author: Mr. Justice Dove

text:
    Amalia Niemi, Administratrix of the Estate of August Niemi, Appellee, v. A. A. Sprague and Britton I. Budd, Appellants.
    Gen. No. 9,183.
    Opinion filed May 18, 1937.
    Gardner, Foote, Morrow & Merrick, of Chicago, for appellants; Walter M. Fowler, of Chicago, of counsel.

      Decker & Decker, of Waukegan, and Bows & Bows, of Chicago, for appellee; Bernard M. Decker and Augustine J. Bows, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee, as administratrix of the estate of her deceased husband, brought this action to recover damages for his alleged wrongful death. The issues made by the complaint and answer have been submitted to two juries. Upon the first trial the jury returned a verdict of not guilty, which was, on motion of the plaintiff, set aside and a new trial awarded. From this order an appeal was prosecuted to this court, where the order of the trial court was affirmed. Niemi v. Sprague, 280 Ill. 631 (Abst.). The second trial resulted in a verdict and judgment in favor of the plaintiff for $4,250 and the record is again before us for review.

The complaint alleged that on January 29, 1934, August Niemi, appellee’s intestate, while in the exercise of due care and caution for his own safety, was driving an automobile in a westerly direction along Tenth street in the city of Waukegan; that about 9 o ’clock in the morning of said day, appellants, by their servants and employees, negligently drove a passenger train over and upon the Tenth street crossing so that it ran into the automobile which Niemi was driving and as a result thereof Niemi died. The negligence alleged was the high rate of speed at which the passenger train was being driven, the failure of the servants of appellants to sound a bell or blow a whistle, the failure of the wigwag signal and bell to operate and the failure of the company to properly guard and protect the crossing except for this wigwag signal and bell which was located at the southwest corner of the crossing. The complaint further alleged that because of the location of the wigwag signal, it did not provide a reasonably safe means of warning those who approached the crossing from the east and that while this signal and bell were intended to warn travelers on the highway of the approach of trains, it failed to function upon this particular occasion and by reason thereof Niemi was impliedly invited to cross said tracks with safety. It wias further averred that Niemi did attempt to drive across said crossing, but was killed as a result of the negligence complained of. The answer of the defendants denied the material allegations of the complaint and the issues were submitted to a jury, resulting in the judgment as stated.

No complaint is made by counsel for appellants upon the rulings of the court upon the evidence, nor are any errors assigned with reference to the instructions given at the close of all the evidence, nor is it insisted that the damages are excessive. Counsel do contend, however, that the evidence was insufficient, both upon the question of negligence and upon the question of due care to warrant the trial court in submitting the case to the jury and further, that if the evidence was sufficient to go to the jury, the verdict of the jury is manifestly against the weight of the evidence.

The evidence discloses that appellee’s intestate was killed on the morning of January 29, 1934, about 9 o’clock, while he was riding in an automobile along Tenth street in the city of Waukegan. At the place of the accident, Tenth street runs east and west and appellants’ tracks run north and south. The train which caused the death of appellee’s intestate was a regular northbound electric passenger train which passed the crossing about the same time each morning. Decedent was approaching the crossing from the east in an automobile traveling west on Tenth street. He had lived with his family for six or seven years in the immediate neighborhood of the crossing and was in the habit of crossing these tracks at this place several times each day. On the morning of the accident, the deceased, as was his custom, had taken his two daughters to school and had crossed the tracks at this Tenth street crossing and after leaving his daughters at the schoolhouse, he was returning* to his home when the accident occurred. January 29, 1934, was a brig’ht, cold morning, the temperature ranging somewhere between five and twelve degrees below zero. At the time of the accident the train was traveling at least 55 miles per hour. The automobile, according to some of the testimony, was approaching* the crossing slowly; other witnesses expressed the opinion that it was being driven between 40 and 55 miles per hour as it came to the point of collision. Waukegan is a city of approximately 35,000 inhabitants and Tenth street is one of the main traveled streets of the city. Other than the usual stationary railroad crossing* signal, appellants had provided at the southwest corner of this crossing a wigwag* signal, which consisted of a circular banner supported by a shaft running* to a crossbar which is attached to an upright post approximately 14 feet high. The banner itself is located approximately 12 feet from the ground. In the center of the banner there is a light and a bell mechanism is located near the top of the upright post. The signal is electrically operated and normal operation of this wigwag* signal consists of a simultaneous swinging back and forth of the large circular banner which moved from side to side like a pendulum with the flashing* of the light. Normally it made 35 to 40 cycles a minute and while the pendulum was so moving, the red light flashed and the bell attached to the standard rang*. This wigwag signal was an automatically operated electric device, normally put in operation by northbound trains at a cut-in located 2659 feet south of the Tenth street crossing and by southbound trains at a cut-in located about the same distance north of the crossing. This signal was designed to operate when a train was approaching from either direction and it continued to operate until the last pair of wheels crossed the cut-out beyond the crossing and did not operate when trains were not approaching the crossing.

Joseph Terlap testified that he was riding in a truck and coming toward this crossing from the west on the morning of the accident; that when about 200 feet from the crossing he observed the automobile in which the deceased was riding as it approached the crossing from the east; that it was at that time about 150 feet east of the tracks and his automobile was going slow. This witness further testified that he was familiar with this crossing; that nothing obstructed his view or interfered with his hearing this particular morning; that he saw the collision, observed the wigwag, knows it was not working and he heard no sound and saw no light flashing*; that right after the collision, a minute or so, according to this witness, another train, this one coming* from the north, crossed this crossing* and at that time the truck in which witness was riding* was almost beneath the wigwag* signal; that he observed it and the signal did not move or operate in any way.

Paul Trater testified that he was driving* the truck in which he and Terlap were riding. He also testified that the car which the deceased was driving* approached the tracks slowly while the train was going fast; that he didn’t observe the wigwag as the train which struck the car of appellee’s intestate approached the crossing, but did thereafter, and corroborates Terlap to the effect that when the southbound train passed the crossing a minute or so after the collision, the wigwag* did not operate.

Oscar Wilhonen testified that he was a carpenter living in the vicinity of the Tenth street crossing and was standing on a platform on the west side of the tracks about 7 o ’clock on the morning of the accident; that he observed the wigwag signal while both a northbound and a southbound train were passing and on both occasions the signal did not operate.

Lawrence Findley, a signal maintenance employee of appellants, testified that he was on one of appellants’ trains going to Racine, Wisconsin, on the morning of the accident and the train upon which he was riding passed over this crossing about 8 o’clock that morning; that while the signal was operating, it was not working normally, and by that he said he meant it was not working as fast as it did in good weather.

Bernard Knipple testified that he was an employee of appellants in charge of maintaining and inspecting wigwag and block signals and automatic gates in the territory south of the Wisconsin-Illinois State line, and that he tested this particular signal at the Tenth street crossing at about 9:45 a. m. on the morning of the collision, which was about 45 minutes after appellee’s intestate was killed; that he energized the circuit with the result that the banner worked, the bell rang and the light lighted. This witness further testified that at 10' :15 a. m. on the same day of the collision he again tested the signal, counted the cycles and found that the number of cycles per minute was 15, whereas the normal number of cycles was 35 to 40 cycles per minute. He further testified that cold weather under frosty conditions affected the wigwag and that when he wiped the frost off of the commutator brushes, the signal operated faster.

Caroline Ewry testified on behalf of appellants to the effect that she was a passenger upon the train with which the car of appellee’s intestate collided; that she was riding about the center of the first coach on the east side and sitting next to the window; that as the train approached the Tenth street crossing, she observed the automobile and estimated the distance from where the train was at that time to the point of the collision as about 250 feet, while at the same time she estimated that the automobile was about 150 feet east of the track. She further testified that the automobile and train were both going about the same rate of speed and estimated each at 55- miles per hour. She further testified that the whistle on the train was blowing as it approached the crossing and that she watched the deceased, observed the expression on his face, noticed that he had his hands on the steering wheel of his car and was looking ahead and she did not notice him change the position of his head or hands at any time.

The motorman, Charles A. Driscoll, testified that he began blowing the whistle when the train was about 1,500 feet back of the crossing and blew it continuously until the time of the accident; that he first saw the automobile in which appellee’s intestate was driving when it was about 40 feet from the rail and he observed that at that time Niemi had his hands on the steering wheel, his body leaning a little forward, that his train and the automobile were going about the same speed and the automobile came in contact with the train about four feet from the extreme front end of the car and directly under where the motorman was sitting.

The evidence is further that there are two tracks at this crossing and regular hourly passenger train service was being maintained and had been maintained for many years across this crossing in both directions from 6 or 7 o ’clock in the morning until 11 o ’clock each evening*. The street along which appellee’s intestate was traveling was paved east of the tracks up to within 48 feet of the east rail, but was not paved west of the tracks and there was a slight grade beginning about where the paved portion left off up to the tracks. There is evidence to the effect that there was no heater in the car which Niemi was driving, that the windows of the car were closed as he drove his children to school and after he let them out, that there was a rectangular piece of cellophane taped to the windshield which prevented it from frosting and through which the driver could readily see, but that a portion of the windshield and windows were frosted. It also appeared from the evidence that Niemi, at the time he was killed, enjoyed good health, was 49 years of age, did not wear glasses and his eyesight and hearing were normal. A series of photographs and a plat were also offered and admitted in evidence and from these, together with all the other evidence in the record, the jury was in a position to determine just what the conditions were on the morning of the accident.

The foregoing is a fair resume of all the evidence in this record and from it counsel for appellants insists that, it is apparent that appellee’s intestate relied solely upon the assumption that no train was coming simply because the wigwag signal was not working and counsel argue that the failure of the wigwag signal to operate was no evidence of negligence on the part of appellants nor did such failure constitute an invitation on their part for appellee’s intestate to cross the tracks and that as a matter of law, the deceased must be held guilty of contributory negligence which would bar a recovery in this case. In this connection counsel cite several cases from other jurisdictions and call our attention to Price v. Chicago & E. I. Ry Co., 270 Ill. App. 111; Urban v. Pere Marquette R. Co., 266 Ill. App. 152; Wolczek v. Public Service Co., 342 Ill. 482; Provenzano v. Illmois Cent. R. Co., 357 Ill. 192.

Price v. Chicago & E. I. Ry Co., supra, was an action to recover for the wrongful death of the son of the driver of an automobile, who was killed as the result of a collision with defendants’ train at its ridge road crossing in the village of Thornton. It appeared from the evidence that the deceased said to his father when the front of the car was 20 or 40 feet west of the track: “Step on it Pop,.here comes a train” and that when he was 30 feet from the track, the deceased said to his father: “All right, Pop.” It further appeared that the accident happened on a bright, clear day; that there was an unobstructed view of the tracks for a considerable distance; that the automobile in which the plaintiff’s intestate was riding was proceeding at a slow rate of speed; and that the evidence tended to prove that the signal light at the crossing was not operating. The Appellate Court particularly on the question of contributory negligency reversed the judgment for the plaintiff and remanded the cause for a new trial and in the course of its opinion said: “If the Packard car was proceeding at the rate of three or four miles an hour, it could have been stopped within a distance of a few feet. ... A railroad crossing is a dangerous place and one about to cross over such a place is bound to use care commensurate with the known danger. The fact that the lights were not flashing, if they were not, will not relieve one of the duty of using this care, particularly where there is an ample opportunity to get a clear and unobstructed view of the approaching danger. (Citing cases.) One who has an unobstructed view of an approaching train owes a duty to himself to exercise care for his own safety qnd cannot rely upon the assumption that there will not be a violation of a statutory requirement such as operating signals or ringing bells. Where a passenger riding in an automobile has an opportunity of learning of approaching danger and has the opportunity to avoid it, he should for his own safety exercise due care and warn the driver of such danger. He cannot rely em tirely upon the judgment of the driver of the car in which he is riding. ’ ’

Urban v. Pere Marquette R. Co., supra, was an action to recover for the death of a pedestrian killed by a train. The evidence disclosed that the deceased was of good health, had good hearing and eyesight, had an unobstructed view of the approaching train for several blocks, that the headlight of the train was burning brightly, that the bell and whistle were sounded, that the crossing was clear of traffic, that there was no other train or trains approaching from the same or different directions and that there was nothing to divert the attention of or confuse the deceased. In its opinion the court, after enumerating these factors, said that the only circumstance which might be suggested as excusing the deceased’s presence on the track at the time he was hit was the testimony of a single witness, whose testimony was highly improbable and against the preponderance of all the evidence, who had testified that the traffic gate was up. The court therefore held as a matter of law" that the deceased was guilty of contributory negligence, which precluded a recovery. We have examined some of the other cases cited and relied upon by appellants, but in none of the other Illinois cases was the court called upon to consider the effect of the failure of an automatic crossing signal to function upon the question of contributory negligence.

It has frequently been held that the mere failure of a person to look and listen as he approaches railroad tracks upon a crossing is not in itself negligence as a matter of law. Elgin J. & E. Ry Co. v. Lawlor, 229 Ill. 621; Chicago Junction R. Co. v. McAnrow, 114 Ill. App. 501. Whether the deceased in the instant case failed to look for this approaching train and if he did whether that omission was negligence and directly contributed to his death were questions of fact for the jury to determine. Chicago & Alton R. Co. v. Robinson, 106 Ill. 142. “Undoubtedly a failure to look or listen, especially where it affirmatively appears that looking or listening might have enabled the party exposed to injury to see the train and thus avoid being injured, is evidence tending to show negligence. But they are not conclusive evidence, so that a charge of negligence can be predicated upon them as a matter of law. There may be various modifying circumstances excusing the party from looking or listening, and that being the case, a mere failure to look or listen cannot, as a legal conclusion, be pronounced negligence per se.” Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, 148. In Terre Haute & I. R. Co. v. Voelker, 129 Ill. 540, at pages 552, 553, the court says: “It has frequently been said in judicial decisions in this State and elsewhere, that it is the duty of persons approaching a railway crossing, to look and listen before going upon the track, and that their failure to do so is negligence, but it will be found generally, though not uniformly, on examining’ the cases where such language occurs, that it has been used in discussing* the duty as to care and caution in approaching a railway crossing, viewed as a mere question of fact, and not as a question of law. It is doubtless a rule of law that a person approaching a railway crossing is bound, in so doing, to exercise such care, caution and circumspection to foresee danger and avoid injury as ordinary prudence would require, having in view all the known dangers of the situation, but precisely what such requirements would be, must manifestly differ with the ever varying circumstances under which such approach may be made. Ordinarily of course the diligent use of the senses of sight and hearing is the most obvious and practicable means of avoiding injury in such cases, but occasions may and often do arise where the use of those senses would be unavailing, or where their non-use may be excused. The view may be obstructed by intervening objects or by the darkness of the night. Other and louder noises, as is often the case in a city, may confuse the sense of hearing and render its use impracticable. The railway company, by its flagman or other agent or agency, may put the person off his guard and induce him to cross the track without resorting to the usual precautions. The duty may be more or less varied by the age, degree of intelligence and mental capacity of the party, and by a variety of other circumstances by which he may be surrounded. It follows that no invariable rule can be predicated upon the mere act of failing to look or listen, but a jury, properly instructed as to the legal duty in respect to care and caution, of a person approaching a railway crossing, must draw from such act, in connection with all the attendant circumstances, the proper conclusion as to whether he is guilty of negligence or not.”

As we stated in our former opinion, whether the deceased was misled into attempting to drive across the tracks of appellants because of the failure of the wigwag signal to work was not susceptible of direct and positive proof. It would not have been an unreasonable inference, however, to be drawn from all the evidence and facts and circumstances in evidence that deceased would have been warranted in assuming that if the wigwag signal was not operating no train was approaching. We approve much of the language used by the court in Pennsylvania R. Co. v. Shindledecker, 44 F. (2d) 162. In that case it appeared that the plaintiff was a truck driver and was injured at a crossing where there was an automatic bell which the jury found was not ringing upon the occasion in question. In the course of its opinion, the court said: “We place the affirmance of the submission solely upon the effect of the silent crossing bell in lessening plaintiff’s otherwise unescapable obligation to have discovered in time the approaching train, and in therefore so far mitigating his undoubted lack of possible care as to make it a question of fact rather than of law whether his conduct was reasonably prudent. Wabash Ry v. Glass (C. C. A. 6) 32 F. (2d) 697, 699. We have many times considered this question, the last in Leuthold v. Pa. R. R., 33 F. (2d) 758. The general rule there stated is not questioned by appellant’s counsel; they distinguish that case from this only because they say that here plaintiff’s reliance upon the silent bell, as in the nature of an invitation to cross, did not sufficiently appear. True, plaintiff as a witness did not, in so many words, state that reliance, but it did appear that he had driven across at this point daily for many months; that he was thoroughly familiar with this warning bell and was accustomed to hear it above the noise of his engine, so that it was not necessary for him to stop his engine to get the benefit of this protection; and that, at this particular moment, the bell was not ringing and he knew it. Under such conditions, it seems to us there is a reasonable inference, open for adoption for the jury, that plaintiff did rely, in substantial measure, upon the lack of warning from this bell. There would naturally be an established habit of listening for the bell, though perhaps subconsciously, and of relying upon its silence to induce going ahead. If a driver at a particular crossing has been repeatedly stopped or warned by an automatic bell, or flashing light, or swinging signal, or other means familiar to him by which a coming train gives notice of its close approach, and if, on a particular occasion, he is paying sufficient attention to realize that this customary notice is not being given, it is, we think, an entirely permissible inference, even in the lack of any direct proof, that the absence of the usual warning has a substantial effect in leading him to go ahead, and in neutralizing that incessant watchfulness which self-protection would otherwise demand.”

Of course it was the duty of appellee’s intestate to have used every reasonable precaution, such as an ordinarily prudent man under the same circumstances would have employed before crossing the appellants’ tracks, irrespective of whether the signal was operating or not. The question is what would an ordinarily prudent person have done under all the conditions and circumstances surrounding appellee’s intestate, including the fact that the wigwag indicated that no train was approaching the crossing. See Lindekugel v. Spokane, P. & S. R. Co., 149 Ore. 634, 99 A. L. R. 721 and annotation following, beginning at page 729. Had he looked to the north he would have seen the approach of the train which killed him. If he had looked in the opposite direction he might have seen indications that a train was coming from the south. Whether the windows of his car were frosted or not and if so, whether he was thereby prevented from seeing down the track in the direction from which the train was coming was a disputed question of fact. As he approached this crossing, we think, under the evidence, the jury were warranted in concluding that he had a right to rely upon this wigwag signal and that its failure to warn him of the approaching train was notice to him that no train was close at hand and from all the facts, conditions and circumstances as shown in this record, we would not be justified in saying that the jury were not warranted in finding a sufficient excuse for his failure to look (if he did not look) in the direction from which the train came which cost him his life. It must not be lost sight of that the purpose of this signal was not only to warn traffic of the approach of trains, but its nonoperation was to assure the traveler that it was safe to cross.

We have read all of the evidence in this record and from a careful consideration of it are of the opinion that the issues of fact were properly submitted to the jury and that the finding of the jury is not manifestly against the weight of the evidence and that the jury’s conclusion should not be disturbed.

There is one error, however, that necessitates either the reversing of the case or the correction of the judgment in this court. The trial court awarded an execution upon the judgment. The appellants are defending as receivers of the Chicago, North Shore and Milwaukee Railroad Company. It is conceded that a judgment against receivers is payable in due course of administration and that it was error to award execution upon this judgment. Under the Civil Practice Act, however, there is no necessity to remand this case with directions to the lower court to correct the judgment. The judgment will be modified in this court by striking out the portion thereof which awards an execution and in lieu thereof directing that the same be paid by appellants in due course of administration. As so modified, the judgment will be affirmed. The costs in this court to be paid by appellant.

Judgment modified and as modified affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Matghett McStjrely, J.,

license: Public Domain

text:
    Joseph LaRue, Appellee, v. Indiana Harbor Belt Railroad Company, Appellant.
    Gen. No. 39,035.

      Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    Sidney C. Murray, Marvin A. Jersild and Harold E. Christensen, all of Chicago, for appellant.
    Finn & Miller, of Chicago, for appellee.
   Mr. Presiding Justice Matghett

delivered the opinion of the court.

The plaintiff brought an action on the case in the superior court of Cook county against three carriers — ■ the New York Central Railroad, the Baltimore & Ohio Chicago Terminal Railroad, and the Indiana Harbor Belt Railroad Company. At the close of all the evidence defendants (except the Indiana Harbor Belt R. R. Co.) were granted instructions in their favor. The cause was submitted to a jury which returned a verdict for plaintiff for $12,800, upon which the court, overruling motions for a new trial and in arrest, entered judgment. That judgment defendant asks ns to reverse.

The material facts can hardly be said to be in dispute. On and prior to July 4, 1933, the Michigan Central Railroad was the owner of a freight car MC No. 82264. July 4, 1933, the P. & E. R. R. Co. turned this car over to the Big Four at Lyons, Illinois. July 5th the Big Four delivered the car to the New York Central R. R. at Parks Lake, Indiana. July 8, 1933, the New York Central R. R. delivered this car to defendant Indiana Harbor Belt R. R. Co. at G-ibson, Indiana. When thus delivered it was an empty freight car. The next day the defendant caused the car to be inspected and it was marked O. K. by the inspector. July 11th thereafter defendant delivered this car to the Inland Steel Company at Indiana Harbor, Indiana. The steel company redelivered the car (loaded with sheet steel) to defendant. The car thus received was consigned to the Caine Steel Company at Cicero, Illinois, and routed to East Chicago, Indiana, by the B. & 0. Chicago Terminal R. R. Co. The defendant Indiana Harbor Belt R. R. Co. transported the car thus loaded to East Chicago, Indiana, and it was there delivered to the B. & 0. Chicago Terminal R. R. Co. on July 13th. The B. & 0. C. T. R. R. Co. transported the car to the freight track of the Caine Steel Company at Cicero, Illinois, where it was placed for unloading on a private track connected with the railroad. While there is a stipulation that the car was placed on the Caine Steel Company’s private track on July 14th, the evidence indicates that the car arrived and was placed on Saturday afternoon, and that on the following morning, July 16th, at about 8 a. m., the employees of the Caine Steel Company begun unloading it.

Plaintiff was an employee of the Caine Steel Company, and while in the course of his employment, assisting in unloading the steel from this freight car, received an injury as a result of the floor of the car giving way because it was decayed. He was badly injured, losing his left leg. The track upon which this car was placed was a spur track which ran north and south, and the car was stopped immediately east of and adjacent to the north door of the warehouse of the Caine Steel Company which was parallel to the spur track. On the day after plaintiff received his injury the car was moved about 60 feet south of where it stood at the time of the injury, and this movement was made by the B. & O. C. T. R. R. Co. A few days later the freight car was placed on defendant’s repair track at Indiana Harbor, Indiana, where it was repaired by employees of defendant.

Plaintiff filed a complaint in two counts, in both of which he alleged “that said defendant, Indiana Harbor Belt Railroad Company, a corporation, was in possession and control of its certain steam railroad system, railroad tracks, engines and cars in the State of Indiana and extending into the State of Illinois.” In each count it was alleged that defendants were connecting railroad carriers, and that in the transportation and delivery of the freight car defendants and all the employees worked in interstate commerce; that defendants negligently inspected the car and negligently allowed the floor of the car to become and remain in a defective condition; that defendants knew that the car was to be used for transporting heavy freight, and by ordinary diligence would have so known and would have known of the defective condition of the car, and that plaintiff, while in the exercise of due care, was assisting in unloading the car when the floor of it gave way, injuring him.

Defendant Indiana Harbor Belt R. R. Co. moved for judgment on the pleading because of the alleged insufficiency of the amended complaint as amended. This motion was denied. Defendant then answered denying that it was engaged in interstate commerce at the time when plaintiff was injured, denying the negligence alleged, denying that plaintiff was in the exercise of due care, asserting that plaintiff assumed the risk of the alleged accident and injury. The cause was submitted to a jury with the result heretofore stated.

Defendant in this court presents a single reason for reversal. It says that plaintiff had no right of action against defendant but was limited to his right to compensation from his employer under the Workmen’s Compensation Act. That question was raised under the pleadings by the preliminary motion to dismiss. It was not set up in the answer. It was, however, stipulated upon the hearing that plaintiff and his employer, the Caine Steel Company, were at the time plaintiff was injured under the Workmen’s Compensation Act. (See Illinois State Bar Stats. 1935, ch. 48, lili 201-236, pages 1589-1606; Jones Ill. Stats. Ann. 143.17-143.52; Smith-Hurd’s Annotated Stats., ch. 48, secs. 139-143-148-166.) One of the ultimate issues submitted to the jury was whether defendant was at the time plaintiff received his injury engaged in interstate transportation. Attorney for plaintiff told the jury that there were three questions in the case: Whether defendant was negligent; whether plaintiff was in the exercise of due care; and whether defendant was engaged in interstate transportation. Defendant’s attorney argued to the jury that defendant was not engaged in interstate commerce at the time plaintiff was injured, and at defendant’s request the court gave an instruction (of which plaintiff does not complain) to the effect that if defendant “at the time of the injury to plaintiff was not engaged in the work of interstate commerce,” the jury should return a verdict of not guilty. After the jury retired and before rendering its verdict, the jury requested further instruction as to the law. Thereupon, attorney for the plaintiff prepared and the court, without objection from defendant, gave an instruction to the effect, “that in determining the question of whether or not the plaintiff or defendant, or either of them, was engaged in interstate commerce the test is whether or not the corporation or person was engaged in the transportation of freight from State to State, or in work so closely related to such transportation as to be practically a part thereof. ” It is apparent, therefore, that the cause was tried upon the theory that if defendant was not engaged in interstate transportation at the time of the injury, plaintiff was precluded from maintaining his action, and that if defendant was so engaged at that time it was not so precluded. The question was not squarely put in issue by the pleadings as to whether the relationship of plaintiff and his employer to the Workmen’s Compensation Act was material, but it is apparent that counsel for both parties acquiesced in the theory that if defendant was at that time engag’ed in interstate transportation, section 29 of the Workmen’s Compensation Act, Ill. State Bar Stats. 1935, ch. 48, If 229; Jones Ill. Stats. Ann. 143.44, would not preclude plaintiff from maintaining’ his action as at common law for negligence. Both plaintiff and defendant tried the case upon this theory; they are therefore bound by their attitude upon that question in the trial court. National Bank of Republic of Chicago v. Uptown State Bank, 273 Ill. App. 401. The controlling issue upon this record is whether defendant, at the time plaintiff received his injury, was engaged in interstate transportation, or in work so nearly connected with it as to be a part thereof. If the evidence in the record sustains the verdict of the jury on this issue, then the judgment should be affirmed. If there is no evidence tending to show this ultimate fact, then the judgment should be reversed.

Defendant concedes, as many cases hold, that an employee may recover from a third party if such third party, while engaged in interstate commerce, is guilty of negligence which injures him. It has been so held in a large number of cases. The cases further hold that where the evidence is susceptible of conflicting inferences the issue as to whether a defendant was engaged in interstate transportation at the time the plaintiff received his injury is one of fact for the determination of the jury. These cases also hold that the plaintiff is not in such case precluded from maintaining his suit by reason of the fact that at the time he received his injury he was working under circumstances which otherwise would limit his legal rights to the provisions of the Workmen’s Compensation Act. Goldsmith v. Payne, 300 Ill. 119; Brown v. Illinois Terminal Co., 319 Ill. 326; Runge v. Chicago Junction Ry. Co., 226 Ill. App. 187; McNaught v. Davis, 229 Ill. App. 253; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471. Defendant contends there is no evidence in this record from which the jury could reasonably find that defendant, at the time plaintiff was injured, was engaged in interstate transportation, or in matters so nearly connected with it as to be a part of it. Chicago & N. W. Ry. Co. v. Bolle, 284 U. S. 74.

Preliminary to the consideration of that question it may be well to notice the nature of the wrong of which plaintiff complains. The complaint alleges negligence of defendant railroad in the inspection of a car about to be used in interstate transportation, and furnishing same for the transportation of merchandise from Indiana into Illinois. The complaint avers that, by the exercise of diligence, defendant must have known the car furnished to be dangerous and defective. Indiana was the place of origin of this alleged negligence. Illinois was the place where the injury which was the result of the negligence occurred, and the place where the' cause of action therefor arose. In Waldron v. Director General of Railroads, 266 Fed. 196, 198, the court said: “A carrier, furnishing cars to be loaded for shipment, is liable for injuries to the shipper or his employee, due to a defect in the car which might have been discovered by reasonable care in inspection. The carrier cannot impose this duty to furnish cars reasonably safe on the shipper, to its own relief from liability for injuries to an employee of the shipper. If the carrier is negligent in furnishing a defective car to the shipper, and the shipper in turn is negligent in furnishing it to his employee to be loaded, the carrier and shipper are both liable to the injured employee; for the proximate cause of the injury is the defective car. But as between the carrier and the shipper the liability of the carrier is primary, for the reason that the shipper has a right to assume that cars furnished have been inspected by the carrier and found reasonably safe.”

The liability for negligence in one State with reference to the loading for carriage of property to be transported to another is not limited to carriers. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95. The liability of carriers in interstate commerce for such negligence has been declared by the courts in many cases. Chesapeake & Ohio Ry. Co. v. Cochran, 22 F. (2d) 22; St. Louis-San Francisco Ry. Co. v. Ewan, 26 F. (2d) 619; Sasnowski v. Mobile & O. R. Co. (Mo. App.), 207 S. W. 865; Hansen v. Ponder (Tex. Com. App.), 300 S. W. 35. The general principle upon which defendants are held liable in this class of cases is well stated in Colbert v. Holland Furnace Co., 333 Ill. 78, 81: “One who supplies h thing for such use by others that it is obvious that any defect will be likely to result in injury to those so using it is liable to any person who, using it properly for the purpose for which it is supplied, is injured by its defective condition.”

In the Wintersteen case, supra, a party negligent in loading goods to be shipped to Pennsylvania was held liable at the suit of one injured there while unloading the car. Generally the only limitation of liability for injury caused by such negligence is that the negligence must be the legal or proximate cause of the injury.

It must have been within the knowledge of the defendant, receiving a car of steel for shipment from Indiana to Illinois, that negligence with respect to the car furnished might (and probably would) result in an injury such as plaintiff sustained. Defendant contends that the interstate character of the car ceased when it was placed on the private track of the consignee. Plaintiff contends that the interstate character of this transportation did not end until the steel loaded in the car had been removed and delivered to the consignee. In Roberts Federal Liability of Carriers, vol. 2, sec. 747, page 1435, the author says: “A car loaded with freight, being* moved from one state to another continues to be used in interstate commerce until it is delivered by a common carrier to the consignee and unloaded. Its interstate character then ordinarily ceases. It does not acquire a new status as an interstate commerce car until it is again assigned or used by the' carrier for the purpose of moving traffic in interstate commerce. A movement of the car, therefore, in a terminal yard from one track to another after the conclusion of its interstate status during the first trip and before it is assigned or used in interstate commerce on the second trip, is local in character, that is, intrastate.”

The author cites authorities from Federal and State jurisdictions.

Defendant, however, points out that this statement appears in a section which considers the question of when a railroad employee is engaged in interstate or foreign commerce. It says the section deals with employees engaged in the movement of cars, and argues that the rule stated is limited to such employees, quoting section 755 to the effect that, “Railroad employees assisting in loading or unloading* freight . . . are performing a service in aid of interstate transportation. ’ ’

Defendant says there is a distinction between the unloading of a car by the consignee’s employees after the car has been finally delivered to the consignee on its private track and the unloading of interstate freight from a train at an intermediate station so that the train can proceed on its way. All this may be conceded without solving the problem of whether this jury was justified in holding that the duty of the carrier continued until and beyond the time when the car was unloaded and plaintiff injured. Defendant cites Geraghty v. Lehigh Valley R. Co., 70 F. (2d) 300, and 83 F. (2d) 738, a case where a freight conductor was killed in the movement of cars on the private' tracks of a consignee by reason, as claimed, of defective couplers violative of the Safety Appliance Acts. The Circuit Court of Appeals said: “Interstate movement ceases when cars reach their destination and are merely awaiting discharge by the consignee, even though they must be moved again to get to the place of discharge, Delaware L. & W. R. Co. v. Peck, 255 F. 261 (C. C. A. 2); Schauffele v. Director General, 276 F. 115 (C. C. A. 3). To the same effect are Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941, and Lehigh Valley R. Co. v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070, for it can make no difference in respect to the interstate character of the movement whether the goods transported are the carrier’s or the consignee’s, nor how long they have been at rest after delivery. ’ ’

A careful reading of the case discloses that it is quite distinguishable from this in that there the cars were not only placed upon a private track or spur of the consignee but had been moved inside its inclosure! The movement of the car at the time of the injury was entirely under the direction and control of the consignee. The injury to plaintiff resulted from alleged negligence in that movement. Here the injury was brought about by reason of the defective nature of the instrumentality which was furnished by the defendant in an interstate transportation. Here, also, neither the consignee nor any of its employees had assumed any duty whatsoever with respect to the inspection of the car at the time plaintiff was injured. It was not in their control or under their direction at that time, and they were in nowise responsible for the negligence which was the legal cause of plaintiff’s injury.

Defendant relies very much on Gratiot St. Warehouse Co. v. St. Louis, A. & T. H. R. Co., 221 Ill. 418, where the Supreme Court of this State said that the liability of the carrier ceased “where the carrier is not required in the usual course of business, or expected, to remove the freight from the car, as in the case of grain in bulk, coal, lumber and the like, by delivering the car in a safe and convenient position for unloading, at the elevator, warehouse or other place designated by the contract or required in the usual course of business, or, if no place of delivery is thus designated or required, on'its side-track, in the usual and customary place for unloading by consignee.”

The suit there was not for negligence causing a personal injury. The plaintiff sued, alleging negligence of the carrier with reference to the delivery of grain. It was held under all the circumstances that the carrier was not negligent. The opinion of the court also states that it had been contended by the plaintiff that the defendant carrier was liable because it provided a defective car which permitted rain, etc., to enter, injuring the grain, and the court said if there had been proof of such fact the defendant would have been liable. The case does not decide the question here presented, nor does the expression, appearing in the stipulation, “private track” have significance in determining this question. As a matter of fact, such switch connections and tracks are a part of the railroad upon which it operates its trains, (see eh. 1, sec. 1, paragraph 9, of the Interstate Commerce Act, Mason’s United States Code, Title 49) and the Supreme Court of the United States, in the Los Angeles Switching case, 234 U. S. 294, held “that the industrial spur tracks established within the carrier’s switching limits, may constitute an essential part of the carrier’s terminal system, for which the carrier cannot make an extra charge.”

The precise question here is whether a carrier which negligently inspects and afterward furnishes in Indiana a defective car to be used in the transportation of heavy steel from the State of Indiana into the State of Illinois over the line of a connecting* carrier, which has carried the car and placed it on the private spur track of the consignee, is, as to an employee of the consignee who is injured while unloading* the car, engaged in interstate transportation. A jury has answered the question in the affirmative as to the facts, and the answer of this court must be in the affirmative unless it is held, as a matter of law, that the interstate character of the car had ceased at the time the plaintiff was injured. The precise question is not decided in any of the cases cited.

In Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, Harrington was a switchman for the defendant ; he was killed while engaged in switching coal, which had been standing on a storage track for some time, to a coal shed, where it was to be placed in bins or chutes and supplied as needed to locomotives, some of which were engaged in interstate and some in intrastate commerce. It was admitted that the coal was owned by the defendant company, and “had been in storage in its storage tracks for a week or more prior to the time it was being switched into the coal chutes on the morning of the accident. ’ ’ The court held that the interstate movement of the car had long since ended; that the duty of Harrington was solely in connection with the removal of coal from the storage tracks to the coal shed, and that the coal might thereafter be used by locomotives in interstate hauls was no reason for invoking the Federal Act.

In Lehigh Valley R. Co. v. Barlow, 244 U. S. 183, plaintiff, a member of defendant’s switching crew, was injured while assisting in placing three cars, containing supply coal for defendant, on an unloading trestle within defendant’s yards at Cortland, New York. The cars had been received by defendant from Sayre, Pa. One of them was received July 3rd, the other two July 10th. These cars remained upon the siding-s and switches until removed to the trestle on July 27th. The court held that the interstate movement ended before the cars left the sidings and reversed a judgment for plaintiff on the authority of Chicago, B. & Q. R. Co. v. Harrington. Defendant relies upon these cases, but in neither of them was the question of delivery to a consignee involved.

Wetterer v. Atchison, T. & S. F. Ry. Co., 277 Ill. App. 275, in which certiorari was denied first by the Supreme Court of Illinois and afterward by the Supreme Court of the United States, 79 L. Ed. 1698, and Pipal v. Grand Trunk Western Ry. Co., 341 Ill. 320, while not decisive are much in point. In the Wetterer case the court, after reviewing the authorities, said:

“Under all the controlling United States authorities, and doubtless all others so far as now known, unless the shipment in the car or cars has been received by the consignee and stored without unloading, so as to cause the interstate transportation to be then at an end, the interstate transportation is not terminated until the shipment has been delivered to, or received by, the consigneee and unloaded. 2 Roberts on Federal Liability of Carriers, p. 1435, secs. 747, 755; Moran v. Central R. Co., 88 N. J. Law 730, 96 A. 1023 (affirmed by U. S. Sup. Court Mem. Opinion, 245 U. S. 629, 38 S. Ct. 62, 62 L. Ed. 519); Kepner v. Cleveland, etc. Ry. Co., 322 Mo. 299, 15 S. W. (2d) 825, 65 A. L. R. 599. . . . The rule as to when the interstate transportation ends applies where carrier and consignee are the same. This makes no difference. Swain v. Terminal R. R. Ass’n, 220 Mo. App. 1088, 291 S. W. 166; Cruse v. Chicago, etc., R. Co., 133 Kan. 340, 299 P. 624; U. S. v. Benson, 234 U. S. 548, 34 S. Ct. 956, 58 L. Ed. 1459; Public Utilities Comm. v. Landon, 249 U. S. 236, 245, 39 S. Ct. 268, 63 L. Ed. 577.”

The cases, while distinguishable, are in harmony in holding that a carrier may be held liable by third parties injured through furnishing a defective car, whether the third persons are employees of consignor or consignee. It would seem that when a car is designated by the carrier in control of it for use in interstate transportation, it is impressed with an interstate status. The question here is, When does that interstate status terminate? Manifestly, as it seems to us, when the interstate use to which the car has been assigned ceases. The use to which this particular car was devoted was that of providing a safe container in which the merchandise with which it was loaded might be safely held until transportation was completed. That particular duty was not entirely dependent upon the movement of the car. The negligence of which defendant was found guilty was not negligence with respect to the movement of the car. It was negligence with reference to the provision of a proper container for the merchandise, in which it might be safely carried and from which it might be safely unloaded. So far as the interstate movement of the car was concerned, it might be said to have terminated when it was safely placed at rest on the private track of the consignee, but that did not fulfill the entire interstate duty which defendant assumed. There was one more function necessary to be fulfilled, namely, that of affording to the consignee a safe place in which it might receive the merchandise and remove the same to its warehouse. Until this function was completely filled the interstate status of the shipment did not cease. It was as much the duty of the carrier to provide a safe freight; car from which the merchandise might be unloaded in Illinois as it was its duty to provide a safe freight car for the loading of the car by the shipper’s employees in Indiana. The interstate status there impressed was not removed and did not cease until the interstate function was fully performed. This could not be until the consignee had removed the last piece of merchandise from the car. We therefore hold that defendant was engaged in interstate transportation at the time plaintiff received his injury. If it can be said that there was an issue of fact with respect to that question, it is settled by the verdict of the jury. The negligence of defendant did not terminate at East Chicago, Indiana, when it turned the car over to its ag*ent, the connecting* carrier. Denver Union Terminal Ry. Co. v. Industrial Commission, 97 Colo. 129, 47 P. (2d) 392; United States v. Brooklyn Eastern Dist. Terminal, 249 U. S. 296, 63 L. Ed. 613.

The judgment is affirmed.

Affirmed.

O’Cohhor, J., concurs.

McStjrely, J.,

specially concurring: In my opinion where, as here, there is no dispute on the facts, the character of the transportation, whether inter or intrastate, is a question of law to be decided by the court.


author: Mr. Justice O’Connor

text:
    Mabel Wagner, Appellee, v. Chicago Motor Coach Company, Appellant.
    Gen. No. 39,282.
    Opinion filed February 1, 1937.
    Ryan, Condon & Livingston, of Chicago, for appellant; John M. Tuohy, of Chicago, of counsel.
    William C. Napier, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Mabel Wagner, who will hereinafter be referred to as plaintiff, brought an action against the Chicago Motor Coach Company and the Street Railway Company to recover damages for personal injuries. The Street Car Company was directed out of the case and there was a verdict and judgment in favor of the Motor Coach Company, which will hereinafter be referred to as the defendant. Afterward plaintiff’s motion for a new trial was allowed and defendant filed a petition in this court for leave to appeal, which we granted. The case has been submitted on the record, abstracts, petition and answer.

The record discloses that on the evening of October 30,1934, plaintiff was riding as a passenger on a street car when there was a collision between the street car and a motor coach operated by defendant at the intersection of Cottage Grove avenue and 63rd street, Chicago, as a result of which plaintiff claimed she was injured. Defendant does not dispute the fact that the accident was due to the negligence of its employee, the driver of the coach, but it contends that whether the driver was acting within the scope of his employment at the time of the collision, which occurred about one and one-half miles from its designated route, was a question for the jury, and the jury having found in favor of defendant, the trial judge abused his discretion in granting a new trial.

The evidence shows that defendant is a common carrier operating motor coaches in Chicago; that the route over which the coach in question was being operated was from Devon avenue on the North Side to 67th street and Stony Island avenue on the South Side, over certain designated streets; that when the driver of the coach reached 67th street and Stony Island avenue he was seen to be in an intoxicated condition; that he drove the coach some distance east of the designated route and then turned back toward the west and collided with a street car at 67th street and Stony Island avenue, as a result of which the radiator of the coach was damaged and leaked; that he then drove a short distance after the collision, went into a place of business' where he purchased a telephone slug* and entered a booth to telephone; that he came out and drove the • coach to 63rd street and Cottage Grove avenue, where he collided with another street car, as a result of which plaintiff, who was a passenger on the street car, claims to have been injured. There is further evidence to the effect that defendant maintained a garage at 52nd street and Cottage Grove avenue, where its coaches were sometimes repaired, and it was the contention of plaintiff that the driver of the coach was proceeding to this garage to have the leaking radiator repaired at the time of the collision.

No reason was specified in plaintiff’s motion for a new trial, which was oral, nor does the report of the proceedings of the trial include the reason for ■ the granting of a new trial by the trial judge, as might have been done. (Rule 30, Supreme Court, Rule 1 of this court.) Had such reason or reasons been included, it might have been of great assistance to this court. But counsel for defendant in their petition for leave to appeal say: “it will not be disputed that Judge McGoorty gave no reasons for granting the motion other than to say that he did not think that substantial justice had been done in the matter.”

On the trial the defense interposed was, “First, that the driver of defendant’s motor coach, at the time and place of the accident, was not acting within the scope of his employment and was not engaged on the master’s business; and, second, that the plaintiff did not receive the alleged injuries complained of as a result of the accident.” And counsel say that on the argument for a new trial plaintiff advanced two points, — first, “that the verdict was against the manifest weight of the evidence; second, that three erroneous instructions were given by the court at the request of the defendant”; and they contend that the verdict of the jury is not against the manifest weight of the evidence but, on the contrary, that there is ample evidence to justify the jury in returning a verdict in defendant’s favor on the ground (1) that the driver of the coach was not acting within the scope of his employment; and (2) that there was ample evidence to justify the verdict on the ground that plaintiff’s injuries, for which she claimed damages, did not result from the accident.

In Village of LaGrange v. Clark, 278 Ill. App. 269, where an appeal was allowed from an order of the circuit court awarding a new trial, another division of this court quoted with approval from 4 Corpus Juris, sec. 2813, as follows (p. 285): “It is generally held that motions for a new trial are addressed to the discretion of the trial court and are not reviewable unless the record shows a dear abuse of such discretion, especially where such motions were based on questions of fact arising on the trial, or on matters which occurred in the presence of the court during the trial, . . . Appellate courts have encouraged trial courts in exercising this discretion to prevent a miscarriage of right and are reluctant to interfere unless the discretion has been exercised capriciously, arbitrarily or improvidently. Even greater latitude is allowed the trial court in granting than in refusing new trials, and the appellate court will interfere more reluctantly where the new trial is granted than where it is denied, since in such cases the rights of the parties are not finally settled as they are where the new trial is refused. . . . (Sec. 2816) : The action of the trial court in granting or denying* a motion for new trial based on the alleged insufficiency of the evidence to sustain the verdict is within the discretion of the court and is not subject to review except where there has been an abuse of discretion, and this fact dearly appears. . . . "Where a new trial is granted on the ground of insufficiency of evidence, a stronger case is required to secure a reversal than where it has been denied; and the action of the trial court in granting a new trial will not be disturbed unless the evidence palpably supports the verdict.” (See also Tone v. Halsey, Stuart & Co., 286 Ill. App. 169, and Gavin v. Keeter, 278 Ill. App. 308.)

In the Tone case, where we allowed an appeal from an order granting a new trial and affirmed such order, we said (p. 171): “No Illinois case construing this provision of the Civil Practice Act [sec. 77] is cited, but many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, will an order for a new trial be reversed. Even in such cases, decisions indicate courts are reluctant to reverse, and their power to do so is seldom exercised.” Citing cases from Kansas, California, Iowa, Oklahoma, Florida, Pennsylvania and Washington.

Upon a careful consideration of all the evidence in the record (which we do not discuss in detail here for the reason that we have reached the conclusion that the case must be again tried) we are of opinion we would not be warranted in holding’ that the trial judge, who saw and heard the witnesses, clearly abused his discretion in setting aside the verdict and awarding a new trial. Defendant had authorized and directed Allen, the driver of the coach, to drive the coach over the designated route to carry passengers for hire. The driver became intoxicated, collided with a street car at 67th street and Stony Island avenue, damaging the radiator ; a short time thereafter he again collided with another street car about a mile and a half off the route at 63rd and Cottage Grove avenue, where plaintiff claims to have been injured. There was some evidence that the driver was proceeding to one of defendant’s garages at 52nd street and Cottage Grove avenue to have the leaking radiator repaired. In Moore v. Rosenmond, 238 N. Y. 356, from which we quoted with approval in Kavale v. Morton Salt Co., 242 Ill. App. 205 (affirmed 329 Ill. 445), where plaintiff was struck and injured by defendant’s automobile, Judge Pound said (p. 358): “The controversy is whether at the time of the accident the car was in use for defendant’s benefit and on his account, or whether the defendant’s chauffeur had taken it on an expedition or frolic or, in the vulgar, a joyride, for his own pleasure or purpose.” In that case the evidence showed that the chauffeur was directed to take the master’s automobile and go on an errand. In place of doing so, he drove about the town and got drunk. The court said (p. 359): “Although Dollar [the chauffeur] was serving defendant badly, defendant was liable.” We think the case of Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, cited by defendant, in which it was held that the master was not liable for the negligent act of its agent because at the time of the accident the agent was not acting within the scope of his employment, is not in point, because in that case the agent took an automobile out on the streets of Chicago contrary to his employer’s instructions. On this question the court there said (p. 397): “From the undisputed evidence Smith [the servant] was not only without authority to take the automobile, but was absolutely prohibited to do so without obtaining special permission,” and that he received no such permission. In the case at bar the coach was driven by Allen by and with the authority of defendant coach company. There was also some evidence tending to show that plaintiff was injured as a result of the collision, although there was further evidence that some of the ailments complained of by her were in no way connected with the collision. Apparently the trial judge ordered a new trial because he was of opinion that the verdict was not justified by the evidence. In these circumstances we would not be warranted in holding that the trial judge clearly abused the discretion which the law reposed in him.

The order of the superior court of Oook county awarding a new trial is affirmed.

Order affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Presiding Justice Fulton

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, Appellee, v. Divernon State Bank of Divernon. In re Intervening Petition of L. H. Reichert, Appellant.
    Gen. No. 8,964.
    Opinion filed January 15, 1937.
    John Gr. Friedmeyer, of Springfield, for appellant.
    A. M. Fitzgerald, Harry 0. Moore, and Loren E. Sullivan, all of Spring-field, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

The issue in this case arose out of the following state of facts: L. H. Reichert, the intervening petitioner, was a depositor in the Divernon State Bank of Diver-non, Illinois, prior to September 5, 1930. On that date he drew a check for $416 upon his account in the Diver-non bank, made payable to the order of B. F. Reichert, which check B. F. Reichert indorsed and deposited in the Ridgely-Farmers State Bank of Springfield, Illinois. On September 13, 1930, L. H. Reichert drew another check in the amount of $1,250, upon the Diver-non State Bank payable to cash, which he deposited in another account maintained by him in the RidgelyFarmers State Bank of Springfield. In the course of its business the Ridgely-Farmers State Bank forwarded these two checks to its clearing bank, the Federal Reserve Bank of Chicago. At the time the two checks were drawn L. H. Reichert had a credit upon his account in the Divernon Bank of $1,842.70. This credit included a $300 check drawn by Mr. Reichert upon his account at the Ridgely-Farmers Bank, and which Mr. Reichert had deposited to his account in the Divernon bank just prior to September 16, 1930, and for which he had received a conditional credit drawn on his account at the Ridgely-Farmers State Bank. On the 17th day of September, 1930, the Divernon bank closed, and when it closed L. H. Reichert stopped payment at the Ridgely-Farmers bank of the $300 check. This check was protested and charged back to the receiver of the Divernon bank, for a total of $302.50, which included the protest fee. On September 15, 1930, the Federal Reserve Bank of Chicago had transmitted its cash letter of that date to the Divernon bank, inclosing a number of checks for collection, totaling $4,118.03, included in which were the $416 and $1,250 checks of L. H. Reichert. The cash letter contained the following verbiage: “We inclose herewith for collection and remittance at par in Chicago Exchange items listed below.” This letter was received by the Divernon bank on September 16th, and the account of L. H. Reichert was charged in the amount of $1,666. In order to pay these two checks, and others included in the cash letter, the Divernon bank drew a draft on the First Rational Bank of Chicago in the total of $4,118.03, and transmitted the same by mail to the Federal Reserve Bank of Chicago. At the time this draft was drawn the Divernon bank had a credit on the books of The First Rational Bank of Chicago in the amount of $6,000. The Federal Reserve Bank of Chicago then presented the draft to The First Rational Bank of Chicago but the latter refused payment because of the closing of the Divernon Bank on September 17, 1930. All of the checks covered by the draft were then charged back to the respective accounts of the depositors in the Divernon State Bank.

Soon after this transaction a bill was filed in the circuit court of Sangamon county, by Oscar Relson, auditor of public accounts of the State of Illinois, to appoint a' receiver for the Divernon bank. L. H. Reichert filed his intervening petition on January 5, 1931, praying for a preference in the amount of $1,666. The records of the Divernon State Bank then showed by reason of charging his account with the checks for $416, $1,250, and $300, that L. II. Reichert owed the bank the sum of $125.86. Subsequently the receiver of the Divernon bank filed with the circuit court of Sangamon county a list of unfiled claims which included that of L. H. Reichert, in the amount of $1,540.14, which was the amount of the two checks he had drawn upon the bank in the amount of $416 and $1,250, less the offset of $125.86 which the records of the bank showed that he owed. This net claim was allowed as a general claim. Subsequent to this time the intervening petitioner received and accepted in the process of the liquidation of the Divernon bank, dividends totaling $385.03, and it was stipulated between the parties to this suit that L. H. Reichert’s preference, if granted, should be in the amount of $1,155.11. On June 10, 1934, the circuit court of Sangamon county entered a decree denying the prayer of L. H. Reichert’s petition for a preference and it is from this decree that this appeal is taken.

It is insisted by the intervening petitioner that the trial court committed error in finding that the relation of debtor and creditor existed between the intervening petitioner and the Divernon State Bank. It is urged by the petitioner that when the draft, which included the intervening petitioner’s checks, was sent to the Federal Reserve Bank at Chicago that the Federal Reserve Bank and the Ridgely-Farmers bank then became the agents of the intervening petitioner for the purpose of collection and remittance of the checks in the amount of $1,666, and that when this draft was presented by the Federal Reserve Bank of Chicago to The First National Bank of Chicago, the $6,000 credit upon the books of The First National Bank in favor of the Divernon State Bank thereby became impressed with a trust, in favor of the intervening petitioner; and it is further urged that by the indorsement on the checks of the words “for collection and remittance” it was contemplated that a fiduciary relationship was thereby created, and that this is the normal way in which to retain control of negotiable instruments in the hands of agents.

Ill. State Bar Stats. 1935, ch. 98, § 184 (if 206); Jones Ill. Stats. Ann. 89.206, provides as follows: “A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act are applicable to a bill of exchange payable on demand apply to a check.” And by the terms of par. 210, same chapter, it is provided: “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts and certifies the check. ’ ’ There is ample authority that when one accepts a check or hill of exchange he becomes a creditor, and the person or bank upon whom the check or bill of exchange is drawn becomes a debtor, and the relationship of debtor and creditor is established.

The only question presented in this case is a legal one and that is whether or not the appellant, L. H. Reichert, was a creditor of the back or whether there had been such a change in their relationship that the funds of the Divernon State Bank in the hands of the Receiver are impressed with a trust in his favor. In the very recent case of People v. Union Bank & Trust Co., 362 Ill. 164, in an opinion released after this appeal was prosecuted, the court definitely held that a draft drawn by a State Bank upon its correspondent bank in the clearing of balances and check items did not create or constitute a preferred claim upon the assets of the insolvent bank where it closed prior to the payment of the draft. On page 166 the court said:

“The appellant, Arthur E. Crum, as receiver of the First National Bank of Freeport, (hereafter called the National Bank,) filed a petition in the trial court, asking that he be allowed a preferred claim against the assets of the Union Bank and Trust Company, (hereafter called the State Bank,) an insolvent Illinois banking corporation. His claim was based upon a draft for $6,890.75 drawn by the State Bank upon the Continental Illinois Bank and Trust Company of Chicago in favor of the National Bank. The draft was issued for the balance due the National Bank for clearings between it and the State Bank as of March 2,1933. The receiver of the State Bank filed his motion to strike the petition for a preferred claim on the ground that section 13 above referred to was unconstitutional. The preference was denied, the claim was allowed as a common claim, and the court found the section invalid because it is in conflict "with the pro rata digtribution provision requirement enacted by Congress and with the decisions of the United States Supreme Court, since the section attempts to control the distribution of the assets of insolvent National Banks.”

In this case the claim for preference was made by a depositor and not by a third party. It is difficult to see how a depositor could be a creditor of the bank and also have a preference upon its assets. In the case of People v. Peoples Bank & Trust Co. of Rockford, 353 Ill. 479, relied upon by appellant, the depositor had given his check upon his deposit to a third party, who presented the same to his local bank for collection and this bank mailed the check directly to the drawee bank with instructions to remit. Instead of remitting money, the drawee bank sent a draft on another bank to the local bank but the drawee bank failed before the local bank was able to collect on the draft.

The court held that the funds were thereby assigned to the third party and that the bank was the agent to collect for the payee and the check and the funds were impressed with a trust in favor of the third party. The draft in this case was simply an order on the First National Bank to pay the same and charge the amount against the funds of the Divernon State Bank. The transaction did not in any manner enhance or augment the assets of the bank. The bank made a bookkeeping entry charging the items to L. H. Beichert at the time it drew the draft and the relation of debtor and creditor as between Beichert and the bank still remained. The case of People ex rel. Nelson v. Builders & Merchants Bank & Trust Co., 264 Ill. App. 388, is authority for stating that in such a situation there was merely a change in the form of indebtedness from that of a check to a draft upon the correspondent bank.

Based upon the reasoning of the authorities above cited the decree of the circuit court of Sangamon county is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Pulton

text:
    The North American Provision Company, Appellant, v. S. J. Kinman, Appellee.
    Gen. No. 8,996.
    Opinion filed January 15, 1937.
    Max W. Kramer, of St. Louis, and Robert J. Harding, for appellant.
    O. O. Worthy, of Hardin, for appellee.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.

The appellant instituted a suit before a justice of the peace against the appellee on an account claimed to be due. The hearing was had in the justice court and the appellant recovered a judgment against the appellee in the sum of $105 and costs of suit. An appeal was prayed and perfected from the judgment rendered by the justice to the circuit court of Calhoun county, Illinois.

On Tuesday, the second day of April, 1935, the case was called for trial in the circuit court, and the appellant, The North American Provision Company, a corporation, did not appear, either in person or by attorney. The appellee waived a jury and the cause was submitted to the court for trial without the intervention of a jury and without a jury trial having been waived by the appellant. After hearing the testimony of the appellee, the court found the issues for the appellee and assessed his damages at the sum of $268.27 and costs of suit upon which finding judgment was entered in favor of the appellee and against the appellant for said sum of $268.27 and costs of suit. To reverse this judgment of the circuit court the appellant has prosecuted this appeal.

It is the contention of the appellant that the court erred in not calling a jury to try the issues joined, and also in hearing evidence and rendering judgment thereon without the intervention of a jury in the absence of the appellant or his attorney and without the appellant having waived its right to a jury trial. The appellee urges that even though appellant was entitled to a trial by jury, its conduct in neglecting to appear and assert its rights constituted a waiver and that it cannot now be heard to complain for the first time that it has been deprived of this right. In support of this contention appellee quotes the statute from the law in relation to justices of the peace and constables, Ill. State Bar Stats. 1935, ch. 79, If 49; Jones Ill. Stats. Ann. 71.036 (ch. 79, Smith-Hurd B. S. If 49), providing that in all cases of trial before a justice of the peace, either party may have the cause tried by a jury, “if he shall so demand before the trial is entered upon, etc.” Appellee also insists that the case of Heacock v. Hosmer, 109 Ill. 245, is authority for his position in this case. That case was brought in the superior court of Cook county under the Burnt Records Act to restore the title of a tract of land in Cook county. The only two questions raised in that case were whether or not the court erred in overruling an application for a change of venue and whether or not the allegations of the petition were sufficient to sustain the decree. The court denied" the application for change of venue and held the petition sufficient under the Burnt Records Act. That was a case which called upon the court for the exercise of equitable powers and the right to a trial by jury was not necessary to a decision of the case. However, in passing upon the issues the court said that even though, the appellant was entitled, under the Constitution, to a trial by jury notwithstanding the statute, she was in no position to complain because it was her duty to demand a jury and had the court refused her that right then she would be in a position to complain, and further held that as no jury was demanded the right of trial by jury was waived.

However, it has long been held, in both the Appellate and Supreme Courts of this State, that the right of trial by jury in cases at law is a constitutional right, and in any case where there are issues of fact to be determined a jury must be called to assess the damages unless it is expressly waived. In this case the appellant was entitled to a trial de novo in the circuit court and in contemplation of law all pleadings necessary to present every issue and defense of both parties were before the court. In the case of Archer v. Spillman, 2 Ill. 553, the court said, “The parties might, under the Statute, have authorized the Court to try the issue; but had they done so, it ought to have appeared on the record. For this irregularity in the proceedings, the judgment is reversed with costs.” In Klein v. Wells, 82 Ill. 201, the court held that where there is an issue of fact pending in a case the court has no authority to try the issues and assess damages unless a jury has been waived. In Seron v. Carlson, 280 Ill. App. 396, it was held that the Practice Act of 1933 does not apply to appeals from a justice of the peace and this case having been tried on April 2, 1935, rule 24% of the Supreme Court of Illinois, adopted on June 18, 1935, could not apply to the facts in this appeal.

In repeated decisions of our Appellate Courts it has been decided that in an appeal of a civil action from a justice of the peace to the circuit court, each party litigant is entitled to a trial by jury and cannot be deprived of his right to such trial by any act of the adverse party or of the presiding judge without an actual waiver of trial by jury. The absence of a party litigant from the trial does not waive his right and a denial thereof is reversible error. Davies v. Apperson, 146 Ill. App. 348; Tongeln v. Knoll, 227 Ill. App. 317; Industrial Loan Co. v. Kezirian, 259 Ill. App. 47, and this rule is expressly approved in the late case of Seron v. Carlson, supra.

When this case was called for trial and no one appeared for or in behalf of appellant, the appellee might have proceeded with the trial of the case before the court and a jury but the only way that appellant could be deprived of a right to a trial by jury was by expressly waiving the same. The record in this case shows no waiver of a jury by the appellant and there was no warrant in law for a motion of appellee’s attorney to submit the cause for trial without a jury or for an order of the court to that effect. The action of the court in proceeding to trial and assessing the damages of appellee, without the intervention of a jury, was substantial error requiring a reversal of the judgment. Barnett v. Craig, 38 Ill. App. 96.

For the reasons indicated the judgment is reversed and the cause is remanded to the circuit court of Calhoun county for retrial.

Reversed and remanded.