author: Reeves, P. J.

text:
    The Consolidated Coal Company of St. Louis v. George Wombacher.

      Master and Servant—Personal Injury—Fellow Servant—Inexperienced Employe— Vartan ce—Min es.

    In an action to recover from a coal company damages for a personal injury alleged to have arisen through its negligence in placing an inexperienced servant in a dangerous situation without cautioning him thereof, this court holds that the night boss, under whose direction the plaintiff undertook the work which led to the injury, was not his fellow servant, lut a vice-principal of the master, who should have warned said employe of the danger and how to avoid it; and that there is no material variance between the allegations of the declaration and the proof.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    Messrs. Turner & Holder, for appellee.
   Reeves, P. J.

This suit was brought by appellee to recover for a personal injury sustained by him while working in one of the mines operated by appellant. This mine was what is known among coal operators as a machine mine. In such mines there is a division of labor; certain employes mine or cut the coal with a machine used for that purpose,, others b'ast the coal or shoot it down, others load the coal into boxes, and still others haul the loaded boxes to the pit bottom to be hoisted, while yet others lay track and set props when required. The coal loaders were divided into two c'asses; one loaded only in the entries, where, it would seem from the evidence, the roof was made secure, and the other class of loaders worked in the rooms. The entry loaders were required to clean up all the refuse as well as load the coal. The room loaders only loaded the mined coal. The entry loaders received 23| cents per box for the coal loaded, and nothing for removing the refuse. The room loaders received thirteen cents per box. Over all these several classes of employes' there was a foreman, called the “ pit boss.” The mine was worked day and night. During the day the pit boss was personally in charge, and at night there was a night foreman who acted under the pit boss, and stood in his absence as his representative, so far as the men engaged in mining and loading the coal were concerned.

Appellee was not a coal miner, and, so far as the evidence disclosed, had no experience as a coal miner. He came from a farm, and had been at work for appellant only for a few mon'hs—all the time, up to the night of his injury, loading the m ned coal in the entries. On the night appellee was injured he was without work in the entry where he had been employed. The mining machine had not on that night got around to the entry where appellee had been at work, and appellee was waiting for the machine and other men to make the coal in his entry ready for loading. The night foreman came to him, and, finding that he had nothing to do, told him to come with him to a certain room where there was some coal to be loaded. Appellee went with him to the room and began loading. He worked three hours, when, as he expresses it, the top fell down on him, and he laid there covered with rock and slate until he was taken out. His injuries were very severe, resulting in the paralyzation of his lower extremities. In the court below appellee recovered a judgment for $2,500, from which the appeal is taken.

Under the evidence, several points are made by appellant against appellee’s right of recovery. It is insisted there was no such direction by the night foreman, conceding that appellant would be bound by the direction of the night foreman, as would make appellant responsible for the injury; that at most, appellee received only a permission from the night foreman to go into the room and work. The foreman says, when appellee claimed that he had nothing to do, “ I said to him,

‘ There is a room in here I will let you go in; there may be a couple of boxes of coal in there. I have got a man in there c’eaning up the dirt. You can go in and help load the coal.’ ” Appellee says: “Thenight boss came along (where he was sitting waiting for the machinete mine the coal in the en try), and said to me, ‘ You have nothing to do ? ’ I said ‘ Ho,’ and he then said,‘Come along with me into this room, there is a load of coal here.’” So far as the legal responsibility of appellant is involved, it is not apparent that it would make an)r difference which account of the matter is accepted. The jury may have accepted the version given by appellee, and if so, there was a direction by the night foreman to appellee to go into the room and load the coal.

It is further insisted that the night foreman was not the representative of appellant, and did not stand toward appellee in the place of the master, clothed with such authority as made him the superior of appellee, but their relationship was that of fellow servants; so if, by the careless act of the night foreman, appellee was injured, he can not recover against the common master.

Ritzheimer, the night foreman, testified : “I had charge of the mine at night and got my orders from the pit boss. I could stop a man or put him to work. I could tell a man to do this or quit. I had authority when I was in charge at night. I had no authority to hire men. I had entire charge and control of the mine at night.”

Mr. Harding, the mine superintendent, states that “Ritchey was the pit boss on duty in the day time, and at night a man was left in charge to carry out Mr. Ritchey’s directions, and that of necessity this man had authority to direct the men in the mine, under the general directions of Ritchey.” Mr. Ritchey says: “ Ritzheimer worked under directions as night boss, and his duty was to see that the men done the work I gave them.”

It appears from this evidence that the men working in the. mine at night were under the direction and subject to the orders of Ritzheimer. When such an authority is given to one of several servants of a common master, the servant having such authority stands as to the others in the place of the master. In Thompson, Adm’r, v. C., M. & St. P. R. R. Co., 14 Fed. Rep 564, this language is used:

“ In the absence of statute, the general rule is that the negligence of a fellow servant is one of the risks assumed by the employe and for which the employer is not liable. But this general rule has its exceptions, one of which is that where the employer places one employe under the control and direction of another, and the latter, in the exercise of this authority so conferred, orders the former into a place of unusual danger and thus exposes him to extraordinary perils, of the existence and extent of which he is not advised, the master is liable. This for the reason that in giving such an order the superior servant stands in the place of the employer. If the employer or his authorized agent leads the employe to expose himself to a danger not ordinarily incident to his employment, which is known to the former and unknown to the latter, whereby the latter is injured, an action may be maintained to recover damages for such injury. If the danger is apparent and is as well known to the employe as to the employer, the former takes the risk of it; but if the employer knew, or by the exercise of ordinary care might have known, that the employment was hazardous to a degree beyond that which it fairly imports, he is bound to inform the latter of that fact or put him in possession of such information.” See also C. & A. R. R. Co. v. May, Adm’x, 108 Ill. 288, and cases cited.

It must be remembered that appellee was not a practical miner. So far as shown, he had never done any work in a mine except that of loading coal in the entries. Had he been a practical miner, it would have been his duty, when he went into the room to work, to have examined the condition of the roof, and having found it as it is shown by the evidence, to have removed that which was loose and liable to fall. But it does not appear that appellee knew what was necessary, or had any information as to his duty in this particular. He was taken into a place of unusual danger, compared with the place where he had been at work, and tbe representative of the employer should have known, if he did not know, of that clanger, and should have informed appellee of the danger and how to avoid it. He wholly failed in his duty in this particular, and the employer should be held responsible for the consequences of such failure.

It is also urged that there is a fatal variance between the allegations of the declaration and the proofs made. The declaration alleges that at the place where appellee was injured there was overhanging him, while at labor, a large quantity of rock which was not propped up, and that the pit boss examined the rock, and after such examination directed appellee to continue his work thereunder, and represented to appellee that the labor so being performed by him was without danger, etc., when in fact the pit boss knew that it was dangerous to work under said rock, etc. The proof, it is claimed, failed to show that there was any overhanging rock; failed to show an examination of the place by the night boss, and that he had actual knowledge of the condition of the room where he sent appellee to work, and that the substance that fell and injured appellee was rock. The material averments of the declaration on this branch of the case were, that Ritzheimer was the superior of appellee, with authority to direct him in his work; that he did place him at work in a known dangerous place without giving him information of the danger, and that in consequence, and without the fault of appellee, he was injured by the falling of rock upon him. Hot literally, but substantially, all these averments find support in the evidence. True, Ritzheimer is not shown to have had actual knowledge, either from examination or otherwise, of the danger of .the place where he placed appellee to work, but enough is shown to say that he ought to have known of such danger, and that before placing a common laborer in such a place it was his duty to know whether it was dangerous or not; to have made the examination that would have disclosed to him the danger. An allegation of knowledge o^ danger in such a connection would be met by proving that had the representative of’ the master used the care which the law required of him, he would have known it. There is a dispute in the testimony as to what the substance was. that fell and injured appellee. He says it was rock and slate. Eitchey says, in answer to the question—What was the substance that fell on Wombacher? “ Slate; there was no rock about it; it was more like ñre clay.” Tragesser, who worked in the same room with appellee, speaks of the substance which fell, as clod.

Mr. Harding, in speaking of the nature of clod, says, “It is a substance that has no stratification.” From this testimony the jury might well have found that what fell on appellee was slate, and slate would come within the general term rock, which was the term used in the declaration.

We fail to find in this record any error that requires a reversal of the judgment of the Circuit Court, and the same is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Price v. James M. Hay et al.

      Attorney and Client—Agency—Implied Contract—Recovery of Fees—■ Evidence—Instructions1—Rules of Court.

    1. In an action brought by an attorney to recover a sum claimed to be due for legal services, it is held: That the finding of the jury as to the employment was justified by the evidence; that an instruction touching the question of implied contract was properly refused; and that the verdict as to amount is justified by the evidence.
    2. Testimony as to the value of legal services must.be based upon the judgment of witnesses.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of St. Clair County; the. Hon. B. H. Canby, Judge, presiding.
    Messrs. Koerner & Horner, for appellant.

      Mr. F. A. McConaughy, for appellee.
   Reeves, P. J.

Three reasons are urged for the reversal of the judgment in the case.

The first is, that the evidence fails to show any employment by appellant of appellees, in the litigation for legal services in which this suit was brought. The testimony on this point was conflicting, but we hold that there was evidence upon which the jury might find that there was such employment, and we see no sufficient reason for disturbing their finding upon this point.

The second point is, that the verdict is more than the evidence warranted. Testimony as to the value of legal services in any case is based upon the judgment of witnesses. Witnesses of .equal standing in the profession will differ about the value of legal services. This difference is apparent in the testimony in this case, but there is testimony sufficient to sustain the verdict for the amount found, $5,000.

The third ground for reversal is the refusal to give the following instruction:

“If the jury believe from the evidence that Mary Price, the defendant, by herself or authorized agent, did not make any express contract with the plaintiffs for employment in the case of Mary Price v. American Bible Society and others, and if they further believe from the evidence that Mary Price had reason to believe that plaintiffs were employed by Spencer M. Kase to assist him in the. said case under the contract made by Mary Price with said Spencer M. Kase, by which he was authorized to employ counsel to assist him, her acquiescence when she saw that plaintiffs were taking part in the trial of the case is not a circumstance from which the jury has a right to infer that an implied contract existed by which the plaintiffs were entitled to charge her with any fee, and the jury will find for defendant.”

It is said that this instruction was not presented to the court within the time prescribed by the rules of the St. Clair Circuit Court. This would have been a sufficient warrant for the Circuit Court to have refused to consider and pass upon the instruction, but, notwithstanding the rule, the court received and considered the instruction and marked it refused. Without considering the question whether this court should dispose of the instruction as the Circuit Court might have done under its rules, we proceed to the consideration of the instruction upon its merits. The instruction is faulty in this, that it precludes the jury from finding that there was an implied contract to pay appellees for their services, arising from appellant’s knowledge and acquiescence that appellees were actively engaged on her side of the litigation of Price v. American Bible Society, by the fact that appellant had reason to believe that they had been employed by Kase under his contract with appellant. It does not even go so far as to require that she did believe that such was the relationship of appellees in the litigation, in order that there should be no inference by the jury of an implied contract, arising from her knowledge and acquiescence that they were engaged in the trial of the case upon her side. But even with this emendation, we should not be prepared to hold the instruction fault-loss. At most, the contract with Kase would only be a proper subject to be considered by the jury, with all the other facts and circumstances proven in the case, in determining the question whether an implied contract (if they found there was no express contract of employment) could be inferred by the jury from all the evidence bearing upon that branch of the case. We hold the instruction was properly refused. The judgment of the Circuit Court is affirmed.

Judgment affirmed,.


text:
    Illinois Mutual Insurance Company v. Sellers Hoffman.

      Fire Insurance—Inconsistent Conditions—Construction—Indemnity.

    1. The object of the contract of insurance being indemnity, such contracts must be construed liberally to that end.

      2. Where a clause in a policy is susceptible of two construclions, that which is most favorable to the assured, as regards indemnity for loss, must be adopted. The same rule applies where two clauses"are inconsistent.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of Madison County; the Hon. B. R. Burroughs, Judge, presiding.
    Messrs. Taylor & Pollard and Dale & Bradshaw, for appellant.
    Messrs. Baker, McNulty & Baker, for appellee.
   Reeves, P. J.

Appellee was the owner of a cotton mill located at Kellyville, Pennsylvania. Through a firm of insurance brokers in Philadelphia, appellant issued to ap¡ el lee its policy on this mill for $3,000. ' The mill was burned, and this is a suit to recover that part of the loss covered by this policy. The property insured was by the policy itemized (as it consisted of several distinct buildings) and the value of each item fixed, and the total value of all aggregated $90,000. The policy contains this statement fixing the amount covered by the policy: “It is understood and agreed that the Illinois Mutual Insurance Company, of Alton, Illinois, covers, under this policy, No. 101,566, to which this specification is attached and made part thereof, one-thirtiefh part of each of the above named sums, amounting in the aggregate to three thousand dollars ($3,000).” The aggregate value of all the property, as shown by appellee’s printed schedule furnished to appellant, was $90,000. The total amount of insurance at the time of the fire was $60,000, and the total amount of the loss $51,000, as fixed by the'adjusters of appellant, and the other insurance companies interested. The question arising on the pecord is, what is the extent of appellant’s liabilities under the terms of its policy. Appellant contends that it is only liable for one-thirtieth of the loss, or $1,700, while appellee insists that it is liable for such proportion of the loss as will • fully reimburse appellee for the loss sustained, and this proportion would be $2,550. So far as shown, the whole $60,000 of insurance was under like.policies, and if the contention of appellant is accepted, appellee, instead of being reimbursed the full amount of his loss, would only receive two-thirds of his loss, or $34,000. . This much is beyond dispute, that the aggregate value of all the property insured was estimated at $90,000, and the policy issued by appellant covered onetliirtietli part of each of the items of which the aggregate value was $90,000, so that the aggregate insurance of appellant upon appellee’s property was $3,000.

The seventh stipulation, printed upon the back of the policy and made part of it, provides : “ This company shall not be liable for a greater proportion of any loss sustained by the assured upon any property described in this policy, than the sum hereby insured bears to the whole sum insured thereon, whether such other insurance be by policies, specific or otherwise, or whether prior or subsequent to this insurance, or whether such other insurance be valid or not, and without reference to the solvency of other insurance companies.’’ Following the rule laid down in this stipulation, the amount of the loss falling upon appellant would be $2,550. But it is contended that the provision in the policy by which appellant covered only one-thirtietli of the property described, made the policy one of co-insurancé, so that if the loss should be less than $90,000—the estimated value of the property— then appellant would only be liable for one-thirtieth of the loss; and as the loss was fixed at $51,000, appellant’s liability is for one-tliirtietli of that sum, or $1,700. Indemnity is the real object and purpose of all insurance; that is, what the insured bargains for and what the insurer intends to provide. Mr. Phillips says (Phillips on -Insurance, Sec. 124) : The predominant intention of the parties in a contract of insurance is indemnity, and this is to be kept in view and favored inputting a construction upon the policy.” Having indemnity for its object, the contract is to be construed liberally to that end, and it is presumably the intention of the insurer that the insured shall understand, in case of loss, he is to be protected to the full extent which any fair interpretation will give. D )w v. Hope Ins. Co., 1 Hall (Sup. Ct.) 174; Riggin v. Potopsco Ins. Co., 7 Ham. & J. (M. L.) 279.

Tiie form of this policy is not the ordinary form. The portion of the policy about which the contention arises was written by appellant. It would have been an easy matter for appellant to have written this clause so there would have been no room for doubt as to what it meant. If, instead of the words “ one-thirtieth part of each of the above named sums, amounting.in the aggregate to $3,000,” there had been inserted “one-tliirtieth part of the loss on each of the above named items of property, not exceeding in the aggregate the sum of $3,000,” the liability of appellant would have been free from all doubt. It will be found upon examination of the policy that there is no reference to other existing insurance, and the usual provision for notice of additional future insurance is omitted, and in its stead, privilege is given to make other insurance without notice until required. If it be conceded that this one-thirtieth clause of the. policy is susceptible of two interpretations, then the rule is well established that in such case that construction which is most favorable to the •insured in order to indemnify for the loss sustained shall be adopted. If the contract - is so framed as to leave room for construction, the court should lean against that construction which would impair the indemnity of the insured. Teutonia Ins. Co. v. Munnd, 102 Pa. St. 89 ; National Bank v. Ins. Co., 95 N. S. 673 ; In Comm. Ins. Co. v. Robinson, 64 Ill. 268, the court say: “Equivocal expressions in a policy of insurance whereby it is sought to narrow the range of the obligations those companies profess to assume, are to be interpreted most strongly against the company.” See also Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644; Schroeder v. Traders Ins. Co., 109 Ill. 157.

We think it must at least be conceded that the construct!on of appellant is not the only construction of the one-thirtieth clause of which it is susceptible. The first reading of the clause would seem naturally to make the impression that this clause simply distributed the $3,000 upon the several parcels of property insured in the proportion fixed by the several values attached to each, and it is only by assuming that the contract was so limited that the insurer assumed to take a fixed part of a total insurance of §90,000, the remainder to be carried either by other insurers or by the assured, that the conclusion is reached that the loss, not being equal to the full value of the- property, appellant is only liable for one-thirtieth of the loss. Again, if a policy contains two provisions on the same subject, and they are inconsistent and contradictory, that provision most favorable to the insured will be accepted and the other disregarded. N. W. Mut. Life Ins. Co. v. Haylett, 105 Ind. 212; Monlor v. American Life Ins. Co., 111 U. S. 335; National Bank v. Ins. Co., 95 U. S. 673. If appellant’s construction of the one-thirtieth clause is correct, then that provision and the one contained in the seventh stipulation, printed on the back of the policy and expressly made a part of it, are inconsistent and contradictory; and as the provision in this stipulation is more favorable to the insured, it should, under the above rule, be accepted and the former disregarded. In any view we have been able to take of the case, we hold the judgment of the Circuit Court was right, and it is affirmed.

Judgment affirmed.


author: Phillips, J.

text:
    M. M. Wheeler v. Wayne County.

      Real Property—Conveyance by County—Expenses of Litigation— Promises to Pay—Validity of—Quiet Enjoyment—Covenant.

    1. A binding promise to pay can'only be made on behalf of a county by its board of supervisors while acting in conformity with the law.
    2. Lhibility on the part of a county to pay the expenses of defending a suit brought against a grantee of lands conveyed by it, must exist, if at all, by virtue of a covenant for quiet enjoyment and can not arise in consequence of a promise subsequently made.

      [Opinion filed March 1, 1889.]
    In error to the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.
    Messrs. H. Tompkins and Rufus Cope, for plaintiff in error.
    Messrs. Creighton & Sibley, for defendant in error.
   Phillips, J.

Plaintiff in error brings his action in assumpsit against the county of Wayne, averring that the county of Wayne was the owner of certain lands in Wayne county, and conveyed those lands, by way of mortgage, to a trustee, to secure certain railroad bonds, and subsequently conveyed a part of those lands to plaintiff in error. He also avers that a bill was filed in the United States Circuit Court to foreclose such mortgage, and defendant in error made party defendant, and a decree of foreclosure entered, and sale under tliát decree; that plaintiff in error was not made party defendant. That plaintiff in error filed his bill in the Circuit Court of Wayne county to vacate and set aside the deeds of the master in chancery and the deed of trust, and in consideration of filing such bill the • defendant in error “ did agree with the plaintiff that the defendant would pay all costs, expenses and attorney’s fees occasioned by such proceeding,” and that plaintiff incurred attorney’s fees and costs and expenses to the amount of §1,000.

The second count avers that after the execution of the deeds and mortgage in first count mentioned, a suit in chancery was begun in the Circuit Court of the United States for the Southern District of Illinois, wherein J. C. Cloyd et al. were complainants, and plaintiff et al. were defendants, to re-foreclose said mortgage; that defendant requested the plaintiff to make defense to said suit and promised said plaintiff to pay to him all costs, expenses and attorney’s fees which he should reasonably incur in such defense; that defendant did make a part payment; that the plaintiff, relying on said promise, employed an attorney and incurred liability for costs, expenses and attorney’s fees to the amount of $1,000. And the defendant being so liable, after an accounting between the parties, there was found due the plaintiff the sum of $1,000, which defendant did promise to pay the plaintiff. A demurrer to the declaration was sustained and plaintiff sues out this writ of error.

The question of the liability of the county of Wayne on the covenants of its deed to plaintiff is not presented by this declaration, as the action is not brought on the covenants of the deed; but recovery is sought on an alleged promise of the county of Wayne to pay costs, expenses and attorney’s fees incurred by plaintiff, in consideration that plaintiff should institute a certain action to set aside a master’s deed and a deed of trust made by defendant in error, and in consideration that he would defend a certain suit in which plaintiff was madé defendant. ■ The county can only act through its board of supervisors, and only by the record made by the board can a promise be made by the county, and no such promise can be made whereon a recovery can be had, except in so far as the county board can act in pursuance of duties prescribed by law. In the absence of a covenant for quiet enjoyment, no liability could lawfully exist, even if a promise were made to pay the expense of defending a suit brought against a grantee in a deed by the county, and in such case the liability must exist by virtue of the covenant only, and not in consequence of a promise subsequently made and based on no valuable consideration, so far as this declaration shows.

There is no averment showing that the defendant is not in possession of the lands, and it does not appear that there is a covenant against incumbrance. Even if such covenant were shown, the action would have to be on the covenant. To hold an action might be maintained on a promise in consequence of the covenant having been made, would open the door to creating a liability against the county greater than could be had by virtue of the covenant. There is no such promise averred in this declaration as a county would be authorized to make. There was no error in sustaining the demurrer to the declaration, and the judgment is affirmed.

Judgment affirmed.


text:
    Nicholas Klein et al. v. The People ex rel., etc.

      Mandamus—Defective Highways—Failure of Commissioners to Repair •—Discretion.

    1. Mandamus is the proper remedy to compel commissioners of highways to make repairs when there is entire neglect on their part in this regard.
    2. Such officers have a certain discretion, and can not be ordered to improve and repair in any particular manner.
    3. In the absence of a finding by the court that there is money in their hands that can be expended for the purpose in question, commissioners can not be ordered to make such expenditure.
    4. An order may be made that money be expended when collected.
    [Opinion filed April 4, 1889.]
    Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder,. Judge, presiding.
    Messrs. Dale & Bradshaw and Burroughs & Warnock, for appellants.
    Our statute (Vol. 2 Starr & C., Sec. 2, p. 2136,) provides that “ the commissioners of highways shall have charge of the roads and bridges of their respective towns, and it shall be their duty to keep the same in repair, and to improve them so far as practicable ;” and by Sec. 5 they are “ to exercise such care and supervision over them as the public good may require,” which doubtless implies the duty, say the court in 19 Ill. App. 255, “ subject to the same limitations of putting them in suitable condition for public use and travel when they get out of repair. But this . is general, and its performance as to time, manner and extent of repair, is necessarily in some measure conditional and discretionary. ■ In these broad terms, therefore, it is not the subject of mandamus.” County of St. Clair v. People, 85 El. 400-1.

      It is the established law that “ where county commissioners are intrusted by law with the power of locating roads and highways, the question of what the public com'enience requires in such location is regarded as peculiarly within the province of the commissioners, and their decision upon this point will not be revised by the county, nor will mandamus lie to compel them to" locate a road when they have already decided that the public convenience does not require its location.” High’s Ex. Legal Remedies, 2d Ed. 333, and authorities there cited.
    There is no rule of law better settled than that where the performance of a duty "by a public officer depends upon the exercise of his judgment as to its necessity"or propriety, the court will not interfere, but leave him free to exercise his judgment or discretion as he may think proper.
    Before the court will order the writ of mandamus to issue, it must appear that the writ, if issued, would be effectual as a remedy if enforced, and it must be in the power of the party to do the act sought to be done. The People ex rel. v. Lieb, 85 Ill. 484; The People v. Dubois, 33 Ill. 9; The People v. A. & A. R. R. Co., 55 Ill. 95; Menard v. Hood, 68 Ill. 121.
    Messrs. T. E. Fruitt and E. C. & W. F. Springer, for appellee.
    Appellants present no authorities to show that the writ was ever refused where only the question of ordinary repairs of a road;was presented, and we venture the assertion that none can be found. Both the pleading and evidence in this case show that an entirely different state of facts are here presented from those in the case of Highway Commissioners of Bloomington v. The People, 19 Ill. App. 255, where it was sought to compel the building of two bridges.
    The case afterward went to the Supreme Court, and is reported in 118 Ill. p. 239. The Supreme Court in deciding .the case says:
    “ It is clear, from the pleadings and evidence, that the repairs for which appellant prays in his petition are not the ordinary repairs contemplated by Sec. 2, Chap. 121, of the Revised Statutes. The petition is really to compel the commissioners to build two new bridges.”
    One of the reasons given by the court for refusing the writ in that case was because the money on hand was “ needed for the ordinary repairs of roads and bridges.” See People ex rel. Brokaw v. Commissioners of Highway, 118 Ill. 239.
    The authorities on this question are to the effect that the duty of commissioners to make repairs is imperative, and they can be compelled to act, and that the discretionary powers they possess must be exercised for the public benefit; that the' abuse of the discretion can be controlled by mandamus.

    High’s Extraordinary Legal Remedies, Sec. 413, says:
    “ The duties of municipal corporations in maintaining and keeping highways and streets in repair afford frequent occasion of invoking the extraordinary remedies of courts, and jurisdiction by mandamus is clearly established.” See also, City of Ottawa v. The People, 48 Ill. 233; People ex rel. v. Mayor of Bloomington, 63 Ill. 207; Village of Glencoe v. The People, 78 Ill. 382; Haines v. The People, 19 Ill. App. 354.
    In the case of The People ex rel. Shepperd v. Illinois State Board, etc., 110 Ill. 180, it is held that mandamus will lie to compel subordinate tribunals with discretionary powers to act where it is not sought to require them to act in any particular manner.
   Phillips, J.

A petition for mandamus was filed in • the Circuit Court of Madison County, Illinois, to which a demurrer being overruled, pleas were filed denying the material averments of the petition, when, issue being joined, a trial was had and a judgment entered against the defendants in the Circuit Court. That judgment we are asked by this appeal to review.

While several errors are assigned, we deem it necessary to consider only the fourth assignment of error, which is, that the judgment of the court was contrary to the law and the evidence in the case.

The court ordered the commissioners of highways of town 4, north of range 7, west of the 3d principal meridian, to work upon, and repair that part of the road mentipned and describee in the petition, by removing the weeds and underbrush and repairing the.culverts, and that they should proceed withou; unnecessary delay to put said highway in a condition fit to be used as a highway, and to remove all obstructions and impediments to travel.

Where there is entire neglect to work the roads, and the same are out of repair, it has been held that a proceeding by mandamus is the proper remedy to compel the commissioners of highways to do their duty. But there is a certain judgment and discretion left to the commissioners of highways in the discharge of their duty under the law, and where they have the right to exercise such judgment and discretion they can not be commanded, in this character of proceeding, to perform a duty in a manner specific, as in the judgment before us, but can only be commanded generally to do their duty.

Therefore, to decree that the repairs should be made in a specific manner, and that the work done should be of a particular character, was error.

Again, there is in this judgment no finding by the court, nor is there in the petition any allegation that the defendants, the commissioners of highways, had in their possession any money that could be used, for the purpose of putting the road in repair.

The commissioners of highways must either have money on hand, or money that can be controlled by them, before , they can be ordered to expend money. Before a proceeding of this character can be had for the expenditure of money by a municipal corporation, there must be a finding by the court that there is money in the hands of the corporation, that can be used for the purpose of making the repair or improvement, or the order must command its expenditure when collected. In the absence of such a finding by the court, it was erroneous to decree that these repairs should be made.

For these reasons the judgment is reversed and the cause remanded.

Reversed and remanded.


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    The Tudor Iron Works v. Robert Weber.

      Master and Servant—Personal Injury—Machinery and Appliances—Furnishing of, and Repairs—Vice Principal—Scope of Employment— Comparative Negligence—Contributory Negligence—Assumption of Risk— Fellow Servants—Evidence—Clothing—Damages—Instructions.

    1. An employer must provide suitable and safe machinery, reasonably adapted to perform the-work for which it was calculated, and keep the same in proper repair, and is liable for any injury arising through a failure to perform his du,ty in either respect.
    2. A servant intrusted by the master to keep and put machinery in proper condition, is not the fellow servant of one employed to use the same.
    3. The question, whether an appliance was properly made or repaired, is for the jury.
    4. It is proper to allow the plaintiff, in an action for the recovery of damages for a personal injury, to put on the clothes worn by him when the same occurred, in order to show how the accident happened.
    5. In an action of this character, it being alleged that the injury was occasioned'through the negligent repair of a coupling, this court holds that the plaintiff was justified in assuming the same to be in proper condition, and declines to interfere with a verdict in his behalf.
    [Opinion filed April 4, 1889.]
    Appeal from the Circuit Court of St. Clair County ; the Hon. William H. Snyder, Judge, presiding.
    Mr. Marshall W. Weir, for appellant.
    “ The principle deducible from the eases generally is, that if the plaintiff, by the exercise of ordinary care and prudence, could have avoided the consequences of the defendant’s negligence, and fails to do so, he can not recover. Indeed it is a fundamental principle that the plaintiff can not recover in any case for an injury occasioned by negligence merely, which would have been avoided by the exercise of ordinary care and prudence on the part of the plaintiff himself.” Abend v. T. H. & I. R. R. Co., 3 Ill. at page 210 ; Meyers v. I. & St. L. Ry. Co., 113 Ill. 386; Pennsylvania Co. v. Lynch, 90 Ill. 333; Simmons v. Chicago & Tomah R. R. Co., 110 Ill. 340, and numerous other cases that might be cited.
    In the Lynch case the court, in the opinion, quotes approvingly the principle that the mere relation of master and servant can never imply an obligation on the part of the master, to take more care of the servant than the servant may reasonably be expected to take of himself; and re-afiirms the familiar doctrine that the servant himself must use due care and caution to avoid injury. Calumet Iron & Steel Co. v. Martin, 115 Ill. 368, and authorities cited.
    A party who voluntarily exposes himself to a danger that he knows, or by reasonable attention to the means might know, assumes all the risks and is absolutely barred a recovery for any injury resulting from it, even as against one whose negligence created it. Such voluntary exposure is necessarily incompatible with the exercise of ordinary care for his own safety, which is essential to a cause of action. Chicago & Tomah R. R. Co. v. Simmons, 11 Ill. App. 147, and the numerous cases cited.
    It is a settled principle of law that an employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation, in order to save himself from responsibility from accidents resulting from its use. The machinery is not required to be the best or most improved kind, or to be absolutely safe. If it be of an ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that can be required of the employer. Camp Point Mfg. Co. v. Ballou, Adm’r, 71 Ill. 417; C. R. l. & P. R. R. Co. v. Lonergan, 118 Ill. 41, and authorities cited.
    Mr. W. S. Hay, for appellee.
    1. It is the duty of the master to provide suitable and safe machinery, reasonably well adapted to perform the work to which it is devoted, without endangering the lives or limbs of those employed to operate it. This is a continuing duty and the master is bound to use care, skill and prudence in both selecting and maintaining machinery and appliances, and for a negligent omission of this duty he is answerable' to a servant injured by the omission. Woods’ Master and Servant, 686; 2 Thomp. on Neg., 972; Whart. on Neg., Sec. 211; C. & N. W. R. R. Co. v. Swett, Adm’r, 45 Ill. 202 ; I. C. R. R. v. Phillips, 49 Ill. 237 ; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 284; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 314; T. W. & W. Ry. Co. v. Fredericks, 71 Ill. 296 ; C. & N. W. R. R. Co. v. Taylor, 69 Ill. 465; Schooner Norway v. Jensen, 52 Ill. 381; Perry v. Ricketts, 55 Ill. 235; C. & A. R. R. Co. v. Sullivan, Adm’x, 63 Ill. 295; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 322.
    2. A servant assumes the ordinary risks of the service he undertakes. The negligence of fellow servants is one of such ordinary risks, but the negligence of a servant to whom the master has intrusted the duty of keeping the machinery and appliances in a safe and suitable condition is not one of the risks assumed by the servant. Where the duty is one owing by the master, and he intrusts its performance to an agent, the agent’s negligence is that of the master. As the master is charged with the imperative duty of providing safe and suitable appliances, this#duty he must perform, and if he intrusts it to an agent, and the agent performs it in his place, the agent’s act is that of the master. Woods’ Master and Servant, Sec. 438; 2 Thomp. on Neg., 1032; Wharton on Neg., Sec. 222; C. & N. W. Ry. Co. v. Swett, Adm’r, 45 Ill. 202 ; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 322; Indianapolis R. R. Co. v. Flannigan, 77 Ill. 365; C. & A. R. R. Co. v. Sullivan, Adm’x, 63 Ill. 295; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 496; Indiana Car Co. v. Parker, 100 Ind. 181; Snow v. Housatonic R. R. ,Co., 8 Allen, 441; Shanny v. Androscoggin Mills, 66 Me. 420; Corcoran v. Holbrook, 50 N. Y. 517; Fuller v. Jewett, 80 N. Y. 46.
    3. Servants have a right to assume that the master will perform his duty in furnishing safe instruments and keeping them in repair. Kane v. Smith, 89 N. Y. 375; Muldowney v. Ill. Cent. Ry. Co., 36 Iowa, 471; Ill. Cent. Ry. Co. v. Welch, 52 Ill. 186; Perry v. Ricketts, 55 Ill. 234; Cook v. St Paul, etc., R. R. Co., 34 Minn. 45; C. & N. W. Ry. Co. v. Swett, 45 Ill. 202; U. S. Rolling Stock Co. v. Wilder, 116 Ill. 100.
    4. Where a servant placed in a position of authority over other servants, directs them to do an act not within the scope of their employment, and which exposes them to hazards and dangers not contemplated in the contract of service, the master is liable for injuries resulting to such servants therefrom. Lalor v. C., B. & Q. R. R. Co., 52 Ill. 403; Mann v. Oriental Print Wks., 11 R. I. 152; Railroad Co. v. Fort, 17 Wall. 553; Berea Stone Co. v. Krafts, 31 Ohio St. 287; Chicago Ry. Co. v. Bayfield, 37 Mich. 205; C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 116; C. & A. R. R. Co. v. May, Adm’x, 108 Ill. 300 and cases there cited; 2 Thomp. on Neg., 1028-1032.
    Inasmuch as the servant’s duty is obedience, the law indulges his confidence in the judgment and care of his master or superior, and will not ordinarily charge him with negligence for such an act of obedience. “ The servant,” says the court (Patterson v. Pittsburgh, etc., R. R. Co., 76 Pa. St. 389-396), “ does not stand on the same footing with the master. His primary duty is obedience and if, when in the discharge of that duty, he is damaged through the negligence of the master, it is but meet that he should be recompensed. 2 Thomp. on Neg., 10; Beach on Con. Neg., 373, and cases there cited.
    5. If an employe is in haste called upon to execute an order requiring prompt attention, he is not to be presumed to recollect a danger or defect so as to avoid it. It is a question for the jury whether or not the employe was negligent. Wharton on Neg., Sec. 219; Greenleaf v. Ill. Cent. R. R. Co., 29 Iowa, 47; Snow v. Housatonic Co., 8 Allen, 441; Reed v. Northfield, 13 Pick. 98; Railroad Co. v. Fort, 2 Dillon, 259.
    6. That the evidence admitted in behalf of the appellee at the trial, viz., the exhibiting of some of appellee’s clothing, was proper. See Indiana Car Co. v. Parker, 100 Ind. 199, and cases and authorities there cited; also Shanny v. Androscoggin Mills, 66 Me. 428.
    7. A judgment will not be reversed because the court below admitted improper evidence, if sufficient legal evidence appears in the record to sustain the verdict. Schulz v. Lepage, 21 Ill. 160; Teutonia Life Ins. Co. v. Beck, 74 Ill. 167; Protection Life Ins. Co. v. Foote, 79 Ill. 361; City of Elgin v. Kimball et al., 90 Ill. 356; Lowry v. Coster, 91 Ill. 182; Rockford, R. I. & St. L. R. R. Co. v. Rafferty, 73 Ill. 58; McGregor v. Filer, 69 Ill. 514; Carpenter v. Davis, 71 Ill. 395; St. L. & S. Ry. Co. v. Cloud, 6 Ill. App. 155; Viall v. Goforth, 6 Ill. App. 156.
    8. The instruction, which counsel.for appellant asserts is faulty, is entirely correct. Sackett on Instructions to Juries, 225; second instruction under “ personal injury.”
    As to the first objection made by counsel for appellant to appellee’s instruction, see Village of Sheridan v. Hibbard, 119 Ill. 310.
    • As to second objection, see Gizler v. Witzel, 82 Ill. 323; Miller v. Balthasser, 78 Ill. 302, and also see one of the cases cited by counsel for appellant to sustain his objection; E. St. L., etc., Ry. Co. v. Frazier, 19 Ill. App. 95.
    9. Although an instruction may be objectionable, a judgment will not be reversed for that cause, when, upon the whole record, it appears that the right is with the party in whose favor the instruction was given and that justice has been done. New England Fire Ins. Co. v. Wetmore et al. 32 Ill. 221; Hazen & Lundy v. Pierson & Co., 83 Ill. 241; Wiggins Ferry Co. v. Higgins, 72 Ill. 518; Andes Ins. Co. v. Fish, 71 Ill. 620; Stickle v. Otto, 86 Ill. 161 ; Cavenny v. Weiller, 90 Ill. 158; Stobie et al. v. Dills, 62 Ill. 432; Board of S. Logan Co. v. People ex rel., 17 Ill. App. 49; Stallings et al. v. Board T., 6 Ill. App. 165 ; Taylor v. O. & O. River R.R. Co., 10 Ill. App. 311; Burling, Adm’x, v. I. Cent. R. R. Co., 85 Ill. 18; Parker v. Fisher & Co., 39 Ill. 164; Miller v. Balthasser, 78 Ill. 302.
   Phillips, J.

Appellee brought suit against appellant to recover for personal injuries received on the 8th day of December, 1886. The declaration contains four counts. The first count alleges that plaintiff was working as a laborer in defendant’s mill; that a certain coupling in the mill was so negligently repaired that it was left in an unsafe and dangerous condition; • that plaintiff not knowing that fact, being ordered by the foreman, who gave no warning of danger, to oil certain journals, and whilst doing so was caught by the bolts of the coupling and injured.

The other three counts are similar, and aver plaintiff was employed to do yard work or as laborer, and being inexperienced in oiling machinery, was not aware of the danger, and the foreman knowing the danger did not warn him and he was injured.

A trial was had in the Circuit Court of St. Clair County, and a verdict was rendered for $2,000. A motion for new trial entered.by appellant was overruled, and the -appellant prosecutes an appeal to this court. Appellant assigns as error and in argument relies on:

1. The court refused to permit appellant to give proper testimony to the jury in cross-examination of appellee.

2. The court admitted improper testimony for appellee. .

3. The jury were improperly instructed.

4. The verdict was contrary to the evidence.

5. The court erred in overruling motion for new trial.

The assignments of error will be considered in the order named.

First, under the second, third and fourth counts, the allegations are that appellee was a laborer employed to do yard work, and was inexperienced in oiling the journals of the shafting, and was ordered to oil a journal near a coupling which was dangerous, and the foreman who so directed him to work, knowing the danger, did not warn him. On the cross-examination the appellee was asked as to his former employment by this company, and the character of work done, and whether he had not formerly had experience as an oiler ■of this kind of machinery for this defendant. These questions of appellant were objected to and the objection sustained by the court.

The evidence was pertinentand material, and we see no reason why the answer should not have gone to the jury. But .this fact was clearly and positively shown by appellant’s witnesses, and was not sought to be controverted by appellee. The refusal to allow the questions on this point to be answered by appellee, could not injure appellant, and was not such errólas would reverse this judgment.

Second. The appellant objected to the clothing of appellee, worn at the time of the injury, being exhibited to the jury on the person of appellee. The clothing, being put on by appellee for the purpose of explaining the manner he was caught, would better enable the jury to understand and determine that fact than any description of the c'othing could do. It was not an experiment before the jury; it was the explanation and submission of facts to them. In this there was no error.

Third. The appellant assigns as error the giving of appellee’s instructions, viz.:

1. The court instructs the jury that if, under the evidence and the instructions of the court they find the defendant guilty, then, in estimating the plaintiff’s damages, if any are proved, they have a right to take into consideration not only the loss, expenses and immediate damage arising from the injuries received at the time of the accident, but also the permanent loss and damage, if any is proved, arising from any disability resulting to the plaintiff from the injury in question, which renders him less capable of attending to his business, than he would have been if the injury had not been received; provided they do not estimate said damages at a sum greater than fifteen thousand dollars.

2. The court instructs the jury, that if you find the issues in this ease for the plaintiff, the form of your verdict may be: “ We, the jury, find the defendant guilty as charged, and assessed the plaintiff’s damages at-”.

3. The court instructs the jury, that if they find from the evidence that the plaintiff was himself guilty of some negligence, but that the defendant was guilty of gross negligence contributing to such injury, and that the plaintiff’s negligence was slight as compared with the negligence of the defendant, still he may be entitled to recover.

The objection, as insisted, is that tlie-e instructions do not require the evidence to show the guilt as alleged in the declaration or some count thereof; but, if guilty of any neglect, even though not as alleged, the plaintiff would be entitled to recover. We hold these instructions are not obnoxious to the objection interposed. By the first instruction, if the jury find the defendant guilty, that they will find him guilty as charged in the declaration or some count thereof is the necessary inference, and could not be misunderstood by the jury. That part of the instruction which states what may be taken into consideration in assessing the damage, was proper. The second was not misleading and to give it was not error. Village of Sheridan v. Hibbard, 119 Ill. 310; Gizler v. Witzel, 82 Ill. 323; Miller v. Balthasser, 78 Ill. 302.

By the third instruction the rule as to comparative negligence was substantially stated, and it was not error to give the same.

Fourth. ' The controversy on this point must be determined from the preponderance of the evidence, taking into consideration the fact of the finding by the jury. It is the duty of the master to provide suitable and safe machinery, reasonably adapted to perform the work about which the servant is employed who operates it. The master is bound to use proper care and skill in providing and keeping in repair such machinery or appliances. For negligence in the performance of this duty he is liable to a servant injured by such neglect. C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; T. W. & W. Ry. Co. v. Fredericks, 71 Ill. 294; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 314; C. & A. R. R. Co. V. Shannon, 43 Ill. 338.

While the negligence of a fellow servant is one of the ordinary risks undertaken by an employe, yet the duty of the master to keep the machinery and appliances in a suitable and safe condition is a duty from the master to the servant who uses the machinery, and one servant intrusted by the master to beep or put the machinery in proper condition is not the fellow servant of one who is employed to use the machinery when in operation. C. & N. W. Ry. Co. v. Swett, Adm’r, 45 Ill. 197; Indpls. R. R. Co. v. Flannigan, 77 Ill. 365; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492.

In this case the evidence shows the coupling was out of repair; a bolt lost; A servant, sent to repair that coupling, not having a suitable bolt, one that fitted, used an old bolt not made for the purpose—one that was too long. That was the act of the master in so making the repair. .The appellee, who was called upon to oil the journal near that coupling, was not' a fellow servant of the. one who repaired the coupling. He had a right to assume it was in a proper condition. H. S. Rolling Stock Co. v. Wilder, 116 Ill. 100; Ill.,Cent. Ry. Co. v. Welch, 52 Ill. 183; Perry v. Ricketts, 55 Ill. 234.

While the evidence as to whether it was a properly made or repaired coupling was one of fact for the jury, we hold there was sufficient evidence to authorize the jury to find' that the injury to appellee resulted from being caught in his clothing by the bolt of the coupling, which projected so as to render it dangerous. They so finding, we do not feel authorized to disturb the verdict. On the contrary, the evidence authorized the verdict.

While it is insisted the appellee was guilty of negligence in oiling the journal—the claim being made, from the manner he was drawn down, that he must have been leaning over the shaft when caught,, and therefore negligent on his part—we do not deem it necessary to discuss, as there is no evidence on which to base this claim. The evidence shows the contrary:

Fifth. We find no error in the record that would authorize the court to disturb the verdict and grant a new trial, and there was no error in overruling the motion for a new trial. The judgment is affirmed.

.. Judgment affirmed.


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    Terre Haute & Indianapolis Railroad Company v. Julia Voelker, Administrator.

      Railroads—Personal Injury at Street Crossing—Action for Damages— Dangerous Rate of Speed—Statutory Signal—Ordinance—Sec. 9, Art. 4, Prir. Latas 1889—Comparati ve Negligence—Contributory Negligence—■ Spedal Interrogatories—Evidence—Instructions.

      1. Under Sec. 9, Art. 4, Priv. Laws of 1869, the signature of the mayor is unnecessary to the va'idity of an ordinance.
    2. In view thereof, the introduction in evidence of a copy of an ordinance accompanied by the certificate under seal of the city clerk, setting forth the accuracy of the same, can non be complained of.
    8. It is prima facie negligence in a railroad company to fail to place a bell or whistle upon each of its locomotives, or to give the statutory signal when approaching a crossing.
    4. Negligence is a question of fact for the jury, except where the conclusion of negligence necessarily results from the facts.
    5. An instruction which states that facts set out in certain counts of the declaration, which have been held good on demurrer, will, if proven, justify a verdict for the plaintiff, may be properly given.
    6. It is proper to give an instruction to the effect that, if the averments of the declaration as to the acts of the defendant are proven, they warrant • a verdict, the person injured being at the time of the accident in the exercise of due care.
    7. It is proper to instruct the jury that the running of a train within corporate limits, at a higher rate of speed than is allowable under an ordinance, is an act of negligence whicii will warrant a recovery in case of an ■accident caused thereby, due care being exercised by the person injured.
    8. An instruction may be given to the effect, that in order to recover for an injury, a person need not be wholly free from negligence, provided he uses ordinary care and his negligence is slight in comparison with that ' of the other party, which is gross.
    9. It is proper in such cases to modify an instruction, seeking to have the question of negligence determined by the court, in such manner as to leave it to the jury, with whom it belongs.
    10. The court miy modify a proposition sought to be submitted to the jury for their special finding, so that the same shall have reference to an issue as made by the pleadings in the case, in regard to a fact that must be affirmatively shown before a verdict can be sustained.
    11. In an action against a railroad company to recover damages for causing the death of plaintiff’s intestate, this court declines to. interfere with a verdict for $-3,500 in her behalf.
    [Opinion filed March 14, 1889.]
    Appeal trom the Circuit Court of St. Clair County; the Hon. George W. Wall, Judge, presiding.
    Messrs. John G. Williams and A. S. Wilderman, for appellant.
    Mr. W. C. Kuffener, for appellee.

      The appellant neglected its duty, by its failure to ring a bell or sound a whistle to apprise the deceased of approaching danger, and it does not appear that they were apprised in any other way.
    The evidence is, that even in daylight they would not have been able to see the approaching train at a greater distance than 1,000 or 1,100 feet from St. Clair avenue, the view beyond being obstructed by cars standing on a switch. And any one approaching the crossing had a right to make his calculations on the assumption that the railroad would obey the requirements of the law and the city ordinance.
    Ordinarily one may presume that another will observe the law regulating his conduct, and may act accordingly, and there may be cases where a person crossing a track, when he knows a train is coming, may rely upon the presumption and be guilty of no or only slight negligence.” W., St. L. & P. R. R. Co. v. Weisbeck, 14 Ill. App. 527; St. L., V. & T. H. R. R. Co. v. Dunn, 78 Ill. 200.
    The signature of the mayor is not a part of an ordinance, but it is only one of the steps to make the ordinance valid, the same as its passage by the city council.
    “ It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law. If the conclusion of negligence, under the fact stated, may or may not result, as shall depend on other circumstances, the question is one of fact for the jury.” C. & E. L. R. R. Co. v. O’Connor, 119 Ill. 597.
    “ Where a case is put to a jury by instructions, upon certain recited facts, great care is necessary to state all the controlling facts fairly, and the safer rule is merely to announce the rule of law applicable, without singling out and laying stress upon certain facts claimed to be proved, if there is any serious conflict as to them, or if they involve or are dependent upon important facts not stated.” Prickett v. Madison County, 14 Ill. App. 454.
    “ When the court assumes to direct the attention of the jury to the facts, it should refer them to all the facts, so as to present the case fairly for both parties. Evans v. George, 80 Ill. 51; Ogden v. Kisby, 79 Ill. 556. Where there is a conflict of evidence it is important that the instructions should not be only accurate, but clear and perspicuous. Volke v. Roche, 70 Ill. 299.” Burt et al. v. Batavia, etc., Cor., 86 Ill. 66.
    “Negligence is a question of fact for the jury and not a question of law. In Great Western Railroad Co. v. Haworth, supra, it was held that negligence is the opposite of care and prudence; it is the omission to use the means reasonably necessary to avoid injury to others, and is not a legal question, but is one of fact to be proved like any other question. The instruction took the question of fact from the jury—a question which it was their province to determine.” C. & A. R. R. Co. v. Pennell, 94 Ill. 455.
    But there is another and fatal defect in this instruction, and that is, there is no evidence in this case on which to base it. It nowhere appears that the defendant did not look and listen. For all that appears to the contrary, he may have done so.
    “ It is an elementary principle of universal application, that all instructions to a jury should be based upon evidence; from which it legally, logically results that it is not error to refuse an instruction which announces a mere abstract proposition of law not suggested or warranted by the evidence in the case.” U. S., etc., Co. v. Wilder, 116 Ill. 105.
   Phillips, J.

The appellee, administratrix of Edward Yoelker, deceased, tiled her declaration, alleging the killing of Edward Yoelker by appellant’s train; the third count averring that the defendant’s road crossed St. Clair avenue, in the city of East St. Louis, in said county of St. Clair, and that it was the duty of the defendant to ring a bell or sound a • whistle within eighty rods of the crossing, etc., and further averring defendant’s neglect to do so. The count also avers that Edward Yoelker, with' due care and caution, was driving a team, attached to a wagon, along St. Clair avenue, and in attempting to cross said defendant’s road thereon, -was struck and so injured that death resulted within a few days thereafter.

The fourth count alleges that by an ordinance of the city of East St. Louis, numbered 460, amended by an ordinance numbered 462, the speed of passenger trains within the corpo-, rate limits of the city was limited to not exceeding ten miles per hour; that St. Clair avenue was a public street in said city, and that the defendant’s road crossed the same within the corporate limits of the city, when Edward Yoelker, with due care and caution, driving his team' attached to a wagon, along said street, in attempting to cross defendant’s said road thereon, was struck and. injured by the train of appellant, so that his death soon resulted; this count further averring that at the time said Yoelker was so struck, said train was running at a rate of thirty miles per hour in the corporate limits of the city.

The fifth count is similar to the fourth,- without the averment of an ordinance.

A demurrer was sustained to the first and second counts of the declaration, when a trial was had upon issue joined on the remainder, a verdict rendered and judgment entered for the' plaintiff for $3,500; "whéréup'on defendant, by appeal, brings the record to this court for review.

The first error assigned’ is that the court erred in admitting improper evidence for appellee. It is urged that the ordinances, numbers 460 and 462, offered in .evidence, did not purport to be signed by the mayor, and were therefore not the ordinances of the city. The ordinance, 460, and the Amendatory ordinance,' 462, as appears in the count above described, are ordinances limiting ' the speed of passenger trains within the limits of the city to not exceeding ten miles per hour. ...

' The certificate of the city clerk, under the seal of the city, it appears from the record, was attached to'the ordinances, certifying them to be correct copies of the originals, kept in the -office' of the clerk. It is not essential to the validity of an ordinance- that it should be signed by the mayor, for, under the act of incorporation of the city of East St. Louis, an- ordinance duly passed by the city council, if retained by the mayor more than five days after the sanie is presented for

liis approval, becomes an ordinance of the city; and if an ordinance is duly passed by the city council, and on being presented to the mayor, is by him vetoed, it may be passed over his veto. In either event, therefore, the mayor’s signature would not be attached by way of approval of the ordinance, nor would his signature thereto be necessary to its validity. Sec. 9, Art. 4, Private Laws 1869, 896. The objection to the introduction of the ordinances, therefore, was not well taken, and there was no error in allowing them to go in evidence.

There was a conflict in the evidence with reference to the speed of the train; as also to whether the bell was rung or whistle sounded, in accordance with the requirement of the statute.

These were questions solely for the jury; the witnesses were before them, with a full opportunity to judge then-credibility, from their manner on the stand, their fairness in testifying, and the reasonableness of their testimony; and in view of such opportunity of so judging, where, as here, a conflict in the evidence occurs, tlio Appellate Court will not disturb a verdict when tire jury have been properly instructed, unless, from a consideration of all the evidence, the verdict is manifestly contrary thereto.

But, after such a consideration in this case, it can neither be said that so high a rate of speed as thirty miles per hour was not shown, nor that there was insufficient evidence to warrant the finding that a bell was not rung or whistle sounded, within the statutory distance from the crossing of the railroad over the public street. Such, therefore, being soVy questions for the jury, under proper instructions by the court, we will proceed to consider the assignment of errors with respect to the instructions given by the court, at tlie request of the plaintiff.

The first is, that if the jury believe from the evidence that the plaintiff has made out her case, as set out iii eithér the third, fourth or fifth counts of the declaration, they should find for the plaintiff. ' ¡ .

This instruction simply states the proposition that such counts of the declaration as have been held good when challenged by demurrer, set out facts which, if proven, would entitle the plaintiff to a verdict; and as the counts therein referred to were unobjectionable in form and stated a cause of action, there was no error in giving this instruction.

The second instruction is that if the railroad company was guilty of a wrongful act, neglect or default, as charged in the third, fourth or fifth counts of the declaration, while the deceased, Edward Voelker, used ordinary care, and his death resulted, leaving a surviving widow and children, the plaintiff is entitled to recover, having reference only to pecuniary injuries, and excluding the consideration of sorrow or grief or pain, and stating the amount of the verdict not to exceed the limit of $5,000.

This instruction substantially directs the jury that if the averments of the declaration as to the acts -of the defendant were proven, they warrant a verdict; if Edward Voelker was thereby injured and died, and at the time was using due care and caution, it was not error to give the second instruction.

The third instruction is as to the duty of the railroad company with reference to a bell or whistle being kept on the locomotive, and the same' being rung or sounded at a distance of at least eighty rods from a public crossing, and kept ringing or sounding until the crqssing is reached; and if the railroad company ran its locomotive engine and cars on its track toward and across said crossing, called St. Clair avenue, and omitted to ring the bell or sound the whistle continuously for the distance of eighty rods before reaching said crossing, as alleged in the third count, such omission would constitute a prima facie case of negligence on the part of the railroad company; and if Edward Voelker was injured and died by reason thereof, as alleged, in consequence of the omission so to ring the bell or soimd the whistle, and he was at the time exercising reasonable and ordinary care and caution, the plaintiff would be entitled to recover.

The duty of the railroad company to have a bell or whistle placed on each locomotive, and on approaching a crossing to keep the same ringing or sounding for a distance of at least eighty rods therefrom, until the crossing is reached, is one enjoined by statute, and the neglect of the railroad company to so provide a bell or whistle, or to keep the same so rung or sounded on approaching a public crossing, is prima facie negligence ; and if, in consequence of such neglect, an injury results, the company would be liable. Galena & Chicago Union R. R. Co. v. Loomis, 13 Ill. 551 ; C. & A. R. R. Co. v. Elmore, 67 Ill. 176 ; Wabash Ry. Co. v. Elliott, 98 Ill. 481.

The fourth instruction is that if the speed of railroad passenger trains within the corporate limits of East St. Louis was limited to not exceeding ten miles an hour by the ordinances of the city, and the defendant company ran its passenger train on its track within said corporate limits at a greater rate of speed than ten miles an hour, and while so doing and in consequence thereof Edward Voelker was struck and injured by said train, and died from the effects of the injury thus received, he, at the time of being so struck, using all reasonab’e and ordinary care and caution, then the plaintiff is entitled to recover.

The right to limit the speed of trains by the ordinances of the city is conferred by law, and a violation of the ordinance by the company in running at a higher rate of speed than permitted, would be such an act of negligence as that charged in the fourth c mnt of the declaration, and if, in consequence of that negligence, the deceased, while using due care and caution, was struck by the train, and died from the effects of the injury thus received, a right of action 'resulted against the-company. This instruction properly stated the law and it was not error to give it. L. S. & M. S. Ry. Co. v. Berlick, 2 Ill. App. 596; C., B. & Q. R. R. Co. v. Dougherty, 12 Ill. App. 187.

The fifth instruction given for plaintiff is, that while a person is bound to use reasonab'e care to avoid injury,.he is not held to. the highest degree of care or prudence of which the human mind is capable; and to authorize a recovery for an injury he need not be wholly free from negligence on his own part, provided he uses ordinary care, and his negligence is slight as compared with the negligence of the other party, and the negligence of the other party is gross; and if the jury believe that Edward Voelker was guilty of slight negligence, but used ordinary care, while the negligence of the defendant, as charged in the declaration and shown by the evidence, as compared therewith, was gross, and that the injuries complained of were caused thereby, then such slight negligence would not bar a recovery.

This instruction correctly states the rule of comparative negligence, and it was not error to give it.

To cite authorities would be a work of supererogation.

The appellant assigns as further error a modification by the court of the first instruction presented on behalf of the defendant.

The court was asked by defendant to instruct the jury that a person approaching a railroad crossing is in duty bound to look along the line of the road, or to listen, or use any other reasonable means of informing himself of the approach of a train, before going, upon the crossing, and if he omits so to do, such omission on his part is negligence in itself, and if deceased was guilty of such negligence, then he failed to exercise ordinary care.

The court struck out of this instruction that part which states that the omissson referred to is in itself negligence, and refused to instruct the jury.as to what they should find to be an exercise of ordinary care in the case, but instead left the question to the jury to be determined from the evidence, whether the deceased had failed to exercise ordinary care.

The instruction, as asked, would have deprived the jury of their right to determine for themselves the question of negligence, for it sought to have the question determined by the court, which the court very properly refused, and accordingly ‘■so modified the instruction as to leave the question where it belonged. Such modification was proper and not error. Negligence is a question of fact for the jury, except where the conclusion of negligence necessarily results from the statement of fact.

If from all the facts the conclusion of negligence does not result, it is a question for the jury. C. & A. R. R. v. Pennell, 94 Ill. 455; C. & E. I. R. R. Co. v. O’Connor, 119 Ill 597; G. W. R. R. Co. v. Haworth, 39 Ill. 346; Penn. Co. v. Frana, 112 Ill. 398.

There is no evidence in this record of the failure of the deceased to listen or look for the approaching train, or that he in any manner neglected proper precaution to avoid injury, and, while from the evidence it appears that he drove u] on the crossing at a slow trot in a covered milk wagon, having the sides inclosed, except at two places used to hand out milk, yet it does not appear that he did not look out through the openings in the covering of the wagon or listen for the approach of the train, and therefore a determination by the court in such a case of the question of negligence, would have been an unwarrantable invasion of the province of the jury. The evidence discloses a conflict on the question of the speed of the train, and whether a bell was rung or whistle sounded. The assumption of negligence in such case, without proof that the deceased, Edward Voelker, did not look or listen for the approach of a train, should not have been made. And an instruction which stated such fact as assumed and as negligence on the part of Edward Voelker as a matter of law would be improper, not having reference to all the facts.

The instruction asked by the defendant is as follows:

“ The court instructs the jury that it is the duty of a person approaching the crossing of a railroad over a public highway to look and to listen for the approach of the train, and if he goes upon the track without taking such precautions to guard against accident, and sustains an injury in consequence of his failure to take such precautions, he can not recover ; and if the jury believe from the evidence that the said deceased, Edward Voelker, went upon the crossing of the defendant’s railroad over St. Clair avenue without looking or listening for the approaching train, and "received the injury from which he died, then the plaintiff can not recover, and the verdict should be for the defendant.”

This instruction was refused by the court, to which refusal the defendant excepted and now assigns the same as error. •

The objection stated to defendant’s first instruction is equally pertinent to this, as seeking to deprive the jury of the right of determining for themselves the question of the comparative negligence of the deceased, and thereby asking the court to invade the province of the jury. To refuse this instruction, therefore, was not error. Chicago & Northwestern R. R. Co. v. Hatch et al., 79 Ill. 137: G. W. R. R. Co. v. Haworth, supra; James v. Johnson, 12 Ill. App. 286 ; Meyers v. I. & St. L. Ry. Co., 113 Ill. 386; Coppner v. Pennsylvania Co., 12 Ill. App. 600. Finally the defendant presented to the court certain special findings, with the request that they be submitted to the jury for decision. The first, second, third and fifth of these special findings the jury were required to answer, as asked by defendants.

The fourth of such special findings so asked, was as follows :

“Could the deceased, Edward Voelker, have seen or heard . the defendant’s train approach the crossing of St. Clair avenue in East St. Louis if he had looked or listened as he approached said crossing, at the time he received the injury from the effect of which he died?”

This question the court modified' by inserting after the word “Voelker,” the words, “ If he had used ordinary care • and diligence.”

In the submission to the jury of a proposition upon which they are to find specially, it is eminently proper that the proposition should be submitted with reference to an issue as made by the pleadings in the case, with reference to a fact •that must be affirmatively shown before a verdict could be sustained. The question of ordinary care and diligence used by the person injured was a material subject of inquiry in this case, and by the modification made by the court of the special finding asked to be submitted to the jury for decision, the question as to the conduct of the deceased in the use of such ordinary care and diligence is properly stated ; but without such modification, a finding by the jury would have been meaningless, as applied to the issues submitted to them, because the question as asked, if found for the defendant, could have afforded no ground for the entry of a judgment thereon against the general verdict; while, as modified by the court, a finding thereon might have controlled the general verdict, if adverse thereto. Wherefore such modification of said fourth special finding was not error.

Accordingly, as we find no error in this record, the judgment is affirmed.

Judgment affirmed.