author: McAllister, J.

text:
    Continental Insurance Company of New York City v. Cullen C. Allen et al.

      Marine Insurance—Issue and Delivery of Certificate after Lo'ss—Agency , —notice of Loss—Payment of Premium—Instruction.

    In an action upon a certificate of marine insurance, issued and delivered after the loss of the vessel insured, to take effect as of an earlier date, it is held: That the agent who procured the insurance can be regarded only as the agent of the plaintiffs; that he does not appear to have had any authority to make any contract on behalf of the defendant; and that an instruction assuming that the agent acted for the defendant, was improperly given for the plaintiff's.
    [Opinion filed May 16, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    This was a suit by appellees against the insurance company, appellant, upon a certificate bearing date November 20, 1884, of marine insurance, in the sum of $4,000, upon the hull of the tug Alice E. Getty, subject to the conditions of the company’s general “ Hull Policy,” whereby the defendant insured the plaintiffs on said tug in said sum from November 19 to November 30, 1884.
    It appears that about 8 o’clock in the morning of said November 19th, the said tug started on a towing voyage from Muskegon to the port of Pentwater, both ports being upon the eastern shore of Lake Michigan and about forty miles apart, but connected by direct communications by railroad, telegraph and telephone; that one Lewis was an agent in the fire insurance business at Muskegon, had been such for some five years, and had done business with some of the plaintiffs as such; that on the evening of said November 19th, Allen, one of the plaintiffs, and familiarly acquainted with Lewis, called upon the latter to have him procure marine insurance upon said tug from that day to the 30th of the same month, in the sum of §4,000; that Lewis then made an estimate of what the premium would be and informed Allen that it would amount to §52, which Allen paid to him; that about 11 o’clock a. m., of ¡November 20th, Lewis, by telegram, employed the office of one Littlefield, an insurance agent and broker in the city of Chicago, to place said insurance, and that between that time and 3 p. m. several communications by telegraph passed between them, some relative to the premium, but Lewis insisting that the risk should begin on the 19 th day of the month; that the business on behalf of Littlefield’s office was conducted by Parker, a clerk of the latter ; that application having been made by Parker to the agent of the defendant in Chicago, of the name of Eispin, some time after noon of said day, and the rate of premium being agreed upon, which amounted to §60, but which was not paid, Eispin made out a certificate by which the risk was to begin at and from 3:30 o’clock of that day, but that not being satisfactory to Parker, whose instructions were to have it begin on the 19th instead of the 20th, he insisted upon the certificate being changed so as to attach on the 19th; that the certificate was finally so changed by Eispin but not then delivered.
    It appears that the tug met with a disaster about 3 o’clock of the morning of said 20th of ¡November, by reason of violent wind, high sea, and her tow line being carried from the deck and becoming entangled in the wheel of the boat, so that in the early morning of that day she was stranded and wrecked upon the beach at said Pent water.
    It appears that after the communications between Lewis and the office of said Littlefield, by which it was ascertained that the premium would be §60 instead of §52, Allen paid to him the difference, but Lewis kept the whole, and no premium was ever paid to defendant, nor was there evidence tending to show that the defendant gave any credit to him in respect thereto.
    There, was no evidence tending to show that Lewis ever was the actual or apparent agent of the defendant company, and upon the latter offering to prove that he was not, the court rejected the evidence.
    There was evidence tending to show that the plaintiff Allen knew of said disaster to the tug, and by the exercise of reasonáble diligence might have notified the defendant thereof, before said certificate was delivered by Eispin, who had no such notice, and the evidence tended to show that Parker, who acted for and on behalf of plaintiff, in procuring said insurance, had read an account of said disaster to said tug in a Chicago morning paper before said certificate of insurance was delivered by Eispin, and that he made no mention of it to the latter. To avoid the effect of such state of things, the plaintiffs’ counsel asked, and the court gave an instruction to the jury upon the theory that a valid contract of insurance was effected on the 19th of ^November between plaintiffs (through Allen) with Lewis and the payment of the premium to him, to which the written policy would attach by relation. It reads: “The court instructs the jury that if they believe from the evidence that the plaintiffs, or some one of them, made application for marine insurance on the tug ‘Alice E. Getty’ to an insurance agent or agents at Muskegon, in the State of Michigan, on the 19th day of November, 1884, and that said agents agreed to furnish such insurance, and that subsequently, and on the 20th day of November, 1881, the plaintiffs paid the said agents the premium for the insurance covered by the certificate in question, and that afterward said insurance agents delivered the insurance certificate in question to the plaintiffs, and that at the time of the payment of said premium the plaintiffs had no notice of the stranding of the tug mentioned in said certificate, or that they did not receive notice of the stranding of said tug until it was too late to notify the agent of the defendant of such fact before said insurance had been placed and accepted, then said certificate, although the jury may believe, from the evidence, that it was issued after the stranding of said tug, still was binding on the defendant, and the plaintiffs are entitled to recover the amount due thereon, with interest at six per cent, per annum from the ex-piratiom of sixty days from the time the proofs of loss were furnished or tendered to the defendant or its agent, together with two-thirds of such expenditure and outlays as the plaintiffs made or incurred in their attempt to save said tug, provided the jury further believe, from the evidence, that the immediate cause of the stranding of the said tug was one of the perils insured against, and the said tug became in consequence thereof a total loss.”
    The jury found for plaintiffs, assessing their damages at §5,348.47. The court, overruling defendant’s motion for a new trial, gave judgment on the verdict, from which the latter appealed to this court.
    Messrs. Robert Rea and James 0. McShane, for appellant
    Messrs. Schuyler & Kremer, for appellees.
   McAllister, J.

If Lewis, at the time Allen applied to him for marine insurance upon the vessel in question, on the evening of November 19, 1884, and before the loss, had been the agent of the insurance company, defendant herein, and had the actual or apparent authority to bind the defendant by a contract of insurance, and, as such, had entered into sncli a contract on behalf of the defendant at that time and received the premium, then such contract would have been binding, although the vessel had been lost intervening that time and that of the making of the certificate of insurance. Perkins v. The Washington Ins. Co., 4 Cow. 645.

In that case the policy or certificate, even if not delivered until after the loss, would take effect by relation, as of the time when the premium was paid and the contract concluded, provided, of course, that the certificate or policy contained no terms inconsistent therewith. Lightbody v. North American Ins. Co., 23 Wend. 18; Jackson v. McCall, 3 Cow. 75.

It was substantially upon such a theory of the law that the instruction given on behalf of the plaintiffs (and set out in our statement of the case), was based. But the difficulty with it is, that upon the facts of the case, as they were developed by the evidence, no such rule of law can arise. In the light of the evidence Lewis can be regarded only as the agent of the plaintiffs. There was no evidence in the case tending to show that he possessed any authority, actual or apparent, to make any contract of insurance on its behalf. Hot only that, but to i-epel any inference of that kind, the defendant offered to prove by direct testimony the want of all authority on the part of Lewis to act for the defendant, and the trial J udge rejected it.

If Lewis was the agent of plaintiffs and not of defendant, as we have stated, then it is clear that the transaction between him and Allen on the evening of Hovember 19th, at Muskegon, as to which the defendant was, in no respect, constructively or otherwise, a party, could have no effect whatever in conferring a right upon plaintiffs, or creating a liability as against the defendant.

The instruction was, therefore, a plain misdirection of the jury by the court, and was prejudicial to the defense which the defendant had a right to make, viz., that no contract was consummated with defendant until the delivery of the certificate of insurance, prior to which the loss occurred which was known to plaintiffs and unknown to defendant, and by the former and their agents concealed from the latter. 1 Parsons on Marine Ins. 469, and cases in notes.

For giving that instruction the judgment must be reversed and the cause remanded. Judgment reversed.


source: Caselaw Access Project

author: Mobah, P. J.

license: Public Domain

text:
    James T. Hair v. Wesley D. Barnes.

      Contract to Secure Advertising—Breach—Measure of Damages—Estimate of Profits—Evidence—Set-off.

    1. In an action to recover damages for the breach of a contract, the plaintiff must produce evidence from which the jury can find the extent of his injury. This rule excludes all such elements of injury as are incapable of being ascertained with reasonable certainty by the usual rules of evidence.
    2. In an action against a solicitor of advertisements to recover damages for a breach of a contract to solicit advertising during a certain period, it is held: That an estimate of probable profits for the remainder of the term, based on proof of the profits for a part thereof, is speculative and insufficient as a basis for an estimate of damages; that the plaintiff’s opinion or estimate of the value of the defendant’s services was properly excluded; that the plaintiff failed to show a right to recover more than nominal damages; and that the verdict for defendant for the amount of the set-off claimed was proper.
    3. An error resulting in no injury to the appellant is insufficient as ground for a new trial.
    [Opinion filed May 31, 1888.]
    • Appeal from the Superior Court of Cook County; the Hon. Elliott Anthohy, Judge, presiding.
    Messrs. C. C. Bihthicum and Erahk J. Smith & Helhee, for appellant.
    Mr. Edgae L. Jayhe, for appellee. ■
    In all eases where, damages are claimed, unless the court or jury are furnished with a reasonably certain basis or data for ascertaining or measuring the damages, the claim must be denied.
    Appellant having built his entire claim on probable and prospective profits, too speculative, fanciful and remote to come within any established rule, his claim must fall. Moline W. Plow Co. v. Waters, 10 Ill. App. 159; Olmstead v. Burke, 25 Ill. 86; Taylor v. McGuire, 13 Missouri, 517; Hadley et al. v. Boxendale, 26 Eng. L. & Eq. 398; Watson v. The Amburgate, N. & B. R. Co., 3 Eng. L. & Eq. 479; Hamlin v. The Great Northern R. W. Co., 38 Eng. L. & Eq. 335; Hyner v. Richter, 51 Ill. 299; Green v. Williams, 45 Ill. 209; St. L., J. & C. R. R. Co. v. Lurton, 72 Ill. 118; Rock I. & St. L. R. R. Co. v. Beckemer, 72 Ill 267; Frazer v. Smith, 60 Ill. 145; Ill & St. L. R. R. Co. v. Decker, 3 Ill. App. 135; Hewitt v. Walker, 2 Ill. App. 490: Sedgwick on Measure of Damages, Secs. 58, 65, 68, 69, 71, 72.
   Mobah, P. J.

Appellant brought his action in the court below to recover against appellee for the breach of a contract between appellant and appellee, in and by which contract appellee agreed to solicit advertising patronage for hotel register books for a period of live years, and to devote all his time and energy during business hours daily to securing advertising patronage and taking contracts for said advertising registers^ appellee to receive for his services thirty per cent, of the gross amount collected on said contracts for advertising.

Appellant alleged that appellee did not perform his contract, but only worked 385 days of the time, and for 1,185 days of the time he absented himself, and the benefit of his time and energies were lost to appellant. Appellee pleaded the general issue and gave notice of set-off, and on the trial appellee had a verdict for the amount of the set-off claimed by him. There was no dispute as to the amount coming to appellee if appellant should not be entitled to damages for the breach of contract.

Many errors are assigned by appellant, and we are of opinion that errors intervened in the course of the trial which, would have entitled appellant to a reversal if he had made, or offered to make any proof which would entitle him to recover anything more than nominal damages for the breach of contract proven.

It was shown that appellee went to Europe and also to Cuba during the running of the contract, and that he failed to devote himself to the business of canvassing for advertisements for upward of two years of the contract period. To show his damages, appellant proved what amount of advertising appellee had taken in certain cities in which he had canvassed, for periods varying from four to ten days, and also the whole amount of advertising for which he got contracts during all the time he worked under the agreement, and that the profits of appellant were from twenty-five to thirty per cent, on the amount of advertising contracts taken by appellee.

To attempt to fix a measure of damages for the breach of the contract alleged from a consideration of such facts, would be, in our opinion, to make an excursion into the domain of conjecture. Canvassing for advertisements to be inserted in such books as appellant was engaged in selling, is a business in its nature affected by numerous contingencies. Success depends on a great variety of circumstances, and the result of a four days canvass in Hew Orleans or Mobile, Alabama, would hardly form a safe basis on which to estimate damages for a failure to work under the contract in some other territory for a period of two years.

The profits that might be conjectured as the probable result of a canvasser’s labor in such business are purely speculative. Sutherland, in his work on Damages, Vol. 1, p. 111, says: “ The cardinal rule in relation to the damages to be compensated on the breach of a contract, that the plaintiff must establish the quantum of his loss by evidence from which the jurv will be able to establish the extent of his injury, will exclude all such elements of injury as are incapable of being ascertained by the usual rules of evidence, to a reasonable degree of certainty. Instances of such uncertain damages are profits expected from a whaling voyage, and the gains which depend in a great measure upon chance; they are too purely conjectural to be capable of entering into compensation for non-performance of a contract.” In Lewis v. The Atlas Co., 61 Mo., 584, in a suit by an insurance agent against the company for damages resulting from his discharge during the term of his employment, it was held that the measure of his damages was the amount of his loss in consequence of the discharge, but an estimate of probable earnings for the remainder of the term based on proof of the amount of his collections and commissions before the breach was held too speculative. In the Union Refining Co. v. Barton, 77 Ala. 148, the plaintiff engaged under a contract for the term of three years to travel, introduce, and sell the oil of the defendant in the territory of the State of Georgia, his compensation to be a commission of ten per cent, on what he sold. After he had worked some months, the defendant committed a breach of the contract, and plaintiff brought suit, and to establish his damages for the time the contract had yet to run, he proved what the amount of his sales had been for the time preceding the breach, and the trial court instructed the jury to consider the extent of such sales in connection with the time the contract had to run, to fix the damages for the breach. This was held error by the reviewing court, damages for future profits in such a case depending on too many contingencies to be the subject of recovery. Stone, C. J„, said: “In fact, the success of such enterprise depends on so many contingencies, that we can conceive of no means of making the necessary proof on which to found a verdict. Ho rule for such ascertainment can be predicated. Past success in the same or similar enterprise will not do. Conditions may not always remain the same.” To the same effect, Goodsell v. Western Union Telegraph Co., 53 N. Y. Sup. Ct. 46; Masterson v. Mount Vernon, 58 N. Y. 391.

Appellant offered to prove by his own testimony the value of appellee’s service per day or week, but this evidence was properly rejected by the court. It was the mere opinion or estimate of appellant, and was plainly a conjecture. Appellant failed to make a ease which entitled him to recover more than nominal damages against appellee. Therefore any errors made by the court in instructions or in improperly excluding appellant’s evidence on the question of settlement, resulted in no injury to appellant.

Appellee recovered on his claim of set-off for work under another contract only what it is admitted he was entitled to have, if no damages were allowed against him for breach of the contract on which appellant brought his action.

Therefore, notwithstanding the errors complained of, the judgment of the Superior Court must be affirmed.

Judgment affirmed.


text:
    Mark Mueller v. Richard Grant.

      Practice—Bill of Exceptions.

    Where the bill of exceptions fails to show that any, motion for a new trial was made, or that any instructions were given or refused, this court will not consider objections touching the weight of evidence and the refusal of instructions asked.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Qook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. E. L. Barbee and Runyan & Runyan, for appellant.
    Mr. J. W. Merriam, for appellee.
   McAllister, J.

This was an action of trover brought by appellee against appellant. Plea, the general issue. Verdict and judgment against defendant for §300 damages and costs. On the trial, the principal issue was whether a certain chattel mortgage covering the goods in question and under which the plaintiff claimed the goods as belonging to him, was fraudulent and voi 1, as to the creditors of the mortgagors. Upon that question there was a conflict of evidence. There was no ruling of the court as to the admission or exclusion of evidence, to which exception was taken and relied upon as error. The errors relied upon and for which a reversal is asked on behalf of appellant are that the verdict is against the weight and preponderance of the evidence, and that the trial Judge refu'sed proper instructions asked on behalf of the defendant. The answer to both these assignments of error is, that the bill of exceptions wholly fails to show that any motion for a new trial was made, neither does it show that any instructions were given or refused, or incorporate any. The .judgment must therefore be affirmed. Affirmed.


text:
    The Chicago and Western Indiana Railroad Company v. Mary Ann White, Adm’x, etc.

      Personal Injuries—Conflict of Evidence—■Instructions—Comparative Negligence.

    1. In an action to recover for a personal injury upon the ground of mere negligence, the want of ordinary care on the part of the person injured will defeat a recovery, the doctrine of comparative negligence having no application.
    2. In such an action, where the evidence is conflicting, great accuracy in the instructions is required.
    3. In the case presented, it is held: That an instruction given for the plaintiff is bad for its confusion of ideas and tendency to mislead; and that an instruction asked for the defendant was improperly modified by an addition touching comparative negligence.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. C. M. Osbobn and S. A. Lynde, for appellant.
    In going upon the track unnecessarily and not using any care while there, White was guilty of such negligence that the judgment should be reversed and the cause should not be remanded. The court erred in its ruling on defendant’s motion at the close of plaintiff’s case and in its instructions as to this point.
    The rule is absolute that “in order to recover for injuries from negligence it must be alleged and proved that the party injured was, at the time he was injured, observing due or ordinary care for his personal safety.” Calumet Iron & Steel Co. v. Martin, 115 Ill. 368; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512.

      The allegation of the exercise of ordinary care is material; the plea of not guilty puts it in issue; and the burden of proving due care rests upon the plaintiff. I. & St. L. R. R. Co. v. Evans, 88 Ill. 64.
    The proposition can not require argument that it was not only necessary for the plaintiff to show that White’s work required him to be on the track and justified his being there, but that it was also necessary for her to offer evidence tending to show that he used some care and caution while there. The Supreme Court has, as it says, “ repeatedly held that to walk upon the track of a railroad, without looking in both directions to discover approaching engines or trains, when the exercise of such precaution would discover either the one or the other, is such negligence as will preclude a recovery, unless the injury be wilfully or wantonly inflicted by the defendant.” Austin v. C., R. I. & P. R. R. Co., 91 Ill. 38.
    Instructions must be applicable to the case made by the evidence, and without evidence tending to show the exercise of ordinary care on plaintiff’s part, or gross negligence on the defendant’s part, an instruction stating the rule of comparative negligence does not apply. See C., R. I. & P. R. R. Co. v. Clark, 108 Ill. 120.
    The rule of comparative negligence has not changed or modified the general rule requiring that the injured party, in order to recover for the negligence causing his injury, must have observed due or ordinary care for his personal safety; and therefore an instruction stating that rule should not be given in the absence of evidence tending to show the exercise of due or ordinary care, or evidence from which ordinary care may be inferred.
    The third instruction given for the plaintiff is objectionable in form because it omits the element of comparison, which is necessary, where the plaintiff’s intestate may have been guilty of some contributory negligence, as by being “ improperly upon a railway track.” It is also objectionable because it practically tells the jury that they may leave out of consideration in determining whether the person is exercising “ reasonable care for his safety,” the fact that “ he is improperly upon the railway track” to begin with, and limits the questions to the care exercised while there. I. C. R. R. Co. v. Wilson, 52 Ill. 294; C. & N. W. Ry. Co. v. Clarke, 2 Ill. App. 122; C., B. & Q. R. R. Co. v. Colwell, 3 Ill. App. 549; P., L. & St. L. Ry. Co. v. Goss, 13 Ill. App. 623.
    But the chief objection to it is the assumption that “a person may be improperly upon a railway track” and yet “exercising reasonable care for his safety.” In the case at bar by the allegations of the declaration and by the rules of law as well, the question as to whether White was exercising such care and caution for his safety as would warrant a recovery by the plaintiff, i. e., “reasonable care,” depended primarily upon whether he was “by reason of his employment necessarily upon the defendant’s railroad track at said point,” as alleged in the declaration, and in the second place upon whether, being there properly, he used reasonable care for his safety.
    It has been held invariably, as we understand it, that a railway track is a place of great danger, and that to go upon it unnecessarily, or to loiter on or walk along it, unless so required by the nature of the employment, is in itself gross negligence, and bars a recovery for anything but wilful or wanton negligence. Ill. Cent. R. R. v. Hall, 72 Ill. 225; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; Ill. Cent. R. R. Co. v. Hammer, 72 Ill. 350; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 513; L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 534; C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. 250; L. E. & W. Ry. Co. v. Zofffinger, 10 Ill. App. 258.
    It does not require any argument that it is clearly erroneous to add a clause stating the rule of comparative negligence to an instruction that if guilty of the want of ordinary care in any material respect the plaintiff can not recover. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Cal. Iron & St. Co. v. Martin, 115 Ill. 370; C. & N. W. Ry. Co. v. Thorson, 11 Ill. App. 631.
    Messrs. Cunningham & Keilt, and Edward Maher, for appellee.

      White was necessarily upon the railroad track in the discharge of his duty, and. while there he exercised due care in protecting his life.
    It was not necessary for us to make direct proof that White specially exercised ordinary care, but that it may appear from the circumstances of the case. Chicago & Atlantic Ry. Co. v. Carey, 115 Ill. R. 115; Missouri Fur Co. v. Abend, 107 Ill. 44.
    In another case it was held: “It does not always require positive proof of the exercise of due care and diligence. Under certain circumstances it may be taken for granted that the deceased observed usual and ordinary care for his personal safety.” All the circumstances tend to show the exercise of due care and caution on the part of the deceased at the time. Missouri Fur Co. v. Abend, 107 Ill. 48.
    In another case it was held that “ up to within a moment of the accident” he was shown to have been in the exercise of due care in his proper place, and it would do violence to the facts in the case to presume that in the instant that intervened he was guilty of negligence, in the absence of proof of any circumstances "that even tend to establish the fact of negligence. Chicago, Burlington & Quincy Ry. Co. v. Gregory, 58 Ill. 272.
    The question of negligence is not one for the court, but one to be ascertained and settled by the jury from all the evidence, as has been done in this case. In a case reported in 115th 111., the Supreme Court uses these words: “ Whether he was using due care, or was grossly negligent, is not a question of law to be determined by the court, but one of fact to be ascertained by the jury, under all the evidence, environments and attendant circumstances,” citing many cases. I. C. R. R. Co. v. Haskins, 115 Ill. 30.
    ' Again it is said by our Supreme Court: “ It is the long settled doctrine of this court that negligence is a fact, the finding of which is clearly within the province of the jury.” C. & A. R. R. v. Bonifield, 104 Ill. 224.
    The instructions of the court fairly presented the questions at issue to the jury without confusion or error.

      The contention of the defendant is not well founded; and its infirmity consists in a radical failure to apprehend that the instructions in their entirety, fairly and adequately presented every question of fact involved directly and clearly to the jury.
   McAllister, J.

This was an action by appellee as the administratrix of the estate of John White, deceased, against the railroad corporation, appellant, to recover damages for negligence of the servants of the latter in the running of a switch engine against or over said White, December 19, 1883* causing an injury, as it is alleged, of which he died. On a trial the plaintiff had judgment for $4,000 damages, and the defendant prosecutes this appeal.

The accident occurred in the morning of the above mentioned day. The weather was severely cold. The place was about- fifty feet north of the crossing of the defendant’s tracks by 41st street, the tracks running in a north and south direction upon Stewart avenue and said street east and west. White was a carpenter in the employ of defendant, and he and another carpenter had been engaged in building a sidewalk along defendant’s track from 41st street north to a “shanty” there, to be used as a station. At the time in question, these two men were measuring their work with a tape line, and, as a matter of convenience, were, while doing so, upon the track, which ran cíese thereto. A switch engine of defendant came from the south on said track, where White was so engaged as aforesaid, toward said crossing, at the rate, as the evidence tended to show, of eight or ten miles an hour, and the evidence tended to show that the statutory signals were given before reaching the crossing; that the engine driver saw White on the track a sufficient distance south of him to have stopped his engine by the use of ordinary care before reaching him and that White was apparently unaware of his danger; that the engine driver did, in fact, attempt to stop his engine and would have succeeded but for the fact that the conductor, who was riding therein, was seated with reference to the lever, so as to interfere with and prevent" its proper use, for which reason the attempt failed. As to such interference and prevention there was a conflict of testimony, but which could properly be passed upon by the jury and trial Judge, in whose presence the testimony was delivered.

It appeared, without contradiction, that a flagman, who had been habitually kept at said crossing, and less than a hundred feet from where White was, had absented himself from his place at the time said engine came. It also appeared that there were numerous other railway tracks in that immediate neighborhood on which, at that time, there were four or five locomotives giving forth the usual discordant sounds of whistles, bells and blowing off steam at the same time. Under such circumstances, White, inadvertently, though not unlawfully, remained upon the track, and for some reason, which can only be inferred from the circumstances, was unaware of the danger which threatened him until'too late, when the engine, then almost stopped, ran over a portion of his body, inflicting injuries from which he died.

There was no conflict of testimony as to the absence, at the time, of the flagman from his proper place. But that was material, under the circumstances of this case, only as bearing upon the question of the exercise by White of ordinary care in going upon the track and remaining there, as he did. Upon every other element of the cause of action the testimony was conflicting, with an apparent preponderance in favor of the defendant. In such case, accuracy in the instructions, so far as given for plaintiff, as well as in the modification of those asked for defendant, becomes highly requisite. L. S. & M. S. R. R. Co. v. Elson, 15 Ill. App. 83, and cases cited.

At the instance of plaintiff, the court gave to the jury this instruction:

“ The jury are instructed that, although a person may he improperly upon a railway track, that fact alone will not discharge the company or its employes from the .observance of reasonable care, and if such person, while exercising reasonable care for his safety, is run over and receives injuries from the accident, which injuries subsequently cause death, the company will be responsible if its employes were guilty of gross negligence aud could have avoided the accident by the exercise of reasonable and ordinary care, diligence and watchfulness.”

That instruction is bad for its confusion of ideas and misleading tendency. It contains no hypothesis as to attending circumstances; as whether the engine driver had any reason to apprehend the presence on the track of deceased or other persons; whether such engine driver saw deceased in time to have stopped his engine; or whether deceased was in the exercise of ordinary care in going upon the track. It assumes to prescribe the effect of the doctrine of comparative negligence without embodying its necessary elements. I. C. R. R. Co. v. Frelka, 9 Ill. App. 605.

The defendant asked the court to instruct the jury, that if they shall find from the evidence that White became aware of the approach of the engine in time to get off the track before being struck, and that he did not use ordinary care to do so, then the plaintiff can not recover, and their verdict must be for the defendant.” This the court refused to give as asked, but adding to it the following qualification, gave it: “Unless you believe from the evidence that the servants of the defendant were guilty of gross negligence when compared with the negligence of the deceased, and that the negligence of the latter was slight when compared with that of defendant’s servants, if they were so guilty of negligence.”

The instruction as asked by defendant was proper and should have been given as asked. The qualification goes upon the theory that although the injured party may have failed to exercise ordinary care, yet that will amount to only slight negligence and will not defeat a recovery, if the negligence of the defendant’s servants is gross when compared with it. Such is not the law. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358.

Those cases settle the law in this State, that in actions to recover for personal injury upon the ground of mere negligence, the want of ordinary care on the part of the person injured will defeat recovery, and the doctrine of comparative negligence has no application.

There are other errors in the record, but those specified being of such character as to require a reversal of the judgment, we shall not waste time in pointing them out.

The judgment will be reversed and cause remanded.

Reversed and remanded.


text:
    Henry H. Shufeldt et al. v. Charles M. Henderson.

      Practice—Evidence.

    In an action on a lease and assignment thereof, if the defendant has filed no affidavit denying their execution, such instruments are admissible in evidence without proof of such execution.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. D. S. Gooding, for appellants.
    - Mr. B. B. Bacon, for appellee.
   McAllister, J.

The one count in the declaration in this case is special, upon a lease made December 20,1878, between The Chicago Gas Light & Coke Company, as the lessor, and the appellants, Shufeldt & Company, as the lessees, whereby the former leased to the latter certain described premises from January 1, 1879, to April 30, 1884, for which the latter covenanted to pay rent to the former at the rate of §2,000 per year, payable quarterly. It was also alleged that, January 8, 1881, the said lessor, by an instrument of assignment of that date, sold, assigned and transferred said lease to the plaintiff, Henderson, to whom the lessees, defendants, attorned. The suit was to recover rent for one quarter under the terms of said lease, and interest thereon. The plaintiff had judgment, and the defendants appealed to this court.

The only point made for reversal is that there never having been any copy of either the lease or assignment filed with the declaration, the court erred in admitting them in evidence against defendants’ objection, without any evidence as to the execution of either. Neither of the defendants had denied, under oath, the execution of either instrument.

The action was brought upon the lease and the assignment. So that Sec. 33 of the Practice Act (2 Starr & C. Ill. Stat. p. 1798) is specific to the effect that defendants, not having filed any affidavit denying the execution of the respective instruments, could not be permitted to deny their execution upon the trial, and proof of such execution was not required of the plaintiff before giving them in evidence.

The judgment should be affirmed.

Judgment affirmed*


author: Moean, P. J.

text:
    Pennsylvania Railroad Company v. William J. Connell.

      Railroads—Ejection of Passenger—Action for Damages—Question for Jury—Damages—Whether Excessive.

    1. In an action against a railroad company to recover damages by one who was rightfully on defendant’s train and was ejected by its servants upon his refusal to obey the conductor’s command to leave the train, it is a question for the jury whether the force used in so ejecting him was unjustifiably violent and excessive and whether such injuries as he sustained thereby were wantonly and maliciously inflicted.
    2. In the case presented, this court holds that a verdict for $7,000 for plaintiff is not so large as to require a reversal on the ground that there was manifest passion and prejudice on the part of the jury.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kikk Hawes, J udge, presiding.

      Messrs.Willaed & Driggs, and A. S. Trude, for appellant.
    Messrs. Sidney Smith, W. H. Hynes and John I. Bedioe, for appellee.
   Moean, P. J.

An action was brought by appellee in the court below to recover damages from appellant for being forcibly expelled from appellant’s car by appellant’s servants, * at a station near Philadelphia. The case was tried, and a verdict in plaintiff’s favor for §15,000 was rendered. The verdict was set aside by the trial judge, and a new trial had, in which a verdict for the same amount was rendered, and judgment was entered thereon.

The case was appealed to this court and was affirmed, but on appeal to the Supreme Court was reversed, and remanded for a new trial. The opinion of the Supreme Court, which is reported in 112 Ill. 295, contains a statement of the facts regarding appellee’s purchase of a ticket, and the circumstances of his being on the train, and, as the evidence on that branch of the case was in no manner changed at the last trial, we deem it sufficient to refer to said statement.

The Supreme Court determined that appellee was rightfully on the ear from which he was expelled, and that the ticket which he tendered to the conductor was a valid ticket binding on the company, and which it was legally bound to honor; but held that when the conductor, acting under the instructions of the company, refused to accept said ticket and demanded that appellee pay his fare or leave the train, it was the duty of appellee to do one or the other, and when he refused to do either and was expelled from the ear, he could recover no damages by reason of the mere ejection, unless unnecessary force was used.

The last trial was conducted under the law as thus laid down by the Supreme Court, and the jury was instructed that when the conductor demanded that plaintiff should pay his fare or leave the train “ that it was his duty, if he declined to pay his fare, as requested, to leave the train, and that when he refused to leave the train and thus compelled the conductor to resort to force, he can not recover for any personal injury which he thus voluntarily brought upon himself through the use of such force as was reasonably necessary to remove him from the car.”

It was an appropriate question for the jury, under all the evidence, whether the force used by the servants of appellant in ejecting appellee was unjustifiably violent and excessive, and whether such injuries as he sustained during the expulsion were wantonly and maliciously inflicted. The evidence tended to show that appellee received injuries from which serious results followed, and while there is some conflict as to what was said and done by the conductor prior to, and during the expulsion, we can not say that the conclusion reached by the jury is without support in the evidence.

The verdict of $7,000 is not, in our opinion, considering ail the circumstances, so large as to require us to reverse the case on the ground that there was manifest passion and prejudice on the part of the jury. There is evidence which warrants the belief that appellee received injuries permanent in their character, that illness resulted from the force used upon him, which prevented him from attending to the practice of his profession as he had before done, and that loss of business and earnings ensued.

Had he left the car at the command of the conductor, he would be entitled to recover, in the language of the Supreme Court, “ for every indignity offered, and for all damages sus. tained.” For the indignity of being compelled to leave the car he might have damages, but not for the indignity of being forcibly ejected. In such a case, where the distinctions required by the rule as laid down by the Supreme Court are nice, where the rule requires one who is legally in the right to submit without resistance to the enforcement of a wrong, or if he does resist, limits his right of recovery to damages for such excess of force only as may be used in compelling him to submit, any jury would be very likely to visit with severity any unnecessary force which they find indicated by the evidence.

The man who is rightfully on a train, and produces to the conductor conclusive evidence of his right, can not be in a more unfavorable position as regards his claim to damages when forcibly expelled by the servants of the company, than one who is a trespasser on the car, and insists on remaining wholly without right. Yet very considerable verdicts have been sustained where excess- of force was used in removing a trespasser from the train, and injury resulted, or where he was removed from the car at an improper place, where the result was merely inconvenience. Coleman v. N. Y. & N. H. R. R., 106 Mass. 160; Holmes v. Wakefield, 12 Allen, 580; C. & A. R. R. Co. v. Flagg, 43 Ill. 364; Penn. R. R. Co. v. Vandivin, 42 Pa. St. 365.

We have examined and considered all the points urged by counsel for appellant as grounds of reversal, and we are of opinion that no error was committed in the trial of this case in the court below, which warrants a reversal of the judgment. The same will therefore be affirmed.

' Judgment affirmed.


text:
    Adam Hembes v. Henry Fick.

      Assault and Battery—Conflict of Evidence—Instructions—Exemplary Damages.
    In an action of trespass for an assault and battery, it is held: That the evidence supports the verdict, for the plaintiff; and that, in view of all the evidence and instructions, there was no error in the instructions which affords sufficient ground for reversal.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding..
    Messrs. Barnum, Bubens & Ames, for appellant.

      The evidence in this ease was conflicting, and, if the testimony of Sweitzer and "Walter is to be believed at all, was very close upon the question of Hembes’ striking Pick, and, consequently, every instruction given for the plaintiff should have been perfect and complete in itself, and so clear and free from ambiguity that the jury could not possibly have been misled by it. Village of Warren v. Wright, 3 Ill. App. 602; C. & A. R. R. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550; I. C. R. R. Co. v. Moffit, 67 Ill. 431; C., B. & Q. R. R. v. Payne, 49 Ill. 499; Harvey v. Miles, 16 Ill. App. 533; Chicago, R. I. & P. R. Co. v. Harmon, 12 Ill. App. 54; C., B. & Q. R. R. Co. v. Dougherty, 110 Ill. 521; Town of Geneva v. Peterson, 21 Ill. App. 454.
    Mi*. John C. King, for "appellee.
   McAllister, J.

This was an action of trespass for an assault and battery brought by Pick against Hembes, Prenzel and Meyer. Pleas, not guilty by all the defendants, and several special pleas, upon which issue was joined. Verdict and judgment against all the defendants for $300 damages with costs. Hembes alone appealed.

Two points are made for reversal: 1. The verdict is against the clear weight and preponderance of the evidence. 2. The court erred in giving instructions to the jury on behalf of the plaintiff.

We have read the evidence and arguments of counsel. The evidence tends to support the verdict and to lay the foundation for. exemplary damages by showing a wilful, violent and unjustifiable assault and beating of plaintiff by the defendants. It is true there was countervailing testimony as respects Hembes. But it is impossible for us to determine, without having seen the witnesses and heard them testify, that there was really any preponderance in Hembes’ favor. The first point is, therefore, clearly not sustainable.

We have examined the instructions complained of. By the first the court directed the jury that if they found the defendants, or any of them, guilty, then in assessing plaintiff’s damages, the jury may take into consideration not only the bodily disability occasioned by the assault, if any is proved, but also any impairment of the plaintiff’s general health, if such is proved, and which the jury believe, from the evidence, will affect or impair his future ability to attend to his ordinary business the same as if the injury complained of had not occurred.”

The criticism upon that is, that it contains no reference, with sufficient definiteness, to the assault and battery as being the proximate cause of the impairment of the plaintiff’s general health.' The objection is not without force, but we are of opinion that it does not afford a sufficient reason, in view of all the evidence and instructions given in the case, for reversing the judgment.

The objection to the second and third instructions is in our opinion without force, because if the jury found the defendants guilty, it was, under the evidence, a case for exemplary damages.

The judgment will be affirmed.

Judgment affirmed.


text:
    Asahel Gage v. Charles B. Eggleston.

      Practice.—Decree—Evidence—When to he Preserved in Record—Bill Qujet Title.

    Under the rules of chancery practice in this State the party in whose favo the decree grants relief, must preserve the evidence in the record, unlessr the decree recites the facts proved on the hearing.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Qwynn Garnett, Judge, presiding.

      Mr. Augustus M. Gage, for appellant.
    Mr. M. M. Jones, for appellee.
   McAllister, J.

This was a bill in chancery brought by appellee Eggleston against appellant Gage, for the purpose of removing, as a cloud upon the title of certain described premises of the former, a tax sale and the certificate issued thereon' to the latter. The defendant answered, denying all material allegations of the bill, to which replication was filed. Upon the hearing a decree passed granting the relief prayed. The defendant brings the case to this court on appeal, and assigns for error, among others, that the decree is not supported by any evidence.

The record contains no depositions, master’s report .or certificate of evidence. Mor does the decree recite any facts as found by the chancellor. In such a case as this, where there is an absence of facts recited in the decree for its support, the party in whose favor the decree was rendered, must, in order to retain it on appeal or error, see to it that the evidence is preserved in the record in some of the modes recognized by the established rules of chancery practice in this State. White v. Morrison, 11 Ill. 361; Nichols v. Thornton, 16 Ill. 113; Mason v. Bair, 33 Ill. 194; Waugh v. Robbins, 33 Ill. 181; Eaton v. Sanders, 43 Ill. 435; McIntosh v. Saunders, 68 Ill. 128; Moss v. McCall, 75 Ill. 190.

In Marion v. Collins, 98 Ill. 516, the court" says: “Appellee has preserved no evidence in the record, and, according to the practice in courts of equity as announced in many cases in this court, the party in whose favor the decree granting relief is rendered, to maintain it, must preserve the evidence, or the decree must find specific facts that were proved on the hearing. It is not the duty of the party against whom the decree granting the relief is rendered, to preserve the evidence.”

For the reason, therefore, that no- facts are found by the decree, and no evidence preserved in the record in this case, the decree must be reversed and the cause remanded.

Reversed cmd remanded.


text:
    Chicago, Milwaukee & St. Paul Railway Company v. Mary Yando.

      Railroads-—Personal Injuries—Evidence—Instructions—Bill of Exceptions.

    1. Instructions not incorporated in the bill of exceptions can not be considered by this court.
    2. In an action against a railroad company to recover damages for per. sonal injuries, this court declines to interfere with the verdict for plaintiff-
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. E. Walker, for appellant.
    Messrs. Joseph S. Kenhard, Jr., and George W. Braitot, for appellee..
    It has long been the settled law of this State that railroad companies are liable for the wanton and malicious acts of their servants in control of their trains, ev.en though such acts are done contrary to the instructions of the employer. T. W. & W. R. R. Co. v. Harmon, 47 Ill. 298; C., B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; N. W. R. R. Co. v. Hack, 66 Ill. 238; C., B. & Q. R. R. Co. v. Bryan, 90 Ill. 126; C. C. Ry. Co. v. McMahon, 103 Ill. 485.
    In C. & A. R. R. Co. v. Kellam, 92 Ill. 245, where an engine driver saw, or could have seen, in time to slacken the speed of or stop his train, a lot of cattle crossing the railroad track upon a highway, but did not stop the train or slacken its speed, and killed an animal, which had escaped from its owner’s inclosure, it was held that this showed a high degree of negligence, and that the railroad company was liable for the value of the animal so killed. Among other things the court said: “ Under the circumstances, it was negligence of a high degree not to slacken the speed of the train. It was running at the rate of thirty miles an hour. The result that followed ought to have been anticipated, and it seems little less than recklessness in the engine driver not to heed the danger that was so imminent.”
   McAllister, J.

■ This was an action by the appellee against the railroad company, appellant, to recover damages for a personal injury occasioned May 15, 1885, by reason, as it is alleged, of the gross, wilful and culpable negligence of the engine driver of the defendant in running his engine against and over the plaintiff, while being inadvertently on, or in' dangerous proximity to the track on which said engine was going, and being unaware of her danger, but he, said engine driver, having seen the plaintiff and become aware of her danger a sufficient distance from her to have stopped his engine, by the exercise of ordinary care, and avoided the injury, did not do so, but ran such engine over her, inflicting a grievous and permanent injury.

Upon the trial, evidence was introduced on behalf of plaintiff which tended to prove all the elements of such a cause of action. The jury found the defendant guilty and assessed plaintiff’s damages in the sum of §5,000, on which judgment passed and defendant appealed to this court.

The only questions presented by the record as we find it, are such as arise upon a general motion for a new trial and in arrest of judgment. We have examined the bill of exceptions and find no error of law in the admission or exclusion of evidence, and that the evidence on behalf of plaintiff tended to support the verdict, and that there is no such countervailing evidence as would justify this court in interfering with such verdict. Counsel for appellant has suggested, not argued, that the court erred in refusing instructions asked on behalf of the defendant. On reference to the bill of exceptions, we find no instructions incorporated therein. Hone are therefore presented for consideration. This matter of instructions is, in this case, in the same category as in the case of Liverpool, London & Globe Ins. Co. v. Sanders, decided at this term, ante, p. 559.

Perceiving no error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Rice, Friedman & Maxwell Company et al. v. Flora Goldberg et al.

      Injunctions—Dissolution by Agreement—Damages—-Statute—Evidence —Practice.

    1. Upon appeal from an order allowing damages on the dissolution of an injunction by agreement, it is held: That the evidence is insufficient to support the order; and that it was irregular to award a sum of money to persons not parties to the suit.
    2. It seems to be doubtful whether an injunction dissolved by agreement, such agreement providing that the injunction bond may stand for damages, is within the statute providing a summary mode for the assessment of damages.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwyot Gaknett, Judge, presiding. ¡
    Rice, Friedman & Maxwell Company brought a creditors’ hill against David Goldberg, the judgment debtor, Flora Goldberg, Mathan Heufeldt and Canute R. Matson, Sheriff, and by said bill sought to have certain judgments, one in favor of said Flora and another in favor of said Hathan, entered up by confession against said David Goldberg, set aside and declared void as to plaintiff, a creditor of said David.
    Execution had been issued on the respective judgments and "were in the hands of said Sheriff, who was proceeding to sell the goods of said David thereon, December 31, 1886, upon bond of plaintiff, with sureties in the penalty of $300; an injunction was issued by order of the court enjoining the sale. January 31, 1887, the said injunction was dissolved by agreement of the parties. April 9,1887, the cause was referred to the master, and June 17,1887, he tiled his report, by which he found against the complainant upon the merits of the case. June 27th, two of the defendants to the bill, said Rathan and Flora, filed suggestions of damages by reason of the injunction,-and the complainants, on leave of court, voluntarily dismissed said bill, but no final decree was signed and entered until after July 16, 1887, when the court, upon evidence, all of which is preserved by certificate of the Judge, entered the following order:
    “ Rice, Friedman & Maxwell Company v. David Goldberg et al.

      e< This cause coming on to be heard upon the suggestion of damages filed herein, and the testimony heard in open court, and arguments of counsel, and the court being fully advised in the premises, it is ordered that the defendants’ damages be and the same are hereby assessed at the sum of $202.35, and that they have execution therefor; and it is further ordered' that the complainants pay to Blum & Blum the further sum of $60, and that execution issue therefor.”
    To which appellants objected.
    Tne stipulation on which the injunction was dissolved, was made January 14, 1887, and is as follows:
    Rice et al. v. Goldberg et al.
    “ It is herebystipulated and agreed that the injunction heretofore granted in this case be dissolved, and that the Sheriff make sale of the stock at Ro. 401 Milwaukee Avenue, not in bulk, but in such lots as shall be most conducive in bringing the largest cash price, and that he deduct therefrom his legitimate fees and hold the residue to await the order of the court on the final hearing hereof; that this cause shall be either referred to a master in chancery to take proofs and report his conclusions thereon, or that such testimony may be taken before a notary public.
    “It is further agreed that should the court, upon a final hearing, decide that Nathan Nenfeldt and Flora Goldberg are entitled to said proceeds, then the injunction bond in this cause may stand for such damages as may be adjudged by this court. }

    “It is further agreed that the Sheriff shall allow the landlord of the building, 401 Milwaukee Avenue, to retain the fixtures in payment of rent due for said store.”
    Messrs. Crattt Bros. & Ashcraft, for appellants.
    Messrs. Blum & Blum, for appellees.
   McAllister, J.

Section twelve of our .injunction statute, (1 Starr & C. Ill. Stat. 1285) provides a summary mode for the assessment of damages sustained by a party to the suit, by reason of the injunction, “in all cases where an injunction is dissolved by any court of chancery in this State,” and prescribes the contingency, condition and proceedings.

Such statutes, authorizing a summary proceeding, are usually subject to a strict construction. As in this case, the suggestions in writing can not be dispensed with except by the consent of the adverse party. Winkler v. Winkler, 40 Ill. 179. And it may be a question, whether, as in this case, where the injunction is dissolved by the mutual agreement of the parties, and that agreement provides that the injunction bond may stand for the damages, the case is one within the statute.

But we do not find it necessary to pass upon that question; for we find upon examination of the evidence upon which the assessment of damages was made, that it is insufficient to support the order appealed from, which is, in addition, irregular in awarding a sum to persons who were not parties to the suit.

Reversed and remanded.


author: Hon an, P. J.

text:
    Charles B. Phillips v. Eliphalet W. Blatchford.

      Intervening Petition by Judgment Creditor to Beach Fund in Court— Practice.

    1. One having an interest in a fund which is in court will be permitted
    to intervene and set up his interest, and, if equity so requires, his rights to the fund will be protected. " ■
    2. An intervening petition by a judgment creditor to reach a fund paid into court in an equity proceeding, for the benefit oE the judgment debtor, is sustained by this court.
    3. An objection that no process was issued or served on the judgment debtor on the filing of such petition, was waived when he appeared and pleaded to the petition.
    [Opinion filed May 31, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Eichajbd.S. Tuthill, Judge, presiding.
    This is an appeal from an order entered by the court upon an intervening petition filed by appellee in the suit of the South Park Commissioners against Charles B. Phillips et al. The suit was in the nature of an interpleader, for the purpose of settling and confirming title in the complainants of certain land described in the bill which it was claimed Phillips had contracted to convey to complainants, and in which Mrs. Phillips claimed certain interests. The decree found Phillips entitled to some forty-five acres of the land, and directed that 'the value of the same at the price of $800 per acre should bo paid into court, and that thereupon the Park Commissioners’ title to said land should be confirmed and established.
    The land was in South Park and had been selected for Park purposes. The intervening petition of appellee set up a judgment obtained in 1881 against said Charles B. Phillips, for the sum of $6,517, by default; that said Phillips had been let in to plead to said judgment, but that the judgment was to stand as security for such sum as should on a trial be found to be due; that said judgment became a lien on the land of Phillips, sought to be taken and held by the South Park Commissioners in this suit; that Phillips had no other land or property subject to execution, and prays that from the moneys found due to said Phillips from complainants, the judgment of petitioners should be paid.
    Subsequently an amended petition was filed, which recited the facts stated in the original petition and stated further that since the filing of the original petition there was a trial, and the judgment theretofore rendered was affirmed, the same to be satisfied and fully discharged upon payment of §3,250 with interest, etc., and that execution issue, etc. That execution was issued, and returned by the Sheriff, no part satisfied. Prays to be allowed to make proof, and that the court order the said judgment paid out of the money of said Phillips in court, etc. Phillips filed a demurrer, and afterward an answer to this amended petition, and there was a hearing by the court on which the allegations of the petition were found to be true, and the clerk of the court was ordered to pay from the moneys in court the amount of said judgment and interest thereon.
    From said order the appeal is prosecuted and various errors are assigned.
    Mr. W. T. Bubgess, for appellant.
    An “intervening petition” in our practice is what is called in England an examination of a party pro interesse suo. In Dan. Chy. Pr., 5th Ed., Vol. 2, p. 1058, it is said: “ The proper course to be pursued by any person who claims title to an estate or other property sequestrated, whether by mortgage or judgment, lease or otherwise, or who has a title paramount to the sequestration, is to apply to the court to direct the plaintiff to exhibit interrogatories before one of the masters in order that the party applying may be examined as to his title to the estate.” In note: The mode of proceeding is the same where the property is in the possession of a receiver. Anon., 6 Ves. 287; Angel v. Smith, 9 Ves. 336; Brooks v. Greathead, 1 J. & W. 178.
    An order for the examination of a party pro interesse suo may be obtained as a matter of course by the party claiming (Lord Pelham v. The Duchess of Newcastle, 3 Swanst. 290, N.), but it can not be granted till after the sequestrators liax’e made a return, because till then it can. not appear to the court xvhat is sequestered. (Ibid.) “The application maybe made either by motion or petition (Hunt v. Priest, 2 Dick. 540). If made by the former it should be supported by affidavit stating the facts under which the claim arises. If made by the latter the petition ought to state the circumstances.”
    In the case at bar it can not be contended for a moment' that the facts stated gave the petitioner any lien on a fund not then paid into court.
    From the cases it would seem that a party must have, 1st, a lien of some sort; 2d, there must be a fund or property under the control of the court to which the lien or right has attached, to protect which it is necessary for the petitioner to come before the court.
    The mere recovery of a judgment and the issue of an execution and its return of nulla bona gave no lien to Blatchford on anything specified in his petition; no land is described.
    Hr. David Faxes, for appellee.
   Hon an, P. J.

It is urged for the purpose of reversing the decree that the court had no jurisdiction, no process having ever been issued or served on Phillips. That objection is obviated by his having appeared and pleaded to the petition. It is also contended that the proper practice was not pursued by the court; that petitioner could not be allowed to intervene in such a case, but that he must seek his remedy by original bill. The allegations of the petition, which are fully supported by the proof, show a judgment which was a lien on the land which was taken by the Park Commissioners. By the decree, the land on which the lien existed was converted into money, and the fund was in the hands of the court.

There was no other property except this fund from which petitioner could obtain satisfaction of his judgment. A person who has an interest in the fund which is in court, or in the hands of a receiver, will be permitted to intervene and set up his interest, and, if equity requires it, his rights to the fund will be protected and his interest administered upon.

It is the ordinary function of a court of equity to settle claims of creditors and others to funds in its hands. Derrick v. Lamar Ins. Co., 74 Ill 404.

The petition contained all the allegations which would be necessary in a creditor’s bill. Appellee had his day in court upon the issue. The court would not permit a levy upon the land nor a garnishment of the fund, and to pay out the fund to the debtor without protecting the rights of the creditors would be unjust. Hone of the technical objections to the decree are well taken, and the proceedings of the court were fully authorized by the rules of modern practice. Marsh v. Green, 74 Ill. 385; Soles v. Sheppard, 99 Ill. 616.

There is no error, and the decree of the Circuit Court will therefore be affirmed.

Decree affirmed.


author: Bailey, J.

text:
    The Cheltenham Improvement Company v. William H. Whitehead.

      Trust Deeds—Foreclosure—Affirmative Relief—Waiver by Party Defendant—Apportionment of Taxes—Solicitor’s Fees and Expenses— Agreement, Strictly Construed—Practice.

    1. In a proceeding to foreclose a trust deed, a party defendant, after having been defaulted, can not claim affirmative relief.
    2. An agreement contained in a trust deed to pay the fees of complainant’s solicitor and other expenses, in case of foreclosure, being contrary to the general public policy of this State, will be strictly construed.

      3. In the case presented, Ihe agreement to pay such fees and expenses is held to be inapplicable, the suit having been instituted by the eestui que ¿rust instead of by the trustee.
    4. Where the record contains two decrees, one having been vacated anc! the other entered at a subsequent term, and errors have been assigned on both, followed by a joinder in error, this court may review both decrees.
    [Opinion filed May 31, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. Frederic Ullmau, for appellant.
    Messrs. Whitehead & Pickard, for appellee.
    The default of the appellant, and the taking of the hill pro confesso, admits all the allegations of the bill. Rev. Stat. Chap. 22, See. 16; Moore v. Titman, 38 Ill. 357; Sullivan v. Sullivan, 42 Ill. 316; Cronan v. Frizell, 42 Ill. 319; Thompson v. Dearborn, 107 Ill. 87.
    The court had a right, at any time, on motion, to correct clerical errors in the decree. Daniell’s Ch. Practice (5th Ed.) p. 1029 et seq., and authorities cited; Miller v. Rushforth, 3 Green Ch. (N. J.) 174; Thompson v. Goulding, 5 Allen, 81, 82; Cox v. Garst, 105 Ill. 342; Cooley v. Scharlett, 38 Ill. 316.
    Although “final,” in the sense that an appeal would lie from it, the decree was still in the power of the court, and" the cause pending until the master had filed his report of sale, and a final order or decree entered confirming it. Reid et al. v. Morton, 119 Ill. 118, 132.
    Even if there were error in vacating the first decree and entering a new one by a supplemental order, such order and decree were entered by the consent of all parties not in default; such entering was beneficial rather than harmful to appellant, and the decree should not be reversed for error that worked no harm to appellant. Hahn v. Huber, 83 Ill. 243; Hannas v. Hannas, 110 Ill. 53; Draper v. Draper, 68 Ill. 17.
   Bailey, J.

This was a bill in chancery to foreclose a deed of trust. The facts disclosed by the record, so far as they are material to the questions presented by the appeal, are substantially as follows: On the 28th day of [November, 1880, Ira IST-Herrick executed two promissory notes for §17,040 each, payable to the order of Franklin H. Watriss in one and two years after date, with interest, and to secure their payment, executed a deed of trust to George W. Smith as trustee, conveying six separate parcels of land. The first note was paid at maturity? and two of said parcels of land were thereupon released from said deed of trust. Partial payments were made on the other note, and. the present bill was brought to foreclose the deed of trust for the residue remaining unpaid.

The deed of trust contained, among other things, a covenant that the grantor would, in due season, pay all taxes on said lands, and, in ease of Ms refusal or neglect so to do, the grantee, or his successors in trust, or the holder of said notes, or either of them, might pay such taxes, and that the moneys thus paid, with interest thereon at the rate of eight per cent, per annum, should become so much additional indebtedness secured by said deed of trust, to be paid out of the proceeds of the sale of said lands, if not otherwise paid by the grantor. Said deed of trust also contained the following provision:

“In case of default in the payment of said promissory notes, or either of them, or any part thereof, according to the tenor and effect of said notes, "s * * or in case of waste or non-payment of taxes, * ~ * or in ease of a breach of any of the covenants or agreements herein mentioned, then and from thenceforth it shall be lawful for the said party of the second part, or his successor in trust, or the person who may be appointed by the court to execute this trust, on application of the legal holder of said promissory notes, or any of them, to enter into and upon or take possession of the premises hereby granted, or any part thereof, and collect and receive all rents, issues and profits thereof, and in his own name or otherwise file a bill or bills in any court having jurisdiction thereof against the said' party of the first part, his heirs, executors and assigns, to obtain a decree for the sale and conveyance of the whole or any part of said premises for the purposes herein specified, by said party of the second part as such trustee, or as special commissioner, or otherwise, under order of court, and out of the proceeds of any such sale to first pay the costs of such suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part or person who may be appointed to execute this trust, and five (5) per cent, on the amount of such principal, interest and costs'for attorney’s and solicitor’s fees; also all other expenses of this trust, including all moneys advanced for insurance, taxes and other liens or assessments, with interest thereon at eight per cent, per annum, then to pay the principal of said notes, whether due and payable by the terms thereof or the option of the legal holder thereof, and interest due on said notes up to the time of such sale, rendering the overplus, if any, unto the party of the first part, his legal representatives .or assigns, on reasonable request.”

Prior to filing the bill, William H. Whitehead, the complainant, became the owner of the unpaid note by purchase, and Herrick conveyed all of said parcel of land to A. B. Meeker, who, in turn, conveyed three of the foxir tracts not released from the deed of trust to the Cheltenham Improvement Company. The bill makes the Cheltenham Improvement Company, George W. Smith, the trustee, Herrick, the maker of the notes, and various other parties who had or claimed some interest in the premises, parties defendant. The default of the Cheltenham Improvement Company was duly entered, and on reference to the master it was found that the balance, principal and interest, due on said note, was $13,182; that the complainant had been compelled to pay out the sum of $1,000 to redeem a portion of said premises from a tax sale; that he had paid out for an abstract of title, and for the procui'ement of certain information or data necessary to be used in preparing and filing the bill the sum of $260. To this the master added five per cent, of the amount found due? being $719, for solicitor’s fees, thus making a total of $15,161. The master’s report was approved, and a decree entered, fixing the amount due on tire deed of trust at the last mentioned sum, and awarding a sale of said premises therefor. The Cheltenham Improvement Company has appealed to this court.

Ho complaint is made as to the amount of principal and interest found due on said note, the controversy being as to the other items allowed by the master. It is claimed that the tax sale from which the complainant was compelled to redeem was not for taxes assessed upon either of the parcels of land conveyed by Meeker to the appellant, but upon the fourth parcel not released from the deed of trust, and that the decree should have placed the entire burden of that item upon that particular tract. If it be admitted that the appellant had a right to the relief here suggested, such right arose from general principles of equity and not from the terms of the deed of trust. That instrument provided that any money paid by the holder of the note for taxes should be so much additional indebtedness secured generally by the deed of trust, and the money so paid was made a lien on all the tracts conveyed. The appellant’s right to have the taxes paid apportioned to the particular tract upon which they were assessed, if such right existed, grew out of the conveyance to it, subsequent to the execution of the deed of trust, of the residue of the premises covered by that instrument. Such apportionment of taxes was, therefore, a matter of affirmative relief which the appellant could obtain only by answer, or, perhaps, by cross-bill. The appellant, after having suffered a default, was clearly debarred from claiming it.

We are of the opinion that the other two items in dispute should have been disallowed. It is not the general policy of this State to charge the defeated party to a suit with the payment of the fees of the attorney or solicitor of the opposite party, or any other expenses of the litigation incurred by such party beyond what are properly known as costs. It is true a defendant may obligate himself by agreement to pay the fees of the complainant’s solicitor, or other expenses of the suit, but such agreement, being a departure from the general public policy of the State, should be strictly construed, and should not be extended to any case not within its precise terms.

The deed of trust in this ease provides for the payment of solicitor’s fees and other expenses of the trust in ease of the execution of the trust by the trustee or his successor, but makes no similar provision for the expenses of a suit brought, not by the trustee but by the party secured. Such suit is essentially different in its character, and in some of its legal consequences, from a suit brought by the trustee himself to enforce the trust. Where the party secured brings his bill to foreclose, the security is treated as a mere mortgage and not as a deed of trust. In such suit no attempt is made to execute the powers vested in the trustee or to take advantage of those provisions of the instrument which apply specifically to an execution of the trust by him. Those provisions are abandoned, and the cestui que trust seeks to avail himself of his equitable rights as mortgagee, without reference to the powers vested in the trustee.

It is urged that the language of the trust deed in relation to solicitor’s fees and expenses, if properly interpreted, should be held to apply as well to suits brought by the holder of the note as by the trustee. We think otherwise. It is true the provision authorizes the trustee or his successor, in case of default, to enter into the mortgaged premises, and in his own name, or otherwise, to tile a bill to foreclose, and to obtain a decree for the sale of said premises by him as trustee, special commissioner, or otherwise. It is manifest that all these provisions relate to a foreclosure suit instituted by the trustee, and not by the cestui que trust. It is equally clear that this is not such suit. The holder of the note, and not the trustee, is the actor, and this is in no way changed by the fact that the trustee is named as a party defendant.

We are of the opinion that the complainant, at the date of the decree, was entitled to a decree for said sum of $15,161, less the two sums of $719 and $260, that is, for the sum of $14,182.

The decree, as originally entered, after including $719 for solicitor’s fees, and thus making up the sum of $15,161, directed the master, in making distribution of the proceeds of the foreclosure sale, to pay the complainant’s solicitors, as their fees, five per cent, of the amount of such sale, and to pay to the complainant out of the residue the full sum of $15,161, thus including the solicitors’ foes twice. This, as soon as discovered, was conceded to be an. error, and, for the purpose of eliminating it from the record, the court, at a term subsequent to the one at which the decree was entered, on motion of the complainant, vacated the decree and entered'a new decree in all respects like the former one, except that it omitted said clause in relation to the payment to the complainant’s solicitors of said five per cent, of the amount of the sale. It is from the second decree that this appeal was prosecuted.

Counsel have devoted considerable time to a discussion of the position in which the case is placed by the new decree, the appellant claiming that the term having elapsed the court had lost jurisdiction of the case and that the second decree is, therefore, void. On the other hand, it is suggested that if such be the case, the original decree stands in full force, and, as no appeal was prayed from that decree, it is not before this court for review. It does not seem necessary for ns, however, to determine the soundness of either of the views here presented. The second decree, for the reasons already stated, must be reversed, and, so far as that decree is concerned, it becomes immaterial whether it is void or not. The original decree, though not appealed from, is brought to this court in the transcript of the record, and the appellant has assigned for error the entry of that as well as of the subsequent decree. The appellee has joined in error without in any way challenging the scope of the assignments of error, and so can not insist that the original'decree is not before ns. Although the appeal only brought up the second decree, yet, as errors have been assigned on both decrees, followed by a joinder in error, or that which, under our practice, is equivalent to such joinder, the whole record may he treated as being before us on writ of error. Both decrees then being here, and both being erroneous, they will both be reversed, and the cause will be remanded to the court below with instructions to enter decree for the amount due the complainant, omitting said two items of $719 and §260, and computing interest on the amount found due the complainant up to the date of such decree.

Decree reversed.


author: Morar, P. J.

text:
    John A. Elison et al. v. Meyer Wulff.

      Sales—Auction—Action against Auctioneer—Mistahe—EoiSence—Question for Jury.

    1. An action lies against an auctioneer, who has assumed the delivery of goods sold by him, for failure to deliver.
    2. In the case presented, it was a question of fact for the jury, whether the defendants undertook to deliver the goods in question.
    [Opinion filed May 31, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Freeman & Walker, for appellants.
    All the witnesses for appellee state that they .knew appellants’ business to be that of auctioneers. It appears,therefore, that appellants took special pains to disclose their character as agents by the postal card, by the advertisement, as well as by the knowledge conveyed to appellee, that appellants were acting in the character of auctioneers and agents only. Hence, appellants could not be liable upon any contracts of sale made by them as such agents. Milligan v. Jones, 77 Ill. 373.
    The half barrel of cherries having been put up for sale by mistake, both as to contents and ownership, and bid ofi by Wulff by mistake as to contents, the minds of the parties did not meet; there was no contract and no valid sale.
    Says “ Parsons on Contracts,” 5th Ed. p. 475: u There is no contract unless the parties thereto assent, and they must assent to the same thing in the same sense.” And on page 494 of the same edition the author used the following language, speaking of sales at auction: “ And even if it be provided in the terms of the sale that any error or misstatement in the description shall not avoid the sale, but be allowed for in the price, said provision will not cover any misstatement of a substantial and important character; but the purchaser may, on that ground, rescind the sale; as, if an auctioneer sells lot A to one who in good faith, without fault, supposes he is buying lot B, there is no sale and no contract between the parties for want of agreement of minds.”
    Mr. H. C. Berrett, for appellee.
   Morar, P. J.

Appellants, Elison, Flersheim & Company, were engaged as auctioneers to sell at auction the wholesale stock of groceries of S. P. Farrington & Com]'any. They sent out postal cards to the trade, announcing the sale, in the following words:

“Auction Notice. S. P. Farrington & Co., 4 and 8 Lake Street, retiring from business, will sell their entire stock of groceries at auction, Tuesday, January 29th, at 10 a. m. Also store fixtures, 1 iron safe, etc.

“Elisor, Flersheim & Co.,
“ Auctioneers.”

Appellants also advertised the sale in a newspaper in substantially the same terms as in the card. Appellee claims to have heard of the sale from an acquaintance, but admitted receiving a card with notice of the auction.

He attended the sale and purchased a number of articles, and, among other things knocked down to him, was a “ barrel and contents,” at the price of 60 cents. Though it does not appear that what the barrel contained was stated at the time it was sold, it was supposed by appellee to contain dried currants; but, on examination after it was knocked down to him, he found it contained dried cherries, and was, therefore, worth upward of $30. When appellee came to remove and pay for the goods which he had purchased, he was told by the clerk of appellants that the “barrel and contents” had been previously sold at private sale by Farrington & Compaq and rolled in the lot by mistake. The “ barrel and contents ” were crossed off the bill that had been made of the goods which appellee bought, and the 60 cents deducted, and appellee paid for the remainder of the goods sold to him and took them away: appellants’ clerk delivering the goods to him, and a bill of the items headed, “Bought of Elison, Flersheim & Company, Auction and Commission Merchants,” and indorsed at the foot, “'Paid E. F. & Co.”

The next day appellee returned and demanded the barrel of cherries and tendered to appellants’ clerk the 60 cents, but the clerk said he had not got the barrel a.nd could not deliver it. The sale was had at Farrington’s store, and appellee knew that appellants were auctioneers.

Appellee recovered in the court below a verdict for the sum of $34, and to reverse the judgment entered thereon it is urged: 1st, that there was no contract, as the putting up the barrel-was a mistake, it having been sold previously at private sale; 2d, that the appellants acted as agents of Farrington & Company in making the sale, and, therefore, the suit, if it can be maintained at all, should be against the principal, and not against appellants.

To the first point it may well be said that there is no evidence in the record from which it must be concluded that there was any mistake in the sale of the barrel.

Appellants’ clerk swears that he found out from Farrington & Company that the barrel had been included in the goods sold by mistake. That is evidence merely as to the conclusion he arrived at from what some one told him, but is very far from being evidence of the truth of the alleged fact. But if the barrel ought not to have been sold, then, in selling it, appellants exceeded their authority and are liable to the purchaser upon the implied warranty of authority. Story on Agency Sec. 264; White v. Madison, 26 N. Y. 117; Bateman on Auc tions, 33.

On the second point the rule of law is well settled. Story says, Sec. 267: “ Thus, where a contract is made with an auctioneer for the purchase of goods at a public sale, and no disclosure is made of the principal on whose behalf the commodity is sold, the auctioneer will be liable to the purchaser to complete the contract, although, from the nature of the public sale, it is plain that he acts as agent only.” In Babington on Auctions, 9th Law Library, Sec. 185, the rule is thus stated: “When an auctioneer does not disclose the name of his principal at the time of the sale, he is personally liable to an action for damages for not completing the contract.” And in Addison on Contracts, it is said: “If an auctioneer sells commodities without saying on whose behalf he sells them, the purchaser is entitled to look to himporsonally for the completion of the contract.” Mills v. Hunt, 20 Wend. 431.

This rule seems to be applied most strongly against an auctioneer who sells personal property or merchandise, for the reason that he has a possession coupled with an interest in the goods which he is employed to sell, and not a more custody. In Williams v. Millington, 1 H. Bl. 81, Lord Loughborough said: “ An auctioneer has a possession coupled with an interest in goods which he is employed to sell, nota bare custody like a servant or shopman. There is no difference whether the sale he on the premises of the owner or in a public auction room, for on the premises of the owner an actual possession is given to the auctioneer and his servants by the owner, not merely an authority to sell. I have said a possession coupled with an interest; hut an auctioneer has also a special property in him, with a lien for the charges of the sale.”

In Woolfe t. Horne, 2 Q. B. D. 355, Field, J., citing Williams v. Millington, says: “It must be remembered that auctioneers have much larger rights than ordinary agents. The actual delivery of the goods is intrusted to them; they have a lien on the goods for the charges, and their possession of the goods is complete till delivery. How, assuming the defendants could have sued the plaintiff for the price of the goods, had not the plaintiff a correlative right to sue them for the non-delivery ? ”

The case in which the above language was used, was an action against the auctioneers for a failure to deliver where the printed notices or catalogues issued, were headed: “ Great Western Eailway Company. Catalogue of unclaimed property, etc., which will be sold at auction by Messrs. H. &. E. (the defendants), on Tuesday, etc. By order of the directors of the above company,” etc.; and it was claimed on behalf of the auctioneers that they had disclosed their principals and were, therefore, not liable, but the court held that the action was properly brought against them for a failure to deliver.

In Jones v. Littledale, 6 Adolph. & E. 468, the case went against the auctioneers, on the fact that after the auction they made a bill of the goods in their own names, though the advertisement of the sale disclosed the names of the owners. How, in the case at bar, appellants made the bill or invoice of the goods in their own names, collected the money for the goods and assumed the delivery of the goods. This was all in the line of their regular duties as auctioneers, and we can not say that it did not justify the inference that in making the sale they did undertake to deliver to the purchaser the goods sold. The question as to whether they made such a contract with appellee in this case, was one of fact for the jury to determine from a consideration of all the evidence in the case. Though appellants were certainly dealing as agents, it does not follow that in view of their calling and all the circumstances in the case they did not bind themselves at the same time they bound their principals.

As the instructions given by the court below were more favorable to the defendants than the authorities would warrant, appellants can have no advantage of errors of law, and we do not feel authorized to say, in view of all the circumstances, that the jury drew the wrong inference of fact.

The judgment will therefore be affirmed.

Judgment affirmed.


author: Bailey, J„

text:
    Chicago, Milwaukee and St. Paul Railway Company v. Arthur C. Harper.

      Railroads—Personal Injury—Negligence—Question for Jury—Bill of Exceptions—Instructions,

    1. In an action against a railroad company to recover damages for a personal injury, resulting in the loss of ail eye, this court declines to interfere with the verdict for the plaintiff, the evidence being conflicting.
    2. The question of negligence is a question of fact for the jury, to be determined by them in view of all the facts and circumstances disclosed by the evidence.
    3. Instructions not contained in the bill of exceptions can not be considered by this court.
    4. Where the original bill of exceptions is brought to this court, directions therein to the clerk of the court below to insert instructions and their appearance in the transcript, is insufficient.
    [Opinion filed May 31, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. E. Walker, for appellant.
    The plaintiff charges the defendant with negligence in the manner of prosecuting its work of repairing its rails, but the work was being prosecuted in the usual and ordinary manner, and such method was not calculated to cause the injury to the plaintiff, or other persons in the immediate vicinity of the work. If this usual method would cause chips or pieces of iron to be thrown in all directions, it is certain -that this idea had never occurred to the track repairers, or even to the plaintiff, until after this injury. The defendant had the right to construct, to maintain and operate its tracks in Horth Branch Street, and it can not be held liable for injuries resulting from this work, unless it be clearly shown that such work was being prosecuted in a negligent, reckless or careless manner. If this injury had occurred from the driving of a spike during the time of constructing the track, it could not be claimed that the company would be liable, xmless it was shown that it was performing sxxch work in a negligent or careless manner. If, while a train had been passing upon these tracks, a small piece of steel or iron had been thrown from the wheel or track, causing injury to the plaintiff, we apprehend the court would not hold that the company was liable for the results of sxxch injury. The same rule shoxild be applied inthi.s case as to the municipality, in a case where an injury is sustained by one of the public, at a time when the city was en. gaged in repairing its streets. It has the lawful right to make all necessary or needful repairs. It has the right to lay stone walks upon the public thoroughfares; and while such work is being prosecuted, both hammer and chisel are constantly being used, and pieces of stone are thrown in different directions. If a person passing along a street, observing the prosecution of such work, and knowing the danger (if sxiclx woi’k is really dangerous), stops or passes so near the repairei’s as to he injured, would it be held that the city would be liable for the consequences of sxxch injury ? If so, no case has been reported, and certainly the city has not been called upon to respond in damages for the result of such injury. The injury of the plaintiff was the resxilt of an accident—pxxrely an accident and nothing more; and the courts have never held that a party was responsible for all accidents that occur daily in the ordinary avocations of life. The ordinary rxxle is, that an injux-y without negligence must be attributed to unavoidable accident, for which there can he no recovery. Shearman and Redfield on Negligence, Sec. 5; Patterson’s Railway Accident Law, 35; Dygert v. Bradley, 10 Wend. 469; Stewart v. Hawley, 22 Barb. 619; Lawler v. Barring Boom Co., 56 Me. 443; Garris v. P. & R. R. R. Co., 23 N. C. 324; City of Aurora v. Pulfer, 56 Ill. 270; City of Centralia v. Krouse, 64 Ill. 20.
    Mr. E. A. Sberbtjene, for appellee.
   Bailey, J„

This was an action on the case, brought by Arthur 0. Harper against the Chicago, Milwaukee and St. Paul Bailway Company, to recover damages for a personal injury. At the time of said injury certain of the employes of the defendant were engaged in repairing one of the defend-, ant’s railway tracks running along a public street of the City of Chicago, and were in the act of cutting a piece off from the end of a bar of railroad iron by means of a cold chisel and hammer or beetle, and as the plaintiff was crossing the street or standing near where said employes were at work, a small piece of iron was broken off from the iron bar or hammer and flew and struck him in the face and put out his left eye. The cause being tried by a jury, the issues were found in the plaintiff’s favor and his damages assessed at 85,000, and judgment was rendered accordingly.

The evidence as to the negligence of the defendant’s employes and as to the contributory negligence of the plaintiff, is conflicting, but the jury having resolved the conflict in favor of the plaintiff, we see no ground for disturbing their finding. The question of negligence is a question of fact for the jury to be determined by them in view of all the facts and circumstances disclosed by the evidence, and as we are unable to perceive that they have misconstrued or misconceived the evidence, or that they have been actuated by passion or prejudice, we must accept their finding as conclusive.

Some complaint is made of the rulings of the court in giving and refusing instructions to the jury, but as the instructions do not appear in the bill of exceptions they are not open to review in this court. The original bill of exceptions is brought here by stipulation in pursuance of the recent statute in that behalf, and, on examining that document, we find that the defendant, instead of copying the instructions into the bill of exceptions, has merely inserted in the proper places directions to the clerk to copy them. Had the clerk prepared a transcript of the record in the usual way, he might doubtless have obeyed these directions, and thus embodied the instructions in the transcript of the bill of exceptions. As the original, however, has been brought here, we are compelled to consider it as we find it, and we are thereby left wdiolly without information from the record as,to what instructions were given or refused.

The original bill of exceptions is attached to and forms a part of the same document with the transcript of the record proper, and following the bill of exceptions are also included, in the same document, several papers which, from their appearance, we may suppose are the original instructions to the jury. There is nothing, however, either in the recitals or certificates of the clerk, or otherwise, identifying said papers or giving any information as to what they are, and there is certainly nothing appearing from which we have any right to assume that they are the instructions referred to in the bill of exceptions. Indeed, as they now appear, they are no part of the record, and can not properly be considered by us for any purpose.

Where parties expect to bring the original bill of exceptions to this court under the provisions of our present statute, they should see to it that all documents which they desire to preserve in the record are copied into the bill of exceptions in extenso, as it is manifest that the loose practice of merely inserting a direction to the clerk to copy such documents in the transcript can not avail them.

As there is no apparent error in the present record the judgment will be affirmed.

Judgment affirmed. ,