beer and lunch. They then drove on Archer avenue to 35th street, thence east to Ash-land avenue, then south to 47th street, thence east to a point near Morgan street, where the collision occurred. There is evidence tending to show that when they arrived at Western avenue, O’Neill procured a lantern and lighted it and placed it on the rear of the wagon driven by appellee; that as appellee, who was driving behind O’Neill, turned into 47th street, he looked west to see if a car was approaching and saw none; that he then drove east in the east-bound car tracks and looked back twice before reaching Morgan street, but saw no car approaching; that when he reached Morgan street he looked back again and saw a car approaching rapidly a distance of 150 or 200 feet away; that he immediately attempted to turn into the west-bound track for the purpose of permitting the car to pass, but was unable to do so in time to avoid the collision; that no gong was sounded on the car as it approached Morgan street.-

In this state of the evidence bearing upon the question whether or not appellee, at and before the collision, was in the exercise of due care for his own safety, the giving of the peremptory instruction tendered by appellant would have clearly usurped the function of the jury.

It is not seriously urged that the evidence bearing upon the question of the alleged negligent operation of the car, did not justify the submission of that issue to the jury.

Madden, the regular motorman of the car, and who was discharged immediately following the collision, was a witness for appellee. He testified, in substance, that at or near Western avenue, Jacobs, the conductor, undertook to operate the car and was operating it when the collision became imminent; that Jacobs was then sitting on the stool with his back to the east (the direction in which the car was going), and he (Madden) was standing beside the stool talking to Jacobs, and doing nothing to keep a look out; that he did not see the wagon until the car was about 15 feet from it, and that the wheels of the wagon were then right in the tracks ahead of the car.

Jacobs, the conductor, was discharged by appellant about ten months after the collision and was not called by appellant as a witness.

Appellee called Jacobs as a witness in rebuttal, and he testified that he was then employed as an insurance agent; that he was formerly employed by appellant' as a conductor on its 47th street line and was on the car upon the occasion that appellee was injured. Counsel for appellee then inquired of the witness whether he was called as a witness by appellant on the first- trial of the case, and to this inquiry an objection was interposed and sustained.

Counsel for appellee then stated in the presence and hearing of the jury: “I don’t care to offer this gentleman as my witness, but I simply want to show the court that he is here in the court room, and I will be glad to have the court or the jury ask him any questions they want?” Upon objection by counsel for appellant to such statement, the court remarked: “Let it stand for what it is worth. ’ ’

As staged and performed by counsel for appellee this was pure equine diversion, which merited sharp rebuke by the court rather than tacit acquiescence. It may be doubtful, however, whether any action by the court, short of a continuance of the cause, could be held to have palliated the prejudicial effect of counsel’s conduct and language upon appellant’s case. There is nothing in the record to suggest that counsel for appellee was prompted to the indulgence of such conduct and speech by anything that was said or done by or on behalf of appellant. It was wholly without reason or excuse and can only be adequately compensated for by suffering a reversal of the judgment predicated upon the verdict of a jury who were undoubtedly improperly influenced thereby.

The closing argument of counsel for appellee to the jury is replete with intemperate appeal and with impertinent, improper and prejudicial statements. The reasonable limits of an opinion forbids a consideration of such an extended argument in detail.

The case should be tried solely upon its merits and upon the competent evidence in the record.

There is no prejudicial error in the rulings on instructions. '

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    George J. Cooke Company, Appellee, v. Gustaf Johnson, Appellant.
    Gen. No. 17,469.
    1. Evidence—written contract, admissible to show consideration. In an action on a note, a written contract is admissible to show that the consideration for the note was the expense of installing and removing saloon fixtures.
    2. Power of attorney—when nullified. The vacation of a judgment by confession on a note operates to nullify the power of attorney and the act of the attorney thereunder.
    3. Judgments—effect of. vacating judgment by confession. Where a judgment by confession is vacated, the cause of action is in the same state as if commenced in the ordinary procedure by summons.
    4. Judgments—when excessive to include attorney’s fees. Where a judgment by confession on a note is set aside and the case tried as if commenced by summons, it is improper to include attorney’s fees in the judgment since the power of attorney was nullified by vacation of the former judgment.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed on remittitur.
    Opinion filed April 30, 1913.
    Thomas J. Young, for appellant.
    Harry A. Daugherty, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On May 15, 1909, judgment by confession was entered in the Circuit Court in favor of appellee and against appellant for $189.78 upon a note for the sum of $150, executed by appellant, dated September 24, 1907, payable to appellee on demand with 6 per cent, interest. The warrant of attorney provided for an attorney’s fee of $50, but only $25 was included in the judgment for that service. On June 18, 1909, the said judgment was opened up on motion of appellant and leave was given him to plead to the declaration. In addition to the general issue appellant pleaded specially that at the time the said note was signed by him a verbal agreement was entered into with appellee, whereby appellant was to use and sell the draught beer of appellee in certain premises in the City of Chicago during the period covered by the lease that appellant then had on said premises for-the term ending May 1, 1909, and that said note was held by appellee as collateral security for the performance by appellant of the terms of said agreement and for no other purpose; that at the termination of said lease said note was .to be surrendered and cancelled if appellant complied with the terms of said agreement; that appellant did comply with the terms of said agreement and used and sold the draught beer of appellee up to and including the 30th day of April, 1909. Appellee filed its similiter to the general issue, and replied to the special plea that it did not make the verbal agreement there set forth, and that appellant did not comply with the terms of any such agreement. A trial of the issues resulted in a verdict against appellant for $200, including an attorney’s fee of $25, and judgment upon such verdict.

Appellee introduced in evidence the note sued on and rested, and appellant then sought to prove the verbal agreement set up in his special plea. In rebuttal, appellee over the objection of appellant, was permitted to introduce in evidence a written contract purporting to be executed by the parties on September 24, 1907, which provides, in substance, that appellee sells and appellant buys 1,800 barrels of beer to be delivered by appellee to appellant at his stated place of business; that said beer shall be of good and merchantable quality and shall be delivered from time to time as appellant shall direct; that all of said beer shall be delivered and taken within and during the period beginning October 1, 1907, and ending May 1, 1911; that no less than 10 barrels and no more- than 40 barrels shall be delivered or taken during each week of said period; that appellant shall pay therefor the market price per barrel, cash on delivery, and so much per barrel additional as the government tax may be increased above $1 per barrel; that in the event of the failure of either party to perform said contract the party so failing shall pay to the other party as liquidated damages $2 for each and every barrel of beer contracted for and not delivered. The concluding provision of said contract is as follows:

“For the faithful performance of this contract by the second party first party agrees to rebate to second party, about the first day of each month fifty cents (50(¿) per barrel. Second party has deposited his note for $150 as evidence of good faith. Fixtures are to remain property of first party. Said note is to cover expense of putting in and tailing out fixtures.”

The main contention of appellant relates to the admission of this written contract in evidence. It is insisted that the note and not the written contract is the instrument sued upon, and that in the absence of any reference to said contract in the declaration or in the replication to the special plea, it was not admissible in evidence.

The suit is upon the note and not upon the contract, and if no issue had been raised as to the consideration for the note, the contract would have had no proper place in the record. The contract might be properly resorted to for the purpose of showing a consideration for the note, when want of consideration or failure of consideration was pleaded. It is not claimed that the note might not be properly given to cover the expense of putting in and taking out any fixtures which might be installed by appellee, and in this suit upon the note the other provisions of the contract are not open to consideration.

Appellant made an attempt to deny the execution by him of the contract, but it clearly appears from the evidence that the contract was in fact executed by him.

It is uncontroverted that appellee installed in the premises occupied by appellant saloon fixtures of the value of $1,400, and that such fixtures were removed by appellee at the request of appellant or after appellant had arranged to purchase beer elsewhere, and that the cost of installing said fixtures was $398.

If, however, the written contract be excluded from consideration, there is sufficient evidence in the record of an oral agreement between the parties that the note should be given and accepted as security to cover the expense of installing and removing the fixtures, and this was a sufficient reason for the action of the court in refusing to give the instruction which it is insisted was improperly refused.

The vacation by the court of the judgment by confession operated to nullify the power of attorney and the act of the attorney thereunder, and the cause of action was in the same state as if commenced in the ordinary procedure by summons. Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431. In this state of the record the inclusion in the verdict and judgment of $25 as attorney’s fees, provided for in the warrant of attorney to confess judgment, was unauthorized, and such verdict and judgment are to that extent excessive.

If appellee will within ten days remit $25 from the. judgment the same will be affirmed for $175; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

Eemittitur filed and judgment affirmed May 1, 1913.


text:
    Abner T. Young and Michael Reilly, Appellees, v. Macdonald Engineering Company, Appellant.
    Gen. No. 17,512.
    1. Contracts—extra work. In an action on a subcontract evidence as to the value of excavation work below the depth shown by the plans embraced in the subcontract is properly stricken out.
    2. Damages—where subcontractor is unable to complete contract. In an action for work and material, where plaintiffs were unable to complete their contract with defendants to construct foundations for pumping stations and defendants finished the work charging plaintiffs with the cost, it is improper to allow plaintiffs for material used by defendants which was not charged to plaintiff and for which plaintiffs received the benefit in reduced cost.
    3. Appeals and errors—verdict not sustained though evidence of successful party is sufficient when considered alone. The doctrine that a court of review will not reverse a judgment where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict, has been practically abrogated.
    4. Instructions—when covered by another instruction. An instruction is properly refused when covered by another instruction which is given.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 30, 1913.
    George N. Woodley and Carleton" H. Pendleton", for appellant.
    Alexander & Coburn", for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action in assumpsit instituted in the Circuit Court by the appellees, co-partners, doing business as A. T. Young & Co., against the appellant, a corporation, to recover $1,905.79, claimed to be due from appellant for work and material, and wherein appellant filed its plea of set-off, a trial by jury resulted in a verdict and judgment against appellant for $1,332.79, to reverse which judgment this appeal is prosecuted.

Appellant having procured a contract from the City of Chicago for the installation of certain coal-handling and storage machinery at two pumping stations, known as the Central Park avenue pumping station and the Springfield avenue pumping station, sub-let the necessary foundation work for said machinery to appellees, on December 30, 1898. In May, 1899, appellees having completed the necessary work at the Central Park avenue station moved their machinery and tools to the Springfield avenue station, where, after having performed a small portion of their subcontract, they were directed by appellant to cease work until certain other work, then being performed by other sub-contractors, had progressed sufficiently to enable appellees to proceed with their sub-contract. Appellees thereupon discharged their laborers and undertook the performance of some work at Olney in this state. When the work was suspended at the Springfield avenue station, appellees had upon the ground there certain materials and tools consisting of cement, crushed stone, sand, lumber, wheelbarrows, shovels and picks, of the value of $693.50, which they permitted to remain until they should resume work. When it became possible and necessary to resume work at the Springfield avenue station appellees were unable to do so, by reason of the pressure of other work and their inability to procure the services of a competent foreman, and it was finally agreed between the parties that appellant should proceed and complete the work and charge the cost of the same to appellees, and in pursuance to such agreement appellant commenced the performance of the incompleted sub-contract in August, 1899, and finished the same in December following.

While the record is somewhat obscure upon the point, it is reasonably inferable therefrom that either in December, 1899, or January, 1900, appellant prepared and presented to appellees what purported to be a complete statement of the account between the parties covering the work performed at both stations, and that sometime thereafter a similar statement was prepared by appellees. The evidence leaves it in doubt whether the disputed items which appear upon the statement of account prepared by appellees were brought to the attention of appellant prior to the time this suit was instituted in January, 1901.

The two statements of account are in precise correspondence, except as to three items which constitute the subject matter of this litigation. As to the work at the Central Park avenue station, appellant’s itemized statement shows a balance due appellees of $634.09. Appellees have adopted the several items contained in this statement, but in addition to the balance there shown to be due them they claim $475.50 for “extra bills not allowed in statement, and other extra work.” This is the first disputed item, and the only item in dispute with reference to the work at the Central Park avenue station.

As to the work at the Springfield avenue station there are two disputed items, one of $800, claimed to be due to appellees for extra work, material lost, including sand, stone, cement, lumber and tools used by appellant, and one of $672.17, being 15 per cent, of the admitted exact cost of the work, claimed by appellant as a proper so-called overhead charge, necessarily and customarily included in the cost of the work. Excluding these two items of $800, so claimed by appellees, and $672.17, so claimed by appellant, the agreed statement shows a balance due appellees on the Springfield avenue station work of $6.20. Appellant’s statement covering the work at both stations, excluding the two items of $475.50, and $800, claimed by appellees for extra work, etc., and including the item of $672.17, claimed by appellant, shows a balance due appellant of $41.88.

It is insisted on behalf of appellant that the verdict is against the manifest weight of the evidence as to each of the three disputed items involved.

The evidence bearing upon the item of $672.17, being 15 per cent, of the cost of the work at the Springfield avenue station to cover alleged necessary overhead charges, including expert supervision and superintendence, liability insurance, wear and tear on machinery and tools, and general administration expenses, while conflicting, warranted a finding against appellant as to that item. As to such overhead charges the evidence tends to show that they were included, in the usual course of business, in the estimate made by appellant as the original contractor.

The two items of $475.50 and $800, respectively, claimed by appellees for extra work, material, etc., appear to be the product of an afterthought on their part, and while there is evidence tending to support their claim to the extent of $270 for ninety loads of cinders used in the foundation at the Central Park avenue station and included in the item of $475.50, the evidence is insufficient to warrant a recovery as to any other portion of either of said two items claimed by them. Other than the claim for cinders above mentioned, said items included claims for excavation work below the depth shown by the plans, and for the value of the' material which was left by appellees at the Springfield avenue station. The evidence relating to the value of the excavation work below the depth shown by the plans was properly stricken out by the court, because the same was embraced within the terms of the sub-contract, and there only remained to be considered the claim for the value of the material used in the work at the Springfield avenue station. It is not controverted that the material in question, or so much of the same as was fit for use, was used by appellant at the Springfield avenue station. It, however, clearly appears from the uncontradicted evidence that the cost of said material was not charged to appellees in the statement of account for work and material, and that appellees received the benefit of the value of said material in the reduced cost to them of the work done by appellant by the use of said material without charge therefor.

The doctrine announced in Calvert v. Carpenter, 96 Ill. 63, and relied upon by appellees, that a court of review will not reverse the judgment of the trial court where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict, has been practically abrogated in later cases. Bradley v. Palmer, 193 Ill. 15; Donelson v. East St. Louis & S. R. Co., 235 Ill. 625.

The eighth and ninth instructions tendered by appellant and refused by the court were sufficiently covered by the seventh instruction given at the instance of appellant.

Because the verdict is against the manifest weight of the evidence the judgment is reversed and the cause remanded.

Reversed cmd remanded.


author: Mr. Justice F. A. Smith

text:
    Pasquale Schiavone and Michael F. Schiavone, Trading as A. P. Schiavone & Son, Defendants in Error, v. Michael Deddo, Plaintiff in Error.
    Gen. No. 19,095.
    1. Municipal Court Act—statement of fact under Section 23. A document appearing in the record is not such a statement of facts as the Municipal Court Act, § 28, contemplates where it is not a hill of exceptions nor a stenographic report of the proceedings at the trial hut is a statement in detail of the evidence and contains a statement of the questions of law involved.
    2. Municipal Court Act—statement of facts may he stricken if it does not comply with, Section 23. The fact that a document in the record designated a statement of facts is not such a statement as the Municipal Court Act, § 23, contemplates is sufficient ground for striking it.
    3. Municipal Court Act—errors not considered which are hosed on insufficient statement of facts under Section 28. Where errors assigned are based entirely on a statement of facts which does not comply with the intent of the Municipal Court Act, § 23, such errors cannot he considered.
    Error to the Municipal Court' of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 1, 1913.
    Rehearing denied May 13, 1913.
    Bernard P. Barasa, for plaintiff in error.
    Perlman & Rosenberg, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

A motion is made on behalf of the defendants in error to strike from the transcript of the record herein the document therein contained designated “statement of facts,” and to affirm the judgment.

The document certified to by one of the judges of the Municipal Court of the city of Chicago, designated as a “statement of the facts disclosed by the evidence in the cause,” is not such a statement of facts as Section 23 of the Municipal Court Act contemplates. The statement is not a bill of exceptions, nor does it purport to be a stenographic report of the proceedings at the trial. It is a statement of the evidence offered at the trial and includes in detail the evidence in a narrative form, giving the direct examination and cross-examination of the witness and certain admissions made upon the trial. To the evidence thus stated is appended a statement of the questions of law involved in the case. The document appearing- in the record does not comply with the intent of the statute in that, as above suggested, it is a statement of the evidence instead of being a statement of facts.

While other grounds are urged in the motion for striking the statement from the record, the foregoing ground is sufficient, and we do not deem it necessary to pass upon the other grounds urged. The statement, so-called, will he stricken from the record.

An examination of the errors assigned on the record shows that they are based entirely upon the so-called statement of facts and no other grounds are presented. The errors assigned cannot, therefore, be considered and the judgment must be affirmed.

Affirmed.


author: Per Curiam.

text:
    Louis Henry, Plaintiff in Error, v. Pennsylvania Railroad Company, Defendant in Error.
    Gen. No. 18,597.
    Appeals and ebbobs—failure to file abstract and brief. A writ of error may be dismissed for failure to file abstract and brief in accordance with the rules where additional time was given on four occasions and the fifth motion for an extension of time was made four days after the date' fixed for the filing of them by the last order.
    . Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Dismissed.
    Opinion filed May 2, 1913.
    Henry & Robinson, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.
   Per Curiam.

A motion has been made in this case to dismiss the writ of error for failure of the plaintiff in error to file abstract and brief in accordance with the rules.

There is said to be $11.00 involved in the case. There was a judgment for the defendant in error in the Municipal Court for costs against the plaintiff, and the case has been brought here by writ of error prosecuted by the plaintiff. Additional time to file an abstract and a brief has been given by order of court on four occasions. A fifth motion for an extension of time was made four days after the date fixed for the filing of them by the last order. That motion is denied and the motion of the defendant in error that the writ of error be dismissed is allowed.

Writ of error dismissed.


author: Mr. Presiding Justice Dibell

text:
    William H. Reeves, Appellee, v. John H. Roth, Appellant.
    Gen. No. 5,650.
    1. Slander—plea of not guilty. A plea of not guilty in slander admits that the words- alleged were not true but denies that they were spoken.
    2. Slander—instructions. In an action for slander defendant is not harmed by an incorrect instruction which directs a verdict for plantiff, an architect, but does not leave it to the jury to determine whether the allegations of the declaration were proven that defendant meant to, and did convey by the words spoken, the meaning that plaintiff was unreliable and dishonest in the practice of his profession where such instruction requires the jury to find that the words were spoken of plaintiff concerning his profession and other words proved to have been spoken at the same time were such that the jury could not have failed to find that the words set out in the declaration were spoken with the meaning aforesaid.
    3. Damages—when excessive in slander action. A judgment for $2,000 in an action for slander is excessive and should be reduced to $1,000 where it is proved that defendant said of plaintiff, an architect, that he was “the biggest crook and grafter in town,” but there is no proof of the wealth of defendant nor any averment or proof of special damages.
    4. Costs—against appellee where judgment affirmed after remittitur. On appeal from a judgment for plaintiff where the judgment is affirmed after a remittitur is filed by appellee as required, costs will be awarded against appellee.

      Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed on remittitur.
    Opinion filed October 15, 1912.
    Rehearing denied April 3, 1913.
    B. H. Badlby and Weil & Bartley, for appellant.
    Quinn, Quinn & McGrath and Clarence W. Heyl, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee sued appellant for slander. The first and second counts of the declaration charged that appellant said of appellee that he “is a crook and a grafter.” The third count charged that appellant said to appellee in the presence of others that he had said in the office of a certain justice of the peace that “you were the biggest crook and grafter in town.” There were also fourth and fifth counts, which were not supported by any proof. Appellant’s only plea was not guilty and this admitted that the words alleged were not true, but denied that they were spoken. Spolek Denni Hlasatel v. Hoffman, 204 Ill. 532. On a jury trial appellee had a verdict for $5,000, remitted $3,000 and had a judgment for $2,000, from which defendant below appeals.

Appellee proved the speaking of the words charg'ed in the first and second counts in the office of a justice of the peace, and the speaking of the words charged in the third count on the street near by, when appellant left the office of the justice and met appellee on the street. Appellee is an architect. He had drawn plans for a house erected by appellant and also plans for bookcases in said house, and appellant had been sued for some matter concerning said bookcases, and the suit seems to have been on trial and appellee had been sent for to serve as a witness, but had not arrived when the words set forth in the first and second counts were spoken. The suit was then in some way disposed of and appellant went upon the street and met appellee and in the presence of others told appellee what he had just said about him. Appellant contended that what he said in the office of the justice was that if appellee said that he had seen the bookcases he would be a crook, and he denied that on the street-he called him anything but a liar. The clear preponderance of the evidence is that appellant spoke the words set forth in the first three counts of the declaration. There was no proof of the wealth of appellant, nor was there any averment or proof of special damages to appellee, and we are of the opinion that the judgment is still excessive, and that it should be reduced to $1,000 or that a new trial should be awarded. We are disposed to consider the first instruction, given at appellee’s request, as incorrect. It directed a verdict and did not leave it to the jury to determine whether the allegations of the declaration were proven that appellant meant to, and did by these words convey to those who heard him speak, the meaning that appellee was unreliable and dishonest in the practice of his profession and would defraud or assist in defrauding persons who employed him as an architect. That instruction did require the jury to find that the words were spoken of appellee concerning his profession, and other words which were proved to have been spoken at the same time were such that the jury could not have failed to find that the words set out in the declaration were spoken with the meaning aforesaid, and therefore appellant was not harmed by the omission.

This opinion will be lodged with the clerk and the parties will be notified and, if within five days $1,000 of the judgment is remitted, the judgment will be affirmed in the sum of $1,000 at the costs of appellee. If not, the judgment will be reversed and the cause remanded.

Appellee having filed a remittitur herein in the sum of $1,000, the judgment is therefore affirmed in the sum of $1,000, at the costs of appellee.

Affirmed on remittitur„


author: Mr. Justice Whitney

text:
    Allen N. Smith, Appellee, v. William H. Hart, Appellant.
    Gen. No. 5,645.
    1. Partnership—verbal arrangement. A partnership to deal in real estate may exist by a verbal arrangement and such an arrangement is not within the Statute of Frauds.
    2. Partnership—how intention of parties in their dealings ascertained. Where it is alleged that certain parties were partners, their intention in their dealings must be ascertained from their acts, words and conduct.
    3. Partnership—when may be found that contract of, was made. It can well be said that a contract of partnership was made where many real estate deals were jointly made by the parties and the profits and losses divided and they did business from time to time in their names as a firm and one or more witnesses testified that one of the parties said they were partners in a certain deal which admission is denied only by such party.
    4. Partnership—misappropriation of assets. If two parties were partners in a deal involving a certain farm and one reported to the other that he paid $80 per acre for it when he paid $75, and sold it to the other who paid a profit on it on the basis of the cost having been $80, such conduct on the part of the one amounted to a misappropriation of partnership assets.
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 2, 1913.
    Henry S. Dixon and George C. Dixon, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee filed a bill in chancery against appellant for an accounting, alleging that the parties were partners, in general partnership to buy, sell and trade in land, and other property, and share the profits and losses equally; that the partnership commenced about September 1, 1904, and continued until about July, 1908. An answer was filed denying partnership. The cause was referred to a Master in Chancery to take and report the proofs only. On a hearing in the Circuit Court it was decreed that the parties were partners and on the accounting the court found appellant owed appellee $800, and gave a judgment and decree therefor against appellant. The case is brought to this court on appeal.

Numerous errors are assigned on the record, but as only questions of fact as to the weight of the evidence are touched upon in appellant’s brief and argument, together with the law claimed to be applicable, the case resolves itself into one of the evidence (no point being made in the argument on the erroneous admission or rejection of evidence) and the law applicable to the facts proven.

It is clear from the evidence of both parties that there was no written contract of partnership, and in such case all the evidence must be construed in the light of what is actually proven as to the dealings of the parties with each other, and the manner in which each party dealt with others, with knowledge, actual or constructive, of the other party.

The intention of the parties in dealing must be ascertained from their acts, words and conduct. Bowen v. Rutherford, 60 Ill. 41; Van Buskirk v. Van Buskirk, 148 Ill. 22; Briggs v. Kohl, 132 Ill. App. 484; Heyman v. Heyman, 210 Ill. 524; Haug v. Haug, 193 Ill. 645. A partnership may exist even to deal in real estate by a verbal arrangement, and such an arrangement is not within the Statute of Frauds. Van Housen v. Copeland, 180 Ill. 74.

Having seen that by the law a partnership may exist under a verbal agreement, that the agreement may be either expressed or implied, and that the existence of the agreement may be proven by either direct or circumstantial evidence, there remains but the question of the facts in evidence in the case to determine whether or not a contract of partnership existed between the parties to this suit.

Appellee testified that a verbal contract of co-partnership was entered into. It is conceded that a great many real estate deals were made and the profits divided; that a great number of other deals were started, but never completed, and the expense thereof borne by the parties jointly and that occasional settlements of profits or losses, as the case might be, were made.

Appellant contends however, that each real estate deal was a separate and distinct matter, and that the parties were jointly interested in each deal as it came along, but that no partnership existed at any time.

Appellee is corroborated by the circumstances conclusively shown in evidence. The parties did business, at least from time to time, and a number of times, in the firm name of Smith & Hart; kept funds in the bank from time to time in the name of Smith & Hart; that they jointly dealt in many farms, and shared the profits, and jointly paid the expenses of other deals.

Appellee testified that the McGrinness farm deal was one on which he put much work, and it is shown by the evidence that the expense accounts were settled between the parties, which accounts contained items of expense paid in connection with the McGrinness farm.

One or more witnesses testified for appellee that Hart said he and Smith were partners in the McGrinness deal.

Appellant alone denies this admission, and alone testified that he and appellee were not partners at any time.

The circumstances, which are uncontroverted, show a course of dealing between the parties from which it could well be said that, appellee was amply corroborated in his testimony, that a contract of partnership was made.

The only matter claimed to be unsettled was the Mc-Grinness farm deal, involving 320 acres of land, and the court below was justified, from the evidence, in finding that the deal on that farm was a partnership matter.

It is shown by the evidence that appellant reported to appellee that he, appellant, paid $80 per acre for the farm, while the evidence of the man who sold the farm was that appellant paid him only $75 per acre for it.

Appellee bought the farm from appellant and paid a profit on it on the basis of the cost having been $80 per acre, thus leaving $5 per acre to be accounted for in the partnership accounts.

If a partnership is held to have been proven between the parties as to this farm, the conduct of appellant amounted to a misappropriation of partnership assets .to the amount of $800 of appellee’s money.

We are of the opinion that the holding of the trial court was right on both the law and the facts, and therefore the decree is affirmed.

Affirmed.


text:
    Elizabeth Hardin, Appellee, v. City of Moline, Appellant.
    Gen. No. 5,657.
    1. Evidence—as to position of injured party in the family. In a personal injury action an objection to the testimony of plaintiff that she had four children and a husband and her occupation was doing washing and janitor work is properly overruled.
    2. Cities and villages—notice of defective sidewalk. In a personal injury action evidence that it was customary for the police to report defects in the sidewalks; that the reports were put on slips which were collected by the Street Commissioner; that the defect in question was reported two days before the accident and that the Street Commissioner was on duty at that time, is sufficient to charge the city with notice.
    3. Cities and villages—questions for jury. Where it appears that defendant, a city, was charged with notice of a defective sidewalk and neglected to make repairs and as a result plaintiff sustained injuries, the court does not err in not directing a verdict for defendant.
    4. Damages—where verdict is not excessive. A verdict for $1,450 for injuries sustained by a woman through falling on a defective sidewalk is not excessive where plaintiff was unable to work for two years and thereafter her earning capacity was reduced about half, and prior to, the accident she was accustomed to work six days a week, earning one dollar and a half a day.
    5. IrrsTBUCTTOirs—when need not contain all elements necessary to recovery. Where an instruction does not direct a verdict it need not contain all elements entitling plaintiff to recover.
    6. Instbuctions—when not error to refuse. It is not error to refuse an instruction which is merely an abstract proposition of law.
    7. Instbtfctions—where instruction does not assume defendant liable. An instruction to the effect that if the jury believe that defendant city negligently permitted a hole to remain in the sidewalk and knew or by the exercise of reasonable care might have known of said hole for a sufficient length of time to repair it, then plaintiff is entitled to recover, is not open to the objection that it assumes the city liable.
    8. Insteuctions—when refusal of instructions is not reversible error. The refusal of proper instructions is not reversible error where such instructions if given would not have changed the verdict.
    Appeal from the Circuit Court of Rock Island county; the Hon. William H. Geist, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 3, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Gr. A. Shallberg, for appellant.
    Peek & Dietz, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee was injured by falling into a hole in a sidewalk in the City of Moline. In her declaration she charges appellant with negligence in that it permitted the said sidewalk at the place where the hole existed to he and remain in an unsafe condition, after notice, etc., and in failing to properly light that portion of the street in which the alleged defect existed. The plea of not guilty was filed, and a trial had, resulting in favor of appellee, with verdict and judgment against appellant for $1,425. An appeal is prayed to this court, with 17 errors assigned, but appellant presents in argument only the following:—(1) It was improper .to introduce proof that plaintiff was the head of a family; (2) There was no proper evidence introduced to show either actual or implied notice to the City of Moline of the alleged defect in the sidewalk; (3) The verdict of the jury is against the weight of the evidence ; (4) The court erred in not directing a verdict for defendant, (a) at the close of plaintiff’s case, (b) at the close of all the evidence; (5) The damages awarded are excessive; (6) the court erred in giving plaintiff’s instructions Nos. 1, 2 and 3 as modified; (7) The court erred in refusing defendant’s instructions Nos. 2, 3 and 5; and on the grounds pointed out in the argument appellant seeks a reversal, thereby waiving all other errors assigned.

Taking up the points made in argument, the first to be considered is the alleged improper introduction of evidence showing the members of the family of appellee. There is no proof in the record that appellee was the head of a family, or that any one of the members of the family was dependent on the earnings of appellee for support. Indeed, it is shown by the evidence that appellee lived with her husband, who in law is the head of the family.

The evidence on the subject of the members of the family is as follows:—(Appellee’s Testimony.) “I have a family; I have four children and a husband; my occupation during the last eight or nine years has been washing, ironing and janitor work;” which testimony as the questions were asked was objected to as irrelevant, incompetent and immaterial, and the objections were overruled.

Under the authority of City of Joliet v. Conway, 119 Ill. 489, the overruling of the objections to this evidence was not error. The only theory on which it could be contended to be erroneous was that such evidence might tend to arouse the sympathy of the jury; but appellant is hardly in condition to make that point, and cannot avail itself of the objection to appellee’s testimony, because without objection it was allowed to be shown for appellee by the witness Fanny Lee, that she was a daughter of appellee and lived with her father and mother, and that she had two sisters and one brother.

The evidence of the witness Fanny Lee was substantially the same as that of appellee on the same subject, so that the jury had the very same evidence before them, whether they considered the evidence of appellee, which was objected to, or the evidence of Fanny Lee, which was not objected to.

The second point made in the argument is the lack of evidence to show notice to the city of the defect in the sidewalk. The proof was that years before, under a former Mayor, the practice had been inaugurated and followed of having police officers, when they came into the office of the police, before leaving, after having been on duty, to report to the desk officer all defects they had found in the streets and sidewalks, and of having the desk officer make a notation thereof in a book, and prepare a slip, giving an indication of the defect and its locality, and hanging the slip on a certain hook in the office for the superintendent of streets, and of having the street superintendent go to that office at least once each day, and get these notes or slips, under orders to proceed to make necessary repairs at once, without waiting for any special order from the Mayor.

The proof further is that this practice had been followed after that Mayor had retired, and the Mayor came into office who was in office at the time of the accident, and that the police records show under date of' August 29, 1907, two days before the accident, “Wash-outs on 9th. Avenue between 27th. and 29th. streets. Rept. to Comr.” It was also proved that this was made by the desk officer, and that the abbreviation above quoted meant, “Reported to Street Commissioner,” and that the place specified was the place where the accident occurred; that the slip containing the entry was placed on the Street Commissioner’s hook in his office; that the Street Commissioner came into that office every morning between seven and eight o’clock, and took such slips as were upon the hook, and that the Street Commissioner was on duty during the entire month of August, 1907, and always got the slips.

It is not contended by appellant, at least it is not pointed out in the argument, how this evidence was incompetent, irrelevant and immaterial any further than to say so, but the only point to be gleaned from the argument is, that the proof does not go far enough, and show that at the time of the accident, any one had been instructed by resolution or ordinance to report defects, make entries in the book, or on slips and hang the slip on the hook; and that it did not appear from the evidence by a like resolution or ordinance that the Street Commissioner had been instructed to collect the slips. In short, that it is not shown it was the legal duty of anybody to do anything so far as streets and sidewalks are concerned. The Street Commissioner, Hanson’s testimony, was given on a former trial, and read at this trial, said Hanson having died before the second trial. He testified as to directions given him by the Mayor who succeeded the Mayor under whom the custom is claimed to have originated, and who was the Mayor at the time of the accident, and that those directions were in substance like the instructions under the former Mayor. He also testified to the slips, and to his getting them, and to Ms being on duty all of the month of August, 1907, so that the city must have had actual notice through the officer presumably actually charged with the duties of looMng after the streets and sidewalks.

If the Street Commissioner had notice acquired in any way it amounted to notice to the city. Under the authority of City of Joliet v. Looney, 159 Ill. 471, this was sufficient notice and the evidence in the record in the relation thereto was, in the main, competent and admissible, at least we see no reversible error in its admission.

The next point made in the argument is that the verdict is against the weight of the evidence. This was a question for the jury. There was proof that appellee fell into a hole in the sidewalk, and that she was hurt thereby; that she was attended by physicians for treatment for the injuries resulting from the accident; that she had to be sent to the hospital, where an operation was performed, by which a part of the shin bone was removed; that she incurred quite a large expense for medical and surgical attendance. This is in no way rebutted or denied. If the city was chargeable with notice of the defect in the sidewalk that caused the injury when appellee fell, and had reasonable time after getting such notice to repair the defect, and did not, then as a matter of law, under the evidence, it was liable. We hold the city was liable. This being our opinion, we hold that the court did not err in not directing a verdict, which disposes of the fourth point made in the argument.

On the question of the damages being excessive, there is nothing in the evidence to indicate passion, prejudice'or improper conduct.on the part of the jury, and the verdict is as near the actual damages shown in the evidence as a jury would naturally arrive at.

Appellee was accustomed to work six days in a week, earning $1.50 per day. She was incapacitated for work about two years. She had to walk on crutches thereafter and was able to work but a part of the time. She suffered serious pain. The trial occurred about four years after the accident, and there was proof that for two years she could not work at all, and after the two years her earning capacity was reduced by about one-half. Her loss of earnings and her physician’s bill would amount to nearly as much as the verdict, to say nothing of the pain and suffering. The amount of damages was for the jury to determine, and unless it appears that the jury were moved by passion or prejudice, or something outside of the evidence, their verdiet should not be disturbed on account of its amount.

As to the error in giving plaintiff’s instructions Nos. 1, 2 and 3 as modified: Instruction No. 1 does not direct a verdict, therefore it was not necessary for it to include all of the elements entitling the plaintiff to a recovery. It purports to say what would be negligence on the part of the city only. The defendant might be guilty of negligence, and yet, the plaintiff might not be entitled to a verdict. The negligence of the defendant is one thing, that of the plaintiff another, and inasmuch as the instruction did not direct a finding of guilty, it was not error to give it.

Our views on the questions of fact involved in the first instruction are herein stated, and we are not inclined to reverse the judgment on account of the giving of this instruction.

The criticism made on the second instruction is that it is faulty in that it assumes the city liable, whether there was any notice to the city or not. We do not think it subject to that criticism. By it, the jury were told, if they believed the city negligently permitted a hole to remain in the sidewalk, and that the city knew, or by the exercise of reasonable care might have known of said hole, for a sufficient length of time to repair it, etc., then, believing other things enumerated in the instruction, the plaintiff was entitled to recover.

There was sufficient evidence on which to base the third instruction. Dr. Bennett testified as to his services, and that they were reasonably worth from $150 to $200, and that appellee had paid him $90 of it by her labor.

We have not carefully examined the record as to other payments, if any, or physician’s charges, if any, but in our judgment there was sufficient evidence to warrant the giving of this instruction, because by it the jury were told to take into consideration the proofs, if any, of physician’s bills paid, or what appellee had become liable for as shown by the evidence.

Appellant’s refused instructions Nos. 2, 3 and 5 were properly refused. The third instruction was merely an abstract proposition of law, for the refusing of which no error can be successfully' urged. The second and fifth instructions were misleading. There was nothing direct in the evidence from which neglect could be inferred to secure medical attendance.

The evidence shows about the usual course taken in this case that is pursued by people in appellee’s walk in life. Not calling a physician until home remedies are exhausted is commonly resorted to by people in that rank. Appellee testified that she called in Dr. Sargent, Monday or Tuesday, and that the accident happened Saturday night. Dr. Sargent says it was September 12th when he was called, and then he did not treat appellee’s leg, and never did. The injury to her leg which, according to the evidence, did not seriously develop at once, more than an apparent bruise, was the principal cause of appellee’s trouble, and that trouble was first treated by Dr. Bennett.

The refused instructions were well calculated to mislead the jury in that regard, and it is not seen how the verdict would have been different if these instructions had been given, so if it was error to refuse them, it was not an error of sufficient magnitude to warrant a reversal.

Seeing no reversible error in the record, the judgment of the court below is affirmed.

Affirmed.


text:
    Harry L. Richardson, Appellee, v. Iowa Central Railway Company, Appellant.
    Gen. No. 5,672.
    1. Master and servant—presumption that hraKeman Knows danger of crossing switch. It is presumed that a hrakeman knew the location and construction of a switch and the danger of crossing in front of a moving car.

      2. Master and servant—where tie in railroad is partly "burned away. Where plaintiff, a hrakeman, is injured while crossing a switch in front of a moving car, it is not negligence for the railway company to have a partly burned tie in the track when the injury cannot be attributed to it.
    3. Master and servant—choosing unsafe method. Where a brakeinan is injured while coupling the air brakes on moving cars when he could just as well have done so while they were standing still, he assumes the risk incident to the operation.
    4. Master and servant—custom of others in same hind of occupation does not excuse one who tahes rish. The fact that it is the custom to couple the air brakes while cars are in motion does not relieve a hrakeman of the duty of exercising- due care for his own safety.
    5. Master and servant—contributory negligence. Judgment for plaintiff reversed where the evidence shows plaintiff was not in the exercise of due care for his own safety at the time he received the injury and his negligence resulted in his injuries.
    Appeal from the Circuit Court of Mercer county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.

    Reversed with finding of facts.
    Opinion filed October 15, 1912.
    Rehearing denied April 3, 1913.
    George W. Servers, , W. H. Bremner and W. J. Graham, for appellant.
    John M. Wilson, N. F. Anderson and James H. Andrews, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee commenced his suit against appellant to recover for injuries alleged to have been sustained by him, while acting as a hrakeman on a freight train of appellant at Monmouth, Illinois, on the morning, of October 17, 1909. His declaration alleges negligence of appellant in its railroad yards at Monmouth. By the first count of the declaration it is alleged that appellant was negligent in not keeping its tracks ballasted, and in allowing spaces to remain between the ties and underneath the rails in which there was no ballast. The second count of the declaration alleged the operation of the railroad, and that it was the duty of appellee to assist in adjusting and lining up the air-brake devices on his train, and to run over the ties, rails, etc., of appellant, in the yards at Monmouth, while his train was being made up; that there was a certain switch constructed in such a defective manner on account .of a burned or chiseled tie, that while appellee was performing his duties, his foot caught under a part of this switch, and between certain ties used in the construction of the switch, and thereby he was run down by the train in question and injured. A trial was had, resulting in a verdict and judgment of $7,000 damages, and defendant below appeals.

The train was No. 96 and was running from Oskaloosa to Peoria, passing Monmouth on the trip. Under the rules of appellant, when the train arrived, it passed into the custody of the yard master and his crew, who did the switching and cutting out of cars to be there left, and the switching crew made up the train again, when it was placed in charge of the train crew. The train crew were then required to couple up the air on the brakes and proceed. With the train in question, this course was pursued, and at the time the accident happened, the switching crew were in charge of the train, doing the necessary switching. Before the switching was finished, appellee found that it would save time for the train crew, if he coupled up the air while the train was being made up. A cut, as it is called, of the cars was then being backed west by the yard crew for the purpose of coupling it to another part of the train. Appellee, while the cars were in motion, started to fix the air brake ready to be coupled, when the two parts of the train came together, and in so doing started to run across the track just in front of a freight car then being pushed west. He stumbled and fell on the track, was caught by a freight car and his arm crushed.

He contends that he caught his foot on the rail, on one side or the other of the switch, alleged in the declaration to be defectively constructed, and that at that point the tie underneath some iron plates had been burned, or in some way worn down so that there was a larger space than there otherwise would have been underneath the rail, and that it was the negligence of appellee to use a tie, or suffer one to remain in that was partially burned.

We are satisfied from the proofs that at the switch stand in question there could not be sufficient movement of a switch bar to answer the purposes of a switch, without there being a space under each rail large enough so that any one crossing the track, could catch his toe under the rail in the open space.

Appellee was a railroad man and must be presumed to have known that switch stand was there, and to have known, in a general way at least, the construction of railway switches, and that it was dangerous to cross in front of a moving car at a switch, and if he caught his foot there, we are of the opinion he must be considered to have been injured by his own neglect, and that it was not negligence for the company to have an opening under the rail at the switch, and that the part burned away, or worn away, but slightly increased the size of the hole underneath the tie, and that the injury cannot be attributed merely to that.

There is a conflict in the evidence, at least, from which it might appear that appellee was not injured at the place where the switch is located, but 15 or 20 feet further west, where there was no hole under the rail, and that in fact he simply stumbled over the rail itself, through his own carelessness.

It is apparent from the evidence, that appellee knew of the existence of a rule of the company, by which, when the train reached the yards at Monmouth, it went into the charge of the switch crew, so that he could hardly be said to be in the line of his duty at the time he was injured.

This is substantially his story of the accident, and on that alone we think it is clear that he was guilty of negligence. This is.what he testified to: “When Hawkins went out I knew he was the switchman. I did not see him give any signal. I might have seen him, hut I did not pay any attention to it. Was not out there watching them switch. Failor (the yard foreman) came in also. He told me they had another cut to make. I knew they had that one cut to make. I did not see Hawkins signal to go back on the train when they did. I had not given any signal yet. I knew when he did signal that train to the engineer, that they would back that section down, and I went behind those cars, knowing they were going to back them down there sometime. I knew they would back them down in time, but did not know how soon they would do it. I knew when I went behind that car that they might back on me at any time. I knew it was their business to finish that switching, and I knew the switching was not done. I went across there to turn that air cook, or angle cock. I knew in a way that" after the cars were backed down onto the rest of the train, and the engine brought back and put on the train, that the switch crew would then leave that place and turn the train over to the train crew, but they never notified us, or anything of that kind. I knew that after the train was made up, I would have an opportunity to turn these angle cocks, and line up my air. That could have been done by our train crew when the train was standing still, but I went through there behind that car to turn that angle cock to save time, and by that I saved four or five minutes.”

It was attempted to be shown by appellee that it had been the custom for years for train men to adjust the air brakes whenever they could, sometimes while the train was being made up, and sometimes after it was made up; but in either event, whether it was a custom or not, it is clearly apparent from the evidence that the air brakes could have been adjusted after the train was made up, for he testified the train would have waited until he had finished doing the work. He sought to fix the air brakes while the cars were in motion, when he could have done it when the cars were standing still. It is clear that the adjusting of the air brakes while the cars were in motion was far more dangerous than fixing them while the cars were standing still. If one mode is in fact more dangerous than another, and he had his option to choose between the dangerous and the less dangerous, and voluntarily-adopted the more dangerous method he cannot recover, if injured, because his course was not dictated by ordinary care for his own safety. Peoria, D. & E. R. Co. v. Puckett, 42 Ill. App. 642.

If he could adjust the air brakes while the cars were standing still, he had no right to do so while the cars were moving, and if he did so, he assumed the risk incident to that operation. In other words, to save a few minutes in time, when he had the option of choosing the safer method, he had no right to imperil life or limb. Henderson v. Coons, 31 Ill. App. 75. The evidence as to the practice of others in coupling the air brakes does not help him out because merely showing the custom or practice of others would not relieve him of the duty of exercising due care and caution for his own safety.

The customary way might be a very negligent way, and even though the practice had been so long established that the company could be charged with notice of it, still, appellee would not be excused thereby from the duty of using care for his own safety. Union Wire Mattress Co. v. Wiegref, 133 Ill. App. 514; Chicago, R. I. & P. R. Co. v. Clark, 108 Ill. 113.

In the view this court takes of this case it is considered unnecessary to pass on the questions of the rulings of the trial court on the evidence, or alleged errors in the giving or refusing of instructions.

The evidence shows to the satisfaction of this court that appellee was careless; that he was not using due care and caution for his own safety at the time he was injured. The judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that appellee was not in the exercise of due care for his own safety at the time when he received the injury, and that he was guilty of negligence which resulted in his injuries.


text:
    J. E. House, Appellee, v. John Linn & Company, Appellant.
    Gen. No. 5,677.
    1. Chancery—when cross-bill not necessary on bill for an accounting. Where a bill for an accounting between the parties as co-partners contains a statement that complaiannt is ready and willing and oilers to pay defendant what, if anything, appears to- be due on taking the account no cross-bill is necessary for any relief defendant may seek on the subject of an account.
    2. Accounting—when findings of master sustained by the trial, court not disturbed. Findings of a master on an accounting sustained by the trial court will not be disturbed on appeal unless clear mistake or fraud is shown.
    3. Partnership—when partner estopped from demanding details of expense of certain work on bill for accounting. Complainant in a bill against his copartner for an accounting is estopped from demanding details of the expense of picking and loading certain apples where he was present at various times when they were being picked and packed and acquiesced when the copartner told him that it was inconvenient to keep the cost of each car separate, and where he accepted statements showing the gross expense without calling for details.
    4. Partnership—when partner justified in dealing outside partnership. Defendant in a bill for an accounting by his copartner will be held justified in buying apples from a certain orchard and selling them to third parties where complainant by letter informed him that unless he could get better apples from such orchard he need not ship them but could buy them himself and have whatever there was in it.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 3, 1913.

      Sheen & David, for appellant.
    Page, Wead, Hunter & Scully, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This appeal involves questions of fact only, as appears from the assignment of errors. A Bill in Chancery was filed by appellee against appellant for an accounting between the parties as co-partners. Issues were made up, and the cause referred to a Master to take proofs and state and report an account, together with the testimony. The bill contained the usual prayer for an accounting, the complainant stating therein that he was ready and willing, and offered to pay to the defendant, what, if anything should, upon the taking of the account, appear to be due from him, so that no cross-bill became necessary for any relief the defendant in the bill might seek on the subject of an account. Clinton v. Winnard, 135 Ill. App. 274.

The master took the proofs, stated the account, and reported the same together with the evidence. Objections were heard before the Master and overruled, and the objections were made exceptions in the Circuit Court and overruled, and a decree was entered in favor of appellee for $149.83.

Appellant brings the case to this court by appeal. The findings of the Master upon an accounting, sustained by the trial court, on conflicting evidence, will not be disturbed on appeal unless clear mistake or fraud is shown. Williams v. Lindblom, 163 Ill. 346. We have examined the record in this case to determine whether there is any evidence of fraud or mistake, and see nothing that will justify a reversal on that account.

The facts and the proceedings in this case briefly stated, as shown by the record, are that appellant was a dealer in apples in Peoria. Appellee and appellant entered into a partnership arrangement by which appellee was to go into Green county, Illinois, and buy apple orchards, and pick and ship the apples to appellant at Peoria, and the latter should sell them, and they should divide the profits equally. One orchard (Prindle’s)' was bought and shipped, and certain carloads were bought, picked and shipped from an orchard known as Seel’s orchard. When the work was completed and the apples sold, the partners disagreed as to the results, and this proceeding was the result of the disagreement.

Appellee charged thé expense of picking and loading each car, in gross, and was unable to give at the hearing the items in details malting up said expense, and it is claimed appellee owed it to his partner to keep an itemized statement of his expense, and that the master erred in allowing him the expense in gross, when he could not give the items. As to several of the cars, the partners stipulated that the items named in gross were the expense on those cars. The evidence shows that appellant was present at various times when apples were being picked and packed, and appellee told appellant it was not convenient to keep the expense of each car separate, and that appellant acquiesced, and that he received cars where the statements showed the gross expense and accepted the statement, and did not call for details. We think the master rightly concluded that by his course of conduct, he was estopped from demanding details from appellee so long afterward. At a certain stage in the work appellee ceased to pick and ship apples to appellant from the Seel orchard, but did thereafter buy apples from that orchard on his own account, and sold them to others than through appellant. Appellant claims appellee had no right to do this, and that he was entitled to an accounting thereof. Appellant wrote a letter to appellee in which he told appellee that unless he could get better apples from the Seel orchard than those already shipped, he need not ship any more from the Seel orchard, but that he could buy those himself if he wanted to, and have whatever there was in it. This justified appellee in dealing thereafter with the Seel apples alone, outside of the partnership, and he did so. There is a controversy between the parties as to the number of barrels of apples contained in the last car received, whether it was 140 barrels as appellant claims, or 160 as appellee claims, and what the receipts were from those apples. Upon this question the evidence was conflicting. Appellee swore 160 barrels were shipped. The bill of lading seems to show 160 barrels, and appellant once stated there were 160 barrels. There is evidence there were only 140 barrels. The evidence is conflicting as to how much was received for those apples. Appellant now claims that many barrels were rotten and lost. There is evidence supporting the report, and evidence against it. And indeed appellant once stated he got $3.85 for these apples, which he afterwards denied. The master saw these witnesses who gave this conflicting testimony. 'There is testimony in the record to support the master’s conclusion. He evidently believed the witnesses for appellee. There is no such great preponderance of the evidence for appellant as to authorize us to reach a different conclusion. The master’s report is well supported by the evidence. Seeing no error in the record the decree of the court below is affirmed.

Affirmed.