text:
    Daniel Ryan, Appellant, v. Associates Investment Company of Illinois, Appellee.
    Gen. No. 40,035.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    Ryan, Condon & Livingston, Fishman & Fishman and Lester E. Williams, all of Chicago, for appellant; John M. Tuohy, of Chicago, of counsel.
    Eckert & Peterson, of Chicago, for appellee; A. R. Peterson and Tom Leeming, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Daniel Ryan, plaintiff, brought an action for personal injuries against Associates Investment Company of Illinois, a corporation, and Harold L. Secor, Ellis Secor and Arthur Secor, copartners, doing business as Fort Dearborn Garage, defendants. At the close of plaintiff’s case, Ellis Secor and Arthur Secor were dismissed as defendants, on plaintiff’s motion. The jury returned a verdict against Harold L. Secor and Associates Investment Company, the remaining defendants, in the sum of $12,000. An oral motion for a new trial, made on behalf of defendant Harold L. Secor was overruled. No notice of appeal was filed by him, nor has his appearance been filed on appeal. A written motion for a judgment notwithstanding the verdict and in the alternative for a new trial was made on behalf of Associates Investment Company. The motion for judgment notwithstanding the verdict was granted and a judgment was accordingly entered in favor of that defendant, from which plaintiff appeals.

During the pendency of the appeal counsel for Associates Investment Company moved for a rule upon plaintiff to disclose whether or not any, and if so what sums of money have been paid to him by or on behalf of Harold L. Secor on account of the judgment, and in response to that rule counsel for Secor acknowledged that subsequent to the trial there was paid to plaintiff, on behalf of Secor, by the United States Mutual Insurance Company the sum of $5,000, and by way of counter suggestion plaintiff agrees that if this court should reverse the judgment notwithstanding the verdict and enter judgment here for plaintiff, that a credit of $5,000 be allowed on account of the verdict returned by the jury for $12,000.

It appears from the evidence that about 1 o’clock p. m., December 24, 1935, while standing on a safety island located adjacent to the northbound street car tracks on the southeast corner of Ashland avenue at its intersection with 17th street, Chicago, plaintiff was struck and injured by a tow truck owned and driven by Harold L. Secor, who was in the act of towing a damaged car to a garage where some of the repossessed cars, owned by defendant, Associates Investment Company, were temporarily stored. There is evidence tending to show that the tow truck was being driven at an excessive rate of speed and that it ran up and upon the safety island where plaintiff was standing. No proof was offered by defendant, Associates Investment Company, to rebut the evidence offered on the question of Secor’s negligence.

The principal question presented for determination is whether Secor was acting as agent for defendant, Associates Investment Company, and within the scope of his authority at the time and place of the accident, or whether he was an independent contractor, and collateral to this proposition there arises the further question whether the issue as to agency or independent contractorship was to be determined by the court or jury.

As applicable to these questions, the following salient facts appear of record: Associates Investment Company were in the business of purchasing automobile paper and also sold for cash, to used car dealers, automobiles that had been repossessed by the company, from conditional owners for failure to make instalment payments in accordance with their conditional sales contracts. The cars repossessed were picked up at various places in Chicago and surrounding territory. They were first located on the streets or in various garages around Chicago and vicinity by employees of the company, known as “collectors” or “spotters.”

Harold L. Secor and his brothers, under the name of “Fort Dearborn Gfarage,” were engaged in operating a six-car garage and owned two trucks, used for towing cars.

They had a repairman’s license, but no license to store cars, and no automobiles were stored in their garage. For several years prior to the accident they had done considerable towing for Associates Investment Company. When a car was about to be repossessed, Associates Investment Company would notify defendant Secor where the car was located and instruct him to pick it up and bring it to such garage or storage plant as it might direct. Many of the cars, by reason of their defective condition, were towed by Secor during this period and were brought to the Old Fort Garage at 235 Bast Grand avenue, a considerable portion of which was given over to the storage of cars for Associates Investment Company. Frequently, when cars were picked up by defendant Secor from outlying garages there was a storage charge which he advanced and subsequently collected from Associates Investment Company, together with a $2 charge for his services for towing. Payments were made by check of the Associates Investment Company, drawn on the First Bank & Trust Company of South Bend, Indiana.

On the day of the accident Secor was directed by one Bosenbach, an employee of Associates Investment Company, whose duty it was to locate cars that were to be repossessed, to go to the Englewood Service Garage, at 5953 South Halsted street, pick up a car, pay the storage and deliver it to the Old Fort Garage. In accordance with these instructions Secor proceeded to the Englewood Service Garage with his tow truck, ascertained by engaging the motor that the bearings were burned out so that it could not be run under its own power, raised the front wheels from the ground and fastened it with a chain to his tow truck, paid the storage, amounting to $3, and proceeded to deliver the car in accordance with instructions, to the Old Fort Garage. While en route the accident occurred, resulting in injuries to plaintiff.

Secor was from time to time called out on jobs by various persons designated as collectors, who worked for defendant and towed cars from wherever they were located. He towed an average of three cars or more a week for Associates Investment Company from all over the city and territory as far as 30 miles from Chicago, and received for the long runs whatever sums were agreed upon in the telephone conversations with the various collectors. Sometimes he towed cars when they were standing out in the street, and on those occasions some representative of Associates Investment Company would wait for him at the place where the car was to be picked up, deliver the keys and give him instructions as to where the car was to be delivered. Occasionally Secor was required to repair tires on towed cars, and charges for these services were added to the towing bill and paid. Fort Dearborn Garage towed cars for private individuals other than Associates Investment Company and also did general repair work on automobiles in its place of business. When they towed cars, they used their own truck and paid for their own gasoline and oil. They had business cards during 1934 and 1935, which were handed out to the public, advertising their own business.

Charles C. Schroeder, who was called as a witness on behalf of plaintiff, testified that he had been employed by Associates Investment Company until December 15, 1936. He described the nature of this defendant’s business and named several of the collectors who were engaged to spot cars for the purpose of repossessing them. He described the business transactions of defendant with Secor of the Fort Dearborn Garage, as follows:

“They towed repossessed automobiles for us and brought them in the garage. I have called him, myself. It is hard to say how many times; maybe a dozen, maybe two dozen. Sometimes once a week and sometimes three times a week.

“When I called it was for the purpose of having some car towed in. Men from our office would be outside sometimes when they would call in, and they had authority to call the Fort Dearborn Garage and Mr. Secor to tow cars for the Associates . . . When I myself called Mr. Secor or the Fort Dearborn Garage I would tell him where to go. I never told him whether to take a tow truck or not; merely where to go. I described the automobile and asked him to pick it up and deliver it to our garage.

“Sometimes storage was demanded on a car, and in those instances Mr. Secor told us what the amount was and when he was through he would stop in at the office and pick up the amount necessary to pay the garage and take it over and obtain a receipt. There were instances where a car was damaged and had to be towed in. As a general rule, we never said anything about it. The only thing, if a car was badly damaged and completely wrecked, we would then tell him the condition of the car and let them use their own judgment what type of car to use to bring it back. ... As a general rule he was ordinarily told to act on his own good judgment as to how he did. ... I don’t recall any instance where he called where anything was wrong.”

It is conceded that whether, in a given situation, the relationship of one person to another is that of agent or independent contractor generally depends upon various circumstances, and while many of the reported decisions upon the subject stress one or more factors bearing upon the character of the relationship, it appears that the particular factor emphasized by the court in a given case often assumes importance because other circumstances, which may be important, are not present or decisive. The best analysis of the subject to which we have been referred is that which is contained in Restatement of the Law of Agency, sec. 220, p. 483. The American Law Institute’s Committee on Agency had among its members numerous outstanding teachers and writers on the subject, including Prof. Floyd R. Mecliem. This text states that “in determining whether one, acting for another, is a servant or an independent contractor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer ;■ and (i) whether or not the parties believe they are creating the relationship of master and servant. ’ ’ In commenting upon this classification of determining factors, the authors on page 484 say that the relationship of master and servant is one not capable of exact definition, and cannot be defined in general terms with substantial accuracy, and they say that where the inference is clear that there is, or is not, a master and servant relationship, it is made by the court; otherwise, the jury determines the question after instructions by the court as to the matters of fact to be considered. Under subsec. (c) on page 485, the authors say that the important distinction between the relationship of agent and independent contractor “is between service in which the actor’s physical activities and his time are surrendered to the control of the master, and service under an agreement to accomplish results or to use care and skill in accomplishing results. Those rendering service but retaining control over the manner of doing it are not servants. . . . An agent who is not subject to control as to the manner in which he performs the acts that constitute the execution of his agency is in a similar relation to the principal as to such conduct as one who agrees only to accomplish mere physical results. For the purpose of determining liability, they are both ‘independent contractors’ and do not cause the person for whom the enterprise is undertaken to be responsible. . . . ”

Counsel for Associates Investment Company have in their brief taken the various factors listed in the Restatement of the Law of Agency, as determining whether one acting for another is a servant or an independent contractor, and have pointed out the numerous facts present in this proceeding that have an important bearing in determining the relationship of the parties. Among the more important circumstances stressed by counsel are the extent of control which the master may exercise over the details of the work, whether or not the one employed is engaged in a distinct occupation or business, the character of the occupation and the particular skill required therein, whether the employer or workman supplies the instrumentalities or tools for the person doing the work, the method of payment and whether or not the work is a part of the regular business of the employer. The evidence in the case at bar indicates that defendant exercised no particular control over the details of the work done by the Fort Dearborn Garage or Secor. They were merely ordered to take repossessed cars to a particular garage for storage, and the manner of conveyance, the route over which Secor was to proceed and the details of the work were evidently left entirely to Secor. The undisputed evidence further discloses that the Secors were doing business as a partnership, under the name of Fort Dearborn Garage, that they towed cars for private individuals other than Associates Investment Company and did general repair work on automobiles. Defendant was billed for jobs on the regular billhead of Fort Dearborn Garage, and checks in payment of services were made payable to the latter, which had a business of their own which was advertised as such to the general public by means of the distribution of cards. Secors were specialists in this kind of occupation, and when cars were not in condition to be driven, Secor was required to and did exercise his skill and judgment in determining how a particular car was to be transported to its destination. In rendering this service Secor used the towing trucks of the Fort Dearborn Garage, and supplied his own gasoline and oil. Compensation for these services was at the rate of $2 per car in the City of Chicago, and where a repossessed car was to be brought from a territory outside the city, the spotter or collector who called Secor and gave him instructions agreed on a price over the telephone at the time directions were given. Upon the question whether or not the work is a part of the regular business of the employer, it may be said that Associates Investment Company was primarily engaged in the purchase of automobile paper, and that it sought to protect itself from loss by repossessing cars when a purchaser had defaulted on his contract. This, however, did not put it in the business of repossessing automobiles; that function was only incidental to its main business.

Mechem in his work on Agency says (2nd ed., vol. 2, sec. 1917, p. 1492):

“If, . . . the master, using due care in the selection of the person, enters into a contract with a person exercising an independent employment, by virtue of which the latter undertakes to accomplish a given result, being at liberty to select and employ his own means and methods, and the master retains no right or power to control or direct the manner in which the work shall be done, such a contract does not create the relation of master and servant, and the person contracting for the work is not liable for the negligence of the contractor, or of his servants or agents, in the performance of the worh.” (Italics ours.)

As illustrative of subsec. (c) of the Restatement of the Law of Agency (sec. 220, p. 483), namely, “the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by specialists without supervision,” defendant cites the-case of Woods v. Bowman, 200 Ill. App. 612, and upon oral argument stressed the conclusions reached in that decision. There the defendant, who lived on a farm, had possession of five automobiles which with other property he desired to offer for sale, and in order to make these cars salable he entered into an agreement with one Hardin, who operated a garage, to come out to the farm, get the cars, take them to the garage, repair them and then return them to the farm for sale. In the course of returning the cars Hardin injured plaintiff, who brought suit against defendant on the theory that Hardin was his servant or employee. In holding that the defendant was not liable under the facts presented, the court said (p. 615):

“When a garageman receives an automobile for repairs to be made for the mutual benefit of the owner and the repairer he becomes a bailee for hire. Ford Motor Co. v. Osburn, 140 Ill. App. 633. A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who remains entirely under the control and direction of the latter. Appellant had no control over Hardin, nor did he give any directions as to what repairs should be made, nor how they should be done. Hardin was engaged in the independent calling of running a garage and making repairs on automobiles. He was not in any sense the employee of appellant. Appellant contracted with him to take the cars from the farm to the garage, repair them, return them to the farm, and demonstrate them at the sale, and it was while Hardin toas fulfilling that part of the contract of returning the cars to the farm that the injury happened. That a bailor is not liable to third persons for injuries received through the negligence of a bailee is well settled. McColligan v. Pennsylvania R. Co., 214 Pa. 229.” (Italics ours.) The court’s decision is predicated principally upon the fact that Hardin was engaged in an independent calling, namely, that of running a garage and making repairs to automobiles, and the facts in the case at bar clearly disclose that Secor and the Port Dearborn Garage were engaged in the same calling.

In his work on Agency (2 Mechem on Agency, 2nd ed., sec. 1871, p. 1456) Mechem states:

‘ ‘ The method of payment is not without significance, but is by no means the test. Ordinarily the independent contractor is paid by the job, that is, a fixed sum for accomplishing a certain result, but he may be paid in accordance with some unit of measurement, and the fact that he is paid by the day, week or month, is not of itself enough to destroy his standing as an independent contractor.” The method of payment was also considered important in Meece v. Holland Furnace Co., 269 Ill. App. 164, 168; Foster v. Wadsworth-Howland Co., 168 Ill. 514, 519; Bristol & Gale Co. v. Industrial Commission, 292 Ill. 16, 22.

The skill required in the particular occupation, considered as a factor in determining the relationship of agency or that of independent contractor, was considered in the early case of Arasmith v. Temple, 11 Ill. App. 39, wherein the reasoning of the court and examples employed are best stated by a quotation from the opinion (pp. 50, 51):

“If, however, it were to plow a certain field for the next corn planting, to build a certain described fence, to dig and complete a well as specified, or the like, it would present the case of a contract for a ‘ specific job, ’ where the employer might be interested only in the ‘result’ and quite indifferent to the method of its accomplishment.

“Here it might be difficult to form a satisfactory conclusion upon the point in question from this circumstance alone. But the further fact that the job was such as to require for its accomplishment some special knowledge and skill, falling within ‘a regular independent employment’ or ‘distinct calling’ which the employe followed as a business, would raise some probability that it was intended to leave to his judgment, to be exercised on his own responsibility, the means, the manner of using them, and all the details of the work. This probability would be increased by the additional fact that he was to be paid for it a ‘gross sum’; and further, ‘if he used his own tools and assistants ’; and still further, if the employer neither had nor pretended to have the special knowledge and skill required; and might become a clear belief, if it also appeared that during the progress of the work he did not in fact, though present, give any directions in regard to them. These and other like circumstances appearing in different cases have come to be recognized as indicia of the character of a contractor, and have been gathered up by courts and text writers into definitions to distinguish it from that of a servant. No one perhaps is essential to it or conclusive of it, but they all tend to establish the one fact which is decisive, namely, that as to the act in question the employe was not subject to the control and direction of the employer. The series of cases above cited present all that have been mentioned and perhaps more, but not all that might appear, of which an example is suggested by the case at bar, where the compensation is contingent upon securing a result which is necessarily uncertain but largely depends upon the care and skill of the employe to be used upon a job in the line of his special business.” (Italics ours.)

Without an extended discussion of the many authorities cited by the respective parties, we are satisfied that the facts of this case must be construed as having created the relationship of independent contractor. Plaintiff cites several decisions in support of his contention that Secor was an agent of Associates Investment Company, but an analysis of these decisions indicates that the .court emphasized one factor or another where other factors present in this proceeding did not appear. In Thiel v. Material Service Corp., 364 Ill. 539, cited by plaintiff, the court was engaged solely in determining whose agent the proprietor of the vehicle was, and that presents a different situation. In Decatur Ry. & Light Co. v. Industrial Board, 276 Ill. 472, the issue was raised as to whether the injured party was an employee or an independent contractor, and the court held that under the evidence it might reasonably have found that he was an employee, but the facts underlying that decision are not in any way similar to those in the case at bar. In the last analysis each decision rests on the circumstances of that particular case, and it becomes the function of the court or jury, after applying the various controlling factors, to determine what the relationship was.

The collateral question involved is whether the court should have allowed the jury to pass upon the fact whether or not Secor was an independent contractor. Ordinarily, it falls within the province of the jury to determine disputed questions of fact, but in this proceeding there can be no dispute about any of the facts relating to the work performed by Secor or his method of accomplishing it. Most of the evidence was adduced by plaintiff’s own witnesses, without any contradiction, and we think the court properly treated it as a question of law, and construed the relationship of Secor to Associates Investment Company as that of an independent contractor. The judgment of the circuit court is therefore affirmed.

Affirmed.

John J. Sullivan and Burke, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Byron L. Painter, Appellee, v. Keeshin Motor Express Company, Inc., Appellant.
    Gen. No. 39,996.

      Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    Ryan, Condon & Livingston, of Chicago, for appellant; John M. Tuohy, of Chicago, of counsel.
    Alfred Roy Hulbert and Howard A. Brundage, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On issue joined on plaintiff’s amended complaint charging negligence the jury returned a verdict finding defendant guilty and assessing damages at the sum of $13,500, on which judgment was entered. Defendant did not offer any evidence nor move for a new trial. At the close of plaintiff’s case, and again at the.close of all the evidence, defendant requested the court to instruct the jury to return a verdict finding defendant not guilty. The court reserved ruling on the motions and on the instructions presented therewith. After verdict defendant moved that judgment be entered in its favor and against plaintiff notwithstanding the verdict returned, on the ground, first, that there was no evidence whatsoever to show that defendant was guilty of any negligence alleged in the complaint; second, that the evidence introduced by plaintiff established that plaintiff was guilty of contributory negligence as a matter of law; and, third, that the court should have granted the motion filed at the close of plaintiff’s case and at the close of all the evidence requesting the court to direct a verdict for defendant. The court overruled all of said motions and this appeal brings the case here for review.

Under the amended complaint it was incumbent on plaintiff to prove that defendant, by its servants and agents, carelessly and negligently drove a motor tractor into violent collision and contact with the front end of the trailer behind which plaintiff was working, and that at and about such time plaintiff was in the exercise of due care and caution for his own safety. This court, in Gardiner v. Richardson, 293 Ill. App. 40, decided that in passing upon a motion for judgment notwithstanding the verdict made by a defendant the court should not determine whether the verdict is against the manifest weight of the evidence. Defendant maintains that there is no competent evidence to support the allegations of the complaint. The rule is that negligence and contributory negligence are questions of fact for the jury. If the matter is open to a difference of opinion the jury must pass on it. It becomes a question of law only when the evidence is so clearly insufficient to establish due care or negligence that all reasonable minds would reach the conclusion that there was contributory negligence or negligence. The proposition is aptly stated in Petro v. Hines, 299 Ill. 236, 240: “The general rule is that negligence and contributory negligence are questions of fact for the jury, and so long as a question remains whether either party has performed his legal duty or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact. (Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson, 120 Ill. 587; Austin v. Public Service Co., ante, p. 112.) Before we can say, as a matter of law, that there was no negligence on the part of the defendant or that there was such contributory negligence on the part of the plaintiff as to defeat recovery, we must be able to say that all reasonable minds must agree that the defendant was not negligent in his acts or that the injury was the result of plaintiff’s own negligence.” And in Ziraldo v. Lynch Co., 365 Ill. 197, 199, the Supreme Court said:

“A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff.” With these propositions the parties are in substantial agreement. It becomes necessary, therefore, to thoroughly consider the facts. Plaintiff filed an additional abstract for the purpose of showing the instructions that were given. The questions as to negligence and contributory negligence were submitted to the jury on instructions about which there is no complaint. Prior to giving the instructions the court had reserved ruling on the motion for a directed verdict. We agree with defendant that the fact that the trial court at the suggestion of the respective parties instructed the jury on both theories of the case, does not preclude defendant from now urging that error was committed in failing to enter judgment notwithstanding the verdict.

The injury about which plaintiff complains occurred on May 21,1936, in defendant’s freight yard or terminal, located between Canal, Clinton and Pulton streets and the Chicago and Northwestern Railroad tracks, in the city of Chicago. Defendant was engaged in the business of carrying freight by motor trucks. Many of the hauls were to points in other States. At the time of the occurrence plaintiff was in the business of repairing tarpaulins for various trucking concerns, including defendant. He operated a small shop in the rear of his residence and there repaired tarpaulins that were too badly torn to be repaired at the freight yards. For the most part the service he performed for defendant was in the latter’s freight yard. The vehicles upon which plaintiff worked were mostly tractor-trailer units. The tractor is the motor vehicle which is detachable from the large cargo-bearing vehicle known as the “trailer.” To make a coupling between the trailer and the tractor it was necessary for the latter to meet the former with some force, and in making such coupling, if the end of the trailer was not resting against a wall, it was necessary to place large blocks under its wheels. The trailers having been loaded, if they were not to be taken out until the night drivers came on duty at seven o ’clock, they were taken from the loading platform to a point in the yards under the elevated railroad structure of the Chicago and Northwestern Railroad Company and placed against a concrete supporting wall. When plaintiff commenced work for defendant he asked its agent who hired him as to how he should do his work, and was told to “take them as you find them.” He understood that the statement meant that he was to go out into the yards, observe the equipment as it came in, and when he saw a trailer that had a tarpaulin that needed fixing, to fix it, and that he was to use his own judgment as to whether he would fix it on the grounds or whether he would take the tarpaulin home. Plaintiff testified that he started to work for defendant in October, 1935; that to make repairs on the canvas covers he would go to the terminal where most of the trailers were and walk along and inspect them; that if there were any tears or any ropes loose he would fix them right then and there, but would first ask somebody if it was all right to do so; that “during the course of my work Mr. Mason, general superintendent, and John Viverito, some kind of a supervisor, and John Nor den and sometimes a checker, I would ask them if it was all right to repair that tarpaulin; if the truck was going to stay there, or go out; get their consent”; that he would work all over in the terminal, wherever the truck happened to be; that he took the tarpaulins off; that he got to the canvas to do the repairing by climbing up on the trailers, sometimes with a ladder and sometimes he would “shin” up; that “patched” jobs were done by hand sewing; that he would sit on top of the truck; that on the big tears he would take the tarpaulin off; that the big tears could not be sewn by hand; that he had-a power sewing machine at home; that in order to repair the tears and cuts in the canvas he would unloosen the ropes that tied the tarpaulin to the truck proper; that the ropes were located on the outside edge of the tarpaulin and were about 18 inches apart; that the ropes came through an eyelet in the tarpaulin and were about 4 feet long and tied down to a rail; that when he first started to work for defendant, in October, 1935, he earned approximately $100 the first month; that the same increased until he was doing a business with defendant of about $250 a month; that he was doing some other work for other concerns; that his total business at the time he was injured was about $350 a month; that he never operated a tractor or trailer around the terminal; that before the day of the occurrence trailers were moved or spotted about for the purpose of his repair work on them; that on the day of the accident he saw the trailer at about 2:45 p. m. on the east platform; that he noticed “it was torn and some ropes were loose. The sewing and re-splicing of the rope was part of my work. The tear was along the top rail or side”; that about 3 p. m. he talked to Mr. Witt (foreman of the outbound terminal), who was . on the east dock or platform; that he said to Witt, ‘ ‘ There is a trailer with a tear in it. Can I fix it?” that Witt said, “No; it is going right out”; that plaintiff asked Witt what time it would be back and the latter said, “About 6 o’clock”; that plaintiff said, “All right; I will wait for it’; that it came back at 6 p. m.; that it was backed up against the east platform; that plaintiff again saw Witt at that time on the east platform; that plaintiff said to Witt, “Well, there is that trailer. Can I repair it now?” that Witt hesitated and said,1 ‘ Put it over against the back wall, ’ ’ and plaintiff remarked, “Well, if you put it against the wall I can’t get at it to fix it”; that Bonelli (a hiker with a tractor, who moved loads around in the yards) was present at the conversation and was standing at the right of Witt and a little behind; that plaintiff did not speak to Bonelli; that the next thing that happened was that Bonelli got off the dock, “evidently to move the trailer ’ ’; that plaintiff knew that they were going to park the trailer against the wall; that he went back there to meet them; that he did not have the ladder at the time; that the ladder was under the stairway at the south end of the terminal; that he got the ladder; that he did not see Bonelli park the trailer; that he finally found the trailer about 150 feet east of Clinton street, in the roadway, “which is the north end of the embankment where the Northwestern trains go”; that when he got over there Bonelli was standing on the ground on the right side of the trailer; that the trailer and tractor were connected; that Bonelli unhooked the tractor from the trailer; that ordinarily the trailers were backed up flush against the wall; that this time one end was against the wall and the other end was out about 18 inches; that plaintiff first unloosened the ropes and used the ladder to untie the ropes; that he then threw the cover up on top; that there was a center bar in the trailer which supported the cover and ran from the front to the back; that the center bar held the tarpaulin up so that it would not sag; that he threw the cover up and sewed two rips; that when he talked to Witt on the dock he said it would take a little over an hour to repair it; that to unfasten the ropes and get up there took about 10 minutes; sewing the rip about 15 minutes; that he then tied the ropes back on the side ; that he then went to the rear to repair two ropes (which he had observed while the trailer was at the east dock) needing repair; that the ropes were loose, about ready to pull out of the eyelets; that this portion of the back of the tarpaulin comes over the top of the truck and down about 18 inches and that the ropes run down to the rail, where they are tied; that he was working on the back of the trailer about 15 minutes when the crash occurred; that he did not hear anything before the crash; that he did not see anybody walk around to the back of the trailer while he was working on it; that no one spoke to him; that he “passed out”; that when the crash occurred he was about 4 or 5 feet above the ground on a step of the ladder; that there were about 2 more steps to the top of the ladder; that he was taken to St. Luke’s Hospital; that he was injured on the leg above the knee, and in the foot; that the foot was crushed.

As there is no contention that the damages awarded are excessive there is no need of going into the matter of plaintiff’s injuries. The injuries were painful and serious, and permanent.

On cross-examination plaintiff stated that the first time that he was in defendant’s yard was approximately March, 1935; that from then until the day of the accident he was in the yard almost daily, and sometimes several times a day, at all hours, in the morning, afternoon and evening; that the busiest time around the yard was morning and evening, in the morning from 7 to 8 o’clock, and in the evening from 5 to 6 o’clock; that he knew Norden and Bonelli; that he was not familiar with their duties; that he used to consult Witt at various times; that he knew Mason was general superintendent and that Bonelli was a hiker; that he was familiar with the geography of the yard; that he knew where the loading platforms were; that he knew it was a common practice to take a loaded trailer and place it over against the wall; that he did not always know when trucks were loaded; that it was a more or less common practice to shove the loaded trailers against the wall; that the purpose of sending trailers against the wall was to get them out of the way until such time as the drivers came to take them out on the road; that he worked on trailers around the yard since March, 1935; that he formerly worked in the same yard for. a Mr. Benke; that after a conversation with Mr. Frazier he succeeded Benke; that he told Frazier he knew the nature of the work that was to be done; that he was capable of sewing and observing the condition of the tarpaulins while the equipment was in the yards; that he was told to go and do the work and take them as he found them; that one tear on which he worked was approximately 15 inches, and the other approximately 6 inches, “right at the top rail”; that the tears were a little to the rear of the center of the trailer; that after the trailer had been placed he proceeded to repair the tears; that he reached the tears by means of a ladder, and climbing the rest of the distance; that in repairing the tears he was on top of the trailer; that at the time of the accident he was through repairing the ropes and was tying them down to the rail; that after the conversation with Mr. Witt in the afternoon he waited around from 3 to 6 hours for the equipment to come back; that it was then backed up to the east dock; that the wall to which it was finally brought was probably 400 feet from the place where he was talking to Mr. Witt; that he said to Mr. Witt, “I would like to repair that tarpaulin,” and Mr. Witt hesitated; that plaintiff did not say anything at the moment; that next Mr. Witt called out to somebody and said, ‘ ‘ Take that carton out of that truck and put it over against the wall,” meaning the truck; that plaintiff didn’t know whom Witt was addressing; that he had no further conversation with Witt; that plaintiff stood around about a minute, then secured a ladder and started over to the back wall; that in the course of the conversation with Witt the latter said, “Park that against the wall”; that plaintiff said, “If you park that against the wall I can not get at it”; that then Bonelli stepped from behind Mr. Witt and jumped down off the dock and the trailer pulled out.. Plaintiff stated that in a pretrial deposition he testified that early in the afternoon when he wanted to repair the tarpaulin, in answer to Mr. Witt’s inquiry as to how long it would take, he replied that it would take a little over an hour, and that Witt told him he could not do the repairing then because the truck was going out at 3 o ’clock; that plaintiff then inquired when it would be back and was informed that it would be back at about 6; that at about 6 o’clock he was waiting around for the truck to return and that when it did return he approached Witt and asked whether he could fix the tarpaulin and stated that it would take a little over an hour; that Witt hesitated; that he thought Witt was going to say yes; that Witt then hollered to somebody to take the carton out of the trailer and then he said, “Put it over against the wall”; that plaintiff then noticed the hiker, Bonelli, and said, “If you put that against the wall, I don’t think I can fix it.” He stated that in the deposition he also testified that he did not know where Bonelli went, but presumed he went on the tractor, to take the trailer away; that he next met Bonelli in the back of the terminal, and that he had the truck up against the wall, with one end out 18 inches, and that Bonelli was standing at the door of his cab waiting for plaintiff; that Bonelli looked at him; that plaintiff came toward him; that plaintiff took a good look at the truck and saw he could get into the rear of it, and nodded his head O. K.; that the hiker then unhitched the tractor; that when plaintiff was examined at home in the taking of the pretrial deposition, he said, “Thenhe,” referring to Witt, said, “Put it over against the wall. Then I noticed this hiker Paul [Bonelli] and I said ‘If you put that against the wall I do not think I can fix it’ ”; that in making the statement he was not addressing Bonelli; that when plaintiff reached the equipment the trailer and motor were connected; that Bonelli looked at him and plaintiff saw that the trailer was parked one end about 18 inches from the wall; that plaintiff ‘ ‘ shook my head 0. K. at Paul”; that he charged for time and material and sent regular bills about once a week, and was paid by check; that he did most of the repair work on the trailers in the yards, sometimes at either dock, sometimes up against the wall, and sometimes over in what was known as the “bone yard”; that most of the work was done at the dock; that he worked on both loaded and unloaded trucks; that at the time he started to work on the trailer where the injury occurred no trailers were parked to the west of it; that there was one on the east approximately 50 feet away; that there would have been room to park half a dozen trailers to the west of him against the wall; that when he started to work on the trailer he did not place any warning sign in front of or about the same; that he knew there were such signs on the premises.

Herman Witt, called by plaintiff,-testified that at the time of the injury he was employed by defendant; that he left such employment around the first of June, 1937, having been employed for 7 years; that on the day of the injury he was employed as foreman, at 300 North Canal street, Chicago, the outbound terminal; that a Mr. Mason and Mr. C. E. Olson were his superiors, the former being general superintendent and the latter vice president, and that both had their headquarters at 300 North Canal street; that witness’s duties were to see that the freight was loaded and unloaded; that his activities took him through the entire building; that in reference to the handling of trucks that were inbound with freight, “the truck was spotted directly into that hole where the loading was done, whether it was the east or westbound or the east or the west platform. Local pick-up freight generally on the east platform which is the unloading dock. In the handling of the freight through the terminal preparatory to more shipment outbound, it was taken off of the units and trucked to wherever the freight was- going, to whatever part of the building. The building itself was all laid out with signs, different men assigned to different trucks to unload. And during the day freight accumulated in certain portions of the building preparatory to definite outbound movement. My duties with reference to this was to see that it was moved properly. With reference to the vehicles themselves, my duties were to spot them in the different places where they were to be loaded. I told the drivers to what doors to back up to. With reference to the outbound freight if a load was loaded, we would pull it away from the platform and pull it against — we always used the phrase, ‘Throw it against the wall.’ Howard Cooper was there at that time, and was one of the men that assisted me. Most of the time I gave the orders, but if I did not happen to be at that particular place there was what we called a hiker around. Cooper or the checker would tell the hiker as he was walking by that that load is loaded and then it was the hiker’s duty to put the vehicle against the stone wall, which is the concrete wall on the North Western. The distance between the outbound loading platform and the North Western concrete wall is about 60 feet and vehicles were taken away from the loading platform and parked against the concrete wall instead of going right out on the run, before they left because the night drivers did not start work until seven o ’clock at night. I had nothing to do with the condition of the vehicles so far as the tarpaulins and ropes were concerned. I became acquainted with the plaintiff, Byron Painter, I could not say when the first time was, but I saw him .from time to time while he worked around the terminal, almost daily. I talked to him at different times about his work. The eastbound drivers — practically all of the drivers came on about seven o ’clock and all of these were outbound out of Chicago. The driver got his instructions from the dispatcher if he was in his office, otherwise I would give out a load. Billy Ahrens was a dispatcher in the spring of 1936. The dispatcher’s office was in the middle of the dock. The system of instructing the drivers in order to get them started and what load to take was that we just gave the number of the trailer and told them to couple up. I took a line-up every afternoon at four o’clock of the trailers that were loaded and what their destinations were and after four o’clock checkers would report to me as to what trailers they had loaded and they were ultimately added on to that same list. I gave instructions to Indiana drivers and Ohio drivers. At that time Cooper took care of the Scott drivers. I gave instructions to the Michigan drivers, which were ‘just take a certain vehicle. ’ The steady drivers were assigned to certain tractors and the trailers were interchangeable with any tractor. The Michigan drivers reported around six o’clock. The only source of information to them was from me or from an order from the dispatcher’s office. The driver would couple up his trailer and go to the billing office to get his bills, report to the sealer, the sealer would come out and seal the load. He would get his individual bills for each shipment on each load out of the billing office. His next duty was then to see that the load was sealed and to start out on the highway. . . . The drivers did not receive orders from anybody else than the persons whose names I have mentioned. The officials who had charge of the condition of the tractors and trailers at that terminal were a yardman, a regular trailer man who inspected the trailers every morning. His name was John Nor-den. I had a talk with him on the afternoon of May 21, 1936, the day when Mr. Painter got hurt. I do not know where we were when we talked that afternoon— whether it was the east dock or the west dock. Q. Do you remember what the conversation was? A. That the tarpaulin on a certain trailer needed mending, and I could not spare it, because I had to send an open top trailer out on a pickup. Mr. Painter approached me about the tear and called my attention to it. My recollection is that the only thing further said in the afternoon conversation was that the trailer would be back later in the afternoon. I don’t recall definitely any conversation.around six o’clock because six o’clock was really a mad-house down there. At six o ’clock all equipment would be in ready for unloading, all of the trucks would be up to the dock for unloading and it was a stress point where we had to show action. The situation with reference to the outbound trailers and tractors was that they were being loaded. There were not over 15 loaded in the afternoon up until that hour, and it was from six o ’clock on, from 5:30 on that the heavy rush was of loading. I don’t recall at the present time of having talked to Painter. I don’t remember who was present at the six o’clock conversation. I cannot tell you what was said by me or Mr. Painter at that time. If I recall the trailer about which I have been talking came in with practically a full load on it with the exception of a piece or two to be taken off and immediately those trailers then are thrown against the wall. The trailer was by my order put against the wall. I ordered it. I ordered one of the jockeys or hikers to do it and it might have been one of the eight that were there, all of whom were employed by the same company, which is the Illinois company. I did not see the jockey park the trailer against the wall. When the trailer came back at six o’clock it pulled in to the east platform. The wall is west of the west platform with no view through the terminal. I was on the east platform when I told the jockey to park it against the wall. Q. The purpose of having it parked against the wall was what? A. That trailer was loaded. Q. Anything to do with this repair job of Painter’s? A. Not so far as I know. Q. Was that talked over, that that is where he was to go and sew up that tarpaulin? A. No. Q. When you say no, you mean what — it was not talked over? A. It was not talked over, so far as sewing up the tarpaulin against the wall there. I did not hear Painter say anything to me or to the jockey with reference to parking the trailer. I did not see the accident happen. I don’t know what name was on the side of the trailer. The first information I got with reference to the accident was when someone came on the platform and told me that Painter was hurt. I did not have anything to do with the accident. To a certain extent I know about the operation of these tractors and trailers with reference to how they couple up. A trailer standing free with its own two wheels and two dolly wheels could be connected up if the driver will take a run at it. Otherwise the trailer would have to be blocked. There were no orders on trailers up against the wall. Every trailer at the dock, the driver was instructed to inspect to see whether the tail gates were closed and tarpaulins tied; but so far as loaded trailers against the wall, that was done before putting against the wall by the checker. No orders were given to the driver about inspecting trailers against the wall. [Cross-Examination by Mr. Tuohy.] This wall where I instructed the hiker to spot this trailer is the wall that forms the foundation of the North Western Railway-trestle.”

Leo Paul Bonelli testified that he was employed by defendant as a hiker, mostly at the Canal street terminal, from 1934 until September, 1936; that he had four or five superiors there, namely, Witt, Viverito, Mason and Ahrens; that “the system of the company with reference to semi-trailers that came in to be unloaded was that they were disconnected or unhooked from the tractor on the east platform. When the trailer was loaded it was moved around to the west platform and the trailers disconnected again. While in the process of loading and unloading the trailers were taken away. I had something to do with parking of trailers against concrete wall. I do not remember being on the premises the day that Mr. Painter got hurt. May 26,1936— I could not say whether I did anything to a trailer on which Painter subsequently worked. There were about eight of us hikers — -Mr. Witt, Viverito and Mason issued the orders. The orders were that the trailers were supposed to be closed, the door, tail gates up and tarpaulins tied. The same orders were given as to trailers on the east and west platform — all trailers at the platform. Trailers against wall were all ready, tail gate up and tarpaulin tied, and everything complete to go. With reference to trailers upon which work was to be done, any work — I did not hear any orders given as to them. The trailer men do that themselves. I don’t recall any conversation with Mr. Witt and Mr. Painter. I cannot say that I saw the trailer that was involved in Mr. Painter’s accident. I did not see the accident. I cannot say whether I parked the trailer against the wall.”

John Nor den related that at the time of the trial he had been employed by defendant for 4 years as a trailer man; that his duties required that he inspect the trailers to see that they got repaired; that repair work has to do with torn canvas covers; that “Painter was supposed to fix trailers wherever he could get ahold of them — where he could get at it. Occasionally he did repair work at the east platforms while trucks were being loaded and unloaded on the smaller jobs, and the larger jobs put them somewhere else — against the wall or if it was too big, took the canvas off, installing a new canvas and took the old canvas home for repair. With trailers parked against the wall, it is the same thing as patching up the small jobs, taking off the big jobs and taking them home and repairing them. The hikers around the yard did the parking of the trailers against the wall. Part of my work was to oversee what he did. I had charge of okeying his bills. The trailers that go out on the highways, sometimes are spotted against the wall without the tailgate being properly closed, or door, or even the tarpaulin not being tied. In that case the driver is supposed to pull up in front and have his job sealed. When he has his job sealed, there is a man that seals those jobs, and he will see that, and he will have somebody close those doors properly. Trailers parked against the wall for repair purposes were not parked at the instructions or orders of any particular men at the terminal. They were parked wherever they could find room to park them when they were loaded for repair purposes, it all depends. If it was a big job, as I said, it was sent to the garage. At that time they were all OK. Q. In the repairing of canvases on trailers when they were parked against the wall, were there any instructions given by anybody as to how they were to be parked or where parked? A. No. My orders were that the trailers had to be parked straight at all times. I never saw them parked with the corner against the wall. I was there the day this accident happened. I did not exactly see it. I was somewhere about thirty feet away from the accident, on the opposite side of the driveway changing an axle on a trailer. When I speak of the driveway I mean that the trailer was backed against the platform and the tractor was stuck underneath the trailer and I was changing an axle just opposite where the accident occurred, which was just across the yard from where the trailer Painter was working on had been parked. I did not see Painter on the trailer on which he was working before the accident happened. There were two trailers parked across from me against the wall. The first thing I heard was Mr. Painter holler for help. I heard the connecting up of the tractor. I heard the roar of the tractor going underneath the trailer and just as it happened Mr. Painter hollered for help. When I got over there I saw Mr. Painter being pinched between the trailer and the wall. He was standing on a small step ladder in back of the trailer and the trailer was pushed against the wall and crushed his leg. That is all I could see and the step ladder. The tractor had not made full connection with the king-pin. When I got over there the tractor was flattened out straight against the wall. Mr. Painter was as near to the center of the tractor as I could judge. I hollered at the driver that there was a man behind the trailer pinched and there was no means of getting him out, so I ran for a chain, hooked the chain around the tractor and trailer and pulled the trailer ahead. When I got there I used the same tractor with the chain to pull the trailer away from the wall. I didn’t pay any attention to the condition of the tarpaulins or the ropes at the back of the trailer. It was in broad daylight around six o’clock but I did not see the accident itself. [Cross Examination by Mr. Tuohy.] Q. Was there a trailer on either side of the trailer on which Mr. Painter was working? A. Well, I couldn’t say that definitely. I know there was a trailer parked, for the simple reason we all parked our trailers — we had very little space, and we always lined them up close to that wall. I heard the tractor pulling in the driveway. I heard him back up to it — that is, when he is about to back up to the trailer he guns his motor and that roaring sound I heard. [Re-direct Examination by Mr. Hulbert] Q. ‘Gunning the motor’ — -you mean by that— A. Applying— Q. Picking up speed? A. Yes; so he can hit the trailer. [Re-cross Examination by Mr. Tuohy.] Q. That makes considerable noise, does it? A. Yes.”

Howard Cooper testified that in May, 1936, he was a checker at the Canal street terminal; that his duties were over the whole terminal, checking freight and loading eastern trucks; that when the freight came in off a pickup truck it was delivered by the truckers to the place where it was to be loaded to the destination ; that the trucker would bring it down to the trailer and the checker by the trailer would load it into the trailer; that he saw plaintiff doing repair work on tarpaulins ; that “the dispatcher in our end had charge of the eastern division. They would spot a trailer for Toledo, Cleveland, Pittsburgh, Akron, Buffalo and New York City. These were the trailers spotted in the holes. Mr. Witt and Mr. Viverito were the ones who had charge of spotting the. trailers into proper place and the dispatcher got his information from the record kept by Witt or Viverito. I saw Mr. Painter working frequently around the premises from October, 1935 to May of 1936. I have seen him doing his work, mostly on the west wall, because I was located on the west side of the dock. Occasionally I saw him doing work on vehicles at the platforms. If it did not interfere with the men’s work that were loading the trailer, he could get up on the front or tie ropes on the side as long as it did not interfere with the men. There were no men working on vehicles along the concrete wall. At times while he was doing his work there were drivers down there while he was working on vehicles at the concrete wall. I was located at the northeast end of the building. Witt and Yiverito would be up and down the terminal all day long. I was worldng right under the viaduct where the Northwestern trains went over. Witt and Yiverito were at the south end most of the time, but their days carried them back and forth in the whole terminal. I did not see the accident. ’ ’

James Mason related that he was superintendent at defendant’s terminal; that he was in full charge of the terminal; that he knew of Painter’s employment to repair tarpaulins; that the dispatchers were directly responsible for which equipment drivers would take; that there were no places allotted to Painter to do his work; that he would do it wherever the' trailer happened to be; “Q. What is the fact, Mr. Mason, with reference to whether or not there were signs available there for men who were working in dangerous places — warning signs? A. We had; what it was was a round sign which would rest right in front of the trailer was used for changing tires or work on lights. Any place where a man would be in a danger position and it read: 1 Danger. Men Working’ or ‘Man Working.’ The signs were kept at our gas station, sort of a mechanical room, in the same yard where the accident happened. At one time there had been a bulletin out to our men whenever working on equipment they would put them in that position to use the sign without fail, but it was more or less taken for granted by all the men and the men that knew they were going to be in such a position would immediately grab one of the signs and place it. [Re-direct Examination by Mr. Hulbert.] I had seen the signs put up time and again before May 21, 1936 time and again by our own employees.”

The burden was on plaintiff to establish his case as stated in the amended complaint. That obligation required plaintiff to show that defendant, by its servants, negligently drove the motor tractor in violent collision with the trailer, crushing plaintiff, and that at and about such time plaintiff was in the exercise of due care for his own safety. It is not contended that the case comes within the res ipsa loquitur rule. We cannot agree with the argument of plaintiff that the failure of defendant to call the driver created a presumption that if he had been called he would have established the negligence charged. The burden rested on plaintiff at all times, and there was no duty on defendant to call any witnesses.

We now come to the ultimate question to be determined, namely, does the evidence in favor of plaintiff, standing alone, and considered to be true, together with the inferences which may legitimately be drawn therefrom, warrant the judgment. Under proper instructions the jury has decided in the affirmative, and our inquiry searches the trial record to ascertain whether, under the rule last mentioned, the evidence, and legitimate inferences drawn therefrom, sustain the verdict. Viewing the factual situation with this rule in mind, it will be noted that there is evidence that the foreman, drivers, hikers and laborers employed at the terminal knew that plaintiff was working there, repairing damaged tarpaulin and ropes; that on the day when he was injured plaintiff twice talked to Herman Witt, the foreman, about repairing damaged tarpaulin and ropes on the trailer; that Witt knew plaintiff would be occupied for more than an hour in doing the repair work; that Witt saw the rips and torn ropes and knew that plaintiff would be working at the rear of the trailer at some time during the period; that Leo Paul Bonelli, the hiker, also knew that plaintiff would be working at the rear end of the trailer; that Bonelli parked the trailer so that one corner was about 18 inches from the wall; that both Witt and Bonelli knew that plaintiff at some time during the period would be in the space between the rear of the trailer and the wall. On cross-examination plaintiff stated that at around 6 p. m., when he asked Witt if he could then repair the tarpaulin, Witt directed some laborers to “take that carton out of that truck and put it over against the wall”; that Witt said, “Park that against the wall, ’ ’ and plaintiff said, ‘ ‘ If you park that against the wall I can not get at it”; that with that Bonelli, the hiker, stepped from behind and to the right of Witt and jumped off the dock, and the trailer pulled out; that plaintiff did not know that Bonelli was behind Witt. Interrogated as to a pretrial deposition, taken at his home, plaintiff testified that in such deposition he stated that when he asked Witt if he could then fix the tarpaulin, having stated that his time in so doing would be occupied for a little over an hour, Witt ordered an employee to “take that carton out of that trailer”; that then Witt said, “Put it over against the wall”; that then plaintiff noticed the hiker, Paul, and said, “If you put that against the wall, I don’t think I can fix it. ” Plaintiff stated further that in the deposition he testified, “We broke up then. I don’t know where Paul went. I presume he went on the tractor, to take that trailer away. Oh, I met him in the back of the terminal, and he had that truck up against the wall, one end out 18 inches, and he was standing at the door of his cab, waiting for me I presume; and he looked at me. I came right toward him. I took a good look at the truck, and I saw I could get in the rear of it, and I nodded my head O. K. He then unhitched his tractor.” Plaintiff, on cross-examination, further testified that “I was talking to both at the time I was talking to Mr. Witt. Pañi I had nothing to do with. Q. Well, did you say, when you were examined at your home as part of your answer: ‘Then he,’ referring to Witt, said ‘Put it over against the wall. Then I noticed this hiker Paul, and I said “If you put that against the wall I do not think I can fix it. ” ’ A. I was not addressing that to Paul. ’ ’

Defendant urges that plaintiff not only placed himself in a position of existing danger but that he created the position of danger by his direction to the hiker as to how the trailer should be spotted. Witt and Bonelli testified that they did not hear plaintiff say anything about parking the trailer. Whether the remark of plaintiff that if the trailer was parked against the wall plaintiff could not get at it, was heard by Witt or Bonelli, was a question for the jury to resolve. Likewise, whether the hiker took the silence of Witt to mean his assent that the trailer was to be placed in a position other than flush against the wall, was for the jury to determine. The jury observed the witnesses, their facial expressions and their demeanor, and was in a better position than this court to determine what actually did take place. The order for the placing of the trailer was given by Witt and executed by Bonelli. Witt was Bonelli’s superior, and after the former had spoken the latter jumped off the platform and drove the tractor and trailer away. It would be reasonable to infer that he took the silence of Witt as an indication that the trailer was to be parked other than flush against the wall. After Bonelli drove away plaintiff procured a ladder and went over to where the trailer had been parked. The situation at that time was that the foreman had given an order for the parking of the trailer and the order was carried out. Defendant invites attention to the conduct of plaintiff at the time the tractor was uncoupled from the trailer and nodded “O. K.,” and argues that such actions, when considered with all the other evidence, show that plaintiff directed the placing of the trailer with one corner thereof 18 inches from the wall, and that, hence, plaintiff not only directed that the trailer be placed in such position but in effect countermanded the order of Witt to “throw it against the wall.” From a careful consideration of the conduct and words of the witnesses at the platform and at the trailer we are satisfied that the evidence justified the jury in finding that defendant, through its servants, and not plaintiff, directed the placing of the trailer in the position that it was in at the time of the accident. The orders for the parking of the trailer were issued and executed by defendant’s employees, who knew that plaintiff, in the performance of his duties as an independent contractor, might be working on the ladder between the trailer and the wall; that he might be concealed from view, and that he would be working on and about the trailer for more than an hour. Defendant insists that the fact that plaintiff did not utilize the warning signs shows that he did not exercise due care. There was testimony that the signs were for the use of defendant’s employees. Plaintiff argues that it does not appear that he had access to the signs. The jury had a right to consider such testimony in determining the issues. We again point out that defendant’s employees knew that plaintiff would be working on and about the trailer for more than an hour and that he might be concealed from view between the rear of the trailer and the wall. Having that knowledge, one of defendant’s employees, nevertheless, hacked the tractor with great force against the trailer, and thereby injured plaintiff. There was competent evidence from which the jury had the right to find that defendant, by its servants, carelessly and negligently drove a motor tractor into violent collision and contact with the front end of the trailer, causing the injuries complained of, and that at and about such time plaintiff was in the exercise of due care for his own safety. The evidence in favor of plaintiff, together with inferences which may legitimately be drawn therefrom, presented questions of fact for the jury as to negligence and due care, and we should not interfere with the verdict.

From a careful consideration of the evidence we are impelled to hold that the court properly overruled the motion for a judgment notwithstanding the verdict. Therefore, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Friend, P. J., and John J. Sullivan, J., concur.


text:
    Conrad M. Dreger, Appellee, v. Harvey L. Boyer et al., Appellees. Robert E. Anderson et al., Appellants.
    Gen. No. 40,021.

      Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    Otto Fetting, James H. Cronin, Francis J. Cuneo, and Henry N. Shabsin, all of Chicago, for appellants.
    Cooney & Verhoeven and Joseph A. Weber, both of Chicago, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.

On February 5, 1937, plaintiff (appellee) filed his complaint in the superior court of Cook county seeking to foreclose a trust deed executed December 24, 1926, by Harvey L. Boyer and Mabel A. Boyer, his wife, on real estate in Cook county, to secure the payment of eight promissory notes numbered from 1-A to 8-H, inclusive, the first two for $750 each, the next three for $500 each, and the last three for $4,000 each, notes 1-A and 2-B by their terms coming due December 24, 1929, and December 24, 1930, respectively, and notes 3-C, 4-D, 5-E, 6-F, 7-G and 8-H coming due December 24, 1931. There was no parity clause in the notes or trust deed. Plaintiff alleged that he was the owner of note 2-B and sought to foreclose as to the entire issue. He made the other noteholders parties by the name of 1 ‘ Unknown Owners. ’ ’ Plaintiff proved, and the decree found, that he also owned principal note 1-A. Defendants Robert E. Anderson and Virginia I. Anderson, minors, by Gustav O. Anderson, their guardian, and James Murphy, who are appellants herein, filed answers and counterclaims and asserted therein that they were the owners of notes 7-G and 8-H and that the other six notes were extended by agreement beyond the maturity dates of notes 7-G and 8-H. Counterclaimants maintain that the extension of the other notes to a date beyond the maturity of notes 7-G and 8-H, all being secured by the same trust deed (containing no parity clause), postpones the right of the holder to receive payment of his debt from the security until the prior maturing notes are paid. The cause was referred to a master in chancery, who reported to the court that note 1-A was on December 24, 1929, by agreement extended to December 24, 1930, and on said day the time for payment was extended to December 24, 1931; that the time for payment of note 2-B was on December 24, 1930, by agreement extended to December 24,1931, and on the latter day was again extended for a period of 3 years; that the time for payment of note 3-C was on December 24, 1931, extended for a period of 3 years; that the time for payment of note 4-D was extended from time to time, the last time on December 6, 1934, for a period of 4 years; that note 5-E was paid and canceled; that there was paid on account of the principal of note 6-F the sum of $500, reducing the principal balance to $3,500, and the time for payment of the note was extended from time to time, the last time on December 24, 1934, for a period of 4 years; that the time for payment of principal notes 7-G- and 8-H (owned by appellants) was never extended, and that the schedule of due dates on the unpaid notes as extended as found by the master is: “Note 1A due December 24, 1931; Note 2B due December 24, 1934; Note 3C due December 24, 1934; Note 4D due December 24, 1938; Note 6F due December 24, 1938; Note 7Gr due December 24, 1931; Note 8H due December 24, 1931.” The master found that the notes were on a parity. Plaintiff filed an objection to the master’s report, which reads: “For that the said Master has found that there was an attempt made by the Citizens State Bank of Chicago, acting as agent for the owners and holders of the unpaid notes, to extend certain of said notes, as they became due, and that some of said extensions were accepted by the owners and holders while other note-holders did not acquiesce; when in truth and in fact the Master should have found that the legal holder of the premises never agreed to any extension, and no valuable consideration was suggested or proven with reference to any of the notes. The Master’s conclusion, however, in this regard, is correct, but the finding as to the evidence is not in accordance with the facts.” The conclusion of the master is that some of the extensions were accepted by the noteholders while others did not accept the extensions. The counterclaimants also filed objections. In addition to objecting to the finding that the notes were on a parity counterclaimants objected to a finding by the master that the counter-claimants as noteholders were not entitled to have an allowance made for their attorneys’ fees, and asked that the report be amended so as to allocate the fees to be allowed to plaintiff and to such holders and owners of notes as had made proof showing that they were entitled to attorneys’ fees. The master overruled the objections. On October 18, 1937, the following order was entered: ‘ ‘ This cause coming on to be heard upon the motion of Cooney and Verhoeven, attorneys for the plaintiff, Conrad M. Dreger, to approve the Master’s report and decree of sale, and it appearing to the Court that objections were filed to the Master’s report by Janies Murphy and Gustav 0. Anderson, guardians of the estate of Robert E. Anderson and Virginia F. Anderson, by their attorneys, and the Court having jurisdiction of the subject matter hereof and being fully advised in the premises, Does Hereby Order, Adjudge and Decree, that the said objections be and the same are hereby made exceptions to the said reports and decree of sale, and hearing on said exceptions are hereby set down on the eighth day of December, 1937, at 11 A. M. ’ ’ Thus it will be observed that the objections of counterclaimants were allowed to stand as exceptions but that no further action was taken on the objection of plaintiff. In that state of the record the assumption is that plaintiff had no criticism of the report of the master. After argument on the exceptions of counterclaimants a decree was entered substantially as recommended by the master, to reverse which this appeal is prosecuted. Appellees asked leave to file a reply to the reply brief, which leave was denied. The proposed brief was attached to the motion. In order to be sure that we did not overlook any points, however, we read the proposed brief.

Counterclaimants urge that the extension of time for the payment of one note of a series, secured by the same trust deed, containing no parity clause, postpones the right of the holder to receive payment from the security until the prior maturing notes are paid. The general rule in this State is expressed in the following language from Kuppenheimer v. Chicago Title & Trust Co., 163 Ill. App. 127, 134, 135:

“The rule that in the absence of an agreement to the contrary, notes are payable from the proceeds of the sale of mortgaged property in the order of their maturity, is predicated upon the fact that the holder of the note first maturing may foreclose upon nonpayment without waiting for the succeeding notes to mature. Sargent v. Howe, 21 Ill. 148; Gardner v. Diederichs, 41 Ill. 158. In the case last cited it was said: ‘The power to do this implies a priority of lien in the notes first falling due. ’

“When the notes and trust deeds here involved were executed it may reasonably be presumed that the parties intended that the several notes would be paid at maturity. This was the contract, and we perceive nothing in the default clause which evidences a contrary intention. The provision whereby the holders of the notes were authorized to declare the notes to be due before their maturity by their terms only became operative in the event that the mortgagor and maker of the notes failed to comply with his contract.

“Notwithstanding the fact that the mortgages involved contained default clauses, some of which were operative automatically without any election by the holders of the notes, the pro tanto rule was announced and adhered to in the following cases: Gardner v. Diederichs, supra; Koester v. Burke, 81 Ill. 436; Hurck v. Erskine, 45 Mo. 484; Marine Bank v. International Bank, supra; Leavitt v. Reynolds, 79 Iowa, 348; Horn v. Bennett, 135 Ind. 158. In 2 Jones on Mortgages, sec. 1699, it is said: ‘This rule of priority according to maturity is not affected by a provision in the mortgage whereby all the notes become due upon any default. ’ See also 27 Cyc. 1306, and 20 Am. & Eng. Enc. of Law, 1049.

“The clause in the mortgage providing for the distribution of the proceeds of a sale of the premises contains no intimation that such distribution shall be made otherwise than the law directs in the absence of a special agreement to the contrary. The case of Humphreys v. Morton, 100 Ill. 592, cited by appellees, is not in point. In that case the court adhered to the pro tanto rule; but held it to be inapplicable because the bonds there involved matured simultaneously. ’ ’ Such being the rule, the question arises as to whether it is applicable to a factual situation such as is presented in the case at bar, where notes maturing prior to and concurrently with the notes owned by counterclaim-ants are extended. It would seem that in principle the law should be the same. The only case cited that approaches the proposition is In the Matter of Estates of Lalla, 362 Ill. 621. In that case the proposition arose in the probate court of Cook county in the matter of investing certain funds derived from the United States Veterans’ Administration. The case involved the purchases of different securities. The guardian had, among other investments, purchased a so-called Anderson note, which was a first mortgage note for $500, part of an issue of sixteen notes aggregating $16,000, due serially on different dates. By a prior extension of all the unpaid notes, the one purchased by the guardian and another note had first maturity in the series. The trust deed contained no parity clause. The court held that where notes secured by a first trust deed containing no parity clause, were extended, the first maturing extended note had priority. Appellees do not make any contention to the contrary, but argue that there was no valid extension agreement. We find that there is abundant evidence showing valid extension agreements. Furthermore, appellees’ owm exhibits show that extension agreements were made. Moreover, it is too late for appellees to complain about the master’s report. If they had any objections to the findings they should have filed the same before the chancellor so as to give him an opportunity to rule thereon. They filed with the master the objection we have mentioned. The objection is ambiguous, and no order was entered that it stand as an exception.

‘ ‘. . . It is well settled that where matters of fact are referred to a master for his determination, it is the duty of the parties, when notified, as was done here, to appear before him and there contest the matter, and if his findings are not, in their judgment, supported by the evidence, it is their duty to interpose their objections, so as to afford the master an opportunity to modify his report if it should happen to be wrong; and if in such case, after hearing the objections, the master declines to modify or change his report, it is the duty of the objecting parties, after it has been filed in court, to appear there and file exceptions to it; and when this course has not been pursued, and no sufficient reason is assigned for not doing so, as was the case here, the report of the master, when approved by the court, will be deemed in this court conclusive upon the questions covered by it.” (Jewell v. Rock River Paper Co., 101 Ill. 57, 68-69. See also Marble v. Thomas, 178 Ill. 540; Hurd v. Goodrich, 59 Ill. 450; Udstuen v. Illk, 291 Ill. 443, 448; Johnson v. Voudrie, 233 Ill. App. 572, 576.) As the record stands, appellees cannot voice any complaint as to the findings of fact of the master. We therefore turn to a further consideration of the points made by counter-claimants. The master found that note 1-A was extended to December 24, 1931, and counterclaimants urge that he should have made an additional finding that said note was again extended from December 24, 1931, to December 24, 1934. It would seem that the same evidence that induced him to make the findings as to the extensions of the other notes would support a similar finding as to note 1-A. However, a perusal of the abstract and record does not disclose any exception to the finding that the last extension of note 1-A was to December 24, 1931. Hence, under the rule above announced, the objection raised here cannot be considered. We are satisfied that the rule of law that where there is no parity clause the prior due notes should be first satisfied out of the security, applies-with equal force to notes that become “prior due” by reason of extension agreements made on other notes.

Another of counterclaimants’ contentions is that plaintiff is not entitled to a prior lien for attorneys’ fees. The matter is governed entirely by the language of the instrument. We agree that unless the same contains language granting priority to attorneys’ fees such fees are on a parity with other charges. The trust deed, however, does say that the fees “shall be taxed as costs and included in any decree that may be rendered in such foreclosure proceeding.” Taxed costs have a priority, and we are of the opinion that the quoted language is sufficient to authorize priority as to solicitors’ fees. The instant trust deed is not well suited for a split mortgage issue. It does not take into account many of the contingencies that may arise when the notes come into the hands of different, unrelated persons. The trust deed contains the following clause: “It is further agreed by the grantors for said grantors and for the heirs, executors, administrators and assigns of said grantors that in case a right of foreclosure or other right of procedure shall arise hereunder, in any of the manners above specified, the legal holder or holders of said principal notes or of any part thereof or the said Trustee for the benefit of such holder or holders shall have the right to bring such legal or equitable proceedings for the collection of moneys hereby secured as may be necessary; that all expenses and disbursements, paid or incurred in behalf of complainant in connection with the foreclosure hereof — including reasonable solicitor’s fees, outlays for documentary evidence, stenographer’s charges, cost of procuring or completing an abstract of title showing' the whole title to said premises embracing foreclosure decree — shall be paid by the grantors; that the like expenses and disbursements, occasioned by any suit or proceeding wherein the trustee, or any holder of any part of said indebtedness, as such, may be a party, shall also be paid by the grantors; that such fees, expenses and disbursements shall be an additional lien and charge upon such premises secured by this deed, shall be taxed as costs and included in any decree that may be rendered in such foreclosure proceeding; whether decree of sale shall have been entered or not, shall not be dismissed, nor a release hereof given, until all such fees, expenses and disbursements and the costs of suit, including solicitor’s fees, shall have been paid.” (Italics ours.) Under that clause one noteholder does not have the right to bring a representative action and he may file the complaint only in behalf of himself and others who wish to join with him. All the noteholders may join or the trustee may foreclose for all of them. It is obvious that if plaintiff had the right to bring his complaint in behalf of all the noteholders it would be unnecessary for him to make any of them parties by the name and style of ‘ ‘ Unknown Owners. ’ ’

The final point raised by counterclaimants is that the chancellor erred in not allowing them fees for the services of their attorneys. The matter of the allowance of fees is one to be determined by contract. In the usual foreclosure proceeding the plaintiff has authority to foreclose the entire issue and he is entitled to be reimbursed for the reasonable value of the services rendered by his solicitor. Here, however, plaintiff did not have the right to represent all parties. Therefore, in effect, he was bringing a foreclosure complaint in behalf of himself alone, and the fees allowed should be commensurate with his interest. We are of the opinion that the language of the trust deed is broad enough to cover a situation like the one before us, where the counterclaimants have vigorously and capably asserted their rights. Without such action on behalf of counterclaimants their rights would have been ignored, and under the language of the trust deed they should be allowed reasonable fees for the services of their attorneys. In entering the decree, however, the fees allowed as a whole should not exceed the fees that would ordinarily be allowed the plaintiff in foreclosing the entire issue.

Therefore, the decree is reversed and the cause remanded with directions to modify the decree so as to provide that the liens of counterclaimants as holders ' of notes 7-Gr and 8-H shall be on a parity with note 1-A; that notes 1-A, 7-Gr and 8-H shall be first and prior liens to the liens of the other noteholders; that the fees allowed to plaintiff for his solicitors be reconsidered, and that solicitors’ fees be allowed to other parties, as they merit, not exceeding, however, one reasonable fee for all.

Decree reversed and cause remanded with directions.

Friend, P. J., and John J. Sullivan, J., concur.