author: Mr. Presiding Justice Shurtleff

text:
    A. V. Vail, Administrator of the Estate of Thomas Edgar Vail, Deceased, Appellant, v. Benjamin M. Graham, Appellee.
    Gen. No. 8,373.

      Heard in this court at the October term, 1929.
    Opinion filed October 29, 1930.
    Downing & Helfrich, for appellant.
    A. L. Hainline and Walker & O’Harra, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This was an action of case brought under the Injuries Act, Cahill’s St. ch. 70, if 1 et seq., by the administrator of the deceased for damages for the death of a nine-year-old boy, killed by the automobile of the appellee, driven by him.

The declaration consisted of two counts, the first count charging that the death was caused by the negligent driving of the appellee, and alleges due care on the part of the deceased; the second, or additional count, contains the same averments as the first, and the additional averment of due care on the part of the next of kin of the deceased. The general issue was pleaded to each count and special pleas to the second or additional count were filed, pleading the statute of limitations.

The leading facts which the evidence tended to prove are as follows: The deceased was a lad nine years of age, the son of appellant. He was killed on the hard road four miles east of Macomb, in front of his home, on June 24,1927, by an automobile driven by the appellee.

The only eye witnesses to the killing were the appellee and the mother of the boy, who was ruled to be an incompetent witness and not permitted to testify, and the facts in relation to the accident were proven by circumstances only.

The place where the accident occurred is described briefly as follows: The hard road runs east and west past the Vail dwelling house or home. The house faces south and just across the slab south from the house, 62 feet from the front yard fence, is their mail box, four feet south of the slab. One hundred seventy-eight feet west of the mail box, on the north side of the slab, is a concrete abutment to a culvert in the road at the entrance to the barnyard of the Vail place. East of the mail box 200 feet a side road comes into the hard road from the north, and 330 feet east of the mail box a side road comes into the hard road from the south. A road sign which reads, “Look — Side Eoad,” is in the hard road on the north side of the slab, 718 feet east of the mill box. The land at and surrounding the Vail home is level prairie land and the hard road is level and clear of obstacles to the view of one driving-on the hard road.

The accident occurred about 10:30 o’clock, a. m. The appellee, while driving- his automobile west on the hard road, struck the boy while he was in close proximity of the mail box in front of the Vail residence. Immediately after the accident there were two human teeth found near the mail box on the south side of the road and a blood spot “about the size of your two hands” was on the pavement on the south side of the slab about midway between the black line in the center of the pavement and the south edge of the pavement, and about 15 feet northwest of the mail box. There was another blood spot and a piece of the boy’s coveralls on the grass south of the slab and about 70 feet west of the mail box.

At the place the boy was struck, the automobile was going at such speed and momentum that it skidded with the wheels locked for a short distance of 178 feet, where it struck the concrete culvert and turned over. There were black skid marks of the tires on the pavement, beginning on the north side of the pavement opposite the mail box and extending in a westerly course along the pavement and off onto the dirt on the south side of the pavement and back onto and transversely across the pavement to where the car struck the concrete abutment and turned over at the culvert — a distance of 178 feet.

The evidence tended to show that the appellee was driving at a rate of speed of 50 miles an hour when he struck the boy; that the boy was on the south side of the pavement near the mail box when he was struck and that he was thrown or dragged to a point about 70 feet southwest of the mail box and instantly killed. At the close of the appellant’s evidence, on motion of the appellee, the court directed a verdict in favor of the appellee for the alleged reason that there was no evidence of due care on the part of the next of kin and of the deceased at the time of the accident. Judgment was rendered against the appellant, from which an appeal was prayed for, allowed and perfected, to this court.

On the trial there were some slight errors in rulings upon evidence, which doubtless will be corrected upon another hearing.

Appellant contends that there were sufficient facts in evidence to warrant the jury in passing upon the due care and caution on the part of the deceased. It is error to direct a verdict for the defendant if there is any evidence of reasonable inference from facts proven, viewed in the light most, favorable to the plaintiff, which tends to prove the essential allegations of the declaration. (Devine v. Delano, 272 Ill. 166; Wilcox v. International Harvester Co., 278 Ill. 465; Allen v. United States Fidelity and Guaranty Co., 269 Ill. 234; Chicago and Northwestern Ry. Co. v. Dunleavy, 129 Ill. 132; Libby, McNeill & Libby v. Banks, 209 Ill. 109.) On motion to direct a verdict, it is not the province of the court to consider whether "the evidence is weak or strong. (Knipping v. Chicago Telephone Co., 184 Ill. App. 48; Vaughn v. Chicago Junction R. Co., 249 Ill. 206.) The evidence in favor of the party against whom the motion is directed must be considered in its most favorable light to him, together with all inference in his favor which can be legitimately drawn therefrom. (Carrott v. Michelmann Steel Const. Co., 158 Ill. App. 207; Gleason v. M. P. Byrne Const. Co., 202 Ill. App. 169; Walldren Express & Van Co. v. Krug, 291 Ill. 472; American Art Works v. Chicago Picture Frame Works, 264 Ill. 610.) If there is any evidence which tends to prove the material allegations of the declaration, the motion should be denied, even though the court is of the opinion that the verdict for the plaintiff, if given, should be set aside. (Libby, McNeill & Libby v. Cook, 222 Ill. 206.) If there is evidence tending to prove any one count of the declaration, it is error to direct a verdict. (Galanos v. Springfield & Northeastern Traction Co., 164 Ill. App. 17; Cook v. Chicago, R. I. & P. R. Co., 153 Ill. App. 596; Heidenreich v. Bremner, 260 Ill. 439; Bagaini v. Donk Bros. Coal & Coke Co., 199 Ill. App. 76; Arnold v. Bournique, 144 Ill. 132.)

Under the proofs in this case, it cannot he contended that it was necessary to allege and prove due care on the part of the next of kin, where it is shown directly, by proper testimony, or from facts and circumstances from which it may be inferred that the deceased was in the exercise of ordinary care in his own behalf. Chicago City Ry. Co. v. Robinson, 127 Ill. 9, 13. Under the proofs there can be no question but that appellant was entitled to have the cause submitted to the jury on the question of the negligence of appellee.

As to evidence tending to prove due care on the part of the deceased, there is direct evidence that the deceased was a boy nine years of age and was killed by appellee in front of his parents’ home on the hard road; that immediately after he was killed, human teeth and a blood spot “the size of your two hands” were upon the south side of the pavement, about midway between the black line in the center of the pavement and the south edge of the slab, in close proximity to the mail box and to the northwest of it; that there was another blood spot on the grass and a button and piece of coverall of the same material as that in which the boy was dressed when killed, about 70 feet west of the mail box; that the boy’s parents were both at home when the accident occurred; that immediately before the accident, appellee was driving west on the pavement near the place where the boy was killed, and that immediately after the accident his car was overturned on its side on the culvert 178 feet west of the mail box at the end of black skid marks on the pavement, starting opposite the mail box.

These proven facts and all reasonable inferences which may be drawn therefrom must be considered, under the authorities, supra, in a light most favorable to appellant as evidence in the case. From the proven fact that the boy was killed on the pavement in front of the house, there is a fair inference that the blood spot there was his blood; that there was where he received the fatal blow; this is a reasonable and legitimate inference from the facts proven and was evidence which should have been submitted to the jury for them to pass upon the question of due care on the boy’s part. If he was on the south side of the slab, where he had a right to be, and was there struck by a car illegally driven on the wrong side of the road where it had not a right to be, proof of any fact or any legitimate inference from a proven fact which tends to prove that he was there, or that the car was there, is certainly evidence which appellant was entitled to have submitted to the jury.

It might be contended that other proper inferences might be drawn, from these proven facts, adverse to the contention of appellant; but the law is that where a verdict is directed, all facts and inferences must be considered in a light most favorable to the appellant, and if such facts and inferences when so considered, tend to prove appellant’s case, it is error to take the case from the jury. The mere fact that deceased was on the south side of the slab when struck, is sufficient in and of itself, in the absence of other evidence, to establish due care on his part. As was said in Walters v. City of Ottawa, 240 Ill. 259, 265, by Mr. Justice Dunn in commenting on the case of Chicago City Railway Co. v. Cooney: “That was an action on the case for personal injuries, in which the original declaration, consisting of a single count, contained no averment that the plaintiff was in the exercise of ordinary care for her own safety. An amended count containing such allegation was filed and a demurrer was sustained to a plea of the Statute of Limitations thereto. The judgment was affirmed, the court saying that the original count stated a cause of action, though defectively, for the reason that it would have been sufficient after verdict, on motion in arrest of judgment. If it would have been sufficient after verdict, on motion in arrest of judgment, it was because the exercise of due care by plaintiff might be implied from its allegations by fair and reasonable intendment. She was a passenger, and the allegation of the original count was, that she was seated in the car, when, through the negligence of defendant’s servants, it collided with a wagon loaded with heavy iron pipes and she was thereby injured. This allegation of the plaintiff’s position at the time of the accident might be regarded as sufficient to show, by implication, that she was at that time acting as a person in the exercise of ordinary care for her own safety would act and to justify proof of such fact.”

If the legitimate proofs in this case show, or from which it may be reasonably inferred, that the deceased was on the south side of the cement slab where he had a right to be when he was struck, and that appellee’s car struck the deceased at a place where appellee’s car had no right to be, then, in the opinion of this court, it was sufficient proof of due care on the part of the deceased, that the cause should have been submitted to a jury.

Upon a petition for a rehearing, presented by appellee and granted, and upon a full reconsideration of the case, we are compelled to adhere to the rule laid down in the former and foregoing opinion. The Supreme Court has held in Maskaliunas v. Chicago & Western Indiana R. Co., 318 Ill. 142, 150, that as to children between the ages of seven and fourteen years, the question as to their age, intelligence, understanding and ability to care for their own safety, is always a question for the jury and, that, ‘ ‘ The law is clearly established by great weight of authority, that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.” ,This rule appears to "be based upon ample authority and was followed by the court later in Deming v. City of Chicago, 321 Ill. 341.

As to the parents of the child, it would appear that no contributory negligence could be imputed to them for permitting a boy nine years of age, in the broad daylight, on an open level prairie, in a farming community, to cross a cement highway, to a mail box, or to be in a highway, for any legitimate purpose. The proofs in this case would warrant the inference that the boy was on an errand to the mail box.

Accordingly, we adhere to the former opinion and the judgment of the circuit court of McDonough county is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Emma C. Dean, Defendant in Error, v. Yelloway Pioneer System, Inc., Plaintiff in Error.
    Gen. No. 8,409.

      Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    John E. Cassidy, for plaintiff in error.
    Harold F. Trapp and Peter Murphy, for defendant in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This writ of error is to obtain relief from a judgment of $7,500 entered by the circuit court of Logan county against plaintiff in error, Yelloway Pioneer System, Inc., a corporation, and in favor of Emma C. Dean, defendant in error.

The declaration consists of two counts. The first count avers that defendants Pioneer Stages, Inc., and Yelloway System were common carriers by motorbus from East St. Louis to,Chicago; that on October 12, 1928, Sinclair Refining Company operated and maintained at Lincoln a passenger station for receiving and discharging passengers transported by said defendants.

It is also alleged that defendants Pioneer Stages and Yelloway, together with Sinclair Company, then and there possessed, maintained and used said passenger station; that on October 12, 1928, Emma C. Dean purchased from said defendants a ticket for passage by bus from Lincoln to Chicago; that on account thereof it became the duty of said defendants to exercise the highest degree of care and diligence for the safety of plaintiff while being transported in their bus, and it was the duty of defendants to exercise the highest degree of care for safety of plaintiff while she was upon the station premises, where she was received as a passenger by defendants; that defendants did not regard their duty but permitted oil and grease to be spread upon the concrete surface of the platform station, which made it unsafe; that plaintiff, while exercising ordinary care, slipped and was injured.

The second count avers that on October 12, 1928, the Yelloway, Inc., and Pioneer Stages were common carriers by motorbus from Bast St. Louis to Chicago; that Sinclair Company operated and maintained a passenger station in Lincoln to receive and discharge passengers transported by said defendants.

It is also averred that defendants Pioneer Stages and Yelloway, together with Sinclair Company, possessed, maintained and used-said passenger station for receiving and discharging of passengers so transported; that plaintiff purchased a ticket from said defendants from Lincoln to Chicago; that it then and there became the duty of defendants to exercise the highest degree of care and diligence for the safety of plaintiff Dean while on the passenger station premises of said defendants. The defendants did not regard their duty and refused to accept plaintiff as a passenger and compelled plaintiff to leave the motorbus of defendants on the claim that there was not sufficient room in said bus to carry plaintiff as a passenger; and defendants negligently compelled plaintiff to leave the bus; that she so left and was on her way to the station-house of said defendants to exchange her ticket; that while walking upon the station platform, which was dangerous because a large amount of oil and grease and gasoline was permitted there by defendants, the plaintiff, while so walking, slipped and fell and was injured.

A general and special demurrer was interposed to the declaration by both defendant bus companies, and, upon hearing, was overruled. Plaintiff in error, Yelloway Pioneer System, Inc., thereafter filed a plea of general issue and a special plea denying ownership and operation of the alleged station and station platform, and averred it had no supervision or control of said alleged premises where the injury occurred; that it was not a common carrier as alleged in the declaration, and did not maintain, operate or possess a business as alleged which required it to exercise the highest degree of care for plaintiff’s safety upon said station platform; that it did not permit oil and grease or gasoline upon the alleged platform, and it did not possess, maintain, control, operate or supervise directly or indirectly said station platform alleged in each count.

A formal replication concluding to the contrary was filed to this plea.

During the year 1928, the Yelloway Pioneer System, Inc., a corporation, operated a system of busses for transportation of passengers, called the Yelloway Busses, between St. Louis, Chicago and Whiting, Indiana, and passing through Lincoln in Logan county, Illinois. At the intersection of Broadway and Sangamon, two business streets in Lincoln, which were both paved and intersected at right angles, the Sinclair Defining Company had a filling and service station with a concrete platform in front of it, having a right-hand and left-hand lane separated by a concrete base on which were stone pillars supporting a portico or roof over the lane nearest the building. This concrete platform slanted toward the north and east about six inches. In this filling station was a ticket office of the Yelloway Pioneer System, Inc. Previous to October 1, 1928, Mr. Cal. Wasson, who was deceased prior to the time of the trial of this case, was ticket agent for the Yelloway Pioneer System. Upon the premises at the corner of the intersection stood a large sign upon ' a base, which sign had painted in large letters “Yelloway, Inc., Authorized Ticket Agent, Lincoln, Illinois. ’ ’

■ By an arrangement made by Mr. Wasson as ticket agent for the Yelloway Pioneer System in consideration of the Yelloway Busses carrying bundles of The Evening Courier from Lincoln to the distributor in Atlanta, eleven miles north of Lincoln, The Lincoln Evening Courier carried as an advertisement for the Yelloway Pioneer System, Inc., a time-table showing the time of the leaving and departure of the Yelloway Busses which advertisement bore the heading “Yelloway Pioneer System Inc. Schedules of Busses, ’ ’ giving the time of departure of busses both north and south and bearing, statement, “All busses leave from Sinclair Filling Station, Broadway and Sangamon Streets. ’ ’

When Mr. Wasson on October 1, 1928, retired from the service of the Yelloway Pioneer System, Mr. Summer skill, the traveling auditor of the Yelloway Pioneer System, Inc., prior to October 1, 1928, appointed Mr. G-. A. Wilmert of Lincoln ticket agent for the Yelloway Pioneer System.' Mr. Wilmert, called as a witness in behalf of the Yelloway Pioneer System, stated that preceding October 12, 1928, Mr. Summerskill stated to him that he, Wilmert, was appointed authorized agent for the Yelloway Company and at-that time the tickets to be sold to passengers were delivered to him together with the stamps for stamping the tickets with the name of the Yelloway Pioneer System and a schedule of fares. Thereafter Mr. Wilmert acted as ticket agent and the Sinclair Filling Station was used as the ticket office and the passenger station office for the convenience of passengers traveling upon the busses of the defendant in error company. This filling station building had a main office in which were chairs for the comfort and convenience of passengers in the station while waiting for busses and it was supplied with rest room and toilets for men and women,

The evidence of Fred Dehner, witness for plaintiff in error, was that many busses each day stopped for the receiving and discharging of passengers, and whenever the busses required oil, gasoline or other service, they were stopped upon the concrete platform of the station and the passengers were there received or discharged.

On October 12, 1928, defendant in error, Emma C. Dean, walked to the station of the Yelloway Busses, to which she was directed upon alighting from an interurban car upon which she had come from Peoria to Lincoln. At the Yelloway ticket station she inquired as to the time of the leaving of the busses for Chicago, to return to her home in that city. After ascertaining the time of the leaving of the northbound bus she went to a restaurant in the same block and south of the bus station and had lunch, and from there went out to the Lincoln State School and Colony, located about two miles from the bus station, for the transaction of some business. She returned to the station about one o’clock and purchased her ticket for the bus, which the agent told her would be there about two o’clock. This ticket was retained by her and offered in evidence. It was ticket Number 7,163, issued by the Yelloway Pioneer System, Inc., in the usual form of the coupon tickets issued by common carriers. It provided for passage to Whiting, Indiana, as destination and specified that in issuing this ticket for transportation oyer the lines of carriers other than those above named, the Yelloway Pioneer System, Inc. acts as agent only. Among those above named as to which the liability of the Yelloway Pioneer System, Inc., was limited, is the Yelloway Pioneer System, Inc., plaintiff in error.

Upon the arrival of plaintiff in error’s bus, defendant in error entered at the front door on the right side. She says, “When I got on the bus, I stood there a minute and I saw everything was filled up, there was one or two places, so there was a sort of box or bench or something, I cannot remember just what, but I seated myself upon that to rest for a minute to see if everything would be filled up. The driver came on the bus and said, ‘Lady, you cannot sit there, that place there is for a child. ’ ” She asked him where the next place was where they stopped for passengers to get off and he said “Joliet.” She said, “"Why did you sell me a ticket to ride on the bus when I cannot ride?” She then got off the north end of the bus at the same place where she had gotten on, and walked on the concrete platform to the ladies’ rest room at the south end. From there she started north to go to the ticket office to redeem her ticket and while walking upon the concrete platform and while almost at the step of the door to the station, her foot slipped in some slippery substance which she said was oil, and she fell heavily upon the concrete platform with her left foot under her and sustained an impacted fracture of the upper end of the femur which was slivered and splintered so that the ends of the shattered bone were impacted or driven into each other and slivered. The fragments of the bone extended over the upper end of the femur.

Daniel Curran, the manager of the Central Illinois Public Service Company, which had a station for supplying ice immediately west of the bus station, came to the place where defendant in error had fallen immediately after she fell. He is an engineer by profession and said he was familiar with lubricating oil, and he stated that there was a large spot upon the surface of the platform about three or four feet and possibly six or eight feet in diameter which he said he was pretty sure was lubricating oil; that it was oil which looked like it might have been used quite a bit and was sort of dark. He further said that a man whom he thought was George Downey, one of the proprietors operating the filling station, was cleaning the oil np at that time and was still sweeping it when Curran’s attention was directed to Mrs. Dean.

Miss Toomey, a school-teacher of the city, who was passing north on Sangamon Street toward the corner where his station was, saw defendant in error just before she fell, looked away and then heard defendant in error scream and fall and went to her assistance. Miss Toomey stated that she looked at once at the pavement and that about a square yard of the slab was covered with oil; that a man went into the office and brought out a bucket with what seemed to be ashes— a gray substance — scattered it on the oil and gathered it up.

Fred Dehner, a witness called by the Yelloway Company, testified that in servicing this bus with gasoline he was unable to determine how much gasoline was in the tank and to control the flow of it until it overflowed and that about a half a gallon of gasoline overflowed upon this concrete platform before he was able to turn it off. He said further that all of the busses of the Yelloway Company were made that way and frequently overflowed gasoline. He further stated that the gasoline always ran over for him when he serviced busses. Dehner further testified that he poured water upon the platform and swept the water off toward the northwest to the street gutter.

Defendant in error was taken in an ambulance to the hospital where she remained from October 12 until January 13 following, when she was removed to her home in Chicago. She remained in bed until May 14, after which she was pulled around in a wheel chair for a while and took her first step on July 4, 1929. Since that time she has always moved upon crutches and has been unable to walk without crutches.

The real estate title of the premises in question on the corner of Sangamon and Broadway Streets, in the business section of Lincoln, is in William E. Hod-nett. The owner leased the premises to the Sunbeam Oil Company by a written lease on January 29, 1925, for a period of ten years, lease to expire January 31, 1935. This same lease was assigned by the Sunbeam Oil Company to the Sinclair Refining Company with the written consent of the owner, Hodnett.

On October 1, 1928, the Sinclair Refining Company executed a written lease of the same premises to Gustave Wilmert and George T. Downer for a period of one year. These men were residents of Lincoln. The lease they had from the Sinclair Refining Company expressly provided the premises were to be used as a gasoline filling station. This was the status of the ownership and control of the premises at the time of the accident complained about, October 12, 1928.

There was a verdict and judgment in favor of defendant in error against the plaintiff in error, Yelloway Pioneer System, Inc., in the sum of $7,500, and plaintiff in error has brought the record, by writ of error, to this court for review. As to the other defendants the cause was dismissed.

The specific duty as to care on the part of plaintiff in error and the negligence charged is, that it was the duty of plaintiff in error to exercise the highest degree of care and diligence for the safety of defendant in error while she was upon the station premises, where she was received as a passenger, and that plaintiff in error did not regard that duty but permitted oil and grease to be- spread upon the concrete surface of the platform station, which made it unsafe. In the second count the same duty is charged and the negligence: “And while walking upon the station platform, which was dangerous because a large amount of oil and grease and gasoline was permitted there by defendant.” The same issue as to care and negligence went to the jury under defendant in error’s first and second instructions which were given. As to where defendant in error was at the exact time of the accident, the brief in her behalf (supra) states: “She then got off the north end of the bus at the same place where she had gotten on, and walked on the concrete platform to the ladies ’ rest room at the south end. From there she started north to go to the ticket office to redeem her ticket and while walking upon the concrete platform and almost at the step of the door to the station her foot slipped in some slippery substance which she said was oil, and she fell heavily upon the concrete platform,” etc., so that defendant in error was not injured in any manner in or about the motive part or operative part of plaintiff in error’s machines, but was injured upon plaintiff in error’s depot platform, away from all the motive or operating part of plaintiff in error’s machine, in so far as plaintiff in error may have controlled or been in the use of said oil station for a depot or depot platform, as claimed by defendant in error. In any event, plaintiff in error was not bound to use the highest degree of care in maintaining said depot and platform, but was bound to use only ordinary care. In Davis v. South Side El. R. Co., 292 Ill. 378, the court passed fully upon this question and held: ‘1 The principal contention here is as to the correctness of an instruction given by the trial court in defining the care required of appellant in the maintenance and supervision of its stairway and landing. The instruction in question stated that ‘in the management and operation of elevated trains and the management and maintenance of the platforms and steps and landings leading to and from said trains for the use of passengers, it is the duty of common carriers to exercise the highest degree of care, skill and diligence for the safety of their passengers consistent with the mode of conveyance adopted and its practical operation. . . .

“This precise question does not seem to have been definitely decided by this court. It has, however, been frequently discussed by text writers and decided definitely in other jurisdictions. The decisions are not all in harmony, though the weight of authority seems to be that as to station buildings and other appurtenances only ordinary or reasonable care is required. In Knight v. Portland, S. & P. R. R. Co., 56 Me. 234, Fremont, E. & M. V. R. R. Co. v. Hagblad, 72 Neb. 773, and Brackett v. Southern Railway Co., 88 S. C. 447, the courts stated that the highest degree of care is required on the part of a railroad company as to its station grounds, while Kelly v. Manhattan Railway Co., 112 N. Y. 443, Pennsylvania Co. v. Marion, 104 Ind. 239, Moreland, v. Boston and Providence Railroad Co., 141 Mass. 31, Christie v. Chicago, Milwaukee and St. Paul Railway Co., 61 Minn. 161, Falls v. San Francisco cmd Northern Pacific Railroad Co., 97 Cal. 114, McCormick v. D., G. H. & M. Ry. Co., 141 Mich. 17, Hiatt v. D. M., N. &. W. Ry. Co., 96 Iowa 169, and Chicago, Rock Island and Pacific Railway Co. v. Owens, 118 Ark. 467, all hold that as to stations and other appurtenances only ordinary or reasonable care is required on the part of the owners.

u ¿ráy respecting the construction and maintenance of station buildings is not so rigorous as that imposed upon railroad carriers in relation to roadbeds, tracks, cars, appliances and the like. Some of the cases seem to lose sight of the difference between the duty respecting station buildings and that respecting means and modes of conveyance, but the well-reasoned cases recognize the distinction and affirm that a railroad company that exercises ordinary care in constructing and maintaining station buildings and appurtenances in a reasonably safe condition for use is not guilty of negligence. There is really no valid reason why a railroad company should be held to a higher degree of care in maintaining its station buildings than that to which an individual owner of buildings used for ordinary business purposes is held. The reasoning of the cases which laid the foundation for the strict American doctrine as to the degree of care required of carriers using steam as a motive power cannot, it is obvious, have any application to buildings and structures prepared for the use of travelers. ’ (4 Elliott on Railroads, — 2d ed. — sec. 1590.) See to the same effect, 3 Thompson on Negligence (ed. of 1902), sec. 2748; 2 Hutchinson on Carriers (3d ed.), sec. 941; 6 Cyc. 605; 10 Corpus Juris, sec. 1341, and cases there cited. The rule is frequently laid down that the degree of care owed to the passenger is justly lessened to the extent of the lessening of the danger involved; that the care required should be commensurate with the danger involved. (Taylor v. Pennsylvania Railroad Co., 50 Fed. 755.) A lengthy review of the authorities is found in a note to St. Louis, Iron Mountain and Southern Railway Co. v. Woods, 33 L. R. A. (N. S.) (Ark.) 855, and Johns v. Charlotte, C. & A. R. R. Co., 20 L. R. A. (S. C.) 520. ‘The degree of care is not fixed solely by the relation of carriers and passengers. It is measured by the consequences which may follow the want of care. A railroad company is held to the highest degree of care in respect to the condition and management of its engines and cars, because negligence in that respect involves extreme peril to passengers, against which they cannot protect themselves. It would not act reasonably if it did not exercise greater care in equipping and running its trains than in regal’d to the condition of its station grounds. ’ Moreland v. Boston and Providence Railroad Co., supra, p. 33. . . .

“There is reason and authority in support of the argument of counsel for the appellant that the same distinction should be made in the care required of a railroad when acting strictly as a carrier and the care required as to its station, depots and appurtenances as is made as to an ordinary business house with reference to the care in running its elevators and the care of floors and stairways and other parts of its premises. This court has held that a business house in the operation of its elevators is held to the same degree of care as any other carrier (Hartford Deposit Co. v. Sollitt, 172 Ill. 222; O’Callaghan v. Dellwood Park Co., 242 Ill. 336, and cases cited;) but that in the maintenance and supervision of stairways on its premises a business house is only held to the exercise of reasonable and ordinary care. (Pauckner v. Wakem, 231 Ill. 276. See, also, Kaufman Department Stores v. Cranston, 258 Fed. 917.) Anything that has been said in any former decision of this court which might be thought to support the contrary conclusion is hereby overruled. ’ ’

The same rule has been laid down in Dire v. Balaban and Katz, Inc., 241 Ill. App. 199, 203, and Kaldunski v. Chicago City Ry. Co., 250 Ill. App. 475, 479. Defendant in error insists that the issue of reasonable care was submitted to the jury by instructions given for plaintiff in error and defendant in error. The issue of negligence was submitted, but that did not cure the error that plaintiff in error was held to the duty of exercising the highest degree of care. Defendant in error’s instruction number five states: “The court instructs the jury that while the burden of proof is upon the plaintiff to prove her case by a preponderance of the evidence, still if the evidence preponderates in favor of the plaintiff, though but slightly, that would be sufficient for the jury to find the issues for the plaintiff.” This instruction has been seriously criticised by the court.

Complaint is made as to other instructions and other errors are pointed out, but as the cause will have to be presented to another jury, doubtless any such errors will be corrected on another trial.

For the errors pointed out, the verdict and judgment of the circuit court is reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Byron Sutton and Lester W. Routt, Partners, Trading as Sutton & Routt, Appellees, v. Board of Education of Casey Township High School, Appellant.
    Gen. No. 8,429.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.

      Parker, Cox & Eagleton and S. M. Scholfield, for appellant.
    Sumner & Lewis and W. T. Hollenbeck, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This is a suit brought upon a contract to recover a stated amount and upon the common counts to recover the value of services performed by appellees, architects, in furnishing plans and specifications for reconstructing a school building.

In May, 1924, the appellant district desired to build an extension or addition to its high school building, and on May 29 the alleged contract sued on was entered into. The appellee architects prepared plans and specifications for the addition, bids were advertised for and received, but upon opening were found to be too high and were rejected. The entire matter was postponed until some future date. This was done in July, 1924.

At this time appellees were paid $2,000 for services as architects and about six months later were paid $1,000. The appellant district contends that these payments were in full for all services of the appellees by agreement with Mr. Sutton, one of the partners at that time. The appellees contend that no such agreement was made and that the $3,000 received by them was not in full but was received under contract sued on, and that by the terms of said contract there was still due them the sum of $633.19.

In January, 1927, the building matter was again taken up and after investigation and consultation, the appellees advised a new building and submitted preliminary penciled sketches. No contract was entered into and the appellant district employed another architect and a new building was erected from the plans and specifications furnished by him.

Suit in assumpsit was filed by the appellees against the appellant district in the circuit court of Clark county, Illinois, demanding payment of $2,000, the appellees declaring on the alleged contract; on certain expenses and services rendered by appellees to the appellant district at its request, and for damages for being wrongfully discharged as architects by the appellant district. The common counts were added.

The appellant district filed a verified plea of general issue to this declaration and the cause was tried by a jury at the November term of the Clark county circuit court, resulting in a verdict for the appellees of $633.19. The appellant filed a motion for a new trial which was overruled by the court and judgment entered on the verdict against appellant, which excepted and prayed this appeal, which was granted by the circuit court and the record is submitted to this court for its judgment.

The appellant asks this court to reverse the lower court because: 1. The circuit court erred in admitting improper evidence on behalf of appellees over objection of appellant, or to be specific, the purported contract was admitted in evidence without any proof from the records of the appellant that such contract was ever entered into by appellant, and that such contract was first approved and adopted on the part of appellant by a yea and nay vote which was entered on the records of appellant;

2. The giving of appellees’ instructions;

3. The refusing to grant appellant’s motion for a new trial;

4. The rendering of judgment against appellant; and

5. The verdict was contrary to the law and the evidence.

The first count of the declaration was for a balance of $633.19 due upon the written contract entered into May 29, 1924. The second count was for services rendered by the appellees to the appellant beginning in the month of January, 1927, in the sum of $290. The third count asked for damages for wrongfully discharging appellees and refusing to permit them to complete their contract for services, to which the common counts were added.

To support the first count of the declaration, the appellees introduced in evidence the contract dated May 29, 1924, under which contract the appellees prepared plans and specifications for the building and after advertising for bids the board decided not to let any contract and held the matter in abeyance.

The contract provided as follows: “Should, for any reason, the party of the second part abandon, postpone or hold in abeyance for six months or more the erection of the building after the Architects have prepared complete, approved working, plans and specifications for same, then the Architects shall be reimbursed by the party of the second part in a sum equal to three (3) per cent less any previous payment, of the lowest combination of bids received, based upon said plans and specifications, or in case no bids be received, three (3) per cent of a reasonable estimate of the completed cost of the proposed work less any previous payment. ’ ’

The total of the lowest combination of bids being for more funds than the district had on hand at that time, they decided to postpone the work a year or two until funds were on hand to go ahead with the project as planned, because the district did not want to cut down the size of the building as it needed the space. The lowest combination of bids totaled one hundred twenty-seven thousand and some odd dollars and under the contract as above set forth appellants were required, if they delayed building for a period of six months or more, to pay 3 per cent of the lowest combination of bids and were paid a total sum of $3,200 leaving a balance of $633.19.

The verdict in this case was the exact amount due under the written contract. A careful examination of all the proofs submitted fails to show that any proofs were offered or admitted tending to show the reasonable value of the services performed by appellees under the pretended contract in evidence. Appellees must, therefore, recover, if at all, upon a legal, binding contract in evidence and not under the common counts. Appellant presented the issue of the execution of the contract by the general issue verified. The question raised by appellant in this case under the first issue is not a question of liability but of proof. Proofs were offered tending to show that signatures attached to the contract were the signatures of members of the school board. No attempt was made to show any record of the school board (appellant) or that any vote was ever taken by the school board for the expenditure of these moneys, and over the objection and exception of appellant the purported contract was admitted in evidence. This was error. In City of Chicago v. Peck, 196 Ill. 260, 262, the court held: “Where an instrument purports to be executed by an agent, the authority of the agent is a material part of of the execution, and to admit the execution is to admit all the essentials to the execution. To require proof of the execution is to require proof of the authority to execute the instrument, and if the execution is denied by a verified plea, the authority of the agent constitutes an essential part of the plaintiff’s proof. A corporation necessarily acts by its agents, and if the execution of the instrument is not denied by verified plea it is not necessary to prove the authority of the agent. (Delahay v, Clement, 2 Scam. 575.)”

This rule is elementary. In this case, the execution of the instrument was denied by a verified plea. Appellees should have shown the record of the school board, authorizing the board to enter into such a contract and make such an expenditure of money, where appellees rely upon the contract to recover. Cahill’s St. ch. 122, If 120; Smith-Hurd’s Eev. Stat. 1929, chapter 122, section 120. But appellees insist that this court has no right to consider the proofs and that “the judgment should be affirmed for the reason that the abstract of record does not show that it contains all the evidence that was presented to the trial.court,” etc., and cites Siegle v. Mitchell, 249 Ill. App. 116, 120. The. abstract does recite, page 28, “Plaintiffs rest their case,” and again on page44, “Defendantrested,” and on page 46, “Plaintiffs again rest.” The certificate of the judge is shown in proper form to the bill of exceptions. In Siegle v. Mitchell, supra, the court held:

“ ‘Where the bill of exceptions does not purport to contain all the evidence the verdict of the jury will not be questioned. (Ballance v. Leonard, 37 Ill. 43; Board of Trustees v. Misenheimer, 89 Ill. 151; Village of Bes Plaines v. Winkelman, 270 Ill. 149.) The certificate of the court reporter that the bill of exceptions contains all the evidence is not sufficient for that purpose (Cogshall v. Beesley, 76 Ill. 445; People v. Clark, 298 Ill. 170;) but it is sufficient if the fact affirmatively appears from the record itself that the bill of exceptions contains all the evidence. (People v. Henckler, 137 Ill. 580; People v. Scanlan, 265 Ill. 609; Central Illinois Public Service Co. v. City of Sullivan, 294 Ill. 101.) Immediately following the testimony in the bill of exceptions in the instant case are the statements, “Defendant rests” and “People rest.” The court reporter then certifies that the bill of exceptions contains all the evidence heard by the court and jury, and the certificate of the trial judge concludes the bill of exceptions. These statements and certificates sufficiently show that the bill of exceptions contains all the evidence upon which the parties relied. ’ ’ ’

In view of this holding we are of the opinion that the record is sufficiently certified as to the testimony produced.

Some objection is made to the instructions offered by and given for appellees but as the cause will have to be submitted to another jury any errors in the instructions as given doubtless will be corrected.

For the error pointed out, the judgment of the circuit court of Clark county is reversed and the cause is remanded to that court for another trial.

jReversed and remanded.


author: Mr. Justice Niehaus

text:
    Yeomans & Shedd Hardware Company, Appellant, v. Charles E. Silkey, Appellee.
    Gen. No. 8,419.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    Jewell & Speakman, for appellant.
    Lewman & Carter, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the trial court sustained a general and special demurrer to the declaration in assumpsit filed by the appellant Yeomans & Shedd Hardware Company against the appellee Charles E. Silkey, in the circuit court of Vermilion county; and a judgment was thereupon rendered against the appellant in bar of this suit. This appeal is prosecuted from the judgment. -

It is a-rgued by the appellee that the declaration is legally insufficient for the following reasons, namely: That the second count does not set forth a copy of the written contract which is the instrument sued on; and that this constitutes a fatal defect. It is a sufficient answer to this contention however, to say that while the second count does not set out the contract verbatim, it does purport to give the substance of the contract sued on, and its terms. A copy of the instrument sued on is set out in haec verba in the first count of the declaration. It is argued with reference to the first count that there is a variance between the terms of the contract as set out in the count and the allegations bearing upon appellant’s right of recovery; but no substantial variance is apparent. It is also contended that no consideration appears from the contract to sustain the contract; or from the averments in the count. Concerning this contention, it is pointed out that the averments in each of the counts are to the effect that the contract sued on was entered into by the parties for the purpose of securing an extension of the time of payment in whole or in part of the indebtedness of one of the parties to the same, namely, Blanch B. Silkey, the indebtedness in question being represented by the promissory notes referred to in the contract. The procuring of an extension of time for the payment of the debt is recognized in law as a sufficient consideration to support a contract. Underwood v. Hossack, 38 Ill. 208; Harris v. Harris, 180 Ill. 157; McMicken v. Safford, 197 Ill. 540; Farmers Nat. Bank of Princeton v. Rosenkrans, 240 Ill. App. 230; Spalding v. White’s Estate, 184 Ill. App. 217; Commercial State Bank v. Folkerts, 200 Ill. App. 385.

For the reasons stated we conclude that the declaration stated a cause of action and the demurrer should therefore have been overruled. Judgment is therefore reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Will County National Bank of Joliet, Illinois, as Administrator of the Estate of Charles M. Gatliff, Deceased, Appellee, v. Champaign County Mutual Relief Association, Appellant.
    Gen. No. 8,430.

      Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    Campbell & Graham, for appellant.
    Busch & Harrihgton, for appellee; C. E. Tate, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

An appeal is prosecuted in this case by the Champaign County Belief Association from the order of the circuit court of Champaign county overruling a demurrer to the declaration filed in the cause by the appellee, Will County National Bank as administrator of the estate of Charles M. Gatliff, deceased, and the rendition of a judgment in favor of the appellee for the sum of $1,000, the amount due under the benefit certificate which is the subject of the controversy. It is conceded that the declaration correctly states the facts upon which the appellee bases his legal right to recover on the benefit certificate which was issued by the appellant association to Olive Gatliff, the wife of the deceased certificate holder. The averments in the declaration are as follows:

For That Whereas, the said defendant, on to wit: the 24th day of August, A. D. 1920, at Champaign, Ill., in said County, made and executed a certain instrument in writing known as a benefit certificate, for One Thousand Dollars ($1,000), being certificate No. 212 issued on the life of Olive Gatliff, and payable at her death to Charles M. Gatliff, as beneficiary, that after-wards on to wit: the 31st day of December A. D. 1927, the said defendant in lieu and in place of said certificate first above mentioned, did issue to the said Olive Gratliff, a certain other instrument in writing commonly called a certificate of membership, benefit certificate, or policy of life insurance, and afterwards on to wit: the 21st day of December A. D. 1927, at to wit: Champaign in said County, for a good, valuable and sufficient consideration to it paid by the said Olive Gratliff, of said County, did deliver the same to the said Olive Gratliff, and then and there, in and by the terms of said benefit certificate, certificate of insurance, or policy of life insurance, the said defendant did promise and agree to pay to the said Charles M. Gratliff, who was then and there the lawful husband of the said Olive Gratliff, upon the death of the said Olive Gratliff, the sum of One Thousand Dollars ($1,000), said sum being so payable by the defendant upon the terms and conditions set forth in said benefit certificate.

And the plaintiff avers, that at the time of the execution and delivery to the said Olive Gratliff, of said benefit certificate, .certificate of insurance, or policy of life insurance, on to wit: the 21st day of December A. D. 1927, the member named in said certificate aforesaid the said Olive Gratliff, was.in a state of good health.

And the plaintiff avers that after the execution and delivery of said benefit certificate, as aforesaid, and on to wit: the fifth day of June, A. D. 1929, the said Olive Gratliff thereby insured, departed this life; that the said Charles M. Gratliff, the beneficiary named in said benefit certificate, departed this life at Joliet, Illinois, on the 14th day of June A. D. 1929; that the said Charles M. Gratliff, up to the time of his death, did not give the defendant herein notice of the death of the said Olive Gratliff; that shortly after the death of the said Charles M. Gratliff, the plaintiff herein, Will County National Bank of Joliet, Illinois, a corporation, was appointed administrator of the estate of Charles M. Gatliff, deceased, by the probate court of Will County, Illinois, and that it is now the duly qualified and acting administrator of said estate; that the plaintiff herein, as such administrator on to wit; the 6th day of Sept., A. D. 1929, gave to the defendant herein, notice of the death of the said Olive Gatliff, and at the same time furnished and delivered to it, the said defendant, satisfactory proof of the death of the said Olive Gatliff, as aforesaid; and the plaintiff further avers that the said Olive Gatliff did, during her lifetime, keep, perform and comply with all the terms, provisions and conditions of said benefit certificate, certificate of insurance or policy of insurance, upon her part to be kept and performed, according to the terms "thereof, and that the said Charles M. Gatliff, up to the date of his death, and the plaintiff, have at all times since, kept, performed, observed, and complied with all of the terms and conditions of said benefit certificate, certificate of insurance, or policy of life insurance, upon their part, by the terms thereof, to be kept and performed; By Means Whereof, the defendant then and there became liable to pay to the plaintiff the sum of One Thousand Dollars ($1,000) as in and by said benefit certificate, certificate of insurance, or policy of life insurance, it promised and agreed, together with interest thereon at the rate of five (5) per cent per annum-from the date said notice and proof of death were furnished to the said defendant as aforesaid; and the plaintiff further avers that at the time of the death of the said Olive Gatliff, aforesaid, the defendant, then and there had and kept a guarantee or benefit fund out of which said sum of One Thousand Dollars ($1,000) then and there due and payable on account of the death of the said Olive Gatliff, could and should have been paid.

And, the plaintiff avers that notwithstanding such performance or performances by the said Olive Gatliff, Charles M. Gatliff, and the plaintiff, and although the time for the payment of said sum of One Thousand Dollars ($1,000) in and by said benefit certificate, certificate of insurance, or policy of life insurance, promised and agreed to be paid, has long since elapsed, and the said sum has long since become and is now due and payable to the plaintiff, under and by the terms of said benefit certificate, certificate of insurance or policy of life insurance, and although often requested by the plaintiff to pay to it, the said sum provided therein, nevertheless the said defendant has hitherto wholly neglected and refused to pay the same, or any part thereof, to the damage of the plaintiff of the sum of One Thousand Dollars ($1,000) and therefore it brings suit, etc.

It is contended by the appellant that these averments of the declaration do not show a legal right to recover on the benefit certificate; and that there is no right of action in the appellee as administrator of the deceased Charles M. G-atliff.

The record discloses that the appellant association was incorporated as a mutual benefit association under the Act of the General Assembly for “incorporation of mutual benefit associations on the assessment plan approved June 27, 1927.” Cahill’s St. ch. 73, 435(1) et seq.; Smith-Hurd Revised Statutes Ch. 73, p. 1651. And the contention is, that the benefit certificate of a mutual benefit association incorporated under the act referred to, can legally be made payable only to the class of persons therein named; and that the class of persons named by the statute, who may' become beneficiaries are “widows, orphans, heirs and devisees of deceased members”; that husbands are not mentioned in the act; and are not included in the term “heirs” as used in the statute; that therefore “the Champaign County Mutual Relief Association, defendant company in the case had no legal power under the statute to make a certificate payable to Charles M. Gatliff, as husband of Olive Gatliff”; and consequently that the issuance of the benefit certificate was ultra vires. Appellant insists that the word “heirs” as used in the Act should be construed in accordance with its original technical significance; and must be considered as having been used in the strict primary common law sense, there being nothing in the context of the beneficiary certificate to show that it was used in any other sense. Gauch v. St. Louis Mut. Life Ins. Co., 88 Ill. 251. We are unable to agree with this contention. Moreover, the question involved does not pertain to the construction of the benefit certificate but to a construction of the Act of" the General Assembly under which the appellant association was organized. To determine a proper construction of the Act in that respect or what the legislature had in mind in using the word “heirs” due consideration should be given to the purpose and apparent scope of the Act which includes benefits to be conferred not only on widows, orphans and heirs, but also on devisees of a deceased member. The purpose and scope of the benefits to be conferred by the Act does not appear to justify the assumption that the legislature intended to confine the benefits provided to “heirs” only that come within the narrow common law limits; that is to say, as meaning only the heirs by blood relationship; but it is more reasonable to conclude that the word was used in its broader sense, namely, to include all who would or could be capable of inheriting either by blood relationship as at common law, or by statute as it existed at the time of the passage of the Act. The word “heirs” in this sense would include the husband, who would be and could be an heir of the wife under the statute, at the time of the passage of the Act and capable of inheriting at least part of the wife’s property, if she died without leaving any child or children or descendants surviving her, as was the case here. But even if the husband could not be considered as an heir of his wife, it must be pointed out, that in this case the defense of ultra vires is not available to the appellant because it is well settled as a matter of law that a contract of this character, “where it had been fully performed by the party contracting with the corporation, and the corporation has received the. benefits from such contract, it cannot invoke the doctrine of ultra vires to defeat an action brought against it on such contract.” Bloomington Mutual Benefit Association v. Blue, 120 Ill. 121; Brailley v. Ballard, 55 Ill. 413; Barnes v. Suddard, 117 Ill. 237; Kadish v. Garden City Equitable Loan & Building Ass’n, 151 Ill. 531; McNulta v. Corn Belt Bank, 164 Ill. 427; Eckman v. Chicago, Burlington & Quincy R. Co., 169 Ill. 312; Peoria Life Ins. Co. v. International Life & Annuity Co., 246 Ill. App. 38; Welsh v. Bruce Sewing Mach. Co., 223 Ill. App. 467; Rector v. Hartford Deposit Co., 190 Ill. 380.

The appellant also contends that section 25 of the Act, Cahill’s St. ch. 73, Tf 435(25), providing for the incorporation of the appellant association, directs that “the money or benefit provided or rendered by any association authorized to do business under this Act, as provided in the certificate of membership thereof, shall not be liable to attachment by garnishee or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable process, nor by any operation of law, to pay any debt or liability of a certificate holder or any beneficiary named therein”; and that therefore the benefit funds cannot legally be used to pay the debts of a deceased member; and cannot become a part of a deceased member’s estate; and that the administrator of the estate for the same reason has no legal right to sue for and recover the same for an estate. It is clear however, that the provisions embodied in section 25 referred to were intended for the protection of the benefit funds from seizure by attachment or garnishment or other legal or equitable process and their appropriation by operation of law while in the hands and under the control of the benefit association; and it is not apparent that this section has reference to what may be done with the funds after they become the funds of beneficiaries and the beneficiaries have received the same from the association. Martin v. Martin, 187 Ill. 200; Hamilton v. Darley, 188 Ill. 229 (confirmed in 266 Ill. 542).

The rights of the beneficiary named in a certificate of membership in a mutual benefit association become vested and attach immediately upon the death of a member and the right to the fund passes to his personal representative or next of kin. 45 Corpus Juris, p. 247, sec. 191. And it is well settled that the administrator of an estate is the proper person to bring suit in a case of this kind or to recover on any chose in action of a decedent. Benes v. Bankers Life Ins. Co., 282 Ill. 236; Forest City Ins. Co. v. Hardesty, 182 Ill. 39 ; Continental Casualty Co. v. Maxwell, 127 Ill. App. 19. It may be said further concerning this contention that there is no presumption that the fund, when collected by the administrator as a part of the decedent’s estate, will be applied upon debts or liabilities of the deceased benefit certificate holder, instead of being paid over to the heirs of the certificate holder; and it may be rightly assumed that if the administrator should attempt, contrary to the rights of the heirs to the fund, to make such application, the heirs could and would assert their title to the fund in the county or probate court where the estate of the deceased is pending.

For the reasons stated we conclude that the demurrer to the declaration was properly overruled; and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Matchett

text:
    Dolores Arndt, a Minor, by Leo Arndt, her Father and Next Friend, Appellee, v. Riverview Park Company, Appellant.
    Gen. No. 34,407.

      Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed December 1, 1930.
    Eugene P. Kealy, for appellant; Patrick L. McArdle, of counsel.
    Arne B. Hummeland, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant from a judgment in the sum of $5,000 entered upon the verdict of a jury in an action on the case for personal injuries, motions for a new trial and in arrest having been overruled.

Defendant operates an amusement park, and one of the amusement devices operated in connection therewith is usually described as a “merry-go-round.” In a general way it consists of a circular revolving platform on which are installed in rows chariots and what are described a.s stationary and plunging horses. Each horse is equipped with a bridle, a saddle and a pair of stirrups and is permanently fastened to the floor of the merry-go-round by means of an iron rod attached to the floor passing upwards perpendicularly through the neck of the horse in front of the saddle. This rod serves the double purpose of holding the horse firm and providing a means by which the rider may hold on while the horse is in motion.

The device was designed primarily for the use of children and about it at a convenient distance were benches upon which parents and attendants of the children were accustomed to rest while the children enjoyed the rides. It was the usual practice in the operation of this device that when the passengers were seated an attendant would ring a bell and a lever would be thrown which would start the merry-go-round in motion, at first slowly but increasing in speed until it moved at the rate of six or seven revolutions a minute.

The higher speed was attained, of course, by the outside horses at the edge of the platform, and the speed of the horses on the inner part of the platform was less in proportion to the distance of the same from the outer circumference of the platform. The stationary horses move with the platform as it revolves. The moving or plunging of the horses also had an up and down movement which increased with the speed at which the whole device was moved.

After two or three revolutions it was the usual practice for an attendant to go around the platform between the rows of horses and collect the tickets which patrons were required to purchase as evidence of their right to ride.

Plaintiff, ten years of age, with her father, mother and brother, then three years of age and called “Junior,” went to the amusement park on the day of the accident: They were accompanied by a friend, Mrs. Brackey, her three-year-old "child, Maybellé, and her niece, Evelyn Kunkel, who was then ten years of age.

Mrs. Arndt paid for the admission of all these and purchased four tickets entitling the children to rides.

Plaintiff approached the merry-go-round and mounted one of the horses. Mrs. Arndt took her three-year-old child and set him on the same horse with and in front of plaintiff. She put plaintiff’s feet in the stirrups attached to the saddle, hut there were no stirrups for. the little brother. Mrs. Arndt, however, saw to it that he took hold of the bridle of the horse. Plaintiff then put her arms about her brother under his arms, and Mrs. Arndt gave the tickets to plaintiff. She then got off hurriedly just as the merry-go-round started up ■ and seated herself with Mrs. Brackey on one of the benches, from which they watched the children as they rode about. As plaintiff went round she apparently released one arm from about her brother and holding onto him with the other, waved to her mother. After the device had made several revolutions and when plaintiff had passed beyond her view, the mother heard a scream and then saw plaintiff on the ground, to which she had been thrown by the motion of the device. There seems to be no doubt of the serious nature of the injuries plaintiff sustained.

All seats on the platform of the device, 72 in number, were occupied. Two attendants, servants of defendant, supervised the operation of the device. One of these was taking tickets and the other sat upon one of the benches. The latter testified that he did not see the accident. There were straps on the horses used at times for the purpose of fastening the rider to the horse. Neither plaintiff nor her brother was so strapped.

When the attendant took plaintiff’s ticket (according to the evidence of Evelyn Kunkel) her baby brother was slipping off the horse towards the outside, and Evelyn’s evidence tends to show that in the endeavor to hold her brother, who weighed 50 pounds, plaintiff lost her balance and was thrown. Plaintiff fell when the device was moving at its highest speed and was thrown head first through the air, her body moving in an inclined plane and directly out at an angle from the merry-go-round.

The foregoing facts are practically uncontradicted. At least the jury could properly believe from the evidence presented that the facts are as above stated. At the close of all the evidence defendant moved for an instructed verdict and now urges upon this appeal that the court erred in refusing to give that instruction as requested.

It is urged that plaintiff was guilty of contributory negligence and that the peremptory instruction in defendant’s favor should for that reason have been given. It is argued that the evidence indicates that plaintiff was a bright child and conscious of the methods employed in the operation of this device; that she had been placed by her mother in charge of her three-year-old brother, and that in waving to her mother she necessarily released her hold upon the brother, thus leaving him unprotected against the centrifugal force which was operating to move the child towards the outside of the device and into a position of danger. It is said that the mother and the plaintiff in waving to each other were “indiscreet” and that this was the only unusual occurrence in the “whole business”; that when the merry-go-round started the little brother was safely held in plaintiff’s arms; that at the time of waving to her mother she released her hold upon him, thus allowing him to slip; that she fell or was thrown in trying to save him, and that in this way she was responsible for her own injuries. McAllister v. Jung, 112 Ill. App. 138, and Koehler v. Chicago City Ry. Co., 166 Ill. App. 571, are cited as cases holding that children ten years of age may be guilty of such contributory negligence as to bar an action by them for injuries received.

Those cases are easily distinguishable in many respects. Here, defendant operated a device which was attractive to children of tender years and concerning which their patronage was solicited. That fact is important and may not be disregarded. Neither plaintiff nor her little brother was a trespasser, but they were upon the merry-go-round by express invitation to enjoy the ride and thereby obtain a novel and unusual experience. The confidence that children repose to a marked degree in old persons would lead plaintiff to believe that a place operated for children generally and superintended by adult persons would be .free from danger. The parents t,oo might well suppose, since defendant was licensed by public authority to operate a device of this kind, that their children might enjoy themselves with safety in such place.

The law recognizes the difficulty of defining with precision the adolescent negligence which will bar recovery. This plaintiff was a child; she thought as a child; she understood as a child; she had not put away childish things. As to adults, the question of contributory negligence is usually for the jury. Much more is it a question for the jury as to those who are not adults. In Maskaliunas v. Chicago & Western Indiana R. Co., 318 Ill. 142, the rule which must control in this jurisdiction is stated as follows:

“The law is clearly established by great weight of authority, that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, •taking into consideration the age, capacity, intelligence and experience of the child.”

The court we think did not err in submitting the question of plaintiff’s contributory negligence to the jury.

It is urged again, however, that the instruction for defendant should have been given because there was no proof of any negligent act by defendant as alleged in plaintiff’s declaration. The argument of defendant upon this point proceeds upon the theory that the law as to the duty of common carriers to their passengers is applicable. The rule to be applied as to common carriers is set forth in many cases cited, all of which hold the rule to be that the duty put upon such carriers is to do all that human care, vigilance and foresight can reasonably do consistent with the mode of conveyance and the practical operation of the business, to the end that passengers may not be injured. That rule is stated in the early case of Pittsburgh, Cincinnati & St. L. Ry. Co. v. Thompson, 56 Ill. 138, and, we believe, has been ever since consistently followed by the courts of this jurisdiction. Chicago & Alton R. Co. v. Arnol, 144 Ill. 261; Chicago & Alton R. Co. v. Kerr, 148 Ill. 605. The rule was applied in an action by a passenger upon a scenic railway at an amusement resort in O’Callaghan v. Dellwood Park Co., 242 Ill. 336.

Defendant summarizes the situation from its standpoint by the statement that the carrier, with the conveyance before the passenger, says, “I’ll carry you in this conveyance just as it stands.” Upon this theory it is argued that many of the specifications of negligence pleaded in the declaration are not actionable at law; for example, questions as to the manner in which the device, was constructed and as to whether the horses were equipped with straps, it is said are not in issue, citing Chicago & Eastern Illinois R. Co. v. Driscoll, 176 Ill. 330. It is said that the high degree of care required must be limited by the mode óf conveyance adopted and used by the passenger and by the conditions and circumstances which were necessarily attendant upon the operation of the device. Murphy v. White City Amusement Co., 242 Ill. App. 56; Sullivan v. Ridgway Const. Co., 236 Mass. 75; Pointer v. Mountain Ry. Co., 269 Mo. 104; Carlin v. Krout, 142 Md. 140; Olsen v. Riverview Park Co., 252 Ill. App. 638, are cited and relied on in this connection.

In those cases the courts were called upon to pass on facts which showed that an adult person with full capacity to act in his own behalf voluntarily contracted with reference to amusement devices quite different in their nature from the one which we have described, and they are therefore distinguishable. Although we hold that under the rule as laid down in those cases, the question of defendant’s liability here was one for the jury. In Brown v. Rhoades, 126 Me. 186, 137 Atl. 58, the authorities from different jurisdictions, which consider the question as to the duty that a defendant operator of an amusement device owes to minor children whose patronage he has invited, are reviewed. That case in substance holds that reasonable supervision of the device either by the operator himself or by an attendant is a duty which devolves upon the operator, for neglect of which the proprietor will be held liable. We think that duty devolved upon defendant under the circumstances which appear here. The jury might have well believed that if proper supervision had been' exercised, plaintiff and her infant brother would not have been allowed to ride together upon this horse as they were permitted to do. The danger in doing so ought certainly to have been appreciated by the servants of defendant in charge, and the ride should have been forbidden under the circumstances, unless these children were firmly fastened to the horse in such a way as would prevent falling. Irrespective of the other negligence alleged, this, we think, justified the submission of the cause to the jury.

It is urged that the court erred in giving the first instruction requested by plaintiff, which told the jurors that even though they believed from the evidence that the mother of plaintiff was guilty of negligence on the occasion in question, yet under the law, such negligence, if any, could not be attributed to plaintiff. It is argued that this instruction presented an abstract proposition of law which was not applicable and therefore should not have been given to the jury. Garvey v. Chicago Rys. Co., 339 Ill. 276, is cited to that point. We think the criticism is without merit. A similar instruction was approved by the Supreme Court in Perryman v. Chicago City R. Co., 242 Ill. 269, 271, and the Appellate Courts have often approved similar instructions. Vanek v. Chicago City Ry. Co., 210 Ill. App. 148; Deheave v. Hines, 217 Ill. App. 427.

It is also urged that the second instruction, by which the jury was told that it was the duty of defendant, by its servants in operating the merry-go-round, to exercise the highest degree of care and caution for the safety of its passengers and to do all that human foresight and vigilance could reasonably do consistent with the mode of conveyance and the practical operation of said conveyance to prevent accidents to its passengers, was erroneous. A similar instruction has been approved by the Supreme Court in O'Callaghan v. Dellwood Park Co., 242 Ill. 336.

It is also urged that the fourth instruction given at the request of plaintiff was erroneous. By that instruction the jury was told that the law did not require of plaintiff the exercise of an extraordinary degree of care; that all that was required of her was the exercise of ordinary care, and that this ordinary care depended upon the circumstances of each particular case and was such care as a person of ordinary prudence and intelligence would usually exercise under the same or similar circumstances. Objections are made that this instruction also stated an abstract proposition of law; that it was negative in form and would only confuse the jury. The objections are without merit. A similar instruction was approved in Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 621.

It is also urged that the sixth instruction given at the request of plaintiff was erroneous. That instruction told the jury that in determining the amount of damages, if any, plaintiff was entitled to recover in this case, the jury had a right to and should consider all the facts and circumstances attending the injury appearing from the evidence, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence, her bodily suffering, if any, resulting from such physical injuries, and such further suffering and loss of health, if any, as the jury might believe from the evidence she has sustained by reason of such injuries, and that the jury might find for her such sum as in their judgment, under the evidence and instructions of the court, would be a fair compensation for her injuries, if any, so far as such damages and injuries, if any, were claimed and alleged in the declaration and proved by a preponderance of the evidence. It is argued that this instruction has been recently condemned by the Supreme Court in Garvey v. Chicago Rys. Co., 339 Ill. 275. The instruction here, however, differs materially from the one considered in that case. Moreover, the opinion of the Supreme Court stated that the* instruction criticized “might not in itself call for reversal in the case.” Substantially, this instruction seems to have been approved by the Supreme Court in Chicago & M. Electric R. Co. v. Ullrich, 213 Ill. 170; Parmelee Co. v. Wheelock, 224 Ill. 194; Brennan v. City of Streator, 256 Ill. 468, and by the Appellate Court in Caughey v. Peoria Ry. Co., 164 Ill. App. 455. The instruction referred to the damages to be allowed, and the same are not, in our opinion, excessive.

It is also urged that the court erred in giving plaintiff’s seventh instruction, by which the jury was told that plaintiff was not bound to prove her case beyond a reasonable doubt; that she was bound only to prove it by a preponderance of the evidence. It is said that the instruction was entirely uncalled for, is a pure abstraction and is negative, and for these reasons it is subject to criticism. This instruction, however, has been approved in Chicago Consolidated Traction Co. v. Schritter, 222 Ill. 364, and Pierson v. Lyon & Healy, 243 Ill. 370.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.

McSurely and O’Connor, JJ., concur.


author: Mr. Justice McSurely

text:
    Arthur E. Hurt et al., Appellants, v. Rudolph J. Hejhal et al., Appellees.
    Gen. No. 33,688.

      Heard in the first division of this court for the first district at the October term, 1929.
    Opinion filed December 1, 1930.
    Walter Truc and James S. Wight, for appellants.

      John C. Setecka and B. M. Steiner, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal complainants question the propriety of a decree dismissing, after hearing, their bill of complaint which sought a mandatory injunction enjoining defendants from erecting or maintaining a building alleged to be erected in violation of certain building restrictions contained in a deed and of the zoning ordinance of the City of Berwyn.

Neither the City of Berwyn nor William Kramer, building commissioner, has filed an answer to the bill. We shall hereafter designate Rudolph J. Hejhal and Marie Hejhal as defendants. Their answer denied that their premises were subject to the alleged restrictions in the deed and asserted that their premises were rezoned as an apartment district and that there were a large number of other apartment buildings in the locality; that they have complied with all the requirements of the building commissioner of the City of Berwyn and that they have expended large sums of money, in excess of $25,000, in accordance with the building permit issued to them. The answer also denied that the erection of the building would cause damages to the complainants.

The premises in question are in the City of Berwyn, at the southeast corner of Clarence Avenue, a north and south street, and 19th Street, which runs east and west. The premises owned by complainants lie immediately to the south and adjoin the lot owned by defendants.

In September, 1926, 25 lots in this Berwyn subdivision, including the lots owned by the parties here, were conveyed to Joseph J. Mrizek and Vlasta Mrizek by a deed which contained the following:

“The said premises are hereby restricted to two or more residence (commonly known as two flat buildings) purposes only, and shall not at any time hereafter be used for any other purpose.
“The said conditions shall run with the land and inure to the benefit of and be binding upon the grantees herein and all subsequent owners of the respective lots hereby conveyed.”

In October, 1926, Mrizek and his wife conveyed to the complainants the premises now occupied by them. It was already improved with a two-story building, containing two flats, which were thereafter occupied by the grantees as their respective residences. This deed provided that it was subject to the conditions and restrictions shown in the prior conveyance.

" A zoning ordinance was adopted by the City of Berwyn in September, 1923, whereby restrictions were laid upon lots in the locality in which defendants’ lot was situated, restricting improvements to two apartment buildings and forbidding any building to exceed 35 feet in height or two and a half stories or to cover in excess of 40 per cent of the area of a corner lot, with an exception not now involved. There was also a provision that there should be a rear yard of not less than 10 per cent of the depth of a corner lot. The building proposed by defendants was a three-story building with about eight inches of rear yard and occupying in excess of 71 per cent of the area of the lot.

February 15, 1929, Mrizek and his wife conveyed to the defendants the corner lot in question, which was then vacant. Thereafter, on March 4, 1929, Rudolph J. Hejhal applied to and obtained from the building commissioner of Berwyn a permit to construct on said premises a nine-apartment building covering nearly the entire area of the lot.

Dr. Hurt, one of the complainants, protested to the building commissioner of Berwyn. There is some dispute as to how far the work had progressed at this time. Defendant Hejhal testified that he commenced work on or about March 13; that the first time Dr. Hurt ever talked to him was about March 25, when building operations were suspended for two days and at which time the building had progressed beyond the first floor and almost to the second. A meeting of the building committee of the council was called for March 27 to consider the matter. This meeting was continued to April 9, when the Berwyn officials ordered the building stopped and nothing was done for two weeks. On April 23, the city council rescinded the order of April 9 stopping the work and thereupon defendants continued the work. The building was up to the roof at the time this bill was filed.

Had the building restrictions contained in the deed been so far disregarded and abandoned by general consent and the acts of the property owners in the locality so that a court of equity will not enforce such restrictions by injunctions ?

The general rule is stated in Ewertsen v. Gerstenberg, 186 Ill. 344:

“Equity will not, as a rule, enforce a restriction, where, by the acts of the grantor who imposed it or of those who derived title under him, the property, and that in the vicinage, has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant the relief would be a great hardship on the owner and of no benefit to the complainant, or where the complainant has waived or abandoned the restriction, — or, in short, it may be said that where, from all the evidence, it appears that it would be against equity to enforce the restriction by injunction, relief will be denied, and the party seeking its enforcement will be left to whatever remedy he may have at law,”

To the same effect are Curtis v. Rubin, 244 Ill. 88; Kneip v. Schroeder, 255 Ill. 621; Wiegman v. Kusel, 270 Ill. 520; Gilmore v. Keogh, 241 Ill. App. 28.

The evidence shows that within a radins of one block from the premises in question there are 6 large apartment buildings; that within a radius of 3 blocks there are approximately 15 apartment buildings of various sizes and in each case larger than a two-flat building; that within a radius of 4 blocks there are over 20 apartment buildings ranging from 3 to 38 apartments. These physical facts indicate clearly an abandonment of the building restrictions contained in the deed above referred to and a general acquiescence in the breach of such restrictions or conditions.

In Wiegman v. Kusel, 270 Ill. 520, cited by complainants, it was held that equity will not enforce a building restriction where, by the acts of the grantor who imposed it or of those who derived title under him, the character of the property in the vicinity has so changed as to make it unfit or unprofitable for use if the restriction is enforced. In that case, although the injunction was ordered, the facts found by the court were that there had been no change in character or environment making it unprofitable to enforce the restriction, that the building restriction had been observed not only on the street there under consideration but on other streets in the subdivision, with only one possible exception some distance away.

It is worthy of comment that there was no legal proceeding brought by any of the lot owners, including the complainants herein, to prevent the erection of any of these other apartment buildings, and this is impressively true of the two large apartment buildings occupying, respectively, the northwest corner and the southwest corner of Clarence Avenue and 19th Street. Defendants’ property occupies the southeast corner of this intersection. There is also another apartment building in the same block.

The facts as to the changed conditions of the locality-in question justified the refusal of the chancellor to issue an injunction on the ground of alleged violation of the building restrictions in the deed of conveyance.

Are complainants entitled to an injunction because of the alleged violations of the zoning ordinance ?

As a general rule, where a party acts in good faith under affirmative acts of the city and has made expensive improvements so that it would be highly unjust and inequitable to destroy the rights acquired, the doctrine of equitable estoppel will apply and a court of equity will not, at the suit of an individual, restrain the erection of such building. In People v. Wieboldt, 233 Ill. 572, it was held, in effect, that where permanent improvements had been made at a large expenditure of money and while relying upon the action of a city council, thereafter to deprive him of the rights secured by city ordinance would be a fraud upon him. In People v. City of Rock Island, 215 Ill. 488, it was held that where there was affirmative action by the public authorities under which permanent improvements were made, the principles of equity require that the public should be estopped from ordering such improvements removed. To the same effect is People v. Maxon, 139 Ill. 306. In Sinclair Refining Co. v. City of Chicago, 246 Ill. App. 152, this principle was recognized, although there it was held that the city was not estopped by the illegal act of the official. The court, however, said:

“If the complainant had obtained an order of the city council for a permit, and relied thereon, and subsequently had made the investments which it did, it would have some claim for an estoppel in pais.”

In People v. Thompson, 209 Ill. App. 570, after reviewing many cases, it was held that, where a garage is built at great cost in reliance upon an order of the city council directing that a permit issue therefor, the doctrine of estoppel in pais will be applied to prevent the city from refusing to issue a license to conduct the garage and that mandamus will be granted to compel its issuance, although the garage was constructed in violation of an ordinance.

March 4, 1929, defendants obtained their permit from the building commissioner. The commissioner explained that he issued the permit according to the common custom; he was, apparently, following a prior order of the city council of March 23, 1926, concurring in the recommendation of the board of appeals to allow the erection of apartment buildings in the vicinity which included the property of defendants. We think it is evident that the numerous three-story apartment buildings in the locality were erected by reason of permits issued pursuant to this order.

After consideration of the objections to the construction of defendants’ building after .work had begun, the city council on April 23, by resolution, affirmatively again authorized defendants to proceed with the work. It is also in evidence that in reliance upon the foregoing facts defendant Hejhal had expended a large sum of money and had become obligated in this respect to a total of approximately $37,000. The entire cost of the building, including the value of the ground, was estimated at about $41,000. Defendant testified that at the time of the hearing in court he had spent about $25,000 in the erection of the building and had contracted for other material and labor in addition.

The record shows a state of facts calling for the application of the rule that the city is estopped from interfering with the building on the ground that it violates an ordinance. Defendants apparently acted in good faith under the affirmative acts of the City of Berwyn and have made expensive and permanent improvements which it would be highly inequitable and unjust to destroy. ■

Complainants object to the meager yard in the rear of defendants’ building, but it is shown by uncontradieted testimony that many of the other apartment buildings in the vicinity cover the entire area of the lots.

Complainants seem to claim that defendants used undue haste in pushing the construction of the building to completion. The evidence does not bear this out.

There was some evidence that complainants stated that the damage to their adjacent property by reason of the improvements erected by defendants would amount to $1,500. Manifestly, it would be unjust to compel defendants to tear down a substantial part of their building where their damages, if this were done, would be so much greater than the damage claimed to have been sustained by complainants.

The granting of an injunction is within the sound discretion of the chancellor and a decree denying the same will not be disturbed unless there has been an abuse of that discretion. Bondy v. Samuels, 333 Ill. 535.

Upon the record we hold that the decree dismissing the bill for want of equity was proper, and it is affirmed.

Affirmed.

Matchett, P. J., and O’Cohhor, J., concur.


text:
    Catherine Hartley, Defendant in Error, v. Red Ball Transit Company, Plaintiff in Error.
    Gen. No. 34,193.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed December 1, 1930.
    Rehearing denied December 15, 1930.
    Church, Haft, Robertson & Crowe, for plaintiff in error; Burt A. Crowe, of counsel.
    Philip Rosenthal, for defendant in error; Stuart B. Krohn, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant seeks to have reversed a judgment against it for $65,000 entered upon the verdict of a jury in an action wherein plaintiff seeks compensation for injuries received when she was struck by a motor truck alleged to have been owned and operated by defendant.

Defendant filed a plea of general issue and special pleas denying ownership, operation and control of the truck in question. It was conceded upon the trial that the defendant did not own the truck, so that the issue, aside from the question of the negligence of the respective parties causing the accident, was whether defendant operated and controlled the vehicle. Its claim was that the truck was operated by and under the control of Thomas Burke, the driver at the time of the accident, and that his relation to defendant was that of an independent contractor.

As we have concluded that the erroneous and irregular manner in which the case was tried requires us to send it back for retrial, we shall say nothing about the accident itself.

There was a written contract between defendant and Thomas Burke purporting to fix the relationship between them, in which there was a provision that Burke was not at any time an employee or agent of defendant, but that in moving and transferring shipments he was an independent contractor. It has been repeatedly held that under such conditions whether one engaged in performing work under such a written contract is an independent contractor, is a question of law to be determined by the court in construing the contract. Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100; Connolly v. People’s Gas Light & Coke Co., 260 Ill. 162; Rosenbaum Bros. v. Devine; 271 Ill. 354; Raxworthy v. Heisen, 191 Ill. App. 457, affirmed in 274 Ill. 398; Shannon v. Nightingale, 321 Ill. 168; Cutler v. Gardmer Metal Co., 225 Ill. App. 497; and many other cases.

In violation of this rule this contract went to thg jury for construction, together with á mass of more or less irrelevant testimony touching the methods of the parties in conducting their business. Objections were made by defendant to the introduction of such evidence and motions were made to strike on the' ground that the written contract covered and controlled the facts to which the witnesses testified. Such objections and motions were overruled and the court sent to the jury all of the evidence including the contract without construing it or ruling upon the admissibility of the evidence with reference to its materiality or relevancy to the written contract.

The manner in which plaintiff’s attorneys presented her case tended to produce this confusion. After introducing their evidence as to the accident, it was sufficient for them to have shown that the truck in question bore the name of the defendant, thus making out a prima facie case of ownership, and it was for the defendant to overcome this presumption, if possible, by producing its written contract and such other evidence as it desired, which the plaintiff could attack in rebuttal.

We are not holding that the written contract is conclusive. Any act or conduct on the part of a defendant inconsistent with the defense presented is generally admissible in evidence and is proper to be considered by a jury. Even though such evidence may have but a slight bearing upon the issue, it is not thereby rendered incompetent, but only its weight is affected.

The construction of the written contract between defendant and Thomas Burke was a question of law for the court, and if the court was of the opinion that it established the relationship of an independent contractor and not- that of a servant and agent, it should have instructed the jury to this effect; but if there was any competent evidence tending to contradict this defense, the jury should have been further advised that such contract was not conclusive as to the relation of the parties. In so holding, we are following what •seems to us the very sensible suggestion contained in the opinion in Vacker v. Yeager, 151 Ill. App. 144.

Complaint is made as to the rulings on evidence and remarks of the court upon the trial. Such errors, if any, will not likely occur upon the next trial.

It is claimed that the damages are excessive and that the large amount of the verdict, $65,000, was induced by the improper examination of one of defendant’s witnesses, W. B. Hiner. There is some substance in this point. The verdict is obviously large, but at the same time there was evidence tending to show that plaintiff suffered serious injuries. We do not pass upon the amount of the verdict, as upon the second trial there may be a different amount allowed.

For the reason above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and O’Connor, J., concur.